12-003370 Clark Dp Investments, Inc., D/B/A The Bank Bar And Lounge vs. City Of Gainesville Status: Closed Recommended Order on Thursday, April 25, 2013.

Summary: City did not demonstrate departure from the essential requirements of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARK DP INVESTMENTS, INC., ) )

d/b/a THE BANK BAR AND LOUNGE, )

)

Petitioner, )

vs. ) Case No. 12-3370

)

CITY OF GAINESVILLE, )

)

Respondent. )

)

ADDENDUM TO RECOMMENDED ORDER

On March 29, 2013, a Recommended Order was entered in this

case. On April 16, 2013, the City of Gainesville filed an Agency

Remand of Recommended Order, pursuant to section 4-53(c)(7),

Gainesville Code of Ordinances. Section 4-53(c)(7) provides:

The hearing officer's recommended order shall

consist of findings of fact and conclusions

of law and recommended action. The hearing

officer shall transmit the recommended order

to the city manager and the owner or agent of

the alcoholic beverage establishment. The

owner or agent shall have ten days from the

date of the hearing officer's order to submit

written exceptions to the hearing officer's

recommended order. The city manager shall

review such order and any written exceptions

by the owner or agent and may set forth any

deficiencies he/she finds with respect to the

order. Said deficiencies shall be limited to

determinations that the findings were not

based upon competent, substantial evidence,

or that the proceedings on which the findings

were based did not comply with the essential

requirements of law. In reviewing such

recommended order, the city manager shall not

have the power to receive or consider

additional evidence and shall not have the

power to reject or modify the findings of

fact or conclusions of law contained in the

recommended order. The city manager may

remand the recommended order along with the

delineated deficiencies back to the hearing

officer for consideration of the

deficiencies. The hearing officer shall

address the deficiencies in an addendum to

the recommended order. The city manager

shall then either:

a. Adopt the recommended order and addendum,

if applicable, in its entirety; or

b. Adopt the findings of fact and

conclusions of law in the recommended order

and addendum, if applicable, and accept,

reject or modify the recommended action.

The action of the city manager shall be the

final administrative action.

(Emphasis Added.)

In the Agency Remand, the City Manager accepted the findings

of fact in the Recommended Order as based on competent

substantial evidence. However, the City Manager went on to find

that "the proceedings on which the findings were based did not

comply with the essential requirements of law." Specifically,

the City Manager found as follows:

The hearing officer made a series of findings

of fact as to the efforts of the Petitioner

to deter underage drinking in its

establishment; however, there is no

"innocent owner" or "best efforts" defense in

the ordinance. As referenced by the hearing officer, the circuit court's order

in Grog

House v. City of Gainesville , Case No. 01-

2009-CA-1691, directed the City to strike the

last sentence of section 4-53(c)(4) which

reads:

(4) The lack of actual knowledge of,

acquiescence to, participation in, or

responsibility for any underage drinking

incident for this hearing on the part of the

owner or agent shall not be defense by such

owner or agent.

However, the removal of such language from

the ordinance did not affirmatively establish

"innocent owner" or "best efforts" as criteria for overturning the prohibition

order. Absent that language, the ordinance still provides that only "[i]f the hearing

officer finds

the criteria of paragraph (5)

the hearing officer shall prepare a

recommended order to rescind the underage prohibition."

The hearing officer has erroneously engrafted

a statutory defense to a statutory violation

onto the City's ordinance. The City neither

provided nor intended for same to apply to

the City's ordinance.

The City Manager acknowledges that Grog House , the

controlling precedent of this jurisdiction, ordered that the last

sentence of section 4-53(c)(4) be stricken. However, the City

Manager disagrees that the court's order restored the "innocent

owner" defense to the ordinance, despite the Grog House court's

statement that one reason for striking the sentence was that it

conflicted with section 562.11(1)(c), Florida Statutes, which

expressly provides for the innocent owner defense.

The City Manager's disagreement is plainly a rejection of a

conclusion of law contained in the Recommended Order. Section 4-

53(c)(7) provides that the City Manager "shall not have the power

to reject or modify . . . conclusions of law contained in the

Recommended Order." The City Manager attempts to finesse this

prohibition by characterizing the disputed conclusion of law as

failing to "comply with the essential requirements of law." The

City Manager misapprehends the meaning and application of that

phrase.

The concept of a failure to comply with the essential

requirements of law has its origins in the common law writ of

certiorari. See Sylvia H. Walbolt and Leah A. Sevi, The

"Essential Requirements of the Law"-- When Are They Violated? , 85

Fla. B.J. No. 3, 21 (Mar. 2011). The decisions make it clear

that a grant of certiorari requires "an illegal or irregular act

or proceeding," not a mere error in the application of law to

fact. Haines City Cmty. Devel. v. Heggs , 658 So. 2d 523, 525

(Fla. 1995). There must be some egregious procedural error, such

as the denial of a statutorily guaranteed right to subpoena

witnesses, Lee v. Dep't of High. Saf. & Motor Veh. , 4 So. 3d 754

(Fla. 1st DCA 2009), or a gross substantive error, such as "the

entire absence of essential evidence with resulting material

injury," Newman v. State , 174 So. 2d 479, 481 (Fla. 2d DCA 1965).

In State v. Smith , 118 So. 2d 792, 795 (Fla. 1st DCA 1960), the

court explained the concept as follows:

Failure to observe the essential requirements

of law means failure to accord due process of

law within the contemplation of the

Constitution, or the commission of an error

so fundamental in character as to fatally

infect the judgment and render it void.

Even if it were accepted that the Recommended Order

misstated the law, the instant proceeding would not rise to the

level of a failure to observe the essential requirements of law.

The City Manager merely disputes the Recommended Order's

conclusion of law that Grog House constitutes binding precedent

and requires this tribunal to permit an alcoholic beverage

establishment served with an Underage Prohibition Order to mount

an innocent owner defense.

The ordinance does not allow the City Manager to reject a

conclusion of law. Even if it did, the City Manager's reasoning

is faulty. He acknowledges that Grog House ordered stricken the

last sentence of section 4-53(c)(4), but disregards the court's

reason for striking that sentence. To accept the City Manager's

position would amount to a nullification of the circuit court's

order. The City Manager may believe he has the authority to

ignore the clear import of the circuit court's order. The

undersigned does not share that belief.

Based on the foregoing consideration of the deficiencies

identified by the City Manager in the Agency Remand, the

undersigned declines to amend the findings of fact, conclusions

of law, or the recommendation of the Recommended Order entered in

this case on March 29, 2013.

DONE AND ENTERED this 25th day of April, 2013, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 25th day of April, 2013.

COPIES FURNISHED:

Lee C. Libby, Esquire

City of Gainesville

Suite 425

200 East University Avenue

Gainesville, Florida 32601

Gary S. Edinger, Esquire

Gary S. Edinger and Associates, P.A.

305 Northeast 1st Street

Gainesville, Florida 32601

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.