06-001767 D. A. Mortgage, Inc. vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed Recommended Order on Friday, August 4, 2006.

Summary: Section 561.65(4), Florida Statutes, requires that a renewal application for a lien against an alcoholic beverage license be submitted to Respondent within six months prior the lien`s expiration. Recommend Petitioner`s request be denied as untimely.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D.A. Mortgage, Inc., )

)

Petitioner, )

)

vs. ) Case No. 06 - 1767

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Respondent. )

__________________ _______________)

RECOMMENDED ORDER

This matter was submitted for decision on stipulated facts,

pursuant to a telephone conference June 28, 2006.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business a nd

Professional Regulation

Northwood Centre, Suite 6

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Louis J. Terminello, Esquire

Terminello & Terminello, P.A.

2700 Southwest 37th Avenue

Miami, Florida 33133 - 2718

STATEMENT OF THE ISSUE

Whether the Petitioner's request for renewal of a lien

should be granted or denied.

PRELIMINARY STATEMENT

In a letter dated March 9, 2006, the Department of Business

and Professional Regulation, Division of Alcoholic Beverages and

Tobacco ("Division"), acknowledged receipt of the request to

renew a lien against License # 23 - 09383 4COP tha t was submitted

to the Division of Administrative Hearings by D.A. Mortgage,

Inc. ("D.A. Mortgage"), through its counsel. The Division

notified D.A. Mortgage in the letter that it was unable to

record the lien renewal because it was not submitted timely.

D.A. Mortgage filed a request for a formal hearing on March 15,

2006, and the Division forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. A notice was issued scheduling the case for final

hearin g by video teleconference on June 30, 2006.

On June 12, 2006, D.A. Mortgage filed a Motion for Final

Summary Judgment and/or Judgment on the Pleadings and Memorandum

of Law in Support Thereof. In the motion, D.A. Mortgage

contended that there was no dispu ted issue of material fact to

be resolved through an evidentiary hearing in this case and that

it was entitled to judgment as a matter of law. D.A. Mortgage

asserted that all of the material facts necessary to resolve the

issue of whether D.A. Mortgage's request for lien renewal should

be accepted by the Division were set forth in the letter of

March 9, 2006, and that the only issue remaining was the legal

issue relating to the requirements for renewing liens set forth

in Section 561.65(4), Florida Statute s (2005). 1 The Division

filed a response in opposition to the motion on June 27, 2006,

and a hearing was held on the motion on June 28, 2006, with

counsel for the parties attending by telephone.

The Division initially argued during the motion hearing

that there were disputed issues of material fact to be resolved

through an evidentiary hearing, but, after further discussion,

the parties agreed that the material facts were those facts

included in the letter of March 9, 2006, denying D.A. Mortgage's

request to renew its lien and that there was no dispute

regarding these facts. The parties were advised by the

undersigned that the Division of Administrative Hearings has

only the authority to enter a recommended order in this case

and, therefore, has no authori ty to enter a summary final order

pursuant to Section 120.57(1)(h), Florida Statutes. The parties

were further advised that, unless the parties agreed to submit

the case on stipulated facts for entry of a recommended order,

jurisdiction over the case woul d be relinquished to the Division

for an informal hearing. D.A. Mortgage requested that the case

be submitted to the undersigned for entry of a recommended order

on the facts in the March 9, 2006, letter, to which the parties

stipulated. In addition, D.A . Mortgage attached as exhibits to

the motion Instructions For Completing DBPR ABT - 6022; Division

of Alcoholic Beverages and Tobacco; Application for Mortgagee's

Interest in Spiritous Alcoholic Beverage License, together with

the application form DBPR AB T - 6022 completed by D.A. Mortgage

for the lien renewal; the information in these exhibits was

quoted extensively by the Division in its Proposed Recommended

Order, and, even though it was not discussed at the motion

hearing, the undersigned assumes that the Division stipulates to

the above - named exhibits as being true and correct copies of the

documents in the possession of the Division.

As a result of the agreement of the parties, an Order

Canceling the Hearing was entered on June 28, 2006. The parties

timely filed their Proposed Recommended Orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the stipulation of the parties, the following

findings of fact are made:

1. The Division is the state agenc y responsible for

enforcing the provisions of Florida's Beverage Law, including

recording and providing information about liens and security

interests in alcoholic beverage licenses. §§ 561.02 and 561.65,

Fla. Stat.

2. D.A. Mortgage's lien against the al coholic beverage

license of Opium/Caf é Tabac, License # 23 - 09383 4COP, was

recorded with the Division on February 28, 2001.

3. The lien expired by operation of law on February 28,

2006.

4. D.A. Mortgage submitted DBPR ABT Form 6022 to the

Division with a cover letter dated March 1, 2006; the envelope

in which the form was mailed to the Division was postmarked

March 1, 2006.

5. The form indicated that the transaction requested of

the Division was a lien renewal/extension, and it included

signatures purpor ting to be those of the managing member of the

debtor, dated January 23, 2006, and of the president of the

creditor, D.A. Mortgage, dated January 27, 2006.

6. The form also indicated that the effective date of the

security interest at issue was February 2 8, 2006.

7. The Division did not record the lien renewal because

the request was not submitted within six months prior to the

expiration of the lien.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 12 0.57(1),

Florida Statutes .

9. This case involves the denial of D.A. Mortgage's

request to renew a lien against an alcoholic beverage license,

and, therefore, it is its burden to prove by a preponderance of

the evidence that it satisfied the statutory requirements for

renewing the lien. See Department of Banking & Finance, Div. of

Securities & Investor Protection v. Osborne Stern & Co. , 670 So.

2d 932, 933 - 34 (Fla. 1996); Flor ida Dep't of Transp. v. J. W. C.

Co. , 396 So. 2d 778, 788 (Fla. 1981)( " [T] he burden of proof,

apart from statute, is on the party asserting the affirmative of

an issue before an administrative tribunal." )(quoting Balino v.

Department of Health and Rehabilitative Services , 348 So.2d 349

(Fla. 1st DCA 1977) ) .

10. Section 561.65, Florida Statutes, governs mortgages,

liens, and security interests against alcoholic beverage

licenses. Section 561.65(4), Florida Statutes, sets forth the

requirements for perfecting liens and security interests:

In order to perfect a lien or securi ty

interest in a spirituous alcoholic beverage

license which may be enforceable against the

license, the party which holds the lien or

security interest, within 90 days of the

date of creation of the lien or security

interest, shall record the same with th e

division on or with forms authorized by the

division, which forms shall require the

names of the parties and the terms of the

obligation. The division, upon the request

of any person or entity, shall conduct a

lien search and shall provide to the

reques ter copies of all recorded liens and

security interests in the division's records

under the name searched, all for the fee set

forth in this subsection. The fee for

recording a lien or security interest shall

be $10; the fee for recording an assignment

of a recorded lien or security interest

shall be $10; the fee for recording a

satisfaction of a lien or security interest

shall be $10; and the fee for a lien search

shall be $20. The division shall promulgate

forms to be used under this subsection. All

li ens and security interests filed on or

after July 1, 1995, shall expire 5 years

after recordation unless renewed by the

lienholder within 6 months prior to its

expiration date. All liens and security

interests filed prior to July 1, 1995, shall

expire on July 1, 2000, unless renewed by

the lienholder within 6 months prior to that

date. Renewals of liens and security

interests shall be subject to a $10 renewal

fee.

11. The portion of Section 561.65(4), Florida Statutes, at

issue in this case the provision that dealing with renewal of

liens and security interests filed after July 1, 1995: " All

liens and security interests filed on or after July 1, 1995,

shall expire 5 years after recordation unless renewed by the

lienholder within 6 months prior to its exp iration date. "

12 . While it is true, as D.A. Mortgage argues in its

Proposed Recommended Order, that the quoted language is clear

and unambiguous, a state agency charged with implementing a

substantive statute may construe a statute as long as the

constru ction does not "extend, modify, or limit [a statute's]

express terms or its reasonable and obvious implications ."

Holly v. Auld , 450 So. 2d 217, 219 (Fla. 1984) (quoting American

Bankers Life Assurance Company of Florida v. Williams , 212 So.

2d 777, 778 (Fla. 1st DCA 1968) )(E mphasis added by Court); see

Laborers' Inter national Union, Local 478 v. Burroughs , 541 So.

2d 1160, 1162 (Florida 1989) ("[A] dministrative agencies are

necessarily called upon to interpret statutes in order to

determine the reach of their jurisdiction. ")

13 . Section 561.25(4), Florida Statutes, dea ls with the

perfection of liens and security interests against alcoholic

beverage licenses. The "reasonable and obvious implications" of

the requirement that liens must be renewed prior to expiration

is that the perfection of the lien that must be renewed .

Perfection of the lien requires recordation, and the only

reasonable construction of Section 561.65(4), Florida Statutes,

is that renewal must be submitted to the Division within the

time specified in the statute in order to avoid expiration of

the perf ection of the lien.

14. Based on the stipulated facts in this case, D.A.

Mortgage has failed to prove by a preponderance of the evidence

that its request for renewal of its lien against alcoholic

beverage license # 23 - 09383 4COP should be granted.

RECOMME NDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco, enter a final order denying the request of D.A.

Mortgage, I nc., to renew the lien at issue herein.

DONE AND EN TERED this 4th day of August , 2006 in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of August, 2006 .

ENDNOTE

1 / All references to the Florida Statutes herein are to the 2005

edition unless otherwise noted.

COPIES FURNISHED:

Louis J. Terminello, Esquire

Terminello & Terminello, P.A.

2700 Southwest 37th Avenue

Miami, Flori da 33133 - 2728

Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Centre, Suite 6

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Steven M. Hougland, Ph.D., Director

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Josefina Tamayo, 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 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 t he final order in this case.