STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPE ISLAND EXPRESS LINES, INC., ) t/a SCHAMONCHI, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1429

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Tampa on August 14, 1984.

The issue is whether respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, should grant the application of petitioner, Cape Island Express Lines, Inc., t/a Schamonchi (Cape Island) for a special license number 4-COP-SPX for the sale of alcoholic beverages on a vessel, under Section 565.02(3)(a) Florida Statutes (1983). Specifically, the issue is whether Cape Island's vessel, the Schamonchi, "docks at a public marina," as required for licensure under the statute.

APPEARANCES

For Petitioner: Edward E. "Zef" Fessenden, Esquire

Barnett, Bolt & Russo Post Office Box 3287 Tampa, Florida 33602

For Respondent: Sandra P. Stockwell, Esquire

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

FINDINGS OF FACT 1/

1. Petitioner is Cape Island Express Lines, Inc., t/a Schamonchi (Cape Island), an applicant for a 4-COP-SPX liquor license. Cape Island filed its application on December 13, 1983.

   
   

2. Respondent is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (the Division) the state agency charged with licensing liquor vendors in the State of Florida.

3. Schamonchi is a 150 foot long vessel with a 30 foot beam and a mean draft of 7 feet, maximum draft of 8 feet. (TR-22, 49). It is certified by the Coast Guard to carry 650 passengers. It has three decks with a snack bar, a dining area and a dance floor on one deck, a lounge, a place for a band and a smaller dance floor on the second deck, and the third deck has a snack bar, a beverage bar and fixed seating. (TR-22).

   
   

4. With the exception of the place where the Jose Gaspar docks, there is no place along the waterfront in Tampa to accommodate a sight-seeing vessel as large as the Schamonchi except a rectangular piece of property approximately 150 feet long along the east bank of the Hillsborough River. It contains some pilings and docks which Cape Island uses to tie the Schamonchi up. (TR-24).

   Cape Island leased these premises from November 1, 1983 through April 30, 1984. (Petitioner's Exhibit 1). It intends a similar six-months lease for the winter season of 1984-1985. (TR-33). The owner leases to other boat owners during the summer season. (TR-37).

   
   

5. Other vessels also tie up along the east side of the river. (TR-25). But when the Schamonchi is alongside, only a couple of smaller vessels could be docked inside the pilings at Cape Island's leased premises. (TR-26). Cape Island does not sublease space to other vessels. (TR-44). During the six months Cape Island has this property under lease, it is not available to other boaters. (TR-45).

   
   

6. Cape Island leases this property from the Santa Mirabella Estate. (TR- 28). The Santa Mirabella Estate also owns a piece of property south of the leased premises and separated from the leased premises by a city-owned parcel. (TR-26-27, 44; Petitioner's Exhibit 3). The Santa Mirabella Estate also owned the intervening parcel at one time, but the City of Tampa condemned the property for construction of the Brorein Street and Cross Town Expressway bridges. On the southerly piece of land, the Santa Mirabella Estate operates a fish market, restaurant, dock, and ice and bait shop. (TR-28).

   
   

7. The city-owned parcel under the bridges and between the two Santa Mirabella Estate parcels is used as a city park and has docking facilities for smaller boats.

   
   

8. On the leased premises, Cape Island has a ticket office, parking lot and facilities to provide water and electricity to the vessel. (TR-32). The property is bordered by the river on the west and Ashley Street on the east. The property is partially fenced, and there are no gates to enclose the property. In connection with Cape Island's sight-seeing business, the property is accessible to the public by either water or land virtually 24 hours a day. (TR-33).

   
   

9. Neither the property leased by Cape Island nor any of the city-owned marinas in Tampa, have facilities available to the boating public for fuel purchase, radio or engine repair, waste water dumping, dry docking, charts or bait and tackle or hardware purchases. (TR-43). No one service or factor makes a docking facility commonly known as a "public marina" or even a "marina." Nor is it necessary for a facility to offer all of these services to be considered a "public marina" or a "marina" by the general public. Most marinas supply at least fuel, in addition to a docking facility. (TR-46). However, neither city- owned facility has fuel. One has only electricity.

   CONCLUSIONS OF LAW

   
   

10. As reflected in the Findings of Fact, there are few, if any, issues of disputed fact in this case. As indicated at the outset of this Recommended Order, the issue is a question of law to be applied to the facts. But this was not made apparent by the parties before the final hearing, and neither party moved to dismiss formal administrative proceedings. Since the parties proceeded to a final formal administrative hearing, they are deemed to have "otherwise agreed" to formal administrative proceedings, as alluded to in Section 120.57, Florida Statutes (1983). This "agreement" forms the basis of the Division of Administrative Hearings' jurisdiction over the parties and subject matter of this case.

    
    

11. The licensing scheme set out in Section 565.02, Florida Statutes (1983), provides for vendors licenses to be issued on the basis of population. Id. Subsection (1). Exceptions to these quota licenses are provided for: railroads or sleeping cars on passenger trains, Id. Subsection (2); steamship lines, bus lines and airlines engaged in interstate or foreign commerce, Id. Subsection (3); clubs Id. Subsection (4); caterers at pari-mutuel facilities, Id. Subsection (5); not-for-profit entities supporting symphonies, Id. Subsection (6); and passenger vessels engaged solely in foreign commerce, Id. Subsection (7).

    
    

12. Within the exemption from quota licensing which is provided steamship lines engaged in interstate commerce is an exception for operators of pleasure, excursion, sight-seeing, or other charter boats not having regular round-trip runs of more than 100 miles in each direction. In other words, quota licenses are required for these vessels which are not engaged in interstate commerce. Id. Subsection (3)(a).

    
    

13. From this requirement of a quota license for intrastate vessels is an exception for 125 passenger vessels docked at public marinas. Section 565.02(3)(a), Florida Statutes (1983), provides in pertinent part:

    
    

    However, the operator of any pleasure, excursion, sight-seeing or charter boat which has a Coast Guard-approved capacity of at least 125 passengers and which docks at a

    public marina may be granted a special liquor license to sell and serve alcoholic beverages when the boat is in operation on a scheduled or chartered cruise for consumption on the premises only. The provisions of this section shall not be deemed to permit the sale or service of alcoholic beverages while a boat is stopped at any docking facility or marina. (Emphasis supplied.)

    
    

    In other words, no quota is applied to licenses for such a vessel engaged in intrastate commerce which is Coast Guard certified for 125 passengers and "which docks at a public marina." Id.

    
    

14. The legislature has not defined "public marina," as used in Section 565.02(3)(a). The amendment to Section 565.02 which added the "public marina" exception was made from the floor of the House of Representatives and enacted as Section 2, Chapter 83-79, Laws of Florida (1983). There are no committee reports or debates to aid in interpretation of the disputed provision.

15. Legislative intent is the polestar by which statutes are to be construed. Where the statute is plain and unambiguous there is no necessity for interpretation. State v. Egan, 287 So.2d 1 (Fla. 1973). The courts take notice, however, that the legislature sometimes uses terms that leave affected individuals perplexed as to their meaning. Calico v. Equitable Life Assurance Society, 169 So.2d 502 (3rd DCA 1964). In those circumstances, individuals are permitted to provide reasonable definitions for those terms. Id. This is the proceeding through which the Division will make a final determination whether Cape Island's Schamonchi "docks at a public marina", as required by Section 565.02(3)(a), Florida Statutes (1983).

    
    

16. Cape Island urges that no harm to the public's licensing scheme will result from the grant of a license to it because, whether or not the Schamonchi is docked at a public marina, it is accessible to state control. Had the legislature intended to exempt vessels engaged in intrastate commerce with fixed locations for dockage from quota licensing, it could simply have said so. Instead, it provided that such vessels must be docked at public marinas. The requirement of dockage at a public marina must be given effect. Atlantic Coast Line Railroad Co. v. Boyd, 192 So.2d 709 (Fla. 1958).

    
    

17. Ambiguity in a statute providing an exception is to be construed in a manner that restricts the use of the exception. Unless the right to the exception is clearly apparent, no benefits are available under the exception. State v. Nourse, 340 So.2d 966 (3rd DCA 1976); Coe v. Broward County, 327 So.2d

    69 (4th DCA 1976), aff. 341 So.2d 762; Farrey v. Bettendorf, 96 So.2d 889 (Fla. 1957). The statute under which Cape Island seeks an alcoholic beverage license is an exception to the requirement that only a certain number of liquor licenses will issue per capita. Thus, it must be strictly construed against those who seek advantages under the exception.

    
    

18. "Marina" is defined by Webster's Seventh Collegiate Dictionary as "a dock or basin providing secure moorings for motor boats and yachts and often offering supply, repair and other facilities." The language of the statute is a clear indication that the legislature envisioned that a marina is more than a mere docking facility. Section 565.02(3)(a) says that consumption of alcoholic beverages is not permitted when the vessel is stopped "at any docking facility or marina" (emphasis added). The offering of supply, repair and other facilities may not be required in order to have a "marina" as defined by Webster, but such facilities are common to marinas, and at least some of them are expected at a marina. The term "marina" also connotes more than a location used by only one vessel.

    
    

19. The site leased by Cape Island from Santa Mirabella Estate provides only water and electricity, only for the Lessee's use. Those services and facilities are not available to the boating public generally. When Santa Mirabella Estate leases this site to Cape Island, it cannot and does not lease, on either a transient or a long-term basis, any other portion of this site to the boating public. This site does not meet the common definition of a "marina." Likewise, it does not meet the definition of marina contemplated by the legislature.

20. At a separate location, not contiguous to Cape Island's leased premises, Santa Mirabella Estate operates a restaurant, fish market, bait shop and dock. If the Schamonchi were docked at that location, or if the two locations were operated as one facility, Cape Island might be entitled to licensure. But the Schamonchi is docked at a separate location, and there is no evidence that the two locations are operated together as a marina.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order DENYING Cape Island's application for a special liquor license 4-COP-SPX.

RECOMMENDED this 25th day of September, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 25th day of September, 1984.

ENDNOTE

1/ The parties' proposed findings of fact have been considered and, since the facts are largely undisputed, accepted for the most part as reflected in these Findings of Fact. To the extent not reflected in these Findings of Fact, the proposed findings of fact are rejected as not being proved by competent substantial evidence, as being cumulative, as being subordinate or as being irrelevant.

COPIES FURNISHED:

Edward E. "Zef" Fessenden, Jr., Esquire Barnett, Bolt & Russo

Post Office Box 3287 Tampa, Florida 33602

Sandra P. Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Haward M. Rusmussen, Director Division of Alcholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 84-001429

Orders for Case No: 84-001429