Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Aug. 07, 1987
Summary: New liquor license quota holder must obtain proper zoning before license can be issued
87-1679STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HILLSBOROUGH COUNTY LIQUORS, INC., ) d/b/a HILLSBOROUGH COUNTY LIQUORS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-1679
) 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, K. N. Ayers, held a public hearing in the above- styled case on July 14, 1987, at Tampa, Florida.
APPEARANCES
For Petitioner: Joseph H. Forbes, Esquire
Post Office Box 913 Gainesville, Florida 32602
For Respondent: Thomas A. Klein, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
By Petition dated July 9, 1987, Hillsborough County Liquors, Inc., Petitioner, by and through its attorney, contests the denial of its application for a new quota liquor license in Hillsborough County by the Division of Alcoholic Beverages and Tobacco (DABT), Respondent. The application was denied as being incomplete.
At the commencement of the hearing the parties stipulated to facts 1 through 10 below. Thereafter, Petitioner called four witnesses. Respondent called one witness and seven exhibits were admitted into evidence. There is no real dispute regarding the operative facts of this case. Proposed findings submitted by the parties are accepted except as noted in the Appendix attached hereto and made a part hereof.
FINDINGS OF FACT
Petitioner was notified by DABT on September 18, 1984, that its name had been drawn in the lottery for a new quota liquor license in Hillsborough County, Florida.
The prescribed application form was timely filed by Petitioner on November 2, 1984.
The lease for the premises at which the license was to be operated was a three-month lease which expired before DABT took action on the application. Thereafter, Petitioner did not have a lease on premises from which to operate the license.
On March 7, 1985, Petitioner waived the 180-day period given in the statute which DABT had to rule upon the application.
On August 8, 1986, Petitioner requested DABT issue the license in escrow.
On August 13, 1986, DABT denied the request to issue a new quota license in escrow and gave Petitioner 45 days in which to file a new application, Part II.
Petitioner timely filed this second application September 26, 1986.
Upon review by DABT this application was deemed incomplete by reason of lack of approved zoning of the site and Petitioner was so notified.
All information requested by DABT was provided with respect to the zoning of the proposed site, except certification by zoning officials that the site was wet zoned.
On February 9, 1987, Petitioner's application was denied for the reason that the applicant had failed to obtain zoning approval for the proposed site.
Patsy Frenchman is the sole owner of the stock in Hillsborough County Liquors, Inc., and has operated package stores in Alachua County for some time.
Following the waiver of the 180-day period in which DABT had to rule on the application the file "fell through a crack" and no action was taken by Respondent for over a year. When this file again became active it was determined to allow Petitioner to resubmit a new application and the 45-day period in which to do so was started.
Petitioner prepared the new application, found a site in Ruskin, Florida that had previously been used as a package store, took the landlord to the County Zoning Department in Ruskin who confirmed the prior zoning of the site, and then negotiated a lease for this site. When she returned the following day to the Ruskin Zoning Office to get her application signed off by the Zoning Department that the site was properly zoned, she was told that it was necessary to have the application signed off by the main Hillsborough County Zoning Office in Tampa, Florida.
Petitioner then took the application to Tampa where no record that this site was wet zoned could be located. Petitioner was advised that she could apply for zoning and was given the proper forms with which to do so.
After being told by the main zoning office that the site was not zoned to allow the sale of alcoholic beverages, Petitioner obtained the services of an attorney to help straighten out the problem.
Petitioner submitted the application with a letter from the zoning official stating the zoning of this property was zoned C-1 (neighborhood commercial) and this zoning would allow the sale of alcoholic beverages after going through the alcoholic beverage zoning process (Exhibit 2). This application was deemed incomplete by Respondent because it did not contain a site for the license which was properly zoned. However, DABT did not disapprove the application but gave Petitioner time to sort out the zoning problems.
Hillsborough County has what is referred to as spot zoning. A site can be zoned to accommodate a liquor store but once the operator moves from the site the zoning reverts to a general commercial zoning and cannot be used as a package store site without again obtaining zoning for such a purpose. Apparently, Petitioner did not fully understand this concept but continued to assume that once the site was zoned for a package store it could again be so used without the necessity of going through the procedures and expenses of rezoning.
Near the end of the 180-day period for Respondent to act on the application, DABT requested a waiver of this 180-day period but Petitioner declined to so waive. A final check with the Hillsborough County Zoning Department made by Respondent's Tampa Office on February 4, 1987 revealed that the site selected by Petitioner was not wet zoned and that Petitioner had never submitted an application to have the site zoned for use as a package store. All of this information was submitted to Respondent's Tallahassee office and on February 9, 1987, the 180th day from the second authorization to Petitioner to file, the application was denied.
Once a new quota liquor license has been issued the holder can place the license in escrow for 18 months. In many cases the initial site shown on the application for a new quota license is a small space inadequate for the licensee to operate from, but which meets the zoning requirements for licensure. Upon issuance of a new quota license, some licensees have immediately requested same be placed in escrow for up to 18 months while an adequate site is located.
While the first application was pending, Petitioner testified she inquired of the Tampa Beverage Office if she could amend her application to a new site since the 3 month lease on the originally approved site could not be renewed and was advised she could not. DABT personnel have no recollection of having given such information and no documentation of such an inquiry was presented. DABT has in the past allowed an applicant for a new quota license to change to a new location while the application was being processed. (Exhibit 5). Here Petitioner never obtained an approved new location nor applied to have the application amended to show the new location.
Section 361.19(2), Florida Statutes, provides for the issuance of new quota licenses by the Division. This section provides in part that if the applicant is found qualified, the new quota license shall be granted; however, it shall not be issued until the applicant establishes to the satisfaction of the Division that the premises to be licensed qualify under the Beverage Law. The long-standing interpretation of this section by the Division is that the granting and issuing of a new quota license is done simultaneously when the applicant and the location meet all requirements, and is not bifurcated into a process of granting a license and then issuing a license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 562.45(2), Florida Statutes, provides:
Nothing in the beverage law contained shall be construed to affect or impair the power or right of any incorporated municipality of the state hereafter to enact ordinances regulating the hours of business and location of place of business, and prescribing sanitary regulations therefor
of any license under the beverage law within the corporate limits of such municipality.
The statute giving to cities the power to enact zoning ordinances was intended to reserve to cities their power to designate areas within their limits where alcoholic beverages could and could not be sold. Ellis v. City of Winter Haven, 60 So.2d 620 (Fla. 1952).
Proper zoning for the location at which the license is to operate is a prerequisite the applicant must obtain before the license will be issued by the Division. Section 561.19, Florida Statutes, governs the issuance of new quota beverage licenses and provides in pertinent part:
Subject to this selection process, if an applicant is found qualified by the Beverage Law a license shall be granted. However, it shall not be issued until and unless the applicant establishes to the satisfaction
of the director that the premises to be licensed qualify under the Beverage Law.
As noted above, to qualify under the Beverage Law, the premises to be licensed must comply with local zoning ordinances. To insure that the premises so qualify, the DABT requires the applicant to obtain a statement from the appropriate zoning official that the premises to be licensed can be operated as an alcoholic beverages establishment.
One reading of that part of Section 561.19 above quoted would indicate that a beverage license is granted to anyone who qualified and thereafter issued if the premises qualify under the Beverage Law. Since its inception, this provision has been interpreted by DABT to mean granting and issuing the license are concurrent acts and not two separate acts.
Since the Beverage Law requires all applicants for beverage licenses to meet certain moral standards and not to have been found guilty of certain crimes or Beverage Law violations, the qualification provision relates to the applicant to be licensed. The Beverage Law also requires that the premises to be licensed be zoned to allow the sale of alcoholic beverages at that location. Unless the location meets this qualification the license cannot be issued. That the license is issued only to a qualified licensee to operate at premises which
comply with zoning regulations, is a long-standing interpretation of the statute by the DABT and as such it is entitled to great weight. Dept. of Environmental Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985); Natelson v. Dept. of
Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).
Petitioner contends that the license should have been issued, as requested, into escrow. To support this position, it cites several instances where a new quota license has been issued by the Division for an approved location and immediately thereafter placed in escrow by the licensee. Section
561.29 (1)(h), Florida Statutes, authorizes the placement of a license in an inactive status for a period of 18 months at the request of the licensee. While allowing these new quota licenses to be immediately placed in escrow by the licensee may be a more liberal interpretation of the statute than was intended by the Legislature, such action is hardly precedent for actually issuing a license for which no approved location has been obtained.
Respondent has never issued a license into escrow upon the reasoning that the statute requires that specific premises be licensed. The language authorizing the placing of a license in an inactive status supports this position as the statute authorizes only an existing license to be "escrowed" or placed in an inactive status. Absent a location that meets the requirements of the Beverage Law, no license may be issued.
Petitioner has the burden to prove its entitlement to an alcoholic beverage license. Astral Liquors, Inc. v. Dept. of Business Regulation, 432 So.2d 3 (Fla. 3rd DCA 1983); Balino v. Dept. of HRS, 348 So.2d 34 (Fla. 1st DCA 1977). From the foregoing it is concluded that Petitioner has failed to prove by a preponderance of the evidence that it ever had the right to occupy premises to sell alcoholic beverages, once its initial lease had expired, which premises met Hillsborough County Alcoholic Beverage zoning ordinances. Therefore, its application for a new quota license was properly denied. It is,
RECOMMENDED that Hillsborough County Liquors, Inc.'s petition to require issuance of a new quota license be DENIED.
ENTERED this 7th day of August, 1987, in Tallahassee, Florida.
K. N. AYERS 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 7th day of August, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1679
Treatment Accorded Petitioner's Proposed Findings 1-10. Accepted.
Accepted, except that portion relating to unrefuted testimony of Petitioner which conflicts with HO #20.
Rejected. Exhibit 2 dated September 26, 1986, addressed to Respondents is the first communication in the record from Hillsborough County.
Rejected. Exhibit 2 dated September 26, 1986, addressed to Respondents is the first communication in the record from Hillsborough County.
Accepted.
15-18. Accepted.
19-21. Rejected insofar as inconsistent with HO Conclusions of Law.
Treatment Accorded Respondent's Proposed Findings 1-21. Accepted.
COPIES FURNISHED:
Thomas A. Klein, Esquire Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32399-1000
Joseph H. Forbes, Esquire
537 Northeast 1st Street, Suite 5
P. O. Box 13
Gainesville, Florida 33602
James Kearney, Secretary Department of Business
Regulation
The Johns Building
725 S. Bronough Street Tallahassee, Florida 32399-1000
Daniel Bosanko, Director Division of Alcoholic Beverages
and Tobacco Department of Business
Regulation
The Johns Building
725 S. Bronough Street Tallahassee, Florida 32399-1000
Docket for Case No: 87-001679
Orders for Case No: 87-001679
| Issue Date |
Document |
Summary |
|
Sep. 01, 1987 |
Agency Final Order
|
|
|
Aug. 07, 1987 |
Recommended Order
|
New liquor license quota holder must obtain proper zoning before license can be issued
|
