STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-0844

)

ARTHUR A. PELOSO, d/b/a )

PELOSO'S SPAGHETTI HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on May 27, 1987, in Kissimmee, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Thomas A. Klein, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Arthur A. Peloso (pro se)

1960 Southeast 19th Street Pompano Beach, Florida 33062

BACKGROUND AND PROCEDURAL MATTERS

This proceeding commenced with Respondent's request for formal hearing in response to Petitioner's Notice to Show Cause alleging three counts of violations of the law and rules governing alcoholic beverage licenses.

At the outset of the hearing, Petitioner (DABT) moved, orally on the record, for a summary judgement based on Respondent's (Peloso) failure to respond to requests for admissions served pursuant to Rule 1.370, Florida Rules of Civil Procedure. The motion was denied.

Petitioner presented the testimony of two witnesses and submitted three exhibits, each of which were admitted without objection. Exhibits #1 and #2, two vials of beer, were committed to the custody of Beverage Agent, Ronald Sullivan.

Respondent called two witnesses and submitted one exhibit.

No transcript was prepared, and after the hearing both parties submitted proposed recommended orders. These have been considered and specific rulings on each proposed finding of fact are found in the attached appendix.

ISSUE

The issues for determination in this proceeding are:

1. Whether Respondent sold alcoholic beverages on two occasions when the service of full course meals had been discontinued;

   
   

2. Whether Respondent offered or allowed the operation of a football pool on the licensed premises; and

   
   

3. If so, what disciplinary action is appropriate.

FINDINGS OF FACT

1. Arthur A. Peloso, doing business as Peloso's Spaghetti House, currently operates, and at all relevant periods was operating, under alcoholic beverage license number 59-129 SRX, Series 7-COP, a "special restaurant license." The premises are located at 1709 West Vine Street, Kissimmee, Florida.

   
   

2. The premises consist of the main part of the restaurant, accessible by a door fronting the street; a lounge in the rear, accessible from the main restaurant and by a side door; and a kitchen, accessible to employees from both the lounge area and the main restaurant. The bar counter is located on the far end of the lounge, opposite the side entrance and adjacent to the kitchen.

   
   

3. On September 22, 1986, at approximately 5:00 p.m., Beverage Agent Ronald P. Sullivan, visited the premises at the direction of his supervisor. The marquee in front read: "Restaurant Closed-Vacation. Lounge Open, 4-2."

   
   

4. Sullivan entered through the side entrance and went back to the bar, where he was served a beer by the bartender, "Pat." Pat was serving drinks, mixing drinks and ringing up sales on the cash register. Sullivan asked what he could get to eat and Pat's response was, "popcorn." There was some conversation regarding the owner being on vacation and wanting to make some changes in the facility and that the kitchen was closed down.

   
   

5. At the hearing, Sullivan identified Patrick Plunkett, also present, as the bartender.

   
   

6. The same Beverage Agent returned to the licensed premises around 6:00

   p.m. on September 25, 1986. Again, Pat was behind the bar and served him a beer. Again, Sullivan asked what he could get to eat and the response was, "popcorn."

   
   

7. Pat also said he had a football pool that "Dale" who worked in a car lot helped him get going. Pat said it was Dale's idea and he pointed Dale out in the lounge. Pat pulled a sheet (Exhibit #3) from other sheets behind some whiskey bottles and showed Sullivan how to play. Sullivan filled it out and gave Pat $10.00.

   
   

8. Sullivan returned on October 7, 1986. A woman identified as "Tina" was working behind the bar. Pat was not there. Sullivan asked Tina who won the football pool, and she replied that some guy at the car dealership won $350.00.

9. Tina also told Sullivan that the restaurant had reopened after a three- week vacation, and a cook was on duty.

   
   

10. On the occasions of his visits, Sullivan did not notice menus or meal set-ups on the tables in the lounge. He had to pass the tables to get to the bar, where he sat. He never tried to order food, as on the first two visits he had been told all they had was popcorn. On the third visit, he accepted the fact that the kitchen was open.

    
    

11. He saw evidence of the football pool only on one occasion, the 25th of September; he did not see Arthur Peloso, or Peloso's son, the manager, on any occasion.

    
    

12. In the three visits, Sullivan saw a total of six or seven people drinking in the lounge, but not eating.

    
    

13. In his testimony, Patrick Plunkett admitted that he told Sullivan that only popcorn was available. The bartenders and waitresses are trained to cook and serve food and have been told to provide food to patrons when requested during business hours. Pat admitted that he did not serve food to Sullivan as the cook did not show up and he (Pat) was "too lazy to serve it."

    
    

14. Pat also admitted that he assisted patrons in playing the football pool, but that he was doing it as a favor for a friend from the Pontiac dealership. This was a short-term arrangement and Pat did not receive a commission or any monetary gain from his participation.

    
    

15. To Pat's knowledge, neither Peloso nor his son, the manager, were aware that food was not being served in the lounge during their vacation, nor were they aware that the football pool was being conducted. In his opinion, the Pelosos would have taken immediate corrective measures.

    
    

16. This was confirmed by Arthur S. Peloso, Peloso's son, who serves as manager of the business. Their business is primarily food and they could not remain in business without the food. Their intent was that the lounge should serve as additional seating for the restaurant. He conceded that the restaurant was briefly closed, but insisted that the kitchen was never closed and the waitresses and bartender should have served food as they had been instructed.

    
    

17. Captain Jack B. Wallace from the Division of Alcoholic Beverages and Tobacco described the policy of the agency with regard to investigations, enforcement and civil penalties for violations. The non-rule policy is to assess a $500.00 civil fine for a first-time offense. He said that the two counts relating to the sale of alcoholic beverages without food should be treated as a single violation.

    
    

18. No testimony or other evidence of prior violations by Respondent was presented, and the two witnesses for Petitioner knew of none.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Section 120.57(1), Florida Statutes.

20. Respondent has been charged with violations of Rule 7A-3.015, Florida Administrative Code, and Section 849.08, Florida Statutes, within Section 561.29, Florida Statutes. These provide as follows:

    
    

    7A-3.015 Special Licenses, Hours of Service and Minimum Requirements. [in pertinent part]

    1. All restaurants holding a special restaurant license must discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued....

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

       1. Salad

       2. Entree

       3. Dessert

       4. Beverage

       5. Bread and Butter

          
          

          849.08 Gambling. - Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

          
          

          561.29 Revocation and suspension of license; power to subpoena.-

          (1) The division is given full power and authority to revoke or suspend the license of any person holding a license under the Beverage Law, when it is determined or found by the division upon sufficient cause appearing of;

          (a) Violation by the licensee or his or

          its agents, officers, servants, or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of this state or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service, or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises to violate any of the laws of this state or of the United States; except that whether or not the licensee or his or its agents, officers, servants, or employees have been convicted in any criminal court of any violation as set forth in the paragraph shall not be considered in proceedings before the division for suspension or revocation of a license except as permitted by chapter 92 or the rules of evidence.

21. The DABT is entitled to impose a civil penalty against a licensee for any violation mentioned in the Beverage Law or any rule issued pursuant thereto not to exceed $1,000.00 for violations arising out of a single transaction. Section 561.29(3), Florida Statutes.

    
    

22. There is abundant, uncontroverted evidence that on two occasions full course meals were not made available while alcoholic beverages were being sold on the premises. An employee of the licensee admitted that gambling was conducted on the premises with his (the employee's) assistance.

    
    

23. No evidence suggests, and credible competent testimony establishes the contrary, that either Mr. Peloso or his son had actual knowledge of the violations.

    
    

24. The issue, therefore, is whether this ignorance is sufficient to exonerate the licensee and immunize him from the civil penalties urged by DABT.

    
    

25. A finding of culpability is not required for the discipline of a special license. G. G. P., Inc. v. Division of Alcoholic Beverages and Tobacco, 479 So.2d 797 (Fla. 1st DCA 1985)

    
    

26. However, when considering violations of the law attributable to employees of the licensee, the courts have required a showing of lack of "due diligence" on the part of the licensee before sanctions may be imposed. Surf Attractions v. Department of Business Regulation, 480 So.2d 1354 (Fla. 1st DCA 1986), review den. 492 So.2d 1331 (Fla. 1986), citing Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (Fla. 3rd DCA 1982), inter alia.

    
    

27. The gambling on the premises was established in a single isolated inspection by the agency's Beverage Agent. The agency failed to establish a series of violations "committed in a persistent and recurring manner." Charlotte County Lodge v. State Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 463 So.2d 1208, 1212 (Fla. 1st DCA 1985), citing Lash, supra, p. 278. This is insufficient to support an inference that the licensee failed to supervise the premises in a reasonable diligent manner. Lee v. Department of Business Regulation, 465 So.2d 578 (Fla. 1st DCA 1985).

    
    

28. On the other hand, the failure to serve full course meals was established on more than one occasion. Both Pat's exchange with the beverage agent and Tina's comment about the restaurant now being open established a link between the provision of food and the status of the restaurant. It could hardly be argued that Peloso or his son were unaware that the restaurant was closed and the lounge was open. The sign outside announced that fact to the public. With better supervision, the licensee should have known that his employees were not serving full course meals while the restaurant was closed.

    
    

29. It should be noted that the body of case law rejecting a strict liability standard appears to relate to violations of criminal law on the licensed premise rather than mere violations of the administrative code imposing standards on holders of special licenses.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered by the agency, finding Respondent guilty of violation of Rule 7A-3.015, Florida Administrative Code, not guilty of violation of Section 561.29(1)(a), Florida Statutes, and assessing a civil penalty of

$500.00.

DONE and RECOMMENDED this 14th day of July, 1987, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0844

The following constitute my rulings on the proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact

1. Adopted in paragraph #1.

2. Adopted in paragraph #3.

3. Adopted in substance in paragraphs #4 and #7.

4. Rejected as unnecessary

5. Adopted in substance in paragraphs #4 and #7.

6. Adopted in paragraph #5.

7. Adopted in part (as to availability of only popcorn) in paragraph #5; otherwise, rejected as unnecessary.

8. Rejected as immaterial.

9. Adopted in substance in paragraph #5.

10. Adopted in paragraph #6.

11. Adopted in paragraph #12.

Respondent's Proposed Findings of Fact

#1 and #2 The essential facts proposed here are adopted in my findings of fact #3, #9, #10 and #11, however, these facts alone are not dispositive of the issues in the proceeding.

COPIES FURNISHED:

Thomas A. Klein, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Arthur A. Peloso

1960 Southeast 19th Street Pompano Beach, Florida 33062

Daniel Bosanko, Director Division of Alcoholic Beverages

and Tobacco

725 South Bronough Street Tallahassee, Florida 32399-1007

James Kearney, Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 87-000844

Orders for Case No: 87-000844