STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3995

) COLONIAL PUB, INC., t/a COLONIAL ) PARK PUB AND RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings on March 15, 1984, in Tampa, Florida.

APPEARANCES

For Petitioner: Louisa Hargrett, Esquire

Staff Attorney

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

For Respondent: Did Not Appear.

ISSUES AND BACKGROUND

This case concerns the issue of whether Respondent's special restaurant beverage license should be suspended, revoked or otherwise disciplined for failing to derive 51 percent of gross revenue from the sale of food and for failing to maintain sufficient food and equipment to serve 150 full course meals on the licensed premises. The Petitioner, at the formal hearing, called as its only witness Beverage Officer G. L. Hodge. The Petitioner offered and had admitted into evidence two exhibits. Counsel for the Respondent contacted counsel for the Petitioner just prior to the formal hearing to notify the Petitioner that the Respondent would not be appearing at the formal hearing.

The Respondent did not appear and therefore presented no evidence. Respondent was duly noticed and informed of the time and place of the hearing in accordance with Chapter 120 of the Florida Statues.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent, Colonial Park Pub, Inc., was the holder of Beverage License No. 62-2029-SRX, Series 4-COP. This license was issued to the premises known as the Colonial Park Pub and

   Restaurant, located at 8239 46th Avenue North, St. Petersburg, Florida. The license held by Respondent is a special restaurant license.

   
   

2. After receiving a complaint about the licensed premises, Beverage Officer G. L. Hedge on July 26, 1983, went to the licensed premises to perform an inspection. A food inventory revealed the following food items stored on the licensed premises:

   
   

   In the kitchen, in the freezer closest the entrance was approximately:

   
   

   15 slices of bacon

   8 slices of turkey

   20 slices of pickles

   3 onions

   3 tomatoes

   2 slices of American cheese

   10 oz. of tuna fish

   25 slices of Pastrimi

   1. hot dogs

   2. slices of roast beef

   1. 1b. of American cheese

   2. 1bs. of Swiss cheese

   1 six 1b. can of sliced pineapple

   
   

   In the freezer in the middle of the kitchen the following was found:

   
   

   2	loaves of bread
   5	sandwich buns
   8	submarine rolls
   4	heads of lettuce
   2	celery stalks
   1	gallon of milk
   4	lemons
   13	limes
   34 In	tomatoes the stand-up icebox was found the following	food:

   
   

   3/4 of a cantalope

   3 1/2 sticks of margarine

   12 rolls

   2 1/2 20 oz. bags of mixed vegetables

   4 bags of hard rolls

   7 hot dogs

   2 loaves of Jewish bread

   4 slices of salami

   3 slices of ham

   
   

   In the food storage chest was found the following food:

   
   

   7 cans of pickle spears 99 oz.

   2 1 1b. bags of potato chips

   2 cans of red beans 6 1bs. 15 oz.

   4 cans of tuna fish 11 1bs. 2 1/2 oz.

   This was not sufficient food to prepare 150 full course meals as defined in Rule 7A-3.15, Florida Administrative Code.

   
   

3. The licensed premises had the appearance of a lounge and not a bona fide restaurant operation. There were no silverware, menus, plates, or table cloths on any of the tables. The premises were dimly lit and no one was observed eating any meals. The inspection occurred at approximately 2:15 p.m.

   
   

4. There were approximately 30 meals per day served at the licensed premises and only sandwiches were served after approximately 8:00 p.m. The menu stated that dinners were not served after 7:30 p.m.

   
   

5. During the period May 1982, through April 1983, the Colonial Park Pub and Restaurant had total gross sales of $197,564.07. Of this total, beverage sales were $135,530.17 and food sales were $62,033.90. Food sales for the year constituted 31 percent of sales. During this same period, beverage purchases amounted to $69,442.76 versus food purchases of $19,046.89. There were only two months, May and June 1982, where the Respondent even approached food sales equalling 51 percent of gross sales.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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).

   
   

8. 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 non-alcoholic beverages; ... nor shall intoxicating beverages be sold under

   such license after the hours of serving food have elapsed.

   
   

9. 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 alcoholic beverages during periods when such hotel, motel or motor court is closed.

      
      

   2. The Division considers the following as the minimum requirements for bone 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 bone fide restaurant:

      
      

      * * *

      
      

      1. The restaurant must derive at least 51 percent of its gross revenue from the sale of food and non-alcoholic 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 non- alcoholic beverages. The 51 percent or 30 percent shall be determined by taking the average monthly gross revenue of the sale of food and non-alcoholic beverages over a period of anycalendar year.

         
         

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

      
      

10. In the instant case, Respondent is charged with failing to derive 51 percent of its gross revenue from the sale of food and non-alcoholic beverages from May 1982, through April 1983. Respondent is also charged with failing to be sufficiently equipped to serve full course meals. The evidence established that Respondent clearly did not derive 51 percent of its gross revenues from the sale of food as required by Florida Statute 561.20(2)(a)3 (1982) and Rule 7A- 3.15, Florida Administrative Code. The Respondent also did not have sufficient food on the licensed premises to serve full course meals to 150 persons as required by Florida Statute 561.20(2)(a)(3). Respondent is, therefore, guilty of the violations charged in the Notice to Show Cause.

    
    

11. Penalty: License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So. 2d 321 (Fla. 2d DCA 1962). In this case, the Respondent for a period of ten straight months derived approximately 31 percent of its gross revenues from the sale of food. This is far below the required 51 percent. Respondent did not serve full course meals after 6:30 p.m. and served only sandwiches. This shows a deliberate and conscious pattern of ignoring the

requirements for maintaining a special restaurant license. It is therefore concluded that revocation is an appropriate penalty in this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

That the Petitioner enter a final order finding the Respondent guilty of the violations charged in the Notice to Show Cause and revoking beverage license No. 62-2029-SRX.

DONE AND ORDERED this 9th day of April 1984, 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 9th day of April, 1984.

COPIES FURNISHED:

Louisa Hargrett, Esquire Staff Attorney Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

John L. Waller, Esquire The Legal Building

447 3rd Avenue, Suite 403

St. Petersburg, Florida 33701

Howard M. Rasmussen, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-003995

Orders for Case No: 83-003995