01-001306 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. George Lopez, D/B/A Smiley`s Status: Closed Recommended Order on Monday, July 30, 2001.

Summary: Respondent`s plea of no contest to the criminal charge of cocaine possession is sufficient basis to justify revocation of licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 01-1306

)

GEORGE LOPEZ, d/b/a SMILEY'S, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on June 5, 2001, by means of video technology in Tallahassee and

Daytona Beach, Florida, before Don W. Davis, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner : Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007

For Respondent : Paul Kwilecki, Jr., Esquire

629 North Peninsula Drive

Daytona Beach, Florida 32118

STATEMENT OF THE ISSUE

Whether Respondent's plea of nolo contendere to the crime

of possession of a controlled substance (for which adjudication

was withheld) is sufficient to support the imposition of

discipline with regard to his alcoholic beverage license.

PRELIMINARY STATEMENT

By Administrative Action issued March 5, 2001, Petitioner

charged Respondent with pleading guilty to the offense of

possession of a controlled substance, to-wit : Cocaine.

Petitioner's Administrative Action also noticed Respondent that

Petitioner contemplated imposition of sanctions against

Respondent's beverage license on the grounds that Respondent was

not believed to be of good moral character.

Respondent timely challenged the proposed action. The

matter was referred to the Division of Administrative Hearings,

and this proceeding followed.

At the final hearing, Petitioner's motion to have the

request for admissions deemed admitted, pursuant to Florida Rule

of Civil Procedure 1.370, was granted, along with admission of

three other exhibits. Respondent testified in his own behalf

and submitted two exhibits.

A Transcript of the proceeding was filed on June 27, 2001.

Both parties filed Proposed Recommended Orders, which have been

duly considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner 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.

2. Prior to September 11, 2000, Respondent, doing business

as Smiley's, was the owner and holder of a beverage license,

DBPR License No. 74-05336, Series 2-COP, which permits him to

sell beer and wine for consumption on premises.

3. On October 9, 1998, Respondent was charged by

information with sale and delivery of cocaine. He was acquitted

of that charge on May 12, 2000.

4. Subsequently in a separate incident, Respondent was

charged with possession of cocaine and on September 11, 2000,

pleaded no contest to that charge.

5. Pursuant to Respondent's timely request for formal

proceedings, Petitioner's counsel initiated discovery in the

course of this administrative proceeding through a Request for

Admissions to which Respondent failed to respond. Respondent

failed to provide a satisfactory explanation for this

circumstance and, upon motion of Petitioner, the Request for

Admissions was deemed admitted. Those admissions establish that

Respondent entered a no contest plea on September 11, 2000, to

the charge of possession of cocaine and that the plea bargain

negotiated at that time also included two days' incarceration.

Additionally, the admissions establish that Respondent is aware

that possession of cocaine is a crime punishable by imprisonment

for a term of five years.

6. Respondent's own testimony is uncorroborated by other

direct evidence and fails to establish that he possesses good

moral character.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

8. Section 561.15(1), Florida Statutes, provides that

Petitioner shall allow beverage licenses only to persons of good

moral character who are not less than 21 years of age.

9. Rule 61A-1.017, Florida Administrative Code, provides,

in pertinent part, the following pertaining to moral character:

(1 ) For purposes of the Beverage Law, a

person of "good moral character" shall mean

a person who:

(a ) Has the ability to distinguish

between right and wrong and the character to

observe the difference;

(b ) Observes the rules of right conduct;

and

(c ) Acts in a manner that indicates and

establishes the qualities of trust and

confidence that is generally acceptable to

the state.

(2 ) Conduct that does not establish the

qualities of trust and confidence include

the following:

(a ) Being penalized for a criminal act in

this country or a foreign country that is

punishable by imprisonment for a term

exceeding 1 year when the act is related to

alcoholic beverages, failure to pay taxes,

unlawful drugs or controlled substances,

prostitution, or injuring another person

within the last 15 years.

10. Petitioner established clearly and convincingly that

it was within its discretion to impose discipline upon

Respondent's beverage license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

revoking Respondent's alcoholic beverage license, DBPR License

No. 74-05336, Series 2-COP.

DONE AND ENTERED this 30th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 2001.

COPIES FURNISHED :

Paul Kwilecki, Jr., Esquire

629 North Peninsula Drive

Daytona Beach, Florida 32118

Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-1007

Lt. John P. Szabo

Department of Business and

Professional Regulation

400 West Robinson Street, Room 709

Orlando, Florida 32801

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 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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.