The Issue The issue for determination is whether Respondent's alcoholic beverage license should be disciplined for violation of Chapter 561, Florida Statutes. Resolution of this issue requires a determination of whether Respondent correctly reported and remitted alcoholic beverage surcharges.
Findings Of Fact Respondent is Betty Schmidt. At all times pertinent to these proceedings, she held alcoholic beverage license no. 74-00275, Series 2-COP, for a licensed premises located at 1161 North U.S. 1, Ormond Beach, Florida. Petitioner's auditor, Muriel Johnson, performs audits on vendors monthly surcharge reports in order to confirm the accuracy of those reports and ensure compliance with statutory and administrative rule requirements. The audit in the instant case covered the reporting period of Respondent from September 1, 1994 through August 31, 1997. Alcoholic beverage licensees are afforded an opportunity to elect to report and pay the surcharge by either the purchase method or the sales method. Under the purchase method, a licensee pays the surcharge on alcoholic beverages purchased from authorized distributors. Under the sales method, licensees pay the surcharge on alcoholic beverages sold for consumption on the premises. Respondent elected to report via the sales method. A licensee's reporting under the sales method is audited by the Sales Depletion Method. Under this methodology, a beginning inventory is ascertained. Second, purchases made by the licensee for the audit period are computed. Third, an ending inventory for the audit period is ascertained. Fourth, Gross Gallonage Available For Sale is computed by adding the beginning inventory to the purchases made during the audit period and then subtracting the ending inventory. Fifth, the Net Gallonage Available For Sale during the audit period is calculated by subtracting from the Gross Gallonage an allowance for spillage and a cooking adjustment. The end result is termed the Adjusted Sales Gallonage from which amount the amount of surcharge owed for the audit period is determined. Because Respondent did not keep inventory figures, and based upon her assertion that her inventory was generally the same, Respondent and the auditor agreed upon zero as the starting inventory. Second, purchases of alcoholic beverages by Respondent during the audit period were computed based upon purchase figures provided by Respondent and verified independently through records obtained from distributors. Third, the ending inventory was agreed to be zero. Fourth, The gross gallonage available for sale was determined by adding the beginning inventory (zero) to the purchases made during the audit period and subtracting the ending inventory (also zero). Fifth, adjustments to net gallonage for sale included allowances for spillage and package sales. Notably, the audit revealed that Respondent was treating liquor mixers as wine coolers and paying a lower tax on that basis when in fact wine coolers are taxed at the rate of one ounce of liquor per container at a higher rate. Adjustments for this practice were also made. Finally, the total surcharge due for the audit period was calculated and compared to the amount already reported in order to determine the amount of under- reported or over-reported tax. Respondent sets up various disbursement stations for beer on her property during “bike week” in Daytona Beach. With only one cash register, the sales at the various stations are maintained by hand on clipboards. Additional staff is employed at this time and Respondent is not personally present at each station to monitor sales reporting. Frequent sources of alcoholic beverage sales that are not captured by a license’s cash register include theft, breakage, leakage, spillage, overpouring of drinks, and free drinks. The amounts of alcoholic beverage that are lost to a cash register in these ways are captured by Petitioner’s sales audit method. While Respondent keeps good records, no cash register method can ever capture all of the alcoholic beverages available for consumption on premises and consequently there will always be some discrepancy as the result of a sales method audit. As established by results of Petitioner's audit, Respondent underpaid surcharges for the audit period in the amount of $890. Additionally, it is established that Respondent owes $557.66 in penalties and $193.33 in interest on the payment deficiency.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring payment by Respondent in the amount of $1641.10, the amount of total tax and liabilities claimed by Petitioner to be due. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of November, 1998. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Betty Schmidt Smiley's Tap 1161 North U.S. 1 Ormond Beach, Florida 32174 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Application for Alcoholic Beverage License dated April 14, 1988, filed by Ocie C. Allen, Jr., should be approved by the Respondent?
Findings Of Fact Ocie C. Allen, Jr., d/b/a OCA, filed an Application for Alcoholic Beverage License dated April 14, 1988 (hereinafter referred to as the "Application"), with the Division. In the Application, Mr. Allen indicated under "Type of Application" that the Application type was "Other - ownership change because of contract." Mr. Allen listed himself as the "Applicant" and signed the Application as the "Applicant." The "Current License Number" listed in the Application to be transferred to Mr. Allen is 15-1924, current series 3 PS. The holder of the license was Thomas Tripp. At the end of the Application there is an "Affidavit of Seller(s)" to be executed by the licensee from whom the license is to be transferred. This affidavit has not been completed in the Application. The purchase price for the business was listed as $86,250.00. In a letter dated April 22, 1988, the Director of the Division requested the following additional information from Mr. Allen: Affidavit of seller must be signed by Thomas Tripp and notarized. Documentation as to the source of funds invested must accompany this application. The transfer fee on quota license is assessed on the average annual value of gross sales of alcoholic beverages for the three (3) years immediately proceeding transfer and is levied at the rate of four (4) mills, and in no event exceeds $5,000. The parties may elect to pay the $5,000 transfer fee or submit documents (usually sales tax records), which will establish gross sales in order to compute the transfer fee. By letter dated May 2, 1988, Mr. Allen responded as follows to the Division's request for information: Mr. Tripp has signed the Independent Contractor Agreement which is the affidavit of seller. Source of funds comes from Mr. Tripp as per the Independent Contractor Agreement. The sales tax receipts will be submitted upon approval pending payment of transfer fee. The Division notified Mr. Allen that it intended to deny the Application in a letter dated May 9, 1988. Mr. Allen was provided a Notice of Disapproval of the Application in a letter dated June 29, 1988. The following reasons were given for denial of the Application: Application to transfer the license does not bear the signature of the current licensee and, therefore does not evidence a bonafide [sic] sale of the business pursuant to [Section] 561.32, Florida Statutes. Application incomplete as applicant has failed to provide complete verification of his financial investment. Also, applicant has failed to provide records establishing the annual value of gross sales of alcoholic beverages for the three years immediately preceding the date of the request for transfer. The Division is, therefore, unable to fully investigate the application pursuant to Florida law. By letter dated July 19, 1988, Mr. Allen requested a formal administrative hearing to contest the Division's denial of the Application. Mr. Allen sent a letter to the Division dated October 27, 1988, with an Affidavit requesting permission to pay a transfer fee of $5,000.00 "in lieu of the 4-mill assessment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case dismissing the case with prejudice. DONE and ENTERED this 17th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of January, 1989. COPIES FURNISHED: Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Lt. B. A. Watts, Supervisor Division of Alcoholic Beverages and Tobacco Department of Business Regulation 345 S. Magnolia Drive, Suite C-12 Tallahassee., Florida 32301 Harry Hooper Deputy General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301-1927
The Issue Whether Respondent committed the violation alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Atlantic Street Station, located in Delray Beach, Florida. Since 1998, Respondent has held a Special Restaurant License (license number 60-11520 4COP SRX), authorizing it to sell alcoholic beverages on the premises of Atlantic Street Station. During the months of January and February 2000, $66,729.49, or slightly less than 33% of Atlantic Street Station's total gross revenues of $205,679.76, came from the retail sale on the licensed premises of food and non-alcoholic beverages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent violated Section 561.20(2)(a)4., Florida Statutes, as alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years," and fining Respondent $1,000.00. DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida. ____________________________ 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 16th day of February, 2001.
The Issue The issue in Case no. 92-4204 is whether the Respondent correctly reported and remitted the alcoholic beverage surcharge for the audit period of July 1, 1990 through March 31, 1991. The amount claimed by the Department for this case is $5,767.82. The issue in Case no. 92-4205 is whether the Respondent correctly reported and remitted the surcharge for the audit period of July 1, 1990 through March 31, 1991. The amount of the audit deficiency alleged by the Department for this case is $4,952.48.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of enforcing and administering Chapter 561, Florida Statutes. Respondent is the owner and holder of two alcoholic beverage licenses. License no. 58-01411 which is a 4COP SRX license is for Hemingway's Oyster Bar and Caribbean Barbeque, Inc. doing business as Townsend's Fish House, Oyster Bar & Tavern (Fish House). The business location for that license is 35 West Michigan Street, Orlando, Florida. The second license, license no. 58-02757, is also a 4COP SRX license for Hemingway's Oyster Bar and Caribbean Barbeque, Inc. doing business as Townsend's Plantation and Doc Tommy's Tavern (Plantation). That business location is 604 E. Main Street, Apopka, Florida. Following the enactment of Section 561.501, Florida Statutes, the Department issued a form designated DBR 44-005E that directed alcoholic beverage licensees to elect a method of reporting and computing the beverage surcharge. The form directed licensees to specify whether the beverage surcharge would be paid based upon purchases or based upon sales. For vendors utilizing the sales method, form DBR 44-005E required a certification of the inventory of alcoholic beverages on hand before opening for business July 1, 1990. Respondent elected to utilize the sales method. The Fish House inventory certified that it had 351.05 gallons of beer (241 bottled, 110.05 draft), 79.48 gallons of wine, and 172.82 gallons of liquor on hand as of the date noted. The Plantation certified it had 183.84 gallons of beer, 139.14 gallons of wine, and 99.46 gallons of liquor. In May, 1991, auditors employed by the Department met with Respondent's employees at each of the licensed premises. An audit for the period July, 1990 through March, 1991, utilizing the depletion method was chosen since the licensee had elected the sales method for reporting and remitting the beverage surcharge. In performing the audit at the Plantation location, the Department accepted that 74.66 gallons of liquor, 39.85 gallons of wine, and 567 gallons of draft beer were used in food preparations and were, therefore, not included in the gallons reported for surcharge purposes (cooking allowance). The invoices for suppliers at the Plantation were reviewed for the following categories of purchases: draft beer, beer (presumably bottled or canned), wine coolers, wine, and liquor. By adding the total of all purchases for the audit period to the beginning inventory, the Department calculated a total volume for the Plantation. In theory, by subtracting the ending inventory from the total volume resulted in the amounts of beverages consumed. From that amount the Department subtracted the cooking allowance noted above, and a spillage amount provided for by rule. As it is presumed some spillage occurs in the mixing and serving of beverages, the rule provides for an offset for spillage by beverage category. Following the procedure outlined above, the auditor calculated that for the audit period, the Plantation had sold 720 gallons of draft beer, 1731.61 gallons of beer, 8.55 gallons of wine coolers, 1090.70 gallons of wine, and 546.27 gallons of liquor. When compared to the reports filed by the Plantation, the auditor determined that in each category noted, the licensee had under reported the volumes sold. The difference for each category was: 494.01 gallons of draft beer, 788.25 gallons of beer, 8.55 gallons of wine coolers, 642.01 gallons of wine, and 244.93 gallons of liquor. The total additional surcharge which should have been remitted based upon the difference not reported was $5,767.82. The auditors used the same approach when reviewing the records for the Fish House. The cooking allowance accepted by the Department for the Fish House was 1400 gallons beer, 67.38 gallons wine, and 9.50 gallons liquor. The spillage allowance was calculated as provided by rule. Additionally, a collection allowance was given for the Fish House in the amount of $195.85. After computing the totals as described above, the auditor found a difference in each of the categories reviewed. After applying the surcharge to the unreported sales amount, the Fish House was cited for a shortage of $4,952.48. The Fish House management claimed, as part of the volume unaccounted for, drinks which were deemed complimentary or free. However, such beverages should have been included in the volume reported as a sale. Respondent also claimed that the spillage allowance provided for by rule was arbitrarily low. Also unconsidered were the losses to inventory due to theft. When such losses are deemed minimal, the theft may go unreported to police or insurance. Cumulatively such losses may be significant. Also unconsidered in reconciling the inventory was the industry practice of "over pours." While discouraged by Respondent, it is not uncommon for bartenders to pour more than the standard measurement of liquor for a good customer. If so, the Respondent's practice of looking to the number of sales to determine ounces sold would have resulted in an under estimating of the ounces dispensed. The auditors did not review the sales tapes or other sales records to confirm the surcharge amounts. The Respondent was unaware of the audit method which would be used to review the surcharge accounting. No insurance or police reports were made for the loss or stolen inventory claimed by Respondent.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order in case no. 92-4204 requiring the Respondent to remit an additional surcharge in the amount of $5,767.82. For case no. 92-4205, the Department should require the Respondent to remit an addition surcharge amount of $4,952.48. DONE and ENTERED this 7th day of January, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 7th day of January, 1993. APPENDIX TO CASE NOS. 92-4204 AND 92-4205 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1, 2, 3, 5, 6, 7, 9, 13, 17, 18, 21, and 22 are accepted. Paragraph 4--the first sentence is accepted; otherwise rejected as irrelevant or comment. Paragraph 8 is rejected as irrelevant. Paragraphs 10, 11, and 12 are rejected as irrelevant or argument. Paragraph 14 is rejected as irrelevant. Paragraph 15 is rejected as repetitive, unnecessary or irrelevant. Paragraph 16 is rejected as argument. Paragraphs 19 and 20 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 and 2 are accepted. Paragraph 3 is rejected as irrelevant. Paragraph 4 is rejected as contrary to the weight of credible evidence. Paragraph 5 is rejected as contrary to the weight of the evidence or irrelevant. Paragraph 6 is rejected as irrelevant. Paragraph 7 is rejected as irrelevant or contrary to governing law or rule. NOTE: Respondent mistakenly has alleged facts or circumstances more appropriately raised by a rule challenge procedure. Section 120.57(1) hearings do not resolve issues related to the lawfulness of rules. Further, challenges to unpromulgated agency policy should be challenged as an unpromulgated rule. Such challenges are not appropriate to this type of proceeding. COPIES FURNISHED: Miguel Oxamendi Asst. General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Richard S. Wright Firstate Tower, Ste. 1550 255 S. Orange Avenue Orlando, FL 32801 Clay M. Townsend 35 W. Michigan St. Orlando, FL 32806 Richard W. Scully, Executive Director Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Donald D. Conn, General Counsel Dept. of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007
The Issue Whether proposed Rules 61A-7.003, 61A-7.007, 61A-7.008, and 61A-7.009 constitute invalid exercises of delegated legislative authority, pursuant to Section 120.52(8), Florida Statutes,1/ for the reasons described by Petitioner in its Petition.
Findings Of Fact Petitioner and Intervenor are companies whose substantial interests will be affected by the proposed rules and they have standing to bring this rule challenge. The State of Florida, Department of Business and Professional Regulation (the Department), is the state agency responsible for adopting the proposed rules which are the subject matter of this proceeding. The Division of Alcoholic Beverages and Tobacco (the Division) is vested with general regulatory authority over the alcoholic beverage industry within the state. The Division issues both general and special alcoholic beverage licenses. See Chapters 561-565, Fla. Stat. The general licenses which permit consumption on the premises are: 1COP licenses which permit consumption of beer and certain wine and distilled spirit products; 2COP licenses which permit consumption of beer, wine, and certain distilled spirit products; and 4COP licenses which permit the consumption of beer, wine, and all distilled spirits. See §§ 563.02(1)(b)-(f), 564.06(5)(b), and 561.20(1), Fla. Stat. The 4COP licenses are known as quota licenses, are issued based on the population of the county, and are limited in number. § 561.20(1), Fla. Stat. Quota liquor licenses range in value, depending on the county involved, from a low of approximately $20,000, to a high of approximately $300,000. (stipulation of parties) The SBX or special bowling license is issued by the Division pursuant to Section 561.20(2)(c), Florida Statutes. The owner or lessee of a bowling establishment having 12 or more lanes and necessary equipment to operate them may obtain this special license which permits consumption of beer, wine, and distilled spirits. Alcohol can only be sold for consumption on the licensed premises. Another special alcoholic beverage license listed in proposed Rule 61A-7.003 is the 12RT license. The holder of such a license must be a caterer at a dog track, horse track, or jai alai fronton. In this context, Section 565.02(5), Florida Statutes, reads in pertinent part as follows: (5) A caterer at a horse or dog racetrack or jai alai fronton may obtain a license upon the payment of an annual state license tax of $675. Such caterer’s license shall permit sales only within the enclosure in which such races or jai alai games are conducted, and such licensee shall be permitted to sell only during the period beginning 10 days before and ending 10 days after racing or jai alai under the authority of the Division of Pari- mutual Wagering of the Department of Business and Professional Regulation is conducted at such racetrack or jai alai fronton. . . . Petitioner participated, to some degree, in the rule development process. The extent of that participation is unclear from the record. The text of the proposed rules as published in their final form in the Florida Administrative Weekly on October 10, 2003, is as follows: 61A-7.003 Premises Not Eligible For Smoking Designation. Licensed premises shall not be designated as a stand-alone bar if the qualifications for licensure require the premises be devoted predominantly to activities other than the service of alcohol. The following licenses are not eligible for a stand-alone bar designation: S = Special Hotel SH = Special Hotel in counties with population of 50,000 or less SR = Special Restaurant issued on or after January 1, 1958 SRX = Special Restaurant SBX = Special Bowling SAL = Special Airport SCX = Special Civic Center SCC = Special County Commission SPX = Pleasure, Excursion, Sightseeing, or Charter boats X = Airplanes, Buses, and Steamships IX = Railroad Cars XL = Passenger Waiting Lounge operated by an airline PVP = Passenger Vessels engaged in foreign commerce FEX = Special Public Fairs/Expositions HBX = Special Horse Breeders HBX = Special County Commission 11AL = American Legion Post permitted to sell to general public 11C = Social, Tennis, Racquetball, Beach, or Cabana Club 11CE = Licensed vendors exempt from payment of surcharge tax 11CS = Special Act Club License 11CT = John and Mable Ringling Museum 11GC = Golf Club 11PA = Symphony, Live Performance Theatre, Performing Arts Center 12RT = Dog or Horse Track or Jai Alai Fronton 13CT = Catering Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695 FS. History--New 61A-7.007 Formula For Compliance With Required Percentage of Gross Food Sales Revenues. In order to determine compliance, the division shall use the formula of gross food sales revenue, including but not limited to non-alcoholic beverages, divided by gross total sales revenue, in any consecutive six- month period. The results of the formula will represent the percentage of food sales revenues as defined herein and in s. 561.695, Florida Statutes. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(6) FS. History--New 61A-7.008 For Percentage of Gross Alcohol Sales Revenue Formula. In order to determine compliance, the division shall use the formula of gross alcohol sales revenue divided by gross total sales revenue, in any consecutive six-month period. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(6) FS. History--New 61A-7.009 Method Used to Determine Whether an Establishment is Predominantly Dedicated to the Serving of Alcoholic Beverages. In order to determine whether an establishment, other than one holding a specialty license designated in Rule 61A- 7.003, F.A.C., is predominantly dedicated to the serving of alcoholic beverages, the division shall compare the percentage of gross food sales revenue with the percentage of gross alcohol sales revenue. If the percentage of gross alcohol sales revenue is greater than that of the gross food sales revenue, an establishment is deemed predominantly dedicated to the serving of alcoholic beverages. Specific Authority 386.2125, 561.695(9) FS. Law Implemented 386.203(11), 561.695(1)(9) FS. History--New Article X, Section 20, Florida Constitution, was adopted by the electorate in 2002, and generally prohibits smoking in enclosed indoor workplaces. This constitutional provision includes certain exceptions from this general prohibition including the "stand-alone bar" exception. Section 20(d) instructs the Florida Legislature to adopt legislation to implement its provisions and specifies that the Legislature is not precluded from enacting any law constituting or allowing a more restrictive regulation of tobacco smoking than is provided in Section 20. The legislature implemented the constitutional amendment by amending Part II, Chapter 386, Florida Statutes. Section 386.204 prohibits smoking in enclosed indoor workplaces, except as provided in Section 386.2045. Section 386.2045 enumerates exceptions to the general prohibition, including the exception of a stand-alone bar. Section 386.2045(4), Florida Statutes, reads as follows: (4) STAND-ALONE BAR- A business that meets the definition of a stand-alone bar as defined in s. 386.203(11) and that otherwise complies with all applicable provisions of the Beverage Law and this part. A stand-alone bar is defined in Section 386.203(11) as follows: (11) 'Stand-alone bar' means any licensed premises devoted during any time of operation predominately or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises; in which the serving of food, if any, is merely incidental to the consumption of any such beverage; and the licensed premises is not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace, including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this subsection if the licensed premises derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises. Deborah Pender is the chief of licensing for the Division. According to Ms. Pender, the Division included the SBX or special bowling license in the list of special licenses that cannot qualify for stand alone bar status in proposed Rule 61A- 7.003 because its predominant business is a bowling alley. Similarly, the 12RT license was included because its predominant business is a racetrack: "Because that’s a specialty license that is issued at race tracks, and if it wasn’t a race track business, the caterer . . . couldn’t have a license anywhere else." Marie Carpenter is the chief of the Bureau of Auditing of the Division. According to Ms. Carpenter, the provision regarding the six consecutive months in proposed rules 61A-7.007 and 61A-7.008 was intended to give the Division enough of a period of time to get a good picture of whether the business met the criteria for compliance and to give licensees an opportunity to build up business records that were not previously required to be kept.2/ The licensee would be required to keep daily records. Ms. Carpenter acknowledged that in using the six month auditing period in the proposed rule, a licensee could exceed the 10 percent requirement on one or more occasions during the audit period. Sandy Finkelstein is President of Petitioner and is the operating partner of Shore Lanes Bowling Center in Merritt Island, Florida. According to Mr. Finkelstein, there is at least one bowling facility in Florida that was issued a 4COP license. A bowling facility with a 4COP license is not automatically excluded from the stand-alone bar designation, whereas a bowling facility with an SBX license is automatically excluded from the stand-alone bar designation by virtue of proposed rule 61A-7.003.
