01-001611 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Coluccis Attic, Inc., D/B/A Colluccis Attic Status: Closed Recommended Order on Tuesday, August 21, 2001.

Summary: Food sales of restaurant were not 51 percent of total sales, and, therefore, restaurant did not qualify for a special license to sell alcoholic beverages. Special license should be revoked and $1,000 fine imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO , )

)

Petitioner , )

)

vs. ) Case No. 01-1611

)

COLUCCIS ATTIC, INC. , )

d/b/a COLUCCIS ATTIC, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on July 5, 2001, via video teleconference, in West Palm Beach,

Florida, and Tallahassee, Florida, before Patricia Hart Malono,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Charles F. Tunnicliff, Esquire

Claudia J. Pamperin 1

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent : No appearance

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Administrative Action dated August 11, 2000, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Action dated August 11, 2000, the

Department of Business and Professional Regulation, Division of

Alcoholic Beverages and Tobacco, ("Department") alleged that

Coluccis Attic, Inc., failed to derive at least 51 percent of

its gross sales from the sale of food and non-alcoholic

beverages during the period from May 17, 2000, through August 6,

2000, in violation of Section 561.20(2)(a )4., Florida Statutes.

Dennis Neary, the owner of Coluccis Attic, Inc., filed a request

for a hearing pursuant to Section 120.57(1), Florida Statutes,

disputing all issues of fact alleged in the Administrative

Action. The Department transmitted the matter to the Division

of Administrative Hearings for assignment of an administrative

law judge, and the formal hearing was held on July 9, 2001.

At the hearing, the Department presented the testimony of

Captain Deborah L. Beck and Danny K. Stoops. Petitioner's

Exhibits 1 through 3 were offered and received into evidence;

official recognition was taken of Section 561.20, Florida

Statutes (2000), and Rule 61A-2.022, Florida Administrative

Code. No one made an appearance at the hearing on behalf of

Coluccis Attic.

The one-volume transcript of the proceeding was filed with

the Division of Administrative Hearings on July 18, 2001, and

the Department timely filed its proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency charged with

enforcing Florida's Beverage Law, and, specifically, with

regulating the sale of alcoholic beverages. Sections 561.02 and

561.11(1), Florida Statutes.

2. At all times material to this proceeding, Coluccis

Attic, Inc., held alcoholic beverage license number 60-11724,

Series 4 COP SRX, a special restaurant license which authorized

the sale of alcoholic beverages on the premises of the

restaurant of the same name located at 600 North Congress

Avenue, Delray Beach, Florida.

3. On July 18, 2000 , an inspector employed by the

Department conducted a routine investigation of the restaurant.

4. As part of the investigation, the investigator was

provided a copy of the restaurant's sales report for the period

from May 17, 2000, through August 6, 2000.

5. The investigator calculated the percentages of gross

revenue from the sale of food and of alcohol sales with respect

to total gross sales, and the calculations showed that food

sales were 31.5 percent of total gross sales.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2000).

7. Section 561.20(2)(a )4., Florida Statutes (2000),

provides in pertinent part that a restaurant can be issued a

special license for the sale of alcoholic beverages when the

restaurant " deriv[ es] at least 51 percent of its gross revenue

from the sale of food and nonalcoholic beverages."

8. Based on the findings of fact herein, the Department

has proven by clear and convincing evidence that Coluccis Attic,

Inc ., does not meet the statutory requirements for a special

restaurant license.

9. Rule 61A-2.022, Florida Administrative Code, sets forth

penalty guidelines for violations of Beverage Law licensing

requirements. The penalty for the failure to meet minimum

qualifications for a special license is as follows: "$1000 fine

and revocation without prejudice to obtain any other type

license, but with prejudice to obtain the same type of special

license for 5 years."

10. The penalty recommended by the Department is

appropriate in light of these guidelines, and is adopted herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco, enter a final order,

1. Finding that Coluccis Attic, Inc., violated

Section 561.20(2)(a )4., Florida Statutes (2000);

2. Imposing an administrative fine in the amount of

$1,000.00 against Coluccis Attic, Inc.; and

3. Revoking the special restaurant license of Coluccis

Attic, Inc., without prejudice to apply for any other type of

alcoholic beverage license but with prejudice to apply for a

special restaurant license for a period of five years.

DONE AND ENTERED this 21st day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2001.

ENDNOTE

1 / Ms. Pamperin appeared as a student intern under the

supervision of Mr. Tunnic liff.

COPIES FURNISHED:

Deborah L. Beck, Captain

Department of Business and

Professional Regulation

400 North Congress Avenue

Suite 150

West Palm Beach, Florida 33401

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

David B. Neary

Coluccis Attic, Inc.

600 North Congress Avenue

Suite 100

Delray Beach, Florida 33445

Richard Turner, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.