STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY JEAN JOHNSON d/b/a )

JOHNSON'S CORNER GROCERY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2583

)

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

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 November 12, 1982.

APPEARANCES

For Petitioner: Betty Johnson, pro se

4516 Deauville Way

Pensacola, Florida 32505

For Respondent: Harold F. X. Purnell, Esquire

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

ISSUE PRESENTED

Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.

BACKGROUND

Respondent Division of Alcoholic Beverages and Tobacco ("DABT") denied petitioner Betty Jean Johnson's (d/b/a Johnson's Corner Grocery) application for an alcoholic beverage license on the ground that John Lee Johnson, a person allegedly lacking good moral character, had a direct or indirect interest in the business. Petitioner disputed the denial and requested a hearing. On September 20, 1982, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer to conduct the requested hearing.

At hearing, petitioner testified in her own behalf. DABT called Lt. R. E. Baxley, Ralph Kelly, and Larry Stevens as its witnesses. Petitioner's Exhibit No. 1 and Respondent's Exhibits No. 1-4 were received into evidence. 1/

Proposed findings of fact and conclusions of law were submitted by November 18, 1982. No transcript of hearing has been filed.

Based on the evidence presented, the following facts are determined:

FINDINGS OF FACT

1. In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1)

   
   

2. Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3)

   
   

3. John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference.

   
   

4. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4)

   
   

5. Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4)

   
   

6. On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . .

   . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1) Fla. Stat. (1981)

   
   

8. An applicant for an alcoholic beverage license, must have "good moral character." Section 561.15(1) Fla. Stat. (1981) If an applicant, or any person who is interested with the applicant, either directly or indirectly, in the business, Section 561.17(1), lacks good moral character, the application must be denied. Sections 561.15(1); 561.17(1) Fla. Stat. (1981)

9. In licensing proceedings, the applicant bears the burden of proving entitlement to the license. J.W.C. v. Dept. of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981)

   
   

10. The applicant has not sustained this burden. To the contrary, the evidence shows that John Johnson helped purchase, finance and set up Johnson's Corner Grocery, and that he has a direct, or indirect, pecuniary interest in its operation. The lease by which he purports to divest himself of this interest is ineffective because it was not signed in the presence of two subscribing witnesses. Section 689.01 Fla. Stat. (1981) The evidence further establishes that he is not qualified for a license under his own name in that he lacks "good moral character" within the meaning of Section 561.15(1). It is concluded, therefore, that the application should be denied pursuant to Sections 561.15(1) and 561.17(1) Fla. Stat. (1981)

    
    

11. The parties' proposed findings of fact are adopted to the extent they are incorporated herein; otherwise they are rejected as contrary to the evidence or unnecessary to resolution of the issue presented.

Based on the foregoing, it is RECOMMENDED:

That petitioner's application be denied.

DONE AND RECOMMENDED this 23rd day of December, 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 23rd day of December, 1982.

COPIES FURNISHED:

Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Ms. Betty Johnson 4516 Deauville Way

Pensacola, Florida 32505

Charles A. Nuzum, Director Department of Business Regulation Division of Alcoholic Beverages & Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-002583

Orders for Case No: 82-002583