The Issue The issue is whether Respondent discriminated against Petitioner on the basis of national origin or race in violation of Section 760.08, Florida Statutes (2005),1 during Petitioner’s visit to a Burger King Restaurant on June 3, 2006.
Findings Of Fact Petitioner is in a protected class within the meaning of Subsection 760.02(6). Petitioner’s national origin is Haitian, and his race is Black. Respondent operates a Burger King restaurant located at 1260 North Fifteenth Street, Immokalee, Florida 34142 (the Restaurant). The Restaurant is a place of public accommodation, defined in Subsection 760.02(11)(b). Petitioner and two friends visited the Restaurant on June 3, 2006, for the purpose of purchasing and consuming food served by the Restaurant. Petitioner waited in line to order food for himself and his two friends. Petitioner placed his order and paid for the food he ordered. The cashier and food service employee on duty at the Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman who is married to a Haitian man. At the time the food was ready, Ms. Lopez called the order number. Petitioner attempted to retrieve the food and Ms. Lopez asked him for his receipt with the order number on it. Petitioner indicated that he did not have the receipt. Ms. Lopez directed Petitioner’s attention to a sign stating that customers must have a receipt in order to be served. After a short conversation about the store’s policy and requirement to have a receipt, Ms. Lopez served Petitioner his food. The food order was correct, but Petitioner objected to the manner in which Ms. Lopez placed his food service tray on the counter. Petitioner claims that Ms. Lopez threw the tray on the counter. None of the food spilled out of containers or off the tray. Petitioner demanded that she serve him correctly or refund his money. Ms. Lopez refunded Petitioner’s money. It is undisputed that Petitioner had concluded his business transaction with the Restaurant after requesting the refund. Petitioner intended to leave the Restaurant. Petitioner claims that before he left the Restaurant, Ms. Lopez cursed at him and referred to his national origin by saying, “Get the fuck out, fucking Haitians.” Ms. Lopez testified that she may have cursed at him at the time she refunded the money. However, Ms. Lopez denied making any comments related to national origin. The fact-finder finds the testimony of Ms. Lopez to be credible and persuasive. During the incident at the Restaurant, Petitioner’s two friends and another gentleman joined Petitioner at the counter as he argued with Ms. Lopez. None of the men testified at the hearing. It is undisputed that the alleged comments by Ms. Lopez are the only alleged references to the national origin or race of Petitioner by any employee or manager at the Restaurant. Respondent’s store manager, Mr. Lewis Sowers, a Caucasian male, heard the disturbance at the counter of the Restaurant. Mr. Sowers asked Petitioner and the other gentlemen to leave the Restaurant. Mr. Sowers contacted the police department regarding the disturbance, and the officer on the scene completed a police report. A copy of the police report was admitted into evidence as Respondent’s Exhibit 2 without objection. The alleged discrimination by Ms. Lopez did not impede Petitioner’s ability to contract for goods or services at the Restaurant. The absence of a receipt did not prevent Respondent’s employee from serving Petitioner his food order, and the order appeared to be correct. Once Petitioner received his refund, Petitioner had no intention of staying in the Restaurant and does not have a practice of visiting Burger King restaurants unless he is eating there. Thus, any attempt to contract for goods and services with Respondent had terminated before the alleged discrimination. Petitioner did not see any other customers who lost or did not produce their receipts. Petitioner did not recall the race or national origin of any other customers who may have had their food order served in a different manner. Petitioner presented no evidence of any damages sustained as a result of the alleged discrimination. Petitioner failed to answer Respondent’s Request for Documents evidencing mental anguish, suffering or punitive damage awards he believed to be appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 17th day of October, 2008.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of sex (sexual harassment), national origin, and retaliation in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Evelyn Martinez is a female and Hispanic of Puerto Rican origin. Ms. Martinez began working at the Boca Diner on May 29, 2000, as a waitress. At all times material hereto, Ms. Martinez was an employee of Boca Diner. Boca Diner does not dispute that it is an employer within the jurisdiction of the Florida Civil Rights Act of 1992, as amended. The hours of operation of Boca Diner were from 6 a.m. to 10 p.m. Boca Diner was open for breakfast, lunch, and dinner. The majority of the persons who were servers at Boca Diner were females; only a few were males. At all times material hereto, even though other waitresses of Hispanic descent were employed by Boca Diner, Ms. Martinez was the only Hispanic waitress of Puerto Rican origin. Ms. Martinez had prior experience as a waitress before beginning her employment with Boca Diner. At Boca Diner, Ms. Martinez worked mostly evening shifts, reporting to work around 3 or 4 p.m. She worked five to six days a week. During the week after July 4, 2000, an employee of Boca Diner by the name of Rick made a remark to Ms. Martinez that she considered sexual. He stated to her that she had nice breasts. Ms. Martinez told Rick not to make the remark again and walked away. No dispute exists that the remark was a sexual remark. Rick was a server but was not a full-time server, only part-time. His usual working hours were around 4-9 p.m. Ms. Martinez reported the incident, regarding the remark by Rick, to Boca Diner's owner and manager, John Pelekanos.1 Mr. Pelekanos indicated to her that all the other waitresses tolerated such remarks from Rick and that she should also. Ms. Martinez stated to Mr. Pelekanos that she was not going to "take" such remarks from Rick. No evidence was presented to show that Boca Diner had a sexual harassment policy. Rick made no further sexual remarks to Ms. Martinez after she reported him to Mr. Pelekanos. After reporting the incident to Mr. Pelekanos, Ms. Martinez's working schedule changed. Instead of working five to six days a week, she now worked two days.2 However, Ms. Martinez was able to obtain two additional days from other workers by them agreeing for her to work their days. Boca Diner contends that Ms. Martinez's workdays were reduced because of the slowness of business in the summer; however, Boca Diner only reduced her workdays. The undersigned considers it reasonable to reduce the number of working hours of waitresses due to a slowness of business, but considers it unreasonable to reduce the workdays of only one waitress, i.e., Ms. Martinez, by three to four days, but none of the other waitresses, because of the slowness of business. Before reporting the remark by Rick, Ms. Martinez felt harassed by and hostility from the other waitresses. The other waitresses "hassled" her for not properly performing the "side work," which consisted of setting-up the salad bar, and filling bottles of mayonnaise, ketchup, etc. After Ms. Martinez reported the remark by Rick, the hassling escalated. Additionally, Rick began to constantly tell Ms. Martinez to quickly do her work. Ms. Martinez did not inform the floor manager, Alex Lazarus, how the other waitresses or Rick were hassling her. She did not approach Mr. Lazarus because she considered him to be verbally abusive to her and other employees. Additionally, after Ms. Martinez reported the remark by Rick, on July 15, 2000, she was assigned to a different serving section at Boca Diner. Her new serving section was section one, which was the number one section and the busiest and most demanding section at Boca Diner.3 When she placed her orders, the orders were completed late. As a result, customers were complaining. Boca Diner contends that customers were complaining about Ms. Martinez before she was moved to section one. It is not reasonable to move a waitress, about whom customers are already complaining, to a busier and more demanding section of the restaurant. At the end of her shift on July 15, 2000, she was fired by the floor manager, Alex Lazarus. No dispute exists that Mr. Lazarus had the authority to fire Ms. Martinez. Mr. Pelekanos was not in the country when Ms. Martinez was fired. No dispute was presented that Boca Diner does have the right to fire waitresses or waiters who are not performing adequately or who are performing poorly. No evidence was presented as to whether Boca Diner had employed other Hispanic waitresses of Puerto Rican origin prior to Ms. Martinez's employment. No evidence was presented as to whether Boca Diner had fired other waitresses and, if so, for what reason(s). As to Ms. Martinez's income while she worked at Boca Diner, no time records were provided by Boca Diner. Boca Diner failed to retain her time records. Further, Boca Diner had no documentation regarding Ms. Martinez's employment with it. Boca Diner gave no reasonable explanation for its failure to retain time records or other documentation regarding Ms. Martinez's employment with it. Boca Diner did not provide any testimony regarding monetary remuneration to Ms. Martinez for being a waitress at Boca Diner. Ms. Martinez did not provide any pay records or federal income tax returns regarding her employment with Boca Diner. However, she did provide a handwritten statement showing her income at Boca Diner for the time that she worked at Boca Diner4 and gave testimony regarding her income at Boca Diner subsequent to her termination. Her testimony is found to be credible. At the time Ms. Martinez was employed at Boca Diner, her base pay was $40.00 every two weeks, resulting in her base pay being $80.00 per month. Ms. Martinez handwritten document indicated that she received $300.00 from May 29 through June 4, 2000; $325.00 from June 5 through 11, 2000; $325.00 from June 12 through 18, 2000; $325.00 from June 19 through 25, 2000; $300.00 from June 26 through July 2, 2000; $250.00 from July 3 through 9, 2000; and $225.00 from July 10 through 15, 2000; totaling seven weeks and $2,050.00. The evidence did not demonstrate whether the base pay was included in her income. An inference is drawn that Ms. Martinez's total income at Boca Diner included the base pay of $40.00 every two weeks or $80.00 per month. Ms. Martinez testified that she received $1,275.00 in tips for a month. Reducing her four-week income by her base pay indicates that she received $1,195.00 in tips for the four-week period: May 29 through June 4, 2000, at $280.00 in tips; June 5 through 11, 2000, at $305.00 in tips; June 12 through 18, 2000, at $305.00 in tips; June 19 through 25, 2000, at $305.00 in tips. Reducing the remaining three-week period by her base pay indicates that she received $715.00 in tips for the three-week period: June 26 through July 2, 2000, at $280.00 in tips; July 3 through 9, 2000, at $230.00 in tips; and July 10 through 15, 2000, at $205.00 in tips. As a result, the total amount of tips that Ms. Martinez received for the time period that she was employed at Boca Diner totaled $1,910.00. Consequently, it is reasonable and an inference is drawn that she received $1,910.00 in tips for the seven-week period. After her termination, Ms. Martinez borrowed money in July and August 2000 from family to pay her monthly obligations, which included rent, food, gas, insurance, and incidentals. She estimates that she borrowed from $600.00 to $800.00. After her termination, Ms. Martinez was hired on August 26, 2000, as "counter-help" at a dry cleaners. She was paid $6.00 an hour and worked less than 30 hours a week. Ms. Martinez worked for two weeks at the dry cleaners. An inference is drawn that Ms. Martinez's income was $348.00, using 29 hours a week at $6.00 an hour. Afterwards Ms. Martinez was hired part-time as a waitress at a restaurant. She received $100.00 per week, including tips. Ms. Martinez worked at the restaurant for three weeks. An inference is drawn that Ms. Martinez's income was $300.00, using $100.00 per week for three weeks. Ms. Martinez was subsequently hired as a waitress at another restaurant. She received $50.00 per week, including tips. Ms. Martinez worked at the restaurant for two weeks. An inference is drawn that Ms. Martinez's income was $100.00, using $50.00 per week for two weeks. On October 26, 2000, Ms. Martinez began working at RTA Catering, a restaurant. She was receiving $2,000.00 per month. According to Ms. Martinez, at that time, her income was comparable or equal to her income at Boca Diner and she saw no need to go further into her employment history. After her termination and prior to receiving employment at RTA, Ms. Martinez' income was $748.00. The total number of weeks from July 15, 2000, the date of Ms. Martinez's termination, to October 26, 2000, the date of her comparable employment, is 15 weeks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Boca Diner discriminated against Evelyn Martinez on the basis of retaliation. Ordering Boca Diner to cease the discriminatory practice. Ordering Boca Diner to pay Evelyn Martinez back pay in the amount of $4,033.25. DONE AND ENTERED this 31st day of October, 2003, 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 31st day of October, 2003.
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 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.
