Findings Of Fact At all times material to this proceeding, the Respondent, Boston's, Inc., was the holder of Beverage License No. 53-123, Series 6-COP SR. This license is issued to the premises known as Boston's, located at 100 Monterey Road, Stuart, Florida. The license held by Respondent is a Special Restaurant License originally issued in August 1957 to Frank and Mary Novacasa. By transfer of the license, Boston's, Inc., became the licensee on December 4, 1981. At the time of this transfer of the license to the Respondent, its president, A. Gerard Beauchamp, acknowledged by notarized Affidavit that the license required accommodations for serving 200 or more patrons at tables at all times. (Petitioner's Exhibit 1). On February 22, 1983, Beverage Officers White and Young conducted a routine inspection of the licensed premises. The officers discovered that the premises had been remodeled and that a new bar had been added, thereby reducing the available seating. By count, only 121 seats were available at tables, with an additional 18 to 20 stools being available at the bar. The manager on the premises also advised that an additional 10 to 15 chairs were located in a storage shed. On February 23, 1983, Beverage Officer White issued an official notice to the Respondent advising that it was required to maintain seating capacity at tables for 200 or more patrons. A compliance date of April 13, 1983, was indicated. (Petitioner's Exhibit 2). Officers White and Young conducted a compliance inspection on June 7, 1983. The physical layout of the premises remained as it had been on the earlier visit. A count of the seats available at tables revealed 114 chairs. An additional 24 stools were placed at the bar. At that time, Officer White issued an official notice to the Respondent, which was signed for by the manager, Norm Spector. That notice advised Respondent that the Division intended to file administrative charges against its license. (Petitioner's Exhibit 2).
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered revoking Respondent's Special Restaurant License No. 53-123, Series 6-COP SR. DONE and ENTERED this 2nd day of May, 1984, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mark Shumaker, Esquire 1775 NE Fifth Avenue Boca Raton, Florida 33432 J. Reeve Bright, Esquire Florida Coast Bank Building, Suite 500 551 SE Eighth Street Delray Beach, Florida 33444 Gary R Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard N. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Mrs. Joan Marotta is president, secretary and treasurer of petitioner Little Italy at the Atrium, Inc. Mrs. Marotta took over the management of Little Italy Restaurant sometime before November 30, 1978. At all pertinent times, Little Italy Restaurant has had no license to sell alcoholic beverages of any kind, but has had a policy of furnishing wine to its patrons, without additional charge. Since September of 1977, Little Italy Restaurant has advertised in the Hallandale Digest. These advertisements list the house specialties and state "Complimentary Glass Of Wine." Petitioner's exhibit No. 1. Ordinarily, a single glass of wine accompanies dinner. But Joseph J. Rocaro remembers occasions when he and possibly another diner in his party received more than one complimentary glass of wine while eating at Little Italy Restaurant. Vito Raguso has also had more than one glass of wine with a meal, at no extra charge, and was served a complimentary glass of wine without ordering a meal. In November of 1978, Officer Pollack of the Hallandale Police Department ate at Little Italy Restaurant on two occasions. Both times he was served wine. On the first occasion, he had a single glass of wine for which he was not charged. During the later visit, he had two glasses of wine, and was charged for the second glass of wine. Officer Pollack reported this incident to respondent. As a result, David Shomers and Jean Mignolet, employed by respondent as beverage officers, arrived at the Little Italy Restaurant at 7:30 o'clock on the evening of November 30, 1978. Disguisd as a young couple going out to eat on their own money, they ordered clams casino, linguini and egg plant parmesan. Their waiter, Joseph DeMartini, in his second or third day of employment with petitioner, told them that wine was complimentary. At their request, he brought each of them second glass of wine. When they received their check, they inquired about the item "2R.W. $1.00." The waiter informed them that he had been told by Salvador Maita to charge for a second glass of wine. Officers Shomers and Mignolet then ordered a third glass of wine each. The waiter brought the wine and altered their check to add another dollar to their bill. Salvador Maita is semi-retired from the plumbing supplies business. He was a good friend of Mrs. Marotta's father and occasionally fills in for Mrs. Marotta. On the night of November 30, 1978, at her request, he had taken over management of the restaurant, while she went shopping. After their meal, Officer Shomers called the police who, upon arriving at Little Italy Restaurant, arrested Messrs. Maita and DeMartini, and seized a gallon of chablis and opened bottles of champagne, Marsala and brandy. After obtaining a search warrant, Officer Shomers returned on December 12, 1978, and seized additional bottles of wine, three carafes of wine from the waiters' station and various bottles of liqueur." Also seized on December 12, 1978, were "guest checks" on one of which there appeared "1 Caroff --- 300." Respondent's exhibit No. 4. The champagne was the uncontroverted residue of a recent celebration of the birth of a child to the chef's wife. The brandy was used for cheesecake and other cooking purposes. Marsala was used in the preparation of Veal Marsala. Mrs. Marotta testified convincingly that whenever she hires a new waiter, she instructs him not to charge for wine. She had no knowledge beforehand that the waiter DeMartini was charging for wine, as he did beyond one glass per patron. At the hearing, neither petitioner nor her counsel was aware that giving wine away in connection with selling meals at Little Italy Restaurant might violate any law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue the beverage license for which petitioner has applied. DONE and ENTERED this 15th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Sheldon Golding, Esquire 700 Southeast 3rd Avenue Suite 200 Ft. Lauderdale, Florida 33316 Harold F.X. Purnell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The ultimate issue in this case is whether the Petitioner's application for a special (SRX) restaurant alcoholic beverage license should be granted.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witness at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact: Stipulated Facts The special restaurant license is sought for the Brass Elephant Restaurant within the corporate limits of the City of Sanibel, Florida. The restaurant is located on a 7.7-acre parcel of property adjacent to the Gulf of Mexico. The restaurant is located within a resort complex known as the Sanibel Island Hilton. Seating within the restaurant itself is limited to 100 seats by court order and zoning regulations of the City of Sanibel. No bar is maintained within the restaurant itself. The Brass Elephant Restaurant derives more than 51 percent of its revenue from the sale of food and non-alcoholic beverages. The Brass Elephant Restaurant has in excess of 2,500 square feet of service area. The Sanibel Island Hilton is being operated as a first-class destination resort. Hilton Corporation has stringent constraints on the operation of such a resort and has made special exceptions for this resort in light of the special zoning and building restrictions imposed by the City of Sanibel on the resort area; these special exceptions allow, inter alia, separate buildings and outside walkways. The restaurant in question is an accessory use to the Hilton Hotel, and is not an autonomous restaurant. There is no separate sign advertising the restaurant as an individual entity. Access can only be gained from the hotel grounds. By virtue of the development permit issued by the City of Sanibel, the Hilton is precluded from operating a saloon, lounge or restaurant separate and apart from its food service operation. Additional Facts Proved at Hearing The Petitioner also has a banquet facility on the premises known as the "Commodore Suite." It is located approximately 250 feet from the Brass Elephant. Meals for the Commodore Suite are prepared at the kitchen facility in the Brass Elephant. On many occasions patrons of the Commodore Suite have been served at tables simultaneously with those in the Brass Elephant, thereby making the total patrons served at one time at the two locations more than 150. The Petitioner has available on the resort premises all of the necessary equipment to serve more than 150 persons at one time in the Brass Elephant, though the City of Sanibel prohibits it from having more than 100 seats in the restaurant. In addition to the restaurant and the banquet room, there is also a pool bar on the Petitioner's resort premises. The restaurant, pool bar, and banquet room are physically separate from each other. The distance between the restaurant and the banquet room is approximately 250 feet and the distance between the restaurant and pool bar is about the same. There are no separate walkways from the various buildings to the restaurant. To walk from the restaurant to the banquet room, one has to walk across a street, part of a parking lot, and around or under one of the other buildings at the resort. To walk from the pool bar to the restaurant or the banquet room, one has to walk around or through another building. The foregoing paragraphs numbered 1 through 16 comprise all of the findings of fact in this case. Such findings include the substance of all of the findings proposed by the Petitioner and the substance of the vast majority of the facts proposed by the Respondent. To the extent I have not made certain proposed findings of fact, such proposed findings are irrelevant and immaterial to the issues to be decided in this case.
Recommendation For all of the reasons set forth above, I recommend that the Division of Alcoholic Beverages and Tobacco issue a Final Order denying the application of Shell Harbor Group, Inc., for a special restaurant liquor license. DONE and ORDERED this 1st day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1985.
The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent discriminated against Petitioners on the basis of race or national origin at Respondent's place of public accommodation.
Findings Of Fact At issue in these consolidated cases are the complaints by Petitioners Mitchell and Beck that they were subjected to discrimination when they visited Respondent's Orlando restaurant on December 3, 2011. Petitioner Mitchell is an African-American male, and Petitioner Beck is an Asian female. They live in Tampa and have been dating for approximately five years. Prior to December 3, 2011, they had visited BB King's in Orlando several times--four or five times, according to Petitioner Mitchell. On each of those occasions, they had enjoyed the restaurant's services and were not subjected to any form of discrimination. BB King's is a southern-style barbecue restaurant and live music venue. Respondent operates four BB King's locations. The Orlando restaurant is the largest, occupying 14,000 square feet spread over two stories, with three bars, a stage, and a dance floor. The restaurants are named after the famous African- American blues musician, B.B. King. At the Orlando restaurant, B.B. King and other blues musicians (such as Ray Charles and Howlin' Wolf, both African-Americans) are portrayed in paintings and images on the exterior walls, and inside the restaurant on the stage, on the walls, on the menus, and on the glassware. BB King's has a racially diverse clientele. A large majority of Respondent's customers are African-Americans. Respondent has a non-discrimination policy, prohibiting discrimination on the basis of race, color, religion, sexual orientation, ethnicity, or other classification. All of Respondent's employees receive training on the company's non- discrimination policy, as part of the extensive initial-hire training process in the company's policies and procedures. The Orlando BB King's is at its busiest on Saturday nights, particularly between 7:00 p.m. and 10:00 p.m. During this time, there is usually a wait for a table. The waiting time ranges from five minutes to two hours. Respondent's seating policies and procedures were at the heart of the incident of which Petitioners complained. The seating policies and procedures in effect as of December 3, 2011, established through the credible testimony of Respondent's witnesses and corroborating exhibits, are described below. Respondent does not offer reservations in the traditional sense of reserving a table to accommodate a particular number of customers at a particular time. Instead, Respondent offers a variation of traditional reservations, called priority seating. Priority seating arrangements can be made in advance by telephone, online, or in person, for a particular group expecting to arrive at a particular time. While priority seating does not guarantee that a table will be ready when the group arrives, if an appropriate-sized table is not ready, the group is given first-in-line status, so they would receive the next available table of the size needed to accommodate the group, ahead of any walk-ins who are waiting for the same-sized table. Respondent limits the number of priority seating arrangements it will make for a given time slot. It is common, therefore, for priority seating slots to be filled in advance, particularly for the restaurant's peak days and peak times. When persons request tables for time slots with no more priority seating openings, those persons are told that they are welcome to come to the restaurant as walk-in customers. Through its seating policies and procedures, Respondent seeks to strictly control seating and to discourage customers from seating themselves. That is particularly important when the restaurant is very busy, for several reasons: to maintain order; to rotate the seating of customers among the different server zones so as to evenly spread the work load among the servers; to ensure that priority seating is provided to those who timely avail themselves of that option; and to maximize use of seating capacity when demand is at its peak. To help control seating, upon entering the Orlando BB King's restaurant, customers are informed by a sign at the reception station: "Please Wait To Be Seated." Another "Please Wait To Be Seated" sign tops a pole at the front of the velvet- roped area demarking the line for customers waiting to be seated. To reinforce the message of its "Please Wait To Be Seated" signs, Respondent places "Reserved" signs on each vacant table. Respondent's witnesses acknowledged that these tables are not actually reserved in the traditional sense of being held for a particular group with reservations, although tables may be held for priority seating, a term used interchangeably with reservations.2/ But the signs are not used for that purpose; instead, the signs are used as a means to discourage impatient customers from trying to seat themselves despite being told to wait to be seated. Another seating policy employed by Respondent is referred to as the 75 percent rule. Under this rule, unless and until 75 percent of a group wanting to sit together at one table is physically present at the restaurant, customers who are part of the group are not seated and are not even put on a waiting list nor provided a pager for a table. In other words, if two customers tell the hostess that they are a part of a group of four and are waiting for two other persons to arrive, those two customers will not be seated at a table for four, nor will they be put on the wait listing and given a pager for a table for four. Respondent's witnesses credibly explained that this rule served the purpose of maximizing use of available seating capacity, which is particularly important on busy nights during peak hours. The night in question--December 3, 2011--was a Saturday night during tourist season. Petitioners decided to drive from Tampa to Orlando, a prime tourist destination location, to return to the BB King's restaurant they had previously enjoyed. Petitioners did not make seating arrangements in advance. Instead, on the way to the restaurant, Petitioner Beck called BB King's on her cell phone to try to make reservations, between one and two hours before Petitioners expected to arrive. Petitioner Beck spoke with "Robbie," who told her that she could not make a reservation, but that they were welcome to walk in. Respondent's witnesses credibly explained that by the time Petitioners attempted to make seating arrangements, the priority seating limits surely would have been reached. Thus, it was reasonable and consistent with Respondent's seating policies for Petitioner Beck to be told that she could not make a reservation, but that they were welcome to walk in. Petitioner Beck acknowledged that the person with whom she spoke did not know the race or national origin of either Petitioner. Petitioners proceeded on to BB King's, arriving between 8:00 p.m. and 9:00 p.m. The restaurant was very busy. In addition to the normal crowds at this peak time, the restaurant was hosting three special events for Nike: one Nike event was for a group of 50 people, between 6:30 p.m. and 9:00 p.m.; the second Nike event was for a group of 41 people, between 7:00 p.m. and 9:00 p.m.; and the third Nike event was for another group of 50 people, between 7:30 p.m. and 10:30 p.m. Petitioners checked in with the hostess at the front reception station. Petitioners were greeted in a friendly manner by the hostess and were given a pager that would signal when their table was ready. Within five to ten minutes, the pager signal was activated. Petitioners returned the pager to the hostess, who turned Petitioners over to a runner, the BB King's employee who escorts guests from the reception area to their tables and provides them with menus and silverware. The runner led Petitioners to a table for two. However, Petitioners refused the two-seater table offered to them, and informed the runner that they needed a table for four, as they were waiting for another couple who had not arrived yet.3/ Petitioners must have told the hostess that they were a party of two, not four, when they first checked in, so as to be put on the waiting list and given a pager for a two-seater table. Petitioners failed to explain why they did not inform the hostess upon checking in that they were waiting for two more persons and needed a table for four, instead of waiting until they saw the table to which they were led to tell the runner that they actually needed a table for four. The logical inference from Petitioners' description (and from Petitioner Beck's evasiveness described in endnote 3) is that Petitioners developed the story that they were expecting another couple after they were led to the table for two, perhaps because they were not happy with the location of the two-seater table and preferred the location of the four-seater tables, or perhaps because they just wanted more elbow room. The credibility of Petitioners' story is undermined by the following facts: Petitioner Mitchell admitted that there was no set time established to meet this other couple at the restaurant; the other couple that was supposed to meet Petitioners never showed up during the hour that Petitioners estimated they were at the restaurant in total; Petitioners did not offer testimony by the other couple to corroborate their story; and Petitioners did not even name the other couple when asked in discovery for names of persons with knowledge of the facts underlying Petitioners' complaints. Ironically, the new information that Petitioners were waiting for another couple, belatedly offered to the runner in an attempt to switch to a four-seater table, triggered the 75 percent rule, which ultimately was the source of Petitioners' dissatisfaction. The credible evidence establishes that if Petitioners had accepted the two-seater table they were offered, they would have been served, as they had been on prior occasions. Instead, pursuant to the 75 percent rule, Petitioners were escorted by the runner back to the reception area, and were told to let the hostess know when the couple they were waiting for had arrived. Petitioners asked to be put on the waiting list and be issued a pager for a table for four, but the hostess followed the 75 percent rule and reasonably refused to do so. No evidence was offered to prove that the 75 percent rule was used as a means to discriminate against Petitioners because of their race or national origin. Petitioners offered no evidence to prove that any other customers who did not have 75 percent of their group present were seated at tables, or were put on the waiting list and issued pagers. Petitioners offered no evidence to prove that the 75 percent rule was not applied uniformly to all other customers regardless of their race or national origin. Petitioners offered no evidence that the 75 percent rule was waived for any customers who were not members of Petitioners' protected race or national origin classes. After Petitioners were returned to the reception area and told to let the hostess know when the rest of their party arrived, Petitioners went to the bar area to wait. Petitioner Beck ordered a drink, and was served without incident. Petitioners observed an African-American couple seated at a nearby table for four. When the African-American couple was finishing their meal and about to vacate their table, they asked Petitioners if they wanted to be seated at the table, and Petitioners gladly took them up on their offer. The African-American couple who offered Petitioners their table left and Petitioners remained seated at the table for four. Petitioners did not have menus or silverware, because they were not seated by a runner. A server approached the table, but did not stop to take Petitioners' orders. The server seemed upset according to Petitioners, perhaps because they had seated themselves, contrary to Respondent's seating policies and procedures. Then a different server came to the table. According to Petitioners, that server took their orders for drinks and dinner, and brought them drinks. Petitioners believe that the first server must have reported them to the hostess, because the same hostess who had told Petitioners previously to wait until the rest of their group arrived came over to tell Petitioners that they needed to get up from the table. Someone who Petitioners described as a manager also came up to tell Petitioners that they needed to vacate the table because the rest of their group had not arrived. At hearing, Petitioners testified that they did not know the name of the manager with whom they spoke. Petitioners claim that they told the unidentified manager that they should not have to leave the four-seater table, pointing out that there was a Caucasian couple seated at a four- seater table. According to Petitioners, the manager told them he did not have the heart to ask the other couple to move. Petitioner Beck testified that the manager made this comment while Petitioners were waiting in the bar area before seating themselves. Petitioner Mitchell, on the other hand, claimed that this conversation occurred after the manager asked them to get up from the four-person table. Petitioners' testimony in this regard was not credible. When Petitioners were asked to vacate the table from which they had seated themselves, after arguing for a brief period, Petitioners ultimately agreed to vacate the table. They then decided to leave the restaurant. Apparently they were allowed to leave without paying for the drinks they had ordered and been served while seated at the table for four, and apparently they abandoned the dinner orders they had placed. It was clear from Petitioners' testimony that they did not understand Respondent's seating policies. Petitioners seemed to be under the misimpression that Respondent had a policy against seating couples at tables for four. Instead, according to the credible testimony of Respondent's witnesses, couples are often seated at tables for four early in the evening, but that as the evening progresses into the peak hours, the hostess begins to direct couples to two-seater tables, using the four-seater tables for groups of three or four. This maximizes use of the available seating, a reasonable and necessary policy for a busy restaurant/entertainment venue. The testimony of Respondent's witnesses was consistent in this regard, and included the credible testimony of Ms. Olivo, who was the hostess on December 3, 2011, but who has not worked for Respondent since 2012. The credible evidence established that Petitioners were asked to vacate the table for four, not because there were only two of them, but rather, because their story that they were waiting for another couple triggered the 75 percent rule, and because, after they were told to wait until the rest of their group arrived, they chose to ignore those instructions and seat themselves. Petitioners failed to prove that Respondent's practice of sometimes seating couples at tables for four and sometimes directing couples to tables for two was a choice made on the basis of race or national origin, as opposed to a reasonable judgment for maximizing use of seating capacity based on how busy the restaurant is. Petitioners acknowledged that the Caucasian couple they claim to have pointed out to the manager was not the only couple they observed seated at a table for four. To the contrary, Petitioners admit that the couple who made the nice gesture that, unfortunately, was contrary to Respondent's seating policies, of offering Petitioners "their" table as they were getting up to leave was an African-American couple. Petitioners offered no evidence to prove how long either the Caucasian couple or the African-American couple seated at tables for four had been at the restaurant, whether they were seated with all of their party present, whether they were waiting for others to join them, or whether they had improperly seated themselves. These couples might have arrived hours earlier, well before the peak time, and lingered to enjoy their food and the live entertainment. That Petitioners admitted to having observed both a Caucasian couple and an African-American couple at tables for four is evidence that Respondent was not using its seating policies as a means to discriminate, but rather, applied its policies in a non-discriminatory manner to accommodate customers both within and outside the protected classes who were not shown to be similarly situated to Petitioners. In fact, Petitioners admitted that when the two of them previously visited Respondent's Orlando restaurant, they had been seated at tables for four. Petitioners also contend that the unidentified manager who asked them to vacate the table informed them that the table was "reserved" for a group of three Caucasian customers who had priority seating arrangements. According to Petitioners, this threesome arrived at the restaurant after Petitioners. Petitioners do not contend that the three Caucasian customers did not have 75 percent of their group present; mathematically, the threesome being seated at a table for four must have had at least 75 percent of their group present. Moreover, Petitioners offered no evidence that the three customers did not have priority seating arrangements. Accordingly, Petitioners' description does not support Petitioners' assertion of discrimination, but rather, a consistent application of Respondent's seating policies and procedures. Petitioners were not entitled to be seated or to be placed on a waiting list for a table for four, because their claim to be waiting for another couple triggered the 75 percent rule; Petitioners ignored the instructions to wait for the rest of their group, and violated another seating policy by seating themselves. Petitioners did not attempt to make seating arrangements in time to secure priority seating, as the Caucasian threesome apparently had done. Thus, the Caucasian threesome was entitled to priority seating over walk-in customers on the waiting list for a four-seater table. Petitioners had not yet qualified to be placed on the walk-in waiting list. Consistent with Respondent's seating policies, Petitioners were properly asked to vacate the table at which they had seated themselves. As with the 75 percent rule, no credible evidence was offered to prove or suggest that the do-not-seat-yourself rule, announced to all customers by the sign at the reception station, was applied in a discriminatory fashion. Respondent's witnesses credibly testified that it is common for customers to try to skirt the seating policies by seating themselves when a table is vacated, particularly on a busy Saturday night, such as on December 3, 2011. Management and staff are all on alert to look for tell-tale signs, such as customers sitting at a table without menus or silverware. When this occurs, the hostess or a manager will inform these customers that they cannot seat themselves, and they are asked to leave the table. The credible testimony established that customers of all races and national origins are asked to leave tables when they violate the seating policies by seating themselves. Petitioners also argue that the use of the word "reserved" on signs placed on tables is inconsistent with Respondent's seating policy that does not allow tables to be reserved in the traditional sense. However, Respondent reasonably explained its seating policies and procedures, including its use of the "reserved" signs. Whether Respondent's seating policies are clear or confusing, good or bad, or make sense to Petitioners are not questions for determination in this proceeding. Instead, the question is whether Respondent's actions taken pursuant to its seating policies and procedures were motivated by intentional discrimination. Petitioners did not prove that Respondent used "reserved" signs as a means to discriminate against Petitioners because of their race or national origin. Petitioners do not contend that they were subjected to any form of direct discrimination, such as racial or ethnic slurs or derogatory comments of any kind. Instead, Petitioners Mitchell and Beck proved only that they are African-American and Asian, respectively; that they could have enjoyed all of the benefits offered at BB King's had they accepted the table for two they were offered; that they were not seated at a table for four because they claimed to be waiting for another couple to join them; and that they were asked to leave a table at which they had seated themselves. No credible proof was offered from which to infer that Respondent's actions were motivated by intentional discrimination based on race and national origin. For reasons explained in a series of motions and Orders (see endnote 1), the undersigned exercised the authority provided in section 120.569(2)(f), Florida Statutes (2012), and Florida Rule of Civil Procedure 1.380(b)(2), to assess costs against each Petitioner in connection with sanctions imposed for their discovery violations. By Order issued July 11, 2013, Petitioner Mitchell was ordered to pay $1,067.50 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. By separate Order issued July 11, 2013, Petitioner Beck was ordered to pay $1,098.00 to Respondent to reimburse a portion of the reasonable attorney's fees incurred in attempting to obtain discovery and enforce orders compelling discovery. As of the final hearing, these assessments had not been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: In DOAH Case No. 12-3992, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Freddie Mitchell; and assessing $1,067.50 against Petitioner Mitchell for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013; and In DOAH Case No. 13-517, that the Florida Commission on Human Relations enter a Final Order: dismissing the Petition for Relief filed by Petitioner Genevieve Abad Beck; and assessing $1,098.00 against Petitioner Beck for discovery violations, to be paid to Respondent, pursuant to the Order entered on July 11, 2013. DONE AND ENTERED this 14th day of May, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of May, 2014.
The Issue Whether Petitioner may discipline Respondent’s alcoholic beverage license for Respondent’s violating Florida Administrative Code Rule 61A-3.0141(3)(D) and Section 561.20(4) “within” 561.29(1)(a),1/ Florida Statutes, on three separate occasions.
Findings Of Fact Pursuant to un-refuted testimony, Respondent, MJT Restaurant Group, Inc., doing business as The Copper Pot, holds Beverage License 5202697, Series 4 COP, SRX.3/ Respondent’s establishment is located in Ocala, Florida. It is divided into two separate interior rooms, with two separate exterior entrances. The two rooms are connected through the interior by a single opening between one room, which is the main restaurant area, and a second room, which is the bar/lounge. A complaint was opened against Respondent with a warning letter issued by Investigative Specialist Melodi Brewton on March 15, 2007. The Administrative Complaint that was ultimately filed in this case addresses only the dates of April 7, 2007, June 17, 2007, and July 20, 2007. On April 7, 2007, Special Agents Angel Rosado and Lawrence Perez visited Respondent’s premises in an undercover capacity at approximately 11:00 p.m. On that date, the restaurant’s exterior door was closed and locked, but the lounge’s exterior door was open. The agents entered through the lounge’s exterior door and observed patrons consuming alcohol and listening to a band in the bar area. The agents requested a menu from the bartender. The bartender told them the kitchen was closed. Each agent then ordered a beer, and a sealed alcoholic beer bottle was sold to each of them as alcoholic beer. Each agent was over 21 years of age, familiar with the smell and taste of alcohol, and testified that the liquid inside his container had been alcoholic beer. The agents testified that they had paid for, and received, the liquid as if it were alcoholic beer. A chain of custody was maintained and a sample vial of the beer served by Respondent on Tuesday, April 7, 2007, was brought to the hearing but was not admitted into evidence as unduly repetitious and cumbersome.4/ On June 16, 2007, Special Agent Rosado and Special Agent Lawrence Perez visited The Copper Pot at approximately 11:30 p.m. The outside restaurant door was not locked, but the lights were off inside the restaurant room where chairs were stacked on the tables. The agents observed patrons in the lounge room consuming alcohol. When the agents asked for a menu, the male bartender told them that the kitchen was closed. The bartender offered to heat up some spinach dip for them, but they declined. Each agent then ordered an alcoholic beer, and a liquid was sold to each of them as alcoholic beer. Each agent was over 21 years of age, familiar with the smell and taste of alcohol, and testified that the liquid sold him was alcoholic beer. Each agent testified that he had paid for, and received, the liquid as if it were alcoholic beer. A sample of the alcoholic beer was logged into the Agency evidence room on June 17, 2007. That sample of the beer served by Respondent on June 16, 2007, was brought to the hearing but was not admitted into evidence as unduly repetitious and cumbersome.5/ During the June 16-17, 2007, visit, Agent Perez spoke with a woman who was later determined to be one of the corporate officers of the licensee, Judith Vallejo. When Agent Perez asked her about obtaining a meal, Judith Vallejo replied that the kitchen was closed, but they could get food at the nearby Steak’N’Shake. The male bartender then told the agents that the Respondent’s restaurant closes at 9:00 p.m. weekdays and 10:00 p.m. on weekends. June 16, 2007, was a Saturday. June 17, 2007, was a Sunday. At about 11:00 p.m. on July 20, 2007, Special Agents James DeLoach, Ernest Wilson, and Angela Francis entered Respondent licensee’s premises through the lounge. The restaurant’s outside entrance was locked and the restaurant was dark. In the lounge, they asked for a menu to order a meal. The male bartender told them that the kitchen was closed, but they could have a spinach dip. The agents ordered, and were served, one beer and two mixed drinks, which Special Agents DeLoach and Wilson testified had alcohol in them. Special Agent Francis did not testify. Both of the special agents who testified were over 21 years of age, familiar with the taste and smell of alcohol, identified that the liquids they had been served were, in fact, alcoholic beverages, and that they had bought and paid for what the bartender served them as alcoholic beverages as if they were alcoholic beverages. Each testified that the bartender had represented that what he was serving them were the alcoholic beverages they had ordered. A sample vial of only the beer served by Respondent to Special Agent Wilson on July 20, 2007, was brought to the hearing, but it was not admitted into evidence as unduly repetitious and cumbersome.6/ Thereafter, a notice of intent to file charges was served upon one of Respondent’s corporate officers. There was testimony from a Special Agent that an SRX licensee is required to earn fifty per cent of its gross income from the sale of food and must sell food which is the equivalent of a full course meal during the entire time alcohol is being served, and that the Administrative Complaint herein should have cited Section 561.20(1) instead of 561.20(4), Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing all statutory charges; finding Respondent guilty, under each of the three counts of the Administrative Complaint, of violating Florida Administrative Code Rule 61A-3.0141(3)(d); and for the rule violations, fining Respondent $1,000.00, and revoking Respondent's license without prejudice to Respondent's obtaining any type of license, but with prejudice to Respondent's obtaining the same type of special license for five years. DONE AND ENTERED this 4th day of March, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2008.
The Issue Whether Florida Administrative Code Rule 61A-3.0141(2)(a)2., and its directive that the square footage making up the licensed premises of a special restaurant (SRX) license be “contiguous,” constitutes a valid exercise of delegated legislative authority. Whether a genuine issue of material fact exists, and, if so, whether Petitioner’s Motion for Summary Adjudication should be denied.
Findings Of Fact The following findings of facts are determined: The State of Florida, Department of Business and Professional Regulation (Respondent) is the state agency responsible for adopting the existing rule which is the subject of this proceeding. Under the provisions of Section 561.02, Florida Statutes, the Division of Alcoholic Beverages and Tobacco, within the Department of Business and Professional Regulation, is charged with the supervision and enforcement of all alcoholic beverages manufactured, packaged, distributed and sold within the state under the Beverage Law. The Division issues both general and special alcoholic beverage licenses. Petitioner, Brooklyn Luncheonette, LLC, d/b/a Del Tura Pub and Restaurant is the owner/operator of a restaurant located in North Fort Myers, Florida. It is seeking issuance of a special restaurant license (SRX) pursuant to Subsection 561.20(2)(a)4., Florida Statutes, from the Division. Therefore, Petitioner is substantially affected by the challenged rule. Petitioner operates a restaurant on a leased parcel of property consisting of two buildings with a dedicated pathway between the two buildings. Petitioner’s restaurant premises consist of two buildings which contain a minimum of 2,500 square feet in the aggregate of service area. Petitioner’s restaurant facility is equipped to serve 150 patrons full course meals at tables at one time. The sole reason asserted by Respondent for denial of Petitioner’s application is the alleged noncompliance with the “contiguous” requirement of Florida Administrative Code Rule 61A-3.0141(2)(a)2. The provision of general law, applicable to Petitioner, which sets forth the specific criteria for an SRX license, is Subsection 561.20(2)(a)4., Florida Statutes. To these statutory criteria, Respondent has, by Florida Administrative Code Rule 61A-3.0141(2)(a)2., added an additional criteria: “The required square footage shall be contiguous and under the management and control of a single establishment.” Respondent has interpreted the provision to mean that the buildings containing the square footage must physically touch. Florida Administrative Code Rule 61A-3.0141 reflects that the sole law implemented is Subsection 561.20(2)(a)4., Florida Statutes. Susan Doherty is the chief of Respondent’s Bureau of Licensing, whose duties include determining “if a license will be issued based upon the qualifications of the applicant [and] whether the premises meets all requirements based on the type of license applied for.” Ms. Doherty, whose deposition was taken on May 12, 2009, testified in pertinent part: Q. All right. If I can direct your attention to Subsection (2)(a)(2) of Rule 61A-3.0141, it says, “The required square footage shall be contiguous and under the management and control of a single licensed restaurant establishment.” What does “contiguous” mean? A. Touching, actually connected, touching. * * * Q. Do you see anything in the statute that prohibits a licensee from qualifying if the square footage is in two buildings that the applicant leases and they’re connected by a pathway which the applicant leases? Do you see anything in the statute that precludes that? A. In the statute, no. Q. Do you see anything in the rule that precludes that? A. In my opinion, Section (2)(a)(2), the contiguous would. Deposition of S. Doherty, pp. 15 and 18. Chief Doherty conceded, however, that she could not point to any provision of the relevant statute that imposes a “contiguous” requirement regarding the square footage. Chief Doherty further noted that for special licenses issued for hotels pursuant to Subsection 561.20(2)(a)1., Florida Statutes, she was aware that there were numerous non-contiguous buildings licensed pursuant to such section. The deposition of Respondent’s agency representative, Major Carol Owsiany, was taken on May 13, 2009. Major Owsiany testified: Q. . . . Isn’t it correct that there’s 2,500 square feet of service area located in the two buildings that are currently the subject of the [Petitioner’s] temporary SRX license? A. Yes, sir. Q. Can you point to me any provision of Section 561.20(2)(1)(4) that precludes the petitioner from having the requisite square footage in two buildings? A. One second, sir. Not in the statute, but I can in the rule. Deposition of C. Owsiany, p. 8. For purposes of this rule challenge case, there are no genuine issues of material fact in dispute.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Natural James Supper Club Catering, located at 4322 North State Road 7, Lauderdale Lakes, Florida, held a catering license issued by DABT. The license number is number BEV 1616571, Series 13CT. This license authorized Natural James Supper Club Catering to provide catering services at its premise's location. Natural James Supper Club Catering is subject to the regulatory jurisdiction of DABT as a result of having been issued such a license by DABT. At all times material hereto, the sole owner of Natural James Supper Club Catering was Larnieve Uter. On March 24, 2003, having received a complaint that Natural James Supper Club Catering was selling alcoholic beverages in a manner not permitted by its license, DABT initiated an investigation. On March 24, 2003, Captain Patrick Roberts and special agents of DABT entered the premises of Natural James Supper Club Catering. Accompanied by the husband of Mrs. Uter, Glasford Uter, Captain Roberts and the other agents observed alcoholic beverages that had been used at a prior catering event being stored at Natural James Supper Club Catering; observed alcoholic beverages at Natural James Supper Club Catering that did not have excise tax stamps on them; and observed for sale a bottle of an alcoholic beverage that had been refilled with an unknown spirituous beverage. As to the storing of alcoholic beverages, according to Captain Roberts, the license held by Natural James Supper Club Catering prohibits it from storing alcoholic beverages that were used in a prior catering event. Instead, Natural James Supper Club must return the alcoholic beverages to the vendor from whom they were purchased. Further, Natural James Supper Club must possess a contract between it and the vendor; however, no such contract was presented to Captain Roberts or any of the other agents. DABT seized the alcoholic beverages and took pictures of them. DABT seized 191 bottles of wine, 118 containers of spirits, and 959 containers of beer (cans and bottles).
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: Finding Uter Investment Corp., d/b/a Natural James Supper Club Catering in violation of Section 561.29(1)(a), Florida Statutes (2001), through violating Sections 562.12(1), 562.01, and 565.11, Florida Statutes (2001). Imposing a fine of $2,500 and excise tax upon Uter Investment Corp., d/b/a Natural James Supper Club Catering. Suspending, for a 20-day period, the license of Uter Investment Corp., d/b/a Natural James Supper Club Catering. Imposing a forfeiture of the seized alcoholic beverages. DONE AND ENTERED this 4th day of August 2004, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2004.
