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 The issue presented is whether Respondent discriminated against Petitioner on the basis of his religion and national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made concerning the merits of the allegations of discrimination. Petitioner did not appear and did not submit any evidence to support any findings of fact. Petitioner received adequate notice of the formal hearing. The ALJ issued a Notice of Hearing on July 19, 2005, notifying the parties of the time and place of the hearing conducted on August 12, 2005. DOAH mailed the Notice of Hearing, by United States Postal Service (mailed), to Petitioner at the address of record listed in the DOAH file as 10914 Mystic Circle, Apartment 204, Orlando, Florida 32836 (the address of record). The Notice of Hearing was properly addressed, stamped, and mailed. The U.S. Postal Service did not return the Notice of Hearing as undeliverable. On July 5 and 19, 2005, DOAH mailed an Initial Order and Order of Pre-Hearing Instructions (Pre-hearing Order) to Petitioner. The U.S. Postal Service did not return either order as undeliverable. The address of record in the DOAH filed is the same address that Petitioner listed in the Charge of Discrimination and Petition for Relief filed with the Commission. The Commission addressed the "Notice of Determination: No Cause" to the same address as the address of record in the DOAH file. Petitioner was employed by Respondent on the date of the hearing. A representative of the personnel department for Respondent testified at the hearing (the witness). Petitioner had requested and been granted annual leave for the day of the hearing and the day before the hearing. On the date of hearing, Petitioner resided at the address of record. At the request of the ALJ, the witness telephoned Petitioner from the hearing room at the telephone number listed in Respondent's personnel file. The witness is the Director of Personnel for Respondent, knows Petitioner personally, and has a longstanding employment relationship with Petitioner. The witness spoke directly to Petitioner. English is not the native language for Petitioner, but the witness had no difficulty communicating with Petitioner. The witness informed Petitioner that the ALJ would recess the hearing and wait for Petitioner to appear at the hearing. Petitioner refused to avail himself of the opportunity to appear at the hearing. Petitioner claimed he was not prepared for the hearing and had not had adequate time to prepare for the hearing. Petitioner had adequate time to prepare for the hearing. The DOAH file shows the Commission referred this matter to DOAH by cover letter dated June 30, 2005. DOAH received the referral on July 5, 2005, and issued an Initial Order on the same date. On July 19, 2005, DOAH mailed the Pre- hearing Order and Notice of Hearing to Petitioner. When Petitioner received the Initial Order shortly after July 5, 2005, Petitioner knew, or should have known, of the need to begin preparing for the formal hearing. The Initial Order requires the parties, inter alia, to estimate how long the formal hearing will take for both parties to present their evidence. Petitioner knew, or should have known, of his right to discovery and the need to complete discovery no later than five days before the date of the hearing. The Summary of Procedures attached to the Initial Order provides, in relevant part: Discovery may be undertaken in the manner provided in the Florida Rules of Civil Procedure and should be initiated immediately if desired. Necessary subpoenas and Orders may be obtained through the assigned Judge. Discovery must be completed 5 days before the date of the final hearing unless an extension of time for good cause is granted. Petitioner did not respond to the Initial Order. Respondent filed a unilateral response to the Initial Order with DOAH on July 12, 2005. On the same date, Respondent served Petitioner with a copy of the unilateral response. When Petitioner received the Prehearing Order shortly after July 19, 2005, Petitioner knew, or should have known, of the need to prepare for the formal hearing. The Pre-hearing Order, dated July 19, 2005, provides, in relevant part: No later than 15 days prior to the final hearing Petitioner and Respondent shall provide each other with a list of the names and addresses of those persons which that party intends to call as witnesses during the final hearing in this cause and shall provide to each other copies of the documents which that party intends to offer as exhibits during the final hearing. Failure to do so may result in the exclusion at the final hearing of witnesses or exhibits not previously disclosed. . . . No later than 12 days prior to the final hearing in this cause, the parties shall confer with each other to determine whether this cause can be amicably resolved. Petitioner declined to participate in the discovery described in the Pre-hearing Order. Respondent unilaterally filed its witness list with DOAH on August 1, 2005. On the same date, Respondent served Petitioner with a copy of the witness list. On August 10, 2005, at 2:45 p.m., Petitioner filed with DOAH, by facsimile, a hand-written request for continuance (motion for continuance). The motion for continuance is written in English and signed by Petitioner; as were the Petition for Relief and Charge of Discrimination. The motion requests a continuance, "[S]o I can get a lawyer, witnesses, and prepare myself for hearing." The motion for hearing does not include a certificate of service or other indication that Petitioner served Respondent with a copy of the motion for continuance. On its face, the motion is an ex-parte communication. On August 10, 2005, an administrative secretary of DOAH telephoned counsel for Respondent to determine whether counsel had received a copy of the motion and whether Respondent objected to the motion for continuance. Counsel had not received the motion. Upon hearing the motion read to counsel, counsel objected to the motion. At the instruction of the ALJ, the administrative secretary telephoned Petitioner and spoke to a person who identified himself as the son of Petitioner. The administrative secretary advised him that the ALJ had denied the motion for continuance and that Petitioner should attend the formal hearing on August 12, 2005. On August 10, 2005, the ALJ also issued a written Order Denying Continuance that memorialized the ore tenus denial of the motion. DOAH mailed the written order to Petitioner on the same date to the address of record. The Order was properly addressed, stamped, and mailed. Insufficient time to prepare for the formal hearing arguably is good cause for a continuance. However, Petitioner knew, or should have known, that a motion for continuance for good cause must be filed no later than five days before the formal hearing. The Initial Order received by Petitioner shortly after July 5, 2005, provides, in relevant part: 4. Rule 28-106.210, Florida Administrative Code, provides that requests for continuances must be made at least 5 days prior to the date of the hearing, except in cases of extreme emergency, and will be granted only by Order of the Judge for good cause shown. The applicable rule arguably required Petitioner to file the motion for continuance based on good cause no later than August 8, 2005, because August 7, 2005, was a Sunday.1 However, Petitioner did not file the motion for continuance until August 10, 2005. The applicable rule authorized the ALJ to grant a motion for continuance filed less than five days before the formal hearing, only on grounds that satisfy the test of extreme emergency. Assuming arguendo that Petitioner had insufficient time to prepare for the formal hearing, that ground is not an extreme emergency. Petitioner knew, or should have known, long before August 10, 2005, that he would be unable to prepare for the formal hearing in the 24 days between July 19 and August 12, 2005. Respondent had adequate time to prepare for the formal hearing. Respondent produced seven witnesses at the formal hearing, including four current employees and three former employees. Respondent also arranged for the attendance of a certified interpreter at the hearing. Respondent prepared 24 exhibits for admission into evidence. The Commission arranged for a court reporter to record the hearing. The ALJ traveled from Tallahassee to Orlando after instructing Petitioner, through the ALJ's administrative secretary, to attend the formal hearing. If the ALJ were to have exercised discretion by granting a continuance requested less than five days before the hearing in the absence of an extreme emergency, such an exercise of discretion would have been inconsistent with a valid existing rule. A reviewing court would have been statutorily required to remand the case to DOAH for further proceedings consistent with the rule. § 120.68(7)(e)2., Fla. Stat. (2005).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of September, 2005, 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 1st day of September, 2005.
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Rule 7A-3.15(1), Florida Administrative Code, and that its special license be suspended for three days. DONE and RECOMMENDED this 12th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of April, 1983. COPIES FURNISHED: James M. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Grapevine Restaurant No. One, Inc. d/b/a Grapevine Restaurant 4320 14th Street West Bradenton, Florida Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent failed to derive at least 51 percent of its gross revenues from the sale of food and nonalcoholic beverages, in violation of Sections 561.20(2)(a)4 and 561.29(1)(a), Florida Statutes, and failed to maintain its business records in English, in violation of Section 561.29(1)(e), Florida Statutes, and Rule 61A-3.014(3), Florida Administrative Code. If so, an additional issue is what penalty the Division of Alcoholic Beverages and Tobacco should impose.
Findings Of Fact At all material times, Respondent has held license number 16-15136, series 4-COP SRX. Pursuant to this license, Respondent operated a Brazilian restaurant known as Flavor of Brazil at 4140 North Federal Highway in Fort Lauderdale. On July 20, 1999, a special agent of Petitioner inspected the restaurant to determine, among other things, the percentage of Respondent’s gross receipts derived from food and nonalcoholic beverages. In response to a request, the agent received large numbers of original customer tickets, which record the food and beverage items ordered by each customer. In response to a request to visit the agent at her office and provide a statement, the president of Respondent hand wrote a statement explaining: “Records were wiritten [sic] in Portuguese. Basically because most of our staff speak and write Portuguese (being that they are Brazilians). But this problem has already been corrected.” The customer tickets are written in a language other than English, presumably Portuguese. For a person unfamiliar with the language in which the customer tickets are written, it is impossible to determine from these customer tickets which items are alcoholic beverages and which items are food and nonalcoholic beverages. A 4COP-SRX Special Restaurant License form signed on January 26, 1999, by Respondent advises that the license requires that at least 51 percent of the gross revenues of the licensee must be derived from the sale of food and nonalcoholic beverages. The form warns: “Since the burden is on the holder of the special restaurant license to demonstrate compliance with the requirements for the license, the records required to be kept shall be legible, clear and in the English language.”
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of violating Rule 61A-3.0141(3)(a)3 and revoking Respondent’s license without prejudice to Respondent's reapplying for another CRX special license at any time after 90 days following the effective date of the final order. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 December, 2000. COPIES FURNISHED: Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-3227 Kenneth W. Gieseking Assistant General Counsel Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Flavor of Brazil 4768 North Citation Drive, No. 106 Delray Beach, Florida 33445
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.
The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2014.
The Issue Whether a sign which has been standing without a current permit as required by Section 479.07(4), Florida Statutes, is eligible for a current permit upon payment of the delinquent fees.
Findings Of Fact The following described signs owned by Respondent have no currant permit tags: Highway - U.S. 1 Location: 7.1 miles north of State Road 100 Copy - "Shrine" Highway - A1A Location - 6.2 miles north of Florida 100 Copy - "Old Jail" Highway - A1A Location - 6.3 miles north of Florida 100 Copy - "Eddie's" or "Eddy's" Highway - A1A Location - 13.3 miles north of Florida 100 Copy - "Ocean Groves" Highway - A1A Location - 13.7 miles north of Florida 100 Copy - "Old Jail" Highway - A1A Location - 13.8 miles north of Florida 100 Copy - "Alligator Farm" Highway - U.S. 1 Location - 22.20 miles north of State Road 100 Copy - "Casa Marina" The subject signs are owned and were erected by the Respondent and there were no fees paid under the requirements of Chapter 479, Florida Statutes, insofar as paying fees and obtaining current permits.
