STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on April 18, 2008, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-1020

For Respondent: Dean Barrett, pro se

Stuart Grill & Ale

519 South Riverpoint Drive Stuart, Florida 34994

STATEMENT OF THE ISSUES

The primary issue in this disciplinary proceeding is whether Respondent, which operates a restaurant where alcoholic beverages are served pursuant to a license issued by Petitioner, continued to sell alcohol after the service of full course meals had stopped, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.

PRELIMINARY STATEMENT

On November 16, 2007, Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issued an Administrative Action [Complaint] against Respondent Barrett Enterprises, Inc., d/b/a Stuart Grill & Ale, charging the licensee with one count of failing to make available full course meals at all times when alcoholic beverages were being served. Respondent timely requested a formal hearing to contest the allegations, and, on February 4, 2008, the matter was filed with the Division of Administrative Hearings ("DOAH").

The final hearing took place on April 18, 2008, as scheduled, with both parties present. Petitioner's Exhibit 1 was received in evidence without objection. In addition, Petitioner called as witnesses Lieutenant Kent Stanton and

Special Agents Tommy L. Hagler and Sean Dhillon. Dean Barrett testified on behalf of Respondent, which did not introduce any documentary evidence.

The final hearing was recorded, but neither party ordered a transcript of the proceeding. The parties were instructed to submit their respective Proposed Recommended Orders on or before May 7, 2008, which they did.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2007 Florida Statutes.

FINDINGS OF FACT

1. At all relevant times, Respondent Barrett Enterprises, Inc. ("Barrett"), d/b/a Stuart Grill & Ale ("Stuart Grill"), has held a Special Restaurant License (an "SRX license"), which authorizes the licensee to sell alcoholic beverages secondary to the service of food and non-alcoholic beverages. Consequently, Barrett is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division").

2. Barrett employs approximately 50 people to work at Stuart Grill, which is an establishment located in Martin County, Florida. Stuart Grill grosses nearly $2 million annually on food sales. In 2007, Barrett collected and remitted roughly $100,000 in sales tax on revenue from its food service

   operation. It sells 60,000 pounds, more or less, of chicken wings each year. In short, Stuart Grill is a bona fide restaurant.2

3. On two occasions——once on September 20, 2007, and again on October 19, 2007——four agents of the Division visited Stuart Grill late in the evening, around 11:00 p.m. They were conducting an investigation to determine whether "full course meals" (a term of art that will be discussed below) were available at all times when the restaurant was serving alcoholic beverages. (One of the conditions of holding an SRX license is that the licensee must make full course meals available while selling alcohol.)

4. The two investigative visits followed the same pattern.

   
   

   Each time, the agents seated themselves at a booth in the main dining room, which was not crowded. The waitress (a different one each time) informed the agents that the kitchen was closed and, therefore, that they would need to order from the "Late Nite Menu," which was provided. The Late Nite Menu contained a limited number of items, namely: mozzarella sticks, beer battered "veggies" (mushrooms or onion rings), chicken strips, dolphin bites, conch fritters, fried critters (clam strips or grouper strips), fried calamari, smoked fish dip, and chicken wings. Each time, an agent tried to order a hamburger and was told that hamburgers were not available. Both times, the agents

   ordered (and were served) chicken wings, a couple of sodas, and beer.3 Neither visit lasted more than roughly half an hour.

5. Dean Barrett, one of the restaurant's owners, testified credibly that the Late Nite Menu which was given to the agents was actually a bar menu; patrons in the main dining room should not have been instructed that they could order only from the Late Nite Menu, as apparently happened when the Division's agents went to Stuart Grill in September and October 2007. The undersigned accepts Mr. Barrett's testimony in this regard as truthful and finds that the waitresses (neither of whom was identified) who served the agents did not act in accordance with their employer's directives on those occasions.

6. Regardless of that, however, the evidence fails to establish that "full course meals" were not available. As will be seen below, the term "full course meal" is defined for this purpose as a meal consisting of a salad or vegetable, an entrée, a beverage, and bread. When the Late Nite Menu is reviewed with this definition in mind, the factual determination is inescapable that the agents could have ordered such entrées as chicken strips, chicken wings, or fried calamari. They also could have ordered a vegetable ("beer battered veggies") from the Late Nite Menu. Half of the items (entrée and vegetable) constituting a "full course meal," in other words, appeared on the face of the Late Nite Menu.

7. No beverages were listed in the Late Nite Menu. The agents, however, ordered (and were served) sodas and beer. The evidence thus establishes that non-menu items were, in fact, available when the agents visited. Moreover, it is found, the "beverage" requirement for a "full course meal" plainly was met.

8. The only item needed to complete a "full course meal" is bread.4 There is no direct evidence that bread was not available. Perhaps it might be inferred, based on the absence of an obvious bread item on the Late Nite Menu, that no bread could be had. The undersigned declines to draw such an inference, however, because (as found above) other non-menu items were available upon request. Nor would the "fact" that the "kitchen was closed" (which it was not) be a sufficient basis for the undersigned to infer that bread was unavailable. Without more evidence than was adduced in this case, there is not a sufficiently convincing reason for the undersigned to infer that some slices of bread or a few rolls, for example, could not have been found in the restaurant, were a patron to have requested bread with his order of, say, chicken strips (entrée), onion rings (vegetable), and a soda (beverage).

9. The problem with the Division's case, at bottom, is that the agents did not do enough to establish, affirmatively, the negative proposition that the Division must prove, i.e. that a full course meal was not available.5 Because it was (or should

   have been) clear to the agents that a vegetable, entrée, and beverage were available, they should have asked, specifically, for bread. They did not. The only off-menu item which the agents requested (other than drinks) was a hamburger.

10. The evidence being insufficient to prove that a "full course meal" could not be had on the occasions in question, it must be concluded, as a matter of ultimate fact, that Barrett is not guilty of serving alcohol without simultaneously making full course meals available, as charged in the Administrative Action [Complaint].

    CONCLUSIONS OF LAW

    
    

11. DOAH has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

12. Section 561.29, Florida Statutes, sets forth the acts for which the Division may impose discipline. This statute provides, in pertinent part:

    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:

       
       

       1. Violation by the licensee or his or her 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 license requirements of special licenses issued under s. 561.20, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States. A conviction of the licensee or his or her or its agents, officers, servants, or employees in any criminal court of any violation as set forth in this 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.

          
          

13. Barrett stands accused of violating Florida Administrative Code Rule 61A-3.0141(3)(d), which provides as follows:

    (3) Qualifying restaurants receiving a special restaurant license after April 18, 1972 must, in addition to continuing to comply with the requirements set forth for initial licensure, also maintain the required percentage, as set forth in paragraph (a) or (b) below, on a bi-monthly basis. Additionally, qualifying restaurants must meet at all times the following operating requirements:

    
    

    * * *

    
    

    (d) Full course meals must be available at all times when the restaurant is serving alcoholic beverages except alcoholic beverage service may continue until food service is completed to the final seating of restaurant patrons for full course meals. A full course meal as required by this rule must include the following:

    
    

    1. Salad or vegetable;

    2. Entree;

    3. Beverage; and

    4. Bread.

    
    

14. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

    281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Division must prove the charge against the licensee by clear and convincing evidence. Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Department of Business & Professional

    Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

    
    

15. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or

    conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Id. The Florida Supreme Court later adopted the fourth district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

    denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

    
    

16. As found above, the evidence proves affirmatively that three of the four elements (entrée, vegetable, and beverage6) of a full course meal were available when the Division's agents visited Stuart Grill. The evidence, however, was insufficient to prove, clearly and convincingly, that the fourth element—— bread——was not available, because the agents never asked for bread, and because there is no other proof which clearly shows that bread could not have been had upon request.7

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Barrett not guilty of the instant charge.

DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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.stae.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.

ENDNOTES

1/ Respondent corporation's fictitious name is Stuart Grill & Ale, not Stuart Grille and Ale. The style is hereby amended to reflect this fact.

2/ Indeed, one of the Division's agents, who testified against Barrett, regularly dines at Stuart Grill with his family.

3/ The undisputed fact that the agents were served chicken wings (and could have ordered other items from the Late Nite Menu) means that there was food available, even cooked food, which ordinarily would come from the kitchen. This persuades the undersigned to infer that the kitchen was open for business, not "closed" as the waitresses reportedly said.

4/ It is not necessary to decide here whether bread must be a separate item, as opposed to being a constituent of, say, an entrée. In other words, the undersigned need not determine whether a hamburger, for example, served on a bun with lettuce, tomato, and onions, would satisfy the entrée, vegetable, and bread requirements all by itself.

5/ The undersigned is aware that proving a negative is difficult (though not impossible, as is sometimes suggested). But that is the Division's burden in this case, where the charge is that the licensee did not make full course meals available at all times when alcohol was being served.

6/ The Rule does not define these terms (or "bread"). None of these words is ambiguous, however, and thus each must be applied according to its plain meaning, which the undersigned has done as follows. The term "entrée" is commonly taken to mean the main course of a meal. It is obvious to the undersigned that, while "finger foods" such as chicken strips, fried calamari, fried grouper, and chicken wings might be served as appetizers, hors d'oeuvres, or snacks, these meat dishes can certainly be "entrées," as that term is commonly used and understood. Next, because it is a matter of common knowledge that onions are vegetables, the undersigned finds without hesitation that onion rings are a "vegetable" serving. Similarly, it goes without saying that sodas fall within the "beverage" category.

Regarding the fourth element, the undersigned understands the term "bread," as used in the Rule, to refer, without limitation, to such things as rolls, toast, buns, bagels, and breadsticks. (As mentioned previously, however, the undersigned expresses no opinion at this time as to whether a hamburger, on a bun, would satisfy both the entrée and bread requirements.)

7/ The Rule does not define the term "available." Nor does it specify either that the items comprising a full course meal must be available from the menu, or that full course meals must be available as tables d'hôte. Therefore, giving the term "available" its ordinary meaning, the undersigned has concluded that an individual food item is "available" if it is obtainable upon request, and that a full course meal is "available" if a customer is able to obtain at least one serving each of a salad or vegetable, entrée, beverage, and bread.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and

Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-1020 Dean Barrett

Stuart Grill & Ale

519 South Riverpoint Drive Stuart, Florida 34994

Cynthia Hill, Director

Division of Alcoholic Beverages and Tobacco Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Lucynski, General Counsel Department of Business and

Professional Regulation 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: 08-000629

Orders for Case No: 08-000629