98-001791 Division Of Alcoholic Beverages And Tobacco vs. Jon Phillip Gustafson, D/B/A Jon`s Bar And Grill Status: Closed Recommended Order on Thursday, August 6, 1998.

Summary: Licensee, who failed to maintain separate records of all purchases and sales of alcoholic and non-alcoholic beverages and food, should have license revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 98-1791

)

JON PHILLIP GUSTAFSON )

d/b/a JON'S BAR and GRILL, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding

on June 17, 1998, in Orlando, Florida, before Daniel Manry,

Administrative Law Judge, Division of Administrative Hearings.

The parties, witnesses, and court reporter attended the hearing

in Orlando. The undersigned participated by videoconference from

Tallahassee, Florida.

APPEARANCES

For the Petitioner: George G. Lewis

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For the Respondent: Jon Phillip Gustafson, pro se

956 Lake Ashby Road

New Smyrna, Florida 32069

STATEMENT OF THE ISSUE

The issue presented is whether Respondent failed to maintain

separate records of purchases and gross sales of all alcoholic

and non-alcoholic beverages and food in violation of

Section 561.20, Florida Statutes, and Florida Administrative Code

Rule 61A-3.0141, and if so, what penalty, if any, is appropriate.

(All Chapter and Section references are to Florida Statutes

(1997) unless otherwise stated. Unless otherwise stated, all

references to rules are to rules promulgated in the Florida

Administrative Code in effect of the date of this Recommended

Order).

PRELIMINARY STATEMENT

P etitioner filed an Administrative Action against Respondent

on August 12, 1997. Respondent timely requested an

administrative hearing.

At the hearing, Petitioner presented the testimony of one

witness and offered two exhibits for admission in evidence.

Respondent testified on his own behalf, called no other

witnesses, and submitted one exhibit for admission in evidence.

The identity of one witness and exhibits, and any rulings

regarding each, are set forth in the record of the hearing.

Neither party requested a transcript.

Petitioner timely filed its proposed recommended order

("PRO") on June 27, 1998. Respondent did not file a PRO.

FINDINGS OF FACT

1. Respondent holds license number 69-02639, series 4COP

SRX. An SRX license authorizes Respondent to sell alcoholic

beverages on the premises of Jon's Bar & Grill, located at

2485 N. Highway 17-92, Lake Monroe, Florida ("the licensed

premises").

2. Persons issued "SRX" licenses must meet certain

statutory requirements to ensure that they are operating bona

fide restaurants. Among other requirements, Respondent must

maintain separate records of all purchases and gross sales of all

alcoholic and non-alcoholic beverages and food. Respondent's

license application specifically informed Respondent that he must

meet the specific requirements of this type of license.

3. On March 17, 1997, Petitioner's Special Agent Richard

Hurlburt met with Respondent for the purpose of conducting an SRX

inspection to determine Respondent's compliance with SRX license

requirements. An SRX inspection includes an audit of the

licensee's records to determine the percentage of gross revenue

derived from the sale of food and non-alcoholic beverages.

4. Respondent was unable to produce the records he is

statutorily required to maintain. Agent Hurlburt issued a notice

to produce records relating to the operation of the restaurant.

5. On August 12, 1997, Petitioner issued a notice of

administrative complaint against Respondent for failure to

maintain separate records of all purchases and gross sales for

non-alcoholic and alcoholic beverages and food in violation of

Section 561.20. Respondent has not produced the records he is

statutorily required to maintain.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the subject matter and parties in this proceeding. The

parties were duly notified for the administrative hearing.

7. The burden of proof is on Petitioner. Petitioner must

show. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

8. In relevant part, Section 561.20(2)(a)4, provides that

Respondent must derive:

. . . 51 percent of its gross revenue

from the sale of food and nonalcoholic

beverages. . . .

9. Rule 61A-3.0141 provides in relevant part:

(3)(a) At least 51 percent of total

gross revenues must come from retail sale

on the licensed premises of food and non-

alcoholic beverages. . . .

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. . . .

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.

10. Petitioner satisfied its burden of proof. Petitioner

showed by clear and convincing evidence that Respondent violated

Section 561.20(2)(a)4, and Rule 61A-3.0141 by failing to maintain

separate records for purchases and gross retail sales of food and

non-alcoholic beverages and purchases and gross retail sales of

alcoholic beverages.

11. Section 561.29, provides in relevant part:

(1) The division is given full power and

authority to revoke or suspend the

license of any person holding a license

under the Beverage Law, when it is

determined or found by the division upon

sufficient case appearing of:

[a] Violation . . . of any . . .

license requirements of special licenses

issued under Section 561.20. . . .

11. Florida Administrative Code R.61A-2.022 provides the

penalty guidelines for violations, Rule 61A-2.022 provides that

for a violation of section 561.20 failure to meet the minimum

qualifications of a special license the penalty is:

. . . a 1,000 civil penalty and

revocation of the license without

prejudice to obtain any other type

license, but with prejudice to obtain the

same type of special license for 5 years.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order imposing a

$1,000 civil penalty against Respondent and revoking alcoholic

beverage license no. 69-02639, series 4COP SRX, without prejudice

to obtain any other type license, but with prejudice to obtain

another SRX special license for 5 years from date of the Final

Order.

DONE AND ENTERED this 6th day of August, 1998, in

Tallahassee, Leon county, Tallahassee, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August, 1998.

COPIES FURNISHED:

Richard Boyd, Director

Division of Alcoholic Beverages

and Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

George Lewis, Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe street

Tallahassee, Florida 32399

Jon Gustafson, pro se

956 Lake Ashby Road

New Smyrna, Florida 32069

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.