STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURIE M. BRANDT, ) d/b/a ALCOHOL OUTLET, )

)

Petitioner, )

vs. ) CASE NO. 92-6050

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

AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on January 29, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Harold F. X. Purnell

Rutledge, Ecenia, Underwood & Purnell, P.A.

Barnett Bank Building, Suite 500 Post Office Box 551

Tallahassee, Florida 32302-0551

For Respondent: John F. Gilroy

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 Petitioner is entitled to a refund of all or any part of a transfer fee that was paid on or about December 5, 1991.

PRELIMINARY STATEMENT

This case began on August 17, 1992, when the Petitioner, through its agent, requested an administrative hearing to resolve the issue of whether or not a refund is due for alcoholic beverage license #58-03004. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on October 5, 1992.

At the hearing, the Petitioner's exhibits numbered 1 through 7 were admitted into evidence. Barry Schoenfeld, bureau chief of licensing and

records, testified. A transcript of the proceedings has not been filed. The parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

1. The Petitioner, Laurie M. Brandt, d/b/a Alcohol Outlet, held a liquor license no. 58-03004, which was obtained as a quota license and issued to her on June 29, 1987.

   
   

2. The subject license was to be used in the designated county of its origin, i.e., Orange County, Florida.

   
   

3. Florida law allows for the transfer of quota liquor licenses based upon certain statutory guidelines. Such guidelines require the payment of a transfer fee which is calculated and assessed based upon the average annual value of gross sales of alcoholic beverages for the three years immediately preceding the transfer.

   
   

4. On or about August 6, 1991, an application for transfer of license no. 58-03004 was filed with the Division of Alcoholic Beverages and Tobacco. The license owner, Petitioner, was to transfer license no. 58-03004 to Joel Wagner (Wagner). Two previous applications to transfer the license were withdrawn prior to issuance of the transfer.

   
   

5. The Petitioner, who was transferring the license to Wagner, had engaged in no sales activity under license no. 58-03004 for the three years immediately preceding the Wagner application for transfer.

   
   

6. Ultimately, the Wagner transfer was completed and license no. 58-03004 was transferred from Petitioner to the applicant on December 13, 1991.

   
   

7. Until the license transfer was completed to Wagner, Petitioner was the owner of record for the subject license.

   
   

8. During the times framed by the two previous applications for transfer, entities other than Petitioner were allowed, on a temporary basis pending the outcome of the transfer requests, to do business under license no. 58-03004. The right to sell alcoholic beverages of those transfer applicants derived from the original license but were factually in no way connected to the original licensee.

   
   

9. The previous applications for transfer were withdrawn before agency action was taken. The volume of alcoholic beverage sales for these businesses was approximately $164,000.

   
   

10. Pursuant to a temporary license, until the transfer was finally completed and the license was formally transferred, Wagner's use license no. 58- 03004 generated a total of $74,119 in alcoholic beverage sales.

    
    

11. The Division of Alcoholic Beverages and Tobacco (DABT) interprets license history for purposes of calculating a transfer fee based upon the license owner's use of the license, not the use enjoyed by an applicant for transfer on a temporary license bearing the same number.

12. Further, the DABT computes the amount of the transfer fee as of the date of the application for transfer not the actual transfer date as the application is to set forth the sales history relied upon in computing the amount to be charged.

    
    

13. In this case, the DABT imposed the maximum fee ($5,000) upon the transfer of the license from Petitioner to Wagner.

    
    

14. The DABT considers licenses held in escrow to be "inactive." The owner of the inactive, escrowed license may not engage in sales activity. Petitioner did not, by virtue of the escrow status or the efforts to transfer the license, engage in sales activity and was, therefore, inactive for the three years preceding the transfer to Wagner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 561.32(3)(a), Florida Statutes, provides in part:

    
    

    Before the issuance of any transfer of license herein provided, the transferee shall pay a transfer fee of 10 percent of the annual license tax to the division, except for those licenses issued pursuant to s.

    565.02(1) and subject to the limitation imposed in s. 561.20(1), for which the transfer fee shall be assessed on the average annual value of gross sales of alcoholic beverages for the 3 years immediately preceding transfer and levied at the rate of

    4 mills, except that such transfer fee shall not exceed $5,000; in lieu of the 4-mill assessment, the transferor may elect to pay

    $5,000. Further, the maximum fee shall be applied with respect to any such license which has been inactive for the 3-year period. Records establishing the value of such gross sales shall accompany the application for transfer of the license, and falsification of such records shall be punishable as provided in s. 562.45. (emphasis added)

    
    

17. Petitioner herein raises two arguments regarding the foregoing statute and the computation of the transfer fee. First, that DABT must consider the sales activity of the two transfer applicants who operated under temporary licenses bearing the same number; and second, that the entire volume of sales, including sales by Wagner under his temporary license, must be considered in computing the amount owed for transfer.

    
    

18. An agency's interpretation of the statutes governing its operation must be given great weight. Further, it is well-settled that agencies have broad discretion to cons true governing statutes and that such construction is persuasive unless clearly erroneous. Department of Business Regulation,

    Division of Alcoholic Beverages and Tobacco v. Martin County Liquors, Inc., 574 So.2d 170 (Fla. 1st DCA 1991).

    
    

19. When reviewed by that standard, the agency (DABT) has logically and correctly computed the transfer fee based upon the undisputed fact that the licensee, the transferor, did not engage in sales activity for the three years preceding the transfer application.

    
    

20. Rule 7A-5.010(2)(b), Florida Administrative Code, provides, in pertinent part:

    
    

    An applicant for a transfer of a quota liquor license shall provide records of gross sales for the past 3 years or for the period of time current licensee has held license in order that the division may compute the transfer fee.

    
    

21. Based upon the foregoing, the three year history for the licensee, Petitioner, would necessarily date from the time the application for transfer is filed, and would include only the transferor's sales history. Accordingly, the transfer fee was correctly computed and assessed in the amount of $5,000.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order denying Petitioner's request for a refund as the transfer fee was correctly computed.

DONE AND RECOMMENDED this 8th day of April, 1993, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 8th day of April, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6050

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1, 4, 6, 7, 9, 11, 12, and 13 are accepted.

2. Paragraphs 2, 3, and 5 are rejected as unnecessary, or a discussion of law not supported by reference to the record of fact.

3. With regard to paragraph 8, it is accepted that a quota license bears from its initial issuance throughout its existence but one number. That number is maintained only for convenience sake. The right to hold the license remains with the licensee or transferor until the transfer is completed. The temporary license is merely a convenience for the transferee not a benefit to the transferor. To the extent that paragraph 8 may suggest otherwise it is rejected as contrary to the weight of the record. Otherwise, the paragraph is rejected as unnecessary to the resolution of the issues of this case.

4. Paragraph 10 is rejected as contrary to the weight of the evidence.

5. Paragraphs 14, 15 and 16 are rejected as contrary to the weight of the evidence or argument.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 18, and 21 are accepted.

2. Paragraphs 19 and 20 are rejected as argument.

COPIES FURNISHED:

John F. Gilroy

Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Harold F. X. Purnell Rutledge, Ecenia, Underwood

& Purnell, P.A.

Barnett Bank Building, Suite 500 Post Office Box 551

Tallahassee, Florida 32302-0551

Richard W. Scully, Director Department of Business Regulation Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1000

Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-006050

Orders for Case No: 92-006050