The Issue Whether the Petitioner's application for a Pari-Mutuel Wagering occupational license and request for a waiver should be granted or denied for the reasons set forth in the Respondent's letter dated August 20, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for issuing occupational licenses to employees of pari-mutuel facilities in Florida. See § 550.105(1), Fla. Stat. On or about April 2, 2009, Ms. Jennings submitted an application for a pari-mutuel wagering license, specifically for a cardroom license that would allow her to be a dealer in the poker room of a pari-mutuel facility. Ms. Jennings indicated on the application form that she had never held a pari-mutuel license in Florida. In the section of the license application entitled "To Be Completed by Cardroom Applicants Only," Ms. Jennings answered "no" to the following question: "Have you ever been convicted of, or had adjudication of guilt withheld for, a felony or misdemeanor involving forgery, larceny, extortion or conspiracy to defraud or filing false reports to government agency, racing or gaming commission or authority, in this state or any other stated under the laws of the United States?" In the section of the application entitled "Background Information", Ms. Jennings answered "no" to the following question: "Have you ever been convicted of or had adjudication withheld for any crime, or pled guilty or nolo contendere to any criminal charges against you? If yes, give details in the space provided below." In the space provided, Ms. Jennings wrote: "Had adjudication; As part of a prosecution of someone else, I cooperated and gave testimony. However, I was personally not convicted of any wrongdoing." Upon investigation, the Division learned that Ms. Jennings had been adjudicated guilty of one count of grand theft in the third degree on January 26, 1995, in Brevard County, Florida. She was sentenced to two years' probation and required to report monthly to her probation officer. Ms. Jennings spent approximately three months in jail prior to her conviction because she could not pay for her bail. On April 22, 2009, Ms. Jennings submitted a request for a waiver from the Division so she could obtain her pari-mutuel wagering license. A waiver must be obtained by, among others, any new applicant for a Florida pari-mutuel license who has been convicted of any felony. Ms. Jennings was 27 years of age when she was convicted of grand theft. She explained that, at the time of the offense, she was involved with a boyfriend who had threatened to kill her and her family when she first became involved with him. She stated that she became "brainwashed and co-dependent on him and basically scared for my life."2 As a result, Ms. Jennings did whatever her boyfriend wanted her to do. According to Ms. Jennings, she was charged with grand theft because, at her boyfriend's direction, she obtained a cell phone under a false name. Ms. Jennings testified that she answered "no" to the question asking if she had been convicted of a crime because she was told by a federal prosecutor named Larry Turner that she would "have a clean record" if she testified against her boyfriend, who had been charged with murder.3 Ms. Jennings testified, and her boyfriend was convicted. Ms. Jennings assumed, therefore, that she would not have "anything in [her] background as a criminal record."4 Ms. Jennings gave the following testimony at the final hearing: She told the Division's investigators about the circumstances of her criminal conviction but did not tell them that she believed her criminal record had been sealed. She was shocked when the Division's investigators told her they had found records of her conviction: "I was like, Huh?"5 She had to go look up the records of the conviction and then her recollection of the arrest and conviction "came back to [her] . . . eventually."6 She was shocked when the Division's investigators told her they had found this conviction because she thought the conviction had been erased. Ms. Jennings has a high school education. After her conviction, Ms. Jennings tried to go to school, but she did not finish. For a time, she worked at a restaurant as a waitress; she had a part-time job doing promotional work for night clubs; and she also worked as a blackjack dealer at a nightclub where blackjack was played for entertainment. When asked what she had done with her life, Ms. Jennings responded: "I had boyfriends and long-term relationships and basically I was taking care of them."7 Ms. Jennings's current boyfriend, her sister, and her best friend testified that Ms. Jennings had always been honest with them. The totality of the evidence presented by Ms. Jennings is insufficient to establish she is rehabilitated and possesses good moral character: She failed to disclose her conviction for grand theft in her application for licensure; her explanations of the reasons for failing to disclose the conviction are inconsistent; her explanation of the act underlying her conviction of grand theft, procuring a cell phone under a false name, is unconvincing; and her vague description of her life since the conviction fails to demonstrate any accomplishments or any positive change in her circumstances since her conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying the application of Soon Young P. Jennings for a pari-mutuel wagering license. DONE AND ENTERED this 28th day of June, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 28th day of June, 2010.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Filing withdrawing its Notice of Intent to Establish Additional Dealership, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Genuine Scooters, LLC and Boca Scooters, LLC to sell Genuine Scooters-manufactured by Motive Power Industry Co., Ltd. (MOTI) and LML Limited (LMLL) at 389 Northwest 1 Avenue, Boca Raton (Palm Beach County), Florida 33432. Filed June 19, 2014 7:43 AM Division of Administrative Hearings DONE AND ORDERED this 1 day of June, 2014, in Tallahassee, Leon County, Florida. Filed in the official records of the Division of Motorist Services this day of June, 2014. Wal» On c Nalini Vinayak, Dealer License Administrator Copies furnished to: Nalini Vinayak Dealer License Section Kenneth L. Paretti, Esquire Quinton and Paretti, P.A. 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 kparetti@quintonparetti.com Trey Duren Genuine Scooters, LLC 5400 North Damen Avenue Chicago, Illinois 60625 Cobur Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Colton Ralston Boca Scooters, LLC 389 Northwest 1st Avenue Boca Raton, Florida 33432 Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure.
The Issue The issue is whether Proposed Florida Administrative Code Rule 61D-2.026(4) and (6) is an invalid exercise of delegated legislative authority, pursuant to sections 120.52(8) and 120.56(1)(a), Florida Statutes.
Findings Of Fact Pursuant to chapter 550, Florida Statutes, Petitioner Second Chance operates jai alai games at its facility in Marion County, and Petitioner WFA owns and operates a greyhound permit and summer jai alai permit at its facility in Miami-Dade County. Petitioner WFA also indirectly owns a summer jai alai permit at the Miami Jai Alai in Miami-Dade County and owns partial interests in two jai alai permits operated at the Dania Jai Alai facility in Broward County. Pursuant to chapter 550, Intervenor owns and operates a jai alai permit at its facility in Seminole County, where it conducts live jai alai permits. Petitioners and Intervenor are regulated by the proposed rules that they challenge in these cases. Proposed rule 61D-2.026(4) (the Court Rule) provides: Jai alai games must be conducted on a three-walled court meeting the following requirements: The side wall must be at least 175 feet long and at least 35 feet in height; The front wall and back wall must be at least 35 feet in width and height; The front wall must be made of granite. All courts must have sufficient overhead coverage to ensure for the operation of scheduled performances. All courts must have a live viewing area for games. Proposed rule 61D-2.026(6) (the Roster Rule) provides: "Jai Alai permit holders must utilize a rotational system of at least eight different players or teams." The rulemaking authority cited for the Court Rule and the Roster Rule is sections 550.0251 and 550.105(3) and (10)(a). The law implemented cited for the Court Rule and the Roster Rule is sections 550.0251, 550.105, and 550.70.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Lynne A. Quimby-Pennock, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 17, 2012 9:11 AM Division of Administrative Hearings DONE AND ORDERED this lly day of May, 2012, in Tallahassee, Leon County, Florida. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this day of May, 2012. Nalini Vinayak, Deater ticense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 NO J. Andrew Bertron, Esquire Nelson, Mullins, Riley, and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS NAPLETON ENTERPRISES, LLC, d/b/a NAPLETON'S SOUTH ORLANDO CHRYSLER-JEEP-DODGE, Petitioner, vs. Case No. 12-1054 CHRYSLER GROUP CARCO, LLC, d/b/a CHRYSLER GROUP, LLC, Respondent. wee eye were re Sw YS YS YS YS ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner's Notice of Dismissal, filed May 14, 2012, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for May 21 through 24, 2012, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 14th day of May, 2012, in Tallahassee, Leon County, Florida. ie LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2012. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 John W. Forehand, Esquire Kurkin Forehand Brandes, LLP Suite 1B 800 North Calhoun Street Tallahassee, Florida 32303 jforehand@kfb-law.com J. Andrew Bertron, Esquire Nelson, Mullins, Riley, and Scarborough, LLP Suite 202 3600 Maclay Boulevard, South Tallahassee, Florida 32312 andy. bertron@nelsonmullins.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS NAPLETON ENTERPRISES, LLC, d/b/a NAPLETON’S SOUTH ORLANDO CHRYSLER-JEEP-DODGE Petitioner, vs. Case No. 12-1054 CHRYSLER GROUP CARCO, LLC, d/b/a CHRYSLER GROUP, LLC Respondent. NOTICE OF DISMISSAL Petitioner, Napleton Enterprises, LLC, d/b/a, Napleton’s South Orlando Chrysler-Jeep- Dodge, files this Notice of Dismissal and does hereby dismiss its Petition in this matter with prejudice. Respectfully submitted this 14" day of May, 2012. /s/ John W. Forehand John W. Forehand (FBN 979813) R. Craig Spickard (FBN 721751) Kurkin Forehand Brandes LLP 800 North Calhoun Street, Suite 1B Tallahassee, FL 32303 Telephone: (850) 391-5060 Facsimile: (850) 391-6242 jforehand @kfb-law.com cspickard @kfb-law.com CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic mail on May 14, 2012 to: Andy Bertron (andy.bertron@nelsonmullins.com) Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Blvd. S., Suite 202 Tallahassee, FL 32312 Jennifer Clark (clark jennifer@hsmv.state.fl.us) Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, FL 32399 /s/ John W. Forehand Attorney
The Issue This is a rule challenge proceeding in which the following specific issues are presented: Whether Florida Administrative Code Rule 61G4-12.006 is an invalid delegation of legislative authority, and Whether application of the provisions of Section 112.011(1)(b), Florida Statutes, by the Construction Industry Licensing Board in its quasi-judicial capacity constitutes an agency statement of general applicability that requires rulemaking by the agency.
Findings Of Fact Petitioner, Goode “Buddy” Yeoman, is 64 years of age, and is an individual who has applied to the CILB for an individual certified general contracting license. Petitioner Yeoman has a prior felony conviction and his civil rights have not been restored. Petitioner Yeoman's felony conviction was imposed approximately 20 years ago in 1985 and was unrelated to the contracting practice or trade. Petitioner Yeoman was required to, and did, submit a completed form DBPR CILB 4359. Petitioner’s application was denied by the Construction Industry Licensing Board (“CILB” or “Board”), and on June 14, 2004, the CILB entered its “Notice of Intent to Deny” Petitioner Yeoman’s application for initial certified general contractor. Petitioner Yeoman has separately filed a petition for administrative proceedings regarding the CILB's denial of his initial certified general contractor license. As such, by operation of law no final agency action has to date been taken on Petitioner Yeoman's application. The license denial proceeding has been continued. This will allow the parties in that case to have the benefit of the final order in this rule challenge case. The sole basis for the denial of Petitioner Yeoman’s application was that his civil rights had not been restored. The CILB’s “Notice of Intent to Deny” stated: “You have not provided proof to the Board that your civil rights have been fully restored subsequent to a previous felony conviction as required by Section 112.011(1)(b), Florida Statutes.” The requirement that a restoration of civil rights be obtained which is expressed in the challenged existing rule and the challenged agency statement defined as a rule negatively affect Petitioner Yeoman’s substantial interests by denying him a certified general contracting license. As such, Petitioner Yeoman has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2) and the agency statement defined as a rule (Form “DBPR CILB 4359"). Intervenor Smith's felony conviction was for a drug offense in 1989 and was unrelated to the contracting business or trade. Intervenor Smith filed an application with the CILB, including form “DBPR CILB 4359.” On May 4, 2004, the CILB refused to consider his application because his civil rights have not been restored. As such, Intervenor Smith has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2), and the agency statement defined as a rule (Form "DBPR CILB 4359"). Florida Administrative Code Rule 61G4-12.006 was adopted pursuant to Chapter 120, Florida Statutes, on January 6, 1980, and lists and incorporates by reference DBPR/CILB/025 (Rev. 01/01) entitled “Certifications: Certification Change of Status.” This agency form is applicable to applications for certified licenses and change of status applications, and requires individuals applying for initial contracting licenses to provide proof that their civil rights have been restored if they have been convicted of a felony. The form states in the “Financial Responsibility/Background Questions” section: “NOTE: IF YOU, THE APPLICANT/LICENSEE, HAVE HAD A FELONY CONVICTION, PROOF THAT YOUR CIVIL RIGHTS HAVE BEEN RESTORED WILL BE REQUIRED PRIOR TO LICENSURE.” Form “DBPR CILB 4359" has an effective date of March 24, 2004, but has not been adopted as a rule under Chapter 120, Florida Statutes. The form is available for download on the agency’s web-page as “Initial Issuance of Licensure for Certified Contractor Application Package.” Applicants for licensure as a contractor must submit form “DBPR CILB 4359" to the DBPR. Within the “DBPR CILB 4359" package is the form “DBPR CILB 4357 - Qualified Business (QB) License Application and Qualified Business Change of Status Application,” which requires an applicant previously convicted of a felony to provide proof that his/her civil rights have been restored. This form states: “IF YOU HAVE BEEN CONVICTED OF A FELONY, YOU MUST SUBMIT PROOF OF REINSTATEMENT OF CIVIL RIGHTS,” and also: “Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure.” Both the challenged Florida Administrative Code Rule 61G4-12.006(2) and the form “DBPR CILB 4359" are generally applicable to every individual applying for a contracting license from the CILB. The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants who did not have their civil rights fully restored, subject to probation until the applicant's civil rights have been restored. Neither the type of crime for which a felony conviction has been imposed, the recency of the conviction, nor the completion of any punishment, have been a factor in the CILB’s denial of applications to individuals previously convicted of a felony crime but whose civil rights have not been fully restored. The sole reason for denial is the lack of civil rights. The lack of civil rights is the standard, expressed in Florida Administrative Code Rule 61G4-12.006(2) and in “DBPR CILB 4359," by which the CILB has denied contractor license applications, including Petitioner Yeoman’s application, and Intervenor Smith's application, under the CILB’s interpretation of Section 112.011(1)(b), Florida Statutes. The CILB has not revoked any previously granted licenses due solely to a subsequent felony conviction and lack of civil rights of any licensee. The CILB is a collegial body composed of 18 members, 16 of whom are professionals and two of whom are consumer members. Each member is limited to two 4-year terms, and no member may serve more than two consecutive 4-year terms. If a member is appointed to fill an unexpired vacancy, the new appointee may not serve for more than 11 years. The current members of the Board, and their terms, are as follows: Elizabeth Karcher; term 01/10/02-10/31/04 Barry Kalmanson; term 11/01/02-10/31/07 c. Lee-En Chung; term 09/01/99-10/31/06 Paul Del Vecchio; term 01-10-02-10-31-05 Michelle Kane; term 01-10-02-10/31/05 f. Joan Brown; term 03/14/00-10/31/07 Michael Blankenship; term 11/01/02-10/31/06 Carl Engelmeler; term 11/01/02-10/31/06 Jacqueline Watts; term 01/10/02-10/31/04 John Smith; term 11/01/02-10/31/06 (resigned effective 11/01/04) Raymond Holloway; term 01/10/02-10/31/05 Edward Weller; term 11/21/02-10/31/06 Thomas Thornton; term 08/16/04-10/31/07 Robert Stewart; term 08/16/04-10/31/07 o. Doris Bailey; term 08/16/04-10/31/05 A quorum (51 percent) of the appointed members of the Board is necessary for the Board to conduct official business. The CILB meets 11 times each year. On November 8, 1999, the CILB denied the application of Michael A. Helish for the certification examination on the grounds that his civil rights had not been restored. This decision was per curiam affirmed in Helish v. Department of Business and Professional Regulation, 766 So. 2d 1047 (Fla. 1st DCA 2000). The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants whose civil rights had not been fully restored, at times subject to probation until the applicant’s civil rights have been restored, as follows: On June 14, 2004, the Respondent granted an initial contractor license to Robert F. Jones, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to William P. Campbell, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Glenn Kasper, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Danny Mitchell, subject to probation until his civil rights are fully restored. On March 3, 2004, the Respondent granted an initial contractor license to Timothy Burke, subject to probation until his civil rights are fully restored. On February 9, 2004, the Respondent granted an initial contractor license to Anthony Nicholas, Jr., subject to probation and the condition that his civil rights be fully restored within two years. On June 25, 2003, the Respondent granted an initial contractor license to Andrew Dittenber, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On June 25, 2003, the Respondent granted an initial contractor license to Robert W. Fleming, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On December 1, 2003, the Respondent granted an initial contractor license to James D. Munroe, Jr., subject to probation until his civil rights are fully restored. On October 21, 2002, the Respondent granted an initial contractor license to Daryl F. Strickland subject to probation and the condition that his civil rights be fully restored within three years. On September 4, 2001, the Respondent granted an initial contractor license to John Richard Brown, subject to probation and the condition that his civil rights be fully restored within three years. On June 24, 2004, the Respondent amended its initial order and again placed John Richard Brown’s license on probation until such time as his civil rights are restored.
The Issue This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph: On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs. The clientele of Odom's Bar is primarily middle- aged persons. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days. DONE and ENTERED this 26th 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 28th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Mr. Charles D. Andrews Mr. Gary Rutledge Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On March 10, 1983 Marvin L. Lessne was issued a non- active broker license #0051792. His non-active license expired on September 30, 1984 and was not renewed. (Petitioner's Exhibit 1) On September 13, 1984, Marvin Lessne pled guilty to seven cases of Grand theft. (Petitioner's Exhibits 9 and 10). On January 7, 1985, he was sentenced by Judge Patricia W. Cocalis, Circuit Judge for the Seventeenth Judicial Circuit in and for Broward County. His total sentence was for two and a half years in prison, ten years of probation and full restitution to his victims. The total amount of money taken by Mr. Lessne from his victims was approximately $215,000.00. (Petitioner's Exhibit 10) By affidavit, Harold R. Huff, Director of the Division of Real Estate certified that a search of Division records failed to reflect that Marvin Lessne informed the Division of his conviction and subsequent incarceration.
Recommendation It is therefore, RECOMMENDED That a Final Order be entered finding that Respondent violated Section 475.25(f) Florida Statutes. (Count I, Administrative Complaint) and dismissing counts II and III of the Administrative Complaint. DONE AND RECOMMENDED this 28th day of July, 1986, at Tallahassee, Florida. MARY W. CLARK, 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 28th day of July, 1986 COPIES FURNISHED: Sue Hartmann Division of Real Estate P.O. Box 1900 400 West Robinson Street Orlando, Florida 32802 Marvin L. Lessne 4341 Northwest 16th Street Apartment 101 Lauderhill, Florida 33313
The Issue Whether or not on or about December 8, 2000, Petitioner possessed the appropriate license to operate a body-piercing salon establishment in accordance with Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code.
Findings Of Fact Based upon the evidence presented, the testimony, and upon the personal inspection of the undersigned, the following findings of fact are made: At all times material hereto, Respondent, Department of Health, Division of Environmental Health, is the state agency charged with implementation of Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code. At all times material hereto, Petitioner, Rita Moroz, operated a manicure-pedicure, nail-lengthening establishment, "A New Adventure of Tampa Bay," located at 11608 North Dale Mabry Highway, Hillsborough County, Tampa, Florida 33618. Section 381.0075(2)(a), Florida Statutes, defines "BodyPiercing" as for commercial purposes the act of penetrating the skin to make, generally permanent in nature, a hole, mark, or scar. "Bodypiercing" does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter of lobe of the ear or both. At all times material hereto, Petitioner admitted that she operated a body-piercing establishment salon and provided body-piercing services without first having obtained a body-piercing license as required by law. At all times pertinent hereto, Petitioner possessed a manicure-pedicure license issued by another country and her foreign license also authorized body-piercing services. Petitioner, upon receipt of the Certificate of Violation, discontinued performing body-piercing services. The representative for the Agency stated that the Department would accept, in consideration of Petitioner's admissions and prompt discontinuation of body-piercing services, a reduced fine in an amount not to exceed $500.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
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.
