The Issue Pursuant to a Notice to Show Cause issued November 22, 1982, the Respondent was charged with two violations of the beverage laws of this state. Respondent was charged with allowing a person under 19 years of age to consume alcoholic beverages on her licensed premises. Respondent was also charged with continuing to sell alcoholic beverages after discontinuing the sale of full course meals in violation of Florida Statute 561.20(3)(1981) and Rule 7A-3.15, Florida Administrative Code. At the formal hearing, Petitioner called as witnesses Mr. W. R. Wiggs, a beverage officer for the Division of Alcoholic Beverages and Tobacco; Mr. James Pistole, a deputy for the Hillsborough County Sheriff's Department; and Joe Circhirillo, also a deputy for the Hillsborough County Sheriff's Department. Respondent testified on her own behalf and called as witnesses Kathryn Singer, James D. DeBusk, and Heidi Buzbee. Petitioner offered no exhibits and Respondent offered and had admitted into evidence one exhibit consisting of four photographs. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered and determined by the Hearing Officer to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact At all times material hereto, Respondent held Beverage License No. 39- 00771, SRX Series 4-COP, issued to Sharon's Surf-n-Turf, located at 111 East Shell Point Road, Ruskin, Florida. During the course of the hearing, it was stipulated by and between the parties and it is now found that the beverage referred to in Count I of the administrative complaint was an alcoholic beverage. On October 29, 1982, W. R. Wiggs, an investigator for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises of Sharon's Surf- n-Turf Restaurant and Lounge. He arrived at approximately 9:30 p.m. and the lounge area was full of patrons. Before entering the licensed premises, Investigator Wiggs observed a sign outside the restaurant which reflected that the restaurant was open from 11:00 a.m. to 10:00 p.m. and there was live entertainment from 9:30 p.m. to 3:00 a.m. Beverage Officer Wiggs was accompanied by Beverage Officer Miller. Upon entering the licensed premises, Wiggs and Miller sat at the bar and each ordered a Michelob beer. Beverage Officer Miller asked if he could order a full course meal and the bartender responded that the kitchen was closed. Beverage Officers Miller and Wiggs were in the licensed premises approximately one and one-half hour and observed no food being served. The patrons in the lounge were consuming alcoholic beverages. The lights were not on in the restaurant portion of the licensed premises, and the door to the restaurant was locked. Neither Officer Wiggs nor Officer Miller checked the kitchen to determine if it was in fact closed. While in the licensed premises, Officer Wiggs, along with Deputy James Pistole, of the Hillsborough County Sheriff's Department, observed a young lady named Tammy Almond, sitting at one of-the tables and consuming an alcoholic beverage. She appeared to be younger than 19 years of age. After arresting Ms. Almond, it was determined from her driver's license that she was, in fact, 18 years of age, having a date of birth of March 28, 1964. When Officer Wiggs and Deputy Pistole arrested Ms. Almond, she stated that the drink which was seized belong to someone else and she was sipping out of it. There was no evidence that Tammy Almond had purchased the drink or that she had been personally served the drink. At the time Tammy Almond was arrested, all other persons in the lounge who appeared to be possibly underage were asked for identification. Tammy Almond was the only minor in the licensed premises that evening. Tammy Almond had previously been married and was now divorced. The Respondent and her employees were aware of her prior marriage. On this evening, James D. DeBusk was checking identification at the door to the licensed premises. He had checked Tammy Almond's identification and it had reflected that she was two or three months over 19 years of age. The identification appeared to be a Florida driver's license. There was nothing suspicious about the identification. The licensed premises always has a doorman checking identification on Wednesday night through Saturday night. The bartenders and waitresses would also check identification of patrons. The licensed premises is divided into a restaurant/ dining room area and a lounge. The lounge has tables, chairs, a dance floor, and bandstand. Food is served in the dining room area as well as the lounge area. Menus for food are posted on the wall just inside the doorway of the lounge. The Respondent, prior to and at the time of the incident involving Tammy Almond, had a strict policy against allowing minors to consume alcoholic beverages on the licensed premises. On the nights when the lounge is busiest, Wednesday through Saturday, a doorman is on duty to check the identification of persons entering the lounge. Waitresses and bartenders were instructed to check the identification of persons who appeared to be younger than 19 years of age. The Respondent's policy was to require two acceptable forms of identification whenever a person produces or shows a questionable identification. If they cannot produce such identification, they are not permitted to enter the licensed premises. The restaurant and lounge are managed and supervised by the Respondent. At the time of Tammy Almond's arrest, the Respondent was in the kitchen area of the licensed premises training a new cook. Food is served at the Respondent's licensed premises from 11:00 a.m. to closing time. On the evening of October 29, 1982, the kitchen was open and food was actually ordered. At least four meals of steak and eggs were ordered and served after midnight. The licensed premises is primarily a restaurant operation and serves several different types of full course meals. These full course meals were available on the evening of October 29, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of the violations charged in the Notice to Show Cause and that such Notice to Show Cause be dismissed. DONE and ENTERED this 27th day of June, 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 27th day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Paul S. Carr, Esquire Post Office Box 965 Ruskin, Florida 33570 Mr. Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in these cases is whether Respondent is guilty of violating provisions governing the operation of restaurants and, if so, what penalty should be imposed.
Findings Of Fact Respondent is the owner and operator of Mr. P's Emporium and the Spaghetti House, which are both names of the same restaurant located at 1709 West Vine St. (State Route 192), Kissimmee, Florida. Petitioner issued Respondent license number 59-00352-R to operate the restaurant. Respondent first began operating a restaurant at the West Vine St. location nearly 20 years ago. In 1976, Respondent encountered a problem with Frank Wolf, who was then a food-service inspector employed by the Osceola County Health Department. Mr. Wolf is now the Environmental Health Director of the Osceola County Health Department. Responsibility for restaurant food-service inspections appears to have been assumed by the Health Department at one time. Presently, food-service inspections are conducted by Petitioner or, pursuant to contract with Petitioner, the Office of Restaurant Programs (ORP), which is part of the Department of Health and Rehabilitative Services. Mr. Wolf and Respondent had a misunderstanding concerning Respondent's application for a beer and wine license when he was opening his new restaurant. Although the license was issued, Respondent's relations with the Health Department worsened when Mr. Wolf later took photographs during a routine inspection. In attempting to resolve Respondent's objections to the photographing of his restaurant, the Director of the Health Department worked out an arrangement with Respondent that no inspector would conduct an inspection of Respondent's restaurant without first calling him and making an appointment. If Respondent then failed to be present at the restaurant at the appointed time, the inspector would conduct the inspection without him. However, Respondent invariably made sure he was present so he could accompany the inspector. This special arrangement was not extended to any other restaurants in the area; such restaurants remained subject to unannounced food-service inspections. In 1981, Respondent moved to South Florida, leaving the Kissimmee restaurant in charge of his son, Art, Jr. The following year, Art. Jr. expressed an interest in leaving the restaurant business. When Respondent returned to run the Kissimmee restaurant, he learned that Art, Jr. had not required the Health Department inspectors to contact him in advance of inspections. Respondent immediately proceeded to restore this arrangement, not hesitating, as always, to contact supervisors of supervisors, both locally and in Tallahassee, to ensure that all problems were straightened out to his satisfaction. It appears that the old practice of prior notice before inspection was reinstated. The alleged violations set forth in DBR Case No. 04-91-199 arose as a result of an inspection on January 2, 1991. On that day, an inspector employed by the Osceola County Health Department, Dolores Miller, visited the restaurant to conduct an inspection. She found the front door locked and approached the side door. She had not made any prior arrangements with Respondent. Respondent was not in the restaurant at the time of Ms. Miller's visit. There is a dispute as to what transpired. Ms. Miller testified that a big dog attacked her after she announced, at the open side screen door, "Hello, Health Department." This testimony is discredited. Respondent lived upstairs over the restaurant with this dog, which was permitted to roam the area outside the restaurant but not inside the restaurant. Respondent testified that the dog is friendly and does not serve as a watchdog. Respondent's dog, which sometimes roamed freely outside of the restaurant, would not likely be unfriendly. Otherwise, the dog would frighten away customers. No evidence suggests that the dog could identify Ms. Miller as a food-service inspector from the Health Department, and, sharing Respondent's antipathies, selectively attacked Ms. Miller. Ms. Miller's testimony is discredited for a second reason. She testified that she left a copy of the Inspection Report, Petitioner Exhibit 3, at the restaurant and that the copy stated at the bottom, in her handwriting: "Management would not allow me to do an insp[ection.]" Respondent testified that Ms. Miller left a copy of Petitioner Exhibit 3, but it had no such language on it. Respondent produced a copy of his copy, which contained no such language. Respondent's exhibit does not appear to be altered. To the contrary, it is found that Ms. Miller added this notation to her office copy and did not leave at the restaurant a copy of the Inspection Report with the notation. Therefore, the remaining facts concerning the January 2, 1991, incident are primarily based on Respondent's version of the events. When Ms. Miller appeared at the restaurant, Respondent's dog was in the vicinity. In the course of conversing with the restaurant employees, Ms. Miller inadvertently allowed the dog to enter the kitchen, where the dog was not permitted and, on the rare occasions when the dog found its way into the kitchen, was never allowed to stay. Ms. Miller did not make an effective request of Respondent to make an inspection. She did ask Respondent's kitchen help for access to the premises for the purpose of conducting an inspection. Acting in accordance with Respondent's usual instructions, the employees denied Ms. Miller permission. Had the matter ended at this point, Respondent, through his agents, would have denied Ms. Miller access for the purpose of conducting an food-service inspection. However, Ms. Miller returned to the restaurant to alter the date on the form that she had left with the workers. While she was correcting the date on both forms, Respondent returned to the restaurant. Having accidentally allowed Respondent's dog into the kitchen once again, Ms. Miller incurred Respondent's displeasure, as he began to yell at her. Although it is understandable under the circumstances, Ms. Miller nonetheless, by her own admission, neglected to ask Respondent to allow her to inspect the restaurant. Although Respondent had authorized his employees to deny an inspector access to the restaurant in his absence, they had no such authority while he was on the premises. The employees' refusal of access, given Ms. Miller's return to the premises almost immediately after her departure, constituted only a deferral of the decision given the fact that Respondent had returned while Ms. Miller was still at the restaurant. Under these circumstances, the deferral of the decision did not ripen into a denial unless and until Ms. Miller directed to Respondent her demand of access. Petitioner has thus failed to prove the allegations of the Notice to Show Cause arising out of the January 2, 1991, "inspection." 1/ The alleged violations set forth in DBR Case No. 04-92-85 arose as a result of an encounter between Respondent and food-service inspectors on August 30, 1991. On August 22, 1991, the local office of the Division of Hotels and Restaurants received a complaint from a person who had patronized Respondent's restaurant. She complained that a sign outside Respondent's restaurant was misleading. According to the complaint, the sign advertised a lunch buffet for $2.99, but the price for the lunch buffet, if no drink were ordered, was actually 49 cents more. The rectangular sign itself consists of three parts. The uppermost strip states horizontally: "$5.99 DINNER $5.99." The lowermost strip states horizontally: "$2.99 LUNCH $2.99." The larger middle portion states in small angular script: "Italian." Beside the word, "Italian" runs horizontally the word, "BUFFET" in letters larger than any others on the sign. The four prices were in red, the words "DINNER" and "LUNCH" were in green, the word "Italian" was in green, and the word "BUFFET" was in red. Respondent only offered three items for lunch. The lunch special was salad, spaghetti, and meatballs. The price for the lunch special was $2.99, regardless whether the customer ordered a drink other than water, which was free. The Italian buffet was $2.99, but the menu clearly indicated that the price for the buffet was $3.49 if no beverage (other than water) was ordered. The third item was pizza, which was available a la carte. Respondent's sign was not false or misleading. The sign advertised a lunch available for $2.99 and a lunch--a nourishing and substantial one--was available at that price. Any expectation that the customer could obtain the lunch buffet for $2.99 was not based on a fair reading of the sign, which advertises the standard lunch entry. 2/ Significantly, there was no evidence of any other complaints concerning the accuracy of the sign, which, perhaps not surprisingly, remained unchanged until February, 1992. Unfortunately, Respondent's encounter with Mr. Laforte was no happier than his encounter eight months earlier with Ms. Miller. Respondent is an intelligent, sensitive, honest, and hard-working older gentleman operating a restaurant at which business has been better in previous years. Respondent is also impulsive, stubborn, cranky, and quick to demand special treatment. There is no doubt that the patience of most food- service inspectors would be quickly exhausted when confronted by Respondent's in-your-face style of interpersonal relations, constant carping about all but the most obvious of deficiencies noted in routine inspections, repeated insistence upon nonexistent constitutional rights to protect his property (i.e., the restaurant) from the trespasses (i.e., inspections) of government employees, frequent charges of selective enforcement, and willingness to go over the head of the inspector at what he perceived as the slightest provocation (e.g., an inspection). Omitting the subordinate details of escalating unpleasantries between Mr. Laforte and Respondent, the key event is that on August 30, 1991, Mr. Laforte and his immediate supervisor, Kendall Burkette, visited the restaurant. As a courtesy, they requested the food-service inspector from ORP to accompany them. Her name is Jo Ellen Beekman-Dean. Responsible for routine food-service inspections of Respondent's restaurant, Ms. Beekman-Dean had, and continues to have, a very good relationship with Respondent. Among other things, Respondent had allowed her to make a food-service inspection of his restaurant on July 8, 1991, although she had not made an appointment first. As the trio entered the restaurant at about 1:30 p.m., they asked a waitperson or cashier who was in charge. They were introduced to John Bauer, who was a cook. They asked to see the restaurant license, which was not posted at the cashier's station. Mr. Bauer led them to the storeroom, but they could not find the restaurant license that DBR had issued. In fact, Respondent had closed his restaurant due to declining business earlier in the year and had not paid to renew his license at the normal time in April. However, he had paid the normal fee and late charges on August 6, 1991, about three weeks prior to the August 30 inspection. Moreover, Mr. Laforte had handled the paperwork on Respondent's late renewal. Mr. Laforte had issued Respondent a receipt, which serves as a temporary license. However, Respondent did not understand this fact and had not posted the receipt/temporary license pending the arrival of the permanent license, which had not yet been sent from Tallahassee. The alleged violations set forth in DBR Case No. 04-92-84 arose as a result of the August 30 inspection conducted by Ms. Beekman-Dean, as well as subsequent activities occurring on September 9 and 10, 1991. Ms. Beekman-Dean decided to conduct a food-service inspection on August 30 because she was already at the premises. At the time, she was required to conduct four such inspections annually; if possible, quarterly. She had conducted an inspection on July 8, reinspected certain deficiencies on July 22, and reinspected on August 12 those deficiencies not remedied by July 22. The deficiencies were cleared up by then and Ms. Beekman-Dean determined that the restaurant was in compliance. As Ms. Beekman-Dean conducted her inspection, she encountered Art, Jr., who had evidently not been in the restaurant when Ms. Beekman-Dean, Mr. Laforte, and Mr. Burkette had first arrived. Saying that he was going to call his father about the inspection, Art, Jr. returned to tell her that she could conduct her inspection. During the inspection, Ms. Beekman-Dean discovered that the walk-in cooler was not working and the temperature had reached 60-67 degrees. She contacted her supervisor to obtain approval to enter a Stop Sale Order. Getting the supervisor's approval, Ms. Beekman-Dean then informed Art, Jr. of the malfunction. He had not known of the problem and promptly fixed it by flipping a reset switch. As Ms. Beekman-Dean and Mr. Laforte were sitting at a table while Ms. Beekman-Dean finished her paperwork (Mr. Burkette having already left), Respondent returned to the restaurant. Seeing Mr. Laforte, Respondent, still irritated over his feeling that Mr. Laforte had not dealt with him fairly over the signage question, pointed at him and said, "Get out." As Mr. Laforte left, Ms. Beekman-Dean prepared also to depart, but Respondent assured her that she could remain. Finishing her Inspection Report, Ms. Beekman-Dean mentioned the problem with the walk-in cooler. After confirming with his son the existence of the problem, Respondent willingly agreed to destroy the food. For this reason, the most serious deficiency uncovered by Ms. Beekman-Dean's August 30 inspection is not alleged as a deficiency in the Notice to Show Cause in DBR Case No. 04- 92-84 or, thus, DOAH Case No. 91-7103. The only other major deficiency noted on the August 30 Inspection Report, which is Petitioner Exhibit 7, is the failure of the operator to keep the rear (or side) door shut or repair the screen door and then leave it shut. An additional 13 items were noted as minor deficiencies. The deficiencies were: failing to label bulk containers; storing lemons in a sealed, hanging container in the ice machine; storing toxic items improperly; failing to clean the slicer, reach-in cooler, dry-storage shelves, mixer, outside of the ice machine, floor fan, and cooler gaskets; failing to refinish or replace rusted shelves in the reach-in freezer; failing to provide soap at a hand sink; failing to bag all garbage before placing in the dumpster, failing to clean the dumpster, and failing to keep the dumpster lid closed; failing to clean area around the dumpster; failing to clean floors, failing to ensure all surfaces are smooth and easily cleanable, and failing to install molding between the floor and wall to facilitate cleanliness; failing to repair holes in the walls and ensure that that the walls and ceiling in food prep room meet; failing to provide shields on all lights in kitchen, prep areas, coolers, and freezers; and failing to post a DBR restaurant license. As is the typical practice, Ms. Beekman-Dean gave Respondent a period of time to correct the deficiencies. In this case, she wrote on the form that a reinspection would take place on September 9, 1991. Ms. Beekman-Dean handed Respondent a copy of the Inspection Report, which prominently displayed the reinspection date. Respondent promptly contacted Petitioner's offices in Tallahassee to complain about selective enforcement and bias. When Ms. Beekman-Dean returned around lunchtime to reinspect the premises on September 9, 1991, Respondent said he was busy preparing food, refused her access to the restaurant, and invited her to return later in the day. She declined and warned him that she would have to report this. He acknowledged her warning and said that she would have to do what duty required. Some follow-up activities took place, first in connection with an informal conference and later in connection with prehearing preparation in connection with the above-styled cases. The material allegations end as of September 9, when Respondent refused Ms. Beekman-Dean to conduct the reinspection as previously scheduled. It is sufficient to note that, based on inspections that Respondent permitted on October 2, 1991, and March 6, 1992, he had not repaired the screen door by the September 9 reinspection date and a number of the minor deficiencies remained uncorrected as of that time as well.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of violating the above-cited statutory and regulatory provisions, imposing an administrative fine of $1000, and requiring Respondent to attend a Hospitality Education Program, at his expense, within six months of the date of the final order. ENTERED this 18th day of June, 1992, in Tallahassee, Florida. ROBERT E. MEALE 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 18th day of June, 1992.
Findings Of Fact The Respondent is responsible for administering Florida laws respecting the sale of alcoholic beverages. Sales of alcoholic beverages are regulated in Florida through a licensing system. "Liquor" licenses authorize licensees to sell alcoholic beverages without regard to alcoholic content. Various categories of liquor licenses are issued by the Respondent. The two categories most pertinent to this proceeding are "quota" licenses and "restaurant" licenses. Quota licenses are available on the basis of one license per 2,500 in population for each county which permits such licenses (Some counties have different quotas established by Special Acts of the Legislature.). The term "quota" is derived from the fact that the issuing formula is based upon the decennial Federal census, and thus only a finite number of licenses are available. Section 561.20(1), Florida Statutes. Restaurant licenses are an exception to the quota scheme and are not limited in number. They are available to "any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages." Section 561.20(2)(a)3, Florida Statutes. There are approximately 3,000 outstanding quota licenses, and 2,000 outstanding restaurant licenses. Depending upon the specific terms of the license, quota license holders are authorized to sell liquor for off premises consumption. These are called "package" sales. Prior to the adoption of the amendment to Rule 7A-3.16, restaurant licenses issued after January 1, 1958, did not authorize package sales. Prior to the adoption of the amendment, the rule Provided: No licensee holding a special restaurant license issued after January 1, 1958, may sell alcoholic beverages for off premises consumption other than as may be Provided by special act. The prefix "SRX" shall be made a part of the license numbers of all special restaurant licenses issued after January 1, 1958, distinguishing them in identity from other licenses. The amendment which is the subject of this proceeding deleted the underlined portion of the rule. The effect of the amendment is to permit holders of restaurant licenses to make package sales so long as other criteria pertaining to the licenses are met. The Petitioner is a publicly owned Florida corporation which does business in Florida and five other states. Petitioner is engaged in the business of selling alcoholic beverages for on and off premises consumption. The majority of its business activities are in Florida, and Florida package sales represent more than half of the Petitioner's total business volume nationwide. The Petitioner holds forty-tow quota licenses issued by the Respondent. Quota licenses are transferable; and since they are limited in number, their market value frequently far exceeds the fees imposed by the Respondent. The market value of quota licenses held by the Petitioner in Dade and Broward Counties, Florida, is nearly two million dollars. The Petitioner's business is a very competitive one. When the petitioner is considering whether to invest in a new location, numerous factors are considered. These include demographics, traffic patterns, population, zoning, and the number and location of competitors. The number and location of competitors is the single most important factor. Since package sales constitute a majority of the Petitioner's business volume, the proximity of competitors who offer package sales is paramount. Because under the Respondent's rules restaurant licensees have been prohibited from making package sales, the location of restaurant licensees has not been of concern to the petitioner in determining where to locate. The Petitioner may have made different judgments about numerous of its locations if nearby restaurants were able to make package sales in competition with the Petitioner. No specific evidence was introduced from which it could be determined which if any of the Petitioner's locations would not have been opened, or which will suffer a competitive disadvantage as a result of the amendment to Rule 7A-3.16. Indeed, implementation of the amendment to the rule has been stayed by the courts, and no determination can be made as to which restaurant licensees might avail themselves of the opportunity of making package sales, and to what extent. The market value of the Petitioner's quota licenses and competition for the Petitioner's business outlets are affected by licensing considerations apart from whether restaurant licensees will be permitted to make package sales. As a result of the 1980 Federal census, numerous new quota licenses will be available in Dade and Broward Counties. These additional licenses, when issued, could have a substantial impact upon the value of the Petitioner's licenses, and the competitive advantages of the Petitioner's business locations. The Intervenor is the holder of a restaurant license issued by the Respondent. The amendment to Rule 7A-3.16 would permit the Intervenor to make package sales of alcoholic beverages. The economic impact statement adopted by the Respondent in support of its amendment to Rule 7A-3.16 provides in pertinent part as fellows: This rule will likely stimulate competition in the market place by permitting more outlets for off premises sale of alcoholic beverages. There would be no appreciable impact upon the state's revenue, but should there be any impact it is estimated that more liquor would be sold rather than less. Competition upon existing package stores would be in proportion to the proximity and competitive power of special restaurants permitted to sell by the package. In developing this statement, various officials within the Respondent met on several occasions to discuss the potential economic impact of the amendment to the rule, and representatives of the regulated industry were consulted. Hearings were conducted by the Respondent before the amendment was adopted. Representatives of the industry, including a representative of the Petitioner, appeared at hearings and stated their positions with respect to the amendment. The economic impact statement accurately portrays the potential economic impact of the amendment. It does not appear that the effect of competition upon existing package stores can be estimated with any precision. Indeed, the Petitioner did not present evidence and could not present evidence with respect to the precise impact that the amendment would have upon any of its locations.
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: D.H.S. Developers, Inc. (hereinafter designated as D.H.S.) was the owner of the World Inn, a motel located in Lake Beuna Vista, Florida. Petitioner, Jarman A. Smith, was initially employed by World Inn before it opened as director of sales. The restaurant located within the World Inn was having problems with respect to the quality of food and service. D.H.S. then asked petitioner Smith to begin operation of the restaurant and of the bar and lounge. In June of 1973, petitioner began operation of the restaurant under an oral agreement with D.H.S. This agreement was intended to be reduced to writing, but a written contract never materialized. Pursuant to the oral agreement, petitioner was to operate and manage the restaurant facility, which occupied 5,000 to 6,000 square feet of the World Inn, and to remit on a monthly basis to World Inn a certain percentage (between 10 percent and 12 1/2 percent) of the gross sales from the dining room and gift shop. D.H.S. owned the heavy equipment and the fixtures located in the restaurant and was responsible for repairing and maintaining the premises in good condition. D.H.S. initially owned the food items and expendables, such as plates, utensils, table accessories, etc. When petitioner began operation of the restaurant, he paid a security deposit for these items and was responsible for maintaining them at the level necessary for operation of the facility. The petitioner had the responsibility to keep and maintain insurance on the premises, to pay the restaurant employees salaries, taxes and insurance and to hire and fire employees. Petitioner testified that the owners of D.H.S. came into the restaurant facility on a daily basis and sometimes gave instructions to the restaurant employees. Petitioner obtained an occupational license for the restaurant in his name and maintained a business bank account for the operation of the restaurant. Petitioner also managed and operated the bar and lounge during the same period of time. Under this arrangement, which was also pursuant to an oral agreement, all sale receipts were turned over to D.H.S., from which D.H.S. paid all salaries, expenses and bills and kept 12 1/2 percent. Any balance remaining was given to petitioner. D.H.S. was responsible for the operational expenses of the bar and lounge, for obtaining all business and occupational licenses and for repairing and maintaining the premises in good condition. Guests of the motel could charge their meals and drinks to their room. When a meal was charged, D.H.S. would pay the petitioner the amount charged, less a certain percentage for handling. When drinks were charged, that money was kept in the D.H.S. account. In November of 1975, when the restaurant was doing well financially, D.H.S. informed petitioner that it was going to take back the operation of the restaurant. Within a week, petitioner was required to turn everything over to D.H.S. D.H.S. paid petitioner only for the value of the food and expendable inventories left on the premises. The respondent Department of Revenue determined that a four percent sales tax was due on the ten percent monthly payment made by petitioner to World Inn based on the gross sales from the restaurant. Respondent thus issued assessments to both World Inn and petitioner. The assessment against World Inn was stayed pending the outcome of these proceedings.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's assessment of a tax based upon the petitioner's monthly payment to World Inn of a percentage of gross receipts from the restaurant facility be rescinded and set aside. Respectfully submitted and entered this 6th day of March, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Benton, Esquire Smith, Young and Blue, P.A. Post Office Box 1833 Tallahassee, Florida 32302 Joseph C. Mellichamp Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 William H. Muntzing, Esquire Post Office Box 1568 Winter Park, Florida 32789
The Issue Whether Respondent's pronouncement that special restaurant licenses issued prior to January 1, 1958, that have not remained in "continuous operation" are thereby (as a result of their lack of "continuous operation") rendered invalid pursuant to Section 561.20(5), Florida Statutes, and therefore not subject to delinquent renewal pursuant to Section 561.27, Florida Statutes (Challenged Statement) is a rule that violates Section 120.54(1)(a), Florida Statutes, as alleged by Petitioners.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.2 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.3 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.4 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." As applicants applying to delinquently renew their SR licenses (which were both originally issued in 1956), Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, B & K Restaurant, Inc., d/b/a Nipper's Restaurant (Respondent) held Alcoholic Beverage, Special Restaurant License No. 60-02856 SRX (SRX License). Respondent's SRX License was issued on July 7, 1988. Respondent's SRX License requires Respondent to maintain, among other things, 2,500 square feet of serving area, a minimum of 150 seats for seating, and 51 percent of gross revenue from food and non-alcoholic beverages sales. Respondent has a president, Arthur Barakos, who is a 51 percent shareholder. On September 30, 1996, a special agent of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner) performed an SRX License inspection of Respondent. Petitioner's agent requested Barakos to produce, among other things, Respondent's last three months of alcohol and food records, z-tapes,2 guest receipts, and ledger books, if any. He was unable to produce the requested records, indicating that his accountant had possession of them. Petitioner's agent reminded Barakos that, as a requirement of the SRX License, the records must be maintained on Respondent's premises. She informed him that she would return at a later date to review the requested records. On October 8, 1996, Petitioner's agent returned to Respondent to perform the SRX License inspection. She requested to review the same records. As before, Barakos informed Petitioner's agent that he did not have the requested records. Barakos indicated to Petitioner's agent that the only records that he maintained were guest checks which had credit card charges; he did not maintain other guest checks or z-tapes. Further, he indicated that his procedure was to copy the information from z-tapes and guest receipts on separate sheets of paper, referred to as sales sheets, and to provide his accountant with the sales sheets. Respondent's accountant performs a "compilation" on a monthly basis of monthly sales from information provided to her by Barakos. Monthly, the accountant meets with Barakos and obtains from him sales sheets showing daily receipts and total sales per day for the entire month. Also, Barakos provides the accountant with bank statements, purchase orders, stubs from guest checks with credit card charges and, occasionally, z-tapes. At times, the accountant obtains some of the information over the telephone from Barakos. She inputs the information from the sales sheets on computer. From the information provided, the accountant totals the daily receipts and computes sales tax. Afterwards, she returns to Barakos all of the items that he provided to her. The accountant is unable to verify or certify the accuracy of the monthly sales records. At the inspection, Barakos did provide Petitioner's agent with sales sheets. However, the sales sheets failed to differentiate between food and alcoholic beverages. Without the requested records which are the original documentation, no verification of food and alcohol revenue could be made by Petitioner's agent. Therefore, she was unable to determine whether 51 percent of Respondent's gross revenue was from food and non-alcoholic beverages sales. Further, regarding maintaining past records, Barakos had maintained his almost nine years of records, including z- tapes, in boxes located in a shed. He discarded the boxes of records after they got wet and became moldy, not believing that he would ever be audited by Petitioner. Barakos discarded the records without improper motive. Because he had discarded the records, Barakos was unable to produce them to Petitioner's agent. At no time material hereto did Petitioner receive from Respondent a request to maintain its records at a location other than on Respondent's premises. Additionally, at the inspection, Petitioner's agent inspected Respondent's seating. She found Respondent not to be in compliance with the required minimum seating of 150 seats, having only 125 seats. Barakos indicated that he would add the additional seats without delay to bring Respondent into compliance. Further, Petitioner's agent inspected Respondent's square footage. She found Respondent to be in compliance with the minimum square footage requirement of 2,500 square feet.
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: Imposing a $1,000 civil penalty against B & K Restaurant, Inc., d/b/a Nipper's Restaurant; and Revoking the Alcoholic Beverage Special Restaurant License of B & K Restaurant, Inc., d/b/a Nipper's Restaurant, i.e., License No. 60-02856 SRX without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years, with the revocation being suspended under terms and conditions that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco deems appropriate. DONE AND ENTERED this 16th day of June, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1997.
