06-001476 Italian Club Canteen vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed Recommended Order on Thursday, September 28, 2006.

Summary: Petitioner failed to show "good cause" and "no neglect" for not filing a completed application. Therefore, its request for an extension of time should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ITALIAN CLUB CANTEEN , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1476

)

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

before Carolyn S. Holifield, Administrative Law Judge of the

Division of Administrative Hearing s , on June 28, 2006, by video

teleconfere nce at sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Maggie M. Schultz, Esquire

Rutledge, Eceni, Purnell,

& Hoffman, P.A.

Post Office Box 551

Tallahassee, Florida 32302 - 0551

For Respondent: Christina B. Norman, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahasse e, Florida 32399 - 0750

STATEMENT OF THE ISSUE

The issue in this case in whether Petitioner, Italian Club

Canteen ("Petitioner" or "Italian Club Canteen"), remains

eligible to apply for a new quota liquor license in Hillsborough

County, Florida.

PRELIMINA RY STATEMENT

In a Notice of Disapproval, dated December 12, 2005,

Respondent, the Department of Business and Professional

Regulation, Division of Alcoholic Beverages and Tobacco (“the

Division” or "Respondent"), advised Petitioner that its failure

to timel y file an application for a new quota liquor license in

Hillsborough County , Florida, had resulted in the disapproval of

its entitlement to apply for a new quota liquor license. This

Notice also advised Petitioner of its right to a formal hearing

under Ch apter 120, Florida Statutes. Petitioner timely

challenged the Division's Notice of Disapproval and requested a

formal administrative hearing. On April 25, 2006, the Division

referred this matter to the Division of Administrative Hearings

for the assignme nt of an Administrative Law Judge to conduct the

hearing.

At hearing, Petitioner presented the testimony of Eileen

Klinger, the b ureau c hief of Licensing for the Division, and

James Granell, Petitioner’s corporate representative.

Petitioner's Exhibits 1 t hrough 3 were admitted into evidence.

Respondent also presented the testimony of Eileen Klinger.

Respondent's Exhibit 1 was admitted into evidence. At the

request of the parties, the undersigned took official

recognition of Florida Administrative Code R ule 61A - 5.0105.

The hearing Transcript was filed on July 12, 2006. Both

parties timely filed P roposed R ecommended O rders , which have

been carefully considered in preparation of this O rder.

FINDINGS OF FACT

1. Petitioner, Italian Club Canteen, formerly w as

incorporated under the name, Italian Club Canteen, Inc. That

corporation was established in 1976 and was administratively

dissolved in 1997.

2. Even though Petitioner's corporation was dissolved, it

still could have been eligible to apply for the quot a license it

seeks. 1

3. The parties stipulated that Petitioner has standing in

this case.

4. The Division is the agency vested with general

regulatory authority over the alcoholic beverage industry within

the state, including the issuance of quota licens es through

double random selection drawing. See § 561.19(2), Fla. Stat.

(200 6 ).

5. On March 15, 1990, the Division held a double random

quota lottery drawing for new quota liquor licenses in

Hillsborough County, Florida.

6. Petitioner filed a preliminar y application for a quota

license with the Division on December 12, 1989. This

application entitled Petitioner to be considered in the 1990

random selection public drawing held by the Division.

7. The preliminary application filed by Petitioner listed

th e applicant as "The Italian Club Canteen, Inc."

8. Petitioner was not the initial successful applicant in

the 1990 quota drawing but was an alternate applicant.

Alternate applicants become eligible to apply for a new quota

license in the event one or mor e of the prior successful

applicants in the drawing fail to qualify for a new quota liquor

license.

9. The Division notified the original winners in the 1990

quota drawing within a few days of the drawing. However, not

all of the original winners ultimat ely were issued licenses, due

to their failure to submit applications or the Division's

disapproving the applications.

10. After original winners in the drawing were deemed

disapproved for licenses, the Division subsequently began

notifying alternate appl icants of their entitlement to apply for

the new quota licensed. However, there was a significant delay

in such notification being provided. 2

11. On August 8, 2005, the Division sent to the

Petitioner, by certified mail, a Notice of Selection letter

("No tice of Selection"), attempting to notify Petitioner of its

standing as an alternate applicant.

12. The Notice of Selection stated that, pursuant to

Subsection 561.19(2), Florida Statutes (2004), and Florida

Administrative Code Rule 61A - 5.0105, Petitioner "must file a

full and complete application for issuance of the license within

45 days of this letter." The Notice of Selection also provided

that failure to file a complete application within the 45 - day

period would be deemed as a waiver of Petitioner's right to file

for a new quota license.

13. The Notice of Selection, dated August 8, 2005, was

mailed to the same address, a post office box, that was on

Petitioner’s preliminary application.

14. The address listed by Petitioner on its preliminary

applica tion form is shared with several other businesses,

including the Italian Club of Tampa.

15. Arnold Vaske signed the certification card for the

Notice of Selection, dated August 8, 2005, and, presumably,

received the notice.

16. Mr. Vaske is not nor has h e ever been an employee,

officer, or otherwise connected with Petitioner.

17. Mr. Vaske picked up the mail from the post office box

at the request of Sal Guagiardo, president of the Italian Club

of Tampa.

18. It is unclear what happened to the Notice of Selection

sent to Italian Club Canteen, Inc., after Mr. Vaske signed for

and picked up the notice. However, typically, the mail is put

on Mr. Guagiardo's desk and is sorted by Mr. Guagiardo or his

secretary.

19. Prior to the dissolution of the Italian Ca nteen Club,

Inc., an officer of the Italian Club Canteen or the club

administrator picked up the mail for the corporation. However,

there is no indication that any officer, director, or anyone

else associated with Petitioner made any arrangements as to ho w

mail addressed to "Italian Club Canteen, Inc.," and sent to the

post office box was to be handled.

20. After the corporation was dissolved, mail addressed to

"Italian Club Canteen, Inc.," and sent to the post office box

was usually considered "solicitat ion" or "junk mail" and

"probably" stayed on Mr. Guagiardo's desk longer than other

mail.

21. Petitioner never received the Notice of Selection

letter that was mailed by the Division on August 8, 2005.

Therefore, Petitioner did not respond within the 45 - day

statutory deadline.

22. After Petitioner failed to file an application within

the 45 - day deadline, on October 31, 2005, the Division sent

Petitioner, by certified mail, a Final Warning Notice (Final

Warning). The Final Warning provided that the Divis ion intended

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

license in Hillsborough County. The Final Warning also advised

Petitioner that it had until November 10, 2005, to respond with

additional information as to why the Division should not deny

Petitioner's entitlement to a new quota license.

23. The Final Warning was sent to the address listed in

Petitioner's initial application. Mr. Vaske signed the

certification card, indicating that he picked up the Final

Warning.

24. Petitioner recei ved and timely responded to the

Division's Final Warning.

25. By letter dated November 10, 2005, Petitioner

requested an extension of time in which to file an application

for a quota license. According to the letter, Petitioner did

not receive the notice of its entitlement to apply for the new

quota license for more than 15 years. The letter further

provided that during this time period, "personnel changes have

naturally occurred with the original applicant" and "the person

who signed for the Division's Notice of Selection . . . is not

an officer of the applicant who was wholly unaware of the

matter, including the application filed more than 15 years

previously."

26. The Division is authorized to grant an extension of

time, if it finds there is "good cau se" and "no negligence" on

the part of the person or entity seeking the extension.

27. The Division reviewed Petitioner's request for an

extension of time to apply for the new quota license, but found

that there was not good cause to grant the request.

28 . The Division denied Petitioner's request for an

extension of time to apply for a quota license after it

determined (1) that the Notice of Selection was mailed to the

address listed on Petitioner's preliminary application and (2)

that someone signed the certification card, thereby indicating

that someone at that address had picked up the letter. Based on

the foregoing, the Division reasonably concluded that Petitioner

received the Notice of Selection and simply neglected to file

the application.

29. Pet itioner makes three assertions as to why it should

be granted an extension of time in which to file its

application. First, it claims that it never received the Notice

of Selection. Second, Petitioner asserts in August 2005, when

the Notice of Selection was mailed, none of the current officers

of the Italian Club of Tampa, the entity which shared the post

office box with Petitioner, knew Petitioner was an applicant in

the 1990 drawing. Thus, even though the Division 's envelope in

which the Notice of Sele ction was sent had the word, "quota,"

written on it, this information would not put any officer of the

Italian Club of Tampa on notice of the content of the

information in the envelope. Third, Petitioner asserts that at

the time Petitioner's corporation d issolved in 1997, it had no

reason to expect that a new quota license from the 1990 drawing

was still available for issuance.

30. Petitioner's assertions, even if true, do not

constitute good cause for granting an extension.

31. Petitioner took no action when it dissolved the

corporation to determine if a new quota license from the 1990

drawing was still available. Rather, because seven years had

lapsed between the drawing and the time the corporation

dissolved, it merely assumed that no license from tha t drawing

was available. Based on that erroneous assumption , in 1997 when

Petitioner's corporation was dissolved, none of the officers or

any one associated with Italian Club Canteen checked with the

Division to determine if there were licenses from the 1 990 quota

drawing still available for issuance.

32. Petitioner 's corporate representative testified that

if the Division had addressed the Notice of Selection to the

attention of a specific individual associated with the

corporation, and not simply to "It alian Club Canteen, Inc.," it

would have been more likely that Petitioner would have received

the notice. Notwithstanding this claim, Petitioner never

notified the Division that the corporation was dissolved or that

the Division should address any corresp ondence to the "Italian

Club Canteen, Inc., " to the attention of a specifically named

individual associated with the corporation.

33. Petitioner failed to show that it had good cause and

no negligence for failing to timely submit the application for

the quota license. Therefore, the Division properly denied

Petitioner's request for an extension.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding, pursuant to Sect ion 120.569 and Subsection

120.57(1), Florida Statutes (200 6 ).

35. 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 (F la. 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. See

§ 120.57(1)(h), Fla. Stat. (2004), and Department of Banking and

Finance, Division of Securities and Investor Protection v.

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

36. Subsection 561.19(2)(c), Florida Statutes (2004),

states, in pertinent part, “. . . an applicant shall, after a

dra wing 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.”

37. Florida Administr ative Code Rule 61A - 5.0105 provides,

in pertinent part, the following:

(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 a ddress 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.

(5) All applicants selected for licenses

shall file a completed application , . . .

Failure to file a completed application

package within 45 days of the date of the

selection notice, shall result in the denial

of the application filed. (Emphasis added)

38. Florida Administrative Code Rule 61A - 5.0105(2)

provides that “Applicants shall not be granted extensions for

filing applications except by petition showing good cause and no

negligence by the applicant.”

39. In accordance with S ubs ection 561.19(2)(c),

Florida Statutes (2004), and Florida Administrative Code Rule

61A - 5.0105(4) , the Division properly notified Petitioner, by

Notice of Selection, sent by certified mail, of its standing as

an alternate applicant.

40. Petitioner failed to respond to the Division within

the 45 - day statutory deadline, thereby waiving its eligibility

to file an application for the quota license, pursuant to

Subsection 561.19(2), Florida Statutes (2004) .

41. On December 12, 2005, after concluding that Petitioner

was negligent and failed to provide good cause for an extension

of time, the Division prope rly disapproved Petitioner’s

eligibility to file an application for a quota license.

42. Petitioner failed to establish, by a preponderance of

the evidence, that it was not negligent in failing to respond to

the Division within the 45 - day statutory deadli ne. Testimony by

Petitioner clearly established that the Notice of Selection

reached the address given by Petitioner, but was unaccounted

for, for at least 45 days.

43. Petitioner failed to establish, by a preponderance of

the evidence , that good cause e xists to grant an extension of

time. Petitioner provided no evidence of good cause to the

Division or at the hearing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Business and

P rofessional Regulation, Division of Alcoholic Beverages and

Tobacco , issue a final order denying Petitioner’s request for an

extension of time to file an application for a quota liquor

license.

DONE AND ENTERED this 28th day of September , 2006 , in

Tallahas see, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September, 2006 .

ENDNOTES

1/ The dissolution of the corporation does not preclude

Petitioner’s entitlement to apply for the liquor license. The

Division’s representative testified that a selected corporation

has “the choice of either going back to the Secretary of State

and reactivating that corporation if they can do so, or they can

form a new corporation, but they have to re ference the old

corporation.”

2/ According to the Division, the delays were the result of

several factors including the Division's staffing problems,

changes in the Division's administration, the time required to

send out notices and receive responses to the required notices,

and the time necessary to complete administrative proceedings

and appeals.

COPIES FURNISHED :

Maggie M. Schultz, Esquire

Rutledge, Eceni, Purnell, & Hoffman, P.A.

Post Office Box 551

Tallahassee, Florida 32302 - 0551

Christina B. No rman, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0750

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Ta llahassee, Florida 32399 - 0792

Steven M. Hougland, Ph.D., Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGH T 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.