STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, DEPARTMENT OF ) BUSINESS REGULATION, STATE OF ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1591

) DABT NO. 8-77-263-A

P & D, INC., t/a PETE AND )

LENNY'S, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on January 11, 1978 at Lauderhill, Florida.

APPEARANCES

For Petitioner: Dennis LaRosa, Esquire

Division of Alcoholic Beverage and Tobacco 725 South Bronough Street

Tallahassee, Florida 32304

For Respondent: David M. Rogero, Esquire

One Southeast 3rd Avenue Miami, Florida 33131

ISSUES

By Notice to Show Cause filed August 24, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the license of P & D, Inc. t/a Pete and Lenny's. As grounds therefor it is alleged that on or about June 29, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course wools had been discontinued. Three witnesses were called by Petitioner, two witnesses were called by Respondent and one exhibit was admitted into evidence.

FINDINGS OF FACT

1. P & D, Inc. t/a Pete and Lenny's holds a 4 COP special restaurant beverage license and the Hearing Officer has jurisdiction over the parties and the violations alleged.

   
   

2. On or about 12:30 a.m. June 29, 1977 beverage agents Meek and Shepherd entered Pete and Lenny's, seated themselves at the bar and ordered drinks. After finishing their drink they ordered a second drink and inquired of the

   bartender, Richard Bohan, if they could get food. He replied that they could get sandwiches at the Banana Boat next door. Further questioning by the agents elicited responses that Respondent had stopped serving and the cook had been transferred next door, that the Banana Boat served sandwiches until 1:30 a.m., that Respondent usually offered New York strip steaks but "not this late", and that the Banana Boat and Pete and Lenny's were owned by the same corporation.

   
   

3. After identifying themselves as beverage agents and asking for the manager, Meek and Shepherd inspected the kitchen and restaurant area. Inspection of the kitchen revealed the only cooking equipment to be a microwave oven, empty icebox at 420 F, no evidence that food had been prepared in the

   kitchen for several days, insufficient silver to serve 200 diners simultaneously as required by regulations for special restaurant licenses, and musicians instrument cases occupying a substantial portion of the kitchen floor. Unopened boxes of silver was produced from the storeroom in sufficient quantity to meet the minimum requirements of the regulations.

   
   

4. Respondent's witnesses testified that the icebox had been inoperative for a day or two and food had been removed to next door, but that they were not refusing to serve full course meals. The only meal offered appears to have been the New York strip steak either cooked next door or in the microwave oven. No facilities were available in the kitchen with which to prepare vegetables and these witnesses testified potato salad was served as the vegetable.

   
   

5. Pete and Lenny's is a night club where the music is loud and continuous. When the live band is on break recorded music is provided.

   
   

6. On the evening of the inspection by beverage officers Meek and Shepherd little, if any, food had been served in Pete and Lenny's.

   
   

   CONCLUSIONS OF LAW

   
   

7. Rule 7A-3.15 Florida Administrative Code provides in pertinent part:

   
   

   All restaurants holding a special restaurant license, in addition to the quota limitations imposed by Section 561.20(1), Florida Statutes, must discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued. A hotel, motel, or motor court holding a license issued under Section 561.20(2) Florida Statutes, or any applicable special act, must discontinue the sale of alcoholic beverages during periods when such hotel, motel, or motor court is closed.

   
   

   The Division considers the following as the minimum requirements for bona fide full course meals, prepared.

   1. Salad

   2. Entree

   3. Dessert

   4. Beverage

   5. Bread and butter

      
      

8. Here the evidence was uncontradicted that Respondent holds a special restaurant operator's license, Rule 7A-3.15 Florida Administrative Code is

   applicable to it, and that liquor was sold to the beverage agents at or about 12:30 - 1:00 a.m. on June 29, 1977.

   
   

9. The testimony of the beverage agents that the dryness of the kitchen, emptiness of the iceboxes, and minimum kitchen equipment strongly militated against the preparation of food or service of meals was not contradicted. The testimony of Respondent's witnesses that they were ready and willing to serve meals does not square with the information provided by Respondent's agent on duty that it would be necessary to go to the Banana Boat next door to obtain food and the only food obtainable there was sandwiches.

   
   

10. From the foregoing it is concluded that P & D, Inc. t/a Pete and Lenny's had discontinued the service of meals at 12:30 a.m. on June 29, 1977 while still serving alcoholic beverages.

    
    

11. Following the conclusion of Respondent's case petitioner introduced the Administrative Record of Respondent which shows that on June 3, 1974 Respondent had been charged with failure to derive at least 51 percent of its revenue from the sale of food in violation of Rule 7A-3.15(b) Florida Administrative Code and that on July 21, 1977 Respondent stipulated to and paid an administrative fine of $500. It is therefore,

RECOMMENDED that the 4 COP special restaurant license of P & D, Inc. t/a Pete and Lenny's be suspended for a period of 45 days.

DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Dennis LaRosa, Esquire Division of Alcoholic

Beverage & Tobacco 725 South Bronough Street

Tallahassee, Florida 32304

David M. Rogero, Esquire One Southeast 3rd Avenue Miami, Florida 33131

Docket for Case No: 77-001591

Orders for Case No: 77-001591