The Issue The issue is whether Respondent's alcoholic beverage license should be disciplined on the ground Respondent allegedly violated Section 561.20(2)(a)4., Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, David Carl Boston, operated a restaurant and lounge under the name of Mr. D's Restaurant and Lounge at 2262 Orchard Street, Jacksonville, Florida. Respondent has been issued special restaurant license number 26-0701, series 4COP SRX, by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent began operating his restaurant and lounge in February 1996, but ceased doing business in July 1997. Respondent's license authorizes him to sell alcoholic beverages on the premises, so long as the restaurant has at least 2,500 square feet of service area, it can seat at least 150 patrons at tables, and at least 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was aware of this requirement when he applied for a license. Indeed, item 10 on his application specifically noted these special requirements. Accordingly, Respondent knew, or should have known, that he would need adequate records to show that these requirements were being met. To enforce the above requirements, the Division performs periodic audits of all restaurants holding special licenses. As a part of that audit process, on February 3, 1997, special agent Myers contacted Respondent and requested that he "[p]roduce within 14 days all records including but not limited to all sales receipts, register tapes, invoices for food, alcoholic bev. & non-alcoholic bev., employee time records, all purchase and sales receipts, as required per Florida law." The records were to cover the twelve-month period from February 1996 through January 1997. Respondent acknowledged receiving the Notice to produce the records on February 3, 1997, by signing the Notice in agent Myers' office. Within a few days, Respondent produced a large plastic shopping bag full of records, which has been received in evidence as Petitioner's Exhibit 3. The bag includes receipts for alcoholic beverage purchases and other miscellaneous items, but virtually no receipts for food purchases. There are also so- called "summary sheets," which are handwritten summaries of receipts for food and alcoholic beverage sales for most of the months during the audit period, and cash register tapes which ostensibly support the entries on the summaries. The records are poorly organized and unsophisticated, and they are very difficult for a third person to analyze. Thus, they fail to comport with Division Rule 61A-3.0141(3)1., Florida Administrative Code, which requires that a licensee must "maintain separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases and gross retail sales of alcoholic beverages." Because of the lack of receipts for food purchases, the Division could not establish a percentage of food sales for the audit period. Receipts for food purchases are typically used by the Division as a measuring stick against purchases of alcoholic beverages to determine an allocation of revenues. Despite several subsequent conversations between agent Myers and Respondent in an effort to obtain further clarification and documentation, agent Myers could not establish the appropriate division of revenues between food and alcoholic beverages. On the evening of February 6, 1997, agent Myers visited Respondent's premises between 8:00 p.m. and 9:00 p.m. He found approximately five customers on the premises, all at the bar, and only one employee, who was acting as bartender. The kitchen was shut down, and no food was visible to the naked eye. Agent Myers did notice a bag of frozen chicken wings in a freezer, but no other food was on the shelves or in the refrigerator. He also counted the chairs on the premises and found only 111. On February 18, 1997, agent Myers returned to the premises and found only 107 chairs for patrons. On both visits by agent Myers, Respondent had less seating capacity for food customers than is required under his special license. In addition, contrary to a Division rule requirement, full-course meals were not available at those times even though the restaurant was serving alcoholic beverages. At hearing, Respondent initially contended that he was confused as to the requirements for his license. Given the plain language in item 10 of his application, however, which clearly identifies the restrictions, this explanation has not been accepted. At the same time, it is noted that Respondent offered to voluntarily surrender his license to the Division in July 1997, since he knew that he could not meet the special conditions imposed under the law. The Division refused, however, on the ground an Adminstrative Action was pending against his license. Respondent acknowledged that on both February 7 and 18, 1997, he had less chairs for food customers than is required. Therefore, this portion of the charges has been sustained. In mitigation, he attributed this to his birthday party on one of those evenings and a "talent show" to be held on another evening, although virtually no customers were on the premises on either date when the inspections took place. Respondent has a menu from which customers can order, and he says he also has a daily luncheon buffet. In explaining the lack of food purchase receipts, Respondent claimed that most of his food was purchased from Premier Meats in Jacksonville, Florida, a retailer that caters to small businesses, such as Respondent's. According to a representative of Premier Meats, Nathanial A. Griffin, that firm conducts a "cash and carry" business, with no accounts receivables, and thus it does not invoice its customers. Griffin recalled that Respondent regularly made weekly purchases of chicken wings, gizzards, and white filets, which totaled between $60.00 to $80.00 per week, on average. Assuming this to be true, this equates to approximately $250.00 to $300.00 per month in food purchases from that vendor. The undersigned has independently reviewed the summary sheets, which Respondent says were prepared on a contemporaneous basis from cash register tapes. They reflect that the following revenues were derived from food and alcoholic beverage sales during the months of February 1996 Food through December 1996: Alcohol February 119.70 86.00 March 1200.10 851.85 April 3678.10 731.20 May 3121.27 1170.00 June 3026.90 956.00 July 1401.50 770.04 August 1771.25 1540.70 September 1504.85 2789.32 October 372.25 742.25 November 2941.01 2217.50 December 1376.04 948.50 Total 20513.97 12803.36 If the testimony of witness Giffin is accepted, then Respondent's food purchases from Premier Meats during the eleven month period would be no more than $3000.00. Given the lack of any other food receipts, the large number of receipts for purchases of alcoholic beverages, and the description of the premises on the two occasions when agent Myers inspected the closed kitchen, it is found that the summaries are not credible, due to a lack of underlying documentation. Therefore, it is found that Respondent did not derive at least 51 percent of his gross revenue from sales of food and non-alcoholic beverages, as charged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent's special restaurant license no. 26-07010 for violating Section 561.20(2)(a)4., Florida Statutes, without prejudice to obtain any other type of license, but with prejudice to obtain another SRX special license for five years from the date of the Final Order. Respondent should also have a $1,000.00 administrative fine imposed. DONE AND ENTERED this 24th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David Carl Boston 2262 Orchard Street Jacksonville, Florida 32209 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Sahara Corporation of Pensacola, admitted that on October 31, 1975, at the Sahara Club in Pensacola, Florida, one employee of the Sahara Corporation, Cynthia Ann Langford, did sell two alcoholic beverages to Connie Craig, a minor, under the age of 18. For a defense, the Sahara Corporation, stated that said minor had advised Cynthia Langford and other employees that she was over the age of 18; that the owner of the Sahara Corporation, Joseph Spadara, was not present during the sale, and that he took every reasonable precaution to prevent sales to minors. The evidence shows that Connie Delores Craig was under the age of 18 on October 31, 1975; that she was served alcoholic beverages on the licensed premises of the Sahara Club and that she consumed alcoholic beverages on the licensed premises.
Recommendation Under the circumstances as shown by the evidence and testimony at this hearing, Beverage License No. 27-27,4-COP issued to the Sahara Corporation of Pensacola, should not be suspended or revoked, but that a penalty should be assessed as a deterent to future violations of Section 562.11, F.S. Said penalty should be in an amount not in excess of $250.00. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Leo A. Thomas, Esquire Seville Tower, 226 South Palafox Pensacola, Florida Charles Nuzum, Director Division of Beverage Department of Business Regulation The Johns Building Tallahassee, Florida 32304
Findings Of Fact Wedgewood is the holder of Division of Beverage license number 62-1626, 4-COP SRX, which authorized Wedgewood to sell alcoholic beverages for consumption on the premises at retail only. Wedgewood is advertised as a resort with private villas, hotel rooms, two restaurants and a disco with live entertainment. An ad published on page 81 of Cruise Magazine, Volume 3, No. 4, however, makes no reference to any of the facilities except the appearance of an entertainment group known as The Village People. On the other hand, an ad in the November 19, 1977, issue of Florida Alive gives equal emphasis to hotel facilities, restaurant facilities and disco facilities. Wedgewood has promulgated and distributed a flyer advertising daily happy hour with special prices for alcoholic beverages. That same flyer advertises the sale of sandwiches and emphasizes that dining facilities are available nightly. Wedgewood has produced two menus. One appears to be a lunch menu which contains a soup, fifteen different sandwiches, three salads, five hot entrees, french fries, six desserts and beverages without reference to alcoholic beverages. Wedgewood has also produced a dinner menu containing appetizers, soups, five seafood entrees, five beef entrees, and two fowl entrees, with soup, salad and an assortment of desserts. The only reference to alcoholic beverages contained in the menu suggests that one's favorite after dinner drink is available. Wedgewood has two restaurants with complete facilities for serving and preparing for the requisite number of full course meals. For the period, June 15, 1977, through January 30, 1978, Wedgewood shows gross revenues of $162,685.00, composed of $22,991.00 for food sales and $139,694.00 for alcoholic beverage sales. These figures indicate that Wedgewood has derived approximately 14 percent of its total revenue from food services. One of the criteria contained in Rule 7A-3.15, Florida Administrative Code, used in determining whether or not the holder of a restaurant license is a bona fide restaurant is: The restaurant must derive at least 51 percent of its gross revenue from the sale of food and non-alcoholic beverages. The 51 percent shall be determined by taking the average monthly gross revenue of the sale of food and non-alcoholic beverages over a period of any calendar year. DABT urges that the gross receipts evidence of the approximate seven month period should be used in making a determination that the licensee is not a bona fide restaurant. However, DABT is arguing against its own regulations. Unless the revenues are analyzed over a calendar year as provided in the Rule, the percentage of revenue from the sale of food and non-alcoholic beverages may not properly be used as a criterion. Accordingly, the evidence as to the revenues will not be considered in the determination of the instant case. Wedgewood has advertised and held out to the public to be a place where meals are prepared and served, as evidenced by its comprehensive menus. The evidence shows that space is provided with adequate kitchen and dining room equipment and that there are employed sufficient numbers and kinds of employees for preparing, cooking and serving meals for guests. While Wedgewood obviously engages in the sale of alcoholic beverages, there is insufficient evidence to establish that such sale is subordinate to the sale of food. Equal advertising space is given to both functions and accordingly, it is found, as a matter of fact, that the principal business of the restaurant is to cater to and serve full course bona fide meals to the general public and the primary operation of the restaurant is for the preparation and cooking and serving of meals and not for the sale of alcoholic beverages.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law. On or about October 20, 1992, Rebecca M. Abdelmuti, wife of Saber Abdelmuti, made application to DABT for the transfer of a 2-APS Alcoholic Beverage License owned by Grandma's Pantry of Florida, Inc. d/b/a Grandma's Pantry #6, to a new business, C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida, owned by Rebecca M. Abdelmuti. In response to Section II, (B) of the application, Rebecca Abdelmuti listed Saber Abdelmuti as having a direct interest in C & O Food Mart. In Saber Abdelmuti's Personal Questionnaire filed with Rebecca Abdelmuti's application, Saber Abdelmuti indicated that he was investing $25,000 ("same as spouse") in C & O Food Mart. In Rebecca Abdelmuti's Personal Questionnaire filed with her application, Rebecca Abdelmuti indicates that she is also investing $25,000 in C & O Food Mart, using money given to her as a gift by her mother. DABT issued a temporary 2-APS Alcoholic Beverage License, number 63- 00859, to Rebecca M. Abdelmuti, d/b/a C & O Food Mart. On October 14, 1992, Rebecca M. Abdelmuti made application to the City of Lakeland for utility service and issued a check to Lakeland Electric for a deposit in the amount of $2,000 drawn on the account of Saber or Rebecca M. Abdelmuti at the Peoples Bank of Lakeland. Subsequent to the deposit being paid to Lakeland Electric, C & O Food Mart's electric bills, from October 1992, through January 1994, were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 in the name of Rebecca M. Abdelmuti with Peoples Bank of Lakeland which account had been opened on October 27, 1992. Saber Abdelmuti was added as a signatory on account number 00361313 on November 2, 1992. Beginning in February 1994, the electric bills were paid by Saber Abdelmuti with checks drawn on a different account in the name of Saber Abdelmuti with the Peoples Bank of Lakeland. In October 1992, Rebecca M. Abdelmuti had GTE Telephone Company (GTE) install a telephone for C & O Food Mart. From October 1992 through March 1994, Rebecca M. Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. The bank records for account number 00361313 with the Peoples Bank of Lakeland (DABT's exhibit 5) show the last payment made by Rebecca M. Abdelmuti to GTE for C & O Food Mart was December 3, 1993. Beginning in April 1994, Saber Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. From October 1992, through January 1994, most of the bills for C & O Food Mart were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. However, numerous bills during this period were paid by Saber Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. The Polk County Occupational License for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993) was issued to Rebecca M. Abdelmuti for C & O Food Mart. The application for the Polk County Occupational License for the fiscal year 1993-1994 (October 1, 1993 through September 30, 1994) was signed by Saber Abdelmuti but issued to Rebecca M. Abdelmuti for C & O Food Mart. On February 21, 1994, an application for the transfer of that license from Rebecca M. Abdelmuti to Saber Abdelmuti was completed and the license was transferred to Saber Abdelmuti for the balance of the fiscal year 1993-1994. The Polk County Occupational License for the fiscal year 1994-1995 (October 1, 1994 through September 30, 1995) was issued to Saber Abdelmuti for C & O Food Mart. The City of Lakeland Occupational Licences numbers 5212 and 5213 for the fiscal year 1992-1993 (October 1, 1992 through September 1993) were issued to Saber Abdelmuti for C & O Food Mart. There was no evidence that an occupational license was issued by the City of Lakeland to Rebecca M. Abdelmuti for C & O Food Mart. On October 31, 1992, Saber Abdelmuti obtained membership in Sam's Club in the business name of C & O Food Mart. Saber Abdelmuti was listed as the primary member and responsible party. Rebecca Abdelmuti and Patel Rajnikan were listed as secondary members. At the time Rebecca M. Abdelmuti filed her application for an alcoholic beverage license her record indicated a previous Beverage Law violation which apparently DABT considered sufficient to disqualify her for licensure. Rebecca M. Abdelmuti apparently chose not to oppose DABT on its position and requested, by letter dated April 13, 1993, that her application for a 2-APS Alcoholic Beverage License be withdrawn. The request was approved on June 19, 1993. At all times pertinent to this proceeding, Saber Abdelmuti has held a valid 2-APS Alcoholic Beverage License. On April 12, 1993, Saber Abdelmuti made application for a 2-APS Alcoholic Beverage License in the name of Saber Abdelmuti d/b/a C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida. A temporary 2-APS Alcoholic Beverage License, number 63-02546 was issued on April 13, 1993, with an expiration date of July 11, 1993. The application was approved on May 13, 1993, and Saber Abdelmuti continues to hold a valid 2-APS Alcoholic Beverage License, number 63-02546. The following items were attached to the application in the licensure file, DABT's exhibit 1: (a) a document from Lakeland Electric & Water indicating that the bill for C & O Food Mart, account number 2000751-13-7, was to be billed to Saber Abdelmuti; (b) copies of the City of Lakeland Occupational License, Nos. 5212 and 5213 issued to Saber Abdelmuti for C & O Food Mart, 431 S. Central Avenue, Lakeland, Florida for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993); (c) a Bill of Sale Absolute wherein Rebecca M. Abdelmuti sold to Saber Abdelmuti "All the inventory and assets in the business named C&O Food Mart located at 431 S Central Ave. Lakeland, Florida 33801"; (d) an Amendment To Lease And Fuel Supply Agreement dated April 12, 1993, wherein Rebecca Abdelmuti was released from Lease and Fuel Supply Agreement (Lease) dated October 12, 1992, leaving "Saber Abdelmuti solely responsible for all of the duties and obligations of the Lease under the Lease" as of April 12, 1993 and; (e) a copy of an unsigned document dated April 8, 1993, wherein Saber Abdelmuti agreed to pay Rebecca Abdelmuti the sum of $35,000 with interest at the rate of 8 per cent annually from April 8, 1993. The Respondent, by signing the application, swore "under oath or affirmation under penalty of perjury . . . that the foregoing information" was "true to the best of" his "knowledge and that no other person or entity except as indicated" in the application had "an interest in the alcoholic beverage license and/or cigarette permit and that all of the . . . persons or entities" listed met "the qualifications necessary to hold an interest in the alcoholic beverage license and/or cigarette permit." The Respondent did not list any other person or entity as having an interest in the alcoholic beverage license being applied for. However, Saber Abdelmuti did list Rebecca Abdelmuti as having advanced him $35,000 for the operation of C & O Food Mart on his Personal Questionnaire filed with his application. As evidenced by the Bill of Sale Absolute, Rebecca Abdelmuti sold to Saber Abdelmuti whatever interest, direct or indirect, that she had in C & O Food Mart. Furthermore, the so called "promissory note" is not collateralized by any interest in C & O Food Mart and therefore, does not represent a security interest in C & O Food Mart. Likewise, there is no evidence of any mortgage (chattel or otherwise) on C & O Food Mart held by Rebecca Abdelmuti. Saber Abdelmuti applied for and was issued a Certificate of Registration in the name of C & O Food Mart by the Department of Revenue on April 20, 1993, authorizing the collection of sales and use taxes for the State of Florida. Sometime around March 31, 1993, Rebecca M. Abdelmuti filed a final Employer's Quarterly Federal Tax Return, Form 941, for the quarter ending on March 31, 1993, for C & O Food Mart with the Internal Revenue Service. By notice dated June 7, 1993, the Internal Revenue Service advised Rebecca M. Abdelmuti that the final Employer's Quarterly Federal Tax Return had been received. This filing is consistent with Rebecca M. Abdelmuti transferring the ownership of C & O Food Mart to Saber Abdelmuti. The transfer of ownership is also consistent with Schedule C, Form 1040, Profit or Loss From Business, the W- 2 Wage and Tax Statement 1993, and the W-3 Transmittal of Wage and Tax Statements 1993, Form 940 EZ, Employer's Annual Federal Unemployment (FUTA) Tax Return, and the final Employer's Quarterly Tax Report and Employer's Quarterly Wage Report to the State of Florida filed by Rebecca M. Abdelmuti during and at the end of the 1993 tax year. Saber Abdelmuti's tax records for the tax year ending December 31, 1993, concerning C & O Food Mart are also consistent with Saber Abdelmuti assuming ownership and control of C & O Food Mart from Rebecca M. Abdelmuti sometime around April 1, 1993. Upon assuming ownership and control of C & O Food Mart in April 1993, Saber Abdelmuti hired Rebecca Abdelmuti to manage C & O Food Mart. Saber Abdelmuti's tax records for the tax year 1993 and 1994 show Rebecca Abdelmuti as an employee of C & O Food Mart. On February 21, 1994, Special Agent West, of the DABT conducted an inspection of the premises of C & O Food Mart, located at 431 Central Avenue, Lakeland, Florida. The licensee of record is Saber Ismail Abdelmuti having been issued Alcoholic Beverage License number 63-02546. On February 21, 1994, during Agent West's inspection of the premises, Rebecca Abdelmuti identified herself as the owner of C & O Food Mart. Later on the same day, Agent West had a telephone conversation with Saber Abdelmuti wherein Saber Abdelmuti told Agent West that he knew Rebecca Abdelmuti did not qualify but he wanted her to have her own business as he did. There was no evidence that Saber Abdelmuti specifically told Agent West that Rebecca Abdelmuti had an interest in C & O Food Mart. However, based on his conversation with Rebecca Abdelmuti and Saber Abdelmuti and the fact that only Saber Abdelmuti's name appeared on the license and Saber Abdelmuti's application for license did not show Rebecca M. Abdelmuti as having an interest in C & O Food Mart Agent West decided to investigate further. After inspecting the records of C & O Food Mart, Agent West determined that Rebecca M. Abdelmuti had either a direct or indirect interest in C & O Food Mart and that Saber Abdelmuti had failed to divulge the interest of Rebecca M. Abdelmuti in his application for an alcoholic beverage license. Sometime around the first of March 1994, the C & O Food Mart accounts with GTE and Lakeland Electric were changed to reflect Saber Abdelmuti as being the person solely responsible for the payment of those accounts; the 1993-1994 Polk County Occupational License for C & O Food Mart was transferred to Saber Abdelmuti; and a new bank account was opened in the name of Saber Abdelmuti, d/b/a C & O Food Mart with the Peoples Bank of Lakeland, from which account all C & O Food Mart bills are being paid. It is clear from the record that Rebecca M. Abdelmuti was employed by Saber Abdelmuti as manager of C & O Food Mart after Saber Abdelmuti assumed ownership and control of C & O Food Mart. While Rebecca Abdelmuti receives a salary for managing C & O Food Mart, her salary is not percentage payment from the proceeds of C & O Food Mart and there is no evidence that Rebecca Abdelmuti has any right to a percentage payment from the proceeds of C & O Food Mart. It is equally clear that Rebecca M. Abdelmuti did not have any interest, as contemplated by the language of the Chapter 561, Florida Statutes, or the language of the application, particularly the language of the oath or affirmation in the application, in Respondent's alcoholic beverage license or the business of C & O Food Mart at the time Saber Abdelmuti filed his application for an alcoholic beverage license or any time subsequent to Saber Abdelmuti filing his application for an alcoholic beverage license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that a final order be entered dismissing the Administrative Action filed herein against Saber Abdelmuti. RECOMMENDED this day 28th of August, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1279 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); 9(19-20); 10-11(5); 12(7); 13(8); 14(20); 15(9); 16(6); 17(4-5); and 18(19). Respondent's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); and 9(14-17). COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tony C. Dobbs, Esquire 740 South Florida Avenue Post Office Box 2657 Lakeland, Florida 33806-2657
The Issue Whether Respondent committed the violations alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Dinosaur's Café and Sports Bar, located in Boynton Beach, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a Special Restaurant License (license number 60-11570 4COP SRX) authorizing it to sell alcoholic beverages on the premises of Dinosaur's Café and Sports Bar. On September 28, 1999, DABT Special Agent Jennifer DeGidio conducted an inspection of the premises of Dinosaur's Café and Sports Bar. Her inspection revealed that the premises had available seating for less than 150 patrons and that there were no records on the premises regarding the purchase and sale of food, alcoholic beverages, and non-alcoholic beverages. At no time had DABT given Respondent written approval to maintain these records at a designated off-premises location. During her September 28, 1999, inspection, Special Agent DeGidio issued and served on Respondent notices advising Respondent that its failure to have seating for at least 150 patrons and to maintain food and beverage records on the premises for a minimum of three years from the date of sale was in violation of the law and that, if these violations were not remedied within 14 days, administrative charges would be brought against Respondent. Special Agent DiGidio returned to the premises of Dinosaur's Café and Sports Bar on October 12, 1999, to find that the noticed violations had not been corrected. There were still fewer than 150 seats for patrons, and Respondent was again unable to produce the required records on the premises. The Administrative Action that is the subject of the instant controversy was issued on November 16, 1999. As of that date, Respondent had failed to timely remit to DABT $16.75 in surcharge monies that Respondent owed DABT for alcoholic beverages it had sold at retail for on-premises consumption at Dinosaur's Café and Sports Bar.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent committed the violations alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years"; fining Respondent $1,000.00; and requiring Respondent to pay the $16.75 in surcharge monies it owes DABT, plus applicable penalties and interest. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2001.
The Issue The issues for determination in this proceeding are: Whether Respondent sold alcoholic beverages on two occasions when the service of full course meals had been discontinued; Whether Respondent offered or allowed the operation of a football pool on the licensed premises; and If so, what disciplinary action is appropriate.
Findings Of Fact Arthur A. Peloso, doing business as Peloso's Spaghetti House, currently operates, and at all relevant periods was operating, under alcoholic beverage license number 59-129 SRX, Series 7-COP, a "special restaurant license." The premises are located at 1709 West Vine Street, Kissimmee, Florida. The premises consist of the main part of the restaurant, accessible by a door fronting the street; a lounge in the rear, accessible from the main restaurant and by a side door; and a kitchen, accessible to employees from both the lounge area and the main restaurant. The bar counter is located on the far end of the lounge, opposite the side entrance and adjacent to the kitchen. On September 22, 1986, at approximately 5:00 p.m., Beverage Agent Ronald P. Sullivan, visited the premises at the direction of his supervisor. The marquee in front read: "Restaurant Closed-Vacation. Lounge Open, 4-2." Sullivan entered through the side entrance and went back to the bar, where he was served a beer by the bartender, "Pat." Pat was serving drinks, mixing drinks and ringing up sales on the cash register. Sullivan asked what he could get to eat and Pat's response was, "popcorn." There was some conversation regarding the owner being on vacation and wanting to make some changes in the facility and that the kitchen was closed down. At the hearing, Sullivan identified Patrick Plunkett, also present, as the bartender. The same Beverage Agent returned to the licensed premises around 6:00 p.m. on September 25, 1986. Again, Pat was behind the bar and served him a beer. Again, Sullivan asked what he could get to eat and the response was, "popcorn." Pat also said he had a football pool that "Dale" who worked in a car lot helped him get going. Pat said it was Dale's idea and he pointed Dale out in the lounge. Pat pulled a sheet (Exhibit #3) from other sheets behind some whiskey bottles and showed Sullivan how to play. Sullivan filled it out and gave Pat $10.00. Sullivan returned on October 7, 1986. A woman identified as "Tina" was working behind the bar. Pat was not there. Sullivan asked Tina who won the football pool, and she replied that some guy at the car dealership won $350.00. Tina also told Sullivan that the restaurant had reopened after a three- week vacation, and a cook was on duty. On the occasions of his visits, Sullivan did not notice menus or meal set-ups on the tables in the lounge. He had to pass the tables to get to the bar, where he sat. He never tried to order food, as on the first two visits he had been told all they had was popcorn. On the third visit, he accepted the fact that the kitchen was open. He saw evidence of the football pool only on one occasion, the 25th of September; he did not see Arthur Peloso, or Peloso's son, the manager, on any occasion. In the three visits, Sullivan saw a total of six or seven people drinking in the lounge, but not eating. In his testimony, Patrick Plunkett admitted that he told Sullivan that only popcorn was available. The bartenders and waitresses are trained to cook and serve food and have been told to provide food to patrons when requested during business hours. Pat admitted that he did not serve food to Sullivan as the cook did not show up and he (Pat) was "too lazy to serve it." Pat also admitted that he assisted patrons in playing the football pool, but that he was doing it as a favor for a friend from the Pontiac dealership. This was a short-term arrangement and Pat did not receive a commission or any monetary gain from his participation. To Pat's knowledge, neither Peloso nor his son, the manager, were aware that food was not being served in the lounge during their vacation, nor were they aware that the football pool was being conducted. In his opinion, the Pelosos would have taken immediate corrective measures. This was confirmed by Arthur S. Peloso, Peloso's son, who serves as manager of the business. Their business is primarily food and they could not remain in business without the food. Their intent was that the lounge should serve as additional seating for the restaurant. He conceded that the restaurant was briefly closed, but insisted that the kitchen was never closed and the waitresses and bartender should have served food as they had been instructed. Captain Jack B. Wallace from the Division of Alcoholic Beverages and Tobacco described the policy of the agency with regard to investigations, enforcement and civil penalties for violations. The non-rule policy is to assess a $500.00 civil fine for a first-time offense. He said that the two counts relating to the sale of alcoholic beverages without food should be treated as a single violation. No testimony or other evidence of prior violations by Respondent was presented, and the two witnesses for Petitioner knew of none.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered by the agency, finding Respondent guilty of violation of Rule 7A-3.015, Florida Administrative Code, not guilty of violation of Section 561.29(1)(a), Florida Statutes, and assessing a civil penalty of $500.00. DONE and RECOMMENDED this 14th day of July, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0844 The following constitute my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #3. Adopted in substance in paragraphs #4 and #7. Rejected as unnecessary Adopted in substance in paragraphs #4 and #7. Adopted in paragraph #5. Adopted in part (as to availability of only popcorn) in paragraph #5; otherwise, rejected as unnecessary. Rejected as immaterial. Adopted in substance in paragraph #5. Adopted in paragraph #6. Adopted in paragraph #12. Respondent's Proposed Findings of Fact #1 and #2 The essential facts proposed here are adopted in my findings of fact #3, #9, #10 and #11, however, these facts alone are not dispositive of the issues in the proceeding. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Arthur A. Peloso 1960 Southeast 19th Street Pompano Beach, Florida 33062 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondents currently hold a Series 2APS license, number 45-00254, for Eastside Grocery, which is located at 132 South Highway 33, Groveland, Florida. The current term of the license expires on September 30, 1988. On February 26, 1988, Victoria Solozabal entered Eastside Grocery at about 4:25 p.m. Claude Cruce, a law enforcement investigator employed by Petitioner, entered the store directly behind her. Ms. Solozabal was acting under the direction of Mr. Cruce and another of Petitioner's investigators, Carl Lloyd, in assisting them in the detection of sales of alcoholic beverages to underaged persons. Ms. Solozabal was born on August 23, 1969. Upon entering the store, she carried with her only her driver's license and a small amount of cash for the purchase of a single can of beer. Ms. Solozabal went directly to an electric cooler in the back of the store, selected a chilled can of Budweiser beer, and took it to the checkout counter. With Mr. Cruce directly behind her and Mr. Lloyd only a few feet away watching, Ms. Solozabal placed the beer on the checkout counter and took out a $10 bill while Respondent Sandra Pettingill was ringing up the purchase. Ms. Pettingill demanded 75 cents, and Ms. Solozabal gave her the $10 bill. Ms. Pettingill placed the bill in the cash register and returned the change to Ms. Solozabal. At no time did Ms. Solozabal or any other employee of Eastside Grocery ask Ms. Solozabal her age or for proof of age. As Ms. Solozabal approached the door to leave the store, Mr. Cruce stopped her, demanded her identification, and seized the beer. He and Mr. Lloyd then informed Ms. Pettingill that she had sold an alcoholic beverage to an underaged person.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents guilty of selling an alcoholic beverage to a person under the age of 21 years and imposing a civil penalty in the amount of $250. DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1759 Treatment Accorded Petitioner's Proposed Finding of Facts Adopted. Adopted in substance. Adopted. Rejected as subordinate. 5-6. Adopted. Second 6. Rejected as irrelevant. Adopted. First sentence adopted. Remainder rejected as subordinate. Adopted. Rejected as subordinate. Treatment Accorded Respondents' Proposed Findings of Fact 1-3. Adopted, except any resemblance between Ms. Solozabal and a regular customer of legal age is rejected as irrelevant. 4-5. Rejected as irrelevant. Ms. Pettingill testified that her normal procedure was to check proof of age before ringing up a sale. She also testified that Mr. Cruce asked about the couch drops only after she had taken the $10 bill from Ms. Solozabal. Mr. Cruce's request for cough drops thus had nothing to do with the sale, which had already been made. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 George Kelley, Esquire 368 East Main Street Post Office Box 1132 Apopka, Florida 32703 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 Joseph Sole General Counsel Department of Business Regulation 725 South Bronough Street The Johns Building Tallahassee, Florida 32399-1007 =================================================================
The Issue Whether the Respondent committed the violations alleged in the Administrative Action dated April 28, 2008, as amended by the Division at the final hearing, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for regulating the sale of alcoholic beverages in the State of Florida, and for investigating and imposing discipline on persons holding licenses under Florida's Beverage Law. See §§ 561.02 and 561.29, Fla. Stat.(2007).1 The Pineapple Grille, which is located in Delray Beach, Florida, is a restaurant that serves food and alcoholic beverages. It holds a special restaurant license under Florida's Beverage Law, having been issued license number 60- 14514, Series 4COP. On or about February 25, 2008, Eric Scarborough, a special agent with the Division, visited the Pineapple Grille to investigate a complaint from an anonymous source alleging that employees of the Pineapple Grille had been refilling call-brand bottles in the bar with lower-grade liquor. Special Agent Scarborough's investigation revealed that the complaint received from the anonymous source was completely without foundation. During the visit on February 25, 2008, Special Agent Scarborough met with Renee Resemme, the manager and chef of the Pineapple Grille, and, as a matter of routine, served her with a notice requiring the Pineapple Grille to provide him with the previous six months' records of its sales and purchases of alcoholic and non-alcoholic beverages and food no later than March 3, 2008. Special Agent Scarborough requested these records as a matter of course because, under its license, the Pineapple Grille is required to have sales of food and non- alcoholic beverages comprise 51 percent of its gross revenue and because the Pineapple Grille must purchase alcohol from authorized distributors. Gurpal Singh and Ovide Paul are the owners of the Pineapple Grille. At the times material to this proceeding, Mr. Singh was the individual responsible for keeping the records of the business; Mr. Paul had been an owner of the business for only a short time before the notice was served and was not familiar with the manner in which the business's records were kept. At the time of Special Agent Scarborough's visit to the Pineapple Grille and for a significant period of time after the visit, Mr. Singh was in Seattle, Washington, on family business. When he received the notice served on Ms. Rosemme, Mr. Paul contacted the Pineapple Grille's certified public accountant, who had possession of the business records requested by Special Agent Scarborough. The certified public accountant told Mr. Paul that he was very busy, but he began gathering the records requested. The records had not been provided to Special Agent Scarborough by March 18, 2008, so he made a return visit to the Pineapple Grille on that date. Mr. Paul met with Special Agent Scarborough, and he told Special Agent Scarborough that he was not in charge of the documents but that the certified public accountant was getting them together. While the certified public accountant was trying to put the documents in order, the Division sent a letter requiring that records for the previous three years' sales of alcoholic and non-alcoholic beverages and food were to be produced. Upon receiving this letter, the certified public accountant wrote a letter to the Division requesting an extension of time to provide the records but there was no response to this request for an extension. The records were produced to the Division on August 6, 2008. During the five months in which Mr. Paul and the certified public accountant were working to get the records together, Mr. Paul made a number of telephone calls to Special Agent Scarborough's office to explain the delay in producing the records. Mr. Paul left his name and telephone number on the voice mail system whenever he telephoned, but he received no response from the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding that GN Hotels & Restaurant, Inc., d/b/a Pineapple Grille, violated Section 561.29(j), Florida Statutes, by failing to produce records of the purchase and sales of alcoholic and non-alcoholic beverages and food within 10 days of the request for such records and imposing an administrative fine in the amount of $500.00. DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2008.
