STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1596

) DABT NO. 8-74-264-A NAS, INC. d/b/a THE DOWN BEAT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 2331 North State Road 7, Lauderhill, Florida, at 10:00 a.m., September 27, 1977.

APPEARANCES

For Petitioner: Dennis E. LaRosa, Esquire

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

For Respondent: James A. Brown, Esquire

Courthouse Square Building

200 Southeast 6th Street, Suite 600-A Fort Lauderdale, Florida 33301

ISSUE

1. Whether or not on or about August 28, 1974, at the Respondent's licensed premises, the Respondent continued the sale of alcoholic beverages when the services of full-course meals had been discontinued, in violation of Rule

   7A-3.15, F.A.C.

   
   

2. Whether or not on or about August 28, 1974, at the Respondent's licensed premises, the Respondent's business was not 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 kind of employees for preparing, cooking and serving meals for guests; the primary operation of the Respondent's restaurant was not for the preparation, cooking and serving of meals but for the sale of alcoholic beverages, in violation of Rule 7A-3.15d, F.A.C.

FINDINGS OF FACT

1. The Respondent, NAS, INC., d/b/a The Down Beat, is the holder of license number 16-692-SR, Series 4-COP, held with the Petitioner, State of

   Florida, Division of Alcoholic Beverages and Tobacco. This license is for a premises located at 623 N.W. 15th Way, Fort Lauderdale, Florida.

   
   

2. On August 28, 1974, beverage agents Scozzafava and Fay entered the licensed premises around 10:30 a.m. They identified themselves to the manager, one George Myers, and commenced a routine inspection of the licensed premises. The business was identified by a sign on the outside of the building which stated that the licensed premises sold liquor and food. The licensed premises was divided into two principal areas; one being a lounge and the second being a dining room.

   
   

3. The lounge was open and serving alcoholic beverages, together with snack-type food such as potato chips, sausages, peanuts, and "pigsfeet."

   
   

4. The witness that testified for the Petitioner could not recall whether other food items were being sold in the lounge area. However, the testimony did show that the manager, George Myers, had to unlock the kitchen and dining room areas. There were no patrons located in the dining room. An inspection of the kitchen revealed a number of paper plates and cups and a few pieces of china ware. In addition, in the kitchen, there was found a number of items of silverware, which while adequate in number, but were tarnished and rusted. In the kitchen area there was no evidence of full-course meals being prepared. Moreover, there were no records of any sales of food on August 28, 1974. The dining room did have sufficient chairs and tables to meet the terms of requirements of the Petitioner.

   
   

5. One of the counts in question found in the Notice to Show Cause charges the Respondent with a violation of Rule 7A-3.15, F.A.C. The pertinent provisions of that rule state:

   
   

   "Special licenses, hours of service and minimum requirements.

   All restaurants holding a special license, in addition to the quota limitation imposed by section 561.20(1), Florida Statutes, must discontinue the sale of alcoholic beverages whenever the service of full-course meals is

   discontinued. . . . The Division considers the following as the minimum requirements for bona fide full-course meals prepared.

   1. Salad

   2. Entree

   3. Dessert

   4. Beverage

   5. Bread and Butter."

      
      

      The facts in this case show that at approximately 10:30 a.m., August 28, 1974, alcoholic beverages were being sold in the licensed premises, at a time when the service of full-course meals had been discontinued. Because the license held by the Respondent is a special restaurant's license within the meaning of the rule, the facts establish a violation of the rule provision.

      
      

   6. The Notice to Show Cause filed against the Respondent also contained a count pertaining to an alleged violation of Rule 7A-3.15d, F.A.C. That provision states:

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

      
      

      d. 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 equip- ment and have employed such number and kinds

      of employees for preparing, cooking and serving meals; the primary operation of such restaurant shall be for the preparation, cooking and serving

      of meals and not for the sale of alcoholic beverages."

      
      

      The facts establish that the business was advertised and held out to the public to be a place where meals are prepared and served. The lack of permanent dishware and the poor condition of the silverware establish noncompliance with the requirement of having adequate kitchen and dining room equipment. In addition, on the date in question, it was revealed that there was a failure to comply with the requirement of having employees for preparing, cooking and serving meals for guests. Finally, on the date and time in question, it was shown that the primary purpose of the restaurant was for the sale of alcoholic beverages and not for the preparation, cooking and serving of meals. Therefore, the Respondent had failed to meet one of the criteria necessary to be a bona fide restaurant within the meaning of the laws and rules of the Petitioner. As an aspect of the hearing, the undersigned takes official notice of Rule 7A-3.15, F.A.C.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings had jurisdiction of this cause.

      
      

   8. At the beginning of the hearing, a written motion to dismiss the case was filed by the Respondent. That motion was denied.

      
      

   9. Based upon the facts as established in this case, Respondent has violated Rule 7A-3.15, F.A.C., by failing to discontinue the sale of alcoholic beverages when the service of full course meals was discontinued on August 28, 1974; thereby subjecting itself to the penalty provisions of s. 561.29, F.S.

      
      

   10. Based upon the facts as established on August 28, 1974, the Respondent held its business out to the public as being a place where meals are prepared and served, when there was inadequate kitchen and dining room equipment and insufficient employees for preparing, cooking and serving meals for guests, and when the primary operation of the restaurant was for the sale of alcoholic beverages as opposed to the preparation, cooking and serving of meals. On that date the Respondent failed to meet one of the criteria in considering whether the restaurant license held with the Petitioner is for a bona fide restaurant within the meaning of the Petitioner's laws and regulations, specifically Rule 7A-3.15d, F.A.C.; thereby subjecting itself to the penalty provisions of s. 561.29, F.S.

       
       

   11. At the commencement of the hearing, Petitioner moved to withdraw counts 1 through 4 of the Notice to Show Cause, without prejudice. The motion to withdraw was granted, subject to further attack by the Respondent, should the Petitioner attempt to reinstitute these four counts.

RECOMMENDATION

Upon consideration of the violations established in this cause, it is recommended that the Respondent's license number 16-692-SR, Series 4-COP, be suspended for a period of thirty (30) days.

DONE AND ENTERED this 14th day of October, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Dennis E. LaRosa, Esquire Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32304

James A. Brown, Esquire Suite 600-A

Courthouse Square Building

200 S. E. 6th Street

Ft. Lauderdale, Florida 33301

Docket for Case No: 77-001596

Orders for Case No: 77-001596