STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARTIN COUNTY LIQUORS, INC., )
d/b/a MARTIN COUNTY LIQUORS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-1185
) 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 June 20, June 28, and July 22, 1988, at Tallahassee, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioner: Ocie C. Allen, Jr.,
Qualified Representative Post Office Box 10616 Tallahassee, Florida 32302
For Respondent: Katherine A. Emrich, Esquire
Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
By letter dated June 17, 1985, the Petitioner requested an administrative hearing in order to contest the Respondent's denial of its application for a new quota liquor license in Martin County. The application was denied as being incomplete. An informal hearing on the matter began on September 28, 1987. By Final Order dated October 30, 1987, the cause was sent to the Division of Administrative Hearings for a formal hearing.
A preliminary matter raised at the formal hearing was whether or not John Harry Michaels should be joined as a party. The Hearing Officer reserved ruling on the issue to allow the qualified representative for the Petitioner the opportunity to present evidence which would demonstrate an interest held by the individual separate from the interest of the corporation. At the close of the evidence, there was no showing that the individual John Harry Michaels has an interest in the issues involved in this proceeding which is separate from the interest of the corporation. Mr. Michaels elected to proceed through the licensing application process through the corporate entity. Having so elected, he is in no position to claim all the benefits of a corporation, and at the same
time seek to disregard the existence of the corporate entity whenever he decides it is more advantageous. The motion to allow Mr. Michaels to be joined as a party in this case is denied.
Another preliminary matter was whether the Respondent can charge the Petitioner $52.43 for seven hours of clerical services in addition to the $.25 charge per page for the cost of duplication. The Florida Rules of Civil Procedure, the Public Records Act, and the Respondent's own rules provide for service charges in addition to the actual cost of duplication when the party providing the copying services incurs such an expense. In this case, the Petitioner's qualified representative was made aware of the possibility of additional charges before the service was provided. The charge of $52.43 for clerical services in addition to duplication costs is an allowable charge to the Petitioner. The Petitioner's objection to the charge is denied.
During the hearing, the parties jointly submitted seventeen exhibits which were admitted into evidence. The Petitioner called one witness and presented twenty additional exhibits. Exhibits 2-11, 13-16, and 19-20 were admitted. The Respondent presented two witnesses and submitted four exhibits during hearing.
An additional exhibit was filed after the hearing. All five exhibits were received into evidence.
A partial transcript of the proceedings was ordered. Rulings on the proposed findings of fact are in the Appendix.
ISSUE
Whether the Petitioner is entitled to an alcoholic beverage license.
FINDINGS OF FACT
John Harry Michaels filed a preliminary application to participate in the state lottery for a new quota license on January 16, 1984. The application form completed by Mr. Michaels in this stage of the application process contained instructions to the applicant that it was the first part of a two-part application. The instructions also informed Mr. Michaels that a right of occupancy is required, and should accompany the second part of the application if his name is drawn in the lottery for new quota licenses.
Mr. Michaels, as part of his voluntary enlistment, was on military duty in the Armed Forces outside of the state on May 16, 1984.
On September 18, 1984, Mr. Michaels was notified by Respondent that he had been selected in the drawing held on September 12, 1984, for an available liquor license in Martin County. This selection of Mr. Michaels' name granted him the opportunity to continue the application process for the state quota liquor license in Martin County. The letter notifying Mr. Michaels of his eligibility also informed him that the second part of the application must be completed within forty-five days from the date the letter was issued. This second part of the application required proof of a right to occupancy of a specified location and verification of the financial investment made by the applicant.
On November 2, 1984, the forty-fifth day, Mr. Michaels, acting through his wholly owned corporation, filed the document entitled "Application for Alcoholic Beverage License." When the application was submitted to the Respondent, it did not contain: a business location, zoning approval, a right of
occupancy, a sketch of the premises, and documentation to support the stockholder's financial investment. Attached to the document was a letter from the attorney who represented the corporation. The letter requested an additional forty-five day extension of time to properly complete the application. The letter explained that Mr. Michaels was on military duty outside of Florida and had been unable to make arrangements to comply with the original time period.
On February 5, 1985, the Respondent was granted the requested extension with an expiration date of March 22, 1985. On the final day of the extension, the Petitioner's attorney requested a second extension. The letter stated that Mr. Michaels was unable to leave his post to return to Florida to obtain a properly zoned location. The letter did not address any new matters, nor did it explain why the forty-five days previously requested was insufficient. This request was denied on April 3, 1985, because there was no showing made that the Petitioner had made a good faith attempt to comply with the first extension. In the Respondent's denial letter, the Petitioner was informed that a letter of denial for the application was forthcoming.
On April 23, 1985, the Petitioner filed amendments to its application with the Respondent. The amended application was reviewed in the district office. The investigator sent the amended application to the central office in Tallahassee and recommended disapproval of this application for a number of reasons: There were no financial verification, no lease, and no right of occupancy included with the amended application. A lease, Joint Exhibit 12, was submitted to the district office on April 26, 1985, and was forwarded to Tallahassee the same day.
On May 31, 1985, the application was denied because it was incomplete due to the Petitioner's failure to timely file the following items within the granted extension period: 1) a right of occupancy; for a specific location; 2) complete verification of the financial investment.
The written denial of the Petitioner's application by the Respondent took place after the 180 day time period for granting a beverage license issued by lottery had expired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
Pursuant to Sections 561.19, 561.20, and 565.02, Florida Statutes, applications for certain types of Florida liquor licenses are selected by lottery Rule 7A-2.17, Florida Administrative Code, sets forth the procedures for the lottery, as well as some of the requirements for processing a quota license application.
Rule 7A-2.17, Florida Administrative Code, provides:
(6) All applicants ... shall file a full and complete application for an
alcoholic beverage license, following their selection in the drawing. Such appli- cations ... must be filed within 45 days of the date of their selection. Failure to file
an application within such 45 day period shall be deemed a waiver of the applicant's right to file for a quota liquor license.
In this case, the Petitioner requested an extension on the last day of the forth-five day period found in Rule 7A-2.17(6), Florida Administrative Code The Petitioner sought an additional forty-five days in order to acquire a properly zoned business location. The request was granted, until March 22, 1985.
On the last day of the extension granted by the Respondent, the Petitioner applied another forty-five day extension in order to seek and obtain a business location. The request did not provide the Respondent with any new information, nor did it show that a good faith attempt had been made to comply with the first extension deadline that had been chosen by the Petitioner. The Respondent acted reasonably, within the bounds of its discretion, when the request was denied.
A full and complete application containing a right of occupancy was not received within the extended time period. The preliminary instructions to the first part of the application and the instructions to the second part emphasize the need for a right of occupancy as part of the application required by the close of the forty-five day period. In the extension request, the Petitioner acknowledged its awareness of this requirement and its own failure to seek a location within the allowed time periods. When the Petitioner did not provide a business location to the Respondent, the right to file for a quota license was waived under Rule 7A-2.17(6), (supra).
Because the form entitled "Application for Alcoholic Beverage License" was timely filed, it was processed as the Petitioner's final submission. The application was properly denied as it did not contain a business location. Section 561.19, Florida Statutes, which governs the issuance of new quota beverage licenses, provides:
... 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.
A properly zoned business location at which a license is to operate must be obtained before license will be issued by the Respondent. Absent a location that meets the requirements of the Beverage Law, no license may be issued. Hillsborough County Liquors, Inc., d/b/a Hillsborough County Liquors v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 87-1679 (DOAH August 7, 1987).
The Petitioner contends that it is entitled to a quota beverage license because the Respondent failed to deny its application within 180 days, as required by Section 561.19(4), Florida Statutes. This position is untenable because it fails to take into consideration the provisions of Section 561.19(2), Florida Statutes, as previously noted, and Rule 7A-3.08, Florida Administrative Code, which provides in pertinent part:
All licenses ... must be for a permanent location at which the business is to be operated ...
A license can only be granted by the director to a qualified person with qualified premises. Such qualifications must be demonstrated by the applicant, which has the burden to prove its entitlement to an alcoholic beverage license. Astral Liquors, Inc. v. Dept. of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983). Balino v. Dept. of HRS, 348 So.2d 34 (Fla. 1st DCA 1977).
The Petitioner could not qualify for a license because it did not submit a location as part of its application. The Petitioner failed to meet the burden of proving entitlement to the license.
Although a written waiver of the 180 day time period was not obtained from the Petitioner, the extension agreement implicitly included waiver by the parties of any time limit that would be contrary to or directly defeat the purpose of the extension agreement. Sarasota County Liquors, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Case No.
86-1719 (DOAH October 13, 1986).
It is concluded that the Respondent has acted according to law in its denial of the license for failure to file a right of occupancy for a specific location within the extended time period.
Based on the foregoing, it is RECOMMENDED:
That the Respondent enter a Final Order denying the application for a quota liquor license filed by the Petitioner within the time period ending on March 22, 1985.
DONE AND ENTERED this 22nd day of September, 1988, at Tallahassee, Florida.
VERONICA E. DONNELLY
Hearing Officer
Division of Administrative Hearings The Oakland Building
2900 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1988.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1185
Petitioner's proposed findings of fact are addressed as follows:
Accepted. See H.O #1.
Accepted. See H.O #2.
Irrelevant as to the factual determinations.
Accepted. See H.O #3
Irrelevant.
Accepted. See H.O #4.
Irrelevant.
Irrelevant.
Accepted. See H.O #5.
Accepted. See H.O #5.
Irrelevant.
Accepted. See H.O #5.
Accepted. See H.O #6.
Accepted. See H.O #6.
Irrelevant.
Accepted. See H.O #6.
Accepted. See H.O #17. 18-25. Irrelevant.
26. Rejected as conclusionary. 27-36. Irrelevant.
Accepted.
Rejected. Contrary to fact.
Irrelevant.
Rejected. Misplaced conclusion of law.
Rejected. Misplaced conclusion of law.
Irrelevant and contrary to fact. The "lease" is so legally deficient that no serious consideration could have been given to it by the Respondent, even if it had been timely filed. The document does not contain a term of use. There is no right to possession of the premises granted to the lessor. The document is a sham, a form without substance. To further demonstrate its lack of merit, and to prevent any resemblance to a valid lease, the document remains undated and contains a typewritten clause entitled "twenty-second" which assures that the parties can cancel this lease and render it null and void once a liquor license is issued to the Petitioner. It is clear from the evidence that the applicant has no intention of operating the subject license at the premises mentioned in the purported business lease.
Rejected. Contrary to fact. It was the Petitioner who sought the application delays.
Respondent's proposed findings of fact are addressed as follows:
Accepted. See H.O #1.
Accepted. See H.O #1.
Irrelevant.
Accepted. See H.O #3
Accepted. See H.O #3.
Accepted. See H.O #4.
Accepted. See H.O #4.
Accepted. See H.O #4.
Irrelevant.
Irrelevant.
Accepted. See H.O #5.
Accepted. See H.O #5.
Irrelevant.
Accepted. See H.O #5.
Accepted. See H.O #6.
Accepted. See H.O #6.
Irrelevant.
Accepted. See H.O #7. 19-34. Irrelevant.
35. Rejected as conclusionary.
COPIES FURNISHED:
Katherine A. Emrich, Esquire Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32399-1000
Mr. Ocie Allen
Post Office Box 10616 Tallahassee, Florida 32302
John Harry Michaels, President Martin County Liquors, Inc.
Post Office Box 10616 Tallahassee, Florida 32302
Leonard Ivey, Director
Division of Alcoholic Beverages and Tobacco
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
MARTIN COUNTY LIQUORS, INC., d/b/a MARTIN COUNTY LIQUORS,
Petitioner,
vs. DOAH CASE NO. 88-1185
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Respondent.
/
FINAL ORDER
COMES NOW, the Director, Division of Alcoholic Beverages and Tobacco, and enters his Final Order in the above styled cause pursuant to authority vested by Chapter 120, Florida Statutes.
Respondent, Division of Alcoholic Beverages and Tobacco, adopts in toto the Recommended Order of Veronica E. Donnelly, Hearing Officer, Division of Administrative Hearings, issued September 22, 1988.
ORDER
It is hereby ordered Petitioner's application for a quota liquor license in Martin County, Florida, is denied.
DONE AND ORDERED this 4th day of October, 1988.
C. L. IVEY, DIRECTOR
Division of Alcoholic Beverages and Tobacco
725 South Bronough Street Tallahassee, Florida 32399-1020
(904) 488-7891
COPIES FURNISHED:
Veronica E. Donnelly and
Robert T. Benton, Hearing Officers Division of Administrative Hearings
2009 Apalachee Parkway, Oakland Building Tallahassee, Florida 32399-1550
Katherine A. Emrich, Esquire Department of Business Regulation 725 South Bronough Street | ||
Tallahassee, Florida 32399-1007 | ||
Mr. Ocie Allen Post Office Box 10616 | Certified Mail P-981 749 | 781 |
Tallahassee, Florida 32302 | ||
John Harry Michaels, President Martin County Liquors, Inc. Post Office Box 10616 Tallahassee, Florida 32302 | Certified Mail P-981 749 | 782 |
RIGHT TO APPEAL
This Final Order may be appealed pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal and with this agency within 30 days of rendition of this Order, accompanied by the appropriate filing fee.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF BUSINESS NOT FINAL UNTIL TIME EXPIRES TO REGULATION, DIVISION OF FILE MOTION FOR REHEARING AND ALCOHOLIC BEVERAGES AND TOBACCO, DISPOSITION THEREOF IF FILED.
Appellant, CASE NO. 88-2902
DOAH CASE NO. 88-1185
vs.
MARTIN COUNTY LIQUORS, INC.,
Appellee.
/ MARTIN COUNTY LIQUORS, INC., d/b/a MARTIN COUNTY LIQUORS,
Appellant,
CASE NO. 89-2231
vs.
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Appellee.
/ Opinion filed January 15, 1991.
An Appeal from an Order of the Division of Administrative Hearings in Case No. 88-2902.
An Appeal from an Order of the Department of Business Regulation in Case No. 89- 2231.
Katherine A. Emrich, Assistant General Counsel, Department of Business Regulation, for Appellant in Case No. 88-2902.
Stanley Chapman and H. F. Rick Mann of Ervin, Varn, Jacobs, Odom & Ervin, Tallahassee, for Appellee in Case No. 88-2902 and Appellant in Case No. 89-2231.
Harry Hooper, Deputy Counsel, Department of Business Regulation, Tallahassee for Appellee in Case No. 88-2902.
NIMMONS, J.
In case number 88-2902, appellant, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco ("DABT"), appeals from the hearing officer's final order in a Section 120.56, Florida Statutes (1987), rule challenge in which the hearing officer found the Department's requirements that applicants for quota liquor licenses provide documentation supporting financial arrangements and demonstrate a "right of occupancy" are an invalid exercise of delegated legislative authority. The Department also appeals the finding that Section 302 of the DABT's standardized policy and procedure defining what constitutes a completed application is an invalid exercise of delegated legislative authority.
In case number 89-2231, appellant, Martin County Liquors, Inc., appeals from a final order of the DABT following a Section 120.57 formal hearing in which the DABT adopted in toto the hearing officer's recommended order wherein the hearing officer found the Department's disapproval of the application for a quota liquor license was proper.
We have elected to consolidate these two cases for purpose of this opinion since they are based on the same set of facts. We affirm in both cases.
In September, 1984, a drawing for quota liquor licenses was held by the DABT. Alcoholic beverage licenses are issued according to a double random lottery-type drawing that is based on increases in county population.
Applicants are ranked in numerical order, and if they do not qualify, runners-up are entitled to apply for a "quota" license. Quota licenses are more valuable than ordinary beverage licenses, are limited in number, and permit the sale of all types of alcoholic beverages regardless of the type of business.
John H. Michaels was selected in the September drawing for an available liquor license in Martin County, Florida. In a notification letter sent by the DABT, Michaels was instructed to "file a full and complete application within 45 days" of the date the letter was sent. The letter indicated a completed application should include the location of the business and zoning approval.
Michaels was to contact the district office for forms and instructions. The forms referred to were DBR 700L (Application for Alcoholic Beverage license) and DBR 710L (Personal Questionnaire). Failure to comply would be deemed by DABT to be a waiver of his right to file for the new quota license.
Michaels, through his wholly owned corporation, Martin County Liquors, Inc., submitted his application in timely fashion. However, it was incomplete, as it lacked a business location, zoning approval, right of occupancy information, documentation regarding the commercial loan listed, or a sketch of the licensed premises. At the same time the application was submitted, a 45-day extension to obtain a properly zoned business location was requested and granted.
A second 45-day extension was requested one day before the first extension expired. This second request was denied. Martin County Liquors, Inc., nevertheless attempted to supplement its application. It submitted an application which included a business location, zoning approval, and a sketch of the licensed premises. The DABT denied the application because the "application [is] incomplete in that applicant has failed to file a right of occupancy for a specific location within the extended period as granted by the agency. Also, applicant has failed to provide complete verification of his financial investment," citing Section 561.18, Florida Statutes.
The denial of the license was challenged in the Section 120.57 proceeding referred to above. In her recommended order, the hearing officer found the second extension requested did not address any new matters or explain why the previous 45-day extension was insufficient. In her conclusions of law, the hearing officer found the second extension request did not show a good faith attempt to comply with the first extension deadline, and that Martin County Liquors, Inc., could not qualify for a license because it did not submit a location as part of its application, thus waiving its right to file for a quota license. As earlier noted, the recommended order was adopted by the DABT. This gave rise to the appeal by Martin County Liquors, Inc., in case number 89-2231.
Following the conclusion of the 120.57 formal hearing, Martin County Liquors, Inc. filed a petition challenging the validity of DBR 700L and DBR 710L since they were not filed with the Office of the Secretary of State, as well as the validity of Section 302 of the Division's policy and procedures manual since it constituted a rule and was not properly promulgated as such. A formal hearing was conducted and the hearing officer concluded that application form DBR 700L was an unpromulgated rule because the DABT failed to file a copy with the Secretary of State, and thus the requirements the form purports to impose of documentation of financial arrangements and right of occupancy information are an invalid exercise of delegated legislative authority. He also found that the DABT policy statement in Section 302 of their manual defining complete and incomplete license applications was an invalid exercise of delegated legislative authority. Appeal by the DABT followed in case number 88-2902.
The DABT asserts that Martin County Liquors, Inc., does not have standing to maintain the rule challenge proceeding because it suffered no injury. We disagree with the Division's contention and hold that the appellee has demonstrated a direct injury in fact of sufficient immediacy and reality and is continuing to suffer adverse effects. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, State of Florida, 396 So.2d 1194 (Fla. 1st DCA 1981).
Under Section 120.52(16), Florida Statutes (1987), "rule" is defined as: each agency statement of general applicability
that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.
Under Section 120.52(8)(a), Florida Statutes (1987), a proposed or existing rule is an invalid exercise of delegated legislative authority if:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54.
It is undisputed that copies of DABT's application forms, particularly DBR 700L, were not filed with the Office of the Secretary of State, and thus violated Section 120.54, Florida Statutes (1987), regarding adoption procedures.
DBR 700L, the application for an alcoholic beverage license, requires an applicant to complete a section entitled "4. Right of Occupancy." This section asks eight questions which can be answered yes or no regarding the type of business premises, its location and ownership. The applicant is also required to submit information regarding any rental, lease or sublease agreements for the premises at which the quota license will be utilized. Furthermore, under Section III of the form the applicant must answer questions about the business and submit copies of agreements and documentation to support the financial arrangements.
Section 561.18, Florida Statutes (1987), gives the DABT the authority to investigate applications both as to the qualifications of applicants and as to the premises and location to be licensed. However, there is no specific authority explicitly requiring an applicant to provide right of occupancy information or submit documentation supporting financial arrangements. However, as the hearing officer found, and we agree, those requirements could be adopted by rules or forms promulgated according to the APA.
Therefore, since the requirements that an applicant file right of occupancy information and submit documentation verifying any financial arrangements in DBR 700L meet the definition of a rule under Section 120.52(16), and DBR 700L was not filed with the Secretary of State, violating Section 120.54, Florida Statutes (1987), the hearing officer's final order finding DBR 700L an invalid exercise of delegated legislative authority must be affirmed.
According to Section 120.52(16)(a), a rule is not:
(a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
Section 302 of the DABT's standardized policies and procedures, states that "in order to be eligible to receive a temporary or permanent alcoholic beverage license the applicant must file a completed application." Further, the policy states "The DBR 700L must be complete... Also, any agreements or financial documentation which are required as attachments as a result of the completion of Section III of the DBR 700L application for alcoholic beverage license must also be furnished." The stated purpose of the policy is to establish a "standardized policy and procedure to be followed by all field offices in connection with the definition of a completed application."
Applications for quota liquor licenses are initially approved or disapproved based on the requirements established in the DABT's policy Section
302. No other standard definition of a completed application exists, and it is to be applied uniformly and generally to the public at large. It clearly does not fall within the exceptions under Section 120.52(16)(a). Thus, we find the DABT's assertion that Section 302 was irrelevant to their denial of Martin County Liquor's application because their field office accepted the incomplete application to be without merit. The DABT's policy Section 302 meets the definition of a rule pursuant to Section 120.52(16), and because it was not promulgated as such, it constitutes an invalid exercise of delegated legislative authority.
Because they were not properly promulgated as rules, the application form, DBR 700L, and policy Section 302 will become void and ineffective as of the date
the decision of this court becomes final. Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988).
We next turn to Martin County Liquors, Inc.'s appeal of the final order rendered after the Section 120.57 hearing upholding the disapproval of its application based on its failure to provide a proper business location. The standard of review when determining whether the disapproval of a quota liquor license was proper when based on the Division's interpretation of a rule is whether the action is arbitrary, capricious or not in compliance with Section 561.19, Florida Statutes (1987). Meridian, Inc. v. Department of Health and Rehabilitative Services, 548 So.2d 1169 (Fla. 1st DCA 1989).
Section 561.19(2) provides in pertinent part:
[I]f an applicant is found qualified as provided 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.
Rule 7A-2.017(6), Florida Administrative Code (1983) 1/ sets forth more specific procedures for obtaining a quota liquor license. It provides:
All applicants ... shall file a full and complete application for an alcoholic beverage license, following their selection in the drawing. Such applications are available in the District Field Office having jurisdiction over such county and must be filed within 45 days of the date of their selection. Failure to file an application within such 45-day period shall be deemed a waiver of the applicant's right to file for a quota liquor license.
The appellant, Martin County Liquors, Inc., asserts that the above quoted Section 561.19(2) mandates a three-step process for issuing quota liquor licenses: the initial application is filed, the applicant qualifies at which time a license shall be granted, and the business premises is approved at which time the license shall be issued. The appellant's argument is that the license should be granted as soon as the applicant qualifies which would still enable the DABT to grant or deny the license within 180 days required pursuant to Section 561.19(4) and issue the license after the business location has been approved.
We reject the appellant's contentions. It is a well-settled principle that agencies have broad discretion to construe governing statutes and that construction is persuasive unless clearly erroneous. E.g., Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985). The Chief of the Bureau of Licensing testified at the hearing that without a complete application, it is difficult to investigate the applicant or his application, especially when accepted in a piecemeal fashion. The DABT has construed the statute to mean that an applicant should qualify both individually and as to the business premises before a license will be issued. This is neither arbitrary nor capricious since a license will not be issued if the business premises does
not qualify under either interpretation. Further, since there are only 180 days for the Division to investigate all applications, its requirement that applicants submit a business location with their application is neither arbitrary nor capricious.
Martin County Liquors, Inc. contends the Division abused its discretion in denying its license application. We disagree. Agencies have broad discretionary authority to issue licenses especially when the operation of that license is deemed a privilege rather than a right, as in liquor licenses.
Astral Liquors, Inc. v. Department of Business Regulation, 463 So.2d 1130 (Fla. 1985).
The hearing officer found that the DABT acted in accordance with the law when it denied the application for failure to file a right of occupancy for a specific location. Given the broad discretion afforded agencies regulating licensure, and the reasonableness of the requirement that a business premises be approved before a license will be issued, the DABT did not abuse its discretion.
As the hearing officer found, an incomplete application was submitted and a 45-day extension was granted to obtain a properly zoned business location. A complete application was not submitted within the extended deadline; instead, the applicant requested another extension without demonstrating a good faith attempt to comply with the first extension. The DABT disapproved Martin County Liquor's application as submitted because it was incomplete and failed to state a specific location or financial documentation. This was reasonable and entirely within the agency's discretion.
Martin County Liquors, Inc. also argues that the DABT's exercise of discretion was inconsistent because other applicants attempting to obtain quota liquor licenses were given additional opportunity to amend or supplement their original applications in order to meet the requirements necessary to be issued a license. However, we agree with the hearing officer's rejection of appellant's assertion of inconsistent application of the rules as irrelevant. Competent substantial evidence supports the hearing officer's findings that the applicant was given additional time to complete the application and document a business premises. Martin County was unable to submit a completed application within the extended deadline and could not demonstrate that a good faith effort had been made to comply. Therefore, because the applicant did not demonstrate a properly zoned business location as required by the rule and the statute, it was not entitled to a quota liquor license, and its application was properly denied.
Accordingly, the final orders in these consolidated cases are AFFIRMED. BOOTH and ALLEN, JJ., CONCUR.
ENDNOTE
1/ We are assuming that Rule 7A-2.017 is valid since it was not found to be invalid by the hearing officer in either case, and neither party urges on appeal its invalidity.
| Issue Date | Proceedings |
|---|---|
| Sep. 22, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 15, 1991 | Opinion | |
| Oct. 04, 1988 | Agency Final Order | |
| Sep. 22, 1988 | Recommended Order | Application for liquor license denied. After first exemption, Petitioner failed to submit a location as part of application. |
