Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: D.H.S. Developers, Inc. (hereinafter designated as D.H.S.) was the owner of the World Inn, a motel located in Lake Beuna Vista, Florida. Petitioner, Jarman A. Smith, was initially employed by World Inn before it opened as director of sales. The restaurant located within the World Inn was having problems with respect to the quality of food and service. D.H.S. then asked petitioner Smith to begin operation of the restaurant and of the bar and lounge. In June of 1973, petitioner began operation of the restaurant under an oral agreement with D.H.S. This agreement was intended to be reduced to writing, but a written contract never materialized. Pursuant to the oral agreement, petitioner was to operate and manage the restaurant facility, which occupied 5,000 to 6,000 square feet of the World Inn, and to remit on a monthly basis to World Inn a certain percentage (between 10 percent and 12 1/2 percent) of the gross sales from the dining room and gift shop. D.H.S. owned the heavy equipment and the fixtures located in the restaurant and was responsible for repairing and maintaining the premises in good condition. D.H.S. initially owned the food items and expendables, such as plates, utensils, table accessories, etc. When petitioner began operation of the restaurant, he paid a security deposit for these items and was responsible for maintaining them at the level necessary for operation of the facility. The petitioner had the responsibility to keep and maintain insurance on the premises, to pay the restaurant employees salaries, taxes and insurance and to hire and fire employees. Petitioner testified that the owners of D.H.S. came into the restaurant facility on a daily basis and sometimes gave instructions to the restaurant employees. Petitioner obtained an occupational license for the restaurant in his name and maintained a business bank account for the operation of the restaurant. Petitioner also managed and operated the bar and lounge during the same period of time. Under this arrangement, which was also pursuant to an oral agreement, all sale receipts were turned over to D.H.S., from which D.H.S. paid all salaries, expenses and bills and kept 12 1/2 percent. Any balance remaining was given to petitioner. D.H.S. was responsible for the operational expenses of the bar and lounge, for obtaining all business and occupational licenses and for repairing and maintaining the premises in good condition. Guests of the motel could charge their meals and drinks to their room. When a meal was charged, D.H.S. would pay the petitioner the amount charged, less a certain percentage for handling. When drinks were charged, that money was kept in the D.H.S. account. In November of 1975, when the restaurant was doing well financially, D.H.S. informed petitioner that it was going to take back the operation of the restaurant. Within a week, petitioner was required to turn everything over to D.H.S. D.H.S. paid petitioner only for the value of the food and expendable inventories left on the premises. The respondent Department of Revenue determined that a four percent sales tax was due on the ten percent monthly payment made by petitioner to World Inn based on the gross sales from the restaurant. Respondent thus issued assessments to both World Inn and petitioner. The assessment against World Inn was stayed pending the outcome of these proceedings.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's assessment of a tax based upon the petitioner's monthly payment to World Inn of a percentage of gross receipts from the restaurant facility be rescinded and set aside. Respectfully submitted and entered this 6th day of March, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Benton, Esquire Smith, Young and Blue, P.A. Post Office Box 1833 Tallahassee, Florida 32302 Joseph C. Mellichamp Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 William H. Muntzing, Esquire Post Office Box 1568 Winter Park, Florida 32789
The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the proposed Rules 61A-7.006, 61A-7.007, 61A-7.008, and 61A-7.009, constitute a valid exercise of delegated legislative authority, as such term is defined in Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Based on the evidence, the following findings of fact are determined: The State of Florida, Department of Business and Professional Regulation (Respondent), is the state agency responsible for adopting the proposed rules which are the subject matter of this proceeding. The Division is vested with general regulatory authority over the alcoholic beverage industry within the state. The Division issues both general and special alcoholic beverage licenses. The general licenses which permit consumption of alcoholic beverages on the premises of a business are: 1-COP licenses which permit consumption of beer and certain wine and distilled spirit products; 2-COP licenses which permit consumption of beer, wine, and certain distilled spirit products; and 4-COP licenses which permit the consumption of beer, wine, and all distilled spirits. Quota licenses are issued based on the population of the county and are limited in number. In addition, a quota license allows consumption on the premises of beer, wine, and distilled spirits. Standing and/or Identification of the Parties The parties stipulated in the Joint Pre-Hearing Stipulation to the standing of Bowling Centers Association of Florida, Inc. (BCAF), Shore Lanes, Inc., and Sanford Finklestein. The parties agreed at hearing that Sarah Lynch would be voluntarily dismissed as a Petitioner. BCAF is a non-profit Florida corporation with its principle place of business in Orlando, Florida. It is composed of owners of bowling centers throughout the State of Florida. Its purpose is representing the interests of its member bowling centers. This purpose includes matters of rule adoptions that would affect or concern bowling centers. All members of BCAF are bowling centers that may hold either a special bowling license (SBX) or a general alcoholic beverage license. Shore Lanes, Inc., is the owner/operator of a bowling center located in Merritt Island, Florida. Shore Lanes, Inc., currently holds an SBX license, but is eligible to hold a general alcoholic beverage license. Sanford Finklestein is the general manager and part- owner of Shore Lanes, Inc., as well as the current president of BCAF. Finklestein is substantially affected because establishments holding general alcoholic beverage licenses are classified as enclosed indoor workplaces. Florida Clean Indoor Air Act Article X, Section 20 of the Florida Constitution, "the Florida Clear Indoor Act," was adopted by the electorate in May 2002, as "a Florida health initiative to protect people from the health hazards of second-hand tobacco smoke." It contains a far-reaching prohibition against smoking in enclosed indoor workplaces. A very limited exception from this general prohibition was provided for "stand-alone bars," as such term was defined in subsection (c)(8) of the amendment. (8) "Stand-alone bar" means any place of business devoted during any time of operation predominately or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises; in which the serving of food, if any, is merely incidental to the consumption of any such beverage; and that is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue. The amendment further provided in subsection (d) for legislative implementation of this amendment in a manner which could be more, but not less, restrictive than the provisions of the amendment. On June 23, 2003, the Governor of Florida signed House Bill 63-A into law to implement Article X, Section 20 of the Florida Constitution. It was denominated as Chapter 2003-398, Laws of Florida, and this statute substantially revises Chapter 386, Florida Statutes (2002), which is commonly referred to as the Florida Clean Indoor Air Act. Section 386.2125, Florida Statutes (2003), requires the Department of Health and Respondent, in consultation with the state fire marshal, to adopt rules pursuant to Subsection 120.536(1) and Section 120.54, Florida Statutes (2003), to implement the provisions of Chapter 386, Part II, Florida Statutes (2003), within each agency's specific areas of regulatory authority. The Legislature, in implementing Article X, Section 20 of the Florida Constitution, enacted Section 386.204, Florida Statutes (2003), which prohibits smoking in enclosed indoor workplaces, except as provided in Section 386.2045, Florida Statutes (2003). Section 386.2045, Florida Statutes (2003), provides that smoking may be permitted in a: (4) Stand-Alone Bar--A business that meets the definition of a stand-alone bar as defined in s. 386.203(11) and otherwise complies with all applicable provisions of the Beverage Law and this part. A stand-alone bar is defined in Subsection 386.203(11), Florida Statutes (2003), as follows: (11) "Stand-alone bar" means any licensed premises devoted during any time of operation predominantly or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises; in which the serving of food, if any, is merely incidental to the consumption of any such beverage; and the licensed premises is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace, including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this subsection if the licensed premises derive no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises. Prior Litigation The Division previously was involved in rule challenge proceedings concerning the stand-alone bar exemption. Bowling Centers Association of Florida, Inc. v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 03-4776RP (DOAH March 26, 2004). In that case, ALJ Staros concluded that the Division exceeded its grant of rulemaking authority in three of the four rules proposed at the prior hearing. ALJ Staros found three of the proposed rules to be arbitrary by failing to take into consideration a licensee's predominate business and, also, by permitting the use of gross revenue from sources other than the sale of food and alcoholic beverages to render the provision "predominately or totally devoted" to serving alcoholic beverages. The text of the invalidated proposed rules as published in their final form in the Florida Administrative Code Weekly on October 10, 2003, is as follows: 61A-7.007 Formula for Compliance With Required Percentage of Gross Food Sales Revenues In order to determine compliance, the division shall use the formula of gross food sales revenue, including but not limited to non-alcoholic beverages, divided by gross total sales revenue, in any consecutive six- month period. The results of the formula will represent the percentage of food sales revenues as defined herein as in s. 561.695, Florida Statutes. Specific Authority 386.2125, 561.695(9), FS. Law Implemented 386.203(11), 561.695(6), FS. History-New 61A-7.008 For Percentage of Gross Alcohol Sales Revenue Formula. In order to determine compliance, the division shall use the formula of gross alcohol sales revenue divided by gross total sales revenue, in any consecutive six-month period. Specific Authority 386.2125, 561.695(9), FS. Law Implemented 386.203(11), 561.695(6), FS. History-New 61A-7.009 Method Used to Determine Whether an Establishment is Predominantly Dedicated to the Serving of Alcoholic Beverages. In order to determine whether an establishment, other than one holding a specialty license designated in Rule 61A-7.003, F.A.C., is predominantly dedicated to the serving of alcoholic beverages, the division shall compare the percentage of gross food sales revenue with the percentage of gross alcohol sales revenue. If the percentage of gross alcohol sales revenue is greater than that of the gross food sales revenue, an establishment is deemed predominantly dedicated to the serving of alcoholic beverages. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(6), FS. History-New 29 Fla. Admin. W. 4021-4022 (October 10, 2003). The Proposed Rules The revised proposed Rules 61A-7.006, 61A-7.007, 61A-7.008, and 61A-7.009 were drafted in response to legislation that implemented Article X, Section 20 of the Florida Constitution. The basis for the proposed rules is information derived from telephone calls, committee hearings, legislative staff interaction, town hall meetings, rule workshops, rule hearings, senators, and representatives. The text of the proposed rules as published in their final form in the Florida Administrative Weekly on March 11, 2005, is a follows: 61A-7.006 Records Required to Maintain the Designation Stand-alone bars holding an "ss" or "ssf" designation shall maintain records to substantiate reports, affidavits and designation qualifications. Records of all purchases of food, all gross retail sales of alcohol for consumption on the licensed premises, all gross retail sales of alcohol for consumption off the licensed premises, all gross retail sales of food sold for consumption on the premises, all gross retail sales of food sold for consumption off the premises, and gross revenue from all other sales shall be separately documented. Stand-alone bars holding an "ss" or "ssf" designation shall maintain complete and accurate records of all sales and purchases. Records shall include, but are not limited to, purchase invoices, sales tickets, inventory records, receiving records, cash register journal tapes, on premises food sales records, computer records generated from automatic dispensing devices, Department of Revenue Sales Tax Returns, and any other record documenting sales. Sales records shall be sequentially organized by month and year and include a monthly statement summarizing the total sales revenue, food revenue and percentage of food revenue for each month. Specific Authority 386.2125, 561.695(9), FS. Law Implemented 386.203(11), 561.695(6), FS. History-New 61A-7.007 Formula for Compliance With Required Percentage of Gross Food Sales Revenues. In order to determine compliance, the division shall use the formula of gross food sales revenue from the sale of food the licensee sells for consumption on premises, including but not limited to non-alcoholic beverages, divided by gross total sales revenue, in any consecutive two month period. The results of the formula will represent the percentage of food sales revenues as defined herein and in Section 561.695, Florida Statutes. Specific Authority 386.2125, 561.695(9), FS. Law Implemented 386.203(11), 561.695(6), FS. History-New 61A-7.008 For Percentage of Gross Alcohol Sales for Consumption on the Licensed Premises Revenue Formula In order to determine compliance, the division shall use the formula of gross alcohol sales revenue from the sale of alcohol the licensee sells for consumption on premises, divided by gross total sales revenue, in any consecutive two-month period. Specific Authority 386.2125, 561.695(9), FS. Law Implemented 386.203(11), 561.695(6), FS. History-New 61A-7.009 Method Used to Determine Whether an Establishment is Predominately Dedicated to the Serving of Alcoholic Beverages. In order to determine whether an establishment, other than one holding a specialty license designated in rule 61A-7.003, F.A.C., is predominately dedicated to the serving of alcoholic beverages for consumption on the licensed premises, the division shall compare the percentage of gross alcohol revenue from the sale of alcohol the licensee sells for consumption on the premises with the following categories of revenue: For stand-alone bars holding the "ss" designation: the percentage of gross alcohol sales revenue from the sale of alcohol the licensee sells for consumption off the premises where the purchaser is required to enter, the percentage of gross alcohol sales revenue from the sale of alcohol the licensee sells for consumption off the premises where the purchaser is not required to enter the premises, and the percentage of gross revenue from any source not included in the alcohol categories above. If the percentage of gross alcohol sales revenue from the sale of alcohol the licensee sells for consumption on premises is greater than that of the gross sales revenue from each individual category of gross sales in 61A-7.009(1)(a)-(c), an establishment is deemed predominately dedicated to the serving of alcoholic beverages. For stand-alone bars holding the "ssf" designation: the percentage of gross food sales revenue from the sale of food the licensee sells for consumption on premises, the percentage of gross food sales revenue from the sale of food the licensee sales for consumption off premises, the percentage of gross alcohol sales revenue from the sale of alcohol the licensee sells for consumption off the premises, and the percentage of gross revenue from any source not included in the food and alcohol categories above. If the percentage of gross alcohol sales revenue from the sale of alcohol the licensee sells for consumption on premises is greater than that of the gross sales revenue from each individual category of gross sales in 61A-7.009(2)(a)-(d), an establishment is deemed predominately dedicated to the serving of alcoholic beverages. Specific Authority 386.2125, 561.695(9), FS. Law Implemented 386.203(11), 561.695(6), FS. History-New 31 Fla. Admin. W. 964-965 (March 11, 2005). Applicable Statutes The provision within the Florida Statutes that outlines the "12-month affidavit" reads as follows: After the initial designation, to continue to qualify as a stand-alone bar the licensee must provide to the division annually, on or before the licensee's annual renewal date, an affidavit that certifies, with respect to the preceding 12-month period, the following: No more than 10 percent of the gross revenue of the business is from the sale of food consumed on the licensed premises as defined in s. 386.203(11). Other than customary bar snacks as defined by rule of the division, the licensed vendor does not provide or serve food to a person on the licensed premises without requiring the person to pay a separately stated charge for food that reasonably approximates the retail value of the food. The licensed vendor conspicuously posts signs at each entrance to the establishment stating that smoking is permitted in the establishment. The division shall establish by rule the format of the affidavit required by this subsection. § 561.695(5), Fla. Stat. (2005). The provision within the Florida Statutes that outlines the "36-month certified public accountant evaluation" reads as follows: Every third year after the initial designation, on or before the licensee's annual license renewal, the licensed vendor must additionally provide to the division an agreed upon procedures report in a format established by rule of the department from a Florida certified public accountant that attests to the licensee's compliance with the percentage requirement of s. 386.203(11) for the preceding 36-month period. Such report shall be admissible in any proceeding pursuant to s. 120.57. This subsection does not apply to a stand-alone bar if the only food provided by the business, or in any other way present or brought onto the premises for consumption by patrons, is limited to nonperishable snack food items commercially prepackaged off the premises of the stand-alone bar and served without additions or preparation; except that a stand-alone bar may pop popcorn for consumption on its premises, provided that the equipment used to pop the popcorn is not used to prepare any other food for patrons. § 561.695(6), Fla. Stat. (2005). The provision within the Florida Statutes that authorizes the Division to promulgate rules regarding the enforcement and administration of Section 561.695, Florida Statutes (2005), and Chapter 386, Part II, Florida Statutes (2005), reads as follows: (9) The division shall adopt rules governing the designation process, criteria for qualification, required recordkeeping, auditing, and all other rules necessary for the effective enforcement and administration of this section and part II of chapter 386. The division is authorized to adopt emergency rules pursuant to s. 120.54(4) to implement the provisions of this section. § 561.695(9), Fla. Stat. (2005). The provision within the Florida Statutes that defines an "invalid exercise of delegated legislative authority" reads, in pertinent part, as follows: (8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies: * * * (c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.; * * * (e) The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; . . . . § 120.52(8), Fla. Stat. (2005). Objections of Petitioner Petitioners challenge the proposed rules in the present case as constituting an invalid exercise of delegated legislative authority. Petitioners argue that Subsection 386.203(11), Florida Statutes (2005), limits a stand-alone bar to selling only alcoholic beverages and food for consumption on the premises. Petitioners assert that proposed Rule 61A-7.006 constitutes an invalid exercise of delegated legislative authority by authorizing the receipt of gross revenues from and the consideration of records regarding sales by a stand-alone bar received from other than the sale of food or alcoholic beverages for consumption on the premises. Petitioners also assert that proposed Rules 61A-7.007 and 61A-7.008 are invalid exercises of delegated legislative authority for the reason that the two-month period for determining compliance with the stand-alone bar requirement of Subsection 386.203(11), Florida Statutes (2005), is contrary to such statute's directive that compliance must be maintained "at any time"; would permit a stand-alone bar to violate on repeated occasions during the audit period, the "incidentals sales" requirement that no more than 10 percent of gross revenues be from the sale of food for consumption on the premises; and is contrary to the prior Final Order in DOAH Case No. 03-4776RP, which found that a substantially identical proposed rule, in which the audit period was six months, constituted an invalid exercise of delegated legislative authority. Petitioners further assert that proposed Rule 61A-7.009 is an invalid exercise of delegated legislative authority in that it violates the statutory requirements of Subsection 386.203(11), Florida Statutes (2005), that a stand- alone bar sell only alcoholic beverages and food for consumption on the premises; permits a stand-alone bar to derive approximately 25 percent or less of its gross revenue from the sale of alcoholic beverages for consumption on the premises and be deemed by the Division to be "predominantly devoted" to the sale of alcoholic beverages for consumption on the premises, and is only a non-substantive, cosmetic change from the previous proposed Rule 61A-7.009 held invalid in DOAH Case No. 03-4776RP. Based on the testimony of Brenda Olsen, assistant CEO for the American Lung Association of Florida and director of Governmental Affairs, during the 2003 legislative session in which House Bill 63-A was passed, the Florida House of Representatives and Senate had conflicting views of the legislation at first. The House version contemplated eliminating the stand-alone bar exemption while the Senate version would allow 25 percent food sales. Tampa Lanes is a bowling alley in the Tampa area that has purchased a quota liquor license in order to operate as a stand-alone bar, and is a 50-lane bowling center that consists of around 175 game machines, which is one of the larger machine set-ups in the bowling industry. The Division's Position The Division's proposed two-month auditing period is analogous to the method in which the Division currently audits SRX licensed premises. There are statutory restrictions on what may be sold in some establishments licensed to sell alcoholic beverages, but no statutory limits exist specifically for stand-alone bars. Richard Law has been a CPA in Florida since 1977 and has been qualified as an expert in accountancy in state administrative hearings, federal administrative hearings, federal district court, and the circuit court. Law was recognized as an expert. Based on his testimony, the typical audit period is a year. A yearly audit is a true and accurate representation of a business's practice. A daily audit would be susceptible to skewed results. For example, a tour bus may stop alongside a bar resulting in that particular days' food sales being abnormally high. Those particular days' sales would not be representative of the true nature of the bar's business practices. Michael Martinez, special counsel to the Department of Business and Professional Regulation, was involved with the legislative process in drafting legislation that implemented Article X, Section 20 of the Florida Constitution. In addition to the input received from the Legislature, there was input from public workshops, public hearings, and numerous telephone calls from concerned business owners.
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a restaurant where alcoholic beverages are served pursuant to a license issued by Petitioner, continued to sell alcohol after the service of full course meals had stopped, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Barrett Enterprises, Inc. ("Barrett"), d/b/a Stuart Grill & Ale ("Stuart Grill"), has held a Special Restaurant License (an "SRX license"), which authorizes the licensee to sell alcoholic beverages secondary to the service of food and non-alcoholic beverages. Consequently, Barrett is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). Barrett employs approximately 50 people to work at Stuart Grill, which is an establishment located in Martin County, Florida. Stuart Grill grosses nearly $2 million annually on food sales. In 2007, Barrett collected and remitted roughly $100,000 in sales tax on revenue from its food service operation. It sells 60,000 pounds, more or less, of chicken wings each year. In short, Stuart Grill is a bona fide restaurant.2 On two occasions——once on September 20, 2007, and again on October 19, 2007——four agents of the Division visited Stuart Grill late in the evening, around 11:00 p.m. They were conducting an investigation to determine whether "full course meals" (a term of art that will be discussed below) were available at all times when the restaurant was serving alcoholic beverages. (One of the conditions of holding an SRX license is that the licensee must make full course meals available while selling alcohol.) The two investigative visits followed the same pattern. Each time, the agents seated themselves at a booth in the main dining room, which was not crowded. The waitress (a different one each time) informed the agents that the kitchen was closed and, therefore, that they would need to order from the "Late Nite Menu," which was provided. The Late Nite Menu contained a limited number of items, namely: mozzarella sticks, beer battered "veggies" (mushrooms or onion rings), chicken strips, dolphin bites, conch fritters, fried critters (clam strips or grouper strips), fried calamari, smoked fish dip, and chicken wings. Each time, an agent tried to order a hamburger and was told that hamburgers were not available. Both times, the agents ordered (and were served) chicken wings, a couple of sodas, and beer.3 Neither visit lasted more than roughly half an hour. Dean Barrett, one of the restaurant's owners, testified credibly that the Late Nite Menu which was given to the agents was actually a bar menu; patrons in the main dining room should not have been instructed that they could order only from the Late Nite Menu, as apparently happened when the Division's agents went to Stuart Grill in September and October 2007. The undersigned accepts Mr. Barrett's testimony in this regard as truthful and finds that the waitresses (neither of whom was identified) who served the agents did not act in accordance with their employer's directives on those occasions. Regardless of that, however, the evidence fails to establish that "full course meals" were not available. As will be seen below, the term "full course meal" is defined for this purpose as a meal consisting of a salad or vegetable, an entrée, a beverage, and bread. When the Late Nite Menu is reviewed with this definition in mind, the factual determination is inescapable that the agents could have ordered such entrées as chicken strips, chicken wings, or fried calamari. They also could have ordered a vegetable ("beer battered veggies") from the Late Nite Menu. Half of the items (entrée and vegetable) constituting a "full course meal," in other words, appeared on the face of the Late Nite Menu. No beverages were listed in the Late Nite Menu. The agents, however, ordered (and were served) sodas and beer. The evidence thus establishes that non-menu items were, in fact, available when the agents visited. Moreover, it is found, the "beverage" requirement for a "full course meal" plainly was met. The only item needed to complete a "full course meal" is bread.4 There is no direct evidence that bread was not available. Perhaps it might be inferred, based on the absence of an obvious bread item on the Late Nite Menu, that no bread could be had. The undersigned declines to draw such an inference, however, because (as found above) other non-menu items were available upon request. Nor would the "fact" that the "kitchen was closed" (which it was not) be a sufficient basis for the undersigned to infer that bread was unavailable. Without more evidence than was adduced in this case, there is not a sufficiently convincing reason for the undersigned to infer that some slices of bread or a few rolls, for example, could not have been found in the restaurant, were a patron to have requested bread with his order of, say, chicken strips (entrée), onion rings (vegetable), and a soda (beverage). The problem with the Division's case, at bottom, is that the agents did not do enough to establish, affirmatively, the negative proposition that the Division must prove, i.e. that a full course meal was not available.5 Because it was (or should have been) clear to the agents that a vegetable, entrée, and beverage were available, they should have asked, specifically, for bread. They did not. The only off-menu item which the agents requested (other than drinks) was a hamburger. The evidence being insufficient to prove that a "full course meal" could not be had on the occasions in question, it must be concluded, as a matter of ultimate fact, that Barrett is not guilty of serving alcohol without simultaneously making full course meals available, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Barrett not guilty of the instant charge. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Robert E. and Grace E. Parker, d/b/a Americana Restaurant and Bar at 2826 - 4th Street, North, St. Petersburg, Florida. The details of the Notice to Show Cause are set forth in the issues statement of this Recommended Order. The Respondents are holders of license No. 62-473-SRX, series 4-COP, held with the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was issued in 1972 and remains in effect at this time. The facts in this case show that Beverage Officer Michael Freese went to the licensed premises on February 10, 1978, to make a routine license inspection. He arrived in the premises around 11:15 a.m. and found six to eight customers inside the building. Some of those customers were seated at the bar, drinking alcoholic beverages. None of the customers were observed to be eating. The licensed premises was in the control of Nancy Brown, an employee of the Respondents, and she was the only employee in the licensed premises, and her function at that time was to act as a bartender. When inquiry was made of her concerning the preparation of meals in the licensed premises, her response to Freese was that she cooked meals if anyone ordered a meal. While Freese was in the licensed premises, he observed Ms. Brown serve the patrons with additional alcoholic beverages. Freese also noted that a few of the tables in the restaurant area had place settings to include knives, forks and spoons. There were no signs in the premises advertising food for sale. In the kitchen area, the ovens were not operating and no foods were being prepared. There was no grease in the deepfryers, nor indication of any fresh garbage remaining from the preparation of food. The dishes were clean and put away with a light film of dust, indicating that the dishes has not been utilized for sometime. Handles were missing from the sink where the dishes would have been cleaned up. In examining the silverware on hand, it was determined that the restaurant was short eighty- five knives. There was insufficient food to serve two hundred persons. There was no fresh produce or desserts on hand. In a later discussion with Mr. Parker, the Respondent; which was held on the same day, Parker stated that if any cooking needed to be done he could be at the licensed premises in ten to fifteen minutes. He also stated that they got sandwiches from a local vendor and that 80 percent of the food sales is constituted of sandwiches and soups. Parker provided Freese with a menu of the restaurant, a copy of which may be found as Petitioner's Exhibit No. 1, and a comparison of that menu against the inventory of food on hand when Freese made the inspection shows that there was insufficient food on hand to serve those items listed on the menu. Freese left the licensed premises around 4:00 p.m. and during the entire time that he was in the restaurant, no one was served food. Subsequent examination of the records of the licensees revealed that during the months of January through December, $5,169 was expended on nonalcoholic items in the category of food, constituting 16.5 percent of the total purchases, and $21,417.79 was spent for alcoholic beverages, constituting 68 percent of the total purchases. The licensees did not have register tapes available to compare against the invoices for purchases. The only items available were daily takeoff sheets which showed that in the same time period listed above, $21,000 was sold of food and $28,000 of alcoholic beverages. When compared to the purchase prices for food and alcoholic beverages, the statistics found in the daily worksheets do not present creditable figures. On February 13, 1978, Officer Freese and Officer Joseph A. Maggio returned to the licensed promises around 1:45 p.m. Again, the only person in the restaurant was Ms. Brown and seven to eight customers were observed in the bar area. No one was observed taking meals. Six tables were set up so that meals could be served. The area off the kitchen was as described on February 10, 1970, in terms of the cooking ranges, utensils, food and food preparation. Around 2:05 p.m. there was a further discussion held with the Respondent, Mr. Parker, who in the conversation indicated that he and his wife worked in the restaurant from 6:00 a.m. to 11:00 a.m., at which point Ms. Brown came in, and the Parkers returned at 6:00 p.m. and stayed until closing. In the course of the hearing, Mr. Parker testified and reiterated that sandwiches and soup are the main food of the restaurant, although the customers may be served steaks and produce and dairy products, upon request.
Recommendation It is recommended that the Respondents, Robert E. and Grace E. Parker, have their series 4-COP SRX license REVOKED. DONE AND ENTERED this 13th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 100 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Staff Attorney Depatment of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert E. and Grace E. Parker d/b/a Americana Restaurant and Bar 2826 - 4th Street North St. Petersburg, Florida 33704
Findings Of Fact Petitioner is a corporation organized and existing under the laws of Florida with its sole place of business located at 6186 Southwest 8th Street, Miami, Florida. Petitioner operates a delicatessen and restaurant in the same building at the above location. Petitioner's restaurant prepares food to be served to paying customers who consume that food at tables provided in the restaurant for that purpose. This food is served by waiters and waitresses who prepare guest checks which separately indicate the amount of sales tax charged thereon. Petitioner's delicatessen sells unprepared food to customers who do not consume that food on the premises and for whom no eating facilities are provided. The items sold by Petitioner's delicatessen are grocery-type items. A common cash register serves the two facilities, which cash register has a separate key for the sale of delicatessen items and a separate key for the sale of restaurant items. The restaurant and delicatessen occupy the same general space and are not separated by a wall or other physical barrier. Petitioner's Exhibit 4 contains a list of those items sold on the delicatessen or grocery side of Petitioner's business. The accuracy of that list was not challenged in this proceeding and it is found as a matter of fact that those items on Petitioner's Exhibit 4 accurately reflect the items sold by Petitioner across his delicatessen counter. That list includes items such as bread, rolls, bagels, milk, beer, soda, catsup, canned goods and various meats such as salami, bologna, franks, fish and ham. Petitioner collects sales tax for those items sold in the restaurant portion of the business and does not collect sales tax on those items sold in the delicatessen portion of the business. The taxable and nontaxable items are segregated and distinguished on the cash register tapes. Petitioner has so conducted his business from its inception in 1959 through the audit period in question. Throughout that period of time Petitioner regularly maintained separate and distinct records sufficient to allocate sales between taxable restaurant sales and nontaxable delicatessen or grocery sales. Petitioner's tax returns have reflected this behavior for the above period of time. When the business first opened Mr. Leo Hoffman, the owner of Petitioner corporation, contacted the Department of Revenue by telephone and was told that the foregoing method of operation was proper. Petitioner has always filed tax returns reflecting this activity and such returns were apparently not questioned until the audit at issue here. The period of time for which Petitioner was audited in this cause was January 1, 1976, to December 31, 1978. On March 12, 1979, Respondent issued a proposed sales and use tax delinquency assessment against Petitioner in the amount of $40,018.14. This assessment was based on the total sales revenue generated by both of Petitioner's enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. On May 10, 1979, the Respondent issued a revised proposed sales tax delinquency assessment against Petitioner in the amount of $33,259.20. This revised assessment was based on the total sales revenue generated by both of Petitioner's separate enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. Petitioner did pay approximately $12,000 in sales tax for the subject audit period. That was the sales tax Petitioner believed he owed for the restaurant portion of his business. The additional assessment is apparently the sales tax (with penalty and interest) Respondent believes is owed for the delicatessen portion of Petitioner's business. The items sold on the delicatessen side of Petitioner's business represent approximately 75 percent of his gross revenue. The items sold on the restaurant, or taxable side of Petitioner's business, represents approximately 25 percent of his gross revenue. The assessment by Respondent against Petitioner was based, at least in part, upon Rule 12A-1.11(1), Florida Administrative Code. Petitioner holds a restaurant license from the State of Florida, Division of Hotels and Restaurants. Petitioner also holds a retail sales license from Dade County for its delicatessen operation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: To the extent that the assessment for unpaid sales tax is based upon sales made by the delicatessen or grocery side of Petitioner's business, such assessment is invalid and should be withdrawn. DONE AND ENTERED this 4th day of June 1980 in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June 1980. COPIES FURNISHED: Mark J. Wolff, Esquire Sparber, Shevin, Rosen, Shapo & Heilbronner, P.A. First Federal Building, 30th Floor One Southeast Third Avenue Miami, Florida 33131 Linda C. Procta, Esquire Department of Legal Affairs Office of the Attorney General The Capitol, LL04 Tallahassee, Florida 32304
The Issue This case concerns the issue of whether Respondent's special restaurant beverage license should be suspended, revoked or otherwise disciplined for failing to derive 51 percent of gross revenue from the sale of food and for failing to maintain sufficient food and equipment to serve 150 full course meals on the licensed premises. The Petitioner, at the formal hearing, called as its only witness Beverage Officer G. L. Hodge. The Petitioner offered and had admitted into evidence two exhibits. Counsel for the Respondent contacted counsel for the Petitioner just prior to the formal hearing to notify the Petitioner that the Respondent would not be appearing at the formal hearing. The Respondent did not appear and therefore presented no evidence. Respondent was duly noticed and informed of the time and place of the hearing in accordance with Chapter 120 of the Florida Statues.
Findings Of Fact At all times material to this proceeding, the Respondent, Colonial Park Pub, Inc., was the holder of Beverage License No. 62-2029-SRX, Series 4-COP. This license was issued to the premises known as the Colonial Park Pub and Restaurant, located at 8239 46th Avenue North, St. Petersburg, Florida. The license held by Respondent is a special restaurant license. After receiving a complaint about the licensed premises, Beverage Officer G. L. Hedge on July 26, 1983, went to the licensed premises to perform an inspection. A food inventory revealed the following food items stored on the licensed premises: In the kitchen, in the freezer closest the entrance was approximately: 15 slices of bacon 8 slices of turkey 20 slices of pickles 3 onions 3 tomatoes 2 slices of American cheese 10 oz. of tuna fish 25 slices of Pastrimi hot dogs slices of roast beef 1b. of American cheese 1bs. of Swiss cheese 1 six 1b. can of sliced pineapple In the freezer in the middle of the kitchen the following was found: 2 loaves of bread 5 sandwich buns 8 submarine rolls 4 heads of lettuce 2 celery stalks 1 gallon of milk 4 lemons 13 limes 34 In tomatoes the stand-up icebox was found the following food: 3/4 of a cantalope 3 1/2 sticks of margarine 12 rolls 2 1/2 20 oz. bags of mixed vegetables 4 bags of hard rolls 7 hot dogs 2 loaves of Jewish bread 4 slices of salami 3 slices of ham In the food storage chest was found the following food: 7 cans of pickle spears 99 oz. 2 1 1b. bags of potato chips 2 cans of red beans 6 1bs. 15 oz. 4 cans of tuna fish 11 1bs. 2 1/2 oz. This was not sufficient food to prepare 150 full course meals as defined in Rule 7A-3.15, Florida Administrative Code. The licensed premises had the appearance of a lounge and not a bona fide restaurant operation. There were no silverware, menus, plates, or table cloths on any of the tables. The premises were dimly lit and no one was observed eating any meals. The inspection occurred at approximately 2:15 p.m. There were approximately 30 meals per day served at the licensed premises and only sandwiches were served after approximately 8:00 p.m. The menu stated that dinners were not served after 7:30 p.m. During the period May 1982, through April 1983, the Colonial Park Pub and Restaurant had total gross sales of $197,564.07. Of this total, beverage sales were $135,530.17 and food sales were $62,033.90. Food sales for the year constituted 31 percent of sales. During this same period, beverage purchases amounted to $69,442.76 versus food purchases of $19,046.89. There were only two months, May and June 1982, where the Respondent even approached food sales equalling 51 percent of gross sales.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Petitioner enter a final order finding the Respondent guilty of the violations charged in the Notice to Show Cause and revoking beverage license No. 62-2029-SRX. DONE AND ORDERED this 9th day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS 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 9th day of April, 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 John L. Waller, Esquire The Legal Building 447 3rd Avenue, Suite 403 St. Petersburg, Florida 33701 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent failed to derive at least 51 percent of its gross revenues from the sale of food and nonalcoholic beverages, in violation of Sections 561.20(2)(a)4 and 561.29(1)(a), Florida Statutes, and failed to maintain its business records in English, in violation of Section 561.29(1)(e), Florida Statutes, and Rule 61A-3.014(3), Florida Administrative Code. If so, an additional issue is what penalty the Division of Alcoholic Beverages and Tobacco should impose.
Findings Of Fact At all material times, Respondent has held license number 16-15136, series 4-COP SRX. Pursuant to this license, Respondent operated a Brazilian restaurant known as Flavor of Brazil at 4140 North Federal Highway in Fort Lauderdale. On July 20, 1999, a special agent of Petitioner inspected the restaurant to determine, among other things, the percentage of Respondent’s gross receipts derived from food and nonalcoholic beverages. In response to a request, the agent received large numbers of original customer tickets, which record the food and beverage items ordered by each customer. In response to a request to visit the agent at her office and provide a statement, the president of Respondent hand wrote a statement explaining: “Records were wiritten [sic] in Portuguese. Basically because most of our staff speak and write Portuguese (being that they are Brazilians). But this problem has already been corrected.” The customer tickets are written in a language other than English, presumably Portuguese. For a person unfamiliar with the language in which the customer tickets are written, it is impossible to determine from these customer tickets which items are alcoholic beverages and which items are food and nonalcoholic beverages. A 4COP-SRX Special Restaurant License form signed on January 26, 1999, by Respondent advises that the license requires that at least 51 percent of the gross revenues of the licensee must be derived from the sale of food and nonalcoholic beverages. The form warns: “Since the burden is on the holder of the special restaurant license to demonstrate compliance with the requirements for the license, the records required to be kept shall be legible, clear and in the English language.”
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of violating Rule 61A-3.0141(3)(a)3 and revoking Respondent’s license without prejudice to Respondent's reapplying for another CRX special license at any time after 90 days following the effective date of the final order. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 4th day of December, 2000. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-3227 Kenneth W. Gieseking Assistant General Counsel Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Flavor of Brazil 4768 North Citation Drive, No. 106 Delray Beach, Florida 33445
