STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1890

) JOHNNY W. ABNAR, d/b/a MANHATTAN ) RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in the courtroom of the Sarasota City Police Department, 2050 Ringling Boulevard, Sarasota, Florida, by Stephen

1. Dean, assigned Hearing Officer, of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Mary J.M. Gallay, Esquire

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

   
   

   For Respondent: Jack William Windt, Esquire

   1939 Golf Street

   Sarasota, Florida 33577 STATEMENT OF THE ISSUES

   The issues presented were as follows:

   
   

   1. Whether the Respondent failed to maintain records on the premises for a period of three years, as required by Rule 7A-3.14;

      
      

   2. Whether the Respondent failed to maintain necessary equipment or supplies for serving full-course meals regularly, as required by Rule 7A-3.l5;

      
      

   3. Whether the Respondent failed to file a set of fingerprints for Tommie Battie, who had an interest in the business at the time of making application for the beverage license, as required by Section 561.17, Florida Statutes, and Rule 7A-2.14, Florida Administrative Code; and

      
      

   4. Whether the Respondent signed a false affidavit in violation of Section 873.02, Florida Statutes.

FINDINGS OF FACT

1. The Respondent is a licensee holding a 4COP SRX beverage license as a special restaurant licensee.

   
   

2. The Respondent originally applied for a 4COP SRX license on January 26, 1977; however, at that time, he received licensure only as a 2COP. On the 2COP application, the Respondent stated that he did not have any partners. The Respondent reapplied for a 4COP SRX license two months later, at which time he was inspected and approved. This application, which was typed by the local beverage office from the original application filed by the Respondent, did not reflect that the Respondent had any partners in this business. The Respondent signed this application, which was brought to the Manhattan Restaurant by the officers conducting the inspection.

   
   

3. Between the approval of his original license and application for the 4COP SRX license, the Respondent had entered into a limited partnership agreement with Tommie Battie.

   
   

4. Subsequent to obtaining their license as a 4COP SRX, Battie and the Respondent had a disagreement over the financial arrangements in their limited partnership agreement. Battie reported to the local beverage office that he was a limited partner in this business. On the same afternoon that Battie advised the Beverage Department that he was a limited partner, agents of the local office inspected the Respondent's licensed premises at approximately 2:00 p.m.

   
   

5. At the time the Respondent was inspected certain alleged deficiencies were reported. The Respondent allegedly did not have sufficient food on hand to serve 150 patrons a full-course meal and allegedly did not have business records on the premises regarding his sales of alcoholic beverages, and food and non- alcoholic beverages. Testimony was received regarding an inventory made of the premises at the time of the inspection. The Division was directed to copy the original inventory report and file this report as a late-filed exhibit. As of this date, this inventory has not been filed with the Hearing Officer, and it is hereby excluded from this record. The testimony revealed that the Respondent had on hand many pounds of chicken and pork chops, two loaves of bread, several large cans of green beans and potato salad, and two heads of lettuce.

   
   

6. The Manhattan Restaurant's normal business day was from 5:00 p.m. to 1:00 a.m. The Respondent's sister assisted the Respondent in planning the meals. She made a list of needed grocery items when she arrived at approximately 4:00 to 4:30 p.m., and the Respondent picked up these items at a local grocery. The Respondent was bringing in chicken from a grocery shortly after the inspectors arrived at 2:00 p.m.

   
   

7. The Respondent admitted that his business records were not on the premises and that the records which he had kept were deficient; but he stated that in the intervening year since he was inspected, he had improved his record- keeping system and now maintained adequate records on the premises.

   
   

8. The Respondent admitted that he had not disclosed his limited partnership with Battie on his second application but had signed the application at the time of the inspection of the premises, not fully realizing that he was required to reveal Battie's interest in the business. Since the filing of this complaint, the Respondent has purchased Battie's interest in the business.

   CONCLUSIONS OF LAW

   
   

9. The Respondent is charged with violation of Section 837.02, Florida Statutes, which provides that whoever makes a false statement which he does not believe to be true under oath in an official proceeding with regard to any material matter shall be guilty of a felony of the third degree, punishable as provided in Sections 775.081, 775.083, or 775.084, Florida Statutes. This is a criminal provision and a determination of the Respondent's guilt or innocence is not within the jurisdiction of the agency head to adjudicate under the principles enunciated in the case of Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 2d DCA 1977).

   
   

10. The evidence reflects, and the Respondent admits, that he did not maintain records, as required by Rule 7A-3.14, Florida Administrative Code. Although it appears from the evidence that it was unintentional, the Respondent did not submit fingerprints for Battie, who at the time of the second application, did have an interest in the business, as required by Section 561.17, Florida Statutes, and Rule 7A-2.14, supra.

    
    

    MITIGATION

    
    

11. Since December 16, 1977, when these deficiencies were reported, the Respondent has instituted a better record-keeping system and has purchased Battie's interest in the business.

    
    

12. Although the Respondent was in violation of the rules and statutes, as stated above, evidence was not presented that the Manhattan Restaurant did not qualify for a special restaurant license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, and facts and mitigation, it is

RECOMMENDED that the Division assess a civil penalty in the amount of

$350.00 against the Respondent for violation of Rules 7A-3.14 and 7A-2.14, Florida Administrative Code, and Section 561.17, Florida Statutes.

DONE and ENTERED this 6th day of February, 1979, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1979.

COPIES FURNISHED:

Mary J.M. Gallay, Esq.

Department of Business Regulation

725 South Bronough Street Tallahassee, FL 32304

Jack William Windt, Esq. 1939 Golf Street

Sarasota, FL 33577

Docket for Case No: 78-001890

Orders for Case No: 78-001890