The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a restaurant where alcoholic beverages are served pursuant to a license issued by Petitioner, continued to sell alcohol after the service of full course meals had stopped, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Barrett Enterprises, Inc. ("Barrett"), d/b/a Stuart Grill & Ale ("Stuart Grill"), has held a Special Restaurant License (an "SRX license"), which authorizes the licensee to sell alcoholic beverages secondary to the service of food and non-alcoholic beverages. Consequently, Barrett is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). Barrett employs approximately 50 people to work at Stuart Grill, which is an establishment located in Martin County, Florida. Stuart Grill grosses nearly $2 million annually on food sales. In 2007, Barrett collected and remitted roughly $100,000 in sales tax on revenue from its food service operation. It sells 60,000 pounds, more or less, of chicken wings each year. In short, Stuart Grill is a bona fide restaurant.2 On two occasions——once on September 20, 2007, and again on October 19, 2007——four agents of the Division visited Stuart Grill late in the evening, around 11:00 p.m. They were conducting an investigation to determine whether "full course meals" (a term of art that will be discussed below) were available at all times when the restaurant was serving alcoholic beverages. (One of the conditions of holding an SRX license is that the licensee must make full course meals available while selling alcohol.) The two investigative visits followed the same pattern. Each time, the agents seated themselves at a booth in the main dining room, which was not crowded. The waitress (a different one each time) informed the agents that the kitchen was closed and, therefore, that they would need to order from the "Late Nite Menu," which was provided. The Late Nite Menu contained a limited number of items, namely: mozzarella sticks, beer battered "veggies" (mushrooms or onion rings), chicken strips, dolphin bites, conch fritters, fried critters (clam strips or grouper strips), fried calamari, smoked fish dip, and chicken wings. Each time, an agent tried to order a hamburger and was told that hamburgers were not available. Both times, the agents ordered (and were served) chicken wings, a couple of sodas, and beer.3 Neither visit lasted more than roughly half an hour. Dean Barrett, one of the restaurant's owners, testified credibly that the Late Nite Menu which was given to the agents was actually a bar menu; patrons in the main dining room should not have been instructed that they could order only from the Late Nite Menu, as apparently happened when the Division's agents went to Stuart Grill in September and October 2007. The undersigned accepts Mr. Barrett's testimony in this regard as truthful and finds that the waitresses (neither of whom was identified) who served the agents did not act in accordance with their employer's directives on those occasions. Regardless of that, however, the evidence fails to establish that "full course meals" were not available. As will be seen below, the term "full course meal" is defined for this purpose as a meal consisting of a salad or vegetable, an entrée, a beverage, and bread. When the Late Nite Menu is reviewed with this definition in mind, the factual determination is inescapable that the agents could have ordered such entrées as chicken strips, chicken wings, or fried calamari. They also could have ordered a vegetable ("beer battered veggies") from the Late Nite Menu. Half of the items (entrée and vegetable) constituting a "full course meal," in other words, appeared on the face of the Late Nite Menu. No beverages were listed in the Late Nite Menu. The agents, however, ordered (and were served) sodas and beer. The evidence thus establishes that non-menu items were, in fact, available when the agents visited. Moreover, it is found, the "beverage" requirement for a "full course meal" plainly was met. The only item needed to complete a "full course meal" is bread.4 There is no direct evidence that bread was not available. Perhaps it might be inferred, based on the absence of an obvious bread item on the Late Nite Menu, that no bread could be had. The undersigned declines to draw such an inference, however, because (as found above) other non-menu items were available upon request. Nor would the "fact" that the "kitchen was closed" (which it was not) be a sufficient basis for the undersigned to infer that bread was unavailable. Without more evidence than was adduced in this case, there is not a sufficiently convincing reason for the undersigned to infer that some slices of bread or a few rolls, for example, could not have been found in the restaurant, were a patron to have requested bread with his order of, say, chicken strips (entrée), onion rings (vegetable), and a soda (beverage). The problem with the Division's case, at bottom, is that the agents did not do enough to establish, affirmatively, the negative proposition that the Division must prove, i.e. that a full course meal was not available.5 Because it was (or should have been) clear to the agents that a vegetable, entrée, and beverage were available, they should have asked, specifically, for bread. They did not. The only off-menu item which the agents requested (other than drinks) was a hamburger. The evidence being insufficient to prove that a "full course meal" could not be had on the occasions in question, it must be concluded, as a matter of ultimate fact, that Barrett is not guilty of serving alcohol without simultaneously making full course meals available, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Barrett not guilty of the instant charge. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.
The Issue The issue in this case is whether Petitioner, Target Corporation ("Target"), is entitled to a consumption-on-premises alcoholic beverage license for its store at 1200 Linton Boulevard Delray Beach, Florida ("Target Delray").
Findings Of Fact The undersigned makes the following Findings of Fact based on the evidence presented, the reasonable inferences from the evidence, and the record as a whole. The Division is the state agency responsible for supervising the conduct, management and operation of the manufacturing, packaging, distribution and sale within the state of all alcoholic beverages. It is also responsible to enforce the provisions of the Beverage Laws, chapters 561 through 568, Florida Statutes. Target is a national retailer with more than 1800 locations in the United States, including approximately 126 locations in the state of Florida. Target's primary business is selling a variety of consumer goods and merchandise including electronics, groceries, health and beauty products, apparel, toys, sporting goods, and more. Target owns and operates a retail store located at 1200 Linton Boulevard, Delray Beach, Palm Beach County, Florida, designated as Target Store T-0642. Target Delray has an existing beer-and-wine package store license ("2APS license"), beverage license No. 6013421, issued by the Division which is in "Current, Active" status. Target Delray also has an existing, but inactive, beer-wine-and-liquor package store license ("3PS license"), beverage license No. 6011410, issued by the Division which is in "Inactive, Automatic Waiver" status. The Application As noted, on October 10, 2019, Target submitted an application for a consumption-on-premises license ("4COP license") at Target Delray (the "Application"). Pet. Ex. 1. Prior to the Application, Target had never applied for a consumption- on-premises license in Florida. All of Target's locations in Florida are licensed by the Division as package stores for off-premises consumption of beer and wine, including three separate liquor stores that are walled off from the nearby main stores, and have separate entrances. First 14-Day Letter Upon reviewing the Application, a Division employee notified Target by email that the Application sketch appeared to show the entire retail store. Pet. Ex. 2. The Division employee inquired whether Target instead meant to license a separate liquor store with a separate entrance from the main store. In addition, she informed Target that a new license could not be issued to the entire store because the 2APS license already existed at Target Delray. Id. Before Target responded, the Division sent Target a formal letter giving Target 14 days to submit a new sketch in support of its Application (the "First 14-Day Letter"). Pet. Ex. 3. It also stated that the Application was incomplete because Target "failed to provide a complete sketch" of the premises sought to be licensed and that the "sketch submitted shows a license number, 6013421, at the licensed location." Id. Shortly thereafter, Target responded with a request to cancel its 2APS license at Target Delray when a permanent consumption-on-premises license was issued. Pet. Ex. 4. In addition, Target clarified that "[t]he licensed premises diagram is correct[;] it will be the department store and not a side liquor store." The Division employee then explained to Target that a consumption- on-premises license of this type "can't be in a grocery/retail store." Pet. Ex. 5. Target responded that the Division has "routinely issued" this type of license to various establishments "that sell food to the public for consumption on the premises along with other retail items … ." Draft Second 14-Day Letter On or about October 29, 2019, the Division drafted, but did not send, a second letter to Target identifying deficiencies in the Application sketch (the "Second 14-Day Letter"). It read, "[t]he submitted application is considered incomplete and/or unverifiable, as applicant has failed to provide a complete and detailed sketch of the premises sought to be licensed. Specifically, please identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with the sale of alcoholic beverages for consumption on or off the premises." Id. It requested a response within 14 days. The Division, however, never sent this Second 14-Day Letter to Target. The Inspections On November 8, 2019, as part of its normal practice in cases of this nature, a Division representative physically inspected the premises of Target Delray for purposes of evaluating the Application. During the inspection, Target Delray's assistant manager (or "Executive Team Lead") Scott Hoffman ("Hoffman") explained to the Division's inspector how Target Delray currently sells beer and wine. Hoffman did not know, however, how Target Delray would be selling liquor under the 4COP license it applied for.1 As a result, the assistant manager was not able to properly identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with Target's Application for a consumption-on- premises license. While inspecting Target Delray, the Division inspector took a variety of pictures of merchandise offered for sale throughout the store. The inspector also compared the Application sketch to the proposed licensed premises of the store. Division policy permits an inspector to make a sketch when appropriate. As a result, the Division inspector created a "clarification sketch" of Target Delray by marking and labeling on Target's Application sketch indicating the "current beer and wine sales area," the "wine and beer storage area," and the "Starbucks coffee shop" as well as other areas. The Division reviewed and considered the inspector's "clarification sketch" as part of the application process for Target. In his inspection report, the Division inspector concluded that the premises matched the Application sketch and "was clarified at inspection." Significantly, however, the inspector determined that non-authorized merchandise was being sold throughout the Target store. Pet. Ex. 8. He wrote that he "observed 100+ items being offered for sale that do not comply with [Florida Statutes, section] 565.045." Id. 1 Curiously, there was no persuasive evidence that Target's headquarters ever communicated with Target Delray about the 4COP license application prior to submitting it or prior to the inspection. The inspector gave Target Delray 14 days to comply with the statute, at which time a re-inspection would be conducted. The same Division inspector conducted the re-inspection of Target Delray on November 22, 2019. His second inspection report reached the same conclusion regarding the extensive merchandise for sale. Pet. Ex. 13. As a result of the same noncompliance, he advised Target Delray that it did not meet the requirements for a consumption-on-premises license. Id. Target Delray's assistant manager signed for both inspection reports. The Notice of Intent to Deny License On or about December 20, 2019, the Division issued its Denial Notice regarding the Target Delray Application. Pet. Ex. 18. The Denial Notice outlined two reasons for the Division's intent to deny the Application: REASON [1]: The submitted application is considered incomplete and/or unverifiable, as applicant has failed to provide a complete and detailed sketch of the premises sought to be licensed. Specifically, the application did not identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with the sale of alcoholic beverages for consumption on or off the premises, nor could the manager of the proposed licensed premises identify such areas upon inspection. Therefore, the Division of Alcoholic Beverages and Tobacco was unable to fully investigate this application in accordance with Florida law, and the application is being recommended for denial. Pet. Ex. 18 (citing sections 561.01(11), 561.18 and 562.06, Florida Statutes). REASON [2]: The proposed licensed premises fails to meet the statutory regulations for consumption on the premises. Specifically, there shall not be sold at such places of business anything other than the beverages permitted, home bar and party supplies and equipment (including but not limited to glassware and party-type foods), cigarettes, and what is customarily sold in a restaurant. The location identified as the licensed premises offers a substantial, yet indeterminate, amount of items for sale that fall outside of the scope of the statute, including, but not limited to, the items listed in the Exhibit B to this notice. Pet. Ex. 18 (citing section 565.045, Florida Statutes). Exhibit B to the Denial Notice listed more than 150 items for sale at the Target Delray store which the Division determined to be unauthorized merchandise for a place of business seeking such a license. Pet. Ex. 18. These items were found in various departments and locations throughout the store and included, among other things: men's and women's clothing; automotive products; holiday items; furniture; household products; sporting goods; games and toys; tools; pharmaceutical items; health and beauty products; pet care products; electronics; and others. Id. Submitted Sketch & Clarification Sketch The sketch submitted by Target with its Application did not fully and adequately portray the current premises for licensing purposes. More specifically, Target Delray renovated and converted its Target Café into a Starbucks Café prior to the Application, but nevertheless submitted an outdated sketch showing the old Target Café. Likewise, the sketch submitted did not include the newer Starbucks Café. Pet. Exs. 37 and 38. In short, Target did not send the Division an updated and accurate sketch adequately identifying the current Starbucks Café. As submitted, the Application sketch also did not include any clear labeling or legible words to identify certain areas on the sketch. Pet. Ex. 1. Target's representative acknowledged this fact. For example, there were no sales or storage areas labeled or identified on the sketch. The only seats on the sketch were located in the renovated café area, but they were not labeled as such. The "bar" or "counter" on the sketch--which was also not labeled—is located where the Target Café used to be, but Target stated that the café's bar or counter was not capable of selling or serving alcoholic beverages. As a result, Target's Application sketch did not adequately identify counters, sales areas (including points of sale), bar locations, and other relevant areas that would be associated with the sale of alcoholic beverages. The lack of labels or proper identification to explain the layout of these relevant areas was the crux of the Division's reason for concluding that the sketch was insufficient. Explanatory labels and notations on the sketch were needed for the Division to properly investigate the application and understand how the applicant would comply with the applicable provisions of the Beverage Laws. Similarly, Target Delray's assistant manager for general merchandise, who worked on the premises of Target Delray on a day-to-day basis, had difficulty identifying or explaining areas of the store on the Application sketch. Although the Division inspector created a "clarification sketch" based on information he received during his inspection, the inspector was unable to indicate on the sketch how or where Target Delray would be selling liquor for consumption on or off the premises under the 4COP license for which it applied. Pet. Ex. 9. Regardless, this was ultimately the responsibility of the applicant--Target. Thus, neither the original Application sketch nor the inspector's "clarification sketch" adequately included the necessary information regarding Target Delray's proposed sale of beer, wine, or liquor under a consumption-on-premises license. The Inventory at Target Delray During these proceedings, Target did not dispute its broad inventory of consumer merchandise for sale. Similarly, Target conceded that all the items identified on Exhibit B of the Denial Notice were being sold in the Target Delray store, including windshield wipers, toilet seats, bicycles, batteries, screw drivers, shampoo, dog food, laptop computers, and more. Pet. Ex. 18. Adding to this, Target offered into evidence a lengthy and broad list of consumer merchandise sold at the Target Delray store. Pet. Ex. 43. Although the exact inventory of a Target store is subject to frequent changes, Target Delray regularly sells a comprehensive collection of consumer goods including, but not limited to, men's and women's clothing, automotive products, holiday items, furniture, household products, sporting goods, games, toys, tools, pharmaceutical items, health and beauty items, pet care items, electronics, books, magazines, and flags. Other items on Target Delray's inventory list include infant formula, dish detergent, napkins, frozen meat, barstools, lamp shades, candles, pillows, fireworks, and more. Pet. Ex. 43. These retail and grocery items at Target Delray are found throughout the store's premises. Resp. Ex. 16 at 11:5-15. Alcoholic beverages being currently sold are not found throughout the store's premises, but are limited to the grocery items section. Customers purchase all of the retail merchandise and grocery items at the same points of sale ("cash registers") where alcoholic beverages under a 4COP license would be purchased as well.2 2 There was no evidence offered to suggest that alcoholic beverages under a 4COP license would be purchased or paid for at any location other than the normal cash register used to check out other items of general merchandise. Target Delray's Food Service and Food Permit Target Delray sells a limited menu of ready-to eat food and non- alcoholic beverages from its Starbucks Café which operates from within its store, for consumption on the premises. As a result, Target Delray holds restaurant licenses from the City of Delray Beach ("City") and from Palm Beach County. Pet. Exs. 139 and 140. Target's representatives refer to the Starbucks Café as a "restaurant" within the larger Target Delray store. Resp. Exs. 9 and 10. In fact, according to Target, the only seats, tables, and counters associated with the regular sale and consumption of food or beverages are located within the Starbucks Café. Resp. Ex. 16 at 26:25-27:4. The City restaurant license identifies the restaurant size as 51-100 persons. The reasonable inference from this fact is that the City restaurant license does not encompass the entire premises of the Target Delray store, but is limited to the Starbucks Café area. Pet. Ex. 140. Despite allowing the operation of the Starbucks Café in a small portion of the store, Target Delray is not licensed by the Florida Division of Hotels and Restaurants. Instead, Target Delray has an annual food permit issued by the Florida Department of Agriculture and Consumer Services. Pet. Exs. 39 and 45. This permit identifies the Target Delray store as a "food establishment." Id. More particularly, Target Delray is classified by the Department of Agriculture and Consumer Services as a "minor food outlet with significant food service and/or packaged ice." Purpose of the 4COP License for Target Delray Despite operating the Starbucks Café as a restaurant within its store, Target Delray offered no persuasive evidence to prove that Target submitted its Application for a consumption-on-premises license so that it could sell alcoholic beverages for consumption on the premises. Rather, it was undisputed that Target sought a consumption-on- premises license with the intent, and for the purpose of, selling alcoholic beverages in sealed containers for consumption off the licensed premises. The more persuasive evidence, and a reasonable inference from the undisputed evidence, indicated that Target Delray intended to operate in a manner that would allow its customers to purchase liquor from various aisles of its main store or grocery areas, instead of purchasing it from a separate walled-off liquor store. When presented with this plan, the City expressed reservations about whether the Target Delray location is appropriate for a consumption-on- premises license, and deferred to the Division on the matter. More specifically, the City expressed that the city zoning district did not permit the sale of alcohol. It made "no determination" whether the location of the current floorplan was appropriate for a 4COP license. There was also no persuasive evidence presented to conclude that Target Delray would be selling alcoholic beverages by the drink from the Starbucks Café. In sum, the more credible and persuasive evidence indicated that Target Delray did not intend to allow consumption of alcoholic beverages on the premises if the 4COP license were to be approved. Rather, Target filed the Application and sought the 4COP license to operate a place of business where alcoholic beverages are sold in sealed containers for consumption off the premises. Non-Party Locations During discovery, Target identified 12 businesses in Florida that have been issued a consumption-on-premises license. It argues that these businesses "sell all of the same type [of] items sold at [Target's] proposed licensed location." The locations listed below, according to discovery responses from Target, represent a variety of establishments issued consumption-on-premises licenses by the Division. Id. Antonio's--Maitland, FL (BEV5800226) (Pet. Ex. 22) Biltmore Hotel--Coral Gables, FL (BEV2308001) (Pet. Ex. 90.) Buster's Beer and Bait--Panama City Beach, FL (BEV1303131) (Pet. Ex. 92.) CMX Cinemas Fallschase--Tallahassee, FL (BEV4704195) (Pet. Ex. 93.) Daytona Int'l Speedway--Daytona Beach, FL (BEV7402959) (Pet. Ex. 88.) Neiman Marcus--Coral Gables, FL (BEV2300131) (Pet. Ex. 99.) Nordstrom--Coral Gables, FL (BEV2329106) (Pet. Ex. 98) PGA National Resort--Palm Beach Gardens, FL (BEV6014275) (Pet. Ex. 91.) Ritz Carlton--Miami Beach, FL (BEV2326201) (Pet. Ex. 120.) Sophie's at Saks Fifth Avenue--Sarasota, FL (BEV6801712) (Pet. Ex. 95.) Slater's Goods & Provisions--Babcock Ranch, FL (BEV1801399) (Pet. Ex. 89.) xii. Trump National Doral--Miami, FL (BEV2331496) (Pet. Ex. 22) For three of these locations--Antonio's, Ritz Carlton, and Trump National Doral--Target offered no evidence at the hearing to prove or show that these licensees sell items similar to Target Delray. At the hearing, Target offered evidence; however, regarding three additional locations the Division has licensed for consumption on the premises which, according to Target, sell consumer merchandise similar to Target Delray: World Golf Village--St. Augustine, FL (BEV6501333) (Pet. Exs. 71 and 97.) Total Wine--Gainesville, FL (BEV1100722) (Pet. Exs. 71 and 96.) ABC Liquors--Gainesville, FL (BEV1100212) (Pet. Exs. 71 and 86.) Thus, as a part of the evidence, there were 12 licensed locations to which Target Delray likens itself and its inventory, for purposes of licensure (the "Non-Party Locations"). Target contends that Target Delray is similar to these Non-Party Locations because these licensees offer food and beverages for consumption on the premises while selling numerous items at retail. The thrust of Target's argument is that because these similar Non-Party Locations received 4COP licenses, it must receive the 4COP license as well. Target Delray also argued that it is being singled out because it is considered a "big store." Testimony of John Harris In support of its allegation of inconsistent treatment, when compared to other licensees, Target offered the testimony of John Harris ("Harris"). Harris is a former Director of the Division. He now does work for the law firm representing Target in this action. In his current position, Harris helps clients apply for liquor licenses. He assisted Target with the preparation of this Application. Harris also assisted the firm's representation of Target in its lobbying efforts to change package store restrictions. In 1994, when he was Division Director, Harris was heavily involved in drafting and adopting the Restaurant Rule (the "Rule"). The Rule states that "items customarily sold in a restaurant shall only include" ready-to-eat food and beverages. Pet. Ex. 55. (Emphasis added). Harris testified that he never intended for the Rule to be exclusive, despite the meaning of the restrictive words chosen. In addition, Harris now believes there is no limit to what is customarily sold in a restaurant. Harris created the list of Non-Party Locations with help from counsel representing Walmart and Target. His list included business locations he suspected were not in compliance with the Rule due to the items they sold. Harris then traveled the State of Florida to visit and inspect the Non-Party Locations in preparation for his testimony. As evidence, Harris took pictures and prepared a chart of the items he observed for sale at the Non-Party Locations. Pet. Ex. 71 and 85. Hotels and Resorts Visited Among the Non-Party Locations visited by Harris, the PGA National Resort in Palm Beach Gardens had a gift shop, beauty shop, woman's clothing store, golf pro shop, and a spa located in or near the resort's lobby area. These shops sold cosmetics, pharmaceuticals, men's and women's clothing, shoes, jewelry, handbags, and more. Pet. Ex. 71. Harris concluded that these shops, in addition to the spa and tennis shop, were within the licensed premises because they were included in the application sketches and shared the same address as the licensed premises. Pet. Ex. 113. He did not know, however, whether these shops were leased or controlled by a different person or entity than the liquor licensee. Harris did not observe alcoholic beverages being sold within the spa or any of the shops. In fact, he did not know where alcoholic beverages were sold, but he assumed such beverages were sold at the resort's restaurants. Harris also visited the Biltmore Hotel in Coral Gables and took photos of the resort's gift shops, spa, tennis shop, and golf pro shop. Pet. Ex. 74. He did not observe alcoholic beverages being sold in any of these areas. Alcoholic beverages were sold in a separate café or restaurant for consumption on the premises. The various gift shops at the Biltmore were accessible through the lobby or common hallway. These shops sold a variety of clothing, toys, health and beauty products, and more. Pet. Ex. 71. Harris did not know whether the gift shops were separately leased, or by whom. Harris also visited the World Golf Village resort near St. Augustine, Florida which had a separate gift shop, restaurant, and bar area. He did not observe any alcoholic beverages being sold. Department Stores Visited Harris testified that a Saks Fifth Avenue ("Saks") store in Sarasota has a consumption-on-premises license. Pet. Ex. 95. The Saks department store sells men's and women's clothing, accessories, handbags, jewelry, watches, coats, sweaters, scarves, shoes, and more. Pet. Ex. 71. However, the liquor license belongs to Fifth Dining Sarasota, LLC, doing business as Sophie's at Saks Fifth Avenue. Pet. Ex. 95. Harris acknowledged that a restaurant entrance with the name "Sophie's" separated the department store from the restaurant. Pet. Ex. 82. During his visit, alcoholic drinks were only being sold from the Sophie's restaurant and bar adjacent to the department store. There was no indication of retail items being purchased where the alcoholic beverages were sold. In addition, the food service plan application sketch for Fifth Sarasota Dining, LLC, only included the restaurant and bar area, not the department store. Based on his experience alone, and without any other supporting details, Harris concluded that the restaurant and department store are both within the licensed premises. This conclusion by him was not persuasive. Harris did not know whether the department store and the restaurant were under the dominion and control of the liquor licensee, Fifth Dining Services, LLC. Pet. Ex. 95; Resp. Exs. 14 and 15. In fact, he stated that the department store may be under the dominion and control of Saks Fifth Avenue, LLC. He also visited a Neiman Marcus location, which holds a consumption- on-premises license and sells a variety of retail items in its department store. He surmised that alcoholic beverages may be sold from an adjacent restaurant that was closed for renovation when he visited. However, Harris did not observe any alcoholic beverages being sold or consumed. Based solely on the existence of a liquor license issued at the same address as the department store, Harris concluded that both the closed restaurant and the department store were within the same licensed premises. This conclusion was not persuasive or supported by credible evidence. Harris did not know whether the restaurant in the Neiman Marcus store is leased or controlled by the same entity that controls the department store. In addition, the application sketch for the licensee at this Neiman Marcus did not include the department store; it only included the restaurant as the designated licensed premises. Pet. Exs. 109 and 110. Like the Saks Fifth Avenue and Neiman Marcus locations, a Nordstrom department store he visited holds a consumption-on-premises license. It sells alcoholic beverages from a restaurant on the periphery of the store. Pet. Exs. 80 and 98. The Nordstrom department store sells retail items of a quality similar to these two other department stores. Pet. Ex. 71. Harris did not observe any alcoholic beverages being sold or consumed within the Nordstrom department store itself, nor did he observe any customer purchase retail items from the restaurant area. Nevertheless, based on his experience, Harris concluded that the restaurant and department store at Nordstrom are both within the licensed premises. Pet. Ex. 111. Again, this conclusion by him was not sufficiently established by the evidence. As with the other locations, he did not know whether the restaurant and department store at Nordstrom were leased, operated, or controlled by the same entity. Grocery and Liquor Stores Visited Buster's Beer and Bait is a small liquor store and bar in Panama City Beach that has a consumption-on-premises license and sells alcoholic drinks for consumption on the premises. It also sells sealed beverages for consumption off the premises. Pet. Exs. 75 and 92. According to Harris, in addition to alcoholic beverages, Buster's sells cigars, assorted fishing gear, and frozen fish bait from the same area. Pet. Exs. 71 and 75. Slater's Goods & Provisions is a general store in Babcock Ranch with a consumption-on-premises license. Pet. Ex. 89. According to Harris, it sells groceries, wine, liquor, household items, and more--all from the same area. Pet. Ex. 71. There is also a café and an ice cream shop inside. Pet. Ex. 83. Harris concluded that these areas were within the same licensed premises because of the similar address and interconnectedness of the store.3 Harris also visited two liquor stores in Gainesville, Florida that hold consumption-on-premises licenses--ABC Liquors and Total Wine. Pet. Exs. 84 and 86. At these locations, Harris did not observe any sales of open alcoholic beverages being consumed on the premises, but he also did not attempt to consume a beverage on the premises. In addition to alcoholic beverages, he also observed cigars for sale at ABC Liquors. Target Delray does not sell cigars. Movie Theater Visited Harris visited a CMX Movie Theater in Tallahassee, Florida with a consumption-on-premises liquor license. Pet. Ex. 93. Alcoholic beverages were being sold for on-premises consumption from a bar area separate from the theater viewing areas. At a separate counter, movie tickets were being sold. Pet. Ex. 76. Target Delray does not sell movie tickets. 3 Both Slater's and Buster's are much smaller in floor area size than Target Delray and offered a more limited inventory of consumer items. Daytona International Speedway Harris also visited the well-known Daytona International Speedway racetrack complex which holds a consumption-on-premises liquor license. Pet. Ex. 88. The Daytona International Speedway also sells golf bags, tires, fenders, key chains, clothing, chairs, flagpoles, and race experience tickets. The retail items are sold from a gift shop that connects to a grill where draft beer is sold for consumption on the premises. Pet. Ex. 78. Harris did not know if the grill had separate cash registers from the gift shop. Race tickets are sold from a separate ticket counter. Harris concluded that all of these items are sold within the licensed premises, which he understood to include the whole raceway and concourse grounds based on the application sketches. Significantly however, he did not know if the gift shop is leased or controlled by the same entity that holds the liquor license. Walmart and Costco The Division recently denied license applications from a Walmart and a Costco store for the same consumption-on-premises license sought by Target Delray. The Division relied on the same statute--section 565.045, Florida Statutes--in denying those applications based on the wide variety of consumer items Walmart and Costco sell at retail. Pet. Ex. 149; Pet. Exs. 40 and 44. Walmart and Costco are more similar to Target in terms of the wide variety of consumer merchandise sold, than any of the Non-Party Locations visited by Harris.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order denying the application by Target Corporation at issue in this proceeding. Jurisdiction is and shall be retained for the limited purpose of determining entitlement to attorney's fees and costs related to several discovery disputes and the amount, upon proper application and proof. DONE AND ENTERED this 27th day of August, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2020. COPIES FURNISHED: D. Ty Jackson, Esquire George T. Levesque, Esquire Ashley Hoffman Lukis, Esquire Jason L. Unger, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32301 (eServed) Ross Marshman, Esquire Megan Kachur, Esquire John J. Knowles, Deputy Chief Attorney Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Halsey Beshears, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 Sterling Whisenhunt, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed)
The Issue The issue is whether Respondent discriminated against Petitioner based on her interracial personal relationships by creating a racially hostile work environment and causing her constructive termination.
Findings Of Fact Petitioner is a white female. At all times relevant to this proceeding, Petitioner was involved in an interracial personal relationship with a black man who was the father of Petitioner's child. At all times relevant to this proceeding, Respondent owned and operated several Taco Bell franchise restaurants in and around Santa Rosa County, Florida. Respondent employed approximately 190 people. Respondent hired Petitioner as a crew member in its Milton, Florida, restaurant on January 7, 1998. Petitioner's duties included operating the cash register and cleaning the dining room and restrooms. Respondent trained Petitioner to perform her assignments. Respondent showed Petitioner how to operate the cash register, wipe the tables, mop the floors, restock the condiments, clean the toilets, and replace paper supplies in the restroom. Respondent provided Petitioner with the necessary cleaning supplies, including but not limited to mop, broom, wiping cloths, cleaning solutions, disposable gloves, toilet brush, etc. Petitioner knew where Respondent stored these supplies. She knew it was her job to clean the bathroom before her shift ended so that the facilities would be clean for the next crew. Respondent also informed Petitioner about Respondent's policy against discrimination in the workplace. This policy, which tracked the language of Florida law and Taco Bell operating manuals, was posted on a bulletin board. Telephone numbers of the general manager, the district manager, and the operating officer/owner were also posted next to the telephone in the event that an employee needed to complain about working conditions. These numbers were visible from the door of the office. Additionally, the toll free number of the national franchise company was posted through out the store so that the public or employees could call in complaints. Respondent informed Petitioner that she would be on probation for three months. After three months, employees were eligible for a small raise if they were performing their jobs successfully. Respondent gave Petitioner the first of a series of training booklets that employees could study to learn more about the business. The first booklet contained the basic information that a food service worker needed to know, including the company's policy against discrimination. After studying each booklet, the employee would take a test. If the employee passed the test, he or she could progress to the next booklet. The training booklets were designed to prepare employees for supervisory and management positions. Petitioner never took the test for the first booklet. Petitioner rode to and from work every day with her shift supervisor, Ms. Ileane McCray, a black female. Petitioner and Ms. McCray lived in the same housing complex and worked the morning shift together. Ms. McCray was not prejudiced against interracial personal relationships; her own daughter was involved in an interracial personal relationship with a white man. Ms. McCray was responsible, in part, for introducing Petitioner to Dawn Young, the general manager of the Milton restaurant and the daughter of the owner/operator. Ms. McCray told Ms. Young that Petitioner's boyfriend was in jail and that Petitioner needed a job. Ms. Young interviewed Petitioner and made the decision to hire her. On July 18, 1998, Ms. McCray directed Petitioner to clean a restroom that had been vandalized by smearing feces on the walls. Petitioner refused to clean the restroom and left the premises without telling anyone. She never returned to work. After Petitioner walked off the job, she took a trip to visit family in the State of Washington. Upon her return, Petitioner visited Ms. McCray's home and showed her family pictures from the trip to the northwest. There is no persuasive evidence that Ms. McCray or Ms. Young ever made derogatory comments to Petitioner regarding her interracial personal relationship or her interracial child. Petitioner's testimony in that regard is not credible. On the other hand, Ms. McCray's testimony that she did not make derogatory remarks about interracial couples was persuasive. Under Respondent's chain of command, an employee who had a problem with a supervisor could contact the general manager and so forth up the line. Employees also could approach the owner/operating officer directly because he visited the Milton restaurant almost every day. Before Petitioner quit her job, Petitioner never complained to Ms. Young or anyone else about Ms. McCray's making racially hostile comments. Petitioner never called the district manager or the operating officer/owner to complain. The latter visited in the store almost everyday that it was open. Petitioner never called the national toll-free number. Petitioner worked for Respondent approximately six months. During that time, Respondent failed to call or show up for work on one occasion. Ms. Young and Petitioner signed an employee consultation memorandum on April 30, 1998, indicating that Petitioner would be terminated if she failed to call or show up for work again. Respondent was paying Petitioner $5.15 per hour in wages when she quit her job in July 1998. Petitioner did not return to work until November 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Does Petitioner, Target, have standing to challenge proposed rule 61A-3.055, Items Customarily Sold in a Restaurant (proposed rule or proposed restaurant rule), (Case No. 19- 4913RP)? Does Petitioner, Walmart, have standing to challenge the proposed restaurant rule (Case No. 19-4688RP)? Does Intervenor, ABC, have standing to participate in these challenges to the proposed rule? Does Intervenor, FISA, have standing to participate in these challenges to the proposed rule? Does Intervenor, Publix, have standing to participate in these challenges to the proposed rule? Is the proposed restaurant rule an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes (2019)?1/
Findings Of Fact Parties Division The Legislature has charged the Division with administration of Florida's Alcoholic Beverage and Tobacco Laws, including Chapters 562 through 568, Florida Statutes, known collectively as the "Beverage Law." 561.01(6), Fla. Stat. This charge includes licensing and regulation, as well as enforcement of the governing laws and rules. Title XXIV of the Florida Statutes governs sale of alcoholic beverages and tobacco. It includes chapters regulating beer (chapter 563), wine (chapter 564), and liquor (chapter 565). Among other things, these similarly structured chapters impose license fees, with the amounts determined by the population size of the county where the business is located. Section 565.02 creates fee categories for "vendors who are permitted to sell any alcoholic beverages regardless of alcoholic content." Section 565.02(1)(b)-(f) establishes the license fees based upon county population for licenses for places of business where consumption on premises is permitted. These are referred to as "COP" licenses. A number preceding COP, such as 4COP, indicates the county population range and therefore license fee amount for a particular license holder. Section 565.045, Florida Statutes, also permits COP license holders to sell sealed containers of alcoholic beverages for consumption off the premises (packaged goods). Walmart Walmart is a multinational corporation. It owns subsidiaries that own and operate retail stores, warehouse clubs, and an e-commerce website operated under the "Walmart" brand. Walmart does not own or operate stores. It holds them through wholly owned subsidiaries. For instance, Walmart is the parent company of its wholly owned subsidiary Wal-Mart East. Stores of Walmart subsidiaries have three primary formats. They are Supercenters, Discount Stores, and Neighborhood Markets. The record is silent about the nature and degree of day- to-day control, policy control, and marketing control that Walmart exercises or has authority to exercise over the subsidiaries. It is also silent about the nature and structure of the fiscal relationship between Walmart and its wholly owned subsidiaries. Walmart does not have a license issued by the Division pursuant to section 565.02(1)(b)-(f). Walmart has not applied for a license from the Division issued under section 565.02(1)(b)-(f). The record does not prove that Walmart intends to apply for a COP license. Wal-Mart East Wal-Mart East owns and operates "Walmart" branded stores at approximately 337 Florida locations. They include approximately 231 "Supercenters," nine "Discount Stores," and 97 "Neighborhood Markets." All of these stores sell food items. Depending on the store category, the items may include baked goods, deli sandwiches, hot meals, party trays, and to-go food items, such as buckets of fried chicken and pre-made salads. The areas adjacent to the departments of Wal-Mart East that sell food do not have seats and tables for diners. There are some benches, but not tables, scattered around inside the stores. None of the stores holds a license from the Florida Division of Hotels and Restaurants or the Florida Department of Health. They hold "retail food store" or "food establishment" licenses from the Florida Department of Agriculture and Consumer Services. In his deposition, Tyler Abrehamsen, assistant manager for Wal-Mart East Store #705 in Mt. Dora (Store 705), aptly described Walmart as "more than just a store." Walmart sells "anything you can think of from sporting goods to deli to candy." A Supercenter sells, among other things, general merchandise, golf balls, fishing gear, socks, motor oil, ammunition, groceries, deli goods, electronics, home furnishings, groceries, and hot food. Supercenters may house specialty shops such as banks, hair and nail salons, restaurants, or vision centers. Walmart Supercenters offer 142,000 items for sale. Many house McDonalds or Subway restaurants. Discount Stores are smaller than Supercenters. They sell electronics, clothing, toys, home furnishings, health and beauty aids, hardware, and more. Discount Stores offer about 120,000 items. A Neighborhood Market is smaller than a Discount Store. Neighborhood Markets sell fresh produce, meat and dairy products, bakery and deli items, household supplies, health and beauty aids and pharmacy products. Walmart Neighborhood Markets offer about 29,000 items. Store 705 is a Supercenter. The store holds a food permit issued by the Florida Department of Agriculture and Consumer Services under Chapter 500 to operate as a retail food store or food establishment. There are four picnic tables with seating in a pavilion outside the store. Some benches, but not tables, are scattered around the store. Store 705 holds a 2APS license permitting beer and wine package sales only. Wal-Mart East applied to the Division to change the license to a COP license. The Division processed the application and issued Store 705 a temporary license on May 13, 2019. Two days later the Division advised Store 705 that it issued the temporary license erroneously and that the license was void. Shortly afterwards a Division employee recovered the license from Store 705. On June 7, 2019, the Division issued its Notice of Intent to Deny License, relying in part on section 565.045.3/ Section 565.045, which the proposed rule implements, prohibits issuing a COP license to a place of business that sells items not "customarily sold in a restaurant." The floor plan Store 705 provided with its COP license application does not delineate an area for serving and consuming alcoholic beverages. When asked about plans to serve alcohol by the drink, the Wal-Mart East representative testified, "However, I'm not suggesting that in the future at some point we wouldn't be interested in selling drinks by the glass at Store 705." The witness went on to say, "What I'm saying today is I don't know if there are future plans and I don't think that we're prepared to say one way or another whether this would be our plan for this location for eternity." (TR. Vol. 1, p. 161) Wal-Mart East only plans to sell alcohol by the container at Store 705. If issued a COP license, however, it would be permitted to sell alcohol by the drink. Lake County Property Appraiser records identify the land use of Store 705 as "Warehouse Store." There is no evidence about the significance of this, how the categorization is determined, or what purpose it serves. Several credit card companies categorize Wal-Mart East stores as "grocery stores" and "supermarkets" or discount stores. There is no evidence about the significance of these categorizations, their meaning, how the categorization is determined, or for what purpose the categorizations are applied. The lack of relevant information about how and why the property appraiser and credit card companies determine these categorizations make them meaningless for any determination of whether Wal-Mart East stores are restaurants. Wal-Mart East leases space within Store 705 to a separate entity doing business as Wayback Burgers. Wayback Burgers has a kitchen, a service counter, a fountain drink dispenser, and seats and tables for dining. The Division of Hotels and Restaurants issued the owner of Wayback Burgers, under the authority of Chapter 509, a license titled "Seating Food Service License." The definitions section of Chapter 509 does not contain a definition for "Seating Food Service." The license does not identify the physical area covered by the license, although it refers to 22 seats. The Division of Hotels and Restaurants inspects only the area identified by signage, seating, food preparation area, and service area when inspecting Wayback Burgers. The Division of Hotels and Restaurants does not license the rest of Store 705 or any other Wal-Mart East store in Florida. The Department of Agriculture and Consumer Services issued Store 705 an Annual Food Permit denominated as for Food Entity Number: 33995. The license does not describe the physical area to which it applies. A January 4, 2019, document titled Food Safety Inspection Report for Store 705 lists "111/Supermarket" in a field of the report titled Food Entity Type/Description. The record does not explain the designation. The Department of Agriculture, Bureau of Food Inspection, Division of Food Safety, maintains a food inspection data base of permitted entities. That list identifies Store 705 as a supermarket. The Department of Agriculture often must decide whether it should license an establishment serving food or if the Division of Hotels and Restaurants should issue the license. The Department regulates food establishments and retail food stores. It does not have authority over food service establishments. Sometimes the Department consults with the Division of Hotels and Restaurants to determine what a business should be licensed as. When a vendor like McDonald's or Subway is located in a Walmart store the agriculture department bases its licensing category decision on ownership. If the store owns the McDonald's or Subway, the Department will license it. If a separate entity owns and operates the McDonald's or Subway, the department looks to the Division of Hotels and Restaurants to license it. Target The parties stipulated that Target is an upscale discount retailer that provides high quality, on-trend merchandise at attractive prices in clean, spacious, and guest- friendly stores. Target owns and operates approximately 126 general merchandise stores in Florida. Target does not hold a license issued by the Division under section 565.02(1)(b)-(f). The Florida Department of Agriculture and Consumer Services licenses all Target locations in Florida as retail food stores or food establishments under chapter 500. The licenses are for the entire store, including the food service portions discussed below. No Target store holds a license from the Florida Division of Hotels and Restaurants. The Florida Department of Health does not license any Target stores as food service establishments. Target sells beer and wine by the container in 124 of its Florida stores. At three store locations, Target sells beer, wine, and liquor from a separate liquor store with a separate entrance. Target operates Starbucks and Pizza Hut facilities under licensing agreements within 118 of its stores. Coffee, espresso, banana bread, chocolate chip cookies, ham and cheese croissants, oatmeal, and biscotti are representative examples of food sold at Target Starbucks. Target Pizza Huts typically sell carbonated drinks, smoothies, pretzels, popcorn, hot dogs, pizzas, chicken wings, and french fries. Some Target stores also have a Target Café selling limited food and beverage items. Target stores also sell items such as packaged, pre- made salads, fruit, and frozen meals. "Super Target" stores have delis, which sell cooked items like chicken fingers and rotisserie chicken. The cafés, Starbucks, and Pizza Huts occupy separate areas within the larger Target stores. They have their own cash registers. Customers may pay for retail items from the store at those cash registers. The inventory of all Target stores is subject to daily change. Location, geography, supply, and other factors affect a store's inventory. Target stores sell a gamut of items. They include groceries, frozen foods, furniture, rugs, garden tools, clothing, toys, sporting goods, health products, beauty products, electronics, office supplies, kitchen appliances, diapers, pet food, cell phones, and luggage. A Target store in Delray Beach has applied to the Division to change its beer and wine package license to a COP license. Target seeks the COP license in order to make package sales of liquor. Like the Walmart representative, Target's representative refused to state whether Target planned to offer alcohol by the drink at any of its stores. If it held a COP license, the store would be permitted to sell alcohol by the drink. ABC ABC stores retail alcoholic beverages in Florida. The stores hold a number of alcoholic beverage licenses issued by the Division. ABC holds 25 4COP licenses issued by the Division. In his deposition, the ABC corporate representative testified that he "would not be able to answer" if the proposed rule would have any impact on ABC. His testimony, however, proved that ABC stores seek clear guidance about what they can and cannot sell. Also, the proposed rule imposes limits upon what ABC stores can sell that the invalidated rule and the statute alone do not impose. FISA FISA is an independent association of alcoholic beverage retailers. It has 206 members. The Division licenses and regulates FISA's members. ABC is a FISA member. Including ABC, FISA members hold 61 4COP licenses. There is no evidence proving that any FISA member intends to apply for a COP license. Only the FISA members holding COP licenses would be affected by the proposed rule. This is not a substantial number of members. The other 145 members hold 3PS licenses (package sales) which the proposed rule does not affect. Neither the officers, the governing board, nor the members of FISA voted or took any other official action to authorize FISA to intervene in this proceeding. The evidence does not prove that the association is acting as a representative of its members in this proceeding. There is also no evidence, such as the FISA articles of incorporation, by-laws, or other association formation documents, proving the association's general scope of interest and activity or the authority of its President to act on its behalf. The evidence does not prove that participating in this proceeding is within the authority of the President or FISA. FISA President, Chris Knightly, testified in deposition that any change in where liquor could be sold could have an extreme financial impact on small family-owned businesses. But FISA offered no evidence to show the impact on its members or, for that matter, that any FISA members were actually small, family-owned businesses. The President also testified that the impact of the rule on FISA members would be minimal because the non-alcoholic items the stores sold were just conveniences for customers, not significant revenue sources. In light of the President's statement about minimal impact on FISA members and the number of members who hold COP licenses, the record does not prove that the proposed rule would have a substantial effect on FISA or a substantial number of its members. Publix Publix is a supermarket chain in Florida. It also operates a number of liquor stores throughout Florida. Publix holds two 4COP licenses and ten 2COP licenses (beer and wine only) issued by the Division.4/ The proposed rule imposes limits upon what Publix can sell at its 4COP licensed stores that the invalidated rule and the statute alone do not impose. Rulemaking The Division seeks to implement section 565.045. The pertinent parts of the statute provide: Vendors licensed under s. 565.02(1)(b)- (f) shall provide seats for the use of their customers. Such vendors may sell alcoholic beverages by the drink or in sealed containers for consumption on or off the premises where sold. (2)(a) There shall not be sold at such places of business anything other than the beverages permitted, home bar and party supplies and equipment (including but not limited to glassware and party-type foods), cigarettes, and what is customarily sold in a restaurant. The Division, both in the invalid rule and in the proposed rule, seeks to provide clarity about the meaning of "customarily sold in a restaurant" as it is used in the statute. That desire was the reason it adopted the original rule, now invalidated, in 1994. The review by the Joint Administrative Procedures Committee (JAPC) back then observed, "Absent explanatory criteria, use of the word 'customarily' vests unbridled discretion in the department." The Division responded: "As mentioned in our meeting, all of proposed rule 61A-3.055 [1994 version] is, in itself, the division's attempt to define the admittedly vague phrase 'items customarily sold in a restaurant', as used in s. 565.045." The invalidated rule provided: 61A-3.055 Items Customarily Sold in a Restaurant. As used in Section 565.045, F.S., items customarily sold in a restaurant shall only include the following: Ready to eat appetizer items; or Ready to eat salad items; or Ready to eat entree items; or Ready to eat vegetable items; or Ready to eat dessert items; or Ready to eat fruit items; or Hot or cold beverages. A licensee may petition the division for permission to sell products other than those listed, provided the licensee can show the item is customarily sold in a restaurant. This petition shall be submitted to the director of the division at Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 2601 Blair Stone Road, Tallahassee, Florida 32399-1020, and must be approved prior to selling or offering the item for sale. For the purpose of consumption on premises regulations set forth in Section 565.045, F.S., items customarily sold in a restaurant shall include services or sales authorized in the "Florida Public Lottery Act", Section 24.122(4), F.S. The Final Order invalidating the earlier rule concluded: A rule is arbitrary if it is not supported by logic or necessary facts and is capricious if irrational. Dep't of Health v. Bayfront Med. Ctr., Inc., 134 So. 3d 1017 (Fla. 1st DCA 2012). Despite the Division representative's best efforts at deposition to avoid answering direct questions, the record proved that restaurants customarily sell at least T-Shirts and branded souvenirs. The Division, through the deposition testimony of its representative, acknowledged this. The record offers no explanation why subsection (1) of the Restaurant Rule does not include these items. Excluding an item that the Division acknowledges is customarily sold in restaurants from a list of items customarily sold in restaurants is illogical. Rule 61A-3.055 is arbitrary and capricious. In 2018, while the challenge to the existing rule in Case No. 18-5116RX was underway, the Division began proceeding to amend rule 61A-3.055. This was a response to the challenges to the existing rule. The Division conducted six public hearings to receive public comment on various proposed amendments to the rule and to solicit input from the public. Petitioners did not participate in the hearings. There is no evidence that Petitioners suggested rule language, such as items to be listed as "customarily sold in a restaurant" or identifying characteristics of items "customarily sold in a restaurant" to the Division. Representatives of Intervenors attended each of the public hearings. There is no evidence that they suggested language for the rule either. During the May 6, 2019, rule development hearing, a representative of the Florida Restaurant and Lodging Association suggested that the Division conduct an investigation, study, or survey to determine what merchandise or services restaurants customarily provide. During the rule development proceedings, the Division did not conduct any investigation, study, or survey to determine what is customarily sold in a restaurant. The Division did not examine a sampling of establishments that it considered restaurants to determine what is customarily sold in restaurants. The Division did not use any of the data collected in 50,000 inspections each year to perform any studies, surveys, or analyses of what is customarily sold in restaurants or by COP license holders. It only sought comment from the restaurant industry and Division licensees through the public hearing process.5/ As required by law, the Division submitted various iterations of the proposed rule to JAPC for review. For each version of the proposed rule that it reviewed, JAPC observed that the rule appeared to be overly restrictive and that it may be arbitrary and capricious. On August 16, 2019, the Division published the final version of the proposed amended rule in Volume 45, Issue Number 160 of the Florida Administrative Register. It states: 61A-3.055 Items Customarily Sold in a Restaurant. As used in section 565.045, Florida Statutes, items customarily sold in a restaurant shall only include the following: Food cooked or prepared on the licensed premises; or Hot or cold beverages; or Souvenirs bearing the name, logo, trade name, trademark, or location of the licensed vendor operating the licensed premises; or Gift cards or certificates pertaining to the licensed premises. For the purpose of consumption on premises regulations set forth in section 565.045, Florida Statutes, items customarily sold in a restaurant shall include services or sales authorized in the "Florida Public Lottery Act", section 24.122(4), Florida Statutes. The Division explains the wording of section (1)(c) of the proposed rule as being based on the conclusion " the record proved that restaurants customarily sell at least T-Shirts and branded souvenirs" in the Final Order invalidating the original rule. It also removed from the original rule language permitting a licensee to petition the Division to show an unlisted item is customarily sold at a restaurant. This change is also a reaction to the Final Order. As of the day of the hearing, the Division, in the person of its Deputy Director, could not state what a "restaurant" was. The Deputy Director testified: "The Department [Division] doesn't take a position on what is or isn't a restaurant in this instance [applying the proposed rule]. We didn't define it, so we don't have a position." (Tr. Vol. 1, p. 45). As of the hearing date, the Deputy Director for the Division could not state whether Walmart is a restaurant. (Tr. Vol. I, p. 84). On October 26, 2018, testifying in the earlier rule challenge, Thomas Philpot, the then Director of the Division and acting Deputy Secretary for the Department of Business and Professional Regulation, similarly said that the Division had no formal policy or procedure for deciding if a business was a restaurant. (Ex. 30, p.48). A clear definition of "restaurant" is the necessary predicate to determining what is customarily sold in a restaurant. Throughout the rule development and through the hearing, the Division did not have a clear definition of restaurant. The Division's representative testified that "[t]he Division does not have a definition that it can cite to either in statute or in rule for the term restaurant." (Ex. 20, p. 62). The Division's Proposed Final Order seems to take the position that a "restaurant" is either a public food service establishment licensed by the Florida Division of Hotels and Restaurants or a restaurant as defined in authoritative dictionaries. None of the parties, including the Division, offered results from any survey, study, or investigation, of either a statistically significant random sample or survey of all "restaurants," however they may be delineated, to determine what "restaurants" customarily sell.6/ Much of the evidence revolved around the theory advanced by Target and Wal-Mart East that because they offer areas where customers can purchase prepared food; because vendors like McDonalds, Pizza Hut, or Starbucks sell food in sections where the consumer can pay for the food and sit down to consume it; or because the stores sell deli and baked goods that could be consumed at the store; that Target stores and Walmart stores are restaurants. From that, Wal-Mart East and Target reason that everything they sell including toys, clothes, stereos, cleaning supplies, pet food, electronics, books, and sporting goods are items commonly sold at restaurants. The Division concentrated its presentation on countering that theory. The Division of Hotels and Restaurants licenses approximately 56,000 businesses as "public food service establishments." It refers to these businesses as "restaurants." Assuming the 463 Walmart-East and Target stores are also considered restaurants, adding them to 56,000 results in approximately 56,463 "restaurants" in the State of Florida. The combined Target and Walmart facilities would be .82 percent of the total number of Florida "restaurants." This does not establish that what Wal-Mart East stores and Target stores sell is what restaurants customarily sell. Wal-Mart East offered the testimony of John Harris, who worked 28 years for the Division. He served as Director of the Division and served as Secretary of the Department of Business and Professional Regulation. At the direction of counsel for Walmart and Wal-Mart East, Mr. Harris visited nine Florida establishments to view the premises and identify items sold at the establishments. Eight of the establishments hold current COP licenses. One is a Cracker Barrel restaurant. Mr. Harris' testimony proved that the items listed below were for sale at the selected establishments identified. None are listed as customarily sold at a restaurant in the proposed rule: Biltmore Hotel (holds a 4COP license): clothing, jewelry, sports attire, golf clubs, over-the-counter medications, art, golf clubs, golf club bags, tennis equipment, and skin treatments. Buster's Beer & Bait (holds a 4COP License): cigars and fish bait. CMX movie theater in Tallahassee, Florida (holds a 4COP license): movie tickets. Cracker Barrel (does not hold a COP license): apparel, hats, toys, stuffed animals, audio books, books, musical instruments, rocking chairs, hand lotions, jewelry, quilts, small tools, and cooking utensils. Neiman Marcus department store in Coral Gables, Florida (holds a 4COP license): jewelry, watches, sunglasses, handbags, clothing, shoes, wallets, pens, luggage, and fine china. Nordstrom department store in Coral Gables, Florida (holds a 4COP license): items similar to those for sale in the Neiman Marcus department store, makeup, grills, record players, and baby strollers. PGA National Hotel and Golf Resort (holds a 4COP license): clothing, shoes, cosmetics, spa services, haircuts, golf clubs, and golf attire. Saks Fifth Avenue (holds a 4COP license): items similar to those sold at the Neiman Marcus department store. Slater's Goods & Provisions (holds a 4COP license): razor blades, lip balm, prepackaged food items, cleaning supplies, aluminum foil, canned goods, and batteries. Daytona Speedway (holds a 4COP license issued for this location to Americrown Services): golf clubs, T-shirts, other clothing items, key chains, tires, specialized motorcycle mufflers, and event tickets. For each of the identified COP licensees, the identified items were for sale in areas for which there was free passage to and from areas where alcohol is stored or sold. Mr. Harris did not use his experience and expertise to identify the establishments as representative of COP license holders. Mr. Harris was not attempting to inspect a random, representative sample of Florida restaurants. A party's attorney selected the locations. There was no expert testimony establishing the validity of Mr. Harris' ad hoc survey. Mr. Harris also did not know which parts of the premises the COP licenses of the places that he visited covered. The evidence did not prove that the establishments were a representative sample of anything. In addition, Mr. Harris is not an objective or impartial witness. Mr. Harris is an advocate for Walmart and Target. He wants the proposed rule to be invalidated. Mr. Harris also represents Target as a lobbyist. There is no evidence that the sample size of nine is significant or representative of all COP license holders. All the exercise proves is that the Division has allowed establishments that contain areas holding COP licenses to sell a variety of items that the Division's proposed rule and the invalidated rule would not permit. The small number of establishments, the witness's allegiance, and the fact that the establishments were selected for use in this proceeding make the evidence wholly unpersuasive.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Food Mart is a corporation owned by Mr. Wiggins and his wife Kimberly. Food Mart operated a convenience store located in Mary Esther, Florida. Exxon gasoline was sold there, along with food and other items found in convenience stores. At the time of the hearing, Food Mart was no longer in operation due to competition from a nearby Wal-Mart and a Tom Thumb Store. No evidence was adduced that the operation ever employed as many as 15 people for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Mr. Conte is a person who claims to be about 78 years of age. He was first employed at Food Mart in October 2005. He worked as a clerk and cashier. He was hired by the manager, Melissa Cupp. Mr. Wiggins knew Mr. Conte because he maintained an office in the store where Mr. Conte worked and saw him on almost a daily basis. Mr. Wiggins did not know Mr. Conte's age. Mr. Wiggins considered Mr. Conte to be an "elderly gentleman." Mr. Wiggins treated Mr. Conte "like family," and hosted him at his home on Thanksgiving one year. Mr. Conte had many activities that were important to him. Mr. Wiggins and Ms. Cupp arranged Mr. Conte's schedule so that he could attend activities that included Sons of Italy meetings. Mr. Conte has written a book and held book signings, and his schedule was arranged to allow for those events. Mr. Wiggins never made disparaging remarks about Mr. Conte's age. It was Mr. Wiggins' practice to put birthday messages about his employees on the sign board beneath his Exxon sign. Mr. Conte requested that his name not go on the board on the occasion of his birthday and that request was honored. Norman Perry worked at the store during times pertinent. Mr. Conte told him that he was going to file a complaint with the Commission regarding what he believed to be discrimination based on age. Mr. Perry told no one about Mr. Conte's plans until after a complaint was filed with the Commission. After Mr. Perry learned of the complaint filed with the Commission, he told Mr. Wiggins that Mr. Conte had told him of his plans. By that time, Mr. Conte had abandoned his job. Mr. Perry is 66 years of age. No one ever ridiculed him with regard to his age, and he never heard anyone make any age-related comments to Mr. Conte. Alan Shaw worked at the store for five and one-half years, and those years encompassed all times pertinent to this case. Mr. Shaw is 72 years of age. No one ever ridiculed him with regard to his age, and he never heard anyone make any age-related comments to Mr. Conte. He believed that Mr. Conte "had a chip on his shoulder." Mr. Conte was treated like all other employees. Like other employees, he was given a raise after his sixth month of employment. He was eventually given a key to the premises. He abandoned his job without locking up one night in January 2007, and Mr. Wiggins had to go to the store to secure it. Subsequently, Mr. Conte was not put on the work schedule. He was not put on the work scheduled because he never revealed his availability to the manager. He never contacted Mr. Wiggins subsequent to his departure from the store on the night he walked out without locking the premises. Mr. Wiggins was unaware that Mr. Conte had planned to make a complaint to the Commission and, therefore, could not have retaliated against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Mark R. Conte be dismissed. DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 21st day of December, 2007. COPIES FURNISHED: John Dennis Wiggins C. J. Food Marts, Inc. 2200 West Highway 98 Mary Esther, Florida 32569 Mark R. Conte 21 Kathleen Drive Mary Esther, Florida 32569 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
