Findings Of Fact On or about August 11, 1987, an application for conditional use approval to allow on-premises consumption of alcoholic beverages (2COP) was filed on behalf of Leland Farnsworth for property located at 2838 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and single family residential (RS-8). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 4-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, Farnsworth seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property from a motel to a restaurant and bar. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for regulation of establishments licensed for the sale of alcoholic beverages in the State of Florida. Robert DeCosey is the sole owner and operator of the Respondent. At all times material to this case, the Respondent held Special Restaurant License No. 63-05489, Series 4-COP/SRX. Pursuant to law, the Respondent must derive at least 51 percent of his gross sales from food and non-alcoholic beverages in order to maintain the license, and the Respondent is required to maintain sufficient records to document such sales. The Petitioner conducted an audit for the period of April 1, 2008, through July 31, 2008. Based upon information that the Respondent provided to the auditor, the auditor estimated that 41.2 percent of the Respondent's gross revenue came from the sales of food and non- alcoholic beverages. The sales information provided to the auditor by the Respondent lacked supporting documentation and was not reliable. The Respondent maintained no verifiable information regarding his gross sales during the audit period. The Respondent provided no credible information regarding inventory levels, and, accordingly, the auditor was unable to calculate the Respondent's expenses. Sales prices were not provided during the audit, and, therefore, the calculation of revenue was little more than speculative. At the hearing, the Respondent testified that the "business model" he utilized focused on "special events" and that he did not open the restaurant on a routine basis. He testified that food was available during the events and served buffet-style. There was no documentation to support the testimony, and it has been rejected. The Respondent testified that he rented the facility during non-business hours to patrons who wanted to bring in their own food and alcoholic beverages, some of whom may have left food or alcohol behind after the private event concluded. He also testified that he opened the facility for events during which no food was available. Although the Petitioner asserted subsequent to the hearing that such practices were violations of state beverage law, the violations were not alleged in the Administrative Complaint and are outside the scope of this proceeding.
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 revoking the special license held by Urban Hospitality Ventures, Inc., d/b/a DeCosey's Restaurant and Lounge. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 January, 2010. COPIES FURNISHED: Robert DeCosey Urban Hospitality Ventures, Inc., d/b/a DeCosey’s Restaurant and Lounge 2349 Lake Debra Drive, No. 617 Orlando, Florida 32835 Michael B. Golen, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John R. Powell, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1020
Findings Of Fact Clearwater Beach Community Church (the Church) applied to the City of Clearwater for a conditional use permit on November 14, 1988. The conditional use requested by the Church was to establish and operate a non-profit day care center for no more than 49 children, ages 2 to 5. The proposed center would be operated on the Church property by Latchkey Services for Children, Inc., a non- profit organization which provides subsidized child care. Latchkey currently operates six preschool centers and 36 school-age centers in Pinellas County. The Church's proposed center would operate weekdays from approximately 6:30 a.m. to 6:00 p.m. and would accommodate parents who live or work on Clearwater Beach. Five staff members, or one adult per 10 children, would be employed to operate the center. No day care centers currently exist on Clearwater Beach. Minimum standards for day care centers in Pinellas County are set by the Pinellas County License Board for Children's Centers and Family Day Care Homes. The Church's proposed center meets all standards set by the licensing board. Based on the available classroom space at the Church, the largest group of children would be limited to 13. The proposed outdoor play area is 81 feet by 33 feet and would be utilized by no more than 13 children at one time. At least one adult would be present at all times to supervise the children's outdoor play periods. The play area is enclosed on the south and west sides by Church buildings and on the north side by a six (6) foot high cement block wall. A fence is to be constructed on the east side to fully enclose the play area. Outside play time would be almost continuous between the hours of 8:00 a.m. and 5:30 p.m. Parents would drop off their children between 6:30 a.m. and 8:00 a.m. in the circular drive area on the east side of the Church's property. Three areas with a total of 14 parking spaces have been designated as parking areas for day care center employees and for parents required to park their cars when dropping off or picking up their children. In addition, a city- owned public parking lot is located directly across Bay Esplanade to the south of the Church. On-street parking exists on Poinsettia Avenue on the west side of the Church. It is to be anticipated that some parents will walk or use public transportation to deliver their children to the school. Parents will pick up their children between 4:30 p.m. and 6:00 p.m. The Church property is zoned Public/Semi-Public. To the immediate south across Bay Esplanade lies city-owned property on which are located, from west to east: public tennis courts; a public metered parking lot; public basketball courts; a city youth recreation center; and a public boat ramp. To the immediate west, from south to north, are a motel, an apartment building and a public soccer field. To the north on the Poinsettia (west) side, lies, from south to north, a vacant privately-owned lot, a triplex and a 13-unit apartment building. To the north on the Cyprus Avenue (east) side, and directly behind the Church's sexton residence, is a four-unit, two-story apartment house which is partially occupied by its owner. Across Cyprus Avenue to the east of the Church property, from south to north, are a motel and several duplexes. The area surrounding the Church is a quiet area inhabited by a large proportion of permanent residents, mostly elderly retirees, and by residents of motels who choose the area because it is quiet. Some of these residents live close enough to the proposed day care center to be disturbed by the noise that would surely result, even with the proposed noise buffers, from the process of dropping off and picking up the children each day, five days a week, especially the process of dropping them off between approximately 6:30 a.m. and 8:00 a.m., and from the continuous use of the play area by 10-13 children for approximately 8 hours a day, five days a week. Because of the character of the neighborhood, the noise disturbance could reasonably be expected to have an adverse impact on property values of both the motels and residences in the immediate area.
The Issue This case involves the issue of whether the Respondent's special restaurant license for the sale of alcoholic beverages should be suspended, revoked or otherwise disciplined for multiple violations of the beverage laws and rules relating to the operation of a licensed premises under a special restaurant license. At the formal hearing, the Respondent was represented by Mr. George Cooper, the president and 50 percent owner of the Respondent corporation. After proper inquiry, it was determined that Mr. Cooper was in fact a proper representative of the corporation. At the formal hearing, the Respondent requested an opportunity subsequent to that date to present evidence on its own behalf. The Respondent, as grounds for that motion, indicated that it had been attempting to retain counsel and had been unable to do so. It was stipulated and agreed by and between the Petitioner and the Respondent that the Petitioner would present its evidence at the formal hearing as scheduled and that following the hearing the Respondent would be given an opportunity if it desired at a subsequent hearing time and date to present its evidence. Pursuant to this stipulation, it was ordered by the Hearing Officer that the Respondent submit in writing within 10 days of July 22, 1983, a request to schedule another hearing date if the Respondent desired to present further evidence. Respondent failed to file any written pleading and failed to notify the Hearing Officer as to whether further proceedings were necessary and whether Respondent In fact intended to present further evidence. On August 25, 1983, the undersigned Hearing Officer served upon the Petitioner and Respondent an Order to Show Cause as to why a Recommended Order should not be entered upon the evidence presented by the Petitioner at the previous hearing on July 22, 1983. That Order reflected that upon failure of the parties to file a pleading showing cause as to why such a Recommended Order should not be entered that the undersigned Hearing Officer would proceed to enter a Recommended Order based on the evidence presented at the July 22, 1983, hearing. Respondent was served by mail with a copy of that order to Show Cause and failed to file any response to that Order. Therefore, this Recommended Order is being entered upon the evidence presented by the Petitioner and the cross examination of that evidence by the Respondent at the formal hearing.
Findings Of Fact At all times material to this proceeding, Respondent was the holder of beverage license number 58-01528, SRX, Series 4COP. This license was issued to the licensed premises at 100 West Washington, Orlando, Florida. This license is a special restaurant license. On November 5, 1982, Beverage Officer James Jones, accompanied by another beverage officer, inspected the licensed premises of the Respondent. This was an SRX (special restaurant) inspection and the officers counted chairs, silverware, and dishes, and inventoried the food on the licensed premises. The count revealed 140 chairs, 46 coffee cups, 121 plates, 45 glasses, 116 knives, 53 forks, and 111 spoons. An inventory of the food on the premises revealed 55 chicken wings, 10 pounds of hamburger patties, 1 1/2 pounds of hamburger, 5 tomatoes, 1/4 pound of margarine, 1 potato, 5 loaves of bread, 1/4 slab of ribs, 30 pounds of french fries, 2 heads of lettuce, 1 1/2 pounds of potato chips, 10 carrots, 1 pound of sliced cheese, 2 1/2 spanish onions, 13 hamburger buns and 1/2 pound of diced cheese. There was no other food on the licensed premises. This inspection occurred at approximately 11:00 or 11:30 p.m. There was one bartender, one waitress, and a cook on duty. At this time, they were serving only chicken wings, hamburgers and french fries. There were no full course meals prepared or sold while the officers were at the licensed premises. There was not sufficient food at the licensed premises to serve 200 full course meals. Respondent renewed its license on September 30, 1982, and delivered a check to the District Office of the Division of Alcoholic Beverages and Tobacco in the amount of $1,750.00 as payment for the renewal fee. This check was deposited for payment and was returned not honored due to insufficient funds. The Respondent was notified by the Division of the returned check and failed to pay the necessary fee. The license was retrieved by the Division on November 8, 1982, and remains in the possession of the Division. At the time of renewal on September 30, 1982, the Respondent had been notified in writing of pending charges against its license which could lead to revocation or suspension of that license.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent's beverage license be revoked. DONE and ORDERED this 28th day of September, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George Cooper 4627 Parma Court Orlando, Florida 32811 Mr. Jack Wallace Division of Alcoholic Beverages and Tobacco Post Office Box 17735 Orlando, Florida 32860
The Issue Whether or not on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, failed to file application for transfer of said license after a bona fide sale of said business and license was made by James P. Pope to Gary W. Simmons and Anthony W. Speakman contrary to 561.32, F. S. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, did allow persons, to wit; Gary W. Simmons and Anthony W. Speakman to assume a direct interest and engage in selling alcoholic beverages prior to filing a sworn application and being approved, contrary to 561.17, F. S. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, failed to manage and maintain control of all business conducted on his licensed premises, by allowing Gary W. Simmons and Anthony W. Speakman to take complete control of his premises contrary to Rule 7A-3.17, Florida Administrative Code.
Findings Of Fact The Respondent, James P. Pope, is the holder of license no. 27-526, series 2-COP, held with the Petitioner, State of Florida, Division of Beverage. James P. Pope has held this license from October 1, 1976, up to and including the date of the formal hearing. This license allows the licensee to sell beer and wine for consumption on the licensed premises. The licensed premises is located at 4220 West Fairfield Drive, Pensacola, Florida. The licensee is trading as Tavern on the Mall. On February 2, 1977, agent Daniel J. Cobb, State of Florida, Division of Beverage, went to the Respondent's licensed premises. When he arrived at the licensed premises, he spoke with one Gary W. Simmons. Simmons indicated that he was the new owner of the licensed premises although the transfer of ownership had not been completed. Simmons further indicated that he was in charge of the licensed premises and running the licensed premises. Simmons indicated that he and Anthony W. Speakman had a lease agreement with the licensee, James P. Pope. This lease agreement as shown by Petitioner's Exhibit no. 3, admitted into evidence and made a part of the record, establishes that James P. Pope as lessor entered into a lease agreement with Gary Simmons and Anthony W. Speakman as lessees, in which the lessees would manage the Tavern on the Mall, with the option to buy the business and equipment as soon as the beverage department approved the application for the transfer of the beer and wine license. The lease also indicated that the lessees would receive all the money from the business for managing the business, with the exception of $150 a week which was to be paid to James P. Pope and would go toward the down payment for the licensed premises which would come about at the time of the license transfer. The lease agreement additionally said that the purpose of the Tavern was for dispensing beer and wine. Agent Cobb also discovered the existence of a bank account which Simmons and Speakman had established to operate the business on the licensed premises. In addition, agent Cobb found that a local utility company, Gulf Power, was providing electric power to the licensed premises in the name of Simmons and Speakman. In an interview on February 3, 1977, between Cobb and Pope, the Petitioner's Exhibit no. 3 was presented to agent Cobb to establish the arrangement between Pope, Simmons and Speakman. (This lease was produced voluntarily and the Respondent has cooperated with the Division of Beverage in investigating this matter.) James P. Pope was not running or managing the business at the licensed premises on February 2, 1977, nor has he been managing the business from February 2, up to and including the date of the hearing. Pope only comes to the licensed premises two or three times a week just for purposes of checking up, but not for purposes of management. The facts in this cause do not establish that on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, faced to file an application for a transfer of his license after a bona fide sale of the business located 4220 West Fairfield Drive, Pensacola, Florida, under s. 561.32, F. S. The agreement between James P. Pope and Gary W. Simmons and Anthony W. Speakman is a lease agreement with an option to buy and this is not a bona fide sale of the premises. The facts in this cause do establish that James P. Pope did allow Gary W. Simmons and Anthony W. Speakman to assume a direct interest in the licensed premises and engage in selling alcoholic beverage prior to filing a sworn application and being approved by the Division of Beverage, contrary to s. 561.17, F. S. This is established by the conditions existant on February 2, 1977, in the licensed premises. Finally, the facts as established, show that on February 2, 1977, James P. Pope, licensed under the beverage laws, was not managing and controling all the business conducted on the licensed premises under the beverage law, nor was his authorized employee or employees managing or controlling such business conducted on the licensed premises under the beverage law. Therefore James P. Pope was operating contrary to Rule 7A-3.17, Florida Administrative Code.
Recommendation Based upon the facts as shown, and the violations as established, it is RECOMMENDED: That the Director of the Division of Beverage grant the Respondent, James P. Pope, 30 days from the date of the final order, within which time to effect a legal transfer of his beverage license, license no. 27-526, series 2-COP, to Gary W. Simmons and Anthony W. Speakman or some satisfactory party, after which time if no legal transfer has been achieved, the license held by James P. Pope, license no. 27-526, series 2-COP shall be revoked. DONE AND ENTERED this 15th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Division of Beverage The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 James P. Pope 4220 West Fairfield Drive Pensacola, Florida
The Issue The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993. COPIES FURNISHED: Terrell K. Arline Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones Post Office Box 2174 Tallahassee, Florida 32316-2174 Blackwater Associates Partnership 7225 S.W. 108th Terrace Miami, Florida 33156 Ray Parker Parker Real Estate 2028 North Dixie Highway Fort Lauderdale, Florida 33305 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary FLWAC Exec. Office of the Governor 311 Carlton Bldg. Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Dinosaur's Café and Sports Bar, located in Boynton Beach, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a Special Restaurant License (license number 60-11570 4COP SRX) authorizing it to sell alcoholic beverages on the premises of Dinosaur's Café and Sports Bar. On September 28, 1999, DABT Special Agent Jennifer DeGidio conducted an inspection of the premises of Dinosaur's Café and Sports Bar. Her inspection revealed that the premises had available seating for less than 150 patrons and that there were no records on the premises regarding the purchase and sale of food, alcoholic beverages, and non-alcoholic beverages. At no time had DABT given Respondent written approval to maintain these records at a designated off-premises location. During her September 28, 1999, inspection, Special Agent DeGidio issued and served on Respondent notices advising Respondent that its failure to have seating for at least 150 patrons and to maintain food and beverage records on the premises for a minimum of three years from the date of sale was in violation of the law and that, if these violations were not remedied within 14 days, administrative charges would be brought against Respondent. Special Agent DiGidio returned to the premises of Dinosaur's Café and Sports Bar on October 12, 1999, to find that the noticed violations had not been corrected. There were still fewer than 150 seats for patrons, and Respondent was again unable to produce the required records on the premises. The Administrative Action that is the subject of the instant controversy was issued on November 16, 1999. As of that date, Respondent had failed to timely remit to DABT $16.75 in surcharge monies that Respondent owed DABT for alcoholic beverages it had sold at retail for on-premises consumption at Dinosaur's Café and Sports Bar.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent committed the violations alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years"; fining Respondent $1,000.00; and requiring Respondent to pay the $16.75 in surcharge monies it owes DABT, plus applicable penalties and interest. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 August, 2001.
