EDGAR HTML
FORM 10-K
For the fiscal year ended October 1, 2022
For the transition period from ____________ to ____________
Commission File Number 001-06836
FLANIGAN'S ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
(Address of Principal Executive Offices) (Zip Code)
(954) 377-1961 (Registrant's Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading symbol(s) Name of each exchange on which registered
Common Stock, $0.10 par value BDL NYSE AMERICAN
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ☐ Accelerated filer ☐ Non-accelerated filer ☐
Smaller reporting company ☒ Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its annual report. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes ☐ No☒
As of April 1, 2022, the last business day of the registrant’s most recently completed second fiscal quarter, the aggregate market value of the voting stock held by non-affiliates of the registrant was $28,580,000 (based on the closing price of the common stock as reported on the NYSE AMERICAN of $33.72 per share).
There were 1,858,647 shares of the Registrant's Common Stock, $0.10 par value, outstanding as of January 17, 2023.
DOCUMENTS INCORPORATED BY REFERENCE
Information required by Part III (Items 10, 11, 12, 13 and 14) hereof is incorporated by reference to portions of the Registrant’s Proxy Statement for the 2023 Annual Meeting of Shareholders which will be filed with the Securities and Exchange Commission no later than 120 days after the end of the registrant’s fiscal year covered by this report.
FLANIGAN'S ENTERPRISES, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
PART I
Item 1 Business 1
Item 1A Risk Factors 15
Item 1B Unresolved Staff Comments 29
Item 2 Properties 29
Item 3 Legal Proceedings 39
Item 4 Mine Safety Disclosures 39
PART II
Item 6 Reserved 39
Item 7A Quantitative and Qualitative Disclosures About Market Risk 52
Item 8 Financial Statements and Supplementary Data 53
Item 9A Controls and Procedures 53
Item 9B Other Information 54
Item 9C Disclosure Regarding Foreign Jurisdictions that Prevent Inspections 54
PART III
Item 10 Directors, Executive Officers and Corporate Governance 54
Item 11 Executive Compensation 54
Item 14 Principal Accountant Fees and Services 54
PART IV
Item 15 Exhibits and Financial Statement Schedules 54
SIGNATURES 59
EXHIBIT INDEX
LIST XBRL DOCUMENTS
Table of Contents
As used in this Annual Report on Form 10-K, the
terms “we,” “us,” “our,” the “Company” and “Flanigan’s” mean Flanigan's
Enterprises, Inc. and its subsidiaries (unless the context indicates a different meaning).
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This annual report, including,
without limitation, statements under the heading “Management’s Discussion and Analysis of Financial Condition and Results
of Operations,” includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended
(“Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (“Exchange Act”). These
forward-looking statements can be identified by the use of forward-looking terminology, including the words “believes,” “estimates,”
“anticipates,” “expects,” “intends,” “plans,” “may,” “will,” “potential,”
“projects,” “predicts,” “continue,” or “should,” “could”, “may”,
“might”, “will” and “would” or, in each case, their negative or other variations or comparable terminology.
There can be no assurance that actual results will not materially differ from expectations. Such statements include, but are not limited
to, any statements relating to the future effects of the COVID 19 pandemic, the general expansion of our business and other statements
which are not statements of current or historical facts.
The forward-looking statements
contained in this annual report are based on our current expectations and beliefs concerning future developments and their potential effects
on us. Future developments affecting us may not be those that we have anticipated. These forward-looking statements involve a number of
risks, uncertainties (some of which are beyond our control) and other assumptions that may cause actual results or performance to be materially
different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited
to, those factors described under the heading “Risk Factors.” Should one or more of these risks or uncertainties materialize,
or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking
statements. We caution readers not to place undue reliance on any forward-looking statements, which speak only as of the dates on which
they are made. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information,
future events or otherwise, except as may be required under applicable securities laws. These risks and others described under “Risk
Factors” may not be exhaustive.
By their nature, forward-looking
statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the
future. We caution you that forward-looking statements are not guarantees of future performance and that our actual results of operations,
financial condition and liquidity, and developments in the industry in which we operate may differ materially from those made in or suggested
by the forward-looking statements contained in this annual report. In addition, even if our results of operations, financial condition
and liquidity, and developments in the industry in which we operate are consistent with the forward-looking statements contained in this
annual report, those results or developments may not be indicative of results or developments in subsequent periods.
Table of Contents
PART I
ITEM 1. BUSINESS
General
As of October 1, 2022,
Flanigan’s Enterprises, Inc., a Florida corporation, together with its subsidiaries (“we”, “our”, “ours”
and “us” as the context requires), (i) operates 30 units, consisting of restaurants, package liquor stores, combination restaurant/package
liquor stores and a sports bar that we either own or have operational control over and partial ownership in; and franchises an additional
five units, consisting of two restaurants (one of which we operate) and three combination restaurant/package liquor stores. The table
below provides information concerning the type (i.e. restaurant, sports bar, package liquor store or combination restaurant/package liquor
store) and ownership of the units (i.e. whether (i) we own 100% of the unit; (ii) the unit is owned by a limited partnership of which
we are the sole general partner and/or have invested in; or (iii) the unit is franchised by us), as of October 1, 2022 and as compared
to October 2, 2021. With the exception of “The Whale’s Rib”, a restaurant we operate but do not own, and “Brendan’s
Sports Pub” a restaurant/bar we own, all of the restaurants operate under our service marks “Flanigan’s Seafood Bar
and Grill” or “Flanigan’s” and all of the package liquor stores operate under our service marks “Big Daddy’s
Liquors” or “Big Daddy’s Wine & Liquors”.
TYPES OF UNITS FISCAL YEAR 2022 FISCAL YEAR 2021
Company Owned:
Combination package liquor store and restaurant 3 3 (1)
Restaurant only, including sports bar 8 7 (2)
Package liquor store only 7 7
Company Managed Restaurants Only:
Limited partnerships 10 8 (3)
Franchise 1 1
Unrelated Third Party 1 1
Total Company Owned/Operated Units 30 27
Franchised Units 5 5 (4)
____________________
Notes:
(1) During the first quarter of our fiscal
year 2019, our combination package liquor store and restaurant located at 2505 N. University Drive, Hollywood, Florida (Store #19), was
damaged by a fire which has caused it to be closed since the first quarter of our fiscal year 2019. Subsequent to our fiscal year ended
October 1, 2022, we opened our newly built stand-alone package liquor store on this site replacing our package liquor store destroyed
by fire and previously operating here, We are constructing a stand-alone restaurant building on this site (adjacent to the package liquor
store), replacing our restaurant destroyed by fire and previously operating here. We do not believe this restaurant will be operational
during our fiscal year 2023.
(2) During the third quarter of our fiscal
year 2022, we entered into a new lease for the business premises and purchased the assets of a restaurant/bar known as “Brendan’s
Sports Pub” located at 868 S. Federal Highway, Pompano Beach, Florida and began operating the location under its current trade name.
(3) During the second quarter of our fiscal
year 2022, our limited partnership owned restaurant located at 14301 West Sunrise Boulevard, Sunrise, Florida (Store #85) opened for business
in March, 2022 (the “2022 Sunrise Restaurant”). Our limited partnership owned restaurant located at 11225 Miramar Parkway
#250, Miramar, Florida (Store #25) is expected to open for business in February, 2023 (the “2023 Miramar Restaurant”).
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(4) We operate a restaurant for one (1) franchisee.
This unit is included in the table both as a franchised restaurant, as well as a restaurant operated by us.
History
and Development of Our Business
We were incorporated in Florida
in 1959 and commenced operating as a chain of small cocktail lounges and package liquor stores throughout South Florida. By 1970, we had
established a chain of "Big Daddy's" lounges and package liquor stores between Vero Beach and Homestead, Florida. From 1970 to 1979, we
expanded our package liquor store and lounge operations throughout Florida and opened clubs in five other "Sun Belt" states. In 1975,
we discontinued most of our package store operations in Florida except in the South Florida areas of Miami-Dade, Broward, Palm Beach and
Monroe Counties. In 1982, we expanded our club operations into the Philadelphia, Pennsylvania area as general partner of several limited
partnerships we organized. In March 1985, we began franchising package liquor stores and lounges in the South Florida area. (See Note
14 to the consolidated financial statements and the discussion of franchised units on pages 3 and 4).
During our fiscal year 1987, we
began renovating our lounges to provide full restaurant food service, and subsequently renovated and added food service to most of our
lounges. Food sales currently represent approximately 78.8% and bar sales approximately 21.2% of our total restaurant sales.
Our package liquor stores emphasize
high volume business by providing customers with a wide variety of brand name and private label merchandise at discount prices. Our restaurants
and our new sports bar establishment offer alcoholic beverages and food service with abundant portions and reasonable prices, served in
a relaxed, friendly and casual atmosphere.
We conduct our operations directly
and through a number of limited partnerships and wholly owned subsidiaries, all of which are listed below. Our subsidiaries and the limited
partnerships, (except for the limited partnership, where we are not the general partner, which owns and operates our franchised restaurant
in Fort Lauderdale, Florida) are reported on a consolidated basis.
Entity State Of Organization Percentage Owned
Flanigan’s Management Services, Inc. Florida 100
Flanigan’s Enterprises, Inc. of Georgia Georgia 100
Flanigan’s Enterprises of N. Miami, Inc. Florida 100
CIC Investors #13, Limited Partnership Florida 45
CIC Investors #25, Limited Partnership Florida --
CIC Investors #50, Limited Partnership Florida 24
CIC Investors #55, Limited Partnership Florida 49
CIC Investors #60, Limited Partnership Florida 46
CIC Investors #65, Limited Partnership Florida 28
CIC Investors #70, Limited Partnership Florida 41
CIC Investors #80, Limited Partnership Florida 27
CIC Investors #85, Limited Partnership Florida 7
CIC Investors #90, Limited Partnership Florida 5
Josar Investments, LLC Florida 100
Flanigan’s Calusa Center, LLC Florida 100
Flanigan’s Fish Company, LLC Florida 51
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Package
Liquor Store Operations
Our package liquor stores emphasize
high volume business by providing customers with a wide selection of brand name and private label liquors, beers and wines while offering
competitive pricing by meeting the published sales prices of our competitors. We provide sales training to our package liquor store personnel.
The stores are open for business seven days a week from 9:00-10:00 a.m. to 9:00-10:00 p.m., depending upon demand and local law. Most
of our units have "night windows" with extended evening hours.
Company-Owned
Package Liquor Stores. As of our fiscal year ended October 1, 2022, we own and operate nine package liquor stores in the South
Florida area under the name “Big Daddy’s Liquors” or “Big Daddy’s Wine & Liquors”, two of which
are jointly operated with restaurants we own. Subsequent to our fiscal year ended October 1, 2022, we opened our stand-alone package liquor
store replacing our package liquor store destroyed by fire and previously operating in Hollywood, Florida.
Franchised
Package Liquor Stores. We currently franchise three package liquor stores, all in the South Florida area, all of which are operated
under the name “Big Daddy’s Liquors”. Of the three franchised package liquor stores, two are jointly operated with our
franchisee’s restaurant operations and one is operated in a freestanding building adjacent to the franchisee’s restaurant
operation. Two of the three franchised package liquor stores are franchised to members of the family of our Chairman of the Board, officers
and/or directors. We have not entered into a franchise arrangement for either a package liquor store, restaurant or combination package
liquor store/restaurant since 1986 and do not anticipate that we will do so in the foreseeable future.
Generally, a franchise agreement
with our franchisees for the operation of a package liquor store runs for the balance of the term of the franchisee’s lease for
the business premises, extended by the franchisee’s continued occupancy of the business premises thereafter, whether by lease or
ownership. In exchange for our providing management and related services to the franchisee and our granting the right to the franchisee
to use our service mark, “Big Daddy’s Liquors”, franchisees of package liquor stores pay us weekly in arrears, (i) a
royalty equal to approximately 1% of gross sales; plus (ii) an amount for advertising equal to between 1-1/2% to 3% of gross sales generated
at the stores depending upon our actual advertising costs.
For accounting purposes, we do
not consolidate the revenue and expenses of our franchisees’ operations with our revenue and expenses. Franchise royalties we receive
are recognized as revenue when sales are made by franchisees.
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Restaurant
Operations
Our restaurants provide a neighborhood
casual, standardized dining experience, typical of casual restaurant chains. The interior decor of the restaurants is nautical with numerous
fishing and boating pictures and decorations. The restaurants are designed to permit minor modifications without significant capital expenditures.
However, from time to time we are required to redesign and refurbish the restaurants at significant cost. Drink prices may vary between
locations to meet local conditions. Food prices are substantially standardized for all restaurants. The restaurants' hours of operation
are from 11:00 a.m. to 1:00-5:00 a.m. depending upon demand and local law.
Company-Owned
Restaurants. We own and operate nine restaurants all under our service mark “Flanigan’s Seafood Bar and Grill”
two of which are jointly operated with package liquor stores we own. We are constructing a stand-alone restaurant to be located in Hollywood,
Florida to replace our restaurant destroyed by fire. We do not believe this restaurant will be operational during our fiscal year 2023.
Franchised
Restaurants. We franchise five restaurants, all of which operate under our service mark “Flanigan’s Seafood Bar and
Grill”, two of which operate as a restaurant only, two of which operate jointly with a franchisee operated “Big Daddy’s
Liquors” package liquor store and one of which operates adjacent to a “Big Daddy’s Liquors” package liquor store.
Four of the five franchised restaurants are franchised to members of the family of or our Chairman of the Board, officers and/or directors.
We have not entered into a franchise arrangement for either a package liquor store, restaurant or combination package liquor store/restaurant
since 1986 and do not anticipate that we will do so in the foreseeable future.
Generally, a franchise agreement
with our franchisees for the operation of a restaurant runs for the balance of the term of the franchisee’s lease for the business
premises, extended by the franchisee’s continued occupancy of the business premises thereafter, whether by lease or ownership. In
exchange for our providing management and related services to the franchisee and our granting the right to the franchisee to use our service
mark, “Flanigan’s Seafood Bar and Grill”, our franchisees pay us weekly in arrears, (i) a royalty equal to approximately
3% of gross sales; plus (ii) an amount for advertising equal to between 1-1/2% to 3% of gross sales from the restaurants depending upon
our actual advertising costs.
For accounting purposes, we do
not consolidate the revenue and expenses of our franchisees’ operations with our revenue and expenses. Franchise royalties we receive
are recognized as revenue when sales are made by franchisees.
Restaurants Owned by Affiliated
Limited Partnerships
We have invested along with others,
(some of whom are or are affiliated with our officers and directors), in ten limited partnerships which currently own and operate nine
South Florida based restaurants under our service mark “Flanigan’s Seafood Bar and Grill”. An additional limited partnership
owned restaurant located at 11225 Miramar Parkway #250, Miramar, Florida (Store #25) is expected to open for business in February, 2023
(the “2023 Miramar Restaurant”). In addition to being a limited partner in these limited partnerships, we are the sole general
partner of nine of these limited partnerships and manage and control the operations of these restaurants. We are only a limited partner
in the limited partnership which owns and operates the restaurant located in Fort Lauderdale, Florida.
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Generally,
the terms of the limited partnership agreements provide that until the investors’ cash investment in a limited partnership (including
any cash invested by us) is returned in full, (available cash is distributed to the investors pro-rata based on ownership interest), the
limited partnership distributes to the investors annually out of available cash from the operation of the restaurant, as a return of capital,
up to 25% of the cash invested in the limited partnership, with no management fee paid to us. Any available cash in excess of the 25%
of the cash invested in the limited partnership distributed to the investors annually, is paid one-half (1⁄2) to us as a management
fee and one-half (1⁄2) to the investors, (including us), pro-rata based on the investors’ investment, as a return of capital.
Once all of the investors, (including us), have received, in full, amounts equal to their cash invested, an annual management fee becomes
payable to us equal to one-half (1⁄2) of cash available to be distributed, with the other one-half (1⁄2) of available cash distributed
to the investors (including us), as a profit distribution, pro-rata based on the investors’ investment. As of October 1, 2022, all
limited partnerships, with the exception of the 2022 Sunrise Restaurant, which opened for business in March, 2022 and the 2023 Miramar
Restaurant, which we anticipate will open for business in February, 2023, have returned all cash invested and we receive an annual management
fee equal to one-half (1⁄2) of the cash available for distribution by the limited partnership. In addition to receipt of distributable
amounts from the limited partnerships, we receive a fee equal to 3% of gross sales for use of the service mark “Flanigan’s
Seafood Bar and Grill” or “Flanigan’s”. In addition to our receipt of distributable amounts from the limited partnerships,
we receive a fee equal to 3% of gross sales for use of our “Flanigan’s Seafood Bar and Grill” or “Flanigan’s”
service marks, which use is authorized while we act as general partner only. This 3% fee is “earned” when sales are made by
the limited partnerships and is paid weekly, in arrears. Whether we will have any additional restaurants under development in the future
will be dependent, among other things, on market conditions and our ability to raise capital. We anticipate that we will continue to form
limited partnerships to raise funds to own and operate restaurants under our service marks “Flanigan’s Seafood Bar and Grill”
or “Flanigan’s” using the same or substantially similar financial arrangements.
Below is information on the eleven
limited partnerships which own and operate “Flanigan’s Seafood Bar and Grill” or “Flanigan’s” restaurants:
Surfside, Florida
We are the sole general partner
and a 46% limited partner in this limited partnership which has owned and operated a restaurant in Surfside, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since March 6, 1998. 33.3% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1⁄2) of the cash available for distribution by this limited
partnership.
Kendall, Florida
We are the sole general partner
and a 41% limited partner in this limited partnership which has owned and operated a restaurant in Kendall, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since April 4, 2000. 28.3% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1⁄2) of the cash available for distribution by this limited
partnership.
West Miami, Florida
We are the sole general partner
and a 27% limited partner in this limited partnership which has owned and operated a restaurant in West Miami, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since October 11, 2001. 32.7% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1⁄2) of the cash available for distribution by this limited
partnership.
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Wellington, Florida
We are the sole general partner
and a 28% limited partner in this limited partnership which has owned and operated a restaurant in Wellington, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since May 27, 2005. 22.4% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1/2) of the cash available for distribution by this limited partnership.
Pinecrest, Florida
We are the sole general partner
and 45% limited partner in this limited partnership which has owned and operated a restaurant in Pinecrest, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since August 14, 2006. 20.2% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1⁄2) of the cash available for distribution by this limited
partnership.
Pembroke Pines, Florida
We are the sole general partner
and a 24% limited partner in this limited partnership which has owned and operated a restaurant in Pembroke Pines, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since October 29, 2007. 23.8% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1⁄2) of the cash available for distribution by this limited
partnership.
Davie, Florida
We are the sole general partner
and a 49% limited partner in this limited partnership which has owned and operated a restaurant in Davie, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since July 28, 2008. 12.3% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1⁄2) of the cash available for distribution by this limited
partnership.
Miami, Florida
We are the sole general partner
and a 5% limited partner in this limited partnership which has owned and operated a restaurant in Miami, Florida under our “Flanigan’s
Seafood Bar and Grill” service mark since December 27, 2012. 26.8% of the remaining limited partnership interest is owned by persons
who are either our officers, directors or their family members. This limited partnership has returned to its investors all of their initial
cash invested and we receive an annual management fee equal to one-half (1⁄2) of the cash available for distribution by this limited
partnership.
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Sunrise, Florida
We are the sole general partner
and a 7% limited partner in this limited partnership which has owned and operated a restaurant in Sunrise, Florida under our “Flanigan’s”
service mark since March 20, 2022. 31.3% of the remaining limited partnership interest is owned by persons who are either our officers,
directors or their family members. As of the end of our fiscal year 2022, this limited partnership has returned to its investors approximately
2.0% of their initial cash invested.
Miramar, Florida
We are the sole general partner
in this limited partnership which is developing a restaurant in Miramar, Florida under our “Flanigan’s” service mark.
No units of limited partnership interest were purchased by the Company. 24.0% of the limited partnership interest is owned by persons
who are either our officers, directors or their family members. We anticipate that this new restaurant will commence operations in February,
2023.
Fort Lauderdale, Florida
A corporation owned by one of
our board members acts as sole general partner of a limited partnership which has owned and operated a restaurant in Fort Lauderdale,
Florida under our “Flanigan’s Seafood Bar and Grill” service mark since April 1, 1997. We have a 25% limited partnership
interest in this limited partnership. 31.9% of the remaining limited partnership interest is owned by persons who are either our officers,
directors or their family members. This limited partnership has returned to its investors all cash invested, but since we are not the
general partner of this limited partnership, we do not receive an annual management fee. We have a franchise arrangement with this limited
partnership and for accounting purposes, we do not consolidate the operations of this limited partnership into our operations.
Management Agreement for “The
Whale’s Rib” Restaurant
Since January 2006, we have managed
“The Whale’s Rib”, a casual dining restaurant located in Deerfield Beach, Florida, pursuant to a management agreement.
We paid $500,000 in exchange for our rights to manage this restaurant. The restaurant is owned by a third party unaffiliated with us.
In exchange for providing management, bookkeeping and related services, we receive one-half (1⁄2) of the net profit, if any, from the
operation of the restaurant. For our fiscal years ended October 1, 2022 and October 2, 2021, we generated $400,000 of revenue each fiscal
year from providing these management services.
Operations
and Management
We emphasize systematic operations
and control of all package liquor stores and restaurants regardless of whether we own, franchise or manage the unit. Each unit has its
own manager who is responsible for monitoring inventory levels, supervising sales personnel, food preparation and service in restaurants
and generally assuring that the unit is managed in accordance with our guidelines and procedures. We have in effect an incentive cash
bonus program for our managers and salespersons based upon various performance criteria. Our operations are supervised by supervisors,
who visit all Company, limited partnership and franchise owned units and the managed unit to provide on-site management and support. There
are three supervisors responsible for package liquor store operations and six supervisors responsible for restaurant operations.
All of our managers and salespersons
receive extensive training in sales techniques. We arrange for independent third parties, or "shoppers", to inspect each unit in order
to evaluate the unit's operations, including the handling of cash transactions.
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Purchasing and Inventory
The package liquor business requires
a constant substantial capital investment in inventory at the stores. Our inventory consists primarily of liquor and wine products and
as such, does not become excessive or obsolete that would require identifying and recording of the same. Liquor inventory purchased can
normally be returned only if defective or broken.
All of our purchases of liquor
inventory are made through our purchasing department from our corporate headquarters. The major portion of inventory is purchased under
individual purchase orders with licensed wholesalers and distributors who deliver the merchandise within one or two days of the placing
of an order. Frequently there is only one wholesaler in the immediate marketing area with an exclusive distributorship of certain liquor
product lines. Substantially all of our liquor inventory is shipped by the wholesalers or distributors directly to our stores. We significantly
increase our inventory prior to Christmas, New Year's Eve and other holidays. Under Florida law, we are required to pay for our liquor
purchases within ten days of delivery.
Negotiations with food suppliers
are conducted by our purchasing department at our corporate headquarters. We believe this ensures that the best quality and prices will
be available to each restaurant. Orders for food products are prepared by each restaurant's kitchen manager and reviewed by the restaurant's
general manager before orders are placed. Food is delivered by the supplier directly to each restaurant. Orders are placed several times
a week to ensure product freshness. Food inventory is primarily paid for monthly. We purchase food and other commodities for use in our
operations based on market prices established with our suppliers. Many of the food products purchased by us can be subject to price volatility
due to market supply and demand factors outside of our control. We mitigate the risk of supply shortages and obtain competitive prices
by utilizing multiple qualified suppliers for substantially all our food products.
We negotiate short and long term
agreements for certain of our principal food product requirements, depending on market conditions and expected demand. We evaluate the
possibility of entering into arrangements to assist us in managing risk and variability associated with the supply and demand of food
products.
In order to fix the cost and ensure
adequate supply of baby back ribs for our restaurants for calendar years 2022 and 2023, we entered into purchase agreements with our current
rib supplier, whereby we agreed to purchase approximately $10.4 million and $ 6.8 million of “2.25 & Down Baby Back Ribs”
(industry jargon for the weight range in which slabs of baby back ribs are sold) from this vendor during calendar years 2022 and 2023,
at prescribed costs, which we believe are competitive. The decrease in our cost of baby back ribs for calendar year 2023 compared to calendar
year 2022 is due to a decrease in market price.
While we anticipate purchasing
all of our rib supply from this vendor, we believe there are several other alternative vendors available, if needed.
Information
Technology
Our
restaurant and package liquor store point of sale and back-office systems provide information regarding daily sales, cash receipts, inventory,
food and beverage costs, labor costs and other controllable operating expenses. Our restaurants and package liquor stores offer online
ordering for to-go sales and our package liquor stores also offer delivery services by third-party vendors.
Restaurant
and package liquor store hardware and software support is provided by both our internal support services team as well as third-party vendors. Each
restaurant and package liquor store has a private high-speed wide area connection to send and receive critical business data as well as
to access web-based applications securely as well as a failover capability. All of our core and critical applications are backed
up to external data centers. To mitigate business interruptions, we utilize a data backup and replication infrastructure between
our onsite and external data centers, so all data is replicated nightly between the sites.
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We
require cybersecurity awareness training for all staff members with access to our cyber systems. We also maintain cyber risk insurance
coverage to further reduce our risk profile. Security of our financial data and other sensitive information remains a high priority
for us, led by our information technology department. In an effort to further secure our customers’ credit card information, we
employ an encryption and tokenization platform for all credit card transactions in our restaurants, ensuring no credit card data is stored
in our internal systems. We also transact business through online ordering for both our restaurants and package liquor stores through
third party vendors. (See Item 1A. Risk Factors and the discussion of cybersecurity risks on page 28.)
Government Regulation
Our operations are subject to
various federal, state and local laws affecting our business. In particular, our operations are subject to regulation by federal agencies
and to licensing and regulation by state and local health, food preparation and safety, sanitation, alcoholic beverage control, safety
and fire department agencies in the state or municipality where our units are located.
Alcoholic beverage control regulations
require each of our restaurants and package liquor stores to obtain a license to sell alcoholic beverages from a state authority and in
certain locations, county and municipal authorities.
In Florida, where all of our restaurants
and package liquor stores are located, most of our liquor licenses are issued on a "quota license" basis. Quota licenses are issued on
the basis of a population count established from time to time under the latest applicable census. Because the total number of liquor licenses
available under a quota license system is limited and restrictions are placed upon their transfer, the licenses have purchase and resale
value based upon supply and demand in the particular areas in which they are issued. The quota licenses held by us allow the sale of liquor
for on and off premises consumption (the “4 COP Quota Liquor License”). The other liquor licenses held by us or limited partnerships
of which we are the general partner, are restaurant liquor licenses, which do not have quota restrictions or purchase or resale value.
A restaurant liquor license is issued to every applicant who meets all of the state and local licensing requirements, including, but not
limited to zoning and minimum restaurant size, seating and menu. The restaurant liquor licenses held by us allow the sale of liquor for
on premises consumption only, (the “4 COP SFS Liquor License”).
All licenses must be renewed annually
and may be revoked or suspended for cause at any time. Suspension or revocation may result from violation by the licensee or its employees
of any federal, state or local law regulation pertaining to alcoholic beverage control. Alcoholic beverage control regulations relate
to numerous aspects of the daily operations of our units, including, minimum age of patrons and employees, hours of operations, advertising,
wholesale purchasing, inventory control, handling, storage and dispensing of alcoholic beverages, internal control and accounting.
As the sale of alcoholic beverages
constitutes a large share of our revenue, the failure to receive or retain, or a delay in obtaining a liquor license in a particular location
could adversely affect our operations in that location and could impair our ability to obtain licenses elsewhere.
During our fiscal years 2022 and
2021, no significant pending matters have been initiated concerning any of our licenses which might be expected to result in a revocation
of a liquor license or other significant actions against us.
We are subject to “dram-shop”
statutes due to our restaurant operations. These statutes generally provide a person injured by an intoxicated person the right to recover
damages from an establishment that wrongfully served alcoholic beverages to the intoxicated individual. We carry liquor liability coverage
as part of our existing comprehensive general liability insurance, which we believe is consistent with coverage carried by other entities
in the restaurant industry. Although we are covered by insurance, a judgment against us under a dram-shop statute in excess of our liability
coverage could have a material adverse effect on us. We currently have no “dram shop” claims.
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Our operations are also subject
to federal and state laws governing such matters as wages, working conditions, citizenship requirements and overtime. Significant numbers
of hourly personnel at our restaurants are paid at rates related to the federal or Florida minimum wage, whichever is higher, and accordingly,
increases in the minimum wage will increase labor costs. We are also subject to the Americans with Disability Act of 1990 (ADA), which,
among other things, may require certain renovations to our restaurants to meet federally mandated requirements. The cost of any such renovations
is not expected to materially affect us.
A significant number of our hourly
restaurant staff members receive income from gratuities. Many of our locations participate voluntarily in a Tip Reporting Alternative
Commitment (“TRAC”) agreement with the Internal Revenue Service (“IRS”). By complying with the educational and
other requirements of the TRAC agreement, we reduce the likelihood of potential employer-only FICA
tax assessments for unreported or underreported tips. We are not under investigation or audit, nor have we been assessed for potential
employer-only FICA tax assessments for unreported or underreported tips.
We are also subject to laws relating
to information security, privacy, cashless payments and consumer credit protection and fraud.
We are not aware of any statute,
ordinance, rule or regulation under present consideration which would significantly limit or restrict our business as now conducted. However,
in view of the number of local jurisdictions within the State of Florida in which we conduct business, and the highly regulated nature
of the liquor business, there can be no assurance that additional limitations may not be imposed in the future, even though none are presently
anticipated.
Human
Capital
We
depend on our staff members to successfully execute all aspects of our day-to-day operations. Our ability to attract highly motivated
staff members and retain an engaged, experienced team is key to successful execution of our strategy. We are currently operating in a
competitive labor environment. If we are unable to hire or retain qualified restaurant management and operating personnel in an increasingly
competitive market, we may be unable to effectively operate and grow our business and revenues, which could materially adversely affect
our financial performance.
Development
and Training
We
invest resources to ensure our staff receive training in order to maximize their potential. In addition, we strive to provide our staff
with career advancement opportunities. Our training programs allow us to fill certain of our management positions with internal candidates.
Benefits
and Wellness
We
believe access to healthcare is a compelling benefit for many staff members and we offer healthcare benefits to our hourly staff members
who work a minimum of 30 hours per week, on average. We attempt to provide a robust suite of benefits and wellness offerings.
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Employee
Engagement
Listening
to our staff members is an essential part of building an engaged workforce, and we provide avenues for staff to share their ideas and
concerns.
As
of our fiscal year end 2022, we employed 1,766 persons, of which 469 were full-time and 1,297 were part-time. Of these, 58 were employed
at our corporate offices in administrative capacities and 14 were employed in maintenance. Of the remaining employees, 67 were employed
in our package liquor stores and 1,627 in our restaurants. None of our employees are represented by collective bargaining organizations.
We consider our labor relations to be favorable.
Giving
Back
Another
key aspect of our culture is giving back to the communities where our staff live and work, and uniting our staff members around charitable
causes personal to them. We periodically donate philanthropic organizations through campaigns designed to engage our staff company-wide
service programs, as follows:
· Reclaimed Wood – All of our locations use reclaimed wood on interior walls.
We also believe our
sustainability programs and initiatives like restaurant-based composting and recycling and replacing our off-premise packaging with materials
that reduce the use of plastics and improve recyclability serve to foster pride in our staff.
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Executive Officers
Name Positions and Offices Currently Held Age Office or Position Held Since
August Bucci Chief Operating Officer and Executive Vice President 78 2002
Jeffrey D. Kastner Chief Financial Officer, General Counsel and Secretary 69 (2)
Christopher O’Neil Vice President of Package Operations 57 2016
----------------
(1) Chairman of the Board of Directors, Chief Executive Officer since 2005;
President since 2002.
(2) Chief Financial Officer since 2004; Secretary since 1995; and General
Counsel since 1982.
Flanigan’s 401(k) Plan
Effective July 1, 2004, we began
sponsoring a 401(k) retirement plan covering substantially all employees who meet certain eligibility requirements. Employees may contribute
elective deferrals to the plan up to amounts allowed under the Internal Revenue Code. We are not required to contribute to the plan but
may make discretionary profit sharing and/or matching contributions. During our fiscal years ended October 1, 2022 and October 2, 2021,
the Board of Directors approved discretionary matching contributions totaling $50,000 and $59,000, respectively.
Coronavirus Pandemic
In March 2020, a novel strain
of coronavirus was declared a global pandemic and a National Public Health Emergency. The novel coronavirus pandemic and related “shelter-in-
place” orders and other governmental mandates relating thereto (collectively, “COVID-19”) adversely affected and will,
in all likelihood continue to adversely affect, our restaurant operations and financial results for the foreseeable future.
During the second quarter of our
fiscal year 2021, certain of the entities owning the limited partnership stores (the “LP’s”), as well as the store we
manage but do not own (the “Managed Store”), applied for and received loans from an unrelated third party lender pursuant
to the Paycheck Protection Program (the “PPP”) under the United States Coronavirus Aid, Relief and Economic Security Act (the
“CARES Act”) enacted March 27, 2020, in the aggregate principal amount of approximately $3.98 million, (the “2nd
PPP Loans”), of which approximately: (i) $3.35 million was loaned to six of the LP’s; and (ii) $0.63 million was loaned to
the Managed Store. The 2nd PPP Loan to the Managed Store is not included in our consolidated financial statements. During the
first quarter of our fiscal year 2022, we applied for and received forgiveness of the entire amount of principal and accrued interest
for all 2nd PPP Loans, including the Managed Store.
COVID-19 has had a material adverse
effect on our access to supplies or labor and there can be no assurance that there will not be a significant adverse impact on our supply
chain or access to labor in the future. We are actively monitoring our food suppliers to assess how they are managing their operations
to mitigate supply flow and food safety risks. To ensure we mitigate potential supply availability risk, we are building additional inventory
back stock levels when appropriate and we have also identified alternative supply sources in key product categories including but not
limited to food, sanitation and safety supplies.
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As of October 1, 2022, we are
in compliance with the financial covenants contained in our loans with our unrelated third-party institutional lender (the “Institutional
Lender”) under which we owe in the aggregate, approximately $23,272,000 (the “Institutional Loans”) of our total loans
of approximately $25,389,000.
There can be no assurances that
we will be in compliance with our financial covenants thereafter due to, among other things, that our results of operations will likely
continue to be materially impacted by the COVID-19 pandemic. Absent a waiver, failure to be in compliance with our financial covenants
would constitute a default under the Institutional Loans with our Institutional Lender when reported. Such a default, if not cured or
waived, would allow the Institutional Lender to accelerate the maturity of the indebtedness we owe under the Institutional Loans, making
it due and payable at the time. If maturity of the Institutional Loans were accelerated, it would have a material adverse impact on our
consolidated financial statements and results of operations.
General Liability Insurance
For the policy year beginning
December 30, 2021, we have general liability insurance which incorporates a deductible of $10,000 per occurrence for both us and the limited
partnerships. Our insurance carrier is responsible for $1,000,000 coverage per occurrence above our deductible, up to a maximum aggregate
of $2,000,000 per year. We were also able to purchase excess liability insurance at a reasonable premium, whereby our excess insurance
carrier is responsible for $10,000,000 coverage above our primary general liability insurance coverage. We are uninsured against liability
claims in excess of $11,000,000 per occurrence and in the aggregate. We secured general liability and excess liability insurance for the
period commencing after the expiration of the current policies on December 30, 2022. (See Item 2. Subsequent Events for a discussion of
general liability and excess liability insurance for the period commencing December 30, 2022 on page 38.)
Our general policy is to settle
only those legitimate and reasonable claims asserted and to aggressively defend and go to trial, if necessary, on frivolous and unreasonable
claims. Under our current liability insurance policy, certain expenses incurred in defending a claim, including attorney's fees, are a
part of our $10,000 deductible.
In accordance with accounting
guidance, we accrue for any liability by recognizing costs when it is probable that a covered liability has been incurred and the cost
can be reasonably estimated. Accordingly, our annual insurance costs may be subject to adjustment from previous estimates as facts and
circumstances change. Our accruals are included in the accompanying consolidated balance sheets in the caption "Accounts payable and accrued
expenses". A significant unfavorable judgment or settlement against us in excess of our liability insurance coverage could have a materially
adverse effect on the Company.
Property
Insurance; Windstorm Insurance; Deductibles
For the policy year beginning
December 30, 2021, our property insurance is a one (1) year policy with an unaffiliated third party insurance carrier, including coverage
for properties leased by us and our consolidated limited partnerships, and provides for full insurance coverage for property losses, including
those caused by windstorm, such as a hurricane. For property losses caused by windstorm, the property insurance has a fixed deductible
of $100,000, plus 5% of all insured losses, per occurrence. For all other property losses, the property insurance has deductibles of $10,000
per location, per occurrence. We secured property insurance for the period commencing after the expiration of the current policy on December
30, 2022. (See Item 2. Subsequent Events for a discussion of property insurance for the period commencing December 30, 2022 on page 38.)
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