STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-937

) ASTRAL LIQUORS, INC., D/B/A ) FOXXY LAIDY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on December 8, 1981, in Miami, Florida.

APPEARANCES

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

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Lane Abraham, Esquire

200 Southeast First Street, Suite 800 Miami, Florida 33131

ISSUE

Whether respondent's alcoholic beverage license should be revoked or suspended on grounds that its corporate officer was convicted of a federal crime--Conspiracy to Import Marijuana.

BACKGROUND

By notice to show cause, petitioner Division of Alcoholic Beverages and Tobacco ("Division") seeks to revoke or suspend respondent Astral Liquors, Inc., d/b/a Foxxy Laidy ("licensee"), on the ground that its corporate officer was convicted of a violation of federal law.

Licensee requested a hearing on the charges. The case was then referred to the Division of Administrative Hearings; hearing was set for April 13, 1981.

Upon licensee's motions, the hearing was reset for September 22, 1981; then for December 8, 1981.

The facts of this case are not in dispute. At hearing, the parties offered into evidence Joint Exhibit Nos. 1 through 8, each of which was received.

The parties were allowed to file proposed findings of fact and conclusions of law within 30 days from final hearing; it was agreed that the recommended order would be due within 30 days of their submittals.

FINDINGS OF FACT

Based upon the evidence presented at hearing, the following facts are determined:

1. In 1977, the Division issued an alcoholic beverage license No. 23-276, series 4-COP, to licensee. (Joint Exhibit Nos. 1, 8.)

   
   

2. At all times material to this proceeding, Eugene Willner has been an owner and officer of the licensee corporation. On August 27, 1980, Eugene Willner was convicted of violating federal law; the U.S. District Court of the Eastern District of Louisiana found him guilty of Conspiracy to Import Marijuana, a violation of Title 21 U.S.C. 963. (Joint Exhibit Nos. 1, 4, 8.)

   
   

3. By application dated March 10, 1981, the licensee sought Division approval to transfer the beverage license in question to a new owner. The Division notified licensee that it intended to deny the application because of the pending administrative charge against the licensee, the charge which is the subject of this proceeding. (Joint Exhibit Nos. 5, 6, 8.)

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57, Fla. Stat. (1981).

   
   

5. Section 561.29(1)(b), Florida Statutes (1981), authorizes the Division to revoke or suspend an alcoholic beverage license for, among other reasons:

   
   

   (b) Violation by the licensee or, if

   a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States. (e.s.)

   
   

6. Licensee contends that its officer's violation of federal law does not fall within the purview of Section 561.29(1)(b), supra; that a violation of federal law does not constitute a violation of a law of the "territory of the United States." This contention is rejected on the authority of Deep South Plantation Foods, Inc. v. Wynne, 317 So.2d 131 (Fla. 2d DCA 1975). There, the court construed "territory of the United States," as used in Section 561.29(1)(b), to include violations of federal law. Id. at 133.

   
   

7. Licensee also contends that even if suspension or revocation of its license is authorized, such a sanction would be inappropriate because it is attempting to sell its business and transfer the license to a new owner. However, that license transfer is not in issue here. The mere possibility of future transfer should not affect the sanctions imposed here. 1/

   
   

8. Conspiracy to Import Marijuana, Title 21 U.S.C. 963, is a felony. See, 775.08(1), 893.13(1)(a)2, Fla. Stat. (1981). Section 561.15 prohibits the issuance of a license to a corporate applicant when an officer of the corporation has been convicted in the last 15 years of any felony under federal law. Id. Since such a misdeed would disqualify a corporate applicant from

   licensure, it is reasonable to conclude that such wrongdoing subsequent to licensure should have a similar effect.

   
   

9. Accordingly, it is concluded that the licensee has violated a law of the "territory of the United States" within the meaning of Section 561.29(1)(b), supra, and that its license should therefore be revoked.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That licensee's alcoholic beverage license No. 23-276, series 4-COP, be REVOKED.

DONE AND RECOMMENDED this 3rd day of February, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 3rd day of February, 1982.

ENDNOTE

1/ However, the parties may stipulate that the Division withheld final action in this proceeding until the separate issue of license transfer is determined.

COPIES FURNISHED:

James N. Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Lane Abraham, Esquire Suite 800

200 Southeast First Street Miami, Florida 33131

Captain John Harris Division of Beverage 1350 Northwest 12 Avenue

Miami, Florida 33136

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 81-000937

Orders for Case No: 81-000937