The Issue One issue posed for decision herein is whether or not the Petitioners are entitled to a transfer of License No. 16-1333 SRX (4-COP), an alcoholic beverage license which currently allows Jacob's Ladder, Inc., to serve liquor, wine and beer as Part of its restaurant business pursuant to Sections 561.32 and 561.321, Florida Statutes. Also at issue is whether or not the Petitioners are entitled to have a default judgment for removal of tenant," issued by the Seventeenth Judicial Circuit in Broward County, against Jacob's Ladder, Inc., recorded by Respondent as a lien pursuant to Chapter 561.65, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received including a stipulation by the parties, the following relevant facts are found. License No. 16-1333 SRX (4-COP) is issued to the premises at 1480 South Ocean Boulevard, Pompano Beach, Florida. Petitioners are owners in fee simple to this property. Petitioners leased this property to the past licensee, Jacob's Ladder, Inc. (Petitioners' Exhibit No. 1). Petitioners transferred the subject license to the lessee, Jacob's Ladder, Inc., for use while they operated a restaurant at the subject location (1480 South Ocean Boulevard, Pompano Beach, Florida). The transfer of the license was not a subject of the lease agreement and the record does not reflect that any consideration was exchanged for the license. Petitioner and Jacob's Ladder, Inc., subsequently executed a transfer application transferring the subject license back to Petitioners. The transfer application was then placed in escrow for the stated purpose of facilitating a license transfer in the event that the lessee defaulted on the lease agreement. (Petitioners' Exhibit Nos. 2 and 12.) Petitioners later learned that the property had been converted to a bar instead of a "family type restaurant." Thus, Petitioners concluded that the "conversion" resulted in a use of the premises in a function inconsistent with the lease and Florida's alcoholic beverage laws. Petitioners, therefore, sought and obtained a court order evicting Jacob's Ladder, Inc., from the premises (Petitioners' Exhibit No. 3). Respondent had notice that the Petitioners were lessors and owners of the property to which the subject license was issued both when Petitioners transferred the license to Jacob's Ladder, Inc., and when the Petitioners' attorneys informed Respondent of Petitioners' status as lessors and owners of the subject property. (Petitioners' Exhibit No. 4.) On January 22, 1979, Respondent, through its District Supervisor, filed charges and prepared an Administrative Complaint for Rule violations against Jacob's Ladder occurring in June of 1978. On February 1, 1979, Petitioners' attorneys met for an office conference with Respondent's Director and other staff personnel concerning the subject license. During this meeting, Respondent, in addition to being advised that Petitioners were the lessors of the subject premises, was also advised that Petitioners had taken possession and was seeking transfer of the license to Petitioners. During this meeting, Petitioners were advised by Respondent that Jacob's Ladder had continuously violated rules governing the special restaurant license which was issued; that Respondent intended to revoke the license and was presently proceeding to that end. On February 5, 1979, Petitioners signed a letter of agreement, stipulating to their future conduct and to the conduct of any future lessee. (Petitioners' Exhibit No. 6.) On February 9, 1979, Petitioners executed an application for transfer of License No. 16-1333 SRX (4-COP)(Petitioners Exhibit No. 12). Also on February 9, 1979, Respondent executed and forwarded two documents captioned a Notice to Show Cause/Notice of Informal Conference and a Notice of Informal Conference both of which were received at two locations by J. Epsimos, President of Jacob's Ladder, Inc., on February 13 and 15, 1979. (Petitioners' Exhibit No. 7.) Petitioners' letter of agreement, application for transfer and request for lien filing were mailed to Respondent on February 16, 1979. On March 8, 1979, Respondent returned Petitioners' transfer application, request for lien recording and letter of agreement. (Petitioners' Exhibit No. 5.) In May, 1979, Respondent drafted a revocation order which was not executed, at least in Part, due to Petitioners application for and receipt of a temporary injunction enjoining Respondent from executing the revocation order. The file on the revocation proceedings was closed on May 29, 1979. (Respondent's Exhibit No. 3.) Following the March 8, 1979, letter wherein Respondent returned Petitioners' application and advised that a revocation proceeding was Pending, Respondent proceeded with this effort to suspend or revoke License No. 16-1333 SRX (4-COP). (DOAH Case No. 79-898.) The licensee, Jacob's Ladder, Inc., communicated to Respondent that it did not contest the charges in the Notice to Show Cause filed February 9, 1979, and therefore, did not want a hearing. The matter was, therefore, closed by this Division on May 29, 1979. (See Respondent's Exhibit Nos. 2 and 3.) The licensed premises is one unit of a 57-unit condominium. The remaining 56 units are all residential. There are currently 41 Parking spaces which serve the condominium. According to the Director of Building and Zoning Enforcement for Broward County, the 41 Parking spaces are inadequate to serve the condominium units and are "clearly inadequate to serve 56 residential units in addition to the subject restaurant. Since the Premises were first licensed to serve alcoholic beverages in 1974, condominium residents have complained to the Director of the Respondent about problems they perceived were being created by the service of alcoholic beverages at the restaurant. (Testimony of Nuzum and Nerzig.) Respondent's Director denied the license transfer for two reasons. First, the premises could never serve as a legitimate restaurant but would continue to operate as a bar due to inadequate parking facilities and thus, would be unable to comply with pertinent rules, regulations and statutes governing special restaurant licenses. (Chapter 561, Florida Statutes.) This is so due to the inadequacy of the parking facilities. Secondly, the licensee bad been in violation of the beverage law in 1977 for the same type of violations charged in the subject complaint when the transfer application was submitted. 2/ The Department (Respondent) has an ongoing policy of refusing to record documents pursuant to Section 561.65, Florida Statutes, when the license against which the document is to be recorded is in a revocation proceeding. (Testimony of C. L. Ivey, Regional Supervisor, Barry Schoenfield, Bureau Chief of Licensing, and C. Nuzum, Respondent's Director.) Also, Chief Schoenfield testified to Respondent's policy of only recording liens from lenders that are licensed by the State. This policy appears to be sanctioned by Chapter 561.65, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the action of Respondent in refusing to transfer License No. 16-1333 SRX (4-COP), and refusing to record Petitioners' judgement and lien filings be SUSTAINED. RECOMMENDED this 27th day of May, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, 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 May, 1981.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law. On or about October 20, 1992, Rebecca M. Abdelmuti, wife of Saber Abdelmuti, made application to DABT for the transfer of a 2-APS Alcoholic Beverage License owned by Grandma's Pantry of Florida, Inc. d/b/a Grandma's Pantry #6, to a new business, C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida, owned by Rebecca M. Abdelmuti. In response to Section II, (B) of the application, Rebecca Abdelmuti listed Saber Abdelmuti as having a direct interest in C & O Food Mart. In Saber Abdelmuti's Personal Questionnaire filed with Rebecca Abdelmuti's application, Saber Abdelmuti indicated that he was investing $25,000 ("same as spouse") in C & O Food Mart. In Rebecca Abdelmuti's Personal Questionnaire filed with her application, Rebecca Abdelmuti indicates that she is also investing $25,000 in C & O Food Mart, using money given to her as a gift by her mother. DABT issued a temporary 2-APS Alcoholic Beverage License, number 63- 00859, to Rebecca M. Abdelmuti, d/b/a C & O Food Mart. On October 14, 1992, Rebecca M. Abdelmuti made application to the City of Lakeland for utility service and issued a check to Lakeland Electric for a deposit in the amount of $2,000 drawn on the account of Saber or Rebecca M. Abdelmuti at the Peoples Bank of Lakeland. Subsequent to the deposit being paid to Lakeland Electric, C & O Food Mart's electric bills, from October 1992, through January 1994, were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 in the name of Rebecca M. Abdelmuti with Peoples Bank of Lakeland which account had been opened on October 27, 1992. Saber Abdelmuti was added as a signatory on account number 00361313 on November 2, 1992. Beginning in February 1994, the electric bills were paid by Saber Abdelmuti with checks drawn on a different account in the name of Saber Abdelmuti with the Peoples Bank of Lakeland. In October 1992, Rebecca M. Abdelmuti had GTE Telephone Company (GTE) install a telephone for C & O Food Mart. From October 1992 through March 1994, Rebecca M. Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. The bank records for account number 00361313 with the Peoples Bank of Lakeland (DABT's exhibit 5) show the last payment made by Rebecca M. Abdelmuti to GTE for C & O Food Mart was December 3, 1993. Beginning in April 1994, Saber Abdelmuti was listed on GTE's records as the sole person responsible for charges incurred for C & O Food Mart's telephone. From October 1992, through January 1994, most of the bills for C & O Food Mart were paid by Rebecca M. Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. However, numerous bills during this period were paid by Saber Abdelmuti with checks drawn on account number 00361313 with Peoples Bank of Lakeland. The Polk County Occupational License for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993) was issued to Rebecca M. Abdelmuti for C & O Food Mart. The application for the Polk County Occupational License for the fiscal year 1993-1994 (October 1, 1993 through September 30, 1994) was signed by Saber Abdelmuti but issued to Rebecca M. Abdelmuti for C & O Food Mart. On February 21, 1994, an application for the transfer of that license from Rebecca M. Abdelmuti to Saber Abdelmuti was completed and the license was transferred to Saber Abdelmuti for the balance of the fiscal year 1993-1994. The Polk County Occupational License for the fiscal year 1994-1995 (October 1, 1994 through September 30, 1995) was issued to Saber Abdelmuti for C & O Food Mart. The City of Lakeland Occupational Licences numbers 5212 and 5213 for the fiscal year 1992-1993 (October 1, 1992 through September 1993) were issued to Saber Abdelmuti for C & O Food Mart. There was no evidence that an occupational license was issued by the City of Lakeland to Rebecca M. Abdelmuti for C & O Food Mart. On October 31, 1992, Saber Abdelmuti obtained membership in Sam's Club in the business name of C & O Food Mart. Saber Abdelmuti was listed as the primary member and responsible party. Rebecca Abdelmuti and Patel Rajnikan were listed as secondary members. At the time Rebecca M. Abdelmuti filed her application for an alcoholic beverage license her record indicated a previous Beverage Law violation which apparently DABT considered sufficient to disqualify her for licensure. Rebecca M. Abdelmuti apparently chose not to oppose DABT on its position and requested, by letter dated April 13, 1993, that her application for a 2-APS Alcoholic Beverage License be withdrawn. The request was approved on June 19, 1993. At all times pertinent to this proceeding, Saber Abdelmuti has held a valid 2-APS Alcoholic Beverage License. On April 12, 1993, Saber Abdelmuti made application for a 2-APS Alcoholic Beverage License in the name of Saber Abdelmuti d/b/a C & O Food Mart, located at 431 S. Central Avenue, Lakeland, Florida. A temporary 2-APS Alcoholic Beverage License, number 63-02546 was issued on April 13, 1993, with an expiration date of July 11, 1993. The application was approved on May 13, 1993, and Saber Abdelmuti continues to hold a valid 2-APS Alcoholic Beverage License, number 63-02546. The following items were attached to the application in the licensure file, DABT's exhibit 1: (a) a document from Lakeland Electric & Water indicating that the bill for C & O Food Mart, account number 2000751-13-7, was to be billed to Saber Abdelmuti; (b) copies of the City of Lakeland Occupational License, Nos. 5212 and 5213 issued to Saber Abdelmuti for C & O Food Mart, 431 S. Central Avenue, Lakeland, Florida for the fiscal year 1992-1993 (October 1, 1992 through September 30, 1993); (c) a Bill of Sale Absolute wherein Rebecca M. Abdelmuti sold to Saber Abdelmuti "All the inventory and assets in the business named C&O Food Mart located at 431 S Central Ave. Lakeland, Florida 33801"; (d) an Amendment To Lease And Fuel Supply Agreement dated April 12, 1993, wherein Rebecca Abdelmuti was released from Lease and Fuel Supply Agreement (Lease) dated October 12, 1992, leaving "Saber Abdelmuti solely responsible for all of the duties and obligations of the Lease under the Lease" as of April 12, 1993 and; (e) a copy of an unsigned document dated April 8, 1993, wherein Saber Abdelmuti agreed to pay Rebecca Abdelmuti the sum of $35,000 with interest at the rate of 8 per cent annually from April 8, 1993. The Respondent, by signing the application, swore "under oath or affirmation under penalty of perjury . . . that the foregoing information" was "true to the best of" his "knowledge and that no other person or entity except as indicated" in the application had "an interest in the alcoholic beverage license and/or cigarette permit and that all of the . . . persons or entities" listed met "the qualifications necessary to hold an interest in the alcoholic beverage license and/or cigarette permit." The Respondent did not list any other person or entity as having an interest in the alcoholic beverage license being applied for. However, Saber Abdelmuti did list Rebecca Abdelmuti as having advanced him $35,000 for the operation of C & O Food Mart on his Personal Questionnaire filed with his application. As evidenced by the Bill of Sale Absolute, Rebecca Abdelmuti sold to Saber Abdelmuti whatever interest, direct or indirect, that she had in C & O Food Mart. Furthermore, the so called "promissory note" is not collateralized by any interest in C & O Food Mart and therefore, does not represent a security interest in C & O Food Mart. Likewise, there is no evidence of any mortgage (chattel or otherwise) on C & O Food Mart held by Rebecca Abdelmuti. Saber Abdelmuti applied for and was issued a Certificate of Registration in the name of C & O Food Mart by the Department of Revenue on April 20, 1993, authorizing the collection of sales and use taxes for the State of Florida. Sometime around March 31, 1993, Rebecca M. Abdelmuti filed a final Employer's Quarterly Federal Tax Return, Form 941, for the quarter ending on March 31, 1993, for C & O Food Mart with the Internal Revenue Service. By notice dated June 7, 1993, the Internal Revenue Service advised Rebecca M. Abdelmuti that the final Employer's Quarterly Federal Tax Return had been received. This filing is consistent with Rebecca M. Abdelmuti transferring the ownership of C & O Food Mart to Saber Abdelmuti. The transfer of ownership is also consistent with Schedule C, Form 1040, Profit or Loss From Business, the W- 2 Wage and Tax Statement 1993, and the W-3 Transmittal of Wage and Tax Statements 1993, Form 940 EZ, Employer's Annual Federal Unemployment (FUTA) Tax Return, and the final Employer's Quarterly Tax Report and Employer's Quarterly Wage Report to the State of Florida filed by Rebecca M. Abdelmuti during and at the end of the 1993 tax year. Saber Abdelmuti's tax records for the tax year ending December 31, 1993, concerning C & O Food Mart are also consistent with Saber Abdelmuti assuming ownership and control of C & O Food Mart from Rebecca M. Abdelmuti sometime around April 1, 1993. Upon assuming ownership and control of C & O Food Mart in April 1993, Saber Abdelmuti hired Rebecca Abdelmuti to manage C & O Food Mart. Saber Abdelmuti's tax records for the tax year 1993 and 1994 show Rebecca Abdelmuti as an employee of C & O Food Mart. On February 21, 1994, Special Agent West, of the DABT conducted an inspection of the premises of C & O Food Mart, located at 431 Central Avenue, Lakeland, Florida. The licensee of record is Saber Ismail Abdelmuti having been issued Alcoholic Beverage License number 63-02546. On February 21, 1994, during Agent West's inspection of the premises, Rebecca Abdelmuti identified herself as the owner of C & O Food Mart. Later on the same day, Agent West had a telephone conversation with Saber Abdelmuti wherein Saber Abdelmuti told Agent West that he knew Rebecca Abdelmuti did not qualify but he wanted her to have her own business as he did. There was no evidence that Saber Abdelmuti specifically told Agent West that Rebecca Abdelmuti had an interest in C & O Food Mart. However, based on his conversation with Rebecca Abdelmuti and Saber Abdelmuti and the fact that only Saber Abdelmuti's name appeared on the license and Saber Abdelmuti's application for license did not show Rebecca M. Abdelmuti as having an interest in C & O Food Mart Agent West decided to investigate further. After inspecting the records of C & O Food Mart, Agent West determined that Rebecca M. Abdelmuti had either a direct or indirect interest in C & O Food Mart and that Saber Abdelmuti had failed to divulge the interest of Rebecca M. Abdelmuti in his application for an alcoholic beverage license. Sometime around the first of March 1994, the C & O Food Mart accounts with GTE and Lakeland Electric were changed to reflect Saber Abdelmuti as being the person solely responsible for the payment of those accounts; the 1993-1994 Polk County Occupational License for C & O Food Mart was transferred to Saber Abdelmuti; and a new bank account was opened in the name of Saber Abdelmuti, d/b/a C & O Food Mart with the Peoples Bank of Lakeland, from which account all C & O Food Mart bills are being paid. It is clear from the record that Rebecca M. Abdelmuti was employed by Saber Abdelmuti as manager of C & O Food Mart after Saber Abdelmuti assumed ownership and control of C & O Food Mart. While Rebecca Abdelmuti receives a salary for managing C & O Food Mart, her salary is not percentage payment from the proceeds of C & O Food Mart and there is no evidence that Rebecca Abdelmuti has any right to a percentage payment from the proceeds of C & O Food Mart. It is equally clear that Rebecca M. Abdelmuti did not have any interest, as contemplated by the language of the Chapter 561, Florida Statutes, or the language of the application, particularly the language of the oath or affirmation in the application, in Respondent's alcoholic beverage license or the business of C & O Food Mart at the time Saber Abdelmuti filed his application for an alcoholic beverage license or any time subsequent to Saber Abdelmuti filing his application for an alcoholic beverage license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that a final order be entered dismissing the Administrative Action filed herein against Saber Abdelmuti. RECOMMENDED this day 28th of August, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1279 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); 9(19-20); 10-11(5); 12(7); 13(8); 14(20); 15(9); 16(6); 17(4-5); and 18(19). Respondent's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(11); 2-3(2); 4(10); 5(11); 6(13); 7-8(19); and 9(14-17). COPIES FURNISHED: John J. Harris, Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda L. Goodgame, Esquire General Counsel Department of Business Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard A. Grumberg, Esquire Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tony C. Dobbs, Esquire 740 South Florida Avenue Post Office Box 2657 Lakeland, Florida 33806-2657
The Issue This case concerns the issue of whether the Respondent's application for a quota beverage license should be granted. At the formal hearing, the Respondent called as witnesses Mr. Berry Wiggins and Mr. Alfred S. Bridges, president and sole shareholder of the Respondent. Petitioner called as witnesses Sgt. Norman Stephens, Beverage Officer John T. McMullen, Alfred S. Bridges and Barry Schoenfeld. The parties submitted proposed findings of fact and conclusions for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not consistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as being not supported by the evidence or unnecessary to a resolution of this cause.
Findings Of Fact The Respondent holds beverage license number 62-248-4-COP SR. This license is issued to the licensed premises known as the Blue Fountain Restaurant and Lounge located at 1045 North Greenwood Avenue, Clearwater, Florida. The beverage license held by Respondent is a special restaurant license with specific requirements relating generally to the sale of food, seating capacity, and hours of operation. These requirements must be met during daily operation in order for the Respondent to retain its beverage license. On January 29, 1979, Respondent by and through its president and sole shareholder, Alfred S. Bridges, applied to the Division of Alcoholic Beverages and Tobacco for a consumption on premises quota license for the Blue Fountain Restaurant and Lounge. Quota licenses do not have the special requirements applicable to special restaurant licenses and are limited in number by the population in each county where issued. On March 22, 1979, the Respondent's application was denied on the basis that no quota beverage licenses were available in Pinellas County. Respondent was informed by the Division of Alcoholic Beverages and Tobacco that additional licenses would probably be available in 1980 following the 1980 census. The Respondent did not dispute the fact that there were in fact no quota licenses available at the time that his application was submitted and considered, and the denial of Respondent's application on that ground by the Division of Alcoholic Beverages and Tobacco was proper. Following the 1980 census, the legislative program for the selection of persons to receive quota beverage licenses by lottery became effective. The Respondent twice applied for such a license but was not drawn in the lottery on either occasion, and therefore was not entitled to a quota license of those applications. The licensed premises is located in an area which is predominantly black and poor. The individuals residing in this area do not frequently utilize the restaurant facilities at the licensed premises and generally cannot afford to order full course meals. There are numerous fast-food restaurants in the same area as the licensed premises and this coupled with the limited financial resources of the patrons in the area makes it financially difficult for Respondent to operate under a special restaurant license. The requirement that the Respondent be able to serve at any given time a certain number of full course meals and the cost of operating a kitchen and food service also places a substantial financial burden on the Respondent. There is no statutory authority or agency rule which permits the Division of Alcoholic Beverages and Tobacco to grant an application for a quota beverage license based on hardship. The Division of Alcoholic Beverages and Tobacco has never issued a quota beverage license based on hardship and has no policy of considering hardship as a criteria for obtaining such a license.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Division of Alcoholic Beverages and Tobacco issue a Final Order denying Respondent's application for a quota beverage license. DONE and ENTERED this 23rd day of November, 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 23rd day of November, 1983. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Alfred S. Bridges, President Willow Run, Inc. d/b/a Blue Fountain Restaurant and Lounge 1045 North Greenwood Avenue Clearwater, Florida 33515 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue for consideration at the hearing was whether Respondent's alcoholic beverage license issued by the State of Florida should be disciplined because of the misconduct alleged in the various charges listed in the Notice to Show Cause filed in this case.
Findings Of Fact At all times pertinent to the issues herein, Petitioner held Florida 2- COP alcoholic beverage license number 26-2036, for his establishment, known as the Dynasty, located at 140 Soutel Drive, Jacksonville, Florida. This license was for the sale and consumption on premises of alcoholic beverages only. In addition, a license was issued by the City of Jacksonville to the Continental Club, c/o Grady Stroy, to operate a dance hall and night club at the same address. Respondent did not have a restaurant license or a license to operate any type of public food service establishment during the time in question. On February 25, 1983, Respondent entered into an agreement in writing with three other individuals, Grady Stroy, John Gibson, and Bobby Wade, whereby each of these latter three would invest with Respondent for an equal partnership in the Continental Club. Thereafter, in April 1983, Respondent officially changed the name of his club from Dynasty to Continental Club. In reality, all three outside partners, Stroy, Gibson, and Wade, each invested at lest $3,000.00. At no time prior to the incidents involved in this hearing, did Respondent disclose to DABT that those three individuals had an interest in his beverage license nor did he notify Petitioner that the name of the club where his license was being used had been changed from Dynasty to the Continental Club. Sometime after June 1983 and the incidents described herein, Respondent applied for a transfer of his license from himself along to himself and his above-named partners. For reasons not pertinent to this hearing, this application was denied. On June 26, 1983, Deborah Powell, in response to a citizen's complaint that alcoholic beverages were being improperly sold on Sunday, entered the Respondent's establishment in an undercover capacity. She observed a table at the door at which admission charges were being collected, and when she got inside, she saw many people who she thought were underage being served what, to her, appeared to be alcoholic beverages. There is no evidence, however, that anyone under the authorized drinking age was drinking alcoholic beverages. Those she looked for food being served and for some means of food preparation there, she found none in evidence. All she could find was a jar of sausages, a bun warmer, and some potato chips. Section 412.402 of the Ordinance Code of the City of Jacksonville, Florida, in effect on June 26, 1983, a Sunday, permits the sale of alcoholic beverages for consumption on the premises only in motels or hotels having 100 or more guest rooms; properly licensed restaurants; airport lounges; fish camps; and private clubs. Respondent's establishment does not fall within any of the above permitted categories. At approximately 9:30 that same night, other officers of the Sheriff's vice squad accompanied by DABT agents entered Respondent's club. When Officer Hall entered the crowded bar, he had the lights turned up and he and other officers began checking the driver's licenses of the patrons to insure they were of age. To do this, they set up a station at the door and had the patrons come out one by one. A check of the driver's license of each patron revealed 20 who were underage. These individuals' names, addresses, and dates of birth were recorded by Officers Hall and another. The minors in the club at the time, who are listed in the charges pertinent to this hearing are: (1) Loraine Doles DOB-Sep 19, '65 age 17 (2) Frederick A. Hayes DOB-Nov 18, '65 age 17 (3) Terry L. Jones DOB-Mar 18, '65 age 17 (4) Jocelyn F. Prince DOB-Mar 15, '66 age 17 (5) Irene D. Reed DOB-Jul 10, '66 age 16 (6) Yolanda D. Williams DOB-Jul 24, '65 age 17 (7) Arabella Washington DOB-May 25, '67 age 16 (8) Sandra D. Hodges DOB-Nov 9, '65 age 17 (9) Ava M. Gardener DOB-Aug 11, '65 age 16 In sworn written statements made to agent Lachman on July 7 and 8, 1983, in Jacksonville, all admitted to being in Respondent's establishment on June 26, 1983, but all deny purchasing or consuming alcoholic beverages while there. None was asked for identification or proof of age before being admitted. Respondent was present at the club at the time all this took place. In a sworn voluntary written statement to agent Lachman on June 28, 1983, Respondent admitted that at the pertinent time in question he had a partnership with Stroy, Gibson, and Wade; that he had a dance hall license to operate his club issued by the city; that he did not have a restaurant license nor did he have the appropriate food preparation and serving equipment to permit him to lawfully sell alcoholic beverages on Sunday; and, that at the time in question, there were 16 to 20 persons under the age of 18 in the lounge. This statement was objected to at the hearing by Respondent's counsel who contended that because Respondent was not given a proper warning of his rights to counsel and against self incrimination prior to making it, it was not admissible at the hearing. The statement, on its fact, reflects its voluntary nature and Mr. Lachman testified that while he did not fully advise Mr. Cobb of his right to remain silent, he did advise him that he could voluntarily make a statement. Full advice of a nature sufficient to support admission of an inculpatory statement in a criminal trial is not required to render such a statement admissible in an administrative hearing such as this. As an admission against interest, it is an exception to the rule excluding hearsay evidence and is admissible. It is corroborated as to the presence in the club of underage individuals by the written statements of those individuals which though themselves hearsay evidence, are admissible to explain or corroborate other admissible evidence such as here. In any case, Respondent offered no evidence to contradict or rebut any of the evidence offered by the Petitioner.
Recommendation In light of the fact that this series of incidents constitutes the first recorded or reported instance of disciplinary action, severe penalty is not indicated. Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Respondent, Mose Cobb, Jr., be fined $250.00 for each of the twelve violations established, for a total of $3,000.00, and that his 2- COP alcoholic beverage license, number 26-2036, be suspended for six months. DONE AND ENTERED this 13th day of November 1984 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 1984. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Courtney Johnson, Esquire 215 Washington Street Jacksonville, Florida 32202 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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 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.
The Issue Whether respondent's alcoholic beverage license should be disciplined on charges that it operated its restaurant in violation of beverage rules.
Findings Of Fact At all times relevant to this proceeding, respondent conducted business as Oscar's Restaurant and Lounge (the "licensed premises" or "premises") at 901 Southwest Eighth Street, Miami, Florida, under a special restaurant alcoholic beverage license, No. 23-2059-SRX (Series 4-COP-SRX), issued prior to April 18, 1972. I. At 2:30 p.m. on November 8, 1979, when beverage officer Louis J. Terminello inspected the licensed premises, the kitchen area was not in use. The kitchen lights were off, no kitchen employees were present, and no food was being prepared. Although alcoholic beverages were being served to approximately three patrons in the bar section of the premises, no food had been served. (Testimony of Terminello.) Officer Terminello then asked Oscar Sarmiento, the on-site representative of respondent, to produce business records reflecting the purchases and sales of alcoholic beverages, food, and nonalcoholic beverages. Mr. Sarmiento replied that the requested records were not on the premises, that they were at the office of respondent's accountant, Mark Thaw. (Testimony of Terminello.) Respondent contends, without corroboration, that DABT, through Officer Terminello, had given oral permission to keep these business records off premises, at its accountant's office. Officer Terminello denied having given such permission. Taking into account the interest and bias of the witnesses, Officer Terminello's denial is accepted as the more credible and is persuasive. The fact that, before or during the time in question, DABT agents inspected respondent's records at its accountant's office does not, by itself, establish that respondent had permission from DABT to keep business records offsite. (Testimony of Terminello, Sarmiento.) Before leaving the premises that day, Officer Terminello explained to Mr. Sarmiento the requirements of special restaurant alcoholic beverage licenses and provided a written notice of deficiencies. (Testimony of Terminello.) At 2:30 PM. on December 5, 1979, Officer Terminello returned to the licensed premises to conduct a follow up inspection. The kitchen area was, again, not in use. A small amount of food was found in the refrigerator. The stove was cold. No food was being prepared or served. Silverware was insufficient to accommodate 200 customers. Several patrons in the bar area were being served alcoholic beverages by Guano Salas, the employee in charge of the premises. (Testimony of Terminello.) At 2:00 P.M.. on the next day, December 6, 1979, Officer Terminello returned to the premises and found a similar situation: the kitchen was not in use, no food was being prepared or served, and patrons were being served alcoholic beverages in the bar area. He then arranged to have another beverage officer, Leonard Del Monte, attempt to purchase an alcoholic beverage and a meal. At 3:00 P.M.., Officer Del Monte entered, ordered an alcoholic beverage, and asked for "something to eat." Juana Salas, the employee in charge, told him that he could go "down the street," that there were plenty of restaurants in the area. He asked for a menu but was net given one. Although there were patrons drinking in the bar area, none were eating or being served meals. (Testimony of Terminello, Del Monte.) At 5:30 P.M.. on December 7, 1979, Officers Terminello and Del Monte returned to the premises. Officer Del Monte, in an undercover capacity, ordered and was served an alcoholic beverage. He requested a menu but Ms. Salas told him that no food was being served. Other Patrons were being served drinks but none were consuming meals. (Testimony of Terminello, Del Monte.) At 4:40 P.M.. on December 11, 1979, Officers Terminello and Del Monte again entered the premises. Patrons were at the bar drinking but no food was being prepared or served. When Officer Del Monte ordered a meal, he was told that food was not being served because the kitchen was being disinfected. He ordered and was served an alcoholic beverage. (Testimony of Terminello, Del Monte.) During each of the foregoing inspections of the licensed premises, Officers Terminello and Del Monte remained on the premises for approximately 20- 30 minutes. (Testimony of Del Monte, Terminello.) Oscar Sarmiento, former owner of the licensed premises, testified that, to his knowledge (although he was not always on the premises) meals could almost always be purchased on the premises, that lunch could normally be purchased in the early and mid-afternoons. (Testimony of Sarmiento.) II. Prior to February 28, 1979, Oscar Sarmiento was the owner and president of respondent. On February 28, 1979, Elma Sarmiento, his wife, became sole owner and was elected president, treasurer, and secretary of respondent corporation. (Testimony of Sarmiento; R-3, R-4.) On February 28, 1979, Rene Valdes, a beverage license broker acting on behalf of respondent, filed with DABT forms indicating that Elma Sarmiento owned all stock of the respondent corporation and that she was elected president, treasurer, and secretary at the corporate director's meeting held on February 28, 1979. 3/ (In anticipation of the change in ownership, Mrs. Sarmiento had been fingerprinted by DABT on November 13, 1978.)(Testimony of Valdes; R-2, R-3, R-4.) III. By final order dated December 12, 1979, that portion of Rule 7A-3.15, Florida Administrative Code, which requires special restaurant licensees to "discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued" was declared an invalid exercise of delegated legislative authority by a Division of Administrative Hearings hearing officer. Gainesville Golf and Country Club, Inc. v. Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, DOAH Case No. 79-1851R, affirmed, 402 So.2d 616 (Fla. 1st DCA 1981). DABT concedes that this portion of Rule 7A-3.15 is ineffective 4/ and any evidence concerning violation of it "cannot be used as an indication that the licensee was operating in a manner not consistent with its alcoholic beverage license." (Challenge to the validity of Rule 7A-3.15 filed by DABT on April 27, 1982.)
Recommendation Based on the foregoing, it is RECOMMENDED: That DABT impose a civil penalty of $1,000 against respondent for the rule and statutory violations as described above. DONE AND RECOMMENDED this 5th day of August, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 5th day of August, 1982.
The Issue Whether Petitioners' applications for the delinquent renewal of their special restaurant licenses pursuant to Section 561.27(2), Florida Statutes, should be denied for the reasons set forth in the Notices of Intent to Deny.
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 1958.3 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.4 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.5 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." Abkey and Amy Cat have SR licenses that were originally issued in 1956 "per general law and not pursuant to any special or local act." Maneros has an SR license that was originally issued in 1952 "per general law and not pursuant to any special or local act." As applicants applying to delinquently renew their SR licenses, 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. Maneros 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 June 4, 2007. On the application form, Maneros gave no "explanation for not having renewed during the renewal period"; however, the application was accompanied by a letter from a Maneros representative, which read, in pertinent part, as follows: I am today submitting a delinquent renewal application for the above-referenced alcoholic beverage license. The building has been demolished, and there is a vacant lot at the site at this time. Redevelopment is scheduled for this area, and I expect new construction to begin shortly. The license was first issued to this location 55 years ago. I have inquired with the City of Hallandale Beach, Florida, and there remains a question as to whether zoning approval for this type of alcoholic beverage license would be permitted under current uses once reconstruction is complete. The licensee of record wishes to reinstate and possibly use or transfer the license. . . . On June 8, 2007, DABT issued a Notice of Intent to Deny Maneros' 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. SR licenses will not be allowed to be moved from the location where the license was originally issued. 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.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order granting Petitioners' applications for the delinquent renewal of their SR licenses. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2008.
Findings Of Fact In December, 1982, DABT issued an alcoholic beverage license (Lic. no. 15-1163, Series 4-COP SRX) under its SRX classification to respondent to operate a restaurant with liquor sales on the premises. The restaurant was known as "Thee Doll House Beach," at 199 East Cocoa Beach Causeway, in Cocoa Beach, Florida. A requirement of the license was that revenue from sales of alcoholic beverages equal or exceed 51 percent of gross sales. Respondent opened "Thee Doll House Beach" for business in January, 1983. The business operated as a buffet restaurant, with a fixed-price, "all- you-can-eat" menu. Meals consisted of a hot entree, chosen from baked ham, roast beef and turkey; a selection of four or five hot vegetables; a large salad bar; two soups; and a desert tray, with pies, pastries and cakes. The business also offered alcoholic beverages for sale in the restaurant and at a bar. A "Las Vegas-style" show was presented nightly at eight o'clock, although the restaurant opened at noon. The first month's (January 1983) sales of food only reached 40.6 percent of gross sales, and subsequent efforts of the respondent to reach 51 percent were never successful. The initial price of a buffet meal was $4.95 per person, which attracted a sizeable number of patrons, many of them senior citizens. However, the respondent found that due to the extensive food menu and the cost of preparation and service, it was losing money on each meal sold. So it increased its meal price to $5.95, which resulted in a drastic drop in business, apparently due to the inability of senior citizens to pay the higher price. It was in this particular group that the most noticeable decrease in attendance occurred. The respondent took various steps to increase its food sales. "Early- bird" specials were introduced at a lower price; extensive newspaper, radio and television advertising was utilized to promote the buffet. Nevertheless, at the end of 1983, the business had shown an overall food sales of only 31 percent. Monthly percentage figures are as follows: DATE FOOD/NON-ALCOHOLIC BEVERAGE PERCENTAGE ALCOHOLIC PERCENTAGE January 1983 40.5 59.5 February 1983 27.1 72.9 March 1983 37.3 62.7 April 1983 33.5 66.5 May 1983 31.9 68.1 June 1983 29.1 70.9 July 1983 27.5 72.5 August 1983 23.9 76.1 September 1983 24.1 75.9 October 1983 23.4 76.6 November 1983 23.6 76.4 December 1983 23.3 76.7 The respondent's problems were compounded by the fact that it was operating in a difficult, if not depressed market, where financial conditions had limited the discretionary income available to restaurant-going consumers. Other restaurants in the area were having to cut back operations or terminate business altogether. During the year in question, the respondent held itself out to be a restaurant, not a lounge, and its primary emphasis in advertising, in its internal business operation and in its physical layout, emphasized food sales as opposed to liquor sales. During the time period in question the price of a meal at Thee Doll House Beach was significantly below its fair market value. The respondent attempted to increase its food sales by lowering prices, which, in turn, decreased the percentage of gross food sales. According to the evidence, a reasonable price for the menu offered, based on a comparison with other restaurants in Central Florida, would have been $8-$10. Using those price figures, the percentage of food sales to gross revenues at Thee Doll House Beach would have exceeded 60 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's beverage license be revoked but that such action be vacated if respondent surrenders its license for cancellation within 10 days of entry of DABT's final order. DONE and ORDERED this 15th day of August, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 15th day of August, 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire 1212 East Ridgewood Street Orlando, Florida 32803 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues for determination in this proceeding are: Whether Respondent sold alcoholic beverages on two occasions when the service of full course meals had been discontinued; Whether Respondent offered or allowed the operation of a football pool on the licensed premises; and If so, what disciplinary action is appropriate.
Findings Of Fact Arthur A. Peloso, doing business as Peloso's Spaghetti House, currently operates, and at all relevant periods was operating, under alcoholic beverage license number 59-129 SRX, Series 7-COP, a "special restaurant license." The premises are located at 1709 West Vine Street, Kissimmee, Florida. The premises consist of the main part of the restaurant, accessible by a door fronting the street; a lounge in the rear, accessible from the main restaurant and by a side door; and a kitchen, accessible to employees from both the lounge area and the main restaurant. The bar counter is located on the far end of the lounge, opposite the side entrance and adjacent to the kitchen. On September 22, 1986, at approximately 5:00 p.m., Beverage Agent Ronald P. Sullivan, visited the premises at the direction of his supervisor. The marquee in front read: "Restaurant Closed-Vacation. Lounge Open, 4-2." Sullivan entered through the side entrance and went back to the bar, where he was served a beer by the bartender, "Pat." Pat was serving drinks, mixing drinks and ringing up sales on the cash register. Sullivan asked what he could get to eat and Pat's response was, "popcorn." There was some conversation regarding the owner being on vacation and wanting to make some changes in the facility and that the kitchen was closed down. At the hearing, Sullivan identified Patrick Plunkett, also present, as the bartender. The same Beverage Agent returned to the licensed premises around 6:00 p.m. on September 25, 1986. Again, Pat was behind the bar and served him a beer. Again, Sullivan asked what he could get to eat and the response was, "popcorn." Pat also said he had a football pool that "Dale" who worked in a car lot helped him get going. Pat said it was Dale's idea and he pointed Dale out in the lounge. Pat pulled a sheet (Exhibit #3) from other sheets behind some whiskey bottles and showed Sullivan how to play. Sullivan filled it out and gave Pat $10.00. Sullivan returned on October 7, 1986. A woman identified as "Tina" was working behind the bar. Pat was not there. Sullivan asked Tina who won the football pool, and she replied that some guy at the car dealership won $350.00. Tina also told Sullivan that the restaurant had reopened after a three- week vacation, and a cook was on duty. On the occasions of his visits, Sullivan did not notice menus or meal set-ups on the tables in the lounge. He had to pass the tables to get to the bar, where he sat. He never tried to order food, as on the first two visits he had been told all they had was popcorn. On the third visit, he accepted the fact that the kitchen was open. He saw evidence of the football pool only on one occasion, the 25th of September; he did not see Arthur Peloso, or Peloso's son, the manager, on any occasion. In the three visits, Sullivan saw a total of six or seven people drinking in the lounge, but not eating. In his testimony, Patrick Plunkett admitted that he told Sullivan that only popcorn was available. The bartenders and waitresses are trained to cook and serve food and have been told to provide food to patrons when requested during business hours. Pat admitted that he did not serve food to Sullivan as the cook did not show up and he (Pat) was "too lazy to serve it." Pat also admitted that he assisted patrons in playing the football pool, but that he was doing it as a favor for a friend from the Pontiac dealership. This was a short-term arrangement and Pat did not receive a commission or any monetary gain from his participation. To Pat's knowledge, neither Peloso nor his son, the manager, were aware that food was not being served in the lounge during their vacation, nor were they aware that the football pool was being conducted. In his opinion, the Pelosos would have taken immediate corrective measures. This was confirmed by Arthur S. Peloso, Peloso's son, who serves as manager of the business. Their business is primarily food and they could not remain in business without the food. Their intent was that the lounge should serve as additional seating for the restaurant. He conceded that the restaurant was briefly closed, but insisted that the kitchen was never closed and the waitresses and bartender should have served food as they had been instructed. Captain Jack B. Wallace from the Division of Alcoholic Beverages and Tobacco described the policy of the agency with regard to investigations, enforcement and civil penalties for violations. The non-rule policy is to assess a $500.00 civil fine for a first-time offense. He said that the two counts relating to the sale of alcoholic beverages without food should be treated as a single violation. No testimony or other evidence of prior violations by Respondent was presented, and the two witnesses for Petitioner knew of none.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered by the agency, finding Respondent guilty of violation of Rule 7A-3.015, Florida Administrative Code, not guilty of violation of Section 561.29(1)(a), Florida Statutes, and assessing a civil penalty of $500.00. DONE and RECOMMENDED this 14th day of July, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0844 The following constitute my rulings on the proposed findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #3. Adopted in substance in paragraphs #4 and #7. Rejected as unnecessary Adopted in substance in paragraphs #4 and #7. Adopted in paragraph #5. Adopted in part (as to availability of only popcorn) in paragraph #5; otherwise, rejected as unnecessary. Rejected as immaterial. Adopted in substance in paragraph #5. Adopted in paragraph #6. Adopted in paragraph #12. Respondent's Proposed Findings of Fact #1 and #2 The essential facts proposed here are adopted in my findings of fact #3, #9, #10 and #11, however, these facts alone are not dispositive of the issues in the proceeding. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Arthur A. Peloso 1960 Southeast 19th Street Pompano Beach, Florida 33062 Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1007 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
