The Issue Whether Florida Administrative Code Rule 61A-3.0141(2)(a)2., and its directive that the square footage making up the licensed premises of a special restaurant (SRX) license be “contiguous,” constitutes a valid exercise of delegated legislative authority. Whether a genuine issue of material fact exists, and, if so, whether Petitioner’s Motion for Summary Adjudication should be denied.
Findings Of Fact The following findings of facts are determined: The State of Florida, Department of Business and Professional Regulation (Respondent) is the state agency responsible for adopting the existing rule which is the subject of this proceeding. Under the provisions of Section 561.02, Florida Statutes, the Division of Alcoholic Beverages and Tobacco, within the Department of Business and Professional Regulation, is charged with the supervision and enforcement of all alcoholic beverages manufactured, packaged, distributed and sold within the state under the Beverage Law. The Division issues both general and special alcoholic beverage licenses. Petitioner, Brooklyn Luncheonette, LLC, d/b/a Del Tura Pub and Restaurant is the owner/operator of a restaurant located in North Fort Myers, Florida. It is seeking issuance of a special restaurant license (SRX) pursuant to Subsection 561.20(2)(a)4., Florida Statutes, from the Division. Therefore, Petitioner is substantially affected by the challenged rule. Petitioner operates a restaurant on a leased parcel of property consisting of two buildings with a dedicated pathway between the two buildings. Petitioner’s restaurant premises consist of two buildings which contain a minimum of 2,500 square feet in the aggregate of service area. Petitioner’s restaurant facility is equipped to serve 150 patrons full course meals at tables at one time. The sole reason asserted by Respondent for denial of Petitioner’s application is the alleged noncompliance with the “contiguous” requirement of Florida Administrative Code Rule 61A-3.0141(2)(a)2. The provision of general law, applicable to Petitioner, which sets forth the specific criteria for an SRX license, is Subsection 561.20(2)(a)4., Florida Statutes. To these statutory criteria, Respondent has, by Florida Administrative Code Rule 61A-3.0141(2)(a)2., added an additional criteria: “The required square footage shall be contiguous and under the management and control of a single establishment.” Respondent has interpreted the provision to mean that the buildings containing the square footage must physically touch. Florida Administrative Code Rule 61A-3.0141 reflects that the sole law implemented is Subsection 561.20(2)(a)4., Florida Statutes. Susan Doherty is the chief of Respondent’s Bureau of Licensing, whose duties include determining “if a license will be issued based upon the qualifications of the applicant [and] whether the premises meets all requirements based on the type of license applied for.” Ms. Doherty, whose deposition was taken on May 12, 2009, testified in pertinent part: Q. All right. If I can direct your attention to Subsection (2)(a)(2) of Rule 61A-3.0141, it says, “The required square footage shall be contiguous and under the management and control of a single licensed restaurant establishment.” What does “contiguous” mean? A. Touching, actually connected, touching. * * * Q. Do you see anything in the statute that prohibits a licensee from qualifying if the square footage is in two buildings that the applicant leases and they’re connected by a pathway which the applicant leases? Do you see anything in the statute that precludes that? A. In the statute, no. Q. Do you see anything in the rule that precludes that? A. In my opinion, Section (2)(a)(2), the contiguous would. Deposition of S. Doherty, pp. 15 and 18. Chief Doherty conceded, however, that she could not point to any provision of the relevant statute that imposes a “contiguous” requirement regarding the square footage. Chief Doherty further noted that for special licenses issued for hotels pursuant to Subsection 561.20(2)(a)1., Florida Statutes, she was aware that there were numerous non-contiguous buildings licensed pursuant to such section. The deposition of Respondent’s agency representative, Major Carol Owsiany, was taken on May 13, 2009. Major Owsiany testified: Q. . . . Isn’t it correct that there’s 2,500 square feet of service area located in the two buildings that are currently the subject of the [Petitioner’s] temporary SRX license? A. Yes, sir. Q. Can you point to me any provision of Section 561.20(2)(1)(4) that precludes the petitioner from having the requisite square footage in two buildings? A. One second, sir. Not in the statute, but I can in the rule. Deposition of C. Owsiany, p. 8. For purposes of this rule challenge case, there are no genuine issues of material fact in dispute.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Natural James Supper Club Catering, located at 4322 North State Road 7, Lauderdale Lakes, Florida, held a catering license issued by DABT. The license number is number BEV 1616571, Series 13CT. This license authorized Natural James Supper Club Catering to provide catering services at its premise's location. Natural James Supper Club Catering is subject to the regulatory jurisdiction of DABT as a result of having been issued such a license by DABT. At all times material hereto, the sole owner of Natural James Supper Club Catering was Larnieve Uter. On March 24, 2003, having received a complaint that Natural James Supper Club Catering was selling alcoholic beverages in a manner not permitted by its license, DABT initiated an investigation. On March 24, 2003, Captain Patrick Roberts and special agents of DABT entered the premises of Natural James Supper Club Catering. Accompanied by the husband of Mrs. Uter, Glasford Uter, Captain Roberts and the other agents observed alcoholic beverages that had been used at a prior catering event being stored at Natural James Supper Club Catering; observed alcoholic beverages at Natural James Supper Club Catering that did not have excise tax stamps on them; and observed for sale a bottle of an alcoholic beverage that had been refilled with an unknown spirituous beverage. As to the storing of alcoholic beverages, according to Captain Roberts, the license held by Natural James Supper Club Catering prohibits it from storing alcoholic beverages that were used in a prior catering event. Instead, Natural James Supper Club must return the alcoholic beverages to the vendor from whom they were purchased. Further, Natural James Supper Club must possess a contract between it and the vendor; however, no such contract was presented to Captain Roberts or any of the other agents. DABT seized the alcoholic beverages and took pictures of them. DABT seized 191 bottles of wine, 118 containers of spirits, and 959 containers of beer (cans and bottles).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order: Finding Uter Investment Corp., d/b/a Natural James Supper Club Catering in violation of Section 561.29(1)(a), Florida Statutes (2001), through violating Sections 562.12(1), 562.01, and 565.11, Florida Statutes (2001). Imposing a fine of $2,500 and excise tax upon Uter Investment Corp., d/b/a Natural James Supper Club Catering. Suspending, for a 20-day period, the license of Uter Investment Corp., d/b/a Natural James Supper Club Catering. Imposing a forfeiture of the seized alcoholic beverages. DONE AND ENTERED this 4th day of August 2004, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 August, 2004.
Findings Of Fact Lorraie P. Strickland is the proprietor of a bowling alley in Panama City, Florida, called the Bowlarama, an is licensed to sell beer on the Bowlarama premises. Ms. Strickland does in fact buy beer from various distributors and sell it at retail at the Bowlarama. In 1975, as in preceding years, the Bowlarama hosted a tournament conducted under the auspices of the Professional Bowlers Association. By hosting the tournament, Ms. Strickland incurred expenses of approximately eighteen hundred dollars ($1,800.00). This tournament was part of a series or tour. The Professional Bowlers Association caused a "PBA Tour Program" to be printed, for use throughout the tour. The program consists of 80 pages, exclusive of inserts by local tournament hosts. The PBA Tour Programs offered for sale at the Bowlarama in 1975, contained 16 pages bound into the middle of the national publication. Almost the entire insert was devoted to advertising by local advertisers, whom Ms. Strickland had solicited. She used the revenue from this advertising to defray the costs of the tournament. Charles Hoskins is president of petitioner, a licensed beer distributor. Mr. Hoskins was one of the persons Ms. Strickland asked to purchase an advertisement in the PBA Tour Program insert. Mr. Hoskins telephoned his attorney and inquired whether making the purchase on behalf of petitioner would create a legal problem. Being advised that it would not, Mr. Hoskins purchased a full page advertisement on petitioner's behalf for one hundred dollars ($100.00). There was no evidence that this price was greater than the price charged any other local advertiser for a full page advertisement. At Ms. Strickland's behest, Mr. Keith Adams composed the advertisement for petitioner and the four beers distributed by petitioner, which appeared in the 1975 PBA Tour Program. The inside of the front cover of the 1975 PBA Tour Program was devoted to an advertisement for a beer which petitioner does not distribute. The 1974 PBA Tour Program insert contained advertisements for three of petitioner's local competitors. Mr. Grady Leon Broxton, Jr., an employee of respondent, inspected the Bowlarama on February 19, 1976. Although he found beer of the kinds distributed by petitioner and no other kinds, the Bowlarama buys beer from petitioner's competitors as well as from petitioner. After a hiatus of approximately five years, petitioner began selling beer to the Bowlarama about three weeks before Ms. Strickland approached Mr. Hoskins about the advertisement. The earlier sales by petitioner to the Bowlarama ceased when Ms. Strickland told Mr. Hoskins to stop deliveries, giving as her reason that she had caught one of petitioner's employees stealing from her. The deliveries began again after Mr. Hoskins told Ms. Strickland that the employee in question had retired.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause. DONE and ENTERED this 22nd day of February, 1978, 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: Mr. Francis Bayley, The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Mr. Franklin R. Harrison, 406 Magnolia Avenue Panama City, Florida 32401
The Issue Whether Golden Corral discriminated against Mark Turner on the basis of his race at Respondent's restaurant or place of public accommodation, and, if so, what the relief should be.
Findings Of Fact Based on the evidence presented, the undersigned makes the following findings of material facts: At the time of the incident, Turner was a 56-year-old African-American. He is married and has a six-year-old daughter. He worked for General Motors for 30 years on the assembly line and also worked as a line coordinator. In 2011, he retired and purchased a condominium in Homestead, Florida, where he lives with his wife and daughter. After he retired, he purchased and now rents several condominium units in Columbia, South America. He visited the Golden Corral restaurant approximately one time each month with his family. The Golden Corral restaurant offers a buffet to its patrons. However, there is a "No Sharing" policy posted on a placard in the lobby. See Resp.'s Ex. 2. The sign states the following: Please, no sharing. In the interest of keeping our food prices as reasonable as possible, we ask that you please not share food from the Golden Corral buffet. To-go meals from the buffet are available for purchase. Ask your server. On an unspecified date in October 2014, a customer complained to the staff, that another customer (later identified as Turner) was taking food from the buffet and putting it in plastic Tupperware containers. The complaining customer was a female African-American. Based on this information, Feliciano watched Turner approach the buffet and put items of food in a Tupperware container. This was also being done by a female identified as Turner's wife. During the first incident, Feliciano took Turner aside to a private room, explained what he had observed, and asked him to leave the property. It was Feliciano's testimony that Turner did not deny taking food. He also told him he was expelled from the restaurant. Feliciano testified that Turner was a frequent guest, and, so, Feliciano was able to positively identify him as the person violating the no sharing policy. When Turner and his family left the restaurant, Feliciano noticed that he was carrying re-usable, grocery-type bags with him capable of storing Tupperware containers. Several weeks later, Feliciano observed Turner in line attempting to enter the restaurant. Feliciano approached Turner and reminded him that he had been expelled and instructed him to leave the premises. This was done without incident. Apparently, there was video surveillance available which would have captured some or all of the incidences in question. However, no photographs or video surveillance were offered into evidence by either party. Feliciano had worked at this restaurant for approximately ten and one-half years. The company grants fairly wide discretion to its managers to take action against customers who violate rules. That discretion ranges from calling the police to expelling patrons under appropriate circumstances. The president and CEO of Golden Corral testified that the company offered general training to staff members related to problem customers. He related that there was "lots of training books and videos" given to general managers and staff regarding how to handle problematic customers and patrons. However, there was no training offered on specific adverse situations. The company does offer "discrimination training" to its staff and general managers during meetings and company conferences. A company named Speilman1/ out of Winston Salem, North Carolina, provided this training. The president spoke with Turner on the telephone. He told Turner he concurred with the general manager's decision to expel him. During the course of this telephone discussion, Turner did not deny taking food and asked if he could come back to the restaurant "if he stopped." (The context of this comment was if he stopped violating the no sharing policy.) Upon further inquiry, the president testified that he was absolutely sure that Turner told him this. Feliciano testified that Golden Corral serves people of all races and backgrounds. He stated that the "no sharing" policy was prominently displayed at the restaurant. The customer, who complained about Turner's conduct, said that she watched him fill Tupperware containers with chicken and ribs. She mentioned that this was very upsetting to her. Feliciano also checked the plates being removed from Turner's table and saw that there was "residue" of chicken and/or ribs on the plate, but no empty bones on the plate. (He concluded that since no bones had been left on the plate, this confirmed that the plates had been used to carry food back to the table and then placed in a container or bag.) Feliciano stated that Golden Corral did not deny services to Turner because of his race. He gave an example when two Hispanic women had been expelled for the same conduct. The undersigned reviewed Respondent's Exhibit 4, entitled Investigative Memorandum FCHR number 201500480. The investigation conducted by FCHR appears to be thorough and comprehensive. All parties were interviewed, affidavits were collected, and a witness was interviewed. This is a de novo proceeding. Based upon the evidence presented, there does not appear to be any basis to dispute the investigative findings and recommendations of the agency, and the evidence presented during the final hearing before the undersigned was consistent with the information collected by FCHR during its investigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Turner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2015.
The Issue The issue is whether Petitioner should pay a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. Exhibit 1 —— : a ey Jone - _ _ a
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact contained in the Recommended Order as if fully set forth herein.
Conclusions For Petitioner: John Beebe, pro se 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 For Respondent: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee, Florida 32399-1050
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order requiring 30-A Restaurant Group, Inc., to pay to the state of Florida a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. DONE AND ENTERED this 29th day of October, 2009, in Tallahassee, Leon County, Florida. org Lengo HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2009. COPIES FURNISHED: John Beebe 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee; Florida~-32399-1050- Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
Other Judicial Opinions Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110 Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida 32314-6668 [FAX (850) 488- 7112], AND by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 Copies furnished to: Harry L. Hooper Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL. 32399-3060 Warren J. Bird Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol-Plaza Level 01 Tallahassee, Florida 32399-1050 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 S. Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 S. Calhoun Street Tallahassee, Florida 32399-0100 es) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 30-A RESTAURANT GROUP, INC., Petitioner, vs. Case No. 08-5823 DEPARTMENT OF REVENUE, Respondent.
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 The ultimate issue in this case is whether the Petitioner's application for a special (SRX) restaurant alcoholic beverage license should be granted.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witness at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact: Stipulated Facts The special restaurant license is sought for the Brass Elephant Restaurant within the corporate limits of the City of Sanibel, Florida. The restaurant is located on a 7.7-acre parcel of property adjacent to the Gulf of Mexico. The restaurant is located within a resort complex known as the Sanibel Island Hilton. Seating within the restaurant itself is limited to 100 seats by court order and zoning regulations of the City of Sanibel. No bar is maintained within the restaurant itself. The Brass Elephant Restaurant derives more than 51 percent of its revenue from the sale of food and non-alcoholic beverages. The Brass Elephant Restaurant has in excess of 2,500 square feet of service area. The Sanibel Island Hilton is being operated as a first-class destination resort. Hilton Corporation has stringent constraints on the operation of such a resort and has made special exceptions for this resort in light of the special zoning and building restrictions imposed by the City of Sanibel on the resort area; these special exceptions allow, inter alia, separate buildings and outside walkways. The restaurant in question is an accessory use to the Hilton Hotel, and is not an autonomous restaurant. There is no separate sign advertising the restaurant as an individual entity. Access can only be gained from the hotel grounds. By virtue of the development permit issued by the City of Sanibel, the Hilton is precluded from operating a saloon, lounge or restaurant separate and apart from its food service operation. Additional Facts Proved at Hearing The Petitioner also has a banquet facility on the premises known as the "Commodore Suite." It is located approximately 250 feet from the Brass Elephant. Meals for the Commodore Suite are prepared at the kitchen facility in the Brass Elephant. On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150. The Petitioner has available on the resort premises all of the necessary equipment to serve more than 150 persons at one time in the Brass Elephant, though the City of Sanibel prohibits it from having more than 100 seats in the restaurant. In addition to the restaurant and the banquet room, there is also a pool bar on the Petitioner's resort premises. The restaurant, pool bar, and banquet room are physically separate from each other. The distance between the restaurant and the banquet room is approximately 250 feet and the distance between the restaurant and pool bar is about the same. There are no separate walkways from the various buildings to the restaurant. To walk from the restaurant to the banquet room, one has to walk across a street, part of a parking lot, and around or under one of the other buildings at the resort. To walk from the pool bar to the restaurant or the banquet room, one has to walk around or through another building. The foregoing paragraphs numbered 1 through 16 comprise all of the findings of fact in this case. Such findings include the substance of all of the findings proposed by the Petitioner and the substance of the vast majority of the facts proposed by the Respondent. To the extent I have not made certain proposed findings of fact, such proposed findings are irrelevant and immaterial to the issues to be decided in this case.
Recommendation For all of the reasons set forth above, I recommend that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the application of Shell Harbor Group, Inc., for a special restaurant liquor license. DONE and ORDERED this 1st day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Lee Ann Burgess was employed on March 17, 1975, as the Administrator of the Domestic Tourism Section, Division of Tourism, Department of Commerce. During her initial years of employment, Edward J. Trombetta was the Secretary of the DOC. He remained in that position from February of 1975 through December 31, 1977. The DOC then had several Divisions--one of which was the Division of Tourism--and these Divisions were broken down into Bureaus which were, in turn, composed of various Sections. Mr. Trombetta was of the opinion that only himself, his Assistant Secretary and his Division Directors were policy-makers within the DOC and that other employees simply implemented that policy. According to Mr. Trombetta, policy-making deals with personnel matters and implementation of the budget appropriated by the Legislature. Decision- making and policy-making emanated from the Secretary's office. While the Section heads or administrators might recommend ideas which would lead to "policy," they had no authority to "establish" the course of policy for their respective Divisions or Sections, according to Mr. Trombetta. The December, 1976 job description for the position of Administrator of the Domestic Tourism Section included, in part, the following duties and responsibilities: -- being a working supervisor over a majority of the promotional activities of the division -- creating, directing and supervising the approved promotional and selected advertising programs. "He must not only plan the programs, he must budget each one as well as the entire Domestic Development Section." -- recommending new markets and objectives to the Division Director and advising on all aspects of promotion, utilizing research statistical information to support such recommendations and advice -- directing a staff of promotion specialists -- maintaining a constant contact with the higher echelons of the Department of Commerce as well as other government agencies and the private sector of the travel industry -- handling personnel both within the confines of the office and those that are required to be at great distances from the office in following through on the projects -- working with publishers of travel oriented publications in creation of special sections and issues on facets of Florida tourism -- initiating and carrying through promotions with department stores, other chain stores, industry, common carriers, resort areas and many others -- recommending and coordinating publicity in conjunction with the other areas of the Department of Commerce -- representing the Division at conferences of national, regional travel organi- zations -- creating and implementing special events which insure Florida's continued growth as a site for major sports activities -- developing and recommending advertising programs which illuminate Florida's sports attractions -- preparing, editing and distributing publications on promotional tourism activities and information on sports activities and facilities within Florida. During petitioner's tenure as Administrator of the Domestic Tourism Section, she was directly responsible to her Bureau Chief, Ron Miller. At the beginning of each fiscal year, she submitted for Mr. Miller's approval a listing of appropriate functions and trade shows to attend for that year. She submitted a requested budget. On occasion, Mr. Miller would discuss with her which projects or functions would need to be rejected because of the availability of funding. All promotional functions and long-term commitments had to be approved by Bureau Chief Miller. Petitioner could not expend money without prior approval and did not feel that she had the authority to commit funds, resources or time without prior approval from her Bureau Chief. She perceived that her authority was limited to the implementation of preapproved promotional programs and functions. Once a program was approved, it was her responsibility to create a theme for that program. Her decision as to who should attend certain programs or promotions was occasionally overridden by her Bureau Chief. During petitioner's tenure, the Domestic Tourism Section was composed of an administrator, a secretary and two promotional specialists, and conducted approximately 19 to 21 promotions per year. The goal of the DOC's Division of Tourism is to increase the number of visitors and to create more trade in Florida on an annual basis. When Sidney Levin became the Secretary of the DOC in March of 1979, he contemplated a reorganization and expansion of the Division of Tourism. He anticipated that the Division would obtain a greatly increased staff and an accelerated program in the tourism sales department. It was Mr. Levin's concept that, the three section heads were, as known in the business world, "sales managers" and that an extensive marketing plan would be developed for the Division of Tourism. The three "sales managers or section heads were to be in the areas of domestic sales, international sales and convention sales. (Later, a Latin American sales section was created.) The persons occupying these positions were responsible for the management of those sections and were to be active in the creation of a marketing plan for the entire Division. The majority of the work accomplished on the marketing plan was to come from the various sections, and the section heads would have the responsibility for that function. The section heads were to generate the ideas for the overall plan, to determine what was possible and what was not possible and then to implement the plan once approved. During Secretary Levin's tenure with the DOC, the head of each Department was permitted to designate ten "policy-making" positions as exempt from the Career Service System subject to the approval of the Department of Administration. Section 110.205(2)(h), Florida Statutes (1979) (now Section 110.205(2)(i)). In accordance with his reorganization and expansion plans for the Division of Tourism, Secretary Levin, by letter dated December 12, 1979, requested approval from Secretary Nevin Smith. DOA, to exempt from the Career Service System the positions of Administrator of Tourism Development (position number 00063) and Administrator of International Tourism (position number 00067). Two other positions not relevant to the issues herein were also requested to be exempt as policy-making positions. By letter dated December 14, 1979, Secretary Smith informed Secretary Levin that the four requested positions had been exempt from the Career Service as policy-making positions. [The convention sales section of the Division of Tourism was not yet created. When that position was later created, a request for a similar Career Service exemption was granted.] At the time of the requested exemption of petitioner's position, the only written guideline in existence as to a "policy-making" position was contained in a memorandum dated July 1, 1974, to all Department heads from former DOA Secretary L. K. Ireland, Jr. That memorandum states that the DOA's Division of Personnel defined a policy-making position as one which sets a definite course of action for the unit for which the position is responsible (i.e., office, bureau, division, department) which is unit-wide in effect and will guide and determine present and future decisions of that unit measured in a time span of no less than six months. Although not contained in written form in December of 1979, it was also the DOA's policy to refuse to approve exemptions for positions which directly reported to or were responsible to a position occupied by a Career Service employee. The position formerly occupied by petitioner (position number 00063) is now entitled Administrator of Domestic Sales of the Division of Tourism. The present incumbent, Glenn Couvillon, reports to the Bureau Chief of Sales and Promotions who reports to the Director of the Division of Tourism. Mr. Couvillon was formerly a promotional specialist under the supervision of petitioner Burgess. His present duties include the preparation and submission of a marketing plan for his section to his Bureau Chief for approval and, after such approval, the implementation and staffing of different promotions in that plan. Other than the enlargement of the Domestic Sales Section, and the expansion of its budget and programs, Mr. Couvillon does not feel that the role of the section administrator has changed much since he assumed that position. The Domestic Sales Section now has a staff of eleven, including seven Development Representatives, and does approximately 54 promotions a year. The 1980 job description for position number 00063 does not differ in significant respect from the 1976 job description for that position. The differences are primarily in the usage of terminology, and not in the description of duties or responsibilities. According to Nevin Smith, the Secretary of DOA since July of 1979, the principal criteria for determining whether a position is "policy-making" has always been the same. That criteria is whether or not the position-holder plays a key advisory role to the Department head. An expert in the area of personnel management and administration, Lee Breyer, defines a "policy-maker" as "an individual who can, with a high degree of success, be able to influence the direction of a particular level of that organization." In February of 1981, the DOA promulgated a rule which defines the policies applicable to exemption of policy-making positions. Rule 22K-16.02, Florida Administrative Code, provides as follows: A position is policy-making if the incumbent's primary responsibility is the managing of a major function or the rendering of management advice to Senior Management level administrative authority. Such position can be established as policy-making only if located in the top managerial levels of a department, division, or bureau (or comparable level) and if it is typified by broad responsibility for policy implementation and extensive participation in the development of a department's goals.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that position number 00063 is a policy-making position eligible for exemption from the Career Service System in accordance with Section 110.205(2)(i), Florida Statutes. Respectfully submitted and entered this 16th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 16th day of September, 1982. COPIES FURNISHED: Edward S. Jaffry, Esquire HORNE, REODES, JAFFRY, HORNE & CARROUTH Post Office Drawer 1140 Tallahassee, Florida 32302 Don W. Davis, Esquire Department of Commerce 510H Collins Building Tallahassee, Florida 32301 David V Kerns and Daniel C. Brown, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Stuart Edgerly Secretary Department of Commerce 510C Collins Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration Room 435 Carlton Building Tallahassee, Florida 32301
The Issue At the formal hearing, Petitioner filed its Motion to Clarify Case Issues and to Amend Identity of Petitioner. This motion was granted, and the petitioner was permitted to amend the style of the case to: Steppin' Out Suncoast Edition, Inc., Petitioner. Further, the issues stated in the Motion to Clarify are: Whether Steppin' Out Suncoast Edition, Inc. is entitled to the sole right and use of the service mark, "Steppin' Out," under common law and for registration as a service mark with the Department of State under Section 495.021(1)(3)3, Florida Statutes; and Whether a conflict of name exists between the issuance of corporate charters by the Division of Corporations, Department of State, to Respondent Steppin' Out, Inc. on February 9, 1981, and to Petitioner Steppin' Out Suncoast Edition, Inc. on October 1, 1979. The Petitioner, Steppin' Out Suncoast Edition, Inc., presented the only evidence received at the proceeding. In summary, this evidence showed that from 1977 until 1979, Raymond Martino did business and published a weekly entertainment guide advertising restaurants and similar businesses in St. Petersburg and Tampa, Florida, and later in Orlando and Fort Lauderdale. On October 1, 1979, Martino chartered as a Florida corporation, Steppin' Out Suncoast Edition, Inc. This corporation continued publication of said weekly magazine. Publication of this magazine has been continuous from 1977 to the present with the use of the name "Steppin' Out" and the same logo on its magazine. On January 29, 1981, Petitioner filed its application for the reservation of the service mark of "Steppin' Out." On February 9, 1981, Steppin' Out, Inc. was granted a corporate charter by the Department of State. The application of Petitioner for the service mark "Steppin' Out" was denied by the Department by letter dated February 12, 1981. The Petitioner and the Department stipulated that the grounds for denial were Section 495.021(1), Florida Statutes, and Rule 10-1.05(8), Florida Administrative Code. The issue as defined by the facts is whether there is a conflict between the service mark, "Steppin' Out," and the corporate name, Steppin' Out, Inc., when Steppin' Out Suncoast Edition, Inc. was incorporated before Steppin' Out, Inc.; and when Steppin' Out Suncoast Edition, Inc. applied for registration of "Steppin' Out" as a service mark before Steppin' Out, Inc. was incorporated.
Findings Of Fact In 1977, Raymond Martino began and solely owned a business publishing an entertainment and restaurant magazine on a biweekly and, shortly thereafter, weekly basis entitled Steppin' Out. Various exhibits, Exhibits I through XXI, were introduced showing that Martino engaged in the business of publishing this magazine for profit from 1977 until October 1, 1979. On October 2, 1979, Martino was granted a corporate charter for Steppin' Out Suncoast Edition, Inc., which has continued the publication of this magazine. Exhibits I through XXI show that from 1977 to the present the magazine has been entitled Steppin' Out, and the same distinctive logo has been used on the magazine, its letterhead and similar printed material. On January 29, 1981, Petitioner applied for the service mark and distinctive logo, "Steppin' Out," which has been used by Petitioner and Martino since 1977. On February 9, 1981, Steppin' Out, Inc. was granted a corporate charter by the Department of State. On February 12, 1981, the Department denied the Petitioner's application for the service mark, "Steppin' Out," because of a conflict with the corporate name of Steppin' Out, Inc. Independent inquiry by Martino confirmed that Steppin' Out, Inc. was engaging in the publishing and advertising business similar to that of Steppin' Out Suncoast Edition, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Steppin' Out Suncoast Edition, Inc. be permitted to register "Steppin' Out" and its distinctive logo as its service mark. DONE and ORDERED this 17th day of September, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of September, 1981. COPIES FURNISHED: L. C. Schowe, Esquire Post Office Box 360 St. Petersburg, Florida 33731 Stephen Nall, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 Ivan S. Benjamin, Esquire 10661 North Kendall Drive, Suite 218 Miami, Florida 33176 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent's pronouncement that special restaurant licenses issued prior to January 1, 1958, that have not remained in "continuous operation" are thereby (as a result of their lack of "continuous operation") rendered invalid pursuant to Section 561.20(5), Florida Statutes, and therefore not subject to delinquent renewal pursuant to Section 561.27, Florida Statutes (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioners.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.2 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.3 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.4 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." As applicants applying to delinquently renew their SR licenses (which were both originally issued in 1956), Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
