07-004747 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Mjt Restaurant Group, Inc., D/B/A The Copper Pot Status: Closed Recommended Order on Tuesday, March 4, 2008.

Summary: The failure to charge appropriate statute was not fatal to the rule violation and penalty guideline guilt.

OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 0 7 - 4 747

)

MJT RESTAURANT GROUP, INC., )

d/b/a THE COPPER POT, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

case on January 23, 2008 , in Ocala , Florida, before Ella Jane P.

Davis, a duly - assigned Administrative Law Judge o f the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: David J. Tarbert , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Petitioner may discipline Respondent’s alcoholic

beverage license for Respondent’s violating Florida

Administrative Code Rule 61A - 3.0141(3)(D) and Section 561.20(4)

“within” 561.29(1)(a ), 1/ Florida Statutes, on three separate

occasions .

PRELIMINARY STATEMENT

This cause was referred to the Division of Administrative

Hearings on or about October 16, 2007, for a disputed - fact

hearing.

Respondent did not respond to the Initial Order , but the

final hearing was scheduled in Respondent's city and county of

operation .

The disputed - fact hearing was convened on January 23, 2008,

upon a Notice of Hearing issued November 14, 2007. Respondent

did not appear at the place and time appointed. The undersigned

verified w ith the Division of Administrative Hearings in

Tallahassee that Respondent had not telephoned to report any

emergency delay, and a fter waiting for 30 minutes, Respondent

still had not appeared.

Petitioner presented the oral testimon ies of Angel A.

Rosad o, James DeLoach, Earnest Wilson, and Lawrence Perez, and

had one exhibit admitted in evidence. Petitioner’s E xhibits 3 - 5

were samples of beer, which the undersigned declined to take

into evidence, as they were unduly cumbersome and repetitious in

light o f the testimony of the agents involved. See Section

120.569(2)(g), Florida Statutes, and Findings of Fact 6, 8, and

10 . Official recognition , subject to ver ification by the

undersigned, was taken of the copies of Florida Administrative

Code Rules 61A - 3. 0081, 61A - 3.0101, 61A - 3.0141, 61A - 3.017, and

61A - 3.019, and of Sections 561.20 and 561.22, Florida Statutes,

provided in hard copy at the hearing .

At the close of Petitioner’s case, Respondent still had not

appeared, so the hearing was concluded without R espondent’s

appearance.

No transcript was provided.

Only Petitioner filed its Proposed Recommended Order 2/ on

February 4, 2008, and that proposal has been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. Pursuant to un - refuted te stimony, Respondent, MJT

Restaurant Group, Inc., doing business as The Copper Pot , holds

Beverage License 5202697, S eries 4 COP, SRX . 3/

2. Respondent’s establishment is located in Ocala,

Florida. It is divided into two separate interior rooms, with

two separate exterior entrances. The two rooms are connected

through the interior by a single opening between one room, which

is the main restaurant area , and a second room, which is the

bar/lounge .

3 . A complaint was opened against Respondent with a

warning letter issued by Investigative S pecialist Melodi Brewton

on March 15, 2007.

4. The Administrative Complaint that was ultimately filed

in this case addresses only the dates of April 7, 2007, June 17,

2007, and July 20, 2007.

5. On April 7, 2007, Specia l Agents Angel Rosado and

Lawrence Perez visited Respondent’s premises in an undercover

capacity at approximately 11:00 p.m. On that date, the

restaurant’s exterior door was closed and locked , but the

lounge ’s exterior door was open . The agents entered t hrough the

lounge’s exterior door and observed patrons consuming alcohol

and listening to a band in the bar area .

6. The agents requested a menu from the bartender. The

bartender told them the kitchen was closed. Each agent then

ordered a beer , and a sealed alcoholic beer bottle was sold to

each of them as alcoholic beer. Each agent was over 21 years of

age, familiar with the smell and taste of alcohol, and testified

that the liquid inside his container had been alcoholic beer.

The agents testified that t he y had paid for , and received , the

liquid as if it were alcoholic beer. A chain of cus tody was

maintained and a sample vial of the beer served by Respondent on

Tuesday, April 7, 2007, was brought to the hearing but was not

admitted into evidence as unduly repetitious and cumbersome. 4 /

7. On June 16, 2007, Special Agent Rosado and Special

Agent Lawrence Perez visited The Copper Pot at approximately

11:30 p.m. The outside restaurant door was not locked, but the

lights were off inside the restaurant room where chairs were

stacked on the tables. The agents observed patrons in the

lounge room consuming alcohol. When the agents asked for a

menu, the male bartender told them that the kitchen was closed.

The bartender offered to heat up some spinach dip for them, but

they declined.

8. E ach agent then ordered an alcoholic beer , and a liquid

was sold to each of them as alcoholic beer. Each agent was over

21 years of age, familiar with the smell and taste of alcohol,

and testified that the liquid sold h im was alcoholic beer. Each

agent testified that he had paid for , and received , the liquid

as if it were alcoholic beer. A sample of the alcoholic beer

was logged into the Agency evidence room on June 17, 2007. That

sample of the beer served by Responde nt on June 1 6 , 2007, was

brought to the hearing but was not admitted into evidence as

unduly repetitious and cumbersome. 5 /

9. D uring the June 16 - 17, 2007, visit, Agent Perez spoke

with a woman who was later determined to be one of the corporate

officer s of the licensee, Judith Vallejo. When Agent Perez

asked her about obtaining a meal, Judith Vallejo replied that

the kitchen was closed , but they could get food at the nearby

Steak’N’Shake . T he male bartender then told the agents that the

Respondent’s r estaurant closes at 9:00 p.m. weekdays and

10:00 p.m. on weekends. June 16, 2007 , was a Saturday.

June 17, 2007 , was a Sunday.

10. At about 11:00 p.m. o n July 20, 2007, Special Agents

James DeLoach , Ernest Wilson , and Angela Francis entered

Respondent l icensee’s premises through the lounge. The

restaurant’s outside entrance was locked and the restaurant was

dark. In the lounge, they asked for a menu to order a meal.

The male bartender told them that the kitchen was closed, but

they could have a spinac h dip. The agents ordered , and were

served , one beer and two mixed drinks , which Special Agents

DeLoach and Wilson testified had alcohol in them. Special Agent

Francis did not testify. Both of the special agents who

testified were over 21 years of age, familiar with the taste and

smell of alcohol, identified that the liquids they had been

served were , in fact, alcoholic beverages, and that they had

bought and paid for what the bartender served them as alcoholic

beverages as if they were alcoholic beverag es . Each testified

that the bartender had represented that what he was serving them

were the alcoholic beverages they had ordered . A sample vial of

only the beer served by Respondent to Special Agent Wilson on

July 20, 2007, was brought to the hearing , b ut it was not

admitted into evidence as unduly repetitious and cumbersome. 6 /

11. Thereafter, a n otice of intent to file charges was

served upon one of Respondent’s corporate officers.

1 2 . There was testimony from a Special Agent that an SRX

licensee i s required to earn fifty per cent of its gross income

from the sale of food and must sell food which is the equivalent

of a full course meal during the entire time alcohol is being

served, and that the Administrative Complaint herein should have

cited Sect ion 561.20(1) instead of 561.20(4), Florida Statutes.

CONCLUSIONS OF LAW

1 3 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(200 7 ).

1 4 . Count I of the Administrative Complaint charges

Respondent wit h violating Florida Administrative Code Rule 61A -

3.0141(3)(D ) and Florida St atutes 561.20(4) “within”

561.29(1)(A ), on April 7, 2007. Count II contains the same

charges for June 17, 2007. Count III contains the same charges

for July 20, 2007. 7 /

15. Each count also contains the following specific

language describing the violation(s) charged : ". . . did

unlawfully on your licensed premises, fail to discontinue the

sale of alcoholic bever ages when the service of full course

meals had been discontinued."

16. Although The Administrative Complaint uses capital

letters , instead of lower - case letters , for the sub - sections of

both Florida Administrative Code Rule 61A - 3.0141(3)(d) and

Section 56 1.29(1)(a), Florida Statutes, these citations are

understandable and gave appropriate notice of existing statutes

and rules . However, those foregoing statutes and rules ,

together with Section 561.20(4), constitute the only charges

herein .

1 7 . The languag e of the statutes and rules to be applied

is the language in effect on the dates in 2007 , related in the

Administrative Complaint.

1 8 . Although other statutes and rules not specifically

cited in the Administrative Complaint may help interpret the

offe nses actually charged, Respondent cannot be found guilty of

violations not specifically charged in the Administrative

Complaint . See Trevisani v. Dept. of Health , 908 So. 2d 1108

(Fla. 1st DCA 2005), and cases cited therein.

1 9 . The Florida S tatutes (200 7) actually charged as

violations or offenses in the Administrative Complaint read as

follows:

Section 561.20(4), Limitation upon number of

licenses issued:

* * *

(4) The limitations herein prescribed shall

not affect or repeal any existing or future

local or special act relating to the

limitation by population and exceptions or

exemptions from such limitation by

population of such licenses within any

incorporated city or town or county that may

be in conflict herewith. Any license issued

under a loca l or special act relating to the

limitation by population shall be subject to

all requirements and restrictions contained

in the Beverage Law that are applicable to

licenses issued under subsection (1).

S ection 561.29(1)(a), Revocation and

suspension of l icense; power to subpoena -

(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 co unty regulation in regard to the hours

of sale, service, or consumption of

alcoholic beverages o r license requirements

of special licenses issued under s. 561.20,

or engaging in or permitting disorderly

conduct on the licensed premises, or

permitting anoth er 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 of the rules of

evidence. (Emphasis supplied)

20 . The Florida Administrative Code violation actually

charged in the Adm inistrative Complaint is Florida

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

follows:

(3) Qualifying restaurants receiving

special restaurant license after April 18,

1972 must, in addition to continuing to

comply with the requirements set fo rth 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 cour se 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. Entrée;

3. Beverage; and

4. Bread.

21 . Florida Administrative Code Rule 61A - 3.014 1 (1) is

helpful in interpreting Rule 61A - 3.0141(3)(d), actu ally cited in

the Administrative Complaint against Respondent.

61A - 3.014 1(1) Special Restaurant Licenses.

(1) Special restaurant licenses in excess

of the quota limitation set forth in

subsection 561.20(1), Florida Statutes,

shall be issued to otherwise q ualified

applicants for establishments that are bona

fide restaurants engaged primarily in the

service of food and non - alcoholic beverages,

if they qualify as special restaurant

licensees as set forth in subsection (2) of

this rule. Special restaurant lic ensees

must continually comply with each and every

requirement of both subsections (2) and (3)

of this rule as a condition of holding a

license. Qualifying restaurants must meet

the requirements of this rule in addition to

any other requirements of the be verage law.

The suffix "SRX" shall be made a part of the

license numbers of all such licenses issued

after January 1, 1958. (Emphasis supplied)

2 2 . T he statutes charged in the Administrative Complaint

only state the power, authority, and jurisdiction of Petitioner

Agency to suspend or revoke licenses and do not allege a

specific violation of law was committed by Petitioner against

which to test the facts proven.

2 3 . It may be i nfer red from the testimony as a whole ( see

Finding of Fact 12 ) 8/ ; the contex t of the statutes, generally ;

and the specific descriptive language employed by the Agency in

the Administrative Complaint, ( see Conclusion of Law 15) that

the Administrative Complaint intended to charge Respondent with

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

reads, in pertinent part, as follows:

* * *

4. . . . no restaurant granted a special

license on or after January 1, 1958,

pursuant to general or special law shall

operate as a package store, nor shall

intoxicating beverages be sold under such

license after the hours of serving food have

elapsed.

* * *

2 4 . Herein, Petitioner seeks the penalty assigned by

Florida Administrative Code Rule 61A - 2.022 to violations of

Section 561.20, for failure to meet minimum qualifications of a

special license ; that is, a $1,000 penalty, plus license

revocation without prejudice to obtain any type of license but

with prejudice to obtain the same type of special license for

five years. Florida Administrative Code Rule 61A - 2.022 does not

prov ide any guideline for rule violations .

2 5 . T he Agency has never moved to amend the Administrative

Complaint, and Petitioner has not proven a violation of the

statutory charges it actually brought. Accordingly, it may be

concluded that the statutory char ges actually brought against

Respondent should be dismissed. On the other hand, Respondent

has three times violated the rule charged in the Administrative

Complaint. T hese proceedings do not have the technicality of a

"numbers game." Even under T r evisan i , the court considered the

words alleging the offense and determined that the lynchpin is

whether actual notice of the charges against the licensee has

been provided to the licensee in the charging document.

2 6 . Petitioner has clearly proven three viola tions of

Florida Administrative Code Rule 61A - 3.0141(3)(d), charged in

the Administrative Complaint.

27. The rule alleged and proven against Respondent in the

Administrative Complaint states the same offense as is contained

in Section 561.20(2)(a)4 . , in o nly slightly different language ,

and the actual words used in the Administrative Complaint to

describe the offense charged ( see Conclusion of Law 15), also

clearly give notice of Respondent's activity alleged to be a

violation. Although Section 561.20(2)( a)4 . , was not named in

the Administrative Complaint, the offense described by that

statute, the offense described by the actual language of the

Administrative Complaint, and the offense charged by the rule

named in the Administrative Compliant have been pr oven.

2 8 . Florida Administrative Code Rule 61A - 2.022 sets out a

table of guidelines for penalties by statute number, not b y rule

number , but upon foregoing Conclusion of Law 27, Petitioner is

entitled to the remedy it seeks , as set out Florida

Administrat ive Code Rule 61A - 2.022 for a Section 561.20(2)(a)4 .

violation.

R ECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that a final order be entered dismissing all

statutory charges ; finding Respondent guilty , u nder each of the

three counts of the Administrative Complaint, of violating

Florida Administrative Code Rule 61A - 3.0141(3)(d) ; and for the

rule violation s , fining Respondent $1,000.00 , and revoking

Respondent's license without prejudice to Respondent 's ob tain ing

any type of license , but with prejudice to Respondent 's

obtain ing the same type of special license for five years .

DONE AND ENTERED this 4th day of March , 200 8 , in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P . DAVIS

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Di vision of Administrative Hearings

this 4th day of March , 200 8 .

ENDNOTES

1/ In addition to this reference of “within,” the

Administrative Complaint actually reads, “569.29(1)(A).”

2/ Attached thereto was a copy of Florida Administrative Code

Chapter 61A - 2 .

3/ This would be a stronger case if the certified license file

had been offered and admitted in evidence .

4/ This would have been a stronger case if the laboratory

report on the substance served had been offered in evidence

through someone ca pable of laying a predicate, preferably the

qualified analyst . However , in light of no objection by

Respondent to the foregoing procedure, the method used was

sufficient.

5/ See n. 4 .

6/ See n. 4 .

7/ See n. 1.

8/ Section 561.20(1), Florida Statutes, cited by one of the

witnesses as the statute the Agency intended to charge against

Respondent, is not helpful in interpreting the actual charges

against Respondent. It reads:

561.20 Limitation upon number of licenses

issued.

(1) No license under s. 5 56.02(1)(a) - (f),

inclusive, shall be issued so that the

number of such licenses within the limits of

the territory of any county exceeds one such

license to each 7,500 residents within such

county. Regardless of the number of quota

licenses issued prior t o October 1, 2000, on

an after that date, a new license under s.

565.02(1)(a) - (f), inclusive, shall be issued

for each population of 7,500 residents above

the number of residents who resided in the

county according to the April 1, 1999,

Florida Estimate of Population as published

by the Bureau of Economic and business

Research at the University of Florida, and

thereafter, based on the last regular

population estimate prepared pursuant to s.

186.901, for such county. Such population

estimates shall be the b asis for annual

license issuance regardless of any local

acts to the contrary. However, such

limitation shall not prohibit the issuance

of at least three licenses in any county

that may approve the sale of intoxicating

liquors in such county.

COPIES FUR NISHED:

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Thomas Valleio, Jr.

2019 - 102 East Silver Springs Boulevard

Ocala, Florida 34470

Steven M. Hougland, Ph.D. , Director

Department of Business and

Professional Regulations

Division of Alcoholic Beverage

and Tobacco

Northwood Centre

1949 North Monroe Street

Tallahassee, Florida 32399 - 0792

David J. Tarbert, Esquire

Department of Business an d

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.