STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-732

)

PELT-REEVES, INC., d/b/a )

SAND SHAKER LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on September 27, 1978. The parties were represented by counsel:

APPEARANCES

For Petitioner: Francis Bayley, Esquire

Legal Section

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304

For Respondent: Leo A. Thomas, Esquire

Seville Tower

226 South Palafox Street Pensacola, Florida 32501

By notice to show cause, petitioner alleged that respondent, on or about March 11, 1976, "did fail to maintain 100 transient guest rooms as required contrary to F.S. 561.20 (2)(A);" and that respondent at about the same time, "did fail to keep on [its] licensed premises all invoices for malt beverages and wines as required by Administrative Rule 7A-4.45."

FINDINGS OF FACT

1. On June 23, 1972, respondent obtained from petitioner a four COP Special license, No. 27603-S, after Thomas E. Pelt, respondent's president, executed a form affidavit reciting that the "Sand Shaker Lounge is a hotel, motel or motor court containing 100 or more transit [sic] guest units;" and after R. E. Daniels, one of petitioner's agents, certified that he had investigated and found Mr. Pelt's statement to be true.

   
   

2. At all pertinent times, there were and have been 104 units in the "Mai Kai," the establishment housing the premises respondent operates at: Pensacola Beach, Florida. Some 28 of these units are apartments with one or two bedrooms

   and full kitchens. The units surrounding the swimming pool area are "efficiency type" motel rooms. Each of the remaining units consists of one large room.

   
   

3. All 104 units were available, if unoccupied, to house overnight or transient guests, at all pertinent times; and units of all kinds were so used at least as recently as last year. At all pertinent times, however, the Mai Kai has leased mere than four of these units for periods as long as one year under renewable written agreements requiring monthly rental payments. On March 11, 1976, some 19 one year leases were in force between the Mai Kai and its customers. These agreements require the Mai Kai to furnish water but provide that "[a]ll other utilities services are to be arranged for and paid for by Lessee." Petitioner's exhibit No. 1.

   
   

4. At approximately one o'clock on the afternoon of March 11, 1976, petitioner's employee Larry Stevens inquired of employees of Gulf Power Company as to whose names were on their accounts for 32 of the Mai Kai's units. Mr. Stevens was told that all but six of the accounts about which he inquired were listed in names other than that of the management of the Mai Kai.

   
   

5. On or about March 11, 1976, respondent's invoices for malt beverages and wines dated on or after March 1, 1976, were on the licensed premises. Invoices with earlier dates were in respondent's accountant's office, however. Ever since respondent's employees ware advised that they should do so, respondent has maintained all of its invoices for malt beverages and wines on the licensed premises, not just those for the current month, as had been its prior practice.

   
   

   CONCLUSIONS OF LAW

   
   

6. After requiring that a "sales ticket or invoice must be given to the vendor at the time of delivery [of wine and malt beverages]," Rule 7A-4.45, Florida Administrative Code, provides:

   
   

   All such sales tickets or invoices must

   be kept on file at the licensed premises of each manufacturer or distributor and vendor for a period of three years from the date such sales tickets or invoices shall be open to inspection by any authorized employee of the Division during regular business hours.

   
   

   This language is apparently intended to require licensed vendors like respondent to maintain such sales tickets and invoices on their premises for three years following their receipt. The rule is somewhat confusing on the question of when the three year period begins, however, and the evidence showed that respondent has maintained these records on its licensed premises ever since its employees were advised that this was required.

   
   

7. Subsection one of Section 561.20, Florida Statutes (1977), limits the number of licenses petitioner can issue in the several counties. The statute then provides:

   
   

   No such limitation . . . shall . . . prohibit the issuance of a special license

   to:

   1. Any bona fide hotel, motel, or

      motor court of not less than 100 guest rooms;

   2. Any condominium accommodation of which no less than 100 condominium units are wholly rentable to transients . . .

      Section 561.20(2)(a), Florida Statutes (1977).

      
      

      Petitioner issued respondent's license under the provisions of Section 561.20(2)(a)(1), Florida Statutes (1977). By subsequently adopted rule, petitioner requires holders of special licenses to "meet and maintain the minimum requirements for bona fide hotel, motel, motor court and condominium- owned motor courts." Rule 7A-3.43, Florida Administrative Code. While there is no further mention of "minimum requirements," as such, Rule 7A-3.43, Florida Administrative Code, goes on to provide:

      
      

      The following criteria will be used in determining whether an applicant for a special liquor license is a bona fide hotel, motel, motor court or condominium-owned motel or motor court:

      * * *

      1. The premises shall establish and maintain daily, weekly and monthly rates, on all transient guest rooms, required to qualify for special hotel, motel, motor court or condominium-owned motor court license, and

      2. The premises shall establish and maintain registration records and procedures, and the premises shall supply such services as commonly found in a bona fide hotel, motel, motor court or condominium-owned

      motor court, such as; linen, maid service, telephone, etc. All utilities such as gas, electric or telephone shall

      be under the name of the premises and paid for by the same, and

      * * * Transient guest means "temporary

      occupancy" as a transient in a rental unit for less than six (6) months. Indications for determining whether an occupancy is temporary under this rule are as follows:

      1. All parties intend that the occupancy will last no longer than six (6) months from the beginning of the occupancy.

      2. No written document or oral agreement is executed or entered into between the parties, the terms of which clearly indicate an intention to enter into a lease

      agreement or lease type arrangement that lasts for more than six (6) months.

      
      

      The rule seems to make a distinction between unspecified "minimum requirements," applicable to licensees and applicants alike, and the specified "criteria" to be

      used only in evaluating applications. An examination of the statutory language implemented by Rule 7A-3.43, Florida Administrative Code, suggests no basis, however, for attaching any importance to such a distinction.

      
      

8. Taken as a whole, Rule 7A-3.43, Florida Administrative Code, when applied to the facts of the present case, requires the conclusion that the Mai Kai does not qualify as a bona fide hotel, motel or motor court within the meaning of the rule, because utilities other than water are not "under the name of the premises and paid for by same." Rule 7A-3.43(d), Florida Administrative Code. Strictly speaking, petitioner did not allege that respondent was disqualified on that ground, but the rule is cited in the notice to show cause, petitioner adduced evidence on the point without objection and respondent quoted subsection d in its memorandum of law. In these circumstances, the question was fairly raised.

   
   

9. Petitioner alleged that respondent failed "to maintain 100 transient guest rooms," and failed to qualify as a bona fide hotel, motel or motor court on that basis. The evidence established that respondent had less than 100 "transient guest rooms" within the meaning of Rule 7A-3.43, Florida Administrative Code, but neither the rule nor the statute requires that all 100 of the guest rooms of the hotel, motel or motor court be always available to transients. Subsection c of the rule mistakenly assumes such a statutory requirement but purports to impose no such requirement itself. In fact, the statutory requirement that no less than 100 units be "wholly rentable to transients," Section 561.20(2)(a)(2), Florida Statutes (1977), applies only to condominiums. No such requirement appears in Section 561.20(2)(a)(1), Florida Statutes (1977).

   
   

10. Respondent argues that the original grant of a special license to respondent should estop petitioner from taking disciplinary action against the license on account of facts that have not changed not changed since the license was granted. This contention must be rejected. See First National Bank of Birmingham v. Department of Revenue of the State of Florida, No. HH-335 (Fla 1st D.C.A., October 18, 1978); Austin v. Austin, 350 So.2d 102, 105 (Fla. 1st D.C.A. 1977). The evidence failed to establish, moreover, that petitioner's agents knew that respondent was not furnishing its guests all utilities at the time the license was granted (if, indeed, respondent was not.)

    
    

11. Respondent's contention that Section 561.20, Florida Statutes (1977), is unconstitutional should he addressed to the judiciary, not to the Division of Administrative Hearings. The Division of Administrative Hearings, as part of the executive branch of government, has no authority to declare a statute unconstitutional.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for thirty (30) days and thereafter until and unless respondent contracts to pay for all utilities furnished to its guest rooms.

DONE and ENTERED this 23rd day of October, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Francis Bayley, Esquire Legal Section

725 South Bronough Street Tallahassee, Florida 32304

Leo A. Thomas, Esquire Sevill Tower

226 South Palafox Street Pensacola, Florida 32501

Docket for Case No: 77-000732

Orders for Case No: 77-000732