STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 01-1611

)

COLUCCIS ATTIC, INC., )

d/b/a COLUCCIS ATTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 5, 2001, via video teleconference, in West Palm Beach, Florida, and Tallahassee, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Claudia J. Pamperin1 Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Administrative Action dated August 11, 2000, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Action dated August 11, 2000, the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, ("Department") alleged that Coluccis Attic, Inc., failed to derive at least 51 percent of its gross sales from the sale of food and non-alcoholic beverages during the period from May 17, 2000, through August 6, 2000, in violation of Section 561.20(2)(a)4., Florida Statutes. Dennis Neary, the owner of Coluccis Attic, Inc., filed a request for a hearing pursuant to Section 120.57(1), Florida Statutes, disputing all issues of fact alleged in the Administrative Action. The Department transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge, and the formal hearing was held on July 9, 2001.

At the hearing, the Department presented the testimony of Captain Deborah L. Beck and Danny K. Stoops. Petitioner's Exhibits 1 through 3 were offered and received into evidence; official recognition was taken of Section 561.20, Florida Statutes (2000), and Rule 61A-2.022, Florida Administrative

Code. No one made an appearance at the hearing on behalf of Coluccis Attic.

The one-volume transcript of the proceeding was filed with the Division of Administrative Hearings on July 18, 2001, and the Department timely filed its proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency charged with enforcing Florida's Beverage Law, and, specifically, with regulating the sale of alcoholic beverages. Sections 561.02 and 561.11(1), Florida Statutes.

2. At all times material to this proceeding, Coluccis Attic, Inc., held alcoholic beverage license number 60-11724, Series 4 COP SRX, a special restaurant license which authorized the sale of alcoholic beverages on the premises of the restaurant of the same name located at 600 North Congress Avenue, Delray Beach, Florida.

3. On July 18, 2000, an inspector employed by the Department conducted a routine investigation of the restaurant.

4. As part of the investigation, the investigator was provided a copy of the restaurant's sales report for the period from May 17, 2000, through August 6, 2000.

5. The investigator calculated the percentages of gross revenue from the sale of food and of alcohol sales with respect to total gross sales, and the calculations showed that food sales were 31.5 percent of total gross sales.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).

7. Section 561.20(2)(a)4., Florida Statutes (2000), provides in pertinent part that a restaurant can be issued a special license for the sale of alcoholic beverages when the restaurant "deriv[es] at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages."

8. Based on the findings of fact herein, the Department has proven by clear and convincing evidence that Coluccis Attic, Inc., does not meet the statutory requirements for a special restaurant license.

9. Rule 61A-2.022, Florida Administrative Code, sets forth penalty guidelines for violations of Beverage Law licensing requirements. The penalty for the failure to meet minimum

   qualifications for a special license is as follows: "$1000 fine and revocation without prejudice to obtain any other type license, but with prejudice to obtain the same type of special license for 5 years."

10. The penalty recommended by the Department is appropriate in light of these guidelines, and is adopted herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order,

1. Finding that Coluccis Attic, Inc., violated Section 561.20(2)(a)4., Florida Statutes (2000);

2. Imposing an administrative fine in the amount of

   
   

   $1,000.00 against Coluccis Attic, Inc.; and

   
   

3. Revoking the special restaurant license of Coluccis Attic, Inc., without prejudice to apply for any other type of alcoholic beverage license but with prejudice to apply for a special restaurant license for a period of five years.

DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 21st day of August, 2001.

ENDNOTE

1/ Ms. Pamperin appeared as a student intern under the supervision of Mr. Tunnicliff.

COPIES FURNISHED:

Deborah L. Beck, Captain Department of Business and

Professional Regulation

400 North Congress Avenue Suite 150

West Palm Beach, Florida 33401

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

David B. Neary Coluccis Attic, Inc.

600 North Congress Avenue Suite 100

Delray Beach, Florida 33445

Richard Turner, Director Division of Alcoholic Beverages

and Tobacco

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-001611

Orders for Case No: 01-001611