01-001613 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Dinosaur`s Restaurant, Inc., D/B/A Dinosaur`s Cafe And Sports Bar Status: Closed Recommended Order on Tuesday, August 21, 2001.

Summary: Holder of 4COP SRX license guilty of failing to maintain required seating for its patrons, failing to keep records on premises, and failing to timely remit surcharge monies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 01-1 613

)

DINOSAUR'S RESTAURANT, INC. , )

d/b/a DINOSAUR'S CAFÉ AND )

SPORTS BAR , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

July 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 : Ralf E. Michels, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent : No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Action, and, if so, what disciplinary action

should be taken.

PRELIMINARY STATEMENT

On November 16, 1999, 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 the following:

1. On or about September 28, 1999, you,

Dinosaur's Restaurant Inc., DBA Dinosaur's

Café and Sports Bar, through your agent,

servant, or employee, did fail to maintain

150 seats for service of full course meals,

in violation of FSS 561.20(2)(a)(4).

2. On or about September 28, 1999, you,

Dinosaur's Restaurant Inc., DBA Dinosaur's

Café and Sports Bar, did fail to maintain

separate records of all purchases and gross

retail sales of food and non-alcoholic

beverages, in violation of FAC 61A-3.0141

within FSS 561.20(2)(a)(4).

3. On or about November 16, 1999, you,

Dinosaur's Restaurant Inc., DBA Dinosaur's

Café and Sports Bar, did fail to pay

surcharges in the amount of $16.75 in

violation of FAC 61A-4.063 and FSS 561.501.

Through the submission of a completed Request for Hearing form

dated December 8, 1999, accompanied by an "attachment,"

Respondent disputed the factual allegations made in numbered

paragraphs 2 and 3 of the Administrative Action and requested an

administrative hearing. The "attachment" read as follows:

The Licensee disputes the following issues

of fact, and states the reasons as follows:

1. Issue of Fact No. 1 is disputed.

A. The prior owner of the stock of the

above corporation maintained the

establishment with appropriate seating for

the license, by maintaining 151 seat[s].

B. At the time the current shareholders

became the owner of the corporation, the

seating was maintained at 151, [and] they

have maintained the proper seating from the

date of purchase.

C. On or about September 28, 1999, there

was maintained on the premises at least 150

seats for service of full course meals.

2. Issue of Fact No. 2 is disputed.

A. On or about September 28, 1999, the

corporation did, and continues to, maintain

separate records of all purchases and gross

retail sales of food and non-alcoholic

beverages.

B. The individual who maintains said

records, Mr. Bob Sevard, is a handicapped

person. As a result of hospitalizations,

the breakdown of the items, as required, may

not have been available, because said

computations are done by him at his

residence, while he awaits lung transplant

availability.

C. Licensee requests permission to keep the

original paperwork at his home, because of

his severe handicap, and maintain copies at

the place of business.

3. Licensee does not dispute the $16.75,

and intends to pay same within the next few

days.

On April 30, 2001, 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. 1/

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

Respondent were provided with written notice of the scheduled

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

Statutes. Such notice was in the form of a Notice of Hearing by

Video Teleconference (Notice) mailed on May 14, 2001, to DABT's

counsel of record, Ralf E. Michels, Esquire, and Respondent's

then counsel of record, Kenneth Crenshaw, Esquire, of the

Crenshaw Law Firm. See M. E. v. Department of Children and

Family Services , 728 So. 2d 367, 368 (Fla. 3d DCA 1999)("Notice

to counsel [in termination of parental rights court proceeding)

is notice to the parent.") ; Woodard v. Florida State University ,

518 So. 2d 336, 337 (Fla. 1st DCA 1987)("Notice to his attorney

and agent is notice to Woodard, and receipt by his attorney [of

the notice of his termination] is receipt by Woodard [for

purposes of determining when the 21-day period for requesting a

hearing on his termination began to run]"); and State v. Grooms ,

389 So. 2d 313, 314 (Fla. 2d DCA 1980)("The issue before us

simply stated is whether notice to a defendant's attorney of the

date he is scheduled for trial is notice to the defendant. We

answer the question in the affirmative."). 2/

On May 24, 2001, Mr. Crenshaw and the Crenshaw Law Firm

filed a motion requesting leave to withdraw as counsel of record

for Respondent in the instant case. The motion's certificate of

service reflected that a copy of the motion had been served on

May 22, 2001, by United States Mail, on Respondent and counsel

for Petitioner. Not having received any response to the motion,

the undersigned, on June 6, 2001, issued an Order granting

Mr. Crenshaw's and the Crenshaw Law Firm's motion for leave to

withdraw.

DABT appeared at the hearing, which was held as scheduled

on July 26, 2001, through its counsel of record, Mr. Michels.

Respondent, on the other hand, did not make an appearance at the

hearing, either in person or through counsel or any other

authorized representative.

DABT presented the testimony of Captain Deborah Beck, the

district supervisor of its West Palm Beach office. In addition,

it offered four exhibits (Petitioner's Exhibits 1, 2, 3, and 4)

into evidence. All four 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 August 6, 2001.

On August 10, 2001, Petitioner filed a Motion to Extend

Time to File Proposed Recommended Order (Motion) in the instant

case. By Order issued August 13, 2001, the Motion was granted,

and the deadline for filing proposed recommended orders was

extended to August 17, 2001.

On August 17, 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, Dinosaur's Café and Sports Bar, located

in Boynton Beach, Florida.

2. Respondent is now, and has been at all times material

to the instant case, the holder of a Special Restaurant License

(license number 60-11570 4COP SRX) authorizing it to sell

alcoholic beverages on the premises of Dinosaur's Café and

Sports Bar.

3. On September 28, 1999, DABT Special Agent Jennifer

DeGidio conducted an inspection of the premises of Dinosaur's

Café and Sports Bar. Her inspection revealed that the premises

had available seating for less than 150 patrons and that there

were no records on the premises regarding the purchase and sale

of food, alcoholic beverages, and non-alcoholic beverages. At

no time had DABT given Respondent written approval to maintain

these records at a designated off-premises location.

4. During her September 28, 1999, inspection, Special

Agent DeGidio issued and served on Respondent notices advising

Respondent that its failure to have seating for at least 150

patrons and to maintain food and beverage records on the

premises for a minimum of three years from the date of sale was

in violation of the law and that, if these violations were not

remedied within 14 days, administrative charges would be brought

against Respondent.

5. Special Agent DiGidio returned to the premises of

Dinosaur's Café and Sports Bar on October 12, 1999, to find that

the noticed violations had not been corrected. There were still

fewer than 150 seats for patrons, and Respondent was again

unable to produce the required records on the premises.

6. The Administrative Action that is the subject of the

instant controversy was issued on November 16, 1999.

7. As of that date, Respondent had failed to timely remit

to DABT $16.75 in surcharge monies that Respondent owed DABT for

alcoholic beverages it had sold at retail for on-premises

consumption at Dinosaur's Café and Sports Bar.

CONCLUSIONS OF LAW

8. 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.

9. 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.

10. 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.")

11. 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.

12. Rule 61A-3.0141, Florida Administrative Code,

requires, among other things, that:

(2 ) Special restaurant licenses shall be

issued only to applicants for licenses in

restaurants meeting the criteria set forth

herein.

(a) . . . [A] qualifying restaurant must

have a service area occupying 2,500 or more

square feet of floor space.

1. The required square footage shall not

include any space contained in an uncovered

or not permanently covered area adjacent to

the premises because food service is not

available at all times. . . .

(b) . . . [A] qualifying restaurant must

have accommodations for the service and

seating of 150 or more patrons at tables at

one time.

1. The tables and seating must be located

within the floor space provided for in

paragraph (2)(a) of this rule.

2. The tables must be of adequate size to

accommodate the service of full course meals

in accordance with the number of chairs or

other seating facilities provided at the

table.

3. Seating at counters used to serve food

shall be included in the minimum seating

requirements. . . .

(e ) A qualifying restaurant must comply

with all fire safety laws relating to the

operation of a restaurant.

(3 ) 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.

2. The records required in subparagraph

(3)(a )1. of this rule must be maintained on

the premises, or other designated place

approved in writing by the division for a

period of 3 years and shall be made

available within 14 days upon demand by an

officer of the division. The division shall

approve written requests to maintain the

aforementioned records off the premises when

the place to be designated is the business

office, open 8 hours per work day, of a

corporate officer, attorney, or accountant;

the place to be designated is located in the

State of Florida; and the place to be

designated is precisely identified by

complete mailing address.

3. Since the burden is on the holder of the

special restaurant license to demonstrate

compliance with the requirements for the

license, the records required to be kept

shall be legible, clear, and in the English

language.

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.

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.

13. Section 561.501, Florida Statutes, and Rule 61A-4.063,

Florida Administrative Code, require vendors, like Respondent,

to timely remit to DABT a surcharge for alcoholic beverages they

sell at retail for on-premises consumption. Pursuant to

Subsection (2) of Section 561.501, Florida Statutes, the vendor

must "remit payments to [DABT] each month by the 15th of the

month following the month in which the surcharges are imposed."

Pursuant to Rule 61A-4.063(10)(c), Florida Administrative Code,

"[r ]emittances received after the 20th day shall cause the

licensee to be subject to late penalties of 10 cents per day or

1 percent of the amount due per day for each day after the 20th

of the month, whichever is greater."

14. 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 . . . .

15. "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.

16. 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.

17. 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 . . . .").

18. 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).

19. 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).

20. 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).

21. The Administrative Action issued in the instant case

alleges that disciplinary action should be taken against

Respondent because Respondent " fail[ed] to maintain 150 seats

for service of full course meals, in violation of FSS

561.20(2)(a)(4)"; "fail[ed] to maintain separate records of all

purchases and gross retail sales of food and non-alcoholic

beverages, in violation of FAC 61A-3.0141 within FSS

561.20(2)(a)(4)"; and "fail[ed] to pay surcharges in the amount

of $16.75 in violation of FAC 61A-4.063 and FSS 561.501."

22. The proof DABT presented at the final hearing in this

case clearly and convincingly establishes that Respondent

committed these violations alleged in the Administrative Action.

Accordingly, disciplinary action may be taken against Respondent

pursuant to Section 561.29, Florida Statutes.

23. In determining what disciplinary action DABT should

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

guidelines," which impose restrictions and limitations on the

exercise of 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).

24. 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. . . .

STATUTE: 561.501

VIOLATION: Late surcharge payments or

reports

FIRST OCCURRENCE : Corrective action and 25

percent of total late surcharge principal

payments if licensee is current with

surcharge reports and payments, and did not

willfully neglect compliance with surcharge

law based on a written statement of

mitigation.

25. There being no apparent reason to deviate from the

"routine" penalties 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" and "late

surcharge payments or reports," DABT should penalize Respondent

for committing the violations 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"; fining Respondent $1,000.00; and requiring Respondent to

pay the $16.75 in surcharge monies it owes DABT, plus applicable

penalties and interest.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that DABT enter a final order finding

Respondent committed the violations 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"; fining Respondent $1,000.00; and

requiring Respondent to pay the $16.75 in surcharge monies it

owes DABT, plus applicable penalties and interest.

DONE AND ENTERED this 21st day of August, 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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2001.

ENDNOTES

1/ It is not apparent from a review of the record why it took

so long for the matter to be referred to the Division.

2/ It is the responsibility of a litigant to make a reasonable

effort to stay in contact with the litigant's attorney and

advise the attorney of any change of address or telephone

number. See M. A. v. Department of Children and Family

Services , 760 So. 2d 249, 250 (Fla. 3d DCA 2000).

COPIES FURNISHED:

Ralf E. Michels, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Richard Turner, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

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

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

400 North Congress Avenue, Suite 150

West Palm Beach, Florida 33401

Dinosaur's Café and Sports Bar

511 Northeast 4th Street

Boynton Beach, Florida 33435

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.