Fort Walton Beach Council agenda — 04-28-09 regular — reading text

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. a) Except in the counties of Alachua, Brevard, Broward, Citrus, for premises with a cocktail lounge or open bar, Dade, Pasco, St. Lucie, Walton, Martin, Nassau, Okaloosa, Okeechobee, Osceola, Hendry, Highlands, Hillsborough, Indian River, Lake, and Orange County with respect to Orlando, Winter Park, and Maitland, each of the above being controlled by general law or special act, a qualifying restaurant must have a service area occupying 2, 500 or more square feet of floor space.  1. The required square footage shall not include any space contained in an uncovered or not permanently covered area adjacent to the premises because food service is not available at all times. 2. The required square footage shall be contiguous and under the management and control of a single licensed restaurant establishment. 3. Kitchens, food service areas, pantries, storage rooms, offices, and toilets, used exclusively in the operation of the restaurant shall be included in the required square footage. Measurements will be taken from the outside of qualifying structures or areas. b) Except in the counties of Alachua, Brevard, Broward, Dade, Hendry, Highlands, Walton, Hillsborough, Indian River, Pasco, Martin, Nassau, Okaloosa, St. Lucie, Osceola, and Orange County with respect to Orlando, Winter Park, and Maitland, each of the above being controlled by general law or special act, a qualifying restaurant must have accommodations for the service and seating of 150 or more patrons at tables at one time. 1. The tables and seating must be located within the floor space provided for in paragraph (2)( a) of this rule. 2. The tables must be of adequate size to accommodate the service of full course meals in accordance with the number of chairs or other seating facilities provided at the table. 3. Seating at counters used to serve food shall be included in the minimum seating requirements. c) Except in those counties and municipalities controlled by general law or special act, as set forth in paragraph ( 2)( b) of this rule, a qualifying restaurant must have all equipment for the service of 150 full course meals on the premises at one time. d) An applicant for an SRX license must either hold, or have applied for, the appropriate restaurant license issued by the Division of Hotels and Restaurants prior to issuance of the temporary SRX license. The restaurant must hold the appropriate restaurant license before it will be eligible for a permanent SRX license. e) A qualifying restaurant must comply with all fire safety laws relating to the operation of a restaurant. 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. b) Restaurants issued special restaurant licenses prior to April 18, 1972 but after September 1, 1969 shall be required to derive at least 30 percent of gross revenues from the sale of food and non -alcoholic beverages. c) Restaurants holding special restaurant licenses issued prior to September 1, 1969 are not required to derive any fixed amount of gross revenue from the sale of food and non -alcoholic beverages but must operate as a bona fide restaurant and meet the other requirements of this rule. 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. Florida 4) Establishments obtaining and operating under a temporary initial license as provided in Section 561. 181( 2), Statutes, or under a temporary transfer license as provided in Section 561. 331, Florida Statutes, shall be investigated by the division during said operation and prior to issuance of a permanent license to insure that the establishment is a bona fide restaurant primarily engaged in food and non -alcoholic beverage sales and service and that the requirements of this rule have been met. The failure of an establishment to operate as a bona fide restaurant during said period of time shall result in denial of the application for a special restaurant license. An application for a special restaurant license from an establishment which has had a prior application for a special restaurant license denied during the previous 30 -day period will be accepted by the division. The recent denial of the prior  application will, however, be deemed a disclosure on the face of the subsequent application of a reason to deny such subsequent application. Accordingly, in such cases, no temporary initial license will be issued for a period of 30 days to allow the division inspectors to ensure that the reason to deny has been abated. Specific Authority 561. 11 FS. Law Implemented 561. 20(2)( a)4. FS. History — New 8- 23 -90, Amended 5- 19-91, 10-22- 91, Formerly 7A- 3. 0141. 61A -3.017 Management, Operation and Responsibility Licensed Premises. 1) All business conducted on the licensed premises under the beverage law shall be managed and controlled at all times by the licensee or managed by his authorized employee or employees. 2) The term " employee, " as used herein, shall mean a person who receives a salary or wages for services performed, for and in behalf of a licensee, under the exclusive control and direction of the latter. It do not include a lessee, an independent contractor or any person employed by collateral agreement to independently manage and control the said business on the licensed premises. 3) Indicia for determining whether a purported managerial contract conforms to this rule are as follows: a) The licensee must retain control of the operation of the business. b) Salary or wages must be paid by the licensee to the manager or employee for conduct of the business under the ultimate direction of the former. c) Social Security and Workers' Compensation coverage must be paid and accounted for by the licensee. d) The licensee must be responsible for all debts of the business and legally entitled to all incomes therefrom. All alcoholic beverages for the business must be purchased in the licensee's behalf and under the license covering the premises. e) The licensed premises must be operated for all purposes in the name of the licensee or his legal trade name as distinguished from the name or names of any other person or persons. f)The licensee must be responsible for all conduct of the business and the license involved must be subject to suspension and revocation for any illegal acts committed on the premises or under the beverage law. g) Complete ultimate authority for the hiring and dismissal of all employees on the premises must rest with the licensee. h) The licensee must be primarily responsible for the rent, utilities and insurance covering the premises, and all other incidental expenses occasioned in the operation of the business. i) The licensee must remain at all times responsible for the maintenance and proper operation of equipment on the premises. 0) The contract must contemplate the formation of the relationship of principal and agent between the licensee and the employee within the limits defined and implied by the contract. k) A contract wherein the so- called employee or manager pays a fixed sum to the licensee whether from net profits or not would not create the employer -employee relationship as contemplated by the rule. 4) Any agreement woven in such language so as to clothe or disguise the true character of a contract either as a lease or a managerial contract will be shorn in order to effect the intent and purpose of the law and rule in this regard. The Pole Star which will guide the Division in determining whether or not a purported agreement is a bona fide managerial contract as distinguished from a lease will depend upon who has ultimate over -all control and direction of the licensed premises under the terms of the agreement. 5) All agreements concerning ownership or operation of an alcoholic beverage license shall be attached to and submitted with each new or transfer application for a license, including, but not limited to, management agreements, options to purchase, and retailer franchise agreements. Any such agreements coming into existence following the issuance of a new or transfer license shall be submitted to the Division within ten ( 10) days of execution. Specific Authority 561. 11 FS. Law Implemented 561. 17(1), 561. 29( 1), 562. 13 FS. History — Formerly 12- 19 -74, Amended 1 -3 -76, Formerly 7A -3. 17,