14-002486 Rebco Enterprises, Inc. vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed Recommended Order on Friday, July 17, 2015.

Summary: Petitioner entitled to renewal of its lien against quota license where DABT failed to notify lienholder of license revocation proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBCO ENTERPRISES, INC.,

Petitioner,

vs. Case No. 14 - 2486

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF ALCOHOLIC BEVERAGES

AND TOBACCO,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 29, 2015 , Administrative Law Judge Lisa Shearer

Nelson conducted a disputed - fact hearing in Tallahassee,

Florida , pursuant to section 120.57(1), Florida Statutes (2014).

APPEARANCES

For Petitioner: Maggie M. Shultz, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

For Respondent: Jason D. Borntreger, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street , Suite 40

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

The issue to be determined is w hether PetitionerÓs request

to renew a lien against alcoholic beverage license number 62 -

08383 on or about July 8, 2011, should be approved or denied.

PRELIMINARY STATEMENT

On August 17, 2011, Petitioner, Rebco Enterprises, Inc.

(Petitioner or Rebco) , filed an Amended Request for Hearing with

the Department of Business and Professional Regulation, Division

of Alcoholic Beverages and Tobacco (DABT ), challenging DABTÓs

July 25, 2011 , and August 3, 2011, denial s of RebcoÓs request to

renew a lien against a quota license. The agency referred the

matter to the Division of Administrative Hearings (DOAH) for

assignment of an administrative law judge on May 22, 2014. 1/ The

case was originally assigned to Judge F. Scott Boyd, who

promptl y scheduled it for hearing July 15, 2014.

On June 24, 2014, a Joint Motion for Continuance was filed,

the parties asserting that discovery was ongoing. Judge Boyd

granted the motion and rescheduled the case for September 16,

2014. On July 3, 2014, the case was transferred to Judge Edward

Bauer. On August 29, 2014; October 30, 2014; January 15, 2015;

and March 11, 2015, additional motions for continuance were

filed, all o f which resulted in the granting of the motion s and

rescheduling of the hearing. On March 19, 2015, the case was

transferred to the undersigned. On April 21, 2015, another

Joint Motion for Continuance was filed, and was denied by Order

dated April 22, 20 15. As a result, the case proceeded to

hearing on April 29, 2015.

At hearing, Petitioner presented the testimony of Beverly

Peebles, Damon Larry , and Stephanie Coxwell, and PetitionerÓs

Exhibits 1 through 11 and 12B were admitted into evidence.

Responden t did not present any witnesses but RespondentÓs

Exhibits 4 through 7 were admitted into evidence. Prior to

hearing, the parties filed a Pre - hearing Stipulation that

contained several stipulated facts for which no evidence at

hearing was required. Where relevant, those stipulated facts

have been incorporated into the findings of fact below. The

Transcript of the proceedings was filed with DOAH on May 14,

2015. At the request of the parties, 20 days were allowed for

the filing of proposed recommended ord ers. Both parties filed

their post - hearing submissions on a timely basis, and both have

been carefully considered in the preparation of this Recommended

Order.

FINDING S OF FACT

Based on the demeanor and credibility of the witnesses and

other evidence pre sented at hearing, and upon the entire record

of this proceeding, the following facts are found:

1. Respondent is the state agency charged with the

licensing, regulation , and enforcement of FloridaÓs alcoholic

beverage laws pursuant to section 20.165(2)(b ) and chapters 561 -

568, Florida Statutes , including recordation of liens against

alcoholic beverage licenses and provision of notice to

lienholders pursuant to section 561.65.

2. Petitioner is the holder of a recorded lien against

alcoholic beverage licen se number 62 - 08383, a 4 COP spirituous

alcoholic beverage license, commonly referred to as a quota

license, which was issued pursuant to sections 561.20(1) and

565.02(1)(a) - (f) for use in Pinellas County.

Liens and Security Interests in Alcoholic Beverage L icenses

3. Section 561.65 governs mortgages, liens, and security

interests against spirituous alcoholic beverage licenses . DABT

has a lien section within its Bureau of Licensing that is

responsible for the oversight of lien recordings and lien

searches.

4. To perfect a lien or security interest in a spirituous

alcoholic beverage license that may be enforceable against the

license, the entity holding the security interest or lien must

record it with DABT within 90 days of the date of creation of

the lie n or security interest, using forms authorized by DABT.

The forms adopted by DABT require the names of the parties and

the terms of the obligation being recorded. § 561.65(4), Fla.

Stat.

5. For m DBPR ABT - 6022, Application for MortgageeÓs

Interest in Sp irituous Alcoholic Beverage License, is used to

record a new lien, a lien assignment or assumption, or a lien

renewal or extension. The form is adopted by rule. Fla. Admin.

Code R. 61A - 5.0012.

6. Upon receipt of a request to record a lien or the

renewa l of an existing lien, DABT will review the provided

documentation and, if the documentation is in order on approved

forms and accompanied by the security agreement and statutorily -

required payment, will record the lien or lien renewal.

7. If there is a deficiency noted during review of the

lien documentation submitted, DABT will issue a 14 - day

deficiency notice to the requesting entity to provide any

missing information. If timely corrected, DABT will record the

lien or lien renewal.

8. Section 561.65 (4) provides that a ny lien or security

interest filed with DABT on or after July 1, 1995, expires five

years after recordation by DABT unless renewed by the lienholder

within six months prior to its expiration date.

Statutory Notice Requirements to Lienhol ders

9. Recording a lien not only makes it enforceable, but

provides assurance to the lienholder that it will receive notice

of pending actions by DABT against the license that may

compromise the lienÓs vitality. Section 561.65 also sets forth

requireme nts for DABT to provide notice to lienholders of both

pending actions against encumbered licenses and any suspension

or revocation of a license subject to a lien .

10. Specifically, section 561.65(3) provides that Ð such

lienholder shall be notified in wri ting of the filing of an

order to show cause as to why the license should not be

suspended or revoked; and also the lienholder shall be furnished

a copy of any order of suspension or revocation.Ñ (Emphasis

added). In other words, two separate notices are required: one

when the agency institutes proceedings against the licensee and

a second if the agency action against the licensee results in a

suspension or revocation of the license.

11. Respondent does not assert and no evidence was

presented to demon strate that Petitioner had knowledge of or

participated in the cause for revocation of the license at issue

in this proceeding, or that Petitioner would not otherwise be

entitled to notice of the revocation proceeding.

12. The holder of a recorded lien i s entitled to notice

because the lienholder has the right to enforce the lien against

the licensee within 180 days after the entry of any order of

revocati on or suspension of the license. Section 561.65(3)

specifies that Ðthe 180 days within which to file for

enforcement of the lien by the lienholder shall commence running

from the date of the mailing of the copy of the order of

revocation or suspension. Ñ Thus, the 180 - day period runs from

when notice is sent to the lienholder, not from the entry of the

f inal order of suspension or revocation.

13. Once notice is provided to the lienholder, any

e nforcement of the lien is through foreclosure proceedings in

circuit court. The process for foreclosure proceedings is

outlined in section 561.65(5). Most impor tantly, both section

561.19(2) and section 561.65(1) provide that no revoked quota

beverage license encumbered by a lien or security interest

perfected in accordance with section 561.65 shall be issued

until the 180 - day period (from mailing of the suspensi on or

revocation order) has elapsed or until such enforcement

proceeding is final.

Re - issuance Through Double Random Drawings

14. Quota licenses may become available three ways:

1) when a dry county goes wet (i.e. , a county that previously

prohibited th e sale of alcohol de cides to allow it) , three

initial quota licenses are issued for the county; 2) when there

are population increases in a county, an additional quota

license is issued for every population increase of 7,500; and 3)

when a quota license in a county has been revoked. When any of

those instances occur, pursuant to the directive in section

561.19(2), quota licenses are issued through the use of a double

random public drawing.

15. While a revoked quota license may be reissued in a

double r andom quota drawing, if a revoked quota license is

encumbered by a perfected and recorded lien or security

interest, as discussed previously, it may not be reissued until

the 180 - day period has elapsed or until enforcement/foreclosure

proceedings are final .

16. Damon Larry is currently the assistant bureau chief of

licensing , and oversees the annual quota drawing . Each year, he

runs a report of all revoked quota licenses and, if the

revocation is final, determines whether the 180 - day period has

elapsed.

17. Before a revoked quota license is placed in the double

random drawing, there is communication between staff in

different sections within the Department to determine if a

license is eligible for inclusion in the quota drawing. The

communications invo lve the quota drawing section, the licensing

section, the administrative case unit, the Office of the General

Counsel, and the lien section. During th is process, DABT staff

will determine whether the r e is a lien attached to the license

and , if so, whether there was notice to the lienholder, and

whether the 180 days has elapsed or foreclosure proceedings no

longer remain pending.

18. If all of these conditions have been met, the revoked

license is placed in the quota drawing for reissuance under a

new lic ense number. The revoked license number is then deleted

from the DepartmentÓs database.

PetitionerÓs Lien Against Alcoholic Beverage License

No. 62 - 08383

19. Turning to the facts of this case, Daniel A. King, as

debtor, executed and delivered a Demand Promissory Note in favor

of Rebco on or about April 18, 1997, in the principal amo unt of

$61,000 , and simultaneously executed a security agreement in

favor of Rebco, as the secured party, pledging license number

62 - 08383 (the License) as collateral for re payment of the sums

due and owing under the Promissory Note.

20. Rebco submitted the promissory note and security

agreement to DABT for initial recordation as a lien against the

License on or about May 1, 1997, within 90 days of the date of

the creatio n of the lien , on forms approved by the Division.

The forms clearly identified the parties and the obligation.

21. DABT recorded the lien against the License effective

May 8, 1997. If not timely renewe d, the lien would expire on

May 8, 2002.

22. Re bco submitted a request to renew its existing lien

against the License for recordation on or about November 7,

2001, within six months of expiration of the lien, on forms

approved by the Division. The request for renewal was

accompanied by the promissory note and security agreement, and

the forms clearly identified the parties and the obligation.

23. DABT recorded the lien renewal against the License

effective November 7, 2001. If not timely renewed, the lien

would expire on November 7, 2006.

24. Rebc o submitted a second request to renew its existing

lien against the License for recordation on or about July 26,

20 0 6, within six months of expiration of the lien, on forms

approved by the Division. The request for renewal was

accompanied by the promissor y note and security agreement and

the forms clearly identified the parties and the obligation.

25. DABT recorded the lien renewal against the License

effective August 1, 2006. If not timely renewed, the lien would

expire on August 1, 2011.

The License R evocation Proceedings

26. On or about November 16, 2006, at a time when the lien

was recorded in the records of DABT, DABT filed administrative

charges against Daniel J. King, holder of the License, in Case

number 2006 - 049240, alleging that the licensee failed to operate

the License in accordance with section 561.29(1)(f). DABT was

unable to achieve personal service on Mr. King, so it published

notice of the administrative action in the St. Petersburg Times

on May 2, 9, 16, and 23, 2007. The published n otice did not

identify Petitioner , and no evidence was presented to indicate

that DABT sent a copy of the notice to Rebco.

27. Rebco clearly had a recorded lien against the License

when the disciplinary action was filed against the License .

DABT did not notify Petitioner of the pending action.

28. On or about June 22, 2007, after receiving no written

defense in the disciplinary proceeding, DABT issued a Final

Order revoking the License effective July 31, 2007. The Final

Order of Revocation was not ser ved on Rebco, the owner of the

security interest in the License.

29. Petitioner had a recorded lien against the License on

file with DABT both when proceedings were instituted against the

License and on the date of the entry of the Final Order of

Revocat ion.

30. Stephanie Coxwell works in the administrative case

unit of DABT and has done so for at least the last 14 years.

The administrative case unit is responsible for determining

whether an alcoholic beverage license that is pending revocation

or su spension is encumbered by a lien and for notifying any

lienholder of the revocation or suspension of an encumbered

license. DABTÓs practice was to mail any lienholder notice of

the license suspension or revocation, along with a copy of the

final order, so on after entry of the final order. It is this

mailing of the notice and final order that commences the 180

days referenced in section 561.65.

31. For at least the last 14 years, DABT has used a form

Ðnotice to lienholderÑ to notify lienholders of the re vocation

or suspension of an alcoholic beverage license, accompanied by a

copy of the final order revoking or suspending the license. The

notification form is a public record maintained by DABT. It is

this notification, and not the publication of the pen ding

action, that provides notice to the lienholder.

32. Internal c orrespondence from Ms. Coxwell within the

licensure file for the License indicates that in December 2006,

she requested a lien search with respect to the License .

Ms. Coxwell was advised by return e - mail that Rebco had a

recorded lien against the license. On or about March 21, 2007,

Ms. Coxwell requested research for any bankruptcy proceedings

affecting the License. She was again informed by intra - agency

e - mail that Rebco had a recorded lien against the License.

Ms. Coxwell replied by e - mail th at she was aware that there was

a lien, but that they would notify the lienholder of the

administrative action Ð in the usual way. Ñ However,

Ms. CoxwellÓs March 27 e - mail was sent three months bef or e the

final order revoking the l icense, not simultaneous to the Order.

T here is no record that notification was sent to Rebco , either

at the time of the administrative action, or after issuance of

the final order.

33. Beverly Peebles works in RebcoÓs corporate office

located at 701 Tennessee River Drive, Muscle Shoals, Alabama

35661, and has done so since 1990. She is responsible for

receiving, retaining, and disbursing any mail received by Rebco.

Ms. Peebles testified regarding the process used to c opy, scan

into the companyÓs electronic database, and distribute any mail

received by Rebco. Rebco did not receive any notice concerning

the administrative action or the revocation of the License until

Rebco received the letter denying the recordation of its lien

renewal against the license in 2011. RebcoÓs address was at all

times on file with the DABT since the inception of the lien

against the license in 1997.

34. It is found that the DABT did not notify Rebco that

there was an administrative action filed against the License,

and did not notify Rebco of the Final Order of Revocation

against the License. The licensure file contains all other

expected documents from the first recordation of the lien in

1997 to the present. It does not include a copy o f notice to

Rebco of either the pending action or the Final Order of

revocation. Moreover, both a letter dated August 19, 2011 , to

counsel for Rebco , as well as an e - mail date d March 21, 2007 ,

from Ms. Coxwell , contain handwritten notes regarding the

fail ure to send proper notification. The notes, which are

clearly hearsay, are part of public records maintained in the

normal course of business, and corroborate Ms. PeeblesÓ

testimony that no notification was received . They also

corroborate evidence of the absence of any record of

notification to Rebco in DABTÓs records of regularly - conducted

activity . The August 19, 2011 , letter contains a handwritten

note at the top stating, Ð$61K lien no lien ltr sent,Ñ and the

e - mail dated March 21, 2007, referenced in paragraph 32,

contains the following note: Ðare we the only group/people who

check for current liens recorded before deleting the license?

It was deleted on 5/4/2011. Lien was still recorded at that

time.Ñ 2/ Respondent has presented no credible eviden ce to

indicate that the notice was somehow sent despite the lack of

any documentation to that effect contained in the DABTÓs

records . While the handwritten notes standing alone do not

establish that no notice was sent, they do indicate that a

question was raised internally regarding whether adequate notice

was provided.

35. Despite the failure to notify Rebco of the revocation

of the License, the License was placed in the 2010 double random

drawing held on March 10, 2011 , at a time when a valid lien

agai nst the License was duly recorded . Only one license for

Pinellas County was included in the drawing for that year, and

no licenses for Pinellas County have been issued in a double

random quota drawing since then.

36. Shortly after the random drawing , the license number

assigned to the License was removed from the DepartmentÓs system

and a new number assigned to the license issued as a result of

the drawing. While there is no direct testimony on the issue,

it can be inferred that the purchaser of the n ew license

received the license with no notice that there was any

outstanding lien on the right to engage in the sale of alcoholic

beverages in Pinellas County under the new license.

37. While it is DABTÓs practice to delete a revoked

license number from its database, no evidence or statutory

reference was presented to support the premise that there is a

legal impediment to renewing an existing lien for a revoked

license when no n otice of the revocation was provided.

38. Given the DepartmentÓs failure t o notify Rebco of the

revocation of the License, the 180 - day period identified in

section 560.65 never began to run.

39. On or about July 6, 2011, Rebco timely submitted a

third request to DABT to renew its existing lien against the

License for recordati on, within six months of expiration of the

lien, on forms approved by the Division, which request was

accompanied by the promissory note and security agreement.

40. DABT notified Rebco by letter dated July 19, 2011,

that it was unable to record the lien renewal because it was not

submitted for recordation within 90 days of its creation. The

July 19, 2011 , notice of de nial was issued based upon a revi ew

of the lien renewal request submitted to DABT , be cause the

executed ABT6022 lien - recording form submitt ed with RebcoÓs

third renewal request mistakenly identified the effective date

of the lien renewal as April 18, 1997, the date of the creation

of the original lien.

41. On or about July 25, 2011, Rebco submitted an amended

form ABT6022 correcting the eff ective date for renewal of the

lien as August 1, 2011.

42. On August 3, 2011, DABT notified Rebco that it was

unable to record the renewal of the lien against the License

because Ðthe alcoholic beverage license being pledged as

collateral was revoked by the Division on July 31, 2007,Ñ

following service of a Notice of Action through publication in

the St. Petersburg Times on May 2, 9, 16, and 23, 2007.

43. No action taken by Rebco compromised the vitality of

its recorded lien against the License. To the contrary, Rebco

faithfully adhered to the recording requirements outlined by

statute to record and renew its lien.

44. DABT , however, failed to take the action required by

section 561.65 to provide notice to Rebco of the pending action

and subsequent re vocation of the License. As a result, the 180 -

day period required by section 561.65 did not run before the

License was placed in the quota drawing .

CONCLUSIONS OF LAW

45 . The Division of Administrative Hearings has

jurisdiction over the parties and th e subject matter of this

proceeding pursuant to sections 120.569 and 120.5 7 (1), Florida

Statutes (2015).

46. Petitioner, as the holder of the security interest at

issue in this proceeding, has standing to challenge DABTÓs

denial of its request to renew it s lien in the License.

47. This case involves the denial of RebcoÓs request to

renew a lien against an alcoholic beverage license. As the

party asserting its right to have the lien renewed, Petitioner

bears the burden of proof by a preponderance of the e vidence

that it is entitled to have the lien renewal recorded by the

Division. DepÓt of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932, 933 - 34 (Fla. 1996); DepÓt of Transp. v. J.W.C.

Co. , 396 So. 2d 778, 788 (Fla. 1996).

48. DABT has regulatory an d enforcement authority over the

sale of alcoholic beverages and entities licensed for that

purpose, including the perfection of liens or security interests

against spirituous alcoho lic beverage licenses, and the

assignment, assumption, renewal, extension , and satisfaction of

said liens. § 561.65, Fla. Stat.

49. The resolution of this case is governed by the

interpretation of section 561.65, which provides as follows:

561.65 MortgageeÓs interest in license. Ï

(1) Any person holding a bona fide

mortgage or lien or security interest in a

spirituous alcoholic beverage license in

this state shall have the right to

enforcement of a lien against that license

within 180 days after a ny order of

revocation or suspension by an

administrative officer or department of the

government for a cause or causes of which

the lienholder did not have knowledge or in

which he or she did not participate. The

division is required to notify any

lienho lder properly filing pursuant to

subsection (4) of a pending revocation or

suspension. No revoked quota beverage

license encumbered by a lien or security

interest perfected in accordance with this

section shall be issued in accordance with

s. 561.19 (2) until the 180 - day period has

elapsed or until such enforcement

proceeding is final. Liens or security

interests in spirituous alcoholic beverage

licenses existing prior to July 1, 1981,

shall not be affected by the provisions of

this section.

(2) The purchaser at a foreclosure sale

shall have the right to operate under such

license, if otherwise lawfully qualified and

authorized by the division to do so, or to

have a reasonable time within which to

transfer the license to some person

qualified un der the laws of this state to

operate under such license. If the

purchaser is a distributor licensed under

the Beverage Law, the license becomes

inoperative immediately and remains in such

status until transferred, in accordance with

the Beverage Law, to a person qualified to

operate under such license; however, the

distributor shall transfer such license

within 245 days after the date of purchase.

(3) If any such bona fide mortgagee or

lienholder serves notice in writing on the

division of the extension of such lien and

accompanies that notice with the payment of

the fee set forth in subsection (4) to the

division , which money shall be used by the

divi sion to defray the costs of providing

this service, then such lienholder shall be

notified in writing of the filing of an

order to show cause as to why the license

should not be suspended and revoked; and

also the lienholder shall be furnished a

copy of an y order of suspension or

revocation. In this event, the 180 days

within which to file for the enforcement of

the lien by the lienholder shall commence

running from the date of the mailing of the

copy of the order of revocation or

suspension.

(4) In order to perfect a lien or security

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

i nterest, shall record the same with the

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

requester copies of all recorded liens and

security interests in the divisionÓs

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 liens and

security i nterests 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 p rior 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.

(5) Any foreclosure of a perfected lien in

a beverage license shall be in the circuit

court in the county in which the beverage

license is issued , and the division shall

be joined as an indispensable party. All

holders of liens senior to the lien being

foreclosed shall be joined and deemed

necessary parties to the foreclosure.

(6 ) Upon a judgment of foreclosure and

after written notice to each distributor of

alcoholic beverages who has filed a claim

in the foreclosure, the clerk of the

circuit court shall sell the license at

public auction, pursuant to chapter 45, to

the highest an d best bidder, who shall pay

the amount bid by a cashierÓs check within

24 hours of the time of sale . The proceeds

from the sale of such license, after

deducting the expenses of the sale, shall

be paid, first, to the lienholder or

lienholders in the order of date of filing

and, second, to creditors who have paid or

by law are obligated to pay federal or

state excise taxes on purchases by the

licensee; and the balance shall be paid as

directed in the judgment of foreclosure.

(7) The institution of foreclosure

procedures or the judicial transfer of a

license shall not prevent the division from

suspending or imposing a civil penalty

against the licensee of record at the time

of the alleged violation. However, should

the division o btain a revocation of the

license against the previous licensee of

record, the revocation shall be effective

only to impair the qualifications of the

officers, directors, or stockholders of

that licensee . (Emphasis added).

50. The facts giving rise to this case are largely

undisputed: Rebco had a perfected security interest against the

License recorded with the Division in 1997, which it renewed in

accordance with the provisions of section 561.65 every five

years thereafter. At a time when RebcoÓs lie n was duly recorded

with the Division, DABT began disciplinary proceedings against

the License, but has no record that it notified Rebco concerning

either the pending disciplinary action or the revocation of the

License. Thereafter, at a time when the lie n was recorded with

the Division, DABT placed the License in a quota drawing,

deleted the license number from its records, and issued a new

license in Pinellas County to a purchaser who is not a party to

this proceeding. When Rebco timely sought to renew its lien in

2011, DABT declined to renew it based on the revocation of the

license. The most significant factual issue for determination

is whether DABT failed to notify Rebco of the disciplinary

action or the subsequent revocation of the License before

p lacing it in the quota drawing. The greater weight of the

evidence is that DABT failed to provide the statutory notice s

required by section 561.65. DABTÓs contention that its regular

practice of notify ing lienholders means that it in fact did so

here is rejected as contrary to the greater weight of the

evidence.

51. As stated by the Supreme Court of Florida in Walling

Enterprises, Inc. v. Mathias , 636 So. 2d 1294, 1297 (Fla. 1994),

while a liquor license has the quality of property, it is

considered a ge neral intangible. See also United States v.

McGurn , 596 So. 2d 1038, 1041 (Fla. 1992). Section 561.65 is

the exclusive means by which to perfect a lien against a liquor

license. McGurn ; VMI EntmÓt, LLC v. Westwood Plaza, LLC , 152

So. 3d 617, 619 (Fla. 1 st DCA 2014); Dery v. Occhiuzzo &

Occhiuzzo Enters., Inc. , 771 So. 2d 1276, 1278 (Fla. 4th DCA

2000 ) . Once the lien is perfected, section 561.65(5) makes it

clear that enforcement proceedings are in the circuit court in

the county in which the beverage li cense was issued. Thus,

consideration of any defenses to the enforcement proceeding are

within the purview of the circuit court, should enforcement

proceedings be instituted, and are not an issue to be decided in

this proceeding.

52. The crux of this cas e is that DABT failed to notify

Rebco before placing the License in the quota drawing. It

appears, from the evidence presented, that the agency mistakenly

relied on the publication of revocation proceedings to start the

clock running for placement of the L icense in the quota drawing.

However, section 561.65(3) expressly directs that the 180 - day

period begins to run Ð from the date of the mailing of the copy

of the order of revocation or suspension. Ñ In this case,

because DABT did not notify Rebco of the r evocation, that period

never began to run.

53. In its Proposed Recommended Order, Respondent points

out that an agencyÓs interpretation of the statute it is charged

with enforcing is entitled to great deference, citing Verizon

Florida, Inc. v. Jacobs , 81 0 So. 2d 906, 908 (Fla. 2002) and

Bellsouth Telecommunications , Inc. v. Johnson , 708 So. 2d 594,

596 (Fla. 1998). With this deference referenced, Respondent

asserts,

In RespondentÓs view, at no point does

Section 561.65 strictly require Respondent

record any and all liens submitted thereto.

Indeed, Section 561.65 commands Respondent

to perform various tasks with regard to

liens and lien recording, but nowhere does

the statute require Respondent to record

liens without discretion Î - certainly not

those li ens which Respondent suspects or

knows to be deficient. In the present

case, Petitioner has attempted to record a

lien on a license that has been revoked

and, in RespondentÓs view, does not legally

exist. While Respondent is likely ÐableÑ

to record such a lien, Respondent

rightfully questions such recording, and

has reasonably refused to comply.

54. As a preliminary matter, Petitioner is not attempting

to record a new lien, it is seeking to renew a duly - recorded

lien already on file with DABT, as conte mplated by sectio n

561.65(4). I t is also noteworthy that Respondent does not base

its refusal to renew the lien on any deficiency in the renewal

request submitted by Rebco, but rather upon circumstances

created by DABT through no fault of Petitioner .

55. Moreover, RespondentÓs reading of section 561.65 is,

in the undersignedÓs view, clearly erroneous. Bridlewood Group

Home v. Ag. for Pers. with Disabilities , 136 So. 3d 652, 656

(Fla. 2d 2013); M.H. v. DepÓt of Child. and Fam. Servs. , 977 So.

2d 755, 759 (Fla. 2d DCA 2008). For the reasons discussed

below, recording of a properly - submitted lien is a ministerial

duty and Respondent does not have discretion to refuse the

request.

56. A ministerial duty is a duty Ðimposed expressly by

law, not by contra ct or arising necessarily as an incident to

the office, involving no discretion in its exercise, but

mandatory and imperative.Ñ City of Tarpon Springs v. Planes ,

30 So. 3d 693, 695 (Fla. 2d DCA 2012)(quoting Escambia Cnty. v.

Bell , 717 So. 2d 85, 88 (Fla. 1st DCA 1988) , and State ex rel.

Allen v. Rose , 123 Fla. 544, 167 So. 21, 22 - 23 (Fla. 1936)); see

also Haines v. State , 80 So. 3d 1144, 1146 (Fla. 4th DCA

2012)(certification of costs is a purely ministerial duty

requiring no discretion); Vocelle v. Ridde ll , 119 So. 2d 809 ,

811 (Fl a. 2d DCA 1960)(once license issued, annual renewal

accompanied by required fee is a ministerial duty and a matter

of right; alleged violations must be addressed through

revocation proceedings). Recording of liens is generally

c onsidered to be a ministerial duty. First American Title Ins.

Co. v. Dixon , 603 So. 2d 562, 565 (Fla. 4th DCA 1992).

57. In order to determin e whether an action is ministerial

or discretionary , the authorizing statuteÓs language must be

examined to see what discretion may be granted to the agency, as

public officers and agencies only have such authority as is

Ðclearly conferred by statute or is necessarily implied from

express statutory powers or duties.Ñ Escambia Cnty. v. Bell ,

717 So. 85, 87 (Fla. 1st DCA 1988). Absent statutorily -

enumerated grounds for exercising discretion, there is no

discretion to exercise. Wells v. Castro , 117 So. 3d 1233, 1238

(Fla. 3d DCA 2013).

58. Section 561.65(1) provides that DABT must notify a

lienholder Ðproperly fili ng pursuant to subsection (4)Ñ of a

pending revocation or suspension, and prohibits the inclusion of

a revoked license in the quota drawing until the 180 - day period

has elapsed or until enforcement proceedings are final.

Paragraph four lists the only requ irements for recording of a

lien or security interest: that the lien be recorded within 90

days of the date of the creation of the lien; that the lien be

recorded Ðwith the division on or with forms authorized by the

division;Ñ that the forms require the names of the parties and

the terms of the obligation; and that the lienholder pay a $10

fee. Likewise, the requirements for renewal of a lien with the

Division are equally sparse: that the lienholder pay a $10

renewal f ee and file the renewal within six months prior to the

expiration of the prior recordation. Nowhere in section 561.65

doe s the Legislature provide any other basis for DABT to refuse

to record a lien. To accept DABTÓs argument that it has

discretion to reject a properly submitted request f or renewal is

to inject into section 561.65 language that the Legislature did

not include.

59. The rule adopted by DABT to implement section 561.65

is rule 61A - 5.0012. It provides in pertinent part:

(2) To file a lien or security interest in

a spirit uous alcoholic beverage license

which may be enforceable against the

license, the party which holds the lien or

security license, within 90 days of the

date of creation of the lien or security

interest, shall record the same with the

division. An applicat ion must be filed on

DBPR ABT - 6022, APPLICATION FOR MORTGAGEEÓS

INTEREST IN SPIRITUOUS ALCOHOLIC BEVERAGE

LICENSE, effective July 2013, adopted and

incorporated herein by reference. This

form may be used to file one of the

following:

(a) New Lien;

(b) Lien Assignment/Assumption;

(c) Lien Renewal/Extension;

This form is available upon request from

the Division of Alcoholic Beverages &

Tobacco at 1940 N. Monroe Street,

Tallahassee, Florida 32399 - 1021, the

DivisionÓs district office serving your

area of interest whose contact information

is provided at

http://www.myfloridalicense.com/dbpr/abt/fo

rms/documents/abtdistrictOfficeInformation.

doc , or at

http://www.flrules.org/Gateway/reference.as

p?No䗧 - 03330 . Application must be

complete and requirements fu rnished in

accordance with the list of license

application requirements.

60. Nothing in this rule or the form adopted as referenced

in the rule contemplate any basis for rejection of a lien or

renewal/extension of a lien, other than those required by

se ction 561.65, i.e., failing to fil e the lien in a timely

manner or failing to provide the names of the parties and the

terms of the obligation along with the filing fee. Moreover,

DABT has not asserted that there is any deficiency with respect

to the info rmation Rebco provided.

61. In Escambia County v. Bell , a dispute arose between

the county and the tax collector regarding the use of the

statutory uniform collection method in section 197.3632, Florida

Statutes, to collect a non - ad valorem assessment fo r funding of

fire protection services. The tax collectorÓs concerns were

that the assessment was based on services not yet provided to

the property subject to the ass essment, that the assessment

might not be constitutionally lienable, and that the county

could not collect its fiscal - year budgeted assessment through

the tax notice, which collects ad valorem taxes in arrears

pursuant to a calendar - year methodology. The county filed an

action for declaratory judgment and sought a writ of mandamus to

require the tax collector to collect the special assessment, and

the trial court granted summary judgment in favor of the tax

collector. The trial court found that its decision was not

based on the failure of the county to comply with any

requirement in section 1 97.3632 or the rule adopted to implement

the statute, but on the courtÓs determination that the right to

place and collect the non - ad valorem assessments on the ad

valorem tax notice by the tax collector was not absolute,

creating no duty or obligation on the tax collector. On appeal,

the First District reversed, holding that the duty of the tax

collector was wholly ministerial. In explaining its decision,

the First District stated:

[b]oth parties agree that the Tax Collector

only has such authority as is clearly

conferred by statute or is necessarily

implied from express statutory powers or

duties . . . .

Section 197.3632 prescribes the procedures

with which the County must comply if it

elects to use the uniform method of

collection of its non - ad valorem assessment

on the a nnual tax notice. See § 197.3632 ,

(9), Fla. Stat. The statute, however, does

not invest the Tax Collector with any

discretion with regard to the collecting of

the special assessment on the annual tax

notice once the County elects to u se this

statutory uniform method for collection and

complies with the statuteÓs requirements.

Rather, a tax collectorÓs duty under

section 197.3632 is wholly ministerial at

that point, a conclusion confirmed by

Florida Administrative Code Rule 12D -

18.001, which implements section 197.3632.

The rule explains that it is the duty of

the local government to determine, under

law, whether an assessment levy is

constitutional and may be collected as a

lien. The duties of the property

appraisers and tax collecto rs under section

197.3632, Florida Statutes, are ministerial

and shall not be construed to authorize any

levy.

* * *

We understand that the Tax CollectorÓs

objections to use of the annual tax notice

for collection of the special assessment

were motivated by his concerns for the

property owners in Escambia County subject

to the CountyÓs special assessment.

Nevertheless, the Tax Collector acting in

his official capacity has the ministerial

duty of placing the CountyÓs assessment in

this case on the annual t ax notice upon the

CountyÓs compliance with the uniform

collection procedures contained in section

197.3632 and Florida Administrative Code

Chapter 12 - 18. The Tax Collector has no

authority to refuse that duty based upon

his own determinations of the lega lity of

the assessment or the constitutionality of

any lien resulting from nonpayment of the

assessment.

717 So. 2d at 87 - 8 8 .

62. Like the countyÓs action in Bell , Petitioner has

complied with the statutory and rule requirements for renewing

its lien a gainst the License. Like the tax collector in Bell ,

DABT has concerns based on matters outside the confines of the

statute and rule . 3 / Like the tax collectorÓ s concerns about the

constitutionality of using the uniform process for the

assessment in Bell , DABTÓs concerns about the vitality of the

lien, given the revocation and reissuance of the License, are

issues for another entity to decide: in this case, the circuit

court should decide any challenges related to enforcement

proceedings . Those concerns a re not a basis for refusing to

extend PetitionerÓs lien.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a Final Order approving the

renewal of RebcoÓs lien in the License at issue in this case.

DONE AND ENTERED t his 17th day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cler k of the

Division of Administrative Hearings

this 17th day of July , 2015 .

ENDNOTE S

1/ Requests for hearing based on a dispute of material fact must

be granted or denied within 15 days of receipt, and requests are

to be forwarded to DOAH w ithin that sam e time period.

§ 120.569(2)(a), Fla. Stat. Here, there was a delay of close to

three years. No explanation was made for the lengthy delay.

2/ Given that the handwritten note on the 2007 e - mail referenced

activities in 2011, it is presumed that this no te was added by

someone reviewing the file at a later date.

3/ Here, those concerns would not exist had DABT complied with

section 561.65Ós requirements regarding notice of the revocation

of the License.

COPIES FURNISHED:

Jason Douglas Borntreger, Es quire

Department of Business

and Professional Regulation

1940 North Monroe Street , Suite 40

Tallahassee, Florida 32399 - 2202

(eServed)

Maggie M. Schultz, Esquire

Rutledge Ecenia, P.A.

Post Office Box 551

Tallahassee, Florida 32302

(eServed)

Thomas P hilpot, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

William N. Spicola, General Counsel

Department of Bus iness

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

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.