97-002228 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Manos, Inc., D/B/A Sea Port Status: Closed Recommended Order on Tuesday, August 29, 2000.

Summary: SRX special restaurant licensee refused access to inspectors and failed to produce records to demonstrate compliance with 51% non-liquor sales rule. Violations of Rule 61A-3.0141, F.A.C., and Section 562.41(3), F.S., merit civil fines of $1,250.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 97-2228

)

MANOS, INC., d/b/a SEA PORT, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, Mary Clark,

conducted a formal hearing in the above-styled case on May 24,

2000, in Viera, Brevard County, Florida. The hearing was also

conducted by telephone on June 13, 2000, for testimony of a

single witness.

APPEARANCES

For Petitioner: James D. Martin, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Allen C. D. Scott, II, Esquire

Scott & Sheppard, P.A.

101 Orange Street

St. Augustine, Florida 32084

STATEMENT OF THE ISSUES

The issues for resolution in this proceeding are whether the

Respondent committed the violations alleged in an administrative

complaint, as amended, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

On March 31, 1997, Petitioner, Division of Alcoholic

Beverages and Tobacco (DABT) issued its 2-count administrative

complaint alleging that Respondent, Mano's Inc., doing business

as Seaport ( Mano's):

(a) on or about September 30, 1996 - February 28, 1997,

failed to maintain separate records of all purchases and gross

sales of all alcoholic beverages and non-alcoholic beverages and

food contrary to Section 61A-3.0141, Florida Administrative Code,

and Sections 561.20(2)(a)4. and 561.29, Florida Statutes; and

(b) on or about March 8, 1997, refused to admit authorized

law enforcement officers and Division employees into licensed

premises while in the lawful performance of their duties,

contrary to Sections 562.41(3) and 561.29, Florida Statutes.

After Respondent's request for formal evidentiary hearing,

DABT referred the case to the Division of Administrative Hearings

where it was assigned to an Administrative Law Judge and was

scheduled for hearing. With leave of the Administrative Law

Judge and without objection by Respondent, DABT amended its

Administrative Complaint in November 1997 to clarify Count 2 and

to add a third Count. Count 2 now alleges that on March 8, 1997,

Mano's unlawfully prohibited a Division employee from performing

an inspection of the licensed premises, pursuant to Section

561.07, Florida Statutes, contrary to and in violation of Section

562.41(3), within Section 561.29(1), Florida Statutes.

Count 3 alleges that on or about March 8, 1997, Mano's

unlawfully obstructed a law enforcement officer in the

performance of his duties, contrary to and in violation of

Sections 370.021(5)(a), 843.02, and 561.29(1), Florida Statutes.

After several continuances and abeyance the hearing

proceeded as described above.

At the hearing, DABT presented the testimony of Sam Brewer

and Josh Hooper and offered six exhibits, received in evidence as

Petitioner's Exhibits Nos. 1-6.

Respondent presented the testimony of its president and sole

corporate officer, Raymond Cascella; David Sargeant; and Jane

Davis. Respondent offered 11 exhibits, all of which have been

received in evidence with the exception of Exhibit No. 8,

rejected and marked for identification only, as irrelevant.

Respondent's Exhibit No. 11 was taken under advisement at the

hearing. This is videotape from surveillance cameras at Mano's

from March 8, 1997, when DABT and other law enforcement officers

inspected the premises. The audio, and sometimes the video,

quality of the tape is poor but the Administrative Law Judge has

viewed it in its entirety and has considered it in the

preparation of this Recommended Order.

The parties also stipulated to Joint Exhibit No. 1, a letter

from Respondent's counsel to Josh Hooper, DABT regional director

in Brevard County.

The Transcript was filed on June 13 and July 3, 2000. The

parties' Proposed Recommended Orders were filed on July 31, 2000.

FINDINGS OF FACT

1. Respondent, Mano's, Inc., doing business as Sea Port

(Mano's) is now and has at all relevant times been a licensee of

the Division of Alcoholic Beverages and Tobacco (DABT) holding a

4 COP SRX special restaurant license. Mano's operates a

restaurant and lounge located in Cape Canaveral, Brevard County,

Florida.

2. Mano's license requires that at least 51 of its gross

retail sales be served from food and non-alcoholic beverages.

Mano's license application clearly acknowledges this and the

requirement that it maintain a bona fide restaurant with 4000

square feet of floor space and seating for 200 patrons.

3. Raymond Joseph Cascella is the president, sole corporate

officer, and sole stockholder of Mano's. Attached to his license

application dated May 14, 1991, is his sketch of the licensed

premises. The instructions on the application provide that the

sketch must include all specific areas which are part of the

premises sought to be licensed. The sketch provided by Mr.

Cascella includes the bar, restrooms, dining rooms, and kitchen.

4. On September 10, 1996, Sam Brewer, then a special agent

with DABT, conducted an inspection of Mano's licensed premises.

Special Agent Brewer found several violations on his visit; he

spoke with Mr. Cascella and gave Mr. Cascella a copy of the

inspection report and three notices related to the violations.

5. The violations observed and noted by Special Agent

Brewer were improper display of the facility license (in the

office rather than conspicuously displayed), insufficient seating

(160 seats rather than 200), and failure to maintain sales

receipts or other records to document that the 51 percent non-

alcoholic beverages and food requirement was met.

6. One of the notices provided to Mr. Cascella stated that

no later than September 25, 1996, he must bring to the Rockledge

DABT office records pertaining to total sales of food, non-

alcoholic, and alcoholic beverages for the period June 1, 1996,

through September 10, 1996.

7. Mr. Cascella came to the Rockledge office on

September 25, 1996, but the records he brought were computerized

summaries of credit card transactions and did not reflect a

break-out of sales of alcoholic beverages and non-alcoholic

beverages and food. There were no guest receipts nor register

tapes (also called "z-tapes") provided.

8. On September 30, 1996, Special Agency Brewer issued

another notice to Mano's. The notice, signed by Mr. Cascella,

directs the licensee to produce these records to the Rockledge

DABT district office no later than October 15, 1996, or

administrative changes would be brought against the alcoholic

beverage license:

1) All records relating to gross retail

sales of food and non-A/B and all records

relating to gross retail sales of A/B

(including source documents) (i.e., Z-tapes,

waitress order checks), for the period

June 1, 1996 thru September 10, 1996.

2) All records relating to purchases of food

and non-A/B and all records relating to

purchases of A/B, for the period June 1,

1996, thru September 10, 1996. (Petitioner's

Exhibit No. 4)

9. Mr. Cascella returned to the Rockledge office on October

15, 1996, with a box of papers. These papers were records of

purchases made from different vendors but there were no records

of any retail sales by Mano's.

10. In spite of letters to Special Agent Brewer from Mano's

counsel promising full compliance and in spite of Mr. Cascella's

several efforts, Mr. Cascella never produced all of the required

records for the relevant period (June 1, 1996 through

September 10, 1996).

11. At the hearing in this proceeding Mr. Cascella

submitted a large plastic ziplock bag stuffed with register

receipts from June 1, 1996, through September 10, 1996. Mr.

Cascella thought he had shown these or copies to Special Agent

Brewer but was not sure. Mr. Cascella also conceded that the

tapes were not complete, as they were only from the cash register

at the bar, and none were from the register in the restaurant.

Thus, the receipts reflected mostly liquor sales for each day,

and very little food. (Transcript pp. 231-238)

12. On February 7, 1997, Special Agent Brewer sent an

official notice to Mano's informing the licensee that DABT

intended to file administrative charges for failure to produce

records as requested, in violation of Section 561.29(1)(j),

Florida Statutes.

13. On March 8, 1997, Special Agent Brewer, two other DABT

agents, and several officers or agents from other law enforcement

agencies appeared at Mano's licensed premises in Cape Canaveral.

Mr. Cascella, who lived upstairs with his wife, was summoned by

the bartender and came downstairs immediately.

14. Mr. Cascella was very upset and told the officers that

they had no right to be there without a search warrant.

Throughout the inspection he remained very vocal and

argumentative. Special Agent Brewer was looking for food items

as part of his inspection and he requested that Mr. Cascella

grant access to a locked area within the kitchen, a walk-in

cooler or freezer. When Mr. Cascella refused, Special Agent

Brewer informed him that the refusal was a violation of the law

and he could be arrested.

15. Eventually during the inspection the agents gained

access to the area only after they cut the lock. Mr. Cascella

was arrested for his refusal to stop interfering with the

inspection and for his persistent and obstreperous comments

during the agents' questioning of the bartender.

16. Between October 1996, and December 1996, Jane Davis, an

auditor with DABT conducted a surcharge audit of Mano's for the

period July 1, 1993, through June 30, 1996. Mr. Cascella was

cooperative and had the records available for Ms. Davis' review.

She did not conduct an SRX audit requested by Special Agent

Brewer, as she was being transferred from Rockledge to Lakeland

and she could not take on the task of reviewing all of the Z-

tapes for a long period of time. The surcharge audit Ms. Davis

conducted was for a purpose different from the determination of

percentage of alcohol sales and non-alcohol sales; her audit

period, and consequently the records she reviewed, were not the

June 1, 1996, through September 10, 1996, period addressed in the

notices of violation issued by Special Agent Brewer.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

18. In license discipline cases such as this the agency

must prove the allegations of its complaint by evidence that is

clear and convincing. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne, Stern

& Company , 670 So. 2d 932 (Fla. 1996).

19. Section 561.20(2)(a)4, Florida Statutes, requires that

special restaurant licensees must derive at least 51 percent of

their gross revenue from the sale of food and non-alcoholic

beverages.

20. Rule 61A-3.0141, Florida Administrative Code, provides

in pertinent part:

(1) Special restaurant licenses in excess of

the quota limitation set forth in subsection

561.20(1), Florida Statutes, shall be issued

to otherwise qualified applicants for

establishments that are bona fide restaurants

engaged primarily in the service of food and

non-alcoholic beverages, if they qualify as

special restaurant licensees as set forth in

subsection (2) of this rule. Special

restaurant licensees must continually comply

with each and every requirement of both

subsections (2) and (3) of this rule as a

condition of holding a license. Qualifying

restaurants must meet the requirements of

this rule in addition to any other

requirements of the beverage law. The suffix

"SRX" shall be made a part of the license

numbers of all such licenses issued after

January 1, 1958.

(2) Special restaurant licenses shall be

issued only to applicants for licenses in

restaurants meeting the criteria set forth

herein.

* * *

(3) Qualifying restaurants receiving a

special restaurant license after April 18,

1972 must, in addition to continuing to

comply with the requirements set forth for

initial licensure, also maintain the required

percentage, as set forth in paragraph (a) or

(b) below, on a bi-monthly basis.

Additionally, qualifying restaurants must

meet at all times the following operating

requirements:

(a) At least 51 percent of total gross

revenues must come from retail sale on the

licensed premises of food and non-alcoholic

beverages. Proceeds of catering sales shall

not be included in the calculation of total

gross revenues. Catering sales include food

or non-alcoholic beverage sales prepared by

the licensee on the licensed premises for

service by the licensee outside the licensed

premises.

1. Qualifying restaurants must 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.

2. The records required in subparagraph

(3)(a)1. of this rule must be maintained on

the premises, or other designated place

approved in writing by the division for a

period of 3 years and shall be made available

within 14 days upon demand by an officer of

the division. The division shall approve

written requests to maintain the

aforementioned records off the premises when

the place to be designated is the business

office, open 8 hours per work day, of a

corporate officer, attorney, or accountant;

the place to be designated is located in the

State of Florida; and the place to be

designated is precisely identified by

complete mailing address.

3. Since the burden is on the holder of the

special restaurant license to demonstrate

compliance with the requirements for the

license, the records required to be kept

shall be legible, clear, and in the English

language.

4. The required percentage shall be computed

by adding all gross sales of food, non-

alcoholic beverages, and alcoholic beverages

and thereafter dividing that sum into the

total of the gross sales of food plus non-

alcoholic beverages.

* * *

(d) Full course meals must be available at

all times when the restaurant is serving

alcoholic beverages except alcoholic beverage

service may continue until food service is

completed to the final seating of restaurant

patrons for full course meals. A full course

meal as required by this rule must include

the following:

1. Salad or vegetable;

2. Entree;

3. Beverage; and

4. Bread.

(e) For purposes of determining required

percentages, an alcoholic beverage means the

retail price of a serving of beer, wine,

straight distilled spirits, or a mixed drink.

21. DABT met its burden of proving the violation of the

above-described records requirement. The requirement that

records be made available within 14 days on demand rebuts

Respondent's argument that the rule only requires the records be

maintained, not that they be produced. Respondent had ample

notice of the period for which the records were sought, June 1

through September 10, 1996. The period referenced in the

administrative complaint, September 30, 1996, to February 28,

1997, plainly establishes the period during which Respondent

failed to make all of the requested records available.

Specifically, Respondent failed to produce register receipts for

the restaurant register or other receipts adequate to compute

compliance with the 51 percent rule.

22. Subsections 562.41(3) and (5), Florida Statutes,

provide:

(3) Any owner of such premises or person

having the agency, superintendency, or

possession of same, who refuses to admit such

officer or to suffer her or him to examine

such beverages, shall be guilty of a

misdemeanor of the second degree, punishable

as provided in s. 775.082 or s. 775.083.

* * *

(5) Licensees, by the acceptance of their

license, agree that their places of business

shall always be subject to be inspected and

searched without search warrants by the

authorized employees of the division and also

by sheriffs, deputy sheriffs, and police

officers during business hours or at any

other time such premises are occupied by the

licensee or other persons.

23. By Mr. Cascella's refusal of DABT's access to the

cooler or freezer on his premises, Respondent violated Section

562.41(3), Florida Statutes. As argued by counsel for

Respondent, with support from the cases cited in his Proposed

Recommended Order, the warrentless search must still be

reasonable and in this case it was. Whether the area was a

cooler or a freezer with no alcohol stored within, DABT's agents

were entitled to access as part of their inspection to determine

compliance with, among other requirements, the 51 percent rule.

For example, the quantity of food stored on the premises could

reveal whether or not an SRX license is capable of serving full-

course meals.

24. Counsel for DABT did not address the elements of the

third alleged violation in his Proposed Order and that allegation

is deemed abandoned. Moreover, Mr. Cascella's resistance was

merely verbal and obnoxious and was insufficient to establish a

violation of Section 843.02, Florida Statutes, the misdemeanor

offense of resisting an officer without violence. See In the

Interest of R.S. v. State , 531 So. 2d 1026 (Fla. 1st DCA 1988);

L.A.T. v. State 650 So. 2d 214 (Fla. 3d DCA 1995); and B.L.M. v.

State , 684 So. 2d 853 (Fla. 5th DCA 1996).

25. Section 561.29(3), Florida Statutes, provides:

(3) The division may impose a civil penalty

against a licensee for any violation

mentioned in the Beverage Law, or any rule

issued pursuant thereto, not to exceed $1,000

for violations arising out of a single

transaction. If the licensee fails to pay

the civil penalty, his or her license shall

be suspended for such period of time as the

division may specify. The funds so collected

as civil penalties shall be deposited in the

state General Revenue Fund.

The penalty of $1,250 suggested by Petitioner is within the

penalty guidelines of Rule 61A-2.022, Florida Administrative

Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the agency enter its final order finding

that Respondent violated Rule 61A-3.0141, Florida Administrative

Code, and Section 562.41(3), Florida Statutes, and imposing civil

penalties of $250 and $1,000, respectively, for a total of

$1,250.

DONE AND ENTERED this 29th day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August, 2000.

COPIES FURNISHED:

James D. Martin, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Allen C. D. Scott, II, Esquire

Scott & Sheppard, P.A.

101 Orange Street

St. Augustine, Florida 32084

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Joseph Martelli, Director

Division of Alcoholic Beverages and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.