The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact At about 4:00 o'clock on the afternoon of May 8, 1979, petitioner's officers David William Shomers and Muriel Snipes Waldmann, entered respondent's place of business. At that time, Sherry Ann Armetto was behind the bar. When Officers Shomers and Waldmann asked Ms. Armetto for a meal she told them that the cook had not yet arrived. Officer Shomers and Officer Waldmann then each ordered a Scotch and soda, and both were served. At about 5:00 o'clock, the cook was still nowhere to he found. Officer Shomers counted the places available for people to sit down and eat, including seats in the bar, and determined that there were only 161 such places. Even though Ms. Armetto had worked for respondent as a bar tender for five or six months before the inspection on May 8, 1979, she had never been advised to refrain from selling alcoholic beverages when the kitchen was closed. She was so advised, however, after the events of May 8, 1979. Ricardo John Gutierrez had worked for the business four or four and one half years as of May of 1979. He was never told not to sell alcoholic beverages while meals were not sold. Petitioner initiated the present proceedings on or about July 3, 1979. In May of 1979, respondent Pete Rose Corporation held license number 16-790 SRX, an "ALCOHOLIC BEVERAGE LICENSE FOR THE PERIOD OCTOBER 1, 1970, THRU SEPTEMBER 30, 1979." Petitioner's exhibit No. 1. Respondent has not renewed the license since. As a condition of this beverage license, respondent was required to maintain at least 4,000 square feet, sufficient tables, chairs, china, other equipment and personnel to serve food to 200 persons, Officer Shomers testified.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause, thereby terminating these proceedings and allowing respondent's license to expire; and then cancel respondent's license. DONE and ENTERED this 15th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Pete Rose Corporation d/b/a Fat Cats 2590 S. State Road 7 Miramar, Florida
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Rule 7A-3.15(1), Florida Administrative Code, and that its special license be suspended for three days. DONE and RECOMMENDED this 12th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of April, 1983. COPIES FURNISHED: James M. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Grapevine Restaurant No. One, Inc. d/b/a Grapevine Restaurant 4320 14th Street West Bradenton, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On April 2, 1977, respondent discontinued serving full course meals, although the restaurant continued to offer sandwiches. After this change, just as before, respondent sold alcoholic beverages to its patrons. Even earlier, over the period from October of 1976 to March of 1977, records indicated gross sales of alcoholic beverages in the approximate amount of one hundred seventy- nine thousand dollars ($179,000.00) as compared to gross sales of food and nonalcoholic beverages over the same period in the approximate amount of seventy-five thousand dollars ($75,000.00). When petitioner's employee, Officer Boyd, sought to examine respondent's records on April 13 and 14, 1977, he was told by agents of respondent that respondent's records covering the time period before October of 1976, were not available.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's special restaurant license. DONE and ENTERED this 6th day of December, 1977, 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: The Producer's Restaurant, Inc. 3699 Phillips Highway Jacksonville, Florida Mr. J. M. Ogonowski, Esquire District 3, Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section The Johns Building 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact Petitioner, who has fifteen years experience in the restaurant business, was hired in October, 1984, by the Respondent, Jady's Inc., as general manager of its Baxter's restaurant in Sarasota. Since the operation was soon to be opened, Petitioner was advised that his duties included training employees, food service, and anything necessary to insure the proper and orderly operation of the restaurant. On April 2, 1985, less than a month after the restaurant was opened, Petitioner had his first accident, falling through the ceiling while checking a water heater in the attic, and striking himself on a step ladder. He injured his shoulder and neck in the fall. He did not lose any work time as a result of this incident though he was treated by a doctor and received medical compensation for the injury through Worker's Compensation. Since he continued working, however, he did not receive any payments for loss of wages. On August 21, 1985, he was again injured while working at the restaurant when he slipped and fell in the kitchen, hitting his head on the floor. He contends that his previous injury was aggravated by this accident and that he also injured his right leg. As a result of the accident, he saw several doctors including an orthopedic specialist. His injury was diagnosed as myositis, and he contends that though his leg has improved, he still has residual injuries which manifest themselves in pain radiating from the hip down the leg, and pain on the right side of his face, and in the jaw and shoulder. As a result of this second injury, he was awarded Worker's Compensation wage and medical payments and contends he still has some medical problems which tend to come and go. Petitioner continued to work after August 21, 1985, except for the initial three days he took off at the advice of his physician, and October 7, 1985, which he took off to help his wife with her liquor license. His actions were limited, however, in that he could not lift any substantial weight without pain and dizziness, but he was able to do the administrative work involved in managing the restaurant as well as serving and light food preparation. Nonetheless, on October 10, 1985, according to Petitioner, Mr. Schoenbaum terminated his employment stating at the time it was because he was injured. Petitioner contends that at the time of discharge, Mr. Schoenbaum threatened him with non- physical destruction of himself and his family through the contacts he had. When Mr. Oberoi asked for a leave of absence to recuperate and then return to work, according to Petitioner, Mr. Schoenbaum declined, stating he was injured and was not wanted at the restaurant. As a result of his injury, he received $270.00 per week as compensation for lost wages from the period October 7, 1985 through February 12, 1986. This was as opposed to his earnings of $500.00 per week plus benefits when he was discharged which, Mr. Oberoi contends, amounts to $3,000.00 in lost earnings for the period in question. After February 12, 1986, he received no more wage loss benefits. Petitioner claims that prior to his injury he was in generally good health admitting to a prior history of low back problems which occurred from four to five months before coming to work at Baxter's. He contends that this was not the injury he received while at work there. While he was working, he claims, he was paying for his own medical insurance but when he spoke with his company after the injury, he was advised that since the injuries took place at work, he should file for worker's compensation benefits instead. When Petitioner came back to work after the three day time off at the time of the second injury, he discussed with the Schoenbaums certain changes in the menu, and other matters which they wanted changed, but contends that at that time there was no discussion about the overall cleanliness of the restaurant or other discrepancies which they now claim support their termination of his services. He claims there was no discussion of his work performance at any time or any indication they were dissatisfied with his accomplishment of his duties. Mr. and Mrs. Schoenbaum, who are the main owners of Jady's, Inc., also have an extensive background in the restaurant business and claim this is the first discrimination complaint ever filed against them. The Schoenbaums decided, at the time they hired Petitioner, to put him in the restaurant business with the understanding he was to get a salary and a 10% equity position if the restaurant made money for fifteen months. The arrangement did not work out. As a result of what the Schoenbaum's consider Petitioner's poor management, the restaurant was losing money at a steady rate. They terminated his employment, reluctantly, because they did not want to run the restaurant themselves. The decision was not made frivolously. The decision to discharge Petitioner was made after an extended period of observation during which they determined, among other things, that Petitioner's daily cash reports for two months were all incorrect. As of October 30, 1986, the restaurant had lost over $100,000.00 and Mr. Oberoi was discharged because he had done a poor job in its operation, had demonstrated a lack of motivation, and appeared to be uninterested in what was going on. He was totally responsible for the operation and the Schoenbaums attribute the financial loss they sustained directly to his inadequate management and operational skills. When the Schoenbaums began to realize they would have to terminate Mr. Oberoi's services, they asked each of the opening managers to write down items they found when they came to work which should have been done the night before. There were many. In addition, the bank utilized by the restaurant had reported that charge slips were not being filled out properly. Sales appeared to be going down. Mr. Oberoi often did not come to work on time and closed the restaurant early, and waitresses were given keys to come in and open up without supervision when it was Petitioner's responsibility to be there. During the three days in August, 1985 that Petitioner was off after his second accident, Mrs. Schoenbaum inspected the facility and found it to be filthy. Food was not stored properly, the refrigerator was dirty, and other defects in operation were clearly obvious. When the Schoenbaums talked with Mr. Oberoi on his return, they relate, he admitted he was not performing properly. They counseled with him, pointing out where he needed to improve and put him on probation. Improvement was not, however, forthcoming. In light of all the continuing deficiencies in Petitioner's performance and considering the fact that the restaurant was losing money, the Schoenbaums decided the situation could not continue and on October 10, 1985, discharged Mr. Oberoi in the presence of Mr. Hershorin. Mr. Schoenbaum confirms Mrs. Schoenbaum's testimony. As he observed it, Petitioner's performance in the beginning was acceptable and they tried to work together as a team to overcome the problems inherent in the start up of a restaurant operation. As time went on, things did not get any better but consistent with his management style, Mr. Schoenbaum tried to allow Petitioner to manage the restaurant without over supervision because he felt Petitioner had the background to get the job done. According to Mr. Schoenbaum, cleanliness, food quality, and the serving of a reasonable product at a reasonable price are paramount considerations in the operation of a restaurant and under Petitioner's management, the restaurant was not meeting those goals. Mr. Schoenbaum began to feel that though Petitioner was trying, he was not succeeding in running a quality operation. From time to time, when Mr. Schoenbaum would come into the restaurant, he would see Petitioner sitting and talking with people rather than managing and supervising. As a result of his concern, Mr. Schoenbaum warned Mr. Oberoi of his dissatisfaction and gave him an ultimatum that the deficiencies must be corrected. Mr. Hershorin, part owner of the restaurant, also confirms the Schoenbaum's observations. Based on his observations and experience in the restaurant business, it was his opinion that Petitioner's operation was not good. Mrs. Schoenbaum asked him to go in and handle the restaurant for the three days Mr. Oberoi was gone in August, 1985. When he did, he found the food in the refrigerator smelled; there was accumulated residue on the racks; food had spoiled; kitchen equipment was not even superficially clean; there was residue on the floor; and in sum, the general housekeeping was poor. Mr. Hershorin was present when the Schoenbaums met with Petitioner to discuss his performance and how the operation could be improved. He felt the Schoenbaums wanted the discussions to be of a positive nature to help Petitioner improve. They told him what needed to be done and put him on probation for a period, and it was clear to Mr. Hershorin that Petitioner understood what was being said to him and his status. Unfortunately, nothing changed as a result of this counseling and ultimately the Schoenbaums had to terminate Petitioner. Petitioner denies any counseling prior to termination or any probationary period being imposed. He claims the Schoenbaums did not discuss his work performance with him at any time, nor did they discuss shortages, lack of proper paper work, erroneous deposits, failure to insure that charge clips were filled out properly, or that he was allegedly leaving equipment on over night. Mr. Oberoi emphatically contends nothing was said about his performance until after he filed his complaint. Both Mr. Schoenbaum and Mr. Hershorin deny knowing that Petitioner had filed a worker's compensation claim or that his discharge was as a result of his incapacitation subsequent to his injury. They contend, as does Mrs. Schoenbaum, and it is found, that Petitioner's injury had no bearing on his termination and his disability was not the cause thereof. Petitioner claims he was never considered disabled prior to coming to work at Baxter's and had never filed a Worker's Compensation claim prior to the ones resulting from his injuries there. A Worker's Compensation Order, introduced by Respondents, however, indicates that Petitioner was injured twice before, in 1983 and 1984, and suffered permanent injury. Admitting this on cross examination, Petitioner contends he was totally recovered at the time of the current injuries and that the worker's compensation form admitting to prior injury was signed at the suggestion of his attorney to facilitate settlement of a collateral lawsuit. Mr. Oberoi also appears to have placed substantial pressure on Mr. Brockway, another employee at the restaurant, to execute a false affidavit. Mr. Brockway claims Mr. Oberoi contacted him so often, he ultimately signed the affidavit merely to be left alone and during the week prior to the hearing, he was again contacted by Petitioner with another affidavit which would indicate that Petitioner was discharged because of his injury. Mr. Brockway declined to sign it. Though Petitioner contends now he is unemployed, he is the principal owner of a corporation which operates a restaurant at Sarasota Square Mall. Mr. Oberoi contends that the work there is done by his family and that he has no part in the operation. This is disputed by Mr. Hershorin who claims to have seen Petitioner behind the counter there on at least two occasions and working in the area on at least three other occasions. Further, when Mrs. Schoenbaum called out there prior to hearing, she was advised to talk with Petitioner who was totally in charge of the operation. Based on the above, Petitioner's credibility is suspect and considering the evidence as a whole, it is found that Petitioner's performance at Baxter's restaurant during the time he was manager there was, for the most part, unsatisfactory. It is that unsatisfactory performance which culminated in his discharge, not the fact that he was injured, filed a worker's compensation claim, or was disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against the Respondent. RECOMMENDED this 1st day of May, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1989. COPIES FURNISHED: Robert D. Turffs, Esquire 1444 First Street Sarasota, Florida 34236 Sue Schoenbaum Vice-President Jady's Inc. 4201 Deepwater Lane Tampa, Florida 33615 Donald A. Griffin Executive Director Florida Commission on Human Relations Bldg. F., Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel FCHR Bldg. F., Suite 240 325 John Knox Rd. Tallahassee, Florida 32399-1925 Margaret Agerton Clerk FCHR Bldg. F., Suite 140 325 John Knox Rd. Tallahassee, Florida 32399-1925
The Issue This case concerns the issue of whether Respondent's special restaurant beverage license should be suspended, revoked or otherwise disciplined for failing to derive 51 percent of gross revenue from the sale of food and for failing to maintain sufficient food and equipment to serve 150 full course meals on the licensed premises. The Petitioner, at the formal hearing, called as its only witness Beverage Officer G. L. Hodge. The Petitioner offered and had admitted into evidence two exhibits. Counsel for the Respondent contacted counsel for the Petitioner just prior to the formal hearing to notify the Petitioner that the Respondent would not be appearing at the formal hearing. The Respondent did not appear and therefore presented no evidence. Respondent was duly noticed and informed of the time and place of the hearing in accordance with Chapter 120 of the Florida Statues.
Findings Of Fact At all times material to this proceeding, the Respondent, Colonial Park Pub, Inc., was the holder of Beverage License No. 62-2029-SRX, Series 4-COP. This license was issued to the premises known as the Colonial Park Pub and Restaurant, located at 8239 46th Avenue North, St. Petersburg, Florida. The license held by Respondent is a special restaurant license. After receiving a complaint about the licensed premises, Beverage Officer G. L. Hedge on July 26, 1983, went to the licensed premises to perform an inspection. A food inventory revealed the following food items stored on the licensed premises: In the kitchen, in the freezer closest the entrance was approximately: 15 slices of bacon 8 slices of turkey 20 slices of pickles 3 onions 3 tomatoes 2 slices of American cheese 10 oz. of tuna fish 25 slices of Pastrimi hot dogs slices of roast beef 1b. of American cheese 1bs. of Swiss cheese 1 six 1b. can of sliced pineapple In the freezer in the middle of the kitchen the following was found: 2 loaves of bread 5 sandwich buns 8 submarine rolls 4 heads of lettuce 2 celery stalks 1 gallon of milk 4 lemons 13 limes 34 In tomatoes the stand-up icebox was found the following food: 3/4 of a cantalope 3 1/2 sticks of margarine 12 rolls 2 1/2 20 oz. bags of mixed vegetables 4 bags of hard rolls 7 hot dogs 2 loaves of Jewish bread 4 slices of salami 3 slices of ham In the food storage chest was found the following food: 7 cans of pickle spears 99 oz. 2 1 1b. bags of potato chips 2 cans of red beans 6 1bs. 15 oz. 4 cans of tuna fish 11 1bs. 2 1/2 oz. This was not sufficient food to prepare 150 full course meals as defined in Rule 7A-3.15, Florida Administrative Code. The licensed premises had the appearance of a lounge and not a bona fide restaurant operation. There were no silverware, menus, plates, or table cloths on any of the tables. The premises were dimly lit and no one was observed eating any meals. The inspection occurred at approximately 2:15 p.m. There were approximately 30 meals per day served at the licensed premises and only sandwiches were served after approximately 8:00 p.m. The menu stated that dinners were not served after 7:30 p.m. During the period May 1982, through April 1983, the Colonial Park Pub and Restaurant had total gross sales of $197,564.07. Of this total, beverage sales were $135,530.17 and food sales were $62,033.90. Food sales for the year constituted 31 percent of sales. During this same period, beverage purchases amounted to $69,442.76 versus food purchases of $19,046.89. There were only two months, May and June 1982, where the Respondent even approached food sales equalling 51 percent of gross sales.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Petitioner enter a final order finding the Respondent guilty of the violations charged in the Notice to Show Cause and revoking beverage license No. 62-2029-SRX. DONE AND ORDERED this 9th day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 John L. Waller, Esquire The Legal Building 447 3rd Avenue, Suite 403 St. Petersburg, Florida 33701 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue 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.
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.
