The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Blackwood is an apartment building with five units located at 4115 Riverside Drive, Coral Springs, Florida 33065- 5929. The Division issued Blackwood a license, numbered 16-16900-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Blackwood's license] is December 1, 2000." On June 5, 2000, and again on October 6, 2000, Division employee Cynthia Pieri conducted routine inspections of Blackwood. Each time, she found the apartments to be open and operating. Additionally, on both occasions Ms. Pieri took note that Blackwood's 1999-2000 license was not on display or available at the premises. On a Lodging Inspection Report that she prepared on June 5, 2000, 2/ Ms. Pieri checked box number 38 indicating a violation in connection with the following item: "Current license, displayed, available upon request." In the comments section of the form she wrote: "#38 1999-2000 DBPR license is not posted." Ms. Pieri left blank the spaces provided for informing the establishment of the date when its license would expire in a line that read: "REMINDER: Your license expires / / ." Petitioner's Exhibit 2. 3/ Kenneth Charles Buck, a Division employee, explained that ordinarily licensees such as Blackwood are sent a renewal notice. Regardless whether a licensee receives a notice, however, it is responsible for paying the required fee, which may be remitted either to the local office or to the Division's headquarters in Tallahassee. Transcript of Final Hearing ("T-") Sometimes, a licensee will pay the field inspector; field inspectors are authorized to accept license fees and issue receipts. T-14. Mr. Buck testified that the documents he could access on his computer indicated that Blackwood had failed to pay a license fee for the 1999-2000 period. T-13. Mr. Buck stated further that he had spoken with Blackwood's owner "on occasion" and had informed her that the license fee was due. T-14.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Blackwood Rentals. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of January, 2001.
The Issue The issue in the proceeding is whether Respondent, Felix Robaina, violated provisions of the "Barbers' Act", Chapter 476, Florida Statutes, by operating a barbershop without a current active barbershop license. Background and Procedural Matters This proceeding commenced with an Administrative Complaint by Petitioner on September 18, 1985, and by Respondent, Robaina's timely request for a formal hearing. At the hearing Petitioner presented its evidence through the testimony of investigator, Jean Robinson, Felix Robaina and three exhibits. Respondent submitted one exhibit. All exhibits were admitted without objection. By stipulation of the parties, Vivian Lerma served as translator for Mr. Robaina. She was placed under oath for this purpose in accordance with Section 90.606, Florida Statutes. The parties have submitted Proposed Recommended Orders with proposed findings of fact and conclusions of law. These have been considered and, where appropriate, have been incorporated into this Recommended Order. Specific rulings on each proposed finding of fact are found in the Appendix attached hereto.
Findings Of Fact Felix Robaina was born in Cuba and came to the United States in May, 1980. He cannot read, write or speak English and understands English very little. He took the barber's exam in Spanish and has been continually licensed as a barber by the Florida Barber's Board since June, 1983. On July 15, 1983, he opened his shop, Chosen Barber Shop, in Belle Glade, Florida. The shop had previously been owned by Antonio Garcia but was closed when Mr. Garcia died in 1982 or early 1983. Mr. Robaina has continually worked alone in the shop since he opened it and regular hours are 9 am to 7 pm, Tuesdays through Saturdays. Jean Robinson, an investigator for the Department of Professional Regulation, noticed that the shop was reopened on a trip through the area and on June 1, 1985, she conducted an inspection. She found Mr. Robaina's barber license and occupational licenses were displayed on the wall. With a customer serving as interpreter, Jean Robinson asked Mr. Robaina for his shop license. de was confused and showed her the occupational license. Ms. Robinson explained the requirement of the law regarding a separate shop license and left an application for. Respondent, Robaina, promptly applied for a shop license, and has held license number BS0008668-since July 1985. Although part of the Barber exam course includes the legal requirement for licensing, Mr. Robaina said he did not know his shop required a separate license until Ms. Robinson visited and informed him. She confirmed that his confusion when she asked for the license was consistent with that ignorance. According to Ms. Robinson people commonly feel that the occupational license is all that is needed for a shop. Between July 1983 and July 1985, Felix Robaina operated his barbershop without a shop license.
The Issue The issue is whether Proposed Florida Administrative Code Rule 61D-2.026(4) and (6) is an invalid exercise of delegated legislative authority, pursuant to sections 120.52(8) and 120.56(1)(a), Florida Statutes.
Findings Of Fact Pursuant to chapter 550, Florida Statutes, Petitioner Second Chance operates jai alai games at its facility in Marion County, and Petitioner WFA owns and operates a greyhound permit and summer jai alai permit at its facility in Miami-Dade County. Petitioner WFA also indirectly owns a summer jai alai permit at the Miami Jai Alai in Miami-Dade County and owns partial interests in two jai alai permits operated at the Dania Jai Alai facility in Broward County. Pursuant to chapter 550, Intervenor owns and operates a jai alai permit at its facility in Seminole County, where it conducts live jai alai permits. Petitioners and Intervenor are regulated by the proposed rules that they challenge in these cases. Proposed rule 61D-2.026(4) (the Court Rule) provides: Jai alai games must be conducted on a three-walled court meeting the following requirements: The side wall must be at least 175 feet long and at least 35 feet in height; The front wall and back wall must be at least 35 feet in width and height; The front wall must be made of granite. All courts must have sufficient overhead coverage to ensure for the operation of scheduled performances. All courts must have a live viewing area for games. Proposed rule 61D-2.026(6) (the Roster Rule) provides: "Jai Alai permit holders must utilize a rotational system of at least eight different players or teams." The rulemaking authority cited for the Court Rule and the Roster Rule is sections 550.0251 and 550.105(3) and (10)(a). The law implemented cited for the Court Rule and the Roster Rule is sections 550.0251, 550.105, and 550.70.
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.
The Issue One issue posed for decision herein is whether or not the Petitioners are entitled to a transfer of License No. 16-1333 SRX (4-COP), an alcoholic beverage license which currently allows Jacob's Ladder, Inc., to serve liquor, wine and beer as Part of its restaurant business pursuant to Sections 561.32 and 561.321, Florida Statutes. Also at issue is whether or not the Petitioners are entitled to have a default judgment for removal of tenant," issued by the Seventeenth Judicial Circuit in Broward County, against Jacob's Ladder, Inc., recorded by Respondent as a lien pursuant to Chapter 561.65, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received including a stipulation by the parties, the following relevant facts are found. License No. 16-1333 SRX (4-COP) is issued to the premises at 1480 South Ocean Boulevard, Pompano Beach, Florida. Petitioners are owners in fee simple to this property. Petitioners leased this property to the past licensee, Jacob's Ladder, Inc. (Petitioners' Exhibit No. 1). Petitioners transferred the subject license to the lessee, Jacob's Ladder, Inc., for use while they operated a restaurant at the subject location (1480 South Ocean Boulevard, Pompano Beach, Florida). The transfer of the license was not a subject of the lease agreement and the record does not reflect that any consideration was exchanged for the license. Petitioner and Jacob's Ladder, Inc., subsequently executed a transfer application transferring the subject license back to Petitioners. The transfer application was then placed in escrow for the stated purpose of facilitating a license transfer in the event that the lessee defaulted on the lease agreement. (Petitioners' Exhibit Nos. 2 and 12.) Petitioners later learned that the property had been converted to a bar instead of a "family type restaurant." Thus, Petitioners concluded that the "conversion" resulted in a use of the premises in a function inconsistent with the lease and Florida's alcoholic beverage laws. Petitioners, therefore, sought and obtained a court order evicting Jacob's Ladder, Inc., from the premises (Petitioners' Exhibit No. 3). Respondent had notice that the Petitioners were lessors and owners of the property to which the subject license was issued both when Petitioners transferred the license to Jacob's Ladder, Inc., and when the Petitioners' attorneys informed Respondent of Petitioners' status as lessors and owners of the subject property. (Petitioners' Exhibit No. 4.) On January 22, 1979, Respondent, through its District Supervisor, filed charges and prepared an Administrative Complaint for Rule violations against Jacob's Ladder occurring in June of 1978. On February 1, 1979, Petitioners' attorneys met for an office conference with Respondent's Director and other staff personnel concerning the subject license. During this meeting, Respondent, in addition to being advised that Petitioners were the lessors of the subject premises, was also advised that Petitioners had taken possession and was seeking transfer of the license to Petitioners. During this meeting, Petitioners were advised by Respondent that Jacob's Ladder had continuously violated rules governing the special restaurant license which was issued; that Respondent intended to revoke the license and was presently proceeding to that end. On February 5, 1979, Petitioners signed a letter of agreement, stipulating to their future conduct and to the conduct of any future lessee. (Petitioners' Exhibit No. 6.) On February 9, 1979, Petitioners executed an application for transfer of License No. 16-1333 SRX (4-COP)(Petitioners Exhibit No. 12). Also on February 9, 1979, Respondent executed and forwarded two documents captioned a Notice to Show Cause/Notice of Informal Conference and a Notice of Informal Conference both of which were received at two locations by J. Epsimos, President of Jacob's Ladder, Inc., on February 13 and 15, 1979. (Petitioners' Exhibit No. 7.) Petitioners' letter of agreement, application for transfer and request for lien filing were mailed to Respondent on February 16, 1979. On March 8, 1979, Respondent returned Petitioners' transfer application, request for lien recording and letter of agreement. (Petitioners' Exhibit No. 5.) In May, 1979, Respondent drafted a revocation order which was not executed, at least in Part, due to Petitioners application for and receipt of a temporary injunction enjoining Respondent from executing the revocation order. The file on the revocation proceedings was closed on May 29, 1979. (Respondent's Exhibit No. 3.) Following the March 8, 1979, letter wherein Respondent returned Petitioners' application and advised that a revocation proceeding was Pending, Respondent proceeded with this effort to suspend or revoke License No. 16-1333 SRX (4-COP). (DOAH Case No. 79-898.) The licensee, Jacob's Ladder, Inc., communicated to Respondent that it did not contest the charges in the Notice to Show Cause filed February 9, 1979, and therefore, did not want a hearing. The matter was, therefore, closed by this Division on May 29, 1979. (See Respondent's Exhibit Nos. 2 and 3.) The licensed premises is one unit of a 57-unit condominium. The remaining 56 units are all residential. There are currently 41 Parking spaces which serve the condominium. According to the Director of Building and Zoning Enforcement for Broward County, the 41 Parking spaces are inadequate to serve the condominium units and are "clearly inadequate to serve 56 residential units in addition to the subject restaurant. Since the Premises were first licensed to serve alcoholic beverages in 1974, condominium residents have complained to the Director of the Respondent about problems they perceived were being created by the service of alcoholic beverages at the restaurant. (Testimony of Nuzum and Nerzig.) Respondent's Director denied the license transfer for two reasons. First, the premises could never serve as a legitimate restaurant but would continue to operate as a bar due to inadequate parking facilities and thus, would be unable to comply with pertinent rules, regulations and statutes governing special restaurant licenses. (Chapter 561, Florida Statutes.) This is so due to the inadequacy of the parking facilities. Secondly, the licensee bad been in violation of the beverage law in 1977 for the same type of violations charged in the subject complaint when the transfer application was submitted. 2/ The Department (Respondent) has an ongoing policy of refusing to record documents pursuant to Section 561.65, Florida Statutes, when the license against which the document is to be recorded is in a revocation proceeding. (Testimony of C. L. Ivey, Regional Supervisor, Barry Schoenfield, Bureau Chief of Licensing, and C. Nuzum, Respondent's Director.) Also, Chief Schoenfield testified to Respondent's policy of only recording liens from lenders that are licensed by the State. This policy appears to be sanctioned by Chapter 561.65, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the action of Respondent in refusing to transfer License No. 16-1333 SRX (4-COP), and refusing to record Petitioners' judgement and lien filings be SUSTAINED. RECOMMENDED this 27th day of May, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1981.
The Issue Whether Respondent's real estate license should be disciplined by the Florida Real Estate Commission based upon the charge that the Respondent is guilty of having his license to practice law previously disciplined by the Florida Supreme Court, in violation of Section 475.25(1)(5), Florida Statutes (1997).
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes; Chapters 120, 455 and 475, Florida Statutes; and, the rules promulgated pursuant thereto. Respondent, Ronald Thomas Spann, is and was at all times material to this matter a licensed Florida real estate broker, issued License No. 0399792 in accordance with Chapter 475, Florida Statutes. The last license as a broker was issued at Post Office Box 1799, Ft. Lauderdale, Florida 33302. On or about July 18, 1996, the Florida Supreme Court entered an order to disbar Respondent for a period of five years, for violation of numerous provisions of the Rules Regulating the Florida Bar. There were no allegations or evidence to show that the Respondent either committed an act related to a real estate transaction or is guilty of a substantive violation of any of the statutes or rules which govern the practice of real estate brokering in the State of Florida or in any other jurisdiction.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the argument of counsel, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(s), Florida Statutes (1997), as charged in the Administrative Complaint and that the Respondent be placed on probation for a period of two years under such terms and conditions as the Commission deems appropriate, including charging for the costs of prosecuting this matter. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of March, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 James H. Gillis, Esquire James H. Gillis & Associates, P.A. 8424 Pamlico Street Orlando, Florida 32817-1514 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The question presented in this cause concerns the necessity that the Petitioner pay an additional $1,000 fee which is purportedly required by the conditions of Subsection 565.02(1)(g), Florida Statutes, if it is determined that the Petitioner has more than three permanent separate locations serving alcoholic beverages for consumption on its licensed premises, Store No. 126. This alleged fee requirement is associated with the Petitioner's application to the Respondent for an "increase in series" of its alcoholic beverage license from a Series 3-PS, which permits "package sales" for off-premises consumption only, to a Series 4-COP, which permits consumption of alcoholic beverages on the licensed premises. The Petitioner claims that the arrangement in the licensed premises does not exceed the limit of three permanent separate locations for serving alcoholic beverages and the Respondent claims that there are four permanent separate locations for serving alcoholic beverages for consumption on the licensed premises, thereby exceeding by one the allowable limit and causing the imposition of the $1,000 additional license tax set forth in Subsection 565.02(1)(g), Florida Statutes.
Findings Of Fact On March 24, 1977, the Petitioner, ABC Liquors, Inc., made an application with the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for an "increase in series" of its alcoholic beverage license for Store No. 126, located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. The increase requested was a change from a Series 3-PS license, which permitted "package sales" for off-premises consumption only, to a new Series 4-COP license, which permits consumption of alcoholic beverages on the licensed premises. For reference purposes, a copy of the front sheet of the application is attached to this Recommended Order and incorporated by reference as Attachment "A". In compliance with the procedures of the Respondent, T. L. Ewing, the Respondent's employee, drew a sketch of the premises on the reverse side of the application referred to in Attachment "A", and a copy of that sketch is attached to this Recommended Order and incorporated by reference as Attachment "B". That sketch is an accurate representation of the interior floor plan of the licensed premises. The floor plan is further depicted in the Petitioner's Composite Exhibit 5, specifically 5E, which is a sketch of the "as-built" plans of the portion of the licensed premises which is the subject of this dispute. This Exhibit 5E, which was admitted into evidence, depicts the deployment of the bar area which is utilized under the terms of a Series 4-COP license applied for. Additionally, Petitioner's Exhibit 1 is a photographic depiction of the type bar arrangements and accessways between certain portions of the bar arrangement; however, this photograph is taken of a similar lounge area and is not the actual area in question. This depicts another one of the Petitioner's lounges, located in a separate licensed premises. As described in the issue statement of this Recommended Order, the controversy presented for consideration involves a characterization of the bar areas shown in Attachment "B" and Petitioner's Exhibit 5E on the question of whether there are more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises. The significance of having more than three permanent separate locations for serving alcoholic beverages for consumption on the licensed premises is revealed by a reading of Subsection 565.02(1)(g), Florida Statutes, which states: 565.02 License fees; vendors; clubs; caterers and others.-- (g) Vendors operating places of business where consumption on the premises is permitted and which have ,more than three permanent separate locations serving alcoholic beverages for consumption on the licensed premises shall pay in addition to the license tax imposed in paragraphs (b), (c), (d), (e), and (f), $1,000. However, such permanent separate locations shall not include service bars not accessible to the public or portable or temporary bars being used for a single occasion or event. Golf club license holders may operate service bars or portable or temporary bars on the grounds contiguous to their licensed premises and shall pay $100 for a certified copy of the club license, which shall be posted on the bar. The area contiguous to the licensed premises shall be considered an extension of the licensed premises upon payment of the fee, posting of the certified copy of the license, and notation of such extension upon the sketch accompanying the original license application. In reviewing the license application for "increase in series", the Respondent has taken the position that there are within the room which constitutes the lounge area, four separate locations and those four locations are made up of the rotating bar, and the perimeter bar areas which show three sections broken up by the east and west ramps separating those portions of the perimeter bar area. It is the contention of the Respondent that the word "location" is equivalent to the bar areas shown in the lounge room and, counting the rotating bar and the three separate perimeter sections, there would be four locations. Consequently, under the Respondent's theory, the Petitioner is required to pay an additional license tax in the amount of $1,000 for the extra location in excess of the allowable three locations. The Petitioner asserts that the meaning of the word "location" as found in the subsection calls for more definitive separation than is found between the sections of the perimeter bar operation and that the design of the perimeter bar which allows for entrance and exit ramps through the center of the horseshoe shaped device which is the perimeter bar area, does not create the type definition contemplated by the law. To the Petitioner, separate rooms would be more in keeping with the legislative intent in drafting the requirement in Subsection 565.02(1)(g), Florida Statutes. Moreover, the Petitioner argues that the rampways which divide the perimeter bar into three sections were installed primarily for the purposes of safety and convenience and those efforts to allow for safety and convenience should not be used to unfair advantage by the Respondent in claiming that there are four locations as opposed to a maximum of two locations; those two locations being constituted of the rotating bar and a perimeter bar. The Petitioner claims that certain local ordinances require that exits be available within a specified number of feet of the position a patron might be found in during the course of an emergency and the Petitioner alludes to the fact that the rampways aid in the evacuation through the exits. The Petitioner did not demonstrate that the removal of the passageways would cause a violation of the ordinances dealing with emergency exit accessibility. Petitioner also states, and the facts reveal, that within the room proper there are six serving stations in the perimeter bar area, constituted of case registers, soda heads, sinks and other necessary structures to the service of patrons. These soda heads, waterlines, and drainage systems have common origins or terminus. Other relevant facts presented in the case include the facts that the bar structure in terms of the shell of the various positions within the lounge area, are permanent installations, although the soda heads for mixed drinks may be moved around within the shell. There are swinging doors on the northern and southern fingers of the various sections of the perimeter bar area. The rampway is unobstructed unless one of those swinging doors is opened when a person is attempting to use the rampways. The dimensions and measurements within the lounge may be discerned by an examination of the other aspects of the Petitioner's Composite Exhibit 5, with the caveat that these design sheets must be considered in view of the "as-built" sketch found in Petitioner's Exhibit 5E. This statement is made because there were design changes made from the original proposal which relocated the dance floor in the lounge area and made other changes which may be seen in this review.
Recommendation It is recommended that the Petitioner, ABC Liquors, Inc., be required to pay an additional license tax of $1,000 in all applicable periods for its place of business located at 3427 Southwest Archer Road, Gainesville, Alachua County, Florida. DONE AND ENTERED this 3rd day of October, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold F.X. Purnell, Esq. General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James E. Foster, Esq. 170 East Washington Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue before DOAH is a determination of the amount of attorney’s fees and costs to be awarded for the administrative proceedings in Brooklyn Luncheonette, LLC v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 09-1973 (DOAH October 23, 2009).
Findings Of Fact On October 23, 2009, the undersigned ALJ of DOAH issued a Summary Final Order in the case of Brooklyn Luncheonette, LLC v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 09-1973 (DOAH October 23, 2009), in which it was held that Florida Administrative Code Rule 61A-3.0141(2)(a)2., “promulgated by the Department of Business and Professional Regulation, and its directive that the square footage making up the licensed premises of an SRX license be “contiguous,” constitutes an invalid exercise of delegated legislative authority “that cannot be relied upon by Respondent to deny the issuance of an SRX license to Petitioner.” No appeal was taken of said Order and the license was issued. In the Joint Stipulation Regarding Attorney’s Fees, Respondent waived its right to demonstrate that its actions were justified or that special circumstances exist which would make the award unjust. Based on a review of the underlying file, the affidavits of the attorneys filed with the petition, the Stipulation filed herein, and the procedure for calculating the lodestar figure set forth in Rowe, Harold F. X. Purnell and Maggie M. Schultz’s attorney’s fees totaled $16,301.25. These fees are determined to be reasonable, and no adjustment is warranted. Based on the affidavits and Stipulation filed herein, Petitioner has established that the costs of pursuing the administrative proceeding disputing the validity of the rule challenged totaled $408.47.
The Issue Whether Petitioners' applications for the delinquent renewal of their special restaurant licenses pursuant to Section 561.27(2), Florida Statutes, should be denied for the reasons set forth in the Notices of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.3 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.4 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.5 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." Abkey and Amy Cat have SR licenses that were originally issued in 1956 "per general law and not pursuant to any special or local act." Maneros has an SR license that was originally issued in 1952 "per general law and not pursuant to any special or local act." As applicants applying to delinquently renew their SR licenses, Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Maneros filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on June 4, 2007. On the application form, Maneros gave no "explanation for not having renewed during the renewal period"; however, the application was accompanied by a letter from a Maneros representative, which read, in pertinent part, as follows: I am today submitting a delinquent renewal application for the above-referenced alcoholic beverage license. The building has been demolished, and there is a vacant lot at the site at this time. Redevelopment is scheduled for this area, and I expect new construction to begin shortly. The license was first issued to this location 55 years ago. I have inquired with the City of Hallandale Beach, Florida, and there remains a question as to whether zoning approval for this type of alcoholic beverage license would be permitted under current uses once reconstruction is complete. The licensee of record wishes to reinstate and possibly use or transfer the license. . . . On June 8, 2007, DABT issued a Notice of Intent to Deny Maneros' application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order granting Petitioners' applications for the delinquent renewal of their SR licenses. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 30th day of April, 2008.
