The Issue Whether respondent's Rule 7A-3.15(3) (a) and (d), containing criteria for special restaurant alcoholic beverage licenses, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact On March 12, 1981, DABT issued petitioner a special restaurant alcoholic beverage license, No. 23-4626 SRX, Series 4 COP. (P-2, P-3.) Under the authority of this license, petitioner operates a business at 49 Northwest Fifth Street, Miami, Florida, which serves food and beverages (alcoholic and nonalcoholic) to the general public. (Testimony of Saric; P-2, P-3.) By notice dated August 28, 1981, as later amended, DABT sought to suspend or revoke petitioner's beverage license or impose a civil penalty. As grounds, DABT accused petitioner of violating Chapter 561, Florida Statutes, and Rule 7A-3.15, Florida Administrative Code. It contended that respondent violated Rule 7A-3.15 between April 28 and August 5, 1981, by failing to "prepare any meals on the premises . . . and by failing to "maintain tables of adequate size to accomodate [sic] the service of 200 full-course meals in accordance with the number of chairs found at that table.
The Issue Whether Rocco R. Sodomire (Respondent) violated Section 489.129(1)(c) and (r) and Section 455.227(l)(o), Florida Statutes, and if so, what disciplinary action should be taken against his license to practice contracting.
Findings Of Fact Respondent is, and has been at all times material hereto, a Certified Residential Contractor in the State of Florida, having been issued license number CR CO57213. At all times material hereto, Respondent was not licensed to do any swimming pool/spa contracting in the State of Florida. On or about November 1996, Respondent submitted a proposal to Vincent Neglio for the construction of a 28' x 14' in-ground swimming pool, a deck, and a screen enclosure at a cost of $15,000.00. Shortly thereafter, pursuant to the proposal, Respondent began construction of a swimming pool and deck at Mr. Neglio's residence. Prior to completion of the pool project, Mr. Neglio paid Respondent a total of $14,200.00. Although Respondent received $14,200.00 from Vincent Neglio, he never completed the pool project. Respondent presented the proposal for the pool project to Mr. Neglio; accepted money from Mr. Neglio as payment for work on the project; distributed funds to other contractors who worked on the pool project; and performed work on the pool project at Mr. Neglio's home. On August 4, 1997, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division (Case Nos. 97-2569SP-RRS and 97-2570-SP-RRS), entered a Record of Agreement between Respondent and Mr. Neglio whereby Respondent was to pay Mr. Neglio a total of $2,600.00 to settle the dispute involving the aforementioned pool project. On January 13, 1998, the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Small Claims Division, in the above-referenced cases entered a Final Judgment by Default against Respondent in favor of Vincent Neglio in the amount of $2,600.00, the payment amount required in the Agreement, as a result of Respondent's failing to pay monies based on the Agreement referenced in paragraph 6. To date, Respondent has failed to make any payments to Vincent Neglio based on the Small Claims Court Record of Agreement, referenced in paragraph 6 or the Final Judgment by Default referenced in paragraph 7.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order that: (1) finds Respondent committed the offenses alleged in Counts I and II of the Administrative Complaint and imposes a $500.00 fine for these violations; (2) requires Respondent to pay restitution to Vincent Neglio in the amount of $2,600.00; and (3) requires Respondent to pay to Petitioner $858.97, the costs incurred by Petitioner in the investigation and prosecution of this proceeding. DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 23rd day of November, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Leonardo N. Ortiz, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Rocco R. Sodomire 3520 Southeast 2nd Avenue Cape Coral, Florida 33904 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to this proceeding the Respondent held beverage license number 58-01528, SRX, Series 4COP. This license was issued to licensed premises located at 100 West Washington, Orlando, Florida. This is a special restaurant license. The above license expired on September 30, 1982, and was renewed for one year. The check given to the Division of Alcoholic Beverages and Tobacco in payment for the fees necessary to renew the license was deposited for collection by the Division and was returned dishonored for insufficient funds. The license was retrieved by the Division on November 8, 1982, and because the fee has not been paid the license remains in the possession of the Division. At the time the Respondent failed to make good on the check or to otherwise pay the renewal fee, there were charges pending against the Respondent's license. Respondent had been notified of pending charges of violation of the beverage laws prior to September 30, 1982. On June 10, 1982, Beverage Officer Maria Lynn Scruggs visited the Respondent's licensed premises to conduct a routine special restaurant license inspection. Upon arriving at the licensed premises, Officer Scruggs requested the liquor and food invoices. One of the employees stated that there were no such invoices on the licensed premises. Walter Brown, vice-president of the Respondent corporation, stated that the Invoices were at the accountant's office. These invoices are required to be kept on the licensed premises for a period of 3 years and no permission had been obtained by Respondent to remove the invoices from the licensed premises. During this routine inspection, Officer Scruggs was assisted by Beverage Officers Ken Rigsby and Ron Westcoat. After being unable to review invoices the three officers counted the chairs in the licensed premises and inspected the kitchen area. There was a total of 154 chairs on the licensed premises. In the kitchen, there was found to be an approximately one pound container of frozen fish, ten #10 cans of pork and beans, ten to twelve heads of lettuce, one 1 pound bag of french fries, approximately ten pounds of cooked chicken, and approximately four pounds of cooked pork ribs. The cook, Mr. John Burk, showed Officer Scruggs an invoice for the following items which had been ordered: roast beef, American cheese, two cucumbers, mayonnaise, and two hams. There was a salad bar set up near the bar with items such as onions, mushrooms, and bell peppers. There was less than a cup of each item. An inspection of the silver and plates revealed that there were 113 plates, 24 coffee cups, and 25 water glasses. There was adequate silver as required under the beverage rules. At the time of this inspection, the licensed premises was not open for business. The liquor on premises could not be inventoried because the liquor cabinet was locked. This inspection took place from approximately 10:30 p.m. to 12:00 or 12:30 p.m. Shortly after the June 10, 1983, inspection, the specific date being unknown, Officer Scruggs returned to Respondent's license premises to complete the inspection. Upon inspecting the liquor inventory, Officer Scruggs found that most of the bottles had ABC Liquor Stamps reflecting that the bottles of liquor had been purchased from another retailer. The Respondent at this time was on a "no sale" list which prohibited the licensee from purchasing alcoholic beverages from another retailer or wholesaler while on that list. Licensees who appear on the "no sale" list are placed there because of failure to clear a delinquent account within the specified time. The Respondent had been on the "no sale" list since October 14, 1981, and had been informed by letter on October 14, 1981, that it had been placed on the "no sale" list. The liquor which was inventoried by Officer Scruggs had recently been purchased from either ABC Liquors or Liquor World. On this second visit, Officer Scruggs was able to review the Respondent's invoices for the period July 1981, through June 1982. These invoices revealed total sales of $193,566.99 during that period. Of that total, liquor sales represented $145,639.55 and food sales totaled $47,927.44. During the period July 1981 through June 1982, food sales accounted for 25 percent of Respondent's gross sales while alcoholic beverages accounted for 75 percent of its gross sales. The invoices as kept by the Respondent were not separated as required by the beverage rules and had to be separated prior to arriving at the above totals.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Respondent's beverage license be revoked. DONE and ORDERED this 28th day of September, 1983, in Tallahassee, Florida. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George Cooper 4627 Parma Court Orlando, Florida 32811 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 28th day of September, 1983. Mr. Jack Wallace Division of Alcoholic Beverages and Tobacco Post Office Box 17735 Orlando, Florida 32860
The Issue This case involves the issue of whether the Respondent's special restaurant license for the sale of alcoholic beverages should be suspended, revoked or otherwise disciplined for multiple violations of the beverage laws and rules relating to the operation of a licensed premises under a special restaurant license. At the formal hearing, the Respondent was represented by Mr. George Cooper, the president and 50 percent owner of the Respondent corporation. After proper inquiry, it was determined that Mr. Cooper was in fact a proper representative of the corporation. At the formal hearing, the Respondent requested an opportunity subsequent to that date to present evidence on its own behalf. The Respondent, as grounds for that motion, indicated that it had been attempting to retain counsel and had been unable to do so. It was stipulated and agreed by and between the Petitioner and the Respondent that the Petitioner would present its evidence at the formal hearing as scheduled and that following the hearing the Respondent would be given an opportunity if it desired at a subsequent hearing time and date to present its evidence. Pursuant to this stipulation, it was ordered by the Hearing Officer that the Respondent submit in writing within 10 days of July 22, 1983, a request to schedule another hearing date if the Respondent desired to present further evidence. Respondent failed to file any written pleading and failed to notify the Hearing Officer as to whether further proceedings were necessary and whether Respondent In fact intended to present further evidence. On August 25, 1983, the undersigned Hearing Officer served upon the Petitioner and Respondent an Order to Show Cause as to why a Recommended Order should not be entered upon the evidence presented by the Petitioner at the previous hearing on July 22, 1983. That Order reflected that upon failure of the parties to file a pleading showing cause as to why such a Recommended Order should not be entered that the undersigned Hearing Officer would proceed to enter a Recommended Order based on the evidence presented at the July 22, 1983, hearing. Respondent was served by mail with a copy of that order to Show Cause and failed to file any response to that Order. Therefore, this Recommended Order is being entered upon the evidence presented by the Petitioner and the cross examination of that evidence by the Respondent at the formal hearing.
Findings Of Fact At all times material to this proceeding, Respondent was the holder of beverage license number 58-01528, SRX, Series 4COP. This license was issued to the licensed premises at 100 West Washington, Orlando, Florida. This license is a special restaurant license. On November 5, 1982, Beverage Officer James Jones, accompanied by another beverage officer, inspected the licensed premises of the Respondent. This was an SRX (special restaurant) inspection and the officers counted chairs, silverware, and dishes, and inventoried the food on the licensed premises. The count revealed 140 chairs, 46 coffee cups, 121 plates, 45 glasses, 116 knives, 53 forks, and 111 spoons. An inventory of the food on the premises revealed 55 chicken wings, 10 pounds of hamburger patties, 1 1/2 pounds of hamburger, 5 tomatoes, 1/4 pound of margarine, 1 potato, 5 loaves of bread, 1/4 slab of ribs, 30 pounds of french fries, 2 heads of lettuce, 1 1/2 pounds of potato chips, 10 carrots, 1 pound of sliced cheese, 2 1/2 spanish onions, 13 hamburger buns and 1/2 pound of diced cheese. There was no other food on the licensed premises. This inspection occurred at approximately 11:00 or 11:30 p.m. There was one bartender, one waitress, and a cook on duty. At this time, they were serving only chicken wings, hamburgers and french fries. There were no full course meals prepared or sold while the officers were at the licensed premises. There was not sufficient food at the licensed premises to serve 200 full course meals. Respondent renewed its license on September 30, 1982, and delivered a check to the District Office of the Division of Alcoholic Beverages and Tobacco in the amount of $1,750.00 as payment for the renewal fee. This check was deposited for payment and was returned not honored due to insufficient funds. The Respondent was notified by the Division of the returned check and failed to pay the necessary fee. The license was retrieved by the Division on November 8, 1982, and remains in the possession of the Division. At the time of renewal on September 30, 1982, the Respondent had been notified in writing of pending charges against its license which could lead to revocation or suspension of that license.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent's beverage license be revoked. DONE and ORDERED this 28th day of September, 1983, 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 28th day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George Cooper 4627 Parma Court Orlando, Florida 32811 Mr. Jack Wallace Division of Alcoholic Beverages and Tobacco Post Office Box 17735 Orlando, Florida 32860
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 George Thayer is the holder of a special alcoholic beverage license, number 74-0643SR-4COP, for the premises known as George's Place at 832 South Martin Luther King Boulevard, Daytona Beach, Florida. He has held that license since 1965. DABT continues to assert that he has held that license since 1955, but there is not one shred of evidence to support that assertion. Both Joseph Ogonowski, a DABT investigator, and Mr. Thayer testified that the license in question was issued on July 23, 1965. Thayer's license was issued under a special provision for restaurants which no longer exists. The SR class of license required that certain conditions be met. In applying for and qualifying for the license in question, Mr. Thayer signed an affidavit attesting that he would comply with all the conditions applicable to the SR special license. Specifically, in that affidavit, Mr. Thayer attested that: . . . said licensed premises are to be operated primarily as a restaurant and contains all necessary equipment and supplies for serving full course meals regularly, has accommodations for serving @200 or more patrons at tables and occupies 4,000 square feet or more floor space under a permanent roof. Further, that if the license applied for is approved and a Special License is issued, the premises shall be operated as a bonafide restaurant and that no alcoholic beverages will be served or sold when the restaurant is not open for business. On March 13, 1990, Joseph Ogonowski, a law enforcement investigator with 30 years' experience at DABT, conducted an inspection of George's Place at approximately 2:00 o'clock P.M. Mrs. Thayer was tending bar when Ogonowski arrived. There were several patrons drinking what appeared to be alcoholic beverages at the bar and in the pool hall. There was no food being prepared or served. The kitchen, which was accessible only from behind the bar, was apparently closed. There was no appearance that any food was in or had been recently prepared in the kitchen. There was a separate part of the premises, called the disco room, which was not lit or air conditioned and was locked behind a metal gate. The disco room contained 134 chairs at tables. The bar contained enough tables and chairs for six or eight people to be served at tables. There was no menu posted or offered. There was not enough china and silverware to serve 200 people. There was some plastic tableware. DABT's apparent policy of not counting plastic tableware is not a rule and must therefore be explicated at hearing. No such evidence was presented in this case. No proof that the beverages being served were alcoholic beverages was presented by DABT. Mr. Ogonowski issued a warning notice citing inadequate seats and tables, inadequate square footage open to the public, and the need for additional china and silverware. Notice was given that a reinspection would occur in ten days. Mr. Ogonowski reinspected the premises on March 29, 1990. Nothing had changed. The kitchen and disco room were closed and no food was being served on the premises. Mr. Ogonowski issued a Final warning notice again citing the lack of seats, tables, china, and silverware. A reinspection was again scheduled. On April 13, 1990, Ogonowski again reinspected the premises at about 10:00 o'clock A.M. A Bill of Fare was posted showing full course meals being served. There were still inadequate seats at tables and china and silverware. No food was being served, but it was early in the day. Patrons were drinking what appeared to be alcoholic beverages at the bar and in the pool hall, but the disco room was locked. Again no evidence that the beverages were alcoholic was presented by DABT. Another Final warning notice was issued citing the inadequate seats, tables, china, and silverware. This Final warning notice reminded Mr. Thayer that he was required to have the facilities, china, and silverware to serve full course meals to 200 patrons or else he must discontinue the sale of alcoholic beverages. Mr. Thayer was given ten working days to comply or else charges would be filed against his license. On June 22, 1990, Mr. Ogonowski returned in the morning for one last inspection of George's Place. Mr. Thayer was not there, but Leroy Reed was tending bar. The Bill of Fare was not posted. The pool hall was open, but the disco room was locked. Mr. Reed was eating something from a bowl. According to Mr. Reed, it was some leftovers that he had scraped from the bottom of a pot. Mr. Ogonowski ordered some of what Mr. Reed was eating, but was told it was all gone and food had not been cooked yet that day. Mr. Ogonowski ordered a sandwich not regularly available on the premises and was told that it was not available. He than asked to purchase a beer to go and was sold a can of beer. Mr. Ogonowski returned to talk to Mr. Thayer later that same day. At that time, Mr. Thayer told Mr. Ogonowski that the necessary china and silverware was on the premises, but that there were inadequate seats at tables. Based on this failure to comply with the previous warnings, a Notice to Show Cause was issued. Mr. Ogonowski did not inspect to see if the china and silverware was actually on the premises or if full course meals were available. According to Mrs. Thayer, the china and silverware was purchased in July, after the last inspection. Further, she acknowledged that the necessary seats at tables were not on the premises until September. Mr. and Mrs. Thayer live above George's Place and derive all of their support from the operation of George's Place. They have done so for more that 25 years. Until these events, they had not received any citations for more than 15 years. Mr. Ogonowski testified that DABT has a policy regarding penalties for violations of special restaurant licenses and he produced a copy of a page from his policy and procedure manual. These penalty guidelines have not been enacted as rules. Mr. Ogonowski did not develop the policy and did not offer any testimony to prove up or explicate the incipient policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that alcoholic beverage license 74-00643SR-4COP, issued to George Thayer, t/a George's Place, be suspended until the licensee demonstrates the ability and intention to operate the premises as a bona fide restaurant meeting all the criteria of the license, the statutes, and the rules. If the licensee is unable to make the necessary demonstration within six months, the license should be revoked. DONE and ENTERED this 3rd day of December, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5777 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of FactSubmitted by Petitioner, DABT Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 2-6(4-8). Proposed findings of fact 7 and 8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of FactSubmitted by Respondent, George Thayer Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 10(8); and 14(11). Proposed findings of fact 2, 4-6, 8, 9, 11, and 13 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3 and 7 are irrelevant. Proposed finding of fact 12 is unsupported by the credible, competent and substantial evidence. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Thomas S. Hart Attorney at Law Cobb Cole & Bell 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, FL 32115-2491 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
The Issue The ultimate issue in this case is whether the Petitioner's application for a special (SRX) restaurant alcoholic beverage license should be granted.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witness at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact: Stipulated Facts The special restaurant license is sought for the Brass Elephant Restaurant within the corporate limits of the City of Sanibel, Florida. The restaurant is located on a 7.7-acre parcel of property adjacent to the Gulf of Mexico. The restaurant is located within a resort complex known as the Sanibel Island Hilton. Seating within the restaurant itself is limited to 100 seats by court order and zoning regulations of the City of Sanibel. No bar is maintained within the restaurant itself. The Brass Elephant Restaurant derives more than 51 percent of its revenue from the sale of food and non-alcoholic beverages. The Brass Elephant Restaurant has in excess of 2,500 square feet of service area. The Sanibel Island Hilton is being operated as a first-class destination resort. Hilton Corporation has stringent constraints on the operation of such a resort and has made special exceptions for this resort in light of the special zoning and building restrictions imposed by the City of Sanibel on the resort area; these special exceptions allow, inter alia, separate buildings and outside walkways. The restaurant in question is an accessory use to the Hilton Hotel, and is not an autonomous restaurant. There is no separate sign advertising the restaurant as an individual entity. Access can only be gained from the hotel grounds. By virtue of the development permit issued by the City of Sanibel, the Hilton is precluded from operating a saloon, lounge or restaurant separate and apart from its food service operation. Additional Facts Proved at Hearing The Petitioner also has a banquet facility on the premises known as the "Commodore Suite." It is located approximately 250 feet from the Brass Elephant. Meals for the Commodore Suite are prepared at the kitchen facility in the Brass Elephant. On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150. The Petitioner has available on the resort premises all of the necessary equipment to serve more than 150 persons at one time in the Brass Elephant, though the City of Sanibel prohibits it from having more than 100 seats in the restaurant. In addition to the restaurant and the banquet room, there is also a pool bar on the Petitioner's resort premises. The restaurant, pool bar, and banquet room are physically separate from each other. The distance between the restaurant and the banquet room is approximately 250 feet and the distance between the restaurant and pool bar is about the same. There are no separate walkways from the various buildings to the restaurant. To walk from the restaurant to the banquet room, one has to walk across a street, part of a parking lot, and around or under one of the other buildings at the resort. To walk from the pool bar to the restaurant or the banquet room, one has to walk around or through another building. The foregoing paragraphs numbered 1 through 16 comprise all of the findings of fact in this case. Such findings include the substance of all of the findings proposed by the Petitioner and the substance of the vast majority of the facts proposed by the Respondent. To the extent I have not made certain proposed findings of fact, such proposed findings are irrelevant and immaterial to the issues to be decided in this case.
Recommendation For all of the reasons set forth above, I recommend that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the application of Shell Harbor Group, Inc., for a special restaurant liquor license. DONE and ORDERED this 1st day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1985.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the license of Frederick B. Mee d/b/a B & M Air Conditioning and Refrigeration Service, Inc., be suspended until satisfactory proof of his personal finances is received by the Florida Construction Industry Licensing Board. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Mr. Frederick B. Mee 1123 El Dorado Parkway Cape Coral, Florida 33904 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Does Petitioner, Target Corporation (Target), have standing to bring this rule challenge? Does Petitioner, Walmart, Inc. (Walmart), have standing to bring this rule challenge? Does Intervenor, ABC Fine Wine & Spirits (ABC), have standing to participate in this rule challenge? Does Intervenor, Florida Independent Spirits Association (Independent Spirits), have standing to participate in this rule challenge? Does Intervenor, Publix Supermarkets (Publix), have standing to participate in this rule challenge? Is Florida Administrative Code Rule 61A-3.055 (Restaurant Rule or the rule) an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes (2018)?1/
Findings Of Fact The Legislature has charged the Division with administration of Florida’s alcoholic beverage and tobacco laws. This charge includes licensing and regulation, as well as enforcement of the governing laws and rules. The Division promulgated rule 61A-3.055 in 1994. It has not been amended since. The rule states: 61A-3.055 Items Customarily Sold in a Restaurant. As used in Section 565.045, F.S., items customarily sold in a restaurant shall only include the following: Ready to eat appetizer items; or Ready to eat salad items; or Ready to eat entree items; or Ready to eat vegetable items; or Ready to eat dessert items; or Ready to eat fruit items; or Hot or cold beverages. A licensee may petition the division for permission to sell products other than those listed, provided the licensee can show the item is customarily sold in a restaurant. This petition shall be submitted to the director of the division at Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 2601 Blair Stone Road, Tallahassee, Florida 32399-1020, and must be approved prior to selling or offering the item for sale. For the purpose of consumption on premises regulations set forth in Section 565.045, F.S., items customarily sold in a restaurant shall include services or sales authorized in the “Florida Public Lottery Act”, Section 24.122(4), F.S. The effect of the rule is that any vendor with a license to sell alcoholic beverages for consumption on premises (COP) may not sell any items other than those listed in subsection (1) unless individually authorized to sell specific items by the Division.2/ Rule 61A-3.055 identifies section 565.045, as the law that it implements. The Restaurant Rule regulates all establishments holding a COP license. Topgolf operates four COP licensed establishments in Florida. Every Topgolf venue features dozens of high-tech, climate-controlled, golf hitting bays, food and beverage choices, and employs a staff of associates to provide patrons with a golf- themed food, beverage, and entertainment experience. The Division has also issued Topgolf a temporary COP license for its location at Topgolf Doral, 11850 Northwest 22nd Street, Miami, Florida 33182. On July 31, 2018, the Division inspected Topgolf Doral as part of the licensing process for issuance of the permanent liquor license. The Division’s Inspection Report notes that the Topgolf Doral (Doral) location may be in violation of section 565.045, because it offers items for sale other than those enumerated in rule 61A-3.055. The items offered include Topgolf-branded and/or golf-themed T-shirts, caps, visors, golf balls, cups, key chains, gloves and other trinkets. All of Topgolf’s Florida locations sell items similar to those sold in its Doral location. In addition to possible denial of its Doral application, Topgolf faces potential administrative and/or criminal penalties for the purported violation of the Restaurant Rule at each of its Florida locations. Topgolf has also petitioned the Division for permission to sell products other than those listed in rule 61A-3.055(1). Walmart operates a chain of retail stores, warehouse clubs, and ecommerce websites. It operates almost 400 locations in Florida. The Florida Department of Agriculture and Consumer Services licenses Walmart’s retail locations in Florida as food establishments. Walmart seeks to obtain, but has not yet applied for, COP licenses for some of its Florida retail locations. ABC is a retailer of alcoholic beverages in Florida. It operates a number of establishments that hold COP licenses. It holds 26 COP licenses. Rule 61A-3.055 applies to ABC’s operation of its licensed establishments. Independent Spirits is an independent association of alcoholic beverage retailers holding COP licenses. It exists to represent the interests of its members before the Division, in the Legislature, and otherwise. ABC is an Independent Spirits member. Including ABC, Independent Spirits members hold 61 COP licenses. Publix is a supermarket chain. It also operates a number of liquor stores throughout the state. Publix holds a number of COP licenses (beer and wine only). Publix relied on the requirements of statute and rule (including section 565.045 and the Restaurant Rule) in crafting its liquor-related business plans and building its separate liquor stores. Division inspections of licensed vendors include examination for violations of the Restaurant Rule. Since June 28, 2010, the Division has issued 14 notices of violation of the Restaurant Rule. The record does not establish what, if any, further action, such as fines or license revocation, that the Division has taken. The Division recently denied an application by Costco for a COP license for failure to comply with the Restaurant Rule. This is the only known instance of the Division denying a license application for failure to comply with the rule. Restaurants customarily sell items other than those listed in the Restaurant Rule. At a minimum, they sell T-Shirts and branded souvenir items. The Division adopted the Restaurant Rule in 1994. The review from the Joint Administrative Procedures Committee at the time included this observation: “Absent explanatory criteria, use of the word ‘customarily’ vests unbridled discretion in the department.” The Division responded: “As mentioned in our meeting, all of Proposed Rule 61A-3.055 is, in itself, the division’s attempt to define the admittedly vague phrase ‘items customarily sold in a restaurant’, as used in s. 565.045.” The Division is presently conducting rulemaking proceedings to consider amending the Restaurant Rule.
