09-001121 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Fox Marianne Gunn, D/B/A Stardust Lounge Status: Closed Recommended Order on Friday, June 11, 2010.

Summary: The Division proved by clear and convincing evidence that Respondent's license should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 09-1121

)

FOX MARIANNE GUNN, d/b/a STARDUST LOUNGE, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case by video conference on March 31, 2010,

between sites in Tallahassee and Fort Myers, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings. The parties were represented as set

forth below.

APPEARANCES

For Petitioner: Michael B. Golen, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2022

For Respondent: David George Hutchison, Esquire

Post Office Box 1262

Key Largo, Florida 33037

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent failed to

comply with the requirements of its license under the beverage

law. Specifically, Respondent purportedly violated the actions

set forth in two counts, as follows:

Count I--Respondent failed to "provide the required

service area, seating and equipment to serve 200

persons full course meals at tables at one time as

required by its license. [S]ections 561.20(2)(A)(4),

within Section 561.29(1)(A), Florida Statutes"; and

Count II--Respondent failed to "provide at least 4,000

square feet of area dedicated to the operation of the

restaurant as required by its license. [S]ections

561.20(2)(A)(4), within Section 561.29(1)(A), Florida

Statutes."

Respondent has also raised the issue of whether Petitioner

should be estopped from enforcement actions concerning the

alleged violations.

PRELIMINARY STATEMENT

On or about September 10, 2007, Petitioner, Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco (the "Division"), issued an Administrative

Action against Respondent, Fox Marianne Gunn, d/b/a Stardust

Lounge. The Administrative Action notified Respondent that the

Division intended to revoke, suspend, annul, impose

administrative fines, investigative costs and late penalties, or

any combination of those authorized penalties. Respondent

timely filed a request for hearing. The request for hearing was

forwarded to the Division of Administrative Hearings so that a

formal administrative hearing could be conducted. The hearing

was held on the date set forth above, and both parties were in

attendance.

At the final hearing, Petitioner called the following

witnesses: Marianne Gunn Fox (referred to in the style of this

case as Fox Marianne Gunn); and Debi Pender, deputy director for

the Division.

Respondent called Marianne Gunn Fox; Patrick Roberts, a

former law enforcement major for the Division; Glen Fox; and

Michael Wheeler, Esquire, former attorney for the Division.

Petitioner's Exhibits A through F and Respondent Exhibit 1

were admitted into evidence by Order of the undersigned dated

April 1, 2010. Official recognition was taken of Subsection

561.20(2), Florida Statutes (2009).

A transcript of the final hearing was ordered by the

parties. The Transcript was filed at the Division of

Administrative Hearings on May 3, 2010. By rule, parties were

allowed ten days, i.e., up until May 13, 2010, to submit

proposed recommended orders. However, the parties asked and

were given permission to file the proposed recommended order on

a later date, i.e., May 28, 2010. Each party timely submitted a

Proposed Recommended Order, and each was duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Division is the state agency responsible for, inter

alia , issuing and monitoring licenses to businesses within the

state relating to the sale of alcoholic beverages.

2. Respondent is the holder of an alcoholic beverage

license, No. BEV46-261 Series 4-COP/SR (the "License"). An SR,

or Special Restaurant, license is a unique kind of license which

was issued by the Division prior to the establishment of quota

licenses. Holders of SR licenses are allowed to sell beer, wine

and liquor, package sales and sales by the drink on the

premises. Quota licenses are issued based on a population

ratio, i.e., no more than one license per 7,500 people in a

given geographic area may exist.

3. When Respondent obtained its SR license in 1979 (by way

of transfer from the original owner of that license), the

existing statutes mandated that the License be housed in a

building of not less than 4,000 square feet with room in the

building to seat at least 200 people at any one time. The

statutes also required that food be served at all times the

establishment was open.

4. In 1979, when Respondent filed an application seeking

to obtain the transfer of the SR license that had been issued in

1957, the application included an Affidavit from Marianne Gunn

agreeing to a specific location (2704 Anderson Avenue, Fort

Myers, Florida) 1 for the business, which was to be known as the

Stardust Lounge. The Affidavit affirmed Marianne Gunn's

agreement to maintain the premises with the necessary equipment

and supplies to seat 200 people at any one time. The Affidavit

affirmed that the building housing Stardust Lounge would be at

least 4,000 square feet in size. The License was then

transferred to Respondent by the Division.

5. Approximately one year after receiving the License and

commencing operations, the Stardust Lounge burned down. Some

undisclosed portion of the building remained, but no business

could be operated on the site. It would have been difficult to

rebuild the building under the then-current building codes.

Further, the City of Fort Myers expressed its opposition to the

existence of an alcoholic beverage establishment at that site.

6. Some time after the fire, Respondent asked the Division

to place the License in an inactive status (also known as

placing a license in escrow). The request from Respondent asked

that the License be placed in escrow for up to eight months.

Respondent represented that it was in negotiation with the City

of Fort Myers concerning a land swap to settle certain claims

Respondent had against the city. Respondent estimated the

negotiations would go on for approximately two months.

Respondent advised the Division that if negotiations were

successful, it would allow the License to be cancelled upon

transfer of the premises to the city. If the negotiations were

not successful, Respondent estimated it would need at least six

months to sell the property at a private sale. It was

Respondent's intent that the License be "taken care of" along

with the land deal. "That's what that was all about," Fox

testified at final hearing.

7. Based upon Respondent's request, the Division

apparently placed the License in escrow. There was no

documentation presented at final hearing to substantiate this

fact. However, the Division sent Respondent a bill each year to

renew the License despite there being no physical site for

operating a business by the licensee. Respondent dutifully paid

the renewal fee each year.

8. Eighteen years after the License was placed in escrow,

the State of Florida commenced condemnation proceedings relating

to a portion of the premises where the Stardust Lounge had

formerly existed. 2 During this nearly two-decade hiatus,

Respondent continued to renew the License each year upon notice

from the Division. Respondent's counsel sent a letter to the

Division dated June 27, 2000, which said in pertinent part:

We send you this letter at the request of

our client, Mrs. Fox. . . . She has a

liquor license in escrow with the

Department.

Due to the condemnation taking, she will not

be able to utilize the license at this

location and she has agreed that if this

license can be moved to another location, it

would not be an issue in the condemnation

case.

9. The letter did not address the issue of Respondent's

prior representation that the License would be cancelled within

eight months of its May 21, 1982, letter, some 18 years earlier.

10. The Division responded to Respondent's counsel in a

letter dated the very next day which stated in pertinent part:

I am responding to the request of you and

the licensee wanting to know if the liquor

license that is held in the name of Marianne

Gunn, DBA Stardust Lounge is movable. In

the case of the property being taken by the

state, the license may be moved one time and

only one time. Providing that we have

copies of all paperwork involved with the

property condemnation taking.

This license is not a moveable license

unless in a case like this. The only thing

that the licensee needs to understand is

that it is changing location only one time.

11. The Division's letter did not mention the escrow

status of the License, either. The inartfully worded request

and nebulous response added to the confusion concerning the

status of the License.

12. There is no evidence indicating whether any

information concerning the condemnation was ever provided to the

Division. Respondent could not say at final hearing when the

condemnation actually occurred, how much land was taken, or how

much was paid for the land. The License apparently remained in

escrow at that time pending a move to some other location.

13. Marianne Gunn Fox testified that the reason for her

negotiations with the City of Fort Myers in 1982 was partly

because the city did not want the bar located at the site where

it had burned down. She testified that she had received

insurance proceeds from the fire and intended to rebuild the

lounge, but the city objected. That was the only testimony

given as to why the lounge was not rebuilt during the 18 years

it remained in escrow. Glen Fox testified that the original

site of the Stardust Lounge would not be acceptable for

rebuilding the structure after the fire due to certain building

code issues. Both Mr. and Mrs. Fox testified that there was

insufficient land available to build on site after the property

condemnation taking. Fox testified that she owned three lots at

the corner of Martin Luther King Boulevard and Cranford Avenue.

Those lots were 50-feet-wide by 150-feet-deep (for a presumed

total lot size of 150-feet-wide by 150-feet-deep). Fox does not

know the size of the lots after the condemnation proceeding.

14. It has long been the policy of the Division, pursuant

to its interpretations of the Beverage Law set forth in statute,

that SR licenses could not be moved from their original

location. In 2005 or 2006, a licensee who was operating a

business in American Beach filed a lawsuit against the Division

seeking to move his SR license to a different location. As a

result of the lawsuit, the Division changed its existing policy

to allow for such a change. The new policy was posted on the

Division's website for review by SR license holders. There is

no evidence that SR license holders were notified about the

change in policy by any other means. Respondent does not

remember receiving any notice whatsoever regarding the change in

policy.

15. Within four to six months, and as a result of further

legal research by Division attorneys, the Division once again

altered its policy concerning the transfer of SR licenses. The

newly-revised policy established the current Division position,

i.e., that no SR license could be moved for any reason.

Further, the policy states that all licensed premises must be in

continuous operation or else the license would be forfeited.

Again, the Division posted the new policy on its website and

notified all SR license holders by way of letters to their

establishments (or, in the case of Respondent, to the last known

address). It is unclear from the record whether the letter was

ever sent to or received by Respondent, although the Division

obviously had Respondent's address because it sent renewal

notices there each year.

16. Some time after the change in policy, the Division

determined that Respondent's license must be terminated or

revoked. At that time, there were no premises associated with

the License. The last time the License was in operation was

1979 or 1980, some 28 years prior to the Administrative Action

being filed. The official address of the premises on the

License during each of the renewal periods since 1980 had been

"Escrow." That is, there was no site address associated with

the License. There was obviously some address associated with

the License, however, since Fox received annual billing

statements from the Division.

17. In November 2007, the Division issued an

Administrative Action against Respondent concerning the License.

The Administrative Action alleged that Respondent had not

complied with the requirements of the License, i.e., size of

premises and on-going operations. The Division indicated that

it would sanction the License, including, but not limited to,

revocation. Respondent does not dispute the fact that it is not

complying with the requirements for an active license, but

maintains that its escrowed license is exempt from those

requirements.

18. The License, despite being inactive for 28 years, is

still apparently valid at this point in time (based on the

Division's acceptance of Respondent's renewal payments each

year). The License may have some monetary value, but there was

no competent, substantial evidence presented at final hearing as

to what the value might actually be. Marianne Gunn Fox

testified that she did not know how much the License was worth,

only that "nothing is worth as much as it used to be." Fox

cannot remember how much she paid for the License when it was

transferred to her. She cannot remember how much she asked for

the License when she offered it for sale. She cannot remember

how much was offered for the License as part of the condemnation

sale. Fox does know that she paid an annual fee each year for

renewal of the License. She does not know what the fee was each

year, but "I paid whatever the state told me was due." (The

Division testified that the annual fee was $1,820.00. Presuming

28 years of payments, the total paid to-date would be

approximately $50,960.) When suggested to Fox by her counsel

that the License was worth $300,000, she agreed with that

amount, but could not substantiate why that amount was valid.

19. Fox testified that she would like a "reasonable time"

to market the License for sale. She did not express what a

reasonable time might be, but has not been able (or willing) to

sell the License for over 28 years. Respondent put the License

"out for feelers" three or four years ago, but did not include

an asking price for the License. About seven months ago,

someone told Fox that the License was worth approximately

$326,000, but there is no support for that estimate.

20. Patrick Roberts, former law enforcement major with the

Division, opined that he would have handled Respondent's case

differently had it come across his desk. He opined that the

requirement for 4,000 square feet and seating for 200 people

should only apply to an existing business, not one in escrow.

Roberts agreed that only quota licenses are allowed escrow

status by statute. Roberts did not express any opinion as to

the requirement that a business be on-going at all times.

Roberts agreed that an SR license should not be placed in

escrow, but said he'd try to negotiate a settlement, rather than

file an Administrative Action. He did concur that an

Administrative Action might be necessary if all else failed.

Roberts did not opine that an Administrative Action was

improper, only that it wasn't his first choice of action.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2009).

22. The general rule is that the burden or proof (apart

from statute) is on the party asserting the affirmative of an

issue before an administrative tribunal. See Balino v.

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

(Fla. 1st DCA 1977), citing Department of Agriculture and

Consumer Services v. Strickland , 262 So. 2d 893 (Fla. 1st DCA

1972). The Division has the burden of proof in this matter.

23. The standard of proof for licensure revocation

proceedings is clear and convincing evidence. Ferris v.

Turlington, 510 So. 2d 292 (Fla. 1987). Inasmuch as the

Administrative Action in this matter contemplates licensure

revocation or suspension as a potential relief, the clear and

convincing standard applies.

24. Clear and convincing evidence is an intermediate

standard of proof which is more than the "preponderance of the

evidence" standard used in most civil cases, but less than the

"beyond a reasonable doubt" standard used in criminal cases.

See State v. Graham , 240 So. 2d 486 (Fla. 2nd DCA 1970). Clear

and convincing evidence has been defined as evidence which:

Requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)

(citations omitted).

25. Section 561.29, Florida Statutes (2009), states in

pertinent part:

(1) The division is given full power and

authority to revoke or suspend the license

of any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a) Violation by the licensee or his or

her or its agents, officers, servants, or

employees, on the licensed premises, or

elsewhere while in the scope of employment,

of any of the laws of this state or of the

United States, or violation of any municipal

or county regulation in regard to the hours

of sale, service, or consumption of

alcoholic beverages or license requirements

of special licenses issued under s. 561.20,

or engaging in or permitting disorderly

conduct on the licensed premises, or

permitting another on the licensed premises

to violate any of the laws of this state or

of the United States. A conviction of the

licensee or his or her or its agents,

officers, servants, or employees in any

criminal court of any violation as set forth

in this paragraph shall not be considered in

proceedings before the division for

suspension or revocation of a license except

as permitted by chapter 92 or the rules of

evidence.

* * *

(h) Failure by the holder of any license

under s. 561.20(1) to maintain the licensed

premises in an active manner in which the

licensed premises are open for the bona fide

sale of authorized alcoholic beverages

during regular business hours of at least

6 hours a day for a period of 120 days or

more during any 12-month period commencing

18 months after the acquisition of the

license by the licensee, regardless of the

date the license was originally issued.

Every licensee must notify the division in

writing of any period during which his or

her license is inactive and place the

physical license with the division to be

held in an inactive status. The division

may waive or extend the requirement of this

section upon the finding of hardship,

including the purchase of the license in

order to transfer it to a newly constructed

or remodeled location. However, during such

closed period, the licensee shall make

reasonable efforts toward restoring the

license to active status. This paragraph

shall apply to all annual license periods

commencing on or after July 1, 1981, but

shall not apply to licenses issued after

September 30, 1988.

(i) Failure of any licensee issued a new

or transfer license after September 30,

1988, under s. 561.20(1) to maintain the

licensed premises in an active manner in

which the licensed premises are open for

business to the public for the bona fide

retail sale of authorized alcoholic

beverages during regular and reasonable

business hours for at least 8 hours a day

for a period of 210 days or more during any

12-month period commencing 6 months after

the acquisition of the license by the

licensee. It is the intent of this act that

for purposes of compliance with this

paragraph, a licensee shall operate the

licensed premises in a manner so as to

maximize sales and tax revenues thereon;

this includes maintaining a reasonable

inventory of merchandise, including

authorized alcoholic beverages, and the use

of good business practices to achieve the

intent of this law. Any attempt by a

licensee to circumvent the intent of this

law shall be grounds for revocation or

suspension of the alcoholic beverage

license. The division may, upon written

request of the licensee, give a written

waiver of this requirement for a period not

to exceed 12 months in cases where the

licensee demonstrates that the licensed

premises has been physically destroyed

through no fault of the licensee, when the

licensee has suffered an incapacitating

illness or injury which is likely to be

prolonged, or when the licensed premises has

been prohibited from making sales as a

result of any action of any court of

competent jurisdiction. Any waiver given

pursuant to this subsection may be continued

upon subsequent written request showing that

substantial progress has been made toward

restoring the licensed premises to a

condition suitable for the resumption of

sales or toward allowing for a court having

jurisdiction over the premises to release

said jurisdiction, or that an incapacitating

illness or injury continues to exist.

However, in no event may the waivers

necessitated by any one occurrence

cumulatively total more than 24 months.

Every licensee shall notify the division in

writing of any period during which his or

her license is inactive and place the

physical license with the division to be

held in an inactive status.

26. Section 561.20, Florida Statutes (2009), referred to

within Section 561.29, Florida Statutes, states:

(1) No license under s. 565.02(1)(a)-(f),

inclusive, shall be issued so that the

number of such licenses within the limits of

the territory of any county exceeds one such

license to each 7,500 residents within such

county. Regardless of the number of quota

licenses issued prior to October 1, 2000, on

and after that date, a new license under

s. 565.02(1)(a)-(f), inclusive, shall be

issued for each population increase of 7,500

residents above the number of residents who

resided in the county according to the

April 1, 1999, Florida Estimate of

Population as published by the Bureau of

Economic and Business Research at the

University of Florida, and thereafter, based

on the last regular population estimate

prepared pursuant to s. 186.901, for such

county. Such population estimates shall be

the basis for annual license issuance

regardless of any local acts to the

contrary. However, such limitation shall

not prohibit the issuance of at least three

licenses in any county that may approve the

sale of intoxicating liquors in such county.

(2)(a) No such limitation of the number of

licenses as herein provided shall henceforth

prohibit the issuance of a special license

to:

* * *

4. Any restaurant having 2,500 square feet

of service area and equipped to serve 150

persons full course meals at tables at one

time, and deriving at least 51 percent of

its gross revenue from the sale of food and

nonalcoholic beverages; however, no

restaurant granted a special license on or

after January 1, 1958, pursuant to general

or special law shall operate as a package

store, nor shall intoxicating beverages be

sold under such license after the hours of

serving food have elapsed; or

* * *

5. . . . [H]owever, any license heretofore

issued to any such hotel, motel, motor

court, or restaurant or hereafter issued to

any such hotel, motel, or motor court,

including a condominium accommodation, under

the general law shall not be moved to a new

location, such license being valid only on

the premises of such hotel, motel, motor

court, or restaurant. Licenses issued to

hotels, motels, motor courts, or restaurants

under the general law and held by such

hotels, motels, motor courts, or restaurants

on May 24, 1947, shall be counted in the

quota limitation contained in

subsection (1). Any license issued for any

hotel, motel, or motor court under the

provisions of this law shall be issued only

to the owner of the hotel, motel, or motor

court or, in the event the hotel, motel, or

motor court is leased, to the lessee of the

hotel, motel, or motor court; and the

license shall remain in the name of the

owner or lessee so long as the license is in

existence. Any special license now in

existence heretofore issued under the

provisions of this law cannot be renewed

except in the name of the owner of the

hotel, motel, motor court, or restaurant or,

in the event the hotel, motel, motor court,

or restaurant is leased, in the name of the

lessee of the hotel, motel, motor court, or

restaurant in which the license is located

and must remain in the name of the owner or

lessee so long as the license is in

existence. Any license issued under this

section shall be marked "Special," and

nothing herein provided shall limit,

restrict, or prevent the issuance of a

special license for any restaurant or motel

which shall hereafter meet the requirements

of the law existing immediately prior to the

effective date of this act, if construction

of such restaurant has commenced prior to

the effective date of this act and is

completed within 30 days thereafter, or if

an application is on file for such special

license at the time this act takes effect;

and any such licenses issued under this

proviso may be annually renewed as now

provided by law. Nothing herein prevents an

application for transfer of a license to a

bona fide purchaser of any hotel, motel,

motor court, or restaurant by the purchaser

of such facility or the transfer of such

license pursuant to law. . . .

27. Respondent's SR license was issued in 1957. The law

that existed as of that time required an SR licensed

establishment to be a "bona fide restaurant containing all

necessary equipment and supplies for serving full course meals

regularly and having accommodations at all times for service of

two hundred or more patrons at tables and occupying more than

four thousand square feet of space." § 561.20(2), Fla. Stat.

(1957).

28. The Division has proven by clear and convincing

evidence that the licensed premises has not been open for

business the requisite number of days and does not have a four

thousand-square-foot establishment seating two hundred or more

patrons. 3 There is no dispute as to that matter because

Respondent freely admits that its business has not been in

operation for 28 years. Respondent has, however, continued to

pay an annual fee to the Division each year with the

understanding that it was maintaining an inactive (escrowed)

license.

29. There was a period of time (2005-2006) in which the

Division had a policy contrary to the provisions of Subsection

561.20(5)(a), Florida Statutes. During that period of time, the

Division allowed an SR license to exist, even if there were no

existing premises meeting the statutory requirements. The

Division would allow such a license to be placed "in escrow"

pending a change in circumstances.

30. It is the position of the Division that the inactive

or escrowed license status provided Respondent is contrary to

the Division's current interpretation of statutes. That is, the

current position of the Division is that SR licenses must comply

with the space requirements for all licensees as set forth in

the statutes. An agency may change its interpretation of

statutes when it feels a prior interpretation is erroneous.

While there is scant case law to that effect, this concept has

been upheld by the Division of Administrative Hearings. See ,

e.g. , Florida Wine and Spirits, LLC, d/b/a Total Wine & More v.

Department of Business and Professional Regulation , Case

No. 07-1857RX (DOAH July 20, 2007). In that case, the

Administrative Law Judge found that "[a]n agency has the right

to change its mind for any reason, so long as its decision

comports with Chapter 120, Florida Statutes." Citing to Agency

for Health Care Administration v. Florida Coalition of

Professional Laboratory Organizations , 718 So. 2d 869 (Fla. 1st

DCA 1998), aff'd per curium , 990 So. 2d 1063 (Fla. 1st DCA

2008), the Administrative Law Judge reasoned that as long as the

current interpretation was reasonable and based on statutory

authority, it could stand.

31. In an analogous holding, the United States Supreme

Court reviewed a case wherein the Environmental Protection

Agency ("EPA") had revised its own interpretation of statutes.

Chemical Manufacturers Association, et al, v. Natural Resources

Defense Council, Inc., et al. , 407 U.S. 116, 105 S. Ct. 1102,

84 L. Ed. 2d 90 (1985). In that case, the appellant argued that

the EPA's prior interpretation (which was consistent with the

appellant's interpretation) was more accurate. The Court held,

"We do not sit to judge the relative wisdom of competing

statutory interpretations. Here EPA's construction, fairly

understood, is not inconsistent with the language, goals, or

operation of the [relevant law at issue]. Nor does the

administration of EPA's regulation undermine the will of

Congress." EPA's interpretation of the statute was deemed

proper.

32. Similarly, the current interpretation of Subsection

561.29(1), Florida Statutes (2009), by the Division is

consistent with the language, goals and operation of

Chapter 561, Florida Statutes (2009), the Florida Beverage Law.

Even though the Division interpreted the statute differently for

a period of time, its current interpretation is not unreasonable

on its face.

33. Respondent argues that the Division is estopped from

taking its license because Respondent has detrimentally relied

upon the Division's promise to allow the License to remain

inactive. Equitable estoppel is appropriate against a state

agency in certain instances. The aggrieved party must show a

good faith reliance on some act or omission of the government

and a substantial change in position which would result in a

highly inequitable or unjust result. City of Jacksonville v.

Harold Coffield and Windsong Place, LLC , 18 So. 3d 589 (Fla. 1st

DCA 2009).

34. In the present case, there are two possible actions by

the Division for which equitable estoppel might apply: (1) The

June 28, 2000, letter indicating that Respondent's license might

be moved one time; and (2) The annual renewal of Respondent's

license despite the absence of a physical location. As to the

first action, Respondent failed to meet her own responsibility

in that regard. Despite directions to provide the Division with

"all paperwork involved with the property condemnation taking,"

Respondent never did so. In fact, there is no evidence that

Respondent ever provided any documentation at all concerning the

condemnation proceeding. Thus, the Division was unable to

determine whether its offer to allow Respondent to move the

License was ever accepted by Respondent. As to the annual

renewal, that did not result in an unjust result for Respondent.

To the contrary, the renewals gave Respondent many additional

opportunities to place her license into active status and

recommence operations or, in the alternative, to sell the

License.

35. Respondent did not directly raise the issue of whether

its annual payments should be returned. Those payments were

mentioned in Respondent's attempts to value the License, but

they were not addressed as separate damages. However, if the

payments should not have been made because the License was not

properly in escrow, then it seems that repayment of those annual

fees ought to be considered, at least for the period of time

that Respondent was not on notice as to the invalidity of the

escrow status.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco, revoking Respondent, Fox

Marianne Gunn, d/b/a Stardust Lounge's, License No. BEV46-261

Series 4-COP/SR.

DONE AND ENTERED this 11th day of June, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of June, 2010.

ENDNOTES

1/ Reading between the lines, as no testimony on this issue was

presented during final hearing, it appears that Anderson Avenue

was subsequently renamed Martin Luther King Boulevard.

2/ The condemnation proceeding by the State of Florida was not

associated with the Division and had nothing to do with the

License. It was apparently simply a land acquisition matter

relating to expansion of an existing roadway.

3/ Whether the space requirements of the 1957 version of

statutes or the requirements that exist currently are applied,

Respondent obviously does not satisfy them.

COPIES FURNISHED :

John R. Powell, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Michael B. Golen, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399-2202

David George Hutchison, Esquire

Post Office Box 1262

Key Largo, Florida 33037

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.