STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KING BARRY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-2065

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came of for hearing before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on December 10, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: Maurice Rosen, Esquire

16666 Northeast 19 Avenue, Suite 112 North Miami Beach, Florida 33162

For Respondent: Dennis E. LaRosa, Esq.

725 South Bronough Street Tallahassee, Florida 32301

By letter dated August 4, 1980, respondent announced its intention to deny petitioner's application for a new 2-APS license on the grounds that:

Corporate officer is not believed to be of good moral character. Also applicant officer has falsely sworn to a material statement in connection with this application.

At the hearing, it developed that Paul Allen Cohan was the corporate officer, and his statement on the application that he had not been arrested was the material statement referred to in the letter of August 4, 1980. This letter specified Section 559.791, Florida Statutes (1979), as authority for the proposed denial.

FINDINGS OF FACT

1. Paul Allen Cohen moved to Florida from New York City five years ago. Since he was 13 years old, he was held various jobs in the retail grocery business. At the time of the hearing, he was the principal stockholder in the corporate petitioner that is seeking a license for package sales in these proceedings. The corporation owns a grocery store on North Miami Beach in which Mr. Cohen and his parents were working at the time of the hearing.

2. Mr. Cohen has never been fired from a job. He has had several bank accounts and had three at the time of the hearing, but has never written bad checks. He follows the food stamp rules meticulously and enjoys a good reputation for moral character among his business acquaintances.

   
   

3. Aside from traffic arrests, Mr. Cohen has been arrested on a single occasion. Detective Mark Allen Wood, a Hollywood policeman, made the arrest on the night of December 26, 1979, outside Richard's Department Store in Hollywood. As a result of conversations the arresting officer had with Mr. Cohen in the store men's room earlier in the evening, Detective Wood charged Mr. Cohen with "offering to commit a lewd and indecent act." This charge became "lewd and lascivious act," Petitioner's Exhibit No. 3, and Mr. Cohen pleaded nolo contendere on June 25, 1980, at which time adjudication of guilt was withheld, a fine of $240 was levied and court costs of $10 were assessed.

   
   

4. Neither the presiding judge nor Mr. Cohen's counsel at the time told Mr. Cohen what effect this disposition would have on his arrest record. His then counsel did advise him that none of his "rights" would be "infringed".

   
   

5. Mr. Cohen did, in fact, solicit sexual favors from Detective Wood on the night of December 26, 1979, but declined Detective Wood's invitation to go to a parking lot with him for that purpose. There was no physical contact between the two men until the arrest. Mr. Cohen testified that he did not consider himself a homosexual and that this was an isolated incident. According to Detective Wood, the men's room at Richard's Department Store was a notorious meeting place for homosexuals.

   
   

6. In connection with petitioner's application for a beverage license, Mr. Cohen completed a personal data form on which he indicated that he had never been arrested for any offense other than minor traffic offenses. Even though he knew this was false, he swore that the form had been filled out truthfully. At the hearing, Mr. Cohen testified that he did not want his parents to learn of his arrest.

   
   

   CONCLUSIONS OF LAW

   
   

7. The statutory provision on which petitioner relies in the present case provides:

   
   

   Any license issued by the Department of Business Regulation which is issued or renewed in response to an application upon which the person signing under oath or affirmation has falsely sworn to a material statement, including,

   but not limited to, the names and addresses of the owners or managers of the licensee or applicant, shall

   be subject to denial of the application or suspension or revocation of the license, and the person falsely swearing shall be subject to any other penalties provided by law.

   Section 559.791, Florida Statutes (1979)

   This statute makes deliberate misstatement even of a manager's address grounds for revocation of a beverage license.

   
   

8. Mr. Cohen's deliberate attempt to conceal his arrest is at least as serious. George Smiley, Jr., d/b/a The Mardi Gras v. Division of Alcoholic Beverages and Tobacco, No. 80-1260 (Final Order; October 15, 1980; Mercedes Grill d/b/a Ye Olde English Pub v. Division of Alcoholic Beverages and Tobacco, No. 79-1691 (Final Order, November 28, 1979).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of January, 1981.

ROBERT T. BENTON, II

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 9th day of January, 1981.

COPIES FURNISHED:

Maurice Rosen, Esq.

Suite 112

16666 Northeast 19 Avenue

North Miami Beach, Florida 33162

Dennis E. LaRosa, Esq. 725 South Bronough Street

Tallahassee, Florida 32301

Docket for Case No: 80-002065

Orders for Case No: 80-002065