The Issue Whether Respondent committed the violations alleged in the Administrative Action? If so, what penalty should be imposed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Licensed Premises La Catracha Fish Market and Restaurant (hereinafter referred to as the "Restaurant") is an eatery located at 1255 West 46th Street, Hialeah, Florida, that sells beer and wine pursuant to alcoholic beverage license number 23-15943, series 2-COP. The Restaurant offers both counter and table service. The counter where patrons are served (hereinafter referred to as the "Counter") is situated toward the front of the Restaurant, to the right of the entrance. Ownership and Operation of the Restaurant Respondent is now, and has been at all times material to the instant case, the owner of the Restaurant and the holder of the license that authorizes the sale of alcoholic beverages on the premises. Respondent and his wife, Juanita, are now, and have been at all times material to the instant case, actively involved in the operation of the Restaurant. They maintain a regular presence on the premises. Among other things, Juanita mans the cash register behind the Counter. From February of 1994, until the end of July of that year, when the Moyas were on an extended vacation, Respondent had "other people" run the business. When they returned from their vacation, the Moyas discovered that the Restaurant had a "new clientele." The Undercover Operation Elio Oliva and Antonio Llaneras are detectives with the Hialeah Police Department. In August and September of 1994, they participated in an undercover investigation at the Restaurant. The investigation was initiated after the Hialeah Police Department had received complaints that illegal drug and gambling activities were taking place on the premises. The August 31, 1994, Visit The undercover operation began on August 31, 1994. On that date, Oliva and Llaneras, dressed in civilian attire, went to the Restaurant to see if they would be able to make a controlled buy of narcotics. Upon entering the Restaurant, they walked over to the Counter and sat down. From their vantage point at the Counter, Oliva and Llaneras observed a number of patrons walk up to another patron, Antonio Rosales, 1/ hand him money and receive in return a clear plastic bag containing a white powdery substance. After approximately 20 minutes, Oliva approached Rosales and asked him if he had any cocaine to sell. Rosales responded in the negative, but directed Oliva to another patron in the Restaurant, from whom Oliva purchased a clear plastic bag containing, what the patron represented was, a half of a gram of powdered cocaine. The transaction occurred at the Counter in plain view. There was no effort to conceal what was taking place. Oliva subsequently conducted a field test of the substance he had purchased at the Restaurant that day. The field test was positive for the presence of cocaine. 2/ The September 1, 1994, Visit Oliva and Llaneras returned to the Restaurant at around 8:00 p.m. on September 1, 1994. When they arrived, Rosales was at the Counter. There was a telephone on the Counter near where Rosales was seated. Rosales received incoming calls on the telephone that evening. (Employees at the Restaurant answered the telephone and handed it to Rosales, who then engaged in conversation with the caller.) Upon entering the Restaurant, Oliva noticed Rosales at the Counter and walked up to him. He told Rosales that he was interested in purchasing cocaine and then handed Rosales $20.00. Rosales thereupon pulled out from one of his pockets a clear plastic bag containing, what Rosales represented was, a half of a gram of powdered cocaine. He then gave the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was on the premises at the time of the transaction. Oliva subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. 3/ The September 2, 1994, Visit Llaneras went back to the Restaurant the following day. When he arrived, Rosales was again at the Counter. From his position near the entrance of the Restaurant, Llaneras, in a normal tone of voice, told Rosales that he wanted to buy a half of a gram of cocaine. Rosales thereupon signaled for Llaneras to sit down next to him. Llaneras complied with Rosales' request. Rosales then pulled out from one of his pockets a clear plastic bag containing a white powdery substance. Upon handing the bag to Llaneras, Rosales bragged, rather loudly, that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent and his wife were behind the Counter at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 6, 1994, Visit On September 6, 1994, Llaneras returned to the Restaurant, accompanied by Oliva. On separate occasions, they each approached Rosales, who was seated at the Counter. Llaneras' September 6, 1994, Purchase When Llaneras approached Rosales, Rosales asked him if he "needed some more." Llaneras' response was to hand Rosales $20.00. Rosales then took out a folded napkin from one of his pockets and placed the napkin on top of the Counter. He proceeded to unfold the napkin. Inside the napkin were approximately 12 clear plastic bags. Each contained a white powdery substance. Rosales handed one of the bags to Llaneras. He told Llaneras that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately three to four feet from Llaneras and Rosales, at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Oliva's September 6, 1994, Purchase When Oliva approached Rosales, he handed Rosales $20.00. Rosales thereupon took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin were approximately ten clear plastic bags, each of which contained a white powdery substance. Rosales handed one of the bags to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately six feet from Llaneras and Rosales, and was facing in their direction at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of cocaine. The September 14, 1994, Visit Oliva and Llaneras next visited the Restaurant on September 14, 1994. When they arrived at the Restaurant, Rosales was seated at the Counter talking on the telephone. Oliva sat down at the Counter next to Rosales and handed him $20.00. As he had done during his previous encounter with Oliva on September 6, 1994, Rosales took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin was a clear plastic bag containing a white powdery substance. Rosales handed the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife and the barmaids on duty were behind the Counter at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 15, 1994, Visit Oliva and Llaneras returned to the Restaurant on the following day, September 15, 1994. Gaming Activities During their visit, they heard a loud commotion in the kitchen and went to investigate. Upon entering the kitchen, 4/ they observed several persons, including Respondent and Rosales, gathered around a table participating in a game similar to roulette. The table was round and approximately three feet in diameter. It was filled with indentations painted either black or white. A funnel was held above the center of the table through which a marble was dropped. Participants in the game bet on whether the marble would come to rest on a black or white colored indentation. If the marble landed on a white indentation, the person dropping the marble would win the money that was in the pot. If it landed on a black indentation, the other player(s) would win. The game did not require any skill to play. Its outcome was based entirely on chance. After entering the kitchen, both Oliva and Llaneras played the game. Oliva's September 15, 1994, Purchase While Oliva was in the kitchen, Rosales asked him if he "needed anything." Oliva indicated that he did and handed Rosales $20.00. In return, Rosales gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent was among those who were in the kitchen at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 15, 1994, Purchase Llaneras also made a buy from Rosales in the kitchen. Rosales initiated the transaction. He asked Llaneras if he needed any cocaine. Llaneras responded in the affirmative and gave Rosales $20.00, in return for which Llaneras received from Rosales a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen a few feet away from Llaneras and Rosales when the transaction took place. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 16, 1994, Visit The next day, September 16, 1994, Oliva and Llaneras came back to the Restaurant. During their visit on this date, they each made buys from Rosales. Oliva's September 16, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva approached him. After greetings were exchanged, Rosales asked Oliva if he "needed anything," in response to which Oliva handed Rosales $20.00. Rosales then gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Llaneras' September 16, 1994, Purchase Rosales was in the kitchen when Llaneras approached him and inquired about purchasing a half of a gram of powdered cocaine. After Llaneras tendered the money needed to make the purchase, Rosales gave him a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen, approximately three to four feet away from Llaneras and Rosales, when the transaction took place. Respondent's wife was also nearby. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 22, 1994, Visit Oliva and Llaneras paid separate visits to the Restaurant on September 22, 1994. During their visits, they each made buys from Rosales. Oliva's September 22, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva walked up to him. Rosales interrupted his conversation with Respondent's wife to ask Oliva if he "needed anything." In response to Rosales' inquiry, Oliva handed Rosales $20.00. Rosales then handed Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter, approximately four to five feet from Oliva and Rosales, when the transaction took place. The substance Oliva had purchased from Rosales at the restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 22, 1994, Purchase Llaneras encountered Rosales as Rosales was leaving the Restaurant. Rosales asked Llaneras if he "needed anything." Llaneras responded in the affirmative. Rosales, in turn, told Llaneras to wait at the Counter. Rosales then left the Restaurant. He returned shortly thereafter with a clear plastic bag containing a white powdery substance, which he handed to Llaneras. The transaction took place in plain view of Respondent's wife, who was approximately three feet away behind the Counter. Respondent was on the premises at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 28, 1994, Visit Llaneras next visited the Restaurant on September 28, 1994. Rosales was seated at the Counter when Llaneras entered the Restaurant. He saw Llaneras enter and walked up to him. Llaneras greeted Rosales by telling Rosales, in a normal tone of voice, that he wanted to purchase cocaine. He then handed Rosales $20.00. In return, Rosales gave Llaneras a clear plastic bag containing a white powdery substance. Respondent's wife was behind the Counter when the transaction took place. Respondent was on the premises. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Oliva's September 29, 1994, Visit Oliva returned to the Restaurant on September 29, 1994. He met Rosales at the Restaurant. As was his usual custom when he conversed with Oliva, Rosales asked if Oliva "needed anything." As was his customary response to such an inquiry, Oliva handed Rosales $20.00. Rosales then stepped outside the Restaurant and retrieved from his car, which was parked in front of the Restaurant, a clear plastic bag containing a white powdery substance. When he returned to the Restaurant, he handed the bag to Oliva. The transaction occurred in plain view at the Counter. There was no effort to conceal what was taking place. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter at the time of the transaction. Respondent was on the premises. Respondent's Responsibility for Drug Transactions on Licensed Premises Although Respondent may not have been directly involved in any of the above-described sales of cocaine that took place at the Restaurant during the Hialeah Police Department's undercover operation and he may not have even been on the licensed premises at the time of some of these sales, given the persistent and repeated nature of the transactions and the open manner in which they were made, the inference is made that Respondent either fostered, condoned, or negligently overlooked them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Respondent guilty of the violations alleged in Counts 1 and 3 through 12 of the Administrative Action and penalizing Respondent therefor by revoking his alcoholic beverage license number 23-15943, series 2-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1995. STUART M. LERNER 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 11th day of August, 1995.
The Issue Did Respondent, El Tucanazo Bar & Grill, Inc. (El Tucanazo), violate section 561.29(1)(j), Florida Statutes (2014),1/ by failing to produce records of all monthly purchases and sales of alcoholic beverages within ten days of a written request for them? (Count 1) Did El Tucanazo violate Florida Administrative Code Rule 61A-3.0141(3)(a) because it did not derive at least 51 percent of its total gross revenue from retail sales of food and non-alcoholic beverages? (Count 2) Did El Tucanazo fail to meet the minimum qualification requirements of section 561.20(2)(a)4. for holding its license by serving intoxicating beverages after food service hours ended? (Count 3) Did El Tucanazo fail to satisfy the requirement of rule 61A-3.0141(3)(d) to discontinue selling alcoholic beverages when service of full course meals had been stopped? (Count 4) Did El Tucanazo violate the requirement of section 561.33(2) that a licensee must give Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department), 30 days' written notice of changing the name of the licensed place of business? (Count 5) If any of the violations charged occurred, what is the appropriate penalty?
Findings Of Fact Based on the evidence presented at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: El Tucanazo holds Florida alcoholic beverage license BEV3910423, Type SRX. This is a business selling food, non- alcoholic beverages, and alcoholic beverages. At all times material to this matter, Daniel Camargo has been the owner and president of El Tucanazo. Mr. Camargo opened El Tucanazo in 2010. At first, El Tucanazo operated under the authority of a license that permitted only sales of beer and wine. Approximately two years after opening, Mr. Camargo changed the El Tucanazo license to a type SRX. This type permits the sale of all alcoholic beverages, including liquor. Florida statutes and rules of the Department permit liquor sales under this license if the licensee satisfies a number of criteria broadly crafted to ensure that alcohol sales are an adjunct to food sales at a full-service restaurant. The Department maintains that El Tucanazo's licensed premises are only the area inside of the building. It produced only hearsay evidence to prove this contention. That is not sufficient to support a finding of fact. § 120.57(1)(c), Fla. Stat. Florida Administrative Code Rule 61A-3.0141(2)(a)1., which establishes criteria for holders of SRX licenses, specifically provides that the required square footage of licensed premises "shall not include any space contained in an uncovered or not permanently covered area adjacent to the premises." Rule 61A-3.0141(2)(a)2. requires the premises’ square footage to "be contiguous and under the management and control of a single licensed restaurant establishment." Consequently, the licensed premises of El Tucanazo could not have included a food service or preparation area in the parking lot. About a year or a year and one-half after opening, Mr. Camargo began operating El Tucanazo under the fictitious name "Club 674." He registered the fictitious name with county authorities. He did not inform the Department of the change. El Tucanazo is open from roughly 6:00 p.m. to 4:00 a.m., Fridays and Saturdays. El Tucanazo employs a security company to provide guards to protect the business during the nights that it is open. Tacos are the only food served at El Tucanazo. The tacos are made of tortillas, meat, onions, cilantro, cheese and a sauce. Customers may add lettuce and pico de gallo, a condiment made of tomatoes, pepper, and onions. El Tucanazo also serves alcoholic and non-alcoholic beverages. Department agents, Bryan Brummett and Casey Simon, began an investigation of El Tucanazo in response to a complaint from the Hillsborough County Sheriff's Office. They inspected El Tucanazo on August 15, 2014. At 8:00 p.m., El Tucanazo was not open. When they returned at 10:30 p.m., it was open. El Tucanazo was charging an entrance fee. Pre-poured tequila shots were lined up on the bar available to customers. Mr. Camargo claimed that he gave three-to-four free shots of tequila to each customer. He said he did this several times a month. There were also several bottles of liquor at the bar. Customers were consuming alcoholic beverages. The tables and chairs were arranged along the sides of the room with a large open space. The evidence does not prove whether the seating was sufficient or insufficient to serve 150 persons "full course meals" at tables at one time. The establishment was arranged as a dance hall, not a restaurant. A disc jockey was present to provide music. There was no food for sale or available inside El Tucanazo for customers. There were no customers consuming food inside El Tucanazo. There was a food service and preparation area outside the premises. It was rudimentary, consisting of basically a stack of bricks with a cooktop on them. The cooking equipment outside was warm and showed signs of use and food preparation. A few people were eating outside. In contrast, the kitchen inside the licensed premises did not show signs of food preparation. It was dark and empty. No food was being prepared. None of the cooking surfaces showed signs of use. None were hot. There was no food odor. Freezers contained nothing but ice. The coolers did not contain food items. Save for a single wrapper from a package of meat and a spent food container, the kitchen waste cans contained nothing indicating recent food preparation. The clear and convincing credible evidence proves no one had prepared food in the kitchen on the day of the inspection or the recent past. Mr. Camargo's explanation for the condition of the kitchen was not credible, was contradictory, and was in conflict with observed facts. He said that he prepared food around 6:00 p.m., usually finishing in half-an-hour to an hour. He said the food was then kept warm for nine hours until El Tucanazo closed. Mr. Camargo also said El Tucanazo stopped serving food inside around 10:30 p.m. or 11:00 p.m. and that he took the remaining food outside to be sold. Mr. Camargo also said that meat being grilled outside was El Tucanazo's food offering. The agents arrived around 8:00 p.m., well before 10:30 p.m., and there was no food being served or even available inside. If Mr. Camargo had been telling the truth about food preparation, prepared food, kept warm, would have been available in the premises. Inside and outside there was no sign of lettuce, tomatoes, cilantro, or other vegetables or fruits. The agents asked Mr. Camargo to provide evidence of vegetables and other items used in El Tucanazo's food offering. He produced none. At the conclusion of the August 15, 2014, inspection, Agent Brummett issued a Record of Inspection to El Tucanazo. It required El Tucanazo to provide: (1) all food and alcohol sales receipts; (2) all invoices for food and alcohol purchases; (3) all employee records; (4) all account invoices for utilities; and (5) all checking account information for the months April through July 2014. El Tucanazo timely produced all of the requested records that it maintained for the time period to the Department's auditing unit. El Tucanazo is a cash only business. It uses one cash register for food sales and one for alcohol sales. It keeps only handwritten receipts or "guest checks." Multiple orders are recorded on a "guest check" until it is full. These handwritten receipts are the only sales records El Tucanazo keeps. They are not dated. Once a week Josefina Mondragon arranges the receipts. She totals the information by month and uses them for regular business purposes including reporting sales for sales tax purposes and calculating the tax due. These summaries are admissible as evidence under the Records Of Regularly Conducted Business Activity hearsay exemption created by section 90.803(6)(a), Florida Statutes. This is an accurate sample of a summary: April 1-30, 2014 FOOD SALES $3,529.00 ALCOHOL SALES $1,899.00 TOTAL SALES $5,428.00 TOTAL TAX SALES $379.96 LATE SALES [tax fee] $50.00 El Tucanazo maintained similar summaries for the months April, May, June, and July of 2014. The summaries do not report any sales of non-alcoholic beverages. The underlying documents were not placed in evidence. This made it impossible to test the accuracy of the summaries on this record. The underlying documents were available to the Department, however, if it had chosen to test the accuracy of the summaries. Examples of the guest checks from which Ms. Mondragon prepared her summaries were admitted into evidence. Without Ms. Mondragon to explain the notations on the checks, they cannot be used to determine the amount of food sales. In addition, because they are undated, they do not indicate the month of the food and alcohol sales recorded. The guest checks provided do not indicate any sales of non-alcoholic beverages. The only alcohol sales that they indicate are beer sales, despite the fact that El Tucanazo offers spirits for sale and had bottles available on August 15, 2014, when the agents conducted their inspection. The clear and convincing evidence proves that El Tucanazo does not maintain clear records of all gross retail sales of food, non-alcoholic beverages, and alcoholic beverages. El Tucanazo keeps the receipts for food and beverage purchases. They show purchases of, in addition to the taco ingredients described above, orange juice, Sprite, chicken breasts, tuna, celery, broccoli, eggs, Cheetos, Fritos, pizza, corn, breakfast cereal, chocolate milk, turkey, sliced ham, chewing gum, shrimp, other seafood, milk, Red Bull, and lemon juice. None of these items are items that El Tucanazo claims to sell. The receipts lead to one of two conclusions. The first is that Mr. Camargo was wrong when he testified with certainty about the food items sold at El Tucanazo. The second is that the receipts combine home and business purchases with no way on this record to reasonably distinguish one from the other. In either scenario, the clear and convincing evidence proved that El Tucanazo did not maintain clear records of all purchases of food and non-alcoholic beverages. The only records El Tucanazo maintains of its alcohol purchases are the stubs from its checkbook and receipts from its beer wholesaler, Pepin Distributing Company. For the period April through July 2014, check stubs show that El Tucanazo made nine purchases from Pepin. The receipts indicate only seven purchases. The fact that these records cannot be reconciled is clear and convincing evidence that El Tucanazo does not maintain clear records of all its alcoholic beverage purchases. El Tucanazo purchases liquor from a distributor whose name includes "Southern." There is no record of purchases from “Southern” or that El Tucanazo otherwise purchased liquor during the April through June period. This is inconsistent with Mr. Camargo's testimony that El Tucanazo ran specials several times per month offering customers three-to-four shots, each free of charge, and the presence of liquor bottles at the bar. The absence of purchase records combined with the Mr. Camargo's testimony and the presence of liquor bottles at El Tucanazo is clear and convincing evidence that El Tucanazo does not maintain clear records of all its alcoholic beverage purchases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, impose a $2,000 penalty and revoke the license of Respondent, El Tucanazo Bar and Grill, Inc., without prejudice to El Tucanazo obtaining any other type of license, but with prejudice to El Tucanazo obtaining the same type of special license for five years for Counts 3 and 4 and impose a $500 penalty on El Tucanazo for Count 5. DONE AND ENTERED this 28th day of May, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 May, 2015.
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but respondent filed a motion for continuance which was granted by the Hearing Officer and the hearing was rescheduled for January 18, 1978. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that respondent had adequately been placed on notice as to the nature of the offense charged and due to the fact that the Notice to Show Cause had been sent by certified mail to respondent and that the receipt thereof on August 13, 1977, by an authorized agent of respondent was not contested. Further, respondent's motion for continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.
Findings Of Fact Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle, 515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l) An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3) On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office. However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin. This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately 15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized 265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)
Recommendation That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley,. Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
The Issue The issue in this case is whether Petitioner, Target Corporation ("Target"), is entitled to a consumption-on-premises alcoholic beverage license for its store at 1200 Linton Boulevard Delray Beach, Florida ("Target Delray").
Findings Of Fact The undersigned makes the following Findings of Fact based on the evidence presented, the reasonable inferences from the evidence, and the record as a whole. The Division is the state agency responsible for supervising the conduct, management and operation of the manufacturing, packaging, distribution and sale within the state of all alcoholic beverages. It is also responsible to enforce the provisions of the Beverage Laws, chapters 561 through 568, Florida Statutes. Target is a national retailer with more than 1800 locations in the United States, including approximately 126 locations in the state of Florida. Target's primary business is selling a variety of consumer goods and merchandise including electronics, groceries, health and beauty products, apparel, toys, sporting goods, and more. Target owns and operates a retail store located at 1200 Linton Boulevard, Delray Beach, Palm Beach County, Florida, designated as Target Store T-0642. Target Delray has an existing beer-and-wine package store license ("2APS license"), beverage license No. 6013421, issued by the Division which is in "Current, Active" status. Target Delray also has an existing, but inactive, beer-wine-and-liquor package store license ("3PS license"), beverage license No. 6011410, issued by the Division which is in "Inactive, Automatic Waiver" status. The Application As noted, on October 10, 2019, Target submitted an application for a consumption-on-premises license ("4COP license") at Target Delray (the "Application"). Pet. Ex. 1. Prior to the Application, Target had never applied for a consumption- on-premises license in Florida. All of Target's locations in Florida are licensed by the Division as package stores for off-premises consumption of beer and wine, including three separate liquor stores that are walled off from the nearby main stores, and have separate entrances. First 14-Day Letter Upon reviewing the Application, a Division employee notified Target by email that the Application sketch appeared to show the entire retail store. Pet. Ex. 2. The Division employee inquired whether Target instead meant to license a separate liquor store with a separate entrance from the main store. In addition, she informed Target that a new license could not be issued to the entire store because the 2APS license already existed at Target Delray. Id. Before Target responded, the Division sent Target a formal letter giving Target 14 days to submit a new sketch in support of its Application (the "First 14-Day Letter"). Pet. Ex. 3. It also stated that the Application was incomplete because Target "failed to provide a complete sketch" of the premises sought to be licensed and that the "sketch submitted shows a license number, 6013421, at the licensed location." Id. Shortly thereafter, Target responded with a request to cancel its 2APS license at Target Delray when a permanent consumption-on-premises license was issued. Pet. Ex. 4. In addition, Target clarified that "[t]he licensed premises diagram is correct[;] it will be the department store and not a side liquor store." The Division employee then explained to Target that a consumption- on-premises license of this type "can't be in a grocery/retail store." Pet. Ex. 5. Target responded that the Division has "routinely issued" this type of license to various establishments "that sell food to the public for consumption on the premises along with other retail items … ." Draft Second 14-Day Letter On or about October 29, 2019, the Division drafted, but did not send, a second letter to Target identifying deficiencies in the Application sketch (the "Second 14-Day Letter"). It read, "[t]he submitted application is considered incomplete and/or unverifiable, as applicant has failed to provide a complete and detailed sketch of the premises sought to be licensed. Specifically, please identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with the sale of alcoholic beverages for consumption on or off the premises." Id. It requested a response within 14 days. The Division, however, never sent this Second 14-Day Letter to Target. The Inspections On November 8, 2019, as part of its normal practice in cases of this nature, a Division representative physically inspected the premises of Target Delray for purposes of evaluating the Application. During the inspection, Target Delray's assistant manager (or "Executive Team Lead") Scott Hoffman ("Hoffman") explained to the Division's inspector how Target Delray currently sells beer and wine. Hoffman did not know, however, how Target Delray would be selling liquor under the 4COP license it applied for.1 As a result, the assistant manager was not able to properly identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with Target's Application for a consumption-on- premises license. While inspecting Target Delray, the Division inspector took a variety of pictures of merchandise offered for sale throughout the store. The inspector also compared the Application sketch to the proposed licensed premises of the store. Division policy permits an inspector to make a sketch when appropriate. As a result, the Division inspector created a "clarification sketch" of Target Delray by marking and labeling on Target's Application sketch indicating the "current beer and wine sales area," the "wine and beer storage area," and the "Starbucks coffee shop" as well as other areas. The Division reviewed and considered the inspector's "clarification sketch" as part of the application process for Target. In his inspection report, the Division inspector concluded that the premises matched the Application sketch and "was clarified at inspection." Significantly, however, the inspector determined that non-authorized merchandise was being sold throughout the Target store. Pet. Ex. 8. He wrote that he "observed 100+ items being offered for sale that do not comply with [Florida Statutes, section] 565.045." Id. 1 Curiously, there was no persuasive evidence that Target's headquarters ever communicated with Target Delray about the 4COP license application prior to submitting it or prior to the inspection. The inspector gave Target Delray 14 days to comply with the statute, at which time a re-inspection would be conducted. The same Division inspector conducted the re-inspection of Target Delray on November 22, 2019. His second inspection report reached the same conclusion regarding the extensive merchandise for sale. Pet. Ex. 13. As a result of the same noncompliance, he advised Target Delray that it did not meet the requirements for a consumption-on-premises license. Id. Target Delray's assistant manager signed for both inspection reports. The Notice of Intent to Deny License On or about December 20, 2019, the Division issued its Denial Notice regarding the Target Delray Application. Pet. Ex. 18. The Denial Notice outlined two reasons for the Division's intent to deny the Application: REASON [1]: The submitted application is considered incomplete and/or unverifiable, as applicant has failed to provide a complete and detailed sketch of the premises sought to be licensed. Specifically, the application did not identify counters, sales areas (including points of sale), bar locations, and other relevant areas associated with the sale of alcoholic beverages for consumption on or off the premises, nor could the manager of the proposed licensed premises identify such areas upon inspection. Therefore, the Division of Alcoholic Beverages and Tobacco was unable to fully investigate this application in accordance with Florida law, and the application is being recommended for denial. Pet. Ex. 18 (citing sections 561.01(11), 561.18 and 562.06, Florida Statutes). REASON [2]: The proposed licensed premises fails to meet the statutory regulations for consumption on the premises. Specifically, there shall not be sold at such places of business anything other than the beverages permitted, home bar and party supplies and equipment (including but not limited to glassware and party-type foods), cigarettes, and what is customarily sold in a restaurant. The location identified as the licensed premises offers a substantial, yet indeterminate, amount of items for sale that fall outside of the scope of the statute, including, but not limited to, the items listed in the Exhibit B to this notice. Pet. Ex. 18 (citing section 565.045, Florida Statutes). Exhibit B to the Denial Notice listed more than 150 items for sale at the Target Delray store which the Division determined to be unauthorized merchandise for a place of business seeking such a license. Pet. Ex. 18. These items were found in various departments and locations throughout the store and included, among other things: men's and women's clothing; automotive products; holiday items; furniture; household products; sporting goods; games and toys; tools; pharmaceutical items; health and beauty products; pet care products; electronics; and others. Id. Submitted Sketch & Clarification Sketch The sketch submitted by Target with its Application did not fully and adequately portray the current premises for licensing purposes. More specifically, Target Delray renovated and converted its Target Café into a Starbucks Café prior to the Application, but nevertheless submitted an outdated sketch showing the old Target Café. Likewise, the sketch submitted did not include the newer Starbucks Café. Pet. Exs. 37 and 38. In short, Target did not send the Division an updated and accurate sketch adequately identifying the current Starbucks Café. As submitted, the Application sketch also did not include any clear labeling or legible words to identify certain areas on the sketch. Pet. Ex. 1. Target's representative acknowledged this fact. For example, there were no sales or storage areas labeled or identified on the sketch. The only seats on the sketch were located in the renovated café area, but they were not labeled as such. The "bar" or "counter" on the sketch--which was also not labeled—is located where the Target Café used to be, but Target stated that the café's bar or counter was not capable of selling or serving alcoholic beverages. As a result, Target's Application sketch did not adequately identify counters, sales areas (including points of sale), bar locations, and other relevant areas that would be associated with the sale of alcoholic beverages. The lack of labels or proper identification to explain the layout of these relevant areas was the crux of the Division's reason for concluding that the sketch was insufficient. Explanatory labels and notations on the sketch were needed for the Division to properly investigate the application and understand how the applicant would comply with the applicable provisions of the Beverage Laws. Similarly, Target Delray's assistant manager for general merchandise, who worked on the premises of Target Delray on a day-to-day basis, had difficulty identifying or explaining areas of the store on the Application sketch. Although the Division inspector created a "clarification sketch" based on information he received during his inspection, the inspector was unable to indicate on the sketch how or where Target Delray would be selling liquor for consumption on or off the premises under the 4COP license for which it applied. Pet. Ex. 9. Regardless, this was ultimately the responsibility of the applicant--Target. Thus, neither the original Application sketch nor the inspector's "clarification sketch" adequately included the necessary information regarding Target Delray's proposed sale of beer, wine, or liquor under a consumption-on-premises license. The Inventory at Target Delray During these proceedings, Target did not dispute its broad inventory of consumer merchandise for sale. Similarly, Target conceded that all the items identified on Exhibit B of the Denial Notice were being sold in the Target Delray store, including windshield wipers, toilet seats, bicycles, batteries, screw drivers, shampoo, dog food, laptop computers, and more. Pet. Ex. 18. Adding to this, Target offered into evidence a lengthy and broad list of consumer merchandise sold at the Target Delray store. Pet. Ex. 43. Although the exact inventory of a Target store is subject to frequent changes, Target Delray regularly sells a comprehensive collection of consumer goods including, but not limited to, men's and women's clothing, automotive products, holiday items, furniture, household products, sporting goods, games, toys, tools, pharmaceutical items, health and beauty items, pet care items, electronics, books, magazines, and flags. Other items on Target Delray's inventory list include infant formula, dish detergent, napkins, frozen meat, barstools, lamp shades, candles, pillows, fireworks, and more. Pet. Ex. 43. These retail and grocery items at Target Delray are found throughout the store's premises. Resp. Ex. 16 at 11:5-15. Alcoholic beverages being currently sold are not found throughout the store's premises, but are limited to the grocery items section. Customers purchase all of the retail merchandise and grocery items at the same points of sale ("cash registers") where alcoholic beverages under a 4COP license would be purchased as well.2 2 There was no evidence offered to suggest that alcoholic beverages under a 4COP license would be purchased or paid for at any location other than the normal cash register used to check out other items of general merchandise. Target Delray's Food Service and Food Permit Target Delray sells a limited menu of ready-to eat food and non- alcoholic beverages from its Starbucks Café which operates from within its store, for consumption on the premises. As a result, Target Delray holds restaurant licenses from the City of Delray Beach ("City") and from Palm Beach County. Pet. Exs. 139 and 140. Target's representatives refer to the Starbucks Café as a "restaurant" within the larger Target Delray store. Resp. Exs. 9 and 10. In fact, according to Target, the only seats, tables, and counters associated with the regular sale and consumption of food or beverages are located within the Starbucks Café. Resp. Ex. 16 at 26:25-27:4. The City restaurant license identifies the restaurant size as 51-100 persons. The reasonable inference from this fact is that the City restaurant license does not encompass the entire premises of the Target Delray store, but is limited to the Starbucks Café area. Pet. Ex. 140. Despite allowing the operation of the Starbucks Café in a small portion of the store, Target Delray is not licensed by the Florida Division of Hotels and Restaurants. Instead, Target Delray has an annual food permit issued by the Florida Department of Agriculture and Consumer Services. Pet. Exs. 39 and 45. This permit identifies the Target Delray store as a "food establishment." Id. More particularly, Target Delray is classified by the Department of Agriculture and Consumer Services as a "minor food outlet with significant food service and/or packaged ice." Purpose of the 4COP License for Target Delray Despite operating the Starbucks Café as a restaurant within its store, Target Delray offered no persuasive evidence to prove that Target submitted its Application for a consumption-on-premises license so that it could sell alcoholic beverages for consumption on the premises. Rather, it was undisputed that Target sought a consumption-on- premises license with the intent, and for the purpose of, selling alcoholic beverages in sealed containers for consumption off the licensed premises. The more persuasive evidence, and a reasonable inference from the undisputed evidence, indicated that Target Delray intended to operate in a manner that would allow its customers to purchase liquor from various aisles of its main store or grocery areas, instead of purchasing it from a separate walled-off liquor store. When presented with this plan, the City expressed reservations about whether the Target Delray location is appropriate for a consumption-on- premises license, and deferred to the Division on the matter. More specifically, the City expressed that the city zoning district did not permit the sale of alcohol. It made "no determination" whether the location of the current floorplan was appropriate for a 4COP license. There was also no persuasive evidence presented to conclude that Target Delray would be selling alcoholic beverages by the drink from the Starbucks Café. In sum, the more credible and persuasive evidence indicated that Target Delray did not intend to allow consumption of alcoholic beverages on the premises if the 4COP license were to be approved. Rather, Target filed the Application and sought the 4COP license to operate a place of business where alcoholic beverages are sold in sealed containers for consumption off the premises. Non-Party Locations During discovery, Target identified 12 businesses in Florida that have been issued a consumption-on-premises license. It argues that these businesses "sell all of the same type [of] items sold at [Target's] proposed licensed location." The locations listed below, according to discovery responses from Target, represent a variety of establishments issued consumption-on-premises licenses by the Division. Id. Antonio's--Maitland, FL (BEV5800226) (Pet. Ex. 22) Biltmore Hotel--Coral Gables, FL (BEV2308001) (Pet. Ex. 90.) Buster's Beer and Bait--Panama City Beach, FL (BEV1303131) (Pet. Ex. 92.) CMX Cinemas Fallschase--Tallahassee, FL (BEV4704195) (Pet. Ex. 93.) Daytona Int'l Speedway--Daytona Beach, FL (BEV7402959) (Pet. Ex. 88.) Neiman Marcus--Coral Gables, FL (BEV2300131) (Pet. Ex. 99.) Nordstrom--Coral Gables, FL (BEV2329106) (Pet. Ex. 98) PGA National Resort--Palm Beach Gardens, FL (BEV6014275) (Pet. Ex. 91.) Ritz Carlton--Miami Beach, FL (BEV2326201) (Pet. Ex. 120.) Sophie's at Saks Fifth Avenue--Sarasota, FL (BEV6801712) (Pet. Ex. 95.) Slater's Goods & Provisions--Babcock Ranch, FL (BEV1801399) (Pet. Ex. 89.) xii. Trump National Doral--Miami, FL (BEV2331496) (Pet. Ex. 22) For three of these locations--Antonio's, Ritz Carlton, and Trump National Doral--Target offered no evidence at the hearing to prove or show that these licensees sell items similar to Target Delray. At the hearing, Target offered evidence; however, regarding three additional locations the Division has licensed for consumption on the premises which, according to Target, sell consumer merchandise similar to Target Delray: World Golf Village--St. Augustine, FL (BEV6501333) (Pet. Exs. 71 and 97.) Total Wine--Gainesville, FL (BEV1100722) (Pet. Exs. 71 and 96.) ABC Liquors--Gainesville, FL (BEV1100212) (Pet. Exs. 71 and 86.) Thus, as a part of the evidence, there were 12 licensed locations to which Target Delray likens itself and its inventory, for purposes of licensure (the "Non-Party Locations"). Target contends that Target Delray is similar to these Non-Party Locations because these licensees offer food and beverages for consumption on the premises while selling numerous items at retail. The thrust of Target's argument is that because these similar Non-Party Locations received 4COP licenses, it must receive the 4COP license as well. Target Delray also argued that it is being singled out because it is considered a "big store." Testimony of John Harris In support of its allegation of inconsistent treatment, when compared to other licensees, Target offered the testimony of John Harris ("Harris"). Harris is a former Director of the Division. He now does work for the law firm representing Target in this action. In his current position, Harris helps clients apply for liquor licenses. He assisted Target with the preparation of this Application. Harris also assisted the firm's representation of Target in its lobbying efforts to change package store restrictions. In 1994, when he was Division Director, Harris was heavily involved in drafting and adopting the Restaurant Rule (the "Rule"). The Rule states that "items customarily sold in a restaurant shall only include" ready-to-eat food and beverages. Pet. Ex. 55. (Emphasis added). Harris testified that he never intended for the Rule to be exclusive, despite the meaning of the restrictive words chosen. In addition, Harris now believes there is no limit to what is customarily sold in a restaurant. Harris created the list of Non-Party Locations with help from counsel representing Walmart and Target. His list included business locations he suspected were not in compliance with the Rule due to the items they sold. Harris then traveled the State of Florida to visit and inspect the Non-Party Locations in preparation for his testimony. As evidence, Harris took pictures and prepared a chart of the items he observed for sale at the Non-Party Locations. Pet. Ex. 71 and 85. Hotels and Resorts Visited Among the Non-Party Locations visited by Harris, the PGA National Resort in Palm Beach Gardens had a gift shop, beauty shop, woman's clothing store, golf pro shop, and a spa located in or near the resort's lobby area. These shops sold cosmetics, pharmaceuticals, men's and women's clothing, shoes, jewelry, handbags, and more. Pet. Ex. 71. Harris concluded that these shops, in addition to the spa and tennis shop, were within the licensed premises because they were included in the application sketches and shared the same address as the licensed premises. Pet. Ex. 113. He did not know, however, whether these shops were leased or controlled by a different person or entity than the liquor licensee. Harris did not observe alcoholic beverages being sold within the spa or any of the shops. In fact, he did not know where alcoholic beverages were sold, but he assumed such beverages were sold at the resort's restaurants. Harris also visited the Biltmore Hotel in Coral Gables and took photos of the resort's gift shops, spa, tennis shop, and golf pro shop. Pet. Ex. 74. He did not observe alcoholic beverages being sold in any of these areas. Alcoholic beverages were sold in a separate café or restaurant for consumption on the premises. The various gift shops at the Biltmore were accessible through the lobby or common hallway. These shops sold a variety of clothing, toys, health and beauty products, and more. Pet. Ex. 71. Harris did not know whether the gift shops were separately leased, or by whom. Harris also visited the World Golf Village resort near St. Augustine, Florida which had a separate gift shop, restaurant, and bar area. He did not observe any alcoholic beverages being sold. Department Stores Visited Harris testified that a Saks Fifth Avenue ("Saks") store in Sarasota has a consumption-on-premises license. Pet. Ex. 95. The Saks department store sells men's and women's clothing, accessories, handbags, jewelry, watches, coats, sweaters, scarves, shoes, and more. Pet. Ex. 71. However, the liquor license belongs to Fifth Dining Sarasota, LLC, doing business as Sophie's at Saks Fifth Avenue. Pet. Ex. 95. Harris acknowledged that a restaurant entrance with the name "Sophie's" separated the department store from the restaurant. Pet. Ex. 82. During his visit, alcoholic drinks were only being sold from the Sophie's restaurant and bar adjacent to the department store. There was no indication of retail items being purchased where the alcoholic beverages were sold. In addition, the food service plan application sketch for Fifth Sarasota Dining, LLC, only included the restaurant and bar area, not the department store. Based on his experience alone, and without any other supporting details, Harris concluded that the restaurant and department store are both within the licensed premises. This conclusion by him was not persuasive. Harris did not know whether the department store and the restaurant were under the dominion and control of the liquor licensee, Fifth Dining Services, LLC. Pet. Ex. 95; Resp. Exs. 14 and 15. In fact, he stated that the department store may be under the dominion and control of Saks Fifth Avenue, LLC. He also visited a Neiman Marcus location, which holds a consumption- on-premises license and sells a variety of retail items in its department store. He surmised that alcoholic beverages may be sold from an adjacent restaurant that was closed for renovation when he visited. However, Harris did not observe any alcoholic beverages being sold or consumed. Based solely on the existence of a liquor license issued at the same address as the department store, Harris concluded that both the closed restaurant and the department store were within the same licensed premises. This conclusion was not persuasive or supported by credible evidence. Harris did not know whether the restaurant in the Neiman Marcus store is leased or controlled by the same entity that controls the department store. In addition, the application sketch for the licensee at this Neiman Marcus did not include the department store; it only included the restaurant as the designated licensed premises. Pet. Exs. 109 and 110. Like the Saks Fifth Avenue and Neiman Marcus locations, a Nordstrom department store he visited holds a consumption-on-premises license. It sells alcoholic beverages from a restaurant on the periphery of the store. Pet. Exs. 80 and 98. The Nordstrom department store sells retail items of a quality similar to these two other department stores. Pet. Ex. 71. Harris did not observe any alcoholic beverages being sold or consumed within the Nordstrom department store itself, nor did he observe any customer purchase retail items from the restaurant area. Nevertheless, based on his experience, Harris concluded that the restaurant and department store at Nordstrom are both within the licensed premises. Pet. Ex. 111. Again, this conclusion by him was not sufficiently established by the evidence. As with the other locations, he did not know whether the restaurant and department store at Nordstrom were leased, operated, or controlled by the same entity. Grocery and Liquor Stores Visited Buster's Beer and Bait is a small liquor store and bar in Panama City Beach that has a consumption-on-premises license and sells alcoholic drinks for consumption on the premises. It also sells sealed beverages for consumption off the premises. Pet. Exs. 75 and 92. According to Harris, in addition to alcoholic beverages, Buster's sells cigars, assorted fishing gear, and frozen fish bait from the same area. Pet. Exs. 71 and 75. Slater's Goods & Provisions is a general store in Babcock Ranch with a consumption-on-premises license. Pet. Ex. 89. According to Harris, it sells groceries, wine, liquor, household items, and more--all from the same area. Pet. Ex. 71. There is also a café and an ice cream shop inside. Pet. Ex. 83. Harris concluded that these areas were within the same licensed premises because of the similar address and interconnectedness of the store.3 Harris also visited two liquor stores in Gainesville, Florida that hold consumption-on-premises licenses--ABC Liquors and Total Wine. Pet. Exs. 84 and 86. At these locations, Harris did not observe any sales of open alcoholic beverages being consumed on the premises, but he also did not attempt to consume a beverage on the premises. In addition to alcoholic beverages, he also observed cigars for sale at ABC Liquors. Target Delray does not sell cigars. Movie Theater Visited Harris visited a CMX Movie Theater in Tallahassee, Florida with a consumption-on-premises liquor license. Pet. Ex. 93. Alcoholic beverages were being sold for on-premises consumption from a bar area separate from the theater viewing areas. At a separate counter, movie tickets were being sold. Pet. Ex. 76. Target Delray does not sell movie tickets. 3 Both Slater's and Buster's are much smaller in floor area size than Target Delray and offered a more limited inventory of consumer items. Daytona International Speedway Harris also visited the well-known Daytona International Speedway racetrack complex which holds a consumption-on-premises liquor license. Pet. Ex. 88. The Daytona International Speedway also sells golf bags, tires, fenders, key chains, clothing, chairs, flagpoles, and race experience tickets. The retail items are sold from a gift shop that connects to a grill where draft beer is sold for consumption on the premises. Pet. Ex. 78. Harris did not know if the grill had separate cash registers from the gift shop. Race tickets are sold from a separate ticket counter. Harris concluded that all of these items are sold within the licensed premises, which he understood to include the whole raceway and concourse grounds based on the application sketches. Significantly however, he did not know if the gift shop is leased or controlled by the same entity that holds the liquor license. Walmart and Costco The Division recently denied license applications from a Walmart and a Costco store for the same consumption-on-premises license sought by Target Delray. The Division relied on the same statute--section 565.045, Florida Statutes--in denying those applications based on the wide variety of consumer items Walmart and Costco sell at retail. Pet. Ex. 149; Pet. Exs. 40 and 44. Walmart and Costco are more similar to Target in terms of the wide variety of consumer merchandise sold, than any of the Non-Party Locations visited by Harris.
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 denying the application by Target Corporation at issue in this proceeding. Jurisdiction is and shall be retained for the limited purpose of determining entitlement to attorney's fees and costs related to several discovery disputes and the amount, upon proper application and proof. DONE AND ENTERED this 27th day of August, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 27th day of August, 2020. COPIES FURNISHED: D. Ty Jackson, Esquire George T. Levesque, Esquire Ashley Hoffman Lukis, Esquire Jason L. Unger, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32301 (eServed) Ross Marshman, Esquire Megan Kachur, Esquire John J. Knowles, Deputy Chief Attorney Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Halsey Beshears, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 Sterling Whisenhunt, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed)
Findings Of Fact The Respondent is a licensee holding a 4COP SRX beverage license as a special restaurant licensee. The Respondent originally applied for a 4COP SRX license on January 26, 1977; however, at that time, he received licensure only as a 2COP. On the 2COP application, the Respondent stated that he did not have any partners. The Respondent reapplied for a 4COP SRX license two months later, at which time he was inspected and approved. This application, which was typed by the local beverage office from the original application filed by the Respondent, did not reflect that the Respondent had any partners in this business. The Respondent signed this application, which was brought to the Manhattan Restaurant by the officers conducting the inspection. Between the approval of his original license and application for the 4COP SRX license, the Respondent had entered into a limited partnership agreement with Tommie Battie. Subsequent to obtaining their license as a 4COP SRX, Battie and the Respondent had a disagreement over the financial arrangements in their limited partnership agreement. Battie reported to the local beverage office that he was a limited partner in this business. On the same afternoon that Battie advised the Beverage Department that he was a limited partner, agents of the local office inspected the Respondent's licensed premises at approximately 2:00 p.m. At the time the Respondent was inspected certain alleged deficiencies were reported. The Respondent allegedly did not have sufficient food on hand to serve 150 patrons a full-course meal and allegedly did not have business records on the premises regarding his sales of alcoholic beverages, and food and non- alcoholic beverages. Testimony was received regarding an inventory made of the premises at the time of the inspection. The Division was directed to copy the original inventory report and file this report as a late-filed exhibit. As of this date, this inventory has not been filed with the Hearing Officer, and it is hereby excluded from this record. The testimony revealed that the Respondent had on hand many pounds of chicken and pork chops, two loaves of bread, several large cans of green beans and potato salad, and two heads of lettuce. The Manhattan Restaurant's normal business day was from 5:00 p.m. to 1:00 a.m. The Respondent's sister assisted the Respondent in planning the meals. She made a list of needed grocery items when she arrived at approximately 4:00 to 4:30 p.m., and the Respondent picked up these items at a local grocery. The Respondent was bringing in chicken from a grocery shortly after the inspectors arrived at 2:00 p.m. The Respondent admitted that his business records were not on the premises and that the records which he had kept were deficient; but he stated that in the intervening year since he was inspected, he had improved his record- keeping system and now maintained adequate records on the premises. The Respondent admitted that he had not disclosed his limited partnership with Battie on his second application but had signed the application at the time of the inspection of the premises, not fully realizing that he was required to reveal Battie's interest in the business. Since the filing of this complaint, the Respondent has purchased Battie's interest in the business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and facts and mitigation, it is RECOMMENDED that the Division assess a civil penalty in the amount of $350.00 against the Respondent for violation of Rules 7A-3.14 and 7A-2.14, Florida Administrative Code, and Section 561.17, Florida Statutes. DONE and ENTERED this 6th day of February, 1979, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1979. COPIES FURNISHED: Mary J.M. Gallay, Esq. Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32304 Jack William Windt, Esq. 1939 Golf Street Sarasota, FL 33577
