08-000629 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Barrett Enterprises, Inc., D/B/A Stuart Grille And Ale Status: Closed Recommended Order on Tuesday, May 13, 2008.

Summary: Petitioner failed to prove that Respondent, which operates a restaurant, continued to sell alcohol after the service of full course meals had stopped. Therefore, Petitioner should find Respondent not guilty of this alleged violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 08-0629

)

BARRETT ENTERPRISES, INC., d/b/a STUART GRILL & ALE, )

1 )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

April 18, 2008, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Centre, Suite 6

1940 North Monroe Street

Tallahassee, Florida 32399-1020

For Respondent: Dean Barrett, pro se

Stuart Grill & Ale

519 South Riverpoint Drive

Stuart, Florida 34994

STATEMENT OF THE ISSUES

The primary issue in this disciplinary proceeding is

whether Respondent, which operates a restaurant where alcoholic

beverages are served pursuant to a license issued by Petitioner,

continued to sell alcohol after the service of full course meals

had stopped, in violation of the statutes governing holders of

beverage licenses. If Petitioner proves the alleged violation,

then it will be necessary to consider whether penalties should

be imposed on Respondent.

PRELIMINARY STATEMENT

On November 16, 2007, Petitioner Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco, issued an Administrative Action [Complaint] against

Respondent Barrett Enterprises, Inc., d/b/a Stuart Grill & Ale,

charging the licensee with one count of failing to make

available full course meals at all times when alcoholic

beverages were being served. Respondent timely requested a

formal hearing to contest the allegations, and, on February 4,

2008, the matter was filed with the Division of Administrative

Hearings ("DOAH").

The final hearing took place on April 18, 2008, as

scheduled, with both parties present. Petitioner's Exhibit 1

was received in evidence without objection. In addition,

Petitioner called as witnesses Lieutenant Kent Stanton and

Special Agents Tommy L. Hagler and Sean Dhillon. Dean Barrett

testified on behalf of Respondent, which did not introduce any

documentary evidence.

The final hearing was recorded, but neither party ordered a

transcript of the proceeding. The parties were instructed to

submit their respective Proposed Recommended Orders on or before

May 7, 2008, which they did.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2007 Florida Statutes.

FINDINGS OF FACT

1. At all relevant times, Respondent Barrett Enterprises,

Inc. ("Barrett"), d/b/a Stuart Grill & Ale ("Stuart Grill"), has

held a Special Restaurant License (an "SRX license"), which

authorizes the licensee to sell alcoholic beverages secondary to

the service of food and non-alcoholic beverages. Consequently,

Barrett is subject to the regulatory and disciplinary

jurisdiction of Petitioner Department of Business and

Professional Regulation, Division of Alcoholic Beverages and

Tobacco (the "Division").

2. Barrett employs approximately 50 people to work at

Stuart Grill, which is an establishment located in Martin

County, Florida. Stuart Grill grosses nearly $2 million

annually on food sales. In 2007, Barrett collected and remitted

roughly $100,000 in sales tax on revenue from its food service

operation. It sells 60,000 pounds, more or less, of chicken

wings each year. In short, Stuart Grill is a bona fide

restaurant. 2

3. On two occasions——once on September 20, 2007, and again

on October 19, 2007——four agents of the Division visited Stuart

Grill late in the evening, around 11:00 p.m. They were

conducting an investigation to determine whether "full course

meals" (a term of art that will be discussed below) were

available at all times when the restaurant was serving alcoholic

beverages. (One of the conditions of holding an SRX license is

that the licensee must make full course meals available while

selling alcohol.)

4. The two investigative visits followed the same pattern.

Each time, the agents seated themselves at a booth in the main

dining room, which was not crowded. The waitress (a different

one each time) informed the agents that the kitchen was closed

and, therefore, that they would need to order from the "Late

Nite Menu," which was provided. The Late Nite Menu contained a

limited number of items, namely: mozzarella sticks, beer

battered "veggies" (mushrooms or onion rings), chicken strips,

dolphin bites, conch fritters, fried critters (clam strips or

grouper strips), fried calamari, smoked fish dip, and chicken

wings. Each time, an agent tried to order a hamburger and was

told that hamburgers were not available. Both times, the agents

ordered (and were served) chicken wings, a couple of sodas, and

beer. 3 Neither visit lasted more than roughly half an hour.

5. Dean Barrett, one of the restaurant's owners, testified

credibly that the Late Nite Menu which was given to the agents

was actually a bar menu; patrons in the main dining room should

not have been instructed that they could order only from the

Late Nite Menu, as apparently happened when the Division's

agents went to Stuart Grill in September and October 2007. The

undersigned accepts Mr. Barrett's testimony in this regard as

truthful and finds that the waitresses (neither of whom was

identified) who served the agents did not act in accordance with

their employer's directives on those occasions.

6. Regardless of that, however, the evidence fails to

establish that "full course meals" were not available. As will

be seen below, the term "full course meal" is defined for this

purpose as a meal consisting of a salad or vegetable, an entrée,

a beverage, and bread. When the Late Nite Menu is reviewed with

this definition in mind, the factual determination is

inescapable that the agents could have ordered such entrées as

chicken strips, chicken wings, or fried calamari. They also

could have ordered a vegetable ("beer battered veggies") from

the Late Nite Menu. Half of the items (entrée and vegetable)

constituting a "full course meal," in other words, appeared on

the face of the Late Nite Menu.

7. No beverages were listed in the Late Nite Menu. The

agents, however, ordered (and were served) sodas and beer. The

evidence thus establishes that non-menu items were, in fact,

available when the agents visited. Moreover, it is found, the

"beverage" requirement for a "full course meal" plainly was met.

8. The only item needed to complete a "full course meal"

is bread. 4 There is no direct evidence that bread was not

available. Perhaps it might be inferred, based on the absence

of an obvious bread item on the Late Nite Menu, that no bread

could be had. The undersigned declines to draw such an

inference, however, because (as found above) other non-menu

items were available upon request. Nor would the "fact" that

the "kitchen was closed" (which it was not) be a sufficient

basis for the undersigned to infer that bread was unavailable.

Without more evidence than was adduced in this case, there is

not a sufficiently convincing reason for the undersigned to

infer that some slices of bread or a few rolls, for example,

could not have been found in the restaurant, were a patron to

have requested bread with his order of, say, chicken strips

(entrée), onion rings (vegetable), and a soda (beverage).

9. The problem with the Division's case, at bottom, is

that the agents did not do enough to establish, affirmatively,

the negative proposition that the Division must prove, i.e. that

a full course meal was not available. 5 Because it was (or should

have been) clear to the agents that a vegetable, entrée, and

beverage were available, they should have asked, specifically,

for bread. They did not. The only off-menu item which the

agents requested (other than drinks) was a hamburger.

10. The evidence being insufficient to prove that a "full

course meal" could not be had on the occasions in question, it

must be concluded, as a matter of ultimate fact, that Barrett is

not guilty of serving alcohol without simultaneously making full

course meals available, as charged in the Administrative Action

[Complaint].

CONCLUSIONS OF LAW

11. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

12. Section 561.29, Florida Statutes, sets forth the acts

for which the Division may impose discipline. This statute

provides, in pertinent part:

(1) The division is given full power and

authority to revoke or suspend the license

of any person holding a license under the

Beverage Law, when it is determined or found

by the division upon sufficient cause

appearing of:

(a) Violation by the licensee or his or her

or its agents, officers, servants, or

employees, on the licensed premises, or

elsewhere while in the scope of employment,

of any of the laws of this state or of the

United States, or violation of any municipal

or county regulation in regard to the hours

of sale, service, or consumption of

alcoholic beverages or license requirements

of special licenses issued under s. 561.20,

or engaging in or permitting disorderly

conduct on the licensed premises, or

permitting another on the licensed premises

to violate any of the laws of this state or

of the United States. A conviction of the

licensee or his or her or its agents,

officers, servants, or employees in any

criminal court of any violation as set forth

in this paragraph shall not be considered in

proceedings before the division for

suspension or revocation of a license except

as permitted by chapter 92 or the rules of

evidence.

13. Barrett stands accused of violating Florida

Administrative Code Rule 61A-3.0141(3)(d), which provides as

follows:

(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:

* * *

(d) Full course meals must be available at

all times when the restaurant is serving

alcoholic beverages except alcoholic

beverage service may continue until food

service is completed to the final seating of

restaurant patrons for full course meals. A

full course meal as required by this rule

must include the following:

1. Salad or vegetable;

2. Entree;

3. Beverage; and

4. Bread.

14. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional license is penal in

nature. State ex rel. Vining v. Florida Real Estate Commission ,

281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose

discipline, the Division must prove the charge against the

licensee by clear and convincing evidence. Department of

Banking and Finance, Div. of Securities and Investor Protection

v. Osborne Stern & Co. , 670 So. 2d 932, 933-34 (Fla.

1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294-95 (Fla.

1987)); Nair v. Department of Business & Professional

Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

15. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth District, canvassed the cases to develop a

"workable definition of clear and convincing evidence" and found

that of necessity such a definition would need to contain "both

qualitative and quantitative standards." The court held that:

clear and convincing evidence requires that

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.

Id. The Florida Supreme Court later adopted the fourth

district's description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93-62 , 645

So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that "[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

16. As found above, the evidence proves affirmatively that

three of the four elements (entrée, vegetable, and beverage 6 ) of

a full course meal were available when the Division's agents

visited Stuart Grill. The evidence, however, was insufficient

to prove, clearly and convincingly, that the fourth element——

bread——was not available, because the agents never asked for

bread, and because there is no other proof which clearly shows

that bread could not have been had upon request. 7

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order

finding Barrett not guilty of the instant charge.

DONE AND ENTERED this 13th day of May, 2008, in

Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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.stae.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of May, 2008.

ENDNOTES

1 / Respondent corporation's fictitious name is Stuart Grill &

Ale, not Stuart Grill e and Ale. The style is hereby amended to

reflect this fact.

2 / Indeed, one of the Division's agents, who testified against

Barrett, regularly dines at Stuart Grill with his family.

3 / The undisputed fact that the agents were served chicken wings

(and could have ordered other items from the Late Nite Menu)

means that there was food available, even cooked food, which

ordinarily would come from the kitchen. This persuades the

undersigned to infer that the kitchen was open for business, not

"closed" as the waitresses reportedly said.

4 / It is not necessary to decide here whether bread must be a

separate item, as opposed to being a constituent of, say, an

entrée. In other words, the undersigned need not determine

whether a hamburger, for example, served on a bun with lettuce,

tomato, and onions, would satisfy the entrée, vegetable, and

bread requirements all by itself.

5 / The undersigned is aware that proving a negative is difficult

(though not impossible, as is sometimes suggested). But that is

the Division's burden in this case, where the charge is that the

licensee did not make full course meals available at all times

when alcohol was being served.

6 / The Rule does not define these terms (or "bread"). None of

these words is ambiguous, however, and thus each must be applied

according to its plain meaning, which the undersigned has done

as follows. The term "entrée" is commonly taken to mean the

main course of a meal. It is obvious to the undersigned that,

while "finger foods" such as chicken strips, fried calamari,

fried grouper, and chicken wings might be served as appetizers,

hors d'oeuvres, or snacks, these meat dishes can certainly be

"entrées," as that term is commonly used and understood. Next,

because it is a matter of common knowledge that onions are

vegetables, the undersigned finds without hesitation that onion

rings are a "vegetable" serving. Similarly, it goes without

saying that sodas fall within the "beverage" category.

Regarding the fourth element, the undersigned understands the

term "bread," as used in the Rule, to refer, without limitation,

to such things as rolls, toast, buns, bagels, and breadsticks.

(As mentioned previously, however, the undersigned expresses no

opinion at this time as to whether a hamburger, on a bun, would

satisfy both the entrée and bread requirements.)

7 / The Rule does not define the term "available." Nor does it

specify either that the items comprising a full course meal must

be available from the menu , or that full course meals must be

available as tables d'hôte. Therefore, giving the term

"available" its ordinary meaning, the undersigned has concluded

that an individual food item is "available" if it is obtainable

upon request, and that a full course meal is "available" if a

customer is able to obtain at least one serving each of a salad

or vegetable, entrée, beverage, and bread.

COPIES FURNISHED :

Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Centre, Suite 6

1940 North Monroe Street

Tallahassee, Florida 32399-1020

Dean Barrett

Stuart Grill & Ale

519 South Riverpoint Drive

Stuart, Florida 34994

Cynthia Hill, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Lucynski, General Counsel

Department of Business and

Professional Regulation

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.