18-000383 Skrs Management, Llc vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Wednesday, April 25, 2018.

Summary: Petitioner failed to prove that its Application for New Alcoholic Beverage License, as amended, should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SKRS MANAGEMENT, LLC,

Petitioner,

vs. Case No. 18 - 0383

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuan t to notice, a disputed fact hearing in this cause

was held by video teleconference between sites in Tampa and

Tallahassee, Florida, on March 13, 2018, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gregory A. Zitani, Esquire

West Coast Law, PLLC

4046 Sawyer Road, Suite D

Sarasota, Florida 34233

D. Kent Safriet, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

For Respondent: Marc Daniel Taupier , Esquire

Department of Business

a nd Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether SKRS Management, LLCÓs, Application for New

Alcoholic Beverage License, as amended, should be approved.

PRELIMINARY STATEMENT

On May 31, 2017, SKRS Management, LLC (Petitioner), filed an

Application for New Alcoholic Beverage License (Application) with

the Department of Business and Professional R egulation, Division

of Alcoholic Beverages and Tobacco (Respondent/Division). The

Division advised Petitioner of its intent to deny the Application

and Petitioner timely filed a request for administrative hearing.

On January 22, 2018, the matter was refe rred to the Division of

Administrative Hearings (DOAH) for a disputed fact hearing.

During the hearing, Petitioner offered the testimony of its

only witness, David Balot. The Division offered the testimony of

Christopher C arson, chief of field services , a nd Damon Larry, its

assistant chief of licensing. PetitionerÓs Exhibits 1 through 29

were admitted into evidence. Division Exhibits A through G were

also adm itted into evidence. Official r ecognition was given to

sections 509.013 and 561.01, Florida Stat utes (2017). 1/

A transcript of the disputed fact hearing was filed with

DOAH on March 28, 2018. On April 9, 2018, each party filed a

Proposed Recommended Order () . PRO

FINDING S OF FACT

I. The Two Parcels

1. Petitioner is a management company that owns an d

operates Siesta Key Beachside Resort & Spa (Resort). The Resort

is comprised of a total of five buildings, with four of the

buildings located at 215 Calle Miramar, Sarasota, Florida (parcel

1), and a single building located at 5311 Ocean B ou l e v ar d,

Sara sota, Florida (parcel 2).

2. The two parcels are separated by Calle Miramar, which is

a public right of way used as a street. At no point do the

boundary lines of the two parcels adjoin, abut, or in any way

touch one another.

3. The buildings on parcel 1 have a total of 38 rooms/units

available for rent. The single building on parcel 2 has a total

of 15 rooms/units available for rent.

4. For license classific ation purposes, section 509.242

provides, in part, that Ð[a] public lodging establishment shall

be classified as a hotel, motel, nontransient apartment,

transient apartment, bed and breakfast inn, timeshare project, or

vacation rental.Ñ It is undisputed that both parcels contain

buildings that are public lodging establishments.

5. Section 509.013 provides, in part, as follows:

(4)(a) ÐPublic lodging establishmentÑ

includes a transient public lodging

establishment as defined in

subparagraph 1. and a nontransient

public lodging establishment as defined

in subparagraph 2.

1. Ð Transie nt public lodgi ng

establishment Ñ means any unit, group of

units, dwelling, building, or group of

buildings within a single complex of

buildings which is rented to guests more

than three times in a calendar year for

periods of less than 30 days or 1

calendar month, whiche ver is less, or

which is advertised or held out to the

public as a place regularly rented to

guests.

2. Ð Nontransient public lodging

establishment Ñ means any unit, group of

units, dwelling, building, or group of

buildings within a single complex of

build ings which is rented to guests for

periods of at least 30 days or 1

calendar month, whichever is less, or

which is advertised or held out to the

public as a place regularly rented to

guests for periods of at least 30 days

or 1 calendar month.

* * *

(7) Ð Single complex of buildings Ñ means

all buildings or structures that are

owned, managed, controlled, or operated

under one business name and are situated

on the same tract or plot of land that

is not separated by a public street or

highway.

6. Consistent with sections 509.013 and 509.242, and given

that parcels 1 and 2 are Ðseparated by a public street,Ñ the

Department of Business and Professional Regulation, Division of

Hotels and Restaurants, issued a motel license for each parcel.

II. Application for New Alcoholic Beverage License

7. On May 31, 2017, Petitioner filed it Application with

the Division. PetitionerÓs Application identifies Ð511 OCEAN

BLVD AND 213 CALLE MIRAMARÑ as the addresses for the premises to

be licensed.

8. Section 561.18 provide s, in part, that Ð[a]fter the

application has been filed with the local district office

supervisor, the district supervisor shall cause the application

to be fully investigated, both as to qualifications of the

applicants and a manager or person to be in c harge and the

premises and location sought to be licensed.Ñ

9. Pursuant to its statutory obligation to investigate Ðthe

premises and location sought to be licensed,Ñ on or about June 6,

2017, the Division conducted an investigation of the premises to

be l icensed and determined:

1. The location of this property has 2

addresses, 5311 Ocean Blvd. and 213

Calle Miramar;

2. The locations are NOT CONTIGUOUS and

are divided by a roadway (Calle Miramar)

that is a public street that allows

motor vehicle traffic to travel to other

businesses and residents on the roadway;

3. The roadway is not a private road

that runs between the 2 locations; and

4. One location in itself does not meet

the requirements for the total number of

rooms.

The Division notified Petit ioner that the premises did not meet

the requirements for an alcoholic beverage license.

10. On or about February 5, 2018, Petitioner amended its

A pplication and requested therein that Respondent only consider

5311 Ocean Boulevard as the premises sought t o be covered by the

license. An on - site investigation was again conducted by the

Division and it was determined that the Ð[l]ocation is the same

configuration as the last inspectionÑ and that the Application

should be denied because the premise (parcel 2) does not meet the

minimum room requirement needed for licensure.

11. Section 561.20 of the Beverage Law 2/ generally provides

that a special license to sell intoxicating liquors may be issued

to Ð[a]ny bona fide hotel, motel, or motor court . . . of not

f ewer than 100 guest rooms in any county having a population of

50,000 residents or greater . . . [and that] [t]his special

license shall allow the sale and consumption of alcoholic

beverages only on the licensed premises of the hotel or motel.Ñ

A special law governs Sarasota County, which lowers to 50 the

minimum number of guest rooms required to be eligible for a

license to sell intoxicating beverages.

12. Section 561.01(11) provides, in part, as follows:

Ð Licensed premises Ñ means not only rooms

where al coholic beverages are stored or

sold by the licensee, but also all other

rooms in the building which are so

closely connected therewith as to admit

of free passage from drink parlor to

other rooms over which the licensee has

some dominion or control and sh all also

include all of the area embraced within

the sketch, appearing on or attached to

the application for the license involved

and designated as such on said sketch,

in addition to that included or

designated by general law. The area

embraced within th e sketch may include a

sidewalk or other outside area which is

contiguous to the licensed premises. [ 3/ ]

13. The evidence establishes that Petitioner holds two

distinct motel licenses for two distinct parcels.

14. The motel located at 5311 Ocean Boulevar d has only 15

guest rooms, and accordingly, this facility does not meet the 50 -

room minimum requirement for licensure under the Beverage Law.

CONCLUSIONS OF LAW

15 . DOAH has jurisdiction over the parties and subject

matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

1 6 . Section 561.02 authorizes the Division to Ð supervise

the conduct, management, and operation of the manufacturing,

packaging, distribution, and sale within the state of all

alcoholic beverages and [further authorizes the Depa rtment to]

enforce the provisio ns of the Beverage Law and the T obacco law

and rules and regulations of the division in connection

therewith. Ñ

1 7 . Section 561.17 authorizes the Division to consider, and

otherwise act upon, applications to manufacture, bott le,

distribute, sell, or in any way deal in alcoholic beverages.

18 . As the applicant for a license, Petitioner is asserting

the affirmative, and therefore bears the ultimate burden of

proving entitlement to a license. Fla. Dep't of Transp. v.

J.W.C. Co. , Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

19 . The standard of proof that Petitioner must meet is by a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat. The

preponderance of the evidence standard requires proof by "the

greater weight of the evi dence" or evidence that "more likely

than not" tends to prove a certain proposition. Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000).

2 0 . In considering the evidence, as set forth in the

Findings of Fact above, it is concluded that Petitioner did not

meet its burden of proof and therefore its Application for New

Alcoholic Beverage License, as amended, should be denied.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Department of Business and P rofessional Regulation,

Division of Alcoholic Beverages and Tobacco, enter a final order

denying SKRS Management, LLCÓs , Application for New Alcoholic

Beverage License.

DONE AND ENTERED this _____ day of ________ , _______ , in

Tallahassee, Leon County, Flor ida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this _____ day of ______ , ____ .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2017,

unless otherwise indicated.

2/ Section 561.01(6) provides that ÐÒt]he Beverag e LawÓ means

this chapter and chapters 562, 563, 564, 565, 567, and 568.Ñ

3/ As previously noted, Petitioner amend ed its application to

identify p arcel 2 as the purported Ðlicensed premises.Ñ In

explaining this amendment, Petitioner, in its PRO, states that

Ð[t]he revision sought to clarify that while the application was

for the entire hotel (i.e. both parcels and all 5 buildings), the

Òlicensed premises,Ó . . . would be limited to one building and

parcel at 5311 Ocean Boulevard.Ñ

The amendment, while interesting in its wording, offers no

substantive change to the true essence of the pending

application; to wit, that the Department should disregard the

fact that the two parcels in question are divided by a public

road and that neither parcel, standing alone, meets the minimum

room requirement. Section 561.01(11), as it pertains to the

instant matter, clearly provides that Ðother outside areasÑ (i.e.

p arcel 1) can only be considered when the area Ðis contiguous to

the licensed premises.Ñ Pet itioner mak es no argument that

parcel 1 is ÐcontiguousÑ to p arcel 2, and the evidence does not

otherwise support such a finding. Therefore, PetitionerÓs

evidence regarding how it operates its business, and how other

entities (e.g. , the gas, electric and water utili ties) classify

or perceive PetitionerÓs business operation, is irrelevant

because this information fails to assist the fact - finder in

addressing the statutory question of whether the parcels are

contiguous.

COPIES FURNISHED:

Marc Daniel Taupier, Esquire

Florida Department of Business

and Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399

(eServed)

Gregory A. Zitani, Esquire

West Coast Law, PLLC

Suite D

4046 Sawyer Road

Sarasota, Florida 34233

(eServed)

D. Kent Safriet, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(eServed)

Alicia Bhambhani, Esquire

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32301

(eServed)

Thomas Philpot, Director

Div ision of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32301

(eServed)

Jason Maine, General Counsel

Department of Business and Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32301

(eServed)

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.