00-004010 Steven Ray Wagner vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, Status: Closed Recommended Order on Friday, February 9, 2001.

Summary: Petitioner failed to timely file an application for new quota liquor license. Burden was on Petitioner to show authority for extending deadline for filing. Petitioner failed to show authority for extending deadline; no entitlement to new license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN RAY WAGNER, )

)

Petitioner, )

)

vs. ) Case No. 00-4010

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a

formal hearing on December 15, 2000, in Lakeland, Florida.

APPEARANCES

For Petitioner: Phillip E. Kuhn, Esquire

1533 Tomahawk Trail

Lakeland, Florida 33813-3748

For Respondent: Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Did the Department of Business and Professional

Regulation, Division of Alcoholic Beverages and Tobacco

(Department) act within its authority, pursuant to Sections

561.17 and 561.19(2), Florida Statutes, and Rule 61A-5.0105,

Florida Administrative Code, in issuing the Notice of Intent

to Deny Petitioner's application for an alcoholic beverage

license on the basis that Petitioner had failed to timely file

a completed application?

PRELIMINARY STATEMENT

By a Notice of Disapproval dated April 10, 2000, the

Department advised Petitioner that his failure to timely file

an application for a new quota liquor license in Polk County,

Florida, had resulted in the disapproval of his entitlement to

apply for a new quota liquor license. This notice also

advised Petitioner of his right to a formal hearing under

Chapter 120, Florida Statutes. By a Petition for Formal

Administrative Hearing Pursuant to Florida Statutes 120.57

dated April 27, 2000, the Petitioner requested, among other

things, that the matter be referred to the Division of

Administrative Hearings (Division) for a formal administrative

hearing. By letter dated September 27, 2000, the Department

referred this matter to the Division for the assignment of an

Administrative Law Judge and for the conduct of a formal

hearing.

At the hearing, Petitioner testified in his own behalf

and presented the testimony of Eileen Klinger. Petitioner's

Exhibits 5 and 6 were admitted in evidence. The Department

did not offer any witnesses for testimony. Department's

Exhibits 1 through 3 were admitted in evidence. Sections

561.17 and 561.19, Florida Statutes, and Rule 61A-5.015,

Florida Administrative Code, were officially recognized.

The one-volume Transcript of this proceeding was filed

with the Division on January 22, 2001. The parties timely

filed their Proposed Recommended Orders.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of

fact are made:

1. The Department is the agency of the State of Florida

charged with the responsibility of issuing new quota liquor

licenses.

2. In 1994, the Department held a lottery drawing for

new quota liquor licenses in Polk County, Florida. Petitioner

was an applicant for a new quota liquor license in Polk

County, Florida in the 1994 lottery. Petitioner was not a

successful applicant in the 1994 lottery but was an alternate

in the event one or more of the successful applicants in the

1994 lottery failed to qualify for a new quota liquor license.

3. The Department sent a Notice of Selection dated

February 10, 2000, by Certified Mail through the U. S. Postal

Service, to Petitioner at 3636 Dranefield Road, Lakeland,

Florida 33811, the address Petitioner had on file with the

Department. The Notice of Selection was returned to the

Department undelivered with the notation "no such number."

Petitioner's new address (not on file with the Department) was

3200 Flightline Drive, Lakeland, Florida 32811. Petitioner

failed to advise the Department that he had moved to a new

address

4. The Notice of Selection advised Petitioner that one

or more of the successful applicants of the 1994 lottery

drawing had failed to qualify or to file the proper

application for a new quota liquor license and, as a result,

the Department was proceeding with the next eligible applicant

in accordance with rankings based on the drawings.

5. The Notice of Selection advised Petitioner that he

was now eligible to apply for a new quota liquor license but

that he must file a full and complete application for the

issuance of the license within 45 days of the date of the

Notice of Selection. The deadline stated in the Notice of

Selection for filing the application for issuance of the

license was March 28, 2000.

6. On March 31, 2000, the Department mailed a Final

Warning Notice to Petitioner advising him that the Department

intended to deny Petitioner's entitlement to apply for a new

quota liquor license in Polk County. Petitioner received the

Final Warning Notice even though it was mailed to the same

address as the Notice of Selection.

7. The Final Warning Notice gave Petitioner until April

10, 2000, to furnished the Department additional information

as to why he should not be disapproved due to his failure to

timely file a full and complete application for the issuance

of a new quota liquor license in Polk County.

8. The Final Warning Notice also advised Petitioner that

"[t]his time period" (April 10, 2000) "should not be

considered as an extension of time originally granted to file

an application for licensure."

9. Petitioner's testimony was that he interpreted the

Final Warning Notice as giving him until April 10, 2000, to

file a full and complete application for licensure. As a

result, Petitioner made a telephone call on April 4, 2000, to

the Division of Alcoholic Beverages and Tobacco (DABT) using

the telephone number listed on the Final Warning Notice in an

attempt to get an application for licensure. Petitioner does

not remember the person's name at DABT that he spoke with on

April 4, 2000. In essence, Petitioner testified that this

person told him that it was too late to apply and that he

would be getting a denial letter and he would have the

opportunity to appeal at that time.

10. It was the Department's position that the Final

Warning Notice was to advise Petitioner that there was no

record of the Department having received Petitioner's full and

complete application for licensure. Also, it was to give

Petitioner an opportunity to prove to the Department, no later

that April 10, 2000, that he had in fact filed the application

with the Department no later than March 28, 2000.

11. By a Notice of Disapproval dated April 10, 2000, the

Department advised Petitioner that it had disapproved his

entitlement to apply for a new quota liquor license in Polk

County due to Petitioner's failure to timely file a full and

complete application for a new quota liquor license in Polk

County. This notice also advised Petitioner of his right to a

hearing under Chapter 120, Florida Statutes, to contest this

decision.

12. Petitioner has never filed a full and complete

application for a new quota liquor license with the

Department.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

14. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc .,

396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden,

Petitioner must establish facts upon which Petitioner's

allegations for entitlement to apply for a new quota liquor

license are based by a preponderance of the evidence. Section

120.57(1)(h), Florida Statutes, and See Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern Company , 670 So. 2d 932 (Fla. 1996).

15. Section 561.19(2)(a), Florida Statutes, provides in

pertinent part as follows:

(2)(a) When beverage licenses become

available by reason of an increase in the

population of a county . . . the division,

if there are more applicants than the

number of available licenses, shall provide

a method of double random selection by

public drawing to determine which

applicants shall be considered for issuance

of licenses. . . . .

16. In 1994, the Department held a lottery for Polk

County to determine which applicants would be entitled to

apply for a new quota liquor license. Although Petitioner did

not make the initial cut for entitlement to apply for a new

quota liquor license, he was selected as an alternate in the

event one or more of those applicants chosen in the initial

cut failed to file or qualify for the issuance of a new quota

liquor license.

17. Rule 61A-5.0105(4), Florida Administrative Code,

provides as follows

(4) The Division shall notify those

applicants who are selected as a result of

the double random selection drawing by

certified mail . Such notification will be

sent to the mailing address listed on the

entry form or subsequently filed with the

division. It shall be the applicant's

responsibility to maintain a correct

mailing address with the division.

(Emphasis furniushed.)

18. Subsequently, one or more of those applicants

selected by the lottery as eligible to apply for a new quota

liquor license either failed to apply or failed to qualify.

Thereafter, the Department attempted to notify Petitioner that

he was now eligible to apply for a new quota liquor license.

However, Petitioner's address on file with the Department was

incorrect and the Notice of Selection dated February 10, 2000,

sent by Certified Mail to Petitioner was returned by the US

Postal Service with the notation "no such address."

19. Section 561.19(2)(c), Florida Statutes, provides in

pertinent part as follows:

(c) Subject to this selection process, an

applicant shall, after a drawing is held,

have 45 days from the date the division

mails the notice of selection to file an

application on forms provided by the

division and if such applicant is found by

the division to be qualified, a license

shall be issued. . . .

20. Rule 61A-5.0105(5), Florida Administrative Code,

provides in pertinent part as follows:

(5) Failure to file a completed

application package within 45 days of the

date on the selection notice shall result

in denial of the application filed.

Clearly, Petitioner failed to timely file his application for

a new quota liquor license. In fact, Petitioner has never

filed an application. Under the facts of this case, there is

no authority for the Department to extend the deadline for

filing an application for the issuance of new quota liquor

license. Petitioner has failed to meet his burden to show an

entitlement to apply for a new quota liquor license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is recommended that the Department enter a final

order denying Petitioner's request for relief.

DONE AND ENTERED this 9th of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of February, 2001.

COPIES FURNISHED:

Phillip A. Kuhn, Esquire

1533 Tomahawk Trail

Lakeland, Florida 33813-3748

Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Joseph Martelli, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre, 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre, 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit exceptions within 15 days

from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that

will issue the Final Order in this case.