STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-1285

) (DABT NO. 6-78-31-A) ROBERT E. AND GRACE E. PARKER, )

d/b/a AMERICANA RESTAURANT AND ) BAR, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on July 20, 1979, at 702 Park Trammell Building, 1313 Tampa Street, Tampa, Florida.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondents: Robert E. and Grace E. Parker

2826 4th Street North

St. Petersburg, Florida 33704 ISSUES

This case is presented as a Notice to Show Cause (Administrative Complaint) containing three counts. Count I alleges that on February 10, 1978, the Respondents licensed under the beverage laws failed to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued, in violation of Rule 7A-3.15, Florida Administrative Code. Count II alleges that on the same date as stated in Count I, the Respondents failed to provide the service of full course meals, in violation of Rule 7A-3.15, Florida Administrative Code. Count III alleges that on the date in question, the Respondents failed to maintain the necessary china, tableware, and employees for preparing and serving full course meals, in violation of Rule 7A-3.15, Florida Administrative Code.

FINDINGS OF FACT

1. This cause comes on for consideration based upon the Notice to Show Cause filed by the Petitioner, State of Florida, Department of Business

   Regulation, Division of Alcoholic Beverages and Tobacco vs. Robert E. and Grace

   E. Parker, d/b/a Americana Restaurant and Bar at 2826 - 4th Street, North, St. Petersburg, Florida. The details of the Notice to Show Cause are set forth in the issues statement of this Recommended Order.

   
   

2. The Respondents are holders of license No. 62-473-SRX, series 4-COP, held with the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was issued in 1972 and remains in effect at this time. The facts in this case show that Beverage Officer Michael Freese went to the licensed premises on February 10, 1978, to make a routine license inspection. He arrived in the premises around 11:15 a.m. and found six to eight customers inside the building. Some of those customers were seated at the bar, drinking alcoholic beverages. None of the customers were observed to be eating.

   
   

3. The licensed premises was in the control of Nancy Brown, an employee of the Respondents, and she was the only employee in the licensed premises, and her function at that time was to act as a bartender. When inquiry was made of her concerning the preparation of meals in the licensed premises, her response to Freese was that she cooked meals if anyone ordered a meal. While Freese was in the licensed premises, he observed Ms. Brown serve the patrons with additional alcoholic beverages.

   
   

4. Freese also noted that a few of the tables in the restaurant area had place settings to include knives, forks and spoons. There were no signs in the premises advertising food for sale. In the kitchen area, the ovens were not operating and no foods were being prepared. There was no grease in the deepfryers, nor indication of any fresh garbage remaining from the preparation of food. The dishes were clean and put away with a light film of dust, indicating that the dishes has not been utilized for sometime. Handles were missing from the sink where the dishes would have been cleaned up. In examining the silverware on hand, it was determined that the restaurant was short eighty- five knives. There was insufficient food to serve two hundred persons. There was no fresh produce or desserts on hand.

   
   

5. In a later discussion with Mr. Parker, the Respondent; which was held on the same day, Parker stated that if any cooking needed to be done he could be at the licensed premises in ten to fifteen minutes. He also stated that they got sandwiches from a local vendor and that 80 percent of the food sales is constituted of sandwiches and soups. Parker provided Freese with a menu of the restaurant, a copy of which may be found as Petitioner's Exhibit No. 1, and a comparison of that menu against the inventory of food on hand when Freese made the inspection shows that there was insufficient food on hand to serve those items listed on the menu.

   
   

6. Freese left the licensed premises around 4:00 p.m. and during the entire time that he was in the restaurant, no one was served food.

   
   

7. Subsequent examination of the records of the licensees revealed that during the months of January through December, $5,169 was expended on nonalcoholic items in the category of food, constituting 16.5 percent of the total purchases, and $21,417.79 was spent for alcoholic beverages, constituting

   68 percent of the total purchases. The licensees did not have register tapes available to compare against the invoices for purchases. The only items available were daily takeoff sheets which showed that in the same time period listed above, $21,000 was sold of food and $28,000 of alcoholic beverages. When compared to the purchase prices for food and alcoholic beverages, the statistics found in the daily worksheets do not present creditable figures.

8. On February 13, 1978, Officer Freese and Officer Joseph A. Maggio returned to the licensed promises around 1:45 p.m. Again, the only person in the restaurant was Ms. Brown and seven to eight customers were observed in the bar area. No one was observed taking meals. Six tables were set up so that meals could be served. The area off the kitchen was as described on February 10, 1970, in terms of the cooking ranges, utensils, food and food preparation. Around 2:05 p.m. there was a further discussion held with the Respondent, Mr. Parker, who in the conversation indicated that he and his wife worked in the restaurant from 6:00 a.m. to 11:00 a.m., at which point Ms. Brown came in, and the Parkers returned at 6:00 p.m. and stayed until closing.

   
   

9. In the course of the hearing, Mr. Parker testified and reiterated that sandwiches and soup are the main food of the restaurant, although the customers may be served steaks and produce and dairy products, upon request.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this cause.

    
    

11. From the facts shown, it is concluded as a matter of law that the Respondents failed to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued at the time when Officer Freese made his inspection on February 10, 1978, and this failure constituted a violation of Rule 7A-3.15, Florida Administrative Code, and subjects the Respondents to the penalties found in Subsection 561.29(1)(e), Florida Statutes. It is further concluded as a matter of law that the facts reveal that during the course of Officer Freeze's inspection of February 10, 1978, the Respondents failed to provide the service of full course meals in contradiction to Rule 7A- 3.15, Florida Administrative Code, and are subject to the penalties stated in Subsection 561.29(1)(e), Florida Statutes. Finally, it is concluded as a matter of law that on February 10, 1978, at the time of Officer Freese's inspection, the Respondents failed to maintain the necessary tableware; to-wit, knives, and employees necessary for preparing and serving full course meals, and this failure was in violation of Rule 7A-3.15, Florida Administrative Code, and subjects the Respondents to the penalties found in Subsection 561.29(1)(e), Florida Statutes.

RECOMMENDATION

It is recommended that the Respondents, Robert E. and Grace E. Parker, have their series 4-COP SRX license REVOKED.

DONE AND ENTERED this 13th day of August, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Room 100 Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire Staff Attorney

Depatment of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Robert E. and Grace E. Parker d/b/a Americana Restaurant and Bar 2826 - 4th Street North

St. Petersburg, Florida 33704

Docket for Case No: 79-001285

Orders for Case No: 79-001285