The Issue The issue in this case is whether Petitioner is entitled to issuance of a quota liquor license.
Findings Of Fact By Notice of Selection dated August 20, 1990, Respondent informed William Davis Tharpe that it had approved his application for the grant of a new quota liquor license in Brevard County. By application received on September 28, 1990, by the Cocoa Beach District office of Respondent, Mr. Tharpe and Bimini's Beachside of Cocoa Beach, Inc. jointly applied to Respondent for the transfer of the Notice of Selection from Mr.Tharpe to Bimini's Beachside. By Transfer of Notice of Selection dated November 2, 1990, Respondent informed Petitioners of the approval of the application for transfer of the Notice of Selection. In material part, the Transfer of Notice of Selection states: * * * Enclosed is a notice of fee payment due for the transfer of the Notice of Selection. By law, this must be paid to the Division within 45 days of the date of this letter. Please be sure to return the payment notice with your remittance. . . . Failure to remit the transfer fee to this office . . . within the 45 day period allotted will be deemed as a waiver of your right to file for the new quota license. The application will be denied and the next applicant with priority shall be given consideration for a new quota license. Therefore, you must immediately contact the office whose address is listed on the bottom of this letter. They will be able to supply the forms and instructions necessary to file a complete application for the "grant" or "issuance" of the license as well as answer any questions. . . . Please bear in mind that you must pay the applicable transfer fee and file either application within 45 days of the date of this letter which is calculated to be December 17, 1990. We urge you to move forward promptly in order to save time necessary to process the application and complete the investigative process. The Transfer of Notice of Selection was on the letterhead of the Department of Business Regulation and signed by the Chief, Bureau of Licensing and Records on behalf of the Director, Division of Alcoholic Beverages & Tobacco. A courtesycopy of the Transfer of Notice of Selection was shown to have been sent to the "Div. of Alcoholic Beverages and Tobacco, District #12 Rockledge" at the address of the District office in Rockledge. After receiving the Transfer of Notice of Selection, Mr. Taylor, who is the president and sole shareholder of Bimini's Beachside, arranged a meeting with Joan Root of the Rockledge District office. At the meeting, Mr. Taylor applied for and received a temporary license to sell liquor, which was signed by another individual of the Rockledge District office. In connection with the temporary license, Mr. Taylor paid Ms. Root $437.50--apparently by personal check. At the same meeting, Mr. Taylor presented Ms. Root with a personal check dated November 12, 1990, in the amount of $26,250 and payable to the Department of Business Regulation. This check, for which ample funds existed at the payor bank, was for payment of the transfer fee referenced in the Transfer of Notice of Selection dated November 2, 1990. Ms. Root declined to accept the larger check and informed Mr. Taylor that he had to send that money to the Division office in Tallahassee. She also told him that the check had to be from the corporation and that the fee had to be paid by the deadline of December 17, 1990, as set forth in the Transfer of Notice of Selection. Mr. Taylor mailed a corporate check in the amount of $26,250 to the Division office in Tallahassee, but not untilDecember 21, 1990, according to the postmark on the envelope. Respondent received the check on December 28, 1990. By letter dated January 8, 1991, Respondent informed Petitioners that it was rescinding its prior approval and notifying them of Respondent's intent to deny the new quota liquor license because the fee had been untimely paid. Following an exchange of correspondence that failed to resolve the dispute, Petitioner timely requested a formal hearing. Petitioners expended over $20,000 to obtain Mr. Tharpe's rights in the new quota liquor license, as well as additional costs in connection with the preparation of the business premises.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order voiding the Transferee Notice of Selection previously sent to Petitioners. RECOMMENDED this 29th day of May, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1761 Treatment Accorded Petitioners' Proposed Findings 1 (first two sentences): adopted. 1 (third sentence): rejected as irrelevant and unsupported by the greater weight of the evidence. 1 (fourth sentence): rejected as subordinate. 1 (last sentence): rejected as recitation of testimony. 2-3: rejected as irrelevant. 4: rejected as unsupported by the greater weight of the evidence. 5: first sentence adopted. Remainder rejected as irrelevant. The November 2 letter clearly states when the transfer fee had to be paid to Tallahassee. Nothing in the handling of the matter by Respondent warrants the relief that Petitioners seek. The result in this case is harsh when the mere neglect of Mr. Taylor is weighed against the loss of more than $20,000 and the value of a new quota liquor license. However, in the absence of other factors, such as some ambiguity or confusion for which Respondent is responsible, the law does not permit a recommendation compelling Respondent to give Mr. Taylor another chance. This case does not raise the issue whether Respondent has such discretion and, if so, whether it should be exercised here. 6: rejected as irrelevant. The evidence concerning a single extension involved an applicant who was not a transferee. In any event, Petitioners failed to request an extension during the 45-day period. 7: rejected as not finding of fact. Treatment Accorded Respondent's Proposed Findings Except as otherwise noted, all proposed findings are adopted or adopted in substance. 7: rejected as irrelevant and unsupported by the greater weight of the evidence. 9-17 and 24: rejected as subordinate. COPIES FURNISHED: Janet E. Ferris, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Jack L. Taylor 400 W. Cocoa Beach Cswy. Cocoa Beach, FL 32931 John B. Fretwell Assistant General Counsel Department of Business Regulation 725 S. Bronough St. Tallahassee, FL 32399-1007
The Issue Whether, on four separate occasions, agents, servants, or employees of respondent sold alcoholic beverages to persons under 19 years of age, in violation of Section 562.11, Florida Statutes, as alleged in petitioner's Notice to Show Cause.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license no. 16-2587, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 6th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Don Allen, Esquire 600 S.W. 4th Avenue Ft. Lauderdale, Florida 33315 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that the license has been revoked.
Findings Of Fact On January 25, 1977, Armando Calo, through counsel, filed a Notice of Lien with DABT stating that he was a bona fide mortgagee on an alcoholic beverage license (4-COP, lic. no. 23-1901) held by the Intimo Lounge, Inc., 1601 Collins Avenue, Miami Beach, Florida. Citing Section 561.65, Florida Statutes, he enclosed a copy of his chattel mortgage and a check payable to DABT in the amount of $5.00. (P-1) By return letter dated February 4, 1977, C. L. Ivey, Jr., DABT's Licensing Supervisor, acknowledged receipt of Mr. Calo's Notice of Lien and stated that it would be made part of the Intimo Lounge, Inc. license file. At that time, administrative license revocation proceedings were pending against Intimo Lounge, Inc. So Mr. Ivey sent a copy of his February 4, 1977 acknowledgment letter to DABT's Miami Office, and included this notation: P.S. John: You need to immediately notify Attorney Solomon's [Calo's attorney's] office if and when an order to revoke is issued. He will then go to court to seek a judicial transfer. (P-2) On March 22, 1977, Charles A. Nuzum, DABT's Director, executed an order revoking Intimo Lounge, Inc.`s alcoholic beverage license. (R-1) Eight days later, on March 30, 1977, Armando Calo sued Intimo Lounge, Inc., seeking to foreclose his chattel mortgage on its alcoholic beverage license. By letter of the same date, counsel for Mr. Calo, citing Section 561.65, Florida Statutes, notified DABT of the filing of the foreclosure action; he also asserted that Mr. Calo had no knowledge of or participation in the causes for which the Intimo Lounge, Inc. beverage license was revoked. Copies of subsequent pleadings filed in the action were sent to DABT's legal department. DABT thus knew the suit was filed and was aware of its continued progress. (Testimony of Barone; P-3, P-4, P-11) The Circuit Court of Dade County ultimately entered a final judgment of foreclosure in Mr. Calo's favor. On August 17, 1979, pursuant to such judgment, the Clerk of the Court sold the Intimo Lounge, Inc. beverage license, at public sale, to intervenor Rene Valdes, 1710 N.W. 7th Street, Suite 7201, Miami, Florida for $25,000. Notice of the sale was published in the Miami Review, a newspaper circulated in Dade County. On August 28, 1979, the Clerk issued a Certificate of Title pursuant to Chapter 45, Florida Statutes. This Certificate certified that Intimo Lounge, Inc.`s alcoholic beverage license (4-COP, license no. 23-1901) had been sold to Rene Valdes on August 17, 1979, and that "no objections to the sale have been filed within the time allowed for filing objections." (Testimony of Valdes; P-5, P-6) Although DABT was aware of the protracted mortgage foreclosure litigation involving the Intimo Lounge, Inc. beverage license --which it had earlier revoked -- it never protested or sought to block the foreclosure action. It was not a party to the action; neither did it attempt to become one. (Testimony of Barone, Valdes) In September, 1979, a month after the judicial foreclosure sale, Nathaniel Barone, counsel for Intimo Lounge, Inc., wrote R. B. Burroughs, Jr., Secretary of the Department of Business Regulation, asking what steps were necessary to keep the Intimo Lounge, Inc. beverage license viable. An internal memorandum suggests that DABT was, at first, unprepared to answer that question and preferred, instead, to delay answering until an application for the license was filed. But, on October 4, 1979, Harold F. X. Purnell, the Department's General Counsel replied on behalf of Secretary Burroughs: It is the Division's position that the . . . license has been and presently is revoked pursuant to the actions pre- viously taken by [DABT]. Further, that in the absence of an order of appropriate jurisdiction entered in a proceeding to which the Division is a party we are powerless to transfer such license. (Testimony of Barone; P-7, P-10) Meanwhile, Rene Valdes, notified DABT of his purchase of the Intimo Lounge, Inc. beverage license and asked that it be held in escrow while he found a suitable purchaser and location. When DABT refused, Mr. Valdes petitioned the court, which had rendered the foreclosure judgment, to require DABT to process and transfer the license. The court denied his petition, at least in part, because DABT was not a party to the proceeding. After the court hearing, Mr. Valdes, together with his attorney, Charles Kelly, and DABT's counsel, Mr. Purnell, met outside the chambers and discussed their next step. Mr. Kelly discussed seeking a mandamus ordering DABT to issue the license. Mr. Purnell suggested, instead, that Mr. Valdes find a location and purchaser for the license, then submit an application to DABT -- something which Mr. Valdes had not yet done. Although Mr. Purnell did not assure them that the application would be approved, both Mr. Valdes and Mr. Barone gained an impression that it would be. 2/ Mr. Valdes, following Mr. Purnell's suggestion, found a location and buyer, then applied for a transfer of the license. DABT's denial resulted in this proceeding. (Testimony of Barone, Valdes) Under Section 561.65(1), Florida Statutes (1977), a lender licensed by the state holding a lien on an alcoholic beverage license had the right to enforcement of his lien against the license within 12 days after any order of revocation, provided it was revoked for causes which the lienholder had no knowledge and did not participate. If the lienholder purchased the license at foreclosure sale, he could operate under it or transfer it to a qualified person. Until August 17, 1980, it was DABT's long-standing practice and policy to make no distinction between licensed and unlicensed lenders (lien-holders). It allowed both licensed and unlicensed lienholders to file notice of liens against beverage licenses and honored the subsequent transfer of the license if the lien was enforced within 12 days of revocation. This practice was abruptly changed on the basis of an agency legal opinion. On August 17, 1980, one month before Gui-Dom filed its application, DABT's General Counsel rendered a legal opinion limiting Section 561.65 relief to lenders licensed by the state. After that date, until 1981, when the legislature removed the "licensed lender" language of Section 561.65, DABT applied Section 561.65 literally and only accepted liens filed by licensed lenders. (Testimony of LaRosa; P-13) But in October, 1980, DABT did not deny Gui-Dom's application for transfer of the Intimo Lounge, Inc. license because Armando Calo, the lienholder, lacked a lender's license. Instead, the application was denied because the license had been earlier revoked. As later explained by Barry Schoenfeld, DABT's Chief of Licensing: 2 [DABT] felt at the time that . . . there really was no license, that the license had already been revoked, and that there was no license for the court to sell [to Valdes]. (P-13, p. 25). But Section 561.65 specifically permits liens, under specified conditions, to survive license revocation. When asked to explain DABT's position in light of Section 561.65, Mr. Schoenfeld replied, "I don't know that I can explain it." (P-13, p. 16) Neither could Mr. Schoenfeld adequately explain why, in cases similar to this, DABT has approved license transfers while, here, they have not. (P-13, p. 23) It was not until after the denial of Gui-Dom's application that DABT contended that Section 561.65, Florida Statutes (1977), provides no relief because Armando Calo was not a licensed lender. (P- 9, P-13). Rene Valdes, a beverage license broker, operates a business known as "Beverage License, Inc." He specializes in obtaining and transferring alcoholic beverage licenses for clients and has a working knowledge of the Beverage Law, including DABT rules and practice. When he purchased the Intimo Lounge, Inc. license at the judicial sale, he did not know that it had been revoked by DABT. He did, however, know that there was license revocation litigation between Intimo Lounge, Inc. and DABT. He also knew that DABT had issued an emergency order suspending Intimo Lounge, Inc.'s license; and he knew that there were circuit court foreclosure proceedings involving the license. Yet he failed to ascertain the status of the license -- either by checking the files of DABT or the circuit court. But even if he had discovered that the license had been revoked, under DABT's long-standing practice and interpretation of Section 561.65, it would have made no difference. The license would have "survived" revocation because Armando Calo had timely enforced his lien. And it could have been sold at a judicial sale and transferred to a new qualified purchaser. (Testimony of Valdes, Harris; P-13) DABT has provided no record foundation for its abrupt discontinuance of prior agency practice and policy in August, 1980, a policy which allowed both licensed and unlicensed lien holders to file and timely enforce liens against beverage licenses. This policy enabled a lien to survive license revocation; and the license, which had been revoked earlier could then be transferred by judicial sale. The only explanation given for the change in policy, a change which DABT now relies on as cause for denying Gui-Dom's application, is that the agency changed its legal interpretation of Section 561.65 (1977). (Testimony of LaRosa; P-13)
Recommendation Based on the foregoing, it is RECOMMENDED: That Gui-Dom's application for transfer of alcoholic beverage license no. 23-1901, series 4-COP, be granted. DONE AND RECOMMENDED this 3rd day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
The Issue Whether respondent's alcoholic beverage license should be revoked or suspended on grounds that its corporate officer was convicted of a federal crime--Conspiracy to Import Marijuana.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: In 1977, the Division issued an alcoholic beverage license No. 23-276, series 4-COP, to licensee. (Joint Exhibit Nos. 1, 8.) At all times material to this proceeding, Eugene Willner has been an owner and officer of the licensee corporation. On August 27, 1980, Eugene Willner was convicted of violating federal law; the U.S. District Court of the Eastern District of Louisiana found him guilty of Conspiracy to Import Marijuana, a violation of Title 21 U.S.C. 963. (Joint Exhibit Nos. 1, 4, 8.) By application dated March 10, 1981, the licensee sought Division approval to transfer the beverage license in question to a new owner. The Division notified licensee that it intended to deny the application because of the pending administrative charge against the licensee, the charge which is the subject of this proceeding. (Joint Exhibit Nos. 5, 6, 8.)
Recommendation Based on the foregoing, it is RECOMMENDED: That licensee's alcoholic beverage license No. 23-276, series 4-COP, be REVOKED. DONE AND RECOMMENDED this 3rd day of February, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
The Issue The ultimate issue is whether Petitioner is entitled to apply for a new quota liquor license in Hillsborough County. This requires a determination of whether Petitioner waived his right to apply for the license when he failed to do so within forty-five (45) days of a notice sent by the Division of Alcoholic Beverages and Tobacco, but returned undelivered.
Findings Of Fact On July 5, 1988, John Wilson Brown (Brown) filed a preliminary application for a new quota liquor license in Hillsborough County, Florida. This application entitled him to be considered in a double random selection public drawing held by the Division of Alcoholic Beverages and Tobacco (DABT) for the purpose of awarding licenses which have become available through population growth in a county permitting the sale of alcoholic beverages. On the application form, Brown gave his "correct mailing address" as 3327 Holly Hock Court, Orlando, Florida 32812. This is his residence, and is the only address supplied on the form. The drawing was held for Hillsborough County applicants on October 28, 1988. The Division advertises the drawings in the Florida Administrative Weekly and gives notice to the news media to run stories. Brown received a priority number in the October 28, 1988 drawing which entitled him to be one of the initial applicants for award of a liquor license. "Winners" of the drawing, like Brown, must apply for the license. Those applications are reviewed and an investigation is conducted to determine whether they qualify under the beverage law. If not, the next applicant in line is considered. In a letter dated November 8, 1988, sent certified mail, to Brown's Holly Hock Court address, DABT attempted to notify Brown that he was one of the preliminary applicants selected in the Hillsborough County drawing. The letter cited the applicable statute and rule and stated that a full and complete application must be filed within forty-five (45) days of the date on the letter, in this case, December 23, 1988. The letter further provided that failure to file within the deadline would be deemed a waiver of the right to file for the new quota license. Brown never received that letter. During the period, July 1988 through January 1989, he was working twelve to fourteen hours a day, seven days a week at two restaurant-lounges he owns in the Orange County area. He did not review his mail for weeks at a time and relied on his live-in girlfriend to pick it up. He looked at the mail at the end of the month in order to pay the bills. The postal-service attempted to deliver the certified letter on November 10, 1988, November 16, 1988 and November 23, 1988. Brown never picked up the letter from the post office and it was returned unclaimed to the DABT, on or about November 28, 1988. Brown vaguely remembers seeing the certified letter slip from the post office, but did not attempt to pick up the letter until late November or early December. By then, the letter had been returned. Brown had no idea at that time who had attempted to send him a certified letter. No further contact was attempted by the DABT until January 23, 1989, when Brown was sent, by regular mail, a notice that the Division intended to deny his entitlement to apply for the license because he failed to apply within the prescribed time period. Brown received this notice and immediately sent a response, dated January 27, 1989, that he had not been aware of the certified mail and requesting reconsideration. Brown also spoke by telephone with Barry Schoenfeld, Chief of Licensing for the Division. Brown explained that he had been extraordinarily busy and had not attempted to pick up the certified letter until it was too late. On February 10, 1989, DABT sent, by certified mail, the notice of disapproval which gave rise to this proceeding. Brown received that notice, sent also to his Holly Hock Court residence. The value of a new quota liquor license varies from county to county. In Hillsborough County it is worth $50,000.00 to $75,000.00, or more. The agency utilizes certified mail for its notice of drawing results to help assure that the applicant actually gets the notice. Only one application extension has been granted in the seven years since the drawing procedure was initiated. That case involved an individual who was in the military and presented a hardship based on that service. The individual was given an additional forty-five (45) days to apply.
Recommendation Based on the foregoing, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco issue its final order finding that Petitioner has waived his entitlement to file for a new quota liquor license. DONE and ORDERED this 6th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 6th day of June, 1989. COPIES FURNISHED: HAROLD F. X. PURNELL, ESQUIRE OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. 2700 BLAIR STONE ROAD POST OFFICE BOX 6507 TALLAHASSEE, FLORIDA 32314-6507 JOHN B. FRETWELL, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF BUSINESS REGULATION THE JOHNS BUILDING 725 SOUTH BRONOUGH STREET TALLAHASSEE, FLORIDA 32399-1000 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, ESQUIRE 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
The Issue The issue presented here concerns the entitlement of Wiley Ulee Pridgen to transfer the beverage license which be owned to the entity, Adult World, Inc., a corporation.
Findings Of Fact Pursuant to an agreement entered into between the parties in the person of their counsel, made on September 8, 1980, the date for hearing in this cause, and in view of the written Stipulation which consummated the purposes of that agreement, the following facts are found: Wiley U. Pridgen was served with official notice that charges would be filed against him on December 10, 1979. On December 21, 1979, Wiley U. Pridgen filed an application with Respondent's Orlando District Office for transfer of ownership of his beverage license to Adult World, Inc., a corporation. On March 6, 1980, Wiley U. Pridgen was notified by the Director of the Division of Alcoholic Beverages and Tobacco that his application for transfer of ownership had been disapproved for the reason that administrative action is pending and undetermined against the subject licensee pursuant to Florida Statute 561.32. On March 17, 1980, a copy of the formal administrative charges were served on Wiley U. Pridgen. On August 8, 1980, Charles C. Adams, Hearing Officer, Division of Administrative Hearings, entered an order dismissing the instant Notice to Show Cause with leave to refile. On August 25, 1980, formal charges were served upon Petitioner in the form of a Notice to Show Cause after affording a hearing to Wiley U. Pridgen under Florida Statute 120.60(6).
Recommendation It is RECOMMENDED that the Petitioner, Adult World, Inc., d/b/a Strip World Topless Entertainment, be denied its request to have the ownership of License No. 58-1278, Series 2-COP, transferred from Wiley U. Pridgen to Adult World, Inc. DONE AND ENTERED this 7th day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The central issue in this case is whether Petitioners are entitled to apply for a new quota liquor license.
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: 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. 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. 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. 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. 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.
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: Paragraph 1 is accepted. Paragraph 2 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 3, 4, 5 and 6 are accepted. Paragraph 7 is rejected as argument but see finding reached in paragraph 2. Paragraphs 8 through 11 are accepted. Paragraph 12 is rejected as irrelevant. 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
The Issue Whether respondent's alcoholic beverage license should be disciplined on the charge that it violated Sections 212.15(2)(b) and 561.29(1)(a), Florida Statutes (1981), by failing to remit taxes collected pursuant to Chapter 212, Florida Statutes (1981).
Findings Of Fact On May 4, 1981, respondent was issued alcoholic beverage license No. 16-2232 SRX, Series 4 COP. The license has now expired. (Testimony of Boyd; P- 1.) On June 26, 1951, the Florida Department of Revenue issued a warrant for the collection of delinquent sales and use tax due and unpaid by respondent. The warrant states that respondent is indebted to the Department of Revenue for delinquent sales tax, penalty, and interest, totaling $22,710.66. This indebtedness remains outstanding and unpaid. (Testimony of Fox; P-2.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the notice to show cause filed against respondent be dismissed. DONE AND RECOMMENDED this 15th day of September, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1982.