The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for regulation of establishments licensed for the sale of alcoholic beverages in the State of Florida. Robert DeCosey is the sole owner and operator of the Respondent. At all times material to this case, the Respondent held Special Restaurant License No. 63-05489, Series 4-COP/SRX. Pursuant to law, the Respondent must derive at least 51 percent of his gross sales from food and non-alcoholic beverages in order to maintain the license, and the Respondent is required to maintain sufficient records to document such sales. The Petitioner conducted an audit for the period of April 1, 2008, through July 31, 2008. Based upon information that the Respondent provided to the auditor, the auditor estimated that 41.2 percent of the Respondent's gross revenue came from the sales of food and non- alcoholic beverages. The sales information provided to the auditor by the Respondent lacked supporting documentation and was not reliable. The Respondent maintained no verifiable information regarding his gross sales during the audit period. The Respondent provided no credible information regarding inventory levels, and, accordingly, the auditor was unable to calculate the Respondent's expenses. Sales prices were not provided during the audit, and, therefore, the calculation of revenue was little more than speculative. At the hearing, the Respondent testified that the "business model" he utilized focused on "special events" and that he did not open the restaurant on a routine basis. He testified that food was available during the events and served buffet-style. There was no documentation to support the testimony, and it has been rejected. The Respondent testified that he rented the facility during non-business hours to patrons who wanted to bring in their own food and alcoholic beverages, some of whom may have left food or alcohol behind after the private event concluded. He also testified that he opened the facility for events during which no food was available. Although the Petitioner asserted subsequent to the hearing that such practices were violations of state beverage law, the violations were not alleged in the Administrative Complaint and are outside the scope of this proceeding.
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 revoking the special license held by Urban Hospitality Ventures, Inc., d/b/a DeCosey's Restaurant and Lounge. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 January, 2010. COPIES FURNISHED: Robert DeCosey Urban Hospitality Ventures, Inc., d/b/a DeCosey’s Restaurant and Lounge 2349 Lake Debra Drive, No. 617 Orlando, Florida 32835 Michael B. Golen, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John R. Powell, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1020
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I hereby make the following findings of fact: On February 27, 1984, the premises operated by Tony's Sea, Inc., were inspected by two inspectors of the Department of Agriculture and Consumer Services. On that date the inspectors observed, among other things, four boxes of frozen lobster tails which had been processed and packed by Tony's Sea, Inc. The four boxes of frozen lobster tails which came to the attention of the inspectors were sealed and labeled. The label on each box stated that the net weight of the contents was ten pounds. None of the labels contained the name of a dealer or responsible firm, nor did the name of a dealer or responsible firm appear elsewhere on the boxes. The inspectors removed the ice from the frozen lobster tails in each of the four subject boxes and weighed the lobster tails without ice. The net weight of the frozen lobster tails was approximately six pounds per box. The Administrative Complaint served on the Respondent contained the following opening paragraph: You are hereby notified that the Florida Department of Agriculture and Consumer Services intends to take disciplinary sanction authorized by Section 500.121, F.S., and seeks to impose an administrative fine of $1,000 for violation of certain laws of the state applicable to food processors and certain rules of the department.
Recommendation On the basis of all of the foregoing it is recommended that the Department of Agriculture and Consumer Services enter a Final Order ordering the Respondent, Tony's Sea, Inc., to pay an administrative fine in the amount of $1,000.00, such fine to be paid within 15 days of the issuance of the Final Order. DONE and ORDERED this 10th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Mr. Antonio Martinez-Malo President, Tony's Sea, Inc., 7716 N.W. 76 Avenue Medley, Florida 33166 Frank A. Graham, Jr., Esquire Resident Counsel Department of Agriculture and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301 Honorable Doyle A. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue The central issue in this case is whether the amended petition alleges facts sufficient to establish standing and a legal basis for a hearing pursuant to 120.57, Florida Statutes.
Findings Of Fact For the purposes of this recommended order the following substantive facts alleged by Petitioner are deemed to accurate: On May 22, 1970, the Department entered into a lease agreement with the City which, for the sum of one dollar per year, leased the right of way to the south approach to the Bakers Haulover Bridge located in Dade County, Florida. According to this lease, the property was to be used as a parking lot and remain open to all members of the motoring public. The property leased to the City was, and is, adjacent to Biscayne Bay. This bay has been designated an aquatic preserve as defined in Section 258.39(11), Florida Statutes. The Petitioner is a sport fisherman who for many years has utilized the public right of way leased to the City to gain access to fishing at Bakers Haulover Inlet. On or about July 11, 1987, the City erected a fence on the right of way which blocked Petitioner's access to the water at Haulover Cut. The fence was erected without a permit from the Department. On November 13, 1987, Petitioner and other members of the public, primarily fishermen, met with officials from the Department to complain about the fence and to attempt to reach a compromise. As a result, the City was to apply for an after the fact permit to erect the fence. Petitioner and the other protesting fishermen believed they would be given an opportunity to review and comment upon the permit application. No notice was provided to Petitioner nor any other member of the group regarding the permit application. On December 1, 1987, the Department approved the City's permit for the erection of the fence. Petitioner has not been given an opportunity to respond to the permit application submitted by the City.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order dismissing the amended petition filed by Dan Dawson. DONE and RECOMMENDED this 19th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. COPIES FURNISHED: Fred W. Van Vonno Suite 1750, Courthouse Tower 44 West Flagler Street Miami, Florida 33130-1808 Charles G. Gardner Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, Mail Station 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
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").
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.
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 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)
Findings Of Fact Having considered all testimony, evidence, and argument of counsel, the Hearing Officer finds the following: Petitioner is a corporation organized and existing under the laws of Florida with its sole place of business located at 6186 S.W. 8th Street, Miami, Florida. Petitioner operates a delicatessen and restaurant in the same building at the above location. Petitioner's restaurant prepares food to be served to paying customers who consume that food at tables provided in the restaurant for that purpose. This food is served by waiters and waitresses who prepare guest checks which separately indicate the amount of sales tax charged thereon. Petitioner's delicatessen sells unprepared food to customers who do not consume that food on the premises and for whom no eating facilities are provided. A common cash register serves the two facilities, which cash register has a separate key or the sale of delicatessen items, and a separate key for the sale of restaurant items. The restaurant and delicatessen occupy the same general space and are not separated by a wall or other physical barrier. Petitioner collects sales tax for those items sold in the restaurant portion of the business and does not collect sales tax on those items sold in the delicatessen portion of the building. Petitioner regularly maintains separate and distinct records sufficient for an allocation between restaurant sales and delicatessen sales. On March 12, 1979, Respondent issued a proposed sales and use tax delinquency assessment against Petitioner in the amount of $40,018.14. This assessment was based upon the total sales revenue generated by both of Petitioner's enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. On May 10, 1979, the Respondent issued a revised proposed sales tax delinquency assessment against Petitioner in the amount of $33,259.20. This revised assessment was based upon the total sales revenue generated by both of Petitioner's separate enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. This assessment by Respondent against Petitioner was based, at least in part, upon Rule 12A-1.11(1), Florida Administrative Code. Petitioner holds a restaurant license from the State of Florida, Division of Hotels and Restaurants. Petitioner also holds a retail sales license from Dade County for its delicatessen operation. Rule 12A-1.11, Florida Administrative Code, was adopted, pursuant to a public hearing.
The Issue Whether or not Respondent, Dixie Growers, Inc., is indebted to Petitioner, Leah Raulerson, for agriculture produce purchased and not paid for in the amount of $3,722.49.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. During times material, Petitioner, Leah Raulerson, was an agricultural producer within the meaning of Section 604.15(5), Florida Statutes and concentrated primarily in the production of peppers. During times material, Respondent, Dixie Growers, Inc., was an agricultural dealer within the meaning of Section 604.15(1), Florida Statutes, and wholesaler and purchased peppers from Petitioner during May and June, 1992. Respondent, U.S. Fidelity & Guaranty Company, issued a surety bond to Respondent Dixie during times material. During late May and June, 1992, Petitioner sold various types of pepper including hungarian wax, finger hots, long hots, bell pepper, fancy cubanelle and jalopeno to Respondent Dixie. During times material, Petitioner inquired of one of Respondent Dixie's owners, Charles Lawton, what the wholesale market was bringing for the type of peppers that she produced and desired to sell. Respondent Dixie advised that the average wholesale price was $8.00 per box. Petitioner told Respondent Dixie, that she could sell her peppers for that price but if the market deteriorated to the point where the price was $4.00 or less per box that she should be advised whereupon she would cease picking the peppers as her labor and other related costs would be below her breakeven point of $4.00 per box. Respondent Dixie, advised Petitioner that he (Charles Lawton) would let her know if the market declined. The agreement was struck and Petitioner was advised by Respondent Dixie to "bring the peppers on." Based on their agreement, Petitioner continued picking the peppers. Petitioner delivered to Respondent Dixie, a load of the various types of peppers that she produced and expected to be compensated at the rate of an average of $8.00 per box for her produce. Petitioner was not paid for the peppers at that time nor was she told that she should not bring any more peppers to Respondent's warehouse. Approximately two weeks from the date of delivery, Petitioner was paid an average of $1.03 per box by Respondent Dixie. Petitioner provided copies of the wholesale market reports for the types of peppers that she produced and sold to Respondent, Dixie, during May and June, 1992. The reports reflect an average wholesale price of $8.00 per box. Petitioner is owed by Respondent Dixie, the sum of $3,722.49 for nonpayment of produce (peppers) that she delivered to Respondent Dixie during May and June, 1992. Respondent Dixie, has countered that Petitioner's produce was bad and that the market had declined to the point whereupon they (Dixie Growers) were only able to obtain approximately $1.03 per box for the produce that Petitioner sold to Respondent Dixie. However, Respondent Dixie, failed to present any credible evidence which would establish that either Petitioner's produce was bad or that they were only able to obtain $1.03 as contended. No evidence was presented that the market declined or situation was anything different from the prices Petitioner was quoted and as reflected by the prices shown in the wholesale market reports. It is more probable than not that Respondent Dixie received the amounts reflected in the wholesale market reports for the produce that it purchased from Petitioner during May and June, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture, Bureau of License and Bond, issue a Final Order requiring that Respondent, Dixie Growers, Inc., pay to Petitioner the sum of $3,722.49 as claimed for agricultural produce purchased from Petitioner. In the event that Respondent Dixie fails to pay Petitioner, within 30 days of the date of the Department's Final Order, the sum of $3,722.49, that Respondent, U.S. Fidelity & Guaranty Company, as surety, remit to the Department that sum which should then be timely remitted to Petitioner. DONE AND ENTERED this 17th day of May, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 17th day of May, 1993. COPIES FURNISHED: Linda Terry Lawton P. O. Box 1686 Plant City, Florida 33564 U.S. Fidelity & Guaranty Company Legal Department P. O. Box 1138 Baltimore, Maryland 21203-0000 Richard Tritschler, Esquire Department of Agriculture The Capitol - PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Dixie Growers, Inc. P. O. Box 1686 Plant City, Florida 33564 Honorable Bob Crawford Commissioner of Agriculture The Capitol - PL 10 Tallahassee, Florida 32399 0350
Findings Of Fact At present Tony's Fish Market of Ft. Lauderdale, Inc. t/a Tony's Fish Market Restaurant is the holder of license no. 16-1320-SRX, series 4-COP held with the State of Florida, Division of Beverage. Prior to September 1, 1974, Armand Cerami owned 50 shares of stock in Tony's Fish Market, Inc., which represented a 50 percent interest in that corporation. In addition, Armand Cerami held 50 shares of stock in Tony's Fish Market of Ft. Lauderdale, Inc., representing a 50 percent interest in that corporation and was the holder of 50 shares of Tony's Sweet Enterprises, Inc., which represented a 50 percent interest in that corporation. During the time period of September 1, 1974, Armand Cerami had been charged with violation of the Internal Revenue Laws of the United States, under a federal indictment no. 74-407-CR-JE, in the United States District Court for the Southern District of Florida. This charge was placed against Cerami for Internal Revenue Law Violations which allegedly took place on tax returns on the tax year ,1968. In contemplation of a plea of guilty which Cerami intended to enter in the above cited case, he entered into a contract for purchase and sale of the corporate securities in the aforementioned corporations. Petitioner's Exhibit 2, admitted into evidence is a copy of the contract for purchase and sale of corporate securities, which was entered into between Armand Cerami and Pamela Ann Cerami, his wife, on September 1, 1974. The terms of the contract were that Pamela Ann Cerami would pay Armand Cerami $20,000 cash and would give to Armand Cerami a promissory note payable in the amount of $200,000, in ten equal installments of principal and interest at 6-1/2 percent payable on the anniversary date of the contract. On September 20, 1974, the Board of Directors of the three subject corporations accepted the resignation of Armand Cerami as the Secretary-Treasurer of those corporations, and elected Pamela Cerami as Secretary-Treasurer in Armand Cerami's stead. Those Board of Directors were Tony Sweet, Frank Sweet and Armand Cerami. Armand Cerami returned to federal court on October 18, 1974, and entered a plea of guilty to counts one and five of the aforementioned, indictment, for which he was sentenced to three year on each count to run concurrently, but was given a split sentence of 6 months time in confinement, thereafter to be placed on a probationary period for 2-1/2 years. A copy of the judgement and commitment is Petitioner's Exhibit number 1, admitted into evidence. They are felony offenses. Subsequent to his release from prison, Armand Cerami served as a co- manager and host of the licensed premises, Tony's Fish Market, located at 1900 N. Bay Causeway, North Bay Village, Florida, license no. 23-1624-SRX, series 4- COP and in the same capacity at Tony's Fish Market of Ft. Lauderdale, located at 1819 S.E. 17th Street, Ft. Lauderdale, Florida, license no. 16-1320-SRX, series 4-COP. He remained in this capacity until September 30, 1976, when a change in 562.13(3)(a), F.S. prohibited convicted felons from being managers of the licensed premises, licensed by the State of Florida, Division of Beverage. The change in the law took effect on October 1, 1976. At that point two separate individuals were hired as managers of the subject licensed premises. Armand Cerami remained in the position as host of those licensed premises, up to and including the date of the hearing. Although this title and this position was held by Armand Cerami, on December 16, 1976, while conducting a routine visit, beverage officer, William Valentine was told by Frank Sweet, a Director in the subject corporations, that Frank Sweet was in charge of the kitchen of the Tony's Fish Market of Ft. Lauderdale and that Armand Cerami was the real manager, ran the restaurant and was responsible for hiring and firing of employees. Pamela Ann Cerami was not shown to have any active interest in the management of the licensed premises. Pamela Ann Cerami as the Secretary-Treasurer in the three corporations which she purchased shares in, does not draw a salary from the operation of the two restaurants. Her background and financial involvement in the licensed premises, can be traced to certain trusts in her name and a certain gift from her husband, Armand Cerami. The joint composite exhibit number 1, admitted into evidence in the hearing, shows that Pamela Ann Cerami, at one time Pamela Crumly, was a beneficiary of the estates of Gail Crumly and Mildred Crumly, her grandparents. Certain distributions of money were made to Pamela Ann Cerami from those estates. On April 3, 1970, she received $6,093.94; on July 3, 1970, she received $121.88; on October 5, 1970, she received $182.82; and on December 31, 1970, she received $925.65,, which represented a partial distribution of her 1/2 interest in the Gail Crumly estate. As of April 1, 1970, she had been given $5,292.59 as a portion of the 1/3 distribution of her share in the estate of Mildred Crumly. The total value of her share in that estate being $16,157.02, and the conditions of her rights to the estate being set forth in the will of Mildred Crumly which is found in the joint composite exhibit number 1. Pamela Ann Cerami had worked as an airline stewardess prior to her marriage to Armand Cerami and had certain funds from her employment in that capacity. Other funds of the marriage include a certificate of deposit in the Bank of Nova Scotia in Nassau, Bahamas in the amount of $18,000., at 8-1/4 percent interest, as deposited May 20, 1970 with a maturity of November 20, 1970. This certificate of deposit was in the name of Armand D. Cerami and/or Pamela Crumly now Pamela Ann Cerami. The interest received on that certificate of deposit was redeposited along with the principal and a second certificate of deposit was purchased on May 23, 1974 in the amount of $23,480.74, to become mature on November 25, 1974. This certificate was withdrawn on October 18, 1974 and the receipt of 10-1/4 percent interest was paid. The amount of interest thereby being $975.89. Copies of the above mentioned certificates of deposit may be found as part of the joint composite exhibit number 1 admitted into evidence. Continuing an examination of the financial circumstances of Pamela Cerami and Armand Cerami, there is found a warranty deed from Willard H. Keland to Pamela Ann Cerami for certain real estate in Dade County, Florida, for which Pamela Ann Cerami paid Willard H. Keland the amount of $158,000. This deed is found as Petitioner's exhibit number 4 admitted into evidence and was recorded on January 11, 1974. On that same date a closing was held on the property. Petitioner's Exhibit number 5, admitted into evidence is a copy of the closing statement. Conditions of the closing was a cash deposit in the amount of $15,800 and $69,251.64 to close. A first mortgage in the amount of $67,500 and interest of $1,028.75 was given to the Miami Beach First National Bank. The $158,000 paid for this estate corresponds to a gift which was given by Armand Cerami to Pamela Ann Cerami in the amount of $158,000 as shown in the gift tax return, a copy of which is Petitioner's exhibit number 6, admitted into evidence. The effective date of the gift is established in the gift tax return as February, 1974. The federal income tax return filed by Armand Cerami for the year 1974, shows the sale of the stock of the three corporations. That income tax return would further show the $20,000 installment sale payment, a portion of which was treated as income to Armand Cerami. Finally, that return shows $13,000 of interest which was treated as income to Armand Cerami. On October 1, 1975, Pamela Anne Cerami gave a first mortgage on the property that she had paid $158,000 for this mortgage being given to Bob Erra, as trustee. A copy of the mortgage deed is found as Petitioner's Exhibit number 9, admitted into evidence. The amount of the mortgage was $40,000 and the proceeds of the mortgage amount were distributed as $7,000 to Pamela Cerami and $33,000 to Armand Cerami. These distributions were placed as time certificates of deposit with the Pan American Bank of West Dade, copies of which are found as Petitioner's composite exhibit number 8. The amount of interest returnable on the time certificate of deposit held by Armand Cerami is shown in his 1975 federal income tax return. Tony's Fish Market of Ft. Lauderdale, Inc. t/a Tony's Fish Market Restaurant made application with the State of Florida, Division of Beverage, to change Armand Cerami as Secretary-Treasurer of Tony's Fish Market of Ft. Lauderdale, Inc. and substitute Pamela Cerami as Secretary-Treasurer of that corporation and to transfer the stock ownership in the licensee corporation from Armand Cerami to Pamela Cerami. This change of officer and transfer of stock ownership involves the license no. 16-1320-SRX, series 4-COP. This application was denied by letter of April 9, 1975, from the Director of the Division of Beverage. In fact, Armand Cerami had been convicted of a felony, and is interested in an indirect way in the licensed premises.
Recommendation It is recommended that the applications to change the officer and transfer the stock ownership in license no. 16-1320-SRX, series 4-COP, set forth in this hearing be denied DONE AND ENTERED this 24th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Tobias Simon, Esquire 1492 S. Miami Avenue Suite 208 Miami, Florida 33130 Sy Chadroff, Esquire Suite 2806 120 Biscayne Boulevard North Miami, Florida 33132
The Issue The issue in this case is whether Respondent, Steak N Shake, discriminated against Petitioner, Western Ulysse, on the basis of his national origin (Haitian), or race (black), in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black man, born in Haiti. He was hired by Steak N Shake on April 26, 1998, as a production worker and cook. He was later promoted to a manager position at Store No. 281 in Lake Buena Vista. He worked at that store for about eight years and then transferred to Store No. 280 on West Colonial Drive in Orlando (the "Store") on an unspecified date. The general manager at the Store was Judith Freeman, a white female. There was one other manager at the store, Ilia Velez, a Hispanic woman.1/ Petitioner's duties as manager at the Store included providing good service to customers, maintaining an appropriate number of employees each day, ordering food and other supplies for the Store, and ensuring cleanliness and orderliness at the Store. It was also the duty of managers to make bank deposits of daily receipts. Petitioner did not have an exact time for starting work each day, but said he normally started at about noon for the "day shift." Each and every day, managers at the Store would complete a Daily Cash to Account for Form (the "TAF Form"), reflecting the amount of money collected on each of the three daily shifts. The first shift was late night/early morning; the second shift was the day shift; and the third shift was evening. As day-shift manager, Petitioner would sign the TAF Form for receipts from the night shift. It was then incumbent upon him to deposit the collected monies at the bank. A TAF Form was to be signed by two individuals, one of whom (generally a manager) would indicate by his/her signature that they would be responsible for depositing the receipts. According to Steak N Shake policy, deposits had to be made at the bank by a manager "and one other Steak N Shake employee. NO ONE GOES TO THE BANK ALONE." That policy was in place at the Store when Petitioner served as manager. However, it was common practice at the Store for Petitioner or another manager to go to the bank alone. Petitioner knew the policy and knew that his employment could be terminated for violating the policy. He explained that sometimes on first shift there were only two people at the store in the morning, so he had to go to the bank alone. Steak N Shake policies allow for a police officer to substitute as one of the two required persons. Further, an employee who cannot comply with the policy is supposed to contact the district manager as soon as possible. Nonetheless, the policy was routinely ignored by managers at the Store during the 2011 time-frame. It was also policy for the bank deposit to be made before 11:00 a.m. for the previous night's receipts. Petitioner did not explain how he complied with that requirement when he normally arrived at work at noon. He apparently worked earlier shifts some days and day shifts other days, but there is insufficient evidence in the record to substantiate that presumption. On May 24, 2011, however, Petitioner testified that he arrived at work around 7:00 a.m. At approximately 10:41 a.m., Petitioner signed the TAF Form from the previous day, indicating a deposit amount of $770.47 (the "Deposit"). Petitioner signed the TAF Form on the line of the form designated "Witnessed By" when, in fact, he, as manager, should have signed on the line designated "Deposited By." On this particular form, it appears the manager and the other employee signed on the wrong lines. Regardless of that scrivener's error, Petitioner became responsible for taking the Deposit to the bank once he signed the TAF Form. Petitioner said there were only two people working that morning, but the work schedule for the Store indicates at least five other persons were on the schedule for that morning. None of the workers was called to testify at final hearing, but the general manager, Ms. Freeman, said she believed they were all working that day. Ms. Freeman was also scheduled to work that day, but was taking part in management training outside the store. Petitioner did not notify the district manager that he could not comply with the banking policy. The Deposit was never received by the bank. Petitioner said at final hearing that he did not go to the bank with the Deposit, even though he had signed for it. He believes he sent another manager with the Deposit because it was very busy that morning, and there were not enough employees available to handle the work. His testimony in that regard is not persuasive, because the bank deposit slip for May 24, 2011, was signed by Petitioner. On June 9, 2011, the general manager, Ms. Briel, was told that the Deposit had never been made at the bank. She contacted the Store's general manager, Ms. Freeman, and asked her to investigate. Ms. Freeman did so, but could not locate the missing money. The bank also tried, but failed to locate the missing money. Ms. Freeman then contacted Petitioner to let him know the Deposit he had signed for was missing. Petitioner was given the opportunity to replace the missing money from his own funds to prevent termination of his employment, but said he did not have sufficient money in his account to do so. After completing her investigation, Ms. Freeman met Ms. Briel at a site away from the Store and disclosed her findings. Per protocol, the police were called to investigate the missing funds. No arrest was ever made, however. Ms. Briel considered Ms. Freeman's findings, consulted with the division president, the human resources department, and legal counsel and decided to terminate Petitioner's employment with Steak N Shake. Ms. Briel also issued counseling statements to Ms. Freeman and Ms. Velez relating to their failure to strictly adhere to the banking policies. Ultimately, Ms. Freeman was demoted to restaurant manager and transferred to another store due, in large part, to the violation of company policies relating to bank deposits. Petitioner had been counseled several times for shortcomings, but none of the violations were related to banking policies. Nonetheless, Petitioner was made aware that further disciplinary action against him for any issue may result in the termination of his employment. Petitioner feels he was treated differently than Ms. Velez, who he maintains also lost a deposit. However, Ms. Velez's deposit was ultimately accounted for by the bank, which had made a mistake. Petitioner's deposit was never accounted for by the bank or by anyone else. Ms. Velez's employment with Steak N Shake was ultimately terminated for "performance issues." Other managers have lost deposits and/or stolen money from Steak N Shake. In every instance, the offending manager's employment was terminated. There is zero tolerance at Steak N Shake for misappropriation of money. Petitioner cannot recite any incident of discrimination against him by Steak N Shake on the basis of his race or national origin. Petitioner did not ever avail himself of the procedures for issuing a complaint based on discrimination while he was employed at Steak N Shake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Western Ulysse's Petition for Relief. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 28th day of August, 2012.
The Issue Whether Respondent's wholesale and retail dealer's licenses should be revoked or otherwise disciplined for two convictions of Possession of Undersized Crawfish Tails, as alleged.
Findings Of Fact I. MGB Corporation, a corporation organized under the laws of Florida, owns and operates a seafood dealership known as Gulfstream Seafood at 5300 Georgia Avenue West Palm Beach, Florida. It holds Retail Seafood Dealer's License No. RC-W3246 and wholesale Seafood Dealer's License No. WD2239 issued by DNR for the 1985-86 license year. (DNR Ex. 1,2) George M. Michael is the president and chief executive officer of MGB. In connection with MGB's application for issuance or renewal of its current seafood dealer's licenses, Mr. Michael executed a required affidavit from the individual responsible for the day-to-day management of the business. By the terms of the affidavit, he pledged himself "to the faithful observance of all . . . laws . . . regulating the . . . possession of fish, seafood, and other saltwater products (DNR Ex.2) On October 21, 1985, following a plea of no contest, the County Court of Palm Beach County, Florida, adjudicated MGB d/b/a Gulfstream Seafood guilty of two counts of Possession of Undersized Crawfish Tails, a violation of Section 370.14, Florida Statutes. MGB was fined $500, in addition to a $20 surcharge and a $25 fine for contempt of court. (DNR Ex.3; Tr.21-22) II. One of these counts alleged that on March 29, 1985, MGB d/b/a Gulfstream Seafood, unlawfully possessed crawfish tails which measured less than five and a half inches lengthwise from the point of separation along the center of the entire tail until the rearmost extremity is reached, contrary to Section 370.14(2), Florida Statutes. Facts Underlying this Violation. On March 29, 1985, Officer Francis Crowley accompanied by another officer of the Florida Marine Patrol entered the premises of Gulfstream Seafood and observed undersized crawfish on pallets in the production area. They were not refrigerated and had not yet been processed. Mr. Michael, who was present, tried to divert Officer Crowley's attention while another individual attempted to wheel the crawfish out the back door. The two officers separated the legal-sized crawfish from the undersized crawfish and weighed each category. There were 254 pounds of undersized crawfish, i.e., crawfish with tails measuring less than five and a half inches lengthwise from the point of separation along the center of the entire tail to the foremost extremity. The number of undersized crawfish involved is unknown. Officer Crowley issued a citation to Mr. Micheal and donated the undersized crawfish to a children's home in Fort Pierce. III. The other count of which MGB was found guilty alleged that on May 17, 1985, MGB again unlawfully possessed 3undersized crawfish in violation of Section 370.14(2), Florida Statutes. The circumstances surrounding this violation including the weight or number of undersized crawfish involved, have not been shown. IV. MGB has 165 employees, a payroll of $127,000 a month, and processes between 10,000 and 15,000 crawfish per month. A suspension of its seafood dealers' license for a month or more would adversely impact its operations. Customers would most likely obtain seafood from other dealers and it would be difficult for MGB to recoup the lost business.
Recommendation Based on the foregoing; it is RECOMMENDED: That the charges, and administrative complaint filed against MGB; be DISMISSED. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1986.
The Issue The issue in this case concerns whether the Petitioner should issue a cease and desist order and/or impose sanctions against the Respondent on the basis of allegations that the Respondent, by failing to have its books, accounts, and documents available for examination and by refusing to permit an inspection of its books and records in an investigation and examination, has violated Sections 520.995(1)(a), (f), and (g), Florida Statutes.
Findings Of Fact Sometime during the month of February of 1991, Ms. Jennifer Chirolis, a Financial Investigator from the Department of Banking and Finance, visited the offices of the Barat Company. She spoke with Mr. Roque Barat and determined that the Barat Company was conducting retail installment sales without being licensed to do so under Chapter 520, Florida Statutes. Mr. Chirolis advised Mr. Roque Barat that he needed a license and asked him to cease operations until he obtained the necessary license. The Barat Company thereafter obtained the necessary license and was still licensed as of the time of the formal hearing. Thereafter, the Department received a complaint about the Barat Company from a customer. The customer's complaint was to the effect that the Barat Company had made misrepresentations concerning the fee paid by the customer. The Department initiated an "investigation" of the customer's complaint and also decided to conduct an "examination" of the Barat Company. On April 22, 1992, a Department Examiner, Mr. Lee Winters, went to the office of the Barat Company to conduct the "examination" and "investigation". The Barat Company is operated out of a small office with two employees and a few filing cabinets. When Mr. Winters arrived, employees of the Barat Company were conducting business with two customers. Mr. Winters identified himself to the employees and informed them that he had been assigned to conduct an "examination" and "investigation" of the Barat Company. A Barat Company employee, Mr. Fred Vivar, said that he could not produce the company's records without express authorization from Mr. Roque Barat, that Mr. Roque Barat was out of the country, that he could not get in touch with Mr. Roque Barat at that moment, but that when he did get in touch with him, he would advise Mr. Roque Barat of Mr. Winter's desire to examine the company's books and records. Following a number of telephone calls over a period of several days, on May 1, 1992, Mr. Vivar advised Mr. Winters that he had received authorization from Mr. Roque Barat for the Department to inspect the books and records of the Barat Company. An appointment was made for the Department to inspect the books and records on May 6, 1992, beginning at 10:00 a.m. On May 5, 1992, a letter from an attorney representing the Barat Company was hand delivered to Mr. Winters. The letter included the following paragraph: It is my understanding that you have requested the opportunity to view the records of the above-referenced company, said inspection to take place on May 6, 1992. Please be advised that if this "inspection" is purportedly being done by your agency's authority, pursuant to F.S. 520.996, that no records will be produced absent compliance by your department with F.S. 520.994 including, but not limited to, the Barat Company exercising its right to challenge said subpoena. The Department concluded from the letter of May 5, 1992, that the Barat Company not only refused to produce records without a subpoena, but that, even if served with a subpoena, the Barat Company would resist compliance with the subpoena unless and until ordered to comply by a court. For that reason the Department did not pursue the issuance of a subpoena. Mr. Winters has been involved in over one hundred "examinations" under Chapter 520, Florida Statutes. In the course of those "examinations" there have been only two licensees that did not produce their records. Those two licensees were the Barat Company and another company known as Phase One Credit. Mr. Roque Barat is an officer and director of both Phase One Credit and the Barat Company. The license of Phase One Credit was revoked for its failure to produce its books and records. The refusal to produce the books and records of the Barat Company was occasioned by an effort on the part of Mr. Roque Barat to avoid payment of "examination" fees authorized by Section 520.996, Florida Statutes. In the summer of 1992, the Barat Company filed for bankruptcy, closed down its business operations, and is currently winding up the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance issue a Final Order in this case to the following effect: Dismissing the charge that the Barat Company has violated Section 520.995(1)(a), Florida Statutes; Concluding that the Barat Company has violated Sections 520.995(1)(f) and (g), Florida Statutes, as charged in the Administrative Complaint; Imposing a penalty consisting of: (a) an administra-tive fine in the amount of one thousand dollars, and (b) revocation of the Barat Company's license; and Ordering the Barat Company to cease and desist from any further violations of Chapter 520, Florida Statutes. DONE AND ENTERED this 23rd day of February, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 23rd day of February, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5620 The following are my specific rulings on the proposed findings of fact submitted by the parties. Proposed findings submitted by Petitioner: Paragraph 1: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 2, 3 and 4: Accepted in substance. Paragraph 5: Accepted in substance, with the exception of the last five words. The last five words are rejected as irrelevant to the issues in this case and as, in any event, not supported by clear and convincing evidence. Paragraph 6: Accepted in substance. Paragraph 7: First sentence accepted in substance. Second sentence rejected as irrelevant to the issues in this case. Paragraph 8: First sentence accepted. Second sentence rejected as inaccurate description of letter. (The relevant text of the letter is included in the findings of fact.) Last sentence rejected as subordinate and unnecessary evidentiary details. Paragraph 9: Rejected as irrelevant to the issues in this case. Paragraph 10: First two sentences rejected as irrelevant to the issues in this case. Last two sentences accepted in substance. Paragraph 11: Accepted in substance. Paragraph 12: First sentence accepted in substance. Second sentence rejected as irrelevant to the issues in this case. Paragraph 13: Accepted. Proposed findings submitted by Respondent: As noted in the Preliminary Statement portion of this Recommended Order, the Respondent's proposed recommended order was filed late. The Respondent's proposed recommended order also fails to comply with the requirements of Rule 60Q-2.031, Florida Administrative Code, in that it fails to contain citations to the portions of the record that support its proposed findings of fact. A party's statutory right to a specific ruling on each proposed finding submitted by the party is limited to those circumstances when the proposed findings are submitted within the established deadlines and in conformity with applicable rules. See Section 120.59(2), Florida Statutes, and Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), in which the court held, inter alia, that a party is not entitled to more than a reasonable period of time within which to submit its proposals. Because the Respondent submitted its proposals late and because those proposals fail to comply with the requirements of Rule 60Q-2.031, Florida Administrative Code, the Respondent is not statutorily entitled to a specific ruling on each of its proposed findings and no such specific findings have been made. (As noted in the Preliminary Statement, the Respondent's proposed recommended order has been read and considered.) COPIES FURNISHED: Ron Brenner, Esquire Office of the Comptroller 401 Northwest 2nd Avenue Suite 708-N Miami, Florida 33128 Louis J. Terminello, Esquire 950 South Miami Avenue Miami, Florida 33130 Michael H. Tarkoff, Esquire 2601 South Bayshore Drive Suite 1400 Coconut Grove, Florida 33133 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Copies furnished continued: William G. Reeves, General Counsel Office of the Comptroller The Capitol, Room 1302 Tallahassee, Florida 32399-0350
