STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TARGET CORPORATION,
Petitioner,
vs.
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Respondent.
/
Case No. 20-0446
RECOMMENDED ORDER
This case was heard by Administrative Law Judge Robert L. Kilbride of the Division of Administrative Hearings ("DOAH") at a final hearing on May 14 and 15, 2020, in Tallahassee, Florida, and by Zoom video teleconference.
APPEARANCES
For Petitioner: D. Ty Jackson, Esquire
George T. Levesque, Esquire Ashley Hoffman Lukis, Esquire Jason L. Unger, Esquire GrayRobinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32301
For Respondent: Raymond F. Treadwell, Esquire
Ross Marshman, Esquire Megan Kachur, Esquire
John J. Knowles, Deputy Chief Attorney Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399-2202
STATEMENT OF THE ISSUE
The issue in this case is whether Petitioner, Target Corporation ("Target"), is entitled to a consumption-on-premises alcoholic beverage license for its store at 1200 Linton Boulevard Delray Beach, Florida ("Target Delray").
PRELIMINARY STATEMENT
On October 10, 2019, Target filed an application with Respondent, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco ("Division"), seeking a consumption-on-premises liquor license for Target Delray. This is also referred to as a 4COP license.
On December 20, 2019, the Division issued its Notice of Intent to Deny License ("Denial Notice"), denying Target's application. In the Denial Notice, the Division provided two reasons for denying Target's application.
Target contested the denial and requested an evidentiary hearing at DOAH.
After the case was referred to DOAH, numerous pleadings and motions were filed by the parties, and a series of discovery disputes and resulting Orders were issued by the undersigned. The case ultimately proceeded to a hearing on May 14 and 15, 2020.
At the evidentiary hearing, Target presented the testimony of its corporate representative, Megan Lerch; the Division's corporate representative and Chief of Licensing, Damon Larry; and a consultant of the law firm representing Target, John Harris. Petitioner's Exhibits 1
through 67, 71 through 124, 127 through 130, 132, 133, 135, 138 through 140, 145 through 155, and 158 were admitted into evidence. Respondent's
Exhibits 1, 2, 5, 6, 8 through 10, and 12 through 16 were admitted into evidence.
A three-volume Transcript of the proceeding was filed on May 27, 2020. At the request of the parties, the deadline for the filing of post-hearing submittals was extended by the undersigned to July 10, 2020.
The parties timely filed proposed recommended orders, which were carefully reviewed, researched, and considered by the undersigned in the preparation of this Recommended Order.
All references to the Florida Statutes are to the version in effect on the date of the Denial Notice, unless indicated otherwise. References to Respondent's exhibits will be "Resp. Ex." and Petitioner's Exhibits will be "Pet. Ex." References to the Transcript will be "Tr."
FINDINGS OF FACT
The undersigned makes the following Findings of Fact based on the evidence presented, the reasonable inferences from the evidence, and the record as a whole.
The Division is the state agency responsible for supervising the conduct, management and operation of the manufacturing, packaging, distribution and sale within the state of all alcoholic beverages. It is also responsible to enforce the provisions of the Beverage Laws, chapters 561 through 568, Florida Statutes.
Target is a national retailer with more than 1800 locations in the United States, including approximately 126 locations in the state of Florida. Target's primary business is selling a variety of consumer goods and
merchandise including electronics, groceries, health and beauty products, apparel, toys, sporting goods, and more.
Target owns and operates a retail store located at 1200 Linton Boulevard, Delray Beach, Palm Beach County, Florida, designated as Target Store T-0642.
Target Delray has an existing beer-and-wine package store license ("2APS license"), beverage license No. 6013421, issued by the Division which is in "Current, Active" status. Target Delray also has an existing, but inactive, beer-wine-and-liquor package store license ("3PS license"), beverage license No. 6011410, issued by the Division which is in "Inactive, Automatic Waiver" status.
The Application
As noted, on October 10, 2019, Target submitted an application for a consumption-on-premises license ("4COP license") at Target Delray (the "Application"). Pet. Ex. 1.
Prior to the Application, Target had never applied for a consumption- on-premises license in Florida. All of Target's locations in Florida are licensed by the Division as package stores for off-premises consumption of beer and wine, including three separate liquor stores that are walled off from the nearby main stores, and have separate entrances.
First 14-Day Letter
Upon reviewing the Application, a Division employee notified Target by email that the Application sketch appeared to show the entire retail store. Pet. Ex. 2. The Division employee inquired whether Target instead meant to license a separate liquor store with a separate entrance from the main store. In addition, she informed Target that a new license could not be issued to the entire store because the 2APS license already existed at Target Delray. Id.
Before Target responded, the Division sent Target a formal letter giving Target 14 days to submit a new sketch in support of its Application (the "First 14-Day Letter"). Pet. Ex. 3. It also stated that the Application was
incomplete because Target "failed to provide a complete sketch" of the premises sought to be licensed and that the "sketch submitted shows a license number, 6013421, at the licensed location." Id.
Shortly thereafter, Target responded with a request to cancel its 2APS license at Target Delray when a permanent consumption-on-premises license was issued. Pet. Ex. 4. In addition, Target clarified that "[t]he licensed premises diagram is correct[;] it will be the department store and not a side liquor store."
The Division employee then explained to Target that a consumption- on-premises license of this type "can't be in a grocery/retail store." Pet. Ex. 5. Target responded that the Division has "routinely issued" this type of license to various establishments "that sell food to the public for consumption on the premises along with other retail items … ."
Draft Second 14-Day Letter
On or about October 29, 2019, the Division drafted, but did not send, a second letter to Target identifying deficiencies in the Application sketch (the "Second 14-Day Letter").
It read, "[t]he submitted application is considered incomplete and/or unverifiable, as applicant has failed to provide a complete and detailed sketch of the premises sought to be licensed. Specifically, please identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with the sale of alcoholic beverages for consumption on or off the premises." Id. It requested a response within 14 days.
The Division, however, never sent this Second 14-Day Letter to Target.
The Inspections
On November 8, 2019, as part of its normal practice in cases of this nature, a Division representative physically inspected the premises of Target Delray for purposes of evaluating the Application.
During the inspection, Target Delray's assistant manager (or "Executive Team Lead") Scott Hoffman ("Hoffman") explained to the Division's inspector how Target Delray currently sells beer and wine. Hoffman did not know, however, how Target Delray would be selling liquor under the 4COP license it applied for.1
As a result, the assistant manager was not able to properly identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with Target's Application for a consumption-on- premises license.
While inspecting Target Delray, the Division inspector took a variety of pictures of merchandise offered for sale throughout the store. The inspector also compared the Application sketch to the proposed licensed premises of the store.
Division policy permits an inspector to make a sketch when appropriate. As a result, the Division inspector created a "clarification sketch" of Target Delray by marking and labeling on Target's Application sketch indicating the "current beer and wine sales area," the "wine and beer storage area," and the "Starbucks coffee shop" as well as other areas. The Division reviewed and considered the inspector's "clarification sketch" as part of the application process for Target.
In his inspection report, the Division inspector concluded that the premises matched the Application sketch and "was clarified at inspection."
Significantly, however, the inspector determined that non-authorized merchandise was being sold throughout the Target store. Pet. Ex. 8. He wrote that he "observed 100+ items being offered for sale that do not comply with [Florida Statutes, section] 565.045." Id.
1 Curiously, there was no persuasive evidence that Target's headquarters ever communicated with Target Delray about the 4COP license application prior to submitting it or prior to the inspection.
The inspector gave Target Delray 14 days to comply with the statute, at which time a re-inspection would be conducted.
The same Division inspector conducted the re-inspection of Target Delray on November 22, 2019. His second inspection report reached the same conclusion regarding the extensive merchandise for sale. Pet. Ex. 13. As a result of the same noncompliance, he advised Target Delray that it did not meet the requirements for a consumption-on-premises license. Id.
Target Delray's assistant manager signed for both inspection reports. The Notice of Intent to Deny License
On or about December 20, 2019, the Division issued its Denial Notice regarding the Target Delray Application. Pet. Ex. 18.
The Denial Notice outlined two reasons for the Division's intent to deny the Application:
REASON [1]: The submitted application is considered incomplete and/or unverifiable, as applicant has failed to provide a complete and detailed sketch of the premises sought to be licensed. Specifically, the application did not identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with the sale of alcoholic beverages for consumption on or off the premises, nor could the manager of the proposed licensed premises identify such areas upon inspection.
Therefore, the Division of Alcoholic Beverages and Tobacco was unable to fully investigate this application in accordance with Florida law, and the application is being recommended for denial.
Pet. Ex. 18 (citing sections 561.01(11), 561.18 and 562.06, Florida Statutes).
REASON [2]: The proposed licensed premises fails to meet the statutory regulations for consumption on the premises. Specifically, there shall not be sold at such places of business anything other than the beverages permitted, home bar and party supplies and equipment (including but not limited to
glassware and party-type foods), cigarettes, and what is customarily sold in a restaurant. The location identified as the licensed premises offers a substantial, yet indeterminate, amount of items for sale that fall outside of the scope of the statute, including, but not limited to, the items listed in the Exhibit B to this notice.
Pet. Ex. 18 (citing section 565.045, Florida Statutes).
Exhibit B to the Denial Notice listed more than 150 items for sale at the Target Delray store which the Division determined to be unauthorized merchandise for a place of business seeking such a license. Pet. Ex. 18. These items were found in various departments and locations throughout the store and included, among other things: men's and women's clothing; automotive products; holiday items; furniture; household products; sporting goods; games and toys; tools; pharmaceutical items; health and beauty products; pet care products; electronics; and others. Id.
Submitted Sketch & Clarification Sketch
The sketch submitted by Target with its Application did not fully and adequately portray the current premises for licensing purposes.
More specifically, Target Delray renovated and converted its Target Café into a Starbucks Café prior to the Application, but nevertheless submitted an outdated sketch showing the old Target Café. Likewise, the sketch submitted did not include the newer Starbucks Café. Pet. Exs. 37 and 38. In short, Target did not send the Division an updated and accurate sketch adequately identifying the current Starbucks Café.
As submitted, the Application sketch also did not include any clear labeling or legible words to identify certain areas on the sketch. Pet. Ex. 1. Target's representative acknowledged this fact.
For example, there were no sales or storage areas labeled or identified on the sketch.
The only seats on the sketch were located in the renovated café area, but they were not labeled as such.
The "bar" or "counter" on the sketch--which was also not labeled—is located where the Target Café used to be, but Target stated that the café's bar or counter was not capable of selling or serving alcoholic beverages.
As a result, Target's Application sketch did not adequately identify counters, sales areas (including points of sale), bar locations, and other relevant areas that would be associated with the sale of alcoholic beverages.
The lack of labels or proper identification to explain the layout of these relevant areas was the crux of the Division's reason for concluding that the sketch was insufficient. Explanatory labels and notations on the sketch were needed for the Division to properly investigate the application and understand how the applicant would comply with the applicable provisions of the Beverage Laws.
Similarly, Target Delray's assistant manager for general merchandise, who worked on the premises of Target Delray on a day-to-day basis, had difficulty identifying or explaining areas of the store on the Application sketch.
Although the Division inspector created a "clarification sketch" based on information he received during his inspection, the inspector was unable to indicate on the sketch how or where Target Delray would be selling liquor for consumption on or off the premises under the 4COP license for which it applied. Pet. Ex. 9. Regardless, this was ultimately the responsibility of the applicant--Target.
Thus, neither the original Application sketch nor the inspector's "clarification sketch" adequately included the necessary information regarding Target Delray's proposed sale of beer, wine, or liquor under a consumption-on-premises license.
The Inventory at Target Delray
During these proceedings, Target did not dispute its broad inventory of consumer merchandise for sale.
Similarly, Target conceded that all the items identified on Exhibit B of the Denial Notice were being sold in the Target Delray store, including windshield wipers, toilet seats, bicycles, batteries, screw drivers, shampoo, dog food, laptop computers, and more. Pet. Ex. 18.
Adding to this, Target offered into evidence a lengthy and broad list of consumer merchandise sold at the Target Delray store. Pet. Ex. 43.
Although the exact inventory of a Target store is subject to frequent changes, Target Delray regularly sells a comprehensive collection of consumer goods including, but not limited to, men's and women's clothing, automotive products, holiday items, furniture, household products, sporting goods, games, toys, tools, pharmaceutical items, health and beauty items, pet care items, electronics, books, magazines, and flags.
Other items on Target Delray's inventory list include infant formula, dish detergent, napkins, frozen meat, barstools, lamp shades, candles, pillows, fireworks, and more. Pet. Ex. 43.
These retail and grocery items at Target Delray are found throughout the store's premises. Resp. Ex. 16 at 11:5-15. Alcoholic beverages being currently sold are not found throughout the store's premises, but are limited to the grocery items section.
Customers purchase all of the retail merchandise and grocery items at the same points of sale ("cash registers") where alcoholic beverages under a 4COP license would be purchased as well.2
2 There was no evidence offered to suggest that alcoholic beverages under a 4COP license would be purchased or paid for at any location other than the normal cash register used to check out other items of general merchandise.
Target Delray's Food Service and Food Permit
Target Delray sells a limited menu of ready-to eat food and non- alcoholic beverages from its Starbucks Café which operates from within its store, for consumption on the premises. As a result, Target Delray holds restaurant licenses from the City of Delray Beach ("City") and from Palm Beach County. Pet. Exs. 139 and 140.
Target's representatives refer to the Starbucks Café as a "restaurant" within the larger Target Delray store. Resp. Exs. 9 and 10. In fact, according to Target, the only seats, tables, and counters associated with the regular sale and consumption of food or beverages are located within the Starbucks Café. Resp. Ex. 16 at 26:25-27:4.
The City restaurant license identifies the restaurant size as 51-100 persons. The reasonable inference from this fact is that the City restaurant license does not encompass the entire premises of the Target Delray store, but is limited to the Starbucks Café area. Pet. Ex. 140.
Despite allowing the operation of the Starbucks Café in a small portion of the store, Target Delray is not licensed by the Florida Division of Hotels and Restaurants.
Instead, Target Delray has an annual food permit issued by the Florida Department of Agriculture and Consumer Services. Pet. Exs. 39 and 45. This permit identifies the Target Delray store as a "food establishment." Id. More particularly, Target Delray is classified by the Department of Agriculture and Consumer Services as a "minor food outlet with significant food service and/or packaged ice."
Purpose of the 4COP License for Target Delray
Despite operating the Starbucks Café as a restaurant within its store, Target Delray offered no persuasive evidence to prove that Target submitted its Application for a consumption-on-premises license so that it could sell alcoholic beverages for consumption on the premises.
Rather, it was undisputed that Target sought a consumption-on- premises license with the intent, and for the purpose of, selling alcoholic beverages in sealed containers for consumption off the licensed premises.
The more persuasive evidence, and a reasonable inference from the undisputed evidence, indicated that Target Delray intended to operate in a manner that would allow its customers to purchase liquor from various aisles of its main store or grocery areas, instead of purchasing it from a separate walled-off liquor store.
When presented with this plan, the City expressed reservations about whether the Target Delray location is appropriate for a consumption-on- premises license, and deferred to the Division on the matter. More specifically, the City expressed that the city zoning district did not permit the sale of alcohol. It made "no determination" whether the location of the current floorplan was appropriate for a 4COP license.
There was also no persuasive evidence presented to conclude that Target Delray would be selling alcoholic beverages by the drink from the Starbucks Café.
In sum, the more credible and persuasive evidence indicated that Target Delray did not intend to allow consumption of alcoholic beverages on the premises if the 4COP license were to be approved. Rather, Target filed the Application and sought the 4COP license to operate a place of business where alcoholic beverages are sold in sealed containers for consumption off the premises.
Non-Party Locations
During discovery, Target identified 12 businesses in Florida that have been issued a consumption-on-premises license. It argues that these businesses "sell all of the same type [of] items sold at [Target's] proposed licensed location." The locations listed below, according to discovery responses from Target, represent a variety of establishments issued consumption-on-premises licenses by the Division. Id.
Antonio's--Maitland, FL (BEV5800226) (Pet. Ex. 22)
Biltmore Hotel--Coral Gables, FL (BEV2308001) (Pet. Ex. 90.)
Buster's Beer and Bait--Panama City Beach, FL (BEV1303131) (Pet. Ex. 92.)
CMX Cinemas Fallschase--Tallahassee, FL (BEV4704195) (Pet. Ex. 93.)
Daytona Int'l Speedway--Daytona Beach, FL (BEV7402959) (Pet. Ex. 88.)
Neiman Marcus--Coral Gables, FL (BEV2300131) (Pet. Ex. 99.)
Nordstrom--Coral Gables, FL (BEV2329106) (Pet. Ex. 98)
PGA National Resort--Palm Beach Gardens, FL (BEV6014275) (Pet. Ex. 91.)
Ritz Carlton--Miami Beach, FL (BEV2326201) (Pet. Ex. 120.)
Sophie's at Saks Fifth Avenue--Sarasota, FL (BEV6801712) (Pet. Ex. 95.)
Slater's Goods & Provisions--Babcock Ranch, FL (BEV1801399) (Pet. Ex. 89.)
xii. Trump National Doral--Miami, FL (BEV2331496) (Pet. Ex. 22)
For three of these locations--Antonio's, Ritz Carlton, and Trump National Doral--Target offered no evidence at the hearing to prove or show that these licensees sell items similar to Target Delray.
At the hearing, Target offered evidence; however, regarding three additional locations the Division has licensed for consumption on the premises which, according to Target, sell consumer merchandise similar to Target Delray:
World Golf Village--St. Augustine, FL (BEV6501333) (Pet. Exs. 71 and 97.)
Total Wine--Gainesville, FL (BEV1100722) (Pet. Exs. 71 and 96.)
ABC Liquors--Gainesville, FL (BEV1100212) (Pet. Exs. 71 and 86.)
Thus, as a part of the evidence, there were 12 licensed locations to which Target Delray likens itself and its inventory, for purposes of licensure (the "Non-Party Locations").
Target contends that Target Delray is similar to these Non-Party Locations because these licensees offer food and beverages for consumption on the premises while selling numerous items at retail. The thrust of Target's argument is that because these similar Non-Party Locations received 4COP licenses, it must receive the 4COP license as well. Target Delray also argued that it is being singled out because it is considered a "big store."
Testimony of John Harris
In support of its allegation of inconsistent treatment, when compared to other licensees, Target offered the testimony of John Harris ("Harris").
Harris is a former Director of the Division. He now does work for the law firm representing Target in this action.
In his current position, Harris helps clients apply for liquor licenses. He assisted Target with the preparation of this Application.
Harris also assisted the firm's representation of Target in its lobbying efforts to change package store restrictions.
In 1994, when he was Division Director, Harris was heavily involved in drafting and adopting the Restaurant Rule (the "Rule"). The Rule states that "items customarily sold in a restaurant shall only include" ready-to-eat food and beverages. Pet. Ex. 55. (Emphasis added). Harris testified that he never intended for the Rule to be exclusive, despite the meaning of the restrictive words chosen. In addition, Harris now believes there is no limit to what is customarily sold in a restaurant.
Harris created the list of Non-Party Locations with help from counsel representing Walmart and Target. His list included business locations he suspected were not in compliance with the Rule due to the items they sold. Harris then traveled the State of Florida to visit and inspect the Non-Party Locations in preparation for his testimony.
As evidence, Harris took pictures and prepared a chart of the items he observed for sale at the Non-Party Locations. Pet. Ex. 71 and 85.
Hotels and Resorts Visited
Among the Non-Party Locations visited by Harris, the PGA National Resort in Palm Beach Gardens had a gift shop, beauty shop, woman's clothing store, golf pro shop, and a spa located in or near the resort's lobby area. These shops sold cosmetics, pharmaceuticals, men's and women's clothing, shoes, jewelry, handbags, and more. Pet. Ex. 71.
Harris concluded that these shops, in addition to the spa and tennis shop, were within the licensed premises because they were included in the application sketches and shared the same address as the licensed premises. Pet. Ex. 113. He did not know, however, whether these shops were leased or controlled by a different person or entity than the liquor licensee.
Harris did not observe alcoholic beverages being sold within the spa or any of the shops. In fact, he did not know where alcoholic beverages were sold, but he assumed such beverages were sold at the resort's restaurants.
Harris also visited the Biltmore Hotel in Coral Gables and took photos of the resort's gift shops, spa, tennis shop, and golf pro shop. Pet. Ex. 74. He did not observe alcoholic beverages being sold in any of these areas. Alcoholic beverages were sold in a separate café or restaurant for consumption on the premises.
The various gift shops at the Biltmore were accessible through the lobby or common hallway. These shops sold a variety of clothing, toys, health and beauty products, and more. Pet. Ex. 71. Harris did not know whether the gift shops were separately leased, or by whom.
Harris also visited the World Golf Village resort near St. Augustine, Florida which had a separate gift shop, restaurant, and bar area. He did not observe any alcoholic beverages being sold.
Department Stores Visited
Harris testified that a Saks Fifth Avenue ("Saks") store in Sarasota has a consumption-on-premises license. Pet. Ex. 95. The Saks department store sells men's and women's clothing, accessories, handbags, jewelry, watches, coats, sweaters, scarves, shoes, and more. Pet. Ex. 71.
However, the liquor license belongs to Fifth Dining Sarasota, LLC, doing business as Sophie's at Saks Fifth Avenue. Pet. Ex. 95. Harris acknowledged that a restaurant entrance with the name "Sophie's" separated the department store from the restaurant. Pet. Ex. 82.
During his visit, alcoholic drinks were only being sold from the Sophie's restaurant and bar adjacent to the department store. There was no indication of retail items being purchased where the alcoholic beverages were sold.
In addition, the food service plan application sketch for Fifth Sarasota Dining, LLC, only included the restaurant and bar area, not the department store.
Based on his experience alone, and without any other supporting details, Harris concluded that the restaurant and department store are both within the licensed premises. This conclusion by him was not persuasive.
Harris did not know whether the department store and the restaurant were under the dominion and control of the liquor licensee, Fifth Dining Services, LLC. Pet. Ex. 95; Resp. Exs. 14 and 15. In fact, he stated that the department store may be under the dominion and control of Saks Fifth Avenue, LLC.
He also visited a Neiman Marcus location, which holds a consumption- on-premises license and sells a variety of retail items in its department store.
He surmised that alcoholic beverages may be sold from an adjacent restaurant that was closed for renovation when he visited. However, Harris did not observe any alcoholic beverages being sold or consumed.
Based solely on the existence of a liquor license issued at the same address as the department store, Harris concluded that both the closed restaurant and the department store were within the same licensed premises. This conclusion was not persuasive or supported by credible evidence.
Harris did not know whether the restaurant in the Neiman Marcus store is leased or controlled by the same entity that controls the department store.
In addition, the application sketch for the licensee at this Neiman Marcus did not include the department store; it only included the restaurant as the designated licensed premises. Pet. Exs. 109 and 110.
Like the Saks Fifth Avenue and Neiman Marcus locations, a Nordstrom department store he visited holds a consumption-on-premises license. It sells alcoholic beverages from a restaurant on the periphery of the store. Pet. Exs. 80 and 98. The Nordstrom department store sells retail items of a quality similar to these two other department stores. Pet. Ex. 71.
Harris did not observe any alcoholic beverages being sold or consumed within the Nordstrom department store itself, nor did he observe any customer purchase retail items from the restaurant area.
Nevertheless, based on his experience, Harris concluded that the restaurant and department store at Nordstrom are both within the licensed premises. Pet. Ex. 111. Again, this conclusion by him was not sufficiently established by the evidence.
As with the other locations, he did not know whether the restaurant and department store at Nordstrom were leased, operated, or controlled by the same entity.
Grocery and Liquor Stores Visited
Buster's Beer and Bait is a small liquor store and bar in Panama City Beach that has a consumption-on-premises license and sells alcoholic drinks
for consumption on the premises. It also sells sealed beverages for consumption off the premises. Pet. Exs. 75 and 92.
According to Harris, in addition to alcoholic beverages, Buster's sells cigars, assorted fishing gear, and frozen fish bait from the same area. Pet. Exs. 71 and 75.
Slater's Goods & Provisions is a general store in Babcock Ranch with a consumption-on-premises license. Pet. Ex. 89. According to Harris, it sells groceries, wine, liquor, household items, and more--all from the same area. Pet. Ex. 71. There is also a café and an ice cream shop inside. Pet. Ex. 83. Harris concluded that these areas were within the same licensed premises because of the similar address and interconnectedness of the store.3
Harris also visited two liquor stores in Gainesville, Florida that hold consumption-on-premises licenses--ABC Liquors and Total Wine. Pet. Exs. 84 and 86. At these locations, Harris did not observe any sales of open alcoholic beverages being consumed on the premises, but he also did not attempt to consume a beverage on the premises. In addition to alcoholic beverages, he also observed cigars for sale at ABC Liquors.
Target Delray does not sell cigars. Movie Theater Visited
Harris visited a CMX Movie Theater in Tallahassee, Florida with a consumption-on-premises liquor license. Pet. Ex. 93. Alcoholic beverages were being sold for on-premises consumption from a bar area separate from the theater viewing areas. At a separate counter, movie tickets were being sold. Pet. Ex. 76.
Target Delray does not sell movie tickets.
3 Both Slater's and Buster's are much smaller in floor area size than Target Delray and offered a more limited inventory of consumer items.
Daytona International Speedway
Harris also visited the well-known Daytona International Speedway racetrack complex which holds a consumption-on-premises liquor license. Pet. Ex. 88.
The Daytona International Speedway also sells golf bags, tires, fenders, key chains, clothing, chairs, flagpoles, and race experience tickets. The retail items are sold from a gift shop that connects to a grill where draft beer is sold for consumption on the premises. Pet. Ex. 78. Harris did not know if the grill had separate cash registers from the gift shop. Race tickets are sold from a separate ticket counter.
Harris concluded that all of these items are sold within the licensed premises, which he understood to include the whole raceway and concourse grounds based on the application sketches. Significantly however, he did not know if the gift shop is leased or controlled by the same entity that holds the liquor license.
Walmart and Costco
The Division recently denied license applications from a Walmart and a Costco store for the same consumption-on-premises license sought by Target Delray.
The Division relied on the same statute--section 565.045, Florida Statutes--in denying those applications based on the wide variety of consumer items Walmart and Costco sell at retail. Pet. Ex. 149; Pet. Exs. 40 and 44.
Walmart and Costco are more similar to Target in terms of the wide variety of consumer merchandise sold, than any of the Non-Party Locations visited by Harris.
CONCLUSIONS OF LAW
Jurisdiction, Standards, and Burden
DOAH has jurisdiction over the subject matter of this proceeding pursuant to sections 120.569, 120.57, and 120.60, Florida Statutes.
In a licensure application case of this nature, findings of fact and the burden of proof are based on a preponderance of the evidence in the record.
§ 120.57(1)(j), Fla. Stat.; Fla. Dep't of Child. & Fams. v. Davis Family Day Care Home, 160 So. 3d 854 (Fla. 2015).
Central to the outcome of this case is an understanding that agencies have broad discretionary authority to issue licenses, especially when the operation of that license is deemed a privilege rather than a right, as with liquor licenses. Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco v. Martin Cty. Liquors, Inc., 574 So. 2d 170, 175 (Fla. 1st DCA 1991); Morey's Lounge, Inc. v. Dep't of Bus. & Prof'l Reg., Div. of Alcoholic Beverages and Tobacco, 673 So. 2d 538 (Fla. 4th DCA 1996); Silver Show, Inc. v. Dep't of Bus. & Prof'l Reg. of State of Fla., Div. of Alcoholic Beverages and Tobacco, 763 So. 2d 348 (Fla. 4th DCA).
In this case, Target has the ultimate burden to prove its entitlement to a 4COP license. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
The Beverage Laws consist of an intricate and complex series of interrelated statutes and rules. Several relevant sections of the state beverage laws were considered by the undersigned in this case. They are outlined below.
Applicable Statutes
Before selling alcoholic beverages to consumers, a person or business must apply for a license by filing a sworn application in the format prescribed by the Division. §§ 561.14(3) and 561.17(1), Fla. Stat.
After the Division fully investigates the application, it must approve or deny the application. §§ 561.18 and 561.19(1), Fla. Stat.
When an agency such as the Division intends to deny an application for a license, it must provide written notice to the applicant and state with particularity the grounds or basis for the intended denial of the license.
§ 120.60(3), Fla. Stat.
In this case, the Division's Denial Notice provided two reasons for its intended denial of Target's Application: (1) the Division's inability to fully investigate the Application, and (2) Target Delray's sale of numerous items not authorized by section 565.045. Pet. Ex. 18. These are more fully discussed below.
The Beverage Laws require the Division to "fully investigate" an application, "both as to qualifications of the applicants and a manager or person to be in charge and the premises and location sought to be licensed…."
§ 561.18, Fla. Stat.
Each license application must "describe the location of the place of business" where alcoholic beverages will be sold. § 562.06, Fla. Stat. It is unlawful to sell such beverages except on the premises "as described in the application therefor." Id.
At a minimum, an application must include a sketch of the proposed "licensed premises." § 561.01(11), Fla. Stat.
The "licensed premises" includes:
[N]ot only rooms where alcoholic beverages are stored or sold by the licensee, but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which the licensee has some dominion or control and shall also include all of the area embraced within the sketch, appearing on or attached to the application for the license involved and designated as such on
Id.
said sketch, in addition to that included or designated by general law.
To enforce and apply these provisions of the Beverage Laws, the
Division had the legal authority to request information from Target to assist the Division's investigation of Target's Application, including information about the premises and location sought to be licensed. It also had the right to ensure that the Application had an adequate description of the place of business where alcohol would be sold. §§ 561.01(11), 561.18, and 562.06, Fla. Stat.
For a consumption-on-premises license application, the Division does not exceed this authority by requesting more details about "counters, sales areas … bar locations, and other relevant areas" associated with sales for consumption on the premises, which together all encompass the "drink parlor" that legally dictates the contours of an applicant's licensed premises under section 561.01(11), Florida Statutes.
It was a reasonable exercise of the Division's discretion to require that Target Delray's sketch identify certain areas involved in the sale of alcohol, in order to understand how Target Delray would comply with the Beverage Laws.
The Application sketch, as submitted by Target, did not adequately provide this information to readily identify the places where alcoholic beverages would be sold at Target Delray.
Therefore, the Division had the legal authority under the Beverage Laws to consider the deficiencies of the sketch as one of its reasons for denying Target's Application.
The Administrative Procedure Act ("APA"), chapter 120, prohibits an agency from denying a license application due to either an applicant's failure to correct an error or omission on an application or an applicant's failure to supply additional information to the agency, unless the agency timely
notified the applicant within 30 days after receiving the application.
§ 120.60(1), Fla. Stat.
The Division complied with this requirement and notified Target within 30 days that Target "failed to provide a complete sketch" of the premises sought to be licensed. Pet. Ex. 3.
When an applicant believes an agency's request for additional information is not authorized by law or rule, the agency, at the applicant's request, must nonetheless proceed to process the application. § 120.60(1), Fla. Stat.
The Division's First 14-Day Letter raised and identified legitimate concerns about the Application sketch. In response, Target, through its law firm, asserted that the "licensed premises diagram is correct" and that "the sketch which describes the entire premises of the location is accurate for purposes of the application." Pet. Exs. 4 and 5.
When Target's law firm, who submitted the Application, described the sketch as "correct" and "accurate," the Division did not violate the APA by interpreting those statements as Target's insistence that the sketch was legally sufficient and that any request for additional information by the Division would not be authorized by law or rule. At that point, the Division was justified in proceeding to process the Application by inspecting Target Delray rather than sending the Second 14-Day Letter to Target's law firm. Pet. Ex. 148.
Throughout the application process and these proceedings, Target has consistently taken the position that its sketch was legally sufficient, despite the absence of any labels or descriptions. For example, in its Amended Petition, Target alleged that the sketch was detailed and, therefore, legally sufficient. Am. Pet. at p. 3. In other words, Target maintains that the Division's request for additional, detailed information in the sketch was not necessary or was not authorized by law or rule. While it had the lawful
prerogative to take that position, this was done at the risk that its sketch might later be determined to be inadequate or deficient.
But even if Target's legal position were correct, the appropriate course of action was for the Division to proceed with the Application, which the Division did. See § 120.60(1), Fla. Stat. Therefore, Target's contention that the Division was required to send the Second 14-Day Letter is immaterial.
The Division's actions were consistent with section 120.60, Florida Statutes, because it proceeded to process the Application by conducting an inspection. It did not deny the Application outright based on the insufficient sketch alone.
The first reason given in the Denial Notice was based on more than an insufficient sketch. The Division also concluded it could not adequately investigate the Application, in part, because the manager of Target Delray was unable to adequately identify relevant areas during the inspection. Pet. Ex. 18.
More particularly, the facts are undisputed that the assistant manager of Target Delray did not know how or where Target Delray would be selling liquor under the applied-for license. He could not identify or point out counters, sales areas, bar locations, and other relevant areas associated with the Application for a consumption-on-premises license.
This is not surprising given that Target's headquarters never informed Target Delray about its plans to apply for a consumption-on- premises license for Target Delray, despite it being the first store in Florida to potentially have such a license.
The "clarification sketch" created by the Division inspector simply confirmed how Target Delray currently sells beer and wine under its existing 2APS license. It gave no indication how Target Delray would sell beer, wine,
and liquor for consumption on or off the premises under the applied-for license.4
Under these facts, it was reasonable for the Division to conclude that it could not fully or adequately investigate the Application as required by law. See § 561.18, Fla. Stat. The sketch submitted was not adequate, and no one at Target Delray satisfactorily informed the Division how and where the Target location would be selling alcoholic beverages under the proposed 4COP license--information the law requires the Division to have. See
§ 562.08, Fla. Stat. The Division was therefore unable to determine if Target would be complying with the law. See Martin Cty. Liquors, Inc., 574 So. 2d at 174-75 (concluding that the Division's denial of an application was reasonable because the Division could not investigate an application where the qualifications of the premises were unknown or uncertain).
This process for investigating and approving the issuance of a liquor license has been in place and recognized for many years. As early as 1952, the Florida Supreme Court observed that after its investigation, the beverage laws "confer on the State Beverage Director discretion and authority to approve or disapprove, according to statutory requirements, applications for licenses to manufacture or sell intoxicating liquors." Dade Cty v. Overstreet, 59 So. 2d 862 (Fla. 1952).
According to the testimony of the Division's Chief of Licensing, inspections of proposed licensed premises are conducted to ensure an applicant would be in compliance with the applicable provisions of the Beverage Laws. This is not only reasonable, but necessary, particularly in an industry characterized as being subject to strict regulation. Morey's Lounge, Inc., 673 So. 2d at 538.
4 The Division's Chief of Licensing testified that the "clarification sketch" was not deficient, in his opinion, but the ultimate and final decision maker for the denial was Deputy Director Dan McGinn, and Mr. McGinn disagreed and concluded the sketch was insufficient.
It has also been observed that:
These principles have special application to proceedings to determine whether a person should be granted an alcoholic beverage license. The state has broad powers in regulating the alcoholic beverage industry. New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 715, 101 S.Ct. 2599, 2600,
69 L.Ed.2d 357 (1981) (state has "absolute power under the twenty-first amendment to prohibit totally the sale of liquor within its boundaries"). The agency is given considerable discretion in determining whether an applicant has shown the requisite qualifications.
Silver Show, Inc., 763 So. 2d at 350.
One novel argument advanced by Target is that section 565.045 does not apply to Target Delray unless and until the location actually receives the license. Target suggests that section 565.045 applies only to disciplinary or enforcement actions, not to applications for initial licensure.
There was no persuasive legal authority offered by Target to support this argument or to suggest that the Division must issue a license to an applicant, despite the Division's awareness of a violation of the Beverage Laws when the license is issued.
Aside from the lack of any supporting or persuasive case or statutory law from Target, it is notable that the operative subsection of section 565.045, (2)(a), does not use the word "vendor" (a term suggesting a person already issued a license). Likewise, the terms used do not suggest that its provisions are limited to a post licensing review of a "vendor" issued a license. Rather, it prohibits the "places of business" from selling certain items. This belies the Petitioner's argument as well, and suggests that this subsection controls during either the application stage or for enforcement proceedings.
Moreover, the Division's duty to enforce the Beverage Laws must logically and necessarily exist at the application stage. Section 561.18 gives the Division the clear authority to investigate applications both as to the
qualifications of applicants and as to the premises and location to be licensed. This pre-licensing authority would be meaningless if the Division were required to ignore existing violations at the premises until after the license is actually issued, then initiate the disciplinary proceeding with a potentially higher burden of proof. See § 120.57(1)(j), Fla. Stat.; Osborne, 670 So. 2d at 934-35. Petitioner's argument to the contrary is neither reasonable nor logical.
Section 565.045
Although a great deal of time and energy have been devoted by the parties to discussing and debating a host of issues, the undersigned is persuaded that the outcome of this license dispute is largely controlled by reasonably applying section 565.045.
This statute is clear, unambiguous, and simple--to obtain a 4COP license a place of business is restricted from selling (may not sell) "anything other than the beverages permitted, home bar and party supplies and equipment (including but not limited to glassware and party-type foods), cigarettes, and what is customarily sold in a restaurant." § 565.045(2)(a), Fla. Stat.
This is the thrust of the Division's argument, and a reasonable reading and application of this statute supports the Division's denial of Target's application.
Principles Relating to the Proper Definition of a Restaurant
Target also argues that everything within its inventory is "customarily sold in a restaurant," because "[t]he consumer goods that Target Delray sells are customarily sold in Target's restaurants throughout the state and country, as well as in hundreds, if not thousands, of other similar 'restaurants' in Florida and elsewhere." Pet. Am. Pre-Hrg. St. at pp. 3 and 4; Am. Pet. at pp. 3 and 4. This unique argument is not persuasive for a variety of reasons.
Despite Target's position that "hundreds, if not thousands," of restaurants sell the items sold at its Target Delray store, it presented no persuasive or compelling evidence to support this claim.
Furthermore, Target did not present compelling or persuasive evidence to demonstrate that the retail items listed in Exhibit B to the Denial Notice, or the retail items listed on its lengthy inventory list, are regularly or customarily sold in restaurants throughout Florida.
Target argues, in part, that Target Delray is a restaurant because it "sells ready-to-eat food items that can be and are purchased by the public and consumed throughout the entire premises of Target Delray." Therefore, Target suggests that "Target Delray is a 'public eating place' or 'restaurant' as that term is used in the Beverage Law." Pet. Am. Pre-Hrg. St. at p. 3.
This argument fails when considered in the light of decisional case law describing and defining a restaurant.
Initially, it is worth noting that the term "restaurant" is not expressly defined in the Florida beverage statutes. Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco v. Salvation Ltd., Inc., 452 So. 2d 65, 67 (Fla. 1st DCA 1984). Although the court in Salvation Ltd., Inc., did not require that food be prepared and cooked on the premises for an establishment to qualify as a "restaurant," it noted:
The above statute does not define the terms "restaurant" or "serve." They should, therefore, be given their plain and ordinary meaning. Smith v. State, 80 Fla. 315, 85 So. 911 (1920); McTigue, supra. "Restaurant" is defined as "a public eating place." Webster's New Collegiate Dictionary, p. 979 (1979). (Emphasis added).
In this case, there was no compelling or persuasive evidence offered by Target that its Delray Beach store operates or holds itself out as a "public eating place." In that respect, and under the reasoning of Salvation Ltd., Inc., Target Delray is not a restaurant.
Regarding the term "restaurant" as used in section 565.045, its plain meaning can be ascertained using the common meaning in 1935 when the Legislature adopted it. See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612–13 (1992)("The meaning of [a statutory term] is the meaning generally attached to that term … at the time the statute was enacted."); see also S.C. v. State, 224 So. 3d 249, 250 (Fla. 3d DCA 2017)("[T]he terms of a statute should be given their plain and ordinary meaning as they were understood at the time of enactment.").
Based on a careful review of the relevant and historical case law, the undersigned concludes that Target Delray is not a "restaurant" as that term was commonly understood when the Legislature first adopted the statute.
More specifically, definitions of the term "restaurant" from the early 20th Century observe that the main purpose of a restaurant is to sell food and beverages for immediate consumption. See, e.g., Page v. D.C., 20 App.
D.C. 469, 475 (D.C. App. 1902)(defining restaurant as "an establishment for the sale of refreshments, both food and drink"); Potson v. City of Chicago, 222 Ill. App. 50, 52 (Ill. App. Ct. 1921)(same); Stand. Brewing Co. v. Weil, 99 A. 661, 663 (Ct. App. Md. 1916)(defining "restaurant" as "an establishment where meals and refreshments are served"); Donahue v. Conant, 146 A. 417, 419 (Vt. 1929)(same). The Supreme Court of Rhode Island explained that "a customer goes to a restaurant only to satisfy his immediate need of food." Ford v. Waldorf Sys., 188 A. 633, 635 (R.I. 1936).
In 1920, the Supreme Court of North Carolina explained that "a restaurant is generally understood to be a place where refreshments, food, and drink are served. Whether they are served to guests seated at a table or on stools at a counter does not affect the definition; that being merely a detail in the operation of the restaurant." State v. Shoaf, 102 S.E. 705, 705 (N.C. 1920)(internal citations omitted). It stated further, "While the word 'restaurant' has no strictly defined meaning, it seems to be used indiscriminately as a name for all places where refreshments can be had,
from a mere eating house and cookshop to any other place where eatables are furnished to be consumed on the premises." Id.5
In 1933, Black's Law Dictionary defined "restaurant" as "[a] place where refreshments, food, and drink are served for consumption on the premises." Black's Law Dictionary 3d Ed. 1547 (1933).
Under a fair reading of these historical definitions, Target cannot convincingly claim that its Target Delray store falls within the definition of a restaurant.
Over the years, Florida courts have recognized that restaurants are unlike or different from retail stores. See, e.g., Lee v. Cloverleaf, Inc., 177 So. 722, 723 (Fla. 1937)(distinguishing between different establishments and, pointing out that a tax applicable to "stores" did not apply to "restaurants, cafés, cafeterias, lunch or sandwich stands or counters.").
In 1940, the Florida Supreme Court elaborated on why restaurants are different from stores. State ex rel. Beth v. Burnett, 194 So. 277 (Fla. 1940). The court wrote, "[i]t is clear that a restaurant renders service for a consideration. The restaurateur is required to buy food, cook and prepare the same, supply tables or counters and chairs or stools, knives and forks; a kitchen fully equipped is likewise necessary to furnish the service in the form of food, and these multiple items are necessary and required by the public on the part of the restaurateur when he renders the service to the public for a consideration." Id. at 280.
Target's representative acknowledged that Target Delray is a retail store and a grocery store, and its primary business is to sell goods. Resp. Ex. 16 at 10:7-12. Considering the comprehensive inventory of retail merchandise items for sale, the limited sale of food and beverages from the Starbucks Café for immediate consumption is a small fraction of the
5 Shoaf's definition of a restaurant was quoted with approval by the Florida Third District Court of Appeal in City of Miami Beach v. Royal Castle System, Inc. 126 So. 2d 595 (Fla. 3rd DCA 1961).
location's business, and is clearly not the primary focus of its business model, nor does it transform the Target Delray store into a restaurant.
Thus, judging by the language in Burnett, as well as the case law and dictionary definition of that term, Target Delray is not a restaurant.
Target's explanation that a customer may consume food while walking around the whole store is wholly insufficient to conclude that the entire store premises is a restaurant. This argument also runs contrary to the common meaning of the term “restaurant” and severely strains a reasonable definition of the term.
Other points of legal differentiation are worth noting. The Florida Supreme Court has rejected attempts to redefine a retail store as a restaurant based on limited food service inside the store. In Liggett Drug Company v. Lee, 171 So. 326 (Fla. 1936), the court ruled that a tax applicable to "stores" but not "restaurants" applied to the sales of "food and drink dispensed at [the store's] lunch or sandwich stands or counters where meals are served in connection with the conduct of [the store's] retail business." Id. at 329. The court explained that because the "lunch or sandwich departments are operated as congeneric subdivisions of [the store's] retail business," any "transactions taking place" in those areas were subject to the "stores" tax. Id. at 330.
Liggett helps to demonstrate that in 1935, when the term "restaurant" was introduced into the Beverage Laws, some stores were offering meals in connection with their retail business. This was not uncommon then.
Despite this, the Florida Supreme Court did not consider these separate lunch departments or counters within these stores to be restaurants or to alter the fundamental character of the retail stores. Liggett, 177 So. 2d at 723.
The same reasoning applies to the modern-day Target Delray. Despite the meals and beverages it may offer at its Starbucks Café, Target
Delray is, and remains, a retail store, not a restaurant. And while Liggett was a tax-related case, its reasoning provides useful guidance in this case as well.
Target also argues that what it sells at its Delray store is customarily sold in restaurants. However, the statutory phrase "customarily sold in a restaurant," denotes a widespread and established practice among many restaurants.
In 1933, Black's Law Dictionary defined "customary" as "[a]ccording to custom or usage; … ordinary; usual; common." Black's Law Dictionary (3d Ed. 1933). It defined "usual" as "[h]abitual; ordinary; customary;
according to usage or custom; commonly established, observed, or practiced."
Id. at 1789.
Based on these older definitions, the word "customarily" refers to a commonly established practice. Target cannot credibly argue that the broad and comprehensive list of items it sells is usually or commonly sold in a "restaurant," and the evidence it presented at hearing did not prove this.
Finally, a court should not interpret a statute in a manner resulting in unreasonable, harsh, or absurd consequences. Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1270 (Fla. 2008); Edwards v. State, 268 So. 3d 849, 853 (Fla. 2d DCA 2019). Unfortunately, this is what Target Delray is asking the undersigned to do.
In sum, Target failed to prove by a preponderance of the evidence that the many different retail consumer items sold at Target Delray are customarily sold in a restaurant.
Alleged Reliance on the Restaurant Rule
Target has argued throughout these proceedings that the Division improperly considered or relied on the Restaurant Rule. It argues that this rule was found to be invalid in another case recently decided at DOAH. Therefore, it argues, it should not have been considered or used by the Division in this case.
Several points are worth noting. First, the Division's official Denial Notice was not based on the limited reason(s) for which the Restaurant Rule was held to be invalid in DOAH Case No. 18-5116RX.6
Furthermore, and perhaps most importantly, the Division's Denial Notice does not rely on, state, or mention the Restaurant Rule as a basis for its denial.
Rather, the Denial Notice relied on the statute--section 565.045--for the Division's authority to deny Target's Application for selling unauthorized merchandise. This is consistent with section 120.60(3), which required the Division to state with particularity the grounds or basis for the denial of the Application.
Because of the beverage license sought and the regulated industry involved, the Division was entitled to exercise its discretion broadly and, in a sense, "beyond the express standards and guidelines articulated by the legislature." Trust Care Health Servs. v. Ag. for Health Care Admin., 50 So. 3d 13, 18 (Fla. 3d DCA 2010). It was reasonable to conclude that Target Delray was not presently fit to possess a consumption-on-premises license based on the wide variety of consumer items it sold.
Reliance by the Division on an Unadopted Rule
In order to challenge an agency action proposing to determine the substantial interests of a party based on an unadopted rule, the petitioner must allege the unadopted rule in the petition.
More specifically, the petition challenging the rule must include the text of the statement or a description of the statement and must state facts sufficient to show that the statement constitutes an unadopted rule.
§ 120.56(4)(a), Fla. Stat.
Target's Amended Petition did not include the text of the statement or a description of the statement. As a result, it did not properly allege the
6 That case is pending on appeal.
existence of the challenged unadopted rule in order to challenge the Division's intent to deny its Application on such basis.
Because Target did not comply with the straightforward pleading requirements of the APA, its challenge to purportedly unadopted rules is not a proper basis to overturn the decision by the Division.
More fundamentally, even if Target properly alleged the existence of an unadopted rule, the evidence does not demonstrate the Division relied upon an unadopted rule to deny Target's Application. Rather, the statutory sections relied upon to deny the license outlined in the official Denial Notice did not include the rule cited by Target.
Accordingly, Target has not proven by a preponderance of the evidence that the Division's Denial Notice is based upon an unadopted rule.
Target's Intentions Regarding the License
The evidence presented at the hearing demonstrated that Target Delray intends to sell alcoholic beverages in sealed containers for consumption off the licensed premises. Further, the greater weight of the evidence showed that Target did not intend to permit consumption of alcoholic beverages on the premises if its 4COP license application was approved.
Under the Beverage Laws, vendors who are permitted to sell any alcoholic beverages, regardless of alcoholic content, generally must have one of two types of licenses. § 565.02(1), Fla. Stat. First, a "package store" license is for a vendor "operating a place of business where beverages are sold only in sealed containers for consumption off the premises where sold." Id. Package store vendors must be devoted exclusively to the sale of alcoholic beverages and "shall have no openings permitting direct access to any other building or room, except to a private office or storage room of the place of business from which patrons are excluded." § 565.04(1), Fla. Stat. (2018). This physical barrier requirement, commonly known as the "Liquor Wall," must separate the package store from other parts of the same building.
Target did not prove that it intended to configure or set up the Target Delray in this manner, nor was it seeking this type of liquor license.
The second type of license, a "consumption-on-premises" license, is intended for "[a] vendor operating a place of business where consumption on the premises is permitted." A consumption-on-premises license allows for the sale of alcoholic beverages "by the drink or in sealed containers for consumption on or off the premises where sold." § 565.045(1), Fla. Stat. To understand this section, section 565.045 should be read in pari materia with section 565.02(1)(b)-(f), Florida Statutes.
Target argues that the language in section 565.045(1), which permits a consumption-on-premises vendor to "sell alcoholic beverages by the drink or in sealed containers for consumption on or off the premises where sold," gives Target the choice on whether to permit on-premises consumption.
Target's interpretation does not square up with the interplay between the two statutes cited above. Section 565.045(1) cross-references and is explained more fully by section 565.02(1)(b)-(f). That section further helps to define the parameters of section 565.04--that is, it applies to places of business where consumption on the premises is "permitted." Here, Target made it clear that they do not intend to use this business model if granted the 4COP license, or permit consumption on the premises.
A vendor, by virtue of its consumption-on-premises application, at least signifies to the Division that it will operate a place of business "where consumption on the premises is permitted." § 565.02 (1)(b)-(f), Fla. Stat. This proposition is fairly straightforward: a consumption-on-premises license must permit consumption on the premises.
Conversely, if a vendor intends to prohibit consumption on its premises, it is operating more in the nature of a package store. Under those circumstances it is reasonable to require the vendor to obtain a package store license and adhere to the Liquor Wall requirement, among other restrictions in the package store statute. See § 565.04, Fla. Stat. (a package store is "a
place of business where beverages are sold only in sealed containers for consumption off the premises where sold"); Fla. Admin. Code R. 61A-1.006(3) ("The term 'package store' shall mean a licensed place of business where alcoholic beverages are sold in the original sealed containers as received from the distributor for consumption off the premises only.").7
Simply put, based on the evidence, this is what Target Delray intended to do--operate a package store as contemplated by section 565.04. Yet, it insisted on operating as such by applying for the wrong type of license.
Target's interpretation that a consumption-on-premises vendor may disallow consumption on the premises is also inconsistent with other provisions in the Beverage Laws. For example, the Beverage Laws provide that a consumption-on-premises vendor "shall provide seats for the use of their customers." § 565.045(1), Fla. Stat. This seat requirement would be senseless if a consumption-on-premises vendor could prevent its customers from using those seats to consume the beverages. In addition, the Beverage Laws require consumption-on-premises vendors to comply with the public health requirements in chapter 381, Florida Statutes. § 565.045(3), Fla. Stat. No reciprocal requirement is placed on package stores. § 565.04, Fla. Stat.
The Beverage Laws similarly require applicants for consumption-on- premises licenses to provide a certificate from the appropriate state agency or county health department "that the place of business wherein the business is to be conducted meets all of the sanitary requirements of the state."
§ 561.17(2), Fla. Stat. These public health and sanitation requirements would be unnecessary to place on consumption-on-premises vendors if the Beverage Laws did not intend for public consumption of beverages on the premises.
7 Target's position suggests that, by paying a higher license fee for a consumption-on- premises license instead of a package store license, the vendor can then disallow consumption on its premises and operate solely as a package store. Id. This interpretation would allow Target Delray to circumvent the Liquor Wall restriction in section 565.04 applicable to package stores, merely by paying a higher fee. Target's position ignores the plain statutory language in section 565.02(1)(a)-(f) differentiating package stores from consumption-on-premises vendors.
Thus, a more reasonable interpretation of the statutory options in section 565.045 to "sell alcoholic beverages by the drink or in sealed containers for consumption on or off the premises" is that the first option-- between selling beverages "by the drink or in sealed containers"--is the vendor's choice, but the second option--between "consumption on or off the premises" of a sealed container--is the customer's choice. (Emphasis added.) In other words, a customer may purchase and consume a sealed beverage on the premises or remove it from the premises for consumption elsewhere, but the customer may not remove an open drink from the premises if that is how the vendor chooses to sell beverages.
If a vendor, under its business model, intends to refuse to permit consumption on the premises, it would be operating a package store "where beverages are sold only in sealed containers for consumption off the premises." § 565.02(1), Fla. Stat.; Fla. Admin. Code R. 61A-1.006(3). Such vendor would not be entitled to a consumption-on-premises license.
Target's admission that it intends to operate exclusively as a place of business where alcoholic beverages are sold only in sealed containers for consumption off the premises--a package store--prevents licensure at Target Delray under a consumption-on-premises license.
Based on its stated intentions and the evidence related to it, the Division had the discretion and authority to deny Target's Application for a consumption-on-premises license.
Target’s Comparison to Other Businesses
As noted above, agencies have broad authority to issue licenses, especially when the operation of that license is deemed a privilege rather than a right, as in the case of a liquor license. Martin Cty. Liquors, 574 So. 2d at 175. "Discretionary authority is necessary for agencies involved in the issuance of licenses and the determination of fitness of applicants for licenses." Astral Liquors, Inc. v. Dep't of Bus. Reg., 463 So. 2d 1130, 1132 (Fla. 1985).
Nevertheless, the APA restricts an agency's exercise of discretion when the agency's action is inconsistent with prior agency practice and the deviation from the practice is not explained by the agency. § 120.68(7)(e), Fla. Stat. (formerly § 120.68(12), Fla. Stat.); Ch. 96-159, § 35, Laws of Fla.
Without a reasonable explanation, different results by an agency in the face of similar facts may violate the APA, or provisions of the equal protection guarantees of the Florida and United States Constitutions. Gessler
v. Dep't of Bus. & Prof'l Reg., 627 So. 2d 501, 504 (Fla. 4th DCA 1993), superseded on other grounds, Caserta v. Dep't of Bus. & Prof'l Reg., 686 So. 2d 651 (Fla. 5th DCA 1996); St. Johns N. Util. Corp. v. Fla. Pub. Serv.
Comm'n, 549 So. 2d 1066, 1069 (Fla. 1st DCA 1989); Amos v. Dep't of Health & Rehab. Servs., Dist. IV, 444 So. 2d 43, 47 (Fla. 1st DCA 1983).
"[S]ince all agency action tends under the APA to become either a rule or an order," an agency must follow its own precedents and apply them consistently to the facts. Gessler, 627 So. 2d at 503-04 (quoting McDonald v. Dep't of Banking and Fin., 346 So. 2d 569, 582 (Fla. 1st DCA 1977)); Amos, 444 So. 2d at 47; Univ. Cmty. Hosp. v. Dep't of Health & Rehab. Servs., 472 So. 2d 756, 758 (Fla. 2d DCA 1985). Moreover, it can constitute an abuse of discretion for an agency to disregard its precedent. Nordheim v. Dep't of Envtl. Prot., 719 So. 2d 1212, 1214 (Fla. 3d DCA 1998). This is a legitimate area of concern by Target.
As outlined below, however, Target did not show that the Division failed to follow its own precedents when it considered Target's application and denied the license for Target Delray. Cf. Bethesda Healthcare Sys., Inc. v. Ag. for Health Care Admin., 945 So. 2d 574, 576-78 (Fla. 4th DCA 2006) (which also concluded that the petitioner had not shown the agency "failed to follow its own precedents in considering its application.").
Target has complained of the Division's alleged past practice over decades of granting 4COP licenses to "thousands" of identical or similar applicants. Am. Pet. at pp. 3 and 4; Pet. Am. Pre-Hrg. St. at pp. 3 and 5.
Target further contends that the Division is discriminating against Target Delray in comparison to these other licensed locations. Am. Pet. at p. 4; Pet. Am. Pre-Hrg. St. at p. 10.
The following discussion explains the differences between Target's Application and the Non-Party Locations and provides a reasonable basis to conclude that the Division's denial of the Application complied with
section 120.68(7)(e)3.
Initially, there was no persuasive evidence that "thousands" of similar establishments have received 4COP licenses from the Division. Rather, the evidence presented at the hearing addressed a dozen establishments (the "Non-Party Locations") to which Target Delray felt it was treated differently. Resp. Ex. 5 at Int. No. 8.
Despite claiming similarity to these various businesses, Target's representative did not prove that the comparators they selected operate and conduct their businesses in the same manner as Target Delray, in several important respects--whether the Non-Party Locations sell alcoholic beverages exclusively in sealed containers for off-premises consumption; whether they sell alcoholic beverages in the same place where they sell items at retail; and whether they sell the vast array of consumer items as Target Delray. This point is addressed more fully below.
The evidence, as it developed, proved that there were fundamental and relevant differences between Target Delray and the Non-Party Locations. These differences justified the action by the Division in denying the 4COP license to Target Delray.
Consumption On Premises
The first clear difference was the fact that many of the Non-Party Locations permit the consumption of alcoholic beverages on their premises, serving drinks from a bar, restaurant, or café. In other words, these locations have a consumption-on-premises license to do what the license intended--to permit the consumption of alcohol on the licensed premises.
This fact alone differentiates Target Delray from the Biltmore Hotel, Buster's Beer and Bait, CMX Cinemas, the Daytona International Speedway, Neiman Marcus, Nordstrom, PGA National Resort, Sophie's at Saks Fifth Avenue, and World Golf Village.
None of these locations sell alcoholic beverages in sealed containers exclusively for consumption off the premises, as Target Delray acknowledged at the hearing it intended to do.
Point of Sale Within the Business
Another important difference is the fact that nearly all of the Non- Party Locations sell alcoholic beverages at a distinctly separate and different place from where they sell their retail merchandise.
Target argues this difference does not matter, because the Non-Party Locations are still selling retail items within their licensed premises. However, the evidence from Target was not clear, distinct, or compelling regarding whether the sale of alcohol was within the licenses premise of the Non-Party business or in a separate licensed area.
Moreover, the sales restriction in section 565.045(2)(a) applies to the "place of business" where alcoholic beverages are sold. § 565.045(2)(a), Fla. Stat. Section 565.045 does not use the more limited term "licensed premises." Id.
The Division has defined "place of business" for purposes of
section 565.045. See Fla. Admin. Code R. 61A-1.006(1)(formerly Fla. Admin. Code R. 7A-1.06). The Division's definition states,
As used in Section 565.045, F.S., the term "place of business" shall include all interior rooms, or areas which are directly connected by interior openings or doorways from the space where alcoholic beverages are sold, delivered, consumed, or stored. It shall not include common areas used by patrons to enter buildings or malls with more than two places of business. Common areas shall not be considered rooms or areas of the licensed place of business if they are not leased to any tenant occupying the
Id.
building and are not used as part of any occupant's business.
For many of the Non-Party Locations, the evidence did not prove that the retail sales occur in rooms or areas which are "directly connected by interior openings or doorways" from the places where alcoholic beverages are sold, delivered, consumed, or stored. Harris took no pictures of alcoholic beverages for sale in the vicinity of the retail items. His testimony alone is unpersuasive to draw conclusions regarding the connectivity of these areas.
Target Delray, on the other hand, would be selling alcoholic beverages from the same room or open space and the same point of sale or cash register from which it sells the retail items and vast inventory within its store.
This factual difference concerning the place of the sale of alcohol in the store is significant and is another fact that distinguishes Target Delray from the Biltmore Hotel, CMX Cinemas, the Daytona International Speedway, Neiman Marcus, Nordstrom, PGA National Resort, Sophie's at Saks Fifth Avenue, and World Golf Village.
Target's position is also contrary to comments from the Florida Supreme Court regarding the manner in which many hotels operate retail shops and services within their hotel lobbies.
As the Court explained in 1953,
The words 'place of business' have a definite meaning. If a building has many stores in it which are under the same roof, it means the store or a room where the business is conducted but does not include every store or room in the same building or under the same roof unconnected with the business where the liquor business is conducted.
* * *
Practically every large hotel in the State of Florida is all under one roof. The stores of the building on
the ground floor are valuable stores and they are generally rented to various concerns for different types of business. Although one of the stores may be rented to a licensed liquor dealer and a liquor business may be conducted in such store, this would not give the right to the Beverage inspectors to search every other store under the same roof or in the same building which may have been rented or leased for other purposes. We find these store rooms on the ground floor rented for such businesses as florist shops, barber shops, display rooms and various types of business.
Boynton v. State, 64 So. 2d 536, 547-48 (Fla. 1953).
As recognized by the court in Boynton, hotels or business complexes with gift shops, golf shops, tennis shops, or spas--such as PGA National, World Golf Village, the Daytona International Speedway, and the Biltmore Resort--have multiple places of retail sales disconnected and separate from the bars, restaurants, and cafés where alcoholic beverages are sold.
Here, however, Target's sale of alcoholic beverages would be connected and blended with the sale of its regular store items. In short, and as a matter of fact, Target Delray--a retail and grocery store--is fundamentally different from a hotel or business complex with separate gift shops, spas, golf courses, restaurants, and bars.
Target Delray is also fundamentally different from a major sports venue like the Daytona International Speedway or a movie theater like CMX Cinemas, where the beverages are sold in rooms or areas completely disconnected from any retail or ticket sales, and separate from the speedway track or actual movie theater.
Even if the "place of business" restriction in section 565.045 covers the entire "licensed premises," there was no competent evidence offered at the hearing to determine the extent of the "licensed premises" for the Non- Party Locations.
Furthermore, Harris's testimony alone was unpersuasive to draw any legal conclusions that the retail areas of the Non-Party Locations are "so closely connected [to rooms where alcoholic beverages are stored or sold] … as to admit of free passage from drink parlor" to such retail areas. § 561.01(11), Fla. Stat.
For example, some of the golf and tennis shops Harris visited are in different buildings than where alcoholic beverages were being sold.
At the CMX Movie Theater, the bar area which sells alcoholic drinks is separated by a common lobby from the ticket counter and walled movie theaters. Pet. Ex. 76.
The Saks Fifth Avenue department store and its adjacent restaurant, which Harris testified are part of the same licensed premises, may be leased by different entities and therefore may not be under the same licensee's dominion or control. § 561.01(11), Fla. Stat. In addition, the sketch submitted as part of the application only showed the restaurant. Pet. Ex. 114. Harris's assumption that the Saks Fifth Avenue department store--which does not appear on the application sketch--is within the same licensed premises as the restaurant operated by Fifth Dining Sarasota, LLC, is not persuasive.
Similarly, the Neiman Marcus and Nordstrom applications included sketches of just the restaurant or café areas, as well as sketches of the larger department stores, showing where the restaurant or café area is located. Pet. Exs. 109-111. Harris's assumption that the licensed premises was intended by these applicants to include the larger department store is not supported by the evidence.
Despite taking hundreds of pictures during his visits to these Non- Party Locations, Harris took no pictures of alcoholic beverages and almost no pictures of the distance between where he said alcoholic beverages are sold and where retail items are sold. Thus, the only evidence of a close connection between these rooms or areas is Harris's vague and unpersuasive opinion. Harris did not look at the restaurant adjacent to the Neiman Marcus
department store, so his opinion of a close connection is not supported by the evidence.
Harris did not speak with anyone at the Non-Party Locations to determine what each location considered to be its licensed premises.
Without any credible testimony from the Non-Party Locations themselves, this tribunal cannot draw legal conclusions regarding the extent of their "licensed premises" based on the testimony of Harris alone.
There is also no legal support for Harris's opinion that since these areas share the same mailing address they are automatically within the "licensed premises."
To recap, Target has not demonstrated that the Non-Party Locations sell numerous retail items within the same "licensed premises" where alcoholic beverages are sold. Target Delray, on the other hand, proposes to make sales of alcoholic beverages under a 4COP license from the same location or "place of business" where it sells consumer retail items, thereby distinguishing it from the Non-Party Locations.
Merchandise Sold
Even for the very few Non-Party Locations which appear to sell alcoholic beverages in the same general area as other store items, the items they offer for sale are nowhere similar in scope or variety, or as large and extensive as the inventory of goods offered by Target Delray.
For example, Buster's Bait and Beer sells a limited inventory of fish bait, miscellaneous fishing gear, and cigars. Pet. Ex. 71. CMX Cinemas sells movie tickets. Id. ABC Liquors and Total Wine in Gainesville sell cigars and a few items related to smoking or drinking. Id.
Accepting the testimony of Harris on this point, these locations do not offer the vast inventory of retail items offered by Target Delray.
Therefore, it cannot be concluded that these Non-Party Locations sell "a substantial, yet indeterminate, amount of items" that may violate
section 565.045 as the Division concluded for Target Delray.
Moreover, Target Delray does not sell the few additional items these Non-Party Locations sell--i.e., cigars and movie tickets.
Thus, in terms of merchandise offered, Target Delray is not similar or comparable to these businesses that were issued a consumption-on-premises license.8
A closer comparator to Target is a general store in Babcock Ranch, Florida, called Slater's Goods and Provisions, which sells household products, health and beauty products, and tools, at the same place where it sells alcoholic beverages. Pet. Exs. 71, 83, and 89.
There is no evidence, however, regarding what Slater's Goods and Provisions sold at the time it applied and received a consumption-on- premises license. The application in evidence does not include a sketch. Pet. Ex. 117.
Nevertheless, even if the Division erroneously issued a consumption- on-premises license to Slater's Goods and Provisions, it does not necessarily serve as a binding precedent entitling Target Delray to the same license. See generally Prevor v. Dep't of Health, Bd. of Psychology, 201 So. 3d 97, 98–9 (Fla. 3d DCA 2015).
Furthermore, the issuance of one 4COP license to a small general store out of many 4COP licenses issued around the state does not establish "prior agency practice" overruling the Division's exercise of its reasonable discretion. § 120.68(7)(e), Fla. Stat.
For the reasons set forth above, the Division has sufficiently explained its decision to deny Target's Application, despite granting applications for the hotels, movie theater, resorts, large sports venue, department stores, and other retail locations identified by Target.
8 The licensure of ABC Liquors and Total Wine also does not adhere to Target's theory of similarity between Target Delray and such locations–that each of the comparable Non-Party Locations sells food for consumption on the premises. Pet. Am. Pre-Hrg. St. at p. 4. There is no evidence that ABC Liquors and Total Wine sell food for consumption on its premises.
As better points of comparison, the locations most similar to Target Delray are the Costco store in Lantana, Florida, and the Walmart store in Mount Dora, Florida, which applied for consumption-on-premises licenses in 2018 and 2019, respectively. Pet. Exs. 30 and 31. Target even compares itself to these Costco and Walmart locations as similar "big box stores." Pet. Am. Pre-Hrg. St. at p. 4.
If anything, the Division's recent denials of the 4COP license applications from Costco and Walmart support the reasonable inference and finding that the Division has a practice of denying applications under section 565.045 to retail stores most similar to Target Delray. See
§ 120.68(7)(e), Fla. Stat.
Target even admitted into evidence the Division's inspection report of the Walmart store and its subsequent notice of denying the Walmart application, which demonstrate the Division's similar and consistent treatment of Walmart on the same legal and factual issues relevant to Target's Application. Pet. Exs. 40 and 44.
Accordingly, the Division's denial of the Walmart and Costco applications tend to prove that the Division is acting consistent with prior agency practice in denying Target's Application in this case.
The Division has not Arbitrarily Discriminated Against Target
Lastly, Target contends that the Division's denial of Target's Application is discriminatory and inconsistent with "almost 100 years" of enforcement policy regarding section 565.045. Pet. Am. Pre-Hrg. St. at p. 5; Am. Pet. at pp. 3 and 4. Its argument invokes the principle of "selective enforcement."
First and foremost, this case does not involve an enforcement action but involves a licensure decision. As previously note, the Division has particularly broad discretion in the context of a licensure decision.
Second, to establish a defense of selective enforcement, there must be more than a mere failure to prosecute all offenders; the selective enforcement
must be deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification. Polk Cty. v. Mitchell, 931 So. 2d 922, 926 n.4 (Fla. 2d DCA 2006); see also Bell v. State, 369 So. 2d 932 (Fla. 1979)("In order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification …. The mere failure to prosecute all offenders is no ground for a claim of denial of equal protection."); State v. A.R.S., 684 So. 2d 1383, 1384 (Fla. 1st DCA 1996)("In making a claim of selective prosecution, a defendant bears a heavy burden … [of establishing] that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights."); Durruthy v.
Pastor, 351 F.3d 1080, 1091 (11th Cir. 2003)("[M]ere selective enforcement of a law is not unconstitutional.").
Target presented no evidence that the denial of its Application was motivated by an unjustifiable or arbitrary classification, invidious purpose, or bad faith.
Rather, the evidence established that the denial of Target's Application was based on a rational application of the Beverage Laws.
Furthermore, the Division's Chief of Licensing, who signed the Denial Notice, testified that no one instructed him to treat the Target Delray Application any differently than other applications for the same license type, and he never instructed his staff to treat this Application differently.
The comparators for purposes of establishing selective enforcement must be identical to Target "in all relevant respects." Thorne v. Chairperson Fla. Parole Comm'n, 427 F. App'x 765, 771 (11th Cir. 2011). As discussed above, Target Delray is fundamentally different than the Non-Party Locations that have been issued consumption-on-premises licenses.
More directly, even if there were other business establishments issued a 4COP license whose sales are currently running afoul of the law or
license, this may constitute grounds for an enforcement action. However, that fact, or the fact that the Division can be accused of not adequately enforcing the law, does not convert Target Delray's operation into the type that warrants the issuance of a 4COP license.
The undersigned concludes under these facts and this record, the Division properly and reasonably denied a 4COP license to Target Delray.
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 denying the application by Target Corporation at issue in this proceeding. Jurisdiction is and shall be retained for the limited purpose of determining entitlement to attorney's fees and costs related to several discovery disputes and the amount, upon proper application and proof.
DONE AND ENTERED this 27th day of August, 2020, in Tallahassee, Leon County, Florida.
S
ROBERT L. KILBRIDE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings this 27th day of August, 2020.
COPIES FURNISHED:
D. Ty Jackson, Esquire George T. Levesque, Esquire
Ashley Hoffman Lukis, Esquire Jason L. Unger, Esquire GrayRobinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32301 (eServed)
Ross Marshman, Esquire Megan Kachur, Esquire
John J. Knowles, Deputy Chief Attorney Department of Business and Professional Regulation
2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed)
Halsey Beshears, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399-2202 (eServed)
General Counsel
Office of the General Counsel Department of Business and Professional Regulation
2601 Blair Stone Road Tallahassee, Florida 32399-2202
Sterling Whisenhunt, Director
Division of Alcoholic Beverages and Tobacco Department of Business and
Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399-2202 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 24, 2020 | Agency Final Order | |
| Aug. 27, 2020 | Recommended Order | The Division properly exercised its discretion under the Beverage Laws when it denied the application of Target Corporation for a consumption-on-premises (4COP) liquor license. |
