96-005972 Division Of Alcoholic Beverages And Tobacco vs. Willie Lee Lewis, D/B/A Ls Lounge Status: Closed Recommended Order on Friday, September 12, 1997.

Summary: No grounds for revocation of beverage license where licensee fully disclosed previous arrest prior to licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 96-5972

)

WILLIE LEE LEWIS d/b/a )

LS LOUNGE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on July 2, 1997, in West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Leslie Anderson-Adams, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Iola Mosley, Esquire

Whitfield & Mosley, P.A.

Post Office Box 34

West Palm Beach, Florida 33402

STATEMENT OF THE ISSUE

The issue presented is whether Respondent Willie Lee Lewis

d/b/a LS Lounge is guilty of the allegations contained in the

notice of Administrative Action filed against him, and, if so,

what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

On October 17, 1996, the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco, issued its notice of Administrative Action, and

Respondent Willie Lee Lewis d/b/a LS Lounge timely requested an

evidentiary hearing regarding the Department's allegations. This

cause was thereafter transferred to the Division of

Administrative Hearings to conduct the evidentiary proceeding.

The Department presented no witnesses in its case-in-ch ief.

Respondent testified on his own behalf. The Department then

presented the testimony of Lt. Bob M. Young and Special Agent

Leon James Weech as rebuttal evidence. The Department's exhibits

numbered 1-4 were also admitted in evidence.

FINDINGS OF FACT

1. Respondent Willie Lee Lewis d/b/a LS Lounge is the

holder of alcoholic beverage license No. 53-01765, series 2-COP,

authorizing him to operate as a vendor of alcoholic beverages.

2. On May 31, 1996, Respondent filed with the Department

his Application for Alcoholic Beverage License and Cigarette

Permit and its accompanying Personal Questionnaire form.

3. The Personal Questionnaire form contains a question

asking if the applicant has ever been arrested or charged with

any violation of the law other than minor traffic violations,

and, if so, whether the applicant was convicted. Respondent

answered "yes" to the first part of the question and "no" to the

second part and added a notation that "adjudication was

withheld." At the bottom of that series of questions, the form

requests full particulars for any "yes" answer and lists the type

of information requested, only a portion of which is legible on

the copy of the form admitted in evidence. On this portion of

the application, Respondent wrote "Martin County Sherifs [sic]

Department."

4. On April 14, 1992, Respondent was charged by Information

in the Martin County Circuit Court, Case No. 92-352 CFA, with one

count of unlawfully selling, delivering, or possessing with the

intent to sell or deliver a controlled substance, cocaine. The

second count alleged that Respondent unlawfully used or possessed

with the intent to use drug paraphernalia, i.e. , a razor blade.

Respondent pled nolo contendere to count one, possession of

cocaine.

5. On December 9, 1992, the Court entered its Order

Withholding Adjudication of Guilt and Placing Defendant on Drug

Probation, placing Respondent on probation for a period of two

years.

6. When Respondent was completing his application for a

beverage license, he went to the Department's offices in Martin

County on several occasions. Department employees assisted him

in completing his application.

7. Respondent was concerned as to whether he was eligible

for licensure due to the arrest which resulted in adjudication

being withheld. He discussed that concern with the Department's

employees in its Martin County office. The lady he spoke with

did not know if Respondent could obtain a beverage license if

adjudication had been withheld. She telephoned the Department's

Tallahassee office regarding that question and then advised

Respondent that he was not precluded from licensure. Respondent

submitted certified copies of the Information and of the Order

Withholding Adjudication of Guilt.

8. The Department issued a beverage license to Respondent

in May 1996, and Respondent set up his business. He entered into

a lease for the business premises at a cost of $1,000 a month and

spent $5,000 to $6,000 renovating the premises. He leased a big-

screen T. V. at a cost of $200 a month. He purchased D. J.

equipment for $8,000. He purchased inventory, hired employees,

and began advertising. It costs Respondent approximately $1,800

a week to operate the business. He has a one-year contract for

radio advertising and renewed the lease for his business premises

for another year in May of 1997.

9. It is the policy of the Department to determine on a

case-by-case basis whether a person who has a criminal history

should be given a license. The Department does issue licenses to

persons who have been charged with a crime, have pled nolo

contendere to those charges, and have had adjudication withheld

and been placed on probation.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof. Sections 120.569 and 120.57(1), Florida Statutes.

11. The notice of Administrative Action filed in this cause

contains two counts. Count 1 alleges that Respondent falsely

swore to arrest data on the Personal Questionnaire form, which

was signed under oath, "in violation of Section 559.791, within

561.29(1)(a), Florida Statutes." Count 2 alleges that Respondent

does not qualify to hold an alcoholic beverage license under

Section 561.15(1) due to a violation of Rule 61A-1.017(2)(a),

Florida Administrative Code, which involves being penalized for a

criminal act involving unlawful drugs.

12. As to Count 1, Section 559.791, Florida Statutes,

authorizes the Department to deny, suspend, or revoke a license

where the applicant (or licensee) has falsely sworn to a material

statement in the application for licensure. Section 561.29(1)(a)

authorizes the Department to revoke or suspend a license where

the licensee violates the law on the licensed premises or

elsewhere while in the scope of employment. There is no evidence

that Respondent violated the law on the licensed premises or

elsewhere while in the scope of his employment, and Respondent

cannot be found guilty of violating Section 561.29(1)(a).

13. The Department argues that Respondent is guilty of

violating Section 559.791 because he did not disclose all of his

arrests. The Department's first argument is that Respondent did

not provide all of the particulars on his Personal Questionnaire

regarding the arrest he disclosed. That argument is not

persuasive since Respondent disclosed the arrest, disclosed the

disposition, disclosed the arresting agency, and provided to the

Department certified copies of the Information and of the Order

Withholding Adjudication of Guilt and Placing Defendant on Drug

Probation. There was nothing more to disclose.

14. The Department's second argument is that Respondent did

not disclose all of his arrests. That allegation must be placed

in context with the evidence and its order of presentation. The

law is well settled that in a revocation proceeding such as this

the Department must prove its allegations by clear and convincing

evidence. At the final hearing, the Department's case-in-chief

consisted of placing into evidence four exhibits, the facts

concerning which were stipulated to by the Respondent: his

licensure application, his Personal Questionnaire, the

Information, and the Order Withholding Adjudication. The

Department then rested. The Respondent then testified on his own

behalf, and the Department waived cross-examination. The

Respondent then rested. At that point, the Department had not

proven its allegations regarding the Respondent submitting false

information. The Department was then afforded its opportunity to

present rebuttal evidence.

15. Instead of presenting rebuttal evidence, i.e. , evidence

to rebut something unanticipated which was presented during

Respondent's case, the Department then put on two witnesses. One

of the witnesses testified that in September 1996 he saw a piece

of paper which stated that Respondent had been arrested on other

occasions but either no charges were filed or the charges were

nolle prossed . No evidence was offered as to when, where, or

why, and no competent evidence was offered regarding that

witness' hearsay testimony.

16. Section 120.57(1)(c), Florida Statutes, prohibits

basing a finding of fact on only hearsay evidence unless it would

be admissible over objection. The Department's witness'

testimony as to what that document purported to recite would not

be admissible over objection, and there is no competent evidence

which that hearsay explained or supplemented. Accordingly, that

evidence was not clear or convincing of anything.

17. Moreover, the Department's allegation that Respondent

had been arrested more than one time is not included in the

notice of Administrative Action, is not mentioned in the

stipulated facts filed as part of the parties' Pre-hearing

Stipulation, is not listed as a issue to be tried, and was raised

for the first time in the Department's rebuttal presentation. By

the Department's approach to putting on its evidence after

Respondent had rested, the Respondent had no opportunity to

explain whether those arrests were his, whether he understood he

had been arrested where no charges had been filed or they were

nolle prossed , or why he had not disclosed them, if in fact any

of them had even occurred.

18. The Department failed to present clear and convincing

evidence to prove that Respondent swore falsely to his arrest

record. Therefore, the Department failed to meet its burden of

proof that Respondent is guilty of violating Section 559.791,

Florida Statutes, as alleged in Count 1.

19. As to Count 2, Section 561.15(1), Florida Statutes,

requires an applicant for licensure to have good moral character.

Rule 61A-1.017(2)(a), Florida Administrative Code, provides as

follows:

(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 in the preceding 15 years . . . .

The Department cited no cases and presented no testimony that a

person is "penalized" when a plea of nolo contendere is accepted

by the Court, adjudication is withheld, and a defendant is placed

on probation. Whether a person has been "penalized" may well be

a subjective determination. Certainly, being convicted of a

crime and incarcerated would be a penalty; having adjudication

withheld may not be.

20. In any event, the evidence is uncontroverted that the

Department looks at each situation where adjudication is withheld

on a case-by-case basis. In the case at bar, the Department has

simply relied on its rule and has not presented any evidence that

Respondent lacks good moral character other than its evidence

regarding the arrest which Respondent disclosed. There is no

clear and convincing evidence that Respondent lacks good moral

character as alleged in Count 2 of the notice of Administrative

Action.

21. Finally, the Department was on notice of Respondent's

disclosed arrest before it issued a license to Respondent, in

effect determining that Respondent does possess good moral

character. Section 561.15(1), Florida Statutes, makes lack of

good moral character a basis for denying an application for

licensure, not for revoking a license once it has been issued.

22. In its proposed recommended order, the Department

argues that Respondent has violated statutory provisions which

were not charged in the Department's notice of Administrative

Action. Those provisions are not addressed in this Recommended

Order since Respondent was not on notice that those violations

were charged and, therefore, had no opportunity to defend against

them.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED THAT a final order be entered finding Respondent

not guilty of the allegations against him and dismissing the

notice of Administrative Action.

DONE AND ENTERED this 12th day of September, 1997, at

Tallahassee, Leon County, Florida.

__ _________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of September, 1997.

COPIES FURNISHED:

Leslie Anderson-Adams, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Iola Mosley, Esquire

Whitfield & Mosley, P.A.

Post Office Box 34

West Palm Beach, Florida 33402

Lt. Bob M. Young

800 Virginia Avenue, Suite 7

Fort Pierce, Florida 34982

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Richard Boyd, Director

Department of Business and

Professional Regulation

Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399

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.