STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3656

) BOSTON'S, INC., d/b/a BOSTON'S, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Diane K. Kiesling, duly designated Hearing Officer of the Division of Administrative Hearings, on March 27, 1984, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Louisa E. Hargrett, Esquire

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

For Respondent: Mark Shumaker, Esquire

1775 Northeast Fifth Avenue Boca Raton, Florida 33432

and

J. Reeve Bright, Esquire

Florida Coast Bank Building, Suite 500

551 Southeast Eighth Street Delray Beach, Florida 33444

This case was initiated upon a Notice to Show Cause filed by the Department of Business Regulation seeking to suspend or revoke or impose civil penalty against Beverage License No. 53-123, Series No. 6-COP SR, a license held by Boston's, Inc. Specifically, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, Petitioner, alleged that on or about June 6, 1983, Boston's, Inc, a licensed vendor, violated the laws of the State of Florida by failing to maintain seating at tables adequate to serve food to 200 or more patrons, contrary to Sections 561.20 (2)(b) and 561.29, Florida Statutes, and Rule 7A-3.14, Florida Administrative Code. Boston's, Inc., through its president, A. Gerard Beauchamp, requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

This cause was set for final hearing on three different occasions, with the Second Amended Notice of Hearing, which set the case for March 27, 1984, being dated March 12, 1984. At hearing, Respondent moved, ore tenus, for a continuance on the grounds that two essential witnesses could not appear. There

being no showing that subpoenas had been issued or other attempts had been made to secure the appearance of these witnesses, the motion for continuance was denied with the stipulation of the parties that specific arrangements would be made to schedule a second and concluding segment of the final hearing in Tallahassee, Florida, on either April 2 or April 9, 1984. Immediately thereafter, Petitioner presented testimony of Bob M. Young and Richard White and submitted two exhibits. Respondent presented no evidence, reserving the opportunity to present two witnesses at the subsequent hearing mentioned above. Thereafter, the record in the case was closed by Order dated April 6, 1984, based upon the failure of the Respondent to schedule the continuation of the hearing as agreed.

The issue is whether despondent's special restaurant Beverage License should be suspended, revoked, or otherwise disciplined for failing to maintain seating at tables adequate to serve food to 200 or more patrons.

Petitioner filed proposed findings of fact and conclusions of law within the time frame set forth in the Order of April 6, 1984. The Respondent failed to file proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions, and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence,

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent, Boston's, Inc., was the holder of Beverage License No. 53-123, Series 6-COP SR. This license is issued to the premises known as Boston's, located at 100 Monterey Road, Stuart, Florida. The license held by Respondent is a Special Restaurant License originally issued in August 1957 to Frank and Mary Novacasa. By transfer of the license, Boston's, Inc., became the licensee on December 4, 1981. At the time of this transfer of the license to the Respondent, its president, A. Gerard Beauchamp, acknowledged by notarized Affidavit that the license required accommodations for serving 200 or more patrons at tables at all times. (Petitioner's Exhibit 1).

   
   

2. On February 22, 1983, Beverage Officers White and Young conducted a routine inspection of the licensed premises. The officers discovered that the premises had been remodeled and that a new bar had been added, thereby reducing the available seating. By count, only 121 seats were available at tables, with an additional 18 to 20 stools being available at the bar. The manager on the premises also advised that an additional 10 to 15 chairs were located in a storage shed.

   
   

3. On February 23, 1983, Beverage Officer White issued an official notice to the Respondent advising that it was required to maintain seating capacity at tables for 200 or more patrons. A compliance date of April 13, 1983, was indicated. (Petitioner's Exhibit 2).

   
   

4. Officers White and Young conducted a compliance inspection on June 7, 1983. The physical layout of the premises remained as it had been on the earlier visit. A count of the seats available at tables revealed 114 chairs. An additional 24 stools were placed at the bar. At that time, Officer White issued an official notice to the Respondent, which was signed for by the manager, Norm Spector. That notice advised Respondent that the Division

   intended to file administrative charges against its license. (Petitioner's Exhibit 2).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. 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 Sections 561.29(1)(a), (b), and (e), Florida Statutes.

   
   

7. 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 Leverage licenses in the State of Florida. At the time the Respondent's license was originally issued in 1957 Chapter 23746, Laws of Florida (1947), was in effect. That chapter required that special restaurant licenses be issued for premises for service of 200 or more patrons at tables and 4,000 square feet of space. Chapter 57-773, Laws of Florida (1957), subsequently amended Section 561.20, effective January 1, 1958. That same year, Chapter 57-1991, Laws of Florida (1957), amended Chapter 57-773 to provide that all places of business operating prior to the effective date of January 1, 1958, would be exempt from the provisions of the new law as long as they were in continuous operation. Further, by special act, all special restaurant licenses issued in Martin County require seating for 200 or more patrons. See Chapter

   63-1619, Laws of Florida (1963).

   
   

8. Respondent in this case is charged with a violation of Section 561.20(2)(b), Florida Statutes (1981), which provides:

   
   

   (b) Any county in which special licenses were issued under the provisions of s. 561.20(2)(b) in effect prior to the effective date of

   this act shall continue to qualify for such licenses pursuant to those provisions in effect prior to the effective date of this act, and shall not be affected by the provi- sions of paragraph (a).

   
   

9. Respondent's beverage license is a special restaurant license and is subject to the requirements of Chapter 23746, Laws of Florida (1947), under which it was issued. It therefore must comply with the seating requirements.

   
   

10. Respondent is charged with failing to maintain seating for 200 persons at tables at all times, as required by its license through Section 561.20(2)(b), Florida Statutes. It is concluded that Respondent has failed to comply with the seating requirement. It is further concluded that Respondent's failure to comply was a continuing violation between February 22, 1983, and June 6, 1983. During that time period, Respondent was on notice of the violation and made no attempt to bring itself into compliance. Respondent has therefore evidenced a deliberate disregard for the requirements upon which its license is conditioned.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that a Final Order be entered revoking Respondent's Special Restaurant License No. 53-123, Series 6-COP SR.

DONE and ENTERED this 2nd day of May, 1984, in Tallahassee, Leon County, Florida.

DIANE K. KIESLING

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 2nd day of May, 1984.

COPIES FURNISHED:

Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mark Shumaker, Esquire 1775 NE Fifth Avenue

Boca Raton, Florida 33432

J. Reeve Bright, Esquire Florida Coast Bank Building,

Suite 500

551 SE Eighth Street

Delray Beach, Florida 33444

Gary R Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Howard N. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-003656

Orders for Case No: 83-003656