STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA E. ANDARCIO d/b/a, )

EL CONQUISTADOR RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1176

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

)

Respondent )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on September 19, 1986 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Armando Gutierrez, Esquire

2153 Coral Way, Suite 400

Miami, Florida 33145

For Respondent: Thomas A. Klein, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

The issue in this cause is whether the Petitioner is entitled to the issuance of an alcoholic beverage license.

PROCEDURAL BACKGROUND

At the final hearing, the Petitioner testified in her own behalf and called Julio Andarcio as a witness. In addition, Petitioner's Exhibit 1 was duly offered and admitted into evidence. The Respondent called beverage investigator, William Ross, as a witness. In addition, Respondent's Exhibits 1 through 3 were duly offered and admitted into evidence. The Respondent submitted posthearing Proposed Findings of Fact. A ruling has been made on these Proposed Findings of Fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:

1. On October 24, 1985, Petitioner filed an initial application with Respondent to obtain an alcoholic beverage license.

   
   

2. The alcoholic beverage license was to be used in the operation of a small restaurant which Petitioner owned, known as El Conquistador Restaurant, in Homestead, Florida.

   
   

3. The Petitioner is the sole owner of El Conquistador Restaurant. The application listed the Respondent, Maria Andarcio as the sole proprietor and only person having a financial interest in the business known as El Conquistador Restaurant. During the processing of the application, Mr. Ross, the investigator assigned to Petitioner's case, noticed that the application appeared to have several discrepancies. In particular, Mr. Ross was concerned because the financial information submitted with the initial application listed Julio Andarcio, Respondent's estranged husband, as the sole depositor of the expense account but he was not listed as having any financial interest in the business. Secondly, Petitioner failed to provide sufficient information regarding her employment history. Lastly, a lease which was part of the initial application, identified a potential undisclosed interest, Jose Osario, as a co- leasee.

   
   

4. On November 15, 1985, Mr. Ross, routinely mailed a "14 day letter" to Petitioner requesting additional information. In particular, the "14 day letter" directed the Petitioner to provide additional information within 14 days from the date of receipt of the letter. The additional information requested was as follows:

   
   

   1. List occupation for the past 5 years on personal questionaire.

   2. Julio Andarcio must be fingerprinted and submit personal questionaire."

      
      

5. The Petitioner failed to provide the information requested in the 14 day letter. Thereafter, Respondent was unable to fully investigate the license application and denied the Petitioner's license on January 8, 1986.

   
   

6. For some reason, the Petitioner did not receive the 14 day letter which Respondent sent by regular mail. Therefore, she did not respond within the requested time period.

   
   

7. The Petitioner was born in Cuba and speaks very little English. The language barrier contributed to the apparent discrepancies in Petitioner's initial application. Mr. Ross opined that based on all of the information that he had received up to the time of the hearing, the Petitioner would have been granted a beverage license had she only responded to the "14 day letter."

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

9. The Division of Alcoholic Beverages and Tobacco is charged with the responsibility of regulating the sale of alcoholic beverages and enforcing the provisions of "The Beverage Law." Section 561.02, Florida Statutes. The local district office supervisor is required to fully investigate the qualifications of a license applicant. Section 561.18, Florida Statutes. The investigation of

   the application extends to persons interested "directly or indirectly" with the applicant in the business for which the license is sought. Section 561.17, Florida Statutes.

   
   

10. The Petitioner's initial application raised several questions which could have affected her entitlement to a beverage license. Pursuant to its responsibility to fully investigate the application, the Respondent requested that the additional information be provided within 14 days of receipt of the letter request. The Respondent did not receive the additional information and denied the application on January 8, 1986, the 76th day after receipt of the initial application. Section 120.60(2), Florida Statutes, requires that an application for licensure be approved or denied within 90 days of receipt of the original application. The information required by Respondent was never provided by Petitioner because she did not receive the "14 day letter." In view of Petitioner's failure to receive the "14 day letter", and Mr. Ross' opinion that the Petitioner would have been entitled to a license had she responded to the

14-day letter, the Petitioner has established that the Respondent failed to fully investigate her application through no fault of either party.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered allowing the Petitioner 20 days from the date thereof in which to provide Respondent with the information requested in the initial "14 day letter," thereby making her application complete. The Respondent shall thereafter review and process the application in the standard and routine manner.

DONE and ORDERED this 24th day of October, 1986 in Tallahassee, Florida.

W. MATTHEW STEVENSON 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 24th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1176

Rulings on Proposed Findings of Fact Submitted by the Petitioner (None Submitted)

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Findings of Fact 1 and 2.

2. Adopted in Finding of Fact 3.

3. Partially adopted in Finding of Fact.

4. Matters not contained therein are rejected as unnecessary.

1. Adopted in Finding of Fact 5.

2. Rejected as a recitation of testimony and/or argument.

3. Partially adopted in Finding of Fact.

4. Matters no contained therein are rejected as subordinate.

COPIES FURNISHED:

Armando Gutierrez, Esquire 2153 Coral Way, Suite 400

Miami, Florida 33145

Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1077

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

Thomas A. Bell, Esq.

General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927

Howard M. Rasmussen, Director Division of Alcoholic

Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301-1927

Docket for Case No: 86-001176

Orders for Case No: 86-001176