Judges: LINDA M. RIGOT
Agency: Department of Business and Professional Regulation
Latest Update: Oct. 16, 1984
Summary: Movable trailers are not able to be licensed under the beverage statute.
83-3334.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEACH BOY'S, INC., d/b/a )
THE BEACH BOYS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3334
)
DEPARTMENT OF BUSINESS )
REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 29, 1983, in Miami, Florida.
Petitioner Beach Boy's, Inc., doing business as The Beach Boys, was represented by Richard W. Wasserman, Esquire, Miami Beach, Florida; and Respondent Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, was represented by Louisa E. Hargrett, Esquire, Tallahassee, Florida.
Respondent denied Petitioner's application for a Series 2-COP beverage license for its business in Miami Beach, Florida, and Petitioner timely requested a formal hearing on that denial. Accordingly, the issue for determination is whether Petitioner's application for a beverage license should be approved.
Petitioner presented the testimony of Edward J. Davis and Jeff Blumenfield.
Additionally, Petitioner's Exhibits numbered 1 through 6 were admitted in evidence. Respondent presented the testimony of Francisco R. Oliva.
Both parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
Petitioner operates a food and beverage concession on the beach at North Shore Open Space Park in Miami Beach, Florida. Pursuant to a Management Agreement between the City of Miami Beach and the State of Florida, the City pays to the Florida Department of Natural Resources 25 percent of all monies the City collects from private concessionaires operating on that beach. The City has issued a permit to Petitioner for the sale of beer and wine (in addition to
food and other beverages) at this location contingent upon licensing by the State of Florida.
Petitioner's concession is operated from trailers loaned to it by the Pepsi-Cola Bottling Company of Miami. Each trailer is approximately 14 feet by
6 feet in size and is mounted on four rubber tires.
Each trailer is hauled to its location each morning by a 4 x 4 International truck and is disconnected from the truck at the location of a 4" x 4" post embedded in concrete in the sand. The post contains a socket which provides telephone service for the trailer upon insertion of a plug. The posts were installed for the sole purpose of allowing Petitioner's employees at the trailers to call Petitioner's commissary for additional supplies to be delivered. The City of Miami Beach requires each trailer to be located within
15 feet of its post when operating and further defines its hours of operation. The service area granted to Petitioner under its concession agreement with the City covers 888,300 square feet of beach.
At the end of each day, the trailers are picked up by the tow vehicle and are hauled to Mr. Coney Island restaurant, approximately 1.5 miles from the beach site, where they are stored overnight and restocked each morning.
On June 2, 1983, Beverage Officer Francisco R. Oliva inspected the proposed business premises. At the address shown on Petitioner's application, 7929 Atlantic Way, Officer Oliva found only beach-front property with no address numbers. He located two trailers bearing Pepsi-Cola Company markings between the 80th and 81st blocks of Atlantic Way. The poles from which the trailers obtain telephone service were not present on that date.
The business address Petitioner provided on its application for licensure, 7929 Atlantic Way, Miami Beach, is the address the City uses for the building which houses the Beach Patrol and the Dade County sanitation equipment for sanitation of the beach.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Respondent bases its denial of a Series 2-COP beverage license to Petitioner on Section 561.01(11), Florida Statutes, which provides:
"Licensed premises" means not only rooms where alcoholic beverages are stored or sold by the licensee, but also all other rooms in the building which are so closely connected there- with as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control and shall also include all of the area embraced within the sketch, appearing on or attached to the appli- cation for the license involved and designated as such on said sketch, in addition to that included or designated by general law.
Section 7A-3.08, Florida Administrative Code, provides, in relevant part:
All licenses issued to vendors, other than railroads, sleeping cars, steamships, or airplanes licensed under section 565.02(2), (3), must be for a permanent location at which the business is to be operated. . . .
In defining "licensed premises" in Section 561.01 (11), Florida Statutes, the Legislature included "not only rooms where alcoholic beverages are stored or sold by the licensee, but also all of the rooms in the building. . .
." (Emphasis added.) Respondent has interpreted the definition of "licensed premises" in Section 561.01(11) to mean that licenses may only be issued to permanent locations, with the exception of certain statutorily excepted moving objects. Section 7A-3.08, Florida Administrative Code. Application of general principles of statutory construction reveals that Respondent's interpretation of Section 561.01(11) is not clearly erroneous. Daniel v. Florida State Turnpike Authority, 213 So. 2d 585 (Fla. 1968). Respondent's interpretation of "permanent location" to mean a structure permanently affixed to the ground at a certain location is not clearly erroneous but rather is consistent with the ordinary meaning of those words.
Petitioner's concession business is operated out of trailers which are towed to the beach in the morning and towed to the storage site in the evening. Petitioner's proposed "licensed premises," movable trailers parked at assigned locations on the beach, do not meet the requirements of Section 561.01(11), Florida Statutes, and Section 7A-3.08, Florida Administrative Code, for licensed premises, as construed by Respondent. Although Petitioner contends that the City's requirement that it place its trailers within a 15-foot radius of the 4" x 4" posts makes that radius a "permanent location," licensing the movable trailers and their attendant, easily movable posts would require licensing a person who daily drives his automobile to a vacant lot or metered parking space and sells beer and wine out of that vehicle, a result clearly not intended by the Legislature.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application
for a Series 2-COP beverage license.
DONE and RECOMMENDED this 25th day of April, 1984, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
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 25th day of April, 1984.
COPIES FURNISHED:
Richard W. Wasserman, Esquire
420 Lincoln Road
Miami Beach, Florida 33139
Louisa E. Hargrett, Esquire. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Howard M. Rasmussen, Director Division of Alcoholic Beverages
and Tobacco
725 South Hronough Street Tallahassee, Florida 32301
Docket for Case No: 83-003334
Orders for Case No: 83-003334
