STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFONZA ARLINE TATE d/b/a COWBOY'S ) BAR AND GRILL, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4983

) 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, Don W. Davis, held a formal hearing in this case on December 17, 1987, in Miami, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: George Lipkins

Qualified Representative 13510 Northwest 30th Avenue Opa Locka, Florida 33054

FOR RESPONDENT: Thomas A. Klein, Esquire

Department of Business Regulation Division of Alcoholic Beverages 725 South Bronough Street Tallahassee, Florida 32399-1000

BACKGROUND

Petitioner submitted an application for an alcoholic beverage license to Respondent. After consideration, Respondent denied the issuance of the requested license on the basis that

Petitioner had been convicted of a felony offense within the past fifteen

1. years. This administrative hearing followed.

   
   

   At the hearing petitioner presented the testimony of one witness and one exhibit. Respondent presented the testimony of one witness and two exhibits. The parties requested judicial notice be taken of pertinent portions of the New Jersey Code of Criminal Justice, and attendant case law, which request was granted.

   
   

   Proposed findings of fact were submitted by Respondent and are addressed in the appendix to this Recommended Order.

   FINDINGS OF FACT

   
   

   1. Petitioner Alfonza Arline Tate, d/b/a Cowboy's Bar and Grill, applied for Florida alcoholic beverage license number 23-0862, Series 2-COP, from Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Application was submitted in May of 1987.

      
      

   2. By correspondence dated September 11, 1987, Petitioner was informed by Respondent that his application for an alcoholic beverage license was disapproved due to his conviction of a felony within the past fifteen years. Petitioner timely filed a request for formal hearing to contest the Respondent's decision.

      
      

   3. The proof establishes that on July 17, 1986, Petitioner was indicted in the State of New Jersey. He subsequently entered a plea of guilty on August 25, 1986, to a violation of section 2C: 39-5(b) New Jersey Statutes (N.J.S.A.), possession of a handgun without a permit. On October 3, 1986, petitioner was sentenced to a year's probation, fifty hours of community service, cumulative fines or costs to-tal-ing $380.00 and given one day's credit for time served.

      
      

   4. All crimes in the State of New Jersey are designated as misdemeanors and divided into crimes of the first, second, third and fourth degree in accordance with Section 2C:1-4, d., of N.J.S.A.. The Petitioner was sentenced for a crime of the third degree for which the maximum possible sentence is a term of imprisonment of three to five years as may be fixed in the discretion of the court. See, 2C: 39-5. b., and 2C:43-6, a. (3), N.J.S.A.

      
      

   5. Petitioner offered no testimony or evidence of the underlying factual basis for his conviction in the State of New Jersey, or whether he suffered any loss of civil rights as a consequence of the conviction. Certified copies of documents from New Jersey reflecting Petitioner's indictment, entry of guilty plea and subsequent sentence were admitted into evidence without objection and also carry no indication of disqualification or loss of civil rights.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   7. The issuance of an alcoholic beverage license by Respondent to any person convicted of a felony either in Florida or any other state is prohibited by Section 561. 15(2), Florida Statutes.

      
      

   8. For purposes of classifying a violation of N.J.S.A. 2C: 39-5(b) in common law terms, New Jersey's highest court has held that an offense carrying a punishment of imprisonment up to one year is the equivalent of a common-law misdemeanor, and an offense carrying a maximum imprisonment in excess of one year is the equivalent of a common-law felony. State v. Doyle, 42 N.J. 334 (1964), and State In The Interest of J.B. Jr., 131 N.J. Super, 6 (1974).

      
      

   9. Since the offense for which Petitioner was sentenced in New Jersey is the equivalent of a common-law felony, a further determination to be made is whether the petitioner's conviction in that state resulted in the loss of civil rights. Whether the offense is a felony under Florida law is not germane to such a determination, rather the test is: Did the Petitioner suffer a deprivation or loss of civil rights as a result of his conviction which rights

      have not been restored? See, Guiseppe Pizzeria v. Department of Business Regulation, 472 So. 2d 1331 (Fla. 3rd DCA 1985).

      
      

   10. Notably, persons convicted of any degree of crime under the New Jersey Code of Criminal Justice are disqualified from voting in any primary, municipal, special or general election, as well as suffering disqualification from jury duty, according to provisions of 2C:51-3, N.J.S.A.

       
       

   11. Conviction of a crime of the first, second, or third degree results in forfeiture of public office, elective or appointive under 2C:51-2, N.J.S.A.

       
       

   12. The matter of disqualification or loss of civil rights is said to occur at conviction "though not mentioned in the sentence unless the plain meaning of the statute requires the contrary." MacKinnon V. Ferber, 16 N. J. Super. 390, 84 A.2d 64-7 (1951).

       
       

   13. The plain meaning of the statute under which Petitioner was convicted does not require a contrary interpretation. That statute reads as follows:

       
       

       2C:39-5 UNLAWFUL POSSESSION OF WEAPONS

       * * *

       b. Handguns. Any person who knowingly has in his possession any handgun, including any

       antique handgun without first having obtained a permit to carry the same as provided in section 2C: 58-4, is guilty of a crime of the third degree.

       
       

   14. In the absence of any evidentiary showing by Petitioner that disqualification resulting from his conviction has been removed, it is concluded he has failed to demonstrate by a preponderance of the evidence his entitlement to the issuance of the license requested from Respondent.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner for a license to sell

alcoholic beverages be denied.

DONE AND RECOMMENDED this 6th day of January, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1988.

APPENDIX

The following constitute specific rulings upon the proposed findings of fact numbered 1 through 3 and submitted by the Respondent on December 29, 1987:

1. Adopted in paragraph 1.

2. Included in paragraph 3.

3. Included in paragraph 2.

COPIES FURNISHED:

George Lipkins City Commissioner

13510 Northwest 30th Ave Opa Locka, Florida 33054

Alfonza Arline Tate 881 West Drive

Opa Locka, Florida 33054

Thomas A. Klein, Esquire Department of Business Regulation Division of Alcoholic Beverages 725 South Bronough Street Tallahassee, Florida 32399-1000

Daniel Bosanko, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole, Esquire General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 87-004983

Orders for Case No: 87-004983