Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Rule 7A-3.15(1), Florida Administrative Code, and that its special license be suspended for three days. DONE and RECOMMENDED this 12th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 April, 1983. COPIES FURNISHED: James M. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Grapevine Restaurant No. One, Inc. d/b/a Grapevine Restaurant 4320 14th Street West Bradenton, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether the Petitioner was terminated from her employment with Caballero's Mexican Restaurant in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent owned and operated a restaurant in Melbourne, Florida known as Caballero's Mexican Restaurant (the restaurant). The restaurant opened in September, 1989 and remained in operation until May, 1990, when it closed and went out of business. Subsequently, the corporation was dissolved. When the restaurant opened, Kenneth Cooper was hired to perform the chef duties for the facility. Mr. Cooper had prior experience in such matters and was retained to be kitchen manager. Mr. Cooper was to hire and train all staff needed to efficiently operate the new restaurant kitchen. One of the individuals Mr. Cooper brought into the kitchen was the Petitioner. The couple had a good working relationship and Petitioner proved to be an excellent worker. Petitioner was made cook and, at all times material to this case, Respondent was pleased with her performance. In December, 1989, Richard Delmar, as president of the Respondent, advised Mr. Cooper that his employment at the restaurant was being terminated. The Petitioner was present when the incident occurred and demanded that Mr. Delmar give good reason for the termination. At that time Petitioner's employment was not terminated but she became upset that her husband's job had ended. Additionally, there was some dispute as to the ownership of personal property in the kitchen and whether Mr. Cooper and Petitioner would leave the restaurant premises. Ultimately, the police were summoned and the Coopers left. Petitioner did not return to work. Caballero's was opened only nine months and did not employ fifteen employees. The restaurant was primarily a family-run venture with the Coopers running the kitchen and the Delmars hosting the seating area. Waitresses and a bartender were also employed by shift.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by Petitioner for lack of jurisdiction. RECOMMENDED this 10th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5275 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent presented a series of proposed facts which were unnumbered. They are addressed below in the order of presentation (paragraphs 1 through 12). Paragraph 1 is rejected as irrelevant. Paragraph 2 is accepted. Paragraphs 3 and 4 are accepted. Paragraph 5 is rejected as irrelevant, hearsay, or not supported by the weight of the evidence. Paragraph 6 is accepted. Paragraph 7 is rejected as hearsay or not supported by the weight of the evidence presented in the case. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as irrelevant. Paragraph 11 is rejected as irrelevant. Paragraph 12 is rejected as a conclusion of law. COPIES FURNISHED: Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Jan Cooper 120 Sky Lane Titusville, Florida 32796 Joy Delmar Caballero's Mexican, Inc. 1825 S. Riverview Drive Melbourne, Florida 32901
The Issue Whether the Respondent failed to have the seating capacity required of a licensee in its category as alleged by the Notice to Show Cause and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, Respondent, EDM of Key West, Inc., d/b/a/ Portside, was the holder of a special restaurant license issued by Petitioner, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation. This license, Series 6-COP, Number 54-00999SRX, authorizes Respondent to sell alcoholic beverages, subject to regulation by Petitioner and other authorities, in conjunction with its restaurant business. On November 16, 1988, Petitioner's law enforcement investigator, David Myers, inspected Respondent's premises to determine whether Respondent was in compliance with the regulations applicable to licensees such as Respondent. Two violations were discovered. The first was that the establishment failed to have sufficient seating for patrons under the covered portion of the premises. The second was that the establishment failed to keep adequate records of its sales of food and of its sales of alcohol as required by regulation. Official Notices were issued by Petitioner to Respondent for both violations. Investigator Myers told Respondent's dining room manager on November 16, 1988, that the establishment was required to have seating sufficient for at least 150 dining patrons under a permanent roof and that the seats located outside the roofed area could not be counted toward that requirement. This advice is consistent with Petitioner's interpretation of Rule 7A-3.014, Florida Administrative Code. Prior to December 12, 1988, Investigator Myers advised the management of Respondent that he intended to make a follow-up inspection on December 12, 1988. On December 12, 1988, there were 132 seats for dining patrons within the roofed area. Other seats for dining patrons were located in an uncovered area. Petitioner filed a Notice to Show Cause subsequent to its inspection of December 12, 1988, against Respondent alleging, in pertinent part, the following: On December 12, 1988, you, EDM OF KEY WEST INC., failed to have accommodations for service of 150 patrons at tables on your licensed premises . . . . The Notice to Show Cause did not cite Respondent for failure to keep adequate records of sales. On May 22, 1989, an inspection revealed that there was seating for only 118 dining patrons under the roofed area. On June 5, 1989, Respondent was found to be in compliance with the seating requirement. Respondent filed a timely request for hearing and therein denied the factual allegations of the charge brought against it.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having failed to have accommodations for the seating of 150 dining patrons as required by Section 561.20(2)(a)4, Florida Statutes, and by Rule 7A-3.014 and Rule 7A-3.015, Florida Administrative Code, and which imposes an administrative fine of $500.00 against Respondent. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000 James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. Post Office Box 1117 Key West, Florida 33041 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent's pronouncement that special restaurant licenses issued prior to January 1, 1958, that have not remained in "continuous operation" are thereby (as a result of their lack of "continuous operation") rendered invalid pursuant to Section 561.20(5), Florida Statutes, and therefore not subject to delinquent renewal pursuant to Section 561.27, Florida Statutes (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioners.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.2 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.3 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.4 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." As applicants applying to delinquently renew their SR licenses (which were both originally issued in 1956), Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
The Issue Whether respondent's Rule 7A-3.15(3) (a) and (d), containing criteria for special restaurant alcoholic beverage licenses, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact On March 12, 1981, DABT issued petitioner a special restaurant alcoholic beverage license, No. 23-4626 SRX, Series 4 COP. (P-2, P-3.) Under the authority of this license, petitioner operates a business at 49 Northwest Fifth Street, Miami, Florida, which serves food and beverages (alcoholic and nonalcoholic) to the general public. (Testimony of Saric; P-2, P-3.) By notice dated August 28, 1981, as later amended, DABT sought to suspend or revoke petitioner's beverage license or impose a civil penalty. As grounds, DABT accused petitioner of violating Chapter 561, Florida Statutes, and Rule 7A-3.15, Florida Administrative Code. It contended that respondent violated Rule 7A-3.15 between April 28 and August 5, 1981, by failing to "prepare any meals on the premises . . . and by failing to "maintain tables of adequate size to accomodate [sic] the service of 200 full-course meals in accordance with the number of chairs found at that table.
The Issue Whether Petitioner established that Respondent is an "employer" under the Florida Civil Rights Act (FCRA), section 760.02(7), Florida Statutes (2011),1/ in order to confer jurisdiction on the Florida Commission on Human Relations (Commission); and Whether Petitioner established by a preponderance of the evidence that Respondent retaliated against Petitioner for filing a complaint with the federal Equal Employment Opportunity Commission (EEOC), in violation of the FCRA, section 760.10(7).
Findings Of Fact Ms. Hill is an African-American female who began working at a Subway restaurant located in Winter Haven, Florida, as a sandwich artist in 2005. By 2007, Ms. Hill had been promoted to an assistant manager, and charged with opening the restaurant. Ms. Hill's responsibilities for opening the restaurant required her to be at work by 8:30 a.m. in order to start baking the bread for the day's sandwiches and preparing the sandwich toppings, so that the restaurant could open by 10:00 a.m. As the assistant manager, Ms. Hill earned $9.25 an hour. Goga Bap purchased the Subway restaurant where Ms. Hill worked, located in Winter Haven, Florida, in February 2009. Following Goga Bap's purchase, Mr. Patel hired his family members as managers and employees in the restaurant. At the time of the purchase, Mr. Patel hired Ms. Hill as a sandwich artist at $9.00 an hour. Although she was no longer an assistant manager, Ms. Hill kept her duties of opening the restaurant. Goga Bap owns only one Subway restaurant franchise, and during the relevant time period, Mr. Patel was Goga Bap's sole shareholder. Mr. Patel and his wife own another Subway restaurant, located in Auburndale, Florida, through a separate legal entity, Om Shakti Corporation. This second Subway franchise is operated independently of the Subway franchise owned and operated by Goga Bap. Further, Mr. Patel owns a minority interest in two Subway franchises in Jacksonville, Florida. The record shows that the franchises in Winter Haven, Auburndale, and Jacksonville are separate corporate entities, with separate employees, separate managers, separate business accounts, and separate tax identification numbers. Each Subway franchise employs less than 15 employees. Moreover, even if one considered the restaurants in which Mr. Patel owns a majority interest, the combined number of employees is less than 15. At most, the two restaurants combined for 13 employees in any given week during 2010 and 2011. The Subway franchises in Jacksonville, Florida, in which Mr. Patel owns a minority interest, each hired six to seven employees. The payroll records show that Goga Bap never employed 15 or more employees in any week in either 2010 or 2011. As noted earlier, Ms. Hill's workday was scheduled to begin at 8:30 a.m. in order to open the restaurant by 10:00 a.m. From October 2010 through January 2011, Ms. Hill's attendance and punctuality began to deteriorate; thus, creating a difficulty in opening the restaurant on time. For example, on the dates October 11 through 13, 2010, Ms. Hill was scheduled to work, but called in sick. Consequently, Mr. Patel had to find someone at the last minute to open the store for those dates. In addition to the October dates, the record showed that Ms. Hill did not come to work on time for her scheduled work day of December 15, 2010, and failed to work full days on January 4 and 5, 2011. The result was that Mr. Patel found Ms. Hill an unreliable employee. Because of Ms. Hill's attendance and punctuality problems, Mr. Patel decided to hire an additional employee to work the weekdays with Ms. Hill. The hiring of this additional person cut into the restaurant's profitability. Consequently, beginning in the first work week of January 2011, Ms. Hill's work hours were reduced to offset the increased costs associated with hiring an additional employee. During the first week of January 2011, Ms. Hill's hours were reduced to approximately 17 hours a week. It is noted that for the weeks beginning January 26, 2011, through February 15, 2011, the payroll records show that Ms. Hill worked between 23.53 hours to 28.09 hours a week. However, beginning the week of February 23, 2011, Ms. Hill's work hours returned to the level of approximately 17 hours a week. Mr. Patel credibly testified that Ms. Hill did not tell him that she believed that she was being discriminated against by the reduction of her work hours. Further, Mr. Patel credibly testified that he did not receive any information from Subway's corporate office that Ms. Hill had contacted Subway that she believed that Mr. Patel was discriminating against her. Mr. Patel credibly testified that prior to reducing Ms. Hill's hours in early January 2011, he had not received Ms. Hill's EEOC complaint. In fact, the record shows that Ms. Hill's work hours had been reduced before she filed the EEOC complaint on January 31, 2011. Thus, she failed to show that the reduction of her work hours was a result of retaliation. Ms. Hill did not bring forward any evidence showing that Goga Bap falsely provided information on any government forms. There was no credible evidence showing that the decision to reduce Ms. Hill's work hours was tied or had any nexus to Ms. Hill's EEOC complaint filed on January 31, 2011.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order of dismissing Ms. Hill's Petition for Relief based on lack of jurisdiction because Goga Bap Corporation, does not meet the statutory definition of an employer; or in the alternative, dismiss Ms. Hill's Petition for Relief because she failed to establish her retaliation claim. DONE AND ENTERED this 7th day of January, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 7th day of January, 2013.
Findings Of Fact The Respondent is responsible for administering Florida laws respecting the sale of alcoholic beverages. Sales of alcoholic beverages are regulated in Florida through a licensing system. "Liquor" licenses authorize licensees to sell alcoholic beverages without regard to alcoholic content. Various categories of liquor licenses are issued by the Respondent. The two categories most pertinent to this proceeding are "quota" licenses and "restaurant" licenses. Quota licenses are available on the basis of one license per 2,500 in population for each county which permits such licenses (Some counties have different quotas established by Special Acts of the Legislature.). The term "quota" is derived from the fact that the issuing formula is based upon the decennial Federal census, and thus only a finite number of licenses are available. Section 561.20(1), Florida Statutes. Restaurant licenses are an exception to the quota scheme and are not limited in number. They are available to "any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages." Section 561.20(2)(a)3, Florida Statutes. There are approximately 3,000 outstanding quota licenses, and 2,000 outstanding restaurant licenses. Depending upon the specific terms of the license, quota license holders are authorized to sell liquor for off premises consumption. These are called "package" sales. Prior to the adoption of the amendment to Rule 7A-3.16, restaurant licenses issued after January 1, 1958, did not authorize package sales. Prior to the adoption of the amendment, the rule Provided: No licensee holding a special restaurant license issued after January 1, 1958, may sell alcoholic beverages for off premises consumption other than as may be Provided by special act. The prefix "SRX" shall be made a part of the license numbers of all special restaurant licenses issued after January 1, 1958, distinguishing them in identity from other licenses. The amendment which is the subject of this proceeding deleted the underlined portion of the rule. The effect of the amendment is to permit holders of restaurant licenses to make package sales so long as other criteria pertaining to the licenses are met. The Petitioner is a publicly owned Florida corporation which does business in Florida and five other states. Petitioner is engaged in the business of selling alcoholic beverages for on and off premises consumption. The majority of its business activities are in Florida, and Florida package sales represent more than half of the Petitioner's total business volume nationwide. The Petitioner holds forty-tow quota licenses issued by the Respondent. Quota licenses are transferable; and since they are limited in number, their market value frequently far exceeds the fees imposed by the Respondent. The market value of quota licenses held by the Petitioner in Dade and Broward Counties, Florida, is nearly two million dollars. The Petitioner's business is a very competitive one. When the petitioner is considering whether to invest in a new location, numerous factors are considered. These include demographics, traffic patterns, population, zoning, and the number and location of competitors. The number and location of competitors is the single most important factor. Since package sales constitute a majority of the Petitioner's business volume, the proximity of competitors who offer package sales is paramount. Because under the Respondent's rules restaurant licensees have been prohibited from making package sales, the location of restaurant licensees has not been of concern to the petitioner in determining where to locate. The Petitioner may have made different judgments about numerous of its locations if nearby restaurants were able to make package sales in competition with the Petitioner. No specific evidence was introduced from which it could be determined which if any of the Petitioner's locations would not have been opened, or which will suffer a competitive disadvantage as a result of the amendment to Rule 7A-3.16. Indeed, implementation of the amendment to the rule has been stayed by the courts, and no determination can be made as to which restaurant licensees might avail themselves of the opportunity of making package sales, and to what extent. The market value of the Petitioner's quota licenses and competition for the Petitioner's business outlets are affected by licensing considerations apart from whether restaurant licensees will be permitted to make package sales. As a result of the 1980 Federal census, numerous new quota licenses will be available in Dade and Broward Counties. These additional licenses, when issued, could have a substantial impact upon the value of the Petitioner's licenses, and the competitive advantages of the Petitioner's business locations. The Intervenor is the holder of a restaurant license issued by the Respondent. The amendment to Rule 7A-3.16 would permit the Intervenor to make package sales of alcoholic beverages. The economic impact statement adopted by the Respondent in support of its amendment to Rule 7A-3.16 provides in pertinent part as fellows: This rule will likely stimulate competition in the market place by permitting more outlets for off premises sale of alcoholic beverages. There would be no appreciable impact upon the state's revenue, but should there be any impact it is estimated that more liquor would be sold rather than less. Competition upon existing package stores would be in proportion to the proximity and competitive power of special restaurants permitted to sell by the package. In developing this statement, various officials within the Respondent met on several occasions to discuss the potential economic impact of the amendment to the rule, and representatives of the regulated industry were consulted. Hearings were conducted by the Respondent before the amendment was adopted. Representatives of the industry, including a representative of the Petitioner, appeared at hearings and stated their positions with respect to the amendment. The economic impact statement accurately portrays the potential economic impact of the amendment. It does not appear that the effect of competition upon existing package stores can be estimated with any precision. Indeed, the Petitioner did not present evidence and could not present evidence with respect to the precise impact that the amendment would have upon any of its locations.
The Issue Does Petitioner, Target Corporation (Target), have standing to bring this rule challenge? Does Petitioner, Walmart, Inc. (Walmart), have standing to bring this rule challenge? Does Intervenor, ABC Fine Wine & Spirits (ABC), have standing to participate in this rule challenge? Does Intervenor, Florida Independent Spirits Association (Independent Spirits), have standing to participate in this rule challenge? Does Intervenor, Publix Supermarkets (Publix), have standing to participate in this rule challenge? Is Florida Administrative Code Rule 61A-3.055 (Restaurant Rule or the rule) an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes (2018)?1/
Findings Of Fact The Legislature has charged the Division with administration of Florida’s alcoholic beverage and tobacco laws. This charge includes licensing and regulation, as well as enforcement of the governing laws and rules. The Division promulgated rule 61A-3.055 in 1994. It has not been amended since. The rule states: 61A-3.055 Items Customarily Sold in a Restaurant. As used in Section 565.045, F.S., items customarily sold in a restaurant shall only include the following: Ready to eat appetizer items; or Ready to eat salad items; or Ready to eat entree items; or Ready to eat vegetable items; or Ready to eat dessert items; or Ready to eat fruit items; or Hot or cold beverages. A licensee may petition the division for permission to sell products other than those listed, provided the licensee can show the item is customarily sold in a restaurant. This petition shall be submitted to the director of the division at Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 2601 Blair Stone Road, Tallahassee, Florida 32399-1020, and must be approved prior to selling or offering the item for sale. For the purpose of consumption on premises regulations set forth in Section 565.045, F.S., items customarily sold in a restaurant shall include services or sales authorized in the “Florida Public Lottery Act”, Section 24.122(4), F.S. The effect of the rule is that any vendor with a license to sell alcoholic beverages for consumption on premises (COP) may not sell any items other than those listed in subsection (1) unless individually authorized to sell specific items by the Division.2/ Rule 61A-3.055 identifies section 565.045, as the law that it implements. The Restaurant Rule regulates all establishments holding a COP license. Topgolf operates four COP licensed establishments in Florida. Every Topgolf venue features dozens of high-tech, climate-controlled, golf hitting bays, food and beverage choices, and employs a staff of associates to provide patrons with a golf- themed food, beverage, and entertainment experience. The Division has also issued Topgolf a temporary COP license for its location at Topgolf Doral, 11850 Northwest 22nd Street, Miami, Florida 33182. On July 31, 2018, the Division inspected Topgolf Doral as part of the licensing process for issuance of the permanent liquor license. The Division’s Inspection Report notes that the Topgolf Doral (Doral) location may be in violation of section 565.045, because it offers items for sale other than those enumerated in rule 61A-3.055. The items offered include Topgolf-branded and/or golf-themed T-shirts, caps, visors, golf balls, cups, key chains, gloves and other trinkets. All of Topgolf’s Florida locations sell items similar to those sold in its Doral location. In addition to possible denial of its Doral application, Topgolf faces potential administrative and/or criminal penalties for the purported violation of the Restaurant Rule at each of its Florida locations. Topgolf has also petitioned the Division for permission to sell products other than those listed in rule 61A-3.055(1). Walmart operates a chain of retail stores, warehouse clubs, and ecommerce websites. It operates almost 400 locations in Florida. The Florida Department of Agriculture and Consumer Services licenses Walmart’s retail locations in Florida as food establishments. Walmart seeks to obtain, but has not yet applied for, COP licenses for some of its Florida retail locations. ABC is a retailer of alcoholic beverages in Florida. It operates a number of establishments that hold COP licenses. It holds 26 COP licenses. Rule 61A-3.055 applies to ABC’s operation of its licensed establishments. Independent Spirits is an independent association of alcoholic beverage retailers holding COP licenses. It exists to represent the interests of its members before the Division, in the Legislature, and otherwise. ABC is an Independent Spirits member. Including ABC, Independent Spirits members hold 61 COP licenses. Publix is a supermarket chain. It also operates a number of liquor stores throughout the state. Publix holds a number of COP licenses (beer and wine only). Publix relied on the requirements of statute and rule (including section 565.045 and the Restaurant Rule) in crafting its liquor-related business plans and building its separate liquor stores. Division inspections of licensed vendors include examination for violations of the Restaurant Rule. Since June 28, 2010, the Division has issued 14 notices of violation of the Restaurant Rule. The record does not establish what, if any, further action, such as fines or license revocation, that the Division has taken. The Division recently denied an application by Costco for a COP license for failure to comply with the Restaurant Rule. This is the only known instance of the Division denying a license application for failure to comply with the rule. Restaurants customarily sell items other than those listed in the Restaurant Rule. At a minimum, they sell T-Shirts and branded souvenir items. The Division adopted the Restaurant Rule in 1994. The review from the Joint Administrative Procedures Committee at the time included this observation: “Absent explanatory criteria, use of the word ‘customarily’ vests unbridled discretion in the department.” The Division responded: “As mentioned in our meeting, all of Proposed Rule 61A-3.055 is, in itself, the division’s attempt to define the admittedly vague phrase ‘items customarily sold in a restaurant’, as used in s. 565.045.” The Division is presently conducting rulemaking proceedings to consider amending the Restaurant Rule.
