STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCIE C. ALLEN, JR., d/b/a OCA, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4097

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 14, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ocie C. Allen, Jr., pro se

Post Office Box 10616 Tallahassee, Florida 32302

For Respondent: Harry Hooper, Deputy General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

INTRODUCTION

The Petitioner, Ocie C. Allen, Jr., filed an Application for Alcoholic Beverage License dated March 9, 1988 with the Respondent, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division"). By letter dated June 29, 1988, the Division denied the Application. Mr. Allen requested an administrative hearing to contest the Division's decision in a letter dated July 19, 1988.

At the commencement of the formal hearing the parties offered a composite exhibit which was marked as Joint Exhibit 1 and accepted into evidence. Mr.

Allen also offered one exhibit which was accepted into evidence. The Division then made an ore tenus motion to dismiss for lack of subject matter jurisdiction. Following argument of the parties and a review of exhibits the motion was granted.

Mr. Allen filed a Motion for Official Recognition on January 13, 1989.

That Motion is hereby granted.

The parties have not filed proposed recommended orders in this case.

ISSUE

Whether the Application for Alcoholic Beverage License dated March 9, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?

FINDINGS OF FACT

1. Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated March 9, 1988 (hereinafter referred to as the "Application"), with the Division.

   
   

2. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract and change of location."

   
   

3. Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant."

   
   

4. The "Current License Number" listed in the Application to be transferred to Mr. Allen is 62-03498, current series 4 COP. The holder of this license was Terri Howell.

   
   

5. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application.

   
   

6. The purchase price for the business was listed as $86,250.00.

   
   

7. By letter dated March 16, 1988, the Division returned the Application to Mr. Allen and informed him that it was being returned for the following reasons:

   
   

   (1.) Need copy of loan in the amount of $86,250.00.

   (2.) If there are other agreements concerning this change, we will

   need copies. (Closing Statements)

   (3.) Need Affidavit of Seller signed by Ms. Howell making sure signature

   has been notarized on both applications.

   (4.) If no business name, please use applicants [sic] name also in that blank.

   
   

8. Mr. Allen returned the Application to the Division with a letter dated March 21, 1988, and indicated, in part, the following:

   
   

   The Loan of $86,250.00 is 75% of the appraised value for which a 4 COP license was sold in Pinellas County prior to Ms. Howell winning the drawing. This amount is reduced by the amounts she has received from the operation of Spanky's. Thereby the actual amount

   owed by me to Ms. Howell is $86,250.00 LESS the amount she has received during the operation of Spanky's, approximately, $60,000.00.

   
   

   The Application was not modified by Mr. Allen.

   
   

9. In a letter dated March 24, 1988, the Director of the Division requested the following additional information from Mr. Allen:

   
   

   (1.) Need Affidavit of Seller signed by Ms. Howell making sure signature

   has been notarized on both applications.

   (2.) Complete (No.5) Type of License Desired: (Series ).

   
   

10. By letter dated March 28, 1988, Mr. Allen responded as follows to the Division's request for information:

    
    

    Enclosed is the application for transfer. Ms. Howell signature [sic] on the Independent [sic] Contractor Agreement is the only signature of hers that will be furnished to you.

    
    

11. By letter dated April 4, 1988, the Division informed Mr. Allen that Terri Howell, the licensee, needed to sign the Affidavit of Seller.

    
    

12. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 31, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application:

    
    

    Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes.

    Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law.

    
    

13. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application.

14. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

16. This case involves a request for the transfer of a beverage license from Terri Howell to Mr. Allen. The transfer of licenses is governed, in pertinent part, by Section 561.32(1)(a), Florida Statutes, which provides the following:

    
    

    1. License issued under the provisions of the Beverage Law shall not be transferable except as follows:

       1. When a licensee has made a bona fide sale of the business which he is so licensed to conduct, he may obtain a transfer of such license to the purchaser of the business, provided the application of the purchaser is approved by the division in accordance with the same procedure provided for in ss. 561.17, 561.18, 561.19, and 561.65. [Emphasis added].

          
          

17. Section 561.32(1)(a), Florida Statutes, provides that the transfer of a beverage license upon a bona fide sale of the license may be obtained by the licensee. Mr. Allen has not alleged, nor did he allege at the formal hearing, that he is the licensee in this proceeding. Therefore, Mr. Allen could not have suffered a substantial injury, as a result of the Division's action in this matter, which is within the zone of interest protected by Chapter 561, Florida Statutes. Mr. Allen therefore lacks standing to institute this proceeding. See Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981)

    
    

18. Additionally, the evidence presented in this case proved that Terri Howell is the licensee of the license which Mr. Allen has requested the Division to transfer. Pursuant to Section 561.32(1)(a), Florida Statutes, Ms. Howell is the only person who "may obtain a transfer" of the license. No authority has been cited in Chapter 561, Florida Statutes, or any other law which would authorize the Division to transfer a beverage license at the request of someone other than the licensee under the circumstances of this case. Therefore, Mr. Allen, who is the alleged transferee of the subject license and not the licensee, has no right to request a transfer of Ms. Howell's beverage license by the Division.

    
    

19. At the formal hearing, Mr. Allen argued that the Division could not require him to complete the Application he filed in this matter by having Ms. Howell execute the Application as the seller because the Application has not been properly promulgated as a rule pursuant to Chapter 120, Florida Statutes. The conclusion reached in this case is based upon the requirement of Section 561.32(1)(a), Florida Statutes, that the licensee is the one authorized to obtain a transfer of a license. Therefore, even if the Division may not have

properly provided for the manner in which a licensee is to obtain a transfer of a license, the fact remains that the licensee of the license involved in this proceeding has not made any effort to obtain the transfer sought by Mr. Allen.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case

with prejudice.

DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

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 17th day of January, 1989.

COPIES FURNISHED:

Ocie C. Allen, Jr. Post Office Box 10616

Tallahassee, Florida 32302

Lt. B. A. Watts, Supervisor

Division of Alcoholic Beverages and Tobacco Department of Business Regulation

345 S. Magnolia Drive, Suite C-12 Tallahassee, Florida 32301

Harry Hooper

Deputy General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1007

Leonard Ivey, Director

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301-1927

Joseph A. Sole General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301-1927

Docket for Case No: 88-004097

Orders for Case No: 88-004097