The Issue By Notice to Show Cause dated October 24, 1977, the Division of Alcoholic Beverages, Petitioner, seeks to revoke suspend, or otherwise discipline the alcoholic beverage license of NAS, Inc. t/a The Down Beat, Respondent. As grounds therefor it is alleged that on or about August 25, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued; failed to maintain sufficient inventory to serve full course meals; failed to maintain sufficient dining room equipment and employees for the preparation, cooking and service of full course meals; and failed to maintain necessary china and tableware to handle the minimum seating capacity required, all in violation of Rule 3.15 F.A.C. Four witnesses were called by Petitioner, one witness testified in behalf of Respondent, and three exhibits were admitted into evidence.
Findings Of Fact About 10:00 A.M. on August 25, 1977, three beverage agents entered The Down Beat and conducted a routine inspection after identifying themselves as beverage agents. Respondent holds special restaurant beverage license No. 16-692-SR Series 4 COP. At the time of the inspection the bar was open and alcoholic beverages were being dispensed. No personnel were available on the premises to prepare meals and the kitchen was reported to be closed at the time of the inspection. A count of the equipment in the kitchen disclosed 19 knives, 19 forks and 9 spoons clean and ready to be used. Upon inquiry one of the corporate officers produced a paper bag from under the sink which contained 51 spoons, 91 forks, and 161 knives. An additional package of ten plastic forks and an open package of 8 plastic spoons were produced. 163 dinner plates, 130 salad plates, 50 plastic cups, and 60 plastic glasses were counted. The two freezers in the kitchen contained frozen meats and fish. Other food items consisted of condiments, flour, one head of lettuce, sugar, bread, butter, cheese, celery, sausages, and potato mix. Respondent's witness testified that the cook was out shopping at the time of the inspection. The persons identified by name as cook and purchasing agent to the inspectors were not listed on the payroll for the previous month (Exhibit 1). Profit and Loss statement (Exhibit 1) for the month of July, 1977 shows only 4 female employees, each paid $60 per week, food sales of $5,022.50, food purchases of $1,235.47 including $429.30 to Coca Cola and Canada Dry bottling companies, alcoholic beverage sales of $3,086.65 and alcoholic beverage purchases of $3,428.06. Following completion of Respondent's testimony the administrative record of Respondent was admitted into evidence as Exhibit 3. This shows violations of a nature similar to those here under consideration occurred on 10/29/73 and 8/24/74. The latter violations were proven at a hearing held September 27, 1977.
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
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, B & K Restaurant, Inc., d/b/a Nipper's Restaurant (Respondent) held Alcoholic Beverage, Special Restaurant License No. 60-02856 SRX (SRX License). Respondent's SRX License was issued on July 7, 1988. Respondent's SRX License requires Respondent to maintain, among other things, 2,500 square feet of serving area, a minimum of 150 seats for seating, and 51 percent of gross revenue from food and non-alcoholic beverages sales. Respondent has a president, Arthur Barakos, who is a 51 percent shareholder. On September 30, 1996, a special agent of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner) performed an SRX License inspection of Respondent. Petitioner's agent requested Barakos to produce, among other things, Respondent's last three months of alcohol and food records, z-tapes,2 guest receipts, and ledger books, if any. He was unable to produce the requested records, indicating that his accountant had possession of them. Petitioner's agent reminded Barakos that, as a requirement of the SRX License, the records must be maintained on Respondent's premises. She informed him that she would return at a later date to review the requested records. On October 8, 1996, Petitioner's agent returned to Respondent to perform the SRX License inspection. She requested to review the same records. As before, Barakos informed Petitioner's agent that he did not have the requested records. Barakos indicated to Petitioner's agent that the only records that he maintained were guest checks which had credit card charges; he did not maintain other guest checks or z-tapes. Further, he indicated that his procedure was to copy the information from z-tapes and guest receipts on separate sheets of paper, referred to as sales sheets, and to provide his accountant with the sales sheets. Respondent's accountant performs a "compilation" on a monthly basis of monthly sales from information provided to her by Barakos. Monthly, the accountant meets with Barakos and obtains from him sales sheets showing daily receipts and total sales per day for the entire month. Also, Barakos provides the accountant with bank statements, purchase orders, stubs from guest checks with credit card charges and, occasionally, z-tapes. At times, the accountant obtains some of the information over the telephone from Barakos. She inputs the information from the sales sheets on computer. From the information provided, the accountant totals the daily receipts and computes sales tax. Afterwards, she returns to Barakos all of the items that he provided to her. The accountant is unable to verify or certify the accuracy of the monthly sales records. At the inspection, Barakos did provide Petitioner's agent with sales sheets. However, the sales sheets failed to differentiate between food and alcoholic beverages. Without the requested records which are the original documentation, no verification of food and alcohol revenue could be made by Petitioner's agent. Therefore, she was unable to determine whether 51 percent of Respondent's gross revenue was from food and non-alcoholic beverages sales. Further, regarding maintaining past records, Barakos had maintained his almost nine years of records, including z- tapes, in boxes located in a shed. He discarded the boxes of records after they got wet and became moldy, not believing that he would ever be audited by Petitioner. Barakos discarded the records without improper motive. Because he had discarded the records, Barakos was unable to produce them to Petitioner's agent. At no time material hereto did Petitioner receive from Respondent a request to maintain its records at a location other than on Respondent's premises. Additionally, at the inspection, Petitioner's agent inspected Respondent's seating. She found Respondent not to be in compliance with the required minimum seating of 150 seats, having only 125 seats. Barakos indicated that he would add the additional seats without delay to bring Respondent into compliance. Further, Petitioner's agent inspected Respondent's square footage. She found Respondent to be in compliance with the minimum square footage requirement of 2,500 square feet.
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: Imposing a $1,000 civil penalty against B & K Restaurant, Inc., d/b/a Nipper's Restaurant; and Revoking the Alcoholic Beverage Special Restaurant License of B & K Restaurant, Inc., d/b/a Nipper's Restaurant, i.e., License No. 60-02856 SRX without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years, with the revocation being suspended under terms and conditions that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco deems appropriate. DONE AND ENTERED this 16th day of June, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1997.
The Issue The issue is whether Respondent's alcoholic beverage license should be disciplined on the ground Respondent allegedly violated Section 561.20(2)(a)4., Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, David Carl Boston, operated a restaurant and lounge under the name of Mr. D's Restaurant and Lounge at 2262 Orchard Street, Jacksonville, Florida. Respondent has been issued special restaurant license number 26-0701, series 4COP SRX, by Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent began operating his restaurant and lounge in February 1996, but ceased doing business in July 1997. Respondent's license authorizes him to sell alcoholic beverages on the premises, so long as the restaurant has at least 2,500 square feet of service area, it can seat at least 150 patrons at tables, and at least 51 percent of the gross revenue is derived from the sale of non-alcoholic beverages and food. Respondent was aware of this requirement when he applied for a license. Indeed, item 10 on his application specifically noted these special requirements. Accordingly, Respondent knew, or should have known, that he would need adequate records to show that these requirements were being met. To enforce the above requirements, the Division performs periodic audits of all restaurants holding special licenses. As a part of that audit process, on February 3, 1997, special agent Myers contacted Respondent and requested that he "[p]roduce within 14 days all records including but not limited to all sales receipts, register tapes, invoices for food, alcoholic bev. & non-alcoholic bev., employee time records, all purchase and sales receipts, as required per Florida law." The records were to cover the twelve-month period from February 1996 through January 1997. Respondent acknowledged receiving the Notice to produce the records on February 3, 1997, by signing the Notice in agent Myers' office. Within a few days, Respondent produced a large plastic shopping bag full of records, which has been received in evidence as Petitioner's Exhibit 3. The bag includes receipts for alcoholic beverage purchases and other miscellaneous items, but virtually no receipts for food purchases. There are also so- called "summary sheets," which are handwritten summaries of receipts for food and alcoholic beverage sales for most of the months during the audit period, and cash register tapes which ostensibly support the entries on the summaries. The records are poorly organized and unsophisticated, and they are very difficult for a third person to analyze. Thus, they fail to comport with Division Rule 61A-3.0141(3)1., Florida Administrative Code, which requires that a licensee must "maintain separate records of all purchases and gross retail sales of food and non-alcoholic beverages and all purchases and gross retail sales of alcoholic beverages." Because of the lack of receipts for food purchases, the Division could not establish a percentage of food sales for the audit period. Receipts for food purchases are typically used by the Division as a measuring stick against purchases of alcoholic beverages to determine an allocation of revenues. Despite several subsequent conversations between agent Myers and Respondent in an effort to obtain further clarification and documentation, agent Myers could not establish the appropriate division of revenues between food and alcoholic beverages. On the evening of February 6, 1997, agent Myers visited Respondent's premises between 8:00 p.m. and 9:00 p.m. He found approximately five customers on the premises, all at the bar, and only one employee, who was acting as bartender. The kitchen was shut down, and no food was visible to the naked eye. Agent Myers did notice a bag of frozen chicken wings in a freezer, but no other food was on the shelves or in the refrigerator. He also counted the chairs on the premises and found only 111. On February 18, 1997, agent Myers returned to the premises and found only 107 chairs for patrons. On both visits by agent Myers, Respondent had less seating capacity for food customers than is required under his special license. In addition, contrary to a Division rule requirement, full-course meals were not available at those times even though the restaurant was serving alcoholic beverages. At hearing, Respondent initially contended that he was confused as to the requirements for his license. Given the plain language in item 10 of his application, however, which clearly identifies the restrictions, this explanation has not been accepted. At the same time, it is noted that Respondent offered to voluntarily surrender his license to the Division in July 1997, since he knew that he could not meet the special conditions imposed under the law. The Division refused, however, on the ground an Adminstrative Action was pending against his license. Respondent acknowledged that on both February 7 and 18, 1997, he had less chairs for food customers than is required. Therefore, this portion of the charges has been sustained. In mitigation, he attributed this to his birthday party on one of those evenings and a "talent show" to be held on another evening, although virtually no customers were on the premises on either date when the inspections took place. Respondent has a menu from which customers can order, and he says he also has a daily luncheon buffet. In explaining the lack of food purchase receipts, Respondent claimed that most of his food was purchased from Premier Meats in Jacksonville, Florida, a retailer that caters to small businesses, such as Respondent's. According to a representative of Premier Meats, Nathanial A. Griffin, that firm conducts a "cash and carry" business, with no accounts receivables, and thus it does not invoice its customers. Griffin recalled that Respondent regularly made weekly purchases of chicken wings, gizzards, and white filets, which totaled between $60.00 to $80.00 per week, on average. Assuming this to be true, this equates to approximately $250.00 to $300.00 per month in food purchases from that vendor. The undersigned has independently reviewed the summary sheets, which Respondent says were prepared on a contemporaneous basis from cash register tapes. They reflect that the following revenues were derived from food and alcoholic beverage sales during the months of February 1996 Food through December 1996: Alcohol February 119.70 86.00 March 1200.10 851.85 April 3678.10 731.20 May 3121.27 1170.00 June 3026.90 956.00 July 1401.50 770.04 August 1771.25 1540.70 September 1504.85 2789.32 October 372.25 742.25 November 2941.01 2217.50 December 1376.04 948.50 Total 20513.97 12803.36 If the testimony of witness Giffin is accepted, then Respondent's food purchases from Premier Meats during the eleven month period would be no more than $3000.00. Given the lack of any other food receipts, the large number of receipts for purchases of alcoholic beverages, and the description of the premises on the two occasions when agent Myers inspected the closed kitchen, it is found that the summaries are not credible, due to a lack of underlying documentation. Therefore, it is found that Respondent did not derive at least 51 percent of his gross revenue from sales of food and non-alcoholic beverages, as charged in the Administrative Action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent's special restaurant license no. 26-07010 for violating Section 561.20(2)(a)4., Florida Statutes, without prejudice to obtain any other type of license, but with prejudice to obtain another SRX special license for five years from the date of the Final Order. Respondent should also have a $1,000.00 administrative fine imposed. DONE AND ENTERED this 24th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David Carl Boston 2262 Orchard Street Jacksonville, Florida 32209 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent's special restaurant alcoholic beverage license should be disciplined or a civil penalty imposed, for failure to comply with special restaurant operation requirements contained in Section 561.20, Florida Statutes (1981) and Rule 7A-3.15, Florida Administrative Code.
Findings Of Fact On March 12, 1981, DABT issued respondent 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 ("the licensed premises") 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.) II. At 2:30 p.m. on April 28, 1981, Beverage Agents Patricia Geyer and Patrick Roberts entered the licensed premises and found it closed. Jim Novak, the manager, took them on a tour of the premises. On the first floor, tables and chairs had not been set up. A large wooden dance floor had just been waxed, and an unknown number of tables and chairs were folded and stacked in the adjacent patio area. The kitchen equipment was not in use; shipping tape was attached to the stove dodrs; the dishwasher contained glasses and plates which were covered with dust. On a shelf next to the dishwasher were approximately 150 plates, cups, and saucers, also covered with dust. No silverware was found. The kitchen cooler contained 15 cases of beer and no food. The mezzanine level had ten tables with chairs set up to accommodate 30 people. The second floor contained business offices and a storage room containing wine and old-fashioned glasses and 15 cans of soup. (Testimony of Geyer, Roberts.) Agent Geyer asked Mr. Novak for a menu and was told there was none. He told them that the licensed premises served food catered by the Affaire Restaurant. (Testimony of Geyer.) At 9:30 p.m. on May 6, 1981, Beverage Agent Geyer, accompanied by another agent, arrived at the licensed premises and found it closed. They returned at 10:20 p.m. and, in an undercover capacity, were admitted to the premises after paying a $3 cover charge. They sat in the bar area and ordered alcoholic beverages. Few people were on the premises at the time. The large dance floor was in use; approximately 15-20 tables were set up in the patio area. The agents observed the kitchen area and saw no one enter or leave; neither did they see any patrons eating or being served food. At 11:30 p.m., they went upstairs to the mezzanine area, sat at a table, and asked for a menu. They were handed a menu which listed a single full-course dinner, named the "Grand Prix," for $25. Agent Geyer did not order the meal because of its expense; at the time, she believed that if she had ordered it, she would have been served the meal. Agent Geyer remained on the premises until after midnight but never saw any food being served or consumed or tables set with silverware and dinnerware. There were approximately 200 people on the premises when she exited. (Testimony of Geyer.) At 11:00 p.m. on August 5, 1981, Agent Geyer, accompanied by another agent, returned to the premises for a final inspection. The manager showed them the kitchen area where the stove still had shipping tape attached to it; there were no indications that food was being prepared or served. On the first floor no tables were set up in the dance floor area; tables were, however, set up in the patio area, and a smoking grill was observed. The agents did not check the mezzanine area. They observed 15-25 patrons on the premises that evening. (Testimony of Geyer.) III. Between April and August, 1981, full-course Sunday buffets were served on the premises by the Affaire Restaurant, a caterer under contract with respondent. Some of the food was prepared in advance, some was prepared using the convection oven on the premises. The Sunday buffets were adequate to serve 300 patrons and usually included two entrees, salads and desserts. Beverages were provided by respondent. Plastic plates and utensils were used to minimize cleanup. Silverware was available in the kitchen, but the caterer never used it. (Testimony of Saric.) Between April, 1980, and March, 1981--when respondent received its beverage license--respondent Spent approximately $31,000 on kitchen equipment, dishes, silverware, tables, chairs, and glassware for the licensed premises. Included were at least 88 tables and 175 chairs. (R-1.) During March, April, and May, 1981, the percentage of gross revenue derived from the sale of food and alcoholic beverages on the premises was as follows: FOOD PERCENTAGE ALCOHOLIC BEVERAGES PERCENTAGE March 16 84 April 28 72 May 32 68 (Stipulation of Parties.) No beverage agent counted the total number of chairs and tables on the premises, including those chairs and tables which were available to be set up.
Recommendation Based on the foregoing, it is RECOMMENDED: That the notice to show cause, dated August 28, 1981, as amended, and the charges contained therein, be dismissed. DONE AND RECOMMENDED this 24th 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 24th 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.
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 Whether or not on or about August 25, 1976, an investigation was completed which revealed that the Wester Corporation, d/b/a The Savoy Club, licensed under the beverage laws as a special restaurant, failed to derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages for the month of July, 1975 through June, 1976 as called for in Rule 7a-3.15(b), F.A.C.
Findings Of Fact The Respondent, the Wester Corporation, holds license no. 47-150, series 4-COP with the State of Florida, Division of Beverage, and has held that license since October 1, 1975. On August 25, 1976, the State of Florida, Division of Beverage performed an investigation into the records of the Wester Corporation, d/b/a the Savoy Club, which is located at 311 West Van Buren Street, Tallahassee, Florida. This investigation of the records to include cash receipts and tape totals held by the corporation revealed the following facts in terms of gross revenues: July, 1975 Revenues: Food $ 2,842.75 Alcohol $ 7,835.65 August, 1975 Revenues: Food $ 2,312.48 Alcohol $ 6,706.43 September, 1975 Revenues: Food $ 2,589.54 Alcohol $ 6,128.43 October, 1975 Revenues: Food $ 2,883.47 Alcohol $ 5,603.75 November, 1975 Revenues: Food $ 1,935.20 Alcohol $ 5,395.27 December, 1975 Revenues: Food $ 2,227.38 Alcohol $ 5,689.08 January, 1976 Revenues: Food $ 2,461.57 Alcohol $ 6,161.43 FEBRUARY, 1976 Revenues: Food $ 2,259.35 Alcohol $ 4,704.02 March, 1976 Revenues: Food $ 2,397.95 Alcohol $ 5,004.09 April, 1976 Revenues: Food $ 2,391.55 Alcohol $ 5,418.14 May, 1976 Food Revenues: $ 2,149.31 Alcohol $ 6,382.50 June, 1976 Food Revenues: $ 2,243.23 Alcohol $ 5,869.11 During that time period food for a special banquet totaled $ 2,298.84. Averaging out these totals over the period of one year as indicated shows alcohol sales to be approximately 70 percent and food sales to be approximately 30 percent.
Recommendation It is recommended that the license of the Respondent, Wester Corporation, license no. 47-150-SRX, series 4-COP be suspended for a period of one year but that suspension be set aside upon sufficient showing by the Respondent of current compliance with Rule 7a-3.15b, F.A.C. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Larry Winson, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 Leroy Wester 311 West Van Buren Street Tallahassee, Florida
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 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.
