08-000212RU
Amy Cat, Inc., D/B/A Cypress Manor And Abkey, Ltd., D/B/A Fuddruckers vs.
Department Of Business And Professional Regulation
Status: Closed
DOAH Final Order on Wednesday, April 30, 2008.
DOAH Final Order on Wednesday, April 30, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AMY CAT, INC., d/b/a CYPRESS )
14MANOR, and ABKEY, LTD, )
19d/b/a FUDDRUCKERS RESTAURANT, )
23)
24Petitioners, )
26)
27vs. ) Case No. 08-0212RU
32)
33DEPARTMENT OF BUSINESS AND )
38PROFESSIONAL REGULATION, )
41DIVISION OF ALCOHOLIC BEVERAGES )
46AND TOBACCO, )
49)
50Respondent. )
52__________________________________)
53FINAL ORDER
55Pursuant to notice, an evidentiary hearing was conducted in
64this case pursuant to Section 120.56, Florida Statutes, 1 before
74Stuart M. Lerner, a duly-designated administrative law judge of
83the Division of Administrative Hearings (DOAH), on January 25,
922008, in Tallahassee, Florida.
96APPEARANCES
97For Petitioners: Harold F. X. Purnell, Esquire
104Rutledge, Ecenia, Purnell
107and Hoffman, P.A.
110Post Office Box 551
114Tallahassee, Florida 32302-0551
117For Respondent: Michael J. Wheeler, Esquire
123Department of Business and
127Professional Regulation
129Northwood Centre, Suite 40
133Tallahassee, Florida 32399-2202
136STATEMENT OF THE ISSUE
140Whether Respondent's pronouncement that special restaurant
146licenses issued prior to January 1, 1958, that have not remained
157in "continuous operation" are thereby (as a result of their lack
168of "continuous operation") rendered invalid pursuant to Section
177561.20(5), Florida Statutes, and therefore not subject to
185delinquent renewal pursuant to Section 561.27, Florida Statutes
193(Challenged Statement) is a rule that violates Section
201120.54(1)(a), Florida Statutes, as alleged by Petitioners.
208PRELIMINARY STATEMENT
210On January 10, 2008, Abkey, Ltd., d/b/a Fuddruckers (Abkey)
219and Amy Cat, Inc. d/b/a Cypress Manor (Amy Cat) filed a petition
231with DOAH pursuant to Section 120.56(4), Florida Statutes,
239seeking an administrative determination that the Challenged
246Statement violates Section 120.54(1)(a), Florida Statutes, and
253further seeking an award of attorney's fees pursuant to Section
263120.595(4), Florida Statutes. The matter was docketed as DOAH
272Case No. 08-0212RU. On January 14, 2008, Abkey and Amy Cat
283(hereinafter referred to collectively as "Petitioners") filed a
292motion requesting that DOAH Case No. 08-0212RU be consolidated
301with three other cases that had previously been consolidated:
310DOAH Case Nos. 07-2508 (involving the proposed denial of Abkey's
320application for delinquent renewal of its SR license); 07-4602
329(involving the proposed denial of an application for delinquent
338renewal of the SR license of Nick Maneros, II, Inc., d/b/a
349Maneros of Hallandale); and 07-4692 (involving the proposed
357denial of Amy Cat's application for delinquent renewal of its SR
368license). On January 16, 2008, the Department of Business and
378Professional Regulation, Division of Alcoholic Beverages and
385Tobacco (DABT) filed a response to the motion, in which it
396stated the following:
399For the purpose of judicial economy and
406being that the parties and issues are
413similar, the Respondent defers to the
419discretion of the Court regarding [the]
425pending motion [to consolidate].
429On January 18, 2008, the undersigned issued an order, which
439provided as follows:
4421. DOAH Case No. 07-0212RU is consolidated,
449for purposes of hearing, with DOAH Case Nos.
45707-2508, 07-4602, and 07-4692 pursuant to
463Florida Administrative Code 28-106.108.
4672. The hearing in these four consolidated
474cases will be held on January 25, 2008, as
483more specifically described in the Notice of
490Hearing issued in DOAH Case Nos. 07-2508,
49707-4602, and 07-4692 on December 5, 2007.
504As noted above, the final hearing in DOAH Case Nos.
51407-2508, 07-4602, 07-4692, and 08-0212RU was held on January 25,
5242008, as scheduled. One witness, Eileen Klinger, the chief of
534DABT's Bureau of Licensing, testified at the hearing. In
543addition to Ms. Klinger's testimony, 20 exhibits (Petitioners'
551Exhibits 1 through 19, and Respondent's Exhibit 1) were offered
561and received into evidence.
565The deadline for the filing of proposed final orders in DOAH
576Case No. 07-0212RU was set at 15 days from the date of the filing
590with DOAH of the hearing transcript.
596The hearing Transcript (consisting of one volume) was filed
605with DOAH on February 8, 2008.
611On February 22, 2008, Petitioners filed an unopposed motion
620requesting an extension of the deadline for the filing of
630proposed final orders. By order issued February 25, 2008, the
640motion was granted, and the parties were given until March 14,
6512008, to file their proposed final orders.
658The parties timely filed their proposed final orders on
667March 14, 2008. They also, on that same date, filed a post-
679hearing stipulation, agreeing that "Petitioners' SR licenses in
687the above cases are per general law and not pursuant to any
699special or local act."
703The parties were subsequently given the opportunity to
711present oral argument in support of their respective positions
720in this case. Such argument was presented by telephone
729conference call on April 14, 2008.
735The parties were also given the opportunity to file post-
745oral argument supplements to their Proposed Final Orders,
753provided they did so no later than April 29, 2008. To date no
766such supplements have been filed.
771FINDINGS OF FACT
774Based on the evidence adduced at hearing, and the record as
785a whole, the following findings of fact are made:
7941. There are various types of DABT-issued licenses
802authorizing the retail sale of alcoholic beverages. Among them
811are quota licenses, SRX licenses, and SR licenses. All three of
822these licenses allow the licensee to sell liquor, as well as
833beer and wine.
8362. Quota licenses, as their name suggests, are limited in
846number. The number of quota licenses available in each county
856is based upon that county's population.
8623. SRX and SR licenses are "special" licenses authorizing
871the retail sale of beer, wine, and liquor by restaurants. There
882are no restrictions on the number of these "special" licenses
892that may be in effect (countywide or statewide) at any one time.
9044. SRX licenses are "special restaurant" licenses that
912were originally issued in or after 1958. 2
9205. SR licenses are "special restaurant" licenses that were
929originally issued prior to 1958.
9346. For restaurants originally licensed after April 18,
9421972, at least 51 percent of the licensed restaurant's total
952gross revenues must be from the retail sale of food and non-
964alcoholic beverages. 3
9677. Restaurants for which an SR license has been obtained,
977on the other hand, do not have to derive any set percentage or
990amount of their total gross revenues from the retail sale of
1001food and non-alcoholic beverages.
10058. DABT-issued alcoholic beverage licenses are subject to
1013annual renewal. 4
10169. License holders who have not timely renewed their
1025licenses, but wish to remain licensed, may file an Application
1035for Delinquent Renewal (on DABT Form 6015).
104210. Until recently, it was DABT's longstanding policy and
1051practice to routinely grant applications for the delinquent
1059renewal of SR and other alcoholic beverage licenses, regardless
1068of the reason for the delinquency.
107411. DABT still routinely grants applications to
1081delinquently renew alcoholic beverage licenses other than SR
1089licenses, but it now has a "new policy" in place with respect to
1102applications for the delinquent renewal of SR licenses. The
"1111new policy" is to deny all such applications based upon these
1122SR licenses' not having been in "continuous operation," action
1131that, according to DABT, is dictated by operation of Section
1141561.20(5), Florida Statutes, a statutory provision DABT now
1149claims it had previously misinterpreted when it was routinely
1158granting these applications.
116112. Relying on Section 561.20(5), Florida Statutes, to
1169blanketly deny all applications for the delinquent renewal of SR
1179licenses was the idea of Eileen Klinger, the head of DABT's
1190Bureau of Licensing. She directed her licensing staff to
1199implement the "new policy" after being told by agency attorneys
1209that this "was the appropriate thing [from a legal perspective]
1219to do."
122113. As applicants applying to delinquently renew their SR
1230licenses (which were both originally issued in 1956),
1238Petitioners are substantially affected by DABT's "new policy"
1246that SR licenses cannot be delinquently renewed because they
1255have not been in "continuous operation," as that term is used in
1267Section 561.20(5), Florida Statutes. Their applications for the
1275delinquent renewal of their licenses would have been approved
1284had the status quo been maintained and this "new policy" not
1295been implemented.
129714. Abkey filed its application (on DABT Form 6015) for
1307the delinquent renewal of its SR license (which had been due for
1319renewal on March 31, 2005) on February 21, 2007. On the
1330application form, Abkey gave the following "explanation for not
1339having renewed during the renewal period": "Building was sold.
1349Lost our lease."
135215. On April 2, 2007, DABT issued a Notice of Intent to
1364Deny Abkey's application. DABT's notice gave the following
1372reason for its intended action:
1377The request for delinquent renewal of this
1384license is denied. Florida Statute
1389561.20(5) exempted restaurant licenses
1393issued prior to January 1, 1958 from
1400operating under the provisions in 561.20(4)
1406as long as the place of business was in
1415continuous operation. This business failed
1420to renew its license on or before March 31,
14292005, therefore it did not comply with the
1437requirements and is no longer valid.
144316. Amy Cat filed its application (on DABT Form 6015) for
1454the delinquent renewal of its SR license (which had been due for
1466renewal on March 31, 1999) on December 6, 2006. On the
1477application form, Amy Cat gave the following "explanation for
1486not having renewed during the renewal period": "Building was
1496closed."
149717. On June 8, 2007, DABT issued a Notice of Intent to
1509Deny Amy Cat's application. DABT's notice gave the following
1518reason for its intended action:
1523The request for delinquent renewal of this
1530license is denied. Florida Statute
1535561.20(5) exempted restaurant licenses
1539issued prior to January 1, 1958 from
1546operating under the provisions in 561.20(4)
1552as long as the place of business was in
1561continuous operation. This business failed
1566to renew its license on or before March 31,
15751999, therefore it did not comply with the
1583requirements and is no longer valid.
1589SR licenses will not be allowed to be moved
1598from the location where the license was
1605originally issued.
1607CONCLUSIONS OF LAW
161018. The instant challenge is being made pursuant to
1619Section 120.56(4), Florida Statutes, which provides, in
1626pertinent part, as follows:
1630(a) Any person substantially affected by an
1637agency statement may seek an administrative
1643determination that the statement violates s.
1649120.54(1)(a). The petition shall include
1654the text of the statement or a description
1662of the statement and shall state with
1669particularity facts sufficient to show that
1675the statement constitutes a rule under s.
1682120.52 and that the agency has not adopted
1690the statement by the rulemaking procedure
1696provided by s. 120.54.
1700(b) The administrative law judge may extend
1707the hearing date beyond 30 days after
1714assignment of the case for good cause. If a
1723hearing is held and the petitioner proves
1730the allegations of the petition, the agency
1737shall have the burden of proving that
1744rulemaking is not feasible and practicable
1750under s. 120.54(1)(a).
1753(c) The administrative law judge may
1759determine whether all or part of a statement
1767violates s. 120.54(1)(a). The decision of
1773the administrative law judge shall
1778constitute a final order. [DOAH] shall
1784transmit a copy of the final order to the
1793Department of State and the committee. The
1800Department of State shall publish notice of
1807the final order in the first available issue
1815of the Florida Administrative Weekly.
1820(d) When an administrative law judge enters
1827a final order that all or part of an agency
1837statement violates s. 120.54(1)(a), the
1842agency shall immediately discontinue all
1847reliance upon the statement or any
1853substantially similar statement as a basis
1859for agency action.
1862* * *
1865(f) All proceedings to determine a
1871violation of s. 120.54(1)(a) shall be
1877brought pursuant to this subsection. A
1883proceeding pursuant to this subsection may
1889be consolidated with a proceeding under any
1896other section of this chapter. . . .
190419. Section 120.54(1)(a), Florida Statutes, the statutory
1911provision that Petitioners claim in their challenge DABT has
1920violated, provides as follows:
1924Rulemaking is not a matter of agency
1931discretion. Each agency statement defined
1936as a rule by s. 120.52 shall be adopted by
1946the rulemaking procedure provided by this
1952section as soon as feasible and practicable.
19591. Rulemaking shall be presumed feasible
1965unless the agency proves that:
1970a. The agency has not had sufficient time
1978to acquire the knowledge and experience
1984reasonably necessary to address a statement
1990by rulemaking;
1992b. Related matters are not sufficiently
1998resolved to enable the agency to address a
2006statement by rulemaking; or
2010c. The agency is currently using the
2017rulemaking procedure expeditiously and in
2022good faith to adopt rules which address the
2030statement.
20312. Rulemaking shall be presumed
2036practicable to the extent necessary to
2042provide fair notice to affected persons of
2049relevant agency procedures and applicable
2054principles, criteria, or standards for
2059agency decisions unless the agency proves
2065that:
2066a. Detail or precision in the
2072establishment of principles, criteria, or
2077standards for agency decisions is not
2083reasonable under the circumstances; or
2088b. The particular questions addressed are
2094of such a narrow scope that more specific
2102resolution of the matter is impractical
2108outside of an adjudication to determine the
2115substantial interests of a party based on
2122individual circumstances.
"2124When section 120.54(1)(a) is read together with section
2132120.56(4), it becomes clear that the purpose of a section
2142120.56(4) proceeding is to force or require agencies [that
2151desire to continue to rely on agency statements defined as
2161rules] into the rule adoption process. It provides [these
2170agencies] with incentives to promulgate [these statements as]
2178rules through the formal rulemaking process." Osceola Fish
2186Farmers Association, Inc., v. Division of Administrative
2193Hearings , 830 So. 2d 932, 934 (Fla. 4th DCA 2002).
220320. "An agency statement constituting a rule may be
2212challenged pursuant to Section 120.56(4), Florida Statutes, only
2220on the ground that 'the agency has not adopted the statement by
2232the rulemaking procedure provided by s. 120.54.'" Zimmerman v.
2241Department of Financial Services, Office of Insurance
2248Regulation , No. 05-2091RU, slip op. at 11 (Fla. DOAH August 24,
22592005)(Summary Final Order of Dismissal); see also Southwest
2267Florida Water Management District v. Charlotte County , 774 So.
22762d 903, 908-09 (Fla. 2d DCA 2001)("The basis for a challenge to
2289an agency statement under this section [Section 120.56(4),
2297Florida Statutes] is that the agency statement constitutes a
2306rule as defined by section 120.52(15), Florida Statutes (Supp.
23151996), but that it has not been adopted by the rule-making
2326procedure mandated by section 120.54. In the present case, the
2336challenges to the existing and proposed agency statement on the
2346grounds that they represent an invalid delegation of legislative
2355authority are distinct from a section 120.56(4) challenge that
2364the agency statements are functioning as unpromulgated rules.");
2373Florida Association of Medical Equipment Services v. Agency for
2382Health Care Administration , No. 02-1314RU, slip op. at 6 (Fla.
2392DOAH October 25, 2002)(Order on Motions for Summary Final
2401Order)("[I]n a Section 120.56(4) proceeding which has not been
2411consolidated with a proceeding pursuant to Section 120.57(1)(e),
2419the issue whether a rule-by-definition is substantively invalid
2427for reasons set forth in Section 120.52(8)(b)-(g), Florida
2435Statutes, should not be reached. That being so, the ultimate
2445issues in this case are whether the alleged agency statements
2455are rules-by-definition and, if so, whether their existence
2463violates Section 120.54(1)(a)."); and Johnson v. Agency for
2472Health Care Administration , No. 98-3419RU, 1999 Fla. Div. Adm.
2481Hear. LEXIS 5180 *15 (Fla. DOAH May 18, 1999)(Final Order of
2492Dismissal)("It is apparent from a reading of subsection (4) of
2503Section 120.56, Florida Statutes, that the only issue to be
2513decided by the administrative law judge in a proceeding brought
2523under this subsection is 'whether all or part of [the agency]
2534statement [in question] violates s. 120.54(1)(a),' Florida
2542Statutes . . . .").
254821. The sole remedy available under Section 120.56(4) for
2557such a violation is prospective injunctive relief. See
2565Zimmerman , slip op. at 11 ("The statute [Section 120.56(4),
2575Florida Statutes] is forward-looking in its approach. It is
2584designed to prevent future agency action based on statements not
2594adopted in accordance with required rulemaking procedures, not
2602to provide a remedy for final agency action (based on such
2613statements) that has already been taken."). If a violation is
2624found, the agency must, pursuant to Section 120.56(4)(d),
"2632immediately discontinue all reliance upon the statement or any
2641substantially similar statement as a basis for agency action."
2650See Agency for Health Care Administration v. HHCI Ltd.
2659Partnership , 865 So. 2d 593, 596 (Fla. 1st DCA 2004). In
2670addition, "unless the agency demonstrates that the statement is
2679required by the Federal Government to implement or retain a
2689delegated or approved program or to meet a condition to receipt
2700of federal funds," it must also pay the challenger's reasonable
2710costs and attorney's fees pursuant to Section 120.595(4),
2718Florida Statutes, which provides as follow:
2724CHALLENGES TO AGENCY ACTION PURSUANT TO
2730SECTION 120.56(4).
2732(a) Upon entry of a final order that all or
2742part of an agency statement violates s.
2749120.54(1)(a), the administrative law judge
2754shall award reasonable costs and reasonable
2760attorney's fees to the petitioner, unless
2766the agency demonstrates that the statement
2772is required by the Federal Government to
2779implement or retain a delegated or approved
2786program or to meet a condition to receipt of
2795federal funds.
2797(b) Notwithstanding the provisions of
2802chapter 284, an award shall be paid from the
2811budget entity of the secretary, executive
2817director, or equivalent administrative
2821officer of the agency, and the agency shall
2829not be entitled to payment of an award or
2838reimbursement for payment of an award under
2845any provision of law.
284922. Not every "agency statement" is a " rule " as defined by
2860Section 120.52(15), Florida Statutes, which provides as follows:
"2868Rule" means each agency statement of
2874general applicability that implements,
2878interprets, or prescribes law or policy or
2885describes the procedure or practice
2890requirements of an agency and includes any
2897form which imposes any requirement or
2903solicits any information not specifically
2908required by statute or by an existing rule.
2916The term also includes the amendment or
2923repeal of a rule. The term does not
2931include:
2932(a) Internal management memoranda which do
2938not affect either the private interests of
2945any person or any plan or procedure
2952important to the public and which have no
2960application outside the agency issuing the
2966memorandum.
2967(b) Legal memoranda or opinions issued to
2974an agency by the Attorney General or agency
2982legal opinions prior to their use in
2989connection with an agency action.
2994(c) The preparation or modification of:
30001. Agency budgets.
30032. Statements, memoranda, or instructions
3008to state agencies issued by the Chief
3015Financial Officer or Comptroller as chief
3021fiscal officer of the state and relating or
3029pertaining to claims for payment submitted
3035by state agencies to the Chief Financial
3042Officer or Comptroller.
30453. Contractual provisions reached as a
3051result of collective bargaining.
30554. Memoranda issued by the Executive Office
3062of the Governor relating to information
3068resources management.
3070Only agency statements of "general applicability," that is,
3078those statements which are intended by their own effect to
3088create or adversely effect rights, to require compliance, or to
3098otherwise have the direct and consistent effect of law, fall
3108within this definition. See Florida Department of Financial
3116Services v. Capital Collateral Regional Counsel-Middle Region ,
3123969 So. 2d 527, 530 (Fla. 1st DCA 2007); Department of Highway
3135Safety and Motor Vehicles v. Schluter , 705 So. 2d 81, 82 (Fla.
31471st DCA 1997); Department of Revenue v. Vanjaria Enterprises,
3156Inc. , 675 So. 2d 252, 255 (Fla. 5th DCA 1996); Balsam v.
3168Department of Health and Rehabilitative Services , 452 So. 2d
3177976, 977-978 (Fla. 1st DCA 1984); and McDonald v. Department of
3188Banking and Finance , 346 So. 2d 569, 581 (Fla. 1st DCA 1977).
320023. Such statements qualify as "rules" even if they have
3210not been reduced to writing. See Schluter , 705 So. 2d at 86
3222("[W]e find no support for Judge Benton's argument that an
3233agency's policy statement must be in writing before it can be
3244considered a nonadopted rule."); Department of Health, Board of
3254Pharmacy v. Rx Network of South Florida, LLC , Nos. 02-2976, 02-
32652977, 02-2978PL, and 02-2980PL, 2003 Fla. Div. Adm. Hear. LEXIS
32751024 *93 (Fla. DOAH January 10, 2003)(Recommended Order)("The
3284unwritten form of an agency statement does not prevent the
3294statement from satisfying the statutory definition of a rule in
3304Section 120.52(15)."); and Florida Association of Insurance
3312Agents and Professional Insurance Agents of Florida v.
3320Department of Insurance , No. 01-1427RU, 2001 Fla. Div. Adm.
3329Hear. LEXIS 2732 *43 (Fla. DOAH August 21, 2001)(Final
3338Order)("Because the focus is on effect rather than form, a
3349statement need not be in writing to be a rule-by-definition.").
336024. The "agency statement" Petitioners are challenging in
3368the instant case provides that SR licenses (that is, special
3378restaurant licenses issued prior to January 1, 1958) that have
3388not remained in "continuous operation" are thereby rendered
3396invalid pursuant to Section 561.20(5), Florida Statutes, and
3404therefore not subject to delinquent renewal pursuant to Section
3413561.27, Florida Statutes (Challenged Statement). This is (as
3421DABT itself described it in its Proposed Final Order) a "new
3432policy," 5 the product of DABT's having determined that its prior
3443practice of routinely granting applications for the delinquent
3451renewal of SR licenses was inconsistent with a proper
3460interpretation of Section 561.20(5), which for the past
3468approximately 50 years has provided as follows:
3475Provisions of subsections (2) and (4) as
3482amended by chapter 57-773, Laws of Florida,
3489shall take effect January 1, 1958, and shall
3497apply only to those places of business
3504licensed to operate after January 1, 1958,
3511and shall in no manner repeal or nullify any
3520license issued under provisions of law which
3527are now operating or will operate prior to
3535the effective date January 1, 1958; and all
3543such places of business shall be exempt from
3551the provisions of this law so long as they
3560are in continuous operation.
356425. Section 1 of Chapter 57-773, Laws of Florida, amended
3574Subsection (2) of Section 561.20, Florida Statutes, to read as
3584follows:
3585No such limitation of the number of licenses
3593as herein provided shall prohibit the
3599issuance of a special license to any bona
3607fide hotel, motel, or motor court of not
3615less than fifty (50) guest rooms or to any
3624bona fide restaurant containing all
3629necessary equipment and supplies for and
3635serving full course meals regularly and
3641having accommodations at all times for
3647service for two hundred (200) or more
3654patrons at tables occupying more than four
3661thousand (4000) square feet of space,
3667providing, however, that any restaurant
3672granted special license hereunder shall be
3678prohibited from selling alcoholic beverages
3683in packages for consumption off the
3689premises, and from operating as a package
3696store, and providing further that the
3702Beverage Director shall suspend any such
3708license if such restaurant ceases to be a
3716bona fide restaurant as required as a
3723prerequisite for obtaining such license, and
3729providing that no intoxicating beverage
3734shall be sold under such license after the
3742hours of serving food has ceased; provided
3749however, that any licenses heretofore or
3755hereafter issued to any hotel, motel, motor
3762court, or restaurant under the provisions of
3769general law shall not be moved to a new
3778location, such license being valid only on
3785the premises of such hotel, motel, motor
3792court or restaurant; provided, further, that
3798licenses issued to hotels, motels, motor
3804courts or restaurants under the general law
3811and held by such hotels, motels, motor
3818courts, or restaurants on May 24, 1947,
3825shall be counted in the quota limitation
3832contained in sub-section (1) herein; and
3838provided further that any license issued for
3845any hotel, motel, motor court or restaurant
3852under the provisions of this law shall be
3860issued only to the owner of said hotel,
3868motel, motor court or restaurant, or, in the
3876event the hotel, motel, motor court, or
3883restaurant is leased, to the lessee of the
3891hotel, motel, motor court, or restaurant and
3898the license shall remain in the name of said
3907owner or lessee so long as the license is in
3917existence. Any special license now in
3923existence heretofore issued under the
3928provision of this law cannot be renewed
3935except in the name of the owner of the
3944hotel, motel, motor court, or restaurant,
3950or, in the event the hotel, motel, motor
3958court, or restaurant is leased, in the name
3966of the lessee of the hotel, motel, motor
3974court, or restaurant, in which the license
3981is located and must remain in the name of
3990said owner or lessee so long as the license
3999is in existence. Any license issued under
4006this section shall be marked "Special."
4012After various subsequent amendments, Subsection (2) of Section
4020561.20 now reads, in pertinent part (that is, with respect to
4031restaurants), as follows:
4034(a) No such limitation of the number of
4042licenses as herein provided [in Subsection
40481] shall henceforth prohibit the issuance of
4055a special license to:
4059* * *
40624. Any restaurant having 2,500 square feet
4070of service area and equipped to serve 150
4078persons full course meals at tables at one
4086time, and deriving at least 51 percent of
4094its gross revenue from the sale of food and
4103nonalcoholic beverages; however, no
4107restaurant granted a special license on or
4114after January 1, 1958, pursuant to general
4121or special law shall operate as a package
4129store, nor shall intoxicating beverages be
4135sold under such license after the hours of
4143serving food have elapsed; or
4148* * *
4151However, any license heretofore issued to
4157any . . . restaurant . . . under the general
4168law shall not be moved to a new location,
4177such license being valid only on the
4184premises of such . . . restaurant. Licenses
4192issued to . . . restaurants under the
4200general law and held by such . . .
4209restaurants on May 24, 1947, shall be
4216counted in the quota limitation contained in
4223subsection (1). . . . Any special license
4231now in existence heretofore issued under the
4238provisions of this law cannot be renewed
4245except in the name of the owner of the . . .
4257restaurant or, in the event the . . .
4266restaurant is leased, in the name of the
4274lessee of the . . . restaurant in which the
4284license is located and must remain in the
4292name of the owner or lessee so long as the
4302license is in existence. Any license issued
4309under this section shall be marked
"4315Special," and nothing herein provided shall
4321limit, restrict, or prevent the issuance of
4328a special license for any restaurant . . .
4337which shall hereafter meet the requirements
4343of the law existing immediately prior to the
4351effective date of this act, if construction
4358of such restaurant has commenced prior to
4365the effective date of this act and is
4373completed within 30 days thereafter, or if
4380an application is on file for such special
4388license at the time this act takes effect;
4396and any such licenses issued under this
4403proviso may be annually renewed as now
4410provided by law. Nothing herein prevents an
4417application for transfer of a license to a
4425bona fide purchaser of any . . . restaurant
4434by the purchaser of such facility or the
4442transfer of such license pursuant to law.
4449* * *
445226. Section 2 of Chapter 57-773, Laws of Florida, amended
4462Subsection (4) of Section 561.20, Florida Statutes, to read as
4472follows:
4473The limitations herein prescribed shall not
4479affect or repeal any existing or future
4486local or special act relating to the
4493limitation by population and exceptions or
4499exemptions from such limitation by
4504population of such licenses within any
4510incorporated city or town or county that may
4518be in conflict herewith.
4522A second sentence, which reads as follows, has since been added
4533to Subsection (4) of Section 561.20:
4539Any license issued under a local or special
4547act relating to the limitation by population
4554shall be subject to all requirements and
4561restrictions contained in the Beverage Law
4567that are applicable to licenses issued under
4574subsection (1).
457627. As noted by the Third District Court of Appeal in
4587Davidson v. Coral Gables , 119 So. 2d 704, 707 (Fla. 3d DCA
45991960), prior to the effective date of Chapter 57-773, Subsection
4609(4) of Section 561.20, Florida Statutes, read as follows:
4618The limitations herein prescribed shall be
4624cumulative to and shall not affect or repeal
4632any existing or future local or special act
4640relating to the limitation by population of
4647such licenses within any incorporated city
4653or town or county that may be in conflict
4662herewith.
4663The Davidson court further observed:
4668The earlier law [the pre-Chapter 57-773
4674version of Subsection (4) of Section 561.20]
4681stated that the limitations (and that would
4688include exceptions to limitations) which the
4694Beverage Law prescribed were cumulative and
4700did not affect existing population
4705limitations, imposed by cities, which might
4711be in conflict therewith. It is important
4718to note that the earlier law did not state,
4727as does the present law [Subsection (4) of
4735Section 561.20, as amended by Chapter 57-
4742773], that the limitations therein shall not
4749affect or repeal "exceptions or exemptions
4755from such limitations by population" by
4761cities under their charters which are in
4768conflict therewith. Thus in the Abood case,
4775a limitation exception provided in the state
4782law, allowing licenses in restaurants
4787meeting certain requirements, was held to
4793prevail over a city's limitations which did
4800not make such an exception.
4805The present law presents a different
4811situation. First, the word cumulative,
4816which had appeared in the earlier law, was
4824left out, and, more important, where the
4831earlier law had said that the state
4838regulations would not affect or repeal city
4845limitations imposed by population, this
4850amendment added that a city's regulations as
4857to exceptions and exemptions to population
4863limitations were not thereby affected or
4869repealed.
4870Id. at 707-08; see also Miami Beach v. State , 129 So. 2d 696,
4883700 (Fla. 3d DCA 1961)("[T]he State Beverage Law provides that
4894its restrictions as to population and its exceptions to
4903population quotas, such as the created special licenses for
4912hotels or restaurants, shall not prevail over contrary
4920provisions relating thereto in municipalities. This was
4927expressly provided for in § 561.20(4), Fla. Stat., . . . . As
4940was pointed out by this court in Davidson v. City of Coral
4952Gables , Fla. App. 1960, 119 So.2d 704, supra , the holding in the
4964earlier case of Abood v. City of Jacksonville , Fla. 1955, 80
4975So.2d 443, that the provision of the State Beverage Law for a
4987special license in restaurants should prevail over a contrary
4996regulation within the City of Jacksonville, was no longer
5005applicable because of the subsequent amendment to the beverage
5014law, now appearing as subsection 4 of § 561.20, Fla. Stat.,
5025F.S.A. At the time the Abood case was decided, subsection 4 of
5037§ 561.20 of the Beverage Law provided the limitations of the
5048state law would not affect or repeal any conflicting local or
5059special act 'relating to the limitation by population . . . of
5071such licenses within any incorporated city.' Effective
5078January 1, 1958, subsection 4 of § 561.20 was amended to read
5090that it would not affect or repeal such conflicting local
5100provisions of incorporated cities which related not only to the
5110limitations by population but to 'exceptions or exemptions from
5119such limitation by population of such licenses within any
5128incorporated city.' By virtue of that change in 1958 in
5138subsection 4 of § 561.20, it was held in the Davidson case that
5151the exception to population limitation created by the State
5160Beverage Law which provided for special liquor licenses for
5169restaurants meeting certain stated requirements could not be
5177used as a basis for forcing the City of Coral Gables to issue
5190such a license to a restaurant applicant, when the city had made
5202provision for special licenses for hotels but had not provided
5212for such special licenses for restaurants.").
521928. The third and final section of Chapter 57-773, Laws of
5230Florida, initially just provided that "[t]his act shall take
5239effect January 1, 1958," but it was subsequently amended by
5249Chapter 57-1991, Laws of Florida, to read as follows:
5258This act shall take effect January 1, 1958,
5266and shall apply only to those places of
5274business licensed to operate after
5279January 1, 1958, and shall in no manner
5287repeal or nullify any license issued under
5294provisions of law which are now operating or
5302will operate prior to the effective date
5309January 1, 1958; and all such places of
5317business shall be exempt from the provisions
5324of this law so long as they are in
5333continuous operation.
5335This section of Chapter 57-773, as amended by Chapter 57-1991,
5345is now codified verbatim in Subsection (5) of Section 561.20,
5355Florida Statutes, except that the phrase, "Provisions of
5363subsections (2) and (4) as amended by chapter 57-773, Laws of
5374Florida" has been substituted for "This act," and there is a
5385semi-colon, instead of a comma, after the third and last
5395reference to January 1, 1958.
540029. DABT's "new policy" of routinely denying applications
5408for the delinquent renewal of SR licenses is premised on its
5419recently revised view of the meaning and effect of the language
5430in Subsection (5) of Section 561.20, Florida Statutes,
"5438exempt[ing] [these licenses] from operating under the
5445provisions [of Subsection (4) of the statute] as long as the
5456place of business was in continuous operation." DABT now takes
5466the position that, in light of this statutory language, if a
"5477business [has] failed to [timely] renew [its] SR license," it
5487is not in compliance with the "continuous operation" requirement
5496of Subsection (5) and such non-compliance automatically makes
5504the business' license "no longer valid" and therefore
5512nonrenewable.
551330. This "new policy" of DABT's, founded on its freshly
5523arrived-at interpretation of the provisions of Section 561.20,
5531Florida Statutes, is a "statement of general applicability," as
5540that term is used in Section 120.52(15), Florida Statutes. By
5550its own effect, it adversely affects the rights of SR licensees
5561seeking to delinquently renew their licenses, such as Abkey and
5571Amy Cat, whose licenses would have been renewed under the "old
5582policy" it replaced. Furthermore, it does not fall within any
5592of the exceptions set forth in Section 120.52(15)(a) through
5601(c), Florida Statutes. It therefore is a "rule," as defined in
5612Section 120.52(15). See Department of Natural Resources v.
5620Wingfield Development Co. , 581 So. 2d 193, 196 (Fla. 1st DCA
56311991)("In Balsam v. Department of Health and Rehabilitative
5640Services , 452 So.2d 976, 977-978 (Fla. 1st DCA 1984), this court
5651held that any agency statement is a rule if it purports in and
5664of itself to create certain rights and adversely affect others,
5674or if it serves by its own effect to create rights, or to
5687require compliance, or otherwise to have the direct and
5696consistent effect of law. The limitations, conditions and
5704requirements contained in the letter of April 4, 1988, adversely
5714affect the substantive rights of others. The letter implements,
5723interprets or prescribes law or policy, describes procedure or
5732practice requirements of the agency, and imposes requirements or
5741information not specifically required by statute or by existing
5750rule. The letter, therefore, constitutes a rule within the
5759meaning of the law . . . .").
576831. DABT argues that this "challenged agency statement
5776does not constitute a rule" because it merely repeats, and does
5787not "add[] to, take[] away [from] or otherwise alter" what
5797Section 561.20(5), Florida Statutes, already requires. It is
5805true that an agency statement "which simply reiterates the
5814legislature's statutory mandate and does not place upon the
5823statute an interpretation that is not readily apparent from its
5833literal reading, nor in and of itself purport[s] to create
5843rights, or require compliance, or to otherwise have the direct
5853and consistent effect of the law, is not an unpromulgated rule,
5864and actions based upon such an interpretation are permissible
5873without requiring an agency to go through rule making." St.
5883Francis Hospital, Inc. v. Department of Health and
5891Rehabilitative Services , 553 So. 2d 1351, 1354 (Fla. 1st DCA
59011989); see also National Foundation to Prevent Child Sexual
5910Abuse, Inc., v. Department of Law Enforcement , No. 07-4898RU,
59192007 Fla. Div. Adm. Hear. LEXIS 648 *40 (Fla. DOAH November 27,
59312007)(Summary Final Order)("Significantly, the Challenged
5937Statement does not, by its own terms, establish any new fee
5948requirements or procedures. Rather, it attempts merely to
5956summarize, for the benefit of interested members of the public,
5966existing requirements and procedures that have been established
5974elsewhere . . . ."); Reynolds v. Board Of Trustees of the
5987Internal Improvement Trust Fund , No. 03-4478RU, 2004 Fla. ENV
5996LEXIS 222 *15-16 (Fla. DOAH February 20,2004)(Final
6004Order)("Lastly, regarding the first statement challenged, the
6012history surrounding driving on the beach and regulation by the
6022BOT indicates that the Legislature has limited BOT's
6030jurisdiction to regulate driving on the beach by Section 161.58,
6040Florida Statutes. The challenged statement is [a] re-statement
6048of the scheme of statutory regulation, and not a statement of
6059BOT policy."); and Aloha Utilities, Inc. v. Public Service
6069Commission , No. 97-2485RU, 1998 Fla. Div. Adm. Hear. LEXIS 5497
6079*29 (Fla. DOAH 1998)(Final Order)("Statements simply
6086reiterating statutory or rule requirements also are not rules
6095under Sections 120.52(15) and 120.74(1)(d), Florida Statutes
6102(1997)."). The Challenged Statement in the instant case,
6111however, gives Section 561.20(5) a meaning that is not readily
6121apparent from a literal reading of the statute. Nowhere in
6131Section 561.20(5) does it specifically state that the necessary
6140consequence of an SR licensee's failure to satisfy the statute's
"6150continuous operation" proviso is the automatic invalidation of
6158its license, regardless of the existence or contents of any
6168local or special act governing the sale of alcoholic beverages
6178in the city, town, or county where the licensee's business is
6189located. To accept DABT's argument that the Challenged
6197Statement is a mere reiteration of Section 561.20(5) would
6206require the undersigned to disregard the language of the statute
6216and add words not placed there by the Legislature. This the
6227undersigned cannot do.
623032. Although the Challenged Statement is a "rule," as
6239defined in Section 120.52(15), Florida Statutes, it has not been
6249adopted in accordance with the rulemaking procedures set forth
6258in Section 120.54, Florida Statutes (nor has the rulemaking
6267process even commenced). DABT has neither argued, nor presented
6276evidence, that engaging in such rulemaking is now, or has at any
6288time been, either infeasible or impracticable. Accordingly,
6295the existence of the Challenged Statement violates Section
6303120.54(1)(a) and therefore, pursuant to Section 120.56(4)(d),
6310Florida Statutes, DABT must "immediately discontinue all
6317reliance upon the statement or any substantially similar
6325statement as a basis for agency action."
633233. There having been no showing made that the Challenged
6342Statement "is required by the Federal Government to implement or
6352retain a delegated or approved program or to meet a condition to
6364receipt of federal funds." Petitioners are entitled, pursuant
6372to Section 120.595(4)(a), Florida Statutes, to recover a
6380reasonable sum for the attorneys' fees and costs they have
6390incurred in the prosecution of this action. See Security Mutual
6400Life Insurance Co. v. Department of Insurance , 707 So. 2d 929,
6411930 (Fla. 1st DCA 1998).
6416ORDER
6417Based on the foregoing, it is
6423ORDERED:
6424The relief requested by Petitioner in its amended petition
6433filed with DOAH pursuant to Section 120.56(4), Florida Statutes
6442(to wit: an administrative determination that the Challenged
6450Statement violates Section 120.54(1)(a), Florida Statutes, and
6457an award pursuant to Section 120.595(4), Florida Statutes) is
6466granted.
6467The undersigned reserves jurisdiction to determine, if
6474necessary, the amount of attorneys' fees and costs Petitioners
6483should be awarded. Should the parties be unable to amicably
6493resolve this issue, Petitioners shall file with DOAH a written
6503request that the undersigned resolve the matter. No such
6512request filed more than 60 days of the date of this Final Order
6525will be considered.
6528DONE AND ORDERED this 30th day of April, 2008, in
6538Tallahassee, Leon County, Florida.
6542S
6543___________________________________
6544STUART M. LERNER
6547Administrative Law Judge
6550Division of Administrative Hearings
6554The DeSoto Building
65571230 Apalachee Parkway
6560Tallahassee, Florida 32399-3060
6563(850) 488-9675 SUNCOM 278-9675
6567Fax Filing (850) 921-6847
6571www.doah.state.fl.us
6572Filed with the Clerk of the
6578Division of Administrative Hearings
6582this 30th day of April, 2007.
6588ENDNOTES
65891 Unless otherwise noted, all references in this Final Order to
6600Florida Statutes are to Florida Statutes (2007).
66072 See Fla. Admin. Code R. 61A-3.0141(1)("The suffix 'SRX' shall
6618be made a part of the license numbers of all such [special
6630restaurant] licenses issued after January 1, 1958.").
66383 See Fla. Admin. Code R. 61A-3.0141(3).
66454 See Fla. Admin. Code R. 61A-3.0101(1).
66525 See Schlute r, 705 So. 2d at 83 ("The word 'policy,' used in
6668each of the three statements, is not a term of art. It has a
6682commonly understood meaning. It is defined by one source as 'a
6693principle, plan, or course of action, as pursued by a
6703government, organization, individual, etc.' Webster's New World
6710Dictionary 1102 (2d college ed. 1980). We therefore affirm the
6720ALJ's order as to his determination that the final three
6730policies constituted invalid, nonadopted rules.").
6736COPIES FURNISHED :
6739Scott Boyd, Executive Director
6743and General Counsel
6746Administrative Procedures Committee
6749Holland Building, Room 120
6753Tallahassee, Florida 32399-1300
6756Liz Cloud, Program Administrator
6760Administrative Code
6762Department of State
6765R. A. Gray Building, Suite 101
6771Tallahassee, Florida 32399
6774Harold F. X. Purnell, Esquire
6779Rutledge, Ecenia, Purnell and Hoffman, P.A.
6785Post Office Box 551
6789Tallahassee, Florida 32302-0551
6792Michael J. Wheeler, Esquire
6796Department of Business and Professional Regulation
6802Northwood Centre, Suite 40
6806Tallahassee, Florida 32399-2202
6809Cynthia Hill, Director
6812Division of Alcoholic Beverages and Tobacco
6818Department of Business and Professional Regulation
6824Northwood Centre, Suite 40
68281940 North Monroe Street
6832Tallahassee, Florida 32399-2202
6835Ned Luczynski, General Counsel
6839Department of Business and Professional Regulation
68451940 North Monroe Street
6849Tallahassee, Florida 32399-0792
6852NOTICE OF RIGHT TO JUDICIAL REVIEW
6858A party who is adversely affected by this Final Order is entitled
6870to judicial review pursuant to Section 120.68, Florida Statutes.
6879Review proceedings are governed by the Florida Rules of Appellate
6889Procedure. Such proceedings are commenced by filing the original
6898Notice of Appeal with the agency clerk of the Division of
6909Administrative Hearings and a copy, accompanied by filing fees
6918prescribed by law, with the District Court of Appeal, First
6928District, or with the District Court of Appeal in the Appellate
6939District where the party resides. The notice of appeal must be
6950filed within 30 days of rendition of the order to be reviewed.
- Date
- Proceedings
- PDF:
- Date: 01/05/2009
- Proceedings: Transmittal letter from Claudia Llado forwarding the one-volume Transcript along with the Petitioner`s and Respondent`s exhbits to the agency.
- Date: 04/14/2008
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 03/17/2008
- Proceedings: Respondent`s List of Exhibits (exhibits not available for viewing) filed.
- PDF:
- Date: 03/14/2008
- Proceedings: Letter to M. Wheeler from H. Purnell regarding Petitioners` SR Licenses filed.
- Date: 03/13/2008
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 02/25/2008
- Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by March 14, 2008).
- Date: 01/25/2008
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/18/2008
- Proceedings: Order of Consolidation (DOAH Case Nos. 07-2508, 07-4602, 07-4692, and 08-0212RU).
- PDF:
- Date: 01/16/2008
- Proceedings: Respondent`s Answer to Petitioner`s Motion to Consolidate Petitioner`s Challenging Agency Statement Defined as a Rule filed.
Case Information
- Judge:
- STUART M. LERNER
- Date Filed:
- 01/10/2008
- Date Assignment:
- 01/17/2008
- Last Docket Entry:
- 01/05/2009
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Business and Professional Regulation
- Suffix:
- RU
Counsels
-
Ned Luczynski, General Counsel
Address of Record -
Harold F. X. Purnell, Esquire
Address of Record