18-006768RX Mb Doral, Llc, D/B/A Martini Bar vs. Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 6, 2019.

Summary: Petitioner failed to prove that the challeged parts of the off-premises storage rule were invalid under section 120.52 (8).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MB DORAL, LLC, d/b/a MARTINI

BAR,

Petitioner,

vs. Case No. 18 - 6768RX

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF ALCOHOLIC BEVERAGES

AND TOBACCO,

Respondent.

___________________________ ____/

FINAL ORDER

On January 24, 2019, Administrative Law Judge Robert J.

Telfer III, of the Florida Division of Administrative Hearings

(Division) conducted a duly - noticed hearing in Tallahassee,

Florida.

APPEARANCES

For Petit ioner: Michael Martinez, Esquire

Greenspoon Marder LLP

215 South Monroe Street, Suite 530

Tallahassee, Florida 32301

For Respondent: Daniel Johnathon McGinn, Esquire

Department of Business

and Professional Regulation

Suite C452

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

Whether Florida Administrative Code Rule 61A - 4.020 (the Off -

Premises Storage Rule or OPS Rule) is an invalid exercise of

delegated legislative authority in that it : (a) enlarges,

modifies, or contrave nes the law implemented ; (b) is vague, fails

to establish adequate standards for agency decisions, and vests

unbridled discretion in the Department of Business and

Professional Regulation, Division of Alcoholic Bevera ges and

Tobacco (Department or DABT ); ( c) is a rbitrary and capricious; or

(d) exceeds DABTÓs grant of rulemaking authority, in violation of

section 120.52(8), Florida Statutes (2018).

PRELIMINARY STATEMENT

On December 21, 2018, Petition er MB Doral, LLC, d/b/a

Martini B ar (MB Doral) , filed a Pet ition Challenging Validity of

Existing Rule 61A - 4.020 and Determination Regarding Unadopted

Rule with the Division (Petition). The Petition seeks a

determination that the OPS Rule is an invalid exercise of

delegated legislative authority, in violation of section

120.52(8), Florida Statutes (2018), and a determination that the

Department of Business and Professional RegulationÓs ÐABT Form

6017 Application and Inspection Report for Off - Premises Storage

PermitÑ (ABT Form 6017) is an unadopted rule. On Decemb er 27,

2018, Chief Judge Robert Cohen issued an Order of Assignment,

which assigned this matter to the undersigned administrative law

judge (ALJ).

On January 23, 2019, DABT filed a Motion to Bifurcate and

Stay Proceedings (Motion), related to the unadopted rule

challenge. The Motion stated that on January 22, 2019, DABT

provided a Notice of Rule Development and Notice of Proposed

Rulemaking to the Office of Fiscal Accountability and Regulatory

Reform (OFARR) and the Joint Administrative Procedures Committe e

(JAPC) concerning a proposed revision to r ule 61A - 4.020 that

would, inter alia , promulgate ABT Form 6017. The undersigned

heard arguments concerning the Motion at the final hearing on

January 24, 2019, and orally granted the Motion. On January 25,

2019 , the undersigned subsequently entered an Order Granting

RespondentÓs Motion to Bifurcate and Stay Proceedings, which

held: (a) pursuant to section 120.56(4)(b), MB DoralÓs unadopted

rule challenge shall be stayed pending the proposed rulemaking

that, int er alia , proposes to promulgate ABT Form 6017; (b) the

matter shall be bifurcated, so that the parties can proceed on MB

DoralÓs existing rule challenge; and (c) DABT shall provide the

undersigned with a status report within 30 days concerning the

status o f the proposed rulemaking.

The undersigned conducted a final hearing on the existing

rule challenge to r ule 61A - 4.020 on January 24, 2019. The

undersigned admitted into evidence Joint Exhibit 1, the

deposition transcript of Damon J. Larry, assistant burea u chief

of DABTÓs Bureau of Licensing. MB Doral presented the testimony

of Louis J. Terminello. 1/ The undersigned accepted PetitionerÓs

Exhibits 1 through 4, without objection. Although DABT presented

no witnesses or exhibits at the final hearing, it fi led an

Unopposed Motion to Supplement the Administrative Record on

February 1, 2019, which requested the undersigned to admit into

evidence correspondence between DABT and JAPC, dated January 29,

2019 (after the final hearing), concerning r ule 61A - 4.020. On

February 4, 2019, the undersigned entered an Order Granting

RespondentÓs Unopposed Motion to Supplement th e Administrative

Hearing Record and admitted the correspondence as RespondentÓs

Exhibit 1.

The T ranscript of the final hearing was filed with the

D ivision on February 1, 2019. At the final hearing, the

undersigned provided the parties with a deadline of February 4,

2019, to submit proposed final orders. Both parties timely filed

proposed final orders, which the undersigned has considered in

the pre paration of this Final Order .

All references are to the 2018 codification of the Florida

Statutes unless otherwise indicated.

FINDING S OF FACT

1 . DABT is the state agency charged with the licensing,

regulation, and enforcement of FloridaÓs alcoholic be verage and

tobacco laws. See §§ 561.02 and 561.08, Fla. Stat.

2. DABT administers and enforces FloridaÓs ÐBeverage Law,Ñ

found in chapters 561 through 568, Florida Statutes, and

administrative rules promulgated thereunder. See § 56 1 .01(6),

Fla. Stat.

3 . DABT issues State of Florida Alcoholic Beverage Licenses

pursuant to the Beverage Law, and ties certain licenses to the

county in which the licensee conducts its business. See

§ 561.20, Fla. Stat . DABT presented evidence at the final

hearing, through the deposition of Damon Larry, DABTÓs assistant

bureau chief, that it does this for a variety of reasons,

including revenue distribution purposes, and to distinguish what

alcoholic beverages a licensee may lawfully sell or store in a

particular county.

4. DABT classifies one of these types of licenses as

ÐquotaÑ licenses, which it issues on a per county basis. See

§ 561.20(1), Fla. Stat . The licensed premises of the business

operating under the quota license must be located in the county

for which DABT i ssued the license.

5. The leading two digits of the license number of a DABT -

issued license identifies the county in which the business

operating the license is located.

6. MB Doral is the holder of Florida Alcoholic Beverage

License Number BEV2301022, S eries 4COP Quota. DABT issued the

license for use in Miami - Dade County. 2/

7. MB Doral operates an alcoholic beverage establishment in

Miami - Dade County known as the Martini Bar.

8. MB Doral also caters alcoholic beverages at large open -

air events throug hout the State of Florida. Louis J. Terminello,

a majority owner of MB Doral, testified that MB Doral has

recently catered, for example, the Ultra Music Festival in Miami -

Dade County, the Riptide Music Festival in Broward County, and

the Electric Daisy Ca rnival in Orange County. Mr. Terminello

testified that MB Doral may lawfully cater these events at

locations outside of Miami - Dade County pursuant to an exemption

found in section 561.20(2)(a)5 . , which permits quota licensees to

sell alcoholic beverages a t catered events outside of the county

in which DABT issued the license.

THE OPS RULE

9. Rule 61A - 4. 02 0 , which has been in existence since 1980,

reads as follows:

61A - 4.020 Storage Permits.

(1) Manufacturers, rectifiers, distributors,

vendors and coo peratives or pool buying

vendors who require additional storage

outside of their licensed premises must

obtain a permit therefor. Such permits can

be obtained from the Division without fee,

provided that the storage room is located in

the same county as t he parent place of

business of the licensee or agent of such

cooperatives or pool buying vendors to whom

the permit was issued and provided that no

such permits shall be issued to a structure

which is or is a part of the residence or

garage of a licensee o r any employee of any

licensee. Such permits authorize the storage

of alcoholic beverages only in sealed

containers. Applications for such permits

shall be made on forms prescribed by the

Division for that purpose and shall be

submitted to the district s upervisor of the

district in which the licensed place of

business for which the permit is sought is

located.

(2) The district office will prepare, in

quadruplicate, a permit showing the name of

the licensee and the licensed premise(s) he

owns and operate s. The permits will be

validated by the signature of the district

supervisor and distributed as follows:

Original, to be posted on door of storage

room; Second Copy, posted with license; Third

copy, sent with copy of application and

inspection report to Central Office

licensing; Fourth copy, filed in field office

license file.

(3) Applications for off - premises storage

permits may be accepted at any time; however,

renewals will be issued on an annual basis

concurrent with the beverage license year and

sh all automatically renew with the renewal of

the beverage license. Should the ownership

of the beverage license change, a new off -

premises storage permit will be required,

otherwise, the permit shall remain in effect

until cancelled by the licensee or divi sion.

(4) In the event a licensee discontinues the

use of storage permits, both copies shall be

forwarded to the district office for

cancellation.

(5) By acceptance of such storage permit,

the licensee shall agree that the storage

premise shall be subj ect to search by

authorized employees of the Division,

sheriffs, deputy sheriffs, and police

officers during the hours such premise is

occupied.

Specific Authority 516.11 FS. Law

implemented 561.07, 562.03, 565.03(2) FS.

History - Repromulgated 12 - 19 - 74. Amended 3 - 1 -

76, 1 - 28 - 80. Formerly 7A - 4.20, 7A - 4.020.

10. The OPS Rule identifies section 516.11 as the law

implemented. DABT concedes that this is a typographical error,

which it intends to correct in the current rulemaking concerning

the OPS Rule. S ection 561.11 provides DABT with the Ðauthority

to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement

the provisions of the Beverage Law.Ñ

11. Section 562.03, which the OPS Rule cites as a law

implemented, provides as follows:

562.03 Storage on licensed premises. Ï It is

unlawful for any vendor to store or keep any

alcoholic beverages except for the personal

consumption of the vendor, the vendorÓs

family and guest in any building or room

other than the building or room shown in the

diagram accom panying his or her license

application or in another building approved

by the division.

12. MB Doral presented evidence that it has applied for,

and received, an OPS permit for storage facilities in Miami - Dade

County, where distributors are able to deliv er alcoholic

beverages, and which are subject to inspection.

13. MB Doral also presented evidence that it previously

applied for an OPS permit outside of Miami - Dade County, which

DABT denied.

14. On September 28, 2018, MB Doral applied for an OPS

permi t at a location outside of Miami - Dade County. In a cover

letter accompanying this application, Mr. Terminello outlined his

concerns with the OPS RuleÓs restriction on OPS permits outside

of the county of the licensee.

15. With respect to the Electric Da isy Carnival, in Orange

County, and the Rip Tide Music Festival, in Broward County, MB

Doral presented evidence of what it contended were increased

costs incurred in supplying alcoholic beverages to these catered

events, because it was unable to store such beverages in the same

county as the event. 3/

JAPC CORRESPONDENCE

16. JAPC corresponded with DABT numerous times concerning

the OPS Rule over , approximately, the past 14 years.

17. Between 2005 and 2018, much of this correspondence

consisted of JAPCÓs co ncerns with the following in the OPS Rule:

(a) whether DABT should remove citation to section 561.07, which

the Florida Legislature had repealed; (b) an explanation why DABT

cites to section 565.03(2) as a law implemented; and (c) whether

DABT should spec ifically incorporate any permit forms it utilizes

in the OPS Rule.

18. DABT, in correspondence dated September 22, 2017,

responded that: (a) it will amend the OPS Rule to remove the

citation to section 561.07, and to correct a typographical error

so that section 561.11 would be the rulemaking authority

citation; (b) the Florida Legislature moved section 565.03(2) to

section 565.03(3) in 2013; and (c) it will pursue rule

development as needed to incorporate the applicable permit form.

19. On November 29, 2018, JAPC sent a letter to DABT

concerning the OPS Rule that stated, in part:

This rule provides that manufacturers,

rectifiers, distributors, vendors, and

cooperatives or pool buying vendors requiring

additional storage outside of their licensed

premises must obtain a permit, without a fee,

provided the storage room is located in the

same county as the parent place of business

of the licensee or agent of the vendor to

whom the permit was issued.

Please explain the divisionÓs statutory

authority to limit the permits for such

storage rooms to the same county where the

licensee is located. See § 565.03, Fla.

Stat. (ÐWarehouses of a licensed distributor

used solely for storage and located in the

county in which the license is issued to such

distributor shal l not be construed to be

separate establishments or branches.Ñ). It

does not appear that section 565.03(3) limits

such storage warehouses to the licenseeÓs

county.

20. However, in a letter dated January 29, 2019 (after the

date of the final hearing on M B DoralÓs existing rule challenge),

JAPC provided the following comments concerning the OPS Rule:

61A - 4.020: It appears that section 565.03(7)

should be added as rulemaking authority.

Please explain why section 565.408 is cited

as a law implemented.

It appears that section 561.02(11), section

561.17(1), and section 562.41 should be added

as laws implemented.

61A - 4.020(1): This subsection inc orporates

by reference Form DBPR ABT 6017, Application

and Inspection Report for Off - Premises

Storage Permit, wit h an indeterminate

effective date. Please ensure that the

effective date of the form is included in the

rule text on the form when the rule is filed

for adoption. See § 120.545(1)(i), Fla.

Stat.

Please explain why the rule text refers to

the form as an ÐInspection Report.Ñ See

§ 120.545(1)(i), Fla. Stat.

The title of the form is inconsistent in the

rule text and the form. The second and third

unnumbered pages of the form refer to its

title as ÐApplication for Off - Premises

Permit,Ñ whereas the title of the form in the

rule text is, ÐApplication and Inspection

Report for Off - Premises Storage Permit.Ñ

Please correct the rule or the form to make

the titles consistent.

Form DBP R ABT 6017

Please explain why the form does not list the

persons and entities r equired by section

561.17(1), which states in part that, Ð[t]he

applicant must be a legal or business entity,

person, or persons and must include all

persons, officers, shareholders, and

directors of such legal or business entity

that have a direct or indi rect interest in

the business seeking to be licensed under

this part.Ñ See § 120.52(8)(c), Fla. Stat.

21. Notably, JAPCÓs January 29, 2019 , letter did not raise

or mention issues it raised in its November 29, 2018 , letter,

namely, DABTÓs statutory autho rity to limit the permits for such

storage rooms to the same county where the licensee is located.

The parties presented no additional evidence concerning whether

JAPC intends to further e xpress concern with any of the issues

raised in the November 29, 20 18 , letter.

CONCLUSIONS OF LAW

22. The Division has jurisdiction over the subject matter

and the parties to this proceeding in accordance with

sections 120.54, 120.56, 120.569, and 120.57(1 ) .

23. Under section 120.56(1)(a), Ð[a]ny person substantially

a ffected by a rule . . . may seek an administrative determination

of the invalidity of the rule on the ground that the rule is an

invalid exercise of delegated legislative authority.Ñ A

petitioner may challenge an existing rule at any time during its

exist ence. See § 120.56(3)(b), Fla. Stat.

24. A party is substant ially affected if the rule will

(a) result in a real or immediate injury in fact, and (b) the

alleged interest is within the zone of interest to be protected

or regulated. See Jacoby v. Fla. Bd . of Med. , 917 So. 2d 358,

360 (Fla. 1st DCA 2005). MB Doral established that the OPS Rule

substantially affects it because DABT has den ied its application

for an OPS p ermit in a county outside of Miami - Dade County, and

because MB Doral is within the zone of interest to be protected.

DABT did not challenge MB DoralÓs standing to challenge the OPS

Rule.

25. Pursuant to section 120.56(3)(a), MB Doral has the

burden of proving by a preponderance of the evidence that the OPS

Rule is an invalid exercise of de legated legislative authority as

to the objections raised.

26. MB Doral challenges the OPS Rule as an invalid exercise

of delegated legislative authority. Section 120.52(8) provides,

in pertinent part 4/ :

ÐInvalid exercise of delegated legislative

authori tyÑ means action that goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing rule

is an invalid exercise of delegated

legislative authority if any one of the

following applies:

* * *

(b) The agency has exceed ed its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(3)(a)1.;

(d) The rule is va gue, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that i mplement or interpret

the specific powers and duties granted by the

enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agencyÓs class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent and policy. Statutory language

granting rulemaking authority or generally

describing the pow ers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

enabling statute.

27. The OPS Rule identifies section 516.11 as its specific

authority, which DABT ha s conceded is a typographical error.

DABT posits that section 561.11 is the appropriate citation to

the specific authority for the OPS Rule. MB DoralÓs Proposed

Final Order does not take issue with this typographical error.

The undersigned concludes tha t the OPS Rule is not invalid

because of this typographical error.

28. Section 561.11, which provides DABT with a general

grant of rulemaking authority, states, in pertinent part:

[DABT] has authority to adopt rules pursuant

to ss. 120.536(1) and 120.54 t o implement the

provisions of the Beverage Law.

Section 561.01(6), defines the ÐBeverage LawÑ as chapters 561

through 568.

THE OPS RULE DOES NOT EXCEED DABTÓS RULEMAKING AUTHORITY AND DOES

NOT ENLARGE, MODIFY, OR CONTRAVENE SECTION 562.03

29. MB DoralÓs primary contention is that section 562.03

does not contain explicit restrictions concerning the county in

which a licenseeÓs off - premises storage can be located; thus, the

OPS RuleÓs restriction of off - premises storage location to the

county of the licens ee, it argues, exceeds DABTÓs rulemaking

authority and enlarges, modifies, or contravenes section 562.03.

Section 562.03 states:

Storage on licensed premises. Ï It is unlawful

for any vendor to store or keep any alcoholic

beverages except for the personal co nsumption

of the vendor, the vendorÓs family and guest

in any building or room other than the

building or room shown in the diagram

accompanying his or her license application

or in another building or room approved by

the division.

30. The issue of whet her a rule is an invalid exercise of

delegated legislative authority under section 120.52(8)(b) and

the Ðflush - leftÑ provision must be determined on a case - by - case

basis. See S.W. Fla. Water Mgmt. Dist. v. Save the Manatee Club,

Inc. , 773 So. 2d 594, 599 (Fla. 1st DCA 2000).

31. In United Faculty of Fl orid a v. State Board of

Educ ation , 157 So. 3d 514, 517 (Fla. 1st DCA 2015), the First

District held:

Section 120.536(1) and the flush - left

paragraph in section 120.52(8) require a

close examination of the st atutes cited by

the agency as authority for the rule at issue

to determine whether those statutes

explicitly grant the agency authority to

adopt the rule. As this court famously

stated in Save the Manatee Club, the question

is Ðwhether the statute contain s a specific

grant of legislative authority for the rule,

not whether the grant of authority is

specific enough . Either the enabling statute

authorizes the rule at issue or it does not.

773 So. 2d at 599 (emphasis in original).

Accord Bd. of Trs. o f the Internal

Improvement Trust Fund v. Day Cruise AssÓn,

Inc. , 794 So. 2d 696, 700 (Fla. 1st DCA 2001)

(Ð[A]gencies have rulemaking authority only

where the legislature has enacted a specific

statute, and authorized the agency to

implement it . . . .Ñ); see a lso Fla.

Elections CommÓn v. Blair, 52 So. 3d 9, 12 - 13

(Fla. 1st DCA 2010) (explaining that the

definition of Ðrulemaking authorityÑ in

section 120.52(7) does not further restrict

agency rul emaking authority beyond what i s

contained in the flush - left parag raph in

section 120.52(8), as construed by this court

in Save the Manatee Club and subsequent

cases).

32 . The United Faculty of Fl orid a c ourt further held:

[I]t is not necessary under Save the Manatee

Club and its progeny for the statutes to

delineate ev ery aspect of tenure that the

Board is authorized to address by rule;

instead, all that is necessary is for the

statutes to specifically authorize the Board

to adopt rules for college faculty contracts

and tenure, which the statute clearly do.

Id . at 517 - 18.

33 . As discussed in paragraphs 18, 27 and 28 above, the OPS

Rule relies on section 561.11 as specific authority. The OPS

Rule cites to sections 561.07, 562.03, and 565.03(2) as the law

implemented. As discussed in paragraph 18, DABT has undertaken

rulemaking efforts to correct t he latter citation, as the Florida

Legislature moved section 565.03(2) to section 565.03(3) in

2013. 5/

3 4. Section 562.03, which is part of the Beverage Law,

reflects the Florida LegislatureÓs grant of authority for DABT to

approve of locations for off - premises storage of alcoholic

beverages. It provides the mechanism by which a vendor can seek

to store alcoholic beverages: in Ðthe building or room shown in

the diagram accompanying his or her license application[;]Ñ or

Ðin another building or room approved by the division.Ñ

35. The undersigned concludes that the OPS Rule does not

exceed DABTÓs rulemaking authority. The statutes cited in the

OPS Rule provide DABT with the necessary rulemaking authority for

the OPS Rule. Namely, section 562.03Ós pronouncement that a

vendor may store alcoholic beverages Ðin another building or room

approved by the division[]Ñ provides DABT with the ability to

restrict the locations where alcoholic beverages obtained for the

purpose of resal e are stored, as well as the ability to approve

additional locations for off - premises storage. The OPS Rule is a

permitted effort to implement or carry out the OPS Rule with more

detail. See Save the Manatee Club , 773 So. 2d at 599. 6/

36. The undersigne d further concludes that the OPS Rule

does not enlarge, modify, or contravene the specific provisions

of the law implemented, namely, section 562.03. The Ðlaw

implementedÑ is the Ðlanguage of the enabling statute being

carried out or interpreted by an age ncy through rulemaking.Ñ

§ 120.52(9), Fla. Stat. By imposing a county - based limitation,

the OPS Rule is both consistent with, and provides clarity to,

section 562.03Ós pronouncement that a vendor may store alcoholic

beverages Ðin another building or room approved by the division.Ñ

Additionally, the OPS Rule provides meaningful and understandable

standards to licensees. See DepÓt of Bus . & ProfÓl Reg . v. Dania

EntmÓt Ctr., LLC , 229 So. 3d 1259, 1266 (Fla. 1st DCA

2017) (holding that the role of an agency is Ðto provide

meaningful and understandable standards Ñ). 7 /

THE OPS RULE IS NOT VAGUE, DOES NOT FAIL TO ESTABLISH ADEQUATE

STANDARDS FOR AGENCY DECISIONS, AND DOES NOT VEST UNBRIDLED

DISCRETION IN THE AGENCY

37. MB Doral contends that the OPS Rule is vag ue, fails to

establish adequate standards for agency decisions, or vests

unbridled discretion in the agency, under section 120.52(8)(d),

because it references Ðparent place of business,Ñ which the

Beverage Law fails to define, and because it exempts Ðcommo n

carrier vendorsÑ from the Ðsame countyÑ limi tation in

r ule 61 A - 4.020(1).

38. In State v. Peter R. Brown Const ruction , Inc. , 108 So.

3d 723, 728 (Fla. 1st DCA 2013), the First District held that an

administrative rule is invalid under section 120.52(8)(d ) if:

[I]t forbids or requires the performance of

an act in terms that are so vague that

persons of common intelligence must guess at

its meaning and differ as to its application.

Generally, where words or phrases are not

defined, they must be given their common and

ordinary meaning.

39. MB Doral is correct that the Beverage Law does not

appear to define Ðparent place of business,Ñ although

section 563.065, an unrelated provision of the Beverage Law,

references this term. 8/ However, MB Doral failed to e stablish

that Ðparent place of businessÑ is vague. As detailed in

paragraphs 2 through 6 in the Findings of Fact above, DABT ties

certain licenses, such as the quota license it issued to

MB Doral, to the county in which the licensee intends to operate.

A s paragraph 8 found, MB Doral may lawfully cater events at

locations outside of Miami Dade County pursuant to section

561.20(2)(a)5. MB Doral did not present evidence that it, or any

other individual or entity, had to guess at the meaning of

Ðparent place of business.Ñ Rather, a review of the record

evidence, including the testimony of Mr. Terminello and

Mr. Larry, demonstrates that the parties understood this term,

and its purpose and effect under the OPS Rule. It is likewise

obvious to the undersigned that this term refers to the county in

which the licensee operates, and provides meaningful and

understandable standards to licensees.

40. Similarly, MB DoralÓs contention that the OPS Rule is

vague because it exempts Ðcommon carrier vendorsÑ from the Ðsa me

countyÑ limi tation is unpersuasive. Without taking a deep dive

into all of the complexities of the Beverage Law, the parties

presented evidence at the final hearing, and referenced various

provisions of the Beverage Law, to show that a quota license,

s uch as the l icense belonging to MB Doral, i s tied to the county

in which the licensee operates, but could provide the licensing

authority to cater events at locations outside of that county.

Other provisions of the Beverage Law limit how, and where, other

licensees may operate. See , e.g. , § 561.14, Fla. Stat. DABT

issues Ðcommon carrier licensesÑ to licensees that operate fleets

of buses, airplanes, steamships, or trains throughout Florida.

See § 565.02(2) and (3), Fla. Stat. Thus, the Beverage Law

exp licitly permits Ðcommon carrier vendorsÑ to operate throughout

the state, regardless of county. Accordingly, t he OPS Rule is

not vague, does not fail to establish standards for DABT

decisions, and does not vest unbridled discretion in DABT because

it limi ts the off - premises storage of alcoholic beverages to the

county in which MB Doral, who has a quota license, operates.

THE OPS RULE IS NOT ARBITRARY OR CAPRICIOUS

41. MB Doral contends that the OPS Rule is arbitrary or

capricious, under section 120.52(8)( e), because it allows a

different type of licensee, or a non - employee of the licensee, to

potentially store alcoholic beverages off - premises in a different

county, or a residence or garage, but prohibits MB Doral from

doing so.

42. MB Doral further presen ted evidence of what it

contended were increased costs incurred in supplying alcoholic

beverages to certain catered events, without the ability to store

such beverages in the same county as the event, to suppo rt its

contention that the OPS R ule is arbitrar y or capricious.

43. Pursuant to section 120.52(8)(e):

A rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational . . . .

See DepÓt of Health v. Bayfront Me d. Ctr., Inc. , 134 So. 3d 1017

(Fla. 1st DCA 2012); Bd. of Trs . of the Int . Imp . Trust Fund v.

Levy , 656 So. 2d 1359 (Fla. 1st DCA 1995).

44. MB Doral failed to meet its burden to show that the OPS

Rule is not suppor ted by logic or the necessary facts, o r that

DABT adopted it without thought or reason, or that the OPS Rule

is irrational. DABT presented evidence, and the Beverage Law

demonstrates, that DABT ties certain licenses, such as the quota

license it issued to MB Doral, to the county in which the

licensee intends to operate. Although there is an exemption to

this county - specific restriction for catered events, see

§ 561.20(2)(a)5 . , MB Doral has failed to demonstrate that the OPS

RuleÓs requirement that off - premises storage be located in the

same c ounty as those certain licenses is arbitrary or capricious.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

A. Florida Administrative Code Rule 61A - 4.020 is a valid

exercise of delegated legislative authority;

B. Pursuant to section 120.595(3), the undersigned

concludes that MB Doral did not participate in these proceedings

for an improper purpose, as d efined in section 120.595(1)(e); and

C. The undersigned retains jurisdiction to consider

MB DoralÓs unadopted r ule challenge, which is currently sta yed,

pursuant to section 120.56 (4)(b) and the January 25, 2019, Order

Granting RespondentÓs Motion to Bifurcate and S tay P roceedings.

DONE AND ORDERED this 21s t day of February , 2019 , in

Tallahassee, Leon County, Flori da.

S

ROBERT J. TELFER III

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.f l.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21s t day of February , 2019 .

ENDNOTE S

1/ Mr. Terminello originally appeared as co - counsel for MB Doral

in this proceeding. After the undersigned inquired as to whether

he could appear as a fact witness at the final hearing,

Mr. Terminello moved to withdraw, which the undersigned orally

granted at the final hearing. Subsequently, on January 28, 2019,

the undersigned granted Mr. TerminelloÓs motion to withdraw as

counsel, nunc pro tunc to the beginning of the final hearing on

January 24, 2019.

2/ The number 23 reflects that DABT issued MB DoralÓs license for

use in Miami - Dade County.

3/ For example, MB Doral introduced invoices for shipping costs,

as well as equipment rental to transport and move alcoholic

beverages, as evidence of what it contends are increased costs

associated with catering events outside of Miami - Dade County.

4/ MB DoralÓs Petition alleges that the OPS Rule is invalid

pursuant to section 120.52(8)(b) throug h (e), as well as the

Ðflush - leftÑ paragraph.

5/ Section 565.03(3) states:

Distributors authorized to do business under

the Beverage Law, unless otherwise provided,

shall pay a state license tax of $4,000 for

each and every establishment or branch they

may operate or conduct in the state.

However, in counties having a population of

15,000 or less according to the latest state

or federal census, the state license tax for

a restricted license shall be $1,000, but the

holder of such a license shall be per mitted

to sell only to vendors and distributors

licensed in the same county, and such license

shall contain such restrictions. In such

counties, licenses without such restrictions

may be obtained as in other counties, but the

tax for a license without suc h restrictions

shall be the same as in other counties.

Warehouses of a licensed distributor used

solely for storage and located in the county

in which the license is issued to such

distributor shall not be construed to be

separate establishments or branch es.

6/ The Save the Manatee Club court held:

A rule that is used to implement or carry out

a directive will necessarily contain language

more detailed than that used in the directive

itself. Likewise, the use of the term

ÐinterpretÑ suggests that a rul e will be more

detailed than the applicable enabling

statute. There would be no need for

interpretation if all of the details were

contained in the statute itself.

Save the Manatee Club , 773 So. 2d at 599.

7/ Although raised in the Petition and the Joi nt Prehearing

Stipulation, MB Doral does not address, in its PFO , whether the

provision of the OPS Rule that prohibits DABT from issuing OPS

Permits Ðto a structure which is part of the residence or garage

of a licensee or an y employee of any licenses[]Ñ e xceeds DABTÓs

rulemaking authority, or enlarges, modifies, or contravenes

section 562.03 Regardless, the undersigned concludes, for the

reasons stated in paragraphs 29 through 36, that DABT did not

exceed its rulemaking authority, and the OPS Rule does no t

enlarge, modify, or contravene the specific provisions of the law

implemented, as to this provision of Florida Administrative Code

Rule 61A - 4.020(1).

8/ Section 563.065 states:

Nothing in the Beverage Law shall prohibit

licensed distributors of malt b everages from

charging different malt beverage prices

according to county, according to the branch

of a distributorÓs parent place of business ,

according to whether a vendor sells malt

beverages on premises or off premises, or

according to quantity sold, a s long as the

price differentials are filed in advance with

the Department of Business and Professional

Regulation as provided by rule. (Emphasis

add ed).

COPIES FURNISHED:

Louis J. Terminello, Esquire

Terminello & Terminello, P.A.

600 Brickell Avenue

M iami, Florida 33131

(eServed)

Daniel Johnathon McGinn, Esquire

Department of Business and Professional Regulation

Suite C452

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Alicia Bhambhani, Esquire

Department of Business and Professional Re gulation

2601 Blair Stone Road

Tallahassee, Florida 323 99

(eServed)

Michael Martinez, Esquire

Greenspoon Marder LLP

215 South Monroe Street , Suite 530

Tallahassee, Florida 323 01

(eServed)

Alison Parker, Deputy General Counsel

Office of the General Coun sel

Department of Business and Professional Regu l ation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Robin Smith, Deputy General Counsel

Office of the General Counsel

Department of Business and Professional Regu l ation

2601 Blair Stone R oad

Tallahassee, Florida 32399 - 2202

(eServed)

Tom Thomas, Deputy General Counsel

Office of the General Counsel

Department of Business and Professional Regu l ation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Halsey Beshears, Secretary

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedure s Committee

Room 680 , Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Program Administrator

Anya Grosenb a ugh

Florida Administrative Code and Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Sterling Whisenhunt, Acting Director

Division of Alcoholic Beverages and Tobacco

Department of Business and Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affe cted by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrat ive appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.