00-005010 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Therrainnes Rex, Inc., D/B/A Atlantic Street Station Status: Closed Recommended Order on Friday, February 16, 2001.

Summary: Special restaurant license should be revoked and a $1,000 fine imposed where, during two month period, less than 51 percent of the restaurant`s gross revenues came from the retail sale on the premises of food and non-alcoholic beverages.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 00-5010

)

THERRAINNES REX, INC., d/b/a )

ATLANTIC STREET STATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on

January 26, 2001, by video teleconference at sites in West

Palm Beach and Tallahassee, Florida, before Stuart M. Lerner,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the violation alleged in the

Administrative Action, and, if so, what disciplinary action

should be taken.

PRELIMINARY STATEMENT

On April 25, 2000, the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco (DABT), issued an Administrative Action against

Respondent, the holder of a DABT-issued 4COP SRX license,

alleging that, "[d] uring the period of 1/2000 through 2/2000,

[Respondent] failed to derive at least 51% of [its] gross

revenue from sales of food and non-alcoholic beverages

contrary to Section 561.20(2)(a)4., Florida Statutes."

Through the submission of a completed Request for Hearing form

dated May 20, 2000, Respondent disputed the factual

allegations made in the Administrative Action and requested an

administrative hearing. On December 13, 2000, the matter was

referred to the Division of Administrative Hearings (Division)

for the assignment of a Division Administrative Law Judge to

conduct the hearing Respondent had requested.

The hearing was scheduled for January 26, 2001. DABT and

Respondent were provided with written notice of the scheduled

hearing in accordance with Section 120.569(2)(b), Florida

Statutes 1/ DABT appeared at the hearing, which was held as

scheduled on January 26, 2001, through its counsel of record,

Michael Martinez, Esquire. Respondent, on the other hand, did

not make an appearance at the hearing, either in person or

through counsel or an authorized representative.

DABT presented the testimony of Captain Deborah Beck, the

district supervisor of its West Palm Beach and Fort Pierce

offices. In addition, it offered three exhibits (Petitioner's

Exhibits 1, 2, and 3) into evidence. All three exhibits were

received by the undersigned.

At the close of the evidentiary portion of the hearing

the undersigned established a deadline (ten days from the date

of the filing of the hearing transcript with the Division) for

the filing of proposed recommended orders.

A transcript of final hearing (consisting of one volume)

was filed with the Division on February 5, 2001. On that same

date (February 5, 2001), DABT filed its Proposed Recommended

Order, which the undersigned has carefully considered. To

date, Respondent has not filed any post-hearing submittal.

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:

1. At all times material to the instant case, Respondent

operated a restaurant, Atlantic Street Station, located in

Delray Beach, Florida.

2. 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.

3. 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.

CONCLUSIONS OF LAW

4. DABT is the unit of state government responsible for

" supervis[ ing] the conduct, management, and operation of the

manufacturing, packaging, distribution, and sale within the

state of all alcoholic beverages." Section 561.02, Florida

Statutes.

5. Any person, before engaging in the business of

manufacturing, bottling, distributing, selling, or in any way

dealing in alcoholic beverages, must apply for and obtain an

appropriate license from DABT. See Sections 561.17, 561.181,

and 561.19, Florida Statutes.

6. Section 561.20(1), Florida Statutes, imposes

limitations on the number of licenses DABT may issue to

vendors in each county authorizing the retail sale and on-

premises consumption of alcoholic beverages (which licenses

are referred to as "quota licenses.")

7. Section 561.20(2)(a)4., Florida Statutes, authorizes

DABT to issue a special license authorizing the retail sale

and on-premises consumption of alcoholic beverages to "[a] ny

restaurant having 2,500 square feet of service area and

equipped to serve 150 persons full course meals at tables at

one time, and deriving at least 51 percent of its gross

revenue from the sale of food and nonalcoholic beverage,"

regardless of the number of "quota licenses" that have been

issued to other business establishments in the county where

the qualifying restaurant is located.

8. Rule 61A-3.0141(3), Florida Administrative Code,

requires, among other things, that:

Qualifying restaurants receiving a special

restaurant license after April 18, 1972

must, in addition to continuing to comply

with the requirements set forth for initial

licensure, also maintain the required

percentage, as set forth in paragraph (a)

or (b) below, on a bi-monthly basis.

Additionally, qualifying restaurants must

meet at all times the following operating

requirements:

(a) At least 51 percent of total gross

revenues must come from retail sale on the

licensed premises of food and non-alcoholic

beverages. Proceeds of catering sales

shall not be included in the calculation of

total gross revenues. Catering sales

include food or non-alcoholic beverage

sales prepared by the licensee on the

licensed premises for service by the

licensee outside the licensed premises.

1. Qualifying restaurants must maintain

separate records of all purchases and gross

retail sales of food and non-alcoholic

beverages and all purchases and gross

retail sales of alcoholic beverages. . . .

4. The required percentage shall be

computed by adding all gross sales of food,

non-alcoholic beverages, and alcoholic

beverages and thereafter dividing that sum

into the total of the gross sales of food

plus non-alcoholic beverages. . . .

(e) For purposes of determining required

percentages, an alcoholic beverage means

the retail price of a serving of beer,

wine, straight distilled spirits, or a

mixed drink.

9. Section 561.29, Florida Statutes, authorizes DABT to

suspend or revoke any alcoholic beverage license, and to also

impose a civil penalty against a licensee not to exceed $1,000

per single transaction, for a:

Violation by the licensee . . . of any of

the laws of this state . . . or license

requirements of special licenses issued

under s. 561.20 . . . . [or a]

Violation by the licensee . . . of any rule

or rules promulgated by the division in

accordance with the provisions of this

chapter . . . .

10. "No revocation [or] suspension . . . of any license

is lawful unless, prior to the entry of a final order, [DABT]

has served, by personal service or certified mail, an

administrative complaint [or action] which affords reasonable

notice to the licensee of facts or conduct which warrant the

intended action and unless the licensee has been given an

adequate opportunity to request a proceeding pursuant to ss.

120.569 and 120.57." Section 120.60(5), Florida Statutes.

11. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes

the alleged facts set forth in the administrative complaint

[or action]. Sections 120.569(1) and 120.57, Florida

Statutes.

12. At the hearing, DABT bears the burden of proving

that the licensee engaged in the conduct, and thereby

committed the violations, alleged in the administrative

complaint or action. Proof greater than a mere preponderance

of the evidence must be presented. Clear and convincing

evidence of the licensee's guilt is required. See Department

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932, 935

(Fla. 1996); Pic N' Save of Central Florida v. Department of

Business Regulation , 601 So. 2d 245, 249 (Fla. 1st DCA 1992);

and Section 120.57(1)(j), Florida Statutes ("Findings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute . . . .").

13. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond

and to the exclusion of a reasonable doubt.'" In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate

standard." Id. For proof to be considered "'clear and

convincing' . . . the evidence must be found to be credible;

the facts to which the witnesses testify must be distinctly

remembered; the testimony must be precise and explicit and the

witnesses must be lacking in confusion as to the facts in

issue. The evidence must be of such weight that it produces

in the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought

to be established." In re Davey , 645 So. 2d 398, 404 (Fla.

1994), quoting, with approval, from Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983).

14. In determining whether DABT has met its burden of

proof, it is necessary to evaluate its evidentiary

presentation in light of the specific factual allegations made

in the administrative complaint or action. Due process

prohibits an agency from taking disciplinary action against a

licensee based upon conduct not specifically alleged in the

agency's charging instrument. See Hamilton v. Department of

Business and Professional Regulation , 764 So. 2d 778 (Fla. 1st

DCA 2000); Lusskin v. Agency for Health Care Administration ,

731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v.

Department of Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996).

15. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint or action ] to have been violated." Delk v.

Department of Professional Regulation , 595 So. 2d 966, 967

(Fla. 5th DCA 1992). In deciding whether "the statute or rule

claimed to have been violated" was in fact violated, as

alleged by DABT, if there is any reasonable doubt, that doubt

must be resolved in favor of the licensee. See Whitaker v.

Department of Insurance and Treasurer , 680 So. 2d 528, 531

(Fla. 1st DCA 1996); Elmariah v. Department of Professional

Regulation, Board of Medicine , 574 So. 2d 164, 165 (Fla. 1st

DCA 1990); and Lester v. Department of Professional and

Occupational Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

16. The Administrative Action issued in the instant case

alleges that Respondent violated Section 561.20(2)(a)4.,

Florida Statutes, by failing, during the months of January and

February 2000, "to derive at least 51% of [its] gross revenue

from sales of food and non-alcoholic beverage."

17. The proof DABT presented at the final hearing in

this case, which included Respondent's "daily sales" records

for the months of January and February 2000, clearly and

convincingly establishes that Respondent committed the

violation of Section 561.20(2)(a)4., Florida Statutes, alleged

in the Administrative Action, and thereby failed to meet the

minimum requirements for holding a Special Restaurant License.

Accordingly, disciplinary action may be taken against

Respondent pursuant to Section 561.29, Florida Statutes.

18. In determining what disciplinary action DABT should

take, it is necessary to consult the Board's "penalty

guidelines," which impose restrictions and limitations on the

exercise of the DABT's disciplinary authority. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An

administrative agency is bound by its own rules . . .

creat[ ing] guidelines for disciplinary penalties."); cf . State

v. Jenkins , 469 So. 2d 733, 734 (Fla. 1985)("[A] gency rules

and regulations, duly promulgated under the authority of law,

have the effect of law."); Buffa v. Singletary , 652 So. 2d

885, 886 (Fla. 1st DCA 1995)("An agency must comply with its

own rules."); Decarion v. Martinez , 537 So. 2d 1083, 1084

(Fla. 1st 1989)("Until amended or abrogated, an agency must

honor its rules."); and Williams v. Department of

Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

is required to comply with its disciplinary guidelines in

taking disciplinary action against its employees).

19. DABT's "penalty guidelines" are found in Rule 61A-

2.022, Florida Administrative Code, which provides, in

pertinent part, as follows:

(1) This rule sets forth the penalty

guidelines which shall be imposed upon

alcoholic beverage licensees and permittees

who are supervised by the division. . . .

The penalties provided below are based upon

a single violation which the licensee

committed or knew about; . . . .

(2) Businesses . . . issued alcoholic

beverage licenses . . . by the division are

subject to discipline (warnings, corrective

action, civil penalties, suspensions,

revocations, reimbursement of cost, and

forfeiture). . . .

(9) No . . . order may exceed $1,000 for

violations arising out of a single

transaction.

(10) Licensees may petition the division

to amend any . . . final order by sending

the petition to the Director, Division of

Alcoholic Beverages and Tobacco, Northwood

Centre, 1940 North Monroe Street,

Tallahassee, Florida 32399-1020.

Petitions filed shall not automatically

stay any effective dates in the stipulation

or order unless the director authorizes the

stay or amendment requested in the

petition.

(11) The penalty guidelines set forth in

the table that follows are intended to

provide field offices and licensees or

permittees with penalties that will be

routinely imposed by the division for

violations. The description of the

violation in the table is intended to

provide a brief description and not a

complete statement of the

statute. . . .

STATUTE: 561.20

VIOLATION: Failure to meet minimum

qualifications of special license

FIRST OCCURRENCE: $1000 and revocation

without prejudice to obtain any other type

of license, but with prejudice to obtain

the same type of special license for 5

years. Note: For each 2 month period a

special restaurant license failed to meet

the required food percentage the civil

penalty shall be increased by $1000.

20. There being no apparent reason to deviate from the

"routine" penalty prescribed by Rule 61A-2.022, Florida

Administrative Code, for a licensee's "[f] ailure to meet

minimum qualifications of [the licensee's] special licensee,"

DABT should penalize Respondent for committing the violation

of Section 561.20(2)(a)4., Florida Statutes, alleged in the

Administrative Action, by revoking Respondent's Special

Restaurant 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 by fining Respondent

$1,000.00.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February, 2001.

ENDNOTE

1/ Such notice was in the form of a Notice of Hearing by

Video Teleconference (Notice) mailed on December 27, 2000, to

Petitioner and to Respondent (at its last known address, as

reflected in the Request for Hearing it executed on May 20,

2000).

COPIES FURNISHED:

Michael Martinez, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Richard Turner, Director

Department of Business and

Professional Regulation

Division of Alcoholic Beverages and Tobacco

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Captain Deborah Beck

Department of Business and

Professional Regulation

Division of Alcoholic Beverages and Tobacco

400 North Congress Avenue, Suite 150

West Palm Beach, Florida 33401

James McGuinness

35 Northeast Second Avenue, Suite 330

Delray Beach, Florida 33444

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any

exceptions to this recommended order should be filed with the

agency that will issue the final order in this case.