The Issue The issues in these cases are whether Respondent, Club Manhattan Bar and Grill, LLC, d/b/a Club Manhattan Bar and Grill (Respondent), committed the acts alleged in the administrative complaints dated September 13, 2010, and December 1, 2010, and, if so, what disciplinary action, if any, should be taken against Respondent.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. § 561.02, Fla. Stat. Respondent is licensed under the Florida beverage law by the Department. Respondent holds a 4COP/SRX special restaurant license issued by the Department with Alcoholic Beverage License No. 68-04347. Ms. Stokes is the licensee of record for Respondent. Consequently, Respondent is subject to the Department's regulatory jurisdiction. Respondent's series 4COP/SRX is a special restaurant license that permits it to sell beer, wine, and liquor for consumption on the licensed premises. Additionally, the licensee must satisfy seating and record-keeping requirements and must comply with 51 percent of its gross sales being food and non- alcoholic beverages. See § 561.20(2)(a)4., Fla. Stat. Respondent's restaurant is located in Sarasota County, Florida, and, pursuant to the 4COP/SRX license, must have seating and capability to serve 150 customers at any one time. On August 5, 2010, Special Agent Flynn conducted an inspection of Respondent's business premises. He conducted the inspection based on complaints made to the Department that Respondent was operating as an after-hours bar, rather than a restaurant. At this initial inspection, which occurred at 2:30 p.m. on August 5, 2010, Special Agent Flynn found the restaurant did not have any customers or menus. Further, he noticed that the premises had seating for only 92 people and a large dance floor. Further, he observed that the walls had signs advertising drink specials and late-night parties. Special Agent Flynn met Ms. Stokes, Respondent's manager and holder of the license, and informed her that the beverage license required that Respondent be able to serve 150 customers at one time. Also, Special Agent Flynn requested the required business records concerning the purchase of alcoholic beverage invoices from the distributors for a 60-day proceeding period. Ms. Stokes did not have the requested records on the premises. On August 19, 2010, Special Agent Flynn sent Ms. Stokes a written request, requesting alcoholic purchase invoices for a 60-day period before August 19, 2010. The request allowed Ms. Stokes 14 days to compile the records and to provide the records to the Department. The record here showed by clear and convincing evidence that Respondent did not produce records for the audit period. On September 8, 2010, at approximately 3:00 p.m., Special Agent Flynn returned to Respondent's premises. Again, he found that Respondent did not have the required seating number and ability to serve 150 customers at one time. Special Agent Flynn offered credible testimony that, during the September 8, 2010, inspection, he found Respondent had only 106 available seats. Further, consistent with his inspection on August 5, 2010, Special Agent Flynn observed facts showing that Respondent was a late-night bar, as opposed to a restaurant. The evidence showed that on September 8, 2010, Special Agent Flynn observed that Respondent did not have any customers, menus, and very little food in its small kitchen. Special Agent Flynn, however, did observe that Respondent continued to have its large dance floor, disc jockey booth, advertised drink specials, and posters advertising late-night parties. Clearly, Respondent was being operated as a bar, rather than a restaurant as required by its license. At the September 8, 2010, inspection, Special Agent Flynn again requested Respondent's business records that he had previously requested for the 60-day time period before August 19, 2010. Ms. Stokes provided a few invoices for purchases of food and non-alcoholic beverages. These invoices were dated after the August 19, 2010, date that Special Agent Flynn had requested and did not cover the requested 60 days prior to the August 19, 2010, request. These records included food and beverage purchases by Respondent from retailers, but did not contain any records concerning the points of sale at the restaurant. Ms. Nadeau, an auditor for the Department, offered credible testimony concerning the Department's request for business records from Respondent for the audit period of April 1, 2010, through July 31, 2010. On August 27, 2010, Ms. Nadeau set up an audit request for the period of April 1, 2010, through July 31, 2010, based on information provided by Special Agent Flynn. The Department provided Ms. Stokes with an audit engagement letter that requested business records. Ms. Nadeau testified that on September 10, 2010, she was contacted by Ms. Stokes. Ms. Stokes informed Ms. Nadeau that Ms. Stokes had become the owner of the restaurant in June 2010 and that she did not have the required records. Ms. Nadeau informed Ms. Stokes to provide all the records requested in the audit engagement letter that Ms. Stokes had and to try to obtain the prior records from the previous managing member of Respondent. On September 22, 2010, Ms. Stokes mailed to the Department records she claimed met the audit period. The records consisted of guest checks for July and August 2010, which only showed food purchases and no alcoholic beverage purchases. Further, Ms. Nadeau found that the records were not reliable, because the records contained numerous personal items not related to the restaurant, such as baby wipes, cotton swabs, and boxer shorts. Consequently, the record clearly and convincingly shows that Respondent failed to provide the required business records for the audit period of April 1, 2010, through July 31, 2010. Next, based on Respondent's failure to provide any reliable records, the Department was unable to conduct an audit of the business. Records provided by Respondent indicated that the only sales that occurred on the premises were for food. However, the testimony showed that Respondent's business included the sale of alcohol and marketed the sale of alcoholic beverages for late-night parties. Mr. Torres, the senior auditor for the Department, credibly testified that he conducted an independent review of Ms. Nadeau's initial audit findings. Mr. Torres, who has been employed with the Department for 27 years, reviewed the records provided by Respondent. He credibly testified that Respondent's guest checks were very questionable because they showed all food sales, but no alcohol, which was not consistent with Special Agent Flynn's observations. The evidence further showed that Ms. Stokes became the managing member of Respondent in June 2010. Ms. Stokes provided the Department with a change of corporate officers and named herself as registered agent, rather than apply for a new license. This distinction would later become important because, as explained by Ms. Nadeau, in the Department's eyes, there is a continuation of ownership. Under a continuation of ownership, Ms. Stokes was required to have business records for the time period before she became the managing member of Respondent. Ms. Stokes credibly testified that she did not have any records before June 20, 2010; thus, Respondent was unable to provide records for the audit period. Ms. Stokes candidly admitted that her restaurant had been struggling financially, which is why she had worked to catering special events to draw foot traffic.
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 revoking Respondent's alcoholic beverage license and finding that Respondent violated: 1. Section 561.20(2)(a)4., within section 561.29(1)(a), on September 8, 2010, by failing to provide the required service area, seating, and equipment to serve 150 persons full-course meals at tables at one time as required by its license; 2. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), the audit period of April 1, 2010, through July 31, 2010, by not providing the requested business records; and 3. Rule 61A-3.0141(3)(a)1., within section 561.29(1)(a), on September 8, 2010, by not providing the requested business records. It is further RECOMMENDED that the final order find that the Department did not prove by clear and convincing evidence that Respondent violated section 561.20(2)(a)4., within section 561.29(1)(a). DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 23rd day of September, 2011.
The Issue Whether or not on or about the 16th day of January, 1976, the licensees, I. and Christine Lockett, did unlawfully fail to maintain the operation and responsibility of their licensed business by relinquishing the control of said licensed premises to Louise Bryant, in violation of Rule 7A-3.17, Florida Administrative Code.
Findings Of Fact The Respondents, I. J. and Christine Lockett, were holders of Series 2- COP beverage license issued by the State of Florida, Division of Beverage during the period of October 1, 1975 up to and including the date of the hearing, as evidenced by the Petitioner's Exhibit No. 3 admitted into evidence. This Exhibit No. 3 is a copy of the beverage license. On or before January 16, 1976, I. J. Lockett left the city of Jacksonville, Florida, and his licensed premises at 846-848 East First Street, Jacksonville, Florida, and went to Miami, Florida to bring back his wife, Christine Lockett. Christine Lockett had gone to Miami, Florida, after the death of their son. Christine Lockett had been running the bar in conjunction with I. J. Lockett prior to her departure for Miami, Florida. When I. J. Lockett left the city of Jacksonville he turned the control and management, responsibility over to one Louise Bryant. This control and management transfer was evidenced by the fact that he gave Louise Bryant $400.00 to purchase items of stock and a salary of $65.00 per week, plus additional monies if Ms. Bryant was successful in the operation of the bar. Upon his return from Miami, Florida, I. J. Lockett gave Ms. Bryant an additional $120.00 for purchase of stock items for the bar. While I. J. Lockett was in Miami and dating from January 16, 1976, Louise Bryant was authorized to purchase wine and beer and did make purchases of that wine and beer as evidenced by the checks written on her bank account to various distributors. Copies of those checks are found in Petitioner's Composite Exhibit No. 4 admitted into evidence. In addition, Louise Bryant had the electric service placed in her name for Chris and J's Beer Garden located at 846-848 East First Street, Jacksonville, Florida. Louise Bryant got the profits from the business as her compensation for maintaining the business in the absence of I. J. and Christine Lockett, she also paid the rent on the premises to the landlord. Sine I. J. Lockett's return from Miami, Louise Bryant has continued to work in the business.
Recommendation It is recommended that the license of the Respondents, I. J. and Christine Lockett, d/b/a Chris and J's Beer Garden be revoked, but the imposition of that revocation be withheld upon a satisfactory showing that Louise Bryant is not currently the defacto manager aid operator and responsible party in the licensed premise. DONE and ENTERED this 18th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles C. Tunnicliff, Esquire Division of Beverage The Johns Building Tallahassee, Florida 32304 I. J. and Christine Lockett 846-848 East First Street Jacksonville, Florida
The Issue The issues for determination are: (1) Whether Respondent violated Section 562.12(1), Florida Statutes, by selling alcoholic beverages in a manner not authorized by law and/or maintaining a place where alcoholic beverages were sold unlawfully; (2) Whether Respondent violated Section 561.29, Florida Statutes, by failing to comply with the terms set forth in a prior Final Order of the Division of Alcoholic Beverages and Tobacco; and (3) If so, what sanctions should be imposed against Respondent's alcoholic beverage licenses.
Findings Of Fact Respondent, Easy Way of Lee County, Inc., d/b/a Hollywood Underground, holds a bottle club license number 46- 03606, issued by the Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Department/Division) and has held such license since June 1995. Under this license, Respondent operates a bottle club known as Hollywood Underground (the licensed premises/the premises or Hollywood Underground) located at 16440 South Tamiami Trail, Unit 1, Fort Myers, Florida. At all times relevant to this action, Mattheos Milonas was the director, president, secretary, and treasurer of Easy Way of Lee County, Inc., d/b/a Hollywood Underground, and the holder of the above-referenced alcoholic beverage license. On or about February 12, 1999, Peggy Duffala, a special agent with the Department, organized an undercover on-site investigation of Hollywood Underground, based on a complaint that Respondent was in violation of certain laws pertaining to the sale of alcoholic beverages without a proper license. On February 12, 1999, Agent Duffala, and two other special agents of the Department, Agent David Perez and Agent Patrick McEnroe, went to the licensed premises to further the investigation. When Agent Duffala arrived, she conducted surveillance in the parking lot of the licensed premises for approximately one and a half hours. During that time, Agent Duffala observed patrons entering and exiting the premises, but saw no patrons entering the premises carrying alcoholic beverages or containers of any kind in their hands. On February 12, 1999, at or near 2:30 a.m., acting in an undercover capacity, Agent Perez and Agent McEnroe entered the licensed premises. Upon entering the premises, Agent Perez paid a $5.00 cover charge and received a wristband. Perez brought no alcohol into the premises with him on that evening. Once inside the licensed premises, Agent Perez went to the bar where he was approached by bartender Norman Vanderbiest. After Vanderbiest asked him what he would like, Agent Perez ordered a Budweiser beer. Vanderbiest retrieved the beer from the cooler behind the bar and gave Agent Perez the beer. After Perez asked how much the Budweiser cost, Vanderbiest responded, "$3.00." Agent Perez then gave $3.00 to Vanderbiest, who subsequently rang up the sale and placed the money in the cash register. At no time during the transaction described in paragraph 6 did Vanderbiest ask Agent Perez if he had brought any alcoholic beverages with him to the licensed premises. In fact, Agent Perez had not brought any alcoholic beverages into the licensed premises on August 12, 1999. Furthermore, prior to February 12, 1999, Agent Perez had never visited the licensed premises, and thus, had never taken any alcoholic beverages there. After Agent Perez purchased the Budweiser beer, he moved from the main bar area to the west end of the bar where he remained for about ten minutes. While situated at the west end of the bar, Agent Perez observed several patrons approach the bar and speak with Vanderbiest. Agent Perez was unable to hear what was being said but he observed Vanderbiest serve each patron an alcoholic beverage. After receiving the alcoholic beverages, each patron would then give Vanderbiest money. At no time during these transactions did Agent Perez observe patrons present cards to Vanderbiest to punch. Furthermore, Agent Perez did not see Vanderbiest check a logbook before he served alcoholic beverages to those patrons. From the west end of the bar, Agent Perez saw 10 to 15 patrons entering the licensed premises. During that time, Agent Perez observed that none of the patrons entering the premises brought alcoholic beverages with them. Agent Patrick McEnroe entered the premises on February 12, 1999, at about 2:30 a.m. Upon entering the premises, Agent McEnroe paid a $5.00 cover charge. Agent McEnroe brought no alcoholic beverages into the licensed premises with him nor did he receive a ticket or card to be punched. Once inside the premises, Agent McEnroe went to the bar and ordered a Bud Light beer from bartender, Norman Vanderbiest. Vanderbiest informed Agent McEnroe that the cost was $3.00, then retrieved a Bud Light beer from the cooler and handed it to Agent McEnroe. Agent McEnroe gave the bartender $3.00 for the beer. Agent McEnroe purchased three bottles of beer that evening. In none of these transactions did Vanderbiest ask Agent McEnroe if he brought any beer with him nor did he ask Agent McEnroe for a card to be punched. Later that evening, after Agents Perez and McEnroe exited the premises, Division agents, assisted by the Lee County Sheriff's Office, entered and raided the premises. During the raid, agents seized 571 containers of alcoholic beverages, $315.00 in cash from the cash register, and two notebooks. One of the notebooks seized was a log book containing entries listing alleged patrons' names along with an alcoholic beverage type, a number assigned to the beverage, and a date. The last entry in the log book was made on February 6, 1999, six days prior to the raid. Neither Agent Perez nor Agent McEnroe was listed in the logbooks. During the raid, Division agents entered the premises and arrested the manager of the club. Subsequently, the manager pled guilty in the Lee County Circuit Court to the criminal charge of keeping or maintaining a place, the licensed premises, that sold alcoholic beverages without a proper license on February 12, 1999. The licensed premises had procedures that governed how employees of Hollywood Underground were to accept and distribute beer and liquor brought into the premises by patrons. When a patron brought beer into the licensed premises, an employee of the club was to write on a card the number and kind of beer that the patron brought to the premises. Once this information was recorded on the card, the employee would give the card to the patron. After the club employee accepted the beer from and issued the card to the patron, in order for the patron to retrieve one or more of the beers, the patron was to present the card to the bartender. The bartender was to then give the patron the requested number of beers and punch the card the corresponding number of times, thereby indicating to both the bartender and patron the number of beers the patron had been given and how many remained. To facilitate ease in the dispensing of the beer, like brands of beer were commingled and placed in a cooler with other containers of identical brands. No attempt was made to designate or label containers of beer by the patrons who brought them into the premises. With regard to liquor, the policy of Hollywood Underground was that bottles of liquor brought in by patrons were to be identified in a manner to ensure that patrons were served liquor only from the bottles that they brought to the premises. In accordance with this policy, when a patron brought a bottle of liquor into the licensed premises, an employee of the club was to put a label on each bottle and write a number on the label. Next, in a log book, the employee was to write the number designated on the club's label, the kind of liquor, and the name of the patron who brought in that bottle of liquor. On February 12, 1999, these policies were not implemented by employees of the licensed premises as evidenced by the transactions involving Agents Perez and McEnroe. In the fall of 1998, Tom Lloyd, a videographer for Channel 6 television, followed Division agents into the licensed premises for purposes of an undercover television news story regarding illegal sale of alcoholic beverages by Respondent. Lloyd did not bring any alcoholic beverages with him to the licensed premises. Nevertheless, while sitting at the bar, Lloyd was approached by a bartender who solicited an order from Lloyd for an alcoholic beverage. Lloyd requested a rum and coke and was sold a rum and coke for $4.00 by the bartender. Prior to the Administrative Action which is the subject of this proceeding, three other administrative actions have been filed against Hollywood Underground for violations of Section 562.12, Florida Statutes. All of the three previously filed administrative actions resulted in disciplinary action against Respondent's license. Respondent was charged in two separate administrative actions (DBPR Case Nos. 46-95-0582 and 46-95-0089) with selling alcoholic beverages in a manner not permitted by license, in violation of Section 562.12, Florida Statutes. These two cases were resolved by combined Consent Order (Final Order No. BPR-96-02540), wherein Respondent paid a $5,000 civil penalty and agreed that its "agents, servants, or employees would not sell or supply alcoholic beverages to any person other than the patron who brought such alcoholic beverages onto the premises." Respondent also agreed to diligently "ensure that no alcoholic beverage would be dispensed to any person that did not bring such alcoholic beverage onto the premises." In DBPR Case No. 46-97-0890, Respondent was charged for the third time with selling alcoholic beverages in a manner not permitted by license, a violation of Section 562.12, Florida Statutes. This case was resolved by Consent Order (Final Order No. BPR-98-06888), wherein Respondent paid a $7,500 civil penalty and agreed to take corrective action regarding the unlawful sale of alcohol on the premises. Respondent agreed to prevent further occurrences of violations of Section 562.12, Florida Statutes. In paragraph 6 of the Consent Order, Respondent agreed and acknowledged that revocation of its alcoholic beverage license would be the appropriate sanction for any subsequent administrative action against the Respondent's license alleging failure of the Respondent to comply with the beverage laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered finding that Respondent committed the offenses alleged in the Administrative Action; that Respondent's alcoholic beverage license number 39-01181 be revoked; and that Respondent be assessed a civil penalty of $1,000 per count for a total of $2,000. DONE AND ENTERED this 16th day of February, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 16th day of February, 2000. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Julius F. Parker, Esquire Pennington, Moore, Wilkerson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Joseph Martelli, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Mehreen Enterprises, Inc., held license number 23-21339, Series 2APS, authorizing it to sell alcoholic beverages on the premises of a business known as Super Stop Food Store #2, located at 9260 Hammocks Boulevard, Miami, Dade County, Florida (hereinafter "the licensed premises"). Syed Abdul Qadir (Qadir) was, and is, a shareholder of the Respondent corporation, and the manager of the licenses premises.1 On March 1, 1997, at or about 8:00 p.m., Richard Stangl (Richard), date of birth December 7, 1976, and 20 years of age at the time, entered the licensed premises, retrieved a 32 ounce bottle of Red Dog beer from a vertical cooler, and proceeded to the counter where he paid Qadir for the beer and left the premises. At the time, Qadir did not request to see any identification as proof of legal age, nor did he ask Richard his age. As Richard drove away from the store he was intercepted by the police, who were engaged in an investigation of the premises. Confirming Richard's age and the possession of an alcoholic beverage,2 Richard was returned to the licensed premises where he and Qadir were placed under arrest.3 Respondent does not dispute that the foregoing events occurred. Rather, it contends that it took reasonable precautions to avoid serving an underaged person and should not, therefore, be penalized for the subject sale. Given the proof, Respondent's contention has merit. While Richard was less than 21 years of age at the time, the proof demonstrated that his appearance was such that an ordinary prudent person would believe he was of legal age to purchase alcoholic beverages.4 The proof further demonstrates that Richard frequented the licensed premises on a regular basis over a three month period, and that he routinely purchased (approximately 30 times) alcoholic beverages during that period. Initially Qadir inquired as to his age, which Richard stated to be 21, and requested identification, which Richard presented in the form of a driver's license consistent with that age. Qadir continued to request identification for a time but, as Richard appeared regularly at the store, and began to complain, he ceased requesting identification. Given the repeated assurances by word and identification card that Qadir had received regarding Richard's apparent age, Qadir's failure to continue to request identification was not unreasonable.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Action. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.
The Issue Whether "[o]n or about January 16, 2009, Respondent [the holder of an SR license] failed to maintain a restaurant . . . contrary to and in violation of [s]ection 561.20(2), Florida Statutes (1953), within [s]ection 561.20(5), Florida Statutes (2008), within [s]ection 561.29(1)(a), Florida Statutes (2008),"2 as alleged in the Fourth Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all material times, the holder of alcoholic beverage license number 23-02630, Series 4COP/SR (Subject License), which is a "Special Restaurant" or "SR" license issued by Petitioner. The location of the licensed premises is 17190 Collins Avenue, Sunny Isles Beach, Florida, where Respondent operates Epicure Gourmet Market and Café (Epicure) in a structure having 34,000 square feet of interior space, 10,000 to 12,000 square feet of which is open to the consuming public. The Rascal House, an eating establishment specializing in comfort food, formerly occupied this location. The Rascal House opened in 1954 and was operated under the Subject License from December 30 of that year until March 30, 2008, when it was shuttered. For the final twelve years of its existence, the Rascal House was owned and operated by Jerry's Famous Deli, Inc., Respondent's parent corporation. Respondent acquired the Rascal House property and the Subject License from Jerry's Famous Deli in 2008. After spending $7.5 million on renovations to the property,3 Respondent reopened the venue as Epicure on October 7, 2008, and has done business under that name at the former Rascal House location since. Petitioner approved the transfer of the Subject License to Respondent on October 27, 2008, following an inspection of the premises of Epicure by one of Petitioner's Special Agents, Bradley Frank, who found that all statutory requirements for "SR" licensure were met. In the summer of 2008, prior to the opening of Epicure, Respondent, through its Chief Financial Officer, Christina Sperling, submitted a Request for Initial Inspection and Food Permit Application with the Florida Department of Agriculture and Consumer Services, Division of Food Safety (DACS), in which it described Epicure as a "[f]ood market with indoor/outdoor seating area; but not a service restaurant." At the time of the filing of the Food Permit Application, Respondent had no intention of using waiters or waitresses to serve Epicure's patrons, although it did intend for these patrons to be able to purchase food and beverage items for consumption on the premises. Before Epicure opened, Respondent was granted a DACS Annual Food Permit, "Supermarket"-type, for the establishment, a permit it continues to hold today. On February 11, 2009, and again on July 28, 2009, Respondent applied to the Department of Business and Professional Regulation, Division of Hotels and Restaurants (H&R) for a "public food service establishment"4 license for Epicure. Both applications were denied by H&R because Epicure was licensed (properly so, in the opinion of H&R) by DACS. The DACS permit is not the only license Respondent has for Epicure. It also has a retail license, a food market license, and a restaurant-outside dining license, all issued by the City of Sunny Isles Beach. Respondent has held these City of Sunny Isles Beach-issued licenses since 2008. On January 16, 2009, the date of the violation alleged in the Fourth Amended Administrative Complaint, Epicure had the necessary equipment and supplies (including those in its 4,000 to 5,000 square foot kitchen where food was prepared) to provide, and it did provide, patrons full course meals (including ready to eat appetizer items, ready to eat salad items, ready to eat entree items, ready to eat vegetable items, ready to eat dessert items, ready to eat fruit items, hot and cold beverages (non-alcoholic and alcoholic), and bread) for on- premises consumption at indoor and outdoor tables5 (Eating Tables) having a total seating capacity in excess of 200 and occupying more than 4,000 square feet of space.6 There were no waiters or waitresses, at that time, to take orders from, and to serve food and beverages to, patrons sitting at the Eating Tables.7 The patrons themselves brought to their Eating Tables the food and beverages they consumed there--food and beverages they obtained from manned counters (in the hot food, raw meat/fresh seafood,8 deli, bakery, and bar areas); from the fresh produce area; and from the cases, shelves, and tables where packaged food and drink items were displayed for sale. Epicure employees were stationed in the areas where the Eating Tables were located to assist patrons who wanted tableware, a glass of ice water, a packaged item (such as soup) to be opened or warmed, or their table to be cleaned. Not all of the items sold at Epicure on January 16, 2009, were consumed on the premises. True to its name, Epicure had not only a bona fide "café" operation, it also operated as a "market" where patrons shopped for "gourmet" food and other items for off-premises consumption and use. Among the food and beverage items for sale were raw meat and fresh seafood; dairy products; ready to eat deli meats and cheeses, including those packaged by the manufacturer; packaged grains; packaged stocks, including vegetable, beef, seafood, and chicken stock; condiments, including jams, jellies, and caviar; sauces; spices; eggs; chips, popcorn, and nuts; packaged crackers and cookies; ingredients (other than meat and seafood) for salads, dips, and dressings; cooked and other prepared foods ready to eat; baked bread and other bakery items; candy; fruit and other fresh produce; bottles of wine, liquor, and beer, as well as non- alcoholic beverages, including water; and packaged tea. Among the non-food items for sale were flowers; glassware; candles; napkins, paper and plastic plates and cups, and eating and serving utensils; paper towels; toilet paper; toilet bowel cleaner; wine and liquor opening devices and equipment; publications relating to alcoholic beverage products; cookbooks; and personal care and over-the-counter health care items. Shopping carts were available for patrons to use in the establishment to transport items selected for purchase. These items were paid for at the same cash registers (at the front of the establishment) where food and beverages consumed on the premises were paid for. There was considerable overlap between Epicure's "café" and "market" operations in terms of space used and items sold. Both the "café" and the "market" were fundamental and substantial components of Epicure's business, and they worked together synergistically. The record evidence does not clearly and convincingly reveal that Epicure's "café" operation was merely incidental or subordinate to its "market" operation, or that its "café" was in any way operated as a subterfuge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, issue a final order dismissing the Fourth Amended Administrative Complaint in its entirety. DONE AND ENTERED this 24th day of October, 2011, 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 24th day of October, 2011.
Findings Of Fact On April 2, 1977, respondent discontinued serving full course meals, although the restaurant continued to offer sandwiches. After this change, just as before, respondent sold alcoholic beverages to its patrons. Even earlier, over the period from October of 1976 to March of 1977, records indicated gross sales of alcoholic beverages in the approximate amount of one hundred seventy- nine thousand dollars ($179,000.00) as compared to gross sales of food and nonalcoholic beverages over the same period in the approximate amount of seventy-five thousand dollars ($75,000.00). When petitioner's employee, Officer Boyd, sought to examine respondent's records on April 13 and 14, 1977, he was told by agents of respondent that respondent's records covering the time period before October of 1976, were not available.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's special restaurant license. DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: The Producer's Restaurant, Inc. 3699 Phillips Highway Jacksonville, Florida Mr. J. M. Ogonowski, Esquire District 3, Department of Business Regulation 1934 Beachway Road Jacksonville, Florida 32207 Mr. Francis Bayley, Esquire Department of Business Regulation Legal Section The Johns Building 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact The first paragraph of charges in the Amended Notice to Show Cause reads as follows: That you, P & D SOUTH OF MARTIN COUNTY, INC. d/b/a STAGE EAST, licensed under the beverage laws of the State of Florida as a licensed vendor holding a SRX series license, did in the year of 1982, violate the beverage laws, to wit: you failed to maintain as 51 percent of your gross revenue the sale of food and non- alcoholic beverages, based upon the average monthly gross revenue for the period 12/81 to 12/82, contrary to F.S. 561.20(2)(a)(3), Rules 7A-3.14 and 7A-3.15(3)(b), Florida Administrative Code. In the Joint Pre-Hearing Stipulation and again at the commencement of the formal hearing in this cause, Respondent admitted the violation alleged in that paragraph. Also at the commencement of the formal hearing, Petitioner dismissed with prejudice the charges contained within paragraphs numbered too and three of the Amended Notice to Show Cause. The case therefore proceeded forward for the presentation of evidence in aggravation or in mitigation of any penalty to be imposed against Respondent. Respondent corporation, P & D South of Martin County, Inc., does business as Stage East and is the holder of alcoholic beverage license No. 53- 352, Series 6-COP SRX. Stage East opened for business on November 25, 1981, at 200 South Dixie Highway, Stuart, Martin County, Florida. When Richard Pouser, Respondent's president, applied for an alcoholic beverage license, he spoke with Beverage Officer Richard White. White explained to Pouser that an SRX license is a special license, carrying with it a requirement that the restaurant derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages. Pouser advised White that Respondent intended to obtain an unrestricted quota license as soon as one became available in Martin County. When Respondent prepared to open Stage East, it leased a building containing two separate portions of space. It was Respondent's intention from the initial creation of its new business to open the first section of the restaurant as an area also geared to entertaining persons under the age of 50. In that section, Respondent has electronic games, televisions, pool tables, a dance and bandstand area, and two bars. There are approximately 25 tables in the "back bar" area and approximately 40 tables in the front or bandstand area. Full food service is available in both areas. In this section, Respondent also provides either recorded or live musical entertainment every day, ranging from local musical talent to "mini-concerts" by groups or individuals with national or international recognition. The second section of Stage East, which comprises an additional 4,000 square feet, is to be a family-type food service area, analogous to a "Bennigan's" style of restaurant. Only the first section of Stage East was opened on November 25, 1981, and Respondent continued its preparations to open the second section also. Respondent filed its plans for the proposed second section and application for a building permit and zoning approval with the City of Stuart on January 4, 1982. The City denied Respondent's application the same day, citing as its reason "inadequate parking." After Respondent expended substantial monies for legal fees and engineering studies, zoning approval was finally obtained in June 1983. The evidence is uncontroverted that the City had no legal basis for its denial of Respondent's application; rather, certain members of the City Commission personally did not approve of an establishment like Stage East. In February 1982, Beverage Officer White received an anonymous complaint that Respondent was not meeting its 51 percent requirement. He visited the premises and, upon examining the cash register receipts and food tickets, ascertained that only approximately 25 to 30 percent of Respondent's business had been from the sale of food and nonalcoholic beverages. On February 9, 1982, White served on Pouser an Official Notice with a compliance deadline of August 9, 1982. On September 15, 1982, White returned to Stage East to make a compliance inspection. After speaking with Pouser and ascertaining that the 51 percent requirement was still not being met, White issued a second Official Notice. Although that Notice contained a compliance deadline of January 1, 1983, White returned to Stage East on December 23, 1982, met with Pouser, and reviewed Respondent's records. A cursory examination revealed that Respondent still had not met the 51 percent requirement. Between the time that White first advised Pouser of the 51 percent requirement and the date of the formal hearing in this cause, Respondent attempted to obtain a quota license, which carries no requirements as to food consumption on the premises. For a year, Respondent advertised daily in the Stuart newspaper that it wished to purchase a quota license. Respondent contacted Beverage Officer White, liquor distributors, and owners of quota licenses in Martin County to ascertain if they had a quota license for sale or if they knew someone who did. During this time, the quota license for Harper's became available. The license holder asked $250,000 cash, Respondent offered $200,000 cash, and Walgreen's purchased Harper's license for $215,000. By the time of the formal hearing in this cause, Respondent had entered into favorable negotiations for the SR license at Boston's. Although Respondent had inquired whether Petitioner would permit the transfer of Boston's license to Respondent, Petitioner had not answered Respondent's inquiry at the time this cause was heard. In addition to taking steps to expand its restaurant area and to obtain an alternate license throughout the time period in question, Respondent did all it could to encourage its customers to purchase food so that Respondent could meet the 51 percent requirement to which its license was subject. Respondent hired an experienced chef and additional kitchen staff in order to offer a larger variety of food at lower prices. Respondent changed its menu to add "quicker" foods and advertised its menu in the Stuart News. Respondent opened for lunch and advertised its daily luncheon specials; advertised its food service when advertising its new "happy hours" and those prices; opened for breakfast after 2:00 a.m.; advertised its dinner programs; hired male dancers to perform during certain hours on Monday nights "for ladies only;" offered discount Prices for women on Tuesdays for "ladies night;" and attempted to attract an older crowd on Sundays by providing a buffet and a Dixieland band or "the big band sound." Respondent increased its radio advertising to six to eight ads a week, sometimes advertising as a restaurant with a nightclub and sometimes only as a restaurant. Although Respondent had on its premises during 1982 sufficient foods, utensils, and personnel to serve everything on its menus, Respondent started a nightly buffet which was either self-service or could be served by a waitress. The cost of the buffet depended upon the day of the week, with ladies paying a small price on Tuesdays, ladies' night, for example. Sometimes the cost of the buffet (which is collected as the customer enters the premises) included the customer's alcoholic beverages on an "all you care to consume" basis, and sometimes the customer paid for his alcoholic beverages in addition to paying for the buffet. On the evening before the formal hearing, the buffet cost $10, and the price of drinks was not included. Since Respondent opened Stage East, it has made continuing good faith efforts to encourage the purchase of food at its premises, to add the "Bennigan's" family-style restaurant, and to obtain an alternate license without the 51 percent requirement. During the three-month period immediately before the formal hearing, Respondent approached, just exceeded, and then just missed the 51-percent mark.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge in paragraph numbered one of the Amended Notice to Show Cause, dismissing with prejudice the charges in paragraphs numbered two and three of the Amended Notice to Show Cause, and imposing a civil penalty in the amount of $1,000 to be paid by Respondent within 30 days of the entry of the Final Order in this cause. DONE and RECOMMENDED this 17th day of February, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 17th day of February, 1984. COPIES FURNISHED: John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles L. Curtis, Esquire 1177 Northeast Third Avenue Fort Lauderdale, Florida 33316 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent, Suamy Corporation, held license number 23-21872, series 2APS, authorizing it to operate a beer and wine package store (the sale of beer and wine for off-premises consumption) at the premises of a business known as Bristol Sundries, located at 2127 Brickell Avenue, Miami, Florida (hereinafter "the licensed premises").2 Milagros Suarez was the sole shareholder, as well as the sole corporate officer, of the Respondent corporation. On February 11, 1997, Leonard DelMonte, a special agent with the Division of Alcoholic Beverages and Tobacco, undertook an inspection of the licensed premises. Upon entry into the premises, the agent observed shelves on his left that contained bottles of liquor on display, and behind the counter he observed more shelving, which contained more bottles of liquor on display, together with bottles of wine. A cash register was observed on the counter, and an employee was present to attend the needs of customers. The agent inspected, inventoried, and seized 19 bottles of distilled spirits (Petitioner's Exhibits 2-1 through 2-19) on the licensed premises. (Petitioner's Exhibit 1). The bottles were all sealed; labeled as distilled spirits, such as rum, scotch, gin, and vodka; and carried the name, trademark, or insignia of commonly known manufacturers of distilled spirits, such as Johnny Walker, Cuervo, Pinch, and Bombay. The bottles also had affixed to them price stickers, of the same type affixed to the wine that was offered for sale, and contained prices that were consistent with the retail price of the product. Given the facts, it is apparent that Respondent was offering the distilled spirits for sale on the licensed premises.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge set forth in the Administrative Action and imposing a civil penalty of $1,000 for such violation, subject to Respondent's option to substitute a period of suspension in lieu of all or a portion of the civil penalty. DONE AND ENTERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998.
Findings Of Fact The Respondent, Acobos, Inc., d/b/a Christo's Cafe, is the holder of alcoholic beverage license number 62-03732SRX, for licensed premises at 411 First Avenue North, St. Petersburg. In September, 1987, and particularly on September 11, 17, and 25, 1987, the Respondent's licensed premises were open for business, including the sale of alcoholic beverages under the authority of the Respondent's license. On at least three separate occasions--on September 11, 17, and 25, 1987,--the Respondent was selling alcoholic beverages at the licensed premises at times when the service of full-course meals had been discontinued.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the alcoholic beverage license of the Respondent, Acobos, Inc., license number 62-037325RX. RECOMMENDED this 31st day of October, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Tim Christopoulos, President Acobos, Inc., d/b/a Christo's Cafe 411 First Avenue North St. Petersburg, Florida 33701 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
