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.
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.
Findings Of Fact The corporation, Barbecue, Ltd., owns and operates a restaurant in Jacksonville Beach, Florida, which serves the general public. The approved occupancy for diners in the restaurant facility exceeds 50 persons, but is less than 300 persons. On July 15, 1982, an inspection was made of the restaurant facility by Thomas King, Fire Protection Specialist within the State Fire Marshal's Office. During the course of this inspection, King observed that the loft area which was provided for dining above the ground level floor dining area did not have available independent exits, unassociated with the exits on the ground level floor. A fire safety survey report was made on July 23, 1982, and the owners of the restaurant were requested to make corrections by September 30, 1982, related to appropriate exits on the level of the "loft" dining area. A return inspection was made by King on October 4, 1982, and the same problem was discovered on the subject of exits at the level of the loft area. As a consequence, a notice of violation was given to the owner of the restaurant on October 5, 1982. On that same date, a fire safety survey repor percent was prepared dealing with the reinspection of October 4, 1982. There ensued an Order to Cease and Desist utilization of the loft area as a place of assembly for restaurant patrons. This initial Order to Cease and Desist was dated May 18, 1983. Respondent requested a Subsection 120.57 (1), Florida Statutes hearing to question the propriety of the Cease and Desist Order. Subsequent to that time, a final hearing was noticed for August 18, 1983. An amended Cease and Desist Order had been issued August 18, 1983 and it was that action by the Petitioner which was considered in the course of the final hearing. The original Cease and Desist Order followed efforts to resolve the controversy by negotiations between the parties. Moreover, there had been a preliminary survey by King on June 23, 1980, in trying to determine needed compliance for fire safety of what was then a proposed loft dining area. Again on July 8, 1980, King and the attorney for Respondent met and discussed possible alternatives to exit points on the same level as the loft area. The alternative discussed was the possibility of provision of a 100 percent automatic fire suppression sprinkler system on the ground floor and loft levels. Counsel for Respondent suggested that two exit points from the loft area dawn to the ground level floor would suffice. This suggestion was not accepted by the Petitioner. This round of discussions having been uneventful, the inspections of July 15, 1982, and October 4, 1982, were made. Finally, an architectural firm which was hired by Respondent, through an architect with that firm, Robert E. Kelly, expressed the opinion to counsel for Respondent on October 15, 1982, that provisions related to exit safety could be satisfied by the addition of a second set of stairs leading from the loft area to the ground floor. Although local officials within the government of the City of Jacksonville Beach, Florida, had issued a permit for the construction of the loft area and later questioned the propriety of construction without the benefit of exit points at the loft level, no official with the Petitioner has ever countenanced the utilization of the loft area by patrons without complying with provisions of the Life Safety Code related to appropriate exit discharge points at the loft level area or automatic sprinkler systems in all areas frequented by patrons within the restaurant. At the time of the hearing, the loft area was not being used by members of the general public. That loft area could be reached by a set of stairs from the ground floor dining area, with egress from the loft area being by return trip dawn that stairway. There is only a single stairway at present. The bottom of the stairway enters a service area utilized by employees of the restaurant and is 10 to 12 feet from a kitchen area. The kitchen area is separated from the dining area by two 180 degree swinging doors. The kitchen is a hazard area which has an automatic fire suppression system in the hood over the cooking devices for control. Immediately behind the kitchen, separated by a wall of concrete cinder block, is a barbecue pit. The dining area is found within-an A-frame structure. The ground level of that A-frame structure has egress points from the east and west sides at the ground level. The A-frame is constituted of steel beams with timbered sheathing and the inside interior finish to the A-frame is rough cut red cedar. The I-beams which form the A- frame are 10 to 12 inches thick and are sunk 10 feet into concrete outside of the building. The sheathing material on the I-beams is 2 inch tongue-and-groove lumber. The 2 inches refer to thickness of the wood. On the exterior surface of the A-frame, anodized aluminum shingles have been placed to waterproof the roof. The loft area has flooring which is constituted of 3/4 inch plywood covered with carpet. Some of the support for that floor comes from the I-beams in the A-frame structure. The inside of the A-frame in the restaurant in the dining area has exposed wood. The floor on the groind level of the dining area is terrazzo and cement. On the inside of the restaurant, in the dining area, the steel beams are covered by the aforementioned sheathing. The loft area does not have windows. The stairway connecting the loft area and qround level has a handrail. In the event of a fire situation in the kitchen area, a build up of heat or smoke could come into the dining area, to include the loft. The only means of exit at present in the face of this eventuality would be dawn the stairs. The area of the kitchen and barbecue pit is in a concrete block construction with a truss roof. Between the I-beams, there is an open channel allowing the passage of air. The dining or public area on the ground floor is 980.59 square feet. The total ground floor level is 2,062 square feet and the loft area is 457.5 square feet. Both the ground level dining area and the loft dining area constitute places of assembly. At present, the level of exit discharge for both of those areas is found in the two exits on the ground level floor. The overall construction of the dining area within the A-frame is ordinary construction within the meaning of Section 3-5, NFPA 220, Life Safety Code.
Findings Of Fact The Evans Rooming House is owned and operated by the Respondent, Margaret D. Evans, who holds license number 23-4776-H issued by the Division of Hotels and Restaurants. This establishment consists of 17 units subject to rental as living space. On March 13, 1981, Mrs. Teresa Iglesias, an experienced sanitarian employed by the Petitioner, made a routine inspection of these premises. The following conditions existed in the Evans Rooming House on March 13, 1981: There were no fire extinguishers on the third floor. The hallway doors were not kept closed. These doors did not have operational automatic closing devices. There was a garbage can on the exit stairway. The plumbing and hot water boiler on the third floor were damaged and leak- ing. The water from this leakage was standing on the floor in the boiler room and was leaking to lower floors. There was a hole in the wall by the second floor exit. The door to the electrical meter room had been damaged. The third floor had been damaged by fire. The ceiling in one of the rooms on this floor had a large hole in it, the plaster residue therefrom lying on the floor. A strong odor was present on the third floor. At least four of the windows of the Evans Rooming House did not have screens. In addition to the garbage can on the stairway there were only two other garbage cans for use of the building residents. These were overflowing with trash and garbage. Rodents were evident around the trash containers. The premises were not clean. Dirt and trash were in the hallways, in the meter room, in the bathrooms, on the entire third floor, and in the garbage can area adjoining the building. On July 30, 1981, Mrs. Iglesias again inspected the Evans Rooming House. The same conditions found there on March 13, 1981, were still in existence. On October 26, 1981, Mrs. Iglesias returned to the Evans Rooming House and again found the same conditions as existed there on March 13, 1981, with the exception that the third floor plumbing and hot water boiler had been repaired. On June 1, 1982, prior to the hour of the final hearing in this case, Mr. Harry Kennedy, Supervisor of Sanitarians for the Petitioner, re-inspected the Evans Rooming House and determined that of the conditions found there by Mrs. Iglesias on March 13, 1981, and previously listed above as items 1 through 10, the following were still in existence: There were no fire extinguishers on the third floor. At least four of the windows of the Evans Rooming House did not have screens. There were only two or three garbage cans for the entire building, and these remained overflowing with trash and garbage. The hallways, the third-floor, and the garbage can area adjoining the building were unclean. Dirt and trash here observed in each of these areas. In her own behalf, the Respondent contends that as of the date of the final hearing on June 1, 1982, all of the conditions charged as violations had been corrected, with the exception of the missing screens. Nevertheless, there is sufficient competent evidence to support a finding that the four conditions found by Mr. Kennedy existed on June 1, 1982, rather than only the one admitted by the Respondent.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Margaret D. Evans, d/b/a Evans Rooming House, be assessed a civil penalty of $100 for each of the ten violations charged, except for the four violations which were uncorrected as of June 1, 1982, for which the Respondent should be assessed a penalty of $200 each. The total of these penalties is $1,400.00. The Respondent should be required to make this total payment within 30 days from the date of the Final Order; and if not paid within such period, license number 23-4776-H held by the Respondent should be suspended for a period of twelve (12) months. THIS RECOMMENDED ORDER entered on this 14th day of July, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 14th day of July, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Ms. Margaret D. Evans 1374 West Flagler Street Miami, Florida 33135 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner. On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell. On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures. Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant. Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc. Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500. RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 16th day of August, 1982. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Douglas Newell c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mt. Key, Inc. c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner was employed as a line cook with Smitty's Restaurant of Sanibel from January 20, 1988 until approximately August 4, 1988. On or about August 1, 1988, Petitioner and the kitchen manager at the restaurant became embroiled in a verbal confrontation with regard to the time off Petitioner had recently taken. Petitioner had had a doctor's note to take two days off for rest in connection with treatment the Petitioner was receiving for back pain (the specific nature of Petitioner's malady was not disclosed at hearing nor made a part of this record). Apparently, the kitchen manager had had to cover Petitioner's work shift in his absence. In any event, Petitioner and the kitchen manager had unpleasant words and the Petitioner believed he had been fired. Consequently, he left the premises and did not return to work. Contrary to Petitioner's belief, and supported by the record in this cause, the kitchen manager did not have the authority to terminate the Petitioner's employment. When Petitioner chose to leave the premises on August 1, 1988, he did so contrary to the direct verbal instruction of the restaurant manager, Martin Howard, and the company policy regarding terminations. On at least two prior occasions, Respondent had allowed Petitioner to take time off for personal or medical reasons. Petitioner presented no evidence that the Respondent discriminated against him because of a handicap.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final determination of no cause in connection with Petitioner's discrimination claim. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX CASE NO. 90-3806 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Stephen J. Iwaniszek 922 Countington Lane, Apt. J Fort Myers, Florida 33919 Douglas L. Waldorf, Jr. SMOOT ADAMS JOHNSON & GREEN, P.A. P.O. Box 06259 Fort Myers, Florida 33906-6259 Acting Executive Director Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925
