The Issue This case concerns the issue of whether the Respondent properly denied Petitioner's entitlement to a quota beverage license in Bradford County, Florida. At the formal hearing the Petitioner called as witnesses Allen F. Nash and, by deposition, L. B. Schoenfeld. Petitioner also testified on her own behalf. The Respondent called as its only witness Allen F. Nash. The Petitioner offered and had admitted into evidence four exhibits. The Respondent offered no exhibits into evidence. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that these proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to the disposition of this cause.
Findings Of Fact The Petitioner in this case is an applicant for a quota beverage license and filed her initial application for that license on October 23, 1981. That application was titled "Preliminary Application for New Quota Alcoholic Beverage License." Paragraph five of the instructions contained in the preliminary application referred to above states: This is Part I of a two (2) part application. Part II will be fur- nished to you if selected in the drawing. Part II includes among other things, health approval (if required), zoning approval and proof of right of occupancy. On October 13, 1982, the Petitioner was notified by letter from the Director of the Division of Alcoholic Beverages and Tobacco that she had been selected in the random drawing on October 6, 1983, for a new quota beverage license for Starke, Bradford County, Florida. This letter informed Petitioner that her name had been drawn and that the agency must act on her application within 180 days of the drawing. Paragraph three of that letter states: We suggest that you contact our Jackson- ville field office located at the Richard P. Daniel Building, 111 East Coastline Drive, Suite 514, Jacksonville, as soon as pos- sible. You must file your complete appli- cation which will include, among other items, a location, zoning approval, and fingerprints, if you are not already a current licensee, for yourself and those to be interested with you in your business. Please bear in mind that our agency has only 180 days from the date of the drawing to act upon your application. We urge you to move forward in order to save time necessary to process the appli- cation and complete the investigative process. On October 22, 1982, the Division of Alcoholic Beverages and Tobacco forwarded to Petitioner the forms necessary to complete Part II of the application process. Those forms and the accompanying letter were received by the Petitioner. Petitioner failed to file Part II of the application and on April 7, 1983, the Division of Alcoholic Beverages and Tobacco by letter notified the Petitioner that her entitlement to a quota beverage license had been disapproved. The authority for such disapproval was given as Florida Statute 561.17 and Florida Statute 561.19. The information which was to be provided subsequent to the drawing, which was not included in the preliminary application, included: Information relating to the right of the applicant to occupy the premises to be licensed. The health approval of the premises to be licensed. This approval must be signed by a proper representative of the state/county health authorities. Information relating to the zoning of the premises to be licensed. A portion of the second application form in section 7 must be completed by the local zoning authorities and must reflect that the premises to be licensed complies with the local zoning ordinance for the sale of alcoholic beverages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco issue a final order denying Petitioner's application for a quota beverage license. DONE AND ENTERED this 16th day of November, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, 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 16th day of November, 1983. COPIES FURNISHED: Dennis E. LaRosa, Esquire 516 North Duval Street Tallahassee, Florida 32301 James N. Watson, Jr., Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida u2301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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 The issue is whether Respondent's Policy Statement, that the inclusion of revoked quota licenses in Section 561.19, Florida Statutes, double-random selection by public drawing, constitutes an unpromulgated rule contrary to Sections 120.54 and 120.56(4), Florida Statutes.
Findings Of Fact Based upon observation of the witness and his demeanor while testifying, the documentary materials received in evidence, stipulations by the parties, and the entire record complied herein, the following relevant and material facts are found. The Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, is the state Agency responsible for implementation of Chapter 561, Florida Statutes, Beverage Law Administration. In July 2001, Petitioner (BHI) made applications to the Agency for four quota alcoholic beverage licenses made available by revocation. Among those licenses, BHI made application for license number 47-00190, a quota license, initially issued before 1980 pursuant to the Leon County Special Act governing quota licenses; Chapters 63-1561 and 63-1976, Laws of Florida. License number 47-00190, a quota license revoked by the Agency approximately two years before BHI's application in 2001, became and remained available for reissuance at the time BHI filed its petition. The Agency denied BHI's application for revoked quota license no. 47-00190 in Leon County. A quota license is an alcoholic beverage license issued in a county whose population count, at the time of issuance, supports its issuance. In 1979, the Florida Legislature determined each county's population count to be 2,500 persons per quota license. In 2000, the Legislature determined each county's population count to be 7,500 persons per quota license. However, Section 561.19, Florida Statutes (2000), does not specifically direct the Agency to conduct a county's population re-count of 7,500 persons before the reissuance of a revoked quota license issued under the prior population count of 2,500 persons per county. The double-random selection drawing conducted by the Agency pursuant to Section 561.19, Florida Statutes, on October 31, 2001, included an alcoholic beverage license for use in Leon County that became available by virtue of the revocation of that alcoholic beverage license bearing license number 47-00190, which was issued before the change in the population count and the random selection method now contained in Section 561.19, Florida Statutes. The Agency based its denial of Leon County quota license 47-00190 in its Policy Statement of general applicability. The injury to BHI related to the denial of that quota license is within the zone of interest to be regulated and protected under Chapter 561, Florida Statutes, and Petitioner has standing to initiate and prosecute this proceeding. As alluded to before, BHI also made applications in July 2001 for revoked quota license number 26-00921 and revoked quota license number 26-00208 in Duval County; application for revoked quota license number 63-00525 in Polk County; and application for revoked quota license number 45-00073 in Lake County. Each revoked quota license was issued pursuant to the special act applicable to each county and was issued before the 1980 Amendment to Section 561.19, Florida Statutes. The Agency argues in its Proposed Final Order that Duval County (2) and Lake County (1) have exceeded their respective quota license limits, but does not address the quota license limits of the Polk County and the Leon County revoked quota licenses. It is assumed, based upon the fact the revoked quota licenses in those two counties were made available for reissuance, those quota licenses did not exceed the current quota limit of the 7,500 population count. The quota licenses above were revoked several years ago by the Agency and became available for reissuance. Regarding each application filed, BHI received a notice from the Agency stating that: There is no license currently available for issuance in a (specific) County. When licenses become available by reason of increase in population or revocation of a quota license, these licenses are re-issued pursuant to a double-random selection by public drawing. (Emphasis added) The parties entered into a stipulation concerning . . . the Division's policy statement that revoked alcoholic beverage licenses are to be included in drawings conducted pursuant to Florida Statutes, 561.19. . . . BHI challenged the Agency's Policy Statement of general applicability that revoked quota alcoholic beverage licenses are required to be included in a random drawing pursuant to Section 561.19, Florida Statutes. BHI argues that Section 561.19, Florida Statutes, authorizes double-random selection drawings for issuance of alcoholic beverage licenses in only two situations: (a) where licenses become available by an increase in population of a county; or (b) where a dry county, by special act, becomes a wet county. The Agency has embarked on a stated policy, not adopted as a rule, in which, contrary to Section 561.19, Florida Statutes, it includes all revoked quota licenses in the double- random selection drawing. The Agency has thus instituted an unwritten rule policy contrary to Sections 120.54 and 120.56(4), Florida Statutes. The policy statement was applied to BHI's applications for revoked licenses by letters from the Agency denying BHI's four applications for revoked quota licenses stating revoked quota licenses are to be placed in a random selection drawing pursuant to Subsection 561.19(2), Florida Statutes. The Agency, in its pubic legal notice, concerning a double-random selection drawing, set forth the total number of licenses available in each county that are to be awarded by the random selection drawing. Several of the counties listed in the legal notice have an asterisk next to the total licenses available for that county. The explanation by the Agency for the public notice asterisk is to identify those revoked quota licenses included in the total number of available licenses. The following findings of fact are based, in part, on the stipulation of the parties concerning this dispute. The Agency does not have an adopted rule that addresses inclusion of all revoked license in double-random selection drawings. The Agency agreed that the above Policy Statement had not been adopted as a rule by appropriate rulemaking procedures as defined in Sections 120.54 and 120.56(4), Florida Statutes. The Agency takes the position that Section 561.19, Florida Statutes, authorizes double-random selection by public drawing to be used when a quota license becomes available by an increase of 7,500 in a county's population. The Agency's position is that Section 561.02, Florida Statutes, grants the Division Director discretionary authority to enforce the Alcoholic Beverage Law, Chapter 561, Florida Statutes, in accordance with the Legislative intent. Accordingly, Section 561.19, Florida Statutes, is the grant of authority for the Agency's Policy Statement herein challenged. Additionally, the Legislative intent of Section 561.19, Florida Statutes, argues the Agency, is twofold: (1) it removed sole discretion from the Division Director to issue quota licenses, and (2) created a system to ensure licenses issued after 1980 would be in a fair and equitable manner to all applicants. The answer to the threshold question, of whether the Agency's Policy Statement at issue is intended to have the effect of law, is in the affirmative. Prior to the 1980 Amendment to Section 561.19, Florida Statutes, revoked quota license were reissued in accordance with Section 561.02, Florida Statutes (1979). An application was made for a specific revoked license; the application was reviewed and investigated, and if found in compliance with statutory requirements by the Agency, the Director issued the quota license to the approved applicant. The parties agreed that in the event that two applications were made for one license, the first application filed and approved would be granted the license.
The Issue Whether the Petitioner is entitled to an alcoholic beverage license.
Findings Of Fact John Harry Michaels filed a preliminary application to participate in the state lottery for a new quota license on January 16, 1984. The application form completed by Mr. Michaels in this stage of the application process contained instructions to the applicant that it was the first part of a two-part application. The instructions also informed Mr. Michaels that a right of occupancy is required, and should accompany the second part of the application if his name is drawn in the lottery for new quota licenses. Mr. Michaels, as part of his voluntary enlistment, was on military duty in the Armed Forces outside of the state on May 16, 1984. On September 18, 1984, Mr. Michaels was notified by Respondent that he had been selected in the drawing held on September 12, 1984, for an available liquor license in Martin County. This selection of Mr. Michaels' name granted him the opportunity to continue the application process for the state quota liquor license in Martin County. The letter notifying Mr. Michaels of his eligibility also informed him that the second part of the application must be completed within forty-five days from the date the letter was issued. This second part of the application required proof of a right to occupancy of a specified location and verification of the financial investment made by the applicant. On November 2, 1984, the forty-fifth day, Mr. Michaels, acting through his wholly owned corporation, filed the document entitled "Application for Alcoholic Beverage License." When the application was submitted to the Respondent, it did not contain: a business location, zoning approval, a right of occupancy, a sketch of the premises, and documentation to support the stockholder's financial investment. Attached to the document was a letter from the attorney who represented the corporation. The letter requested an additional forty-five day extension of time to properly complete the application. The letter explained that Mr. Michaels was on military duty outside of Florida and had been unable to make arrangements to comply with the original time period. On February 5, 1985, the Respondent was granted the requested extension with an expiration date of March 22, 1985. On the final day of the extension, the Petitioner's attorney requested a second extension. The letter stated that Mr. Michaels was unable to leave his post to return to Florida to obtain a properly zoned location. The letter did not address any new matters, nor did it explain why the forty-five days previously requested was insufficient. This request was denied on April 3, 1985, because there was no showing made that the Petitioner had made a good faith attempt to comply with the first extension. In the Respondent's denial letter, the Petitioner was informed that a letter of denial for the application was forthcoming. On April 23, 1985, the Petitioner filed amendments to its application with the Respondent. The amended application was reviewed in the district office. The investigator sent the amended application to the central office in Tallahassee and recommended disapproval of this application for a number of reasons: There were no financial verification, no lease, and no right of occupancy included with the amended application. A lease, Joint Exhibit 12, was submitted to the district office on April 26, 1985, and was forwarded to Tallahassee the same day. On May 31, 1985, the application was denied because it was incomplete due to the Petitioner's failure to timely file the following items within the granted extension period: 1) a right of occupancy; for a specific location; 2) complete verification of the financial investment. The written denial of the Petitioner's application by the Respondent took place after the 180 day time period for granting a beverage license issued by lottery had expired.
The Issue The central issue in this case is whether the Petitioner's application for a new quota license should be approved or disapproved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On December 17, 1986, the Department processed a preliminary application for a new quota alcoholic beverage license for Broward County which was submitted in the name of Donald Chester Morton. The preliminary application provided, in pertinent part, an affirmation for the applicant and all persons listed which stated: I hereby certify and affirm under penalty of perjury as provided for in 837.06 and 559.791, Florida Statutes, that the foregoing information is true and correct to the best of my knowledge. The preliminary application instructions further stated: Each person listed anywhere on the application must sign affirming that the answers are true and correct to the best of their knowledge. Following notification of being selected, Petitioner filed an application for a new-temporary 3 PS license on August 21, 1987. This temporary license was issued by the Department and was to expire on November 18, 1987. During the period the temporary license was in effect, the Department conducted an investigation which revealed that the original preliminary application had not been signed by the applicant, Donald Chester Morton. Instead, the applicant's father, William Chester Morton, had signed his son's name on that portion of the preliminary application which required an affirmation. Based upon this discovery, the Department issued a Notice of Disapproval on April 25, 1988 The notice provided as follows: As a disapproved applicant you are entitled to a hearing pursuant to 120.57, Florida Statutes, Florida Administrative Procedure Act, provided you file a written request for an administrative review of this decision within twenty-one (21) days of the date of this letter. Thereafter, on May 16, 1988, Petitioner filed a request for an administrative review of the decision and alleged the basis to be "Chapter 120.57 of the Florida Statutes." Prior to the submission of the preliminary application Donald Chester Morton had authorized his father to sign the form on his behalf. This authorization was given in a telephone conversation when the younger Morton determined he could not, due to work scheduling, file the preliminary application for himself. The senior Morton also filed a preliminary application in his own behalf. Coincidentally, both Mortons were chosen for quota licenses. Prior to the submission of the preliminary application in the name of Donald Morton, no written power of attorney was executed. William Chester Morton, acting on the verbal instructions from his son, signed the preliminary application. All information on the preliminary application, other than the affirmation, was true and correct. Neither Morton notified the Department of the manner in which the preliminary application had been executed. The facts regarding the father signing for his son came out during the background investigation of the license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Bureau of Licensing and Records enter a final order disapproving Petitioner's application for a new quota beverage license. DONE and RECOMMENDED this 11th day of October, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 11th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2924 Rulings on Petitioner's proposed findings of fact: Petitioner's proposed findings of fact are rejected as a recitation of the proceedings, argument, or commentary which have not been set forth in a form which allows specific rulings to be made. The following facts gleaned from the discussion offered by Petitioner are accepted: That William C. Morton had no interest in the license acquired by the applicant, Donald C. Morton. That Donald C. Morton took all steps to comply with the Department's regulations regarding the temporary license. That William C. Morton was verbally authorized to sign the preliminary application for his son. It is the policy of the Department to require an applicant to personally sign the preliminary application although the rule does not specifically prohibit execution by verbal power of attorney or agency. Rulings on Respondent's proposed findings of fact: Paragraphs 1,2, and 3 are accepted. While the exact date is uncertain from the record, the fact that during the investigation it was discovered that Morton's father executed the preliminary application is accepted. Consequently, that portion of paragraph 4 which makes that assertion is accepted. Paragraph 5 is accepted. With the exception of the date, paragraph 6 is accepted. See the comment to paragraph 4 above. Paragraph 8 is rejected as unsupported by the record. Paragraph 9 is accepted. Paragraph 10 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issue of this case. Paragraphs 11 and 12 are accepted. COPIES FURNISHED: Raymond A. Doumar ALLSWORTH DOUMAR CAZEL CURTIS & CROSS 1177 Southeast 3rd Avenue Fort Lauderdale, Florida 33316-1197 Harry Hooper Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
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 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 This case concerns the issue of whether the Respondent's application for a quota beverage license should be granted. At the formal hearing, the Respondent called as witnesses Mr. Berry Wiggins and Mr. Alfred S. Bridges, president and sole shareholder of the Respondent. Petitioner called as witnesses Sgt. Norman Stephens, Beverage Officer John T. McMullen, Alfred S. Bridges and Barry Schoenfeld. The parties submitted proposed findings of fact and conclusions for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not consistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to a resolution of this cause.
Findings Of Fact The Respondent holds beverage license number 62-248-4-COP SR. This license is issued to the licensed premises known as the Blue Fountain Restaurant and Lounge located at 1045 North Greenwood Avenue, Clearwater, Florida. The beverage license held by Respondent is a special restaurant license with specific requirements relating generally to the sale of food, seating capacity, and hours of operation. These requirements must be met during daily operation in order for the Respondent to retain its beverage license. On January 29, 1979, Respondent by and through its president and sole shareholder, Alfred S. Bridges, applied to the Division of Alcoholic Beverages and Tobacco for a consumption on premises quota license for the Blue Fountain Restaurant and Lounge. Quota licenses do not have the special requirements applicable to special restaurant licenses and are limited in number by the population in each county where issued. On March 22, 1979, the Respondent's application was denied on the basis that no quota beverage licenses were available in Pinellas County. Respondent was informed by the Division of Alcoholic Beverages and Tobacco that additional licenses would probably be available in 1980 following the 1980 census. The Respondent did not dispute the fact that there were in fact no quota licenses available at the time that his application was submitted and considered, and the denial of Respondent's application on that ground by the Division of Alcoholic Beverages and Tobacco was proper. Following the 1980 census, the legislative program for the selection of persons to receive quota beverage licenses by lottery became effective. The Respondent twice applied for such a license but was not drawn in the lottery on either occasion, and therefore was not entitled to a quota license of those applications. The licensed premises is located in an area which is predominantly black and poor. The individuals residing in this area do not frequently utilize the restaurant facilities at the licensed premises and generally cannot afford to order full course meals. There are numerous fast-food restaurants in the same area as the licensed premises and this coupled with the limited financial resources of the patrons in the area makes it financially difficult for Respondent to operate under a special restaurant license. The requirement that the Respondent be able to serve at any given time a certain number of full course meals and the cost of operating a kitchen and food service also places a substantial financial burden on the Respondent. There is no statutory authority or agency rule which permits the Division of Alcoholic Beverages and Tobacco to grant an application for a quota beverage license based on hardship. The Division of Alcoholic Beverages and Tobacco has never issued a quota beverage license based on hardship and has no policy of considering hardship as a criteria for obtaining such a license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Division of Alcoholic Beverages and Tobacco issue a Final Order denying Respondent's application for a quota beverage license. DONE and ENTERED this 23rd day of November, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 23rd day of November, 1983. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Alfred S. Bridges, President Willow Run, Inc. d/b/a Blue Fountain Restaurant and Lounge 1045 North Greenwood Avenue Clearwater, Florida 33515 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Ida Bartlett is the sole shareholder, officer and director of the Applicant corporation. She pursued the lottery drawing for Pasco County for a quota liquor license in order to embark on her own business venture involving the sale of alcoholic beverages for on-premises consumption in a lounge-type situation, as well as possibly to sell alcoholic beverages in a package store for off-premises consumption. On September 18, 1984, the Division informed Ms. Bartlett by letter that she had been selected in the lottery drawing for an available quota liquor license in Pasco County. The letter advised her that she had 45 days from the date of the letter to file her application with the Tampa field office of the Division, which she did. In preparing her application, she sought the advice and counsel of her son, Charles Bartlett, an attorney who has extensive experience in commercial and real estate matters, including commercial litigation, contract litigation, landlord tenant litigation and zoning matters, as well as experience representing other quota liquor license applicants as clients. Mr. Bartlett was tendered and accepted without objection as an expert in these areas of law, and in the interpretation of contracts, leases and other documents related to these fields of law. In particular, Mr. Bartlett currently represents establishments holding liquor licenses, has recently been actively involved in leasing and licensing matters for them and was counsel for a 4-COP quota liquor license applicant in Sarasota County with regard to the same lottery drawing as the instant application. After she was advised of her successful lottery drawing and of the right to file her application within the 45 days, Mr. Bartlett and Ms. Bartlett began the preparation process for the application by attempting to locate suitable premises in Pasco County at which to locate the license and operate the related business. Mr. Bartlett contacted several real estate brokers in this connection and eventually met Mr. Harry Sasser, who had an existing lounge establishment in Hudson, Florida, Pasco County. Mr. Sasser's premises were then used for only on premises consumption of alcoholic beverages in a lounge-type situation. Mr. Bartlett and Mr. Sasser negotiated an agreement, reduced to writing and executed by the Applicant and Mr. Sasser, whereby his premises would be used for the liquor license sought by Ms. Bartlett. That agreement was entered into on November 1, 1984. It provided that upon the issuance of a license to Ms. Bartlett, Mr. Sasser would place his liquor license in escrow so that the only license applicable and used at the Sasser premises would be the license to be awarded Ms. Bartlett. Ms. Bartlett entered into this agreement in good faith and with the bona fide intent to be bound by it and to actually operate the premises under the license she sought (Applicant's Exhibit 2, in evidence). Mr. Bartlett drafted the agreement which required Mr. Sasser to lease the premises to the Applicant upon the occurrence of the condition precedent which is the granting of the liquor license. The agreement does not specify a rental amount, but rather provides that the rent shall be the prevailing market rate upon the execution of the related lease, which the parties agreed to enter into upon the granting of the license. The agreement does not specify a date certain for execution of the lease, but rather provides that the leasing of the subject premises will take effect upon the issuance of the liquor license. Mr. Bartlett established that this agreement is a legally binding document and affords the Applicant a legal right of occupancy to Mr. Sasser's premises upon the occurrence of that condition precedent. Such provisions for rental payment at market rates are common in lease agreements of that nature, and such a provision as to rental amount does not mitigate the binding effect and enforceability of such an agreement. Agreements contingent on the occurrence of a specific event which would trigger the execution of a lease to which the agreement refers, are common. Otherwise there would be no purpose to be served in leasing the premises for either party, until it is clear that the Applicant can use the premises for the purposes for which the agreement and contemplated lease are intended. Charles Bartlett and the Applicant prepared and completed the remainder of the license application and related documents to be filed with it. Mr. Sasser was actively involved in the completion and submission of the application, and indeed took it himself to the Pasco County zoning Authority to secure that body's approval of the purpose to which the premises involved would be devoted. The Pasco County Zoning Authority indicated no objection to issuance of the liquor license for the Sasser premises and it is noted in three letters, (in evidence) from the Pasco County Attorney regarding the zoning question, that the property was correctly zoned for on-premises consumption of alcoholic beverages, which is what the premises were currently used for and would be used for under the sought license, at least in part. The letters from the County Attorney regarding zoning do indicate that if off-premises package store sales were engaged in under the sought liquor license, that further certification from the zoning authority concerning the question of whether that would be a substantial departure from the existing use of the premises might be necessary and that rezoning to commercial zoning might be necessary before the premises could be used for package sales for off-premises consumption. Mr. Bartlett opined, based upon his experience in similar liquor license application matters that the premises were appropriately zoned for the issuance of the subject liquor license. Mr. Sasser took the application to the appropriate health department official and secured his approval as to the suitability of the Sasser premises for the use of the liquor license. The zoning authority approval and health department approval were asserted on the face of the application when filed. On about November 1, 1984, Mr. Sasser, Mr. Bartlett, and Ms. Bartlett met at the Tampa field office of the Respondent to assemble the liquor license application, submit it, and sign the agreement concerning the use of Sasser premises. The Division's filing clerk thereupon reviewed the materials submitted with the application and the application to make certain that all information had been provided in the spaces and blanks on the application, and that it was duly executed and signed. Those parties then met with Mr. Espinola who identified himself to them as the "licensing officer" to review the completeness of the application. Mr. Espinola met with the parties for about 15 minutes to review the application and the related agreement with Mr. Sasser. After reviewing the Sasser agreement, Mr. Espinola suggested that Sasser enter into an escrow agreement for his existing liquor license for those premises, so that the Applicant's license, if issued, could be located at the Sasser premises without occurrence of the situation of two licenses being issued for the same premises. Mr. Sasser agreed and entered into and signed an escrow agreement to that effect in the presence of Mr. Espinola, Charles Bartlett and Ms. Bartlett, the principal of the applicant corporation. Mr. Espinola, on behalf of the Division, accepted the application as complete upon submission. Mr. Bartlett was advised that the acceptance of the application as complete would stand so long as he submitted an affidavit from his father concerning the source of financing for the proposed business. Mr. Bartlett had the affidavit executed the same day and sent it by Federal Express the same day to Mr. Espinola. He then called Mr. Espinola the following day to verify the receipt of the financial affidavit by Federal Express, and Mr. Espinola indicated that all was in order. Thereafter the Applicant, being advised that the application was complete and in order, waited to hear from the Division as to its decision regarding the application. Neither the Applicant nor her attorney, Mr. Bartlett, was contacted further by the Division or by anyone from its headquarters in Tallahassee concerning any questions regarding the review of the application. In the meantime, Ms. Bartlett and her attorney, Mr. Bartlett, remained in contact with Mr. Sasser to make certain that everything was still in order regarding their arrangement. Mr. Sasser gave them no indication that anything was amiss or that he had changed his position regarding escrow of his license and the lease of his premises to the applicant corporation. Since a binding agreement between the Applicant and Mr. Sasser had been entered into, and since the execution of the contemplated lease only required occurrence of the condition precedent, that is the issuance of the license, there was no reason to enter into other agreements by the parties until the license was issued. Thus, the Applicant and Mr. Sasser awaited the Division's decision before taking any further action regarding the application or the inauguration of the new business. On March 6, 1985, by letter, the Applicant was advised that its application was denied by the Division. This was the first indication the Applicant had that the application was not in order and would not be routinely approved following Mr. Espinola's assurance that the application was complete and in order. The Division indicated in its letter of denial that the bases for denial were a lack of establishment of a right of occupancy of the subject premises, and lack of sufficient zoning for the subject premises. Upon learning of the Division's denial of the application, Mr. Bartlett contacted the Tampa and Tallahassee offices of the Division seeking further explanation for the denial. He offered to file an amendment to the application to cure the alleged defects, but was informed by a staff member of Mr. Schoenfeld, the Bureau Chief's office, that amendments would not be accepted. Thereupon, the Applicant instituted this-administrative challenge to the denial of the application. During the interim period of time prior to the subject hearing, the Applicant took further steps to secure approval of the application. Thus, at Mr. Bartlett's behest, the Chief Assistant County Attorney for Pasco County provided Attorney Sandra Stockwell of the Division a letter setting forth further and clarifying the zoning authority's position regarding the Sasser premises. This letter (in evidence) makes clear that the County has no objection to the issuance of a 4-COP liquor license for the Sasser premises, although it points out that should the holder of the license desire to expand the alcoholic beverage use to include the sale of liquor for on-premises consumption then a determination would have to be obtained from the zoning administrator of the County whether or not the expansion constituted a substantial expansion of use. If the administrator determined that the expansion of use was substantial in nature, then the Board of County Commissioners would have to approve the actual sale of liquor on the premises. Correspondingly, if the holder of the license were to seek to expand the alcoholic beverage use for the Sasser premises to include the sale of alcoholic beverages for off-premise consumption (package sales) the same action would be necessary prior to actual sale of the alcoholic beverages for off-premise consumption. Additionally, rezoning of property to the appropriate commercial district would be required prior to sale of alcohol for off-premise consumption. The Applicant also secured alternate premises to locate the applied-for liquor license in the event the Sasser arrangement fails to consummate or is otherwise deemed undesirable. The Applicant thus entered into a three-year lease agreement with two 5-year options for premises on U.S. 19 in the City of Port Richey. These premises had been recently used as a lounge establishment and are equipped with all required lounge and bar equipment and fixtures. The lease depicted in Applicant's Exhibit 8, in evidence, gives the Applicant a legal right to occupy the premises identified in that lease for the purposes of this license application. Those premises, additionally, are zoned for commercial use, which according to the City of Port Richey Zoning Code is appropriate for the on premises consumption of alcoholic beverages. In this connection, it was established by Mr. Bartlett, based on his personal experience in representing liquor license applicants, that the Division has approved the issuance of 4-COP liquor licenses to a number of applicants he has represented for premises zoned for on-premises consumption of alcoholic beverages only without them being zoned at the time of issuance for off-premises package sales. DIVISION POLICY Mr. Barry Sehoenfeld is the Bureau Chief of Licensing and Records for the Division. He has been delegated the authority to process and finalize all quota liquor license applications and is in charge of the state-wide system for the review and issuance of alcoholic beverage licenses. He is the final decision maker on quota liquor license applications. Quota liquor licenses authorize license holders to sell alcoholic beverages for on-premise consumption and/or package sales. A quota liquor license enables the holder to sell alcoholic beverages for on-premise consumption, to sell such beverages in a package store capacity or both, according to Mr. Schoenfeld. Quota liquor licenses are issued on a county basis. Only a certain number of such licenses are issued in a county, depending on the population of the county. When the Division determines that it is appropriate for additional quota liquor licenses to be issued for a county, the Division holds a drawing and all interested persons may apply to get in the pool for the lottery drawing. When such a person is drawn, that person can then file an application with the Division for issuance of a liquor license. A "4-COP quota liquor license" refers to a county which has more than 100,000 population. When a party is selected from the lottery drawing to file an application for a quota liquor license, that person has 45 days from notice of the drawing to do so. The application is filed in the local field office of the Division in which the applicant seeks a license. The field office involved in this proceeding is the Tampa office. The application and all related documents must be filed with the licensing clerk of that field office, who then determines whether all documents are in order and whether the application can be accepted by the field office for review. Another staff member in the field office then meets with the applicant to determine whether all necessary forms and documents are complete. In the instant situation, that person was Mr. Espinola. According to Division policy, the field office will not accept an application if not complete. According to policy the applicant does not receive a letter regarding completeness from the field office, but simply a verbal understanding from the personnel of the field office that the application is complete upon submission and acceptance by that office. Here the Applicant was so informed. Once an application is submitted and deemed complete, the field office may ask the applicant for additional information. Requesting additional information is common practice and is often done after the 45-day submission deadline. In fact, if an application is missing the field office will contact an applicant to request that he provide the missing documents. According to Division policy, as explicated by Mr. Schoenfeld, review of an application should be performed with the applicant present so that additional information or explanation required may be done at that time. The intent of this policy is to keep the applicant advised of Division requirements and to communicate freely with an applicant to ensure that all necessary data is gathered for review. Further investigation of an application will be pursued if the field office supervisor deems that necessary and it is within the discretion of that supervisor as to whether an investigation is necessary, and if so, the scope of that investigation. If an investigation is deemed necessary, the supervisor should provide specific instructions to an investigator as to the scope of his investigation. There is no set time during which an investigation should be completed, and the scope depends on the particular circumstances of the application. It is common for an investigation to require one to to three months. The purpose of the investigation is to discover as much information as necessary to fairly make a recommendation on the application. After review by the field office, and any investigation by that office if it is deemed necessary, the field office makes a recommendation to the Division headquarters and Mr. Schoenfeld in Tallahassee regarding disposition of the license application. It is at this point that Mr. Schoenfeld becomes involved with any license application. Thereafter Mr. Schoenfeld makes a final determination on the application and the applicant is sent either a liquor license or a letter of denial. The letter of denial sets forth all bases for the Division's denial of such an application. According to statute, the application process must be completed and the Division must make its decision within 180 days. This time frame can be waived by an applicant however, if it appears for any reason that the statutory time requirement cannot be met, as for instance in situations where the premises to be used are not yet constructed or other delays have been encountered by the applicant or the Division, when both are acting in good faith. In such situations, the Division's decision on the application is placed in abeyance for an indefinite period until the premises are constructed or the other basis for delay by either the Division or the applicant in the review process have been alleviated. Mr. Schoenfeld also explained Division policy to allow for a liquor license holder to move his license to another premises by submitting an application to the Division for a transfer. Additionally, Division policy allows an applicant to propose to locate his license in a premise already holding a liquor license, if the existing license holder places his license in escrow. It is a routine matter for such previous license holders to place their licenses in escrow under these circumstances. Pursuant to the below-cited statutory authority, an applicant must have "suitable premises" in which to house or locate the liquor license for which it has applied. The Division interprets this to mean that an applicant must demonstrate a legal right of occupancy for the premises identified in an application. Mr. Schoenfeld acknowledged that the phrase "legal right of occupancy" is not defined by statute or agency rule, but that the intent is to make certain that an applicant has a lawful right to occupy the identified premises. The Division determines on a case by case basis whether an applicant has secured a lawful right of occupancy. Typically, this determination process does not employ the use of Division attorneys to review and determine from a legal standpoint whether a right of occupancy has been demonstrated. There is no statutory provision or Division rule which requires that written documentation be submitted with an application in establishing a legal right of occupancy. The Division's policy and procedures manual does not specifically require a right of occupancy document to be filed with the application. The Division's application form furthermore, does not require written documentation by the applicant to prove its legal right of occupancy. Although Mr. Schoenfeld indicated that the Division requires written documentation of an applicant's lawful right of occupancy to the identified premises, no specific type of agreement is required. Rather, any document reflecting a binding, lawful right of occupancy is sufficient, nor is it necessary that the written document be a lease agreement. In the instant case, as Mr. Bartlett established, a binding, written contract calling for the occupancy of the Sasser premises was timely executed by the parties to the application and filed with the application, which binds the parties to enter into a written lease upon the occurrence of the condition precedent, that is the issuance of the liquor license. The Division requires an applicant to show sufficient, appropriate zoning for the premises identified to be used in an application. On the second page of the application there is a section requiring indication whether the appropriate zoning authority has determined whether the identified premises are in compliance with existing zoning regulations. Additional information in the form of letters from the appropriate governing authority is commonly submitted with an application to demonstrate that the premises have sufficient zoning. A 4-COP quota liquor license authorizes on-premises consumption of alcoholic beverages and/or package store sales. In some situations, existing zoning regulations permit only the on-premises consumption of alcoholic beverages and not package store sales for off-premise consumption. That is the case with the Sasser premises involved herein and as to the alternate premises, depicted in Applicant's Exhibit 8, in evidence, although that property is commercially zoned. Commercial zoning also encompasses on-premises consumption of alcoholic beverages only. Division policy, however, provides that conditional zoning approvals are acceptable in the process of reviewing and granting liquor licenses. The Division has approved applications where the zoning only allowed on-premises consumption of alcoholic beverages and, as discussed above, in Mr. Bartlett's experience with his own clients such approval has been given where zoning only permitted on-premises consumption for quota liquor licenses on more than one occasion. In these situations, the Division's policy is that it is not responsible for enforcing the terms of the conditional zoning approval' that is a matter to be negotiated or enforced between the local zoning authority and the ultimate holder of the liquor license involved. Conditional zoning approval does not bar the issuance of a quota liquor license. Additionally, Mr. Schoenfeld corroborated Mr. Bartlett's testimony showing that it is often reasonable to waive the 180-day statutory time period to accommodate situations where an applicant must change the premises originally applied for in such instances where a landlord or owner of the premises originally identified in an application breaches the right of occupancy agreement after the application is submitted for review by the Division. In those instances, it has often been determined to be reasonable to allow an applicant to amend his application after the 45-day time period has elapsed to allow for such a change of premises. Licenses have indeed been issued frequently for alternate or changed premises from those originally identified in an application so long as an applicant has acted in good faith throughout the application process. Also, according to Division policy, if an applicant is making a good faith effort to arrange for a suitable, appropriately zoned premises from which to operate his license, the Division will permit the applicant to locate alternate premises in instances where zoning approval is denied subsequent to the 45-day period or has not yet been obtained at the end of the 45-day period. It should be noted that Mr. Bartlett described two instances where this policy was followed where the Division permitted a change of premises after submission of an application. In one case an application was submitted for premises in a shopping center not yet built. After it was filed and prior to issuance of the license, the applicant elected to change the location and to amend the application. The license was granted for the second location. In another situation an amendment to the application was effected after the 45-day period, proposing a change of premises. The amended application was approved by the Division and the zoning on the changed location allowed only on-premises consumption of alcoholic beverages and not package store sales. Even so the Division approved issuance of that license. DIVISION REVIEW Mr. William Fisher is a law enforcement investigator for the Tampa field office of the Division. Mr. Fisher's immediate supervisor is Reuben Espinola. Mr. Fisher's duties involve investigation of liquor license applicants and related premises to ascertain whether the application should be recommended for approval or not. He does not investigate applications independently, but rather acts on Mr. Espinola's instructions. Mr. Espinola normally does not instruct him as to the scope of his investigation (contrary to policy as stated by their superior, Mr. Schoenfeld). In any event, Mr. Espinola ordered Mr. Fisher to investigate the Ida Know, Inc. application without giving him specific instructions. Mr. Fisher was not present at the meetings between the applicant and Mr. Espinola and other members of the staff in the Tampa field office when the application was first submitted and accepted as complete. Mr. Fisher traveled to Mr. Sasser's establishment to investigate the application, and conferred with Mr. Sasser for approximately 75 minutes on January 29, 1985, which meeting constituted the entirety of his investigation of this application, although he had acknowledged that such application investigations normally require one to three months so as to discover as many facts as possible to completely and fairly conduct the review. The next day, however, Mr. Fisher recommended to his superiors that the application be denied after his single conversation with Mr. Sasser. No further investigation by the Tampa field office was performed. Mr. Fisher never conversed with the applicant nor Mr. Bartlett during the investigation or at any other time, nor did he communicate in writing with them, although he acknowledged that conversing with applicants concerning matters involved in investigation of an application is common practice. Mr. Fisher had not read the Division's policy and procedures manual in its entirety. He exhibited some unfamiliarity with Division policy, as for example, his belief that Division policy does not allow issuance of a liquor license for premises where the zoning does not authorize both on-premises consumption and package store sales for off-premises consumption. Mr. Schoenfeld acknowledged that Mr. Fisher misunderstood the pertinent Division policies regarding this liquor license application and the review of it, and yet Mr. Schoenfeld's denial of the application was based entirely on the investigation performed by the Tampa field office and specifically Mr. Fisher. Mr. Schoenfeld did not conduct any independent investigation of his own and never conferred with either Mr. Sasser, the Applicant, Ms. Bartlett, or Mr. Bartlett. His conclusion, and Mr. Fisher's conclusion that no right of occupancy of the Sasser premises existed was evidently based on the Division's Exhibit No. 3, which was not admitted into evidence. In any event, if indeed Mr. Sasser was seeking to recant his agreements with the Applicant and that fact was within the knowledge of Mr. Fisher or someone else in the Tampa field office or the Tallahassee office of the Division, no Division staff member ever contacted the Applicant to advise them of that purported situation, nor to seek additional information from the Applicant concerning it. Even if Mr. Sasser could successfully repudiate his agreement to escrow his liquor license and his agreement to allow the Applicant to use his premises, the Applicant has successfully established its right of occupancy and use of the alternative premises depicted and described in Applicant's Exhibit 8, however, which is zoned commercially such that on-premises consumption of any alcoholic beverage is permitted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of Ida Know, Inc. d/b/a The Anchorage, be approved and that the subject 4-COP quota liquor license be issued to that applicant in a manner consistent with the conditions and alternatives posited in the paragraph last above. DONE and RECOMMENDED this 1st day of April, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April 1986.
The Issue Whether Petitioners should remain eligible for entitlement to a new quota alcoholic beverage license in St. Lucie County, Florida under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On December 4, 1989 the Petitioners filed an application for inclusion in the drawing for a new quota alcoholic beverage license for St. Lucie County, Florida in accordance with Section 561.19(2), Florida Statutes. The application to participate in the drawing was properly and timely filed on DBR Form 747L, entitled, "Preliminary Application for New Quota Alcoholic Beverage License". Paragraph 4 of the General Instructions of DBR Form 747L, advised the applicants as follows: This is Part One of a two (2) part applica- tion. The Division will only accept final application (Part Two) and award licenses to those persons listed on the application, provided such persons are qualified under the beverage laws and are successful in the drawing. On March 29, 1990, the Respondent held a drawing in Tallahassee, Florida for 163 new quota liquor licenses. Petitioners were selected as a preliminary applicant for a new quota license in St. Lucie County. On April 6, 1990, the Petitioners were mailed a certified letter entitled "Notice of Selection" advising the Petitioners of their selection as preliminary applicants for a new quota liquor license in St. Lucie County. Petitioners received this letter on April 9, 1990. This letter clearly advises the Petitioners: that an application for either a "grant" or an "issuance" of a license must be filed; of the difference between "grant" and "issuance"; that a complete application for a "grant" or "issuance" must be filed within 45 days of the date of the letter which is calculated to be May 21 ,1990; that failure to timely file such applica- tion shall be deemed a waiver of the Peti- tioners' right to file for a new quota license and; of the immediacy of contacting the District 10 office in Ft. Pierce, Florida to obtain instructions and, if necessary, answer questions. On or about April 17, 1990 John Clark, Petitioners' employee went to the District 10 office in Fort Pierce and discussed with Irene Wahlenmeyer the suitability of a location of a former lounge. There was no evidence that Clark discussed the May 21, 1990 deadline for applying for the new quota liquor license with Wahlenmeyer at this time. On April 18, 1990 Petitioner, Owen Young contacted the District 10 office by phone and talked to Wahlenmeyer concerning the procedural aspects of applying for a new quota liquor license including the procedural aspects of applying for a "grant" of a license as opposed to applying for the "issuance" of a license. There is insufficient evidence to show that Wahlenmeyer suggested or implied that the Petitioners should apply for the "issuance" of a license as opposed to applying for a "grant" of a license. During the telephone conversation with Wahlenmeyer on April 28, 1990, Petitioner, Owen Young discussed with Wahlenmeyer the suitability of a location of a former lounge known as "Fanny's" and, the potential lease of this property. This was the same location discussed by Clark on April 17, 1990. There is no evidence that either of the Petitioners had any further contact with any of Respondent's employees subsequent to April 18, 1990 and prior to May 21, 1990, the final deadline to submit an application for a new quota liquor license. Although Petitioners' employee Clark visited the District 10 office sometime between May 10, 1990 and June 5, 1990, there is insufficient evidence to show that this visit was prior to May 21, 1990. Subsequent to April 18, 1990 Owen Young began work on the application process by publishing a fictitious name, applying for an occupational license and obtaining a distance waiver from the zoning board as to the Fanny's location. Additionally, Petitioners entered into a lease for the Fanny's location, expended considerable sums of money on remodeling and obligated themselves to a monthly expenditure of approximately $2,500.00 per month. There is no evidence that either of the Petitioners or Clark, on behalf of Petitioners, contacted the District 10 office or any of Respondent's other offices or any of Respondent's employees subsequent to April 6, 1990, the date of the notice of selection letter and prior to June 5, 1990, the date of the Notice of Intent to Disapprove letter inquiring as to the significance of the deadline date of May 21, 1990 or requesting an extension or waiver of the deadline date. Furthermore, there is no evidence that Wahlenmeyer or any of Respondent's other employees advised, suggested or implied that the May 21, 1990 deadline date could be or would be extended or waived. On June 5, 1990 a letter entitled, Notice of Intent to Disapprove was mailed to the Petitioners advising them that: (a) their application for a new quota liquor license had not been filed within the prescribed time period of 45 days from April 6, 1990 the date the Notice of Selection had been mailed; (b) it was Respondent's intent to deny the Petitioners' entitlement to apply for a new quota liquor license in St. Lucie County; (c) they were given until June 18, 1990 to respond as to why this entitlement should not be disapproved and; (d) this time period to respond should not be considered as an extension of the time originally granted to file the application. On June 8, 1990 Petitioners filed an Application for the Grant of a New Quota Liquor License with the District 10 office in Fort Pierce. This application was forwarded to Respondent's central office on an "Application Transmittal Form" which indicated a recommendation of approval by the District 10 office Investigator, Irene Wahlenmeyer on June 8, 1990 and her supervisor, Bob Young on January 11, 1990. Bob Young later withdrew his recommendation of approval. There is insufficient evidence to show why Young withdrew his initial recommendation of approval. On June 25, 1990, a letter entitled, "Notice of Disapproval" was sent to Petitioners from Respondent advising the Petitioners that their entitlement to apply for a new quota liquor license had been disapproved. The reasons stated for the disapproval was the failure of the Petitioners to timely file a complete application within the 45 days required by Section 561.19, Florida Statutes. On or about July 5, 1990 the Petitioner, Owen Young contacted Schoenfeld via telephone and followed up with a letter on July 6, 1990 concerning the "Notice of Intent to Disapprove" and the "grant" of a license application filed on June 8, 1990. Schoenfeld responded with an investigation of the matter with the assistance of Captain D. L. Gray of the West Palm Beach district office. Gray's investigation concluded with a memorandum dated July 16, 1990 wherein Gray advised Schoenfeld that while the Fort Pierce office should not have accepted the application for grant of license from Petitioners or recommended approval, the notice of disapproval of June 25, 1990 was justified. Respondent did not consider the application for grant of license filed on June 8, 1990 as being a completed application and as of December 6, 1990 the Petitioners have not filed any other application for a new quota alcoholic beverage license. Respondent has extended the deadline date or re-initiated the application process where it was shown that the Respondent had incorrectly advised an applicant or had lost an application resulting in the applicant's untimely filing of an application. The purpose of the "Notice of Intent To Disapprove" is to allow the applicant the opportunity to point out to the Respondent its error. There is insufficient evidence to show that Petitioners' failure to timely file their application was due to any incorrect advise given them by the Respondent notwithstanding Petitioners' contention that they were advised to apply for an issuance of a license as opposed to a grant of a license. In any event, the Petitioners neither requested nor were they advised by the Respondent that the deadline date could or would be waived or extended.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order finding that the Petitioners have waived their entitlement to apply for a new quota liquor license. RECOMMENDED this 15th day of January, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 15th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4470 The following constitutes my specific rulings pursuant to Sections 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. - 2. Adopted in Finding of Fact 1 as modified. Not material or relevant. Adopted in Finding of Fact 3 except the date was March 29, 1990 instead of April 6, 1990. - 6. Adopted in Finding of Fact 4. - 7. Adopted in Finding of Fact 5 but clarified. 8. - 9. Adopted in Finding of Fact 6 but clarified. 10. - 11. Adopted in Finding of Fact 7 but clarified. Not material or relevant. Adopted in Finding of Fact 9. - 19. Restatement of testimony and not of Finding of Fact but see Finding of Fact 14. 20. - 21. Not material or relevant. Third sentence adopted in Finding of Fact 10 otherwise not material or relevant. Adopted in Finding of Fact 10. Not material or relevant. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12 as clarified otherwise not material or relevant. Specific Rulings on Proposed Findings of Facts Submitted by Respondent 1. 7. - 6. Adopted in Findings of Fact 1, 3, 4, 6, 9, and 10, respectively. Not material or relevant. 8. - 10. Adopted in Findings of Facts 11, 12, and 13, respectively. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph Sole, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Eric S. Haug, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 James P. McCollum, Esquire 129 South Commerce Avenue Sebring, FL 33870
