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 This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of $1,000 and suspending Respondent's beverage license for a period of ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at 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 November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner may discipline Respondent’s alcoholic beverage license for Respondent’s violating Florida Administrative Code Rule 61A-3.0141(3)(D) and Section 561.20(4) “within” 561.29(1)(a),1/ Florida Statutes, on three separate occasions.
Findings Of Fact Pursuant to un-refuted testimony, Respondent, MJT Restaurant Group, Inc., doing business as The Copper Pot, holds Beverage License 5202697, Series 4 COP, SRX.3/ Respondent’s establishment is located in Ocala, Florida. It is divided into two separate interior rooms, with two separate exterior entrances. The two rooms are connected through the interior by a single opening between one room, which is the main restaurant area, and a second room, which is the bar/lounge. A complaint was opened against Respondent with a warning letter issued by Investigative Specialist Melodi Brewton on March 15, 2007. The Administrative Complaint that was ultimately filed in this case addresses only the dates of April 7, 2007, June 17, 2007, and July 20, 2007. On April 7, 2007, Special Agents Angel Rosado and Lawrence Perez visited Respondent’s premises in an undercover capacity at approximately 11:00 p.m. On that date, the restaurant’s exterior door was closed and locked, but the lounge’s exterior door was open. The agents entered through the lounge’s exterior door and observed patrons consuming alcohol and listening to a band in the bar area. The agents requested a menu from the bartender. The bartender told them the kitchen was closed. Each agent then ordered a beer, and a sealed alcoholic beer bottle was sold to each of them as alcoholic beer. Each agent was over 21 years of age, familiar with the smell and taste of alcohol, and testified that the liquid inside his container had been alcoholic beer. The agents testified that they had paid for, and received, the liquid as if it were alcoholic beer. A chain of custody was maintained and a sample vial of the beer served by Respondent on Tuesday, April 7, 2007, was brought to the hearing but was not admitted into evidence as unduly repetitious and cumbersome.4/ On June 16, 2007, Special Agent Rosado and Special Agent Lawrence Perez visited The Copper Pot at approximately 11:30 p.m. The outside restaurant door was not locked, but the lights were off inside the restaurant room where chairs were stacked on the tables. The agents observed patrons in the lounge room consuming alcohol. When the agents asked for a menu, the male bartender told them that the kitchen was closed. The bartender offered to heat up some spinach dip for them, but they declined. Each agent then ordered an alcoholic beer, and a liquid was sold to each of them as alcoholic beer. Each agent was over 21 years of age, familiar with the smell and taste of alcohol, and testified that the liquid sold him was alcoholic beer. Each agent testified that he had paid for, and received, the liquid as if it were alcoholic beer. A sample of the alcoholic beer was logged into the Agency evidence room on June 17, 2007. That sample of the beer served by Respondent on June 16, 2007, was brought to the hearing but was not admitted into evidence as unduly repetitious and cumbersome.5/ During the June 16-17, 2007, visit, Agent Perez spoke with a woman who was later determined to be one of the corporate officers of the licensee, Judith Vallejo. When Agent Perez asked her about obtaining a meal, Judith Vallejo replied that the kitchen was closed, but they could get food at the nearby Steak’N’Shake. The male bartender then told the agents that the Respondent’s restaurant closes at 9:00 p.m. weekdays and 10:00 p.m. on weekends. June 16, 2007, was a Saturday. June 17, 2007, was a Sunday. At about 11:00 p.m. on July 20, 2007, Special Agents James DeLoach, Ernest Wilson, and Angela Francis entered Respondent licensee’s premises through the lounge. The restaurant’s outside entrance was locked and the restaurant was dark. In the lounge, they asked for a menu to order a meal. The male bartender told them that the kitchen was closed, but they could have a spinach dip. The agents ordered, and were served, one beer and two mixed drinks, which Special Agents DeLoach and Wilson testified had alcohol in them. Special Agent Francis did not testify. Both of the special agents who testified were over 21 years of age, familiar with the taste and smell of alcohol, identified that the liquids they had been served were, in fact, alcoholic beverages, and that they had bought and paid for what the bartender served them as alcoholic beverages as if they were alcoholic beverages. Each testified that the bartender had represented that what he was serving them were the alcoholic beverages they had ordered. A sample vial of only the beer served by Respondent to Special Agent Wilson on July 20, 2007, was brought to the hearing, but it was not admitted into evidence as unduly repetitious and cumbersome.6/ Thereafter, a notice of intent to file charges was served upon one of Respondent’s corporate officers. There was testimony from a Special Agent that an SRX licensee is required to earn fifty per cent of its gross income from the sale of food and must sell food which is the equivalent of a full course meal during the entire time alcohol is being served, and that the Administrative Complaint herein should have cited Section 561.20(1) instead of 561.20(4), Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing all statutory charges; finding Respondent guilty, under each of the three counts of the Administrative Complaint, of violating Florida Administrative Code Rule 61A-3.0141(3)(d); and for the rule violations, fining Respondent $1,000.00, and revoking Respondent's license without prejudice to Respondent's obtaining any type of license, but with prejudice to Respondent's obtaining the same type of special license for five years. DONE AND ENTERED this 4th day of March, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 March, 2008.
Findings Of Fact At all times material to this proceeding, the Respondent, Boston's, Inc., was the holder of Beverage License No. 53-123, Series 6-COP SR. This license is issued to the premises known as Boston's, located at 100 Monterey Road, Stuart, Florida. The license held by Respondent is a Special Restaurant License originally issued in August 1957 to Frank and Mary Novacasa. By transfer of the license, Boston's, Inc., became the licensee on December 4, 1981. At the time of this transfer of the license to the Respondent, its president, A. Gerard Beauchamp, acknowledged by notarized Affidavit that the license required accommodations for serving 200 or more patrons at tables at all times. (Petitioner's Exhibit 1). On February 22, 1983, Beverage Officers White and Young conducted a routine inspection of the licensed premises. The officers discovered that the premises had been remodeled and that a new bar had been added, thereby reducing the available seating. By count, only 121 seats were available at tables, with an additional 18 to 20 stools being available at the bar. The manager on the premises also advised that an additional 10 to 15 chairs were located in a storage shed. On February 23, 1983, Beverage Officer White issued an official notice to the Respondent advising that it was required to maintain seating capacity at tables for 200 or more patrons. A compliance date of April 13, 1983, was indicated. (Petitioner's Exhibit 2). Officers White and Young conducted a compliance inspection on June 7, 1983. The physical layout of the premises remained as it had been on the earlier visit. A count of the seats available at tables revealed 114 chairs. An additional 24 stools were placed at the bar. At that time, Officer White issued an official notice to the Respondent, which was signed for by the manager, Norm Spector. That notice advised Respondent that the Division intended to file administrative charges against its license. (Petitioner's Exhibit 2).
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered revoking Respondent's Special Restaurant License No. 53-123, Series 6-COP SR. DONE and ENTERED this 2nd day of May, 1984, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 2nd day of May, 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mark Shumaker, Esquire 1775 NE Fifth Avenue Boca Raton, Florida 33432 J. Reeve Bright, Esquire Florida Coast Bank Building, Suite 500 551 SE Eighth Street Delray Beach, Florida 33444 Gary R Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard N. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On April 2, 1977, respondent discontinued serving full course meals, although the restaurant continued to offer sandwiches. After this change, just as before, respondent sold alcoholic beverages to its patrons. Even earlier, over the period from October of 1976 to March of 1977, records indicated gross sales of alcoholic beverages in the approximate amount of one hundred seventy- nine thousand dollars ($179,000.00) as compared to gross sales of food and nonalcoholic beverages over the same period in the approximate amount of seventy-five thousand dollars ($75,000.00). When petitioner's employee, Officer Boyd, sought to examine respondent's records on April 13 and 14, 1977, he was told by agents of respondent that respondent's records covering the time period before October of 1976, were not available.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's special restaurant license. DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: The Producer's Restaurant, Inc. 3699 Phillips Highway Jacksonville, Florida Mr. J. M. Ogonowski, Esquire District 3, Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section The Johns Building 725 South Bronough Street Tallahassee, Florida 32304
The Issue The issue in this case is whether Respondent, a restaurateur, unlawfully discriminated against Petitioners, who are African-Americans, by refusing to serve them based upon race.
Findings Of Fact On or about July 7, 2001, Petitioners Veronica King and Walter King (the “Kings”), who were then on vacation in Miami Beach, Florida, decided to eat dinner at La Playa de Varadero Restaurant (“La Playa”), a Cuban restaurant near their hotel.2 They entered the restaurant some time between 3:00 and 5:00 p.m. Though the dining room was full of patrons, there were a few empty tables. The Kings seated themselves. The Kings reviewed the menus that were on the table and conversed with one another. They waited for a server, but none came promptly. After waiting about 10 or 15 minutes, Mrs. King signaled a waitress, who came to their table and took their drink and food orders.3 The waitress brought the Kings their drinks without delay. The food, however, did not appear, and the Kings grew increasingly impatient and irritated. It seemed to the Kings, who are African-Americans, that other customers——none of whom was black——were being served ahead of them.4 After about a half an hour or so, having yet to be brought food, the Kings decided to leave without eating. On the way out of the restaurant, the Kings paid the cashier for their drinks. They complained to the cashier about the slow service and expressed to her their dissatisfaction at having waited so long, and in vain, for their meals.5 The Kings perceived that the cashier and other employees, including their waitress who was standing within earshot, were indifferent to the Kings’ distress. Ultimate Factual Determinations At the material time, La Playa was a “public food service establishment” within the reach of Section 509.092, Florida Statutes, and hence subject to liability for unlawful discrimination in violation of the Florida Civil Rights Act. The greater weight of the evidence fails to establish that La Playa refused to serve, or otherwise unlawfully discriminated against, the Kings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Kings’ Petition for Relief. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 19th day of February, 2003.
Findings Of Fact In December, 1982, DABT issued an alcoholic beverage license (Lic. no. 15-1163, Series 4-COP SRX) under its SRX classification to respondent to operate a restaurant with liquor sales on the premises. The restaurant was known as "Thee Doll House Beach," at 199 East Cocoa Beach Causeway, in Cocoa Beach, Florida. A requirement of the license was that revenue from sales of alcoholic beverages equal or exceed 51 percent of gross sales. Respondent opened "Thee Doll House Beach" for business in January, 1983. The business operated as a buffet restaurant, with a fixed-price, "all- you-can-eat" menu. Meals consisted of a hot entree, chosen from baked ham, roast beef and turkey; a selection of four or five hot vegetables; a large salad bar; two soups; and a desert tray, with pies, pastries and cakes. The business also offered alcoholic beverages for sale in the restaurant and at a bar. A "Las Vegas-style" show was presented nightly at eight o'clock, although the restaurant opened at noon. The first month's (January 1983) sales of food only reached 40.6 percent of gross sales, and subsequent efforts of the respondent to reach 51 percent were never successful. The initial price of a buffet meal was $4.95 per person, which attracted a sizeable number of patrons, many of them senior citizens. However, the respondent found that due to the extensive food menu and the cost of preparation and service, it was losing money on each meal sold. So it increased its meal price to $5.95, which resulted in a drastic drop in business, apparently due to the inability of senior citizens to pay the higher price. It was in this particular group that the most noticeable decrease in attendance occurred. The respondent took various steps to increase its food sales. "Early- bird" specials were introduced at a lower price; extensive newspaper, radio and television advertising was utilized to promote the buffet. Nevertheless, at the end of 1983, the business had shown an overall food sales of only 31 percent. Monthly percentage figures are as follows: DATE FOOD/NON-ALCOHOLIC BEVERAGE PERCENTAGE ALCOHOLIC PERCENTAGE January 1983 40.5 59.5 February 1983 27.1 72.9 March 1983 37.3 62.7 April 1983 33.5 66.5 May 1983 31.9 68.1 June 1983 29.1 70.9 July 1983 27.5 72.5 August 1983 23.9 76.1 September 1983 24.1 75.9 October 1983 23.4 76.6 November 1983 23.6 76.4 December 1983 23.3 76.7 The respondent's problems were compounded by the fact that it was operating in a difficult, if not depressed market, where financial conditions had limited the discretionary income available to restaurant-going consumers. Other restaurants in the area were having to cut back operations or terminate business altogether. During the year in question, the respondent held itself out to be a restaurant, not a lounge, and its primary emphasis in advertising, in its internal business operation and in its physical layout, emphasized food sales as opposed to liquor sales. During the time period in question the price of a meal at Thee Doll House Beach was significantly below its fair market value. The respondent attempted to increase its food sales by lowering prices, which, in turn, decreased the percentage of gross food sales. According to the evidence, a reasonable price for the menu offered, based on a comparison with other restaurants in Central Florida, would have been $8-$10. Using those price figures, the percentage of food sales to gross revenues at Thee Doll House Beach would have exceeded 60 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's beverage license be revoked but that such action be vacated if respondent surrenders its license for cancellation within 10 days of entry of DABT's final order. DONE and ORDERED this 15th day of August, 1984, 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 15th day of August, 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire 1212 East Ridgewood Street Orlando, Florida 32803 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent's pronouncement that special restaurant licenses issued prior to January 1, 1958, that have not remained in "continuous operation" are thereby (as a result of their lack of "continuous operation") rendered invalid pursuant to Section 561.20(5), Florida Statutes, and therefore not subject to delinquent renewal pursuant to Section 561.27, Florida Statutes (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioners.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.2 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.3 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.4 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." As applicants applying to delinquently renew their SR licenses (which were both originally issued in 1956), Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
