STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BACK DOOR LOUNGE & SUPPER CLUB, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1433

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 7, 1984. David A. McCurdy and Lucille McCurdy, president and vice-president, respectively, of petitioner Back Door Lounge & Supper Club, Inc. were present but did not seek to be designated qualified representatives. Respondent was represented by counsel:

Sandra P. Stockwell, Esquire 725 South Bronough Street Tallahassee, Florida 32301

By letter dated March 26, 1984, respondent's Howard M. Rasmussen advised petitioner that respondent proposed to deny its application for licensure, on the following grounds:

Applicant corporation does not meet the qualification of a bona fide club, pursuant to Florida law. Also, club has no definite fixed method of electing persons to membership pursuant to the club's bylaws.

The letter cited Sections 561.20(7) and 565.02(4), Florida Statutes (1983), and Rule 7A-3.19, Florida Administrative Code.

FINDINGS OF FACT

1. Petitioner is a corporation not for profit organized under Florida law in December of 1981, to "operate a supper club and lounge and to promote the culinary arts in Panama City, Florida, and the affording of facilities to members of the club for the enjoyment of same." Respondent's Exhibit No. 1. David McCurdy, John Diamond and Lorette Chance signed the articles of incorporation. The articles of incorporation specify that membership "shall consist of persons over the age of nineteen (19) years who shall be admitted on the majority vote of the directors of the corporation." Respondent's Exhibit No.

1. The bylaws provide simply that "[n]ew members must be spons[o]red by a member in good standing . . . ." Respondent's Exhibit No. 2.

2. For the first year of its existence, The Back Door Lounge and Supper Club, Inc. (the supper club) was operated solely for its members' enjoyment, on the premises of what had been the Chat 'N' Chew, a beer bar Mr. and Mrs. McCurdy had operated. Membership dues are $20.00 annually, and the supper club is open from six in the evening till six in the morning. Weekly there are covered dish suppers, and several members attested to learning about spices in connection with these suppers. Organization as a private club also discouraged "rowdyism .

   . . [like that to be found in some] other lounges within the P. C. area." Respondent's Exhibit No. 4 (Goss letter of 16 March 1984).

   
   

3. In seeking to establish a private club, Mr. and Mrs. McCurdy have acted in good faith at all times and in keeping with their understanding of the legal advice they received. When Jerrold Hill, a sergeant with the Division of Alcoholic Beverages and Tobacco, was in the supper club in late 1983, he saw no difference between what was going on then and what he had earlier seen in the Chat 'N' Chew.

   
   

4. In December of 1983, petitioner applied for the license at issue here. Eleven months earlier, there had been discussions with the local chapter of the American Cancer Society about donating money made on the suppers to the Society. On March 16, 1984, the day after one of respondent's investigators visited the supper club, petitioner gave the American Cancer Society a check for $500.00.

   
   

   CONCLUSIONS OF LAW

   
   

5. Applicants for licensure have the burden to establish their entitlement. When an agency has "set forth in writing the grounds or basis for [proposed] denial of a license," Rule 28-6.08(2), Florida Administrative Code; see Section 120.60(2), Florida Statutes (1981), "unless otherwise provided by law the applicant shall have the burden of establishing entitlement." Rule 28- 6.08(3), Florida Administrative Code. See Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

6. Section 565.02(4), Florida Statutes (1983), contemplates licensure of certain incorporated clubs:

   
   

   Persons associated together as . . . [an] incorporated club . . . which . . . are bona fide clubs, and at the time of application for licensure hereunder, shall

   have been in continuous active existence and operation for a period of not less than 2 years . . . shall . . . pay an annual state license tax of $400.

   
   

   Another statutory provision limits licensure under the foregoing provision to, inter alia,

   
   

   Nonprofit corporations or clubs devoted to promoting community, municipal or county development or any phase of

   community, municipal or county development; Section 561.20(7)(a)(3), Florida Statutes (1983).

   The same statute contemplates licensure of clubs "promoting . . . cultural relations of people of the same nationality," Section 561.20(7)(a)(6), Florida Statutes (1983), but there was no showing in this record either of the nationality or of the ethnic origin of the applicant's membership.

   
   

7. Respondent has explicated these statutory requirements by Rule 7A-3.19, Florida Administrative Code, which, in the absence of any challenge to its validity, must control here. In pertinent part, this rule requires

(2) Such clubs must have a definite fixed method of electing persons to membership in the club; such method must be described by the club's bylaws and must have some relation to the object and purpose of the club.

(9) It shall be shown conclusively that the organization has actively pursued the purposes and objectives and goals of the charter and bylaws of that organization prior to issuance of a club license.

Here the supper club has not met its burden to show that its "method of electing persons to membership . . . [has] some relation to the object and purpose of the club."

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That respondent deny petitioner's application for licensure.

DONE and ENTERED this 5th day of September, 1984, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 5th day of September, 1984.

COPIES FURNISHED:

Sandra P. Stockwell, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. David A. McCurdy

Back Door Lounge & Supper Club 4130 West Highway 98

Panama City, Florida 32405

Gary Rutledge, Secretary Department of Business

Regulation

The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Department of Business

Regulation

Division of Alcoholic Beverages and Tobacco

The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 84-001433

Orders for Case No: 84-001433