STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DWL ENTERPRISES, INC., d/b/a ) HIDEAWAY RAW BAR & RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3063

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted in this case on October 25, 1984, in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

For Petitioner: Yale Freeman, Esquire

2700 S.W. 37th Avenue Miami, Florida 33133

For Respondent: Thomas L. Barnhart, Esquire

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

ISSUES AND INTRODUCTION

The issue in this case is whether the Petitioner's application for an alcoholic beverage license should be granted or whether the application should be denied for the reasons set forth in the Division's letter to Petitioner dated July 25, 1984. The subject letter included the following:

The above-captioned license application has been disapproved on this date for the following reason(s): Applicant not believed to be of good moral character.

Also, applicant has been convicted in the last past fifteen (15) years of a felony, the subject matter of which relates to the specific license being sought. Applicant has falsely sworn to a material statement.

At the hearing the Respondent offered nine exhibits into evidence. Eight of the exhibits were received in evidence without objection. The ninth exhibit was rejected. The Respondent did not call any witnesses of its own, but did cross examine the witnesses called by the Petitioner.

The Petitioner did not offer any exhibits, but did present the testimony of the following witnesses: Robin Lewis, William Bryson, Alvin Robbins, Robert Pepper, Frank Rubio, and Donald Lewis.

Subsequent to the hearing the parties both filed late posthearing submissions to the Hearing Officer. 1/ The Petitioner filed a Memorandum of Law, a Suggested Order, and Proposed Findings of Fact. The Respondent filed a Proposed Recommended Order. Their tardiness notwithstanding, the Hearing Officer has given careful consideration to the post-hearing submissions of the parties in the formulation of this Recommended Order. 2/ To the extent that findings of fact proposed by the parties have not been included in the findings of fact which follow, the proposed findings not included have been rejected for one or more of the following reasons: they are irrelevant or immaterial to the disposition of the case, they are cumulative or repetitious, they are not supported by competent substantial evidence, and/or they are contrary to the greater weight of the evidence.

FINDINGS OF FACT

Based on the exhibits admitted into evidence and on the testimony of the witnesses who were called at the hearing, I make the following findings of fact:

1. The application which is the subject of this case was filed by OWL Enterprises, Inc., a corporation. Donald W. Lewis is the President, Secretary, and Treasurer of DWL Enterprises, Inc., and owns 1OO of the stock of the corporation. Thus, it is the moral character, criminal record, and conduct of Donald W. Lewis which is at issue in this case.

   
   

2. Beginning with his high school years, on through his college years, and at least up until the time of his imprisonment in August of 1979, Donald W. Lewis was a person of poor moral character. During that period of time he drank a lot of alcoholic beverages and also became involved with various illegal drugs. The following is a summary of his criminal record prior to his 1979 imprisonment:

   
   

   1. April 1968. Arrested for petty larceny, plead guilty, fined $100.00.

   2. June 5, 1969. Arrested for petty larceny.

   3. June 28, 1974. Arrested for DWI.

   4. June 28, 1974. Arrested for pos- session of 20.5 grams of marijuana, prosecution deferred.

   5. December 5, 1975. Arrested for aggravated assault and battery, charges dropped.

   6. June 18, 1976. Information issued charging conspiracy to deliver or possess cocaine.

   7. June 18, 1976. Information issued charging delivery of cocaine.

   8. January 28, 1977. Convicted for

      conspiracy to deliver or possess cocaine.

   9. January 28, 1977. Convicted for delivery of cocaine.

   10. July 30, 1977. Arrested for DWI.

   11. October 28, 1977. Arrested for delivery of cocaine.

   12. October 28, 4977. Arrested for possession of cocaine.

   13. October 28, 1977. Arrested for felony possession of marijuana.

   14. October 28, 1977. Arrested for possession of qualudes.

   15. July 30, 1979. Convicted of conspiracy to deliver or possess with

       intent to deliver cocaine. Sentenced to two years imprisonment

   16. July 30, 1979. Probation revoked and sentenced to two years for prior conviction.

   17. August 31, 1979, to September 2, 1981. Served prison term.

       
       

3. Since his release from prison Donald W. Lewis has not been arrested for or convicted of any offense other than one traffic citation for speeding.

   
   

4. When Donald W. Lewis filed the subject application in May of 1984, he was required, among other things, to answer the following questions printed on the application form:

Have you ever been:

1. Arrested or charged for a violation of a felony law or misdemeanor law of this State, or any other state or of the United States?

   * * *

   6. Have any arrests or charges that may have been made, ever resulted in a conviction against you?

   * * *

   If the answer to any of these questions is YES, list aliases and give full disclosure of charges, dates, arresting agencies & places of arrest. (attach extra sheets if necessary).

   
   

2. In response to the questions quoted immediately above Donald W. Lewis provided some information about his arrests and convictions and `attached some documents which provided further information about his arrests and convictions, but he did not make a full disclosure. In particular, he did not disclose the following:

   
   

   June 28, 1974. Arrested for DWI.

   
   

   December 5, 1974. Arrested for aggra- vated assault and battery.

   July 3O, 1977. Arrested for DWI.

   
   

   October 28, 1977. Arrested for felony possession of marijuana.

   
   

   October 28, 1977. Arrested for possession of qualudes.

   
   

3. On his 1984 application, Donald W. Lewis also failed to disclose two arrests which he had disclosed on an earlier application filed in 1975. The two arrests disclosed in 1975, but not in 1984 are:

   
   

   April 1968. Arrested for petty larceny, plead guilty, fined $100.00.

   
   

   June 28, 1974. Arrested for possession of 20.5 grams of marijuana, prosecution deferred.

   
   

4. Donald W. Lewis has offered several excuses for his failure to make a full disclosure of his arrest and conviction history when he prepared his 1984 application, but none of the excuses are persuasive. Donald W. Lewis falsely swore to material statements in his 1984 application because his answers to questions concerning his arrest and conviction history were woefully incomplete.

   
   

5. When Donald W. Lewis was released from prison in September of 1981 he went to live with his father. He had no regular employment from September of 1981 until November of 1983, although during that period he helped his father build an addition on his father's house. About six months ago Donald W. Lewis married into a socially prominent family and he and his wife have been living at her parent's home. Since November of 1983, Donald W. Lewis and his wife have worked hard to start their new business for which they are seeking an alcoholic beverage license. Donald W. Lewis has impressed his business landlords as being a hard worker and a dependable person. His business landlords and several of his old friends believe that Donald W. Lewis has turned over a new leaf and is now a dependable person of good moral character . 4/

   
   

   CONCLUSIONS OF LAW

   
   

6. Based on the foregoing findings of fact and on the applicable statutes, rules, and legal principles, I make the following conclusions of law:

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57, Florida Statutes.

   
   

8. The burden of showing entitlement to the license applied for is on the applicant. See Rule 28- 6.08(3), Florida Administrative Code. J.W.C. Company, Inc., v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

9. Section 559.79, Florida Statutes, reads as follows, in pertinent part:

   
   

   1. Each application for a license issued by the Department of Business Regulation shall include a statement showing the name and address of each person who owns 10 percent or more of

      the outstanding stock or equity interest in the licensed activity and the name and address of each officer, director, chief executive, or other person who, in accordance with the rules of the issuing agency, is determined to be able directly or indirectly to control the operation of the business of the licensed entity.

   2. Each application for a license or renewal of a license issued by the Department of Business Regulation shall be signed under oath or affirmation by the applicant, or owner or chief executive of the applicant, without the need for witnesses unless otherwise required by law.

10. Section 559.791, Florida Statutes, reads as follows: Any license issued by the Department of

    Business Regulation which is issued or renewed in response to an application upon which the person signing under oath or affirmation has falsely sworn to a material statement, including, but not limited to, the names and addresses of the owners or managers of the licensee or applicant, shall be subject to denial of the application or suspension or revocation of the license, and the person falsely swearing shall be subject to any other penalties provided by law.

    
    

11. Section 561.15, Florida Statutes, reads as follows, in pertinent part:

    
    

    1. Licenses shall be issued only to persons of good moral character who are not less than 19 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 19 years of age.

    2. No license under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years of any offense against the beverage laws of this state, the United States, or any other state; who has been convicted within the last past 5 years in this state or any other state of the United States of illegally dealing

       in narcotics; or who has been convicted in the last past 15 years of any felony in this state or any other state of the United States; or to a corporation, any of the officers of which shall have been

       so convicted. The term "conviction" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime.

       
       

12. Section 561.17(1), Florida Statutes, reads as follows, in pertinent part:

    
    

    1. Any person, before engaging in the business of manufacturing, bottling, distributing, selling, or in any way dealing in alcoholic beverages, shall file, with the district supervisor of

       the district of the division in which the place of business for which a license is sought is located, a sworn application in duplicate on forms provided to the district supervisor by the division.

       * * *

       
       

13. Section 112.011(1)(b), Florida Statutes, reads as follows, in pertinent part:

    
    

    ***[A] person who has had his civil rights restored may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.

    
    

14. Section 561.29, Florida Statutes, reads as follows, in pertinent part:

    
    

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

       (a) * * * * * * * * *

       (b) Violation by the licensee or, if a corporation, by any officers thereof, of any laws of this state or any state or territory of the United States.

       
       

15. Turning first to the Respondent's contention that the Petitioner's application should be denied because of Petitioner's conviction of offenses against the beverage laws within the last five years, this contention fails for two reasons. First, neither the Respondent's letter of July 25, 1984, nor any subsequent statement by the Respondent prior to hearing put the Petitioner on

    notice that such contention was to be an issue in this case. Accordingly, fundamental notions of fair play and due process would preclude denial of the application on grounds the Petitioner did not have an adequate opportunity to litigate. Second inasmuch as this is a de novo proceeding, the point in time from which the five-year periods described in Section 561.15(2), Florida Statues, must be measured is the date of the final action on the application, not the date on which the application is filed. The Petitioner's last convictions were on July 30, 1979, which is more than five years ago.

    
    

16. With regard to the contention that the Petitioner's application should be denied because he has been convicted of a felony within the last past fifteen years, there is no doubt that the Petitioner has been so convicted. But he has also had his civil rights restored. Accordingly, by operation of Section 112.011(1)(b), Florida Statues, the Petitioner's felony convictions can only operate as a bar to licensure if the crimes for which the petitioner was convicted are "directly related to the specific occupation, trade, vocation, profession, or business for which the license is sought." The crimes for which Petitioner has been convicted include conspiracy to deliver or possess cocaine and delivery of cocaine. Although Petitioner argues that these crimes are not "directly related" to the business of selling alcoholic beverages, the Legislature appears to have resolved the matter otherwise. At Section 561.15, Florida Statutes, five specific crimes are listed, conviction of any of which constitutes a bar to the issuance of a beverage license. One of those crimes is described as "illegally dealing in narcotics." The legislative identification of those five specific crimes as complete bars to the issuance of a beverage license is strong evidence of a legislative conclusion that the commission of those specific crimes is "directly related" to the business of selling alcoholic beverages.

    
    

17. With regard to the contention that the Petitioner's application should be denied on the ground that he has falsely sworn to a material statement, the evidence clearly establishes that the Petitioner did not make a "full disclosures of charges, dates, arresting agencies and places of arrest" as required by the application form. Some of the information he omitted from the application is clearly material to the decision of whether the license should be granted or denied. While admitting to some omissions in the information supplied on the application, the Petitioner denies that he falsely swore and contends that the omissions in the information were due to oversight on his part, to his feeling that a conviction for DWI was a "minor traffic offense," and to his belief that he did not have to again list offenses which had been listed on an earlier application for a beverage license. The Petitioner specifically contends that any omissions were unintentional and there is no evidence to the contrary. Thus, the question to be resolved is whether the act of swearing to the truthfulness of a statement which unintentionally omits material information constitutes the act of "falsely swearing" within the meaning of Section 559.791, Florida Statutes.

    
    

18. By analogy to the crime of perjury, the Petitioner argues that the act of "falsely swearing" requires more than a mistake; that it requires an intent to deceive. However, there are differences between the language of Section 559.791, Florida Statutes, and the language of the most nearly analogous perjury statute, Section 837.06, Florida Statutes, which reads as follows:

    
    

    Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the

    performance of his official duty shall be guilty of a misdemeanor of the second degree....(emphasis added)

    
    

19. The absence from Section 559.791, Florida Statutes, of words such as "knowingly" and "with the intent to mislead" is indicative of a legislative intent that the act of "falsely swearing" encompass any false statement sworn to in the application, regardless of the intent of the person executing the application. Consideration of the etymology of the words "false" and "falsely" also lends support to this view. Although in some usages the word false is colored by notions of mendacity the primary meaning of the word is simply "erroneous," "wrong ," or "contrary to what is true. "See The Compact Edition of the Oxford English Dictionary, 1971 Edition, Vol. 1, at pp. 956- 9575 Accordingly, an erroneous material statement in a sworn application is sufficient to constitute "false swearing" within the meaning of Section 559.791, Florida Statutes.

    
    

20. Turning finally to the matter of the Petitioner's moral character, it is helpful to consider the following words from Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102(Fla. 1st DCA 1977):

    
    

    Moral character, as used in this statute, means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. But, as shown by the evidence here, repeated acts in violation of law wherever

    committed and generally condemned bye law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature, as Judge Rawls said in Beary supra, "in Its infinite wisdom", has determined should not be entrusted with a liquor license. The applicant here is shown to be one which, in our judgment, falls within that category.

    
    

21. While the prior criminal activities of the Petitioner in this case do not appear to be as bizarre as those of the applicant in the Zemour case, supra, for more than ten years of his life the Petitioner conducted himself in a manner which evinces a poor moral character. And while the Petitioner has demonstrated that since his release from prison he has improved his behavior, there is no convincing evidence of any changes in the fundamental nature of his character. It is as likely that his improved behavior is motivated by a strong distaste for the prison experience as it is likely that it is motivated by a change in his moral character. It is also significant to note that the evidence in support of the Petitioner's moral character was presented by three people who have at least an indirect financial interest in the success of the Petitioner's business (his

wife and the two representatives of his business landlord) and by two people who have been his friends since high school days. While I do not doubt the sincerity of the testimony of these witnesses, I do entertain certain doubts about the extent to which their opinions as to the Petitioner's moral character are colored by the nature of their relationship to the Petitioner. In sum: the evidence offered by the Petitioner is insufficient to prove that his moral character has changed from what it was during his numerous years of unlawful behavior.

RECOMMENDATION

For the reasons explained above, the Petitioner's application is subject to denial for each of the reasons set forth in the Respondent's letter of July 25, 1984. Accordingly, I recommend that a Final Order be entered which would deny the Petitioner's application.

DONE and ORDERED this 5th day of December, 1984, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9673

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1984.

ENDNOTES

1/ The posthearing submissions were due to be filed by no later than November 9, 1984. Although both parties served their posthearing submissions on November 8, 1981, the posthearing submissions were not filed until November 13, 1984.

2/ The fact that tardy posthearing submissions were given careful review in this case should not be construed as a guarantee that tardy submissions will be given such review in future cases.

3/ There is no real dispute about the quality of Mr. Lewis' moral character from the time he was in high school until the time he went to prison. Even he describes his moral character during this period as being "pretty shabby."

4/ For reasons which are explained in the Conclusions of Law, I have not made a finding of fact that Donald W. Lewis is, in fact, presently a person of good moral character.

5/ Also compare, The American Heritage Dictionary of the English Language (1973 Ed.), p. 473, and Webster's New Twentieth Century Dictionary (Unabridged 2nd Ed.), p. 660.

COPIES FURNISHED:

Yale Freeman, Esquire 2700 S.W. 37th Avenue Miami, Florida 33133

Thomas L. Barnhart, Esquire 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: 84-003063

Orders for Case No: 84-003063