The Issue Whether the Respondent failed to have the seating capacity required of a licensee in its category as alleged by the Notice to Show Cause and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, Respondent, EDM of Key West, Inc., d/b/a/ Portside, was the holder of a special restaurant license issued by Petitioner, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation. This license, Series 6-COP, Number 54-00999SRX, authorizes Respondent to sell alcoholic beverages, subject to regulation by Petitioner and other authorities, in conjunction with its restaurant business. On November 16, 1988, Petitioner's law enforcement investigator, David Myers, inspected Respondent's premises to determine whether Respondent was in compliance with the regulations applicable to licensees such as Respondent. Two violations were discovered. The first was that the establishment failed to have sufficient seating for patrons under the covered portion of the premises. The second was that the establishment failed to keep adequate records of its sales of food and of its sales of alcohol as required by regulation. Official Notices were issued by Petitioner to Respondent for both violations. Investigator Myers told Respondent's dining room manager on November 16, 1988, that the establishment was required to have seating sufficient for at least 150 dining patrons under a permanent roof and that the seats located outside the roofed area could not be counted toward that requirement. This advice is consistent with Petitioner's interpretation of Rule 7A-3.014, Florida Administrative Code. Prior to December 12, 1988, Investigator Myers advised the management of Respondent that he intended to make a follow-up inspection on December 12, 1988. On December 12, 1988, there were 132 seats for dining patrons within the roofed area. Other seats for dining patrons were located in an uncovered area. Petitioner filed a Notice to Show Cause subsequent to its inspection of December 12, 1988, against Respondent alleging, in pertinent part, the following: On December 12, 1988, you, EDM OF KEY WEST INC., failed to have accommodations for service of 150 patrons at tables on your licensed premises . . . . The Notice to Show Cause did not cite Respondent for failure to keep adequate records of sales. On May 22, 1989, an inspection revealed that there was seating for only 118 dining patrons under the roofed area. On June 5, 1989, Respondent was found to be in compliance with the seating requirement. Respondent filed a timely request for hearing and therein denied the factual allegations of the charge brought against it.
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 having failed to have accommodations for the seating of 150 dining patrons as required by Section 561.20(2)(a)4, Florida Statutes, and by Rule 7A-3.014 and Rule 7A-3.015, Florida Administrative Code, and which imposes an administrative fine of $500.00 against Respondent. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000 James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. Post Office Box 1117 Key West, Florida 33041 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether or not on or about August 9, 1975, Martha L. Washington, a licensed vendor did have in her place of business, one (1) four-fifths brokenseal bottle of Barcardi Rum, Light, not authorized by law to be sold under her license, contrary to Section 562.02, Florida Statutes.
Recommendation It is recommended that a civil penalty in the amount of $200.00 be imposed against the license of Martha L. Washington for the violation established through the allegation of the subject Administrative Complaint. DONE and ENTERED this 17th day of February, 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: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Martha L. Washington 1085 Palmetto Street Bartow, Florida
The Issue By Notice to Show Cause filed August 24, 1977, the Division of Alcoholic Beverages and Tobacco, Petitioner, seeks to revoke, suspend or otherwise discipline the license of P & D, Inc. t/a Pete and Lenny's. As grounds therefor it is alleged that on or about June 29, 1977 Respondent failed to discontinue the sale of alcoholic beverages when the service of full course wools had been discontinued. Three witnesses were called by Petitioner, two witnesses were called by Respondent and one exhibit was admitted into evidence.
Findings Of Fact P & D, Inc. t/a Pete and Lenny's holds a 4 COP special restaurant beverage license and the Hearing Officer has jurisdiction over the parties and the violations alleged. On or about 12:30 a.m. June 29, 1977 beverage agents Meek and Shepherd entered Pete and Lenny's, seated themselves at the bar and ordered drinks. After finishing their drink they ordered a second drink and inquired of the bartender, Richard Bohan, if they could get food. He replied that they could get sandwiches at the Banana Boat next door. Further questioning by the agents elicited responses that Respondent had stopped serving and the cook had been transferred next door, that the Banana Boat served sandwiches until 1:30 a.m., that Respondent usually offered New York strip steaks but "not this late", and that the Banana Boat and Pete and Lenny's were owned by the same corporation. After identifying themselves as beverage agents and asking for the manager, Meek and Shepherd inspected the kitchen and restaurant area. Inspection of the kitchen revealed the only cooking equipment to be a microwave oven, empty icebox at 420 F, no evidence that food had been prepared in the kitchen for several days, insufficient silver to serve 200 diners simultaneously as required by regulations for special restaurant licenses, and musicians instrument cases occupying a substantial portion of the kitchen floor. Unopened boxes of silver was produced from the storeroom in sufficient quantity to meet the minimum requirements of the regulations. Respondent's witnesses testified that the icebox had been inoperative for a day or two and food had been removed to next door, but that they were not refusing to serve full course meals. The only meal offered appears to have been the New York strip steak either cooked next door or in the microwave oven. No facilities were available in the kitchen with which to prepare vegetables and these witnesses testified potato salad was served as the vegetable. Pete and Lenny's is a night club where the music is loud and continuous. When the live band is on break recorded music is provided. On the evening of the inspection by beverage officers Meek and Shepherd little, if any, food had been served in Pete and Lenny's.
Findings Of Fact George Thayer is the holder of a special alcoholic beverage license, number 74-0643SR-4COP, for the premises known as George's Place at 832 South Martin Luther King Boulevard, Daytona Beach, Florida. He has held that license since 1965. DABT continues to assert that he has held that license since 1955, but there is not one shred of evidence to support that assertion. Both Joseph Ogonowski, a DABT investigator, and Mr. Thayer testified that the license in question was issued on July 23, 1965. Thayer's license was issued under a special provision for restaurants which no longer exists. The SR class of license required that certain conditions be met. In applying for and qualifying for the license in question, Mr. Thayer signed an affidavit attesting that he would comply with all the conditions applicable to the SR special license. Specifically, in that affidavit, Mr. Thayer attested that: . . . said licensed premises are to be operated primarily as a restaurant and contains all necessary equipment and supplies for serving full course meals regularly, has accommodations for serving @200 or more patrons at tables and occupies 4,000 square feet or more floor space under a permanent roof. Further, that if the license applied for is approved and a Special License is issued, the premises shall be operated as a bonafide restaurant and that no alcoholic beverages will be served or sold when the restaurant is not open for business. On March 13, 1990, Joseph Ogonowski, a law enforcement investigator with 30 years' experience at DABT, conducted an inspection of George's Place at approximately 2:00 o'clock P.M. Mrs. Thayer was tending bar when Ogonowski arrived. There were several patrons drinking what appeared to be alcoholic beverages at the bar and in the pool hall. There was no food being prepared or served. The kitchen, which was accessible only from behind the bar, was apparently closed. There was no appearance that any food was in or had been recently prepared in the kitchen. There was a separate part of the premises, called the disco room, which was not lit or air conditioned and was locked behind a metal gate. The disco room contained 134 chairs at tables. The bar contained enough tables and chairs for six or eight people to be served at tables. There was no menu posted or offered. There was not enough china and silverware to serve 200 people. There was some plastic tableware. DABT's apparent policy of not counting plastic tableware is not a rule and must therefore be explicated at hearing. No such evidence was presented in this case. No proof that the beverages being served were alcoholic beverages was presented by DABT. Mr. Ogonowski issued a warning notice citing inadequate seats and tables, inadequate square footage open to the public, and the need for additional china and silverware. Notice was given that a reinspection would occur in ten days. Mr. Ogonowski reinspected the premises on March 29, 1990. Nothing had changed. The kitchen and disco room were closed and no food was being served on the premises. Mr. Ogonowski issued a Final warning notice again citing the lack of seats, tables, china, and silverware. A reinspection was again scheduled. On April 13, 1990, Ogonowski again reinspected the premises at about 10:00 o'clock A.M. A Bill of Fare was posted showing full course meals being served. There were still inadequate seats at tables and china and silverware. No food was being served, but it was early in the day. Patrons were drinking what appeared to be alcoholic beverages at the bar and in the pool hall, but the disco room was locked. Again no evidence that the beverages were alcoholic was presented by DABT. Another Final warning notice was issued citing the inadequate seats, tables, china, and silverware. This Final warning notice reminded Mr. Thayer that he was required to have the facilities, china, and silverware to serve full course meals to 200 patrons or else he must discontinue the sale of alcoholic beverages. Mr. Thayer was given ten working days to comply or else charges would be filed against his license. On June 22, 1990, Mr. Ogonowski returned in the morning for one last inspection of George's Place. Mr. Thayer was not there, but Leroy Reed was tending bar. The Bill of Fare was not posted. The pool hall was open, but the disco room was locked. Mr. Reed was eating something from a bowl. According to Mr. Reed, it was some leftovers that he had scraped from the bottom of a pot. Mr. Ogonowski ordered some of what Mr. Reed was eating, but was told it was all gone and food had not been cooked yet that day. Mr. Ogonowski ordered a sandwich not regularly available on the premises and was told that it was not available. He than asked to purchase a beer to go and was sold a can of beer. Mr. Ogonowski returned to talk to Mr. Thayer later that same day. At that time, Mr. Thayer told Mr. Ogonowski that the necessary china and silverware was on the premises, but that there were inadequate seats at tables. Based on this failure to comply with the previous warnings, a Notice to Show Cause was issued. Mr. Ogonowski did not inspect to see if the china and silverware was actually on the premises or if full course meals were available. According to Mrs. Thayer, the china and silverware was purchased in July, after the last inspection. Further, she acknowledged that the necessary seats at tables were not on the premises until September. Mr. and Mrs. Thayer live above George's Place and derive all of their support from the operation of George's Place. They have done so for more that 25 years. Until these events, they had not received any citations for more than 15 years. Mr. Ogonowski testified that DABT has a policy regarding penalties for violations of special restaurant licenses and he produced a copy of a page from his policy and procedure manual. These penalty guidelines have not been enacted as rules. Mr. Ogonowski did not develop the policy and did not offer any testimony to prove up or explicate the incipient policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that alcoholic beverage license 74-00643SR-4COP, issued to George Thayer, t/a George's Place, be suspended until the licensee demonstrates the ability and intention to operate the premises as a bona fide restaurant meeting all the criteria of the license, the statutes, and the rules. If the licensee is unable to make the necessary demonstration within six months, the license should be revoked. DONE and ENTERED this 3rd day of December, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5777 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of FactSubmitted by Petitioner, DABT Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 2-6(4-8). Proposed findings of fact 7 and 8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of FactSubmitted by Respondent, George Thayer Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 10(8); and 14(11). Proposed findings of fact 2, 4-6, 8, 9, 11, and 13 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3 and 7 are irrelevant. Proposed finding of fact 12 is unsupported by the credible, competent and substantial evidence. COPIES FURNISHED: Eric S. Haug Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Thomas S. Hart Attorney at Law Cobb Cole & Bell 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, FL 32115-2491 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1007 Stephen R. MacNamara, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, B & K Restaurant, Inc., d/b/a Nipper's Restaurant (Respondent) held Alcoholic Beverage, Special Restaurant License No. 60-02856 SRX (SRX License). Respondent's SRX License was issued on July 7, 1988. Respondent's SRX License requires Respondent to maintain, among other things, 2,500 square feet of serving area, a minimum of 150 seats for seating, and 51 percent of gross revenue from food and non-alcoholic beverages sales. Respondent has a president, Arthur Barakos, who is a 51 percent shareholder. On September 30, 1996, a special agent of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner) performed an SRX License inspection of Respondent. Petitioner's agent requested Barakos to produce, among other things, Respondent's last three months of alcohol and food records, z-tapes,2 guest receipts, and ledger books, if any. He was unable to produce the requested records, indicating that his accountant had possession of them. Petitioner's agent reminded Barakos that, as a requirement of the SRX License, the records must be maintained on Respondent's premises. She informed him that she would return at a later date to review the requested records. On October 8, 1996, Petitioner's agent returned to Respondent to perform the SRX License inspection. She requested to review the same records. As before, Barakos informed Petitioner's agent that he did not have the requested records. Barakos indicated to Petitioner's agent that the only records that he maintained were guest checks which had credit card charges; he did not maintain other guest checks or z-tapes. Further, he indicated that his procedure was to copy the information from z-tapes and guest receipts on separate sheets of paper, referred to as sales sheets, and to provide his accountant with the sales sheets. Respondent's accountant performs a "compilation" on a monthly basis of monthly sales from information provided to her by Barakos. Monthly, the accountant meets with Barakos and obtains from him sales sheets showing daily receipts and total sales per day for the entire month. Also, Barakos provides the accountant with bank statements, purchase orders, stubs from guest checks with credit card charges and, occasionally, z-tapes. At times, the accountant obtains some of the information over the telephone from Barakos. She inputs the information from the sales sheets on computer. From the information provided, the accountant totals the daily receipts and computes sales tax. Afterwards, she returns to Barakos all of the items that he provided to her. The accountant is unable to verify or certify the accuracy of the monthly sales records. At the inspection, Barakos did provide Petitioner's agent with sales sheets. However, the sales sheets failed to differentiate between food and alcoholic beverages. Without the requested records which are the original documentation, no verification of food and alcohol revenue could be made by Petitioner's agent. Therefore, she was unable to determine whether 51 percent of Respondent's gross revenue was from food and non-alcoholic beverages sales. Further, regarding maintaining past records, Barakos had maintained his almost nine years of records, including z- tapes, in boxes located in a shed. He discarded the boxes of records after they got wet and became moldy, not believing that he would ever be audited by Petitioner. Barakos discarded the records without improper motive. Because he had discarded the records, Barakos was unable to produce them to Petitioner's agent. At no time material hereto did Petitioner receive from Respondent a request to maintain its records at a location other than on Respondent's premises. Additionally, at the inspection, Petitioner's agent inspected Respondent's seating. She found Respondent not to be in compliance with the required minimum seating of 150 seats, having only 125 seats. Barakos indicated that he would add the additional seats without delay to bring Respondent into compliance. Further, Petitioner's agent inspected Respondent's square footage. She found Respondent to be in compliance with the minimum square footage requirement of 2,500 square feet.
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: Imposing a $1,000 civil penalty against B & K Restaurant, Inc., d/b/a Nipper's Restaurant; and Revoking the Alcoholic Beverage Special Restaurant License of B & K Restaurant, Inc., d/b/a Nipper's Restaurant, i.e., License No. 60-02856 SRX without prejudice to obtain any other type license, but with prejudice to obtain another SRX special license for 5 years, with the revocation being suspended under terms and conditions that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco deems appropriate. DONE AND ENTERED this 16th day of June, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1997.
The Issue Should Respondent's Alcoholic Beverage License Number 63-04089 be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: DABT is the division within the Department of Business and Professional Regulation charged with the responsibility of administering and enforcing the Beverage Law of the State of Florida. At all times material to this proceeding, Respondent, operated as a sole proprietorship known as Fort Meade Restaurant and Lounge, located at 122 Fourth Street Southwest, Fort Meade, Florida. Respondent held a series SRX4COP Alcoholic Beverage License Number 63-04089, issued by DABT, which authorized Respondent to sell beer, wine, and liquor for consumption on the licensed premises in connection with the restaurant operation of Fort Meade Restaurant and Lounge. Respondent's beverage license did not authorize Respondent to sell any form of alcoholic beverage for consumption off of the licensed premises. By letter dated February 10, 1997, the Fort Meade Police Department requested investigative assistance from DABT concerning an allegation that controlled substances were being sold at Respondent's licensed premises as well as another location unrelated to Respondent. As a result of the request for assistance from the Fort Meade Police Department, DABT instituted an investigation concerning the complaint. In addition to assigning the complaint to a Special Agent, Cleveland McKenzie, DABT requested assistance from the Polk County Sheriff's Department. At approximately 9:45 p.m. on April 18, 1997, Agent McKenzie, accompanied by Detective Bobby Neil, Polk County Sheriff's Office, entered Respondent's licensed premises, located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity. While in Respondent's licensed premises on April 18, 1997, Agent McKenzie asked the person tending bar (bartender) for "a beer for the road." In response to Agent McKenzie's request, the bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag, with the beer inside, to McKenzie who then paid for the beer and left the licensed premises without attempting to conceal the beer on his person and without being stopped by any person providing services on the licensed premises. Agent McKenzie and Detective Neil left the licensed premises at approximately 11:00 p.m. Both Agent McKenzie and Detective Neil described the bartender as a stout, light-skinned, black male approximately 20 to 25 years of age. Neither Larry Fisher, manager of the licensed premises, nor Reginald Johnson, Respondent's adult son, fit this description. The person tending bar at the licensed premises on April 18, 1997, and April 26, 1997, was neither Larry Fisher nor Reginald Johnson, notwithstanding the testimony of Larry Fisher or Reginald Johnson to the contrary which I find lacks credibility. At approximately 10:30 p.m. on April 26, 1997, Agent McKenzie and Detective Neil entered Respondent's licensed premises located at 122 Fourth Street Southwest, Fort Meade, Florida, in an undercover capacity Before leaving the licensed premises on April 26, 1997, Agent McKenzie asked the bartender (the same individual tending bar while Agent McKenzie was in the licensed premises on April 18, 1997) for "a beer to go." The bartender placed an unopened 12-ounce bottle of Budweiser beer in a paper bag and handed the bag to Agent McKenzie. The bartender refused the offer of payment for the beer from Agent McKenzie's indicating that the beer was "on him." Agent McKenzie and Detective Neil left the licensed premises at approximately 11:55 p.m. on April 26, 1997. Upon leaving the licensed premises, Agent McKenzie carried the unopened bottle of beer in the paper bag without any attempt to conceal the beer on his person. Likewise, upon leaving the licensed premises, Detective Neil carried a half-full opened bottle of beer which he had purchased earlier from the bartender without any attempt to conceal the bottle on his person. In order to leave the licensed premises on April 26, 1997, Agent McKenzie and Detective Neil had to go pass two individuals who were providing services to Respondent's licensed premises. Neither of these individual, nor any other person providing services to Respondent's licensed premises on April 26, 1997, prevented Agent McKenzie or Detective Neil from leaving the licensed premises with the beer. There was no evidence presented By DABT to show that while Agent McKenzie and Detective Neil were in Respondent's licensed premises on April 18, 1997, and April 26, 1997, that the bartender sold or gave any other customer an alcoholic beverage packaged to go or that any other customer left the licensed premises with an alcoholic beverage. Respondent was not present in his licensed premises during the time that Agent McKenzie and Detective Neil were there on April 18, 1997, and April 26, 1997. There is insufficient evidence to show that the bartender's action on April 18, 1997, and April 26, 1997, was the result of Respondent's negligence, intentional wrongdoing, lack of diligence, lack of training for the employees, or lack of notice to customers that any alcoholic beverage purchased had to be consumed on the licensed premises. After the visits to the licensed premises on April 18, 1997, and April 26, 1997, Agent McKenzie concluded that there was no basis to the alleged complaint that controlled substances were being sold on the licensed premises. The designation "SRX" identifies a beverage license issued to business which is to be operated as restaurant. As a result of its investigation of Respondent's licensed premises on April 18, 1997, and April 26, 1997, DABT, as is its normal practice, examined the Respondent's licensed premises for continuing requirements applicable to special licenses such as a "SRX" license. Respondent is an experienced business person with 15 years experience in operating licensee premises. Respondent knew at the time of obtaining the license at issue in May 1995 that he had an obligation to maintain records sufficient to demonstrate that Respondent met the 51 percent requirement in each bi-monthly period. Respondent's Profit and Loss Statement for the months of January 1997, February 1997, March 1997, and April 1997, listed the total amount of revenue derived from the sale of food and non-alcoholic beverages and alcoholic beverages. However, this figure for alcoholic beverages was not supported by any daily records of sales. Respondent maintained no records as to the daily sales of alcoholic beverages on the licensed premises. Although Respondent presented guest checks for the daily sales of food and non-alcoholic beverages, the total of these checks for each month in question did not support the Respondent's Profit and Loss Statement for each corresponding month. Based on the Respondent's Profit and Loss Statement and other records furnished by Respondent for the months of January, February, March, and April 1997, the percentage of total gross revenue (sales of food, non-alcoholic beverages, and alcoholic beverages) derived from the sale of food and non-alcoholic beverages for the months of January 1997, February 1997, March 1997, and April 1997 was approximately 45 percent, 46 percent, 46 percent, and 44 percent, respectively.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and a review of the penalty guidelines in Rule 61A-2.022, Florida Administrative Code, it is recommended that the Department enter a final order revoking Respondent's Alcoholic Beverage License, Number SRX4COP 63-04089 DONE AND ENTERED this 2nd day of June 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1998. COPIES FURNISHED: Richard Boyd, Director Division of Alcoholic Beverages And Tobacco Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32299-0792 Madeline McGuckin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Kenneth Glover, Esquire 505 Martin Luther King, Jr. Avenue Lakeland, Florida 33802
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
The Issue The issues in these cases are whether Respondent is guilty of serving alcoholic beverages to minors and, if so, what penalty is appropriate.
Findings Of Fact Respondent holds license number 58-01997, series 2-COP, for the retail sale of alcoholic beverages. The licensed premises were located at 536 West Church Street, Orlando, Florida. Respondent abandoned the premises at the end of August, 1989. The bar owned and operated by Respondent is no longer in operation, and the license is no longer active. On at least three occasions prior to the incident in question, one or more representatives of Petitioner had warned Lester Thomas, the sole shareholder and officer of Respondent, that he or his company's employees were serving alcoholic beverages to underage persons. On one of these occasions, Mr. Thomas complained, "Every time you come around here, there are problems. You catch me." At about 11:15 p.m. on August 5, 1989, two representatives of Petitioner entered the Negril Cove bar and observed Mary Ann Carmody, age 16 years, consuming an alcoholic beverage that a companion had purchased from Respondent. At all material times on that evening, Mr. Thomas himself was tending the bar at Negril Cove. At no time was Ms. Carmody asked for any identification. Under the circumstances, Mr. Thomas permitted Ms. Carmody to consume the alcoholic beverage on the premises.
Recommendation Based on the foregoing, it is hereby recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Respondent. RECOMMENDED this 23rd day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1990. COPIES FURNISHED: Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 Jerry S. Luxenburg 1214 East Robinson Street Orlando, FL 32801
