Opinion
Nos. 83-2251, 83-2275.
June 18, 1985. Rehearing Denied August 1, 1985.
Appeal from the Department of Business Regulation.
Sy Chadroff and Lane Abraham, Miami, for appellant Henry Stripling.
Richard F. Hayes, Miami, and Robert V. Wolfe, Coral Gables, for appellant Thomas Olhausen.
William A. Hatch and Louisa Hargrett, Tallahassee, for appellee.
Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ.
Thomas Olhausen and Henry Stripling, co-owners of a Florida beverage license, appeal from a final administrative order of the Director of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, adopting the recommended order of the hearing examiner and revoking the said beverage license. The recommended order of the hearing examiner contains the following findings of fact and conclusions of law:
"FINDINGS OF FACT
1. The Respondents, Thomas Olhausen and Henry Stripling, d/b/a Trackside Lounge, hold Beverage License No. 23-1647, Series No. 4-COP, which was issued for the current year.
2. On or about June 5, 1983, the Respondent Thomas Olhausen sold a controlled substance, namely cocaine, to Beverage Officer Terminello while he was on the licensed premises known as Trackside Lounge in Dade County, Florida.
3. On or about June 8, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Dodson while he was on the Trackside Lounge premises.
4. On or about June 12, 1983, the Respondent Thomas Olhausen sold cocaine to Beverage Officer Terminello while he was on the premises of Trackside Lounge.
5. The Respondent Henry Stripling did not go onto the Trackside Lounge between the dates of March 10 and June 10, 1983, pursuant to a restraining order issued on March 10, 1983, by the Dade County Circuit Court.
6. This March 10, 1983, court order appointed two receivers to supervise the operation of the business known as Trackside Lounge. Pursuant to this authority the receivers employed Thomas Olhausen to operate and manage the business. Thus, Thomas Olhausen was not subject to the restraining order which barred Henry Stripling from entry onto the Trackside Lounge premises.
7. The Respondent Henry Stripling had no connection with the sale of cocaine by the Respondent Thomas Olhausen to the Beverage Officers on June 5, 8 and 12, 1983.
8. The court order of March 10, 1983, did not attempt to effect a judicial transfer of the beverage license held by the Respondents.
9. The court appointed receivers did not file an application for a beverage license pursuant to Section 561.17, Florida Statutes, and there is no evidence that the receivers attempted to transfer the beverage license held by the Respondents pursuant to Section 561.32(1)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Administrative Code.
10. The court appointed receivers did not file a certified copy of the order appointing them as receivers with the Division of Alcoholic Beverages and Tobacco pursuant to Section 7A-2.06(6), Florida Administrative Code.
CONCLUSIONS OF LAW
1. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
2. Section 561.29(1)(a), Florida Statutes, authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend an alcoholic beverage license when it is shown that the licensee, or his agent or employee, while on the licensed premises, violated any law of the State of Florida.
3. Section 893.13(1)(a), Florida Statutes, makes it unlawful for any person to sell a controlled substance. Cocaine is a controlled substance pursuant to Section 893.03(2), Florida Statutes.
4. Based on the stipulation between the parties, it is concluded that Thomas Olhausen did sell a controlled substance, namely cocaine, on the dates in question as alleged in Count I of the Notice to Show Cause, in violation of the provisions of Chapter 893, Florida Statutes.
5. The licensees of record on the dates in question were Henry Stripling and Thomas Olhausen as reflected by the records of the Division of Alcoholic Beverages and Tobacco.
6. Section 561.17, Florida Statutes, requires that any person, before engaging in the alcoholic beverage business, file an application for a beverage license. Further, Section 7A-2.06(6), Florida Administrative Code, provides:
(6) Appointee of Court: If, under judicial proceedings, an appointee of a court of competent jurisdiction is ordered to conduct the business on the licensed premises, the alcoholic beverage license involved shall be transferred to the name of such appointee, pending further order of the court, upon the filing with the Division of a certified copy of the order of appointment.
7. The co-receivers did not follow the provisions of section 561.17, Florida Statutes, or the provisions of Section 7A-2.06(6), Florida Administrative Code, and thus the receivers are not licensees of record in this proceeding.
8. The legal licensees of record, Henry Stripling and Thomas Olhausen, are responsible for illegal acts committed on the licensed premises, such as those alleged in Count I of the Notice to Show Cause.
9. On three occasions the Respondent, Thomas Olhausen a licensee, sold the controlled substance known as cocaine on the licensed premises in violation of Sections 561.29 and 893.13, Florida Statutes. This direct knowledge and participation by the licensee warrants revocation of the alcoholic beverage license held by both of the Respondents."
R. 4-7.
The final order under review rejects the exceptions to the recommended order, adopts the findings and conclusions of the recommended order and revokes the subject beverage license. The final order further states:
"In view of certain mitigating factors presented on behalf of Respondent HENRY STRIPLING, the provisions of this order will not impair his qualifications to obtain another beverage license in the future."
R. 10.
We have no trouble in affirming the final order under review and specifically adopt the hearing examiner's analysis of the applicable law herein. This order, however, should be modified in one material respect. In view of the aforesaid receivership, restraining order and otherwise innocent conduct of Henry Stripling in this cause, the final order should also provide that upon Henry Stripling's reapplication for a new beverage license on the subject premises, said beverage license will automatically be issued to him upon payment of the appropriate fees.
The final order under review is affirmed as modified and the cause is remanded to the lower tribunal with directions to amend the said order as stated above.
Affirmed as modified and remanded.
BARKDULL and HUBBART, JJ., concur.
This is a hard case which I am afraid has made the kind of law such cases proverbially do. While I agree philosophically that the innocent Mr. Stripling should not be deprived of his rights in the license in question here, I do not believe that the court's attempt to effect that result, by ordering its automatic reissuance to him alone, may be sustained under the law. The fact is that one of the two named principals, Olhausen, to whom the license was issued was himself guilty of serious offenses which fully justified and even required that the license be revoked. See § 561.29(1)(b), (f), Fla. Stat. (1981). Since a revocation proceeding is in essence an in rem action against the license itself as a species of property, see 2 Fla.Jur.2d Alcoholic Beverages § 17 (1980), I know of and the majority has cited no authority for the proposition that anything other than the license itself, as opposed to a holder of a particular interest in it, may be the subject of discipline. See Deep South Plantation Foods, Inc. v. Wynne, 317 So.2d 131 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 16 (Fla. 1976) (upholding revocation because of criminal conviction of one officer of corporate licensee). Yet that is what the court has done.
Of course an innocent's vicarious responsibility for the actions of a wrongdoer arises out of so wide a variety of relationships — including, for example, those between partners, employers and employees, and the owners and drivers of motor vehicles — that the principle is a legal commonplace. It is not shocking, therefore, that Stripling should be required to suffer a loss because of what Olhausen has done.
In my view, the only types of "relief" available to Stripling, a good guy who made the mistake of securing a license in joint names with a bad one, are those already offered by the division: (a) its consideration of any future application he makes for a new and different license without reference to the instant case and (b) the approval of any transfer from Olhausen to Stripling of his interest in this license upon which the two could agree; in fact, negotiations for the accomplishment of the latter result were attempted without success. In contrast, however, the court has not only relieved Olhausen of his interest in the license — which is an eminently just result — but has in effect ordered it turned over to Stripling without his paying for it — which is not. While we all recognize the absence of his personal guilt, I find no basis for permitting Stripling actually to reap a profit by his knowing association with a miscreant.
Except for any fees required by the state.
Because I believe that, under the circumstances, a binding and final revocation of the license per se is the only legally permissible resolution of this difficult problem, I would affirm the order under review without qualification.