STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3232

) SALVATION LIMITED, INC., t/a ) SALVATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Bearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on April 1 and June 16, 1982, in Miami, Florida. 1/

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Lane Abraham, Esquire

200 Southeast First Street, Suite 1101 Miami, Florida 33131

ISSUE

Whether respondent's special restaurant alcoholic beverage license should be disciplined or a civil penalty imposed, for failure to comply with special restaurant operation requirements contained in Section 561.20, Florida Statutes (1981) and Rule 7A-3.15, Florida Administrative Code.

BACKGROUND

By notice to show cause dated August 28, 1981, petitioner Division of Alcoholic Beverages and Tobacco ("DABT") charged respondent Salvation Limited, Inc., t/a Salvation respondent") with violation of the Beverage Law and implementing rules. Specifically, DABT alleged that on August 5, 1981, respondent violated special restaurant liquor license criteria by failing to:

1. Maintain minimum requirements for

   bona fide [sici full course meals and prepare any meals on the premises; and

   1. Maintain tables of adequate [sic]

      size to accommodate [sic] the service of 200 full course meals in accordance with the number of chairs found at that table;

   2. Derive at least 51 percent of its gross revenue from the sales of food and nonalcoholic beverages;

   3. Cater to and serve full course bona fide [sic] meals to the general public as the principal business; and

   4. Be equipped with the necessary china and tableware and seating to handle 200 patrons at any given time.

Respondent contested the charges and requested a Section 120.57 hearing.

On December 22, 1981, this case was transferred to the Division of Administrative Hearings for assignment of a hearing officer. Subsequently, DABT, without opposition, amended its notice to show cause by alleging the violations occurred between April 28 and August 5, 1981.

At hearing, DABT called Patricia Geyer, Patrick Roberts, and Walter Saric as witnesses. Petitioner's Exhibit 2/ Nos. 2-5 and Respondent's Exhibit No. 1 were received into evidence. Certain facts were agreed to by stipulation.

The parties submitted proposed findings of fact by July 18, 1982. A transcript of hearing has not been filed.

Based on the evidence presented, the following facts are determined:

FINDINGS OF FACT I.

1. On March 12, 1981, DABT issued respondent a special restaurant alcoholic beverage license, No. 23-4626 SRX, Series 4 COP. (P-2, P-3.)

   
   

2. Under the authority of this license, petitioner operates a business ("the licensed premises") at 49 Northwest Fifth Street, Miami, Florida, which serves food and beverages (alcoholic and nonalcoholic) to the general public. (Testimony of Saric; P-2, P-3.)

   
   

   II.

   
   

3. At 2:30 p.m. on April 28, 1981, Beverage Agents Patricia Geyer and Patrick Roberts entered the licensed premises and found it closed. Jim Novak, the manager, took them on a tour of the premises. On the first floor, tables and chairs had not been set up. A large wooden dance floor had just been waxed, and an unknown number of tables and chairs were folded and stacked in the adjacent patio area. The kitchen equipment was not in use; shipping tape was attached to the stove dodrs; the dishwasher contained glasses and plates which were covered with dust. On a shelf next to the dishwasher were approximately

   150 plates, cups, and saucers, also covered with dust. No silverware was found. The kitchen cooler contained 15 cases of beer and no food. The mezzanine level had ten tables with chairs set up to accommodate 30 people. The second floor contained business offices and a storage room containing wine and old-fashioned glasses and 15 cans of soup. (Testimony of Geyer, Roberts.)

   
   

4. Agent Geyer asked Mr. Novak for a menu and was told there was none. He told them that the licensed premises served food catered by the Affaire Restaurant. (Testimony of Geyer.)

5. At 9:30 p.m. on May 6, 1981, Beverage Agent Geyer, accompanied by another agent, arrived at the licensed premises and found it closed. They returned at 10:20 p.m. and, in an undercover capacity, were admitted to the premises after paying a $3 cover charge. They sat in the bar area and ordered alcoholic beverages. Few people were on the premises at the time. The large dance floor was in use; approximately 15-20 tables were set up in the patio area. The agents observed the kitchen area and saw no one enter or leave; neither did they see any patrons eating or being served food.

   
   

6. At 11:30 p.m., they went upstairs to the mezzanine area, sat at a table, and asked for a menu. They were handed a menu which listed a single full-course dinner, named the "Grand Prix," for $25. Agent Geyer did not order the meal because of its expense; at the time, she believed that if she had ordered it, she would have been served the meal. Agent Geyer remained on the

   premises until after midnight but never saw any food being served or consumed or tables set with silverware and dinnerware. There were approximately 200 people on the premises when she exited. (Testimony of Geyer.)

   
   

7. At 11:00 p.m. on August 5, 1981, Agent Geyer, accompanied by another agent, returned to the premises for a final inspection. The manager showed them the kitchen area where the stove still had shipping tape attached to it; there were no indications that food was being prepared or served. On the first floor no tables were set up in the dance floor area; tables were, however, set up in the patio area, and a smoking grill was observed. The agents did not check the mezzanine area. They observed 15-25 patrons on the premises that evening. (Testimony of Geyer.)

   
   

   III.

   
   

8. Between April and August, 1981, full-course Sunday buffets were served on the premises by the Affaire Restaurant, a caterer under contract with respondent. Some of the food was prepared in advance, some was prepared using the convection oven on the premises. The Sunday buffets were adequate to serve

   300 patrons and usually included two entrees, salads and desserts. Beverages were provided by respondent. Plastic plates and utensils were used to minimize cleanup. Silverware was available in the kitchen, but the caterer never used it. (Testimony of Saric.)

   
   

9. Between April, 1980, and March, 1981--when respondent received its beverage license--respondent Spent approximately $31,000 on kitchen equipment, dishes, silverware, tables, chairs, and glassware for the licensed premises. Included were at least 88 tables and 175 chairs. (R-1.)

   
   

10. During March, April, and May, 1981, the percentage of gross revenue derived from the sale of food and alcoholic beverages on the premises was as follows:

    
    

    	FOOD PERCENTAGE	ALCOHOLIC BEVERAGES PERCENTAGE
    March	16	84
    April	28	72
    May	32	68

    
    

    (Stipulation of Parties.)

    
    

11. No beverage agent counted the total number of chairs and tables on the premises, including those chairs and tables which were available to be set up.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981)

    
    

13. DABT is empowered to suspend or revoke a beverage license, or impose a civil penalty, for any violation of Chapter 561, the Beverage Law, and implementing rules. 561.29(1)(a), (a), Fla. Stat. (1981)

    
    

14. Special restaurant beverage licenses are an exception to the quota limitations which otherwise apply to the issuance of beverage licenses. In order to qualify for and maintain such a license, Section 561.20(2)(a)3, Florida Statutes, requires that a restaurant have:

    
    

    2,500 square feet of service area and [be equipped to serve 150 persons full-course meals at tables at one time, and deriv)e) at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages; . . . .

    
    

15. Further, under Rule 7A-3.15, Florida Administrative Code, the following requirements must be met:

    
    

    1. Tables of adequate size to accommodate the service of full course meals in accordance with the number of chairs found at that table.

    2. 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.

    3. The principal business of the restaurant must cater to and serve full course bona

       fide meals to the general public.

    4. 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 equipment 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.

    5. The restaurant shall be equipped with the necessary china and tebleware and seating to handle the minimum seating special act.

16. Here, DABT seeks to discipline respondent for alleged violation of these statutory and rule standards. In penal proceedings of this nature, the prosecuting agency is required to prove its charges by clear and convincing evidence, by evidence as substantial as the consequences to the licensee. See Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1866); Walker

    v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Bowling v. Department of Insurance,

    394 So.2d 165 (Fla. 1st DCA 1981). The sufficiency of the evidence to prove each charge is addressed below.

    
    

    1. Alleged failure to maintain minimum requirements for bona fide full-course meals and prepare any meals on the premises.

       
       

17. This charge is unsubstantiated. The record establishes that bona fide full-course meals were served on the premises. Part of the food was prepared on the premises with a convection oven, the rest was prepared off-premises. Rule 7A-3.15(3)(d), which requires the preparation and cooking of food on the premises, has been declared an invalid exercise of delegated legislative authority. See, Salvation Limited, Inc. v. Division of Alcoholic Beverages and Tobacco, DOAH Case No. 82-1498R (Final Order entered August 23, 1982).

    
    

    1. Alleged failure to maintain tables of adequate size to accommodate the service of 200 full-course meals in accordance with the number of chairs found at that table.

       
       

18. This charge is unsubstantiated. Section 561.20(2)(a)3 and the implementing rule require that the restaurant be equipped with tables sufficient to serve 150 persons full-course meals. DABT agents never counted the total number of tables and chairs on the premises, including the tables which could be readily set up. Moreover, food was periodically served on the premises in sufficient amount to accommodate 300 patrons. During the April 28, 1981, inspection, there was an unknown number of stacked tables and chairs ready to be set up. During the May 6, 1981, inspection, DABT admits there were 15-20 tables on the patio and 9-12 tables set up on the mezzanine; the evidence was insufficient to support a conclusion that this number of tables could not adequately serve 150 patrons. When the agents left the restaurant that evening, there were approximately 200 people on the premises. Finally, during the August 5, 1981, inspection, the evidence does not support a finding that the restaurant was not equipped with tables sufficient to serve 150 persons. There was an unknown number of tables on the patio and the mezzanine level was not checked.

    
    

    1. Alleged failure to derive at least 51 percent of its gross revenue from the sales of food and nonalcoholic beverages.

       
       

19. This charge is also unproven. DABT, by rule, requires that the percentage be determined "by taking the average monthly gross revenue of the sales of food and nonalcoholic beverages over a period of any calendar year." (e.s.) Rule 7A-3.15(3)(b), F.A.C. Here, DABT contends, instead, that it can find respondent in violation of the requirement that 51 percent of its gross revenue be derived from sales of food and nonalcoholic beverages by calculating a three-month average. This contention is rejected. An agency must honor its own rules until they are amended or repealed. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977)

    1. Alleged failure to cater to and serve full-course, bona fide meals to the general public as the principal business.

       
       

20. This charge is unproven. The premises were open to the general public and bona fide meals were served. The primary test for determining whether service of meals was the "principal business is the percentage of gross sales requirement. As stated above, violation of that requirement was not proven.

    
    

    1. Alleged failure to be equipped with the necessary china and silverware and seating to handle 200 patrons at any given time.

    
    

21. This charge is based on Rule 7A-3.15(3)(e) which requires restaurants to be equipped with "necessary china and tableware and seating to handle the minimum seating special act." First, there was no evidence taken or explanation given as to why respondent should be equipped to handle 200 patrons, instead of

    150 patrons required by Section 561.20(2)(a)3. If there is a special act which requires that respondent be equipped to accommodate 200 persons, it has not been referenced or argued. As stated above, it was not established that the tables on the premises were inadequate to serve 150 persons. Moreover, respondent purchased approximately 175 chairs for the restaurant between April, 1980, and March, 1981. While respondent did not have sufficient silverware and china to serve 150 people, such utensils were not necessary since it used plastic plates and utensils. It must be concluded, therefore, that this charge has also not been proven.

    
    

22. Since DABT has not established a violation of Section 561.20(2)(a)3 or its implementing rules, the charges should be dismissed.

    
    

23. To the extent the parties' proposed findings of fact are incorporated in this recommended order, they are adopted; otherwise, they are rejected as unsupported by the evidence or unnecessary to the resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the notice to show cause, dated August 28, 1981, as amended, and the charges contained therein, be dismissed.

DONE AND RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1982.

ENDNOTES

1/ By agreement of the parties, this case was heard in conjunction with Salvation Limited, Inc. v. Division of Alcoholic Beverages and Tobacco, Case No. 82-149 OR, a related rule challenge proceeding.

2/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

COPIES FURNISHED:

Lane Abraham, Esquire Suite 1101

200 Southeast First Street Miami, Florida 33131

Captain John Harris Division of Beverage 1350 Northwest 12 Avenue

Miami, Florida 33136

James N. Watson, Jr., Esquire Charles A. Nuzu, Director Department of Business Division of Alcoholic

Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street

Tallahassee, Florida 32301 Tallahassee, Florida 32301

Docket for Case No: 81-003232

Orders for Case No: 81-003232