FRESH START, INC., D/B/A STRIP AHOY, APPELLANT,
v.
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, APPELLEE
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Fresh Start, Inc. appeals the Division of Alcoholic Beverages and Tobacco's revocation of its alcoholic beverage license for violations related to employee conduct involving drug transactions. The court affirmed the revocation, holding that where findings of violation are supported by competent, substantial evidence and the penalty imposed is within the statutorily permissible range, the court lacks authority to review the penalty.
The court affirmed the revocation order, holding that where findings of violations are supported by competent, substantial evidence and the penalty imposed falls within the statutorily permissible range, the court has no authority to review the imposition of the penalty. The court rejected the argument that Astral Liquors required judicial review of the reasonableness of the penalty, distinguishing that case as involving discretionary issuance or transfer of a license rather than penalty review.
[1] An administrative agency's findings of violations, if supported by competent, substantial evidence, are not subject to judicial review regarding the imposition of a penal…
[2] Evidence that dancers were employees of an establishment can support a finding of violations of alcoholic beverage regulations.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There being findings of violations based on competent, substantial evidence, this court has no authority to review the imposition of a penalty allowed by law.”
Establishes the fundamental principle that appellate courts cannot review administrative penalties when violations are supported by competent, substantial evidence and the penalty is within statutory limits.
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Join FLexlaw to unlock all legal intelligenceFresh Start, Inc., operating as Strip Ahoy, held an alcoholic beverage license. The Division found that dancers employed by appellant conducted drug t…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant asks this court to reverse an order of the Division of Alcoholic Beverages and Tobacco (Division) revoking its alcoholic beverage license. We affirm. There being findings of violations based on competent, substantial evidence, this court has no authority to review the imposition of a penalty allowed by law.
A review of the record discloses competent, substantial evidence supporting the Division finding that the dancers were employees of appellant. See Moles v. Gotti, 433 So. 2d 1380, 1381 (Fla. 2d DCA 1983). Similarly supported is the finding that the dancers’ drug transactions were conducted in such an open, notorious, and repeated fashion that appellant did not reasonably supervise the activity, and as a result, “either fostered, condoned or negligently overlooked” the drug activity, in violation of the statute. See Pauline v. Lee, 147 So. 2d 359, 364 (Fla. 2d DCA 1962); § 561.-29(1)(a), Fla.Stat. (1983).
This court is without authority to review the penalty imposed by the Division because that penalty was within the statutorily permissible range, and the findings upon which the violations were based were supported by the record. Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla.1978); Lash, Inc. v. State, Department of Business Regulation, 411 So. 2d 276 (Fla. 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 1132. (Emphasis supplied.) We do not, however, read this passage to mean that the judiciary may review the reasonableness of a penalty, as opposed to the discretionary issuance or transfer of a license. Even if that were true, we cannot say that the Division acted unreasonably in imposing the penalty in this case.
Accordingly, we affirm the Division’s order revoking appellant’s alcoholic beverage license.
AFFIRMED.
OTT, A.C.J., and DANAHY and LEHAN, JJ., concur.
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Citator
Cited By
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Hutson v. Casey, 484 So. 2d 1284 (Fla. 1st DCA 1986)…286] ommended penalty. As long as this statutory procedural requirement is met, we are not authorized to review the penalty. Florida Real Estate Commission v. Webb, 367 So. 2d 201 (Fla.1979); Fresh Start v. Division of Alcohol, Beverage and Tobacco, 469 So. 2d 244 (Fla. 2nd DCA 1985); Clark v. Department of Professional Regulation, 463 So. 2d 328, 333 (Fla. 5th DCA 1985). We have considered the other issues raised by appellant and find them to be without merit. VACATED AND REMANDED. SHIVERS and JOANOS, JJ.…
Authorities Cited
- Fla. Real Est. Comm'n & Casimir Szpak v. Webb, 367 So. 2d 201 (Fla. 1978)
- Pauline v. LEE, 147 So. 2d 359 (Fla. 2d DCA 1962)
- Lash, Inc. v. State, 411 So. 2d 276 (Fla. 3d DCA 1982)
- Astral Liquors, Inc. v. Dep't OF Bus. Reg., 463 So. 2d 1130 (Fla. 1985)
- Moles v. Edward W. Gotti, M.D., 433 So. 2d 1380 (Fla. 2d DCA 1983)