STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 00-3507

) FLAVOR OF BRAZIL, INC., d/b/a ) FLAVOR OF BRAZIL RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on October 19, 2000.

APPEARANCES

For Petitioner: Kenneth W. Gieseking

Assistant General Counsel Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: no appearance

STATEMENT OF THE ISSUES

The issue is whether Respondent failed to derive at least 51 percent of its gross revenues from the sale of food and nonalcoholic beverages, in violation of Sections 561.20(2)(a)4 and 561.29(1)(a), Florida Statutes, and failed to maintain its

business records in English, in violation of Section 561.29(1)(e), Florida Statutes, and Rule 61A-3.014(3), Florida Administrative Code. If so, an additional issue is what penalty the Division of Alcoholic Beverages and Tobacco should impose.

PRELIMINARY STATEMENT

By Administrative Action dated October 21, 1999, Petitioner two provisions of the laws governing the sale of alcoholic beverages. Count I alleges that, from March 30 through July 18, 1999, Respondent, as a licensed vendor under the beverage laws, unlawfully maintained its business records in Portuguese, rather than English, in violation of Section 561.29(1)(e), Florida Statutes, and Rule 61A-3.014(3), Florida Administrative Code.

Count II alleges that, from March 30 through July 18, 1999, Respondent failed to derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages, in violation of Sections 561.20(2)(a)4 and 561.29(1)(a), Florida Statutes.

Respondent filed a Request for Hearing in which it disputed the issues of fact.

At the hearing, Petitioner called three witnesses and offered into evidence five exhibits, which were all admitted. Respondent did not appear at the hearing.

The court reporter filed the Transcript on November 6, 2000.

FINDINGS OF FACT

1. At all material times, Respondent has held license number 16-15136, series 4-COP SRX. Pursuant to this license, Respondent operated a Brazilian restaurant known as Flavor of Brazil at 4140 North Federal Highway in Fort Lauderdale.

2. On July 20, 1999, a special agent of Petitioner inspected the restaurant to determine, among other things, the percentage of Respondent’s gross receipts derived from food and nonalcoholic beverages. In response to a request, the agent received large numbers of original customer tickets, which record the food and beverage items ordered by each customer.

3. In response to a request to visit the agent at her office and provide a statement, the president of Respondent hand wrote a statement explaining: “Records were wiritten [sic] in Portuguese. Basically because most of our staff speak and write Portuguese (being that they are Brazilians). But this problem has already been corrected.”

4. The customer tickets are written in a language other than English, presumably Portuguese. For a person unfamiliar with the language in which the customer tickets are written, it is impossible to determine from these customer tickets which items are alcoholic beverages and which items are food and nonalcoholic beverages.

5. A 4COP-SRX Special Restaurant License form signed on January 26, 1999, by Respondent advises that the license requires

   that at least 51 percent of the gross revenues of the licensee must be derived from the sale of food and nonalcoholic beverages. The form warns: “Since the burden is on the holder of the special restaurant license to demonstrate compliance with the requirements for the license, the records required to be kept shall be legible, clear and in the English language.”

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

7. Section 561.20(2)(a)4 provides that the Division of Alcoholic Beverages and Tobacco may grant special licenses to certain restaurants that derive at least 51 percent of their gross revenue from the sale of food and nonalcoholic beverages.

8. Section 561.29(1) authorizes the Division of Alcoholic Beverages and Tobacco to revoke or suspend any beverage license for a:

   1. Violation by the licensee . . . of any of the laws of this state . . . or license requirements of special licenses issued under s. 561.20 . . ..

(e) Violation by the licensee . . . of any rule or rules promulgated by the division in accordance with the provisions of this chapter or of any law referred to in paragraph (a), or a violation of any such rule or law by any agent, servant, or employee of the licensee on the licensed premises or in the scope of such employment.

9. Rule 61A-3.0141(3)(a)3 provides:

Since the burden is on the holder of the special restaurant license to demonstrate compliance with the requirements for the license, the record required to be kept shall be legible, clear, and in the English language.

1. Contrary to Petitioner’s assertions, no cited statute imposes upon the holder of a CRX special license the burden of proving its compliance with the 51-percent requirement. To the contrary, one case suggests that the burden of proof in a 50- percent case is on Petitioner. Harry's Restaurant & Lounge, Inc. v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 456 So. 2d 1286 (Fla. 1st DCA 1984). In the typical license-revocation case, the burden of proof is on the licensing agency to prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

2. Nor do any of the cited rules impose upon the holder of a CRX special license the burden of proving its compliance with the 51-percent requirement. The introductory language in Rule 61A-3.0141(3)(a)3 assumes the existence of such a provision, but does not itself so provide. This rule requires only that a licensee maintain its business records in English.

3. Thus, the burden of proof is on Petitioner to show that Respondent failed to derive at least 51 percent of its gross

   revenues from the sale of food and nonalcoholic beverages. Because the evidence does not support a finding either way on the 51-percent requirement, Petitioner has failed to prove that Respondent has violated this condition of its CRX special license.

4. However, Petitioner has proved that Respondent violated the rule requirement that Respondent maintain its business records in English.

5. Respondent’s failure to appear at the final hearing or participate in any prehearing preparation for the final hearing suggests a disregard for the licensing process, perhaps arising, though, out of the abandonment of the licensed business. To avoid additional administrative expense, the appropriate penalty is the revocation of the license without prejudice to reapplication at any time after 90 days following the effective date of the final order.

RECOMMENDATION

It is

RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of violating Rule 61A-3.0141(3)(a)3 and revoking Respondent’s license without prejudice to Respondent's reapplying for another CRX special license at any time after 90 days following the effective date of the final order.

DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2000.

COPIES FURNISHED:

Joseph Martelli, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-3227

Kenneth W. Gieseking Assistant General Counsel Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-2202

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Flavor of Brazil

4768 North Citation Drive, No. 106 Delray Beach, Florida 33445

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-003507

Orders for Case No: 00-003507