STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SALVATION LIMITED, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1498RX

) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Respondent. )

)

FINAL ORDER

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

APPEARANCES

For Petitioner: Lane Abraham, Esquire

200 Southeast First Street, Suite 1101 Miami, Florida 33131

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

725 South Bronough Street Tallahassee, Florida 32301

ISSUE

Whether respondent's Rule 7A-3.15(3) (a) and (d), containing criteria for special restaurant alcoholic beverage licenses, constitutes an invalid exercise of delegated legislative authority.

BACKGROUND

On June 1, 1982, petitioner Salvation, Limited, Inc. ("petitioner"), filed with the Division of Administrative Hearings a petition challenging the validity of two parts of Rule 7A-3.15, Florida Administrative Code. This rule contains criteria which respondent Division of Alcoholic Beverages and Tobacco ("DABT") uses to determine whether a special restaurant licensee is operating as a bone fide restaurant.

By agreement of the parties, this case was heard on June 16, 1982, in conjunction with a related DABT case previously filed against petitioner's alcoholic beverage license, Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., t/a Salvation, Case No. 81-3232. At hearing, petitioner offered one exhibit and DABT offered four exhibits into evidence. 1/ DABT called as witnesses Patricia Geyer, Patrick Roberts, and Walter Saric.

Proposed findings of fact and conclusions of law were submitted by July 19, 1982. The parties waived the statutory requirement that a final order be rendered within 30 days after hearing.

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

FINDINGS OF FACT

1. On March 12, 1981, DABT issued petitioner 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 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.)

   
   

3. By notice dated August 28, 1981, as later amended, DABT sought to suspend or revoke petitioner's beverage license or impose a civil penalty. As grounds, DABT accused petitioner of violating Chapter 561, Florida Statutes, and Rule 7A-3.15, Florida Administrative Code. It contended that respondent violated Rule 7A-3.15 between April 28 and August 5, 1981, by failing to "prepare any meals on the premises . . . and by failing to "maintain tables of adequate size to accomodate [sic] the service of 200 full-course meals in accordance with the number of chairs found at that table.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.56, Fla. Stat. (1981).

   
   

5. Petitioner has standing to seek an administrative determination of the validity of portions of Rule 7A-3.15, Florida Administrative Code. Since petitioner is threatened with sanctions for allegedly violating Rule 7A-3.15, it is "substantially affected" by the rule within the meaning of Section 120.56(1), Florida Statutes (1981).

   
   

6. At issue is the validity of Rule 7A-3.15(3)(a) and (d), Florida Administrative Code; which read:

   
   

   1. [The following criteria will be used in determining whether or not the holder of a specified restaurant license is a bona fide restaurant:]

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

         * * *

         (d) 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. (e.s.)

         
         

         A. Section 7A-3.15(3)(a).

         
         

7. This rule, adopted before July, 1981, requires that tables be of adequate size to serve full-course meals to the requisite number of patrons. Petitioner concedes its validity because of the July, 1981, amendment to Section 561.20(2)(a)3, which added a requirement that special restaurant licensees be equipped to serve 150 persons full-course meals "at tables." But it contends that prior to July, 1981, when it obtained its license, the rule was unauthorized by statute and thus invalid.

   
   

8. DABT's general rulemaking power stems from Section 561.11:

   
   

   (1) The division shall have full power and authority to make, adopt, amend, or

   repeal rules, regulations, or administrative orders to carry out the purposes of the Beverage Law. (e.s.)

   
   

9. The "purposes" of the Beverage Law are defined by its organic provisions. The statute in effect prior to 1981 required that special restaurant licensees be equipped to serve 150 persons full-course meals at one time. 561.20(2)(a)3, Fla. Stat. (1979). "To serve" is undefined so it must be given its plain and ordinary meaning. Smith v. State, 85 So. 911 (Fla. 1920). In construing statutes, it is conclusively presumed that the legislature has a working knowledge of the English language. Florida State Racing Commission v. McLaughlin, 102 So.2d 574, 575 (Fla. 1958). The use of a comprehensive term ordinarily indicates an intent to include everything embraced within the term. Id. at 576. "To serve" means "to help persons to food: as (a): to wait at table (b): to set out portions of food or drink." Webster's New Collegiate Dictionary, p. 1059 (1974).

   
   

10. By adopting Rule 7A-3.15 (3)(a), DABT chose a permissible interpretation which implements and is fairly implied by the legislature's use of the term "serve." When an agency adopts, by rule, a permissible interpretation of its statute, the rule must be sustained even though other interpretations of its statute are possible, or even preferable. State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981). It is concluded, therefore, that the rule is a valid exercise of delegated legislative authority as applied to respondent.

    
    

    B. Section 7A-3.15(3)(d)

    
    

11. Petitioner contends that Section 7A-3.15(3)(d) is invalid and lacks statutory authority because it requires that meals served by a special restaurant licensee be prepared and cooked on the licensed premises. DABT replies that this question was authoritatively answered by Department of Business Regulation, Division of Beverage v. Huddle, Inc., 342 So.2d 140 (Fla. 1st DCA 1977), which, it argues, held that Rule 7A-3.l5, the test of a bona fide restaurant operation, was reasonable and consistent with the statute. Id. at 142.

    
    

12. No agency has inherent rulemaking authority. 120.54 (14), Fla. Stat. (1981). The legislature cannot delegate to an agency the power to enact a law,

    to declare what the law shall be, or to exercise an unrestricted discretion in applying a law. State v. Atlantic Coast Line Railroad Company, 47 So. 969 (Fla. 1908). It may, however, enact a law

    
    

    complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules for the complete operation of and enforcement of the law . . . .

    
    

    Id. at 976. In 4245 Corporation v. Division of Beverage, 371 So.2d 1032, 1034 (Fla. 1st DCA 1978), the First District Court of Appeal held:

    
    

    [An agency's] power to adopt rules is

    limited to the yardstick laid down by the legislature. (e.s.)

    
    

13. It is axiomatic that an administrative rule cannot enlarge, modify, or contravene the provisions of a statute. Seitz v. Duval County School Board, 366 So.2d 119, 121 (Fla. 1st DCA 1979); State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980). A rule which attempts to do so constitutes an invalid exercise of delegated legislative authority. See, Nicholas v. Wainwright, 152 So.2d 458, 460 (Fla. 1st DCA 1963).

    
    

14. Section 561.20(2)(a)3 is the statutory provision which enumerates criteria for special restaurant licensees:

    
    

    (2)(a)3. Any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at tables at one time, and deriving at least

    51 percent of its gross revenue from the sale of food and nonalcoholic beverages; [qualifies for a special restaurant license]. (e.s.)

    
    

15. The rule at issue requires that the primary operation of a special restaurant licensee be for the "preparation, [and] cooking of meals "

    Rule 7A-3.15(3)(d), F.A.C. As explained below, this rule is invalid because it effectively modifies and enlarges the statute by adding a new and additional licensing qualification--the preparation and cooking of meals on the premises.

    
    

16. The statute does not expressly require that meals be prepared and cooked on the licensed premises. Neither can it be read to necessarily or fairly imply such a requirement. In relevant part, the statute requires that the licensee be a "restaurant" equipped to "serve" full-course meals to 150 patrons. Since the statute does not define the terms "restaurant" or "serve," they must be given their plain and ordinary meaning. Smith, supra; McTigue, supra at 456; see, 30 Fla. Jur., Statutes, 87.

    
    

17. "Restaurant" is defined by the dictionary as "a public eating place." Webster's New Collegiate Dictionary, p. 987 (1974). As already indicated, "to serve" means "to help persons to food: as (a): to wait at table (b): to set out portions of food or drink." Id. at 1059. These two terms are clear and unambiguous. The serving of food by a restaurant simply does not require that

    the food be prepared and cooked on the premises. If the legislature had intended to impose such a requirement it could easily have done so.

    
    

18. In McTigue, the First District Court of Appeal confronted an analogous situation. There, the statute required applicants for a midwifery license to, among other things, "have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor (e.s.) Id. at 455. The Department of Health and Rehabilitative Services defined "physician," by rule, as a physician licensed in Florida. The court held that

    
    

    [a]pplying the rule of statutory construction that words are to be given their plain and ordinary meaning, it is obvious that a "physician", unless the wording of the state or the context requires otherwise, could be a physician duly licensed under the laws of any state, not just Florida. By adding the requirement that the physician be a Florida physician the rule is an invalid exercise of delegated legislative authority because it modifies the statute by adding an additional criterion to be met by the applicant. Id. at 456.

    
    

19. Here, the legislature enumerated specific criteria for a special restaurant beverage license. The applicant or licensee must (1) be a restaurant, (2) having 2,500 square feet of service area, (3) equipped to serve

    150 persons full-course meals at tables at one time, and (4) derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages. 561.20(2)(a)3, Fla. Stat. (1981). To these fixed and definite criteria, DABT added, by rule, a fifth criterion: that the meals be prepared and cooked on the licensed premises. In so doing, it added to and enlarged upon the statutory criteria and exceeded the "yardstick" laid down by the legislature. See, 4245 Corporation, supra; McTigue, supra.

    
    

20. Neither has it been shown, or even argued, that rejection of DABT's contention--that Section 561.20(2)(a)3 supports a requirement that meals be prepared and cooked on the premises--will lead to absurd results or defeat the purpose or intent of the Beverage Law. Compare, Framat Realty, supra at 241; Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251, 1253 (Fla. 1st DCA 1982). In Huddle, supra, the court held:

    
    

    It has always been the legislative intent that a special restaurant license

    under Section 561.20(2) was available only when there was a bona fide substantial restaurant operation primarily engaged in the service of food and nonalcoholic beverages.

    It was never to be a subterfuge for the operation of a bar or cocktail lounge with only incidental sales of food. 2/

    
    

    Id. at 142. It has not been shown that off-premises preparation and cooking of food conflicts or is inconsistent with this legislative intent.

    
    

21. DABT argues that Huddle, supra, held the rule at issue was reasonable and consistent with the statute. But the Huddle court specifically addressed

    and upheld only the rule requirement that a minimum percentage of gross revenues be derived from the sale of food and nonalcoholic beverages. Id. at 142. Its holding cannot be broadened to include other portions of the rule which were not subjected to judicial scrutiny.

    
    

22. It is concluded that the challenged rule, Section 7A-3.15(3)(d), exceeds, and constitutes an invalid exercise of, delegated legislative authority. Since the requirement that meals be cooked and prepared on the premises is found throughout this rule and cannot be removed without affecting the remaining parts, the subsection must be declared invalid, in its entirety.

    
    

23. Petitioner's posthearing correction of the rule numbers cited in its petition is treated as a motion to amend. Since DABT failed to show why such an amendment should not be permitted, the motion is granted.

    
    

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

FINAL ORDER

Based on the foregoing and pursuant to Section 120.56(3), Florida Statutes (1981), it is

ORDERED:

1. Rule 7A-3.15(3)(a), Florida Administrative Code, constitutes a valid exercise of delegated legislative authority as applied to petitioner; and

   
   

2. Rule 7A-3.15(3)(d), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

DONE AND ORDERED this 23rd 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 23rd day of August, 1982.

ENDNOTES

1/ These exhibits were marked into evidence in accordance with the designation of the parties in Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., t/a Salvation, Case No. 81-3232. Accordingly, Petitioner's Exhibits will be referred to as "R- ," and Respondent's Exhibits will be referred to as "P- .

2/ The court held only that the restaurant must be primarily engaged in the service of food, not the preparation, cooking, and service of food.

COPIES FURNISHED:

Lane Abraham, Esquire Suite 1101

200 Southeast First Street Miami, Florida 33131

James N. Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Liz Cloud

Florida Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Act

Committee

Room 120, Holland Building Tallahassee, Florida 32301

Captain John Harris Division of Beverage 1350 Northwest 12 Avenue

Miami, Florida 33136

Docket for Case No: 82-001498RX

Orders for Case No: 82-001498RX