STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-048

) PETE ROSE CORPORATION d/b/a ) FAT CATS, )

)

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 January 29, 1980.

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: No appearance was made

By notice to show cause, petitioner alleged that or about May 8, 1979, . .

. [respondent] did sell an alcoholic beverage when full course meals were not available . . . contrary to BR 7A-3.15"; and that, on or about the same date, respondent "failed to maintain seating for 200 or more patrons contrary to BR 7A-3.15(e), Chapter 61-597, (HB 3094).

FINDINGS OF FACT

1. At about 4:00 o'clock on the afternoon of May 8, 1979, petitioner's officers David William Shomers and Muriel Snipes Waldmann, entered respondent's place of business. At that time, Sherry Ann Armetto was behind the bar. When Officers Shomers and Waldmann asked Ms. Armetto for a meal she told them that the cook had not yet arrived. Officer Shomers and Officer Waldmann then each ordered a Scotch and soda, and both were served. At about 5:00 o'clock, the cook was still nowhere to he found. Officer Shomers counted the places available for people to sit down and eat, including seats in the bar, and determined that there were only 161 such places.

   
   

2. Even though Ms. Armetto had worked for respondent as a bar tender for five or six months before the inspection on May 8, 1979, she had never been advised to refrain from selling alcoholic beverages when the kitchen was closed. She was so advised, however, after the events of May 8, 1979. Ricardo John Gutierrez had worked for the business four or four and one half years as of May

   of 1979. He was never told not to sell alcoholic beverages while meals were not sold.

   
   

3. Petitioner initiated the present proceedings on or about July 3, 1979. In May of 1979, respondent Pete Rose Corporation held license number 16-790 SRX, an "ALCOHOLIC BEVERAGE LICENSE FOR THE PERIOD OCTOBER 1, 1970, THRU SEPTEMBER 30, 1979." Petitioner's exhibit No. 1. Respondent has not renewed the license since. As a condition of this beverage license, respondent was required to maintain at least 4,000 square feet, sufficient tables, chairs, china, other equipment and personnel to serve food to 200 persons, Officer Shomers testified.

   
   

   CONCLUSIONS OF LAW

   
   

4. Respondent holds a special restaurant license. See Rule 7A-3.16, Florida Administrative Code. Officer Shomers' testimony as to the conditions of respondent's license showed that the license was issued Pursuant to Ch. 61-579, Laws of Florida (1961), as alleged in the notice to show cause. Section 1 of Chapter 61-579, Laws of Florida (1961), amended Section 561.20(2), Florida Statutes (1963), to read:

   
   

   In any county in the state having a population of not less than forty-five thousand (45,000) and not more than fifty-one thousand (51,000) according to the latest official decennial census, no such limitation

   . . . shall prohibit the issuance of

   a special license to . . . any bona fide restaurant containing all necessary equipment and supplies for and serving full course meals regularly and having accommodations at all times for service of two hundred (200) or more patrons at

   tables and occupying more than four thousand (4,000) square feet of space, . . . providing . . . that the beverage director shall suspend any such license if such restaurant ceases to be a bona fide restaurant as required as a prerequisite

   for obtaining such license . . .

   
   

   As subsequently amended, Section 561.20, Florida Statutes (1979), exempts from quota requirements licenses issued to "[a]ny restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at one time Section 561.20(2)(a)3., Florida Statutes (1979).

   
   

5. All restaurants "holding a special restaurant license . . . must discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued." Rule 7A-3.15, Florida Administrative Code. The evidence showed that respondent violated this requirement on and possibly before May 8, 1979, but not afterwards. This infraction justifies no disciplinary action more serious than suspension of respondent's license.

   
   

6. A restaurant like respondent's must be equipped with the necessary china and table ware and seating to handle the minimum capacity required by general law or special act." Rule 7A-3.15(e), Florida Administrative Code. The general law in effect at the time respondent originally obtained its license required minimum capacity for 200 persons, although existing law sets the

   minimum capacity requirement at 150 persons. The evidence showed that respondent had seating to handle one hundred sixty-one persons, including places in the bar. The applicable rule specifies that seating "at bars or counters shall not be counted in the minimum seating requirement," Rule 7A-3.15(f), Florida Administrative Code, but the evidence did not disclose how many seats were at a bar or counter. Petitioner has grounds to suspend respondent's special license, even though the condition of the license which respondent has been shown to have breached would not attach to a special restaurant license issued today. Petitioner is not authorized to revoke respondent's license on this ground, however. Section 561.20(2), Florida Statutes (1963), Chapter 61- 579, Laws of Florida (1961).

   
   

7. By its terms, respondent's license would have expired on September 30, 1979. Since the present proceedings began before that date, however, petitioner is not authorized to cancel respondent's license until the proceedings are concluded. Section 561.27(2), Florida Statutes (1979), ("licenses not renewed .

. . will be canceled by the division unless such license is involved in litigation") Compare Sopp v. Florida Construction Industry Licensing Board, 353 So.2d 174 (Fla. 4th DCA 1977).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the notice to show cause, thereby terminating these proceedings and allowing respondent's license to expire; and then cancel respondent's license.

DONE and ENTERED this 15th day of February, 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:

James Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Pete Rose Corporation d/b/a Fat Cats

2590 S. State Road 7 Miramar, Florida

Docket for Case No: 80-000048

Orders for Case No: 80-000048