STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1514

) DABT NO. 62-1626 THE WEDGEWOOD INN, EX. INC., )

1701 4TH STREET SOUTH ) ST. PETERSBURG, FLORIDA 33704, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 2:00 p.m., on September 19, 1978, in Room 417, Hillsborough County Courthouse Annex,

419 Pierce Street, Tampa, Florida.

APPEARANCES

For Petitioner: William A. Hatch, Esquire

Legal Section

725 South Bronough Street Tallahassee, Florida

For Respondent: No representative present

Petitioner, Division of Alcoholic Beverages and Tobacco (hereafter DABT), seeks to assess a civil penalty against or suspend or revoke the Division of Beverage license of Respondent, Ex, Inc., t/a The Wedgewood Inn (hereafter Wedgewood), for its failure to maintain the principal business and primary operation of its restaurant for the preparation, cooking and serving of meals and not for the sale of alcoholic beverages.

FINDINGS OF FACT

1. Wedgewood is the holder of Division of Beverage license number 62-1626, 4-COP SRX, which authorized Wedgewood to sell alcoholic beverages for consumption on the premises at retail only.

   
   

2. Wedgewood is advertised as a resort with private villas, hotel rooms, two restaurants and a disco with live entertainment. An ad published on page 81 of Cruise Magazine, Volume 3, No. 4, however, makes no reference to any of the facilities except the appearance of an entertainment group known as The Village People. On the other hand, an ad in the November 19, 1977, issue of Florida Alive gives equal emphasis to hotel facilities, restaurant facilities and disco facilities.

3. Wedgewood has promulgated and distributed a flyer advertising daily happy hour with special prices for alcoholic beverages. That same flyer advertises the sale of sandwiches and emphasizes that dining facilities are available nightly.

   
   

4. Wedgewood has produced two menus. One appears to be a lunch menu which contains a soup, fifteen different sandwiches, three salads, five hot entrees, french fries, six desserts and beverages without reference to alcoholic beverages. Wedgewood has also produced a dinner menu containing appetizers, soups, five seafood entrees, five beef entrees, and two fowl entrees, with soup, salad and an assortment of desserts. The only reference to alcoholic beverages contained in the menu suggests that one's favorite after dinner drink is available.

   
   

5. Wedgewood has two restaurants with complete facilities for serving and preparing for the requisite number of full course meals.

   
   

6. For the period, June 15, 1977, through January 30, 1978, Wedgewood shows gross revenues of $162,685.00, composed of $22,991.00 for food sales and

   $139,694.00 for alcoholic beverage sales. These figures indicate that Wedgewood has derived approximately 14 percent of its total revenue from food services.

   
   

7. One of the criteria contained in Rule 7A-3.15, Florida Administrative Code, used in determining whether or not the holder of a restaurant license is a bona fide restaurant is:

   
   

   The restaurant must derive at least 51 percent of its gross revenue from the sale of

   food and non-alcoholic beverages. The

   51 percent shall be determined by taking the average monthly gross revenue of the

   sale of food and non-alcoholic beverages over a period of any calendar year.

   
   

8. DABT urges that the gross receipts evidence of the approximate seven month period should be used in making a determination that the licensee is not a bona fide restaurant. However, DABT is arguing against its own regulations. Unless the revenues are analyzed over a calendar year as provided in the Rule, the percentage of revenue from the sale of food and non-alcoholic beverages may not properly be used as a criterion. Accordingly, the evidence as to the revenues will not be considered in the determination of the instant case.

   
   

9. Wedgewood has advertised and held out to the public to be a place where meals are prepared and served, as evidenced by its comprehensive menus. The evidence shows that space is provided with adequate kitchen and dining room equipment and that there are employed sufficient numbers and kinds of employees for preparing, cooking and serving meals for guests.

   
   

10. While Wedgewood obviously engages in the sale of alcoholic beverages, there is insufficient evidence to establish that such sale is subordinate to the sale of food. Equal advertising space is given to both functions and accordingly, it is found, as a matter of fact, that the principal business of the restaurant is to cater to and serve full course bona fide meals to the general public and the primary operation of the restaurant is for the preparation and cooking and serving of meals and not for the sale of alcoholic beverages.

    CONCLUSIONS OF LAW

    
    

11. It is concluded that Wedgewood, as the holder of a special restaurant license, is a bona fide restaurant. It is therefore,

RECOMMENDED that DABT take no action against the licensee.

DONE and ENTERED this 29th day of March, 1979, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

William A. Hatch, Esquire Legal Section

725 South Bronough Street Tallahassee, Florida 32304

The Wedgewood Inn, Ex. Inc. 1701 4th Street South

St. Petersburg, Florida

Docket for Case No: 78-001514

Orders for Case No: 78-001514