STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case Nos. 96-4984

) 97-0708

MARY ANN BRINKLEY, d/b/a MRS. B'S ) RESTAURANT AND LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 12, 1998, in Stuart, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Mary Ann Brinkley, pro se

Post Office Box 765 Stuart, Florida 34995

STATEMENT OF THE ISSUES

As to DOAH Case No. 96-4984, whether Respondent committed the offenses alleged in the Administrative Action dated March 13, 1996, and the penalties, if any, that should be imposed.

As to DOAH Case No. 97-0708, whether Respondent committed the offenses alleged in the Administrative Action dated November 4, 1996, and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On December 29, 1995, Respondent applied for a license to sell alcoholic beverages at her business known as Mrs. B's Restaurant and Lounge. Respondent was issued a temporary license.

On March 13, 1996, Petitioner filed against Respondent an Administrative Action that contained one count. Respondent timely challenged the allegations set forth in the Administrative Action, the matter was referred to the Division of Administrative Hearings, where it was assigned DOAH Case No. 96-4984.

On November 4, 1996, Petitioner filed against Respondent an Administrative Action that contained two counts. Respondent timely challenged the allegations set forth in the Administrative Action, the matter was referred to the Division of Administrative Hearings, where it was assigned DOAH Case No. 97-0708.

Thereafter, the two cases were consolidated and set for hearing on March 21, 1998.

At the beginning of the formal hearing in this matter, Petitioner announced that because of the unavailability of witnesses, it would not be going forward with the allegations set forth in the Administrative Action dated March 13, 1996, and

offered no evidence as to the factual allegations pertaining to DOAH Case No. 96-4984.

Count I of DOAH Case No. 97-0708 alleged that Respondent's sworn personal questionnaire, that was completed as part of her application, contained false information in violation of Sections 559.791 and 561.29(1)(a), Florida Statutes. Count II of DOAH Case No. 97-0708 alleged that Respondent was ineligible for licensure because of her criminal history.

At the formal hearing, Petitioner presented the testimony of one witness and offered four exhibits, each of which was admitted into evidence. Respondent testified on her own behalf and offered one exhibit, which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On December 29, 1995, Respondent applied for a license authorizing the sale of beer and wine for consumption on the premises of her business known as Mrs. B's Restaurant and Lounge,

   which was located at 342 Martin Luther King, Jr., Boulevard, Stuart, Florida.

2. Thereafter a temporary license, numbered 53-01741, series 2-COP, was issued to Respondent.

3. The application executed by Respondent on December 29, 1995, contained a Personal Questionnaire that the applicant submitted under oath. The Personal Questionnaire required certain information about the individual applicant, including her criminal history.

4. Respondent answered in the affirmative to the question whether she had ever been arrested, and in the negative to the question whether she had ever been convicted of a crime.

5. As part of the application process, Respondent was fingerprinted so that the Florida Department of Law Enforcement could check her criminal record. Respondent was arrested on four separate occasions and was convicted of a crime on one occasion. On May 31, 1998, Respondent was arrested by the St. Lucie County Sheriff's office for failure to redeliver a hired vehicle. On September 16, 1988, Respondent was placed on probation for this offense, but adjudication of guilt was withheld. On January 29, 1989, Respondent was arrested by the Martin County Sheriff's Office for violation of probation. On January 4, 1992, Respondent was arrested by the St. Lucie County Sheriff's Office on a charge of robbery, a felony. On November 10, 1992, Respondent entered a plea of nolo contendre to a reduced charge

   of resisting a merchant, a first degree misdemeanor, and was subsequently sentenced. On March 20, 1992, Respondent was arrested by the St. Lucie County Sheriff's Office on charges of robbery and battery. These charges were subsequently dismissed.

6. Respondent's answers on her Personal Questionnaire failed to disclose the required particulars of her criminal history, including information as to the charges, the dates and places of the arrests, the arresting agencies, and the dispositions. Respondent failed to disclose that she had been convicted of a crime.

7. The uncontroverted evidence was that a permanent license was never issued by Petitioner to Respondent and that, prior to the formal hearing, Respondent's temporary license was revoked by Petitioner.

   CONCLUSIONS OF LAW

   
   

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

9. Petitioner has the burden of proving by clear and convincing evidence that it has grounds, as alleged in the Administrative Action dated November 4, 1996, to revoke the temporary license of the Respondent and to deny her permanent licensure. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

10. Section 559.791, Florida Statutes, provides, in pertinent part, as follows:

    Any license issued by the Department of Business and Professional Regulation which is issued or renewed in response to an application upon which the person signing under oath or affirmation has falsely sworn to a material statement . . . shall be subject to denial of the application or suspension or revocation of the license, and the person falsely swearing shall be subject to any other penalties provided by law.

11. Section 561.29(1)(a), Florida Statutes, provides, in pertinent part, as follows:

    1. The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of:

       1. Violation by the licensee . . . on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages or license requirements of special licenses issued under s. 561.20, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States.

          A conviction of the licensee or his or her or

          its agents, officers, servants, or employees in any criminal court of any violation as set forth in this paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

12. Petitioner's evidence as to Respondent's criminal history contained no information subsequent to the submission of

    the Personal Questionnaire on December 29, 1995. Respondent's criminal history contains no arrests or convictions for the type of violations set forth in Section 561.29(1)(a), Florida Statutes. Consequently, it is concluded that the provisions of Section 561.29(1)(a), Florida Statutes, do not justify Petitioner's denial of her application for licensure or the revocation of her temporary license.

13. Petitioner established by the requisite standard that Respondent's Personal Questionnaire contained false statements within the meaning of Section 559.791, Florida Statutes. The provisions of that section justified Petitioner's revocation of Respondent's temporary license and the denial of her application for a permanent license.

14. Whether Respondent is ineligible for licensure as alleged in Count II of DOAH Case No. 97-0708 was not addressed in Petitioner's Proposed Recommended Order. That issue is considered by the undersigned to be moot.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that, pursuant to Section 559.791, Florida Statutes, denies Respondent's application for permanent licensure and sustains the revocation of her temporary license. It is further recommended that DOAH Case No. 96-4984 be dismissed.

DONE AND ENTERED this 2nd day of June, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1998.

COPIES FURNISHED:

James D. Martin, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Mrs. Mary Ann Brinkley, pro se Mrs. B's Restaurant

Post Office Box 765 Stuart, Florida 34995

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004984

Orders for Case No: 96-004984