Judges: MICHAEL M. PARRISH
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 19, 1986
Summary: By failing to have sufficient equipment & supplies to serve meals to 100 patrons, SRX licensee was in violation & license should be revoked
86-1759.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF ALCOHOLIC ) BEVERAGES AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1759
) CLUB LIDO OF GAINESVILLE, INC., )
d/b/a CLUB LIDO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case on August 27, 1986, in Gainesville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
For Petitioner: W. Douglas Moody, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
For Respondent: No Appearance
INTRODUCTION
By Notice To Show Cause issued by Petitioner on or about April 7, 1986, the Respondent was informed that it was being charged with the following violations:
On or about 9-18-85, you, Club Lido of Gainesville, Inc., licensed under the beverage laws as a Special Restaurant, failed to maintain separate and complete records of all purchases and sales of food and non- alcoholic beverages in addition to the recordkeeping requirements for purchase and sale of alcoholic beverages, on your licensed premises for a period of three years, contrary to Administrative Rule 7A-3.14.
Investigation revealed that on 11-15-85, at the above identified licensed premises, you failed to maintain sufficient equipment and supplies to serve 100 full course meals, a requirement of your Special Restaurant License, in violation of Rule 7A-3.15(E) (sic).
The Respondent failed to appear at hearing after a thirty minute abeyance in the proceedings was ordered by the undersigned to insure adequate time for appearance by Respondent. At the conclusion of the formal proceedings, the Respondent still had not appeared at the location designated in the Notice of Hearing.
At the hearing, the Petitioner moved to amend Count 2 of the Notice To Show Cause to correct the rule citation at the end of said count to read Rule "7A- 3.15(3)(e)". The motion was granted. The Petitioner offered eight exhibits, all of which were received into evidence. The Petitioner presented the testimony of William L. Cooter, Sr., and Donald O'Steen.
Subsequent to the hearing, the Petitioner filed a Proposed Recommended Order containing proposed findings of fact and conclusions of law. All of the Petitioner's proposed findings are accepted and incorporated into the findings of fact which follow. The Respondent did not file any post-hearing documents.
FINDINGS OF FACT
Based on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact:
On September 10, 1984, the Petitioner received an application for a Series 4-COP, SRX Alcoholic Beverage License from Respondent Club Lido of Gainesville, Inc. On the above date, the Petitioner issued a new temporary Series 4-COP, SRX license to the Respondent pending investigation of the application. The application was submitted signed by Richmond Smith who represented himself as the president, secretary, treasurer, and sole stockholder of Respondent. The application was subsequently approved and the Respondent was issued License Number 11-00786SRX, Series 4-COP on October 1, 1984, to be utilized at a location designated as 233 West University Avenue, Gainesville, Alachua County, Florida.
During the year 1985, Division of Alcoholic Beverages and Tobacco Investigator William L. Cooter, Sr., received complaints from various restaurant owners in Alachua County, that Respondent was not operating as a bona fide restaurant, inferring that alcoholic beverage sales at Club Lido exceeded 49 percent of the gross sales. Additionally, Investigator Cooter had visited the premises on numerous occasions and had observed that only small quantities of food items were being served on the premises of Club Lido.
In response to the above complaints and on the basis of his personal observations, Investigator Cooter, on September 18, 1985, proceeded to the premises of Respondent and requested a review of the Respondent's food and alcoholic beverage sales. The request for records was made to Richmond Smith, President of Club Lido. On the above date, Smith responded that the records were not on the premises and that Investigator Cooter would be required to subpoena the records if he wished to examine them. Accordingly, Investigator Cooter issued an Official Notice to Richmond Smith on behalf of Club Lido which required production of the sales records by October 4, 1985.
The Respondent failed to produce its sales records as of October 4, 1985. The Respondent, as of the date of formal hearing, had still failed to produce its sales records.
On November 15, 1985, Investigator Cooter, along with Investigator Donald O'Steen, proceeded to the premises of the Respondent in order to inspect its equipment, supplies, and patron accommodations.
The investigators found a minimal quantity of food on the premises. There was not a sufficient amount of food products to serve full course meals to
100 or more patrons on the premises of Respondent on November 15, 1985.
There were not adequate seating accommodations to seat and serve full course meals to 100 or more patrons on the premises of Respondent on November 15, 1985, in that only 94 chairs and bar stools were present on the premises. The investigators also noted that there was no employee designated as a "chef" or "cook" on the premises and that approximately two- thirds (2/3) of the silverware needed to serve 100 or more patrons had not been unpackaged.
On July 18, 1986, the Respondent terminated active business operations based on the unprofitability of the business.
Richmond J. Smith, was a Respondent in Case No. 78- 338, Division of Administrative Hearings, Department of Business Regulation Case No. 3-77-66A, wherein violations of Rule 7A-3.14 and 7A-3.15, Florida Administrative Code, relating to the maintenance of food and beverage records relative to a SRX Alcoholic Beverage License were alleged. The above violations were settled by Stipulation and the licensee paid civil fines relative thereto.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57, Florida Statutes.
Department of Business Regulation Rule 7A-3.14, Florida Administrative Code, provides in pertinent part:
... In addition to the record keeping requirements for purchase and sale of alcoholic beverages contained in these rules, the restaurant shall maintain a separate and complete record of all purchases and sales of food and non-alcoholic beverages which shall be maintained on the premises, or other designated place approved by the Division, for a period of three years.
Department of Business Regulation, Rule 7A- 3.15(3)(e), Florida Administrative Code, provides in pertinent part:
The Restaurant shall be equipped with the necessary tableware and seating to handle the minimum seating capacity required by general law or special act.
Special Act Chapter 70-574, Laws of Florida, relating to Alachua County, Florida, provides in pertinent part:
Section 1. In Alachua County, the limitation as to the number of alcoholic beverage licenses as provided by subsection (1) of Section 561.20, Florida Statutes, shall not prohibit issuance of such licenses to any bona fide restaurant containing all necessary equipment and supplies for and serving full course meals regularly and having accommodations at all times for service of one hundred (100) or more patrons at tables and occupying more than eighteen hundred (1800) square feet of floor space which
derive no less than fifty-one percent (51 percent) of gross income per annum from the sale of
food consumed on the premises. The director of the division of beverage of the State of Florida is authorized to regulate and supervise restaurants to which such licenses are issued under the regulations of the division of beverage and the general law not inconsistent herewith. The director of the division of beverage shall have the authority to revoke or suspend any such license for violations of the beverage law and regulations of this state not inconsistent herewith. (Emphasis supplied.)
Section 561.07, Florida Statutes (1985), authorizes employees of the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation to inspect licensed premises and to examine the books and records of licenses.
Section 561.29, Florida Statutes (1985), permits the Division of Alcoholic Beverages and Tobacco, Department of Business Regulation to revoke or suspend a beverage license for the violation by a licensee of any rule or rules promulgated by the Division in accordance with the provisions of Chapter 561, Florida Statutes, or any other statutory provision.
Respondent is guilty of violating Rule 7A-3.14, Florida Administrative Code, by its failure to maintain on its premises, for a period of three years, records which relate to its sale of food, non-alcoholic beverages, and alcoholic beverages.
Respondent is guilty of violating Rule 7A- 3.15(3)(e), Florida Administrative Code, by its failure, on November 15, 1985, to have sufficient equipment, supplies, and patron accommodations to serve full course meals to one hundred (100) or more patrons.
RECOMMENDATION
Based upon all of the foregoing, it is RECOMMENDED:
That the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the Special Restaurant Alcoholic Beverage License of Respondent.
DONE AND ENTERED this 19th day of September, 1986, in Tallahassee, Florida.
MICHAEL M. PARRISH
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed by the Clerk of the
Division of Administrative Hearings this 19th day of September, 1986.
COPIES FURNISHED:
W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927
Charles G. Brackins, Esquire Suite B
920 N.W. 8th Avenue Gainesville, Florida 32601
Mr. Richmond Smith
Club Lido of Gainesville, Inc.
233 West University Avenue Gainesville, Florida 32601
Howard M. Rasmussen, Director Division of Alcoholic Beverages
and Tobacco
725 South Bronough Street Tallahassee, Florida 32301
Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Docket for Case No: 86-001759
Orders for Case No: 86-001759
| Issue Date |
Document |
Summary |
|
Sep. 19, 1986 |
Recommended Order
|
By failing to have sufficient equipment & supplies to serve meals to 100 patrons, SRX licensee was in violation & license should be revoked
|
