STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

v. ) CASE NO. 90-5777

) GEORGE THAYER, t/a GEORGE'S PLACE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 13, 1990, in Daytona Beach, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Eric S. Haug

Assistant General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, FL 32399-1007

For Respondent: Thomas S. Hart

Attorney at Law Cobb Cole & Bell

150 Magnolia Avenue Post Office Box 2491

Daytona Beach, FL 32115-2491 STATEMENT OF ISSUES

The ultimate issue is whether Respondent's beverage license should be revoked or otherwise penalized based on the acts alleged in the Notice to Show Cause.

PRELIMINARY STATEMENT

The Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), presented the testimony of Joseph Ogonowski and had Petitioner's Exhibits 1-4 admitted in evidence. The Respondent, George Thayer t/a George's Place (Thayer), presented the testimony of George Thayer, Leroy Reed, Jr., and Helen Thayer. Respondent offered no exhibits.

The parties waived the filing of a transcript. Both parties timely filed proposed findings of fact and conclusions of law on November 26, 1990. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. George Thayer is the holder of a special alcoholic beverage license, number 74-0643SR-4COP, for the premises known as George's Place at 832 South Martin Luther King Boulevard, Daytona Beach, Florida.

   
   

2. He has held that license since 1965. DABT continues to assert that he has held that license since 1955, but there is not one shred of evidence to support that assertion. Both Joseph Ogonowski, a DABT investigator, and Mr. Thayer testified that the license in question was issued on July 23, 1965.

   
   

3. Thayer's license was issued under a special provision for restaurants which no longer exists. The SR class of license required that certain conditions be met. In applying for and qualifying for the license in question, Mr. Thayer signed an affidavit attesting that he would comply with all the conditions applicable to the SR special license.

   
   

4. Specifically, in that affidavit, Mr. Thayer attested that:

   . . . said licensed premises are to be operated primarily as a restaurant and contains all necessary equipment and supplies for serving full course meals regularly, has accommodations for serving @200 or more patrons at tables and occupies 4,000 square feet or more floor space under a permanent roof. Further, that if the license applied for is approved and a Special License is issued, the premises shall be operated as a bonafide restaurant and that no alcoholic beverages will be served or sold when the restaurant is not open for business.

   
   

5. On March 13, 1990, Joseph Ogonowski, a law enforcement investigator with 30 years' experience at DABT, conducted an inspection of George's Place at approximately 2:00 o'clock P.M. Mrs. Thayer was tending bar when Ogonowski arrived. There were several patrons drinking what appeared to be alcoholic beverages at the bar and in the pool hall. There was no food being prepared or served. The kitchen, which was accessible only from behind the bar, was apparently closed. There was no appearance that any food was in or had been recently prepared in the kitchen. There was a separate part of the premises, called the disco room, which was not lit or air conditioned and was locked behind a metal gate. The disco room contained 134 chairs at tables. The bar contained enough tables and chairs for six or eight people to be served at tables. There was no menu posted or offered. There was not enough china and silverware to serve 200 people. There was some plastic tableware. DABT's apparent policy of not counting plastic tableware is not a rule and must therefore be explicated at hearing. No such evidence was presented in this case. No proof that the beverages being served were alcoholic beverages was presented by DABT. Mr. Ogonowski issued a warning notice citing inadequate seats and tables, inadequate square footage open to the public, and the need for additional china and silverware. Notice was given that a reinspection would occur in ten days.

6. Mr. Ogonowski reinspected the premises on March 29, 1990. Nothing had changed. The kitchen and disco room were closed and no food was being served on the premises. Mr. Ogonowski issued a Final warning notice again citing the lack of seats, tables, china, and silverware. A reinspection was again scheduled.

   
   

7. On April 13, 1990, Ogonowski again reinspected the premises at about 10:00 o'clock A.M. A Bill of Fare was posted showing full course meals being served. There were still inadequate seats at tables and china and silverware. No food was being served, but it was early in the day. Patrons were drinking what appeared to be alcoholic beverages at the bar and in the pool hall, but the disco room was locked. Again no evidence that the beverages were alcoholic was presented by DABT. Another Final warning notice was issued citing the inadequate seats, tables, china, and silverware. This Final warning notice reminded Mr. Thayer that he was required to have the facilities, china, and silverware to serve full course meals to 200 patrons or else he must discontinue the sale of alcoholic beverages. Mr. Thayer was given ten working days to comply or else charges would be filed against his license.

   
   

8. On June 22, 1990, Mr. Ogonowski returned in the morning for one last inspection of George's Place. Mr. Thayer was not there, but Leroy Reed was tending bar. The Bill of Fare was not posted. The pool hall was open, but the disco room was locked. Mr. Reed was eating something from a bowl. According to Mr. Reed, it was some leftovers that he had scraped from the bottom of a pot. Mr. Ogonowski ordered some of what Mr. Reed was eating, but was told it was all gone and food had not been cooked yet that day. Mr. Ogonowski ordered a sandwich not regularly available on the premises and was told that it was not available. He than asked to purchase a beer to go and was sold a can of beer.

   
   

9. Mr. Ogonowski returned to talk to Mr. Thayer later that same day. At that time, Mr. Thayer told Mr. Ogonowski that the necessary china and silverware was on the premises, but that there were inadequate seats at tables. Based on this failure to comply with the previous warnings, a Notice to Show Cause was issued. Mr. Ogonowski did not inspect to see if the china and silverware was actually on the premises or if full course meals were available.

   
   

10. According to Mrs. Thayer, the china and silverware was purchased in July, after the last inspection. Further, she acknowledged that the necessary seats at tables were not on the premises until September.

    
    

11. Mr. and Mrs. Thayer live above George's Place and derive all of their support from the operation of George's Place. They have done so for more that

    25 years. Until these events, they had not received any citations for more than

    15 years.

    
    

12. Mr. Ogonowski testified that DABT has a policy regarding penalties for violations of special restaurant licenses and he produced a copy of a page from his policy and procedure manual. These penalty guidelines have not been enacted as rules. Mr. Ogonowski did not develop the policy and did not offer any testimony to prove up or explicate the incipient policy.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

14. Section 561.29(1), Florida Statutes (1989), authorizes DABT to revoke or otherwise penalize an alcoholic beverage licensee for various violations of state laws and rules. The Notice to Show Cause charges Mr. Thayer with violating Section 561.20, Florida Statutes, and Rule 7A-3.015(1) and (3)(c), (d), and (e), Florida Administrative Code. Section 561.20(2)(a)4, Florida Statutes (1989), relates to special restaurant licenses and requires that no "intoxicating beverages be sold under such license after the hours of serving food have elapsed." Rule 7A-3.015 states in pertinent part:

    
    

    1. All restaurants holding a special restaurant license must discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued. . . .

       * * *

       (3) The following criteria will be used in determining whether or not the holder of a special restaurant license is a bona fide restaurant:

       * * *

       1. The principal business of the restaurant must cater to and serve full course bona fide meals to the general public.

       2. The business is advertised and held out

          to the public to be a place where meals are served, space being provided with adequate dining room equipment and having employed such number and kinds of employees for serving meals for guests; the primary operation of such restaurant shall be for the serving of meals and not for the sale of alcoholic beverages.

       3. The restaurant shall be equipped with the necessary tableware and seating to handle the minimum seating capacity required by general law or special act.

       
       

15. There is no dispute that Mr. Thayer did not have adequate seats at tables as required during any of the four inspections. While Mr. Thayer argues that his plastic tableware should be counted, there was no showing that the necessary china was available until at least the last inspection. DABT apparently has a policy of discounting plastic tableware from the requisite equipment, however this policy is not a promulgated rule and was not proven or explicated at hearing. Accordingly, DABT has not carried its burden of proving by clear and convincing evidence that the necessary silverware was not available because plastic tableware was impermissibly excluded from consideration. Except for the silverware, DABT carried its burden of proving the violations of Rule

    7A-3.105(3)(e).

    
    

16. The clear and convincing evidence also established that on June 22, 1990, the premises were open for business and alcoholic beverages were being sold when full course meals were not available. Mr. Thayer violated Section 561.20(2)(a)4 and Rule 7A-3.015(1).

17. The more difficult charge is whether Mr. Thayer violated Section

    561.20 and Rule 7A-3.015(3)(c) and (d) by failing to operate as a bona fide restaurant by conducting business principally as a bar and package store and pool room and not as a restaurant and by failing to hold out the business as a place where meals are served as the primary operation of the licensed premises. First, Mr. Thayer is required to meet the requirements of the law which existed when he received his license. George Thayer v. State, Bureau of Beverage, 335 So.2d 815 (Fla. 1976). The licensee also must comply with all duly promulgated rules thereinafter enacted as long as those rules are not inconsistent with the applicable statutory provisions. Department of Business Regulation, Division of Beverage v. Huddle, Inc., 342 So.2d 140 (Fla. 1st DCA 1977).

18. In Huddle, supra, at page 142, the court made it clear that [i]t has always been the legislative intent

    that a special restaurant license under Section 561.20(2) was available only when there was a bona fide substantial restaurant operation primarily engaged in the service of food and nonalcoholic beverages. It was never to be a subterfuge for the operation of a bar or cocktail lounge with only incidental sales of food.

    
    

    The court went on to recognize that the test for a bona fide restaurant operation is set forth in the administrative rules.

    
    

19. The terms "restaurant," "serve," and "equip" are not defined by statute, but these terms are used in the rules and have been defined in case law to include their plain and ordinary meanings. In Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984), the court used the plain dictionary meaning to define "restaurant" as "a public eating place" and "to serve" as "to help persons to food: as (a): to wait at table; (b): to set out portions of food or drink." The same court, in construing the rules, defined "equip" to mean "to furnish for service or action, make ready by appropriate provisioning" in Shell Harbor Group, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 487 So.2d 1141 (Fla. 1st DCA 1986). In applying this definition, the court recognized the legislative intent expressed in Huddle and stated:

    
    

    [G]iven this intent, the reasonable interpretation of "equipped" is that it encompasses the legal ability to serve 150 people as well as the physical ability to do so. Otherwise, physical ability to do so is meaningless and might as well not exist.

    
    

20. Given this authority, it can only be concluded that Mr. Thayer did not operate as a bona fide restaurant during the March 13 and 29 and the June 22, 1990, inspections because the business was conducted primarily as a bar, package store and pool hall and its principal business was not the serving of full course meals to the general public. George's Place was operated in violation of Section 561.20, Florida Statutes, and Rule 7A-3.015(3)(c) and (d), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that alcoholic beverage license 74-00643SR-4COP, issued to

George Thayer, t/a George's Place, be suspended until the licensee demonstrates the ability and intention to operate the premises as a bona fide restaurant meeting all the criteria of the license, the statutes, and the rules. If the licensee is unable to make the necessary demonstration within six months, the license should be revoked.

DONE and ENTERED this 3rd day of December, 1990, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5777

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of FactSubmitted by Petitioner, DABT

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 2-6(4-8).

2. Proposed findings of fact 7 and 8 are subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of FactSubmitted by Respondent, George Thayer

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 10(8); and 14(11).

2. Proposed findings of fact 2, 4-6, 8, 9, 11, and 13 are subordinate to the facts actually found in this Recommended Order.

3. Proposed findings of fact 3 and 7 are irrelevant.

4. Proposed finding of fact 12 is unsupported by the credible, competent and substantial evidence.

COPIES FURNISHED:

Eric S. Haug

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007

Thomas S. Hart Attorney at Law Cobb Cole & Bell

150 Magnolia Avenue Post Office Box 2491

Daytona Beach, FL 32115-2491

Leonard Ivey, Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, FL 32399-1007

Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005777

Orders for Case No: 90-005777