Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: On September 10, 1984, the Petitioner received an application for a Series 4-COP, SRX Alcoholic Beverage License from Respondent Club Lido of Gainesville, Inc. On the above date, the Petitioner issued a new temporary Series 4-COP, SRX license to the Respondent pending investigation of the application. The application was submitted signed by Richmond Smith who represented himself as the president, secretary, treasurer, and sole stockholder of Respondent. The application was subsequently approved and the Respondent was issued License Number 11-00786SRX, Series 4-COP on October 1, 1984, to be utilized at a location designated as 233 West University Avenue, Gainesville, Alachua County, Florida. During the year 1985, Division of Alcoholic Beverages and Tobacco Investigator William L. Cooter, Sr., received complaints from various restaurant owners in Alachua County, that Respondent was not operating as a bona fide restaurant, inferring that alcoholic beverage sales at Club Lido exceeded 49 percent of the gross sales. Additionally, Investigator Cooter had visited the premises on numerous occasions and had observed that only small quantities of food items were being served on the premises of Club Lido. In response to the above complaints and on the basis of his personal observations, Investigator Cooter, on September 18, 1985, proceeded to the premises of Respondent and requested a review of the Respondent's food and alcoholic beverage sales. The request for records was made to Richmond Smith, President of Club Lido. On the above date, Smith responded that the records were not on the premises and that Investigator Cooter would be required to subpoena the records if he wished to examine them. Accordingly, Investigator Cooter issued an Official Notice to Richmond Smith on behalf of Club Lido which required production of the sales records by October 4, 1985. The Respondent failed to produce its sales records as of October 4, 1985. The Respondent, as of the date of formal hearing, had still failed to produce its sales records. On November 15, 1985, Investigator Cooter, along with Investigator Donald O'Steen, proceeded to the premises of the Respondent in order to inspect its equipment, supplies, and patron accommodations. The investigators found a minimal quantity of food on the premises. There was not a sufficient amount of food products to serve full course meals to 100 or more patrons on the premises of Respondent on November 15, 1985. There were not adequate seating accommodations to seat and serve full course meals to 100 or more patrons on the premises of Respondent on November 15, 1985, in that only 94 chairs and bar stools were present on the premises. The investigators also noted that there was no employee designated as a "chef" or "cook" on the premises and that approximately two- thirds (2/3) of the silverware needed to serve 100 or more patrons had not been unpackaged. On July 18, 1986, the Respondent terminated active business operations based on the unprofitability of the business. Richmond J. Smith, was a Respondent in Case No. 78- 338, Division of Administrative Hearings, Department of Business Regulation Case No. 3-77-66A, wherein violations of Rule 7A-3.14 and 7A-3.15, Florida Administrative Code, relating to the maintenance of food and beverage records relative to a SRX Alcoholic Beverage License were alleged. The above violations were settled by Stipulation and the licensee paid civil fines relative thereto.
Recommendation Based upon all of the foregoing, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the Special Restaurant Alcoholic Beverage License of Respondent. DONE AND ENTERED this 19th day of September, 1986, in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed by the Clerk of the Division of Administrative Hearings this 19th day of September, 1986. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Charles G. Brackins, Esquire Suite B 920 N.W. 8th Avenue Gainesville, Florida 32601 Mr. Richmond Smith Club Lido of Gainesville, Inc. 233 West University Avenue Gainesville, Florida 32601 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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 Should Respondent's Alcoholic Beverage License Number 63-04089 be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent, operated as a sole proprietorship known as Fort Meade Restaurant and Lounge, located at 122 Fourth Street Southwest, Fort Meade, Florida. Respondent held a series SRX4COP Alcoholic Beverage License Number 63-04089, issued by DABT, which authorized Respondent to sell beer, wine, and liquor for consumption on the licensed premises in connection with the restaurant operation of Fort Meade Restaurant and Lounge. Respondent's beverage license did not authorize Respondent to sell any form of alcoholic beverage for consumption off of the licensed premises. By letter dated February 10, 1997, the Fort Meade Police Department requested investigative assistance from DABT concerning an allegation that controlled substances were being sold at Respondent's licensed premises as well as another location unrelated to Respondent. As a result of the request for assistance from the Fort Meade Police Department, DABT instituted an investigation concerning the complaint. In addition to assigning the complaint to a Special Agent, Cleveland McKenzie, DABT requested assistance from the Polk County Sheriff's Department. At approximately 9:45 p.m. on April 18, 1997, Agent McKenzie, accompanied by Detective Bobby Neil, Polk County Sheriff's Office, entered Respondent's licensed premises, located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity. While in Respondent's licensed premises on April 18, 1997, Agent McKenzie asked the person tending bar (bartender) for "a beer for the road." In response to Agent McKenzie's request, the bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag, with the beer inside, to McKenzie who then paid for the beer and left the licensed premises without attempting to conceal the beer on his person and without being stopped by any person providing services on the licensed premises. Agent McKenzie and Detective Neil left the licensed premises at approximately 11:00 p.m. Both Agent McKenzie and Detective Neil described the bartender as a stout, light-skinned, black male approximately 20 to 25 years of age. Neither Larry Fisher, manager of the licensed premises, nor Reginald Johnson, Respondent's adult son, fit this description. The person tending bar at the licensed premises on April 18, 1997, and April 26, 1997, was neither Larry Fisher nor Reginald Johnson, notwithstanding the testimony of Larry Fisher or Reginald Johnson to the contrary which I find lacks credibility. At approximately 10:30 p.m. on April 26, 1997, Agent McKenzie and Detective Neil entered Respondent's licensed premises located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity Before leaving the licensed premises on April 26, 1997, Agent McKenzie asked the bartender (the same individual tending bar while Agent McKenzie was in the licensed premises on April 18, 1997) for "a beer to go." The bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag to Agent McKenzie. The bartender refused the offer of payment for the beer from Agent McKenzie's indicating that the beer was "on him." Agent McKenzie and Detective Neil left the licensed premises at approximately 11:55 p.m. on April 26, 1997. Upon leaving the licensed premises, Agent McKenzie carried the unopened bottle of beer in the paper bag without any attempt to conceal the beer on his person. Likewise, upon leaving the licensed premises, Detective Neil carried a half-full opened bottle of beer which he had purchased earlier from the bartender without any attempt to conceal the bottle on his person. In order to leave the licensed premises on April 26, 1997, Agent McKenzie and Detective Neil had to go pass two individuals who were providing services to Respondent's licensed premises. Neither of these individual, nor any other person providing services to Respondent's licensed premises on April 26, 1997, prevented Agent McKenzie or Detective Neil from leaving the licensed premises with the beer. There was no evidence presented By DABT to show that while Agent McKenzie and Detective Neil were in Respondent's licensed premises on April 18, 1997, and April 26, 1997, that the bartender sold or gave any other customer an alcoholic beverage packaged to go or that any other customer left the licensed premises with an alcoholic beverage. Respondent was not present in his licensed premises during the time that Agent McKenzie and Detective Neil were there on April 18, 1997, and April 26, 1997. There is insufficient evidence to show that the bartender's action on April 18, 1997, and April 26, 1997, was the result of Respondent's negligence, intentional wrongdoing, lack of diligence, lack of training for the employees, or lack of notice to customers that any alcoholic beverage purchased had to be consumed on the licensed premises. After the visits to the licensed premises on April 18, 1997, and April 26, 1997, Agent McKenzie concluded that there was no basis to the alleged complaint that controlled substances were being sold on the licensed premises. The designation "SRX" identifies a beverage license issued to business which is to be operated as restaurant. As a result of its investigation of Respondent's licensed premises on April 18, 1997, and April 26, 1997, DABT, as is its normal practice, examined the Respondent's licensed premises for continuing requirements applicable to special licenses such as a "SRX" license. Respondent is an experienced business person with 15 years experience in operating licensee premises. Respondent knew at the time of obtaining the license at issue in May 1995 that he had an obligation to maintain records sufficient to demonstrate that Respondent met the 51 percent requirement in each bi-monthly period. Respondent's Profit and Loss Statement for the months of January 1997, February 1997, March 1997, and April 1997, listed the total amount of revenue derived from the sale of food and non-alcoholic beverages and alcoholic beverages. However, this figure for alcoholic beverages was not supported by any daily records of sales. Respondent maintained no records as to the daily sales of alcoholic beverages on the licensed premises. Although Respondent presented guest checks for the daily sales of food and non-alcoholic beverages, the total of these checks for each month in question did not support the Respondent's Profit and Loss Statement for each corresponding month. Based on the Respondent's Profit and Loss Statement and other records furnished by Respondent for the months of January, February, March, and April 1997, the percentage of total gross revenue (sales of food, non-alcoholic beverages, and alcoholic beverages) derived from the sale of food and non-alcoholic beverages for the months of January 1997, February 1997, March 1997, and April 1997 was approximately 45 percent, 46 percent, 46 percent, and 44 percent, respectively.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department enter a final order revoking Respondent's Alcoholic Beverage License, Number SRX4COP 63-04089 DONE AND ENTERED this 2nd day of June 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages And Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32299-0792 Madeline McGuckin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Kenneth Glover, Esquire 505 Martin Luther King, Jr. Avenue Lakeland, Florida 33802
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact: The Respondent, Jamestown In The Grove Apartments Club, Inc., d/b/a Suzanne's In The Grove, (hereinafter referred to as "Suzanne's") holds alcoholic beverage license number 23-1193, license series 11-C. Respondent has held the subject license since December of 1971. For a number of years the Respondent operated at its present location in much smaller premises. Several years ago the buildings where Respondent was located were demolished and a highrise condominium building was erected on the site. Respondent obtained space in the new building and embarked upon a plan to create a larger and fancier facility then it had previously operated. The new improved facility began operations in May of 1983 under the present name of Suzanne's In The Grove. The new improved facility is, in the words of one of the witnesses, "... a high fashion, beautiful people-type disco nightclub in Coconut Grove." The property and furnishings for the new improved facility required an investment in excess of two million dollars. During the planning stages for the new improved facility which opened in May of 1983, Suzanne's retained the services of a consultant who was an expert in the planning and operation of limited membership clubs. The consultant worked with the management of Suzanne's in designing the layout of the premises and in instituting operational procedures designed to maximize the ability of management to control access into the premises. The concepts employed by the consultant were modeled on the procedures used at limited access private clubs on military bases. The premises were specifically designed to facilitate the limitation of access to members and their guests. To that end, the premises had a small doorway, had a desk for checking membership just inside the doorway, and had a narrow stairway that led from the reception desk to the main area of the club. Suzanne's also issued plastic membership cards embossed with the member's name in raised letters. The operations procedures included provisions for a doorman, at least one receptionist at the desk, and at least one employee at the top of the stairs. Often they had more than one employee at the desk and at the top of the stairs. Due to unexpected extremely large crowds of patrons when Suzanne's first opened, they also contracted for additional security personnel to assist their regular employees with access control. As part of the preparation for the opening of Suzanne's the management of the club formulated a set of written policies for employees. Included in these written policies were specific prohibitions against any conduct which would constitute a violation of the alcoholic beverage laws. Each employee was given a copy of these written policies and was required to read the policies and then sign a statement agreeing to comply with the policies and acknowledging that he or she would be fired for any violation of the policies. These policies included a specific prohibition against admitting anyone who was not a member or a bona fide guest of a member. Between the opening of Suzanne's and the dates of the violations charged in this case, Suzanne's had fired employees for admitting people who were not members. Prior to opening in May of 1983, Suzanne's also instituted a policy of requiring periodic polygraph examinations of all employees. The consultant helped them formulate the questions to be asked during the polygraph examinations. The polygraph examinations specifically covered questions as to whether the employee was aware of the members-only regulations, whether the employee had ever distributed a membership card without collecting a membership fee and turning the fee over to the club, and whether the employee had ever let anyone into the club who was not a member or a bona fide guest of a member. If the results of the polygraph examination indicated that an employee was being deceptive about whether he or she had admitted non-members to the club, the employee was terminated. The consultant also assisted the management of Suzanne's in the selection of key employees and participated in the interviews of those employees. From the date of opening through August 28, 1983, Suzanne's sold 3,025 memberships at $50.00 each. Since August 28, 1983, Suzanne's has taken in an additional $198,000.00 in membership fees. Because of the large amount of revenue generated by the sale of memberships, Suzanne's has always been very interested in strict enforcement of the members-only policy. It is in Suzanne's best economic interests to maintain strict enforcement because without such enforcement there would be no reason for anyone to buy a membership and Suzanne's would in all likelihood lose substantial membership revenues. Suzanne's entire marketing concept would have been ruined if people could get in easily without having a membership card. When Suzanne's first opened in May of 1983, all employees were required to attend a meeting at which an attorney specializing in alcoholic beverage law told them about the requirements of the liquor laws in general and about the special provisions of the liquor laws relating to 11-C licenses. All of the employees were specifically told that the sale of alcoholic beverages was restricted to members and their guests. The consultant employed by Suzanne's recommended an emphasis on access control at the door rather than a system of point of sale control because Suzanne's did not have an in-house credit or charge system, which is the best system to use for a point of sale control system. An in-house credit system was prohibitively expensive where membership dues were only $50.00 per person. A typical Dade County club with an in-house credit system has an annual membership fee of $460.00 in addition to an initial fee of $1,000.00 to join. Since the dates of the violations charged in this case Suzanne's has maintained its access control procedure at the door and has added a point of sale control system as well. The point of sale control includes imprinting the membership card on all sales slips. On August 28, 1983, two investigators of the Division of Alcoholic Beverages and Tobacco went to Suzanne's at about 2:20 a.m. They told the doorman ("Robert") that they were not members but that they wanted to go in and look around. The doorman let them in, but told them that if anyone asked they should say they came in with a member. Once inside the premises, each of the DABT investigators ordered and were served an alcoholic beverage. None of the bartenders or barmaids asked if they were members. On September 7, 1983, the same two investigators returned to Suzanne's at approximately 11:40 p.m. They walked past the doorman and other employees and entered the premises. No one tried to determine if they were members. Both investigators ordered and were served an alcoholic beverage. On September 10, 1983, two DABT investigators (one who had been on both prior occasions and one who had not been there before) went to Suzanne's. A line of approximately 300 people were waiting outside to enter Suzanne's. To avoid waiting in the line, the two investigators went near the front of the line and waited until the one who had been there before could get the attention of Robert, the doorman. When he got Robert's attention, he asked Robert if Robert could do them a favor about the line and gave Robert $5.00. Robert took the money and admitted the two investigators without asking whether they were members. One of the investigators was able to order and be served an alcoholic beverage. It was so crowded inside that the other investigator was not able to place an order for an alcoholic beverage. On September 21, 1983, the two DABT investigators who had visited Suzanne's on the first occasions described above returned to the premises. Again they were able to enter without being asked about their membership status and both ordered and were served an alcoholic beverage. None of the DABT investigators who went to Suzanne's on the four occasions described above were members of the Suzanne's, nor were they bona fide guests of anyone who was a member. On each occasion when they were served alcoholic beverages, they paid the regular price for the beverages, approximately $3.50 each. On all four of the occasions described above when the DABT investigators entered Suzanne's and purchased alcoholic beverages, the club was very crowded. The extent of the crowds on those nights is reflected by the gross receipts for those four nights which were, respectively, $10,099.35, $5,125.60, $9,973.25, and $5,034.15. On all four of the occasions described above when DABT investigators entered Suzanne's, there were several employees of Suzanne's both in the area of the reception desk at the bottom of the stairs as well as at the top of the stairs attempting to control access to the premises and maintain control over the crowds. During 1983 Suzanne's was obtaining security services from Dade Federal Security. The security company would provide plainclothes guards to assist Suzanne's employees check membership, to help maintain order, and to help control the line outside when it was especially crowded. Sometime during 1983 the management at Suzanne's complained to Dade Federal Security that they suspected that some of the guards provided by Dade Federal Security had been taking money to admit non-members into the premises. Dade Federal Security confronted its employees with this complaint and one of the employees confessed to having taken money to admit non-members to Suzanne's. The employee was fired. The foregoing findings of fact contain the substance of the vast majority of the findings proposed by both parties. Proposed findings which are not incorporated in the foregoing findings are specifically rejected as irrelevant, as contrary to the greater weight of the evidence, or as unsupported by persuasive competent substantial evidence.
Recommendation On the basis of all of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order in this case dismissing all charges against the licensee. DONE AND ORDERED this 3rd day of July, 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 3rd day of July, 1985. COPIES FURNISHED: Howard Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sy Chadroff, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133
Findings Of Fact On April 2, 1977, respondent discontinued serving full course meals, although the restaurant continued to offer sandwiches. After this change, just as before, respondent sold alcoholic beverages to its patrons. Even earlier, over the period from October of 1976 to March of 1977, records indicated gross sales of alcoholic beverages in the approximate amount of one hundred seventy- nine thousand dollars ($179,000.00) as compared to gross sales of food and nonalcoholic beverages over the same period in the approximate amount of seventy-five thousand dollars ($75,000.00). When petitioner's employee, Officer Boyd, sought to examine respondent's records on April 13 and 14, 1977, he was told by agents of respondent that respondent's records covering the time period before October of 1976, were not available.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's special restaurant license. DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: The Producer's Restaurant, Inc. 3699 Phillips Highway Jacksonville, Florida Mr. J. M. Ogonowski, Esquire District 3, Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section The Johns Building 725 South Bronough Street Tallahassee, Florida 32304
The Issue The issues in these cases are whether the Respondent, Kindred, Inc., d/b/a Raceway Café, should be disciplined for: in Case No. 98-5046 (DBPR Administrative Action Case No. CL-62- 980016), alleged failure to maintain a bona fide restaurant as required of special restaurant (SRX) licensees by Section 561.20(2)(a)(4), Florida Statutes (1997), and Florida Administrative Code Rule 61A-3.0141; and, in Case No. 98-5515 (DBPR Administrative Action Case No. CL-62-9800159), alleged failure to produce records as required of SRX licensees by Florida Administrative Code Rule 61A-3.014.
Findings Of Fact On or about June 26, 1998, the Respondent, Kindred, Inc., applied for a series 4-COP (consumption on premises) special restaurant alcoholic beverage (SRX) license and obtained a temporary 4-COP SRX license (number 62-09319) for the Raceway Café, located at 12670 Starkey Road, Largo, Pinellas County, Florida. The Respondent opened for business on July 2, 1998. On July 13, 1998, at approximately 1:30 p.m., DABT Special Agent Paul Cohen entered licensed premises to inspect and verify compliance with SRX license requirements. It was Cohen's impression that the Raceway Café had adequate service area (over 2,500 square feet) but that there were not enough seating and table settings to serve 150 diners at one time and that the Raceway Café was not a bona fide restaurant. Cohen left and returned at approximately 4:00 p.m. with an intern and a camcorder to video the premises and inspect in detail--i.e., count tables, chairs, plates, and eating utensils. The Respondent's sole owner, Marouane Elhajoui, was present in the premises at the time of the detailed inspection. The evidence was clear that Elhajoui knew the purpose of Cohen's inspection and completely understood the SRX requirements. (He had another SRX license for other premises.) Cohen first videotaped the outside and inside of the licensed premises. Cohen and the intern then counted tables and chairs and found that the licensed premises contained seating for a maximum of 122 people. Of these seats, approximately 80% were bar stools, and there was not enough table space to serve full- course meals at all 122 seats. Several of the bar stools were at the bar counter, which was cluttered with video game machines, and several cocktail tables were too small to accommodate full- course meals for all four or five bar stools placed at those tables. Elhajoui told Cohen about a grand opening celebration that had taken place on the premises on July 11 and 12, 1998. Elhajoui explained that restaurant tables and chairs had been removed from the premises and stored in an adjacent, empty storefront to accommodate a live band and dance floor for the grand opening. Elhajoui told Cohen that, if Cohen would wait, Elhajoui could replace the tables and chairs and have adequate seating in a matter of minutes. Cohen did not dispute Elhajoui's claim or ask to see the stored tables and chairs. He declined the request to wait a few minutes and Elhajoui's offer to replace the tables and chairs. Cohen testified to having no recollection of any conversation with Elhajoui concerning a grand opening, the removal of tables and chairs, or their storage in an empty storefront next door. While raising a question as to Cohen's truthfulness on this point, it could be that Cohen did not recall the conversation because he did not attach great importance to the circumstances explaining why there was inadequate seating at the time of his inspection. After Elhajoui told Cohen that there were more than 150 place-settings in the restaurant, Cohen and the intern were able to count only approximately 75 forks, 96 spoons, and 75 plates. Elhajoui testified that Cohen and the intern did not count either baskets or wooden plates also used to serve meals and did not count eating utensils in boxes in a cabinet under a counter in the kitchen. But Cohen specifically asked Elhajoui to show him all of the plates and eating utensils in the restaurant so that his count would be accurate and fair to the Respondent, and Cohen and the intern counted everything Elhajoui showed them. When Cohen told Elhajoui that he did not have enough plates and utensils, Elhajoui pointed to the "line" and asked if Cohen had counted what was there; Cohen indicated that he had counted those items. Elhajoui never specified any utensils in boxes in the cabinet under the counter. If they were there at the time, it is inexplicable that Elhajoui would not have made sure they were counted. Instead, upon completion of the inspection, Elhajoui read and signed without explanation or excuse an inspection report indicating that there were inadequate plates and eating utensils. It is found that Cohen's count was accurate. It can be inferred based on the facts on July 13, 1998, that the Raceway Café did not have capacity to serve 150 meals at one time at any time between opening on July 2 and July 13, 1998. No such inference can be drawn from the evidence after July 13, 1998. Besides alleging inadequate seating and place settings, Cohen also alleged that the Respondent was not operating a bona fide restaurant. The question whether the Raceway Café is a bona fide restaurant cannot be answered simply by counting tables and chairs and place settings. This allegation raises the more nebulous question of when can a bar be a restaurant, and when does a restaurant become a bar? Cohen based his allegation of "bad faith" on several factors. Starting from the outside, there was a temporary sign advertising drink specials but no food. (Elhajoui explained that the sign was owned and controlled by the shopping center and was advertising for the grand opening; he stated that it usually displayed meal specials.) A sign on the building seemed to describe the Raceway Café as a "Sports Lounge," but being (or having) a "sports lounge" may not necessarily turn a restaurant into a bar. There were neon beer signs in the windows, but they also are not uncommon in bona fide restaurants. Inside the building, there is a rather large bar, and Cohen perceived it to be especially prominent on entering the premises; but there are two other entrances that are not so close to the bar. Cohen was not greeted by a host or hostess or, he thought, any instructions regarding restaurant seating, which he considered normal in a bona fide restaurant; but Cohen overlooked a theme-sign incorporated in a parking meter which stood near one of the other entrances and invited customers to seat themselves. Cohen also overlooked a "chalkboard" used to advertise daily specials common in restaurants. Cohen also noted that there were three dart boards in the bar area, juke boxes, and more theme decorations (a Harley Davidson motorcycle in a corner of the licensed premises, and plans to hang a race car--or at least the side panel of a race car body--from the ceiling), but none of those things in themselves are incompatible with a bona fide restaurant. Finally, Cohen only observed food consumption on one of his visits. But his only extended visit was at 4:00 p.m. on July 13, 1998, and none of the other visits were during normal meal times. Cohen made no mention of the full meal menu that has been used at Raceway Café since its opening. In truth, Cohen's allegation of "bad faith" probably was influenced by his finding of inadequate numbers of tables and chairs and place settings. Cohen returned to the licensed premises on July 14, 1998, to serve DBPR Administrative Action Case No. CL-62-980016. He made no observations on July 14, 1998, that he could recall. Elhajoui and his witness testified without contradiction that the Respondent had enough seating and place settings to serve at least 150 meals at one time on and after July 14, 1998. They also testified without contradiction that the signage advertised meal specials. Cohen returned to the licensed premises on September 2, 1998, to serve a notice to produce all records documenting gross sales of alcoholic beverages and food and non-alcoholic beverages (including source documents--i.e., guest checks) for July and August 1998. Production was required to be made by September 12, 1998, at DABT offices in Clearwater, Florida. Cohen made no observations on September 2, 1998, that he could recall. Elhajoui testified that he attempted to deliver the records on Monday, September 7, 1998, but that the DABT offices were closed for Labor Day. The next day, he telephoned DABT to advise that he had attempted to deliver the records and was told that DABT would be mailing him something he understood to be another administrative complaint. It is doubtful that such a conversation took place since there still were four days in which the Respondent could comply with the notice to produce. The Respondent never produced the requested documentation, and on September 30, 1998, returned to the licensed premises, to serve DBPR Administrative Action Case No. CL-62-9800159. Cohen made no observations on September 30, 1998, that he could recall. The Respondent produced documentation at final hearing establishing that 51.63% of its gross sales in July 1998 and 51.28% of its gross sales in August 1998 were food and non- alcoholic beverages. Based on all the evidence presented, it is found that DABT failed to prove that Raceway Café is not a bona fide restaurant except to the extent that its meal service capacity was inadequate from July 2 through July 13, 1998.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a $1,000 fine and revoking the Respondent's temporary SRX license without prejudice to obtain any other type license, but with prejudice to obtain the same type of special license for 5 years. DONE AND ENTERED this 2nd day of June, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Miriam S. Wilkinson Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1999. Tallahassee, Florida 32399-1007 Joseph N. Perlman, Esquire Belcher Place 1101 Belcher Road, South Largo, Florida 33771 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law. On or about October 20, 1992, Rebecca M. Abdelmuti, wife of Saber Abdelmuti, made application to DABT for the transfer of a 2-APS Alcoholic Beverage License owned by Grandma's Pantry of Florida, Inc. d/b/a Grandma's Pantry #6, to a new business, C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida, owned by Rebecca M. Abdelmuti. In response to Section II, (B) of the application, Rebecca Abdelmuti listed Saber Abdelmuti as having a direct interest in C & O Food Mart. In Saber Abdelmuti's Personal Questionnaire filed with Rebecca Abdelmuti's application, Saber Abdelmuti indicated that he was investing $25,000 ("same as spouse") in C & O Food Mart. In Rebecca Abdelmuti's Personal Questionnaire filed with her application, Rebecca Abdelmuti indicates that she is also investing $25,000 in C & O Food Mart, using money given to her as a gift by her mother. DABT issued a temporary 2-APS Alcoholic Beverage License, number 63- 00859, to Rebecca M. Abdelmuti, d/b/a C & O Food Mart. On October 14, 1992, Rebecca M. Abdelmuti made application to the City of Lakeland for utility service and issued a check to Lakeland Electric for a deposit in the amount of $2,000 drawn on the account of Saber or Rebecca M. Abdelmuti at the Peoples Bank of Lakeland. Subsequent to the deposit being paid to Lakeland Electric, C & O Food Mart's electric bills, from October 1992, through January 1994, were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 in the name of Rebecca M. Abdelmuti with Peoples Bank of Lakeland which account had been opened on October 27, 1992. Saber Abdelmuti was added as a signatory on account number 00361313 on November 2, 1992. Beginning in February 1994, the electric bills were paid by Saber Abdelmuti with checks drawn on a different account in the name of Saber Abdelmuti with the Peoples Bank of Lakeland. In October 1992, Rebecca M. Abdelmuti had GTE Telephone Company (GTE) install a telephone for C & O Food Mart. From October 1992 through March 1994, Rebecca M. Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. The bank records for account number 00361313 with the Peoples Bank of Lakeland (DABT's exhibit 5) show the last payment made by Rebecca M. Abdelmuti to GTE for C & O Food Mart was December 3, 1993. Beginning in April 1994, Saber Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. From October 1992, through January 1994, most of the bills for C & O Food Mart were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. However, numerous bills during this period were paid by Saber Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. The Polk County Occupational License for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993) was issued to Rebecca M. Abdelmuti for C & O Food Mart. The application for the Polk County Occupational License for the fiscal year 1993-1994 (October 1, 1993 through September 30, 1994) was signed by Saber Abdelmuti but issued to Rebecca M. Abdelmuti for C & O Food Mart. On February 21, 1994, an application for the transfer of that license from Rebecca M. Abdelmuti to Saber Abdelmuti was completed and the license was transferred to Saber Abdelmuti for the balance of the fiscal year 1993-1994. The Polk County Occupational License for the fiscal year 1994-1995 (October 1, 1994 through September 30, 1995) was issued to Saber Abdelmuti for C & O Food Mart. The City of Lakeland Occupational Licences numbers 5212 and 5213 for the fiscal year 1992-1993 (October 1, 1992 through September 1993) were issued to Saber Abdelmuti for C & O Food Mart. There was no evidence that an occupational license was issued by the City of Lakeland to Rebecca M. Abdelmuti for C & O Food Mart. On October 31, 1992, Saber Abdelmuti obtained membership in Sam's Club in the business name of C & O Food Mart. Saber Abdelmuti was listed as the primary member and responsible party. Rebecca Abdelmuti and Patel Rajnikan were listed as secondary members. At the time Rebecca M. Abdelmuti filed her application for an alcoholic beverage license her record indicated a previous Beverage Law violation which apparently DABT considered sufficient to disqualify her for licensure. Rebecca M. Abdelmuti apparently chose not to oppose DABT on its position and requested, by letter dated April 13, 1993, that her application for a 2-APS Alcoholic Beverage License be withdrawn. The request was approved on June 19, 1993. At all times pertinent to this proceeding, Saber Abdelmuti has held a valid 2-APS Alcoholic Beverage License. On April 12, 1993, Saber Abdelmuti made application for a 2-APS Alcoholic Beverage License in the name of Saber Abdelmuti d/b/a C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida. A temporary 2-APS Alcoholic Beverage License, number 63-02546 was issued on April 13, 1993, with an expiration date of July 11, 1993. The application was approved on May 13, 1993, and Saber Abdelmuti continues to hold a valid 2-APS Alcoholic Beverage License, number 63-02546. The following items were attached to the application in the licensure file, DABT's exhibit 1: (a) a document from Lakeland Electric & Water indicating that the bill for C & O Food Mart, account number 2000751-13-7, was to be billed to Saber Abdelmuti; (b) copies of the City of Lakeland Occupational License, Nos. 5212 and 5213 issued to Saber Abdelmuti for C & O Food Mart, 431 S. Central Avenue, Lakeland, Florida for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993); (c) a Bill of Sale Absolute wherein Rebecca M. Abdelmuti sold to Saber Abdelmuti "All the inventory and assets in the business named C&O Food Mart located at 431 S Central Ave. Lakeland, Florida 33801"; (d) an Amendment To Lease And Fuel Supply Agreement dated April 12, 1993, wherein Rebecca Abdelmuti was released from Lease and Fuel Supply Agreement (Lease) dated October 12, 1992, leaving "Saber Abdelmuti solely responsible for all of the duties and obligations of the Lease under the Lease" as of April 12, 1993 and; (e) a copy of an unsigned document dated April 8, 1993, wherein Saber Abdelmuti agreed to pay Rebecca Abdelmuti the sum of $35,000 with interest at the rate of 8 per cent annually from April 8, 1993. The Respondent, by signing the application, swore "under oath or affirmation under penalty of perjury . . . that the foregoing information" was "true to the best of" his "knowledge and that no other person or entity except as indicated" in the application had "an interest in the alcoholic beverage license and/or cigarette permit and that all of the . . . persons or entities" listed met "the qualifications necessary to hold an interest in the alcoholic beverage license and/or cigarette permit." The Respondent did not list any other person or entity as having an interest in the alcoholic beverage license being applied for. However, Saber Abdelmuti did list Rebecca Abdelmuti as having advanced him $35,000 for the operation of C & O Food Mart on his Personal Questionnaire filed with his application. As evidenced by the Bill of Sale Absolute, Rebecca Abdelmuti sold to Saber Abdelmuti whatever interest, direct or indirect, that she had in C & O Food Mart. Furthermore, the so called "promissory note" is not collateralized by any interest in C & O Food Mart and therefore, does not represent a security interest in C & O Food Mart. Likewise, there is no evidence of any mortgage (chattel or otherwise) on C & O Food Mart held by Rebecca Abdelmuti. Saber Abdelmuti applied for and was issued a Certificate of Registration in the name of C & O Food Mart by the Department of Revenue on April 20, 1993, authorizing the collection of sales and use taxes for the State of Florida. Sometime around March 31, 1993, Rebecca M. Abdelmuti filed a final Employer's Quarterly Federal Tax Return, Form 941, for the quarter ending on March 31, 1993, for C & O Food Mart with the Internal Revenue Service. By notice dated June 7, 1993, the Internal Revenue Service advised Rebecca M. Abdelmuti that the final Employer's Quarterly Federal Tax Return had been received. This filing is consistent with Rebecca M. Abdelmuti transferring the ownership of C & O Food Mart to Saber Abdelmuti. The transfer of ownership is also consistent with Schedule C, Form 1040, Profit or Loss From Business, the W- 2 Wage and Tax Statement 1993, and the W-3 Transmittal of Wage and Tax Statements 1993, Form 940 EZ, Employer's Annual Federal Unemployment (FUTA) Tax Return, and the final Employer's Quarterly Tax Report and Employer's Quarterly Wage Report to the State of Florida filed by Rebecca M. Abdelmuti during and at the end of the 1993 tax year. Saber Abdelmuti's tax records for the tax year ending December 31, 1993, concerning C & O Food Mart are also consistent with Saber Abdelmuti assuming ownership and control of C & O Food Mart from Rebecca M. Abdelmuti sometime around April 1, 1993. Upon assuming ownership and control of C & O Food Mart in April 1993, Saber Abdelmuti hired Rebecca Abdelmuti to manage C & O Food Mart. Saber Abdelmuti's tax records for the tax year 1993 and 1994 show Rebecca Abdelmuti as an employee of C & O Food Mart. On February 21, 1994, Special Agent West, of the DABT conducted an inspection of the premises of C & O Food Mart, located at 431 Central Avenue, Lakeland, Florida. The licensee of record is Saber Ismail Abdelmuti having been issued Alcoholic Beverage License number 63-02546. On February 21, 1994, during Agent West's inspection of the premises, Rebecca Abdelmuti identified herself as the owner of C & O Food Mart. Later on the same day, Agent West had a telephone conversation with Saber Abdelmuti wherein Saber Abdelmuti told Agent West that he knew Rebecca Abdelmuti did not qualify but he wanted her to have her own business as he did. There was no evidence that Saber Abdelmuti specifically told Agent West that Rebecca Abdelmuti had an interest in C & O Food Mart. However, based on his conversation with Rebecca Abdelmuti and Saber Abdelmuti and the fact that only Saber Abdelmuti's name appeared on the license and Saber Abdelmuti's application for license did not show Rebecca M. Abdelmuti as having an interest in C & O Food Mart Agent West decided to investigate further. After inspecting the records of C & O Food Mart, Agent West determined that Rebecca M. Abdelmuti had either a direct or indirect interest in C & O Food Mart and that Saber Abdelmuti had failed to divulge the interest of Rebecca M. Abdelmuti in his application for an alcoholic beverage license. Sometime around the first of March 1994, the C & O Food Mart accounts with GTE and Lakeland Electric were changed to reflect Saber Abdelmuti as being the person solely responsible for the payment of those accounts; the 1993-1994 Polk County Occupational License for C & O Food Mart was transferred to Saber Abdelmuti; and a new bank account was opened in the name of Saber Abdelmuti, d/b/a C & O Food Mart with the Peoples Bank of Lakeland, from which account all C & O Food Mart bills are being paid. It is clear from the record that Rebecca M. Abdelmuti was employed by Saber Abdelmuti as manager of C & O Food Mart after Saber Abdelmuti assumed ownership and control of C & O Food Mart. While Rebecca Abdelmuti receives a salary for managing C & O Food Mart, her salary is not percentage payment from the proceeds of C & O Food Mart and there is no evidence that Rebecca Abdelmuti has any right to a percentage payment from the proceeds of C & O Food Mart. It is equally clear that Rebecca M. Abdelmuti did not have any interest, as contemplated by the language of the Chapter 561, Florida Statutes, or the language of the application, particularly the language of the oath or affirmation in the application, in Respondent's alcoholic beverage license or the business of C & O Food Mart at the time Saber Abdelmuti filed his application for an alcoholic beverage license or any time subsequent to Saber Abdelmuti filing his application for an alcoholic beverage license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that a final order be entered dismissing the Administrative Action filed herein against Saber Abdelmuti. RECOMMENDED this day 28th of August, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1279 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); 9(19-20); 10-11(5); 12(7); 13(8); 14(20); 15(9); 16(6); 17(4-5); and 18(19). Respondent's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); and 9(14-17). COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tony C. Dobbs, Esquire 740 South Florida Avenue Post Office Box 2657 Lakeland, Florida 33806-2657
The Issue The issues for resolution in this proceeding are whether the Respondent committed the violations alleged in an administrative complaint, as amended, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Mano's, Inc., doing business as Sea Port (Mano's) is now and has at all relevant times been a licensee of the Division of Alcoholic Beverages and Tobacco (DABT) holding a 4 COP SRX special restaurant license. Mano's operates a restaurant and lounge located in Cape Canaveral, Brevard County, Florida. Mano's license requires that at least 51 of its gross retail sales be served from food and non-alcoholic beverages. Mano's license application clearly acknowledges this and the requirement that it maintain a bona fide restaurant with 4000 square feet of floor space and seating for 200 patrons. Raymond Joseph Cascella is the president, sole corporate officer, and sole stockholder of Mano's. Attached to his license application dated May 14, 1991, is his sketch of the licensed premises. The instructions on the application provide that the sketch must include all specific areas which are part of the premises sought to be licensed. The sketch provided by Mr. Cascella includes the bar, restrooms, dining rooms, and kitchen. On September 10, 1996, Sam Brewer, then a special agent with DABT, conducted an inspection of Mano's licensed premises. Special Agent Brewer found several violations on his visit; he spoke with Mr. Cascella and gave Mr. Cascella a copy of the inspection report and three notices related to the violations. The violations observed and noted by Special Agent Brewer were improper display of the facility license (in the office rather than conspicuously displayed), insufficient seating (160 seats rather than 200), and failure to maintain sales receipts or other records to document that the 51 percent non- alcoholic beverages and food requirement was met. One of the notices provided to Mr. Cascella stated that no later than September 25, 1996, he must bring to the Rockledge DABT office records pertaining to total sales of food, non- alcoholic, and alcoholic beverages for the period June 1, 1996, through September 10, 1996. Mr. Cascella came to the Rockledge office on September 25, 1996, but the records he brought were computerized summaries of credit card transactions and did not reflect a break-out of sales of alcoholic beverages and non-alcoholic beverages and food. There were no guest receipts nor register tapes (also called "z-tapes") provided. On September 30, 1996, Special Agency Brewer issued another notice to Mano's. The notice, signed by Mr. Cascella, directs the licensee to produce these records to the Rockledge DABT district office no later than October 15, 1996, or administrative changes would be brought against the alcoholic beverage license: All records relating to gross retail sales of food and non-A/B and all records relating to gross retail sales of A/B (including source documents) (i.e., Z-tapes, waitress order checks), for the period June 1, 1996 thru September 10, 1996. All records relating to purchases of food and non-A/B and all records relating to purchases of A/B, for the period June 1, 1996, thru September 10, 1996. (Petitioner's Exhibit No. 4) Mr. Cascella returned to the Rockledge office on October 15, 1996, with a box of papers. These papers were records of purchases made from different vendors but there were no records of any retail sales by Mano's. In spite of letters to Special Agent Brewer from Mano's counsel promising full compliance and in spite of Mr. Cascella's several efforts, Mr. Cascella never produced all of the required records for the relevant period (June 1, 1996 through September 10, 1996). At the hearing in this proceeding Mr. Cascella submitted a large plastic ziplock bag stuffed with register receipts from June 1, 1996, through September 10, 1996. Mr. Cascella thought he had shown these or copies to Special Agent Brewer but was not sure. Mr. Cascella also conceded that the tapes were not complete, as they were only from the cash register at the bar, and none were from the register in the restaurant. Thus, the receipts reflected mostly liquor sales for each day, and very little food. (Transcript pp. 231-238) On February 7, 1997, Special Agent Brewer sent an official notice to Mano's informing the licensee that DABT intended to file administrative charges for failure to produce records as requested, in violation of Section 561.29(1)(j), Florida Statutes. On March 8, 1997, Special Agent Brewer, two other DABT agents, and several officers or agents from other law enforcement agencies appeared at Mano's licensed premises in Cape Canaveral. Mr. Cascella, who lived upstairs with his wife, was summoned by the bartender and came downstairs immediately. Mr. Cascella was very upset and told the officers that they had no right to be there without a search warrant. Throughout the inspection he remained very vocal and argumentative. Special Agent Brewer was looking for food items as part of his inspection and he requested that Mr. Cascella grant access to a locked area within the kitchen, a walk-in cooler or freezer. When Mr. Cascella refused, Special Agent Brewer informed him that the refusal was a violation of the law and he could be arrested. Eventually during the inspection the agents gained access to the area only after they cut the lock. Mr. Cascella was arrested for his refusal to stop interfering with the inspection and for his persistent and obstreperous comments during the agents' questioning of the bartender. Between October 1996, and December 1996, Jane Davis, an auditor with DABT conducted a surcharge audit of Mano's for the period July 1, 1993, through June 30, 1996. Mr. Cascella was cooperative and had the records available for Ms. Davis' review. She did not conduct an SRX audit requested by Special Agent Brewer, as she was being transferred from Rockledge to Lakeland and she could not take on the task of reviewing all of the Z- tapes for a long period of time. The surcharge audit Ms. Davis conducted was for a purpose different from the determination of percentage of alcohol sales and non-alcohol sales; her audit period, and consequently the records she reviewed, were not the June 1, 1996, through September 10, 1996, period addressed in the notices of violation issued by Special Agent Brewer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter its final order finding that Respondent violated Rule 61A-3.0141, Florida Administrative Code, and Section 562.41(3), Florida Statutes, and imposing civil penalties of $250 and $1,000, respectively, for a total of $1,250. DONE AND ENTERED this 29th day of August, 2000, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2000. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Allen C. D. Scott, II, Esquire Scott & Sheppard, P.A. 101 Orange Street St. Augustine, Florida 32084 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.
Findings Of Fact In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1) Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3) John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4) Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4) On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . . . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)
The Issue Whether "[o]n or about January 16, 2009, Respondent [the holder of an SR license] failed to maintain a restaurant . . . contrary to and in violation of [s]ection 561.20(2), Florida Statutes (1953), within [s]ection 561.20(5), Florida Statutes (2008), within [s]ection 561.29(1)(a), Florida Statutes (2008),"2 as alleged in the Fourth Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all material times, the holder of alcoholic beverage license number 23-02630, Series 4COP/SR (Subject License), which is a "Special Restaurant" or "SR" license issued by Petitioner. The location of the licensed premises is 17190 Collins Avenue, Sunny Isles Beach, Florida, where Respondent operates Epicure Gourmet Market and Café (Epicure) in a structure having 34,000 square feet of interior space, 10,000 to 12,000 square feet of which is open to the consuming public. The Rascal House, an eating establishment specializing in comfort food, formerly occupied this location. The Rascal House opened in 1954 and was operated under the Subject License from December 30 of that year until March 30, 2008, when it was shuttered. For the final twelve years of its existence, the Rascal House was owned and operated by Jerry's Famous Deli, Inc., Respondent's parent corporation. Respondent acquired the Rascal House property and the Subject License from Jerry's Famous Deli in 2008. After spending $7.5 million on renovations to the property,3 Respondent reopened the venue as Epicure on October 7, 2008, and has done business under that name at the former Rascal House location since. Petitioner approved the transfer of the Subject License to Respondent on October 27, 2008, following an inspection of the premises of Epicure by one of Petitioner's Special Agents, Bradley Frank, who found that all statutory requirements for "SR" licensure were met. In the summer of 2008, prior to the opening of Epicure, Respondent, through its Chief Financial Officer, Christina Sperling, submitted a Request for Initial Inspection and Food Permit Application with the Florida Department of Agriculture and Consumer Services, Division of Food Safety (DACS), in which it described Epicure as a "[f]ood market with indoor/outdoor seating area; but not a service restaurant." At the time of the filing of the Food Permit Application, Respondent had no intention of using waiters or waitresses to serve Epicure's patrons, although it did intend for these patrons to be able to purchase food and beverage items for consumption on the premises. Before Epicure opened, Respondent was granted a DACS Annual Food Permit, "Supermarket"-type, for the establishment, a permit it continues to hold today. On February 11, 2009, and again on July 28, 2009, Respondent applied to the Department of Business and Professional Regulation, Division of Hotels and Restaurants (H&R) for a "public food service establishment"4 license for Epicure. Both applications were denied by H&R because Epicure was licensed (properly so, in the opinion of H&R) by DACS. The DACS permit is not the only license Respondent has for Epicure. It also has a retail license, a food market license, and a restaurant-outside dining license, all issued by the City of Sunny Isles Beach. Respondent has held these City of Sunny Isles Beach-issued licenses since 2008. On January 16, 2009, the date of the violation alleged in the Fourth Amended Administrative Complaint, Epicure had the necessary equipment and supplies (including those in its 4,000 to 5,000 square foot kitchen where food was prepared) to provide, and it did provide, patrons full course meals (including ready to eat appetizer items, ready to eat salad items, ready to eat entree items, ready to eat vegetable items, ready to eat dessert items, ready to eat fruit items, hot and cold beverages (non-alcoholic and alcoholic), and bread) for on- premises consumption at indoor and outdoor tables5 (Eating Tables) having a total seating capacity in excess of 200 and occupying more than 4,000 square feet of space.6 There were no waiters or waitresses, at that time, to take orders from, and to serve food and beverages to, patrons sitting at the Eating Tables.7 The patrons themselves brought to their Eating Tables the food and beverages they consumed there--food and beverages they obtained from manned counters (in the hot food, raw meat/fresh seafood,8 deli, bakery, and bar areas); from the fresh produce area; and from the cases, shelves, and tables where packaged food and drink items were displayed for sale. Epicure employees were stationed in the areas where the Eating Tables were located to assist patrons who wanted tableware, a glass of ice water, a packaged item (such as soup) to be opened or warmed, or their table to be cleaned. Not all of the items sold at Epicure on January 16, 2009, were consumed on the premises. True to its name, Epicure had not only a bona fide "café" operation, it also operated as a "market" where patrons shopped for "gourmet" food and other items for off-premises consumption and use. Among the food and beverage items for sale were raw meat and fresh seafood; dairy products; ready to eat deli meats and cheeses, including those packaged by the manufacturer; packaged grains; packaged stocks, including vegetable, beef, seafood, and chicken stock; condiments, including jams, jellies, and caviar; sauces; spices; eggs; chips, popcorn, and nuts; packaged crackers and cookies; ingredients (other than meat and seafood) for salads, dips, and dressings; cooked and other prepared foods ready to eat; baked bread and other bakery items; candy; fruit and other fresh produce; bottles of wine, liquor, and beer, as well as non- alcoholic beverages, including water; and packaged tea. Among the non-food items for sale were flowers; glassware; candles; napkins, paper and plastic plates and cups, and eating and serving utensils; paper towels; toilet paper; toilet bowel cleaner; wine and liquor opening devices and equipment; publications relating to alcoholic beverage products; cookbooks; and personal care and over-the-counter health care items. Shopping carts were available for patrons to use in the establishment to transport items selected for purchase. These items were paid for at the same cash registers (at the front of the establishment) where food and beverages consumed on the premises were paid for. There was considerable overlap between Epicure's "café" and "market" operations in terms of space used and items sold. Both the "café" and the "market" were fundamental and substantial components of Epicure's business, and they worked together synergistically. The record evidence does not clearly and convincingly reveal that Epicure's "café" operation was merely incidental or subordinate to its "market" operation, or that its "café" was in any way operated as a subterfuge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issue a final order dismissing the Fourth Amended Administrative Complaint in its entirety. DONE AND ENTERED this 24th day of October, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2011.
