STATE OF FLORIDA, DEPARTMENT ) OF BUSINESS REGULATION, DIVISION ) OF HOTELS AND RESTAURANTS, )
vs. ) CASE NO. 84-2717
TOM E. CONNELLY, d/b/a )
Respondent. )
Notice was given and a formal hearing was conducted in Daytona Beach, Florida on February 25, 1985. This hearing was conducted under the authority of Section 120.57(1), Florida Statutes and Charles C. Adams presided as the hearing officer. This Recommended Order is being entered following the receipt and review of the proposed recommended orders of the parties and associated argument. To some extent the proposals have been utilized in writing the Recommended Order. Otherwise the proposals are rejected because they are deemed to be irrelevant, immaterial, subordinate to facts found, cumulative of facts found, or lacking in credibility. The transcript of proceedings has also been considered prior to the entry of the Recommended Order.
For Petitioner: Thomas A. Klein, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Theodore R. Doran, Esquire
The issues in this cause are those promoted by a notice to show cause/administrative complaint filed by the Petitioner against the Respondent alleging the violation of various rules provisions within Chapter 10-D, Florida Administrative Code, as implemented by Chapter 509, Florida Statutes. In particular those alleged violations pertain to a claim that Respondent does not have the requisite number of restrooms in the licensed premises; that the access to the restroom that is in place is made through the food preparation area; that the restaurant is without a hand wash facility for employees, which facility
provides hot and cold water and which facility is located in the food preparation area; and that the restaurant lacks an approved hood with fire extinguishing equipment installed over a portion of the cooking gear within the restaurant.
Respondent Tom E. Connelly, operates a restaurant at 3620 South Atlantic Avenue, Daytona Beach, Florida. That restaurant is known as Sally's Donut Shop. Respondent holds a license issued by the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, license number 74-16O5R. That license on its face indicates that the license is for food service with a seating capacity of eight and a class of service known as ZK. In addition, Respondent holds an occupational license issued by Volusia County, Florida, which indicates that the establishment is a restaurant with zero to thirty seats. Connelly has also been issued a license by the City of Daytona Beach Shores, Florida. In that license the business is described as a coffee shop. It is indicated that the establishment has eight seats. Finally, Respondent has been issued a permit from the Volusia County Health Department to operate the food service establishment in question.
Respondent is the most recent proprietor in a series of individuals who have utilized the licensed premises for purposes of operating a restaurant. Quentin Freeman opened the licensed premises in May of 1973 and operated until January 1, 1974. At the time of his ownership the business was primarily involved with serving customers coffee and donuts. The premises had one restroom available for customers and access to that restroom was through the food preparation area. The hand washing facilities for employees of the establishment were found in the bathroom. There was no duplication of hand washing facilities for the benefit of employees in the food preparation area. Mr. Freeman held the necessary permits to operate the restaurant. Tables and chairs were available to the patrons of the restaurant and they were located within the premises proper. There were two tables and four chairs. The patrons used those tables and chairs when consuming the food served at the licensed premises. Those tables and chairs assisted Freeman in his enterprise, in that they were deemed to be of value to his business operation. Freeman also served sandwiches. The sandwiches which were served were not cooked on the licensed premises. An additional feature of the business was a takeout service where patrons would purchase their food and leave the premises before consuming the food purchased. A stove or range which is now present in the licensed premises was not there during Freeman's ownership. A donut machine with hood was located in the premises at the time of Freeman's ownership and at present. At present there are more tables and chairs in the restaurant than was the case when Freeman was the proprietor. There are now four tables in the licensed premises. Freeman was never cited with any form of violation related to licenses issued by the state, county or municipality, pertaining to the operation of his food establishment. Freeman sold the business to Dorothy and Adolf Becker. He has continued to frequent the licensed premises and has observed that tables and chairs have remained in that business premises from the time of his ownership to the present. The business has not significantly changed in that period, in the way of any reconstruction. Alterations that have been made in the licensed premises since the time of the Freeman ownership pertain to the change in location of a counter, the removal of a wall, the addition of tables and chairs, and the inclusion of the range or stove in the food preparation area. Freeman also had an ice cream machine in the licensed premises which has been removed.
The Beckers operated the food service establishment from January 1974 through August, 1979. At the time of their operation, the business had only the one restroom in the licensed premises and access to that restroom was through the food preparation area. No hand wash facilities for the benefit of employees, with hot and cold water function, were found in the food preparation area. At the time of the operation by the Beckers, the stove or range which is presently located in the food preparation area was not installed. Becker was inspected during the ownership period by persons within the Volusia County Health Department who were acting in the capacity as representatives of the Petitioner. During the Becker ownership no citations were given by the Petitioner or other regulatory agencies related to deficiencies pertaining to the number of restrooms in the premises; the fact of access to the one restroom in the premises through the food preparation area; the non- existence in the food preparation area of a hand wash facility for the benefit of employees or the operation of the food service establishment without installing an exhaust hood over all the cooking gear, which hood had an automatic fire-extinguisher.
Susan Niles purchased the premises from the Beckers. Niles operated the business as a donut and sandwich shop. Her ownership lasted from August 1979 through February 1981, when the business was sold to the Respondent. During her ownership Niles conducted a takeout food service, and served a small breakfast menu, with the food staples being sandwiches and donuts. In the beginning, she had two tables with three to four chairs each. She knocked out a wall and relocated the counter. She also added two or three smaller tables that would accommodate two to three chairs each. When she purchased the business there were some tables and chairs already located there. Those tables and chairs were on the inside of the licensed premises. She found the chairs and tables to be a valuable asset in the operation of the business. She had licenses necessary to conduct her business. Regular inspections were made of her licensed premises on the part of government officials, among them one James E. Jackson, an employee of the Volusia County Health Department, who inspected for the benefit of Petitioner. No citations were given for problems within the licensed premises, during Niles' ownership.
During Niles' operation, approximately twenty percent of the business was for customer consumption of food on the premises with the balance being takeout. Niles added a stove or range, which is still in the licensed premises. Most of her cooking was done at home, away from the premises, and the stove was used to boil water for coffee and to cook an egg or prepare bacon. The stove which was added by Niles, did not have a vent system associated with it and still does not. Niles removed the ice cream machine which had been installed by the Freemans and was also operated by the Beckers.
When Respondent took over the restaurant in 1981, he operated the business in essentially the same fashion as the prior owner. He sold donuts and sandwiches and served breakfast. The sandwiches were hot and cold sandwiches. The donuts were prepared on the premises. The donut making machine has a vent system associated with it and has had that feature at all relevant points in time. The kitchen stove or range which has been mentioned before has four top burners and it is used by Connelly to boil potatoes, for potato salad, for poaching eggs and frying eggs. In addition there is a microwave oven in the premises which is used for the preparation of bacon and sausage. Finally, the oven is used for cooking turkeys. In using the stove there Is a limited amount of steam and grease associated with its use.
Connelly has made no changes to the physical layout of the licensed premises following his purchase of the business.
Connelly has not added any tables or chairs subsequent to his purchase. At present there are four tables and eight chairs.
When Connelly purchased the premises he verified the existence of necessary licenses and permits for the prior owner, to insure his ability to gain necessary licenses and permits for the prior owner, to insure his ability to gain necessary permission from those regulatory agencies. The licenses and permits issued to the prior owner led Connelly to believe that tables and chairs were associated with the business. He paid the proprietor $9,500.00 in cash and entered into a lease with the building owner. Connelly would not have purchased the business had he not understood that seating capacity for patrons would be made available.
During the period of Connelly's ownership periodic inspections have been made of the premises. Prior to April 12, 1984, no citations had been given to Connelly related to the licensed premises. Moreover, and permit renewals have been granted Connelly at appropriate times within his conduct of business at the subject location.
In the face of the present charges, Connelly has inquired of contractors on the subject of adding an additional restroom. Those two contractors on the subject of adding an additional restroom. Those two contractors have indicated that this cannot be achieved within the premises now occupied by Respondent.
The State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, has a contract with Volusia County Health Department to inspect premises which are licensed by the state agency. In that connection, James E. Jackson and Karen Fisher, employees of Volusia County Health Department have inspected the licensed premises while Respondent has operated the business. Moreover, Jackson inspected the premises when it was owned by other proprietors, who have been previously identified. No citations were given by Jackson, notwithstanding conditions which are similar to what was discovered by Karen Fisher when she took over Jackson's inspection responsibilities for the licensed premises in question. Her responsibility began in February, 1984.
After assuming the responsibility for inspecting Connelly's business, Fisher made a routine inspection and no citations were given to Connelly based upon that inspection. Subsequently, based upon remarks made by Connelly against a competitor, to the effect that the competitor was serving meals in the competitor's licensed premises, inappropriately, an inspection was made of that premises leading to the removal of tables and chairs from that premises. In turn, the competitor complained that Connelly was inappropriately providing tables and chairs for food consumption on premises in an establishment which could not allow that circumstance. This caused Fisher to return to the licensed premises on April 12, 1984, and to cite Respondent for violations as reflected in the notice to show cause document. In particular, Fisher noted on that date that the access to the restroom was not possible without crossing the food preparation area. She observed that there was only one restroom available on the licensed premises. She observed that the food preparation area did not have available a hand wash sink with hot and cold feature, which could be used by the employees within the licensed premises. She also noted that the range or stove which had the four burners and oven did not have a vent associated with that apparatus. That ventilation system is also referred to as a hood.
Further inspections on April 18 and May 2, 1984, did not indicate a change in circumstance related to the areas identified by Fisher as being problems. Following the issuance of the notice to show cause, by the Petitioner, the items complained of remain in the same status as existed on April 12, 1984.
Prior to this charge, Petitioner was unaware of the existence of seating in the licensed premises however, when the management or its designee, i.e., a supervisor within the Volusia County Health Department, learned of the problem of alleged rules violations, Petitioner then placed charges against the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
Rule 10D-9.28, Florida Administrative Code, which became effective January 1, 1977, requires an establishment, such as that of the Respondent, which allows food consumption upon the licensed premises, with provision of tables and chairs, to maintain two toilet rooms or restrooms. This rule was in effect at the time that the Respondent assumed ownership of the licensed premises in 1981. Therefore, the Respondent is held accountable under this provision. The fact that previous owners who had control of the licensed premises at a time prior to the effective date of the rule would not be answerable to the rule's terms and conditions, does not relieve the Respondent from complying with this provision. Respondent does not have two toilet rooms in the licensed premises. Due to the fact that Respondent has only one toilet room in the licensed premises wherein food is consumed with the use of tables and chairs, he is in violation of the rule. That violation is contemplated by Section 509.032(1), Florida Statutes, which makes the rule applicable to the enforcement responsibility of Petitioner.
Rule 100-13.27(5), Florida Administrative Code, effective January 1, 1977, requires a food service establishment to be provided with adequate and conveniently located toilet facilities for its employees and patrons and in the instance of new establishments, and establishments which are extensively altered, toilet rooms shall not open directly into food preparation areas. This provision is enforced by Petitioner in accordance with Section 509.032, Florida Statutes, and Rule 7C- 4.001, Florida Administrative Code. The most recent amendment to Rule 10D-13.27, Florida Administrative Code occurred on January 6, 1981, prior to Respondent's purchase of the business in February 1981.
The Respondent purchased an establishment that was already in existence, and that establishment from 1973 forward has remained essentially intact. The alterations that have been made to the establishment since 1973 are not extensive. Consequently, this provision related to the prohibition against the opening of toilet rooms into the food preparation area does not apply to the Respondent, even though the single toilet room does open into the food preparation area.
Rule 10D-13.27(6), Florida Administrative Code, effective January 1, 1977, states that in new establishments and establishments which are extensively altered, employee hand washing facilities, provided with hot and cold running water, shall be located within food preparation areas. Again, Rule 10D- 13.27, Florida Administrative Code, was amended on January 6, 1981. The rules
subsection (G) is also an enforcement responsibility of the Petitioner in accordance with Section 509.32, Florida Statutes, and Rule 7C-4.001, Florida Administrative Code. For reasons as described in the previous paragraph of the Conclusions of Law, Rule 100-13.27(6) Florida Administrative Code, does not apply to the Respondent, even though no hand wash facilities are found within the food preparation area of the licensed premises.
Section 509.211(3) Florida Statutes, indicates that safety provisions and requirements established by the State Fire Marshal are subject to enforcement by the Petitioner. Accordingly, when the State Fire Marshal, through Section 633.05(8), Florida Statutes, and the attendant Rule 4A-28.15, Florida Administrative Code, adopted the standards of the National Fire Protection Association, to include NFPA Pamphlet No. 96, Petitioner became responsible for the enforcement of the requirements of that pamphlet in premises licensed by the Petitioner. In addition, Rule 10D-13.26((1), Florida Administrative Code, effective January 1, 1977, as incorporated in the enforcement responsibility of the Petitioner pursuant to Section 509.032, Florida Statutes and Rule 7C-4.001, Florida Administrative Code, is a rule used by the Petitioner in its enforcement responsibility. At subsection (g) of Rule 10D- 13.26(1), Florida Administrative Code, it is stated that approved local exhaust ventilation system installed at or over all cooking `units such as a range, shall be provided, in those instances where appreciable quantities of steam, odors, grease or smoke are present. NFPA Pamphlet No. 96 contemplates that the hood or ventilation device, if needed, shall be equipped with fire extinguishing equipment. There is no hood or ventilation device with associated fire extinguishing equipment found over the four burner range or stove in the Respondent's licensed premises. Nonetheless, when this equipment is used it does not create appreciable quantities of steam, odors, grease or smoke. Therefore, no violations of Rule 10D-13.26(1), Florida Administrative Code, and NFPA Pamphlet No. 96, have been shown.
When Respondent purchased the premises in question, he was aware of the history of the licenses related to the premises, and the indication through those licensing documents that seating capacity was provided. Respondent expended a sum of money expecting to continue the business as a facility which allowed the consumption of food on the premises. Respondent still wishes to pursue his business, including the sale of food for consumption on the premises. Neither the Respondent nor other owners who preceded him, had ever been cited for any form of violation of rules and regulations of the Petitioner, before this occasion and Respondent has continued to operate on the assumption that he is in compliance with regulatory statutes and rules. As shown in the conclusions of law, Respondent is not in compliance with that provision of Rule 10D-9.28, Florida Administrative Code, requiring two toilets or restrooms to be provided for the benefit of patrons who are consuming food on the licensed premises while using tables and chairs provided by the Respondent. Respondent is unable to correct the problem by providing an additional toilet facility within the licensed premises. Notwithstanding his dilemma, Respondent may not avoid compliance with that provision by claiming the doctrine of estoppel against the state. Nothing about the state's issuance of licenses, nor the issuance of licenses and permits on the part of local government and the failure of the Petitioner's designee to cite the Respondent or his predecessors for this violation, in the past causes the Respondent to escape sanctions based upon his claim of estoppel. When the State of Florida became cognizant of the problem related to this violation, it acted to remedy that circumstance. Statements related to the number of seats within the licensed premises found in the licensing documents, are not representations which Respondent may rely upon and subsequently claim estoppel, when considered in the context of the facts of this
case. Likewise, the inactivity in the enforcement of the rule's provision does not form a basis to estop the Petitioner from now enforcing that provision against the Respondent.
Respondent is not entitled to operate an establishment for consumption of food on the licensed premises, in which chairs and tables are used for the benefit of that consuming public, unless an additional toilet facility is provided.
Respondent is not entitled to collect attorney's fees and costs as contemplated by Section 57.111, Florida Statutes.
Petitioner is not entitled to the collection of cost and attorney fees related to the necessity to prove items found within its request for admissions, given the fact that this case is penal in nature and the Respondent need not admit facts.
Based upon the consideration of the facts found and in view of the conclusions of law reached, it is
That a final order be entered finding the Respondent guilty of the violation related to Rule 10D-9.28, Florida Administrative Code, on the subject of insufficient number of toilet facilities and imposing an administrative fine in the amount of $300.00 and which dismisses all other charges against Respondent.
DONE and ENTERED this 12th day of April, 1985, at Tallahassee, Florida.
CHARLES C. ADAMS
FILED with the Clerk of the Division of Administrative Hearings this 12th day of April, 1985.
Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Theodore R. Doran, Esquire
P.0. Box 2134
R. Hugh Snow, Director
Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
