STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

ALCOHOLIC BEVERAGES AND )

TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1235

)

ACOBOS, INC., d/b/a )

CHRISTO'S CAFE, )

)

Respondent. )

)

RECOMMENDED ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

Harry Hooper, Esquire, of Tallahassee, for Petitioner. No Appearance for Respondent.

Final hearing was held in this case in Tampa on September 28, 1988. The issue is whether the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT), should discipline the license of the Respondent, Acobos, Inc., license number 62-03732SRX, for serving alcoholic beverages at times when the service of full-course meals had been discontinued, in violation of Rule 7A-3.015, Florida Administrative Code. The Respondent did not appear at the final hearing.

FINDINGS OF FACT

1. The Respondent, Acobos, Inc., d/b/a Christo's Cafe, is the holder of alcoholic beverage license number 62-03732SRX, for licensed premises at 411 First Avenue North, St. Petersburg.

   
   

2. In September, 1987, and particularly on September 11, 17, and 25, 1987, the Respondent's licensed premises were open for business, including the sale of alcoholic beverages under the authority of the Respondent's license.

   
   

3. On at least three separate occasions--on September 11, 17, and 25, 1987,--the Respondent was selling alcoholic beverages at the licensed premises at times when the service of full-course meals had been discontinued.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 561.20(2)(a)3., Florida Statutes (1987), allows the DABT to issue special licenses (as opposed to quota licenses) for the sale of alcoholic beverages to a "restaurant having 2,500 square feet of service area and equipped

   to serve 150 persons full-course meals at tables at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages. "

   
   

5. On the authority Section 561.11, Florida Statutes (1987), the DABT has promulgated Rule 7A-3.015. Florida Administrative Code, which states in pertinent part: "All restaurants holding a special restaurant license must discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued."

   
   

6. Under the facts of this case, it is clear that the Respondent violated Rule 7A-3.015 on at least three occasions--on September 11, 17, and 25, 1987.

   
   

7. Section 561.29(1)(e), Florida Statutes (1987), authorizes the DABT to revoke or suspend the license of a licensee who violates any rule promulgated by the DABT. Subsection (3) of the statute authorizes the DABT to impose a civil penalty, not to exceed $1000 for any single transaction, for a rule violation but provides that, if the licensee fails to pay the civil penalty, his license shall be suspended for such period of time as the DABT may specify. Under these statutory provisions, the DABT may not simultaneously revoke or suspend a license and impose a civil penalty.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the alcoholic beverage license of the Respondent, Acobos, Inc., license number 62-037325RX.

RECOMMENDED this 31st day of October, 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 31st day of October, 1988.

COPIES FURNISHED:

Harry Hooper, Esquire Deputy General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Tim Christopoulos, President Acobos, Inc., d/b/a

Christo's Cafe

411 First Avenue North

St. Petersburg, Florida 33701

Leonard Ivey, Director Division of Alcoholic

Beverages and Tobacco Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Van B. Poole, Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph A. Sole, Esquire General Counsel Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32399-1007

Docket for Case No: 88-001235

Orders for Case No: 88-001235