STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-2868

)

DAVID CARL BOSTON, d/b/a ) MR. D'S RESTAURANT AND LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 8, 1998, in Jacksonville, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas D. Winokur, Esquire

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: David Carl Boston, pro se

2262 Orchard Street

Jacksonville, Florida 32209 STATEMENT OF THE ISSUE

The issue is whether Respondent's alcoholic beverage license should be disciplined on the ground Respondent allegedly violated Section 561.20(2)(a)4., Florida Statutes.

PRELIMINARY STATEMENT

This matter began on February 19, 1997, when Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issued an Administrative Action alleging that in February 1997, Respondent, David Carl Boston, d/b/a Mr. D's Restaurant and Lounge, failed "to maintain seating to accommodate the minimum seating capacity of 150 patrons at tables" and "failed to derive at least 51% of [his] gross revenue from sales of food and non-alcoholic beverages," as required by Section 561.20(2)(a)4., Florida Statutes.

Respondent denied the allegations and requested a formal hearing under Section 120.569, Florida Statutes, to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on June 17, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated July 29, 1997, a final hearing was scheduled on October 28, 1997, in Jacksonville, Florida. At Petitioner's request, the case was rescheduled to January 21, 1998. Respondent's Motion for Continuance was granted, and the case was rescheduled to April 15, 1998. A second request for a continuance by Respondent was granted, and the case was again rescheduled to June 8, 1998, in Jacksonville, Florida. On April 14, 1998, the case was transferred from Administrative Law Judge Don W. Davis to the undersigned.

At final hearing, Petitioner presented the testimony of David Myers and William A. Clingenpeel, Jr., both special agents.

Also, it offered Petitioner's Exhibits 1-3. All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of Nathaniel A. Griffin, a meat supervisor for Premier Meats. Finally, the undersigned took official recognition of Rule 61A-2.022, Florida Administrative Code.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Petitioner on June 18, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. When the events herein occurred, Respondent, David Carl Boston, operated a restaurant and lounge under the name of Mr. D's Restaurant and Lounge at 2262 Orchard Street, Jacksonville, Florida. Respondent has been issued special restaurant license number 26-0701, series 4COP SRX, by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent began operating his restaurant and lounge in February 1996, but ceased doing business in July 1997.

2. Respondent's license authorizes him to sell alcoholic beverages on the premises, so long as the restaurant has at least 2,500 square feet of service area, it can seat at least 150

   patrons at tables, and at least 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food.

   Respondent was aware of this requirement when he applied for a license. Indeed, item 10 on his application specifically noted these special requirements. Accordingly, Respondent knew, or

   should have known, that he would need adequate records to show that these requirements were being met.

3. To enforce the above requirements, the Division performs periodic audits of all restaurants holding special licenses. As a part of that audit process, on February 3, 1997, special agent Myers contacted Respondent and requested that he "[p]roduce within 14 days all records including but not limited to all sales receipts, register tapes, invoices for food, alcoholic bev. &

   non-alcoholic bev., employee time records, all purchase and sales receipts, as required per Florida law." The records were to cover the twelve-month period from February 1996 through January 1997. Respondent acknowledged receiving the Notice to produce the records on February 3, 1997, by signing the Notice in agent Myers' office.

4. Within a few days, Respondent produced a large plastic shopping bag full of records, which has been received in evidence as Petitioner's Exhibit 3. The bag includes receipts for alcoholic beverage purchases and other miscellaneous items, but virtually no receipts for food purchases. There are also so- called "summary sheets," which are handwritten summaries of receipts for food and alcoholic beverage sales for most of the months during the audit period, and cash register tapes which ostensibly support the entries on the summaries. The records are poorly organized and unsophisticated, and they are very difficult for a third person to analyze. Thus, they fail to comport with

   Division Rule 61A-3.0141(3)1., Florida Administrative Code, which requires that a licensee must "maintain separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases and gross retail sales of alcoholic beverages."

5. Because of the lack of receipts for food purchases, the Division could not establish a percentage of food sales for the audit period. Receipts for food purchases are typically used by the Division as a measuring stick against purchases of alcoholic beverages to determine an allocation of revenues. Despite several subsequent conversations between agent Myers and Respondent in an effort to obtain further clarification and documentation, agent Myers could not establish the appropriate division of revenues between food and alcoholic beverages.

6. On the evening of February 6, 1997, agent Myers visited Respondent's premises between 8:00 p.m. and 9:00 p.m. He found approximately five customers on the premises, all at the bar, and only one employee, who was acting as bartender. The kitchen was shut down, and no food was visible to the naked eye. Agent Myers did notice a bag of frozen chicken wings in a freezer, but no other food was on the shelves or in the refrigerator. He also counted the chairs on the premises and found only 111.

7. On February 18, 1997, agent Myers returned to the premises and found only 107 chairs for patrons. On both visits by agent Myers, Respondent had less seating capacity for food

   customers than is required under his special license. In addition, contrary to a Division rule requirement, full-course meals were not available at those times even though the restaurant was serving alcoholic beverages.

8. At hearing, Respondent initially contended that he was confused as to the requirements for his license. Given the plain language in item 10 of his application, however, which clearly identifies the restrictions, this explanation has not been accepted. At the same time, it is noted that Respondent offered to voluntarily surrender his license to the Division in July 1997, since he knew that he could not meet the special conditions imposed under the law. The Division refused, however, on the ground an Adminstrative Action was pending against his license.

9. Respondent acknowledged that on both February 7 and 18, 1997, he had less chairs for food customers than is required. Therefore, this portion of the charges has been sustained. In mitigation, he attributed this to his birthday party on one of those evenings and a "talent show" to be held on another evening, although virtually no customers were on the premises on either date when the inspections took place.

10. Respondent has a menu from which customers can order, and he says he also has a daily luncheon buffet. In explaining the lack of food purchase receipts, Respondent claimed that most of his food was purchased from Premier Meats in Jacksonville, Florida, a retailer that caters to small businesses, such as

    Respondent's. According to a representative of Premier Meats, Nathanial A. Griffin, that firm conducts a "cash and carry" business, with no accounts receivables, and thus it does not invoice its customers. Griffin recalled that Respondent regularly made weekly purchases of chicken wings, gizzards, and white filets, which totaled between $60.00 to $80.00 per week, on average. Assuming this to be true, this equates to approximately

    $250.00 to $300.00 per month in food purchases from that vendor.

    
    

11. The undersigned has independently reviewed the summary sheets, which Respondent says were prepared on a contemporaneous basis from cash register tapes. They reflect that the following revenues were derived from food and alcoholic beverage sales

    during the months of	February 1996 Food	through December 1996: Alcohol
    February	119.70	86.00
    March	1200.10	851.85
    April	3678.10	731.20
    May	3121.27	1170.00
    June	3026.90	956.00
    July	1401.50	770.04
    August	1771.25	1540.70
    September	1504.85	2789.32
    October	372.25	742.25
    November	2941.01	2217.50
    December	1376.04	948.50
    Total	20513.97	12803.36

    
    

12. If the testimony of witness Giffin is accepted, then Respondent's food purchases from Premier Meats during the eleven month period would be no more than $3000.00. Given the lack of any other food receipts, the large number of receipts for

    purchases of alcoholic beverages, and the description of the premises on the two occasions when agent Myers inspected the closed kitchen, it is found that the summaries are not credible, due to a lack of underlying documentation. Therefore, it is found that Respondent did not derive at least 51 percent of his gross revenue from sales of food and non-alcoholic beverages, as charged in the Administrative Action.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes.

14. Because Respondent is subject to penal sanctions, including the imposition of an administrative fine and loss of his license, Petitioner bears the burden of proving by clear and convincing evidence that the allegations in the complaint are true. See, e.g., Pic N' Save Central Fla., Inc. v. Dep't of Bus. Reg., 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

15. The charging document alleges that Respondent violated Section 561.20(2)(a)4., Florida Statutes (1995), by failing "to maintain seating to accommodate the minimum seating capacity of

    150 patrons at tables," and by failing "to derive at least 51% of [his] gross revenue from sales of food and non-alcoholic beverages."

16. For the reasons stated in the Findings of Fact, there

    is clear and convincing evidence to support the allegations in the Administrative Action. This being so, Respondent's license is subject to discipline.

17. Rule 61A-2.022, Florida Administrative Code, prescribes the penalty guidelines to be "routinely imposed" by the Division when licensees violate the provisions of Chapter 561, Florida Statutes. Subsection (11) provides, among other things, that for a failure by the licensee to meet the minimum qualifications of a special license set forth in Section 561.20, the Division shall "routinely impose" a fine of "$1,000.00 and revocation [of the license] without prejudice to obtain any other type license, but with prejudice to obtain the same type of special license for 5 years." There being no reason to deviate from the guideline, Respondent's license should be revoked, and he should be required to pay a $1,000.00 administrative fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent's special restaurant license no. 26-07010 for violating Section 561.20(2)(a)4., Florida Statutes, without prejudice to obtain any other type of license, but with prejudice to obtain another SRX special license for five years from the date of the Final Order. Respondent should also have a $1,000.00 administrative fine

imposed.

DONE AND ENTERED this 24th day of June, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1998.

COPIES FURNISHED:

Richard Boyd, Director

Division of Alcoholic Beverages and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-1007

Thomas D. Winokur, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

David Carl Boston 2262 Orchard Street

Jacksonville, Florida 32209

Lynda L. Goodgame, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the Division of Alcoholic Beverages and Tobacco.

Docket for Case No: 97-002868

Orders for Case No: 97-002868