STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHNNIE LEE SIMMONS, d/b/a )
101 CLUB, )
)
Petitioner, )
)
vs. ) CASE NO. 88-6465
) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing on June 6, 1989 in St. Augustine, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Elizabeth C. Masters, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: J. Clark Hamilton, Jr., Esquire
Post Office Box 5712 Jacksonville, Florida 32247
STATEMENT OF THE ISSUES
Whether or not Petitioner may be issued a 2-COP License to operate a business to be known as the 101 Club located at 424 North 11th Street, Palatka, Florida.
PRELIMINARY STATEMENT
Prior to formal hearing, the parties entered into a joint Pre-hearing Stipulation which has been utilized to the extent appropriate in preparation of this Recommended Order. Petitioner presented the oral testimony of Willie Lee Simmons Sr., Dorothy Carter, Sgt. Homer Scroggin, and Barry Schoenfeld, and testified on his own behalf. Petitioner had 14 exhibits admitted in evidence.
Respondent also presented the oral testimony of Sgt.. Scroggin and Barry Schoenfeld and had 4 exhibits admitted in evidence.
No transcript was provided, but all timely-filed proposed findings of fact have been ruled upon, pursuant to Section 120.59(2), F. S., in the Appendix to this Recommended Order.
FINDINGS OF FACT
On September 21, 1987, Petitioner, Johnnie Lee Simmons, submitted a completed application for a new permanent and temporary 2-COP (beer and wine) alcoholic beverage license(s) to the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) at DABT's Gainesville, Florida District Office. The application involved the proposed "101 Club, located at 424 North 11th Street, Palatka, Putnam County, Florida." At the time Petitioner submitted the application(s) he was issued a temporary ninety-day license, numbered 64-00378. By the terms on the face of this first or initial temporary license, it expired on December 19, 1987. This first or initial temporary license likewise indicated on its face that it would expire upon disapproval of the pending permanent license application.
The application listed Willie Lee Simmons, Sr., the Petitioner's father, as having a direct interest in the "101 Club" through a personal loan of
$1,000.00 by which Petitioner would finance the "101 Club". Also in the Personal Questionnaire portion of the application, Petitioner admitted that he and his father had once held beverage license number 64-00029 for the "Palatka Blue Diamond", a bar previously located at the same address and location as the proposed "101 Club", and further admitted that the prior license had been revoked.
Other "Personal Questionnaires" were also submitted simultaneously with, and as part of, the initial application. These had been completed by Petitioner's wife; the father, Willie Lee Simmons, Sr.; and Willie Lee Simmons, Sr.`s wife because the property at 424 North 11th Street, Palatka, Florida is owned together by these four family members.
Petitioner and his father, Willie Lee Simmons, Sr., were formerly co- license holders for the "Palatka Blue Diamond". The revocation of that prior license was based upon Department of Business Regulation, Division of Alcoholic Beverage Control v. Willie Lee and G. L. Simmons d/b/a Palatka Blue Diamond, DOAH Case No. 83-3023, resulting in a July 12, 1984 Final Order, which was upheld on appeal to the First District Court of Appeal in Simmons v. Department of Business Regulation, Division of Alcoholic Beverages, 465 So.2d 578 (Fla. 1st DCA 1985). The First District Court of Appeal found,
"[T]here was competent substantial evidence to support the hearing officer's findings that the underlying violations had occurred. We also conclude there was sufficient evidence of flagrant, persistent and recurring violations from which the hearing officer could infer that the licensees failed to supervise the premises in a reasonably diligent manner and thus, were culpable."
Significant and material undisturbed findings of fact contained in the underlying Recommended Order of that case were that "Respondents did keep a public nuisance on the licensed premises by maintaining it as a place visited by persons for the unlawful use or sale of a controlled substance [marijuana], in violation of Section 823.10, F.S." The hearing officer specifically found that although Petitioner might not have been on the premises of the "Palatka Blue Diamond" when drug sales and gambling were going on, he surely knew about these activities from conversations with his wife who tended bar there.
When Petitioner submitted the initial license application for the "101 Club" on September 21, 1987, Sgt. Homer Scroggin, DABT Supervisor of the Gainesville Sub-District, already knew the Petitioner and had knowledge about the revocation proceedings against Petitioner's prior license for the "Palatka Blue Diamond". He led Petitioner to believe that the prior revocation would not impede the new license application for the "101 Club", but he made no specific promise or guarantee of licensure.
On December 1, 1987, seventy-one days after receiving Petitioner's application, DABT issued a written request to Petitioner for information concerning an alleged arrest in North Carolina. Subsequently, on December 16, 1987, DABT issued Petitioner a Notice of Intent to Disapprove his application for permanent licensure for failure to furnish information on the alleged North Carolina arrest.
On December 23, 1987, ninety-three days after the license application and four days after the first temporary license had expired, but prior to the agency's completing its background checks, DABT's Gainesville office issued Petitioner the second of five temporary licenses. Also on that day, Petitioner signed a waiver, reading:
I, Johnnie Lee Simmons, do hereby wave [sic) the 90 day period for my beverage license
Sgt. Scroggin testified that if the Petitioner had not signed the foregoing waiver, he, Sgt. Scroggin, would have denied the Petitioner's application for a permanent 2-COP license at that point in time, December 23, 1987, because DABT cannot grant a license without receiving information concerning fingerprints and that information had not arrived. While it is clear that Sgt. Scroggin, told this to Petitioner, thereby inducing him to sign the waiver, the statement itself is erroneous and not credible because the thrust of the entire remainder of Sgt. Scroggin's testimony, the greater weight of the documentary evidence, and much of the testimony of DABT Licensing Bureau Chief, Barry Schoenfeld, is that Sgt. Scroggin's recommendations from the District are not binding on the Bureau of Licensing, located in Tallahassee, that the ultimate decision to grant or deny an application is made by Schoenfeld unless a prior revocation is involved, and that in unusual circumstances, such as appearance of a prior revocation history, an entire committee review procedure, culminating in the signature of the Director of DABT, Leonard Ivey's signature, was in place, and that in each alternative situation, Sgt. Scroggin was only the first recommender.1/ Moreover, the specific terms of the December 16, 1987 Notice of Intent to Disapprove is contrary to Sgt. Scroggin's December 23, 1987 statement to the Petitioner/applicant. That document provided, in pertinent part:
The purpose of this letter is to notify
you of our intention to recommend disapproval of your application for a license as referenced above. We are giving you ten (10) days in which to correct the deficiencies or supply additional documentation to correct the reason(s) for the recommended disapproval as indicated on the reverse of this letter.
The response must be received or
postmarked no later than ten (10) days from
the date of this letter. If you have not complied within this time period the application will be sent to the Bureau of Licensing and Records in Tallahassee to be disapproved. No amendments or supplements will be accepted after this ten (10) day period unless specifically requested by the Division. Any documentation submitted after this period will be returned.
XXX The application is deficient as indicated: 14 day letter was sent to applicant requesting disposition on case #FL0540000 Offense #4999, to date we have not heard from applicant as to his ability to clear up this matter. 14 day letter was dated on December 1, 1987.
Despite the agency's characterization of this December 16, 1987 document (R-4, page 2), as an "intent to disapprove/deny," it is clearly nothing more than a repeated untimely agency request for the same information already untimely requested on December 1 (R- 4, page 1; see Finding of Fact No. 6, supra.) It is an untimely request for information, and not a denial of the permanent application. It also is clearly misleading to the applicant concerning his rights with regard to time limits which had become effective by operation of law. It specifically represents that Petitioner had until December 25 to prevent denial of his application, when in fact, the 90-day statutory period starting with the initial application date would lapse on December 20. It is also noted that Schoenfeld and Scroggin agreed, with regard to a subsequent Notice of Intent to Disapprove, that such a notice does not constitute final agency action; therefore, it is clear that both these notices in December, 1987 could not be "final" either. For these reasons and for the reasons set forth in the following Conclusions of Law, Sgt. Scroggin's statement was an erroneous legal conclusion, which either by error or design misled the Petitioner. Sgt.
Scroggin also led Petitioner to believe that a backlog in license processing was the reason he needed the waiver signed.
Petitioner was subsequently issued three more temporary licenses on March 31, 1988, June 30, 1988, and September 27, 1988. All five temporary licenses clearly notified Petitioner that they expired 90 days from issuance and would expire if the permanent license application were disapproved. The December 23 license lapsed March 22, nine days before the issuance of the March
31 license. The March 31 license lapsed June 28, two days before the June 30 license was issued. All the temporary licenses were issued without fee and permitted Petitioner to continue to operate his bar/nightclub, the "101 Club", pending further license processing which included out of state arrest inquiries, FBI fingerprint processing, and further background checks.
Approximately January 22, 1988, the criminal background checks on all four members of Petitioner's family were completed and determined to be no impediment to licensure. On February 4, 1988, Sgt. Scroggin recommended that Tallahassee DABT approve the Petitioner's application and that it issue the requested permanent license. On or about May 18, 1988, Sgt. Scroggin received a memorandum from Mr. Schoenfeld questioning Sgt. Scroggin's February 4 favorable recommendation. Sgt. Scroggin then reconsidered and recommended that Petitioner's application should be disapproved for several reasons. At formal hearing, however, Sgt. Scroggin was unable to provide any evidence supportive of
the allegations/reasons contained in this disapproval recommendation. Rather, and contrariwise to those allegations, Sgt. Scroggin admitted that his Gainesville office had received no complaints of any kind relating to the "101 Club" during the 15 months it had operated on its five temporary licenses; that he had, subsequent to his disapproval recommendation, determined that only one police incident report involving the "101 Club" had ever been made; and that that single report had been made by a customer whose boyfriend had slapped her. The DABT witnesses concede that this incident report does not reflect badly in any way on any "101 Club" principal and would not preclude issuing the license.
On August 4, 1988, DABT sent Petitioner its "Amended Notice of Intent to Disapprove," naming Petitioner's prior "Palatka Blue Diamond" license revocation as the reason for disapproval. By the terms of that Amended Notice, and in response to it, Petitioner's attorney timely submitted further information, and Sgt. Scroggin, untimely, but by August 19, 1988, advised Tallahassee DABT in favor of licensure approval due to the results of his check of local police incident reports.
On September 27, 1988, the fifth temporary license was issued to Petitioner with the approval of Tallahassee DABT.
On December 1, 1988, Tallahassee DABT issued its final "Notice of Disapproval," citing the prior license revocation and Petitioner's and his father's lack of good moral character as the only reasons for the license denial. The record as a whole clearly shows that the only unfavorable evidence of moral character that DABT had before it with regard to this license application arose out of the prior license revocation 4-5 years before.
Petitioner/applicant, Johnnie Lee Simmons, is 40 years old. He has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States.
Willie Lee Simmons, Sr., Petitioner/applicant's 58 year old father and an interested party, also has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States.
Upon the testimony of Dorothy Carter, accountant- bookkeeper for, and long-time friend of, all the Simmons family members, the testimony of Sgt. Scroggin, and admissible hearsay statements of Palatka Chief of Police Hill and Assistant Chief of Police Rowe (P-12), it is found that as of the date of formal hearing, Petitioner and his father respectively have good reputations for honesty, fair dealing, and personal character in the Palatka, Putnam County community. Both men are reputable and responsible business persons, each
employing between 25 and 40 migrant laborers. They pay their taxes. They have established credit. Further, upon the record as a whole, it is found that the Simmons father and son, between them, support three Palatka city-league baseball teams and are also engaged in other activities which benefit the community with an emphasis on youth. Also, Johnnie Lee Simmons, the applicant/Petitioner, has long been active in the local chapter of the NAACP and served two years as its President.
In so finding, the undersigned has assessed Mrs. Carter's credibility in several respects. First, it is recognized that as a social friend and business associate of all the Simmons family members, her view of them is favorably weighted by that association. Second, her view of the prior license revocation is also affected in their favor by their business and social association. Mrs. Carter has, in her own mind at least, minimized the importance of the prior license revocation by her belief that all wrongdoing in the "Palatka Blue Diamond" occurred while the Simmons men were out-of-town, for the purpose of transporting laborers to northern farms and while they were not physically within the licensed premises providing active management. This belief of Mrs. Carter is directly contrary to the responsibilities imposed by statute, rule, and case law upon beverage licensees who are required to know and to monitor affairs on their premises, but it is accurate in terms of the factual absence of applicant/Petitioner's absence from the "Palatka Blue Diamond" at times crucial to the prior revocation. However, third, and most importantly, it is found that Mrs. Carter was testifying concerning the status of the Simmons mens' affairs, conduct, and character in 1989, 6-7 years after the prior revocation events, 4-5 years after actual revocation, and at a time when other evidence confirms that Petitioner and his father have centralized all their business and community activities within the Palatka community. The moral character of the principals approximately 5 years after the prior revocation, at the time of the new application and the de novo formal hearing, is material and persuasive. Mrs. Carter, as a long-time local resident, has had opportunity and reason to know the current situation, and her testimony that the Simmons father's and son's character (based on her own experience and opinion) is now "good" is credible and unrefuted. Moreover, her conclusion with regard to their good character and reputation (arising from word of mouth in the community) is reinforced by Sgt. Scroggin's investigation and ultimate favorable recommendation, which in turn was based on the customary predicate for "reputation in the community". Mrs. Carter's evidence of current good character is direct and unrefuted. Sgt. Scroggins' testimony is in the nature of reputation testimony but is bolstered by his personal examination of the police incident reports and corroborates the statements/opinions of Palatka's Chief and Assistant Chief of Police, which, though hearsay, are admissible pursuant to Section 120.58 F.S. Sgt. Scroggins' and the officers' opinions are consistent as to reputation with Mrs. Carter's unrefuted opinion as to character.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1), F.S.
Petitioner bears the burden of proof of entitlement to licensure.
See, Astral Liquors, Inc. v. Department of Business Regulation, 432 So.2d 93 (Fla. 3d DCA 1983); Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).
The statutory authority relevant and material to the present cause are as follows:
Section 120.60(2)F.S.--When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch... Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30- day period... Every application for licensure shall be approved or denied within
90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or admissions unless a shorter period of time is provided by law ... Any application for a license which is not approved or denied within the 90-day or shorten time period ... shall be deemed approved. -Emphasis supplied.)
561.15.--
The division may suspend or revoke the license under the Beverage Law of, or
refuse to issue a license under the Beverage Law to:
Any person, firm, or corporation the license of which under the Beverage Law has been revoked or has been abandoned after written notice that revocation or suspension proceedings had been or would be brought against the license; [Emphasis supplied.]
561.181 Temporary initial licenses.-- (1)(a) When any person has filed a
properly completed application which does not on its face disclose any reason for denying an alcoholic beverage license, the division shall issue to such person a temporary initial license of the same type and series for which the application has been submitted, to be valid for all purposes under the Beverage Law, except as provided in paragraph (b). [Emphasis supplied.]
(2) The temporary initial license shall be good for a period of up to 90 days as specified by the division, which period may
be extended in the discretion of the division for up to an additional 90 days upon a finding by the division that such extended period is necessary to complete the license investigation process. The division shall have until the end of any such 90-day period authorized by this section to grant or deny the license being applied for, anything to the contrary in s. 120.60 notwithstanding.
The operative dates and events in this cause compel a recommendation that the license be issued.
Petitioner filed his application with the agency on September 21, 1987. At the same time, personnel who were already familiar with the Petitioner and with the circumstances of his prior license revocation reviewed the application, which candidly disclosed the prior revocation. DABT then issued an initial temporary license, which it was only authorized to do if the application did "not on its face disclose any reason for denying an alcoholic beverage license." See, Section 561.181 (1)(a) F.S.
Note also that Section 561.15(3)(a), F.S. makes a prior revocation discretionary (not mandatory) grounds for denial of the application.
Respondent DABT knew immediately of the prior license revocation with regard to Petitioner and his father, which was the ultimate reason, together with lack of good moral character arising out of the same revocation, which it gave for ultimate denial fifteen months later.
The 90 days specified for agency review and investigation of the application under Section 120.60(2), F.S., and the 90 day term of the initial temporary license expired on December 20 and 19, 1987, respectively. Since the application had not been timely denied by December 20, the permanent license must be considered "approved" on that date by operation of law, pursuant to Section 120.60(2), F.S.2/ The foregoing conclusion has considered but has rejected DABT's alternative arguments which are discussed, infra.
On December 23, 1987, three days after the license must have been deemed "approved" by operation of law, Petitioner was persuaded to sign a waiver of the 90 days and was simultaneously issued a second 90-day temporary license. DABT assigns no significance to the four day lapse between the first two temporary licenses (three day lapse as to Section 120.60(2) F.S.) and asserts that by executing this after-the-fact waiver, Petitioner waived forever his right to a license by operation of law even under the 180-day timeliness provisions of Section 561.181(2), F.S. Inherent in this argument, is the agency's concept that Petitioner's execution of the December 23, 1987 waiver somehow authorized DABT to issue sequential 90 day temporary licenses indefinitely, some with significant lapses in- between, and further authorized the agency to take however long it wanted in order to process Petitioner's application. Neither concept is within the clear meaning of Section 561.181(2),
F.S. and each concept is contrary to the obvious intent of both Sections 120.60(2) and 561.181(2) F.S. See, especially, the emphasized portions of Section 561.181(2) F.S., supra., at Conclusion of Law No. 3. Likewise, neither concept is either reasonable or just within the traditional law of waiver.
In cases of dispute, waivers are to be strictly construed against the party asserting them or for whose benefit they are executed. Therefore, the
waiver herein must be construed in the light least favorable to the Respondent DABT. To be valid, the party against whom a waiver is to be enforced must have known all the conditions of the waiver in the first place. Also, the "knowingly" element is particularly important when the positions and expertise of the parties at the time of the waiver is so diseparate as it is here. It has been rightly observed that,
"One of the essentials of estoppel [by waiver) is that the party sought to be estopped must have had knowledge of his rights and the facts out of which the estoppel is alleged to have arisen, or at least the means of knowing them. It would be the grossest injustice to construe ignorance or misapprehension of the true nature or existence of a right into a forfeiture of the power to enforce it. Without such requirement of knowledge the most serious frauds might be perpetrated under a rule established for their prevention, and men without their knowledge or consent might be stripped of their estates." [Bracketed material added].3/
Petitioner herein may have known that he was waiving "the 90 days period" [language dictated to him by DABT), but he was led to believe his waiver had an entirely different legal effect and significance from that which it actually had.
A valid waiver presumes a tradeoff of one party's right for that of another. A valid waiver must have some quid pro quo. There was no equity in this tradeoff. Petitioner did not know his permanent license had, in effect, already been issued. Clearly, if he had known, he would never have waived a "sure thing" in the nature of a permanent license in exchange for a discretionary 90-day temporary license. By the immediately foregoing conclusion, the undersigned specifically rejects DABT's corollary argument that its untimely issuance of the second temporary license was for Petitioner's benefit so that he could continue to operate the "101 Club" through the lucrative 1987- 1988 Christmas-New Year's season and so that Petitioner could also be eligible for the next three sequential temporary licenses. Also rejected is the assertion that Sgt. Scroggin had the authority and jurisdiction to summarily and unilaterally deny Petitioner's permanent application then and there in Gainesville, Florida, on December 23, 1987 if the Petitioner had not executed the waiver. At that point in time, no one in the agency any longer had authority to deny the application; it had already been approved on December 20, 1987 by operation of law.
Respondent's reliance on the Recommended Order in Martin County Liquors, Inc. v. Department of Business Regulation, DABT, DOAH Case No. 88-1185,
10 FALR 6629 is misplaced. That case is not on point; relies on a rule since overturned; and is presently on appeal so far as the undersigned has been able to determine. The language cited therein is from Sarasota County Liquors, Inc.,
v. DABT, DOAH Case No. 86-1719 (RO entered October 13, 1986), and that case likewise is also distinguishable from the one at bar, because Petitioner herein had not requested an extension of time to complete any application, because of
the several days' lapse in this case, and because Sarasota County interprets another statutory section.
DABT also argues that even absent the December 23, 1987 waiver, Section 561.181(2) F.S. supersedes Section 120.60(2) F.S. so as to have permitted DABT 180 days from the September 21, 1987 initial license application date in which to complete its inquiries and investigation necessary for approval or rejection. This argument would have merit had there not been a four day lapse/hiatus between the initial and second temporary licenses, for such a result was obviously the clear intent of Section 561.181(2), F.S. However, there is absolutely no language within that statutory provision or anywhere else in Chapter 561 F.S. which permits a temporary license to have some type of retroactive effect or which permits the two temporary licenses to be issued other than consecutively for a total of 180 days. Section 561.181(2) F.S. clearly only authorizes "up to an additional 90 days." Any other interpretation would permit the agency to delay indefinitely after the first 90 days had run before it issued a second 90 day temporary license. DABT's "stacking" concept is therefore outside the clear language/meaning of both statutes.
DABT's position that the in para materia effect of the two statutes carries over the three/four day lapse is also untenable in light of the fact that before granting the second temporary license under Section 561.181(2) F.S., DABT sought and obtained Petitioner's waiver of the 90-days pursuant to Section 120.60(2) F.S. This procedure can only be viewed as an after- the-fact agency attempt to hedge all bets and presumably was done because the agency thought it had something to gain by it and in recognition that the 90 days had already run, prohibiting denial.
Furthermore, DABT presented no clear evidence that, in compliance with the clear language of Section 561.181(2) F.S. it made an express finding that "such extended period is necessary to complete the license investigation process."4/
In Section 561.181(2), F.S., the Legislature has addressed the peculiar and significant time problems DABT faces in fulfilling its mandate to screen license applicants, but in so doing it has wisely provided reasonable parameters within which the 90 days for investigation and application processing permitted under Section 120.60(2) F.S. may be extended to 180 days by Section 561.181(2) F.S. Nothing cited by DABT suggests the statutory drafters contemplated DABT letting an initial license lapse by an unspecified amount of time and issuing sequential temporary licenses (two of which also lapsed) while it completed its processing leisurely over a period of 15 months. The clear wording of Section 561.181(2) F.S. contemplates that only two consecutive temporary licenses (not several sequential temporary licenses) may be granted for a total of 180 days, and then only on a case by case basis wherein it has been shown (1) that a finding of necessity for additional time has been made and
(2) that no reason for rejection appears upon the fact of the application. See, Sections 561.15(3)(a) and 561.181(1)(a), F.S.
Even assuming, arguendo, that the December 19-23, 1987 lapse did not result in a Section 120.60(2) F.S. automatic license approval and that the Section 561.181(2) F.S. extra 90 day period for a second, third, fourth, and fifth temporary license could be reactivated over and over again with or without further lapses, what occurred in this situation was clearly unjust. DABT had all its investigation completed by January 22, 1988 when the criminal record check was complete and shown to be "clean". DABT still gave the applicant/Petitioner no answer and issued three more 90-day temporary licenses.
Some of these temporary licenses were issued after lapses, some were issued even though no requests for more information had been made, and at least one license was issued after DABT had determined to deny the application on the basis of the prior license revocation when all other "leads" to possible reasons to bar Petitioner's license had been exhausted. DABT eventually relied only on what the Petitioner had told the agency 15 months before about his prior revocation as its grounds to deny the application. DABT's belated concerns about good moral character are merely further afterthoughts and only arise out of the prior revocation. Such a position is clearly contrary to Section 561.181(1)(a), F.S.
Approximately seven years have passed since the incidents giving rise to the prior revocation. The Simmons men's current reputations and character are exemplary. Current reputation is controlling. See, Wash & Dry Vending v. State Department of Business Regulation, DABT, 429 So.2d 790 (Fla. 3d DCA 1983), and McDonald v. Department of Banking and Finance, 346 So.2d 769 (Fla. 1st DCA 1977). Furthermore, there is evidence that due to his centralizing his other business interests locally and due to what he has learned in the course of his prior revocation experience, Petitioner will exercise appropriate "hands on" supervision if he receives the new license.
This case is strikingly similar to that of Wash & Dry Vending v. State Department of Business Regulation, DABT, supra. That the Petitioner and his father had previously had a beverage license revoked for implied knowledge of wrong-doing does not, standing alone and in light of the other testimony, support a finding that they are not now of good moral character.
Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages, issue a Final Order confirming that the permanent 2 COP beverage license was issued to Petitioner pursuant to operation of law on December 20, 1987.
DONE and ENTERED this 5th day of September 1989, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
ENDNOTES
1/ The only evidence contrary to this construction is that Sgt. Scroggin asserted that he first forwarded this application file to Tallahassee DABT in February, 1988. In light of all the other evidence of delay and missed
deadlines by the agency, this information does not translate into absolute authority in Sgt. Scroggin to deny an application up until he forwards the file to his superiors, especially since he could have forwarded a recommendation against approval the same as a recommendation for approval, as in fact he did. See, Findings of Fact, infra.
2/ DABT's December 1, 1987 written request for further information was issued considerably beyond the 30-day time period provided for such requests in Section 120.60(2), F.S. Because this agency request for further information was untimely, the December 16, 1987 DABT Notice of Intent to Disapprove constituted only a renewed untimely request for additional information (see Finding of Fact 8). For the foregoing reason and for the several reasons given in the findings of fact supra., the December 16, 1987 notice cannot be construed as a timely denial of the application. Even if it could be construed as a timely denial of application, it would have been a groundless denial because the agency's initial request (December 1, 1987) for further information had been untimely and DABT therefore could not deny the application due to the absence of the information it had untimely requested.
3/ Quotation appears at 22 Fla Jur 2d 5.35 "Estoppel and Waiver". Also see, Garfinkle v. Weil, 672 F.2d 1340 (11th Cir. 1982); J.S. Michael Co. v.
Rayonier, Inc., 212 So.2d 824 (Fla. 1st DCA 1968); National Bank v. Williams, (1896), 38 Fla. 305, 20 So. 931; Neal v. Gregory, (1882), 19 Fla. 356.
4/ Although the evidence clearly shows that as of December 23, 1987, DABT still needed more time to get back FBI fingerprint reports and other material, the express language employed in Section 561.181 (2) F.S. [" a finding") presumes at least something a little more formal than a chat between Sgt. Scroggin and the Petitioner in the District office.
APPENDIX to Recommended Order in Case No. 88-6465
The following constitute specific rulings pursuant to Section 120.59(2)
F.S. upon the parties' respective Proposed Findings of Fact (PFOF).
Petitioner's Proposed Findings of Fact
Except to the degree they are unnecessary, subordinate, or cumulative to the facts as found or are mere legal argument, PFOF 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14 and are accepted. However, only what is material and necessary has been included within the Recommended Order (RO).
Except as not proved, PFOF 6 is accepted.
PFOF 11 and 15, are rejected as subordinate and unnecessary to the facts as found.
PFOF 16 and 17 are rejected as immaterial. Respondent's Proposed Findings of Fact
Except to the degree they are unnecessary, subordinate, or cumulative to the facts as found or are mere legal argument, PFOF 1, 2, 3, 4, 11, 12, 13, 14, 15, 18, 19, 20, and are accepted. However, only what is material and necessary have been included within the Recommended Order.
PFOF 5, 17, are rejected as unnecessary, subordinate and/or cumulative to the facts as found.
PFOF 6 is rejected as mere recitation of testimony. This issue is resolved by finding of fact within the Recommended Order.
PFOF 7: Sentences 1 and 4 are accepted. Sentence 2 is unnecessary. Sentence 3 is out of context and not proven as stated. This issue is discussed at length in the Findings of Fact and Conclusions of the Recommended Order.
PFOF 8: Sentences 1 and 2 are accepted. Sentence 3 is subordinate to the facts as found.
PFOF 9: Sentences 1 and 2 are accepted. Sentence 3 is rejected as mere recital of testimony and not proved as stated.
PFOF 10, 16 are rejected as legal argument or a conclusion, not proposed findings of fact. To the degree they may constitute PFOF, they are subordinate and unnecessary to the facts as found.
PFOF 21 is rejected in part as not proved and in part as mere legal argument as to the witness' credibility and the predicate necessary for "character testimony", both of which are resolved within the RO.
COPIES FURNISHED:
Elizabeth C. Masters, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
J. Clark Hamilton, Jr., Esquire Post Office Box 5712 Jacksonville, Florida 32247
Leonard Ivey, Director
Division of Alcoholic Beverages and Tobacco
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
| Issue Date | Proceedings |
|---|---|
| Sep. 05, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 05, 1989 | Recommended Order | Recommendation in favor of granting 2-Cop license despite prior bad history; Case discusses waiver/estoppel, temporary licenses, and the 90-day default. |
