STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-552

) HARRY'S RESTAURANT & LOUNGE, INC, ) d/b/a HARRY'S RESTAURANT & ) LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for formal hearing before MARVIN E. CHAVIS, duly designated Hearing Officer of the Division of Administrative Hearings, on March 16, 1983, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Janice G. Scott, Esquire

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

For Respondent: Harry H. Popham, Jr.

Harry's Restaurant and Lounge 6260 South Tamiami Trail

Fort Myers, Florida ISSUES AND BACKGROUND

By amended notice to show cause, Respondent has been charged with the following violations:

On or about July 14, 1982, you, Harry's Restaurant & Lounge, Inc., licensed under the beverage laws as a special restaurant, failed to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued contrary to Administrative Rule 7A3.15 and F.S. 561.20. On or about July 15, 1982, you, Harry's Restaurant & Lounge, Inc., licensed under the beverage laws as a special restaurant, failed to discontinue the sale of alcoholic beverages when the service of full course

meals had been discontinued contrary to Administrative Rule 7A3.15 and F.S. 561.20.

On or about January 1982 through June 1982 you, Harry's Restaurant & Lounge, Inc., licensed under the beverage laws as a special

restaurant, failed to derive at least 51 percent of your gross revenue from the sale of food and nonalcoholic beverages,

the principal business of the licensed premises is not the serving of full course, bona fide meals and the licensee does not meet the re- quirements of Section 561.20, Florida Statutes, to hold a special restaurant license. Section 561.15(3)(c) , Florida Statutes.

At the formal hearing the Petitioner called as witnesses Thomas L. Stout, Second Lieutenant with the Division of Alcoholic Beverages and Tobacco and Kathy Lux, Beverage Officer. Mr. Harry Popham, Jr., testified on behalf of the Respondent. The Petitioner offered and had admitted three exhibits and the Respondent offered and had admitted three exhibits. After proper inquiry, it was determined that Harry H. Popham, Jr. was a proper and acceptable representative for the Respondent at the formal hearing.

The counsel for Petitioner submitted Proposed Findings of Fact and Conclusions of Law to be considered by the Hearing Officer. To the extent that those Proposed Findings of Fact and Conclusions of Law are not adopted herein they were considered and rejected as being irrelevant to the issues in this cause or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent, Harry's Restaurant & Lounge, Inc., is the holder of a special restaurant license number 46-236, Series 4-COP, SRx, for the premises located at 6260 South Tamiami Trail, Fort Myers, Florida. Said license permits the sale of alcoholic beverages in conjunction with Respondent's restaurant operation.

   
   

2. At the above location Respondent operates a restaurant and lounge named Harry's Restaurant & Lounge. The licensed premises consists of a large restaurant area separated from an elevated lounge area by planters. There are

   291 seats in the restaurant and lounge and 171 of these seats are at tables which always have tablecloths, silver and flowers.

   
   

3. On July 14, 1982, at approximately 10:30 in the evening, Beverage Officers Kathy Lux and Steve Tompkins visited the licensed premises as part of an investigation to determine if alcoholic beverages were being sold in a manner contrary to the requirements of Respondent's license. Upon entering the restaurant, Officers Lux and Tompkins took a seat at a table in the lounge area. There were approximately 200 patrons present in the lounge area and a live band was playing. A waitress approached the two officers and asked what they would like to drink. They were given no menu. In response to Officer Lux's inquiry about ordering something to eat, the waitress stated that they didn't specialize in food that late at night and that the only thing available was a hamburger platter. No other patrons were served food during the period of time the officers were present in the licensed premises that evening.

4. On July 15, 1982, at approximately 11:30 P.M., Officers Lux and Tompkins returned to the licensed premises. After a waitress took their drink order, the officers requested a menu. The waitress informed them that the kitchen was closed and locked and "Harry" had the key. Approximately a half hour later the waitress returned with a menu and stated that they had found the key and the kitchen was open. She also stated that the only thing available was a hamburger platter or a cheeseburger. The premises was crowded and no one was observed being served food.

   
   

5. The menu received on July 15, 1982, was titled "Harry's Late Nite" and listed five separate items. (See Petitioner's Exhibit 1) The items listed were:

   (1) Hamburger; (2) Cheeseburger; (3) Tuna Salad Plate; (4) Chicken Salad Plate; and (5) New York Strip. Each of these included french fries and a salad. The Respondent actually made available only the hamburger and cheeseburger platters because those are the items which had been ordered most often late at night since the restaurant had opened.

   
   

6. On July 20, 1982, Beverage Officer Lux went into the licensed premises where she was provided with the restaurant records in the form of a ledger. Those records (See Petitioner's Exhibit 2) revealed the following information for the months of January through June, 1982:

   
   

   MONTH TOTAL SALES	FOOD SALES	ALCOHOLIC BEVERAGE SALES	FOOD SALES PERCENTAGE
   January $89,019.14	$30,745.21	$58,273.93	35 pct
   February 87,403.69	25,296.38	62,107.31	29 pct
   March 93,639.53	25,093.62	68,545.91	27 pct
   April 88,926.01	20,530.86	68,395.15	23 pct
   May 71,990.97	16,886.29	55,104.68	23 pct
   June 70,808.41	15,360.10	55,448.31	22 pct

   
   

7. These figures are inaccurate to the extent that 13 to 14 percent of the bar sales shown included nonalcoholic beverage sales which should have been included in Food Sales rather than Alcoholic Beverage Sales. With this adjustment, the percentages of Food Sales would still be less than 51 percent.

   
   

8. The Respondent offers a major buffet each holiday and also advertises the restaurant by letter to specific groups and organizations for banquets and special occasions. Several groups have held such functions at the restaurant. The Respondent advertises both the restaurant and lounge in the local Fort Myers newspapers (See Respondent's Exhibit 1) and also has a large sign in front of the restaurant which advertises the daily food specials. The Respondent spends substantially more for kitchen supplies and food than for bar supplies and alcoholic beverages. Approximately 95 percent of the advertising costs incurred by Respondent in 1982 related to the serving of food.

   
   

9. The restaurant was a new operation and developing business during the first six months of 1982. Since the first part of December 1982 through March 15, 1983, Respondent has derived at least 51 percent of its income from the sale of food and nonalcoholic beverages.

   
   

10. It was stipulated at the formal hearing that Respondent's restaurant and lounge operation met the requirements of Section 561.20, Florida Statutes and Rule 7A-3.15(3)(d) Florida Administrative Code, except those specifically referred to in the Notice to Show Cause.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

12. The Division of Alcoholic Beverages and Tobacco is empowered to suspend or revoke a beverage license, or impose a civil penalty, for a violation of Chapter 561, Florida Statutes, and the implementing rules thereunder. See Section 561.29(1)(a), (b) and (e), Florida Statutes (1981).

    
    

13. A special restaurant beverage license, such as the one in the instant case, is an exception to the quota limitations which otherwise apply to the issuance of beverage licenses in the State of Florida. In order to qualify and maintain such a license, Section 561.20(2)(a)3., Florida Statutes, requires that the 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; . nor shall intoxicating beverages be sold under such license after the hours of serving food have elapsed.

    
    

14. Further, Rule 7A-3.15, Florida Administrative Code provides in relevant part:

    
    

    1. 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. A hotel, motel or motor court holding a license issued under Section 561.20(2), Florida Statutes, or any applicable special act, must discontinue the sale of alco- holic beverages during periods when such hotel, motel or motor court is closed.

       
       

    2. The Division considers the following as the minimum requirements for bona fide full course meals, prepared.

       1. Salad

       2. Entree

       3. Dessert

       4. Beverage

       5. Bread and Butter

          
          

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

       1. The restaurant must derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages, except those restaurants issued special restaurant licenses prior to

          April 18, 1972 which shall be required to derive

          at least 30 percent of its gross revenue from the sale of food and nonalcoholic beverages. The 51 percent or

          30 percent shall be determined by taking the average monthly gross revenue of the sale of food and nonalcoholic beverages over a period of any

          calendar year.

       2. The principal business of the restaurant must cater to and serve full course bona fide meals to the general public.

       
       

15. In the instant case DABT seeks to discipline the Respondent's license for failing to discontinue sales of alcoholic beverages on July 14 and 15, 1982, after full course meal service had been discontinued. The facts established that on July 14 and 15, 1982, the Respondent was serving alcoholic beverages at a time when it had discontinued offering and serving full course meals. Therefore, the Respondent is guilty of violating Section 561.20(2)(a)3., Florida Statutes, and Rule 7A-3.15(1), Florida Administrative Code, as alleged in Counts I and II of the Notice to Show Cause.

    
    

16. Count III of the Notice to Show Cause charges Respondent with failing to derive 51 percent of its gross revenues from the sale of food and nonalcoholic beverages for the period January through June, 1982. Count III also charges Respondent with not meeting the requirements of a special restaurant license because the principal business of the licensed premises is not the serving of full course meals. The Respondent did in fact fail to derive

    51 percent of its gross revenues from the sale of food and nonalcoholic beverages for the period January through June, 1982, and therefore violated Section 561.20(2)(a)3., Florida Statutes, and Rule 7A-3.15, Florida Administrative Code.

    
    

17. The Petitioner failed to prove that the Respondent failed to make its principal business the serving of full course meals. The facts show that the Respondent during the period January through June, 1982, did in fact have as its principal business a bona fide substantial restaurant operation primarily engaged in the service of food and nonalcoholic beverages. See Department of Business Regulation v. Huddle, Inc., 342 So.2d 140 (Fla. 1st DCA 1977).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent be found guilty of the violations as set forth above and that Respondent be required to pay a civil penalty of $2,000.

DONE and RECOMMENDED this 12th day of May, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 12th day of May, 1983.

COPIES FURNISHED:

Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Harry H. Popham, Jr. Harry's Restaurant & Lounge 6260 South Tamiami Trail Fort Myers, Florida 33907

Mr. Howard M. Rasmussen Director

Division of Alcoholic Beverages and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Mr. Gary Rutledge Secretary

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-000552

Orders for Case No: 83-000552