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 Petitioner should take disciplinary action against respondent's license for the reasons alleged in the notice to show cause dated January 23, 1989, as amended effective November 29, 1989?
Findings Of Fact Respondent holds a 2 COP license, No. 74-01941, for Manatee's, a bar in Orange City, authorizing the sale of beer and wine, but not "spirituous liquors," for consumption on the premises. At about one o'clock on the afternoon of December 23, 1988, in response to a complaint, Joseph Ogonowski, a law enforcement officer in petitioner's employ for some 29 years, entered Manatee's, in plain clothes. Super Bowl Pool Conducting himself "like a patron, he struck up a conversation with Barbara, who asked him if he wanted to split the cost of a $10.00 chance in a football pool. When he answered affirmatively, a man behind the bar named Bob produced a cardboard chart. Petitioner's Exhibit No.2. On the obverse, under the legend "SUPER BOWL XXIII SUN JAN 22, 1989," 100 squares were numbered in sequence. The reverse contained two columns of lines, also numbered from one to 100. Names appeared in some squares and on some lines. After Barbara and Mr. Ogonowski decided on the number 11, their names were entered both in the square numbered 11 and on line 11, on the back of the chart where Mr. Ogonowski, as instructed, also wrote down his telephone number. John "Pete" Peterson offered to share another chance with Mr. Ogonowski (if he contributed five dollars to its purchase), and in this way the latter acquired a half-interest in a second chance. After Pete picked 6 and Mr. Ogonowski picked 7, their names went into square and on line 76. In the course of assuring him that he need not be present at Manatee's for the Super Bowl buffet in order to win the pool, Denise, a bar maid, pointed out a woman (whose name nobody who testified could recall) who had entered the establishment after he had. Mr. Ogonowski saw her unremembered name deleted from an erasable chart (after, he was told, she received winnings from an earlier football pool.) More than one person informed Mr. Ogonowski that the free Super Bowl buffet at Manatee's had been a good one in past years. The plan was to add the scores of both teams playing in the Super Bowl, as soon as the game finished. If the total corresponded to a square with somebody's name(s) in it, the winner(s), so determined, were to receive all bets pooled. On January 4, 1989, Mr. Ogonowski returned with a fellow beverage officer, Ron Sullivan. Announcing that they were beverage agents, they seized the cardboard chart and an envelope marked "Super Bowl Pool," despite Mr. Di Nofrio's efforts to prevent their access to the drawer containing the envelope. The envelope had $90.00 inside, although names filled 24 squares on the chart, found later behind a cash register. On January 10, 1989, a handwritten note reached petitioner's Daytona Beach offices. Mailed after the search and seizure at Manatee's, the note reads: Joe Barbara ask me to send this buffet ticket to you. Don Petitioner's Exhibit No. 6. Enclosed was a business card ("good for 1 FREE drink") on which somebody had written by hand: SUN JAN 22ND 076 SUPER BOWL BUFFET PARTY JOE OGONOWSKI Id. At hearing, Mr. Di Nofrio contended that Mr. Ogonowski's ten dollars had paid for a buffet ticket, and had nothing to do with any football pool. Mr. Di Nofrio claimed that each square on the chart represented a buffet ticket. But this did not explain why some patrons had their names in six different squares, or why some squares contained two names. In any event, he testified that a person who paid $10.00 would be eligible, even without attending the buffet, to win one of two $50.00 cash prizes or a $25.00 bar tab in a drawing. Distilled Spirits In searching Manatee's on January 4, 1989, the beverage officers found an array of Lady Velvet liqueurs, including Lady Velvet Apricot Brandy, Lady Velvet Apricot Schnapps, Lady Velvet Banana Schnapps, Lady Velvet Blackberry Brandy, Lady Velvet Coffee and Brandy, and Lady Velvet Dark Creme de Menthe. Di Nofrio told the officers that he had acquired these liqueurs, at Walgreen's, a retail store; and indicated that he kept them at the bar for resale. Also present on the premises was an unopened bottle of McGuire's Cream Liqueur. Mr. Di Nofrio claimed this had been a present for a bar maid, but he was not sure which. Unlike the labels on the Lady Velvet products, which did not identify them as distilled spirits, the label on this bottle stated, "Made with 100% imported blended scotch whiskey." Walgreen liquor stores are licensed as "vendors" but not as "distributors" of alcoholic beverages. The distributor who sells Lady Velvet liqueurs to Walgreen stores sells this brand to no other vendor. Although Lady Velvet liqueurs contain less alcohol by volume than certain non- distilled beverages legally sold under licenses like respondent's, these liqueurs are distilled or "spirituous" liquor.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's license for thirty (30) days. DONE and ENTERED this 7th day of March, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 7th day of February, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 9, 12 and 13 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 10 and 14, the witness so testified. With respect to petitioner's proposed finding of fact NO. 11, only hearsay tended to prove her a winner. Respondent's proposed findings of fact Nos. 1, 2, 3, 7, 8, 9 13 and 14 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 4, 5, 6, 10, 11 and 12, the evidence showed that the money was paid for chances in a football pool, rather than for buffet tickets. Respondent's proposed findings of fact Nos. 15, 16, 18 and 20 have been rejected as unsupported by the weight of the evidence. With respect to respondent's proposed findings of fact Nos. 17 and 19, only respondent's testimony would support these findings, and his testimony proved incredible in many other matters. COPIES FURNISHED: Leonard Ivey, Director Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, General Counsel Deparment of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 John B. Fretwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Dondis Enterprises, Inc. 510 Cleo Lane Deltona, FL 32738 Lt. J. D. Powell, District Supervisor Division of Alcoholic Beverages and Tobacco 815 North Nova Road Daytona Beach, FL 32015
The Issue Whether or not on or about the 20th day of January, 1976 the Respondent, Franklin D. Boockholdt, licensed under the Beverage Laws as a vendor did unlawfully make a false statement, to wit: said premises sought to be licensed, contains and will maintain at all times all necessary equipment and supplies for serving full course meals regularly, on an affidavit for special restaurant license, in violation of Section 837.012, F.S., thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the Notice to Show Cause, the Respondent, Franklin D. Boockholdt, was and is the holder of License No. 55-11, a Series 2- COP, held with the State of Florida, Division of Beverage. On January 20, 1976, Beverage Officer, George Sterling, arrived at the licensed premises of the Respondent known as Gibbs Night Club, located at 511 South Wood Street, Callahan, Nassau County, Florida. The purpose of this visit was to inspect the aforementioned premises as an element in considering the application which the Respondent, Franklin D. Boockholdt, had made for a special restaurant license to be held with the Division of Beverage. Prior to the time that Officer Sterling arrived at the subject premises, the Respondent had gone to the Airway's Facility of the Federal Aeronautics Administration at Hilliard, Florida and picked up a number of dishes from the cafeteria on that facility. These dishes were owned by a vendor whose name is Jet Services. The racks in which the Respondent carried the dishes away were the property of the Federal Aeronautics Administration. The Respondent then took the dishes, which would include flatware, to the subject premises and these dishes and flatware were part of the inventory which was shown to Officer Sterling in the course of an inspection held on January 20, 1976 at the subject premises. While checking the subject premises on January 20, 1976, Officer Sterling, among other things, was looking to establish that there were sufficient accommodations for serving 200 or more patrons at tables. His inventory on January 20, 1976 revealed 150 sectional trays, 50 plates, and sufficient forks, knives, spoons and glasses to serve the 200 people. Once Officer Sterling had completed his inventory he gave the Respondent Boockholdt an affidavit which was to be completed by the Respondent and given back to Officer Sterling as one of the preconditions to approval of the license application for a special restaurant license. The Respondent took the affidavit and completed its parts and appeared before a notary public to have the affidavit sworn and subscribed to by the notary public. The notary public was Dorothy Beasley. She notarized the subject affidavit and witnessed the signature of the Respendent. This activity took place on January 20, 1976. In addition, she read the document in full orally in the presence of the Respondent and asked the Respondent if he would swear to the affidavit. The Respondent replied "yes". The Respondent then signed his name to the affidavit. The affidavit in question is Petitioner's Exhibit #2 admitted into evidence. Within the affidavit is the statement under the number seven (7). Number seven (7) says: "Said premises sought to be licensed has, and will maintain at all times, accommo- dations for serving 200 or more patrons at tables;" The numerals 200 had been placed in the blank with the knowledge of the Respondent. The affidavit was then returned to Officer Sterling on January 20, 1976, at which time he affixed his signature as having checked the above described restaurant and found the statements in the affidavit to be true. Two hours after the Respondent had picked up the dishes and flatware at the Airways Facility of the Federal Aeronautics Administration at Hilliard, Florida, he returned these items to that facility and they were inventoried in their entirety. Acting on a complaint filed with the Division of Beverage by Douglas M. Messick, the Manager of the Federal Aeronautics Administration at Hilliard, Florida, Officer Sterling returned to the licensed premises on February 9, 1976. When he arrived at the licensed premises, he made an inventory of the dishes and flatware. Among other things, he found 140 sectional trays, plates of sizes of from 10" to 12" in diameter, some of which had not been present in the January 20, 1976 inventory, miscellaneous knives, forks and spoons, and glasses and cups. There were sufficient numbers to meet the service for 200 of all items with the exception of glasses which were deficient in number. There were not sufficient numbers of cups, but there is a question about whether it was intended that coffee and tea be served with the meal at the time that the affidavit was being filled out on January 20, 1976. After inventorying the accommodations for serving on February 9, 1976, a report was made and the subject charges were placed.
Recommendation It is recommended that the License No. 55-11, Series 2-COP, held by the Respondent, Franklin D. Boockholdt, to trade at Gibbs Night Club at 511 South Wood Street, Callahan, Florida, be revoked.* * RO issue date of 2/22/77 was obtained from the docket sheet. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Dennis E. LaRosa, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Franklin D. Boockholdt P. O. Box 433 Hilliard, Florida 32046
Findings Of Fact The Respondent, Caldo Corporation, d/b/a Calypso Bay Club, operates a place of business in Clearwater, Florida, where consumption on the premises is permitted under license number 62-928, Series 4-COP SRX. The licensed premises consist of some 18,000 square feet. Seven permanent bars are located within the perimeter walls of the licensed premises. No interior walls separate the bars, and they are not located in separate rooms. The seven bars are located in different parts of one large, generally open room. A customer entering the Calypso Bay Club first enters a combination foyer/seating area. From this area, a customer can see throughout the area where the seven bars are located. All seven bars in the licensed premises are visible, at least in part, from the entrance foyer/seating area, although the view to some parts of the premises may be blocked. Two of the bars are located within an unobstructed, open lower level which is generally in the center of the premises. There is a dance floor in this lower level. The other parts of the licensed premises are located on deckings that are raised to varying heights above the dance floor area. One of the bars, known as the Oyster Bar or bar number 7, is located on its own decking to one side of the dance floor area (to the customer's right on entering the premises.) It is three and a half steps, or approximately 18 inches, above the dance floor level. The other bars are arrayed on deckings on the other side (to the customer's left on entering the premises). Except for a lower, middle decking, the deckings on the left side of the premises are two steps, or approximately 12 inches, above the dance floor level. In the middle of that side, the decking is slightly lower than either the decking in front of it or the decking to the rear of it. One of the bars, known as the Fufu bar or bar number 5, is located on the middle decking. The other bars on that side are on one of the two higher deckings. The bar known as Deck 1 (bar number 4) is on a decking that wraps around to the entrance foyer/seating area. The bars known as Deck 2 (bar number 3) and the Corner bar (bar number 2) are on a decking located beyond the lower, middle decking. Throughout the premises, where the flooring changes elevation, there is a wide, flat wood rail approximately 42 inches above the floor of the raised decking. The railing sits on top of, and is supported by, thick wood posts similar to posts used in the construction of docks. Thick hemp rope, consistent with a waterfront motif, also is wound around the posts and draped between them under the rails (as Christmas garland would be draped on a stairway bannister). All except in the area of the Oyster Bar (bar number 7), a smaller slat of wood about the size of a one by four also is nailed to the posts about five inches above the floor of the decking, forming a lower fence rail as well. In some places, banners are also hung from the railing. The railing separating the different elevations serves two primary purposes. First, it is for safety to prevent customers from accidentally falling from a higher to a lower floor elevation. Second, it also serves as a counter on which customers standing or sitting on the higher elevation can set drinks or ash trays. Openings in the railing permit customers to walk from one bar area to another. The deckings are accessible from the dance floor area by six fairly wide stairways. As previously mentioned, the stairway to the Oyster Bar has three steps; the others have just two steps. Nothing separates the Corner bar (bar number 2) from the Deck 2 bar (bar number 3). Likewise, there is direct access from part of the Deck 2 bar to the Fufu bar (bar number 5). To one side of the Deck 2 bar, a railing separates the two elevations, but a railed ramp in the middle of the railing connects to two areas. It also is possible to get from the Fufu bar to the Deck 2 bar, without having to descend to the dance floor level, by walking from the Fufu bar, around a wood column, and step up one step to the area of the Deck 2 and Corner bars. The Deck 1 bar (bar number 4) is the closest to the entrance foyer/seating area of the bars on that side of the premises. There are two ways to get from the Fufu bar to the Deck 1 bar. First, there is virtual direct access between the Fufu bar and the Deck 1 bar. Bar number 5 (the Fufu bar) is in an area one step lower than the other bars on that side of the dance floor area, including the Deck 1 bar. There is a short railed ramp that goes up alongside a wood column standing between the two bars. From the top of the ramp, there is direct access to the Deck 1 bar; from the bottom of the ramp, there is direct access to the Fufu bar. There also is indirect access by walking to the side opposite the ramp side into a small seating area. The seating area is separated from the Deck 1 bar by the one-step change in elevation and by a railing and two video games. There are two gaps in the railing where one can step up into the area where the Deck 1 bar is located.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Notice to Show Cause in this case. RECOMMENDED this 15th day of January, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of January, 1992. 1/ The Petitioner also offered in evidence Petitioner's Exhibit 7, a videotape to which the Respondent objected. At the hearing, ruling was reserved. At this time, the objection is sustained. The videotape is immaterial and irrelevant to the issue in this case, which is whether the Calypso Bay Club "has more than three separate rooms or enclosures." See Conclusion of Law 9, below. 2/ The evidence of the legislative history in this record may not be clear and complete. No such evidence was introduced at the final hearing. The Department attached to its proposed recommended order what appear to be certified copies of committee reports on the legislation. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5784 To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lines referred to in the last sentence did not completely separate the five bars from the two bars; the drawings included the designation of steps leading from one elevation to another. Accepted but subordinate and unnecessary. There are two proposed findings 6. This addresses the first of them. Subpart d. is rejected as not proven. The "small exposed part of bar 3" is not "cordoned off," and there is no wall. It is accessible from the steps from the dance floor area closest to the bar by walking from the steps to the bar, passing between the railing along the dance floor area and the partial wall (actually more like a wood column). (There also is access from the Corner bar and from the Fufu bar.) Subpart e. is rejected as not proven. There is direct access, as well as indirect access, as stated above, subpart d. Subpart f. is rejected as not proven. The "cordoned" railing has an opening through there is access to the Deck 1 bar (bar number 4). The Deck 1 bar also is directly accessible from the Fufu bar and from the entrance foyer/seating area. Subpart g. is rejected as not proven. Bar number 5 is not enclosed. It is accessible by four alternative routes. There is direct access between part of the Deck 2 bar (bar number 3) and bar number 5. There also is access to other parts of the Deck 2 bar from the steps from the dance floor area closest to the bar, as described in subpart d., above, as well as via a ramp through an opening in the railing along the change in elevation between the two bars. Finally, bar number 5 is accessible from the Deck 1 bar as described in subpart f., above. Otherwise, the first proposed finding 6 is accepted and incorporated. The second proposed finding 6 is rejected in part as not proven. As previously stated, there is direct access between the Corner bar (bar number 2) and the Deck 2 bar (bar number 3), as well as between part of the latter bar and bar number 5 (the Fufu bar.) Otherwise, accepted and incorporated. Rejected in part as not proven. The televisions hang from the ceiling or are on a wood column, and the game machines are placed next to railings. Neither serves to form a separate barrier. The ropes do not in all cases, and in any case were not primarily intended to, separate bar areas. They are all along the upper level at an elevation change or are along steps or a ramp between two different elevations. 8.-9. Rejected as irrelevant to the question whether there are more than three "rooms or enclosures." See Conclusion of Law 9, above. Rejected in part as not proven (last sentence); in part, accepted but subordinate to facts contrary to those found (first three sentences). The evidence suggested that the railings are there for two primary purposes. See Finding of Fact 6, above. The effect of the use of the railings as a bar counter was as much to join as to separate the various parts of the bar. A customer could put a drink, food or ash tray on one of the railings, or lean on it, and observe parts of the premises on the other side of the railing. Rejected in part as argument and in part as not proven. The testimony regarding shortness of funds was part of an answer to a question on cross examination as to why there were different kinds of chairs and stools on the premises. The owner's intent and desire to increase profits does not prove liability for the additional $1,000 fee. The critical issue is the existence of more than three rooms or enclosures, a fact not proven by the evidence. Respondent's Proposed Findings of Fact. 1. Accepted but unnecessary. 2.-3. Accepted and incorporated. Rejected as being conclusion of law or argument. First sentence, rejected in part in that it is not "completely open." Third sentence, rejected in part in that there was no evidence to prove that the ramps are "fully handicap accessible." Fourth sentence, rejected in part in that there was no evidence to prove what the building code requirements were. Otherwise, accepted and incorporated. Accepted and incorporated. 7.-8. Rejected as conclusion of law. COPIES FURNISHED: Monica Atkins White, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard W. Scully, Director Div. of Alcoholic Beverages and Tobacco Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
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
Findings Of Fact 1. Petitioner is a corporation not for profit organized under Florida law in December of 1981, to "operate a supper club and lounge and to promote the culinary arts in Panama City, Florida, and the affording of facilities to members of the club for the enjoyment of same." Respondent's Exhibit No. 1. David McCurdy, John Diamond and Lorette Chance signed the articles of incorporation. The articles of incorporation specify that membership "shall consist of persons over the age of nineteen (19) years who shall be admitted on the majority vote of the directors of the corporation." Respondent's Exhibit No. The bylaws provide simply that "[n]ew members must be spons[o]red by a member in good standing . . . ." Respondent's Exhibit No. 2. For the first year of its existence, The Back Door Lounge and Supper Club, Inc. (the supper club) was operated solely for its members' enjoyment, on the premises of what had been the Chat 'N' Chew, a beer bar Mr. and Mrs. McCurdy had operated. Membership dues are $20.00 annually, and the supper club is open from six in the evening till six in the morning. Weekly there are covered dish suppers, and several members attested to learning about spices in connection with these suppers. Organization as a private club also discouraged "rowdyism . . . [like that to be found in some] other lounges within the P. C. area." Respondent's Exhibit No. 4 (Goss letter of 16 March 1984). In seeking to establish a private club, Mr. and Mrs. McCurdy have acted in good faith at all times and in keeping with their understanding of the legal advice they received. When Jerrold Hill, a sergeant with the Division of Alcoholic Beverages and Tobacco, was in the supper club in late 1983, he saw no difference between what was going on then and what he had earlier seen in the Chat 'N' Chew. In December of 1983, petitioner applied for the license at issue here. Eleven months earlier, there had been discussions with the local chapter of the American Cancer Society about donating money made on the suppers to the Society. On March 16, 1984, the day after one of respondent's investigators visited the supper club, petitioner gave the American Cancer Society a check for $500.00.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for licensure. DONE and ENTERED this 5th day of September, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1984. COPIES FURNISHED: Sandra P. Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. David A. McCurdy Back Door Lounge & Supper Club 4130 West Highway 98 Panama City, Florida 32405 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 Respondent violated Section 562.12(1), Florida Statutes, by selling alcoholic beverages in a manner not permitted by its license and, if so, the penalties that should be imposed.
Findings Of Fact The Respondent, Sunny South Lodge, No. 671, holds license number 60-000784, series 11-C, authorizing it to sell alcoholic beverages on the premises of Sunny South Lodge No. 671, located at 23 Southwest 9th Avenue, Delray Beach County, Florida (the licensed premises). At the time of the formal hearing, Sammie L. Joseph was the President and Exalted Ruler of Sunny South Lodge No. 671. Based on a complaint from the Delray Beach Police Department, Petitioner initiated an investigation on November 8, 1996, to determine whether Respondent was selling alcoholic beverages in a manner not permitted by its license. On December 20, 1996, Johnnie Wilson, a Special Agent employed by Petitioner, went to the licensed premises to investigate alcoholic beverage sales to nonmembers. Agent Wilson entered the premises and paid a $3.00 entrance fee. When he paid this fee, someone stamped his hand with a mark that was not legible. The stamp was to identify patrons who had paid the cover charge. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member. On January 10, 1997, Special Agent Wilson returned to the licensed premises as part of his investigation. Agent Wilson entered the premises, paid a $2.00 entrance fee, and signed a fictitious name in a spiral notebook. Agent Wilson was not a member of the club or a guest of any member of the club. At no time did Agent Wilson represent himself as being a member of the club or as being the guest of a member. Agent Wilson purchased from a bartender inside the premises two alcoholic beverage drinks, each containing Tanqueray gin. Agent Wilson paid $4.00 for each drink. No one, including the bartenders inside the premises, asked Agent Wilson whether he was a member of the club or the guest of a member. Respondent holds an alcoholic beverage club license issued pursuant to Section 565.02(4), Florida Statutes, which authorizes the club to sell alcoholic beverages only to members and nonresident guests. Respondent has had three prior administrative actions filed against its alcoholic beverage license for violation of Section 562.12(1), Florida Statutes, in 1994, 1995, and 1996. All three prior administrative actions were settled through the payment of a civil penalty. The Division has standard penalty guidelines for violations of the alcoholic beverage law which are set forth in Rule 61A-2.022, Florida Administrative Code. The Division's standard penalty for a fourth occurrence violation of Section 562.12(1), Florida Statutes, is revocation of licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's alcoholic beverage license number 60-00784, series 11-C, be revoked. DONE AND ENTERED this 23rd day of October, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997
The Issue Pursuant to a Notice to Show Cause issued November 22, 1982, the Respondent was charged with two violations of the beverage laws of this state. Respondent was charged with allowing a person under 19 years of age to consume alcoholic beverages on her licensed premises. Respondent was also charged with continuing to sell alcoholic beverages after discontinuing the sale of full course meals in violation of Florida Statute 561.20(3)(1981) and Rule 7A-3.15, Florida Administrative Code. At the formal hearing, Petitioner called as witnesses Mr. W. R. Wiggs, a beverage officer for the Division of Alcoholic Beverages and Tobacco; Mr. James Pistole, a deputy for the Hillsborough County Sheriff's Department; and Joe Circhirillo, also a deputy for the Hillsborough County Sheriff's Department. Respondent testified on her own behalf and called as witnesses Kathryn Singer, James D. DeBusk, and Heidi Buzbee. Petitioner offered no exhibits and Respondent offered and had admitted into evidence one exhibit consisting of four photographs. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered and determined by the Hearing Officer to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact At all times material hereto, Respondent held Beverage License No. 39- 00771, SRX Series 4-COP, issued to Sharon's Surf-n-Turf, located at 111 East Shell Point Road, Ruskin, Florida. During the course of the hearing, it was stipulated by and between the parties and it is now found that the beverage referred to in Count I of the administrative complaint was an alcoholic beverage. On October 29, 1982, W. R. Wiggs, an investigator for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises of Sharon's Surf- n-Turf Restaurant and Lounge. He arrived at approximately 9:30 p.m. and the lounge area was full of patrons. Before entering the licensed premises, Investigator Wiggs observed a sign outside the restaurant which reflected that the restaurant was open from 11:00 a.m. to 10:00 p.m. and there was live entertainment from 9:30 p.m. to 3:00 a.m. Beverage Officer Wiggs was accompanied by Beverage Officer Miller. Upon entering the licensed premises, Wiggs and Miller sat at the bar and each ordered a Michelob beer. Beverage Officer Miller asked if he could order a full course meal and the bartender responded that the kitchen was closed. Beverage Officers Miller and Wiggs were in the licensed premises approximately one and one-half hour and observed no food being served. The patrons in the lounge were consuming alcoholic beverages. The lights were not on in the restaurant portion of the licensed premises, and the door to the restaurant was locked. Neither Officer Wiggs nor Officer Miller checked the kitchen to determine if it was in fact closed. While in the licensed premises, Officer Wiggs, along with Deputy James Pistole, of the Hillsborough County Sheriff's Department, observed a young lady named Tammy Almond, sitting at one of-the tables and consuming an alcoholic beverage. She appeared to be younger than 19 years of age. After arresting Ms. Almond, it was determined from her driver's license that she was, in fact, 18 years of age, having a date of birth of March 28, 1964. When Officer Wiggs and Deputy Pistole arrested Ms. Almond, she stated that the drink which was seized belong to someone else and she was sipping out of it. There was no evidence that Tammy Almond had purchased the drink or that she had been personally served the drink. At the time Tammy Almond was arrested, all other persons in the lounge who appeared to be possibly underage were asked for identification. Tammy Almond was the only minor in the licensed premises that evening. Tammy Almond had previously been married and was now divorced. The Respondent and her employees were aware of her prior marriage. On this evening, James D. DeBusk was checking identification at the door to the licensed premises. He had checked Tammy Almond's identification and it had reflected that she was two or three months over 19 years of age. The identification appeared to be a Florida driver's license. There was nothing suspicious about the identification. The licensed premises always has a doorman checking identification on Wednesday night through Saturday night. The bartenders and waitresses would also check identification of patrons. The licensed premises is divided into a restaurant/ dining room area and a lounge. The lounge has tables, chairs, a dance floor, and bandstand. Food is served in the dining room area as well as the lounge area. Menus for food are posted on the wall just inside the doorway of the lounge. The Respondent, prior to and at the time of the incident involving Tammy Almond, had a strict policy against allowing minors to consume alcoholic beverages on the licensed premises. On the nights when the lounge is busiest, Wednesday through Saturday, a doorman is on duty to check the identification of persons entering the lounge. Waitresses and bartenders were instructed to check the identification of persons who appeared to be younger than 19 years of age. The Respondent's policy was to require two acceptable forms of identification whenever a person produces or shows a questionable identification. If they cannot produce such identification, they are not permitted to enter the licensed premises. The restaurant and lounge are managed and supervised by the Respondent. At the time of Tammy Almond's arrest, the Respondent was in the kitchen area of the licensed premises training a new cook. Food is served at the Respondent's licensed premises from 11:00 a.m. to closing time. On the evening of October 29, 1982, the kitchen was open and food was actually ordered. At least four meals of steak and eggs were ordered and served after midnight. The licensed premises is primarily a restaurant operation and serves several different types of full course meals. These full course meals were available on the evening of October 29, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of the violations charged in the Notice to Show Cause and that such Notice to Show Cause be dismissed. DONE and ENTERED this 27th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul S. Carr, Esquire Post Office Box 965 Ruskin, Florida 33570 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether or not the Petitioner, Conduces Club, Inc., is entitled to the issuance of a Series 11-C alcoholic beverage license.
Findings Of Fact The Petitioner, Conduces Club, Inc., a nonprofit corporation incorporated in the State of Florida, has applied to the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of a series 11-C alcoholic beverage license. This license is described in Rule 7A-1.13, Florida Administrative Code, as a club license to sell to members and nonresident guests only. The terms and conditions for the issuance of such a license are as set forth in Subsection 561.20(7)(a), Florida Statutes, and Subsection 565.02(4), Florida Statutes. The Director of the Division of Alcoholic Beverages and Tobacco has denied the application of the Petitioner premised upon the assertion that the Petitioner has failed to meet the requirements set out in the aforementioned sections of the Florida Statutes. The Petitioner has disagreed with that interpretation and a Section 120.57, Florida Statutes, hearing was scheduled and held on April 10, 1979. The crucial language to be considered in determining whether or not the Petitioner should be extended the privilege of operating under a Series 11-C alcoholic beverage license is found in the Subsection 561.20(7)(a), Florida Statutes, which reads as follows: "(7)(a) There shall be no limitation as to the number of licenses issued pursuant to 565.02(4). However, any licenses issued under this section shall be limited to: Subordinate lodges or clubs of national fraternal or benevolent associations; Golf clubs and tennis clubs municipally or privately owned or leased; Nonprofit corporations or clubs devoted to promoting community, municipal, or county development or any phase of community, muni- cipal, or county development; Clubs fostering and promoting the general welfare and prosperity of members of showmen and amusement enterprises; Clubs assisting, promoting, and de- veloping subordinate lodges or clubs of national fraternal or benevolent associa- tions; and Clubs promoting, developing, and main- taining cultural relations of people of the same nationality." (Although the introductory phrase in the above-quoted Subsection makes reference to Subsection 565.02(4), Florida Statutes, as being involved in the process of issuing a license, Subsection 565.02(4), Florida Statutes, true function is the establishment of the requirement that chartered or unincorporated clubs pay an annual state license tax of $400.00, and it is this Subsection 561.20(7)(a), -- Florida Statutes, which establishes those categories of candidates who may receive a Series 11-C alcoholic beverage license.) Of the possible categories for licensure, the one which appears to be the focal point of the controversy is that provision found in Subsection 561.20(7)(a)3., Florida Statutes. In support of its request, the Petitioner presented certain witnesses and items of evidence. Among those items was the testimony of Mrs. E. R. Atwater, Social worker Supervisor with the United States Department of Housing and Urban Development, Housing Management Division, assigned to the Blodgett Community in Jacksonville, Florida. The Blodgett Community is a housing development of some 53 acres which contains 628 housing units with a breakdown of that population containing 301 senior citizens and 1,069 juveniles, with cost of the heads of the households being female. Those persons living in the Blodgett development are described as having a poor economic circumstance. Mrs. Atwater indicated that the Conduces Club, Inc., had on occasion sponsored girls softball teams and boys basketball teams for those young persons living in the Blodgett Community and she had expressed her appreciation in the form of correspondence of January 17, 1979, which is the Petitioner's Exhibit No. 1 admitted into evidence. In addition, Mrs. Atwater indicated that the Conduces Club, Inc., had provided transportation for a trip for the residents of the Blodgett Community to Six Gun Territory located near Ocala, Florida. Arrangements were made for three busses; two of the busses which transported residents on July 16, 1977, and the third bus transported them on August 11, 1977. The trips involved both young people and adults as participants. The letters requesting the assistance of the Conduces Club, Inc., and the confirmation of that request may be found as Petitioner's Exhibits Nos. 2 and 3, admitted into evidence consecutively. The president of the Conduces Club, Inc., Mr. Cornell Tarver, testified in support of the petition. He indicated that the club had been originally formed as the Pacesetter Club but its name was changed in September, 1976, because of a conflict concerning the utilization of the name, which had been preempted by another club. The club was chartered as a nonprofit corporation by the State of Florida on September 22, 1976, under the name, "Conduces Club, Inc." A copy of the Articles of Incorporation may be found as Respondent's Exhibit No. 1 admitted into evidence. Mr. Tarver indicated that the purpose of the club was to help the youth and senior citizens and principally the kids of the Blodgett Community, to include organizing softball and baseball and providing uniforms. He also testified that a certain banquet was hold for these young persons and the parents of those children were invited to attend, and enough food was prepared to food cost of the individuals who reside in the Blodgett Community. He produced certain plaques and trophies awarded to the club. The plague was given by the mothers of the children in the sports programs and the trophy was presented by an unaffiliated club that the Conduces Club had helped to organize. The witness, Tarver, indicated that the club was financed by functions such as dances, fish fries, food sales in their club house, dues of the members and fines. The club itself has twenty-seven members. Other projects the club has participated in, were the contribution of money to local churches and the donation of an organ to one of those churches. On December 16, 1977, the club contributed $500.00 to the National Association for the Advancement of Colored People. The club house is open every day and there are certain activities through the week, to include club meetings and entertainment for the benefit of club members. The members run the club without compensation and the club does not maintain any regular employees. The official statement of the club's purposes may be found in the Respondent's Exhibit No. 2 admitted into evidence. This is a composite exhibit which contains part of the application for the license and a copy of the Bylaws. The objectives of the corporation may be found in Article II of the Bylaws and the activities of the corporation may be found in Article VIII of the Bylaws. Article II states: "The objectives of this organization shall be as follows: To unite fraternally all persons who the membership may from time to time take into the club. To promote brotherhood, sportsmanship, friendship and charity for the membership and their families. To strive at all times to promote and protect the welfare of every member. To promote a spirit of cooperation between its members and the public. To honor outstanding individuals in the City of Jacksonville for their achievement. To do anything necessary, including, but not limited to, the ownership of property, real and personal, for the accomplishment of the foregoing objectives, or those which may be recognized as proper and legal objectives of this club, all of which shall be consistent with the laws, the public interest and the interest of its mergers. To sue or to be sued as a natural person. To bear a seal to be placed on all of the club's official correspondence." Article VIII states: "COMMITTEES Section 1. The following standing committees and such other committees as the directors may, from time to time deem necessary, shall be appointed by the president of the association. Social Committee Athletic Committee Scholarship Committee The duties of the standing committee shall include the following, which shall not, however, prelude other activities by such committees. Section 2. The social committee shall be composed of six members. It shall be the duty of this canted to supervise the use of club room and to plan such club meetings of a purely social nature as it may deem necessary. These may include parties, picnics, and other such social or athletic events sponsored by the organization. Section 3. The athletic committee shall be composed of three members. It shall be the duty of this committee to supervise and manage all athletic activities for the association, including but not limited to management of various athletic teams sponsored by the club. Section 4. The scholarships committee shall be composed of six members. It shall be the duty of this committee to screen applicants for scholarships and deserving students in Duval County, Florida, and to make recommendations to the general membership of its findings of worthwhile recipients of scholarships, or awards." It can be seen that the Petitioner's members have a commendable concern for the community in which the club has its principal base of operation and this concern has been expressed through the activities of the club members which have been described in the course of this Recommended Order; however, it appears from an examination of the testimony in this hearing and the official statement, that is, the Bylaws of this corporation, that the principal purpose of the club is as stated by the Article II B. of the Bylaws, which language states, "To promote brotherhood, sportsmanship, friendship and charity for the membership and their families," and this attitude carries over to foster good relations between those members and the members of the general public. Therefore, the Petitioner is not perceived as being a club which meets the criterion, "devoted to promoting community, municipal or county development or any phase of community, municipal or county development." See Subsection 561.20(7)(a)3., Florida Statutes. This conclusion is reached in examining the definition of the word "devoted," as found in Webster's New World Dictionary of the American Language, College Edition. That definition states that to be devoted one must be, "1. vowed; dedicated; consecrated. 2. very loyal; faithful." and although the community concern of the Petitioner is very high, it does not reach the level of devotion. Consequently, the Director of the Division of Alcoholic Beverages and Tobacco was correct in denying the application for a Series 11-C alcoholic beverage license.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco deny the Petitioner, Conduces Club, Inc.'s request for a Series 11-C alcoholic beverage license. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jennings H. Best, Esquire 3410 North Myrtle Avenue Jacksonville, Florida 32209 Francis Bayley, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. M. Ogonowski Richard P. Daniel Building, Room 514 111 East Coast Line Drive Jacksonville, Florida 32202
