Findings Of Fact The Respondent is responsible for administering Florida laws respecting the sale of alcoholic beverages. Sales of alcoholic beverages are regulated in Florida through a licensing system. "Liquor" licenses authorize licensees to sell alcoholic beverages without regard to alcoholic content. Various categories of liquor licenses are issued by the Respondent. The two categories most pertinent to this proceeding are "quota" licenses and "restaurant" licenses. Quota licenses are available on the basis of one license per 2,500 in population for each county which permits such licenses (Some counties have different quotas established by Special Acts of the Legislature.). The term "quota" is derived from the fact that the issuing formula is based upon the decennial Federal census, and thus only a finite number of licenses are available. Section 561.20(1), Florida Statutes. Restaurant licenses are an exception to the quota scheme and are not limited in number. They are available to "any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages." Section 561.20(2)(a)3, Florida Statutes. There are approximately 3,000 outstanding quota licenses, and 2,000 outstanding restaurant licenses. Depending upon the specific terms of the license, quota license holders are authorized to sell liquor for off premises consumption. These are called "package" sales. Prior to the adoption of the amendment to Rule 7A-3.16, restaurant licenses issued after January 1, 1958, did not authorize package sales. Prior to the adoption of the amendment, the rule Provided: No licensee holding a special restaurant license issued after January 1, 1958, may sell alcoholic beverages for off premises consumption other than as may be Provided by special act. The prefix "SRX" shall be made a part of the license numbers of all special restaurant licenses issued after January 1, 1958, distinguishing them in identity from other licenses. The amendment which is the subject of this proceeding deleted the underlined portion of the rule. The effect of the amendment is to permit holders of restaurant licenses to make package sales so long as other criteria pertaining to the licenses are met. The Petitioner is a publicly owned Florida corporation which does business in Florida and five other states. Petitioner is engaged in the business of selling alcoholic beverages for on and off premises consumption. The majority of its business activities are in Florida, and Florida package sales represent more than half of the Petitioner's total business volume nationwide. The Petitioner holds forty-tow quota licenses issued by the Respondent. Quota licenses are transferable; and since they are limited in number, their market value frequently far exceeds the fees imposed by the Respondent. The market value of quota licenses held by the Petitioner in Dade and Broward Counties, Florida, is nearly two million dollars. The Petitioner's business is a very competitive one. When the petitioner is considering whether to invest in a new location, numerous factors are considered. These include demographics, traffic patterns, population, zoning, and the number and location of competitors. The number and location of competitors is the single most important factor. Since package sales constitute a majority of the Petitioner's business volume, the proximity of competitors who offer package sales is paramount. Because under the Respondent's rules restaurant licensees have been prohibited from making package sales, the location of restaurant licensees has not been of concern to the petitioner in determining where to locate. The Petitioner may have made different judgments about numerous of its locations if nearby restaurants were able to make package sales in competition with the Petitioner. No specific evidence was introduced from which it could be determined which if any of the Petitioner's locations would not have been opened, or which will suffer a competitive disadvantage as a result of the amendment to Rule 7A-3.16. Indeed, implementation of the amendment to the rule has been stayed by the courts, and no determination can be made as to which restaurant licensees might avail themselves of the opportunity of making package sales, and to what extent. The market value of the Petitioner's quota licenses and competition for the Petitioner's business outlets are affected by licensing considerations apart from whether restaurant licensees will be permitted to make package sales. As a result of the 1980 Federal census, numerous new quota licenses will be available in Dade and Broward Counties. These additional licenses, when issued, could have a substantial impact upon the value of the Petitioner's licenses, and the competitive advantages of the Petitioner's business locations. The Intervenor is the holder of a restaurant license issued by the Respondent. The amendment to Rule 7A-3.16 would permit the Intervenor to make package sales of alcoholic beverages. The economic impact statement adopted by the Respondent in support of its amendment to Rule 7A-3.16 provides in pertinent part as fellows: This rule will likely stimulate competition in the market place by permitting more outlets for off premises sale of alcoholic beverages. There would be no appreciable impact upon the state's revenue, but should there be any impact it is estimated that more liquor would be sold rather than less. Competition upon existing package stores would be in proportion to the proximity and competitive power of special restaurants permitted to sell by the package. In developing this statement, various officials within the Respondent met on several occasions to discuss the potential economic impact of the amendment to the rule, and representatives of the regulated industry were consulted. Hearings were conducted by the Respondent before the amendment was adopted. Representatives of the industry, including a representative of the Petitioner, appeared at hearings and stated their positions with respect to the amendment. The economic impact statement accurately portrays the potential economic impact of the amendment. It does not appear that the effect of competition upon existing package stores can be estimated with any precision. Indeed, the Petitioner did not present evidence and could not present evidence with respect to the precise impact that the amendment would have upon any of its locations.
Findings Of Fact Mrs. Joan Marotta is president, secretary and treasurer of petitioner Little Italy at the Atrium, Inc. Mrs. Marotta took over the management of Little Italy Restaurant sometime before November 30, 1978. At all pertinent times, Little Italy Restaurant has had no license to sell alcoholic beverages of any kind, but has had a policy of furnishing wine to its patrons, without additional charge. Since September of 1977, Little Italy Restaurant has advertised in the Hallandale Digest. These advertisements list the house specialties and state "Complimentary Glass Of Wine." Petitioner's exhibit No. 1. Ordinarily, a single glass of wine accompanies dinner. But Joseph J. Rocaro remembers occasions when he and possibly another diner in his party received more than one complimentary glass of wine while eating at Little Italy Restaurant. Vito Raguso has also had more than one glass of wine with a meal, at no extra charge, and was served a complimentary glass of wine without ordering a meal. In November of 1978, Officer Pollack of the Hallandale Police Department ate at Little Italy Restaurant on two occasions. Both times he was served wine. On the first occasion, he had a single glass of wine for which he was not charged. During the later visit, he had two glasses of wine, and was charged for the second glass of wine. Officer Pollack reported this incident to respondent. As a result, David Shomers and Jean Mignolet, employed by respondent as beverage officers, arrived at the Little Italy Restaurant at 7:30 o'clock on the evening of November 30, 1978. Disguisd as a young couple going out to eat on their own money, they ordered clams casino, linguini and egg plant parmesan. Their waiter, Joseph DeMartini, in his second or third day of employment with petitioner, told them that wine was complimentary. At their request, he brought each of them second glass of wine. When they received their check, they inquired about the item "2R.W. $1.00." The waiter informed them that he had been told by Salvador Maita to charge for a second glass of wine. Officers Shomers and Mignolet then ordered a third glass of wine each. The waiter brought the wine and altered their check to add another dollar to their bill. Salvador Maita is semi-retired from the plumbing supplies business. He was a good friend of Mrs. Marotta's father and occasionally fills in for Mrs. Marotta. On the night of November 30, 1978, at her request, he had taken over management of the restaurant, while she went shopping. After their meal, Officer Shomers called the police who, upon arriving at Little Italy Restaurant, arrested Messrs. Maita and DeMartini, and seized a gallon of chablis and opened bottles of champagne, Marsala and brandy. After obtaining a search warrant, Officer Shomers returned on December 12, 1978, and seized additional bottles of wine, three carafes of wine from the waiters' station and various bottles of liqueur." Also seized on December 12, 1978, were "guest checks" on one of which there appeared "1 Caroff --- 300." Respondent's exhibit No. 4. The champagne was the uncontroverted residue of a recent celebration of the birth of a child to the chef's wife. The brandy was used for cheesecake and other cooking purposes. Marsala was used in the preparation of Veal Marsala. Mrs. Marotta testified convincingly that whenever she hires a new waiter, she instructs him not to charge for wine. She had no knowledge beforehand that the waiter DeMartini was charging for wine, as he did beyond one glass per patron. At the hearing, neither petitioner nor her counsel was aware that giving wine away in connection with selling meals at Little Italy Restaurant might violate any law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue the beverage license for which petitioner has applied. DONE and ENTERED this 15th day of January, 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: Sheldon Golding, Esquire 700 Southeast 3rd Avenue Suite 200 Ft. Lauderdale, Florida 33316 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Pursuant to a Notice to Show Cause issued November 22, 1982, the Respondent was charged with two violations of the beverage laws of this state. Respondent was charged with allowing a person under 19 years of age to consume alcoholic beverages on her licensed premises. Respondent was also charged with continuing to sell alcoholic beverages after discontinuing the sale of full course meals in violation of Florida Statute 561.20(3)(1981) and Rule 7A-3.15, Florida Administrative Code. At the formal hearing, Petitioner called as witnesses Mr. W. R. Wiggs, a beverage officer for the Division of Alcoholic Beverages and Tobacco; Mr. James Pistole, a deputy for the Hillsborough County Sheriff's Department; and Joe Circhirillo, also a deputy for the Hillsborough County Sheriff's Department. Respondent testified on her own behalf and called as witnesses Kathryn Singer, James D. DeBusk, and Heidi Buzbee. Petitioner offered no exhibits and Respondent offered and had admitted into evidence one exhibit consisting of four photographs. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered and determined by the Hearing Officer to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact At all times material hereto, Respondent held Beverage License No. 39- 00771, SRX Series 4-COP, issued to Sharon's Surf-n-Turf, located at 111 East Shell Point Road, Ruskin, Florida. During the course of the hearing, it was stipulated by and between the parties and it is now found that the beverage referred to in Count I of the administrative complaint was an alcoholic beverage. On October 29, 1982, W. R. Wiggs, an investigator for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises of Sharon's Surf- n-Turf Restaurant and Lounge. He arrived at approximately 9:30 p.m. and the lounge area was full of patrons. Before entering the licensed premises, Investigator Wiggs observed a sign outside the restaurant which reflected that the restaurant was open from 11:00 a.m. to 10:00 p.m. and there was live entertainment from 9:30 p.m. to 3:00 a.m. Beverage Officer Wiggs was accompanied by Beverage Officer Miller. Upon entering the licensed premises, Wiggs and Miller sat at the bar and each ordered a Michelob beer. Beverage Officer Miller asked if he could order a full course meal and the bartender responded that the kitchen was closed. Beverage Officers Miller and Wiggs were in the licensed premises approximately one and one-half hour and observed no food being served. The patrons in the lounge were consuming alcoholic beverages. The lights were not on in the restaurant portion of the licensed premises, and the door to the restaurant was locked. Neither Officer Wiggs nor Officer Miller checked the kitchen to determine if it was in fact closed. While in the licensed premises, Officer Wiggs, along with Deputy James Pistole, of the Hillsborough County Sheriff's Department, observed a young lady named Tammy Almond, sitting at one of-the tables and consuming an alcoholic beverage. She appeared to be younger than 19 years of age. After arresting Ms. Almond, it was determined from her driver's license that she was, in fact, 18 years of age, having a date of birth of March 28, 1964. When Officer Wiggs and Deputy Pistole arrested Ms. Almond, she stated that the drink which was seized belong to someone else and she was sipping out of it. There was no evidence that Tammy Almond had purchased the drink or that she had been personally served the drink. At the time Tammy Almond was arrested, all other persons in the lounge who appeared to be possibly underage were asked for identification. Tammy Almond was the only minor in the licensed premises that evening. Tammy Almond had previously been married and was now divorced. The Respondent and her employees were aware of her prior marriage. On this evening, James D. DeBusk was checking identification at the door to the licensed premises. He had checked Tammy Almond's identification and it had reflected that she was two or three months over 19 years of age. The identification appeared to be a Florida driver's license. There was nothing suspicious about the identification. The licensed premises always has a doorman checking identification on Wednesday night through Saturday night. The bartenders and waitresses would also check identification of patrons. The licensed premises is divided into a restaurant/ dining room area and a lounge. The lounge has tables, chairs, a dance floor, and bandstand. Food is served in the dining room area as well as the lounge area. Menus for food are posted on the wall just inside the doorway of the lounge. The Respondent, prior to and at the time of the incident involving Tammy Almond, had a strict policy against allowing minors to consume alcoholic beverages on the licensed premises. On the nights when the lounge is busiest, Wednesday through Saturday, a doorman is on duty to check the identification of persons entering the lounge. Waitresses and bartenders were instructed to check the identification of persons who appeared to be younger than 19 years of age. The Respondent's policy was to require two acceptable forms of identification whenever a person produces or shows a questionable identification. If they cannot produce such identification, they are not permitted to enter the licensed premises. The restaurant and lounge are managed and supervised by the Respondent. At the time of Tammy Almond's arrest, the Respondent was in the kitchen area of the licensed premises training a new cook. Food is served at the Respondent's licensed premises from 11:00 a.m. to closing time. On the evening of October 29, 1982, the kitchen was open and food was actually ordered. At least four meals of steak and eggs were ordered and served after midnight. The licensed premises is primarily a restaurant operation and serves several different types of full course meals. These full course meals were available on the evening of October 29, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of the violations charged in the Notice to Show Cause and that such Notice to Show Cause be dismissed. DONE and ENTERED this 27th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul S. Carr, Esquire Post Office Box 965 Ruskin, Florida 33570 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact George Thayer is the holder of a special alcoholic beverage license, number 74-0643SR-4COP, for the premises known as George's Place at 832 South Martin Luther King Boulevard, Daytona Beach, Florida. He has held that license since 1965. DABT continues to assert that he has held that license since 1955, but there is not one shred of evidence to support that assertion. Both Joseph Ogonowski, a DABT investigator, and Mr. Thayer testified that the license in question was issued on July 23, 1965. Thayer's license was issued under a special provision for restaurants which no longer exists. The SR class of license required that certain conditions be met. In applying for and qualifying for the license in question, Mr. Thayer signed an affidavit attesting that he would comply with all the conditions applicable to the SR special license. Specifically, in that affidavit, Mr. Thayer attested that: . . . said licensed premises are to be operated primarily as a restaurant and contains all necessary equipment and supplies for serving full course meals regularly, has accommodations for serving @200 or more patrons at tables and occupies 4,000 square feet or more floor space under a permanent roof. Further, that if the license applied for is approved and a Special License is issued, the premises shall be operated as a bonafide restaurant and that no alcoholic beverages will be served or sold when the restaurant is not open for business. On March 13, 1990, Joseph Ogonowski, a law enforcement investigator with 30 years' experience at DABT, conducted an inspection of George's Place at approximately 2:00 o'clock P.M. Mrs. Thayer was tending bar when Ogonowski arrived. There were several patrons drinking what appeared to be alcoholic beverages at the bar and in the pool hall. There was no food being prepared or served. The kitchen, which was accessible only from behind the bar, was apparently closed. There was no appearance that any food was in or had been recently prepared in the kitchen. There was a separate part of the premises, called the disco room, which was not lit or air conditioned and was locked behind a metal gate. The disco room contained 134 chairs at tables. The bar contained enough tables and chairs for six or eight people to be served at tables. There was no menu posted or offered. There was not enough china and silverware to serve 200 people. There was some plastic tableware. DABT's apparent policy of not counting plastic tableware is not a rule and must therefore be explicated at hearing. No such evidence was presented in this case. No proof that the beverages being served were alcoholic beverages was presented by DABT. Mr. Ogonowski issued a warning notice citing inadequate seats and tables, inadequate square footage open to the public, and the need for additional china and silverware. Notice was given that a reinspection would occur in ten days. Mr. Ogonowski reinspected the premises on March 29, 1990. Nothing had changed. The kitchen and disco room were closed and no food was being served on the premises. Mr. Ogonowski issued a Final warning notice again citing the lack of seats, tables, china, and silverware. A reinspection was again scheduled. On April 13, 1990, Ogonowski again reinspected the premises at about 10:00 o'clock A.M. A Bill of Fare was posted showing full course meals being served. There were still inadequate seats at tables and china and silverware. No food was being served, but it was early in the day. Patrons were drinking what appeared to be alcoholic beverages at the bar and in the pool hall, but the disco room was locked. Again no evidence that the beverages were alcoholic was presented by DABT. Another Final warning notice was issued citing the inadequate seats, tables, china, and silverware. This Final warning notice reminded Mr. Thayer that he was required to have the facilities, china, and silverware to serve full course meals to 200 patrons or else he must discontinue the sale of alcoholic beverages. Mr. Thayer was given ten working days to comply or else charges would be filed against his license. On June 22, 1990, Mr. Ogonowski returned in the morning for one last inspection of George's Place. Mr. Thayer was not there, but Leroy Reed was tending bar. The Bill of Fare was not posted. The pool hall was open, but the disco room was locked. Mr. Reed was eating something from a bowl. According to Mr. Reed, it was some leftovers that he had scraped from the bottom of a pot. Mr. Ogonowski ordered some of what Mr. Reed was eating, but was told it was all gone and food had not been cooked yet that day. Mr. Ogonowski ordered a sandwich not regularly available on the premises and was told that it was not available. He than asked to purchase a beer to go and was sold a can of beer. Mr. Ogonowski returned to talk to Mr. Thayer later that same day. At that time, Mr. Thayer told Mr. Ogonowski that the necessary china and silverware was on the premises, but that there were inadequate seats at tables. Based on this failure to comply with the previous warnings, a Notice to Show Cause was issued. Mr. Ogonowski did not inspect to see if the china and silverware was actually on the premises or if full course meals were available. According to Mrs. Thayer, the china and silverware was purchased in July, after the last inspection. Further, she acknowledged that the necessary seats at tables were not on the premises until September. Mr. and Mrs. Thayer live above George's Place and derive all of their support from the operation of George's Place. They have done so for more that 25 years. Until these events, they had not received any citations for more than 15 years. Mr. Ogonowski testified that DABT has a policy regarding penalties for violations of special restaurant licenses and he produced a copy of a page from his policy and procedure manual. These penalty guidelines have not been enacted as rules. Mr. Ogonowski did not develop the policy and did not offer any testimony to prove up or explicate the incipient policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that alcoholic beverage license 74-00643SR-4COP, issued to George Thayer, t/a George's Place, be suspended until the licensee demonstrates the ability and intention to operate the premises as a bona fide restaurant meeting all the criteria of the license, the statutes, and the rules. If the licensee is unable to make the necessary demonstration within six months, the license should be revoked. DONE and ENTERED this 3rd day of December, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5777 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of FactSubmitted by Petitioner, DABT Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 2-6(4-8). Proposed findings of fact 7 and 8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of FactSubmitted by Respondent, George Thayer Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 10(8); and 14(11). Proposed findings of fact 2, 4-6, 8, 9, 11, and 13 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3 and 7 are irrelevant. Proposed finding of fact 12 is unsupported by the credible, competent and substantial evidence. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Thomas S. Hart Attorney at Law Cobb Cole & Bell 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, FL 32115-2491 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
The Issue Whether respondent's Rule 7A-3.15(3) (a) and (d), containing criteria for special restaurant alcoholic beverage licenses, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact On March 12, 1981, DABT issued petitioner a special restaurant alcoholic beverage license, No. 23-4626 SRX, Series 4 COP. (P-2, P-3.) Under the authority of this license, petitioner operates a business at 49 Northwest Fifth Street, Miami, Florida, which serves food and beverages (alcoholic and nonalcoholic) to the general public. (Testimony of Saric; P-2, P-3.) By notice dated August 28, 1981, as later amended, DABT sought to suspend or revoke petitioner's beverage license or impose a civil penalty. As grounds, DABT accused petitioner of violating Chapter 561, Florida Statutes, and Rule 7A-3.15, Florida Administrative Code. It contended that respondent violated Rule 7A-3.15 between April 28 and August 5, 1981, by failing to "prepare any meals on the premises . . . and by failing to "maintain tables of adequate size to accomodate [sic] the service of 200 full-course meals in accordance with the number of chairs found at that table.
Findings Of Fact 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
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
The Issue Whether or not on or about the 20th day of January, 1976 the Respondent, Franklin D. Boockholdt, licensed under the Beverage Laws as a vendor did unlawfully make a false statement, to wit: said premises sought to be licensed, contains and will maintain at all times all necessary equipment and supplies for serving full course meals regularly, on an affidavit for special restaurant license, in violation of Section 837.012, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Franklin D. Boockholdt, was and is the holder of License No. 55-11, a Series 2- COP, held with the State of Florida, Division of Beverage. On January 20, 1976, Beverage Officer, George Sterling, arrived at the licensed premises of the Respondent known as Gibbs Night Club, located at 511 South Wood Street, Callahan, Nassau County, Florida. The purpose of this visit was to inspect the aforementioned premises as an element in considering the application which the Respondent, Franklin D. Boockholdt, had made for a special restaurant license to be held with the Division of Beverage. Prior to the time that Officer Sterling arrived at the subject premises, the Respondent had gone to the Airway's Facility of the Federal Aeronautics Administration at Hilliard, Florida and picked up a number of dishes from the cafeteria on that facility. These dishes were owned by a vendor whose name is Jet Services. The racks in which the Respondent carried the dishes away were the property of the Federal Aeronautics Administration. The Respondent then took the dishes, which would include flatware, to the subject premises and these dishes and flatware were part of the inventory which was shown to Officer Sterling in the course of an inspection held on January 20, 1976 at the subject premises. While checking the subject premises on January 20, 1976, Officer Sterling, among other things, was looking to establish that there were sufficient accommodations for serving 200 or more patrons at tables. His inventory on January 20, 1976 revealed 150 sectional trays, 50 plates, and sufficient forks, knives, spoons and glasses to serve the 200 people. Once Officer Sterling had completed his inventory he gave the Respondent Boockholdt an affidavit which was to be completed by the Respondent and given back to Officer Sterling as one of the preconditions to approval of the license application for a special restaurant license. The Respondent took the affidavit and completed its parts and appeared before a notary public to have the affidavit sworn and subscribed to by the notary public. The notary public was Dorothy Beasley. She notarized the subject affidavit and witnessed the signature of the Respendent. This activity took place on January 20, 1976. In addition, she read the document in full orally in the presence of the Respondent and asked the Respondent if he would swear to the affidavit. The Respondent replied "yes". The Respondent then signed his name to the affidavit. The affidavit in question is Petitioner's Exhibit #2 admitted into evidence. Within the affidavit is the statement under the number seven (7). Number seven (7) says: "Said premises sought to be licensed has, and will maintain at all times, accommo- dations for serving 200 or more patrons at tables;" The numerals 200 had been placed in the blank with the knowledge of the Respondent. The affidavit was then returned to Officer Sterling on January 20, 1976, at which time he affixed his signature as having checked the above described restaurant and found the statements in the affidavit to be true. Two hours after the Respondent had picked up the dishes and flatware at the Airways Facility of the Federal Aeronautics Administration at Hilliard, Florida, he returned these items to that facility and they were inventoried in their entirety. Acting on a complaint filed with the Division of Beverage by Douglas M. Messick, the Manager of the Federal Aeronautics Administration at Hilliard, Florida, Officer Sterling returned to the licensed premises on February 9, 1976. When he arrived at the licensed premises, he made an inventory of the dishes and flatware. Among other things, he found 140 sectional trays, plates of sizes of from 10" to 12" in diameter, some of which had not been present in the January 20, 1976 inventory, miscellaneous knives, forks and spoons, and glasses and cups. There were sufficient numbers to meet the service for 200 of all items with the exception of glasses which were deficient in number. There were not sufficient numbers of cups, but there is a question about whether it was intended that coffee and tea be served with the meal at the time that the affidavit was being filled out on January 20, 1976. After inventorying the accommodations for serving on February 9, 1976, a report was made and the subject charges were placed.
Recommendation It is recommended that the License No. 55-11, Series 2-COP, held by the Respondent, Franklin D. Boockholdt, to trade at Gibbs Night Club at 511 South Wood Street, Callahan, Florida, be revoked.* * RO issue date of 2/22/77 was obtained from the docket sheet. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Dennis E. LaRosa, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Franklin D. Boockholdt P. O. Box 433 Hilliard, Florida 32046
