Findings Of Fact Petitioner originally held alcoholic beverage license no. 26-532, Series 4-COP, as an individual. He transferred this license to M & S, Inc., a Florida corporation, about one year ago. Petitioner is a 50 percent shareholder in this corporation. Jimmy G. Maddox holds the other 50 percent stock interest. Petitioner and Maddox are currently engaged in civil litigation involving the corporate licensee. Respondent referred to this civil suit in its notice disapproving the transfer application, citing the pending litigation as a basis for disapproval. Petitioner has not purchased the license from the corporation or entered into any agreement in contemplation of license transfer. Rather, he believes he is entitled to the return of the license because he received no consideration for the prior transfer from either the corporation or Maddox. Alternatively, Petitioner asks that the prior transfer to the corporation be set aside due to this lack of consideration.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request for transfer of alcoholic beverage license no. 26-532, Series 4-COP. DONE and ENTERED this 6th day of April, 1982 in Tallahassee, Florida. R. T. CARPENTER, 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 April, 1982. COPIES FURNISHED: James A. Fischette, Esquire Suite 1916 Gulf Life Tower Jacksonville, Florida 32207 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Herbert T. Sussman, Esquire 3030 Independent Life Building Jacksonville, Florida 32202 Mr. Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Was the Petitioner's application denied for good cause and is the Petitioner entitled to the beverage license for which he applied?
Findings Of Fact Henry McCalister and Willie Mack applied for a beverage license to the Division of Alcoholic Beverage and Tobacco, Department of Business Regulation. Willie Mack was notified that this application was to be denied because he had been convicted of a felony within the past 15 years pursuant to Section 561.15, Florida Statutes. He was further advised that he was entitled to a hearing pursuant to Section 120.57, Florida Statutes. The Respondent failed to produce at hearing any evidence of Mack's conviction of a felony.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Respondent issue the applicant the beverage license for which they applied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Willie Mack 834 Robinson Avenue Jacksonville, FL 32209 Francis Bayley, Esq. Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32304
The Issue By Notice to Show Cause filed December 19, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the alcoholic beverage license number 60-0883 issued to James R. Rogers, trading as Ray's Tavern. As grounds therefor it is alleged that Rogers, in order to secure a license to sell alcoholic beverages, made false written statements to the agents of Respondent in violation of 537.06 and 561.29 F.S. One witness was called by Petitioner and four exhibits were admitted into evidence.
Findings Of Fact On December 21, 1977, notice of the hearing scheduled to commence on January 12, 1978 at 1457 N. Military Trail, West Palm Beach, Florida was served on Respondent by a beverage agent of Petitioner. (Exhibit 1) In answer to question 13 on the application for Transfer of Alcoholic Beverage License, which asked "Has a license covering the place described in this application or any other place in which any of' the above named persons were at the time interested ever been revoked by the Director?" Respondent answered "No". (Exhibit 2). By Order of the Director of the Division of Beverages dated September 30, 1955 (Exhibit 3) the alcoholic beverage license issued to James R. Rogers, Curley's Tavern, aka Ray's Tavern was revoked for maintaining gambling paraphernalia and permitting gambling on the licensed premises.
The Issue Whether the Division of Alcoholic Beverages and Tobacco (DABT) should take disciplinary action against respondent or its DABT license for the reasons alleged in the notice to show cause?
Findings Of Fact At all pertinent times, respondent 201 West, Inc. d/b/a Central City/Congo Craig's Safari, has held a quota license, No. 11-00259 4COP, authorizing it to sell alcoholic beverages at 201 West University Avenue, Gainesville, Florida. On August 23, 1991, Craig Cinque, respondent's sole shareholder and officer, executed on respondent's behalf a consent agreement which petitioner accepted and filed on September 6, 1991, resolving administrative proceedings then pending. The consent agreement provides: "The second and third floors now known as 'Congo Craig's' shall not admit customers under 21 years of age for a period of two years " Underaged Patrons Apprehended At eleven o'clock on a crowded Saturday night, September 7, 1991, five DABT officers entered Congo Craig's to check patrons' ages. DABT and other witnesses agreed that the bar had enough staff demanding proof from patrons of their ages as they entered, and that the lighting was adequate for this purpose. The DABT officers checked a number of already admitted patrons' "ID's" themselves, and found a false one that a 20-year-old woman, Amy L. Bruns, whom they saw drinking draft beer, had used to gain admission. The Maryland driver's license described a woman of its bearer's height and weight, but depicted a blonde, not the brunette the officers accosted. Petitioner's Exhibit No. 3. The next time DABT officers, again a contingent of five, discovered an under age patron at Congo Craig's was on October 12, 1991, another Saturday night when DABT and other witnesses agreed that the bar had enough staff checking patrons' ages as they entered, and that the lighting was adequate. Kim M. Chiappara, then 20 years and eight months old, was sharing a pitcher of draft beer with her older sister and others when she was interrogated by the DABT officers that night. A search of her person turned up no false identification. She was not asked whether she had used any, or borrowed her sister's identification, to get by the bouncers. The next Friday night DABT officers apprehended Dari A. Layne, who was born on October 27, 1972, at Congo Craig's shortly before midnight, as she was consuming a mixed drink. The "very good" counterfeit Pennsylvania driver's license she produced when asked for identification has her photograph, but lacks a holographic state stamp on the obverse and has a photocopied reverse, albeit duly laminated. After midnight on the same foray, DABT officers discovered Kim C. Stampler, three months and a week shy of her 21st birthday, holding a clear plastic cup containing a purple liquid. She denied having false identification, but a DABT officer's search turned some up. Also in the early hours of October 19, 1991, DABT officers arrested Christopher Wisniewski, an apparently intoxicated 16-year-old, whose father, also apparently intoxicated, only reluctantly admitted their relationship. Christopher, who was not asked what or whose identification, if any, he had used to get in, had a valid Florida driver's license on his person. Bar Tender Arrested The personnel that respondent assigned to check patrons identification as they entered did not take their stations until five o'clock evenings, an hour after opening. Aware of this, the DABT dispatched Randy Gordon (a stout, older- looking 19-year-old, who has succeeded two out of three times in efforts of this kind at some ten other establishments) to Congo Craig's. He readily gained admission between four and half past on the afternoon of November 8, 1991, without being asked for identification. The first customer of the evening, Randy asked Eric Frauman (who had agreed at the last minute to fill in for another bartender, and who ordinarily worked evenings when the bouncers, not the bartenders, are responsible for checking customers' identification) for a hamburger and a beer. Although he had been told to "card" everybody, Mr. Frauman neglected to ask young Mr. Gordon for identification. The second customer that evening was Ernest Wilson, the special DABT agent responsible for paying five dollars an hour for Mr. Gordon's services. Mr. Wilson took the beer, and Mr. Gordon, who paid for both, got the hamburger, which he described as very good. Mr. Frauman, a graduate student hoping to work as an educational counselor, was arrested and eventually prosecuted criminally. Precautions Taken Respondent is qualified as a responsible vendor, and was so certified during the time DABT made such certifications. All of the 18 employees respondent relies on for "security," those checking patrons' ages at night as well as the daytime bartenders and servers, are current with regard to the courses, tests and update meetings the responsible vendor program requires. Respondent's managers are current on requirements for managers. At weekly meetings of the managers, underage drinking was a regular topic. A book depicting driver's licenses in various jurisdictions is kept on the premises, and respondent's employees who testified seemed knowledgeable on the subject. Employees responsible for checking patrons' ages are told to require, at least of anybody who looks younger than 45, a driver's license, military identification or a passport. Several repeat customers testified that they had invariably been "carded." Although Congo Craig's can lawfully accommodate no more than 925 persons at any one time, the crowd "turns over" as the night wears on. From 35,000 to 45,000 patrons were on the premises between September 7, 1991, and November 18, 1991. During this period, DABT officers made several visits on which they failed to find a single patron under the age of 21. According to Kim Ehrich, who once worked at Congo Craig's, but now works elsewhere, Congo Craig's is probably the "strictest" bar in Gainesville, and does a more thorough job checking identification than the three other bars where she has worked in Gainesville. Willful Breach A week or so before the party at Congo Craig's on October 3, 1991, Charlotte Olsen, then social chairperson for the Phi Sigma Sigma sorority, told somebody at Congo Craig's that some of the party-goers would be under 21 years of age. She offered the sorority's wrist bands to demarcate those old enough to drink legally, but Congo Craig's used its own instead. Mr. Cinque was aware that underaged persons were expected to attend the party scheduled for the second and third floors, and decided to allow it, despite the consent agreement, in order to preserve "good will." About half of the 50 to 60 people at the party were under 21 years of age. He added staff, he testified, in an effort to stymie drinking by underaged attendees. This effort proved dramatically unsuccessful. Past Problems DABT established (in aggravation of penalty only) that respondent has a long history of problems of the kind proven in this case, dating to when respondent's father owned the establishment. When Mr. Cinque worked as a manager, before he became the owner, DABT issued some ten orders to show cause alleging beverage law violations, most of which respondent admitted. Since the younger Mr. Cinque assumed ownership, DABT has filed eight additional orders to show cause, the first seven of which were consolidated and disposed of by the consent agreement accepted by DABT on September 6, 1991.
Recommendation It is, accordingly, RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's license for ten (10) days. DONE and ENTERED this 10th day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of December 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1-21, 24, 25, 28, 29, 31, 34- 46, 50, 53-56 and 58 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 22 and 23, it is not that easy to make out the eye color of the woman depicted on the license. With respect to petitioner's proposed finding of fact No. 26, Ms. Chiappara did not testify at hearing; it is not clear what sworn statement is meant. With respect to petitioner's proposed finding of fact No. 27, the evidence suggested that she used the counterfeit license to gain entry. With respect to petitioner's proposed findings of fact Nos. 30 and 33, the method of entry was not proven, but there was speculation. With respect to petitioner's proposed finding of fact No. 32, she was drinking a purple beverage. With respect to petitioner's proposed finding of fact No. 47, she so testified. Petitioner's proposed findings of fact Nos. 48, 49 and 59 are properly proposed conclusions of law. Petitioner's proposed findings of fact No. 51 and 52 have been rejected as not established by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 57, the number of allegations is immaterial. Respondent's proposed findings of fact Nos. 1-10 and 14-17 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, Mr. Frauman did not usually work the day shift. With respect to respondent's proposed finding of fact No. 12, time constraints do not account for the failure to honor the consent order. Respondent's proposed finding of fact No. 13 is properly a proposed conclusion of law. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, Florida 32399-1007 Sy Chadroff, Esquire 2700 S. W. 37th Avenue Miami, Florida 33133-2728 Donald D. Conn General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact The Respondents, J. F. Walthier III and Andrew Erickson, are the holders of a current valid beverage license, No. 46-00210, Series 2-APS, held in the name of Walthier, J. F. III and Ericks. This license is for a premises located at 4721 Palm Beach Boulevard, Fort Myers, Lee County, Florida. The Respondents conduct their business at this licensed premises under the name Foam and Fizz. This beverage license series entitled the Respondents to sell a class of alcoholic beverage for consumption off the licensed premises. One of the categories of alcoholic beverages allowed for sale under the terms and conditions of the license is beer. The subject beverage license was issued by the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. The Petitioner is charged with the licensure and regulation of the several alcoholic beverage license holders within the State of Florida. In pursuit of its function, the Petitioner has brought an Administrative Complaint/Notice to Show Cause against the named Respondents and the terms and conditions of that complaint may be found in the issue statement of this Recommended Order. The facts in this case reveal that between 9:00 p.m. and 10:00 p.m. on January 25, 1980, three young men under the age of eighteen drove to the licensed premises for purposes of purchasing beer. Once the car was parked, Ira J. Frasure and dames Craig McDowell exited the car. On that date, Ira J. Frasure was seventeen years of age and James Craig McDowell was sixteen years of age. They left Frank Edward Gordon in the automobile, where he would remain during the pendency of the other juveniles' activities in the licensed premises. Once in the store, Frasure retrieved a six-pack of Budweizer beer and McDowell picked up several single cans of Budweizer beer. The beer which had been picked up by the juveniles was presented at the checkout counter to Barbara Joyce Walthier, the wife of one of the licensees and an employee in the licensed premises. At that point, Frasure paid Walthier for the beer from money which he had and money which had been given to him by McDowell. The juveniles then left the store. Neither of the juveniles had been asked for any form of identification prior to the sale of the alcoholic beverages, nor had they been asked about their ages, and they did not make any comment concerning their ages. Frasure's date of birth is September 30, 1962, and at the time of the purchase he was approximately six feet one inch tall and had a mustache. Frasure gave testimony in the course of the hearing and appeared to be eighteen years of age or older at that time. Investigative officers who saw Frasure on January 25, 1980, said they felt he appeared to be less than eighteen years of age. McDowell's date of birth is February 9, 1963, and at the time of the hearing he appeared to be less than eighteen years of age, and this comported with the impression of the investigating officers when they saw him on January 25, 1980. At the time Frasure purchased the beer from the clerk, Barbara Joyce Walthier, she was not busy with other customers to the extent that it would hinder her ability to check the appearance of Frasure and McDowell; however, business on the evening in question had been moderate to heavy at times and she does not remember seeing Frasure and McDowell. Barbara Joyce Walthier was working in accordance with a set of instructions from the licensees, in the person of her husband, to the effect that she should always require written identification prior to purchase from those persons who looked like they should be "carded". Moreover, she had been instructed that those persons who have beards are not normally "carded". Other factors to be considered, per instruction she had been given, were to require written identification from those persons who acted suspiciously while in the store, or who parked a great distance away from the store after driving slowly by. In keeping with these instructions, she routinely requires written identification from patrons. Finally, there was a sign in the licensed premises which stated, "Under age don't ask".
Recommendation In view of the fact that this is a single count violation and in view of the physical appearance of Ira J. Frasure at the time of the alcoholic beverage purchase in question, that appearance leading one to believe that he was eighteen years of age or more, it is RECOMMENDED that the Respondents be required to pay a fine in the amount of one hundred fifty dollars ($150.00) in lieu of suspension or revocation and it is FURTHER RECOMMENDED that if this civil penalty is not paid within thirty (30) days of the rendition of the final order, that the Respondents' beverage license be suspended for a period of fifteen (15) days. DONE AND ENTERED this 20th day of May, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee Florida 32301 (904) 488-9675 COPIES FURNISHED: James N. Watson, Esquire Office of General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Allan Parvey, Esquire 2201 Main Street Post Office Box 2366 Fort Myers, Florida 33902
The Issue The issues for determination are whether Respondent, holder of an alcoholic beverage license, sold or permitted the sale of alcoholic beverages to minors on his licensed premises; whether Respondent retained alcoholic beverage invoices or sales tickets for three years in accordance with licensure requirements; and whether Respondent kept cigarette invoices or sales tickets for three years in accordance with licensure requirements.
Findings Of Fact Respondent is David L. Crews, holder of Alcoholic Beverage License No. 55-00162, series 1-APS, for a licensed premises known as Crews Texaco located in Nassau County, Florida. On December 15, 1989, Respondent sold William Christopher Brannan a twelve pack of beer which is an alcoholic beverage. Brannan was 17 years of age at the time Respondent sold him the beer. At the time of the sale, Respondent did not ask for proof of age or any other form of identification from Brannan. Accompanying Brannan on December 15, 1989, were two other teenagers: Robert Terrell Simmons, Jr., and Larry W. Wilkerson. Respondent sold Simmons a case of Busch beer, an alcoholic beverage, at the same time as the sale to Brannan. Simmons was 18 years of age at the time of the sale. Respondent did not ask for proof of age or any other form of identification from either Simmons or Wilkerson. It was common knowledge in the area that Respondent would readily sell alcoholic beverages at a higher than normal price to persons under the lawful age of 21 years. Respondent charged Brannan and Simmons a higher price for the alcoholic beverages purchased by them because he knew they were under the age of 21 years. Brannan, Simmons and Wilkerson had attempted to purchase alcoholic beverages from Respondent earlier in the evening, but Respondent waved them away because law enforcement personnel were investigating a domestic disturbance near his business. Later in the evening of December 15, 1989, after purchasing the alcoholic beverages from Respondent, the three youths were involved in a alcohol related accident and Brannan was killed. On April 30, 1990, Respondent was convicted in Nassau County Court of two counts of providing alcoholic beverages to a minor and paid a fine of $127.50 on each count. He also received a 30 day suspended sentence on each count. On March 9, 1990, agents for Petitioner's Division of Alcoholic Beverages and Tobacco interviewed Respondent about the matter of sale of alcoholic beverages to underage persons and conducted an inspection of his licensed premises. In the course of the inspection, the agents requested that Respondent produce his alcoholic beverage and cigarette invoices. Respondent was unable to produce the invoices and admitted to the agents that he had used the invoices for writing paper and had then thrown them away. Respondent reaffirmed these statements at the final hearing. As of December 20, 1991, Respondent has failed to produce either alcoholic beverage or cigarette invoices. As established by his own testimony at the final hearing, prior to March 9, 1990, Respondent did not maintain either alcoholic beverage or cigarette invoices on the licensed premises.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's beverage license bearing number 55-00162, Series 1- APS, for a period of 40 days and requiring payment of a administrative fine in the amount of $2,000. DONE AND ENTERED this 14th day of January, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 14th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-21. Adopted, although not verbatim. 22.-26.Rejected, unnecessary. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robin L. Suarez, Esq. Assistant General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 David L. Crews U. S. 1 & 5th Street Hilliard, Florida 32046 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007 Janet Ferris, Secretary Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1000 Richard W. Scully, Director Division of Alcoholic Beverages Department of Business Regulation 725 South Bronough St. Tallahassee, Florida 32399-1007
Findings Of Fact On April 26, 1982, the Petitioner Dania Bank, filed a request with the Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco to record a lien holder's interest against alcoholic beverage license 16-15 issued to the Respondent Chula, Inc., doing business as Chalet Ole and Chula Liquors. The lien was created on July 3, 1981, and filed with the Secretary of State on August 10, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Division of Alcoholic Beverages and Tobacco denying the Petitioner Dania Bank's request to record a lien against alcoholic beverage license number 16-15. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 31st day of October, 1983. COPIES FURNISHED: Richard E. Whitney, Vice President The Dania Bank 255 East Dania Beach Boulevard Dania, Florida 33004 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Sections 301 and 302 of the DABT's policy manual and form DBR 700L are unpromulgated rules which cannot be used as a basis for the DABT's decision to refuse three applications for alcoholic beverage licenses submitted by the Petitioners. Whether the agency's requirement that an applicant have county zoning approval before a state alcoholic beverage license will be granted is an invalid exercise of delegated legislative authority, under Chapter 120, Florida Statutes. Whether form DBR 700L is an invalid rule because of DBR's failure to file forms with the Secretary of State.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Final Order.
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that there is a pending disciplinary action against the license holder.
Findings Of Fact Timeliness of DABT's Denial of Application for Transfer On May 26, 1981, petitioner filed with DABT's Miami office an application for transfer of alcoholic beverage license No. 23-276, Series 4-COP. (Testimony of Harris, Caram; Ex. 1.) Upon discovering that the fingerprints of Richard J. Mandell, chief corporate officer of petitioner, were not on file and did not accompany the application, DABT notified Mr. Mandell, no later than June 24, 1981, that his fingerprints would be required. 2/ (Testimony of Harris, Caram.) In response, Mr. Mandell furnished the requested fingerprints to DABT on June 24, 1981. At that time, DABT treated the license application as complete. (Testimony of Harris, Caram.) By letter dated September 22, 1981, DABT notified petitioner that its application was disapproved because of a pending administrative case against the license. (Ex. 2A.) II. Denial of Petitioner's Application When petitioner filed its application for transfer of the alcoholic beverage license in question, administrative proceedings to revoke or suspend the license had been instituted and were pending against the licensee, Astral Liquors, Inc., d/b/a "Foxxy Laidy," a bar and lounge. (Prehearing Stipulation.) These disciplinary proceedings were instituted because of the conviction of Eugene Willner--Astral Liquors, Inc.`s sole stockholder--of a federal felony unrelated to operation of the Foxxy Laidy bar and lounge. (Testimony of Willner.) By written contract dated April 10, 1981, petitioner agreed to purchase from Astral Liquors, Inc., the Foxxy Laidy, located at 6507 Southwest 40th Street, Miami, Florida, for $175,000. Closing was contingent upon DABT approving transfer of the alcoholic license to petitioner. (Ex. 3.) DABT disapproved petitioner's application to transfer the license solely on the ground that there were pending proceedings against the license holder. DABT does not question whether the sale of Foxxy Laidy to petitioner is a bone fide, arms-length transaction or the qualifications of petitioner to hold an alcoholic beverage license. (Testimony of Harris; Ex. 2A, Ex. 8, Ex. 9.) DABT presented no evidence in support of denying petitioner's application other than there were pending administrative proceedings against the licensee. It did not explain or offer any reasons why, in this case, it should exercise its discretion by denying petitioner's application. To the extent its decision rests on non-rule policy considerations, it did not explicate them or subject them to scrutiny at hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application for transfer of alcoholic beverage license No. 23-276, Series 4-COP, be granted. DONE AND RECOMMENDED this 9th day of June, 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 9th day of June, 1982.
