Findings Of Fact At all times material to this proceeding the Respondent held beverage license number 58-01528, SRX, Series 4COP. This license was issued to licensed premises located at 100 West Washington, Orlando, Florida. This is a special restaurant license. The above license expired on September 30, 1982, and was renewed for one year. The check given to the Division of Alcoholic Beverages and Tobacco in payment for the fees necessary to renew the license was deposited for collection by the Division and was returned dishonored for insufficient funds. The license was retrieved by the Division on November 8, 1982, and because the fee has not been paid the license remains in the possession of the Division. At the time the Respondent failed to make good on the check or to otherwise pay the renewal fee, there were charges pending against the Respondent's license. Respondent had been notified of pending charges of violation of the beverage laws prior to September 30, 1982. On June 10, 1982, Beverage Officer Maria Lynn Scruggs visited the Respondent's licensed premises to conduct a routine special restaurant license inspection. Upon arriving at the licensed premises, Officer Scruggs requested the liquor and food invoices. One of the employees stated that there were no such invoices on the licensed premises. Walter Brown, vice-president of the Respondent corporation, stated that the Invoices were at the accountant's office. These invoices are required to be kept on the licensed premises for a period of 3 years and no permission had been obtained by Respondent to remove the invoices from the licensed premises. During this routine inspection, Officer Scruggs was assisted by Beverage Officers Ken Rigsby and Ron Westcoat. After being unable to review invoices the three officers counted the chairs in the licensed premises and inspected the kitchen area. There was a total of 154 chairs on the licensed premises. In the kitchen, there was found to be an approximately one pound container of frozen fish, ten #10 cans of pork and beans, ten to twelve heads of lettuce, one 1 pound bag of french fries, approximately ten pounds of cooked chicken, and approximately four pounds of cooked pork ribs. The cook, Mr. John Burk, showed Officer Scruggs an invoice for the following items which had been ordered: roast beef, American cheese, two cucumbers, mayonnaise, and two hams. There was a salad bar set up near the bar with items such as onions, mushrooms, and bell peppers. There was less than a cup of each item. An inspection of the silver and plates revealed that there were 113 plates, 24 coffee cups, and 25 water glasses. There was adequate silver as required under the beverage rules. At the time of this inspection, the licensed premises was not open for business. The liquor on premises could not be inventoried because the liquor cabinet was locked. This inspection took place from approximately 10:30 p.m. to 12:00 or 12:30 p.m. Shortly after the June 10, 1983, inspection, the specific date being unknown, Officer Scruggs returned to Respondent's license premises to complete the inspection. Upon inspecting the liquor inventory, Officer Scruggs found that most of the bottles had ABC Liquor Stamps reflecting that the bottles of liquor had been purchased from another retailer. The Respondent at this time was on a "no sale" list which prohibited the licensee from purchasing alcoholic beverages from another retailer or wholesaler while on that list. Licensees who appear on the "no sale" list are placed there because of failure to clear a delinquent account within the specified time. The Respondent had been on the "no sale" list since October 14, 1981, and had been informed by letter on October 14, 1981, that it had been placed on the "no sale" list. The liquor which was inventoried by Officer Scruggs had recently been purchased from either ABC Liquors or Liquor World. On this second visit, Officer Scruggs was able to review the Respondent's invoices for the period July 1981, through June 1982. These invoices revealed total sales of $193,566.99 during that period. Of that total, liquor sales represented $145,639.55 and food sales totaled $47,927.44. During the period July 1981 through June 1982, food sales accounted for 25 percent of Respondent's gross sales while alcoholic beverages accounted for 75 percent of its gross sales. The invoices as kept by the Respondent were not separated as required by the beverage rules and had to be separated prior to arriving at the above totals.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Respondent's beverage license be revoked. DONE and ORDERED this 28th day of September, 1983, in Tallahassee, Florida. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George Cooper 4627 Parma Court Orlando, Florida 32811 MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1983. Mr. Jack Wallace Division of Alcoholic Beverages and Tobacco Post Office Box 17735 Orlando, Florida 32860
Findings Of Fact Mrs. Joan Marotta is president, secretary and treasurer of petitioner Little Italy at the Atrium, Inc. Mrs. Marotta took over the management of Little Italy Restaurant sometime before November 30, 1978. At all pertinent times, Little Italy Restaurant has had no license to sell alcoholic beverages of any kind, but has had a policy of furnishing wine to its patrons, without additional charge. Since September of 1977, Little Italy Restaurant has advertised in the Hallandale Digest. These advertisements list the house specialties and state "Complimentary Glass Of Wine." Petitioner's exhibit No. 1. Ordinarily, a single glass of wine accompanies dinner. But Joseph J. Rocaro remembers occasions when he and possibly another diner in his party received more than one complimentary glass of wine while eating at Little Italy Restaurant. Vito Raguso has also had more than one glass of wine with a meal, at no extra charge, and was served a complimentary glass of wine without ordering a meal. In November of 1978, Officer Pollack of the Hallandale Police Department ate at Little Italy Restaurant on two occasions. Both times he was served wine. On the first occasion, he had a single glass of wine for which he was not charged. During the later visit, he had two glasses of wine, and was charged for the second glass of wine. Officer Pollack reported this incident to respondent. As a result, David Shomers and Jean Mignolet, employed by respondent as beverage officers, arrived at the Little Italy Restaurant at 7:30 o'clock on the evening of November 30, 1978. Disguisd as a young couple going out to eat on their own money, they ordered clams casino, linguini and egg plant parmesan. Their waiter, Joseph DeMartini, in his second or third day of employment with petitioner, told them that wine was complimentary. At their request, he brought each of them second glass of wine. When they received their check, they inquired about the item "2R.W. $1.00." The waiter informed them that he had been told by Salvador Maita to charge for a second glass of wine. Officers Shomers and Mignolet then ordered a third glass of wine each. The waiter brought the wine and altered their check to add another dollar to their bill. Salvador Maita is semi-retired from the plumbing supplies business. He was a good friend of Mrs. Marotta's father and occasionally fills in for Mrs. Marotta. On the night of November 30, 1978, at her request, he had taken over management of the restaurant, while she went shopping. After their meal, Officer Shomers called the police who, upon arriving at Little Italy Restaurant, arrested Messrs. Maita and DeMartini, and seized a gallon of chablis and opened bottles of champagne, Marsala and brandy. After obtaining a search warrant, Officer Shomers returned on December 12, 1978, and seized additional bottles of wine, three carafes of wine from the waiters' station and various bottles of liqueur." Also seized on December 12, 1978, were "guest checks" on one of which there appeared "1 Caroff --- 300." Respondent's exhibit No. 4. The champagne was the uncontroverted residue of a recent celebration of the birth of a child to the chef's wife. The brandy was used for cheesecake and other cooking purposes. Marsala was used in the preparation of Veal Marsala. Mrs. Marotta testified convincingly that whenever she hires a new waiter, she instructs him not to charge for wine. She had no knowledge beforehand that the waiter DeMartini was charging for wine, as he did beyond one glass per patron. At the hearing, neither petitioner nor her counsel was aware that giving wine away in connection with selling meals at Little Italy Restaurant might violate any law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue the beverage license for which petitioner has applied. DONE and ENTERED this 15th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Sheldon Golding, Esquire 700 Southeast 3rd Avenue Suite 200 Ft. Lauderdale, Florida 33316 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue 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 One issue posed for decision herein is whether or not the Petitioners are entitled to a transfer of License No. 16-1333 SRX (4-COP), an alcoholic beverage license which currently allows Jacob's Ladder, Inc., to serve liquor, wine and beer as Part of its restaurant business pursuant to Sections 561.32 and 561.321, Florida Statutes. Also at issue is whether or not the Petitioners are entitled to have a default judgment for removal of tenant," issued by the Seventeenth Judicial Circuit in Broward County, against Jacob's Ladder, Inc., recorded by Respondent as a lien pursuant to Chapter 561.65, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received including a stipulation by the parties, the following relevant facts are found. License No. 16-1333 SRX (4-COP) is issued to the premises at 1480 South Ocean Boulevard, Pompano Beach, Florida. Petitioners are owners in fee simple to this property. Petitioners leased this property to the past licensee, Jacob's Ladder, Inc. (Petitioners' Exhibit No. 1). Petitioners transferred the subject license to the lessee, Jacob's Ladder, Inc., for use while they operated a restaurant at the subject location (1480 South Ocean Boulevard, Pompano Beach, Florida). The transfer of the license was not a subject of the lease agreement and the record does not reflect that any consideration was exchanged for the license. Petitioner and Jacob's Ladder, Inc., subsequently executed a transfer application transferring the subject license back to Petitioners. The transfer application was then placed in escrow for the stated purpose of facilitating a license transfer in the event that the lessee defaulted on the lease agreement. (Petitioners' Exhibit Nos. 2 and 12.) Petitioners later learned that the property had been converted to a bar instead of a "family type restaurant." Thus, Petitioners concluded that the "conversion" resulted in a use of the premises in a function inconsistent with the lease and Florida's alcoholic beverage laws. Petitioners, therefore, sought and obtained a court order evicting Jacob's Ladder, Inc., from the premises (Petitioners' Exhibit No. 3). Respondent had notice that the Petitioners were lessors and owners of the property to which the subject license was issued both when Petitioners transferred the license to Jacob's Ladder, Inc., and when the Petitioners' attorneys informed Respondent of Petitioners' status as lessors and owners of the subject property. (Petitioners' Exhibit No. 4.) On January 22, 1979, Respondent, through its District Supervisor, filed charges and prepared an Administrative Complaint for Rule violations against Jacob's Ladder occurring in June of 1978. On February 1, 1979, Petitioners' attorneys met for an office conference with Respondent's Director and other staff personnel concerning the subject license. During this meeting, Respondent, in addition to being advised that Petitioners were the lessors of the subject premises, was also advised that Petitioners had taken possession and was seeking transfer of the license to Petitioners. During this meeting, Petitioners were advised by Respondent that Jacob's Ladder had continuously violated rules governing the special restaurant license which was issued; that Respondent intended to revoke the license and was presently proceeding to that end. On February 5, 1979, Petitioners signed a letter of agreement, stipulating to their future conduct and to the conduct of any future lessee. (Petitioners' Exhibit No. 6.) On February 9, 1979, Petitioners executed an application for transfer of License No. 16-1333 SRX (4-COP)(Petitioners Exhibit No. 12). Also on February 9, 1979, Respondent executed and forwarded two documents captioned a Notice to Show Cause/Notice of Informal Conference and a Notice of Informal Conference both of which were received at two locations by J. Epsimos, President of Jacob's Ladder, Inc., on February 13 and 15, 1979. (Petitioners' Exhibit No. 7.) Petitioners' letter of agreement, application for transfer and request for lien filing were mailed to Respondent on February 16, 1979. On March 8, 1979, Respondent returned Petitioners' transfer application, request for lien recording and letter of agreement. (Petitioners' Exhibit No. 5.) In May, 1979, Respondent drafted a revocation order which was not executed, at least in Part, due to Petitioners application for and receipt of a temporary injunction enjoining Respondent from executing the revocation order. The file on the revocation proceedings was closed on May 29, 1979. (Respondent's Exhibit No. 3.) Following the March 8, 1979, letter wherein Respondent returned Petitioners' application and advised that a revocation proceeding was Pending, Respondent proceeded with this effort to suspend or revoke License No. 16-1333 SRX (4-COP). (DOAH Case No. 79-898.) The licensee, Jacob's Ladder, Inc., communicated to Respondent that it did not contest the charges in the Notice to Show Cause filed February 9, 1979, and therefore, did not want a hearing. The matter was, therefore, closed by this Division on May 29, 1979. (See Respondent's Exhibit Nos. 2 and 3.) The licensed premises is one unit of a 57-unit condominium. The remaining 56 units are all residential. There are currently 41 Parking spaces which serve the condominium. According to the Director of Building and Zoning Enforcement for Broward County, the 41 Parking spaces are inadequate to serve the condominium units and are "clearly inadequate to serve 56 residential units in addition to the subject restaurant. Since the Premises were first licensed to serve alcoholic beverages in 1974, condominium residents have complained to the Director of the Respondent about problems they perceived were being created by the service of alcoholic beverages at the restaurant. (Testimony of Nuzum and Nerzig.) Respondent's Director denied the license transfer for two reasons. First, the premises could never serve as a legitimate restaurant but would continue to operate as a bar due to inadequate parking facilities and thus, would be unable to comply with pertinent rules, regulations and statutes governing special restaurant licenses. (Chapter 561, Florida Statutes.) This is so due to the inadequacy of the parking facilities. Secondly, the licensee bad been in violation of the beverage law in 1977 for the same type of violations charged in the subject complaint when the transfer application was submitted. 2/ The Department (Respondent) has an ongoing policy of refusing to record documents pursuant to Section 561.65, Florida Statutes, when the license against which the document is to be recorded is in a revocation proceeding. (Testimony of C. L. Ivey, Regional Supervisor, Barry Schoenfield, Bureau Chief of Licensing, and C. Nuzum, Respondent's Director.) Also, Chief Schoenfield testified to Respondent's policy of only recording liens from lenders that are licensed by the State. This policy appears to be sanctioned by Chapter 561.65, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the action of Respondent in refusing to transfer License No. 16-1333 SRX (4-COP), and refusing to record Petitioners' judgement and lien filings be SUSTAINED. RECOMMENDED this 27th day of May, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1981.
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.
The Issue Whether respondent's alcoholic beverage license should be disciplined on charges that it operated its restaurant in violation of beverage rules.
Findings Of Fact At all times relevant to this proceeding, respondent conducted business as Oscar's Restaurant and Lounge (the "licensed premises" or "premises") at 901 Southwest Eighth Street, Miami, Florida, under a special restaurant alcoholic beverage license, No. 23-2059-SRX (Series 4-COP-SRX), issued prior to April 18, 1972. I. At 2:30 p.m. on November 8, 1979, when beverage officer Louis J. Terminello inspected the licensed premises, the kitchen area was not in use. The kitchen lights were off, no kitchen employees were present, and no food was being prepared. Although alcoholic beverages were being served to approximately three patrons in the bar section of the premises, no food had been served. (Testimony of Terminello.) Officer Terminello then asked Oscar Sarmiento, the on-site representative of respondent, to produce business records reflecting the purchases and sales of alcoholic beverages, food, and nonalcoholic beverages. Mr. Sarmiento replied that the requested records were not on the premises, that they were at the office of respondent's accountant, Mark Thaw. (Testimony of Terminello.) Respondent contends, without corroboration, that DABT, through Officer Terminello, had given oral permission to keep these business records off premises, at its accountant's office. Officer Terminello denied having given such permission. Taking into account the interest and bias of the witnesses, Officer Terminello's denial is accepted as the more credible and is persuasive. The fact that, before or during the time in question, DABT agents inspected respondent's records at its accountant's office does not, by itself, establish that respondent had permission from DABT to keep business records offsite. (Testimony of Terminello, Sarmiento.) Before leaving the premises that day, Officer Terminello explained to Mr. Sarmiento the requirements of special restaurant alcoholic beverage licenses and provided a written notice of deficiencies. (Testimony of Terminello.) At 2:30 PM. on December 5, 1979, Officer Terminello returned to the licensed premises to conduct a follow up inspection. The kitchen area was, again, not in use. A small amount of food was found in the refrigerator. The stove was cold. No food was being prepared or served. Silverware was insufficient to accommodate 200 customers. Several patrons in the bar area were being served alcoholic beverages by Guano Salas, the employee in charge of the premises. (Testimony of Terminello.) At 2:00 P.M.. on the next day, December 6, 1979, Officer Terminello returned to the premises and found a similar situation: the kitchen was not in use, no food was being prepared or served, and patrons were being served alcoholic beverages in the bar area. He then arranged to have another beverage officer, Leonard Del Monte, attempt to purchase an alcoholic beverage and a meal. At 3:00 P.M.., Officer Del Monte entered, ordered an alcoholic beverage, and asked for "something to eat." Juana Salas, the employee in charge, told him that he could go "down the street," that there were plenty of restaurants in the area. He asked for a menu but was net given one. Although there were patrons drinking in the bar area, none were eating or being served meals. (Testimony of Terminello, Del Monte.) At 5:30 P.M.. on December 7, 1979, Officers Terminello and Del Monte returned to the premises. Officer Del Monte, in an undercover capacity, ordered and was served an alcoholic beverage. He requested a menu but Ms. Salas told him that no food was being served. Other Patrons were being served drinks but none were consuming meals. (Testimony of Terminello, Del Monte.) At 4:40 P.M.. on December 11, 1979, Officers Terminello and Del Monte again entered the premises. Patrons were at the bar drinking but no food was being prepared or served. When Officer Del Monte ordered a meal, he was told that food was not being served because the kitchen was being disinfected. He ordered and was served an alcoholic beverage. (Testimony of Terminello, Del Monte.) During each of the foregoing inspections of the licensed premises, Officers Terminello and Del Monte remained on the premises for approximately 20- 30 minutes. (Testimony of Del Monte, Terminello.) Oscar Sarmiento, former owner of the licensed premises, testified that, to his knowledge (although he was not always on the premises) meals could almost always be purchased on the premises, that lunch could normally be purchased in the early and mid-afternoons. (Testimony of Sarmiento.) II. Prior to February 28, 1979, Oscar Sarmiento was the owner and president of respondent. On February 28, 1979, Elma Sarmiento, his wife, became sole owner and was elected president, treasurer, and secretary of respondent corporation. (Testimony of Sarmiento; R-3, R-4.) On February 28, 1979, Rene Valdes, a beverage license broker acting on behalf of respondent, filed with DABT forms indicating that Elma Sarmiento owned all stock of the respondent corporation and that she was elected president, treasurer, and secretary at the corporate director's meeting held on February 28, 1979. 3/ (In anticipation of the change in ownership, Mrs. Sarmiento had been fingerprinted by DABT on November 13, 1978.)(Testimony of Valdes; R-2, R-3, R-4.) III. By final order dated December 12, 1979, that portion of Rule 7A-3.15, Florida Administrative Code, which requires special restaurant licensees to "discontinue the sale of alcoholic beverages whenever the service of full course meals is discontinued" was declared an invalid exercise of delegated legislative authority by a Division of Administrative Hearings hearing officer. Gainesville Golf and Country Club, Inc. v. Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, DOAH Case No. 79-1851R, affirmed, 402 So.2d 616 (Fla. 1st DCA 1981). DABT concedes that this portion of Rule 7A-3.15 is ineffective 4/ and any evidence concerning violation of it "cannot be used as an indication that the licensee was operating in a manner not consistent with its alcoholic beverage license." (Challenge to the validity of Rule 7A-3.15 filed by DABT on April 27, 1982.)
Recommendation Based on the foregoing, it is RECOMMENDED: That DABT impose a civil penalty of $1,000 against respondent for the rule and statutory violations as described above. DONE AND RECOMMENDED this 5th day of August, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1982.
The Issue The ultimate issue in this case is whether the Petitioner's application for a special (SRX) restaurant alcoholic beverage license should be granted.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witness at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact: Stipulated Facts The special restaurant license is sought for the Brass Elephant Restaurant within the corporate limits of the City of Sanibel, Florida. The restaurant is located on a 7.7-acre parcel of property adjacent to the Gulf of Mexico. The restaurant is located within a resort complex known as the Sanibel Island Hilton. Seating within the restaurant itself is limited to 100 seats by court order and zoning regulations of the City of Sanibel. No bar is maintained within the restaurant itself. The Brass Elephant Restaurant derives more than 51 percent of its revenue from the sale of food and non-alcoholic beverages. The Brass Elephant Restaurant has in excess of 2,500 square feet of service area. The Sanibel Island Hilton is being operated as a first-class destination resort. Hilton Corporation has stringent constraints on the operation of such a resort and has made special exceptions for this resort in light of the special zoning and building restrictions imposed by the City of Sanibel on the resort area; these special exceptions allow, inter alia, separate buildings and outside walkways. The restaurant in question is an accessory use to the Hilton Hotel, and is not an autonomous restaurant. There is no separate sign advertising the restaurant as an individual entity. Access can only be gained from the hotel grounds. By virtue of the development permit issued by the City of Sanibel, the Hilton is precluded from operating a saloon, lounge or restaurant separate and apart from its food service operation. Additional Facts Proved at Hearing The Petitioner also has a banquet facility on the premises known as the "Commodore Suite." It is located approximately 250 feet from the Brass Elephant. Meals for the Commodore Suite are prepared at the kitchen facility in the Brass Elephant. On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150. The Petitioner has available on the resort premises all of the necessary equipment to serve more than 150 persons at one time in the Brass Elephant, though the City of Sanibel prohibits it from having more than 100 seats in the restaurant. In addition to the restaurant and the banquet room, there is also a pool bar on the Petitioner's resort premises. The restaurant, pool bar, and banquet room are physically separate from each other. The distance between the restaurant and the banquet room is approximately 250 feet and the distance between the restaurant and pool bar is about the same. There are no separate walkways from the various buildings to the restaurant. To walk from the restaurant to the banquet room, one has to walk across a street, part of a parking lot, and around or under one of the other buildings at the resort. To walk from the pool bar to the restaurant or the banquet room, one has to walk around or through another building. The foregoing paragraphs numbered 1 through 16 comprise all of the findings of fact in this case. Such findings include the substance of all of the findings proposed by the Petitioner and the substance of the vast majority of the facts proposed by the Respondent. To the extent I have not made certain proposed findings of fact, such proposed findings are irrelevant and immaterial to the issues to be decided in this case.
Recommendation For all of the reasons set forth above, I recommend that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the application of Shell Harbor Group, Inc., for a special restaurant liquor license. DONE and ORDERED this 1st day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 1st day of May, 1985.
The Issue Whether Florida Administrative Code Rule 61A-3.0141(2)(a)2., and its directive that the square footage making up the licensed premises of a special restaurant (SRX) license be “contiguous,” constitutes a valid exercise of delegated legislative authority. Whether a genuine issue of material fact exists, and, if so, whether Petitioner’s Motion for Summary Adjudication should be denied.
Findings Of Fact The following findings of facts are determined: The State of Florida, Department of Business and Professional Regulation (Respondent) is the state agency responsible for adopting the existing rule which is the subject of this proceeding. Under the provisions of Section 561.02, Florida Statutes, the Division of Alcoholic Beverages and Tobacco, within the Department of Business and Professional Regulation, is charged with the supervision and enforcement of all alcoholic beverages manufactured, packaged, distributed and sold within the state under the Beverage Law. The Division issues both general and special alcoholic beverage licenses. Petitioner, Brooklyn Luncheonette, LLC, d/b/a Del Tura Pub and Restaurant is the owner/operator of a restaurant located in North Fort Myers, Florida. It is seeking issuance of a special restaurant license (SRX) pursuant to Subsection 561.20(2)(a)4., Florida Statutes, from the Division. Therefore, Petitioner is substantially affected by the challenged rule. Petitioner operates a restaurant on a leased parcel of property consisting of two buildings with a dedicated pathway between the two buildings. Petitioner’s restaurant premises consist of two buildings which contain a minimum of 2,500 square feet in the aggregate of service area. Petitioner’s restaurant facility is equipped to serve 150 patrons full course meals at tables at one time. The sole reason asserted by Respondent for denial of Petitioner’s application is the alleged noncompliance with the “contiguous” requirement of Florida Administrative Code Rule 61A-3.0141(2)(a)2. The provision of general law, applicable to Petitioner, which sets forth the specific criteria for an SRX license, is Subsection 561.20(2)(a)4., Florida Statutes. To these statutory criteria, Respondent has, by Florida Administrative Code Rule 61A-3.0141(2)(a)2., added an additional criteria: “The required square footage shall be contiguous and under the management and control of a single establishment.” Respondent has interpreted the provision to mean that the buildings containing the square footage must physically touch. Florida Administrative Code Rule 61A-3.0141 reflects that the sole law implemented is Subsection 561.20(2)(a)4., Florida Statutes. Susan Doherty is the chief of Respondent’s Bureau of Licensing, whose duties include determining “if a license will be issued based upon the qualifications of the applicant [and] whether the premises meets all requirements based on the type of license applied for.” Ms. Doherty, whose deposition was taken on May 12, 2009, testified in pertinent part: Q. All right. If I can direct your attention to Subsection (2)(a)(2) of Rule 61A-3.0141, it says, “The required square footage shall be contiguous and under the management and control of a single licensed restaurant establishment.” What does “contiguous” mean? A. Touching, actually connected, touching. * * * Q. Do you see anything in the statute that prohibits a licensee from qualifying if the square footage is in two buildings that the applicant leases and they’re connected by a pathway which the applicant leases? Do you see anything in the statute that precludes that? A. In the statute, no. Q. Do you see anything in the rule that precludes that? A. In my opinion, Section (2)(a)(2), the contiguous would. Deposition of S. Doherty, pp. 15 and 18. Chief Doherty conceded, however, that she could not point to any provision of the relevant statute that imposes a “contiguous” requirement regarding the square footage. Chief Doherty further noted that for special licenses issued for hotels pursuant to Subsection 561.20(2)(a)1., Florida Statutes, she was aware that there were numerous non-contiguous buildings licensed pursuant to such section. The deposition of Respondent’s agency representative, Major Carol Owsiany, was taken on May 13, 2009. Major Owsiany testified: Q. . . . Isn’t it correct that there’s 2,500 square feet of service area located in the two buildings that are currently the subject of the [Petitioner’s] temporary SRX license? A. Yes, sir. Q. Can you point to me any provision of Section 561.20(2)(1)(4) that precludes the petitioner from having the requisite square footage in two buildings? A. One second, sir. Not in the statute, but I can in the rule. Deposition of C. Owsiany, p. 8. For purposes of this rule challenge case, there are no genuine issues of material fact in dispute.
