Harvey v. Nuzum, DD--239
| Decision Date | 20 May 1977 |
| Docket Number | No. DD--239,DD--239 |
| Citation | 345 So.2d 1106 |
| Parties | Henry HARVEY, d/b/a Hi Neighbor Store, Petitioner, v. Charles A NUZUM, Director, Division of Beverage, Department of Business Regulation, State of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Aaron A. Green, Gainesville, for petitioner.
William A. Hatch, Tallahassee, for respondent.
Petitioner Harvey seeks review of a final order of the Division of Beverage (division) revoking his beverage license.
On May 14, 1975, the division filed an administrative complaint against Harvey, alleging that he had earlier pled guilty to one count of a drug violation, had been adjudicated guilty of same, and such conduct was grounds for revoking his license pursuant to Section 561.29 of the beverage laws.
A hearing was held by the Division of Administrative Hearings. On March 29, 1976, the hearing officer published his recommended order that the administrative complaint against Harvey be dismissed. In support of this recommendation, the hearing officer found that the division had failed to present any Admissible evidence that Harvey had violated any provision of Section 561.20, Florida Statutes, and that it also failed to offer evidence that Harvey even held a beverage license issued by the State.
On August 4, 1976, notwithstanding the recommended order of the hearing officer, the division revoked Harvey's beverage license. Without stating any specific findings of fact to refute those of the hearing officer, the division found that 'a preponderance (Division) contention that Henry Harvey of the evidence supports Petitioner's was convicted of a felony in Case No. 74--730, in Marion County, Florida, in violation of Florida Statutes 561.29 of the Beverage Laws'.
Harvey first argues that the Division's final order was devoid of the specific factual recitations required by statute when an agency has rejected the recommended order of a hearing officer. We agree.
Section 120.57(1)(b)(9), Florida Statutes (1975), states that an agency in its final order:
'. . . may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.'
In Powell v. Board of Public Instruction of Levy Co., 229 So.2d 308 (Fla.1st DCA 1969), this court stated:
And, as this court in Gentry v....
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