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
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
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 respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.
Findings Of Fact Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6). Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked. DONE and ENTERED this 26th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1983.
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 Whether the Petitioners are entitled to a transfer of the quota license they attempted to apply for in their initial application. Whether the Petitioners are entitled to an alcoholic beverage license for a restaurant based upon their second application. Whether the Petitioners are entitled to an alcoholic beverage license based upon their third application in spite of the county's refusal to approve the zoning of the proposed location until a pending declaratory judgment before the circuit court is resolved. Whether the Respondent is estopped to deny any of the applications because of the representations made by a field agent for the agency that to his knowledge, there were no problems at the proposed location.
Findings Of Fact The joint stipulation of facts entered into by the parties on December 21, 1988, are adopted as the findings of fact in this proceeding. A copy of the stipulation is attached and made part of this Recommended Order.
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 Tanga Lounge, operated by Respondent Rodde Inc., is located at 6333 West Columbus Avenue, Tampa, Florida. This facility has been licensed by Petitioner at all times relevant to these proceedings. Respondent's records show Mr. Joe Redner as the sole stockholder and corporate officer of Rodde, Inc., which is the holder of alcoholic beverage license No. 39-738. Case No. 81-2566 contains three counts of begging or soliciting for alcoholic beverages by employees of Respondent on August 6, 1980. Testimony by former Beverage Officer White established that the solicitations of three drinks by two employees were made as charged in the Notice to Show Cause. White purchased the drinks as requested by these employees, who received a "ticket" for each of the drinks purchased for them by White. Case No. 81-2567 contains 44 counts of begging or soliciting drinks by various employees of Respondent and 44 counts charging that Respondent conspired with these employees for the purpose of soliciting drinks. These charges are primarily based on the investigations of Beverage Officers Gary Hodge and Michael Freese. The period of their investigation was October 17, 1980 through May 15, 1981. Count 52 was based on a solicitation of Detective Phil Mickel of the Tampa Police Department, who was in the licensed premises in an undercover capacity on November 6, 1980. At the request of dancer-employee Cathy Andrews, Mickel purchased a "double" for her and observed that she received two tickets from the waitress. 5 Former Tampa Police Department Detective Nick Haynes was in the licensed premises on November 6, 1980, and was approached by the dancer-employee, Cheryl Jonas, who requested that Haynes purchase a drink for her. He did so. This transaction occurred as charged in Count No. 51. Beverage Officer Freese individually and in conjunction with Beverage Officer Hodge, accounted for 38 solicitation charges (Counts 53-57, 59-63, 66, 68-88, and 163-167) . The solicitations charged in Counts 53, 55, 71-80, 83, - 84, 88, 163, 166 and 167 occurred as alleged and involved direct requests for the purchase of drinks ("Will you buy me a drink," or words of similar import) . Freese observed employees receive tickets for these drinks from the bartender or waitress in most instances. The solicitations charged in Counts 54, 56, 57, 59-63,66, 68-70, 81, 82, 164 and 165 were not supported by evidence of direct requests for the beverage purchases by employees of Respondent. At a meeting held about December 17, 1980, Beverage Officers Freese and Hodge were instructed by their supervisor to require that dancers request drinks before ordering. This procedure was adopted to avoid situations where the beverage officer was not asked to buy a drink, but eventually received the bill for the dancer's drink. In implementing the instructions, Freese used these or similar words: "If you want a drink, ask for it.", This statement possibly misled the dancers to believe that Freese was inviting them to order whenever they wanted drinks. The date when Freese first used this statement was not established, but it was subsequent to the mid-December meeting. It was noted that Freese was not solicited during the first two months of the investigation. Therefore, all or substantially all of the solicitation charges involving Freese took Place after he first issued the "invitation." Beverage Officer Hodge individually testified as to solicitation Counts 58, 64, 65 and 67. Counts 58, 65 and 67 did not involve a direct request for beverage purchase. Count 64 occurred as alleged and was based on a direct request for beverage Purchase ("Why don't you buy me one now?"). This request was made during the early morning of January 13, 1981. Although this was after the December meeting which Hodge attended, it was not shown that he made any statement which could have been interpreted as an "invitation" by any employee of Respondent. The fact that customers regularly Purchased drinks for the dancers was well known to the management as evidenced by the tickets issued to employees for drinks purchased in their behalf. These tickets were redeemable by the dancers for one dollar each. Thus, employees were rewarded and implicitly permitted to solicit drinks. Respondent's announced policy was, however, to reprimand or discharge any employee who was caught begging or soliciting drinks. This policy was attested to by bartenders; former employees and dancers. Although it cannot be found that Respondent actively encouraged its employees to solicit drinks, it did encourage socializing with customers to a degree which would elicit offers to purchase drinks for them. Respondent has since discontinued the practice of issuing tickets or other employee incentives to obtain customer purchased drinks. Counts 127 through 161 involve drug charges. Purchases were made by Beverage Officer Freese and Hedge, individually and together. Their testimony and that of Florida Department of Law Enforcement Crime Lab personnel established that controlled substances were purchased from dancer-employees of Respondent on the licensed premises as charged in Counts 127 through 137, 156 and 158. The transactions which-were established to have been carried out involved cocaine, methaqualone and cannabis deliveries by dancer-employees Margie Wade, Janie Marsie, Lori Basch and Lisa Scibilia on February 21, 24, 27; March 2, 9, 13, 17, 23; May 13, 15, 1981. It should be noted that Counts 136 and 137 actually involved one transaction where Hodge and Freese split the delivery. Count 161 concerned a transaction outside the licensed premises and this count, as well as Count 158, involved an employee of another establishment. Petitioner's Exhibit 43 and the supporting testimony concerned a transaction for which there was no charge. Counts 138 through 151, 154 and 159-161 alleged conspiracies to deliver controlled substances corresponding to other counts which alleged actual deliveries. There was testimony on the involvement of third person (not shown to be associated with the Respondent) only as to Counts 134, 146, and 147, which essentially covered a single transaction. No other evidence of conspiracy was presented. On one occasion, Redner was in the Tanga Lounge and within about 15 feet of the beverage officer and the dancer when the delivery took place. However, there was no evidence that Redner was involved or that he had any knowledge of the transaction. Testimony by a former employee that Redner participated in drug use was lacking in credibility and was not corroborated. Counts 3 through 30 and 33 through 50 are charges of lewd dancing by employees of Respondent on the licensed premises. The charges cover 46 dances on 12 separate dates between October, 1980, and February, 1981, performed by 11 different dancer-employees. The acts complained of in these counts were witnessed and attested to by Beverage Officers Hodge and Freese and Tampa Police Department Detective Mickel. The alleged lewd conduct included exposing of the breasts, vagina and anus by dancers during their on-stage performances. Typically, the dancers received dollar tips which customers placed in their bikini bottoms. Some dancers allowed customers to reach inside the bikinis in order to touch their pubic areas. On several occasions the dancers squatted and picked up the dollar bills with their exposed genital areas. On December 11, dancer Cathy Andrews rubbed her vagina, then rubbed the genital area of Beverage Officer Freese, who was observing the dance. Mr. Redner was present during much of the alleged lewd conduct. Although Redner testified that "flashing" was acceptable, the exposure of sexual organs as attested to was not limited to brief "flashes," but was prolonged. Further, Respondent's contention that dancers receiving tips tried to avoid contact by customers is not credible. Rather, the testimony of the officers established that dancers frequently encouraged customers to place their hands against the dancers pubic areas when offering tips. Respondent's, lounge is advertised as an adult entertainment facility and is generally known to include nude dancing. There was no competent evidence as to community standards for this type of conduct in the Tampa area, nor was there any evidence that these acts shocked or offended anyone present other than the investigating officers. Detective Mickel conceded that about five other bars he has visited offer this type of entertainment. Counts 31 and 32 concern an offer of prostitution by one of the dancer-employees to the beverage officers. Their testimony established that the offer was made as charged. This was, however, a single incident and there was no evidence that such offers were recurring or that Respondent had knowledge of this transaction. Counts 1 and 2 of Case No. 81-2567 allege that Robert Rodriguez holds an undisclosed interest in the licensed premises. Such interest, if any, was not reflected in the license transfer application submitted on April 23, 1976. Rather, Joseph Redner and Joe DeFriese were identified as the sole stockholders with no direct or indirect interest held by any other person. Rodriguez previously owned an interest in Deep South Plantation Foods, Inc., whose alcoholic beverage license was revoked by Petitioner. Redner was at one time employed by Rodriguez as manager of Deep South Petitioner asserts that Rodriguez became ineligible to hold an interest in an alcoholic beverage license as a result of the revocation, pursuant to Section 561.15, Florida Statutes, and that he and Redner therefore concealed Rodriguez's subsequent interest in the Tanga Lounge. Respondent contends that Rodriguez is the manager of the Tanga Lounge, but holds no direct or indirect interest therein. Rodde, Inc., was organized on April 19, 1976, and a $2,000 down payment deposit on the contract for purchase of the Tanga Lounge and liquor license was made on April 20, 1976, pursuant to contract signed by DeFriese and the prior owners on that date. This $2,000 check was issued by Robert Rodriguez against his own account. Petitioner produced this cancelled check (Petitioner's Exhibit 4) and numerous other documents which establish that Rodriguez participated in all aspects of Rodde, Inc., management and financial operations since its inception. Rodriguez has unrestricted authority to withdraw funds from corporate accounts and has signed or cosigned for loans and credit purchases. Rodriguez also utilized a Rodde, Inc., credit card to pay personal expenses on a vacation to Las Vegas in 1979. There was no evidence of reimbursement or other accounting to the corporation for these expenditures. The testimony of the Rodde, Inc., employees did not corroborate Redner's testimony that Rodriguez is manager of the Tanga Lounge. Rather, these employees believed Rodriguez was somehow associated with the business, but regarded Redner as the manager and their only supervisor. Rodriguez issued two checks for $1,408.05 on December 1, 1979, one payable to himself and the other to Redner (Petitioner's Exhibit 32) . These checks each carried the notation "bonus $1500", with a further notation apparently accounting for $91.95 in withholding tax. In view of Rodriguez's duties and functions within the corporation, this "bonus" can only be considered a participation in profits. Redner's credit rating and financial management skills are poor. Therefore, Respondent contends that a manager with strength in these areas was needed to ensure business success. However, Rodriguez's unlimited authority in dealing with corporate funds, the investment or loan of his personal funds, his participation in business profits and the absence of any apparent supervisory duties are inconsistent with the employee theory held out by Respondent.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent be found guilty of the charges contained in Counts 1, 2 and 3 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2566. It is further RECOMMENDED that Respondent be found guilty of the charges contained in Counts 1, 2, 31, 32, 51, 52, 64, 127-137, 156, and 158 of the Administrative Complaint/Notice to Show Cause in Case No. 81-2567. It is further RECOMMENDED that all other charges be dismissed. It is further RECOMMENDED that Respondent's Alcoholic Beverage License No. 39-738 be revoked. DONE and ENTERED this 9th day of July, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1982.
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 The central issue in this case is whether Petitioner is entitled to a refund of all or any part of a transfer fee that was paid on or about December 5, 1991.
Findings Of Fact The Petitioner, Laurie M. Brandt, d/b/a Alcohol Outlet, held a liquor license no. 58-03004, which was obtained as a quota license and issued to her on June 29, 1987. The subject license was to be used in the designated county of its origin, i.e., Orange County, Florida. Florida law allows for the transfer of quota liquor licenses based upon certain statutory guidelines. Such guidelines require the payment of a transfer fee which is calculated and assessed based upon the average annual value of gross sales of alcoholic beverages for the three years immediately preceding the transfer. On or about August 6, 1991, an application for transfer of license no. 58-03004 was filed with the Division of Alcoholic Beverages and Tobacco. The license owner, Petitioner, was to transfer license no. 58-03004 to Joel Wagner (Wagner). Two previous applications to transfer the license were withdrawn prior to issuance of the transfer. The Petitioner, who was transferring the license to Wagner, had engaged in no sales activity under license no. 58-03004 for the three years immediately preceding the Wagner application for transfer. Ultimately, the Wagner transfer was completed and license no. 58-03004 was transferred from Petitioner to the applicant on December 13, 1991. Until the license transfer was completed to Wagner, Petitioner was the owner of record for the subject license. During the times framed by the two previous applications for transfer, entities other than Petitioner were allowed, on a temporary basis pending the outcome of the transfer requests, to do business under license no. 58-03004. The right to sell alcoholic beverages of those transfer applicants derived from the original license but were factually in no way connected to the original licensee. The previous applications for transfer were withdrawn before agency action was taken. The volume of alcoholic beverage sales for these businesses was approximately $164,000. Pursuant to a temporary license, until the transfer was finally completed and the license was formally transferred, Wagner's use license no. 58- 03004 generated a total of $74,119 in alcoholic beverage sales. The Division of Alcoholic Beverages and Tobacco (DABT) interprets license history for purposes of calculating a transfer fee based upon the license owner's use of the license, not the use enjoyed by an applicant for transfer on a temporary license bearing the same number. Further, the DABT computes the amount of the transfer fee as of the date of the application for transfer not the actual transfer date as the application is to set forth the sales history relied upon in computing the amount to be charged. In this case, the DABT imposed the maximum fee ($5,000) upon the transfer of the license from Petitioner to Wagner. The DABT considers licenses held in escrow to be "inactive." The owner of the inactive, escrowed license may not engage in sales activity. Petitioner did not, by virtue of the escrow status or the efforts to transfer the license, engage in sales activity and was, therefore, inactive for the three years preceding the transfer to Wagner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order denying Petitioner's request for a refund as the transfer fee was correctly computed. DONE AND RECOMMENDED this 8th day of April, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 8th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6050 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 4, 6, 7, 9, 11, 12, and 13 are accepted. Paragraphs 2, 3, and 5 are rejected as unnecessary, or a discussion of law not supported by reference to the record of fact. With regard to paragraph 8, it is accepted that a quota license bears from its initial issuance throughout its existence but one number. That number is maintained only for convenience sake. The right to hold the license remains with the licensee or transferor until the transfer is completed. The temporary license is merely a convenience for the transferee not a benefit to the transferor. To the extent that paragraph 8 may suggest otherwise it is rejected as contrary to the weight of the record. Otherwise, the paragraph is rejected as unnecessary to the resolution of the issues of this case. Paragraph 10 is rejected as contrary to the weight of the evidence. Paragraphs 14, 15 and 16 are rejected as contrary to the weight of the evidence or argument. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 18, and 21 are accepted. Paragraphs 19 and 20 are rejected as argument. COPIES FURNISHED: John F. Gilroy Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell Rutledge, Ecenia, Underwood & Purnell, P.A. Barnett Bank Building, Suite 500 Post Office Box 551 Tallahassee, Florida 32302-0551 Richard W. Scully, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
