The Issue Whether Petitioner is entitled to apply for a new quota liquor license in Martin County, Florida.
Findings Of Fact Prior to March 29, 1990, Respondent duly advertized to the public that it intended to conduct a random selection drawing for quota liquor licenses that had become available in Martin County, Florida, by virtue of the county's growth in population as authorized by the provisions of Chapter 561, Florida Statutes. Petitioner timely filed a complete "Preliminary Application For New Quota Alcoholic Beverage License", the form that was necessary to participate in this drawing for the Martin County license. Petitioner listed as his address 1522 44th Street, West Palm Beach, Florida 33407. The application was accepted by Respondent and Petitioner was assigned a number. Petitioner's number was one of the ones selected by the random drawing. On April 6, 1990, a letter addressed to Petitioner with the heading "Notice of Selection" was prepared by Respondent and signed by Mr. L. B. Schoenfeld in his capacity as Chief, Bureau of Licensing and Records, Division of Alcoholic Beverages & Tobacco. This letter, referring to Mr. Schmoker's application for one of the licenses in Martin County, provided, in pertinent part, as follows: We are pleased to advise that you are one of the preliminary applicants selected in the drawing for an available liquor license in the county as referenced above. When an applicant is selected in a drawing, Florida law requires the selectee to file an appli- cation for a "grant" of the license or an application for the "issuance" of the license. The application for the "grant" of the license deals only with the qualifica- tions of the applicant and those persons listed on the application. The application for "issuance" of the license deals not only with qualifications, but includes among other things the location to be licensed. Having been selected and pursuant to 561.19(2), Florida Statutes and 7A-2.017, Florida Administrative Code, you must file a full and complete application for the "grant" or a full and complete application for "issuance" of the license within 45 days of the date of this letter. Failure to file a complete application for the "grant" or "issuance" of the license within such 45 day period will be deemed as a waiver of your right to file for the new quota license. * * * Please bear in mind that you must file either application within 45 days of the date of this letter, which is calculated to be May 21, 1990. We urge you to move forward promptly in order to save time necessary to process the application and complete the investigative process. ... This letter was addressed to Petitioner and mailed to him by certified mail, return receipt requested, on April 6, 1990, at "1522 44th Street, West Palm Beach, Fl 33407", the address he had listed on his application. The Notice of Selection letter was not received by Petitioner. The original letter in the original mailing envelope was returned to Respondent on May 1, 1990. The markings on the envelope by the U.S. Post Office indicate that delivery was attempted on April 9 and April 18, 1990. The markings further indicate that the letter was ordered to be returned to sender by the Northwood Station, West Palm Beach, Florida, on April 24, 1990, with the explanatory notation that the certified mailing had been "Unclaimed". Respondent made no effort to determine the reasons for the nondelivery because its policy is to rely on postal service for delivery of the notice. There were approximately 11,000 applications received by Respondent for all of the new quota licenses that had become available throughout the State. Of these, approximately 120 notices of selection, similar to the April 6, 1990, letter to Petitioner, were mailed by Respondent. Between 5 and 35 of these notices of selection were returned to Respondent by the U.S. Post Office as being undeliverable. The address listed on Petitioner's application is a single family detached dwelling at which Petitioner has resided since 1972. Petitioner works out of his home and receives his mail by home delivery at the address he gave. When Petitioner is not at home, he has his brother-in-law check his mail. Petitioner checked his mail on a daily basis during April 1990. On June 5, 1990, Respondent mailed to Petitioner at "1522 44th Street, West Palm Beach, Fl 33407", by U.S. Mail, a letter notifying Petitioner of Respondent's intent to deny his entitlement to apply for the new quota liquor license in Martin County. This letter gave Petitioner until June 15, 1990, to show cause why an order of denial should not be entered. No timely response was received by Respondent to its letter of June 5, 1990. On June 27, 1990, Respondent mailed to Petitioner at "1522 44th Street, West Palm Beach, Fl 33407", by certified mail, return receipt requested, a "Notice of Disapproval". This mailing was received and signed for by someone other than Petitioner. On July 23, 1990, Petitioner visited the offices of Respondent in Tallahassee, Florida. During this visit, Petitioner requested an administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of his entitlement to apply for the quota license and he provided Respondent with the following address: "4937 Windward Avenue, Tequesta, Fl 33455". This is the address of a friend of Petitioner at whose residence Petitioner sometimes received mail. On July 30, 1990, Respondent sent to Petitioner an "Order on Informal Proceedings and Notice of Informal Hearing" by certified mail, return receipt requested, at the address in Tequesta, Florida. This certified mailing was subsequently returned to Respondent as being unclaimed. The U.S. Postal Service's Form PS 1510 can be used by a member of the public to request that the Postal Service determine why a certified mailing was undeliverable. There was no evidence that either party attempted to use that form in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which finds that Bernard T. Schmoker is not entitled to apply for a new quota liquor license in Martin County, Florida. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of February, 1991. CLAUDE B. ARRINGTON 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5853 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1, 3, 5, and 9 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2, 6, 11, and 12 are rejected as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The proposed findings of fact in the second and fourth sentences of paragraph 4 are adopted in material part by the Recommended Order. The proposed findings of fact in the third sentence of paragraph 4 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraphs 7, 8, and 10 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected because the Petitioner's testimony about that telephone call lacked certainty as to when the call was made and to whom Petitioner spoke. Further, the proposed findings of fact in paragraph 13 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1 and 3-6 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being contrary to the greater weight of the evidence and to the finding that the envelope reflected two attempts at mailing, not three. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Nancy Waller, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32399-1007 Dennis E. LaRosa, Esquire 1901 Welby Way Tallahassee, Florida 32308 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held - by the Respondents pursuant to Section S61.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Adminstrative Code. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by the Respondents, Thomas Olhausen and Henry Stripling, being number 23-1647, Series No. 4-COP, be revoked. THIS RECOMMENDED ORDER entered this 26th day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 26th day of July, 1983. COPIES FURNISHED: William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Mark A. Jacobs, Esquire 18204 Biscayne Boulevard North Miami Beach, Florida 33160 Richard F. Hayes, Esquire Suite 20 4601 Ponce de Leon Boulevard Coral Gables, Florida 33146 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact By Stipulation filed September 11, 1986, the parties agreed to findings of fact 1-11. Donna Sawyer filed a preliminary application to participate in the state lottery for liquor license on January 20, 1984, on Department of Business Regulation form No. 747L. On September 18, 1984, Donna Sawyer was notified by Respondent that she had been selected in the lottery held on September 12, 1984, to be eligible to apply for a state quota liquor license. That on or about November 2, 1984, Donna Sawyer, acting through her wholly owned corporation, Sarasota County Liquors, Inc., filed a sworn "application for Alcoholic Beverage License" (Department of Business Regulation Form No. 700L), with the Division of Alcoholic Beverages and Tobacco. That application included a description of a location which was to be the licensed premises. A Personal Questionaire, Department of Business Regulation Form 710L, was also included by Petitioner with said application. The license application was denied by Respondent on March 8, 1985. The grounds for the denial as stated in the denial letter were Petitioner's failure to provide: (1) proof of right of occupancy to the premises Petitioner was seeking to license; (2) verification of financial investment; (3) business name, and (4) sketch of the premises affixed to the application. On April 10, 1985, Sandra Allen, Esquire, acting on behalf of Petitioner, requested an administrative hearing in order to contest the March 8, 1985, denial of the subject license. Joseph Forbes, Esquire, of Gainesville, Florida, was then retained by Petitioner to resolve the denial of the requested license, which was then pending before the Director of the Division of Alcoholic Beverages and Tobacco, as an informal administrative proceeding, pursuant to Section 120.57(2), Florida Statutes. In this capacity, Forbes, among other things filed a Motion for Continuance and Stipulation in this case attached to a June 6, 1985 cover letter. Forbes thereafter reached an agreement in the informal proceeding with Thomas Klein, Esquire, then counsel of record for Respondent, evidenced by letter dated October 1, 1985, which in its relevant portions indicated: This is to continue our telephone conversation of October 1, 1985, in which the following was discussed and agreed upon: Sarasota Liquors - your client will have 45 days from the date of this letter to cure the defects set forth in the March 8, 1985 letter of denial. Please direct your client to respond to the Tallahassee office. In order to rectify the original deficiencies causing the license denial, Petitioner re-filed an Application for Alcoholic Beverage License, Department of Business Regulation Form 700L, including exhibits, with Respondent, on or about November 13, 1985. Petitioner's re-filed license application was denied by Respondent on February 19, 1986, for two reasons: (1) "Application incomplete as applicant does not have right of occupancy to the premises for which she is seeking to license," and (2) "Division is unable to fully investigate applicant's financial documentation." On or about November 4, 1985, while searching for a location to submit as the licensed premises, in the re-filed application of November 13, 1985, Donna Sawyer and Ocie Allen met with Alton Allen at 258 S. Tamiami Trail, Sarasota, Florida, who was an agent for Walter Spector, owner of several retail store spaces at that address. Ocie Allen, acting on behalf of his corporation, Ft. Myers A & T Corporation, entered into a lease for a store at 258 S. Tamiami Trail, Sarasota, Florida. On or about November 4, 1985, Ocie Allen, acting on behalf of his corporation Ft. Myers A & T Corporation, purportedly subleased the premises at 258 S. Tamiami Trail, Sarasota, Florida to Petitioner. That Petitioner had submitted a letter dated November 4, 1984, signed by Jim Irey, as President of Florida Home Equity of Lee County, Inc., which is attached to the November 13, 1985 application, which stated that certain financial support would be available to the subject alcoholic beverage sales contemplated by Petitioner. That as a result of the investigation following the November 13, 1985 application, Respondent was "unable to fully investigate applicant's financial documentation," since Respondent's agents were unable to locate Jim Irey or his company at the address indicated on the November 4, 1984 letter. Based upon the evidence presented, the following additional findings of fact are made: Donna Sawyer's preliminary application to participate in the state lottery for a quota liquor license included instructions to the applicant that it was the first part of a two part application and that the second part would require proof of occupancy for the premises to be licensed. The second part of the application was that license application filed with the Division of Alcoholic Beverages and Tobacco on November 2, 1984, and again on November 13, 1985. As part of the notification that she was eligible to apply for a state quota liquor license, Donna Sawyer was advised that she had 45 days to file a full and complete application and that if she failed to do so, this failure would be deemed as a waiver of her right to file for a new quota liquor license. The letter also advised her that the Division had 180 days from the date of the drawing to act upon her application. The Petitioner's first quota liquor license application was denied on March 8, 1985. March 8, 1985, was within 180 days of the applicable lottery drawing held on September 12, 1984. The agreement of the parties to resolve the March 8, 1985, denial of the subject license evidences an tacit agreement by the parties to waive any applicable time limits existing at that time in order to allow the Petitioner to resubmit a corrected application within 45 days as allowed by the Thomas Klein letter of October 1, 1985. The Division investigated the Petitioner's second application and determined that the applicant did not have a right of occupancy to the premises sought to be licensed, 258 Tamiami Trail, Sarasota, Florida, because Petitioner only had a purported sublease for the subject premises from Ft. Myers A & T Corporation. Ft. Myers A & T Corporation had obtained a lease for the property on November 4, 1985, from Walter Spector, deceased at the time of the administrative hearing. Said lease between Walter Spector, lessor, and Ft. Myers A & T Corporation, lessee, provided that subleases must be approved by the lessor and be in writing. The Petitioner did not produce evidence of written authorization by Walter Spector to allow Ocie Allen or Ft. Myers A & T Corporation, Inc., to sublease the subject premises to the Petitioner or to any other person. The only evidence of such authorization was the hearsay statement by Ocie Allen that Walter Spector had orally given such authorization. Furthermore, Mr. Alton Allen, then agent for Mr. Spector for leasing this property testified he had no knowledge that Mr. Spector was ever informed of a sublease. Therefore it is found that the sublease violated a material provision of the underlying lease from Walter Spector to Ft. Myers A & T Corporation. Mr. Ocie Allen, agent for the Petitioner and Donna Sawyer, testified and it is found that there was no intention for the Petitioner to operate an alcoholic beverage license at the 258 Tamiami Trail location. Petitioner's November 13, 1985, license application was also denied on February 19, 1986, for: Application incomplete as . . . the Division is unable to fully investigate applicant's financial documentation. This denial was due to the Division's agents being unable to verify the availability of financial funding from Florida Home Equity of Lee County, Inc. The Petitioner had submitted a November 9, 1984 letter from that corporation in its November 13, 1985 license application offering certain funding. Upon checking phone directories and making attempted telephone calls to the source named in that letter, the Division was not able to find the named business as source of funding. The Division further investigated Florida Home Equity of Lee County, Inc. as an alleged source of funding by sending an agent, Robert B. Baggett, to the address supplied by the applicant in a November 9, 1984 letter from Florida Home Equity of Lee County, Inc., only to find that no such business was located there and no neighbors knew of a new location. Sandra Allen, Esquire, testified that the source of the funding at the time of the second application was a new company run by the same person who was behind Florida Home Equity of Lee County, Inc., which was named as the source in the November 9, 1984 letter. However, this new company's name and address and verification of continued financial support to the Petitioner could not reasonably be determined by the Division and no evidence was presented that the Division had ever been provided with said new company's name or location prior to the denial of the second license application. Contradictory testimony was presented by Lt. Ewing and Sgt. Mills as to the existence of a policy requiring a "14 day" deficiency notice letter to applicants. It is clear that that policy was not recognized in the office supervised by Sgt. Mills. It was also not established that Lt. Ewing had the authority to set or enunciate policy for the Division.
Findings Of Fact Petitioner was notified by DABT on September 18, 1984, that its name had been drawn in the lottery for a new quota liquor license in Hillsborough County, Florida. The prescribed application form was timely filed by Petitioner on November 2, 1984. The lease for the premises at which the license was to be operated was a three-month lease which expired before DABT took action on the application. Thereafter, Petitioner did not have a lease on premises from which to operate the license. On March 7, 1985, Petitioner waived the 180-day period given in the statute which DABT had to rule upon the application. On August 8, 1986, Petitioner requested DABT issue the license in escrow. On August 13, 1986, DABT denied the request to issue a new quota license in escrow and gave Petitioner 45 days in which to file a new application, Part II. Petitioner timely filed this second application September 26, 1986. Upon review by DABT this application was deemed incomplete by reason of lack of approved zoning of the site and Petitioner was so notified. All information requested by DABT was provided with respect to the zoning of the proposed site, except certification by zoning officials that the site was wet zoned. On February 9, 1987, Petitioner's application was denied for the reason that the applicant had failed to obtain zoning approval for the proposed site. Patsy Frenchman is the sole owner of the stock in Hillsborough County Liquors, Inc., and has operated package stores in Alachua County for some time. Following the waiver of the 180-day period in which DABT had to rule on the application the file "fell through a crack" and no action was taken by Respondent for over a year. When this file again became active it was determined to allow Petitioner to resubmit a new application and the 45-day period in which to do so was started. Petitioner prepared the new application, found a site in Ruskin, Florida that had previously been used as a package store, took the landlord to the County Zoning Department in Ruskin who confirmed the prior zoning of the site, and then negotiated a lease for this site. When she returned the following day to the Ruskin Zoning Office to get her application signed off by the Zoning Department that the site was properly zoned, she was told that it was necessary to have the application signed off by the main Hillsborough County Zoning Office in Tampa, Florida. Petitioner then took the application to Tampa where no record that this site was wet zoned could be located. Petitioner was advised that she could apply for zoning and was given the proper forms with which to do so. After being told by the main zoning office that the site was not zoned to allow the sale of alcoholic beverages, Petitioner obtained the services of an attorney to help straighten out the problem. Petitioner submitted the application with a letter from the zoning official stating the zoning of this property was zoned C-1 (neighborhood commercial) and this zoning would allow the sale of alcoholic beverages after going through the alcoholic beverage zoning process (Exhibit 2). This application was deemed incomplete by Respondent because it did not contain a site for the license which was properly zoned. However, DABT did not disapprove the application but gave Petitioner time to sort out the zoning problems. Hillsborough County has what is referred to as spot zoning. A site can be zoned to accommodate a liquor store but once the operator moves from the site the zoning reverts to a general commercial zoning and cannot be used as a package store site without again obtaining zoning for such a purpose. Apparently, Petitioner did not fully understand this concept but continued to assume that once the site was zoned for a package store it could again be so used without the necessity of going through the procedures and expenses of rezoning. Near the end of the 180-day period for Respondent to act on the application, DABT requested a waiver of this 180-day period but Petitioner declined to so waive. A final check with the Hillsborough County Zoning Department made by Respondent's Tampa Office on February 4, 1987 revealed that the site selected by Petitioner was not wet zoned and that Petitioner had never submitted an application to have the site zoned for use as a package store. All of this information was submitted to Respondent's Tallahassee office and on February 9, 1987, the 180th day from the second authorization to Petitioner to file, the application was denied. Once a new quota liquor license has been issued the holder can place the license in escrow for 18 months. In many cases the initial site shown on the application for a new quota license is a small space inadequate for the licensee to operate from, but which meets the zoning requirements for licensure. Upon issuance of a new quota license, some licensees have immediately requested same be placed in escrow for up to 18 months while an adequate site is located. While the first application was pending, Petitioner testified she inquired of the Tampa Beverage Office if she could amend her application to a new site since the 3 month lease on the originally approved site could not be renewed and was advised she could not. DABT personnel have no recollection of having given such information and no documentation of such an inquiry was presented. DABT has in the past allowed an applicant for a new quota license to change to a new location while the application was being processed. (Exhibit 5). Here Petitioner never obtained an approved new location nor applied to have the application amended to show the new location. Section 361.19(2), Florida Statutes, provides for the issuance of new quota licenses by the Division. This section provides in part that if the applicant is found qualified, the new quota license shall be granted; however, it shall not be issued until the applicant establishes to the satisfaction of the Division that the premises to be licensed qualify under the Beverage Law. The long-standing interpretation of this section by the Division is that the granting and issuing of a new quota license is done simultaneously when the applicant and the location meet all requirements, and is not bifurcated into a process of granting a license and then issuing a license.
Findings Of Fact Millard Futch is presently the district supervisor for District 4, Division of Beverage and formerly district supervisor for District 6, Division of Beverage, at the time the Petitioner made application for an increase in the series of his beverage license. Mr. Futch indicated the reason that the request for increase in series was disapproved, was because that a series 4-COP license is a quota license and that at present all quota licenses in Pinellas County, Florida are held by other license holders, either as active licenses or licenses under administrative restraint. Therefore, as of the date of the hearing and the date of the request for increase in series, a quota license in Pinellas County was not available. The witness further testified that the 2-COP license being held by the Petitioner enables the Petitioner to sell beer and wine on the premises in package and to sell spiritous liquor for consumption off the premises. The principal difference, according to the witness between 2-COP license and the increase series 4-COP license was that 4-COP license would allow the consumption of spiritous liquors on the premises. The witness indicated that the only available methods for the Petitioner to receive a 4-COP license was for other quota licenses to be authorized at the time of the completion of the 1980 federal census. It was stated that upon the completion of that census the Petitioner together with other applicants could apply for such additional quota licenses as would be authorized by the increase in population in Pinellas County, Florida. It was also indicated that the possibility would be available for the Petitioner to purchase an existing quota license in Pinellas County, Florida, if the Petitioner was otherwise qualified under the guidelines of the Division of Beverage. Finally the witness, Mr. Futch, did not indicate any further reason for the disapproval of the increase in series as applied for by the Petitioner. The Petitioner, after hearing the testimony offered by Mr. Futch in explanation of the Respondent's position, declined to make any presentation in his own behalf.
Recommendation Based upon the facts as presented in the course of the hearing, it is recommended that the Petitioner, Walter Booze, t/a HobNob Tavern be denied his request for an increase in series of his beverage license from one of 2-COP to 4-COP. DONE and ENTERED this 11th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter Booze 318 North Garden Avenue Clearwater, Florida 33515 William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304
The Issue Whether or not on or about October 31, 1978, the Respondent, Cesar Augustus Rodriguez, a licensed vendor or distributor, or his authorized agent, did sell alcoholic beverages with an improper license, to-wit: Selling under authority of a license when the license fee required for renewal had not been properly paid, contrary to Section 562.12, Florida Statutes.
Findings Of Fact On September 30, 1978, the Respondent, Cesar Augustus Rodriguez, issued or caused to be issued a check in the amount of $1,750.00 made in behalf of the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The purpose of this check was to pay for the annual renewal of Respondent's beverage license, Number 39-994, 4-COP, under which the Respondent was trading as Tom's Place. The requirement for payment of the renewal of the license is established by Section 561.27, Florida Statutes. The check for payment was drawn on the Barnett Bank of Tampa. When presented by the Petitioner for payment, the check was returned on the basis that there were insufficient funds for the check to be honored. The check number in question was check No. 407, drawn on account No. 01704386. (The facts as stated above were arrived at pursuant to a stipulation entered into by the parties and placed on the record during the process of a formal hearing conducted pursuant to Section 120.57, Florida Statutes.) Representatives of the Petitioner tried on a number of occasions to get the Respondent to pay the required license fee by an instrument that was negotiable. Those representatives were unsuccessful in their attempts, and on October 30, 1978, Captain R. Caplano, District VI Supervisor, Division of Alcoholic Beverages and Tobacco dispatched officers to retrieve the aforementioned beverage license from the premises known as Tom's Place. The license was brought back to the District headquarters. Around 4:55 p.m. on October 30, 1978, the Respondent came to the District office of the Petitioner with the intention of redeeming the license to Tom's Place and two other licensed premises owned and operated by him, namely, Port Tampa Bar and Rene's Lounge. Rodriguez offered to pay the licensing fee in cash; however, there was insufficient cash to pay the entire fee required and the necessary penalty established under Section 561.27, Florida Statutes. Moreover, the language of of Rule 7A-2.15, Florida Administrative Code, establishes that the Petitioner shall accept only a cashier's check, money order or certified check in payment for the license fee once an insufficient funds check has been tendered for that payment initially. During the course of the meeting between the Respondent and Captain Caplano on the afternoon of October 30, 1978, held in the District office, Mr. Rodriguez indicated his concern that he not be able to operate during the interim period necessary to obtain the proper form of payment for the license fee and penalty. After that discussion, the license to Tom's Place and the other licenses discussed were returned to the Respondent with the understanding that the Respondent was to bring in the proper license fees and penalty payments on the following morning, October 31, 1978; immediately after the banking institutions had opened, to allow the Respondent to obtain the necessary cashier's checks. The Respondent was under the impression that between the hours that his licenses had been returned to him and the time on the morning of October 31, 1978, to make the proper payment, he was at liberty to operate the licensed premises to the extent of selling alcoholic beverages. Captain Caplano, through his testimony in the course of the hearing, established that the act of returning the license on the evening of October 30, 1978, was tantamount to allowing the Respondent to operate, conditioned upon the immediate payment of the license fees on the following morning of October 31, 1978. The licensed premises, Tom's Place, was opened the next morning at 7:05 a.m. It opened after the license had been seized on the prior afternoon of October 30, 1978, at 4:31 p.m. and after advising the employee on duty for the Respondent that no more alcoholic beverages could be sold following the seizure. This arrangement was superseded by the arrangement between the Respondent and Captain Caplano, which was made in the late afternoon of October 30, 1978. Turning back to a consideration of the situation on October 31, 1978, at the time Tom's Place was opened, a different employee was on duty than that person who was there on the afternoon of October 30, 1978. This new employee was one Corine Lewis. At about the time the premises opened, she called the stepson of the Respondent to ascertain whether or not alcoholic beverages could be sold. The response of the stepson, who was acting under the authority of the Respondent, was to the effect that the "boss" was on the way with the license, creating the belief in the mind of Ms. Lewis that she could sell alcoholic beverages. At around 8:30 a.m., the same Ms. Lewis called the Petitioner's office and spoke to Beverage Officer John Allen, the same officer who had removed the license from the premises on the afternoon of October 30, 1978. Officer Allen instructed Ms. Lewis not to sell any alcoholic beverages without the license being available. Following the conversation between Ms. Lewis and Officer Allen, the Respondent came to the District headquarters around 10:00 a.m. on October 31, 1978, with the necessary funds to pay for the renewal of the licenses pertaining to Port Tampa Bar and Rene's Lounge. He did not have the necessary funds to pay for the renewal of the license for Tom's Place. He indicated to officials at the District office of the Petitioner, that it would be necessary for him to obtain a cashier's check from a separate bank for the payment of the license for Tom's Place, meaning by that a separate bank than the one from which the cashier's checks were issued for the purpose of paying the licenses for Port Tampa Bar and Rene's Lounge. Rodriguez indicated that he would leave the license for Tom's Place until he could obtain the money for the license fee. He did in fact leave that license with the Division of Alcoholic Beverages and Tobacco and the fee was paid sometime in the early afternoon of October 31, 1978. At around the time the conversation was occurring between the Respondent and Captain Caplano, the representative of the Petitioner, Officer Allen had returned to Tom's Place. When he entered the licensed premises, he discovered a number of patrons in the premises and opened beer bottles in evidence. Officer Allen inquired of Ms. Lewis about the license and Ms. Lewis informed him that she did not have the license. Officer Allen then left the licensed premises and called Captain Caplano to ascertain the whereabouts of the license. He also advised Captain Caplano that alcoholic beverages had been sold in the licensed premises on the morning of October 31, 1978. Captain Caplano indicated that he had the license and that the license fee had not been paid and that Officer Allen should write a citation for selling alcohol without a license if in fact that had occurred at a time when the premises was not operating under an authorized beverage license. Officer Allen followed those instructions, and cited the licensee for a violation of Section 562.12, Florida Statutes, which pertains to selling alcoholic beverages with an improper license. While Officer Allen was still at the licensed premises the morning of October 31, 1978, the stepson of the Respondent arrived at that location to close the bar, and did close it. Under the circumstances, the Respondent was of the persuasion that he could operate the bar until such time as the license fee had been properly paid after the bank had been opened on the morning of October 31, 1978. He did not feel that he had the opportunity to visit two banks to get the necessary cashier's checks, prior to reporting to the District office of the Petitioner to pay the license fees and penalties. Captain Caplano was of the belief that the licensee could operate on the evening of October 30, 1978, but did not envision the right of the licensee to operate on the morning of October 31, 1978, if the licensee did not immediately tender payment for the license fees on the morning of October 31, 1978. In the mind of Captain Caplano, the idea of selling any form of alcoholic beverages on the morning of October 31, 1978, without first paying the license fee for Tom's Place constituted the sale of alcoholic beverages under an improper license. It is unclear exactly when the alcoholic beverage was sold on the morning of October 31, 1978, in Tom's Place. Ms. Lewis' testimony is to the effect that one beer was sold sometime between 7:05 a.m. and 8:30 a.m., with 8:30 a.m. being the time at which Officer Allen advised Ms. Lewis that no alcoholic beverages should be sold on that morning without the license being on the premises and this testimony is unrefuted by the Petitioner. In view of the totality of the facts, it has not been demonstrated by the Petitioner that the Respondent was acting in derivation of the inherent authority to sell alcoholic beverages extended to him when the licenses were returned to him on the afternoon of October 30, 1978, through the person of Captain Caplano. Therefore, there has been no showing of a violation of Section 562.12, Florida Statutes.
Recommendation It is recommended that the case before the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Number 33276- A, be dismissed. DONE AND ENTERED this 6th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Cesar Augustus Rodriguez t/a Tom's Place 2605 West Kennedy Boulevard Tampa, Florida 33609
The Issue The issue to be determined is whether Petitioner’s request to renew a lien against alcoholic beverage license number 62- 08383 on or about July 8, 2011, should be approved or denied.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent is the state agency charged with the licensing, regulation, and enforcement of Florida’s alcoholic beverage laws pursuant to section 20.165(2)(b) and chapters 561- 568, Florida Statutes, including recordation of liens against alcoholic beverage licenses and provision of notice to lienholders pursuant to section 561.65. Petitioner is the holder of a recorded lien against alcoholic beverage license number 62-08383, a 4COP spirituous alcoholic beverage license, commonly referred to as a quota license, which was issued pursuant to sections 561.20(1) and 565.02(1)(a)-(f) for use in Pinellas County. Liens and Security Interests in Alcoholic Beverage Licenses Section 561.65 governs mortgages, liens, and security interests against spirituous alcoholic beverage licenses. DABT has a lien section within its Bureau of Licensing that is responsible for the oversight of lien recordings and lien searches. To perfect a lien or security interest in a spirituous alcoholic beverage license that may be enforceable against the license, the entity holding the security interest or lien must record it with DABT within 90 days of the date of creation of the lien or security interest, using forms authorized by DABT. The forms adopted by DABT require the names of the parties and the terms of the obligation being recorded. § 561.65(4), Fla. Stat. Form DBPR ABT-6022, Application for Mortgagee’s Interest in Spirituous Alcoholic Beverage License, is used to record a new lien, a lien assignment or assumption, or a lien renewal or extension. The form is adopted by rule. Fla. Admin. Code R. 61A-5.0012. Upon receipt of a request to record a lien or the renewal of an existing lien, DABT will review the provided documentation and, if the documentation is in order on approved forms and accompanied by the security agreement and statutorily- required payment, will record the lien or lien renewal. If there is a deficiency noted during review of the lien documentation submitted, DABT will issue a 14-day deficiency notice to the requesting entity to provide any missing information. If timely corrected, DABT will record the lien or lien renewal. Section 561.65(4) provides that any lien or security interest filed with DABT on or after July 1, 1995, expires five years after recordation by DABT unless renewed by the lienholder within six months prior to its expiration date. Statutory Notice Requirements to Lienholders Recording a lien not only makes it enforceable, but provides assurance to the lienholder that it will receive notice of pending actions by DABT against the license that may compromise the lien’s vitality. Section 561.65 also sets forth requirements for DABT to provide notice to lienholders of both pending actions against encumbered licenses and any suspension or revocation of a license subject to a lien. Specifically, section 561.65(3) provides that “such lienholder shall be notified in writing of the filing of an order to show cause as to why the license should not be suspended or revoked; and also the lienholder shall be furnished a copy of any order of suspension or revocation.” (Emphasis added). In other words, two separate notices are required: one when the agency institutes proceedings against the licensee and a second if the agency action against the licensee results in a suspension or revocation of the license. Respondent does not assert and no evidence was presented to demonstrate that Petitioner had knowledge of or participated in the cause for revocation of the license at issue in this proceeding, or that Petitioner would not otherwise be entitled to notice of the revocation proceeding. The holder of a recorded lien is entitled to notice because the lienholder has the right to enforce the lien against the licensee within 180 days after the entry of any order of revocation or suspension of the license. Section 561.65(3) specifies that “the 180 days within which to file for enforcement of the lien by the lienholder shall commence running from the date of the mailing of the copy of the order of revocation or suspension.” Thus, the 180-day period runs from when notice is sent to the lienholder, not from the entry of the final order of suspension or revocation. Once notice is provided to the lienholder, any enforcement of the lien is through foreclosure proceedings in circuit court. The process for foreclosure proceedings is outlined in section 561.65(5). Most importantly, both section 561.19(2) and section 561.65(1) provide that no revoked quota beverage license encumbered by a lien or security interest perfected in accordance with section 561.65 shall be issued until the 180-day period (from mailing of the suspension or revocation order) has elapsed or until such enforcement proceeding is final. Re-issuance Through Double Random Drawings Quota licenses may become available three ways: 1) when a dry county goes wet (i.e., a county that previously prohibited the sale of alcohol decides to allow it), three initial quota licenses are issued for the county; 2) when there are population increases in a county, an additional quota license is issued for every population increase of 7,500; and 3) when a quota license in a county has been revoked. When any of those instances occur, pursuant to the directive in section 561.19(2), quota licenses are issued through the use of a double random public drawing. While a revoked quota license may be reissued in a double random quota drawing, if a revoked quota license is encumbered by a perfected and recorded lien or security interest, as discussed previously, it may not be reissued until the 180-day period has elapsed or until enforcement/foreclosure proceedings are final. Damon Larry is currently the assistant bureau chief of licensing, and oversees the annual quota drawing. Each year, he runs a report of all revoked quota licenses and, if the revocation is final, determines whether the 180-day period has elapsed. Before a revoked quota license is placed in the double random drawing, there is communication between staff in different sections within the Department to determine if a license is eligible for inclusion in the quota drawing. The communications involve the quota drawing section, the licensing section, the administrative case unit, the Office of the General Counsel, and the lien section. During this process, DABT staff will determine whether there is a lien attached to the license and, if so, whether there was notice to the lienholder, and whether the 180 days has elapsed or foreclosure proceedings no longer remain pending. If all of these conditions have been met, the revoked license is placed in the quota drawing for reissuance under a new license number. The revoked license number is then deleted from the Department’s database. Petitioner’s Lien Against Alcoholic Beverage License No. 62-08383 Turning to the facts of this case, Daniel A. King, as debtor, executed and delivered a Demand Promissory Note in favor of Rebco on or about April 18, 1997, in the principal amount of $61,000, and simultaneously executed a security agreement in favor of Rebco, as the secured party, pledging license number 62-08383 (the License) as collateral for repayment of the sums due and owing under the Promissory Note. Rebco submitted the promissory note and security agreement to DABT for initial recordation as a lien against the License on or about May 1, 1997, within 90 days of the date of the creation of the lien, on forms approved by the Division. The forms clearly identified the parties and the obligation. DABT recorded the lien against the License effective May 8, 1997. If not timely renewed, the lien would expire on May 8, 2002. Rebco submitted a request to renew its existing lien against the License for recordation on or about November 7, 2001, within six months of expiration of the lien, on forms approved by the Division. The request for renewal was accompanied by the promissory note and security agreement, and the forms clearly identified the parties and the obligation. DABT recorded the lien renewal against the License effective November 7, 2001. If not timely renewed, the lien would expire on November 7, 2006. Rebco submitted a second request to renew its existing lien against the License for recordation on or about July 26, 2006, within six months of expiration of the lien, on forms approved by the Division. The request for renewal was accompanied by the promissory note and security agreement and the forms clearly identified the parties and the obligation. DABT recorded the lien renewal against the License effective August 1, 2006. If not timely renewed, the lien would expire on August 1, 2011. The License Revocation Proceedings On or about November 16, 2006, at a time when the lien was recorded in the records of DABT, DABT filed administrative charges against Daniel J. King, holder of the License, in Case number 2006-049240, alleging that the licensee failed to operate the License in accordance with section 561.29(1)(f). DABT was unable to achieve personal service on Mr. King, so it published notice of the administrative action in the St. Petersburg Times on May 2, 9, 16, and 23, 2007. The published notice did not identify Petitioner, and no evidence was presented to indicate that DABT sent a copy of the notice to Rebco. Rebco clearly had a recorded lien against the License when the disciplinary action was filed against the License. DABT did not notify Petitioner of the pending action. On or about June 22, 2007, after receiving no written defense in the disciplinary proceeding, DABT issued a Final Order revoking the License effective July 31, 2007. The Final Order of Revocation was not served on Rebco, the owner of the security interest in the License. Petitioner had a recorded lien against the License on file with DABT both when proceedings were instituted against the License and on the date of the entry of the Final Order of Revocation. Stephanie Coxwell works in the administrative case unit of DABT and has done so for at least the last 14 years. The administrative case unit is responsible for determining whether an alcoholic beverage license that is pending revocation or suspension is encumbered by a lien and for notifying any lienholder of the revocation or suspension of an encumbered license. DABT’s practice was to mail any lienholder notice of the license suspension or revocation, along with a copy of the final order, soon after entry of the final order. It is this mailing of the notice and final order that commences the 180 days referenced in section 561.65. For at least the last 14 years, DABT has used a form “notice to lienholder” to notify lienholders of the revocation or suspension of an alcoholic beverage license, accompanied by a copy of the final order revoking or suspending the license. The notification form is a public record maintained by DABT. It is this notification, and not the publication of the pending action, that provides notice to the lienholder. Internal correspondence from Ms. Coxwell within the licensure file for the License indicates that in December 2006, she requested a lien search with respect to the License. Ms. Coxwell was advised by return e-mail that Rebco had a recorded lien against the license. On or about March 21, 2007, Ms. Coxwell requested research for any bankruptcy proceedings affecting the License. She was again informed by intra-agency e-mail that Rebco had a recorded lien against the License. Ms. Coxwell replied by e-mail that she was aware that there was a lien, but that they would notify the lienholder of the administrative action “in the usual way.” However, Ms. Coxwell’s March 27 e-mail was sent three months before the final order revoking the license, not simultaneous to the Order. There is no record that notification was sent to Rebco, either at the time of the administrative action, or after issuance of the final order. Beverly Peebles works in Rebco’s corporate office located at 701 Tennessee River Drive, Muscle Shoals, Alabama 35661, and has done so since 1990. She is responsible for receiving, retaining, and disbursing any mail received by Rebco. Ms. Peebles testified regarding the process used to copy, scan into the company’s electronic database, and distribute any mail received by Rebco. Rebco did not receive any notice concerning the administrative action or the revocation of the License until Rebco received the letter denying the recordation of its lien renewal against the license in 2011. Rebco’s address was at all times on file with the DABT since the inception of the lien against the license in 1997. It is found that the DABT did not notify Rebco that there was an administrative action filed against the License, and did not notify Rebco of the Final Order of Revocation against the License. The licensure file contains all other expected documents from the first recordation of the lien in 1997 to the present. It does not include a copy of notice to Rebco of either the pending action or the Final Order of revocation. Moreover, both a letter dated August 19, 2011, to counsel for Rebco, as well as an e-mail dated March 21, 2007, from Ms. Coxwell, contain handwritten notes regarding the failure to send proper notification. The notes, which are clearly hearsay, are part of public records maintained in the normal course of business, and corroborate Ms. Peebles’ testimony that no notification was received. They also corroborate evidence of the absence of any record of notification to Rebco in DABT’s records of regularly-conducted activity. The August 19, 2011, letter contains a handwritten note at the top stating, “$61K lien no lien ltr sent,” and the e-mail dated March 21, 2007, referenced in paragraph 32, contains the following note: “are we the only group/people who check for current liens recorded before deleting the license? It was deleted on 5/4/2011. Lien was still recorded at that time.”2/ Respondent has presented no credible evidence to indicate that the notice was somehow sent despite the lack of any documentation to that effect contained in the DABT’s records. While the handwritten notes standing alone do not establish that no notice was sent, they do indicate that a question was raised internally regarding whether adequate notice was provided. Despite the failure to notify Rebco of the revocation of the License, the License was placed in the 2010 double random drawing held on March 10, 2011, at a time when a valid lien against the License was duly recorded. Only one license for Pinellas County was included in the drawing for that year, and no licenses for Pinellas County have been issued in a double random quota drawing since then. Shortly after the random drawing, the license number assigned to the License was removed from the Department’s system and a new number assigned to the license issued as a result of the drawing. While there is no direct testimony on the issue, it can be inferred that the purchaser of the new license received the license with no notice that there was any outstanding lien on the right to engage in the sale of alcoholic beverages in Pinellas County under the new license. While it is DABT’s practice to delete a revoked license number from its database, no evidence or statutory reference was presented to support the premise that there is a legal impediment to renewing an existing lien for a revoked license when no notice of the revocation was provided. Given the Department’s failure to notify Rebco of the revocation of the License, the 180-day period identified in section 560.65 never began to run. On or about July 6, 2011, Rebco timely submitted a third request to DABT to renew its existing lien against the License for recordation, within six months of expiration of the lien, on forms approved by the Division, which request was accompanied by the promissory note and security agreement. DABT notified Rebco by letter dated July 19, 2011, that it was unable to record the lien renewal because it was not submitted for recordation within 90 days of its creation. The July 19, 2011, notice of denial was issued based upon a review of the lien renewal request submitted to DABT, because the executed ABT6022 lien-recording form submitted with Rebco’s third renewal request mistakenly identified the effective date of the lien renewal as April 18, 1997, the date of the creation of the original lien. On or about July 25, 2011, Rebco submitted an amended form ABT6022 correcting the effective date for renewal of the lien as August 1, 2011. On August 3, 2011, DABT notified Rebco that it was unable to record the renewal of the lien against the License because “the alcoholic beverage license being pledged as collateral was revoked by the Division on July 31, 2007,” following service of a Notice of Action through publication in the St. Petersburg Times on May 2, 9, 16, and 23, 2007. No action taken by Rebco compromised the vitality of its recorded lien against the License. To the contrary, Rebco faithfully adhered to the recording requirements outlined by statute to record and renew its lien. DABT, however, failed to take the action required by section 561.65 to provide notice to Rebco of the pending action and subsequent revocation of the License. As a result, the 180- day period required by section 561.65 did not run before the License was placed in the quota drawing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order approving the renewal of Rebco’s lien in the License at issue in this case. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue Whether or not on or about the 14th day of May, 1976, Mary Lener Arnold, a licensed vendor, did have in her possession, permit or allow someone else to have unlawfully in their possession on Mary Lener Arnold's licensed premises, alcoholic beverages, to wit: 9 half-pints of Smirnoff Vodka, not authorized by law to be sold under her license, contrary to 562.02, F.S.
Findings Of Fact The Respondent, Mary Lener Arnold, t/a Buggs' Drive Inn, held on May 14, 1976 and now holds beverage license no. 50-2 series 1-COP with the State of Florida, Division of Beverage. This licensed premises is located on Main Street, Greenville, Florida. On May 14, 1976, a confidential informant with the Division of Beverage went to the licensed premise of the Respondent in Greenville, Florida and purchased a bottle of alcoholic beverage not permitted under a 1-COP license. This confidential informant was working for officer B.C. Maxwell of the State of Florida, Division of Beverage. Officer Maxwell along with other officers with the Division of Beverage and officers of the Madison County, Sheriff's office returned to the licensed premises on May 14, 1976 and in looking through the licensed premises found a black bag containing 9 half-pints of Smirnoff Vodka on the licensed premises. This Smirnoff Vodka was not permissible on the licensed premises under a 1-COP license. On the licensed premises at the time of the inspection was one Patsy Jackson Williams who indicated that she was in charge of the premises. The confidential informant who had purchased the bottle of alcoholic beverage indicated that his purchase had been made from the same Patsy Jackson Williams. The black bag with its contents of 9 half-pints of Smirnoff Vodka is Petitioner's Exhibit #2 admitted into evidence. The alcoholic beverage purchased by the confidential informant is Petitioner's Exhibit #4 admitted into evidence.
Recommendation It is recommended that the Respondent, Mary Lener Arnold have her beverage license suspended for a period of 30 days based upon the charge proven in the hearing. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry D. Winson, Esquire Staff Attorney Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Mary Lener Arnold t/a Buggs' Drive Inn Main Street Greenville, Florida
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
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
