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 At all times material to this proceeding the Respondent held beverage license number 58-01528, SRX, Series 4COP. This license was issued to licensed premises located at 100 West Washington, Orlando, Florida. This is a special restaurant license. The above license expired on September 30, 1982, and was renewed for one year. The check given to the Division of Alcoholic Beverages and Tobacco in payment for the fees necessary to renew the license was deposited for collection by the Division and was returned dishonored for insufficient funds. The license was retrieved by the Division on November 8, 1982, and because the fee has not been paid the license remains in the possession of the Division. At the time the Respondent failed to make good on the check or to otherwise pay the renewal fee, there were charges pending against the Respondent's license. Respondent had been notified of pending charges of violation of the beverage laws prior to September 30, 1982. On June 10, 1982, Beverage Officer Maria Lynn Scruggs visited the Respondent's licensed premises to conduct a routine special restaurant license inspection. Upon arriving at the licensed premises, Officer Scruggs requested the liquor and food invoices. One of the employees stated that there were no such invoices on the licensed premises. Walter Brown, vice-president of the Respondent corporation, stated that the Invoices were at the accountant's office. These invoices are required to be kept on the licensed premises for a period of 3 years and no permission had been obtained by Respondent to remove the invoices from the licensed premises. During this routine inspection, Officer Scruggs was assisted by Beverage Officers Ken Rigsby and Ron Westcoat. After being unable to review invoices the three officers counted the chairs in the licensed premises and inspected the kitchen area. There was a total of 154 chairs on the licensed premises. In the kitchen, there was found to be an approximately one pound container of frozen fish, ten #10 cans of pork and beans, ten to twelve heads of lettuce, one 1 pound bag of french fries, approximately ten pounds of cooked chicken, and approximately four pounds of cooked pork ribs. The cook, Mr. John Burk, showed Officer Scruggs an invoice for the following items which had been ordered: roast beef, American cheese, two cucumbers, mayonnaise, and two hams. There was a salad bar set up near the bar with items such as onions, mushrooms, and bell peppers. There was less than a cup of each item. An inspection of the silver and plates revealed that there were 113 plates, 24 coffee cups, and 25 water glasses. There was adequate silver as required under the beverage rules. At the time of this inspection, the licensed premises was not open for business. The liquor on premises could not be inventoried because the liquor cabinet was locked. This inspection took place from approximately 10:30 p.m. to 12:00 or 12:30 p.m. Shortly after the June 10, 1983, inspection, the specific date being unknown, Officer Scruggs returned to Respondent's license premises to complete the inspection. Upon inspecting the liquor inventory, Officer Scruggs found that most of the bottles had ABC Liquor Stamps reflecting that the bottles of liquor had been purchased from another retailer. The Respondent at this time was on a "no sale" list which prohibited the licensee from purchasing alcoholic beverages from another retailer or wholesaler while on that list. Licensees who appear on the "no sale" list are placed there because of failure to clear a delinquent account within the specified time. The Respondent had been on the "no sale" list since October 14, 1981, and had been informed by letter on October 14, 1981, that it had been placed on the "no sale" list. The liquor which was inventoried by Officer Scruggs had recently been purchased from either ABC Liquors or Liquor World. On this second visit, Officer Scruggs was able to review the Respondent's invoices for the period July 1981, through June 1982. These invoices revealed total sales of $193,566.99 during that period. Of that total, liquor sales represented $145,639.55 and food sales totaled $47,927.44. During the period July 1981 through June 1982, food sales accounted for 25 percent of Respondent's gross sales while alcoholic beverages accounted for 75 percent of its gross sales. The invoices as kept by the Respondent were not separated as required by the beverage rules and had to be separated prior to arriving at the above totals.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Respondent's beverage license be revoked. DONE and ORDERED this 28th day of September, 1983, in Tallahassee, Florida. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George Cooper 4627 Parma Court Orlando, Florida 32811 MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1983. Mr. Jack Wallace Division of Alcoholic Beverages and Tobacco Post Office Box 17735 Orlando, Florida 32860
Findings Of Fact Wedgewood is the holder of Division of Beverage license number 62-1626, 4-COP SRX, which authorized Wedgewood to sell alcoholic beverages for consumption on the premises at retail only. Wedgewood is advertised as a resort with private villas, hotel rooms, two restaurants and a disco with live entertainment. An ad published on page 81 of Cruise Magazine, Volume 3, No. 4, however, makes no reference to any of the facilities except the appearance of an entertainment group known as The Village People. On the other hand, an ad in the November 19, 1977, issue of Florida Alive gives equal emphasis to hotel facilities, restaurant facilities and disco facilities. Wedgewood has promulgated and distributed a flyer advertising daily happy hour with special prices for alcoholic beverages. That same flyer advertises the sale of sandwiches and emphasizes that dining facilities are available nightly. Wedgewood has produced two menus. One appears to be a lunch menu which contains a soup, fifteen different sandwiches, three salads, five hot entrees, french fries, six desserts and beverages without reference to alcoholic beverages. Wedgewood has also produced a dinner menu containing appetizers, soups, five seafood entrees, five beef entrees, and two fowl entrees, with soup, salad and an assortment of desserts. The only reference to alcoholic beverages contained in the menu suggests that one's favorite after dinner drink is available. Wedgewood has two restaurants with complete facilities for serving and preparing for the requisite number of full course meals. For the period, June 15, 1977, through January 30, 1978, Wedgewood shows gross revenues of $162,685.00, composed of $22,991.00 for food sales and $139,694.00 for alcoholic beverage sales. These figures indicate that Wedgewood has derived approximately 14 percent of its total revenue from food services. One of the criteria contained in Rule 7A-3.15, Florida Administrative Code, used in determining whether or not the holder of a restaurant license is a bona fide restaurant is: The restaurant must derive at least 51 percent of its gross revenue from the sale of food and non-alcoholic beverages. The 51 percent shall be determined by taking the average monthly gross revenue of the sale of food and non-alcoholic beverages over a period of any calendar year. DABT urges that the gross receipts evidence of the approximate seven month period should be used in making a determination that the licensee is not a bona fide restaurant. However, DABT is arguing against its own regulations. Unless the revenues are analyzed over a calendar year as provided in the Rule, the percentage of revenue from the sale of food and non-alcoholic beverages may not properly be used as a criterion. Accordingly, the evidence as to the revenues will not be considered in the determination of the instant case. Wedgewood has advertised and held out to the public to be a place where meals are prepared and served, as evidenced by its comprehensive menus. The evidence shows that space is provided with adequate kitchen and dining room equipment and that there are employed sufficient numbers and kinds of employees for preparing, cooking and serving meals for guests. While Wedgewood obviously engages in the sale of alcoholic beverages, there is insufficient evidence to establish that such sale is subordinate to the sale of food. Equal advertising space is given to both functions and accordingly, it is found, as a matter of fact, that the principal business of the restaurant is to cater to and serve full course bona fide meals to the general public and the primary operation of the restaurant is for the preparation and cooking and serving of meals and not for the sale of alcoholic beverages.
Recommendation Based upon the foregoing Finding Of Facts and Conclusions Of Law, it is recommended that petitioner Department of Business Regulation, Division of Alcoholic Beverages and Tobacco,enter a final order: Holding respondent Clarece Hicks d/b/a Sand-spur Saloon guilty under the third charge in the Notice To Show Cause; Imposing a civil penalty of $500; and Dismissing the other charges in the Notice To Show Cause. Jurisdiction is retained for purposes of the ruling on the Division's Motion For Costs And Attorneys Fees, served February 25, 1985, filed simultaneously with this Recommended Order and for purposes of determining the Division's reasonable expenses, including attorney fees. RECOMMENDED this 12th day of March, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of March, 1985.
The Issue Whether respondent's alcoholic beverage license should be disciplined on charges that it operated its restaurant in violation of beverage rules.
Findings Of Fact At all times relevant to this proceeding, respondent conducted business as Oscar's Restaurant and Lounge (the "licensed premises" or "premises") at 901 Southwest Eighth Street, Miami, Florida, under a special restaurant alcoholic beverage license, No. 23-2059-SRX (Series 4-COP-SRX), issued prior to April 18, 1972. I. At 2:30 p.m. on November 8, 1979, when beverage officer Louis J. Terminello inspected the licensed premises, the kitchen area was not in use. The kitchen lights were off, no kitchen employees were present, and no food was being prepared. Although alcoholic beverages were being served to approximately three patrons in the bar section of the premises, no food had been served. (Testimony of Terminello.) Officer Terminello then asked Oscar Sarmiento, the on-site representative of respondent, to produce business records reflecting the purchases and sales of alcoholic beverages, food, and nonalcoholic beverages. Mr. Sarmiento replied that the requested records were not on the premises, that they were at the office of respondent's accountant, Mark Thaw. (Testimony of Terminello.) Respondent contends, without corroboration, that DABT, through Officer Terminello, had given oral permission to keep these business records off premises, at its accountant's office. Officer Terminello denied having given such permission. Taking into account the interest and bias of the witnesses, Officer Terminello's denial is accepted as the more credible and is persuasive. The fact that, before or during the time in question, DABT agents inspected respondent's records at its accountant's office does not, by itself, establish that respondent had permission from DABT to keep business records offsite. (Testimony of Terminello, Sarmiento.) Before leaving the premises that day, Officer Terminello explained to Mr. Sarmiento the requirements of special restaurant alcoholic beverage licenses and provided a written notice of deficiencies. (Testimony of Terminello.) At 2:30 PM. on December 5, 1979, Officer Terminello returned to the licensed premises to conduct a follow up inspection. The kitchen area was, again, not in use. A small amount of food was found in the refrigerator. The stove was cold. No food was being prepared or served. Silverware was insufficient to accommodate 200 customers. Several patrons in the bar area were being served alcoholic beverages by Guano Salas, the employee in charge of the premises. (Testimony of Terminello.) At 2:00 P.M.. on the next day, December 6, 1979, Officer Terminello returned to the premises and found a similar situation: the kitchen was not in use, no food was being prepared or served, and patrons were being served alcoholic beverages in the bar area. He then arranged to have another beverage officer, Leonard Del Monte, attempt to purchase an alcoholic beverage and a meal. At 3:00 P.M.., Officer Del Monte entered, ordered an alcoholic beverage, and asked for "something to eat." Juana Salas, the employee in charge, told him that he could go "down the street," that there were plenty of restaurants in the area. He asked for a menu but was net given one. Although there were patrons drinking in the bar area, none were eating or being served meals. (Testimony of Terminello, Del Monte.) At 5:30 P.M.. on December 7, 1979, Officers Terminello and Del Monte returned to the premises. Officer Del Monte, in an undercover capacity, ordered and was served an alcoholic beverage. He requested a menu but Ms. Salas told him that no food was being served. Other Patrons were being served drinks but none were consuming meals. (Testimony of Terminello, Del Monte.) At 4:40 P.M.. on December 11, 1979, Officers Terminello and Del Monte again entered the premises. Patrons were at the bar drinking but no food was being prepared or served. When Officer Del Monte ordered a meal, he was told that food was not being served because the kitchen was being disinfected. He ordered and was served an alcoholic beverage. (Testimony of Terminello, Del Monte.) During each of the foregoing inspections of the licensed premises, Officers Terminello and Del Monte remained on the premises for approximately 20- 30 minutes. (Testimony of Del Monte, Terminello.) Oscar Sarmiento, former owner of the licensed premises, testified that, to his knowledge (although he was not always on the premises) meals could almost always be purchased on the premises, that lunch could normally be purchased in the early and mid-afternoons. (Testimony of Sarmiento.) II. Prior to February 28, 1979, Oscar Sarmiento was the owner and president of respondent. On February 28, 1979, Elma Sarmiento, his wife, became sole owner and was elected president, treasurer, and secretary of respondent corporation. (Testimony of Sarmiento; R-3, R-4.) On February 28, 1979, Rene Valdes, a beverage license broker acting on behalf of respondent, filed with DABT forms indicating that Elma Sarmiento owned all stock of the respondent corporation and that she was elected president, treasurer, and secretary at the corporate director's meeting held on February 28, 1979. 3/ (In anticipation of the change in ownership, Mrs. Sarmiento had been fingerprinted by DABT on November 13, 1978.)(Testimony of Valdes; R-2, R-3, R-4.) III. By final order dated December 12, 1979, that portion of Rule 7A-3.15, Florida Administrative Code, which requires special restaurant licensees to "discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued" was declared an invalid exercise of delegated legislative authority by a Division of Administrative Hearings hearing officer. Gainesville Golf and Country Club, Inc. v. Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, DOAH Case No. 79-1851R, affirmed, 402 So.2d 616 (Fla. 1st DCA 1981). DABT concedes that this portion of Rule 7A-3.15 is ineffective 4/ and any evidence concerning violation of it "cannot be used as an indication that the licensee was operating in a manner not consistent with its alcoholic beverage license." (Challenge to the validity of Rule 7A-3.15 filed by DABT on April 27, 1982.)
Recommendation Based on the foregoing, it is RECOMMENDED: That DABT impose a civil penalty of $1,000 against respondent for the rule and statutory violations as described above. DONE AND RECOMMENDED this 5th day of August, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1982.
The Issue 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 This case involves the issue of whether the Respondent's special restaurant license for the sale of alcoholic beverages should be suspended, revoked or otherwise disciplined for multiple violations of the beverage laws and rules relating to the operation of a licensed premises under a special restaurant license. At the formal hearing, the Respondent was represented by Mr. George Cooper, the president and 50 percent owner of the Respondent corporation. After proper inquiry, it was determined that Mr. Cooper was in fact a proper representative of the corporation. At the formal hearing, the Respondent requested an opportunity subsequent to that date to present evidence on its own behalf. The Respondent, as grounds for that motion, indicated that it had been attempting to retain counsel and had been unable to do so. It was stipulated and agreed by and between the Petitioner and the Respondent that the Petitioner would present its evidence at the formal hearing as scheduled and that following the hearing the Respondent would be given an opportunity if it desired at a subsequent hearing time and date to present its evidence. Pursuant to this stipulation, it was ordered by the Hearing Officer that the Respondent submit in writing within 10 days of July 22, 1983, a request to schedule another hearing date if the Respondent desired to present further evidence. Respondent failed to file any written pleading and failed to notify the Hearing Officer as to whether further proceedings were necessary and whether Respondent In fact intended to present further evidence. On August 25, 1983, the undersigned Hearing Officer served upon the Petitioner and Respondent an Order to Show Cause as to why a Recommended Order should not be entered upon the evidence presented by the Petitioner at the previous hearing on July 22, 1983. That Order reflected that upon failure of the parties to file a pleading showing cause as to why such a Recommended Order should not be entered that the undersigned Hearing Officer would proceed to enter a Recommended Order based on the evidence presented at the July 22, 1983, hearing. Respondent was served by mail with a copy of that order to Show Cause and failed to file any response to that Order. Therefore, this Recommended Order is being entered upon the evidence presented by the Petitioner and the cross examination of that evidence by the Respondent at the formal hearing.
Findings Of Fact At all times material to this proceeding, Respondent was the holder of beverage license number 58-01528, SRX, Series 4COP. This license was issued to the licensed premises at 100 West Washington, Orlando, Florida. This license is a special restaurant license. On November 5, 1982, Beverage Officer James Jones, accompanied by another beverage officer, inspected the licensed premises of the Respondent. This was an SRX (special restaurant) inspection and the officers counted chairs, silverware, and dishes, and inventoried the food on the licensed premises. The count revealed 140 chairs, 46 coffee cups, 121 plates, 45 glasses, 116 knives, 53 forks, and 111 spoons. An inventory of the food on the premises revealed 55 chicken wings, 10 pounds of hamburger patties, 1 1/2 pounds of hamburger, 5 tomatoes, 1/4 pound of margarine, 1 potato, 5 loaves of bread, 1/4 slab of ribs, 30 pounds of french fries, 2 heads of lettuce, 1 1/2 pounds of potato chips, 10 carrots, 1 pound of sliced cheese, 2 1/2 spanish onions, 13 hamburger buns and 1/2 pound of diced cheese. There was no other food on the licensed premises. This inspection occurred at approximately 11:00 or 11:30 p.m. There was one bartender, one waitress, and a cook on duty. At this time, they were serving only chicken wings, hamburgers and french fries. There were no full course meals prepared or sold while the officers were at the licensed premises. There was not sufficient food at the licensed premises to serve 200 full course meals. Respondent renewed its license on September 30, 1982, and delivered a check to the District Office of the Division of Alcoholic Beverages and Tobacco in the amount of $1,750.00 as payment for the renewal fee. This check was deposited for payment and was returned not honored due to insufficient funds. The Respondent was notified by the Division of the returned check and failed to pay the necessary fee. The license was retrieved by the Division on November 8, 1982, and remains in the possession of the Division. At the time of renewal on September 30, 1982, the Respondent had been notified in writing of pending charges against its license which could lead to revocation or suspension of that license.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent's beverage license be revoked. DONE and ORDERED this 28th day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George Cooper 4627 Parma Court Orlando, Florida 32811 Mr. Jack Wallace Division of Alcoholic Beverages and Tobacco Post Office Box 17735 Orlando, Florida 32860
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
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for regulation of establishments licensed for the sale of alcoholic beverages in the State of Florida. Robert DeCosey is the sole owner and operator of the Respondent. At all times material to this case, the Respondent held Special Restaurant License No. 63-05489, Series 4-COP/SRX. Pursuant to law, the Respondent must derive at least 51 percent of his gross sales from food and non-alcoholic beverages in order to maintain the license, and the Respondent is required to maintain sufficient records to document such sales. The Petitioner conducted an audit for the period of April 1, 2008, through July 31, 2008. Based upon information that the Respondent provided to the auditor, the auditor estimated that 41.2 percent of the Respondent's gross revenue came from the sales of food and non- alcoholic beverages. The sales information provided to the auditor by the Respondent lacked supporting documentation and was not reliable. The Respondent maintained no verifiable information regarding his gross sales during the audit period. The Respondent provided no credible information regarding inventory levels, and, accordingly, the auditor was unable to calculate the Respondent's expenses. Sales prices were not provided during the audit, and, therefore, the calculation of revenue was little more than speculative. At the hearing, the Respondent testified that the "business model" he utilized focused on "special events" and that he did not open the restaurant on a routine basis. He testified that food was available during the events and served buffet-style. There was no documentation to support the testimony, and it has been rejected. The Respondent testified that he rented the facility during non-business hours to patrons who wanted to bring in their own food and alcoholic beverages, some of whom may have left food or alcohol behind after the private event concluded. He also testified that he opened the facility for events during which no food was available. Although the Petitioner asserted subsequent to the hearing that such practices were violations of state beverage law, the violations were not alleged in the Administrative Complaint and are outside the scope of this proceeding.
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 revoking the special license held by Urban Hospitality Ventures, Inc., d/b/a DeCosey's Restaurant and Lounge. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 27th day of January, 2010. COPIES FURNISHED: Robert DeCosey Urban Hospitality Ventures, Inc., d/b/a DeCosey’s Restaurant and Lounge 2349 Lake Debra Drive, No. 617 Orlando, Florida 32835 Michael B. Golen, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John R. Powell, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1020
