07-005214 Hooters Of Lake Underhill, Llc, D/B/A Hooters Of Waterford Lakes vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed Recommended Order on Monday, May 5, 2008.

Summary: Petitioner did not provide the requisite zoning approval in its application to change license series.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOOTERS OF LAKE UNDERHILL, LLC, )

d/b/a HOOTERS OF WATERFORD )

LAKES, )

)

Petitioner, )

)

vs. ) Case No. 07-5214

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on February 25, 2008, via video teleconference with sites

in Tallahassee and Orlando, Florida, before Administrative Law

Judge R. Bruce McKibben of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Maggie M. Schultz, Esquire

Harold F. Purnell, Esquire

Rutledge, Ecenia, Purnell,

& Hoffman, P.A. Post Office Box 551

Tallahassee, Florida 32302-0551

For Respondent: Joshua B. Moye, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application

for a special restaurant license (4COP-SRX) can be deemed

incomplete for failure to obtain zoning approval from the local

government.

PRELIMINARY STATEMENT

On or about February 5, 2007, Petitioner filed a Change in

Location/Increase in Series Application (the "Application") with

Respondent. Respondent issued a notice of intent to deny the

Application, and Petitioner availed itself of its right to a

formal administrative hearing, which was held at the date, time,

and place set forth above.

At final hearing, Petitioner called two witnesses: Tim

Baum, regional manager for Hooters of Lake Underhill, and Lois

Williams, senior management analyst II for Respondent.

Petitioner offered 12 exhibits into evidence; Exhibits 1 through

4, 8 through 11, and 16 were admitted. Official recognition was

taken of Exhibits 5, 6, and 7. Respondent did not call any

witnesses or introduce any independent exhibits into evidence.

Rather, Respondent made an argument on the record as to how it

believes the law should be applied in this case.

FINDINGS OF FACT

1. Petitioner is a restaurant duly-licensed by the State

of Florida to serve food and certain alcoholic beverages. It

currently holds a 2COP restaurant license, which allows it to

sell beer and wine along with its food products. Petitioner has

held the 2COP license since opening in calendar year 2002.

2. Petitioner derives 51 percent of its revenue from the

sale of food and nonalcoholic beverages. It is in an area of

Orange County which is zoned for commercial property and has the

appropriate land use code for a restaurant chain.

3. Petitioner's facility is presently located within

500 feet of a local school. The school was built a year or two

after Petitioner began operation of its restaurant.

4. In order for Petitioner to obtain an upgraded license

so that it can serve other alcoholic beverages ( i.e. , liquor) it

must submit an application to Respondent. Petitioner duly-

submitted such an application on February 5, 2007. The

application sought to upgrade Petitioner's license to a 4COP-SRX

license. The 4COP license would allow for sale of all alcoholic

beverages.

5. Section 5 of the Application addresses zoning for the

restaurant. Section 5 includes the following:

Are there outside areas which are contiguous

to the premises which are to be part of the

premises sought to be licensed? [Petitioner

answered, Yes.]

If this application is for issuance of an

alcoholic beverage license where zoning

approval is required, the zoning authority

must complete "A" and "B". If zoning is not

required, the applicant must complete

section "B".

A. The location complies with zoning

requirements for the sale of alcoholic

beverages or wholesale tobacco products

pursuant to this application for a Series

4COP SRX license.

Signed _______________ Date _______________

Title ________________

B. Is the location within limits of an

"Incorporated City or Town"? ___Yes ___No

If yes, enter the name of the city or town:

______________________

6. Petitioner filled in the address portion of Section 5,

but did not have a zoning authority complete Section A, nor did

Petitioner complete Section B.

7. Respondent deemed the Application incomplete due to

Petitioner's failure to complete Section 5. On July 25, 2007, a

Final Warning Notice was sent to Petitioner, allowing Petitioner

ten additional days to submit zoning approval for the

Application. When no zoning approval was returned within the

prescribed period, Respondent issued its Intent to Deny License.

8. Petitioner did make an inquiry to the local zoning

authority concerning its application to increase the level of

its license. However, by letter dated February 22, 2007, the

Orange County Zoning Division notified Petitioner as follows:

We have received your request for an

increase in series to the alcoholic beverage

license at Hooters Lake Underhill,

11425 Underhill Road, Orlando.

On February 22, 2007 we conducted a distance

check to see if the proposed location

satisfied the separation requirements

contained in the Orange County Code. The

results of our inspection reveal that the

proposed location is 407 ft. from Legacy

Middle School at 11398 Lake Underhill Road.

Since this location cannot satisfy the 1000

ft. separation requirement from the nearest

school, this office cannot issue zoning

approval for the increase in series.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007). 1

10. Authority to review and approve requests for licenses

under the Florida Beverage Law (Chapters 561 through 568,

Florida Statutes) rests with Respondent.

11. Subsection 562.45(2)(a), Florida Statutes, states as

follows:

Nothing contained in the Beverage Law shall

be construed to affect or impair the power

or right of any county or incorporated

municipality of the state to enact

ordinances regulating the hours of business

and location of places of business, and

prescribing sanitary regulations therefore,

of any licensee under the Beverage Law

within the county or corporate limits of

such municipality. However, except for

premises licensed on or before July 1, 1999,

and except for locations that are licensed

as restaurants, which derive at least 51

percent of their gross revenues from the

sale of food and nonalcoholic beverages,

pursuant to Chapter 509, a location for on-

premises consumption of alcoholic beverages

may not be located within 500 feet of the

real property that comprises a public or

private elementary school, middle school, or

secondary school unless the county or

municipality approves the location as

promoting the public health, safety, and

general welfare for the community under

proceedings as provided in s. 125.66(4), for

counties, and s. 166.041(3)(c), for

municipalities. This restriction shall not,

however, be construed to prohibit the

issuance of temporary permits to certain

nonprofit organizations as provided for in s

561.422. The division may not issue a

change in the series of a license or approve

a change of a licensee's location unless the

licensee provides documentation of proper

zoning from the appropriate county or

municipal zoning authorities . (Emphasis

added)

12. Clearly, Petitioner derives at least 51 percent of its

gross revenues from the sale of food and nonalcoholic beverages.

Thus, it would be allowed to exist within 500 feet of a school

under the exception in the above language without a showing by

the county that such location promotes the health, safety, and

welfare of the community. 2

13. Likewise, Orange County's right to enact ordinances

regulating the location of a place of business for a licensee

under the Beverage Law cannot be impaired. Thus, Orange County

may legally enact a 1,000-foot separation requirement between

schools and restaurants that serve alcohol. 3

14. The last phrase in the statutory subsection above,

however, establishes limits where there is to be a change in

series of a license. Any applicant seeking to obtain such a

change must obtain documentation of proper zoning from the

appropriate county or municipality. It is clear that in the

instant case, Petitioner failed to obtain that documentation.

15. Subsection 562.45(2)(c), Florida Statutes, goes on to

say:

A county or municipality may not enact any

ordinance that regulates or prohibits those

activities or business transactions of a

licensee regulated by the Division of

Alcoholic Beverages and Tobacco under the

Beverage Law. Except as otherwise provided

in the Beverage Law, a local government,

when enacting ordinances designed to promote

and protect the general health, safety, and

welfare of the public, shall treat a

licensee in a nondiscriminatory manner and

in a manner that is consistent with the

manner of treatment of any other lawful

business transacted in this state. Nothing

in this section shall be construed to affect

or impair the enactment or enforcement by a

county or municipality of any zoning, land

development or comprehensive plan regulation

or other ordinance authorized under ss. 1,

2, and 5, Art. VIII of the State

Constitution.

Again, Orange County is authorized to enact zoning requirements

within its authority under the Florida Constitution. It is only

prohibited from enacting ordinances which are discriminatory or

inconsistent with the manner other businesses are treated. In

the instant action, the Orange County ordinance concerning a

1,000-foot separation between schools and businesses selling

alcohol is well within the purview of the county government.

16. Petitioner bears the burden of proof in this matter as

to whether a change in license is warranted. Department of

Banking and Finance, Division of Securities and Investor

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

1966). Based upon the facts presented, Petitioner has not met

its burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco, denying the application filed by

Petitioner.

DONE AND ENTERED this 5th day of May, 2008, in Tallahassee,

Leon County, Florida.

R. BRUCE MCKIBBEN

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 5th day of May, 2008.

ENDNOTES

1/ Unless otherwise stated, all references to Florida Statutes

herein shall be to the 2007 version.

2/ In this case, the restaurant would be grandfathered in at its

present location anyway because it existed prior to the school

being built on its present site.

3/ Orange County Code 38-1415(a) states:

Places of business for the sale of alcoholic

beverages containing more than three and

two-tenths (3.2) percent of alcohol by

weight for consumption on or off the

premises may be located in the

unincorporated areas of the county in

accordance with and subject to this chapter

and specifically those zoning regulation

regulating the location of places of

business selling alcoholic beverages

containing fourteen (14) percent or more

alcohol by weight. No such place of

business shall be established within one

thousand (1,000) feet of an established

church or school. . . .

COPIES FURNISHED :

Maggie M. Schultz, Esquire

Harold F. Purnell, Esquire

Rutledge, Ecenia, Purnell,

& Hoffman, P.A.

Post Office Box 551

Tallahassee, Florida 32302-0551

Joshua B. Moye, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Cynthia Hill, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.