STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAULINE BEATRICE FARQUHARSON, ) d/b/a PAULINE'S WEST INDIAN )

RESTAURANT, )

)

Petitioner, )

)

vs. ) Case No. 85-4186

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings in Coral Gables, Florida, on July 9, 1986. Although the file reflects notice of the hearing was provided to the Petitioner, neither Petitioner nor anyone on her behalf appeared at the final hearing. Neither has Ms. Farquharson nor anyone on her behalf contacted the Hearing Officer since that time. The Department of Business Regulation presented five exhibits which were received in evidence and the testimony of William A. Ross. By leave granted during the hearing, Exhibit Number 6 was filed on July 21, 1986. Filing of a proposed recommended order was waived by the Department.

APPEARANCES

For Petitioner: No appearance

For Respondent: Thomas A. Klein, Staff Attorney

Department of Business Regulation

725 S. Bronough Street Tallahassee, Florida 32301-1927

ISSUE

The issue is whether the application for Alcoholic Beverage License No. 23-6847 received by the Department on June 21, 1985, should be disapproved:

1. because the application discloses a person with a direct interest in the premises to be licensed (Mr. Farquharson) is ineligible for licensure pursuant to Section 561.15(2) and 561.17(1), Florida Statutes (1985), due to conviction for the sale of marijuana within the last five years, and

   
   

2. for violation of Section 559.791, Florida Statutes (1985) for a material misstatement on the application by not disclosing these convictions?

FINDINGS OF FACT

1. An application for an alcoholic beverage license to permit consumption of beer and wine on a restaurant premises was filed by Pauline B. Farquharson which was received by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco on June 21, 1985. "Exhibit 1). The application discloses that Barranett Farquharson born 7/1/52, has a direct interest in the premises to be licensed [Exhibit 1, page 18, Section I(6)(C)]. A personal questionnaire, Department of Business Regulation form DBR 71 OL for Barranett Farquharson was included in the application, which contained the following question and answer:

   
   

   "Have you ever been in this state, any other state, by the United States or by any foreign country:

   
   

   1. Arrested, charged or convicted of any violation of the law excluding minor traffic violations?

      
      

      Answer: Yes. On or about (1980-81). Arrested, possession of a weapon. Found not guilty." (Exhibit 2)

      
      

      The application also disclosed that the funds for the operation of the business, $60,000, had been obtained from personal funds in the amount of $4,934.09, and $56,065.91 from loans and mortgages. (Exhibit 1, page 11). A mortgage in the amount of

      $23,446.91 had been received from Standard Federal Loan Association of Gaithersburg, Maryland. A settlement statement included with the application, showed the borrowers as Barranett Farquharson and Pauline Farquharson. (Exhibit 1, pages 12-13).

      
      

2. As part of the application, Mr. Barranett Farquharson was fingerprinted and the fingerprints were sent for examination to the Federal Bureau of Investigation. The Federal Bureau of

Investigation responded with a report showing that the police department of New York City, New York had recorded the following arrest history, charges and charge disposition for Barranett Farquharson:

1. 11/3/80 - Charged with possession of marijuana. Disposition: conditional discharge.

   
   

2. 8/14/81 - Charged with sale of marijuana, possession of marijuana. Disposition: time served on criminal possession of marijuana.

   
   

3. l0/14/82 - Charged with criminal possession of marijuana 4th, Criminal sale of marijuana 4th. Disposition: conditional discharge on criminal sale marijuana 4th.

   
   

4. 11/3/82 - Charged with criminal sale marijuana 4th, unlawful possession marijuana. Disposition: sentenced to $50/30 days, fine paid on criminal sale of marijuana 4th. (Exhibit 4)

A certified copy of the records of the Criminal Court of the City of New York was also entered into evidence as Exhibit 3. It disclosed that Barranett Farquharson, born 7/1/52, had been arrested and arraigned on charges of violating Section 221.15 of the penal law of the State of New York for the unlawful possession of marijuana and was adjudicated guilty of that charge on February 19, 1982. Mr. Farquharson was again arraigned on December 17, 1982 for violation of Section 221.40 of the penal law of the State of New York, criminal sale of marijuana in the 4th degree, and he received a conditional discharge. He was again arrested on November 3, 1982, arraigned on charges of violation of Sections 221.05 and 221.40 of the penal law of the State of New York on November 4, 1982, and he was found guilty of criminal sale of marijuana in the 4th degree and sentenced to pay a $250.00 fine.

1. Section 221.05 of the penal law of the State of New York reads as follows:

   
   

   "Unlawful possession of marihuana. (VIOLATION)I A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the

   defendant has previously been convicted of an offense defined in this article or article

   220 of this chapter committed within the three years immediately preceeding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period." (Exhibit 6)

   
   

   Section 221.15 of the penal law of the State of New York provides:

   
   

   "Criminal possession of marihuana in the fourth degree. A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than two ounces containing marihuana."

   
   

   Section 221.40 of the penal law of the State of New York provides:

   
   

   "Criminal sale of marihuana in the fourth degree. A/MISD.) A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided on Section

   221.35 of this article." (Exhibit 6)

   
   

   CONCLUSIONS OF LAW

   
   

2. Under Section 561.15(2), Florida Statutes (1985)

   
   

   "No license under the Beverage Law shall be issued to any person who has been convicted within the last past 5 years . . . in this state or any other state or the United States of . . . illegally dealing in narcotics."

   
   

3. The evidence in this case indicates that Mr. 8arranett Farquharson has been convicted within the last past 5 years of criminal sale of marihuana in violation of Section 221.40 of the

   penal law of the State of New York, which disqualifies him to receive a license under the Florida Beverage Law.

   
   

4. The application in this matter lists Mr. Farquharson as a person having a direct interest in the premises to be licensed (Exhibit 1, page 18, Section I(6)(C)). As a person who is directly interested in the business, who is not qualified for a license under Section 561.15(2), Florida Statutes, "the application shall be denied by the Division", Section 561.17(1), Florida Statutes (1985).

   
   

5. In addition, under Section 559.791, Florida Statutes (1985) the application is subject to denial because the personal questionnaire submitted by Barranett Farquharson with the application is untrue in a material respect. While the oath of the applicant states that the information in it "is true to the best of my knowledge" and there is no evidence that Mrs. Farquharson actually knew that the statement of Mr. Farquharson was untrue, it was Mrs. Farquharson who had the burden of proof that all material elements of the application were in order, and that she was entitled to licensure. Rule 28-6.08(3), Florida Administrative Code. By failing to attend the hearing, Mrs. Farquharson failed in her burden of proof. The evidence submitted by the Department at the hearing affirmatively shows that the application information is not true. The application should be denied.

RECOMMENDATION

It is RECOMMENDED that the application for an Alcoholic Beverage License submitted by Mrs. Pauline Farquharson d/b/a Pauline's West Indian Restaurant be DENIED.

DONE and ORDERED this 1st day of August, 1986, in Tallahassee, Florida.

WILLIAM R. DORSEY, 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 1st day of August, 1986.

COPIES FURNISHED:

Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927

Mrs. Pauline B. Farquharson

104 N. E. 205th Terrace Miami, Florida 33179

James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927

Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 S. Bronough Street Tallahassee, Florida 32301-1927

Docket for Case No: 85-004186

Orders for Case No: 85-004186