STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAXIE WASHINGTON, JR. )

t/a BLUE LIGHT, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1619

) DABT NO. 80A-223

STATE OF FLORIDA, DIVISION )

OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida before the Division of Administrative Hearings and its duly designated Hearing Officer, R. T. Carpenter, on December 2, 1980. The Parties were represented by:

For Petitioner: Mark Lubet, Esquire

200 East Robinson Street, Suite No. 1520 Orlando, Florida 32801

For Respondent: James N. Watson, Jr., Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Petitioner seeks the transfer of alcoholic beverage license No. 59-54, Series 2-COP, now held by McKinney Harris and Martha Washington, operating at

105 Lake Street, Kissimmee, Florida. Respondent denied the application for transfer, stating "Applicant not believed to be of good moral character" as required by Section 561.15, Florida Statutes. Petitioner requested a hearing and the matter was referred to the Division of Administrative Hearings by Respondent's letter dated September 5, 1980.

Hearing was set for September 8, 1980 at Petitioner's request. However, on that date counsel for Petitioner sought and was granted a continuance. At the December 2, 1980 hearing Petitioner was not present, and his counsel asserted that Respondent had the burden of proof on the moral character issue. Both parties submitted briefs on this point. In addition, counsel for Petitioner moved to reopen the proceedings to receive Petitioner's testimony, which motion was opposed by Respondent.

FINDINGS OF FACT

1. Petitioner introduced no evidence to support his application or to refute Respondent's evidence. Respondent presented the testimony of its Orlando district supervisor who initially processed the application. He recommended denial based on the arrests and convictions indicated in the "rap sheet" of

   Maxie Washington, Jr. (Respondent's Exhibit Two) and on his participation in some of Petitioner's arrests for alleged beverage law violations.

   
   

   CONCLUSIONS OF LAW

2. Subsection 561.15(1), Florida Statutes provides in part: "Licenses shall be issued only to persons

   of good moral character . . ."

3. Subsection 28-6.08(3), Florida Administrative Code provides: "Any hearing on the denial of a license

   shall be conducted in accordance with

   Section 120.57, and unless otherwise provided by law the applicant shall have the burden of establishing entitlement to the license."

   
   

4. The above cited statute and rule place the burden of proving good moral character on the license applicant. These specific provisions follow the general rule that "[The] burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal Balino

   v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977).

   
   

5. Petitioner lead the burden of establishing his good moral character as a condition of license transfer. However, he failed to provide any evidence on which to base such a finding. His motion to reopen the proceedings to receive such evidence was not supported by good cause and is hereby DENIED.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the application of Maxie Washington, Jr. for the transfer of Alcoholic Beverage License No. 59-54 be DENIED.

DONE and ENTERED this 31st day of December, 1980, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.

COPIES FURNISHED:

Mark Lubet, Esquire

200 East Robinson Street Suite 1520

Orlando, Florida 32801

James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 80-001619

Orders for Case No: 80-001619