STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2036

) WILLOW RUN, INC., d/b/a BLUE ) FOUNTAIN RESTAURANT AND LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings on October 28, 1983, in Tampa, Florida.

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

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

For Respondent: Mr. Alfred S. Bridges, President

Willow Run, Inc. d/b/a Blue Fountain Restaurant and Lounge

1045 North Greenwood Avenue Clearwater, Florida 33515

ISSUES AND BACKGROUND

This case concerns the issue of whether the Respondent's application for a quota beverage license should be granted. At the formal hearing, the Respondent called as witnesses Mr. Berry Wiggins and Mr. Alfred S. Bridges, president and sole shareholder of the Respondent. Petitioner called as witnesses Sgt. Norman

1. Stephens, Beverage Officer John T. McMullen, Alfred S. Bridges and Barry Schoenfeld.

   
   

   The parties submitted proposed findings of fact and conclusions for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not consistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to a resolution of this cause.

   FINDINGS OF FACT

   
   

   1. The Respondent holds beverage license number 62-248-4-COP SR. This license is issued to the licensed premises known as the Blue Fountain Restaurant and Lounge located at 1045 North Greenwood Avenue, Clearwater, Florida. The beverage license held by Respondent is a special restaurant license with specific requirements relating generally to the sale of food, seating capacity, and hours of operation. These requirements must be met during daily operation in order for the Respondent to retain its beverage license.

      
      

   2. On January 29, 1979, Respondent by and through its president and sole shareholder, Alfred S. Bridges, applied to the Division of Alcoholic Beverages and Tobacco for a consumption on premises quota license for the Blue Fountain Restaurant and Lounge. Quota licenses do not have the special requirements applicable to special restaurant licenses and are limited in number by the population in each county where issued.

      
      

   3. On March 22, 1979, the Respondent's application was denied on the basis that no quota beverage licenses were available in Pinellas County. Respondent was informed by the Division of Alcoholic Beverages and Tobacco that additional licenses would probably be available in 1980 following the 1980 census. The Respondent did not dispute the fact that there were in fact no quota licenses available at the time that his application was submitted and considered, and the denial of Respondent's application on that ground by the Division of Alcoholic Beverages and Tobacco was proper.

      
      

   4. Following the 1980 census, the legislative program for the selection of persons to receive quota beverage licenses by lottery became effective. The Respondent twice applied for such a license but was not drawn in the lottery on either occasion, and therefore was not entitled to a quota license of those applications.

      
      

   5. The licensed premises is located in an area which is predominantly black and poor. The individuals residing in this area do not frequently utilize the restaurant facilities at the licensed premises and generally cannot afford to order full course meals. There are numerous fast-food restaurants in the same area as the licensed premises and this coupled with the limited financial resources of the patrons in the area makes it financially difficult for Respondent to operate under a special restaurant license. The requirement that the Respondent be able to serve at any given time a certain number of full course meals and the cost of operating a kitchen and food service also places a substantial financial burden on the Respondent.

      
      

   6. There is no statutory authority or agency rule which permits the Division of Alcoholic Beverages and Tobacco to grant an application for a quota beverage license based on hardship. The Division of Alcoholic Beverages and Tobacco has never issued a quota beverage license based on hardship and has no policy of considering hardship as a criteria for obtaining such a license.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this matter.

      
      

   8. When, as here, an application for a license or permit has been denied on statutory grounds, the applicant bears the burden of proving entitlement to

      the requested license. See, Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

      
      

   9. The issuance of quota beverage licenses is controlled by Section 561.19, Florida Statutes (1981). That section requires that quota beverage licenses will become available only by reason of an increase in the population of a county and that such licenses shall be issued to those persons drawn in lotteries in each county. That section does not permit, nor does the Division of Alcoholic Beverages and Tobacco have the authority to issue quota beverage licenses in any manner other than that prescribed by Section 561.19, Florida Statutes. There is no authority in that section for granting a quota license based upon hardship.

      
      

   10. The Respondent has failed to prove its entitlement to the quota beverage license for which it applied, and therefore, the denial of its application in January 1979, was proper.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED

That the Division of Alcoholic Beverages and Tobacco issue a Final Order denying Respondent's application for a quota beverage license.

DONE and ENTERED this 23rd day of November, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 November, 1983.

COPIES FURNISHED:

Daniel J. Bosanko, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. Alfred S. Bridges, President Willow Run, Inc. d/b/a Blue

Fountain Restaurant and Lounge 1045 North Greenwood Avenue Clearwater, Florida 33515

Harold F.X. Purnell, Esquire General Counsel

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-002036

Orders for Case No: 83-002036