STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABC LIQUORS, INC., )

(Store No. 126), )

)

Petitioner, )

)

v. ) CASE NO. 78-1911

) STATE OF FLORIDA, DEPARTMENT ) OF BUSINESS REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on September 6, 1979, at Room 215, Thomas Center "B", 302 Northeast Sixth Avenue, Gainesville, Florida.

APPEARANCES

For Petitioner: James E. Foster, Esquire

170 East Washington Street Orlando, Florida 32801

For Respondent: Harold F.X. Purnell, Esquire

General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

ISSUE

The question presented in this cause concerns the necessity that the Petitioner pay an additional $1,000 fee which is purportedly required by the conditions of Subsection 565.02(1)(g), Florida Statutes, if it is determined that the Petitioner has more than three permanent separate locations serving alcoholic beverages for consumption on its licensed premises, Store No. 126. This alleged fee requirement is associated with the Petitioner's application to the Respondent for an "increase in series" of its alcoholic beverage license from a Series 3-PS, which permits "package sales" for off-premises consumption only, to a Series 4-COP, which permits consumption of alcoholic beverages on the licensed premises. The Petitioner claims that the arrangement in the licensed premises does not exceed the limit of three permanent separate locations for serving alcoholic beverages and the Respondent claims that there are four permanent separate locations for serving alcoholic beverages for consumption on the licensed premises, thereby exceeding by one the allowable limit and causing the imposition of the $1,000 additional license tax set forth in Subsection 565.02(1)(g), Florida Statutes.

FINDINGS OF FACT

1. On March 24, 1977, the Petitioner, ABC Liquors, Inc., made an application with the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for an "increase in series" of its alcoholic beverage license for Store No. 126, located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. The increase requested was a change from a Series 3-PS license, which permitted "package sales" for off-premises consumption only, to a new Series 4-COP license, which permits consumption of alcoholic beverages on the licensed premises. For reference purposes, a copy of the front sheet of the application is attached to this Recommended Order and incorporated by reference as Attachment "A".

   
   

2. In compliance with the procedures of the Respondent, T. L. Ewing, the Respondent's employee, drew a sketch of the premises on the reverse side of the application referred to in Attachment "A", and a copy of that sketch is attached to this Recommended Order and incorporated by reference as Attachment "B". That sketch is an accurate representation of the interior floor plan of the licensed premises. The floor plan is further depicted in the Petitioner's Composite Exhibit 5, specifically 5E, which is a sketch of the "as-built" plans of the portion of the licensed premises which is the subject of this dispute. This Exhibit 5E, which was admitted into evidence, depicts the deployment of the bar area which is utilized under the terms of a Series 4-COP license applied for. Additionally, Petitioner's Exhibit 1 is a photographic depiction of the type bar arrangements and accessways between certain portions of the bar arrangement; however, this photograph is taken of a similar lounge area and is not the actual area in question. This depicts another one of the Petitioner's lounges, located in a separate licensed premises.

   
   

3. As described in the issue statement of this Recommended Order, the controversy presented for consideration involves a characterization of the bar areas shown in Attachment "B" and Petitioner's Exhibit 5E on the question of whether there are more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises. The significance of having more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises is revealed by a reading of Subsection 565.02(1)(g), Florida Statutes, which states:

   
   

   565.02 License fees; vendors; clubs; caterers and others.--

   (g) Vendors operating places of business where consumption on the premises is permitted and which have ,more than three permanent separate locations serving alcoholic beverages for consumption on the licensed premises shall pay in addition to the license tax imposed in paragraphs (b), (c), (d), (e), and (f), $1,000. However, such permanent separate locations shall not include service bars not accessible to the public or portable or temporary bars being used for a single occasion

   or event. Golf club license holders may operate service bars or portable or temporary bars on

   the grounds contiguous to their licensed premises and shall pay $100 for a certified copy of the club license, which shall be posted on the bar.

   The area contiguous to the licensed premises

   shall be considered an extension of the licensed premises upon payment of the fee, posting of the certified copy of the license, and notation of such extension upon the sketch accompanying the original license application.

   
   

   In reviewing the license application for "increase in series", the Respondent has taken the position that there are within the room which constitutes the lounge area, four separate locations and those four locations are made up of the rotating bar, and the perimeter bar areas which show three sections broken up by the east and west ramps separating those portions of the perimeter bar area. It is the contention of the Respondent that the word "location" is equivalent to the bar areas shown in the lounge room and, counting the rotating bar and the three separate perimeter sections, there would be four locations. Consequently, under the Respondent's theory, the Petitioner is required to pay an additional license tax in the amount of $1,000 for the extra location in excess of the allowable three locations.

   
   

4. The Petitioner asserts that the meaning of the word "location" as found in the subsection calls for more definitive separation than is found between the sections of the perimeter bar operation and that the design of the perimeter bar which allows for entrance and exit ramps through the center of the horseshoe shaped device which is the perimeter bar area, does not create the type definition contemplated by the law. To the Petitioner, separate rooms would be more in keeping with the legislative intent in drafting the requirement in Subsection 565.02(1)(g), Florida Statutes. Moreover, the Petitioner argues that the rampways which divide the perimeter bar into three sections were installed primarily for the purposes of safety and convenience and those efforts to allow for safety and convenience should not be used to unfair advantage by the Respondent in claiming that there are four locations as opposed to a maximum of two locations; those two locations being constituted of the rotating bar and a perimeter bar. The Petitioner claims that certain local ordinances require that exits be available within a specified number of feet of the position a patron might be found in during the course of an emergency and the Petitioner alludes to the fact that the rampways aid in the evacuation through the exits. The Petitioner did not demonstrate that the removal of the passageways would cause a violation of the ordinances dealing with emergency exit accessibility. Petitioner also states, and the facts reveal, that within the room proper there are six serving stations in the perimeter bar area, constituted of case registers, soda heads, sinks and other necessary structures to the service of patrons. These soda heads, waterlines, and drainage systems have common origins or terminus.

   
   

5. Other relevant facts presented in the case include the facts that the bar structure in terms of the shell of the various positions within the lounge area, are permanent installations, although the soda heads for mixed drinks may be moved around within the shell. There are swinging doors on the northern and southern fingers of the various sections of the perimeter bar area. The rampway is unobstructed unless one of those swinging doors is opened when a person is attempting to use the rampways. The dimensions and measurements within the lounge may be discerned by an examination of the other aspects of the Petitioner's Composite Exhibit 5, with the caveat that these design sheets must be considered in view of the "as-built" sketch found in Petitioner's Exhibit 5E. This statement is made because there were design changes made from the original proposal which relocated the dance floor in the lounge area and made other changes which may be seen in this review.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

7. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Petitioner should be required to pay an additional license tax of $1,000 in accordance with the provisions of Subsection 565.02(1)(g), Florida Statutes. This conclusion is based on the fact that the licensed premises "contains ore than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises. . ." See Subsection 565.02(1)(g), Florida Statutes. The rotating bar, and the three separate sections of the perimeter bar area each constitute locations within the meaning of the provision of law. They each have the capacity to fully serve patrons and they are permanent and separate locations. This opinion is held notwithstanding the fact that the rampways enhance the safety and convenience of the patrons of this licensed premises. Although the rampways offer an enhancement, the removal of the rampways would not cause a violation of local ordinances related to safety on the subject of emergency exits. Therefore, the design of the bar area within the room must be perceived as one primarily fashioned to suit the commercial needs of the Petitioner as opposed to the safety of the patrons. The Petitioner's argument that the term "location" requires a much more well-defined separation than is presented in this case, is not a convincing argument.

   
   

8. The Petitioner's counsel, in the course of the hearing de novo and through this post-hearing brief, has suggested that the Respondent may have violated the Petitioner's entitlement to equal protection under the laws of the State of Florida, in violation of the United States and Florida Constitutions. In particular, the Petitioner is concerned that the Respondent's interpretation of Subsection 565.02(1)(g), Florida Statutes, which equates the term "location" with the word "bar", and the Respondent's promulgation of Rules 7A-3.081 and 7A- 3.12, Florida Administrative Code, dealing with stadium, coliseums, auditoriums and airports, constitute equal protection abuses. When the point was raised in the hearing, the Hearing Officer stated that this form of equal protection claim was one not cognizable by the Division of Administrative Hearings; however the record was kept open until September 26, 1979, to allow the Petitioner to examine the records of the Respondent related to the treatment of other licensees who had ostensibly had more than three locations in a given place of business and not been required to pay the additional license tax and to allow the Petitioner to request that the record be reopened to proffer the discovered information. The Respondent was allowed to participate in any further proceedings.

   
   

9. Effective September 26, 1979, the Petitioner had not made such a request and the record was closed on that date.

   
   

10. The Petitioner has also advanced the position that Subsection 565.02(1)(g), Florida Statutes, may be void for vagueness reasons. No disposition is made of that argument because the Division of Administrative Hearings is without jurisdiction to pay upon the constitutionality of legislation.

RECOMMENDATION

It is recommended that the Petitioner, ABC Liquors, Inc., be required to pay an additional license tax of $1,000 in all applicable periods for its place

of business located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida.

DONE AND ENTERED this 3rd day of October, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Harold F.X. Purnell, Esq. General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

James E. Foster, Esq.

170 East Washington Street Orlando, Florida 32801

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABC LIQUORS, INC.,

(Store No. 126),

Petitioner,

v. CASE NO. 78-1911

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

Respondent.

/

FINAL ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on September 6, 1979 at Room 215, Thomas Center "B", 302 Northeast Sixth Avenue, Gainesville, Florida.

APPEARANCES

For Petitioner: James E. Foster, Esquire

170 E. Washington Street Orlando, Florida 32801

For Respondent: Harold F. X. Purnell, Esquire

General Counsel

Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301

ISSUE

The question presented in this cause concerns the necessity that the Petitioner pay an additional $1,000 fee which is purportedly required by the conditions of Subsection 565.02(1)(g), Florida Statutes, if it is determined that the Petitioner has more than three permanent separate locations serving alcoholic beverages for consumption on its licensed premises, Store No. 126. This alleged fee requirement is associated with the Petitioner's application to the Respondent for an "increase in series" of its alcoholic beverage license from a Series 3-PS, which permits "package sales" for off-premises consumption only, to a Series 4-COP, which permits consumption of alcoholic beverages on the licensed premises. The Petitioner claims that the arrangement in the licensed premises does not exceed the limit of three permanent separate locations for serving alcoholic beverages and the Respondent claims that there are four permanent separate locations for serving alcoholic beverages for consumption on the licensed premises, thereby exceeding by one the allowable limit and causing the imposition of the $1,000 additional license tax set forth in Subsection 565.02(1)(g), Florida Statutes.

FINDINGS OF FACT

On March 24, 1977, the Petitioner, ABC Liquors, Inc., made an application with the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for an "increase in series" of its alcoholic beverage license for Store No. 126, located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. The increase requested was a change from a Series 3-PS license, which permitted "package sales" for off-premises consumption only, to a new Series 4-COP license, which permits consumption of alcoholic beverages on the licensed premises. For reference purposes, a copy of the front sheet of the application is attached to this Final Order and incorporated by reference as Attachment "A".

In compliance with the procedures of the Respondent, T.L. Ewing, the Respondent's employee, drew a sketch of the premises on the reverse side of the application referred to in Attachment "A", and a copy of that sketch is attached to this Final Order and incorporated by reference as Attachment "B". That sketch is an accurate representation of the interior floor plan of the licensed premises. The floor plan is further depicted in the Petitioner's Composite Exhibit 5, specifically 5E, which is a sketch of the "as-built" plans of the portion of the licensed premises which is the subject of this dispute. This Exhibit 5E, which was admitted into evidence, depicts the deployment of the bar

area which is utilized under the terms of a Series 4-COPY license applied for. Additionally, Petitioner's Exhibit 1 is a photographic depiction of the type bar arrangements and accessways between certain portions of the bar arrangement; however, this photograph is taken of a similar lounge area and is not the actual area in question. This depicts another one of the Petitioner's lounges, located in a separate licensed premises.

As described in the issue statement of this Final Order, the controversy presented for consideration involves a characterization of the bar areas shown in Attachment "B" and Petitioner's Exhibit 5E on the question of whether there are more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises. The significance of having more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises is revealed by a reading of Subsection 565.02(1)(g), Florida Statutes, which states:

565.02 License Fees; vendors; clubs; caterers and others.--

* * *

(g) Vendors operating places of business where consumption on the premises is permitted and which have more than three permanent separate locations serving alcoholic beverages for consumption on the licensed premises shall pay in addition to the license tax imposed in paragraphs (b), (c), (d), (e), and (f), $1,000. However, such permanent separate locations shall not include service

bars not accessible to the public or portable or temporary bars being used for a single occasion or event. Golf club license holders may operate service bars or portable or temporary bars on the grounds contiguous to their licensed premises and shall pay $100 for a certified copy of the club license, which shall be posted on the bar. The area contiguous to the licensed premises shall

be considered an extension of the licensed premises upon payment of the fee, posting of the certified copy of the license, and notation of such extension upon the sketch accompanying the original license application.

In reviewing the license application for "increase in series", the Respondent has taken the position that there are within the room which constitutes the lounge area, four separate locations and those four locations are made up of the rotating bar, and the perimeter bar areas which show three sections broken up by the east and west ramps separating those portions of the perimeter bar area. It is the contention of the Respondent that the word "location" is equivalent to the bar areas shown in the lounge room and, counting the rotating bar and three separate perimeter sections, there would be four locations. Consequently, under the Respondent's theory, the Petitioner is required to pay an additional license tax in the amount of $1,000 for the extra location in excess of the allowable three locations.

The Petitioner asserts that the meaning of the word "location" as found in the subsection calls for more definitive separation than is found between the sections of the perimeter bar operation and that the design of the perimeter bar which allows for entrance and exit ramps through the center of the horseshoe

shaped device which is the perimeter bar area, does not create the type definition contemplated by the law. To the Petitioner, separate rooms would be more in keeping with the legislative intent in drafting the requirement in Subsection 565.02(1)(g), Florida Statutes. Moreover, the Petitioner argues that the rampways which divide the perimeter bar into three sections were installed primarily for the purpose of safety and convenience and those efforts to allow for safety and convenience should not be used to unfair advantage by the Respondent in claiming that there are found locations as opposed to a maximum of two locations; those two locations being constituted of the rotating bar and a perimeter bar. The Petitioner claims that certain local ordinances require that exits be available within a specified number of feet of the position a patron might be found in during the course of an emergency and the Petitioner alludes to the fact that the rampways aid in the evacuation through the exits. The Petitioner did not demonstrate that the removal of the passageways would cause a violation of the ordinances dealing with emergency exit accessibility.

Petitioner also states, and the facts reveal, that within the room proper there are six serving stations in the perimeter bar area, constituted of cash registers, soda heads, sinks and other necessary structures to the service of patrons. These soda heads, waterlines, and drainage systems have common origins or terminus.

Other relevant facts presented in the case include the facts that the bar structure in terms of the shell of the various positions within the lounge area, are permanent installations, although the soda heads for mixed drinks may be moved around within the shell. There are swinging doors on the northern and southern fingers of the various sections of the perimeter bar area. The rampway is unobstructed unless one of those swinging doors is opened when a person is attempting to use the rampways. The dimensions and measurements within the lounge may be discerned by an examination of the other aspects of the Petitioner's Composite Exhibit 5, with the caveat that these design sheets must be considered in view of the "as-built" sketch found in Petitioner's Exhibit 5E. This statement is made because there were design changes made from the original proposal which relocated the dance floor in the lounge area and made other changes which may be seen in this review.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

2. Based upon a full consideration of the facts herein, it is concluded as a matter of law that the Petitioner should be required to pay an additional license tax of $1,000 in accordance with the provisions of Subsection 565.02(1)(g), Florida Statutes. This conclusions is based on the fact that the licensed premises "contains more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises . . ." See Subsection 565.02(1)(g), Florida Statutes. The rotating bar, and the three separate sections of the perimeter bar area each constitute locations within the meaning of the provision of law. They each have the capacity to fully serve patrons and they are permanent and separate locations. This opinion is held notwithstanding the fact that the rampways enhance the safety and convenience of the patrons of this licensed premises. Although the rampways offer an enhancement, the removal of the rampways would not cause a violation of local ordinances related to safety on the subject of emergency exits. Therefore, the design of the bar area within the room must be perceived as one primarily fashioned to suit the commercial needs of the Petitioner as opposed to the safety of the patrons. The Petitioner's argument that the term "location"

requires a much more well-defined separation than is presented in this case, is not a convincing argument.

ORDER

The Petitioner, ABC Liquors, Inc., is required to pay an additional license tax of $1,000 in all applicable periods for its place of business located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida.

DONE AND ORDERED this 29th day of October, 1979, at Tallahassee, Florida.

CHARLES A. NUZUM, DIRECTOR

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Copies furnished to: James E. Foster, Esquire

Harold F. X. Purnell, Esquire

Docket for Case No: 78-001911

Orders for Case No: 78-001911