STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-3277

) SANDRA J. and THOMAS M. SPERA ) d/b/a LONG BRANCH, )

)

Respondent. )

)

RECOMMENDED ORDER

The Division of Administrative Hearings, by its duly designated Hearing Officer, Arnold H. Pollock, held a formal hearing in Daytona Beach, Florida, on March 23, 1983.

APPEARANCES

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

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

For Respondent: Did not appear and was not represented.

ISSUE

Whether Respondents' alcoholic beverage license should be disciplined for the reasons stated in Petitioner's Notice to Show Cause dated September 14, 1982.

BACKGROUND

By Notice to Show Cause dated September 14, 1982, Petitioner, Division of Alcoholic Beverages and Tobacco ("DABT"), charged Respondents, Thomas M. Spera and Sandra J. Spera (Respondents), with violation of the Beverage Law and implementing rules. Specifically, DABT alleged that on July 28, 1982, Respondents violated their Special Restaurant Liquor License by failing to derive at least 51 percent of their gross revenue from the sale of food and nonalcoholic beverages, in violation of Section 561.20(2)(a)3, Florida Statutes (1981), and Rule 7A-3.15(b), Florida Administrative Code.

Petitioner presented the testimony of Rufus Blanton, a beverage officer with DABT.

FINDINGS OF FACT

Based on the evidence presented, the following facts are determined:

1. The Long Branch was operating under DABT License No. 74-878 in License Series 4-COP-SRX. This type of license requires food and nonalcoholic beverage sales to constitute at least 51 percent of all sales.

   
   

2. Audit of the Long Branch's records, which were examined on a month-by- month breakdown of the sales for the period July 1 1981, to July 1, 1982, showed food and non- alcoholic beverage sales at 7.7 percent and alcoholic beverage sales at 92.3 percent of total sales. For the period July 1 through July 27, 1982, the ratio was 4.3 percent to 95.7 percent. At no time during the more than one year period audited did the food sales reach the required 51 percent.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

4. DABT is empowered to suspend or revoke a beverage license, or impose a civil penalty, for any violation of Chapter 561, Florida Statutes, the Beverage Law, and implementing rules. Section 561.20(1)(a), Florida Statutes (1981).

   
   

5. Special Restaurant Beverage Licenses are an exception to the quota limitations which otherwise apply to the issuance of beverage licenses. In order to qualify and maintain such a license, Section 561.20(2)(a)3, Florida Statutes, states that licenses such as in question here may be issued without limit to:

   
   

   Any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at tables at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages . . . .

   
   

6. Here, DABT seeks to discipline Respondents for allegedly failing to derive at least 51 percent of their gross revenue from the sale of food and nonalcoholic beverages. In a penal proceeding of this nature, the agency is required to prove its charge by clear and convincing evidence, by evidence as substantial as the consequences to the licensee. See Reid v. Florida Real Estate Commission, 188 So.2d 846 (2 DCA Fla. 1966); Walker v. Florida State Board of Optometry, 322 So.2d 612 (3 DCA Fla. 1975); Bowling v. Department of Insurance, 394 So.2d 165 (1 DCA Fla. 1981).

   
   

7. DABT, by rule, requires that the 51 percent be determined by "taking the average monthly gross revenue of the sales of food and nonalcoholic beverages over a period of any calendar year." Rule 7A-3.15(3)(b), Florida Administrative Code. Here, the facts found above establish that an audit of Respondents' sales over a period in excess of one year definitively shows the failure to even approximate 51 percent and clearly violates the rule, subjecting Respondents' license to discipline.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondents' License No. 74-878 be revoked.

RECOMMENDED this 31st day of March, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1983.

COPIES FURNISHED:

Thomas M. and Sandra J. Spera Long Branch

600 South Yonge Street Ormond Beach, Florida

Mr, Howard M. Rasmussen Director, Division of Alcoholic

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

Mr Gary R. Rutledge Secretary

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

Docket for Case No: 82-003277

Orders for Case No: 82-003277