Florida/Georgia Personal Injury & Workers Compensation

...This will be a question for the Director to determine within reasonable discretion. Furthermore, the appellee's position and the lower court's conclusion that the "Skyline Restaurant" license is revoked, dead and no longer exists is contrary to the provisions of Florida Statutes, §§ 561.32 and 561.58, F.S.A. These sections give the Beverage Director wide discretion in the transference or reissuance of a previously revoked liquor license. The former, § 561.32, provides that the transfer of a license, when revocation or suspension proceedings have been instituted against a licensee, shall be within the discretion of the Division....

...718, 101 A. 85; Tracy v. Ginzberg, 189 Mass. 260, 75 N.E. 637, affirmed in 205 U.S. 170, 27 S.Ct. 461, 51 L.Ed. 755; Rowe v. Colpoys, 78 U.S.App.D.C. 75, 137 F.2d 249, 148 A.L.R. 488. Our statutes expressly recognize the transferability of a liquor license. Section 561.32, Florida Statutes, 1949, F.S.A....

...The Beverage Director, under Section 561.19, has the power to approve or disapprove the application. If the same is approved, then his endorsement of approval under Section 561.19 is entered on the application and by him forwarded to the Tax Collector of the county of origin. Section 561.32, F.S.A., authorizes the transfer of a liquor license when the licensee has made a bona fide sale of the business which is so licensed and a transfer of the license to the purchaser may be obtained, provided the application of the purchaser is approved by the Director....

...718, 101 A. 85; Tracy v. Ginzberg, 189 Mass. 260, 75 N.E. 637, affirmed in 205 U.S. 170, 27 S.Ct. 461, 51 L.Ed. 755; Rowe v. Colpoys, 78 U.S.App. D.C. 75, 137 F.2d 249, 148 A.L.R. 488. Our statutes expressly recognize the transferability of a liquor license. Section 561.32, Florida Statutes, 1949, F.S.A." House v....

...While technically a new license could have been issued for the new operation, the same result was reached by the Director approving the sale of the liquor business and a transfer of the old license to the new management as an incident to lifting of the quarantine. F.S. Section 561.32, F.S.A., authorizes such transfers although revocation or suspension proceedings have been instituted against a licensee, the same being within the sound discretion of the Director. In the light of the wide administrative discretion confided in the Director by F.S. Sections 561.32 and 561.58, F.S.A., and other provisions of the State Beverage Laws, we cannot in the context in which we feel constrained to view this case, agree with the decision below that the revocation of the license was irrevocably placed beyond recall or modification....

...OVERTON, Justice. This is a petition to review a decision of the Third District Court of Appeal reported as Astral Liquors, Inc. v. State, Department of Business Regulation, 432 So.2d 93 *1131 (Fla. 3d DCA 1983), in which that court declared valid section 561.32(2), Florida Statutes (1981)....

...s were consolidated for review by the district court. Mandell argued on appeal (1) that the division erred in denying its application to transfer Astral's license because it did not explain its reasons or policy in denying the transfer, and (2) that section 561.32(2) is an unconstitutional delegation of power by the legislature because the statute fails to set forth guidelines or rules governing the action of the Division of Alcoholic Beverages and Tobacco in denying the transfer of beverage licenses....

...statute concerns licensing and determination of fitness of license applicants and when the statute deals with the regulation of businesses which are operated as a privilege rather than as a right. Id. at 95-96. We agree with the district court that section 561.32(2) does not involve an unconstitutional delegation of legislative power to the Division of Alcoholic Beverages and Tobacco....

...oholic beverages as well as the conditions under which businesses selling alcoholic beverages operate. See State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947). This regulation includes restrictions on the transfer of beverage licenses. Section 561.32(2) reasonably permits the state to deny the transfer of liquor licenses when the licensee has been charged with violation of the beverage laws....

...Meiklejohn, 217 So.2d 159 (Fla. 1st DCA 1968), cert. denied, 225 So.2d 533 (Fla. 1969). For the reasons expressed, we approve the decision of the district court. It is so ordered. ADKINS, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur. BOYD, C.J., dissents. NOTES [*] Section 561.32(2), Florida Statutes (1981), reads as follows: No one shall be entitled as a matter of right to a transfer of a license or interest in a license or to a change of executive officers or directors when the division has notified the licen...

...iquor license has come to have the quality of property, with an actual pecuniary value far in excess of the license fees exacted by the state, county, and city. (Cases cited). Our statutes expressly recognize the transferability of a liquor license. Section 561.32, Florida Statutes 1949, F.S.A.' House v....

...sued, a liquor license has come to have the quality of property, with an actual pecuniary value far in excess of the license fees exacted by the state, county, and city. * * * Our statutes expressly recognize the transferability of a liquor license. Section 561.32, Florida Statutes, 1949, F.S.A." [4] The foregoing rule was reaffirmed by the Supreme Court in the later case of Kline v....

and that such transfer was a violation of Section 561.32 F.S.A. That the location of the bar and package

...icense, upon the payment of the required tax. In the event the Director is not satisfied that the applicant possesses the required qualifications, the Director is then required to give the *806 applicant a fair hearing as to his qualifications. F.S. Section 561.32, F.S.A....

...er. On appeal Mandell challenges the order denying transfer of the license [1] on two grounds. The first ground alleged is that the agency erred in denying the application without explaining its reasons or the policy behind its actions. We disagree. Section 561.32(2), Florida Statutes (1981), under which the application for transfer was denied, states that: No one shall be entitled as a matter of right to a transfer of a license or interest in a license or to a change of executive officers or di...

...proceedings have been or will be brought against the license; and the transfer of such license or financial interest in such license or the change of executive officers or directors in such case shall be within the discretion of the division. Thus, section 561.32(2) places the grant or denial of a license transfer within the discretion of the agency where the licensee has been notified in writing that revocation or suspension proceedings have been or will be brought against the license....

...Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). By failing to demonstrate an absence of pending agency proceedings, Mandell did not meet its burden of persuasion and the Division properly exercised its discretion to deny the transfer. Mandell's second contention is that section 561.32(2), Florida Statutes (1981) is an unconstitutional delegation of power by the legislature....

...In such situations the courts will infer that the standard of reasonableness is to be applied. Brewer v. Insurance Commissioner and Treasurer, supra at 595-96. Review of the challenged statute in light of these standards reveals that this legislation falls within both exceptions. Section 561.32 itself, as well as case law interpreting the beverage laws, State ex rel....

...1953), the Florida Supreme Court recognized a wider latitude for the exercise of the state's police power with respect to the sale and possession of intoxicating liquors because of the injurious effect of its use on the health and general welfare of the public. We conclude that section 561.32(2), Florida Statutes (1981), granting the Division absolute discretion to deny transfer of an existing liquor license where administrative charges are pending, serves the salutary purpose of protecting the public from abuse of the laws governing the operation of establishments dispensing alcoholic beverages. To this end, the Division may lawfully exercise police powers granted by the legislature notwithstanding the absence of specific guidelines. We therefore hold that section 561.32(2) constitutes a valid delegation of authority to the Division. Affirmed. ON REHEARING PER CURIAM. Rehearing having been granted in the above cause, the court adheres to its original opinion. DANIEL S. PEARSON, Judge, dissenting. In my view, Section 561.32(2), Florida Statutes (1981), unconstitutionally delegates legislative power to the Division of Alcoholic Beverages and Tobacco (DABT) by giving to DABT complete and unfettered discretion to grant or deny the transfer of a license or in...

...by denying petitioner's application. To the extent its decision rests on non-rule policy considerations, it did not explicate them or subject them to scrutiny at hearing. "10. DABT's evidentiary posture was a result of the statutory provisions of F.S. 561.32 wherein the Division is given statutory discretion to determine whether or not a transfer should be permitted when there are pending administrative charges. The provisions of F.S. 561.32 require no explanation of the Division's discretion thereunder and as a statutory power such discretion is not a matter of policy." Accordingly, because I believe that Section 561.32(2) would allow the DABT to approve or disapprove transfers of licenses at the Division's whim and caprice, I would hold the statute unconstitutional and reverse the order denying transfer....

...ly converted to a title interest. At that time the landlord, being the owner of the permitted premises, is in the unique position to apply to use it at that location or to transfer its title interest to a new tenant who may gain such permission. See § 561.32, Fla....

...Section 561.19 makes it the duty of the Beverage Director to either approve or disapprove all applications for licenses to sell alcoholic beverages. If the application is approved, it is returned to the County Tax Collector who, in turn, is required to inform or advise the applicant. Section 561.32 authorizes the transfer of licenses issued under the provisions of the beverage law....

...Department of Business Regulation, Division of Beverage, to transfer Alcoholic Beverage License No. 74-507 to appellee Cade. The legal confusion as to who owns the beverage license today arises out of "statutory" transfers of the license pursuant to Section 561.32(1), Florida Statutes, and "property right" transfers of same arising from its sale, lease or assignment....

...Rosamond demanded the return of the license, but Mann refused on the basis that the terms of the *836 lease relating to the reassignment of the license were no longer binding since the terms of the lease had expired. The Supreme Court held that a covenant to reassign the license was specifically enforceable. Section 561.32(1), Florida Statutes, does not, as a matter of law, vest title of a beverage license to the purchaser of a business....

...The undisputed evidence on the motions for summary judgment shows that appellants hold the license through a chain in which each transfer was approved by the Division of Beverage and that none of the purported transfers in the chain claimed by appellee were so approved. § 561.32(1), Florida Statutes (1975), which with its predecessor statutes has been in effect in all material respects since 1953, states as follows: "(1) Licenses issued under the provisions of the Beverage Law shall not be transferable except as fo...

...1980. The Division denied the application on the ground that "administrative action is pending and undetermined against the subject license." However, we do not believe that the controlling question is whether agency proceedings had been instituted. Section 561.32, as set out in footnote one, does not state that transfer of a license is automatic upon application....

...olic beverages are obeyed and not defeated by a transparent subterfuge. More is required than an owner changing hats to that of corporate president. The Division's order denying the application is AFFIRMED. ORFINGER and SHARP, JJ., concur. NOTES [1] Section 561.32(1), Florida Statutes (1979), provides in relevant part: Licenses issued under the provisions of the Beverage Law shall not be transferable except as follows: When a licensee shall have made a bona fide sale of the business which he is...

...s to another location. The petitioner made application for the transfer to him of beverage license number 16-587 and the business operated thereunder known as Jon’s Liquor Store in Dania, Broward County, Florida. The application, filed pursuant to Section 561.32 — 561.-33, Florida Statutes, F.S.A., reflects that petitioner was to be the sole owner of the subject license and business....

...oner may retain the license in question. *240 The other reason given by the respondent for denial of the transfer is that the evidence failed to show that petitioner had purchased the business operated under the license in question as is required by Section 561.32, Florida Statutes, F.S.A....

...First State Bank of Miami, 405 So.2d 257 (Fla. 3d DCA 1981). Although the defendants are the "owners" of a reversionary interest in the liquor license, Gene Willner, sole stockholder and officer of Astral Liquors, Inc., was the "licensee" pursuant to statutory transfers of the license under section 561.32, Florida Statutes (1981). See Wright (purpose of section 561.32 is to apprise Beverage Department of the ownership and management of the business so it can be regulated)....

...ecause the transfer was completed at a time when the Metcalfs knew of the Kinard/Howard contract, the Metcalfs were not bona fide purchasers. We cannot agree. The Division’s transfer of a liquor license, a function it is obligated to fulfill under section 561.32, Florida Statutes (1985), neither transfers property rights nor vests title in the purchaser of the license....

...3d DCA 1982); § 561.29(1)(a) and § 120.68(12), Fla.Stat. (1983). We recognize the recent decision of our supreme court in Astral Liquors, Inc. v. Department of Business Regulation, 463 So.2d 1130 (Fla.1985), a case involving a transfer of a liquor license under section 561.32(2), Florida Statutes (1981), wherein the court stated: We emphasize that discretionary agency action must be subject to judicial review to determine whether it meets the standard of reasonableness....

...At the threshold, we question whether a liquor license is an appropriate subject of a lump sum alimony award. By statute a liquor license is not transferable except to a bona fide purchaser of the business which the licensee is licensed to conduct. Section 561.32(1), Florida Statutes (1977)....

...bt to the bank] was on notice that the appellant’s predecessor in title would have had any claim to the beverage license by virtue of the lease agreement, which was never recorded. Counsel for the appellant has raised the question of the effect of § 561.32, Fla.Stat., F.S.A., on the transfer of the license to the bank....

...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(l)(a) and (b), Florida Statutes, or Section 7A-2.06(6), Florida Administrative Code....

...cense issued to the lessor. The statutory scheme plainly requires that the Division Licensee be the operator of the establishment selling alcoholic beverages. A beverage license is a privilege granted by the legislature and is a creature of statute. Section 561.32, Florida Statutes (1997), provides the sole means for transferring licenses....

...Paragraph (l)(b) provides for a transfer to a person who enforces a lien pursuant to section 561.65. The remaining provisions are not relevant to the facts of this case. The record shows that Lomar and Desperado’s complied with the requirements of section 561.32 to transfer the License to the operator of a “business” requiring a beverage license....

...the Florida Administrative Code. While we affirm in favor of Lomar, we note that this case has revealed serious deficiencies in the provisions of Chapter 561 and constitutes a trap for the unwary. We have difficulty with applying the requirements of section 561.32 to the recon-veyance....

...The court rejected the earlier buyer’s argument that the third-party purchasers’ contract for the sale of the license “was not consummated until the Division transferred the license,” explaining: The Division’s transfer of a liquor license, a function it is obligated to fulfill under section 561.32, Florida Statutes 7  (1985), neither transfers property rights nor vests title in the purchaser of the license....