STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 77-2251

) NAS, INC. t/a THE DOWN BEAT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on January 11, 1978 at Lauderhill, Florida.

APPEARANCES

For Petitioner: Dennis E., LaRosa, Esquire

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

For Respondent: James A. Brown, Esquire

Suite 600, Courthouse Square Building

200 Southeast 6th Street

Ft. Lauderdale, Florida 33301

ISSUE

By Notice to Show Cause dated October 24, 1977, the Division of Alcoholic Beverages, Petitioner, seeks to revoke suspend, or otherwise discipline the alcoholic beverage license of NAS, Inc. t/a The Down Beat, Respondent. As grounds therefor it is alleged that on or about August 25, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued; failed to maintain sufficient inventory to serve full course meals; failed to maintain sufficient dining room equipment and employees for the preparation, cooking and service of full course meals; and failed to maintain necessary china and tableware to handle the minimum seating capacity required, all in violation of Rule 3.15 F.A.C. Four witnesses were called by Petitioner, one witness testified in behalf of Respondent, and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. About 10:00 A.M. on August 25, 1977, three beverage agents entered The Down Beat and conducted a routine inspection after identifying themselves as beverage agents.

   
   

2. Respondent holds special restaurant beverage license No. 16-692-SR Series 4 COP.

   
   

3. At the time of the inspection the bar was open and alcoholic beverages were being dispensed.

   
   

4. No personnel were available on the premises to prepare meals and the kitchen was reported to be closed at the time of the inspection.

   
   

5. A count of the equipment in the kitchen disclosed 19 knives, 19 forks and 9 spoons clean and ready to be used. Upon inquiry one of the corporate officers produced a paper bag from under the sink which contained 51 spoons, 91 forks, and 161 knives. An additional package of ten plastic forks and an open package of 8 plastic spoons were produced. 163 dinner plates, 130 salad plates,

   50 plastic cups, and 60 plastic glasses were counted.

   
   

6. The two freezers in the kitchen contained frozen meats and fish. Other food items consisted of condiments, flour, one head of lettuce, sugar, bread, butter, cheese, celery, sausages, and potato mix.

   
   

7. Respondent's witness testified that the cook was out shopping at the time of the inspection. The persons identified by name as cook and purchasing agent to the inspectors were not listed on the payroll for the previous month (Exhibit 1).

   
   

8. Profit and Loss statement (Exhibit 1) for the month of July, 1977 shows only 4 female employees, each paid $60 per week, food sales of $5,022.50, food purchases of $1,235.47 including $429.30 to Coca Cola and Canada Dry bottling companies, alcoholic beverage sales of $3,086.65 and alcoholic beverage purchases of $3,428.06.

   
   

9. Following completion of Respondent's testimony the administrative record of Respondent was admitted into evidence as Exhibit 3. This shows violations of a nature similar to those here under consideration occurred on 10/29/73 and 8/24/74. The latter violations were proven at a hearing held September 27, 1977.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the Respondent and of the offenses.

    
    

11. Section 561.20 F.S. provides for limitation on the issuance of beverage licenses to each 2,500 residents of the county but no such limitation shall prohibit the issuance of a special license to:

    
    

    "3. Any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at one time, and deriving at least fifty-one percent of its gross revenue from sale of food and nonalcoholic beverages."

    Rule 7A-3.15 F.A.C. provides in pertinent part:

    
    

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

    
    

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

    1. Salad

    2. Entree

    3. Dessert

    4. Beverage

    5. Bread and Butter.

       
       

       The following criteria will be used in determining whether or not the holder of a specified 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 prepared and served, space being provided with adequate kitchen and dining room equip- ment and having employed such number and kinds of employees for preparing, cooking

          and serving meals for guests; the primary operation of such restaurant shall be for the preparation, cooking and serving of meals and not for the sale of alcoholic beverages.

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

       
       

12. The evidence is clear that at the time of inspection of the premises of Respondent alcoholic beverages were being dispensed while neither personnel, equipment nor supplies were available to prepare and serve full course meals.

    
    

13. The evidence was unrebutted that insufficient equipment, personnel and supplies was on hand to serve the minimum of 150 persons required by the statutory provisions above quoted.

    
    

14. From the foregoing it is concluded that the Respondent is guilty as alleged. It is further concluded that, although the inspection leading to the charges here under consideration occurred prior to the time the hearing was held on similar charges earlier made against Respondent, the latter is in no position to complain that he was unaware of the requirements imposed on special restaurant licensees. It is therefore,

RECOMMENDED that the special restaurant license of NAS, Inc. trading as The Down Beat be suspended for a period of sixty (60) days.

DONE and ENTERED this 25th day of January, 1978, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Dennis E. LaRosa, Esquire James A. Brown, Esquire

725 S. Bronough Street Suite 600 Courthouse Square Bldg. Tallahassee, Florida 32304 200 SE 6th Street

Ft. Lauderdale, Florida 33301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. CASE NO. 77-2251

DABT NO. 8-77-266-A

NAS, INC., t/a THE DOWN BEAT,

Respondent.

/

ORDER

THIS CAUSE came on upon the filing of Respondent's Notion Reconsider, and it is ordered upon due consideration thereof

1. The matter referred to in that specific letter from James A. Brown, Esquire, attorney for Respondent, to the undersigned, dated February 7, 1978, shall be treated as exceptions the Recommended Order of the Hearing Officer.

   
   

2. There is no claim that any of the findings of fact or conclusions of law of the aforementioned Recommended Order are error or contrary to law. The exceptions are more in the dorm of mitigating factors which the undersigned shall considers, such.

3. The penalty assessed by the Recommended, Order is commensurate with the violation and history of the subject licensee.

   
   

4. The Final Order of the agency filed February 7, 1978, is, therefore, affirmed in all respects.

   
   

5. The time for judicial review under Section 120.68, Florida Statutes, shall commence, from the date of this Order.

DONE at Tallahassee, Florida this 23rd day of February, 1978.

CHARLES A. NUZUM, Director Division of Alcoholic Beverages and Tobacco

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent by U.S. Mail to James A. Brown Esquire, Suite 600, Courthouse Square Building, 200 Southeast 6th Street, Ft. Lauderdale, Florida 33301, this 23rd day of February, 1978.

CHARLES A. NUZUM

Docket for Case No: 77-002251

Orders for Case No: 77-002251