STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERYL ANN NASCIMENTO, d/b/a ) CHERIE'S BAR, )

)

Petitioner, )

)

vs. ) CASE NO. 81-213

) 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 March 3, 1981. The parties were represented by:

For Petitioner: H. Franklin Robbins, Jr., Esquire

112 South Lake Avenue Orlando, Florida 32801

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

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

Petitioner applied to Respondent for a Series 2-COP license to sell beer and wine (consumption on premises) at 2201 South Orange Blossom Trail, Orlando, Florida. Respondent viewed the application as a request for transfer of the Series 2-COP license already in effect at this location, and denied the application on the grounds that administrative charges were pending against the current licensee, Wiley U. Pridgen, d/b/a Strip World Topless Entertainment.

The issue is whether or not a second beverage license can be granted for operation at tide same location. Briefs filed by the parties in support of their respective positions were considered by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

1. Wiley U. Pridgett, d/b/a Strip World Topless Entertainment, holds a Series 2-COP license to sell alcoholic beverages at 2201 South Orange Blossom Trail, Orlando. Petitioner has requested a new Series 2-COP license to operate at the same location.

   
   

2. Petitioner has no specific plans for the use of her license. Her testimony established only that she ha a a close relationship with Wiley U. Pridgen and would look to him for guidance.

   CONCLUSIONS OF LAW

   
   

3. Section 561.29, Florida Statutes, empowers Respondent to revoke or suspend the alcoholic beverage license of any person violating specified laws or rules. Section 561.58 authorizes Respondent to refuse issuance of a license for the location of a business formerly operated under a revoked license for on to two years.

   
   

4. Petitioner contends that no statutory or rule provision prohibits a second license from being issued at a single location. However, the purpose for which a statute was enacted is of primary importance in its interpretation. State v. Atlantic Coast Line R. Co., 47 So. 969 (Fla. 1908)

   
   

5. The above cited statutory provisions enable Respondent to stop beverage sales when a licensee is found to be in violation of the law. Grant of a second license for the same business would permit frustration of this purpose. If, for example, Respondent suspends or revokes Mr. Pridgen's license, Petitioner could step in as operator-licensee, allowing beverage sales to continue in spite of the suspension or revocation.

   
   

6. Section 7A-3.17, Florida Administrative Code, requires the premises licensed under the beverage law to be managed and controlled by the licensee. Again, the existence of separate license holders on the same premises could frustrate enforcement of this provision.

   
   

7. Petitioner argues that Respondent improperly processed the application by classifying it as a transfer rather than new license request. However, this technical error had no effect on Respondent's denial of the application since it is opposed to either transfer of the existing license or grant of a second license.

   
   

8. Subsection 28-6.08(3), Florida Administrative Code, provides:

   
   

   Any hearing on the denial of license shall be conducted in accordance with Section 25.57, and unless otherwise provided by law the applicant shall have the burden of establishing entitlement to the license.

   
   

9. There is no provision of law which relieves Petitioner from carrying the burden of roof in this Proceeding. This burden existed from the outset regardless of Respondent's basis for denial. It was incumbent upon Petitioner to demonstrate entitlement to the license, and this she has failed to do.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Division of Alcoholic Beverages and

Tobacco, enter a final order denying the application of Cheryl Ann Nascimento

for an alcoholic beverage license.

DONE AND ENTERED this 25th day of March, 1981, in Tallahassee, Leon County, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1981.

COPIES FURNISHED:

H. Franklin Robbins, Jr., Esquire

112 South Lake Avenue Orlando, Florida 32801

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

Docket for Case No: 81-000213

Orders for Case No: 81-000213