STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABC LIQUOR, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-0719

)

DEPARTMENT OF BUSINESS AND )

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 13, 1998, in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John F. Bennett, Esquire

Fishback, Dominick, Bennett, Stepter, Ardaman, Ahlers, and Bonus

170 East Washington Street Orlando, Florida 32802-2397

For Respondent: Thomas D. Winokur, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

Is Respondent Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, required

to accept Petitioner's alcoholic beverage license application, or

should the application be denied for the reasons set forth in the Division's Notice of Disapproval filed December 18, 1997?

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), denied Petitioner's alcoholic beverage license application based on Petitioner's failure to submit the application within the time permitted by statute. Petitioner was offered and granted a formal hearing on the disapproval.

At formal hearing, Petitioner presented the oral testimony of Tom Street of ABC Liquors. The Division presented the testimony of Division Licensing Specialist Carole Campbell and of Lawrence Calderon, Chief of Current Planning for the City of Gainesville, and had three exhibits admitted in evidence. The parties also stipulated to some findings of fact and conclusions of law in a pre-hearing stipulation, which has been utilized as appropriate in this Recommended Order.

No transcript was provided. Only Respondent timely filed a proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner ABC Liquors, Inc., is a Florida corporation which entered a drawing for a quota alcoholic beverage license in 1996.

2. Respondent is the agency responsible for issuing alcoholic beverage licenses and administering and enforcing the

   
   

   provisions of the Beverage Law, Chapters 561-568, Florida Statutes.

3. Petitioner entered a drawing for a new quota license in Alachua County. The drawing was held on October 13, 1996.

4. On October 10, 1997, the Division mailed a notice of selection to Petitioner, informing Petitioner that it had been selected for the new quota license. The notice specifically informed Petitioner twice that it had 45 days from the date of the letter to file an application for the license and twice listed the date on which the application was due, November 24, 1997. The notice also indicated that failure to timely file the application would be deemed a waiver of the right to apply for the new quota license.

5. Tom Street received the application from ABC Liquors' central office on November 18, 1997.

6. On Monday, November 24, 1997, Mr. Street went to the City of Gainesville Planning and Zoning office to receive the local zoning approval which is required on an alcoholic beverage application. Mr. Street was told by an unidentified person that the only person who could approve the alcoholic beverage application was Lawrence Calderon, Chief of Current Planning for the City of Gainesville, and that Mr. Calderon would be out of

   the office until Monday, December 1, 1997.

   
   

7. Contrary to the advice given by the unidentified city employee, Mr. Calderon was, in fact, in the office on

   November 24, 1997, but his availability was limited by several meetings that day. Mr. Calderon was not in the office on November 25, 1997, but he was in the office for all but three hours on November 26, 1997. He was out November 27 through November 30 for the Thanksgiving Day holiday. Nonetheless, there were two other persons in Mr. Calderon's office on November 24, that could have approved zoning on an alcoholic beverage application. The city's Code Enforcement Office also could have approved the zoning on November 24, 1997. Mr. Street did not know any of this.

8. Thursday, November 27, 1997, was Thanksgiving Day, and the city offices were closed on November 27, 28, 29, and 30, 1997.

9. If Petitioner had filed its application timely, but without the required zoning approval, the Division's Gainesville district office would have forwarded the application to the central licensing office in Tallahassee with a recommendation of disapproval. However, the district office recommendation is not final action; the final decision is made in Tallahassee.

10. By December 2, 1997, Petitioner had not yet filed an application with the Division for the issuance of the new quota license. No one on Petitioner's behalf contacted the Division's

    Gainesville district office before December 2, 1997, to discuss deadlines or problems receiving zoning approval. On December 2, 1997, the Division notified Petitioner of its intention to deny Petitioner's entitlement to apply for the new quota license, based on Petitioner's failure to file its application within 45 days of its selection (on or before November 24, 1997).

11. On December 18, 1997, the Division sent Petitioner its final notice of disapproval denying Petitioner's entitlement to apply for the alcoholic beverage license.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

13. Petitioner has the duty to go forward and the burden to prove its entitlement to an alcoholic beverage license by a preponderance of the evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 196).

14. Licenses issued under Section 565.02(1)(a)-(f), Florida Statutes, permit the sale of beer, wine, and liquor at retail.

15. Such licenses are "quota" licenses, and issuance of new quota licenses are subject to limitations based on the population of the county in which they are issued, in accordance with Section 561.20(1), Florida Statutes.

16. When beverage licenses become available by reason of an increase in population of a county, the Division provides a

    drawing to determine which applicants will be considered for the issuance of licenses, in accordance with Section 561.19(2), Florida Statutes.

17. After a drawing is held, a successful applicant has 45 days from the date the Division mails the notice of selection in

    
    

    which to file an application for the issuance of the license, in accordance with Section 561.19(2)(c), Florida Statutes.

18. Petitioner's theory of the case is that because the City of Gainesville gave Mr. Street inaccurate information without any suggestion he inquire further so as to locate someone who could help him, the State licensing agency is estopped from denying the Petitioner's application. Petitioner has presented no "black letter" or case law to support this novel theory. Nor has any "excusable neglect" been demonstrated.

19. Moreover, Petitioner's claim that its delay was the sole fault of the City of Gainesville is both unsupported and irrelevant. The City's zoning office was not closed down for 45 days. It was clearly open for the period Mr. Street had the license application from November 18 through November 26, 1997. Petitioner simply waited until December 2, 1997, to obtain zoning approval and attempt to submit the application to the Respondent. In doing so, Petitioner failed to meet State statutory requirements.

20. Petitioner failed to meet the statutory requirements by

    which it and the State Agency are bound. Therefore, Petitioner cannot claim any entitlement to apply for the disputed quota license.

21. Under these circumstances, the license application should be denied.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order denying Petitioner's application for the Alachua County quota alcoholic beverage license for which it was selected on October 10 ,1997.

DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 25th day of August, 1998.

COPIES FURNISHED:

Thomas D. Winokur, Esquire Richard Boyd, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

John F. Bennett, Esquire

Fishback, Dominick, Bennett, Stepter, Ardaman, Ahlers, and Bonus

170 East Washington Street Orlando, Florida 32802-2397

Richard Boyd, Director Department of Business and

Professional Regulation Division of Alcoholic

Beverages and Tobacco 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: 98-000719

Orders for Case No: 98-000719