Judges: ARNOLD H. POLLOCK
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 14, 1983
Summary: Applicant's failure to disclose 15 year-old charges which were either dismissed or minor does not show poor moral character so as to deny licensure.
83-3332.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LAKE ROAD BEVERAGES, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3332
) STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on November 23, 1983, in Gainesville, Florida. The issue for consideration at the hearing was whether Petitioner's application for a beverage license should be approved.
APPEARANCES
For Petitioner: Mr. Luther Thomas, pro se
2824 Northeast 12th Street Gainesville, Florida 32601
For Respondent: Louisa E. Hargrett, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
BACKGROUND INFORMATION
Luther Thomas, on March 28, 1983, submitted an application for a Series 1- APS beverage license for his business, Lake Road Beverages, in Gainesville, Florida. Sometime later, on June 28, 1983, Respondent sent Mr. Thomas a letter telling him that his application for a 2-COP license had been denied because (1) Mr. Thomas had made a false statement to a government official with intent to mislead him, and (2) that he has pending and undetermined criminal and felony charges against him. Mr. Thomas thereafter requested a hearing on this denial.
At the hearing, Mr. Thomas testified in his own behalf and presented the testimony of James S. Woodrow, Jeffry W. Harwell and Richard J. Rullo.
Respondent presented the testimony of Mr. Woodrow and introduced Respondent's Exhibit A.
FINDINGS OF FACT
On March 25, 1983, Mr. Luther Thomas, petitioner in this case, who operates an automotive repair shop in Gainesville, Florida, entered the
Respondent's local office and secured an Application for Alcoholic Beverage License (DBR Form 700-1) and the related Personal Questionnaire (DBR Form 710L). These forms were filled out, signed under oath by Petitioner and submitted to Respondent for processing on March 28, 1983.
At the time the forms were submitted, the questionnaire had on it a question regarding whether the applicant had ever been arrested for or charged with a violation of a felony law or misdemeanor law of the State of Florida, any other state, or the United States, excluding minor traffic laws. This form was marked "No" by Petitioner. Whether he did it at the time of submittal or when it was brought to his attention by a beverage officer who came to his place of business is in question, but when it was done is immaterial. The fact remains that Petitioner stated "No" when in fact, according to his testimony at the hearing, he had been charged several times: once for failure to pay support, and twice for driving while under the influence. Also, in addition, in 1968, he appeared before a judge on an allegation of assault with intent to commit homicide, but was never arrested. He voluntarily reported to the courthouse without being placed under arrest, and the allegation was dismissed. However, since Petitioner could not state with any particularity what actually happened, and since Respondent did not produce any evidence of a charge or arrest, this incident is not considered as being reportable. The DWIs and the failures to pay support were not felonies at the time of commission.
Sometime after the submission of the application, Beverage Officer Woodrow came out to Petitioner's place of business to do a sketch of the layout which was needed to process the application. During this visit, Woodrow indicated to Petitioner that they needed to talk about his arrest record. At this point, Petitioner responded to the effect that he "ain't never been arrested."
The prior involvement for assault with intent to commit homicide was known to Respondent and considered at the time it issued him a prior beverage license in 1973 or 1974. Mr. Thomas felt that since he had not been arrested then, since the allegation had been dismissed, and since he had previously been issued a license with this information known to Respondent, there was no reason to list it again. This former license lapsed when Mr. Thomas went out of business after a heart attack. It was not disciplined or revoked by Respondent.
The questionnaire form which Petitioner filled out contains, in the oath, the reference to Section 559.791, Florida Statutes (1981), which provides that a false statement in the questionnaire or application constitutes grounds for denial of a license.
The "pending and undetermined criminal and felony charges" referred to in Respondent's letter of denial, according to Petitioner, related to three separate worthless checks. These charges were reduced to a misdemeanor and resolved by Petitioner making restitution. No jail time or fine was imposed.
Mr. Thomas is presently facing misdemeanor charges in Alachua County, Florida, in violation of Section 837.06, Florida Statutes (1981) , based on the same alleged false statement in the questionnaire as are used as basis for denial of his license here.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Respondent bases its denial of a license to Petitioner on the provisions of Section 837.06, Florida Statutes (1981), which states:
Whoever knowingly makes a false state- ment in writing with the intent to mislead a public servant in the per- formance of his official duty shall
be guilty of a misdemeanor of the second degree, punishable as provided
in s. 775.082, s. 775.083, or s. 775.084.
and Section 561.15, Florida Statutes (1981), which in the first sentence of Subparagraph (1) states: "Licenses shall be issued only to persons of good moral character who are not less than 19 years of age." Other provisions in this section relate to denial based on convictions of felonies or for offenses involving drugs or prostitution, none of which pertains to this Petitioner.
Respondent's whole case is based on Mr. Thomas's failure to reflect he was before a judge 15 years ago on an allegation of, essentially, aggravated assault, which was dismissed without a conviction. His check charges were not shown to be the ones in question, and the only other offenses in question are the two DWI offenses and the one time failure to pay support. It is these incidents which Respondent claims show Mr. Thomas to be of poor moral character. It well may be that Respondent has other information which shows Mr. Thomas should not have a license. If so, it was not presented here, nor was sufficient evidence to show that he is not of good moral character.
The Respondent has submitted a Memorandum of Law which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That Petitioner, Luther Thomas, doing business as Lake Road Beverages, be issued an alcoholic beverage license as applied for.
RECOMMENDED this 14th day of December, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 14th day of December, 1983.
COPIES FURNISHED:
Mr. Luther Thomas 2824 N.E. 12th Street
Gainesville, Florida 32601
Louisa E. Hargrett, Esquire Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32301
Mr. Gary R. Rutledge Secretary
Department of Business Regulation
725 South Bronough Street Tallahassee, Florida 32301
Mr. Howard M. Rasmussen Director, Division of Alcoholic
Beverages and Tobacco Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32301
Docket for Case No: 83-003332
Orders for Case No: 83-003332
| Issue Date |
Document |
Summary |
|
Dec. 14, 1983 |
Recommended Order
|
Applicant's failure to disclose 15 year-old charges which were either dismissed or minor does not show poor moral character so as to deny licensure.
|
