STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELL HARBOR GROUP, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-3956

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 28, 1985, in Ft. Myers, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

For Petitioner: John Schneider, Esquire

Sanibel Island Hilton Inn 937 Gulf Drive

Sanibel Island, Florida 33957

For Respondent: Thomas L. Barnhart, Esquire

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

ISSUE

The ultimate issue in this case is whether the Petitioner's application for a special (SRX) restaurant alcoholic beverage license should be granted.

INTRODUCTION

At the hearing the Petitioner presented the testimony of one witness, Mr. Joseph A. Galanis, and offered three exhibits into evidence, all of which were received. The Respondent offered three exhibits into evidence, all of which were received. The Respondent did not call any witnesses.

Subsequent to the hearing a transcript of the hearing was filed with the Division of Administrative Hearings on March 13, 1985, and proposed recommended orders containing proposed findings of fact and conclusions of law were filed by both parties on April 1, 1985. Careful consideration has been given to the proposed recommended orders in the formulation of this Recommended Order.

FINDINGS OF FACT

Based on the stipulations of the parties, on the testimony of the witness at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact:

Stipulated Facts

1. The special restaurant license is sought for the Brass Elephant Restaurant within the corporate limits of the City of Sanibel, Florida.

   
   

2. The restaurant is located on a 7.7-acre parcel of property adjacent to the Gulf of Mexico.

   
   

3. The restaurant is located within a resort complex known as the Sanibel Island Hilton.

   
   

4. Seating within the restaurant itself is limited to 100 seats by court order and zoning regulations of the City of Sanibel.

   
   

5. No bar is maintained within the restaurant itself.

   
   

6. The Brass Elephant Restaurant derives more than 51 percent of its revenue from the sale of food and non-alcoholic beverages.

   
   

7. The Brass Elephant Restaurant has in excess of 2,500 square feet of service area.

   
   

8. The Sanibel Island Hilton is being operated as a first-class destination resort.

   
   

9. Hilton Corporation has stringent constraints on the operation of such a resort and has made special exceptions for this resort in light of the special zoning and building restrictions imposed by the City of Sanibel on the resort area; these special exceptions allow, inter alia, separate buildings and outside walkways.

   
   

10. The restaurant in question is an accessory use to the Hilton Hotel, and is not an autonomous restaurant.

    
    

11. There is no separate sign advertising the restaurant as an individual entity. Access can only be gained from the hotel grounds.

    
    

12. By virtue of the development permit issued by the City of Sanibel, the Hilton is precluded from operating a saloon, lounge or restaurant separate and apart from its food service operation.

    
    

    Additional Facts Proved at Hearing

    
    

13. The Petitioner also has a banquet facility on the premises known as the "Commodore Suite." It is located approximately 250 feet from the Brass Elephant. Meals for the Commodore Suite are prepared at the kitchen facility in the Brass Elephant.

    
    

14. On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150.

15. The Petitioner has available on the resort premises all of the necessary equipment to serve more than 150 persons at one time in the Brass Elephant, though the City of Sanibel prohibits it from having more than 100 seats in the restaurant.

    
    

16. In addition to the restaurant and the banquet room, there is also a pool bar on the Petitioner's resort premises. The restaurant, pool bar, and banquet room are physically separate from each other. The distance between the restaurant and the banquet room is approximately 250 feet and the distance between the restaurant and pool bar is about the same. There are no separate walkways from the various buildings to the restaurant. To walk from the restaurant to the banquet room, one has to walk across a street, part of a parking lot, and around or under one of the other buildings at the resort. To walk from the pool bar to the restaurant or the banquet room, one has to walk around or through another building.

    
    

17. The foregoing paragraphs numbered 1 through 16 comprise all of the findings of fact in this case. Such findings include the substance of all of the findings proposed by the Petitioner and the substance of the vast majority of the facts proposed by the Respondent. To the extent I have not made certain proposed findings of fact, such proposed findings are irrelevant and immaterial to the issues to be decided in this case.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing and on the applicable principles of law, I make the following conclusions of law:

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. (See, generally, Section 120.57(1), Florida statutes.)

    
    

19. Section 561.20, Florida Statutes, which limits the number of liquor licenses which may be issued in a county, contains the following relevant language about so-called "special" licenses:

    
    

    (2)(a) No such limitation of the number of licenses as herein provided shall henceforth prohibit the issuance of a special license to:

    1. ***

    2. ***

    3. 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 non- alcoholic beverages; however, no restaurant granted a special licensure on or after January 1, 1958, pursuant to general or special law shall operate as a package store, nor shall intoxicating beverages be sold under such license after the hours of serving food have elapsed.

20. In implementation of the foregoing Rule 7A-3.14, Florida Administrative Code, provides, inter alia, that applications for special restaurant licenses:

    
    

    . . . may not include in the required footage any space contained in an uncovered or not permanently covered area adjacent to the premises. Any kitchens, pantries, storage rooms, toilets, etc., used exclusively in the operation of the restaurant may be included in tide required footage.

    
    

21. And Rule 7A-3.15(3), Florida Administrative Code, includes the following provisions:

    
    

    1. The following criteria will be used in determining whether or not the holder of a specified restaurant license is a bona fide restaurant:

       1. Tables of adequate size to accommodate the service of full course meals in accordance with the number of chairs found at that table.

          (b) ***

          (c) ***

          1. The business is advertised and held out to the public to be a place where meals are prepared and served, space being provided with adequate kitchen and dining room equipment and having employed such number and kinds of employees for preparing, cooking, and serving meals for guests; the primary operation of such restaurant shall be for the preparation, cooking, and serving of meals and not for the sale of alcoholic beverages.

          2. The restaurant shall be equipped with the necessary china and tableware and seating to handle the minimum seating special act.

          3. Seating at bars or counters shall not be counted in the minimum seating requirement except as otherwise provided by special act.

          
          

22. Section 561.20(2)(e), Florida Statutes, reads as follows:

    
    

    (e) The owner of a hotel, motel, or motor court may lease his restaurant operation to another corporation, individual, or business association that, upon meeting the requirements for a restaurant license set forth in this chapter, may operate independently of the hotel, motel, or motor court and be permitted to provide room service for alcoholic and intoxicating beverages within such hotel, motel, or motor court in which the restaurant is located.

    
    

23. Section 561.01(11), Florida Statutes, contains the following definition:

    "Licensed premises" means not only rooms where alcoholic beverages are stored or sold by the licensee, but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control and shall also include all of the area embraced within the sketch, appearing on or attached to the application for the license involved and designated as such on said sketch, in addition to that included or designated by general law.

    
    

24. Among the well established rules of statutory construction which are applicable to this case is the following from Sharer v. Hotel Corporation of America, 144 So.2d 813 (Fla. 1962), at 817:

    
    

    It should never be presumed that the legislature intended to enact purposeless, and therefore useless, legislation. Legislators are not children who build block playhouses for the purpose, and with the gleeful anticipation, of knocking them down.

    
    

25. Another hoary rule of statutory construction is the following from Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950), at 574:

    
    

    Courts should always give words in the statutes and constitutional provisions the meaning accorded them in common usage unless a different connotation is expressed in or necessarily implied from the context of the statute or constitutional provision in which they appear.

    
    

26. Equally applicable to the facts in this case is the following from Ervin v. Peninsular Telephone Co., 53 So.2d 647 (Fla. 1951), at 654:

    
    

    The legislative intent is the polar star by which courts must be guided and such intent must be given effect, even though it may appear to contradict the strict letter of the statute.

    
    

    To similar effect, see Knight & Wall Co. v. Tampa Sand Lime Brick Co., 46 So.

    285 (Fla. 1908); Curry v. Lehman, 47 So. 18 (Fla. 1908); Garner v. Ward, 251 So.2d 252 (Fla. 1971), See also, Florida State Racing Commission v. McLaughlin,

    102 So.2d 574 (Fla. 1958), where the court stated, at 575:

    
    

    [T]he Legislature is conclusively presumed to have a working knowledge of the English language and when a statute has been drafted in such a manner as to clearly convey a specific meaning the only proper function of the court is to effectuate this legislative intent.

27. Petitioner's first argument is that the statutory language "equipped to serve 150 persons full-course meals at tables at one time" is met by a restaurant that in fact has the required equipment, even though the restaurant does not have it set up because of a zoning provision and a court order which prevent the restaurant from providing seating for more than 100 people. The thrust of the argument is that the literal language of the statute only requires the restaurant to have the equipment and does not expressly require the restaurant to use all of its equipment. The argument fails because it is a simplistic view of the statute which, if adopted, would produce a silly result and would defeat rather than effectuate the legislative intent. The clear legislative intent is to limit the issuance of special restaurant liquor licenses to large restaurants which are legitimately conducting a restaurant business. Were Petitioner's interpretation to be adopted, an applicant seeking a special restaurant license could buy 50 tables large enough to seat three people each and 150 chairs, and could then place all but one table and one chair in a storage room and do business with one table and one chair set up for restaurant service. That would be most absurd! And the difference in the absurdity of the example posed immediately above and the situation advanced by the Petitioner is only a matter of degree--both would constitute circumvention of the legislative intent that special restaurant liquor licenses be issued only to large restaurants that are legitimately in the restaurant business. The only reasonable construction which can be given to the subject language of Section 561.20(2)(a)3, Florida Statutes, and the construction which has in fact been given to it by the agency charged with its administration in Rule 7A-3.14 and

    7A-3.15, Florida Administrative Code, is that to comply with the statutory language a restaurant must not only possess the minimum equipment but must also have that minimum equipment put to use in the restaurant business.

    
    

28. Petitioner's alternative argument is that if food service provided by its restaurant at other locations on the resort premises is taken into account then the restaurant is in compliance with the statutory requirement that it be "equipped to serve 150 persons full-course meals at tables at one time" because it has 100 seats in the restaurant and can serve, and has in fact served, more than 50 people in the resort's banquet facility known as the "Commodore Suite," which is located approximately 250 feet from the restaurant. If the "Commodore Suite" were part of the restaurant, there would be merit to this argument because the stipulated facts include the fact that: "On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150." But the "Commodore Suite" is not part of the restaurant, it is part of the hotel. And while it may be logically asserted that the restaurant is part of the hotel, 1/ it cannot be simultaneously asserted that the hotel is part of the restaurant. By way of example: The tail of a dog is part of the dog and the nose of a dog is part of the dog, but the tail is not part of the nose and the nose is not part of the tail and, most importantly, the dog (which is the whole of the mentioned parts and many others) is not part of either the nose or the tail. Because the "Commodore Suite" is not part of the restaurant, the service of food in the Commodore Suite is irrelevant to the issue of whether the restaurant conforms to the statutory requirements for a special restaurant liquor license. 2/

    
    

29. As a final matter it must be noted that the statutory definition of "licensed premises" in Section 561.01(11), Florida Statutes, includes "all of the area embraced within the sketch, appearing on or attached to the application for the license involved and designated as such on said sketch . . . ." Neither party saw fit to offer the application into evidence 3/ or to present any other

competent substantial evidence regarding what was embraced within the sketch on the application. Thus, if for no other reason, I would be compelled to recommend denial of the application because of a failure of proof with respect to a critical detail of the application.

RECOMMENDATION

For all of the reasons set forth above, I recommend that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the application of Shell Harbor Group, Inc., for a special restaurant liquor license.

DONE and ORDERED this 1st day of May, 1985, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 1st day of May, 1985.

ENDNOTES

1/ This logical assertion that the restaurant is part of the hotel is the sine qua non to the lawful dispensing of alcoholic beverages on the restaurant premises pursuant to the petitioner's current special hotel liquor license.

2/ Petitioner is also faced with the following conundrum. Its restaurant is limited by zoning and court order to 100 seats. If the "Commodore Room" could be deemed to be part of the restaurant then the 100 seat limitation which applies to the entire restaurant would encompass seating in the "Commodore Room". However the matter is considered, the restaurant can have only 100 lawful seats; 50 short of the requirements of Section 561.20(2)(a)3, Florida SLatutes.

3/ The Hearing Officer provided the parties with an abundant opportunity to offer the application into evidence; perhaps too much of an opportunity (T. 31- 32, 41-45).

COPIES FURNISHED:

Thomas L. Barnhardt, Esquire Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Gregory E. White, Esquire

P.O. Drawer 1507

Ft. Myers, Florida 33902

John Schneider, Esquire Sanibel Island Hilton Inn 937 Gulf Drive

Sanibel Island, Florida 33957

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32031

Docket for Case No: 83-003956

Orders for Case No: 83-003956