Abusalameh v. Department of Business Regulation, Div. of Alcoholic Beverages and Tobacco, 92-3499

• Decision Date: 01 December 1993
• Docket Number: No. 92-3499,92-3499
• Citation: 627 So.2d 560
• Parties: 18 Fla. L. Weekly D2518 Aimen Mahoud ABUSALAMEH, d/b/a PIC A PAC, Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
• Court: Florida District Court of Appeals

Page 560

627 So.2d 560

18 Fla. L. Weekly D2518

Aimen Mahoud ABUSALAMEH, d/b/a PIC A PAC, Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.

No. 92-3499.

District Court of Appeal of Florida Fourth District.

Dec. 1, 1993.

Peter N. Hanna, Fort Lauderdale, for appellant.

John F. Gilroy, Tallahassee, for appellee.

STONE, Judge.

We reverse a final order revoking Appellant's alcoholic beverage license without a hearing. The record reflects confusion concerning the cancellation of, and subsequent failure to reschedule, the only noticed hearing. Consequently, there was an "equitable tolling." Machules v. Department of Admin., 523 So.2d 1132 (Fla.1988); Castillo v. Department of Admin., Div. of Retirement, 593 So.2d 1116 (Fla. 2d DCA 1992); Stewart v. Department of Corrections, 561 So.2d 15 (Fla. 4th DCA 1990).

It is undisputed that Appellant received a notice to show cause, scheduling an informal conference with the department on August 6, 1992, "to determine if you desire administrative proceedings and hearings or if you wish to stipulate to the charges." The notice informed Appellant that if the charges were not resolved by the informal conference, he could request a hearing pursuant to chapter 120, Florida Statutes. The notice form sets out the procedure for requesting the hearing, but Appellant did not follow this procedure. Instead, his counsel wrote to the official, Captain Smith, who was to conduct the August 6th conference, entering an appearance, requesting a continuance of the conference, and asking that the proceeding be put "on hold." The letter ended, "May I please hear from you?" This letter is in the record. It is also undisputed that the lawyer subsequently spoke to Captain Smith's secretary on August 5th and was told the hearing would be cancelled and that he should call later that day for a new date. The attorney asserts that he did call but that the captain went out of town. Counsel also claims that he wrote a subsequent letter, but the department apparently denies receiving it. The record does not reflect any additional correspondence from the department.

In November, the department acted, concluding Appellant had waived his right to a hearing and summarily revoking his liquor license. Appellant contends that the department may not determine that his right to further notice and a hearing was waived given the earlier, albeit procedurally flawed, communications with Captain...