The Issue By notice to show cause, petitioner charged that respondent, individually or through the acts of its agent/employee, violated the provisions of Section 562.11(1)(a), Florida Statutes, by selling an alcoholic beverage on its licensed premises to a person under the age of 21. Respondent requested a formal hearing on the charges, and the matter was referred to the Division of Administrative Hearings. At the hearing, petitioner called three witnesses and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered no exhibits. A transcript of the hearing was not ordered, and the parties were granted leave until August 21, 1989 to file proposed findings of fact. Petitioner timely filed proposed findings of fact and conclusions of law. A ruling on each of petitioner's proposed findings of fact has been made and is reflected in the Appendix to this recommended order. On August 24, 1989, respondent filed a letter which is here deemed to be his proposed findings of fact; however, his filing was untimely.
Findings Of Fact At all times material hereto, respondent, Coast Line Petroleum, Inc. d/b/a Toms Texaco, held an alcoholic beverage license number 60-04813, series 2- APS for the premises known as Toms Texaco in Lantana, Florida at 401 N. Dixie Highway. Mr. Thomas Przybylski is the President of respondent and appeared on behalf of the licensee. On or around April 4, 1989, petitioner's investigator conducted an investigation of respondent's licensed premises to determine if respondent was selling alcoholic beverages to underaged persons. The investigation was prompted by complaints received by petitioner from the Lantana Police Department. Petitioner's practice in making such investigations was to employ an underaged person and send the underaged person onto the licensed premises to purchase an alcoholic beverage. The underaged person was instructed not to carry any form of identification and to respond truthfully if asked his age or for identification. Julio A. More was employed by petitioner as an Investigative Aide. On April 4, 1989, following petitioner's instructions, Mr. More, who was eighteen at the time and appeared to be no older than his age, entered the licensed premises at issue. It was a busy afternoon at Toms Texaco. Mr. More picked a beer out of the inventory and attempted to purchase it from Mr. Przybylski, who was working that afternoon. Mr. Przybylski asked Mr. More if he had any identification to which Mr. More replied that he had none. Mr. Przybylski then sold Mr. More the beer. Petitioner's investigator witnessed the sale and confiscated the tendered beer. Mr. Przybylski as an employee and officer of respondent sold an alcoholic beverage to an individual who was eighteen at the time of the sale. Accordingly, respondent is guilty of selling an alcoholic beverage to a person under 21 years of age. The proof demonstrated that petitioner has promulgated disciplinary guidelines for offenses similar to the one at issue; and that the appropriate penalty in this case would be the imposition of a fine of $1,000 and twenty-day suspension of the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on respondent an administrative fine of $1,000 and suspending respondent's license for a period of twenty days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September 1989. JANE C. HAYMAN 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 7th day of September 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO.89-3006 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraphs 3 and 4. Addressed in paragraph 4. Irrelevant. Adopted in paragraph 5. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Thomas John Przybylski, Jr. Coast Line Petroleum, Inc. 10670 Cypress Bend Drive Boca Raton, Florida 33498 Lt. Debbie Pfitzenmaier Elisha Newton Dimick Building 111 Georgia Avenue, Room 207 West Palm Beach, Florida 33401 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey Director The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Was the Petitioner's application denied for good cause and is the Petitioner entitled to the beverage license for which he applied?
Findings Of Fact Henry McCalister and Willie Mack applied for a beverage license to the Division of Alcoholic Beverage and Tobacco, Department of Business Regulation. Willie Mack was notified that this application was to be denied because he had been convicted of a felony within the past 15 years pursuant to Section 561.15, Florida Statutes. He was further advised that he was entitled to a hearing pursuant to Section 120.57, Florida Statutes. The Respondent failed to produce at hearing any evidence of Mack's conviction of a felony.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Respondent issue the applicant the beverage license for which they applied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Willie Mack 834 Robinson Avenue Jacksonville, FL 32209 Francis Bayley, Esq. Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32304
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
The Issue Whether Respondent has the discretion to deny Petitioner's application for a beverage license on the grounds set forth in the Notice of Intent to Deny License and, if so, whether Respondent abused its discretion.
Findings Of Fact Respondent is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to issue beverage licenses pursuant to Chapter 561, Florida Statutes, and applicable rules. Prior to October 21, 1994, Petitioner, doing business as Wilson's Grocery, was the owner and holder of beverage license 66-0123. On November 9, 1992, Petitioner's daughter, daughter-in- law, and wife were convicted of felony charges pertaining to food stamps fraud that occurred on or near the licensed premises. On November 9, 1992, Respondent issued to Petitioner a Notice to Show Cause why license 66-0123 should not be revoked based on those convictions. Petitioner timely requested a formal hearing to challenge the Notice to Show Cause, the matter was referred to the Division of Administrative Hearings, and assigned DOAH Case No. 94-0929. A formal hearing was convened in Fort Pierce, Florida, on July 21, 1994, before Administrative Law Judge J. D. Parrish. At the formal hearing, Petitioner withdrew his request for a formal hearing with the knowledge that license 66-0123 would be revoked. On October 21, 1994, a Final Order was entered by Respondent revoking license 66-0123. Petitioner offered no evidence that would establish he has good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a beverage license. DONE AND ENTERED this 6th day of March, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2001. COPIES FURNISHED: George W. Wilson, Sr. Wilson's Game Room 1101 Avenue D Fort Pierce, Florida 34951 Michael Martinez, Esquire Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Lois A. Williams Regulatory Supervisor/Consultant Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1021 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This matter arises out of the denial or rejection of a filing by the Liberty Bank of Cantonment with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien against a beverage license pursuant to Section 561.65, Florida Statutes. Mr. Charles L. Hoffman, attorney for Liberty Bank of Cantonment, testified on behalf of the Petitioner. The Petitioner offered two exhibits into evidence and both were accepted without objection. The Respondent presented no evidence on its behalf. Neither party filed proposed findings of fact and conclusions of law. However, the Petitioner filed a Memorandum of Law in support of its legal argument as to why it should be granted a lien against Beverage License No. 27- 426. To the extent that the legal conclusions presented in that memorandum of law and the facts stated are not adopted in this order, they are considered to be irrelevant to the issues in this cause or not supported by the facts or the law.
Findings Of Fact On July 10, 1981, The Rafters, Inc. executed a security agreement in favor of the Liberty Bank of Cantonment. That security agreement is a part of Petitioner's Exhibit 1 and included a security interest in State Liquor License No. 27-426 issued in the name of The Rafters, Inc. On July 24, 1981, the necessary U.C.C. documents were filed in order to permit the Liberty Bank of Cantonment to file the proper documents with the Secretary of State. No documents were filed with the Division of Alcoholic Beverages and Tobacco. On September 20, 1982, the Petitioner first filed the necessary documentation with the Division of Alcoholic Beverages and Tobacco for the purpose of perfecting a lien pursuant to Section 561.65, Florida Statutes. The Division of Alcoholic Beverages and Tobacco rejected the filing on the grounds that it was filed beyond the 90-day period provided in Section 561.65(4), Florida Statutes. On October 19, 1982, The Rafters, Inc. filed its answer to an amended complaint in foreclosure which had been filed by the Liberty Bank of Cantonment against the property set forth in the aforementioned security agreement. In its answer, The Rafters, Inc. admitted all allegations of the amended complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a Final Order rejecting the application for a lien filed by the Petitioner to perfect a security interest in Beverage License No. 27-426. DONE and ORDERED this 20th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: Charles L. Hoffman, Jr., Esquire Seventh Floor, Seville Tower 226 South Palafox Street Post Office Box 1831 Pensacola, Florida 32598 Harold F.X. Purnell, Esquire William A. Hatch, Esquire General Counsel Department of Business Regulation Dept. of Business Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Howard M. Rasmussen, Director Gary Rutledge, Secretary Division of Alcoholic Beverages Dept. of Business Regulation and Tobacco The Johns Building 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
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 This case arises out of a Notice to Show Cause dated January 13, 1982, served by the Petitioner upon the Respondent requiring that the Respondent show cause as to why his Beverage License No. 26-02065 should not be suspended, revoked, or otherwise disciplined for having committed violations of the laws of Florida, and thus, a violation of Florida Statutes 561.29(1)(b). On January 28, 1982, the Respondent, by and through his attorney, Lacy Mahon, Jr., requested, in writing, a formal hearing pursuant to Section 120.57, Florida Statutes. On March 30, 1983, a Notice of Hearing scheduling the formal hearing in this matter for April 28 and 29, 1983, was served upon Mr. Lacy Mahon, Esquire, attorney for the Respondent. Prior to the formal hearing, Mr. Mahon contacted Mr. Watson, counsel for the Petitioner, and informed him that his client, Mr. Billy Freeman, had requested that he not appear at the hearing on behalf of Mr. Freeman and that Mr. Freeman also would not appear. The undersigned Hearing Officer also received an ex parte communication from the Respondent, Mr. Billy Freeman, inquiring as to the purpose of the formal hearing, and I explained to him that a Notice to Show Cause had been filed against his beverage license and that if he had any further questions, he should contact either his attorney or Mr. James Watson of the Division of Alcoholic Beverages and Tobacco. The Respondent nor his attorney appeared at the formal hearing in this matter. The petitioner presented as its evidence three exhibits. Petitioner's Exhibit 1 is an indictment charging the Respondent with burglary and arson dated June 4, 1982. Petitioner's Exhibit 2 is a certified copy of a judgment convicting the Respondent of arson in violation of Florida Statute 806.01(2). And Petitioner's Exhibit 3 was a late filed exhibit reflecting the license status and license number of the Respondent's beverage license. The Respondent did not appear, and, therefore, did not present any evidence.
Findings Of Fact The Respondent, Billy Freeman d/b/a The Mug, holds Beverage License No. 26-02065, Series 2-COP. On August 10, 1982, the Respondent, Billy Freeman, was convicted of arson, a second degree felony, in violation of Florida Statute 806.01(2). The Respondent was adjudicated guilty and sentenced to imprisonment for a term of 18 months. The conviction occurred in the Circuit Court of Duval County, Florida, Case No. 81-11038CF.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Beverage License No. 26-02065, 2-COP be revoked. DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Lacy Mahon, Esquire 350 East Adams Street Jacksonville, Florida 32202 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent's alcoholic beverage license should be disciplined due to the felony conviction of an officer of the corporation.
Findings Of Fact The Department is the state agency charged with regulating the sale of alcoholic beverages in the state. In accordance with this duty, the Department issued alcoholic beverage license No. 27-00455. The license permitted the sale of wine, beer, and liquor for consumption on the premises, pursuant to a special act of the Florida Legislature. The license is currently being held in escrow by the Division of Alcoholic Beverages and Tobacco of the Department. Mr. Christian's, Inc., was incorporated in Florida on May 11, 1977. The corporate officers were listed as Frank Masiarczyk, Sr., and Linda M. Masiarczyk. The Florida Department of State's spelling of the name is "Mr. Christian's, Inc." In the pleadings and evidence in the case the corporation is also referred to as "Mr. Christian's, Inc." and "Mr. Christians, Inc." All of these spellings refer to the corporation which holds alcoholic beverage license No. 27-00455. An application for a change of officers or stockholders of the corporate licensee, filed October 4, 1996, indicated that Frank Masiarczyk, Sr., was president and vice-president of the corporation and owned one hundred percent of the stock. It also reflected that Linda M. Masiarczyk was the secretary and treasurer of the corporation. The license had been the subject of a disciplinary proceeding prior to July 2, 1996. This proceeding culminated in a consent order signed by Linda Masiarczyk on July 2, 1996. A Florida Department of State document filed February 3, 1997, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on November 17, 1997, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on May 21, 1998, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on March 22, 1999, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. A Florida Department of State document filed on May 16, 2000, reflects that on that date, Linda M. Masiarczyk was a corporate officer of "Mr. Christian's." This document was signed by Ms. Masiarczyk. Linda M. Masiarczyk was convicted in the United States District Court, Northern District of West Virginia, on July 8, 1999, of a violation of Title 18 U.S.C. Section 371, conspiracy to impede the lawful functions of the U. S. Internal Revenue Service, and Title 31 U.S.C. Section 5324, structuring transactions to avoid reporting requirements. These offenses are felonies. On July 19, 1999, Ms. Masiarczyk filed a notice of appeal in the aforementioned case. On December 10, 1999, Ms. Masiarczyk filed an appellate brief with the United States Court of Appeals for the Fourth Circuit. The court has not rendered a decision on this appeal.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department revoke alcoholic beverage license No. 27-00455. It is further recommended that the Department suspend the revocation until such time as Ms. Masiarczk's appeal is decided. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001. COPIES FURNISHED: Ralf Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Michael J. Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether petitioner's application for transfer of an alcoholic beverage license should be granted, or denied on the ground that there is a pending disciplinary action against the license holder.
Findings Of Fact Timeliness of DABT's Denial of Application for Transfer On May 26, 1981, petitioner filed with DABT's Miami office an application for transfer of alcoholic beverage license No. 23-276, Series 4-COP. (Testimony of Harris, Caram; Ex. 1.) Upon discovering that the fingerprints of Richard J. Mandell, chief corporate officer of petitioner, were not on file and did not accompany the application, DABT notified Mr. Mandell, no later than June 24, 1981, that his fingerprints would be required. 2/ (Testimony of Harris, Caram.) In response, Mr. Mandell furnished the requested fingerprints to DABT on June 24, 1981. At that time, DABT treated the license application as complete. (Testimony of Harris, Caram.) By letter dated September 22, 1981, DABT notified petitioner that its application was disapproved because of a pending administrative case against the license. (Ex. 2A.) II. Denial of Petitioner's Application When petitioner filed its application for transfer of the alcoholic beverage license in question, administrative proceedings to revoke or suspend the license had been instituted and were pending against the licensee, Astral Liquors, Inc., d/b/a "Foxxy Laidy," a bar and lounge. (Prehearing Stipulation.) These disciplinary proceedings were instituted because of the conviction of Eugene Willner--Astral Liquors, Inc.`s sole stockholder--of a federal felony unrelated to operation of the Foxxy Laidy bar and lounge. (Testimony of Willner.) By written contract dated April 10, 1981, petitioner agreed to purchase from Astral Liquors, Inc., the Foxxy Laidy, located at 6507 Southwest 40th Street, Miami, Florida, for $175,000. Closing was contingent upon DABT approving transfer of the alcoholic license to petitioner. (Ex. 3.) DABT disapproved petitioner's application to transfer the license solely on the ground that there were pending proceedings against the license holder. DABT does not question whether the sale of Foxxy Laidy to petitioner is a bone fide, arms-length transaction or the qualifications of petitioner to hold an alcoholic beverage license. (Testimony of Harris; Ex. 2A, Ex. 8, Ex. 9.) DABT presented no evidence in support of denying petitioner's application other than there were pending administrative proceedings against the licensee. It did not explain or offer any reasons why, in this case, it should exercise its discretion by denying petitioner's application. To the extent its decision rests on non-rule policy considerations, it did not explicate them or subject them to scrutiny at hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application for transfer of alcoholic beverage license No. 23-276, Series 4-COP, be granted. DONE AND RECOMMENDED this 9th day of June, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1982.
Findings Of Fact Respondent presented evidence (Respondent's Exhibit 1) which established that Petitioner, Theresa M. Hendricks, was convicted under Subsection 562.111(2), Florida Statutes, in the Circuit Court of Duval County on February 9, 1982. This violation pertained to "providing alcoholic beverages to a minor."
Recommendation From the foregoing, it is RECOMMENDED: That the petition is DISMISSED. DONE and ENTERED this 16th day of July, 1982 at Tallahassee, Florida. COPIES FURNISHED: James N. Watson, Esquire Staff Attorney Department of Business Regulation 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 16th day of July, 1982. 725 South Bronough Street Tallahassee, Florida 32301 Ms. Theresa M. Hendricks P.O. Box 8565 Jacksonville, Florida 32239 Gary A. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
