STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENNIE L. DAWSON, d/b/a DISCO 54, )

)

Petitioner, )

)

vs. ) CASE NO. 83-107

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on February 8, 1983 in Miami, Florida.

APPEARANCES

For Petitioner: Bennie L. Dawson, pro se

1860 Northwest 81st Street Miami, Florida 33147

For Respondent: Janice G. Scott, Esquire

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

ISSUE

Whether petitioner's application for a special restaurant alcoholic beverage license should be denied on the ground that the restaurant premises does not meet the requirements of Section 561.20, Florida Statutes, and Rule 7A- 3.15, Florida Administrative Code.

BACKGROUND

Petitioner Bennie L. Dawson, d/b/a Disco 54 applied for a special restaurant alcoholic beverage license (SRX Series, 4-COP). On October 26, 1982, respondent Division of Alcoholic Beverages and Tobacco "DABT") denied the application, concluding that the "premises does not meet requirements established in Administrative Rule 7A-3.15 and F.S. 561.20." On November 3, 1982, petitioner challenged the denial and requested a Section 120.57(1) hearing.

On January 10, 1983, more than two months later, DABT forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for February 8, 1983.

At hearing, petitioner testified in his own behalf and offered Exhibit Nos.

1 through 10 into evidence. 1/ DABT called Beverage Officers Debra Pfitzenmaier and Francisco Oliva as its witnesses and offered Exhibit Nos. 1 through 6 into evidence. 1/

Posthearing findings of fact were submitted by February 25, 1983. No transcript of hearing has been filed.

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

FINDINGS OF FACT

1. Petitioner seeks a special restaurant alcoholic beverage license (SRX Series, 4-COP) for a restaurant and lounge known as "Disco 54", ("the premises") located at 1205 Northwest 54th Street, Miami, Florida. The sign on the front of the premises indicates that it is a restaurant. It has served, and proposes to serve bonafide, full course meals including salad, entree, dessert, beverage, and bread and butter. It is licensed as a restaurant by the Division of Hotels and Restaurants, the City of Miami and Dade County, and has satisfied all local zoning and health department requirements. (Testimony of Dawson, Oliva, P-3, R- 6)

   
   

2. The premises contains an area set-up with tables and chairs, a dance floor, a disc jockey booth, and a kitchen and storage area. Full course meals will be served at all times the premises is operating. Disco-type dancing will begin in the evening at 9:00 P.M. (.Testimony of Dawson, P-10)

   
   

3. The premises has at least 4,000 square feet of floor space under one roof. It has a sufficient number of chairs to seat at least 200 patrons and a sufficient quantity of tableware and dishware to serve meals to at least 200 people. (Testimony of Dawson, Oliva)

   
   

4. The premises also has sufficient tables to seat and serve at least 200 patrons. Tables vary in size. Many measure 36" X 36", which can accomodate four patrons; some tables are 36" X 72" and can accomodate six. There are eight banquet tables, each accommodating ten, and there are four long tables, 72" wide, each accommodating eight people. (Testimony of Dawson)

   
   

5. The kitchen, smaller than expected for a restaurant of this size, operates with the most modern and highly efficient cooking, food warming, and dishwasher equipment. Cooking equipment consists of a pressure smoker, with six racks, which can cook and smoke enough ribs at one time to serve 65 people in under one-half hour, or cook 48 chopped steak patties in five-ten minutes; and two pressure fryers, each of which can fry 15 pounds of chicken in six minutes. There are two six-tray food warmers which are capable of storing a total of 576 (8 oz.) servings. There are two large freezers capable of holding enough food to serve 900 people. (For example, they can hold almost 1,000 steaks.) There are also two smaller refrigerator units. One standard size gas range is used principally to boil potatoes. The kitchen contains an automatic dishwasher which has a recycling time of 90 seconds and a capacity of 25 units. (Testimony of Dawson, P-6, P-1, P-2, P-4, P-7, P-8)

   
   

6. Though relatively small in size, the kitchen equipment can prepare large quantities of food because it is so modern and highly efficient. Food can be prepared sufficient to serve at least 200 people at one time. Indeed, petitioner has, in the past, prepared enough food to serve 350 people. Because

   the entree is cooked by pressure smoker and pressure fryer, less food preparation space and fewer pots and pans are needed.

   
   

7. The foregoing finding is based on the opinion testimony of petitioner, who has personally tested and used this kitchen equipment, and has worked in commercial kitchens for many years. The contrary opinions of Beverage Officers Oliva and Pfitzenmaier are rejected as less credible since neither officer has any particular expertise in this area and both admitted their unfamiliarity with the food cooking and warming capabilities of the pressure fryer, pressure smoker, and food warming equipment. (Testimony of Dawson, Oliva, and Pfitzenmaier)

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. In licensing proceedings, the applicant must establish his entitlement to the requested license. See J.W.C., Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). This does not mean, however, that an agency is relieved from the requirement to support its denial with evidence sufficient for the purpose.

   
   

   For example, creditable and credited evidence submitted by the applicant for a license may not be ignored except upon the requisite kind and quality of contrary evidence. No agency is authorized to stand mute and arbitrarily disbelieve creditable evidence

   
   

   Id. at 790.

   
   

10. In order to qualify for a special restaurant alcoholic beverage license, petitioner must show that he can serve at least 200 patrons at tables and that he has at least 4,000 square feet of floor space. Section 561.20(2)(b), Florida Statutes (1981); Chapter 71-862, Laws of Florida (1971); Rule 7A-3.15(3), Florida Administrative Code. DABT agrees that, in all other respects, petitioner is entitled to the requested license.

    
    

11. Measured by these standards, it is concluded that petitioner has sustained his burden of proof and convincingly established that his premises is capable of serving full course meals to at least 200 patrons seated at tables and that he has at least 4,000 square feet of floor space. DABT's evidence is not of sufficient kind or quality to overcome petitioner's prima facie case. The requested license must, therefore, be granted.

    
    

12. The parties' proposed findings of fact which are incorporated herein are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolving the issue presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner's application for a special restaurant alcoholic beverage license (SRX, Series 4-COP) be GRANTED.

DONE and RECOMMENDED this 7th day of April, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 7th day of April, 1983.

ENDNOTE

1/ Petitioner's and Respondent's Exhibits will be referred to as P-" ", and R-" ", respectively.

COPIES FURNISHED:

Mr. Bennie L. Dawson

1860 Northwest 81st Street Miami, Florida 33147

Janice G. Scott, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge, Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-000107

Orders for Case No: 83-000107