00-004046 George W. Wilson, Sr., D/B/A Wilson`s Game Room vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, Status: Closed Recommended Order on Tuesday, March 6, 2001.

Summary: Application for beverage license can be denied since applicant had prior license revoked based on felonies committed on or near prior licensed premises.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE W. WILSON, SR., d/b/ a )

WILSON'S GAME ROOM , )

)

Petitioner , )

)

vs. ) Case No. 00-4046

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO , )

)

Respondent , )

___________________________________)

RECOMMENDED ORDER

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

January 10, 2001, by telephone between Fort Pierce and

Tallahassee, Florida, before Claude B. Arrington, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : George W. Wilson, Sr., pro se

Wilson's Game Room

1101 Avenue D

Fort Pierce, Florida 34951

For Respondent : Michael Martinez, Esquire

Department of Business and

Professional Regulation

Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Respondent has the discretion to deny Petitioner's

application for a beverage license on the grounds set forth in

the Notice of Intent to Deny License and, if so, whether

Respondent abused its discretion.

PRELIMINARY STATEMENT

Petitioner's application for a beverage license was denied

by Respondent on the grounds that the applicant had a previous

beverage license revoked in 1994 and was not believed to be of

good moral character.

Petitioner timely challenged the denial, the matter was

referred to the Division of Administrative Hearings, and this

proceeding followed.

At the final hearing, Petitioner testified on his own behalf

and presented the additional testimony of his daughter, his

daughter-in-law, and his wife. Petitioner offered no exhibits.

Respondent presented no testimony, but offered one exhibit,

which was accepted into evidence.

No Transcript of the proceedings was filed. Respondent

filed a Proposed Recommended Order, which has been duly-

considered by the undersigned in the preparation of this

Recommended Order. Petitioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. Respondent is a licensing and regulatory agency of the

State of Florida charged with the responsibility and duty to

issue beverage licenses pursuant to Chapter 561, Florida

Statutes, and applicable rules.

2. Prior to October 21, 1994, Petitioner, doing business as

Wilson's Grocery, was the owner and holder of beverage license

66-0123.

3. On November 9, 1992, Petitioner's daughter, daughter-in-

law, and wife were convicted of felony charges pertaining to food

stamps fraud that occurred on or near the licensed premises. On

November 9, 1992, Respondent issued to Petitioner a Notice to

Show Cause why license 66-0123 should not be revoked based on

those convictions.

4. Petitioner timely requested a formal hearing to

challenge the Notice to Show Cause, the matter was referred to

the Division of Administrative Hearings, and assigned DOAH Case

No. 94-0929. A formal hearing was convened in Fort Pierce,

Florida, on July 21, 1994, before Administrative Law Judge J. D.

Parrish. At the formal hearing, Petitioner withdrew his request

for a formal hearing with the knowledge that license 66-0123

would be revoked.

5. On October 21, 1994, a Final Order was entered by

Respondent revoking license 66-0123.

6. Petitioner offered no evidence that would establish he

has 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

Respondent shall issue beverage licenses only to persons of good

moral character.

9. Section 561.15(3)(a), Florida Statutes, provides as

follows:

(3 ) The division may suspend or revoke the

license under the Beverage Law of, or may

refuse to issue a license under the Beverage

Law to:

(a ) Any person, firm, or corporation the

license of which under the Beverage Law has

been revoked or has been abandoned after

written notice that revocation or suspension

proceedings had been or would be brought

against the license . . .

10. 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:

* * *

(k ) Having had an ownership interest or

managed a business whose alcoholic beverage

license or permit was revoked by a government

agency for a violation of a criminal law that

is punishable by imprisonment for a term

exceeding 1 year or four violations of the

same law during the preceding 3 years.

11. Respondent established that it was within its

discretion to deny Petitioner's application for a beverage

license based on the revocation of his prior beverage license.

12. Rule 61A-1.017(2)(k), Florida Administrative Code,

provides, in pertinent part, the following as to applicants who

need to establish that he or she has good moral character:

(3 ) Mitigation the division will consider

in determining a person's good moral

character when there is evidence of the

conduct described in subsection (2) of this

rule includes:

(a ) An affidavit explaining the

circumstances of past conduct and evidence of

the qualities of trust and confidence, the

ability to distinguish between right and

wrong, and the character to observe the

difference; and

(b ) Character references from people who

have personal knowledge of the applicant's or

licensee's qualities of trust and confidence,

the ability to distinguish between right and

wrong, and the character to observe the

difference. References may not include

spouse, sons, daughters, or anyone employed

by the applicant or licensee.

(c ) Evidence of good citizenship and

improving the quality of life in their

community.

13. Petitioner failed to present any evidence as to whether

he has good moral character.

14. Petitioner failed to establish that Respondent abused

its discretion in denying his application for a beverage license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a final order

denying Petitioner's application for a beverage license.

DONE AND ENTERED this 6th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of March, 2001.

COPIES FURNISHED:

George W. Wilson, Sr.

Wilson's Game Room

1101 Avenue D

Fort Pierce, Florida 34951

Michael Martinez, Esquire

Department of Business and

Professional Regulation

Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Lois A. Williams

Regulatory Supervisor/Consultant

Department of Business and

Professional Regulation

Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399-1021

Richard Turner, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.