STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAINESVILLE GOLF & COUNTRY )

CLUB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 85-0092

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

)

Respondent. )

)

RECOMMENDED ORDER

During the course of a prehearing conference conducted on May 13, 1985, counsel for both parties stipulated that in lieu of convening a hearing for the taking of live testimony, this case would be submitted to the Hearing Officer on the basis of a record consisting of the following:

Homer A. 20,

parties admissions

the issued

1. All pleadings filed in this case.

2. The transcripts of the depositions of Scroggins and Barry Schoenfeld taken on February

   1985.

3. The stipulations and admissions of the including, specifically, the Respondent's

   of fact contained in the Respondent's Proposed Prehearing Stipulation And Motion For Remand and

   
   

   parties' stipulations memorialized in the order on May 13, 1985.

   Accordingly, pursuant to the stipulation of the parties the formal hearing previously scheduled in this case was cancelled and the case was submitted to the Hearing Officer on the record described above and on the proposed recommended orders thereafter filed with the Hearing Officer.

   INTRODUCTION

   
   

   This case arises from the proposed denial of Petitioner's application to amend its license to extend the area of the licensed premises to encompass the entire golf course owned and operated by Petitioner. Petitioner contends that there is no statutory impediment to the requested extension. Respondent contends that there is no statutory authority for the requested extension.

   
   

   FINDINGS OF FACT

   
   

   Based on the stipulated record described above, I make the following relevant findings of fact:

   
   

   1. The Petitioner currently holds alcoholic beverage license number 11-74 SRX, series 4-COP. The currently licensed premises include all of the rooms within Petitioner's clubhouse. On or about September 14, 1984, the Petitioner filed an application in which it requested that its licensed premises be extended to include all of the golf course which is adjacent to the clubhouse. The Petitioner's golf course consists of approximately 262 acres. The Petitioner is the owner of and has exclusive possession and control over all of the premises it seeks to have included in its license. The area Petitioner seeks to have included in its license includes other buildings in addition to the clubhouse building. The Petitioner does not hold a golf club license. The Petitioner does not by its application propose to have more than three separate rooms or enclosures in which permanent bars or counters will be located.

      
      

   2. A licensee is required to designate the licensed premises in a sketch included in or attached to the application for license so that the Division of Alcoholic Beverages and Tobacco can determine the area over which they have regulatory authority. The Division of Alcoholic Beverages and Tobacco has, on some occasions, granted applications for series 4-COP special restaurant licenses which included in the sketch of the licensed premises an uncovered patio area immediately adjacent to the covered portion of the restaurant building, which patio areas were used by the restaurant as an area for service of food and beverages.

   3. The Division of Alcoholic Beverages has not presented any reason for denying the Petitioner's application other than the opinion that the existing statutory provisions do not authorize the extension sought by the Petitioner.

      
      

   4. The Petitioner's alcoholic beverage license was issued pursuant to a special act of the Legislature. Chapter 70-574, Laws of Florida.

      
      

   5. Following receipt of notice that the Division of Alcoholic Beverages and Tobacco proposed to deny its application, the Petitioner filed a timely request for formal proceedings.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sec. 120.57, Fla. Stat.

      
      

   7. The foregoing findings of fact contain the substance of the relevant findings proposed by the parties. In making the findings of fact I have specifically rejected the following proposed findings on the grounds that they are irrelevant to the disposition of this case:

      
      

      Petitioner's proposed findings at the following portions of its proposed recommended order:

      
      

      Page 2: Last 17 lines.

      Page 3: All but the last 6 lines. Page 4: First 25 lines.

      
      

      Respondent's proposed findings at the following portions of its proposed recommended order.

      
      

      Page 2: Paragraph 5.

      Page 2: Most of paragraph 6.

      
      

   8. Chapter 70-574, Laws of Florida, the special act pursuant to which Petitioner's current license was issued, reads as follows:

      
      

      
      

      to provided

      
      

      licenses necessary course times

      at (1800)

      than per

      premises. State supervise under the general of the revoke

      
      

      1970.

      Section 1. In Alachua County the limitation as the number of alcoholic beverage licenses as

      by subsection (1) of Section 561.20 Florida Statutes shall not prohibit issuance of such

      
      

      to any bona fide restaurant containing all equipment and supplies for and serving full meals regularly and having accommodations at all for service of one hundred (100) or more patrons tables and occupying more than eighteen hundred square feet of floor space which derives no less fifty-one percent (51 percent) of gross income annum from the sale of food consumed on the

      The Director of the Division of Beverage of the of Florida is authorized to regulate and restaurants towhich such licenses are issued regulations of the Division of Beverage and the law if not inconsistent herewith. The Director Division of Beverage shall have the authority to

      or suspend any such license for violations of the beverage law and regulations of this state not inconsistent herewith.

      
      

      Section 2. This act shall take effect on July 1,

      
      

   9. The term "restaurant" is not defined in the special act quoted above, nor is that form defined elsewhere in the alcoholic beverage statutes. Accordingly, the term "restaurant", as used in the applicable

      legislative provisions, must be given its "plain and ordinary" meaning, or the meaning given to that term in "common usage." See Gauldin v. Kirk, 47 So. 2d 567 (Fla. 1950); Gasson v. Gay, 49 So. 2d 525 (Fla. 1950). The ordinary meaning of a word can most often be ascertained from a dictionary and in this instance the Webster's New Twentieth Century Dictionary (Unabridged) tells us at page 1544 that the word "restaurant" means "a place where meals can be bought and eaten; an eating house."

      
      

   10. At Section 561.20(7)(b), Florida Statutes, the term "golf club" is defined for purposes of the beverage laws as follows:

       
       

       
       

       leasing golf club

       facilities acres

       Any chartered or incorporated club owning or and maintaining any bona fide regular, standard course consisting of at least nine holes, with house, locker rooms, and attendant golf

       and comprising in all at least thirty-five (35) of land owned or leased by such club. . . .

   11. The beverage laws also provide for a variety of special licenses for special purposes, activities, and entities other than restaurants, such as hotels, motels, motor courts, condominiums, bowling establishments, boards of county commissioners, airports, public fairs and expositions, civic center authorities, tennis clubs, racquetball clubs, beach or cabana clubs, marketing associations of horse breeders, operators of railroads or sleeping cars, operators of steamships, buses, and airplanes, chartered or incorporated clubs, caterers at horse and dog racetracks and jai alai frontons, vendors in theme parks, and certain not-for-profit entities supporting symphony orchestras or theaters with live performances.

       See Sections 561.20 and 565.02, Florida Statutes.

       
       

   12. Section 561.01, Florida Statutes, defines licensed premises as follows:

       
       

       (11) "Licensed premises" means not only rooms where alcoholic beverages are stored or sold by the licensee, but also all other rooms in the

       
       

       license

       building which are so closely connected there- with as to admit free passage from drink parlor to other rooms over which the licenses has some dominion or control and shall also include all the area embraced within the sketch, appearing on or attached to the application for the

       
       

       involved and designated as such on said sketch, in addition to that included or designated by general law.

       
       

   13. Section 562.06, Florida Statutes, states:

       
       

       Each license application shall describe the location of the place of business where such beverage may be sold. It is unlawful to sell, or permit the sale of such beverage except on

       the premises covered by the licenses as described in the application therefor.

       
       

   14. Rule 7A-1.06, Florida Administrative Code contains the following definition of the term "place of business:"

       
       

       Any room, building, warehouse, storehouse, dwelling, garage or other structure from which alcoholic beverages are sold and distributed, but shall not include places for which an off- premise storage permit has been issued.

       
       

   15. Petitioner argues that because Section 561.01(11) Florida Statutes, does not contain any maximum limit on the size of the area that can be included in the sketch of the licensed premises, an applicant can make the licensed premises as large as it may wish to. This argument ignores the fact that statutes are not considered and interpreted in a vacuum, but must be considered and interpreted in light of the legislative purpose for the statute and in conjunction with other related statutes. The Petitioner here holds a special restaurant license, the conditions of which are that the Petitioner's restaurant premises must be of a certain minimum size, must contain facilities for serving meals to a specified number of customers, and must derive at least 51 percent of its income from sales other than sales of alcoholic beverages. The evident legislative purpose is to authorize the issuance of special restaurant alcoholic beverage licenses only to bona fide restaurants

       of certain sizes. And it is also clear that the legislative intent was for such special restaurant licenses to authorize the sale of alcoholic beverages as an activity incidental to the principal activity of operating a restaurant. Thus, without having to reach the question of how large a restaurant's premises may be, the clear legislative intent with respect to the issuance of special restaurant alcoholic beverage licenses is that the premises encompassed by such a license be coextensive with what may properly be considered to be the restaurant premises; in other words, the area in which restaurant activities take place. And in light of the language of Chapter 70-574, Laws of Florida, Section 561.20(2)(a)3, Florida Statutes, and Rules 7A-3.14 and 7A-3.15, Florida Administrative Code, the area in which restaurant activities take place would appear to be limited to areas "used exclusively in the operation of the restaurant" and areas used for the service of "full-course meals at tables." In sum: the boundaries of the licensed premises encompassed by a special restaurant alcoholic beverage license cannot properly exceed the boundaries of the restaurant itself. The legislative intent in this regard is further confirmed by the fact that the beverage statutes contain a multitude of provisions for special licenses for special purposes, each with its own specific eligibility requirements.

       
       

   16. There is yet another, and perhaps even more compelling, reason for concluding that the Petitioner's license may not be extended to encompass an entire golf course. Sections 561.20(7)(b) and 565.02(4), Florida Statutes, authorize the issuance of special alcoholic beverage licenses to golf clubs. And Section 565.02(1)(g), Florida Statutes, provides, in relevant part:

       
       

       A golf club licenseholder may operate service bars or portable or temporary bars on the grounds contiguous to its licensed premises and shall pay $100 for a certified copy of the club license, which shall be posed on

       the bar. The area contiguous to the licensed premises shall be considered an extension of the licensed premises upon payment of the fee, posting of the certified copy of the license, and notation of such extension upon the sketch accompanying the original license application.

       
       

   17. It is clear from the language quoted immediately above that the term "licensed premises" as applied to a golf club does not include the golf course. Otherwise, there would be no need for the statutory language quoted immediately above. It is also clear from the above quoted language that the only licensees who are authorized by statute to operate service bars or portable or temporary bars on a golf course are licensees who hold golf club licenses. In this regard it is instructive to look to the well established line of Florida cases applying the rule of "espressio unius est exclusio alterius."

       
       

   18. The rule is described as follows in Dobbs v. Sea Isle Hotel, 56 So. 2d 341 (Fla. 1952):

       
       

       We have oft-times held that the rule "Expressio unius est exclusio alterius" is applicable in connection with statutory construction. This maxim, which translated from the Latin means: express mention of one thing is the exclusion of another, is definitely controlling in this case. The legislature made one exception to the precise language of the statute. We

       apprehend that had the legislature intended to establish other exceptions it would have done so clearly and unequivocally. We must assume that it thoroughly considered and purposely preempted the field. . . . We cannot write into the law any other exception since

       the legislature dealt with such topic and thereby foreclosed judicial enlargement thereof.

       
       

       See also the following cases which further explicate and apply the rule of "expressio unius est exclusio alterius:" James v. Department of Corrections, 424 So. 2d 826 (Fla.

       1st DCA 1983); Rebich v. Burdine's, 417 So. 2d 294 (Fla. 1st DCA 1982); Florida Legal Services, Inc. v. State, 381 So. 2d 1120 (Fla. 1st DCA 1979); Thayer v. State, 335 So. 2d 815 (Fla. 1976).

       
       

   19. A related rule of statutory construction is found in Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944), at page 805:

       
       

       When the Legislature has prescribed the mode, that mode must be observed. When the controlling law directs how a thing shall be

       done that is, in effect, a prohibition against its being done in any other way.

       
       

       And it is also a well-settled rule of statutory construction that implied prohibitions are as effective as express prohibitions. See Martin County v. Hansen, 149.

       So 616 (Fla. 1933).

       
       

   20. Application of the foregoing principles of law leads inescapably to the conclusion that the only manner in which an alcoholic beverage licensee can extend service of alcoholic beverages to a golf course is in the manner provided in Section 565.02(1)(g), Florida Statutes, and that the only licensees who are authorized to use that procedure are licensees who hold golf club licenses issued pursuant to Section 565.02(4), Florida Statutes. Inasmuch as the Petitioner does not hold a golf club license, there is no statutory authority for extending the area of its licensed premises to encompass an entire golf course.

RECOMMENDATION

For all of the foregoing reasons it is recommended that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the Petitioner's application to extend the area of its licensed premises.

DONE and ORDERED this 25 day of June, 1985, at Tallahassee, Florida.

Hearings

Hearings

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative

The Oakland Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative

this 25th day of June, 1985

COPIES FURNISHED:

Sandra Stockwell, Esquire Department of Business Regulation 725 S. Bronough St.

Tallahassee, Florida 32301

William Andrews, Esquire

P.O. Drawer C

Gainesville, Florida 32602

Howard M. Rasmussen Director

Department of Business Regulation

Division of Alcoholic Beverages and Tobacco The Johns Building

725 S. Bronough St. Tallahassee, Florida 32301

Docket for Case No: 85-000092

Orders for Case No: 85-000092