The Issue By Notice to Show Cause dated October 24, 1977, the Division of Alcoholic Beverages, Petitioner, seeks to revoke suspend, or otherwise discipline the alcoholic beverage license of NAS, Inc. t/a The Down Beat, Respondent. As grounds therefor it is alleged that on or about August 25, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course meals had been discontinued; failed to maintain sufficient inventory to serve full course meals; failed to maintain sufficient dining room equipment and employees for the preparation, cooking and service of full course meals; and failed to maintain necessary china and tableware to handle the minimum seating capacity required, all in violation of Rule 3.15 F.A.C. Four witnesses were called by Petitioner, one witness testified in behalf of Respondent, and three exhibits were admitted into evidence.
Findings Of Fact About 10:00 A.M. on August 25, 1977, three beverage agents entered The Down Beat and conducted a routine inspection after identifying themselves as beverage agents. Respondent holds special restaurant beverage license No. 16-692-SR Series 4 COP. At the time of the inspection the bar was open and alcoholic beverages were being dispensed. No personnel were available on the premises to prepare meals and the kitchen was reported to be closed at the time of the inspection. A count of the equipment in the kitchen disclosed 19 knives, 19 forks and 9 spoons clean and ready to be used. Upon inquiry one of the corporate officers produced a paper bag from under the sink which contained 51 spoons, 91 forks, and 161 knives. An additional package of ten plastic forks and an open package of 8 plastic spoons were produced. 163 dinner plates, 130 salad plates, 50 plastic cups, and 60 plastic glasses were counted. The two freezers in the kitchen contained frozen meats and fish. Other food items consisted of condiments, flour, one head of lettuce, sugar, bread, butter, cheese, celery, sausages, and potato mix. Respondent's witness testified that the cook was out shopping at the time of the inspection. The persons identified by name as cook and purchasing agent to the inspectors were not listed on the payroll for the previous month (Exhibit 1). Profit and Loss statement (Exhibit 1) for the month of July, 1977 shows only 4 female employees, each paid $60 per week, food sales of $5,022.50, food purchases of $1,235.47 including $429.30 to Coca Cola and Canada Dry bottling companies, alcoholic beverage sales of $3,086.65 and alcoholic beverage purchases of $3,428.06. Following completion of Respondent's testimony the administrative record of Respondent was admitted into evidence as Exhibit 3. This shows violations of a nature similar to those here under consideration occurred on 10/29/73 and 8/24/74. The latter violations were proven at a hearing held September 27, 1977.
The Issue Whether Petitioner is entitled to a fixed payment for moving expenses as a relocation benefit.
Findings Of Fact At all times pertinent to this proceeding Petitioner, Food Spot #29, was a displaced business eligible for a commercial or self-move, and actual reasonable re-establishment expenses. Food Spot #29 was located in Broward County at 8350 Griffin Road. Food Spot #29 was owned by the following persons and entities in the following percentages: (a) Mindy Harris-Wilner--12 percent, (b) Stuart Harris-- 12 percent, (c) Andrea Shosfy--12 percent, (d) Larry J. Harris--12 percent, (e) EH Trust--26 percent, and (f) DH Trust--26 percent. Food Spot #39 and Food Spot #48 are located in Broward County and are owned by the same persons and entities in the same percentages as Food Spot #29. These businesses are not being acquired by Respondent and are similar to Food Spot #29. Food Spot #34 was located in Broward County and was condemned and taken by the Department of Transportation three or four years prior to final hearing. It was not in existence at the time Food Spot #29 was closed. Food Spot #63 is located in Broward County and was opened several months after Food Spot #29 was closed. A Food Spot Store located on University Drive in Plantation was also condemned and taken by the Department of Transportation. The store was already taken at the time that Food Spot #29 was closed. In determining whether a displaced business is part of a commercial enterprise having more than three other entities which are not being acquired by the Respondent, Respondent does not include businesses which were not in existence at the time of the displacement of the business requesting the fixed payment. The parties stipulated that the amount of the fixed payment at issue is $20,000. The officers and directors of Food Spot #29 were Ernest E. Harris, Larry J. Harris, Dolores L. Harris, Elliot J. Deutsch and Bruce S. Wilner. The officers and directors of Food Spot #55, which is an active corporation, are Ernest Harris, Larry J. Harris, Delores Harris, and Bruce S. Wilner. The officer and directors of Food Spot #56, which is an active corporation, are Ernest Harris, Larry J. Harris, Dolores Harris, and Bruce S. Wilner. The officers and directors of Food Spot #60, which is an active corporation, are Ernest Harris, Delores A. Harris, Bruce S. Wilner, and Larry J. Harris. The officers and directors of Food Spot #62, which is an active corporation, are Ernest Harris, Larry J. Harris, Dolores Harris, and Bruce S. Wilner. No evidence was presented to establish the ownership of Food Spot #s 55, 56, 60, and 62.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Food Spot #29 $20,000 as a fixed payment for moving expenses. DONE AND ENTERED this 9th day of February, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4474 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraphs 3-4: Rejected as constituting conclusions of law. Paragraph 5: Rejected as irrelevant as to what the name may imply. The standard which must be met is actual ownership, whether the business is being acquired by Respondent, and whether the business activities are similar. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as subordinate to the facts actually found. Paragraph 8: Rejected as irrelevant. Food Spot #29 admitted that the ownership of #29, #39 and #48 were the same. Paragraph 9: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Charles G. Gardner Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 James R. Clodfelter Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center 7000 West Palmetto Park Road Suite 503 Boca Raton Florida 33433 Ben G. Watts, Secretary Attn: Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact In December, 1982, DABT issued an alcoholic beverage license (Lic. no. 15-1163, Series 4-COP SRX) under its SRX classification to respondent to operate a restaurant with liquor sales on the premises. The restaurant was known as "Thee Doll House Beach," at 199 East Cocoa Beach Causeway, in Cocoa Beach, Florida. A requirement of the license was that revenue from sales of alcoholic beverages equal or exceed 51 percent of gross sales. Respondent opened "Thee Doll House Beach" for business in January, 1983. The business operated as a buffet restaurant, with a fixed-price, "all- you-can-eat" menu. Meals consisted of a hot entree, chosen from baked ham, roast beef and turkey; a selection of four or five hot vegetables; a large salad bar; two soups; and a desert tray, with pies, pastries and cakes. The business also offered alcoholic beverages for sale in the restaurant and at a bar. A "Las Vegas-style" show was presented nightly at eight o'clock, although the restaurant opened at noon. The first month's (January 1983) sales of food only reached 40.6 percent of gross sales, and subsequent efforts of the respondent to reach 51 percent were never successful. The initial price of a buffet meal was $4.95 per person, which attracted a sizeable number of patrons, many of them senior citizens. However, the respondent found that due to the extensive food menu and the cost of preparation and service, it was losing money on each meal sold. So it increased its meal price to $5.95, which resulted in a drastic drop in business, apparently due to the inability of senior citizens to pay the higher price. It was in this particular group that the most noticeable decrease in attendance occurred. The respondent took various steps to increase its food sales. "Early- bird" specials were introduced at a lower price; extensive newspaper, radio and television advertising was utilized to promote the buffet. Nevertheless, at the end of 1983, the business had shown an overall food sales of only 31 percent. Monthly percentage figures are as follows: DATE FOOD/NON-ALCOHOLIC BEVERAGE PERCENTAGE ALCOHOLIC PERCENTAGE January 1983 40.5 59.5 February 1983 27.1 72.9 March 1983 37.3 62.7 April 1983 33.5 66.5 May 1983 31.9 68.1 June 1983 29.1 70.9 July 1983 27.5 72.5 August 1983 23.9 76.1 September 1983 24.1 75.9 October 1983 23.4 76.6 November 1983 23.6 76.4 December 1983 23.3 76.7 The respondent's problems were compounded by the fact that it was operating in a difficult, if not depressed market, where financial conditions had limited the discretionary income available to restaurant-going consumers. Other restaurants in the area were having to cut back operations or terminate business altogether. During the year in question, the respondent held itself out to be a restaurant, not a lounge, and its primary emphasis in advertising, in its internal business operation and in its physical layout, emphasized food sales as opposed to liquor sales. During the time period in question the price of a meal at Thee Doll House Beach was significantly below its fair market value. The respondent attempted to increase its food sales by lowering prices, which, in turn, decreased the percentage of gross food sales. According to the evidence, a reasonable price for the menu offered, based on a comparison with other restaurants in Central Florida, would have been $8-$10. Using those price figures, the percentage of food sales to gross revenues at Thee Doll House Beach would have exceeded 60 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's beverage license be revoked but that such action be vacated if respondent surrenders its license for cancellation within 10 days of entry of DABT's final order. DONE and ORDERED this 15th day of August, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 15th day of August, 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire 1212 East Ridgewood Street Orlando, Florida 32803 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
