STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LITTLE ITALY AT THE ATRIUM, ) INC., d/b/a LITTLE ITALY )

RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2384

)

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lauderhill, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on December 19, 1979. The parties were represented by counsel:

APPEARANCES

For Petitioner: Sheldon Golding, Esquire

700 Southeast 3rd Avenue, Suite 200 Ft. Lauderdale, Florida 33316

For Respondent: Harold F.X. Purnell, Esquire

25 South Bronough Street Tallahassee, Florida 32301

After petitioner applied to respondent for a beverage license, Charles A. Nuzum, respondent's Director, wrote Petitioner, advising that the application had been disapproved because:

Non-licensed alcoholic beverage sales being conducted on the applicant premises are indicative of a disregard for beverage law, and create a lacking of the required good moral character.

The letter disapproving the application cited Section 561.15, Florida Statutes.

FINDINGS OF FACT

1. Mrs. Joan Marotta is president, secretary and treasurer of petitioner Little Italy at the Atrium, Inc. Mrs. Marotta took over the management of Little Italy Restaurant sometime before November 30, 1978.

2. At all pertinent times, Little Italy Restaurant has had no license to sell alcoholic beverages of any kind, but has had a policy of furnishing wine to its patrons, without additional charge. Since September of 1977, Little Italy Restaurant has advertised in the Hallandale Digest. These advertisements list the house specialties and state "Complimentary Glass Of Wine." Petitioner's exhibit No. 1. Ordinarily, a single glass of wine accompanies dinner. But Joseph J. Rocaro remembers occasions when he and possibly another diner in his party received more than one complimentary glass of wine while eating at Little Italy Restaurant. Vito Raguso has also had more than one glass

   of wine with a meal, at no extra charge, and was served a complimentary glass of wine without ordering a meal.

   
   

3. In November of 1978, Officer Pollack of the Hallandale Police Department ate at Little Italy Restaurant on two occasions. Both times he was served wine. On the first occasion, he had a single glass of wine for which he was not charged. During the later visit, he had two glasses of wine, and was charged for the second glass of wine. Officer Pollack reported this incident to respondent.

   
   

4. As a result, David Shomers and Jean Mignolet, employed by respondent as beverage officers, arrived at the Little Italy Restaurant at 7:30 o'clock on the evening of November 30, 1978. Disguisd as a young couple going out to eat on their own money, they ordered clams casino, linguini and egg plant parmesan. Their waiter, Joseph DeMartini, in his second or third day of employment with petitioner, told them that wine was complimentary. At their request, he brought each of them second glass of wine. When they received their check, they inquired about the item "2R.W. $1.00." The waiter informed them that he had been told by Salvador Maita to charge for a second glass of wine. Officers Shomers and Mignolet then ordered a third glass of wine each. The waiter brought the wine and altered their check to add another dollar to their bill.

   
   

5. Salvador Maita is semi-retired from the plumbing supplies business. He was a good friend of Mrs. Marotta's father and occasionally fills in for Mrs. Marotta. On the night of November 30, 1978, at her request, he had taken over management of the restaurant, while she went shopping. After their meal, Officer Shomers called the police who, upon arriving at Little Italy Restaurant, arrested Messrs. Maita and DeMartini, and seized a gallon of chablis and opened bottles of champagne, Marsala and brandy.

   
   

6. After obtaining a search warrant, Officer Shomers returned on December 12, 1978, and seized additional bottles of wine, three carafes of wine from the waiters' station and various bottles of liqueur." Also seized on December 12, 1978, were "guest checks" on one of which there appeared "1 Caroff --- 300." Respondent's exhibit No. 4.

   
   

7. The champagne was the uncontroverted residue of a recent celebration of the birth of a child to the chef's wife. The brandy was used for cheesecake and other cooking purposes. Marsala was used in the preparation of Veal Marsala.

   
   

8. Mrs. Marotta testified convincingly that whenever she hires a new waiter, she instructs him not to charge for wine. She had no knowledge beforehand that the waiter DeMartini was charging for wine, as he did beyond one glass per patron. At the hearing, neither petitioner nor her counsel was aware that giving wine away in connection with selling meals at Little Italy Restaurant might violate any law.

   CONCLUSIONS OF LAW

   
   

9. Section 561.15(1), Florida Statutes (1979), provides that "[l]icenses shall be issued only to persons of good moral character, who are not less than

   18 years of age." Respondent takes the position that "[n]on-licensed alcoholic beverage sales . . . create a lacking of the required good moral character." As counsel for respondent points out in his incisive memorandum of law, the "transfer . . . [or] gift of an alcoholic beverage in connection with . . . a transfer of property other than an alcoholic beverage for a consideration" constitutes a sale within the meaning of the beverage law. Section 561.01(9), Florida Statutes (1979). Such sales violate Section 562.12(1), Florida Statutes (1979).

   
   

10. The evidence showed that Mrs. Maratto actively implemented the restaurant's policy of furnishing "complimentary" wine to its patrons. But it was also clear from the evidence that she was unaware that this violated any law. Giving wine away is not malum in se. The evidence did not show that any charges for wine were ever made with her prior knowledge or acquiescence. In these circumstances, it is impossible to conclude that the practices at the restaurant reflect in any way unfavorably on her moral character.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent issue the beverage license for which petitioner has applied.

DONE and ENTERED this 15th day of January, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Sheldon Golding, Esquire 700 Southeast 3rd Avenue Suite 200

Ft. Lauderdale, Florida 33316

Harold F.X. Purnell, Esquire General Counsel

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 79-002384

Orders for Case No: 79-002384