10-009216 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. National Deli Corp., D/B/A Epicure Gourmet Market And Cafe Status: Closed Recommended Order on Monday, October 24, 2011.

Summary: Proof was insufficient to establish that Respondent, the holder of an SR license, failed to maintain a restaurant on the licensed premises on the date in question, as alleged in the Administrative Complaint; recommend that complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 10 - 9216

)

NATIONAL DELI CORP, d/b/a )

EPICURE GOURMET MARKET AND CAFE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

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

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

April 27, 2011, and June 1, 2011, by video teleconference at

sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: T homas J. Morton, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

For Respondent: Louis J. Terminello, Es quire

Terminello and Te rminello, P.A.

2700 Southwest 37th Avenue

Miami, Florida 33133 - 2728

STATEMENT OF THE ISSUE

Whether "[o]n or about January 16, 2009, Respondent [the

holder of a n SR license] failed to maintain a restaurant . . .

contrary to and in violation of [s]ection 561.20(2), Florida

Statutes (1953), within [s]ection 561.20(5), Florida Statutes

(2008), within [s]ection 561.29(1)(a), Florida Statutes (2008), " 2

as alleged in the Fourth Amended Adm inistrative Complaint, and,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case involves disputed allegations made in the Fourth

Amended Administrative Complaint (Complaint) filed by Petitioner

against Respondent on December 21, 2010 , the body of which reads

as follows:

1. Petitioner is the state agency charge d

with licensing, regulating, and enforcing

the Florida alcoholic beverage and tobacco

statutes pursuant to Sections 559.061,

561.07, 561.15, 561.19, 561.29, 561.501,

210.15, 21 0.16, 210.45, 210.50, 560.003, and

569.006, Florida Statutes.

2. Respondent is, and has been at all times

material hereto, the holder of alcoholic

beverage license number 23 - 02630, Series

4COP/SR.

3. Respondent's last known mailing address

is National Deli Corporation d/b/a Epicure

Gourmet Market & Café, 12711 Ventura Blvd,

Suite 400, Studio City , California 91604.

4. The location of the licensed premise s is

17190 Collins Avenue, Sunny Isles Beach,

Florida 33160.

5. On or about January 16, 2009, R espondent

failed to maintain a restaurant, this act

being contrary to and in violation of

Section 561.20(2), Florida Statutes (1953),

within Section 561.20(5), Florida Statutes

(2008), within Section 561.29(1)(a), Florida

Statutes (2008).

6. Based on the foregoing, Respondent has

violated Section 561.29(1)(a), Florida

Statutes, by failing to maintain a

restaurant as required by Section 561.20(2),

Florida Statutes (1953), within Section

561.20(5), Florida Statutes (2008).

WHEREFORE, Petitioner respectfull y requests

entry of an Order imposing one or more of

the following penalties against Respondent's

license: revocation, suspension, imposition

of an administrative fine, annulment of the

license, reimbursement of investigative

costs, imposition of late pen alties, any

combination thereof, or any other relief

that is deemed appropriate.

Respondent dispute s the core allegation made in the Complaint

that, "[o]n or about January 16, 2009, [it] failed to maintain a

restaura nt."

As noted above, the final hearing in the instant case was

held on April 27, 2011, and June 1, 2011 . Ten witnesses

testified at the hearing: Richard Akin, Special Agent Bradley

Frank, Elena Forbes, James West, Jason Starkman, Michael

Tarkoff, Maria Laverde, Monica Anderson, Captain Carme n Puentes -

Croye, and Special Agent Thomas Williams . In addition to the

testimony of these ten witnesses, the following exhibits were

offered and received into evidence at hearing: Petitioner's

Exhibits 2 through 4 , 6, 8 through 10 , 12, 13, and 19, and

Respondent's Exhibit s 1 through 19 .

At the conclusion of the hearing on June 1 , 2011, the

undersigned announced on the record that the parties would have

45 days from the date of the filing with DOAH of the transcript

of the June 1, 2011, hearing session to file their proposed

recommended orders. (The T ranscript of the April 27, 2011,

session (consisting of two volumes) had been filed on May 31,

2011.)

The T ranscript of th e June 1, 2011, hearing session

(consisting of two volumes) was filed with D OAH on June 29 ,

2011.

During a telephone conference call held on July 13, 2011,

the parties jointly requested that the proposed recommended

order filing deadline be extended to September 14, 2011, to give

them additional time to explore the possibility of a post -

hearing settlement. The request was granted by Order issued

that same day. By Order issued September 8, 2011, the

undersigned, at the request of Respondent, further extended the

proposed recommended order filing deadline, this time to

September 26 , 2011.

Respondent and Petitioner timely filed their Proposed

Recommended Orders on September 26 , 2011.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

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

the holder of alcoholic beverage license number 23 - 02630, Series

4COP/SR (Subject License) , which is a "Special Restaurant" or

"SR" license issued by Petitioner .

2. The location of the licensed premises is 17190 Collins

Avenue, Sunny Isles Beach, Florida, where Respondent operates

Epicure Gourmet Market and Café (Epicure) in a structure having

34,000 square feet of interior space, 10,000 to 12,000 square

feet of which is open to the consuming public.

3. The Rascal House, an eating establishment specializing

in comfort food, formerly occupied this location.

4. The Rascal House opened in 1954 and was operated under

the Subject License from December 30 of that year until

M arch 30, 2008, when it was shuttered.

5. For the final twelve years of its existence, the Rascal

House was owned and operated by Jerry's Famous Deli, Inc.,

Respondent's parent corporation.

6. Respondent acquired the Rascal House property and the

Subject Li cense from Jerry's Famous Deli in 2008. After

spending $7.5 million on renovations to the property, 3 Respondent

reopened the venue as Epicure on October 7, 2008, and has done

business under that name at the former Rascal House location

since.

7. Petitioner approved the transfer of the Subject License

to Respondent on October 27, 2008, following an inspection of

the premises of Epicure by one of Petitioner's Special Agents,

Bradley Frank, who found that all statutory requirements for

"SR" licen sure were met.

8 . In the summe r of 2008, prior to the opening of Epicure ,

Respondent, through its Chief Financial Officer, Christina

Sperling, submitted a Request for Initial Inspection and Food

Permit Application with the Florida Department of Agricultur e

and Consumer Services, Division of Food Safety (DACS), in which

it described Epicure as a "[f]ood market with indoor/outdoor

seating area; but not a service restaurant." At the time of the

filing of the Food Permit Application, Respondent had no

intenti on of using waiters or waitresses to serve Epicure's

patrons , although it did intend for these patrons to be able to

purchase food and beverage items for consumption on the

premises . Before Epicure opened, Respondent was granted a DACS

Annual Food Permit, "Supermarket" - type , for the establishment, a

permit it continues to hold today .

9. On February 11, 2009, and again on July 28, 2009,

Respondent applied to the Department of Business and

Professional Regulation, Divisi on of Hotels and Restaurants

(H& R) for a "public food service establishm ent " 4 license for

Epicure. Both applications were denied by H&R because Epicure

was licensed (properly so, in the opinion of H& R) by DACS.

10. The DACS permit is not the only license Respondent has

for Epicure . It al so has a retail license, a food market

license, and a restaurant - outside dining license, all issued by

the City of Sunny Isles Beach . Respondent has held these City

of Sunny Isles Beach - issued licenses since 2008 .

11. On January 16, 2009, the date of the violation alleged

in the Fourth Amended Administrative Complaint, Epicure had the

necessary equipment and supplies (including those in its 4,000

to 5,000 square foot kitchen where food was prepared ) to

provide , and it did provide, patrons f ull course meals

(including ready to eat appetizer items , ready to eat salad

items, ready to eat entree items, ready to eat vegetable items,

ready to eat dessert items, ready to eat fruit items, hot and

cold beverages (non - alcoholic and alcoholic) , and bread) for on -

premises consumption at indoor and outdoor tables 5 (Eating

Tables) having a total seating capa city in excess of 200 and

occupying more than 4,000 square feet of space . 6 There were no

waiters or waitresses , at that time, to take orders from, and to

serve food and beverages to, patrons sitting at the Eating

T ables. 7 The p atrons themselves brought to their Eating T ables

the food and beverages they consumed there -- food and beverages

they obtained from manned counters (in the hot food, raw

meat / fresh seafood, 8 deli, bakery, and bar areas) ; from the fresh

produce area; and from the cases , shelves , and tables where

packaged food and drink items were displayed for sale . Epicure

employees were stationed in the areas where the Eating Tables

were loca te d to assist patrons who wanted tableware, a glass of

ice water, a packaged item (such as soup) to be opened or

warmed, or their table to be cleaned .

12. Not all of the items sold at Epicure on January 16,

2009, were consumed on the premises . True to its name , Epicure

had not only a bona fide "café" operation, it also operated as a

"market" where patrons shopped for "gourmet" food and other

items for off - premises consumption and use . Among the food and

beverage items for sale were raw meat and fresh s eafood; dairy

products; ready to eat deli meats and cheeses, including those

packaged by the manufacturer; packaged grains; packaged stocks,

including vegetable, beef, seafood, and chicken stock;

condiments , including jams , jellies , and caviar ; sauces; spi ces;

eggs; chips, popcorn, and nuts; packaged crackers and cookies ;

i ngredients (other than meat and seafood) for salads, dips, and

dressings; c ooked and other prepared foods ready to eat; baked

b read and other bakery items ; candy; f ruit and other fresh

produce ; bottles of wine, liquor, and beer, as well as non -

alcoholic beverages , including water ; and package d tea. Among

the non - food items for sale were flowers; glassware; candles;

n apkins, paper and plastic plates and cups, and eating and

serving utensils; paper towels; toilet paper; toilet bowel

cleaner; w ine and liquor opening devices and equipment ;

p ublications relating to alcoholic beverage products ; cookbooks ;

and personal care and over - the - counter health care items .

S hopping cart s were available for patrons to use in the

establishment to transport items selected for purchase. These

items were paid for at the same cash registers (at the front of

the establishment) where food and beverages consumed on the

premises were paid for.

13. There was considerable overlap between Epicure's

"café" and "market" operations in terms of space used and items

sold .

14. Both the "café" and the "market" were fundamental and

substantial components of Epicure's business, and they worked

together sy nergistically.

15. The record evidence does not clearly and convincingly

reveal that Epicure's "café" operation was merely incidental or

subordinate to its "market" operation, or that its "café" was in

any way operated as a subterfuge.

CONCLUSIONS OF LA W

16. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120 ,

Florida Statutes .

17. Florida's Beverage Law is contained in chapters 561,

562, 563, 564, 565, 567, and 568, Florida Statutes.

§ 561.01 (6) .

18. Petitioner is statutorily charged with the

responsibility of administering and enforcing the Beverage Law .

§ 561.02.

19. The Beverage Law include s provisions empowering

Petitioner to issue " quota " licenses and various types of

" special " l icenses to vendors selling alcoholic beverages at

retail in this state . § § 561.14(3) and 565.02(1).

20. " Quota " licenses, as their name suggests, are limited

in number. The number of " quota " licenses available in each

county is based upon that county's population. § 561.20(1).

21. "Special" licenses, on the other hand, are not subject

to any quota or numerical limitation. § 561.20(2)(a).

22. Among the "special " licenses the Beverage Law

authorizes Petitioner to issue are "special" restaurant

licenses , as provided for in section 561.20(2)(a)4., which

currently provides as follows:

No such limitation of the number of licenses

as herein provided shall henceforth prohibit

the issuance of a special license to:

Any restaurant having 2,500 square feet of

service area and equipped to serve [ 9 ] 150

persons full course meals at tables at one

time, and deriving at least 51 percent of

its gross revenue from the sale of food and

nonalc oholic beverages; however, 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 hour s of

serving food have elapsed.

Florida Administrative Code 61A - 1.006 (2) provides that, as used

in section 561.20(2)(a)4 . :

[T]he term 'restaurant' shall include all

interior rooms or areas which are directly

connected by interior openings or doorways

from the place where food is delivered,

stored, prepared, served, or sold. It shall

not include common areas used by patrons to

enter buildings or malls with more than two

places of business, [ 10 ] or hotels, motels,

motor courts, and condominium accommodations

which are license d as a vendor. Common

areas shall not be considered rooms or areas

of the licensed place of business if they

are not leased to any tenant occupying the

building and are not used as p art of any

occupant's business.

23. "It has always been the legislative intent that a

special restaurant license under [s]ection 561.20(2) was

available only when there was a bona fide substantial restaurant

operation primarily engaged in the service of [not alcoholic

beverages, but rather ] food and nonalcoholic beverages. [ In

other words,] [i] t was never to be a subterfuge for the

operation of a bar or cocktail lounge with only incidental sales

of food." Dep't of Bus. Reg., Div. of Beverage v. Huddle, Inc. ,

342 So. 2d 140, 142 (Fla. 1st DCA 1977).

24. There are two types of "special" restaurant licenses

authorizing the retail sale of alcoholic beverages by

restaurants : SR X licenses and SR licenses. SRX licenses are

"special " restaurant licenses that were originally issued in or

after 1958. See Fla. A dmin. Code R. 61A - 3.0141(1)("The suffix

'SRX' shall be made a part of the license numbers of all such

[special restaurant] licenses issued after January 1, 1958.").

SR licenses are "special " restaurant licenses that were

originally issued prior to 1958.

2 5. The license at issue in the instant case is an SR

license held by Respondent. It was originally issued (to

someone other than Respondent) in 1954.

26. SR licenses (such as R espondent's) are not governed by

the current version of section 561.20(2) , gi ven subsection (5)

of the statute , which provides as follows :

Provisions of subsections (2) and (4) as

amended by chapter 57 - 773, Laws of Florida,

shall take effect January 1, 1958, and shall

apply only to those places of business

licensed to operate after January 1, 1958,

and shall in no manner repeal or nullify any

license issued under provisions of law which

are now operating or will operate prior to

the effective date January 1, 1958; and all

such places of business shall be exempt from

the provisions of this law so long as th ey

are in continuous operation.

Both parties are in agreement that the version of section

561.20(2) applicable to the instant case is the pre - 1958 version

of the statute which was amended by chapter 57 - 773, Laws of

Florida, and read, in pertinent part, as follows:

No such limitation of the number of licenses

as herein provided shall be applicable . . .

to any restaurant containing all necessary

equipment and supplies for, and serving full

course meals regularly and having

accommodations for service of two hundred or

more patrons at tables an d occupying more

than four thousand square feet of space;

provided however, that any licenses

heretofore or hereafter issued to any

such . . . restaurants under the provisions

of any law shall not be moved to a new

location, such licenses being valid only on

the premises of such . . . restaurant, and

provided further, that licenses issued

to . . . restaurants under the general law

and held by such . . . restaurants on May

24, 1947, shall be counted in the quota

limitations contained in subsection (1)

here in.

To have been licensed as a "special" restaurant u nder this

version of the statute , an establishment must have be en : (1) a

"restaurant" of "any" type (2) "containing all necessary

equipment and supplies for, and serving full course meals

regularly and having accommodations for service of two hundred

or more patrons at tables" and (3) "occupying more than four

thousand square feet of space." There was no requirement that

the establishment derive any specific minimum percentage of its

gross revenue from the sale of food and nonalcoholic beverages.

27. As the holder of an SR license, Respondent is limited

in what it can sell on the licensed premises by section

565.045(2) (a), which provides (as it did on January 16, 2009) as

follows:

There shall not be sold at such places of

business anything other than the beverages

permitted, home bar and party supplies and

equipment (including but not limited to

glassware and party - type foods), cigarettes,

and what is customarily sold in a

restaurant. [ 11 ]

28. Petitioner has adopted rules -- Florida Administrative

Code Rules 61A - 1.006(1), 61A - 3.054 , and 61A - 3.055 (all of which

were in effect on January 16, 2009) -- interpreti ng this statutory

language.

29. Fl orida Administrative Code Rule 61A - 1.006(1) provides

as follows:

As used in Section 565.045, Florida

Statutes, the term "place of business" shall

include all interior rooms, or areas which

are directly connected by interior openings

or doorways from the sp ace where alcoholic

beverages are sold, delivered, consumed, or

stored. It shall not include common areas

used by patrons to enter buildings or malls

with more than two places of business.

Common areas shall not be considered rooms

or areas of the licens ed place of business

if they are not leased to any tenant

occupying the building and are not used as

p art of any occupant's business.

30. Florida Administrative Code Rule 61A - 3.054 provides,

in pertinent part, as follows:

(1) Party - type supplies shall o nly include

the following:

(a) All dairy products;

(b) Ready to eat deli meats and cheeses,

including those packaged by a manufacturer;

(c) Condiments;

(d) Sauces;

(e) Spices;

(f) Eggs;

(g) Chips, popcorn, and nuts;

(h) Crackers;

(i) Ingredients for salads, dips, and

dressings;

(j) Cooked foods ready to eat;

(k) Bread;

(l) Candy; and

(m) Fruit;

(n) Napkins, paper and plastic plates and

cups, and eating and serving utensils;

(o) Wine and liquor opening, storage, and

serving utensils and equipment;

(p) Publications relating to alcoholic

beverage products and recipes;

(q) Items containing the logo, trade name,

or trademark relating to alcoholic

beverages;

(r) Gift wrapping accessories and greeting

cards; and

(s) Ice.

( 2) A licensee may petition the division

for permission to sell products other than

those listed, provided the licensee can

clearly show the item is to be used as a

party - type supply. This petition shall be

submitted to the director of the division at

Nor thwood Centre, 1940 North Monroe Street,

Tallahassee, Florida 32399 - 1020, and must be

approved prior to selling or offering the

item for sale.

31. Florida Administrative Code Rule 61A - 3.055 provides as

follows:

(1) As used in Section 565.045, Florida

Statutes, items customarily sold in a

restaurant sha ll only include the following:

(a) Re ady to eat appetizer items; or

(b ) Ready to eat salad items; or

(c) Ready to eat entree items; or

(d) Rea dy to eat vegetable items; or

(e) Ready to eat dessert items; or

(f ) Ready to eat fruit items; or

(g) Hot or cold beverages.

(2) A licensee may petition the division

for permission to sell products other than

those listed, provided the licensee can show

the item is customarily sold in a

restaurant. This petition shall be

submitted to the director of the division at

Northwood Centre, 1940 North Monroe Street,

Tallahassee, Florida 32399 - 1020, and must be

approved prior to selling or offering the

item for sale.

(3) For the purpose of consumption on

premises regulations set forth in Section

565.045, Florida Statutes, items customarily

sold in a restaurant shall include services

or sales authorized in the "Florida Public

Lottery Act ," Section 24.122(4), Flor ida

Statutes.

32. It is abu ndantly clear from a reading of section

565.045, together with r ules 61A - 3.054 and 61A - 3 .055 in their

entirety , that the items listed in r ule 61A - 3.055(1)(a) - (g) are

not the only items that an SR license holder may sell on the

licensed premises. Other ite ms , including those described in

r ule 61A - 3.054(1)(a) - (s), may be sold on the premises without

the licensee running a foul of the law and exposing its license

to disciplinary action.

33. Section 561.29 (1)(a) authorizes Petitioner to suspend

or revoke a "quota" or "special" license , and to also impose a

civil penalty not to exceed $1,000.00 per single transaction

aga inst the licensee, for a "[v] iolation by the licensee . . .

of any of the laws of this state . . . or license requirements

of special license s issued under s. 561.20 . . . . "

34. Petitioner may take such action only after the

licensee has been given reasonable written notice of the charges

and an adequate opportunity to request a proceeding pursuant to

sections 120.569 and 120.57. See § 120.6 0(5).

35. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

See Hollis v. Dep't of Bus. & Prof'l Reg. , 982 So. 2d 1237, 1239

(Fla. 5th DCA 2008); and §§ 120.569(1) and 120.57(1).

36. At the hearing, Petitioner bears the burden of proving

that the licensee committed the violation(s) alleged in the

charging instrument. Proof greater than a mere preponderance of

the evidence must be presented. Clear and convincing evidence

is required. See D ep't of Banking & Fin,, Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996); Pic N' Save, Inc. v. Dep't of Bus. Reg. , 601 So. 2d 245,

249 (Fla. 1st DCA 1992)("It is now settled in Florida that a

business license, whether h eld by an individual or a corporate

entity, is subject to suspension or revocation only upon proof

by clear and convincing evidence of the alleged violations.");

and § 120.57(1)(j) ("Findings of fact shall be based upon a

preponderance of the evidence, exc ept in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

37. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowit z v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983); see also In re Adoption of Baby E. A. W. , 658 So. 2d 961,

967 (Fla. 1995)("The evidence [in order to be clear and

convincing] must be sufficient to convince the trier of fact

without hesitancy."). "Alt hough this standard of proof may be

met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Electric

Corp., Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st

DCA 1991).

38. In determining whethe r Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations made in the

charging instrument. Due process prohibits Petitioner from

taking penal action against a licensee based on matters not

specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Trevisani v. Dep't of

Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A physician

may not be disciplined for an offense not charged in the

complaint.") ; Marcelin v. Dep't of Bus. & Prof'l Reg. , 753 So.

2d 745, 746 - 747 (Fla. 3d DCA 2000)("Marcelin first contends that

the administrative law judge found that he had committed three

violations which were not alleged in the administrative

complain t. This point is well taken. . . . We strike these

violations because they are outside the administrative

complaint."); Dep't of Rev. v. Vanjaria Enters. , 675 So. 2d 252,

254 (Fla. 5th DCA 1996)("[T]the issue must be treated as though

it had been raised in the pleadings because the partie s tried

the issue by consent."); and Delk v. Dep't of Prof'l Reg. , 595

So. 2d 966, 967 (Fla. 5th DCA 1992 ) (" [T] he conduct proved must

legally fall within the statute or rule claimed to have been

violated. ").

39. I f there is any reasonable doubt concerning the proper

interpretation of th e statute or rule alleged in the charging

instrument to have been violated , that doubt must be resolved in

favor of the licensee. See Djokic v. Dep't of Bus. & Prof'l

Reg., Div. of Real Estate , 875 So. 2d 693, 695 (Fla. 4th DCA

2004); Elmariah v. Dep't of Prof'l Reg., Bd. of Med. , 574 So. 2d

164, 165 (Fla. 1st DCA 1990); and Lester v. Dep't of Prof'l &

Occupational Regs. , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

40 . In those cases where the proof is sufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument and that therefore disciplinary

action is warranted, it is necessary, in determining what

disciplinary action should b e taken against the licensee, to

consult Petitioner's "penalty guidelines," which impose

restrictions and limitations on the exercise of Petitioner's

disciplinary authority. See Parrot Heads, Inc. v. Dep't of Bus.

& Prof'l Reg. , 741 So. 2d 1231, 1233 (Fla . 5th DCA 1999)("An

administrative agency is bound by its own rules . . . creat[ing]

guidelines for disciplinary penalties."); see also State v.

Jenkins , 469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and

regulations, duly promulgated under the authority of law, have

the effect of law."); and Buffa v. Singletary , 652 So. 2d 885,

886 (Fla. 1st DCA 1995)("An agency mus t comply with its own

rules.").

41. Petitioner's "penalty guidelines" are found in Florida

Administrative Code Rule 61A - 2.022, which has at a ll times

material to the instant case provided , in pertinent part, as

follows:

(1) This rule sets forth the penalty

guidelines which shall be imposed upon

alcoholic beverage licensees . . . who are

supervised by the division. . . . The

penalties provided below are based upon a

single violation which the licensee

committed or knew about; . . . .

(2) Businesses . . . issued alcoholic

beverage licenses . . . by the division are

subject to discipline (warnings, corrective

action, civil penalties, suspension s,

revocations, reimbursement of cost, and

forfeiture). . . .

(9) No . . . order may exceed $1,000 for

violations arising out of a single

transaction.

* * *

(11) The penalty guidelines set forth in

the table that follows are intended to

provide field offices and licensees . . .

with penalties that will be routinely

imposed by the division for violations. The

description of the violation in the table is

inten ded to provide a brief description and

not a complete statement of the

statute. . . .

STATUTE: 561.20

VIOLATION: Failure to meet minimum

qualifications of special license

FIRST OCCURRENCE: $1000 and revocation

without prejudice to obtain any other t ype

of license, but with prejudice to obtain the

same type o f special license for 5

years . . . .

42. The charging instrument in the instant case (to wit:

the Fourth Amended Administrative Complaint) simply alleges

that, "[o]n or about January 16, 200 9, Respondent failed to

maintain a restaurant, . . . in violation of [s]ection

561.20(2), Florida Statutes (1953), within [s]ection 561.20(5),

Florida Statutes (2008), within [s]ection 561.29(1)(a), Florida

Statutes (2008). " "[M]aintain[ing] a restaurant, " as that term

("restaurant") is used in the pre - 1958 version of section

561.20(2), is one of the requirements of an SR license. 12

Accordingly, if Respondent "failed to maintain a restaurant" on

January 16, 2009, as Petitioner has alleged, Respondent's SR

license is subject to disciplinary action pursuant s ection

561.29(1)(a) (which disciplinary action must be in accordance

with the "pe nalty guidelines" set forth in r ule 61A - 2.022 ) .

43. To determine whether Petitioner met its burden of

proving this allegat ion by clear and convincing evidence, it is

necessary, as a threshold matter, to ascertain what constitutes

a "restaurant," within the meaning of section 561.20(2), Florida

Statutes (1953) .

44. There is no statutory or rule provision defining the

term "restaurant," as used in section 561.20(2), Florida

Statutes (1953). 13 "Where [as here] a statute does not

specifically define [a] word[] of common usage, such word[] must

be given [its] plain and ordinary meaning." S e. Fisheries Ass 'n

v. Dep't of Nat. Re s. , 453 So. 2d 1351, 1353 (Fla. 1984) ; see

also Greenfield v. Daniels , 51 So. 3d 421, 426 (Fla. 2010)("It

is 'appropriate to refer to dictionary definitions when

construing statutes' in order to ascertain the plain and

ordinary meaning of the words used [b ut not defined] there.");

and Salvation, Ltd. , 452 So. 2d at 67 ( "The above statute does

not define the term[] 'restaurant' . . . . [It] should,

therefore, be given [its] plain and ordinary meaning."). A

"restaurant" is commonly understood to be a "publi c eating

place"; "[a]n establishment where refreshments or meals may be

procured by the public . . . to be eaten on the premises."

Shell Harbor Gr p ., Inc. v. Dep't of Bus. Reg. , Div. of Alcoholic

Beverages and Tobacco , 487 So. 2d 1141, 1142 (Fla. 1st DCA

1986) ; Salvation, Ltd. , 452 So. 2d at 67; and Miami Beach v.

Royal Castle Sys., Inc. , 126 So. 2d 595, 597 (Fla. 3d DCA 1961) ;

see also Colony Nat'l Ins. Co. v. Hing Wah Chinese Rest. , 546 F.

Supp. 2d 202, 208 - 209 (E.D. Pa. 2008)(" In the absence of a c lear

definition rooted in law, ' [w]ords of common usage in an

insurance policy are construed according to their natu ral,

plain, and ordinary sense,' for which the court may consult the

dictionary definition of a word. Webster's New Colleg iate

Dictionary (1988 ) defines ' res taurant' as 'a public eating

place.' Similarly, current online dictionarie s typically define

the term as ' [a ] place where meals are served to the public,' or

' a business establishment where meals or refreshments may be

purchased.' Again, th ese definitions imply that the food is

provided on the premises . . . .") (citations omitted).

45. Without question, Epicure met this definition on

January 16, 2009. The record evidence overwhelmingly

establishes that, on that date, Epicure was a bona fide eating

establishment where the public could , and did , purchase food and

refreshments for on - premises consumption , including each and

every item listed in r ule 61A - 3.055 (1) as being " customarily

sold in a restaurant , " thus making Epicure a "restaurant,"

within the meaning of section 561.20(2), Florida Statutes

(1953).

46. It is true that there was other commercial activity,

aside from the sale of food and refreshments for on - premises

consumption, taking place at Epicure on January 16, 200 9, but

th at other activity (involving the sale of food and non - food

items for off - premises consumption) did not destroy Epicure's

status as a "restaurant." A bona fide "public eating place," as

was Epicure on January 16, 2009 , does not cease to be a

"rest aurant" simply because it also sells items not intended for

on - premises consumption. Depending on what it sells, it may be

in violation of the Beverage Law, specifically section

545.045(2) (a) 14 (a statutory provision Respondent is not

currently charged with and therefore cannot (at least in this

proceeding ) be found guilty of violating), but it still retains

its essential character as a "restaurant."

47. Because Petitioner did not prove by clear and

convincing evidence that, "[o]n or about January 16, 2 009,

Respondent failed to maintain a restaurant , . . . in violation

of [s]ection 561.20(2), Florida Statutes (1953), within

[s]ection 561.20(5), Florida Statutes (2008), within [s]ection

561.29(1)(a), Florida Statutes (2008)," as alleged in the Fourth

Ame nded Administrative Complaint, the Fourth Administrative

Complaint must be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department of Business and

Professional Regulation, Div ision of Alcoholic Beverages and

Tobacco, issue a final order dismissing the Fourth Amended

Administrative Complaint in its entirety.

DONE AND ENTERED this 24 th day of October , 2011, in

Tallahassee, Leon County, Florida.

S

_________________________________ __

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cl erk of the

Division of Administrative Hearings

this 24 th day of October , 2011.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statut es are to Florida Statutes (2011 ).

2 The 2008 v ersions of sections 561.20(5) and 561.29(1)(a) are

identical to the current versions of these statutory provisions.

3 Respondent did not incur any of these renovation costs in

reliance on any representation made by Petitioner concerning the

Subject Licen se.

4 A "public food service establishment" is defined in section

509.013(5)(a) , Florida Statutes, as "any building, vehicle,

place, or structure, or any room or division in a building,

vehicle, place, or structure where food is prepared, served, or

sold for immediate consumption on or in the vicinity of the

premises; called for or taken out by custome rs; or prepared

prior to being delivered to another location for consumption."

Specifically excluded from this definition, pursuant to

subsection (5)(b)5. of the statute, is "[a]ny place of business

issued a permit . . . by the Department of Agriculture a nd

Consumer Services under s. 500.12." Since prior to October 7,

2008, Respondent has held such a "permit . . . by the Department

of Agriculture and Consumer Services under s. 500.12 " for

Epicure.

5 The outdoor tables were under a permanent awning.

6 Some, but not all, of the many different food items available

for on - premises consumption were prepared in Epicure's own

kitchen.

7 Although Epicure did not have waiters and waitresses on

January 16, 2009, it now does (and has since February 2011).

8 P atrons ordering raw meat or seafood at the counter were

routinely asked by the server whether or not they wanted their

order cooked and prepared.

9 The term "'[t]o ' serve' means ' to help persons to

food .' . . . The serving of food by a restaurant simply does

not require that the food be prepared and cooked on the

premises. If the legislature had intended to impose such a

requirement, it could easily have done so. " Dep't of Bus. Reg.,

Div. of Alcoholic Beverages and Tobacco v. Salvation, Ltd. , 452

So. 2d 65, 67 (Fla. 1st DCA 1984) .

10 Unlike a "mall" of the type excluded from the term

"restaurant" by Florida Administrative Code 61A - 1.006(2) ,

Epicure is a single place of business (albeit one with a

"market" operation in addition to a "café" operation).

11 This limitation on what may be sold on the licensed premises,

which applies to not only SR, but also SRX, licenses, serves as

a disincentive to licensure. S ome establishments qualified to

seek, or to maintain, a "special" restaurant license may decline

to do so because they want to sell items that are prohibited by

section 565.045(2)(a) from being sold on the premises of an SR

or SRX licensed restaurant.

12 No allegation has been made that there was a failure to meet,

on January 16, 2009, any other requirement of the statute.

13 Rule 61A - 1.006(2) (which is set forth above) does not contain

such a definition. See, e.g. , Shephard v. Dep' t of Com ty.

Corr. , 646 P.2d 1322, 1325 (Or. 1982)("This borrowed definition

is not a definition at all; rather than stating what the term or

terms attempted to be defined mean, ORS 95.010 is couched in

terms of inclusion, i.e., those things which are included.

Nothing tel ls us that the list is exhaustive.").

14 Many, but not all, of the items sold at Epicure for off -

premises consumption on January 16, 2009, were items excluded by

the Legislature from section 545.045(2)(a)'s prohibitory reach.

(That the Legislature provi ded for such an exclusion in section

545.045(2)(a) is irrefutable proof that, in the eyes of the

Legislature, a "restaurant" does not lose its status as such,

and thereby become s ineligible for "special" licensure, by

selling these items.)

COPIES FURNISHED:

Thomas J. Morton, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

Louis J. Terminello, Esquire

Terminello & Terminello, P.A.

2700 Southwest 37th Avenue

Miami, Flori da 33133 - 2728

John R. Powell, Director

Department of Business and Professional Regulation

Division of Alcoholic Beverages and Tobacco

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2201

Layne Smith, General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 40

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.