18-006104 Marie Antoinette Rochette vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed Recommended Order on Wednesday, May 1, 2019.

Summary: Petitioner failed to meet her burden of proof. She failed to prove the transfer application should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIE ANTOINETTE ROCHETTE,

Petitioner,

vs. Case No. 18 - 6104

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF ALCOHOLIC BEVERAGES

AND TOBACCO,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Tampa and Tallahassee,

Florida, on March 11, 2019, before Lynne A. Quimby - Pennock,

Administrative Law Judge of th e Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Marie Rochette , pro se

4818 West Flamingo Road

Tampa, Florida 33611

Lovie Hudson , Representative (Daughter)

333 5 Rankin Drive

New Port Richey, Florida 34655

For Respondent: Courtney Rae Conner, Qualified

Representative

Ryan Sandy, Esquire

Department of Business and

Professio nal Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

Whether PetitionerÓs application to transfer Alcoholic

Beverage License No. 3900441/4COP should be approved.

PRELIMINARY STATEME NT

In the Notice of Intent to Deny issued on September 7, 2016,

Respondent, the Department of Business and Professional

Regulation, Division of Alcoholic Beverages and Tobacco (Division

or Respondent ) , notified Petitioner that her application for the

trans fer of Alcoholic Beverage License No. 3900441/4COP had been

denied. Petitioner timely filed a request for administrative

hearing. On November 16, 2018, 1/ the matter was referred to DOAH

for a disputed - fact hearing.

The hearing commenced as schedule d , and Petitioner requested

that Lovie Hudson be allowed to represent her. The Division did

not object, and the hearing continued. During the hearing,

Petitioner briefly testified on her own behalf, and Ms. Hudson,

Jacqueline Olivario, and Bryan Housler testif ied. The Division

offered the testimony of Sharon Scott. The DivisionÓs Exhibits

1, 5, 2/ and 7 were admitted into evidence.

At the conclusion of the hearing Ms. Hudson requested 20

days after the transcript was filed in which to submit proposed

recomme nded orders (PROs). The Division did not object to the

request, and the request was granted.

The one - volume Transcript of the hearing was filed on

March 27, 2019. Both parties timely submitted their PROs. To

the extent that either PRO contains info rmation which was not

presented during the hearing, that information has not been

considered. Each PRO has been re viewed in the preparation of

this Recommended Order.

FINDING S OF FACT

Based on the demeanor and credibility of the witnesses, in

consideratio n of the oral and documentary evidence adduced at the

hearing, and on the entire record of this proceeding, the

following facts are found:

1. Petitioner is an individual. At some time in the past,

Petitioner, Ms. Hudson, Mary Pease , and Scott Wetmore

inc orporated as Peace and Love Enterprises, Inc. (P&L). P&L

holds A lcoholic B everage L icense No. 3900441 /4COP (beverage

license) issued by the Division.

2. The Division is the state agency charged with the

administration (including licensing), regulation, and enforcement

of FloridaÓs alcoholic beverage laws pursuant to section

20.165(2)(b) and chapters 561 through 568, Florida Statutes

(2018) . 3 /

3. All applications filed with the Division are subject to

investigation pursuant to section 561.18. Applica tions for the

transfer of an alcoholic beverage license are considered pursuant

to section 561.32.

4. Ms. Scott is currently the DivisionÓs senior management

analyst II, over the Tampa, Fort Myers , and Orlando district

offices. Ms. Scott supervises the p rocessing and reviewing of

applications for alcoholic beverage licen s es , tobacco licenses ,

transfers of licenses, and permits.

5. Once an application for the transfer of an alcoholic

beverage license is submitted to the Division, it is reviewed for

specif ic information. The Division looks at the named current

license holder to ensure that the signature on the application

matches the name of someone authorized to sign the application .

The Division verifies that the application information is

complete on i ts face, the alcoholic beverage license is current

and can be transferred, and there are no Ð flags Ñ on th e license

that would prevent a transfer. The Division must determine if

the transferee has a current alcoholic beverage license or not.

The Division then looks at the person, corporation, or LLC that

wants the alcoholic beverage license transferred to it, and

conducts background check s on all persons associated with the

application . Once all the background checks are completed, then

a recommendation o f approval or denial is made. If the approval

is given, an invoice on the transfer is generated and the

applicant is told to pay the fee to complete the application

transfer. If there is a n intended denial, a notice is sent to

the applicant with the reas ons stated for the action .

6. Prior to the transfer application, P&L used the beverage

license to operate a restaurant/bar, The Manhattan Dolce Bar and

Bistro (The Manhattan) . Ms. Hudson was the primary force for The

ManhattanÓs operation on behalf of P& L. Petitioner or Ms. Hudson

met an individual , John Clay Weldy , who wanted to get involved in

the business . Mr. Weldy became associated with P&L and took

actions that made it appear as though he had authority over the

beverage license and The Manhattan. No evidence was presented

that the P&L Board of Directors, officers , or shareholders

conf er red any authority on Mr. Weldy to make any P&L decisions or

to act on its behalf . Additionally, no credible evidence was

presented by Petitioner that the P&L Board of Directors,

officers , or shareholders conf er red any authority on Petitioner

or Ms. Hudson to make any P&L decisions or to act on its behalf .

7. At some point, when Ms. Hudson became too ill to run The

Manhattan, Ms. Oliverio became its manager until s he was fired by

Mr. Weldy. At some point , Ms. Oliverio and her boyfriend

attempted to purchase the beverage license from M r. Weldy, but he

made the offer too burdensome for that sale to be completed .

8. On August 15, 2016, Petitioner filed an application to

transfer the beverage license from P&L to Petitioner.

9 . On August 25, 2016, Beverage Law Institute, Inc. (BLI) ,

filed an application to transfer the same beverage license from

P&L t o BLI.

10. Ms. Oliverio was not an officer of P&L, and was not

fami liar with the details of the P&L corporate structure.

Further, Ms. Oliverio did not participate in PetitionerÓs

transfer application.

11. Mr. Housler worked at The Manhattan. Mr. Housler did

not have any knowledge of the sale of the beverage license o r the

attempted transfer of the beverage license.

12. The Division had completed its investigation of

PetitionerÓs application filed on August 15, 2016, and had

signaled its intent to approve it by issuing an invoice for the

transfer . However , the invoic e had not been paid when the second

application to transfer the same beverage license was filed by

BLI .

13. On September 7, 2016, the Division issued to Petitioner

a Notice of Intent to Deny License, setting forth the following

as the grounds for the de nial:

Authority: 561.18 and 561.32(1)(a), Florida

Statutes.

Re ason: Due to transfer application and

supporting documentation submitted to the

Division by the Beverage Law Institute on

August 25, 2016, the Division is unable to

determine whether a bona f ide sale of the

business has been made such that the licensee

may obtain a transfer.

14. On September 7, 2016, the Division issued to BLI a

Notice of I ntent to Deny License, setting forth the following as

the grounds for the denial:

Authority: 561.18 and 561.32(1)(a), Florida

Statutes.

Reason: Due to transfer application and

supporting documentation submitted to the

Division by Marie Antoinette Rochette on

August 10, 2016 , [ 4/ ] the Division is unable to

determine whether a bona fide sale of the

business has been made such that the licensee

may obtain a transfer.

15 . Ms. Hudson testified that a sale of P&L to either

Petitioner or BLI had not and has not happened.

16. Ms. Scott assisted Petitioner and Ms. Hudson as they

attempted to maneuver the transf er application through the

DivisionÓs process. The affidavit of the applicant form fails to

list the ÐDBAÑ (doing business as) on PetitionerÓs August 1 5 ,

2016 , transfer application , but contains PetitionerÓs notarized

signature. The affidavit of the tran sferor form also fails to

list the ÐDBA,Ñ but contains P etitioner Ós notarized signature.

Ms. Scott testified that a lthough the Division records provided

that Petitioner was authorized to sign on behalf of P&L, the

transfer application was denied because a second transfer

application was received prior to PetitionerÓs transfer invoice

being paid.

17. In the August 25, 2016 , BLI transfer application, t he

affidavit of the applicant form list s the ÐDBAÑ as ÐESCROW,Ñ and

contains Horace Moody Ós notarized s ignature. The affidavit of

the transferor form also list s the ÐDBAÑ as ÐESCROWÑ but contains

Mr. WeldyÓ s notarized signature. Ms. Scott testified that t he

Division records also provided that Mr. Weldy was authorized to

sign on behalf of P&L. This transf er application was denied

because the first transfer application had been submitted.

18. T he t wo competing interests , each asserting that P&L

wanted to transfer the beverage license to different transferees,

made it impossible for the Division t o approv e either transfer

application.

CONCLUSIONS OF LAW

1 9 . DOAH has jurisdiction over the parties and subject

matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

20 . Section 561.02 authorizes the Division to Ðsupervise

the conduct, management, an d operation of the manufacturing,

packaging, distribution, and sale within the state of all

alcoholic beverages and [further authorizes the Department to]

enforce the provisions of the Beverage Law and the T obacco L aw

and rules and regulations of the divis ion in connection

therewith.Ñ

2 1. Section 561.17 authorizes the Division to consider, and

otherwise act upon, applications to manufacture, bottle,

distribute, sell, or in any way deal in alcoholic beverages.

2 2 . As the applicant for the transfer of the b everage

license, Petitioner is asserting the affirmative, and therefore

bears the ultimate burden of proving entitlement to a license.

Fla. Dep Ó t of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

2 3 . The standard of proof that Petitione r must meet is by a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat. The

preponderance of the evidence standard requires proof by Ð the

greater weight of the evidence Ñ or evidence that Ðm ore likely

than not Ñ tends to prove a certain proposition. Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000).

2 4 . Petitioner did not present any evidence to demonstrate

a bona fide sale from P&L to Petitioner occurred. Without that

bona fide sale, Petitioner did not have authority to transfer the

beverage lic ense. Petitioner failed to meet her burden of proof,

and therefore her application for the transfer of the beverage

license should be denied.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED t hat the Departme nt of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco, enter a final order denyi ng Marie Antoinette RochetteÓs

a pplication for the transfer of Alcoholic Beverage License

No. 3900441/4COP .

DONE AND ENTERED this 1st day of May , 2019 , in Tallahassee,

Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May , 2019 .

E NDNOTE S

1/ This matter was previously sent to DOAH in 2016, and assigned

DOAH Case No. 16 - 5999. DOAH C as e No. 16 - 5999 was consolidated

with DOAH Case No. 16 - 5998. In January 2017 , DOAH Case

No. 16 - 5999 was closed and jurisdiction was relinquished to the

Division without prejudice for it to be referred to DOAH in the

event a pending circuit court action did not resolve the issue.

2/ RespondentÓs Exhibit 5 was admitted over objection.

3/ All references to Florida Statutes will be to the 2018

codification , unless otherwise indicated. S ection 561.01(6)

provides that Ð Ò[ t]he Beverage LawÓ means this chapter and

chapters 562, 563, 564, 565, 567, and 568. Ñ

4/ The Division referenced Ð August 10, 201 6Ñ in the denial letter

to BLI. Petitioner did not submit her application for transfer

until August 15, 2016.

Based on RespondentÓs Exhibit 1 (page 60), it appears that

on August 10, 2016, an ÐAmended Section 5 Disclosure of

Interested PartiesÑ was filed with the Division . T his filing

p r ovide s that : John Weldy is the ÐPSTÑ of the corporation and

holds 50% of the stock ; Mary Pease is the ÐMBRÑ of the

corp oration and holds 19% of the stock ; and Marie Rochette is the

ÐVPÑ of the corporation and holds 31% of the stock. The

corporation is not listed, however , The Manhatta n Dolce Bar and

Bistro is listed as the DBA.

COPIES FURNISHED:

Marie Rochette

4818 We st Flamingo Road

Tampa, Florida 33611

(eServed)

Lovie Hudson

3335 Rankin Drive,

New Port Richey, Florida 34655

Courtney Rae Conner, Qualified Representative

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florid a 323 99 - 2202

(eServed)

Ryan Sandy, Esquire

Department of Business and

Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Halsey Beshears , Secretary

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ray Treadwell, General Counsel

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Sterling Whisenhunt, Director

Division of A lcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 d ays 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.