The Issue The issue in these cases is whether Respondent is guilty of violating provisions governing the operation of restaurants and, if so, what penalty should be imposed.
Findings Of Fact Respondent is the owner and operator of Mr. P's Emporium and the Spaghetti House, which are both names of the same restaurant located at 1709 West Vine St. (State Route 192), Kissimmee, Florida. Petitioner issued Respondent license number 59-00352-R to operate the restaurant. Respondent first began operating a restaurant at the West Vine St. location nearly 20 years ago. In 1976, Respondent encountered a problem with Frank Wolf, who was then a food-service inspector employed by the Osceola County Health Department. Mr. Wolf is now the Environmental Health Director of the Osceola County Health Department. Responsibility for restaurant food-service inspections appears to have been assumed by the Health Department at one time. Presently, food-service inspections are conducted by Petitioner or, pursuant to contract with Petitioner, the Office of Restaurant Programs (ORP), which is part of the Department of Health and Rehabilitative Services. Mr. Wolf and Respondent had a misunderstanding concerning Respondent's application for a beer and wine license when he was opening his new restaurant. Although the license was issued, Respondent's relations with the Health Department worsened when Mr. Wolf later took photographs during a routine inspection. In attempting to resolve Respondent's objections to the photographing of his restaurant, the Director of the Health Department worked out an arrangement with Respondent that no inspector would conduct an inspection of Respondent's restaurant without first calling him and making an appointment. If Respondent then failed to be present at the restaurant at the appointed time, the inspector would conduct the inspection without him. However, Respondent invariably made sure he was present so he could accompany the inspector. This special arrangement was not extended to any other restaurants in the area; such restaurants remained subject to unannounced food-service inspections. In 1981, Respondent moved to South Florida, leaving the Kissimmee restaurant in charge of his son, Art, Jr. The following year, Art. Jr. expressed an interest in leaving the restaurant business. When Respondent returned to run the Kissimmee restaurant, he learned that Art, Jr. had not required the Health Department inspectors to contact him in advance of inspections. Respondent immediately proceeded to restore this arrangement, not hesitating, as always, to contact supervisors of supervisors, both locally and in Tallahassee, to ensure that all problems were straightened out to his satisfaction. It appears that the old practice of prior notice before inspection was reinstated. The alleged violations set forth in DBR Case No. 04-91-199 arose as a result of an inspection on January 2, 1991. On that day, an inspector employed by the Osceola County Health Department, Dolores Miller, visited the restaurant to conduct an inspection. She found the front door locked and approached the side door. She had not made any prior arrangements with Respondent. Respondent was not in the restaurant at the time of Ms. Miller's visit. There is a dispute as to what transpired. Ms. Miller testified that a big dog attacked her after she announced, at the open side screen door, "Hello, Health Department." This testimony is discredited. Respondent lived upstairs over the restaurant with this dog, which was permitted to roam the area outside the restaurant but not inside the restaurant. Respondent testified that the dog is friendly and does not serve as a watchdog. Respondent's dog, which sometimes roamed freely outside of the restaurant, would not likely be unfriendly. Otherwise, the dog would frighten away customers. No evidence suggests that the dog could identify Ms. Miller as a food-service inspector from the Health Department, and, sharing Respondent's antipathies, selectively attacked Ms. Miller. Ms. Miller's testimony is discredited for a second reason. She testified that she left a copy of the Inspection Report, Petitioner Exhibit 3, at the restaurant and that the copy stated at the bottom, in her handwriting: "Management would not allow me to do an insp[ection.]" Respondent testified that Ms. Miller left a copy of Petitioner Exhibit 3, but it had no such language on it. Respondent produced a copy of his copy, which contained no such language. Respondent's exhibit does not appear to be altered. To the contrary, it is found that Ms. Miller added this notation to her office copy and did not leave at the restaurant a copy of the Inspection Report with the notation. Therefore, the remaining facts concerning the January 2, 1991, incident are primarily based on Respondent's version of the events. When Ms. Miller appeared at the restaurant, Respondent's dog was in the vicinity. In the course of conversing with the restaurant employees, Ms. Miller inadvertently allowed the dog to enter the kitchen, where the dog was not permitted and, on the rare occasions when the dog found its way into the kitchen, was never allowed to stay. Ms. Miller did not make an effective request of Respondent to make an inspection. She did ask Respondent's kitchen help for access to the premises for the purpose of conducting an inspection. Acting in accordance with Respondent's usual instructions, the employees denied Ms. Miller permission. Had the matter ended at this point, Respondent, through his agents, would have denied Ms. Miller access for the purpose of conducting an food-service inspection. However, Ms. Miller returned to the restaurant to alter the date on the form that she had left with the workers. While she was correcting the date on both forms, Respondent returned to the restaurant. Having accidentally allowed Respondent's dog into the kitchen once again, Ms. Miller incurred Respondent's displeasure, as he began to yell at her. Although it is understandable under the circumstances, Ms. Miller nonetheless, by her own admission, neglected to ask Respondent to allow her to inspect the restaurant. Although Respondent had authorized his employees to deny an inspector access to the restaurant in his absence, they had no such authority while he was on the premises. The employees' refusal of access, given Ms. Miller's return to the premises almost immediately after her departure, constituted only a deferral of the decision given the fact that Respondent had returned while Ms. Miller was still at the restaurant. Under these circumstances, the deferral of the decision did not ripen into a denial unless and until Ms. Miller directed to Respondent her demand of access. Petitioner has thus failed to prove the allegations of the Notice to Show Cause arising out of the January 2, 1991, "inspection." 1/ The alleged violations set forth in DBR Case No. 04-92-85 arose as a result of an encounter between Respondent and food-service inspectors on August 30, 1991. On August 22, 1991, the local office of the Division of Hotels and Restaurants received a complaint from a person who had patronized Respondent's restaurant. She complained that a sign outside Respondent's restaurant was misleading. According to the complaint, the sign advertised a lunch buffet for $2.99, but the price for the lunch buffet, if no drink were ordered, was actually 49 cents more. The rectangular sign itself consists of three parts. The uppermost strip states horizontally: "$5.99 DINNER $5.99." The lowermost strip states horizontally: "$2.99 LUNCH $2.99." The larger middle portion states in small angular script: "Italian." Beside the word, "Italian" runs horizontally the word, "BUFFET" in letters larger than any others on the sign. The four prices were in red, the words "DINNER" and "LUNCH" were in green, the word "Italian" was in green, and the word "BUFFET" was in red. Respondent only offered three items for lunch. The lunch special was salad, spaghetti, and meatballs. The price for the lunch special was $2.99, regardless whether the customer ordered a drink other than water, which was free. The Italian buffet was $2.99, but the menu clearly indicated that the price for the buffet was $3.49 if no beverage (other than water) was ordered. The third item was pizza, which was available a la carte. Respondent's sign was not false or misleading. The sign advertised a lunch available for $2.99 and a lunch--a nourishing and substantial one--was available at that price. Any expectation that the customer could obtain the lunch buffet for $2.99 was not based on a fair reading of the sign, which advertises the standard lunch entry. 2/ Significantly, there was no evidence of any other complaints concerning the accuracy of the sign, which, perhaps not surprisingly, remained unchanged until February, 1992. Unfortunately, Respondent's encounter with Mr. Laforte was no happier than his encounter eight months earlier with Ms. Miller. Respondent is an intelligent, sensitive, honest, and hard-working older gentleman operating a restaurant at which business has been better in previous years. Respondent is also impulsive, stubborn, cranky, and quick to demand special treatment. There is no doubt that the patience of most food- service inspectors would be quickly exhausted when confronted by Respondent's in-your-face style of interpersonal relations, constant carping about all but the most obvious of deficiencies noted in routine inspections, repeated insistence upon nonexistent constitutional rights to protect his property (i.e., the restaurant) from the trespasses (i.e., inspections) of government employees, frequent charges of selective enforcement, and willingness to go over the head of the inspector at what he perceived as the slightest provocation (e.g., an inspection). Omitting the subordinate details of escalating unpleasantries between Mr. Laforte and Respondent, the key event is that on August 30, 1991, Mr. Laforte and his immediate supervisor, Kendall Burkette, visited the restaurant. As a courtesy, they requested the food-service inspector from ORP to accompany them. Her name is Jo Ellen Beekman-Dean. Responsible for routine food-service inspections of Respondent's restaurant, Ms. Beekman-Dean had, and continues to have, a very good relationship with Respondent. Among other things, Respondent had allowed her to make a food-service inspection of his restaurant on July 8, 1991, although she had not made an appointment first. As the trio entered the restaurant at about 1:30 p.m., they asked a waitperson or cashier who was in charge. They were introduced to John Bauer, who was a cook. They asked to see the restaurant license, which was not posted at the cashier's station. Mr. Bauer led them to the storeroom, but they could not find the restaurant license that DBR had issued. In fact, Respondent had closed his restaurant due to declining business earlier in the year and had not paid to renew his license at the normal time in April. However, he had paid the normal fee and late charges on August 6, 1991, about three weeks prior to the August 30 inspection. Moreover, Mr. Laforte had handled the paperwork on Respondent's late renewal. Mr. Laforte had issued Respondent a receipt, which serves as a temporary license. However, Respondent did not understand this fact and had not posted the receipt/temporary license pending the arrival of the permanent license, which had not yet been sent from Tallahassee. The alleged violations set forth in DBR Case No. 04-92-84 arose as a result of the August 30 inspection conducted by Ms. Beekman-Dean, as well as subsequent activities occurring on September 9 and 10, 1991. Ms. Beekman-Dean decided to conduct a food-service inspection on August 30 because she was already at the premises. At the time, she was required to conduct four such inspections annually; if possible, quarterly. She had conducted an inspection on July 8, reinspected certain deficiencies on July 22, and reinspected on August 12 those deficiencies not remedied by July 22. The deficiencies were cleared up by then and Ms. Beekman-Dean determined that the restaurant was in compliance. As Ms. Beekman-Dean conducted her inspection, she encountered Art, Jr., who had evidently not been in the restaurant when Ms. Beekman-Dean, Mr. Laforte, and Mr. Burkette had first arrived. Saying that he was going to call his father about the inspection, Art, Jr. returned to tell her that she could conduct her inspection. During the inspection, Ms. Beekman-Dean discovered that the walk-in cooler was not working and the temperature had reached 60-67 degrees. She contacted her supervisor to obtain approval to enter a Stop Sale Order. Getting the supervisor's approval, Ms. Beekman-Dean then informed Art, Jr. of the malfunction. He had not known of the problem and promptly fixed it by flipping a reset switch. As Ms. Beekman-Dean and Mr. Laforte were sitting at a table while Ms. Beekman-Dean finished her paperwork (Mr. Burkette having already left), Respondent returned to the restaurant. Seeing Mr. Laforte, Respondent, still irritated over his feeling that Mr. Laforte had not dealt with him fairly over the signage question, pointed at him and said, "Get out." As Mr. Laforte left, Ms. Beekman-Dean prepared also to depart, but Respondent assured her that she could remain. Finishing her Inspection Report, Ms. Beekman-Dean mentioned the problem with the walk-in cooler. After confirming with his son the existence of the problem, Respondent willingly agreed to destroy the food. For this reason, the most serious deficiency uncovered by Ms. Beekman-Dean's August 30 inspection is not alleged as a deficiency in the Notice to Show Cause in DBR Case No. 04- 92-84 or, thus, DOAH Case No. 91-7103. The only other major deficiency noted on the August 30 Inspection Report, which is Petitioner Exhibit 7, is the failure of the operator to keep the rear (or side) door shut or repair the screen door and then leave it shut. An additional 13 items were noted as minor deficiencies. The deficiencies were: failing to label bulk containers; storing lemons in a sealed, hanging container in the ice machine; storing toxic items improperly; failing to clean the slicer, reach-in cooler, dry-storage shelves, mixer, outside of the ice machine, floor fan, and cooler gaskets; failing to refinish or replace rusted shelves in the reach-in freezer; failing to provide soap at a hand sink; failing to bag all garbage before placing in the dumpster, failing to clean the dumpster, and failing to keep the dumpster lid closed; failing to clean area around the dumpster; failing to clean floors, failing to ensure all surfaces are smooth and easily cleanable, and failing to install molding between the floor and wall to facilitate cleanliness; failing to repair holes in the walls and ensure that that the walls and ceiling in food prep room meet; failing to provide shields on all lights in kitchen, prep areas, coolers, and freezers; and failing to post a DBR restaurant license. As is the typical practice, Ms. Beekman-Dean gave Respondent a period of time to correct the deficiencies. In this case, she wrote on the form that a reinspection would take place on September 9, 1991. Ms. Beekman-Dean handed Respondent a copy of the Inspection Report, which prominently displayed the reinspection date. Respondent promptly contacted Petitioner's offices in Tallahassee to complain about selective enforcement and bias. When Ms. Beekman-Dean returned around lunchtime to reinspect the premises on September 9, 1991, Respondent said he was busy preparing food, refused her access to the restaurant, and invited her to return later in the day. She declined and warned him that she would have to report this. He acknowledged her warning and said that she would have to do what duty required. Some follow-up activities took place, first in connection with an informal conference and later in connection with prehearing preparation in connection with the above-styled cases. The material allegations end as of September 9, when Respondent refused Ms. Beekman-Dean to conduct the reinspection as previously scheduled. It is sufficient to note that, based on inspections that Respondent permitted on October 2, 1991, and March 6, 1992, he had not repaired the screen door by the September 9 reinspection date and a number of the minor deficiencies remained uncorrected as of that time as well.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of violating the above-cited statutory and regulatory provisions, imposing an administrative fine of $1000, and requiring Respondent to attend a Hospitality Education Program, at his expense, within six months of the date of the final order. ENTERED this 18th day of June, 1992, 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 18th day of June, 1992.
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.
The Issue Does Petitioner, Target, have standing to challenge proposed rule 61A-3.055, Items Customarily Sold in a Restaurant (proposed rule or proposed restaurant rule), (Case No. 19- 4913RP)? Does Petitioner, Walmart, have standing to challenge the proposed restaurant rule (Case No. 19-4688RP)? Does Intervenor, ABC, have standing to participate in these challenges to the proposed rule? Does Intervenor, FISA, have standing to participate in these challenges to the proposed rule? Does Intervenor, Publix, have standing to participate in these challenges to the proposed rule? Is the proposed restaurant rule an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes (2019)?1/
Findings Of Fact Parties Division The Legislature has charged the Division with administration of Florida's Alcoholic Beverage and Tobacco Laws, including Chapters 562 through 568, Florida Statutes, known collectively as the "Beverage Law." 561.01(6), Fla. Stat. This charge includes licensing and regulation, as well as enforcement of the governing laws and rules. Title XXIV of the Florida Statutes governs sale of alcoholic beverages and tobacco. It includes chapters regulating beer (chapter 563), wine (chapter 564), and liquor (chapter 565). Among other things, these similarly structured chapters impose license fees, with the amounts determined by the population size of the county where the business is located. Section 565.02 creates fee categories for "vendors who are permitted to sell any alcoholic beverages regardless of alcoholic content." Section 565.02(1)(b)-(f) establishes the license fees based upon county population for licenses for places of business where consumption on premises is permitted. These are referred to as "COP" licenses. A number preceding COP, such as 4COP, indicates the county population range and therefore license fee amount for a particular license holder. Section 565.045, Florida Statutes, also permits COP license holders to sell sealed containers of alcoholic beverages for consumption off the premises (packaged goods). Walmart Walmart is a multinational corporation. It owns subsidiaries that own and operate retail stores, warehouse clubs, and an e-commerce website operated under the "Walmart" brand. Walmart does not own or operate stores. It holds them through wholly owned subsidiaries. For instance, Walmart is the parent company of its wholly owned subsidiary Wal-Mart East. Stores of Walmart subsidiaries have three primary formats. They are Supercenters, Discount Stores, and Neighborhood Markets. The record is silent about the nature and degree of day- to-day control, policy control, and marketing control that Walmart exercises or has authority to exercise over the subsidiaries. It is also silent about the nature and structure of the fiscal relationship between Walmart and its wholly owned subsidiaries. Walmart does not have a license issued by the Division pursuant to section 565.02(1)(b)-(f). Walmart has not applied for a license from the Division issued under section 565.02(1)(b)-(f). The record does not prove that Walmart intends to apply for a COP license. Wal-Mart East Wal-Mart East owns and operates "Walmart" branded stores at approximately 337 Florida locations. They include approximately 231 "Supercenters," nine "Discount Stores," and 97 "Neighborhood Markets." All of these stores sell food items. Depending on the store category, the items may include baked goods, deli sandwiches, hot meals, party trays, and to-go food items, such as buckets of fried chicken and pre-made salads. The areas adjacent to the departments of Wal-Mart East that sell food do not have seats and tables for diners. There are some benches, but not tables, scattered around inside the stores. None of the stores holds a license from the Florida Division of Hotels and Restaurants or the Florida Department of Health. They hold "retail food store" or "food establishment" licenses from the Florida Department of Agriculture and Consumer Services. In his deposition, Tyler Abrehamsen, assistant manager for Wal-Mart East Store #705 in Mt. Dora (Store 705), aptly described Walmart as "more than just a store." Walmart sells "anything you can think of from sporting goods to deli to candy." A Supercenter sells, among other things, general merchandise, golf balls, fishing gear, socks, motor oil, ammunition, groceries, deli goods, electronics, home furnishings, groceries, and hot food. Supercenters may house specialty shops such as banks, hair and nail salons, restaurants, or vision centers. Walmart Supercenters offer 142,000 items for sale. Many house McDonalds or Subway restaurants. Discount Stores are smaller than Supercenters. They sell electronics, clothing, toys, home furnishings, health and beauty aids, hardware, and more. Discount Stores offer about 120,000 items. A Neighborhood Market is smaller than a Discount Store. Neighborhood Markets sell fresh produce, meat and dairy products, bakery and deli items, household supplies, health and beauty aids and pharmacy products. Walmart Neighborhood Markets offer about 29,000 items. Store 705 is a Supercenter. The store holds a food permit issued by the Florida Department of Agriculture and Consumer Services under Chapter 500 to operate as a retail food store or food establishment. There are four picnic tables with seating in a pavilion outside the store. Some benches, but not tables, are scattered around the store. Store 705 holds a 2APS license permitting beer and wine package sales only. Wal-Mart East applied to the Division to change the license to a COP license. The Division processed the application and issued Store 705 a temporary license on May 13, 2019. Two days later the Division advised Store 705 that it issued the temporary license erroneously and that the license was void. Shortly afterwards a Division employee recovered the license from Store 705. On June 7, 2019, the Division issued its Notice of Intent to Deny License, relying in part on section 565.045.3/ Section 565.045, which the proposed rule implements, prohibits issuing a COP license to a place of business that sells items not "customarily sold in a restaurant." The floor plan Store 705 provided with its COP license application does not delineate an area for serving and consuming alcoholic beverages. When asked about plans to serve alcohol by the drink, the Wal-Mart East representative testified, "However, I'm not suggesting that in the future at some point we wouldn't be interested in selling drinks by the glass at Store 705." The witness went on to say, "What I'm saying today is I don't know if there are future plans and I don't think that we're prepared to say one way or another whether this would be our plan for this location for eternity." (TR. Vol. 1, p. 161) Wal-Mart East only plans to sell alcohol by the container at Store 705. If issued a COP license, however, it would be permitted to sell alcohol by the drink. Lake County Property Appraiser records identify the land use of Store 705 as "Warehouse Store." There is no evidence about the significance of this, how the categorization is determined, or what purpose it serves. Several credit card companies categorize Wal-Mart East stores as "grocery stores" and "supermarkets" or discount stores. There is no evidence about the significance of these categorizations, their meaning, how the categorization is determined, or for what purpose the categorizations are applied. The lack of relevant information about how and why the property appraiser and credit card companies determine these categorizations make them meaningless for any determination of whether Wal-Mart East stores are restaurants. Wal-Mart East leases space within Store 705 to a separate entity doing business as Wayback Burgers. Wayback Burgers has a kitchen, a service counter, a fountain drink dispenser, and seats and tables for dining. The Division of Hotels and Restaurants issued the owner of Wayback Burgers, under the authority of Chapter 509, a license titled "Seating Food Service License." The definitions section of Chapter 509 does not contain a definition for "Seating Food Service." The license does not identify the physical area covered by the license, although it refers to 22 seats. The Division of Hotels and Restaurants inspects only the area identified by signage, seating, food preparation area, and service area when inspecting Wayback Burgers. The Division of Hotels and Restaurants does not license the rest of Store 705 or any other Wal-Mart East store in Florida. The Department of Agriculture and Consumer Services issued Store 705 an Annual Food Permit denominated as for Food Entity Number: 33995. The license does not describe the physical area to which it applies. A January 4, 2019, document titled Food Safety Inspection Report for Store 705 lists "111/Supermarket" in a field of the report titled Food Entity Type/Description. The record does not explain the designation. The Department of Agriculture, Bureau of Food Inspection, Division of Food Safety, maintains a food inspection data base of permitted entities. That list identifies Store 705 as a supermarket. The Department of Agriculture often must decide whether it should license an establishment serving food or if the Division of Hotels and Restaurants should issue the license. The Department regulates food establishments and retail food stores. It does not have authority over food service establishments. Sometimes the Department consults with the Division of Hotels and Restaurants to determine what a business should be licensed as. When a vendor like McDonald's or Subway is located in a Walmart store the agriculture department bases its licensing category decision on ownership. If the store owns the McDonald's or Subway, the Department will license it. If a separate entity owns and operates the McDonald's or Subway, the department looks to the Division of Hotels and Restaurants to license it. Target The parties stipulated that Target is an upscale discount retailer that provides high quality, on-trend merchandise at attractive prices in clean, spacious, and guest- friendly stores. Target owns and operates approximately 126 general merchandise stores in Florida. Target does not hold a license issued by the Division under section 565.02(1)(b)-(f). The Florida Department of Agriculture and Consumer Services licenses all Target locations in Florida as retail food stores or food establishments under chapter 500. The licenses are for the entire store, including the food service portions discussed below. No Target store holds a license from the Florida Division of Hotels and Restaurants. The Florida Department of Health does not license any Target stores as food service establishments. Target sells beer and wine by the container in 124 of its Florida stores. At three store locations, Target sells beer, wine, and liquor from a separate liquor store with a separate entrance. Target operates Starbucks and Pizza Hut facilities under licensing agreements within 118 of its stores. Coffee, espresso, banana bread, chocolate chip cookies, ham and cheese croissants, oatmeal, and biscotti are representative examples of food sold at Target Starbucks. Target Pizza Huts typically sell carbonated drinks, smoothies, pretzels, popcorn, hot dogs, pizzas, chicken wings, and french fries. Some Target stores also have a Target Café selling limited food and beverage items. Target stores also sell items such as packaged, pre- made salads, fruit, and frozen meals. "Super Target" stores have delis, which sell cooked items like chicken fingers and rotisserie chicken. The cafés, Starbucks, and Pizza Huts occupy separate areas within the larger Target stores. They have their own cash registers. Customers may pay for retail items from the store at those cash registers. The inventory of all Target stores is subject to daily change. Location, geography, supply, and other factors affect a store's inventory. Target stores sell a gamut of items. They include groceries, frozen foods, furniture, rugs, garden tools, clothing, toys, sporting goods, health products, beauty products, electronics, office supplies, kitchen appliances, diapers, pet food, cell phones, and luggage. A Target store in Delray Beach has applied to the Division to change its beer and wine package license to a COP license. Target seeks the COP license in order to make package sales of liquor. Like the Walmart representative, Target's representative refused to state whether Target planned to offer alcohol by the drink at any of its stores. If it held a COP license, the store would be permitted to sell alcohol by the drink. ABC ABC stores retail alcoholic beverages in Florida. The stores hold a number of alcoholic beverage licenses issued by the Division. ABC holds 25 4COP licenses issued by the Division. In his deposition, the ABC corporate representative testified that he "would not be able to answer" if the proposed rule would have any impact on ABC. His testimony, however, proved that ABC stores seek clear guidance about what they can and cannot sell. Also, the proposed rule imposes limits upon what ABC stores can sell that the invalidated rule and the statute alone do not impose. FISA FISA is an independent association of alcoholic beverage retailers. It has 206 members. The Division licenses and regulates FISA's members. ABC is a FISA member. Including ABC, FISA members hold 61 4COP licenses. There is no evidence proving that any FISA member intends to apply for a COP license. Only the FISA members holding COP licenses would be affected by the proposed rule. This is not a substantial number of members. The other 145 members hold 3PS licenses (package sales) which the proposed rule does not affect. Neither the officers, the governing board, nor the members of FISA voted or took any other official action to authorize FISA to intervene in this proceeding. The evidence does not prove that the association is acting as a representative of its members in this proceeding. There is also no evidence, such as the FISA articles of incorporation, by-laws, or other association formation documents, proving the association's general scope of interest and activity or the authority of its President to act on its behalf. The evidence does not prove that participating in this proceeding is within the authority of the President or FISA. FISA President, Chris Knightly, testified in deposition that any change in where liquor could be sold could have an extreme financial impact on small family-owned businesses. But FISA offered no evidence to show the impact on its members or, for that matter, that any FISA members were actually small, family-owned businesses. The President also testified that the impact of the rule on FISA members would be minimal because the non-alcoholic items the stores sold were just conveniences for customers, not significant revenue sources. In light of the President's statement about minimal impact on FISA members and the number of members who hold COP licenses, the record does not prove that the proposed rule would have a substantial effect on FISA or a substantial number of its members. Publix Publix is a supermarket chain in Florida. It also operates a number of liquor stores throughout Florida. Publix holds two 4COP licenses and ten 2COP licenses (beer and wine only) issued by the Division.4/ The proposed rule imposes limits upon what Publix can sell at its 4COP licensed stores that the invalidated rule and the statute alone do not impose. Rulemaking The Division seeks to implement section 565.045. The pertinent parts of the statute provide: Vendors licensed under s. 565.02(1)(b)- (f) shall provide seats for the use of their customers. Such vendors may sell alcoholic beverages by the drink or in sealed containers for consumption on or off the premises where sold. (2)(a) There shall not be sold at such places of business anything other than the beverages permitted, home bar and party supplies and equipment (including but not limited to glassware and party-type foods), cigarettes, and what is customarily sold in a restaurant. The Division, both in the invalid rule and in the proposed rule, seeks to provide clarity about the meaning of "customarily sold in a restaurant" as it is used in the statute. That desire was the reason it adopted the original rule, now invalidated, in 1994. The review by the Joint Administrative Procedures Committee (JAPC) back then observed, "Absent explanatory criteria, use of the word 'customarily' vests unbridled discretion in the department." The Division responded: "As mentioned in our meeting, all of proposed rule 61A-3.055 [1994 version] is, in itself, the division's attempt to define the admittedly vague phrase 'items customarily sold in a restaurant', as used in s. 565.045." The invalidated rule provided: 61A-3.055 Items Customarily Sold in a Restaurant. As used in Section 565.045, F.S., items customarily sold in a restaurant shall only include the following: Ready to eat appetizer items; or Ready to eat salad items; or Ready to eat entree items; or Ready to eat vegetable items; or Ready to eat dessert items; or Ready to eat fruit items; or Hot or cold beverages. A licensee may petition the division for permission to sell products other than those listed, provided the licensee can show the item is customarily sold in a restaurant. This petition shall be submitted to the director of the division at Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 2601 Blair Stone Road, Tallahassee, Florida 32399-1020, and must be approved prior to selling or offering the item for sale. For the purpose of consumption on premises regulations set forth in Section 565.045, F.S., items customarily sold in a restaurant shall include services or sales authorized in the "Florida Public Lottery Act", Section 24.122(4), F.S. The Final Order invalidating the earlier rule concluded: A rule is arbitrary if it is not supported by logic or necessary facts and is capricious if irrational. Dep't of Health v. Bayfront Med. Ctr., Inc., 134 So. 3d 1017 (Fla. 1st DCA 2012). Despite the Division representative's best efforts at deposition to avoid answering direct questions, the record proved that restaurants customarily sell at least T-Shirts and branded souvenirs. The Division, through the deposition testimony of its representative, acknowledged this. The record offers no explanation why subsection (1) of the Restaurant Rule does not include these items. Excluding an item that the Division acknowledges is customarily sold in restaurants from a list of items customarily sold in restaurants is illogical. Rule 61A-3.055 is arbitrary and capricious. In 2018, while the challenge to the existing rule in Case No. 18-5116RX was underway, the Division began proceeding to amend rule 61A-3.055. This was a response to the challenges to the existing rule. The Division conducted six public hearings to receive public comment on various proposed amendments to the rule and to solicit input from the public. Petitioners did not participate in the hearings. There is no evidence that Petitioners suggested rule language, such as items to be listed as "customarily sold in a restaurant" or identifying characteristics of items "customarily sold in a restaurant" to the Division. Representatives of Intervenors attended each of the public hearings. There is no evidence that they suggested language for the rule either. During the May 6, 2019, rule development hearing, a representative of the Florida Restaurant and Lodging Association suggested that the Division conduct an investigation, study, or survey to determine what merchandise or services restaurants customarily provide. During the rule development proceedings, the Division did not conduct any investigation, study, or survey to determine what is customarily sold in a restaurant. The Division did not examine a sampling of establishments that it considered restaurants to determine what is customarily sold in restaurants. The Division did not use any of the data collected in 50,000 inspections each year to perform any studies, surveys, or analyses of what is customarily sold in restaurants or by COP license holders. It only sought comment from the restaurant industry and Division licensees through the public hearing process.5/ As required by law, the Division submitted various iterations of the proposed rule to JAPC for review. For each version of the proposed rule that it reviewed, JAPC observed that the rule appeared to be overly restrictive and that it may be arbitrary and capricious. On August 16, 2019, the Division published the final version of the proposed amended rule in Volume 45, Issue Number 160 of the Florida Administrative Register. It states: 61A-3.055 Items Customarily Sold in a Restaurant. As used in section 565.045, Florida Statutes, items customarily sold in a restaurant shall only include the following: Food cooked or prepared on the licensed premises; or Hot or cold beverages; or Souvenirs bearing the name, logo, trade name, trademark, or location of the licensed vendor operating the licensed premises; or Gift cards or certificates pertaining to the licensed premises. For the purpose of consumption on premises regulations set forth in section 565.045, Florida Statutes, items customarily sold in a restaurant shall include services or sales authorized in the "Florida Public Lottery Act", section 24.122(4), Florida Statutes. The Division explains the wording of section (1)(c) of the proposed rule as being based on the conclusion " the record proved that restaurants customarily sell at least T-Shirts and branded souvenirs" in the Final Order invalidating the original rule. It also removed from the original rule language permitting a licensee to petition the Division to show an unlisted item is customarily sold at a restaurant. This change is also a reaction to the Final Order. As of the day of the hearing, the Division, in the person of its Deputy Director, could not state what a "restaurant" was. The Deputy Director testified: "The Department [Division] doesn't take a position on what is or isn't a restaurant in this instance [applying the proposed rule]. We didn't define it, so we don't have a position." (Tr. Vol. 1, p. 45). As of the hearing date, the Deputy Director for the Division could not state whether Walmart is a restaurant. (Tr. Vol. I, p. 84). On October 26, 2018, testifying in the earlier rule challenge, Thomas Philpot, the then Director of the Division and acting Deputy Secretary for the Department of Business and Professional Regulation, similarly said that the Division had no formal policy or procedure for deciding if a business was a restaurant. (Ex. 30, p.48). A clear definition of "restaurant" is the necessary predicate to determining what is customarily sold in a restaurant. Throughout the rule development and through the hearing, the Division did not have a clear definition of restaurant. The Division's representative testified that "[t]he Division does not have a definition that it can cite to either in statute or in rule for the term restaurant." (Ex. 20, p. 62). The Division's Proposed Final Order seems to take the position that a "restaurant" is either a public food service establishment licensed by the Florida Division of Hotels and Restaurants or a restaurant as defined in authoritative dictionaries. None of the parties, including the Division, offered results from any survey, study, or investigation, of either a statistically significant random sample or survey of all "restaurants," however they may be delineated, to determine what "restaurants" customarily sell.6/ Much of the evidence revolved around the theory advanced by Target and Wal-Mart East that because they offer areas where customers can purchase prepared food; because vendors like McDonalds, Pizza Hut, or Starbucks sell food in sections where the consumer can pay for the food and sit down to consume it; or because the stores sell deli and baked goods that could be consumed at the store; that Target stores and Walmart stores are restaurants. From that, Wal-Mart East and Target reason that everything they sell including toys, clothes, stereos, cleaning supplies, pet food, electronics, books, and sporting goods are items commonly sold at restaurants. The Division concentrated its presentation on countering that theory. The Division of Hotels and Restaurants licenses approximately 56,000 businesses as "public food service establishments." It refers to these businesses as "restaurants." Assuming the 463 Walmart-East and Target stores are also considered restaurants, adding them to 56,000 results in approximately 56,463 "restaurants" in the State of Florida. The combined Target and Walmart facilities would be .82 percent of the total number of Florida "restaurants." This does not establish that what Wal-Mart East stores and Target stores sell is what restaurants customarily sell. Wal-Mart East offered the testimony of John Harris, who worked 28 years for the Division. He served as Director of the Division and served as Secretary of the Department of Business and Professional Regulation. At the direction of counsel for Walmart and Wal-Mart East, Mr. Harris visited nine Florida establishments to view the premises and identify items sold at the establishments. Eight of the establishments hold current COP licenses. One is a Cracker Barrel restaurant. Mr. Harris' testimony proved that the items listed below were for sale at the selected establishments identified. None are listed as customarily sold at a restaurant in the proposed rule: Biltmore Hotel (holds a 4COP license): clothing, jewelry, sports attire, golf clubs, over-the-counter medications, art, golf clubs, golf club bags, tennis equipment, and skin treatments. Buster's Beer & Bait (holds a 4COP License): cigars and fish bait. CMX movie theater in Tallahassee, Florida (holds a 4COP license): movie tickets. Cracker Barrel (does not hold a COP license): apparel, hats, toys, stuffed animals, audio books, books, musical instruments, rocking chairs, hand lotions, jewelry, quilts, small tools, and cooking utensils. Neiman Marcus department store in Coral Gables, Florida (holds a 4COP license): jewelry, watches, sunglasses, handbags, clothing, shoes, wallets, pens, luggage, and fine china. Nordstrom department store in Coral Gables, Florida (holds a 4COP license): items similar to those for sale in the Neiman Marcus department store, makeup, grills, record players, and baby strollers. PGA National Hotel and Golf Resort (holds a 4COP license): clothing, shoes, cosmetics, spa services, haircuts, golf clubs, and golf attire. Saks Fifth Avenue (holds a 4COP license): items similar to those sold at the Neiman Marcus department store. Slater's Goods & Provisions (holds a 4COP license): razor blades, lip balm, prepackaged food items, cleaning supplies, aluminum foil, canned goods, and batteries. Daytona Speedway (holds a 4COP license issued for this location to Americrown Services): golf clubs, T-shirts, other clothing items, key chains, tires, specialized motorcycle mufflers, and event tickets. For each of the identified COP licensees, the identified items were for sale in areas for which there was free passage to and from areas where alcohol is stored or sold. Mr. Harris did not use his experience and expertise to identify the establishments as representative of COP license holders. Mr. Harris was not attempting to inspect a random, representative sample of Florida restaurants. A party's attorney selected the locations. There was no expert testimony establishing the validity of Mr. Harris' ad hoc survey. Mr. Harris also did not know which parts of the premises the COP licenses of the places that he visited covered. The evidence did not prove that the establishments were a representative sample of anything. In addition, Mr. Harris is not an objective or impartial witness. Mr. Harris is an advocate for Walmart and Target. He wants the proposed rule to be invalidated. Mr. Harris also represents Target as a lobbyist. There is no evidence that the sample size of nine is significant or representative of all COP license holders. All the exercise proves is that the Division has allowed establishments that contain areas holding COP licenses to sell a variety of items that the Division's proposed rule and the invalidated rule would not permit. The small number of establishments, the witness's allegiance, and the fact that the establishments were selected for use in this proceeding make the evidence wholly unpersuasive.
Findings Of Fact The Respondent's February 28, 1990 repeal of Rule 14-85.003(15)(b) was not reflected in the Respondent's original Notice of Rulemaking and was a change in the rule that affected the substance of the rule. This change was not supported by the record of the public hearing held on the rule amendment nor written comments submitted to the Respondent, nor was it in response to a proposed objection by the Joint Administrative Procedures Committee.
Findings Of Fact Petitioner, Jackie Kilpatrick, worked for Respondent, Howard Johnson Company, for approximately eighteen years in the capacity of waitress. Petitioner is a black woman whose birth date was February 10, 1946. Kilpatrick in the relevant time period worked the initial shift of a three shift work cycle in the restaurant which is located on West Tennessee Street, Tallahassee, Florida. That shift was the 6 A.M. to 3 P.M. morning cycle. Petitioner was one of several waitresses working that shift all of whom had long-standing service with Howard Johnson Company. Petitioner was the only black waitress; however, the cook on that shift was also black. As an employee of Howard Johnson, Petitioner enjoyed a good reputation among her fellow workers and customers of the restaurant with the exception of one customer, in incident which will be subsequently discussed. In early 1982, a meeting was held in the Howard Johnson restaurant in which the Petitioner indicated that she felt the restaurant manager, a Ms. Williams, gave preferential treatment to a white employee. The District Manager for Howard Johnson, Ramon Jimenez, was involved in the meeting and was left with an unfavorable impression of the Petitioner's conduct related to the remarks made to Ms. Williams. Shortly thereafter, Ms. Williams was replaced as the store manager for the Howard Johnson, West Tennessee restaurant. Her replacement, Lionel Robbins, felt that the management of the subject restaurant under the direction of Ms. Williams had not been acceptable and he set about his management task by informing the waitresses on the first shift that he was not there to be their friend. He stated that he was there to, in effect, clean up the operation. Making known his sentiments, he on a number, of occasions indicated to those waitresses, to include the Petitioner, in individual conversations with those employees, that "You can't teach an old dog new tricks". He had mentioned to Mary Mills, a waitress in the first shift, with total service of 25 years with Howard Johnson, that he was there to get rid of people on the first shift. Robbins constantly pressured the first shift waitresses on the question of their performance. He reduced their work hours and assigned more available work hours to new waitresses who he had hired. The new waitresses were hired after Petitioner was dismissed from her employment. Those new waitresses were somewhat younger than the waitresses on the first shift. The original waitresses on the first shift were from 35 to 55 years of age and the new waitresses who were hired were 18 to 23 years of age. During Robbins' time as store manager, in addition to Petitioner, he fired Bernice Johnson, a white waitress, of 16 years service with Howard Johnson who had been employed on the first shift with Kilpatrick. Bernice Johnson's dismissal was within four weeks of Robbins assignment as restaurant manager. Robbins' treatment of the Petitioner was provocative. This aura of provocation commenced from the first day that Robbins met the Petitioner. On that occasion, which took place in the restaurant on March 25, 1982, Robbins witnessed a disciplinary conference between Jimenez and Kilpatrick complaint had been made by a Mrs. DeCarlo, the owner of a privately run Howard Johnson motel operation adjacent to the restaurant, and this was the subject of the disciplinary conference. DeCarlo indicated that the Petitioner would not serve her when DeCarlo came to the restaurant. On the date of the conference Jimenez had prepared the employee reprimand which is Respondent's exhibit number one admitted into evidence, prior to the conference. He presented it to Kilpatrick and indicated to her that it was her responsibility to serve Mrs. DeCarlo or any patron, regardless of the desires of the employee waitress. Kilpatrick indicated that she surmised that DeCarlo really did not wish to be served by her. The conversation became somewhat heated and Robbins interceded and indicated that the Petitioner might wish to transfer to another Howard Johnson restaurant in Tallahassee, Florida. The suggestion was not well received by the Petitioner, in that she indicated an unwillingness to accept a transfer. Robbins indicated that if the Petitioner could not get along with Jimenez, who was Robbins superior, then she was going to have an attitude problem toward Robbins. He suggested the move to the Apalachee Parkway restaurant in Tallahassee, because he felt there was already a personality conflict developing. Petitioner stated that she felt that Robbins wanted to remove her because he was prejudiced. Eventually Robbins talked about the possible termination of the Petitioner's employment. The matter was finally resolved following a discussion with another official within Howard Johnson Company, a George Gover, by telephone call in which it was decided that the reprimand would stand, but the Petitioner would be allowed to continue her employment. From the point of this encounter on March 25, 1982, until the Petitioner's dismissal on April 27, 1982, the working relationship between Robbins and the Petitioner was strained. Between the time of the March 25, 1982 incident, in which the Petitioner was reprimanded, and April 27, 1982, Petitioner and other waitress employees in the first shift were the subject of continuing criticisms by Robbins. Robbins had the impression that Kilpatrick was "too set in her ways" and would not cooperate with his management scheme. 0n the morning of April 7, 1982, Petitioner had to make a number of adjustments in the station where she serves patrons because of oversights of the prior shift of waitresses. She had concluded this activity when Robbins arrived around 8 AM. He observed the "set up" of the tables and found them to be lacking, in his estimation. One matter that struck his eye was the fact that the silverware on one of the napkins was "kind of astray". He spoke first with the waitress Donna Cooper who referred him to the Petitioner. Petitioner indicated that the problem was one related to the prior shift to which the manager, Robbins, retorted that the Petitioner was responsible. An argument ensued between the Petitioner and Robbins and they retired to Robbins office which was in the area of the kitchen. While in the kitchen Petitioner kept referring to the fact that the problems in the restaurant were not those caused by the shift on which she worked. Robbins was insisting that the problems were related to the overall operation. In the course of this conversation, a discussion was entered into related to a reprimand which the Petitioner had received, along with other waitresses, related to the sufficiency of the guest checks as to errors in computations. A copy of that reprimand may be found as Respondent's exhibit's number two admitted into evidence. Petitioner did not wish to sign the written reprimand although she acknowledged making mistakes. She remarked that no one was perfect and Robbins stated that she would have to come closer to his standards of performance. Robbins then asked the Petitioner to transfer from the restaurant and she declined. Robbins then indicated that he was doing to reprimand her for the events of that morning. Her response was that if he reprimanded her that he might as well take her off the schedule, meaning remove her from the shift. In return Robbins struck her name from the work schedule and began calculating her final pay and told the Petitioner that she was discharged. The basis of the discharge was related to the impression by Robbins that the Petitioner was insubordinate. Prior to the dismissal or discharge, in addition to the reprimand related to the dining room table setting, a reprimand for insubordination was presented to the Petitioner. She refused to sign this latter document. A copy of that reprimand may be found as Respondent's exhibit number three admitted into evidence. At the time of her discharge the Petitioner was working 34-35 house a week at a rate of $2.01 per hour together with $35.32 tips per week. Since her discharge the Petitioner has attempted to find work by checking with the State Employment Agency; the local School Board; Rose Printing; with a gentlemen named Holiday, related to custodial work; with a person Joe Williams and another individual who works at Morrisons Cafeteria. These efforts were not successful. Petitioner has not pursued the idea of gaining work as a waitress in view of her desire to participate in church work on each Sunday. Petitioner does not wish to work in any Howard Johnson restaurant other than Tennessee Street, Tallahassee, and specifically would not wish to work in the Apalachee Parkway restaurant in Tallahassee, Florida. Furthermore, the Petitioner does not wish to work at the Tennessee Street restaurant if Lionel Robbins remains as manager. At the point of final hearing, Robbins was still serving as manager of the Tennessee Street restaurant. Petitioner has been unemployed since the time of her dismissal from her job at Howard Johnson restaurant.
