STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAINESVILLE GOLF AND COUNTRY ) CLUB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1851RX

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, DEPARTMENT OF )

BUSINESS REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 24, 1979 in Room 309 of the Collins Building, Tallahassee, Florida. The issue for determination at the hearing was whether a portion of respondent's Rule 7A- 3.15, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

APPEARANCES

For Petitioner: William C. Andrews

Andrews and Delaney

1133 North West 23rd Avenue Gainesville, Florida 32601

Robert M. Rhodes

Thompson, Wadsworth, Messer and Rhodes Post Office Box 1876

Tallahassee, Florida 32302

Far Respondent: Dennis E. LaRosa

Staff Attorney

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

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. Petitioner, Gainesville Golf and Country Club, Inc., is a nonprofit Florida corporation which owns, operates and manages a golf course and country club in Alachua County, Florida. Petitioner is presently licensed under Section 565.02(4), Florida Statutes, to serve alcoholic beverages to its members and nonresident guests only.

2. The petitioner's clubhouse contains 6,000 square feet of service area which is equipped to serve 400 persons full course meals at one time. It presently serves full course meals regularly between the hours of 11:00 a.m. and 9:00 p.m. Tuesday through Thursday, and 11:00 a.m. and 10:00 p.m. on Friday and Saturday. Brunch is served from 11:30 a.m. to 2:00 p.m. on Sunday and petitioner is closed on Monday. The service of meals is discontinued at 9:00

   p.m. on weekdays and at 10:00 p.m. on weekends because there is no demand for such services after these hours. During the past twelve months, petitioner has derived in excess of 51 percent of its gross income from the sale of food and nonalcoholic beverages.

   
   

3. As noted above the petitioner presently holds a club license and serves alcoholic beverages to its members and nonresident guests. Pursuant to an Alachua County ordinance, petitioner serves alcoholic beverages from 11:00 a.m. until 2:00 a.m. the following day Tuesday through Saturday, and from 11:30 a.m. until 7:00 p.m. on Sunday. It continues the service of alcoholic beverages after the hours of meal service because there is a demand for such service, and substantial revenues are generated from the sale of alcoholic beverages during these hours.

   
   

4. If petitioner were required to keep its kitchen open for the service of full course meals during the same hours it serves alcoholic beverages, the additional labor costs would amount to approximately $360.00 per week, or approximately $18,000.00 per year.

   
   

5. Petitioner presently desires to obtain a special restaurant license (SRX) so that it may sell alcoholic beverages to nonmembers and thereby increase its gross revenues. If petitioner obtains an SRX license, it would be subject to the provisions of Rule 7A-3.15, Florida Administrative Code, which requires such a licensee to discontinue the sale of alcoholic beverages when it discontinues the service of full course meals. The cost of an SRX license is

   $1,700.00 per year, as opposed to $400.00 per year for a club license. Because of the economic loss it would suffer if it were required to comply with Rule 7A-

   3.15 regarding the hours of sale of alcoholic beverages under an SRX license, petitioner has not yet applied for such a license. It determined, instead, to challenge the validity of Rule 7A-3.15 prior to making application for an SRX license.

   
   

   CONCLUSIONS OF LAW

   
   

6. Alcoholic beverage licenses are generally issued on a quota basis - one license for each 2,500 county residents. However, this limitation of the number of licenses to be issued does not prohibit the issuance of certain special licenses, as provided in Florida Statutes, Section 561.20. Among the special licenses authorized to be issued are those issued to restaurants having 2,500 square feet of service area and equipped to serve 150 persons full course meals at one time, and deriving at least 51 percent of their gross revenue from the sale of food and nonalcoholic beverages. Florida Statutes, 561.20(2)(a)3.

   
   

7. From the unrebutted facts presented at this hearing, petitioner appears to meet the statutory qualifications to apply for a special restaurant license under Florida Statutes, 561.20(2)(a)3. (However, it should be noted that this is not the issue for determination in this proceeding. The foregoing conclusion is reached for the sole purpose of determining whether the petitioner is substantially affected by the challenged rule.) Petitioner desires to make application for a special restaurant license so that it may serve alcoholic

   beverages to nonmembers and thereby increase its revenues. However, there is a provision in Rule 7A-3.15 which requires the discontinuance of the sale of alcoholic beverages when the service of meals is discontinued. Compliance with such a requirement would make it unprofitable and uneconomical for petitioner to hold such a license. For this reason, petitioner has elected to challenge that portion of the Rule prior to making application for a special restaurant license.

   
   

8. Throughout this proceeding, it has been the respondent's contention that since petitioner does not now hold a special restaurant license and has not yet applied for one, it is not and cannot be substantially affected by the rules governing such licenses. The undersigned Hearing Officer rejects this contention.

   
   

9. Petitioner presently holds a beverage license and serves alcoholic beverages pursuant to that license. It desires to apply for a special restaurant license (SEX) and appears to meet the statutory requirements for such a license with regard to square footage, number of persons capable of being served and gross revenues derived from food service. Were it not for the restrictions imposed upon the hours of sale for such a licensee, petitioner would make an application for a special restaurant license. The petitioner is clearly within the zone of interest contemplated by the terms of the challenged rule and, were it not for the rule, petitioner could exercise and benefit from its statutory right to an SRX license. Petitioner should not be put to the peril of expending $1,700.00 to obtain the license and then violating the terms of the rule before it is entitled to challenge the rule's validity. See 4245 Corporation, Mother's Lounge, Inc. v. Division of Beverage, 348 So.2d 934 (Fla. 1st DCA, 1977). It is concluded that the petitioner is substantially affected by Rule 7A-3.15 and therefore has standing to challenge its validity under Section 120.56, Florida Statutes.

   
   

10. In pertinent part, and the portion being challenged in this proceeding, Rule 7A-3.15 provides as follows:

    
    

    7A-3.15. Special licenses, hours of service and minimum requirements.

    
    

    All restaurants holding a special restaurant 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 respondent cites 561.11, Florida Statutes, as its specific authority for the rule and 561.20 as the law being implemented by the rule.

    
    

11. It is the petitioner's contention that there is no statutory authority in the Beverage Law to impose restrictions on the hours of sale of alcoholic beverages by holders of special restaurant licenses different from those imposed on the holders of quota licenses, nor is there authority for a rule restricting SRX hours of sale to meal service periods. Thus, petitioner urges that the challenged rule clearly exceeds delegated legislative authority and is therefore invalid. The undersigned Hearing Officer agrees.

    
    

12. Section 561.11(1), Florida Statutes, simply authorizes the respondent to adopt rules "to carry out the purposes of the Beverage Law." The only

    statute in the Beverage Law pertaining to the hours of sale of alcoholic beverages is found in Section 562.14, Florida Statutes. That statute makes no distinction between different classifications of licenses and simply prohibits the sale, service or consumption of alcoholic beverages between the hours of midnight and 7:00 a.m. of the following day, except as otherwise provided by county or municipal ordinance. The statute goes on to provide that the respondent is not responsible for the enforcement of hours of sale established by local ordinance. Thus, it can be seen that not only does the challenged portion of the rule lack statutory authority, it actually conflicts with the purposes of the Beverage Law as expressed in Florida Statutes, Section 562.14, which permits the sale of alcoholic beverages between 7:00 am until 12:00 midnight unless otherwise provided by county or municipal ordinance. There is nothing in the Beverage Law which recognized or authorizes a rule restricting SRX license hours of sale to meal service periods.

    
    

13. No agency has inherent rule-making authority, Florida Statutes, 120.54(14), and an administrative rule cannot be contrary to or enlarge the provisions of the Florida Statutes. Seitz v. Duval County School Board, 366 So.2d 119 (Fla. 1st DCA, 1979). Restrictive rules must be supported by specific legislative authority. There being nothing in the Beverage Law authorizing the respondent to adopt a rule regulating hours for sale of alcoholic beverages by SRX licensees that are different from other beverage licenses, that portion of Rule 7A-3.15 constitutes an invalid exercise of delegated legislative authority.

    
    

14. The undersigned Hearing Officer has carefully considered each of the parties' proposed findings of fact and conclusions of law. To the extent that they are not included herein, they are rejected as either being not supported by the evidence or as being immaterial to the issues for consideration herein. The legislative history of Florida Statute, 561.20, supports the conclusions reached herein. While once restricting the hours of sale of intoxicating beverages by SRX licensees to the hours of serving food (Chapter 57-773, Laws of Florida), the Legislature chose to remove this language in 1961 (Chapter 61-300, Laws of Florida) and did not reenact such a restriction in subsequent legislation governing special restaurant licenses. Finally, the post-hearing motion of the respondent to strike the Alachua County Zoning Ordinance from the record is granted. Said Ordinance was provided to the undersigned after the hearing was closed. Further, it is not felt to be pertinent to the ultimate issue in this proceeding, i.e., the legislative authority for the respondent to adopt that portion of the rule being challenged herein.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, IT IS ORDERED THAT:

1. That portion of Florida Administrative Code, Rule 7A-3.15, which requires special restaurant licensees to "discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued" constitutes an invalid exercise of delegated legislative authority, and

   
   

2. That petitioners shall pay to the respondent the sum of thirty-five dollars ($35.00) in connection with the deposition scheduled for September 28, 1979.

Done and ordered this 12th day of December, 1979, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Charles A. Nuzum, Director Division of Alcoholic Beverages

and Tobacco Johns Building

725 South Bronough Street Tallahassee, Florida 32301

William C. Andrews Andrews and Delaney

1133 North West 23rd Avenue Gainesville, Florida 32601

Robert M. Rhodes

Thompson, Wadsworth, Messer and Rhodes

Post Office Box 1876 Tallahassee, Florida 32302

Dennis E. LaRosa Staff Attorney

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

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 - Holland Building Tallahassee, Florida 32304

Docket for Case No: 79-001851RX

Orders for Case No: 79-001851RX