13-001227 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco vs. Eden Supply, Llc (&Quot;Eden Supply&Quot;) Status: Closed Recommended Order on Wednesday, October 30, 2013.

Summary: Evidence warrants revocation of caterer's license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF ALCOHOLIC

BEVERAGES AND TOBACCO ,

Petitioner ,

vs. Case No. 13 - 1227

EDEN SUPPLY, LLC ( " EDEN

SUPPLY " ) ,

Respondent .

/

RECOMMENDED ORDER

An administrative hearing in this case was held by video

teleconference on August 7 and 8, 2013, in Tallahassee and

Orlando, Florida, before William F. Quattlebaum, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Melinda Hilton Butler, Esquire

Department of Business and

Professional Regulation

Suite 40

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

For Respondent: Jed Berman, Esquire

Infantino and Berman

Post Office Box 30

Winter Park, Florida 32790 - 0030

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations set forth

in the Second Amended Administrative Complaint filed by the

Depar tment of Business and Professional Regulation (Petitioner)

against Eden Supply, LLC (Respondent) , are correct, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By an Amended Administrative Complaint dated September 12,

2012, the Petitioner alleged that the Respondent violated

provisions of c hapter 561, Florida Statutes (2012) . 1/ The

Respondent denied the allegations and requested an administrative

hearing. The Petitioner forwarded the request to the Division of

Administrative Hearings.

On June 28, 2013, the Petitioner moved, without objection,

to amend the Amended Administrative Complaint, and the motion was

granted on July 3, 2013. The Second Amended Administrative

Complaint alleged that the Respondent committed violations of

s ection 5 61.20(2)(a)5 .

Prior to the hearing, the parties filed a Joint Pre - Hearing

Stipulation containing a statement of agreed facts that have been

incorporated herein as necessary.

At the hearing, the Petitioner presented the testimony of

eight witnesses and had Exhibits 1 , 2, 4 through 12, 13 (pages 2

through 4, 8, 10, 12, and 15) , and 16 through 18 admitted into

evidence. The Respondent presented the testimony of two

witnesses and had Exhibits 1 and 5 admitted into evidence.

A T ranscript of the hearing wa s filed on September 4, 2013.

On September 9, 2013, the Petitioner filed a Notice of Provision

and Filing of Revised/Additional Transcript Pages.

The Petitioner filed a p roposed r ecommended o rder on

September 26, 2013. The Respondent filed a proposed r ecommended

order on October 4, 2013. Both were reviewed in the preparation

of this Recommended O rder.

FINDING S OF FACT

1. At all times material to this case, the Respondent held

alcoholic beverage license n o. BEV5810598, series 13CT, which is

commonly re ferred to as a " caterer ' s license . "

2. Florida Statutes set forth specific restrictions

applicable to the sale or service of alcoholic beverages by the

holder ( " licensee " ) of a caterer ' s license. One such restriction

is that service of alcohol at an even t catered by the licensee is

restricted to events where the licensee is also providing

prepared food.

3. On Friday, November 18, 2011, the Respondent sold and

served alcoholic beverages for consumption on the premises by

customers attending an event at Club LAX, 7430 Universal

Boulevard, in Orlando, Florida.

4. The Respondent provided no prepared food to persons

attending the event at Club LAX on November 18, 2011. There were

no menus, plates or utensils present at the event. There were no

dining ta bles or food service staff present at the event.

5. On April 21, 2012, the Respondent sold and served

alcoholic beverages for consumption on the premises by customers

attending an event at Club Magic, 5600 West Colonial Drive, in

Orlando, Florida.

6. The Respondent provided no prepared food to persons

attending the event at Club Magic on April 21, 2012. There were

no menus, plates or utensils present at the event. There were no

dining tables or food service staff present at the event.

7. The Resp ondent asserted that on the dates referenced

above, food was made available to customers at the end of the

catered events and that many customers took the food " to go " as

they left the event. The assertion was contradicted by the

personal observations of witnesses who testified at the hearing,

was unsupported by credible evidence, and has been rejected.

8. Florida law requires that a licensee maintain , for a

period of three years, all records " required by the department by

rule " to demonstrate complianc e with the requirements for the

caterer ' s license. One such requirement is that a caterer must

derive " at least 51 percent of its gross revenue from the sale of

food and nonalcoholic beverages. "

9. The Petitioner has alleged that the Respondent failed to

" maintain separate records of all purchases and gross retail

sales of food and non - alcoholic beverages, and all purchases and

gross retail sales of alcoholic beverages. " Such records are

required to determine whether the caterer is meeting the

" 51 perc ent " requirement.

10. At the request of the Petitioner, the Respondent

provided various documents covering three specific time periods.

11. The materials were reviewed by an employee of the

Petitioner, who testified at the hearing in detail as to his

u nsuccessful attempt to correlate the Respondent ' s documents to

specific events allegedly catered by the Respondent.

12. The documents submitted by the Respondent are

insufficient to permit a determination as to whether or not the

Petitioner has complied with the statutory requirements to

maintain a caterer ' s license. The Respondent presented no

credible evidence that the employee ' s review of the submitted

documents was inaccurate or otherwise flawed.

13. The Respondent asserted that the statute does no t

specifically state the time frame within which the " 51 percent "

requirement must be met. The documents submitted by the

Respondent to the Petitioner lack sufficient reliability to

establish that the statutory requirement was met at any point in

time.

14. The applicable statute also requires that a licensee ' s

records include " licensed vendor receipts for the purchase of

alcoholic beverages and records identifying each customer and the

location and date of each catered event. " Alcohol purchased by a

lic ensee for a catered event , but not used at the event , must

remain with the customer for whom the event was catered or must

be returned, unopened, to the vendor for credit or reimbursement.

15. At the hearing, the Petitioner presented the testimony

of an alcohol vendor with whom the Respondent had an account for

the purchase of alcohol in 2012.

16. The vendor reviewed records of the Respondent ' s

purchases and testified that it was " impossible " to bill the

Respondent for a single event because the Respond ent did not

return the unused product s .

17. The records for the Respondent ' s purchases of alcohol

from the vendor cannot be credibly correlated to specific events

allegedly catered by the Respondent. The quantities of alcohol

purchased cannot be reliabl y attributed to consumption at any

specific event.

18. The vendor described the records as a " running invoice "

because alcohol taken by the Respondent for use at one event and

unused, was retained by the Respondent for use at subsequent

events. There wa s no credible evidence offered to contradict the

vendor ' s testimony.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla . Stat . (2013).

20 . In this case, the Petitioner is seeking to impose

discipline against the Respondent ' s license. In order to

prevail, the Petitioner must establish the allegations in the

Administrative Complaint by clear and convincing evidence. Dep 't

of Banking and Fin . v. Osborne Stern Co . , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). In

order to be " clear and convincing, " the evidence must be " of such

weight that it produces in the mind of the trier of fact a firm

belief or convictio n, without hesitancy, as to the truth of the

allegations sought to be established. " See Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the

burden has been met.

21. Section 561.20 limits the number of alcoholic beverage

lice nses that may be issued in a county based on the population

of the county. The statute also creates an exemption from such

limitations for specific types of businesses, including caterers.

22. The Second Amended Administrative Complaint alleges

that the Respondent has violated provisions of s ection

561.20(2)(a), Florida Statutes (2011 and 2012), which provide, in

relevant part, as follows:

No such limitation of the number of licenses

as herein provided shall henceforth prohibit

the issuance of a special license to:

* * *

5. Any caterer, deriving at least 51

percent of its gross revenue from the sale

of food and nonalcoholic beverages , licensed

by the Division of Hotels and Restaurants

under chapter 509. Notwithstanding any

other provision of law t o the contrary, a

licensee under this subparagraph shall sell

or serve alcoholic beverages only for

consumption on the premises of a catered

event at which the licensee is also

providing prepared food , and shall

prominently display its license at any

cater ed event at which the caterer is

selling or serving alcoholic beverages. A

licensee under this subparagraph shall

purchase all alcoholic beverages it sells or

serves at a catered event from a vendor

licensed under s. 563.02(1), s. 564.02(1),

or licensed u nder s. 565.02(1) subject to

the limitation imposed in subsection (1), as

appropriate. A licensee under this

subparagraph may not store any alcoholic

beverages to be sold or served at a catered

event. Any alcoholic beverages purchased by

a licensee under this subparagraph for a

catered event that are not used at that

event must remain with the customer;

provided that if the vendor accepts unopened

alcoholic beverages, the licensee may return

such alcoholic beverages to the vendor for a

credit or reimburse ment. Regardless of the

county or counties in which the licensee

operates, a licensee under this subparagraph

shall pay the annual state license tax set

forth in s. 565.02(1)(b). A licensee under

this subparagraph must maintain for a period

of 3 years al l records required by the

department by rule to demonstrate compliance

with the requirements of this subparagraph,

including licensed vendor receipts for the

purchase of alcoholic beverages and records

identifying each customer and the location

and date of each catered event. . . .

* * *

The Division of Alcoholic Beverages and

Tobacco is hereby authorized to adopt rules

to administer the license created in this

subparagraph, to include rules governing

licensure, recordkeeping, and enforcement.

The f irst $300,000 in fees collected by the

division each fiscal year pursuant to this

subparagraph shall be deposited in the

Department of Children and Family Services '

Operations and Maintenance Trust Fund to be

used only for alcohol and drug abuse

education, treatment, and prevention

programs. The remainder of the fees

collected shall be deposited into the Hotel

and Restaurant Trust Fund created pursuant

to s. 509.072. (emphasis added .)

23. The evidence established that on November 18, 2011 , and

April 21, 2012, the Respondent sold and served alcoholic

beverages for consumption at events where the Respondent provided

no prepared food.

24. The evidence also established that the Respondent

failed to maintain records sufficient to establish that the

Responden t operated in compliance with the requirements of

section 561.20(2)(a) . Such requirements specifically include

those related to the " 51 percent " provision, to the maintenance

of vendor receipts for the purchase of alcoholic beverages, and

to records ident ifying each customer and the location and date of

each catered event.

25. The Respondent noted that the Petitioner has not

adopted a rule specifying which records must be maintained and

suggested that the lack of a rule caused confusion regarding what

re cords were required. The lack of a rule does not relieve a

licensee from maintaining records. To the contrary, the

Petitioner ' s failure to adopt a rule means that a licensee may

maintain whatever records the licensee deems suitable, so long as

those reco rds can demonstrate compliance with the statutory

requirements to maintain a caterer ' s license.

26. In this case, the records were insufficient to permit

such a determination to be made by the Petitioner ' s employee

responsible for reviewing the records. The Respondent offered no

credible evidence at the hearing to suggest that the Petitioner ' s

attempt to review the records was inadequate.

27. Finally, the evidence established that the Respondent

failed to leave the unused alcohol with customers for who m events

were catered and failed to return the product to the vendor for

credit or reimbursement, but instead retained the alcohol for use

at subsequent catered events.

28. Florida Administrative Code Rule 61A - 2.022 sets forth

" penalty guidelines " applic able to this case. The rule states

that violation of s ection 561.20 , otherwise identified as a

" failure to meet minimum qualifications of special license "

warrants a $1 , 000 fine " and revocation without prejudice to

obtain any other license, but with preju dice to obtain the same

type of special license for 5 years. " The rule also provides

that the fine can be increased by $1,000 for each two - month

period during which the licensee failed to meet the " 51 percent "

requirement.

RECOMMENDATION

Based on the for egoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner enter a f inal o rder

imposing a fine of $1 , 000 and revoking the Respondent ' s license

n o. BEV5810598 , as set forth in the penalty guideline s .

DONE AND ENTERED this 30th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October , 2013 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2012),

unless otherwise noted.

CO PIES FURNISHED:

Allen Douglas, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

J. Layne Smith, General Counsel

Department of Business a nd

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Jed Berman, Esquire

Infantino and Berman

Post Office Box 30

Winter Park, Florida 32790 - 0030

Melinda Hilton Butler, Esquire

Department of Business and

Professional Regulation

Suite 40

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 Re commended Order should be filed with the agency that

will issue the Final Order in this case.