STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARVEY ROY BERNSTEIN & )

CHRISTINE H. BERNSTEIN, )

)

Petitioners, )

)

vs. ) Case No. 89-3903

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on October 4, 1989, in Fort Lauderdale, Florida, before Joyous D. Parrish, a Hearing Officer with the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For the Petitioners: Harvey R. Bernstein, pro se

5029 Sandy Shore Avenue Sarasota, Florida 34242

For the Department: Thomas A. Klein

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioners are entitled to apply for a new quota liquor license.

PRELIMINARY STATEMENT

This case began on June 21, 1989, when the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department), gave notice to Petitioners, Harvey Roy Bernstein and Christine H. Bernstein, of the disapproval of their entitlement to apply for a new quota liquor license in Broward County. The basis for the disapproval was alleged to be the Petitioners' failure to timely file a full and complete application within the allowed time. The Petitioners contested that determination and, on July 6, 1989, wrote to the Department and requested an administrative review of the matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on July 21, 1989.

At the hearing, Petitioner, Harvey Roy Bernstein, acted on behalf of himself and his wife, Christine H. Bernstein, who was not present. The following witnesses testified on behalf of the Petitioners: Patricia Cohen, an employee in the Broward beverage office; Jerome L. Bernstein, Petitioner's brother; and Harvey Roy Bernstein. The Department presented the testimony of the following witnesses: Mickey Edmunds, supervisor with the Department's licensing section; Ruth Branch, a Department employee in the Sarasota beverage office; Linda Angell, a Department employee in the Sarasota branch office; and Russell R. Smith, district supervisor in the Fort Lauderdale beverage office. Joint Exhibit 1 was received into evidence as were Petitioners' exhibits 1 through 3. The Department requested that official recognition be taken of Hillsborough County Liquors, Inc., d/b/a Hillsborough County Liquors v.

Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, DOAH case No. 87-1679 (August 7, 1987)

After the hearing, the Department filed a proposed recommended order.

Specific rulings on the proposed findings of fact are included in the attached appendix. The Petitioners filed written argument which has also been considered in the preparation of this order.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. Prior to March 22, 1989, the Department notified the Petitioners that they had been selected in the drawing for a new quota beverage license for Broward County. Petitioners were advised that, in order to become eligible to receive the new quota license, they were required to file a complete application for the issuance of the license within 45 days. The deadline for such filing was calculated to be May 8, 1989. This date was not disputed.

   
   

2. On or about April 6, 1989, Petitioner, Harvey R. Bernstein, and his brother, Jerome, went to the Fort Lauderdale office of the beverage division. The purpose of the visit was to secure information relative to the application Petitioners intended to file. While at the office, Petitioner spoke with Patricia Cohen, an employee at that location, who attempted to assist Mr. Bernstein by providing various forms to him. According to Mr. Bernstein, Ms. Cohen advised him that he would not have to disclose a business location on the application if he were to put the license immediately into escrow. Ms. Cohen did not recall that conversation but was able to confirm that she did meet with Mr. Bernstein to provide certain forms.

   
   

3. Subsequently, on or about April 20, 1989, Petitioner went to the Sarasota beverage office. On that visit Mr. Bernstein spoke to Ruth Branch and Linda Angell. Both of these employees advised Mr. Bernstein that he would be required to disclose a business location on the application and that the application would have to be acted upon with the issuance of the license before it could be placed into escrow. Because Mr. Bernstein disputed that advice (based upon his recollection of the meeting with Ms. Cohen), the Sarasota branch contacted Tallahassee which, in turn, called the Fort Lauderdale beverage office. In response to the inquiry, Russell Smith telephoned the Sarasota office while Mr. Bernstein was still there. Captain Smith advised Mr. Bernstein that the license could not be placed in escrow in the manner he proposed, that a

   business location would have to be included in the application, that the fee would have to be paid, and that, once issued, then, at that time, the license could go into escrow.

   
   

4. Petitioners' application was filed on May 8, 1989. The application did not contain a business address/location for the proposed license; instead, under the heading "Current Business Name:" Petitioners answered "none." Under the heading "Current Location Address:" Petitioners answered "escrow." All questions related to the business address were answered "escrow." All sections of the application requesting information regarding zoning, health code compliance, and right of occupancy to the business location were left blank. The front page of the application contained a checklist which indicated all of the pertinent address/location information was required to be complete.

   
   

5. Petitioners were advised both by the verbal instructions given by Captain Smith and by the terms of the application itself that a business location together with the information related to the location were required with the submission of the application. The weight of the persuasive evidence established that, for whatever reason, Petitioners ignored the instructions. Their application as submitted on May 8, 1989, was incomplete.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 561.19(2), Florida Statutes provides, in pertinent part:

   
   

   . . .The applicant shall file an application for the premises on forms provided by the division within 45 days after the license has been granted, and the division shall investigate the premises as provided s. 561.18. Failure to file an application for the premises within the time provided or failure of the applicant to maintain qualification during the period of time after the grant and before issuance shall cause the grant of the license to become void, the application shall be denied, and the next applicant with

   priority shall be considered for issuance of the license.

   
   

8. Section 561.17(2), Florida Statutes requires all applications for beverage licenses to submit documentation verifying that the premises to be licensed comply with the Department of Health and Rehabilitative Services guidelines or county health criteria regarding sanitation.

   
   

9. Rule 7A-2.017(6)(c), Florida Administrative Code specifies that the failure to file a full and complete application within the allotted time causes the grant to become void. Once the grant becomes void the next applicant with priority is considered for the issuance of the license.

   
   

10. Based upon the foregoing statutory and rule guidelines, Petitioners failed to timely file a full and complete application for the beverage license. Accordingly, they are not entitled to the approval of the application unless the

    Department is somehow estopped, as a matter of law, from disapproving the application. The weight of the persuasive evidence established that Mr. Bernstein was advised, in advance of the application deadline, that he would be required to provide a business location. This he failed to do. Regardless of whether Ms. Cohen gave him incorrect advice (and it has not been found that she did), the record clearly established that Mr. Bernstein was made aware of the requirements in unequivocal terms. He simply chose to pursue an erroneous path. That he has lost an opportunity for the beverage license is not the doing of the Department; rather, it results from his own resistance to comply with the plain language of the application.

    
    

11. Petitioners have the burden of establishing their entitlement to the license. They have failed to meet that burden. Consequently, the application should be denied.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the request filed by the Petitioners Harvey Roy Bernstein

and Christina H. Bernstein to approve the application for a new quota beverage license be denied.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1500

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3903

Rulings On The Proposed Findings of Fact Submitted By The Department:

1. Paragraph 1 is accepted.

2. Paragraph 2 is rejected as irrelevant or contrary to the weight of the evidence.

3. Paragraphs 3, 4, 5 and 6 are accepted.

4. Paragraph 7 is rejected as argument but see finding reached in paragraph 2.

5. Paragraphs 8 through 11 are accepted.

6. Paragraph 12 is rejected as irrelevant.

7. Paragraphs 13 and 14 are accepted.

Rulings On The Proposed Findings of Fact Submitted By The Petitioners:

None submitted. Petitioners submitted a handwritten summary of the argument which has been reviewed prior to the submission of this Recommended Order. To the extent that Petitioners rely on the belief that they were

entitled to submit the application without a business location and have represented that as fact, same is rejected as contrary to the weight of credible evidence and contrary to law.

COPIES FURNISHED:

Thomas A. Klein

Assistant General Counsel Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Harvey R. Bernstein Christine H. Bernstein 5029 Sandy Shore Avenue Sarasota, Florida 34242

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Joseph A. Sole General Counsel

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

Docket for Case No: 89-003903

Orders for Case No: 89-003903