Findings Of Fact At about 4:00 o'clock on the afternoon of May 8, 1979, petitioner's officers David William Shomers and Muriel Snipes Waldmann, entered respondent's place of business. At that time, Sherry Ann Armetto was behind the bar. When Officers Shomers and Waldmann asked Ms. Armetto for a meal she told them that the cook had not yet arrived. Officer Shomers and Officer Waldmann then each ordered a Scotch and soda, and both were served. At about 5:00 o'clock, the cook was still nowhere to he found. Officer Shomers counted the places available for people to sit down and eat, including seats in the bar, and determined that there were only 161 such places. Even though Ms. Armetto had worked for respondent as a bar tender for five or six months before the inspection on May 8, 1979, she had never been advised to refrain from selling alcoholic beverages when the kitchen was closed. She was so advised, however, after the events of May 8, 1979. Ricardo John Gutierrez had worked for the business four or four and one half years as of May of 1979. He was never told not to sell alcoholic beverages while meals were not sold. Petitioner initiated the present proceedings on or about July 3, 1979. In May of 1979, respondent Pete Rose Corporation held license number 16-790 SRX, an "ALCOHOLIC BEVERAGE LICENSE FOR THE PERIOD OCTOBER 1, 1970, THRU SEPTEMBER 30, 1979." Petitioner's exhibit No. 1. Respondent has not renewed the license since. As a condition of this beverage license, respondent was required to maintain at least 4,000 square feet, sufficient tables, chairs, china, other equipment and personnel to serve food to 200 persons, Officer Shomers testified.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause, thereby terminating these proceedings and allowing respondent's license to expire; and then cancel respondent's license. DONE and ENTERED this 15th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Pete Rose Corporation d/b/a Fat Cats 2590 S. State Road 7 Miramar, Florida
The Issue Whether the Respondent failed to have the seating capacity required of a licensee in its category as alleged by the Notice to Show Cause and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, Respondent, EDM of Key West, Inc., d/b/a/ Portside, was the holder of a special restaurant license issued by Petitioner, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation. This license, Series 6-COP, Number 54-00999SRX, authorizes Respondent to sell alcoholic beverages, subject to regulation by Petitioner and other authorities, in conjunction with its restaurant business. On November 16, 1988, Petitioner's law enforcement investigator, David Myers, inspected Respondent's premises to determine whether Respondent was in compliance with the regulations applicable to licensees such as Respondent. Two violations were discovered. The first was that the establishment failed to have sufficient seating for patrons under the covered portion of the premises. The second was that the establishment failed to keep adequate records of its sales of food and of its sales of alcohol as required by regulation. Official Notices were issued by Petitioner to Respondent for both violations. Investigator Myers told Respondent's dining room manager on November 16, 1988, that the establishment was required to have seating sufficient for at least 150 dining patrons under a permanent roof and that the seats located outside the roofed area could not be counted toward that requirement. This advice is consistent with Petitioner's interpretation of Rule 7A-3.014, Florida Administrative Code. Prior to December 12, 1988, Investigator Myers advised the management of Respondent that he intended to make a follow-up inspection on December 12, 1988. On December 12, 1988, there were 132 seats for dining patrons within the roofed area. Other seats for dining patrons were located in an uncovered area. Petitioner filed a Notice to Show Cause subsequent to its inspection of December 12, 1988, against Respondent alleging, in pertinent part, the following: On December 12, 1988, you, EDM OF KEY WEST INC., failed to have accommodations for service of 150 patrons at tables on your licensed premises . . . . The Notice to Show Cause did not cite Respondent for failure to keep adequate records of sales. On May 22, 1989, an inspection revealed that there was seating for only 118 dining patrons under the roofed area. On June 5, 1989, Respondent was found to be in compliance with the seating requirement. Respondent filed a timely request for hearing and therein denied the factual allegations of the charge brought against it.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having failed to have accommodations for the seating of 150 dining patrons as required by Section 561.20(2)(a)4, Florida Statutes, and by Rule 7A-3.014 and Rule 7A-3.015, Florida Administrative Code, and which imposes an administrative fine of $500.00 against Respondent. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000 James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. Post Office Box 1117 Key West, Florida 33041 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondent's pronouncement that special restaurant licenses issued prior to January 1, 1958, that have not remained in "continuous operation" are thereby (as a result of their lack of "continuous operation") rendered invalid pursuant to Section 561.20(5), Florida Statutes, and therefore not subject to delinquent renewal pursuant to Section 561.27, Florida Statutes (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioners.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.2 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.3 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.4 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." As applicants applying to delinquently renew their SR licenses (which were both originally issued in 1956), Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
The Issue Pursuant to a Notice to Show Cause issued November 22, 1982, the Respondent was charged with two violations of the beverage laws of this state. Respondent was charged with allowing a person under 19 years of age to consume alcoholic beverages on her licensed premises. Respondent was also charged with continuing to sell alcoholic beverages after discontinuing the sale of full course meals in violation of Florida Statute 561.20(3)(1981) and Rule 7A-3.15, Florida Administrative Code. At the formal hearing, Petitioner called as witnesses Mr. W. R. Wiggs, a beverage officer for the Division of Alcoholic Beverages and Tobacco; Mr. James Pistole, a deputy for the Hillsborough County Sheriff's Department; and Joe Circhirillo, also a deputy for the Hillsborough County Sheriff's Department. Respondent testified on her own behalf and called as witnesses Kathryn Singer, James D. DeBusk, and Heidi Buzbee. Petitioner offered no exhibits and Respondent offered and had admitted into evidence one exhibit consisting of four photographs. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered and determined by the Hearing Officer to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact At all times material hereto, Respondent held Beverage License No. 39- 00771, SRX Series 4-COP, issued to Sharon's Surf-n-Turf, located at 111 East Shell Point Road, Ruskin, Florida. During the course of the hearing, it was stipulated by and between the parties and it is now found that the beverage referred to in Count I of the administrative complaint was an alcoholic beverage. On October 29, 1982, W. R. Wiggs, an investigator for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises of Sharon's Surf- n-Turf Restaurant and Lounge. He arrived at approximately 9:30 p.m. and the lounge area was full of patrons. Before entering the licensed premises, Investigator Wiggs observed a sign outside the restaurant which reflected that the restaurant was open from 11:00 a.m. to 10:00 p.m. and there was live entertainment from 9:30 p.m. to 3:00 a.m. Beverage Officer Wiggs was accompanied by Beverage Officer Miller. Upon entering the licensed premises, Wiggs and Miller sat at the bar and each ordered a Michelob beer. Beverage Officer Miller asked if he could order a full course meal and the bartender responded that the kitchen was closed. Beverage Officers Miller and Wiggs were in the licensed premises approximately one and one-half hour and observed no food being served. The patrons in the lounge were consuming alcoholic beverages. The lights were not on in the restaurant portion of the licensed premises, and the door to the restaurant was locked. Neither Officer Wiggs nor Officer Miller checked the kitchen to determine if it was in fact closed. While in the licensed premises, Officer Wiggs, along with Deputy James Pistole, of the Hillsborough County Sheriff's Department, observed a young lady named Tammy Almond, sitting at one of-the tables and consuming an alcoholic beverage. She appeared to be younger than 19 years of age. After arresting Ms. Almond, it was determined from her driver's license that she was, in fact, 18 years of age, having a date of birth of March 28, 1964. When Officer Wiggs and Deputy Pistole arrested Ms. Almond, she stated that the drink which was seized belong to someone else and she was sipping out of it. There was no evidence that Tammy Almond had purchased the drink or that she had been personally served the drink. At the time Tammy Almond was arrested, all other persons in the lounge who appeared to be possibly underage were asked for identification. Tammy Almond was the only minor in the licensed premises that evening. Tammy Almond had previously been married and was now divorced. The Respondent and her employees were aware of her prior marriage. On this evening, James D. DeBusk was checking identification at the door to the licensed premises. He had checked Tammy Almond's identification and it had reflected that she was two or three months over 19 years of age. The identification appeared to be a Florida driver's license. There was nothing suspicious about the identification. The licensed premises always has a doorman checking identification on Wednesday night through Saturday night. The bartenders and waitresses would also check identification of patrons. The licensed premises is divided into a restaurant/ dining room area and a lounge. The lounge has tables, chairs, a dance floor, and bandstand. Food is served in the dining room area as well as the lounge area. Menus for food are posted on the wall just inside the doorway of the lounge. The Respondent, prior to and at the time of the incident involving Tammy Almond, had a strict policy against allowing minors to consume alcoholic beverages on the licensed premises. On the nights when the lounge is busiest, Wednesday through Saturday, a doorman is on duty to check the identification of persons entering the lounge. Waitresses and bartenders were instructed to check the identification of persons who appeared to be younger than 19 years of age. The Respondent's policy was to require two acceptable forms of identification whenever a person produces or shows a questionable identification. If they cannot produce such identification, they are not permitted to enter the licensed premises. The restaurant and lounge are managed and supervised by the Respondent. At the time of Tammy Almond's arrest, the Respondent was in the kitchen area of the licensed premises training a new cook. Food is served at the Respondent's licensed premises from 11:00 a.m. to closing time. On the evening of October 29, 1982, the kitchen was open and food was actually ordered. At least four meals of steak and eggs were ordered and served after midnight. The licensed premises is primarily a restaurant operation and serves several different types of full course meals. These full course meals were available on the evening of October 29, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of the violations charged in the Notice to Show Cause and that such Notice to Show Cause be dismissed. DONE and ENTERED this 27th day of June, 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 27th day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul S. Carr, Esquire Post Office Box 965 Ruskin, Florida 33570 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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
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.
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
Findings Of Fact At all times material to this proceeding, the Respondent, Boston's, Inc., was the holder of Beverage License No. 53-123, Series 6-COP SR. This license is issued to the premises known as Boston's, located at 100 Monterey Road, Stuart, Florida. The license held by Respondent is a Special Restaurant License originally issued in August 1957 to Frank and Mary Novacasa. By transfer of the license, Boston's, Inc., became the licensee on December 4, 1981. At the time of this transfer of the license to the Respondent, its president, A. Gerard Beauchamp, acknowledged by notarized Affidavit that the license required accommodations for serving 200 or more patrons at tables at all times. (Petitioner's Exhibit 1). On February 22, 1983, Beverage Officers White and Young conducted a routine inspection of the licensed premises. The officers discovered that the premises had been remodeled and that a new bar had been added, thereby reducing the available seating. By count, only 121 seats were available at tables, with an additional 18 to 20 stools being available at the bar. The manager on the premises also advised that an additional 10 to 15 chairs were located in a storage shed. On February 23, 1983, Beverage Officer White issued an official notice to the Respondent advising that it was required to maintain seating capacity at tables for 200 or more patrons. A compliance date of April 13, 1983, was indicated. (Petitioner's Exhibit 2). Officers White and Young conducted a compliance inspection on June 7, 1983. The physical layout of the premises remained as it had been on the earlier visit. A count of the seats available at tables revealed 114 chairs. An additional 24 stools were placed at the bar. At that time, Officer White issued an official notice to the Respondent, which was signed for by the manager, Norm Spector. That notice advised Respondent that the Division intended to file administrative charges against its license. (Petitioner's Exhibit 2).
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered revoking Respondent's Special Restaurant License No. 53-123, Series 6-COP SR. DONE and ENTERED this 2nd day of May, 1984, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 2nd day of May, 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mark Shumaker, Esquire 1775 NE Fifth Avenue Boca Raton, Florida 33432 J. Reeve Bright, Esquire Florida Coast Bank Building, Suite 500 551 SE Eighth Street Delray Beach, Florida 33444 Gary R Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard N. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue By Notice to Show Cause dated October 24, 1977, the Division of Alcoholic Beverages, Petitioner, seeks to revoke suspend, or otherwise discipline the alcoholic beverage license of NAS, Inc. t/a The Down Beat, Respondent. As grounds therefor it is alleged that on or about August 25, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued; failed to maintain sufficient inventory to serve full course meals; failed to maintain sufficient dining room equipment and employees for the preparation, cooking and service of full course meals; and failed to maintain necessary china and tableware to handle the minimum seating capacity required, all in violation of Rule 3.15 F.A.C. Four witnesses were called by Petitioner, one witness testified in behalf of Respondent, and three exhibits were admitted into evidence.
Findings Of Fact About 10:00 A.M. on August 25, 1977, three beverage agents entered The Down Beat and conducted a routine inspection after identifying themselves as beverage agents. Respondent holds special restaurant beverage license No. 16-692-SR Series 4 COP. At the time of the inspection the bar was open and alcoholic beverages were being dispensed. No personnel were available on the premises to prepare meals and the kitchen was reported to be closed at the time of the inspection. A count of the equipment in the kitchen disclosed 19 knives, 19 forks and 9 spoons clean and ready to be used. Upon inquiry one of the corporate officers produced a paper bag from under the sink which contained 51 spoons, 91 forks, and 161 knives. An additional package of ten plastic forks and an open package of 8 plastic spoons were produced. 163 dinner plates, 130 salad plates, 50 plastic cups, and 60 plastic glasses were counted. The two freezers in the kitchen contained frozen meats and fish. Other food items consisted of condiments, flour, one head of lettuce, sugar, bread, butter, cheese, celery, sausages, and potato mix. Respondent's witness testified that the cook was out shopping at the time of the inspection. The persons identified by name as cook and purchasing agent to the inspectors were not listed on the payroll for the previous month (Exhibit 1). Profit and Loss statement (Exhibit 1) for the month of July, 1977 shows only 4 female employees, each paid $60 per week, food sales of $5,022.50, food purchases of $1,235.47 including $429.30 to Coca Cola and Canada Dry bottling companies, alcoholic beverage sales of $3,086.65 and alcoholic beverage purchases of $3,428.06. Following completion of Respondent's testimony the administrative record of Respondent was admitted into evidence as Exhibit 3. This shows violations of a nature similar to those here under consideration occurred on 10/29/73 and 8/24/74. The latter violations were proven at a hearing held September 27, 1977.
