STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RORY LEE CLARK d/b/a THE )

FRIENDLY SPOT, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2582

) STATE OF FLORIDA, DEPARTMENT ) OF BUSINESS REGULATION, DIVISION ) OF ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 28, 1983, in Pensacola, Florida.

APPEARANCES

For Petitioner: Thomas N. Tucker, Esquire

8445 Pensacola Boulevard

Pensacola, Florida 32504

For Respondent: William A. Hatch, Esquire

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

ISSUES

This case arises out of the denial of a beer and wine license application by the Division of Alcoholic Beverages and Tobacco. The Petitioner, Mr. Rory Lee Clark, doing business as The Friendly Spot, applied for a beer and wine license and was denied on the basis that he had previously held a beverage license in the State of Florida which was revoked.

The Petitioner, Mr. Clark, testified on his own behalf and also called as a witness Mr. Carl Valletto. The only evidence offered by the Respondent, the Division of Alcoholic Beverages and Tobacco, was Respondent's Exhibit 1, a stipulation dated June 20, 1975, entered into by Mr. Rory Lee Clark and the Director of the Division of Alcoholic Beverages and Tobacco.

FINDINGS OF FACT

1. Mr. Rory Lee Clark applied for a beer and wine license and his application was denied because a previous license held by Mr. Clark had been revoked by the Division. The application for license and letter of denial were

   not offered into evidence by Petitioner. Therefore, the specific information contained in the application and the letter of denial were not in evidence.

   
   

2. Mr. Rory Lee Clark first held a beverage license in Florida at the age of 18 or 19. The license previously held by Mr. Rory Lee Clark was License No. 27-34 Series 2-COP and was utilized in connection with a business named Garden of Earthly Delights located in Pensacola, Florida. On June 16, 1975, Mr. Rory Lee Clark entered into a stipulation with the Division of Alcoholic Severages and Tobacco whereby he stipulated to the revocation of his License No. 27-34. That stipulation stated in part: "He [Rory Lee Clark] understands that revocation of a license would keep him from getting another beverage license in the future." (See Respondent's Exhibit 1). The stipulation was signed by Mr. Clark, his attorney, and the Director, Division of Beverage.

   
   

3. The stipulation did not state the reasons for the revocation. The revocation action arose out of allegations that he and other persons were gambling on the licensed premises by shooting pool for between one and three dollars per game.

   
   

4. Prior to the date of the voluntary revocation of his license, Mr. Clark had also been involved in an incident somewhere other than Garden of Earthly Delights. He was arrested and charged with use and sale of amphetamines and was placed on probation; he was not adjudicated guilty by the Circuit Court.

   
   

5. Other than an arrest for a pawn shop violation, Mr. Clark has had no other arrest or problems involving violations of the law since the revocation of his previous license. The arrest for pawn shop violation occurred when he was

   23 years old and was for failing to write a serial number of a gun on a required form. The charge was ultimately dismissed and no further action taken.

   
   

6. Since the revocation of his previous license, Mr. Rory Lee Clark has been gainfully employed and conducted himself as a responsible adult. He is presently 28 years old and working as a metal stud mechanic doing work primarily as a subcontractor for Carl Valletto, the owner of Key Insulation.

   
   

7. For the last eight (8) years, Mr. Clark has been a good, dependable worker and has enjoyed a reputation in the community for good moral character.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

   
   

9. Pursuant to Florida Statute 561.15(3)(a) (1981), the Division of Alcoholic Beverages and Tobacco may, in its discretion, refuse to issue a license under the Beverage Law to any person who has previously had a beverage license revoked.

   
   

10. The previous voluntary revocation of License No. 27-34 issued to Licensee Rory Clark, places Mr. Clark's application within the provisions of Florida Statute 561.15(3) (1981).

    
    

11. When, as here, an application is initially denied on such grounds as set forth in Florida Statute 561.15(3) (1981), the applicant bears the burden of proving entitlement to the license. See, Florida Department of Transportation

v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has not sustained this burden. The application must, therefore, be DENIED.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the application be denied.

DONE and ENTERED this 22 day of April, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1983.

COPIES FURNISHED:

William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary Rutledge Secretary

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

Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Mr. Thomas N. Tucker, Esquire 8445 Pensacola Boulevard

Pensacola, Florida 32504

Docket for Case No: 82-002582

Orders for Case No: 82-002582