STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

MIKE'S TASTY BBQ,

Respondent.

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) Case No. 03-0399

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RECOMMENDED ORDER

A formal hearing was conducted in this case on April 15, 2003, in Tavares, Florida, before the Division of Administrative Hearings by its Administrative Law Judge, Stephen F. Dean.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0790

For Respondent: Michael E. Kennedy

Mike's Tasty BBQ

1995 North Orange Street Mount Dora, Florida 32757

STATEMENT OF THE ISSUE

Whether the Respondent should be fined for violation of Section 509.261, Florida Statutes?

PRELIMINARY STATEMENT

This case arose when the Department's inspector and his supervisor were driving down US Highway 441 and saw the Respondent offering for sale barbequed ribs. They stopped at the facility. It is uncertain from their testimony whether they stopped to inspect the facility or to purchase ribs because they did both. Their inspection revealed that the facility was unlicensed; did not have hand-washing facilities; and did not enclose the smoker. They issued a cease and desist order which the Respondent obeyed.

On July 16, 2002, the Department issued an Administrative Complaint charging the Respondent with the aforementioned violations, and seeking a fine of $1,000 for each of the three violations. The Respondent appealed, and the matter was referred to the Division of Administrative Hearings.

After one continuance at the joint request of the parties, this matter was heard on April 15, 2003.

The Department presented the testimony of Henry Cristwell and Angela Carragher and introduced three exhibits.

A Transcript was filed on May 5, 2003, and on May 21, 2003, the Petitioner filed a Proposed Recommended Order, which was read and considered.

FINDINGS OF FACT

1. The Division is the state agency charged with regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. The Respondent has at all times material hereto has been subject to the Division of Hotels and Restaurants' (Division) jurisdiction.

3. The Respondent's last known business address is 1995 North Orange Street, Mount Dora, Florida 32757.

4. On June 22, 2002, Henry Christwell, a Division inspector, observed the Respondent operating an outdoor, roadside food vending facility in the vicinity of US Highway 441 in Lake County, Florida. The operation consisted of a tent with a smoker partially under the tent. Christwell inspected the Respondent's premises, and noted that the Respondent was operating without a license; did not have proper hand-washing facilities; and did not have the smoker enclosed.

5. Based on those deficiencies, Christwell issued a Administrative Determination and Order of Closure for the Mobile Food Vendor on that same day, and the Respondent immediately closed the facility, but not before Christwell purchased some ribs from the Respondent.

6. An Administrative Complaint was issued on July 16, 2002, alleging the Respondent's violation of Chapter 509,

   Florida Statutes, for operating without a license; not having hand-washing facilities; and not having the smoker enclosed.

7. The Respondent elected to dispute the factual allegations of the Administrative Complaint, and timely requested a hearing in accordance with Section 120.57, Florida Statutes. The factual allegations were:

   1. Operating without a license.

      
      

   2. No hand washing facilities available.

      
      

   3. The smoker was in operation without an enclosure so food was unprotected from possible contamination.

      
      

8. At hearing, the Respondent did not controvert the allegations; however, he maintained that there is confusion over when such a facility must be licensed. For example, a local bait shop in the area in which the Respondent was operating does not have its smoker enclosed. Mr. Christwell advised that, because the bait shop sells soft drinks and snack foods, it is not regulated by the Department although it sells food to the public. The Respondent, who is the minister of a local African Methodist Episcopal Church, pointed out that had he been operating on the church's premises, he would have also been exempt. Mr. Christwell agreed that he would not be subject to regulation on the church's premises.

9. The Respondent stated his intent was not to break the law, and he did not believe that he was required to obtain a

   license. Everyone agreed that on August 6, 2002, the Respondent became licensed for operation as a mobile food vendor.

10. The Respondent also claims he had coolers filled with water in order that he could wash his hands. The fact that the alleged sanitary violations existed did not prevent

    Mr. Christwell from purchasing ribs from the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

12. No challenge was raised at hearing to the factual allegations in the Administrative Complaint. The Respondent brought to the attention of the fact-finder that there are a myriad of conflicting regulations and exceptions to operating a mobile food service facility. The Respondent did not defend his actions on the basis that the allegations did not occur, but that he was sincerely confused by the requirements. There is no controversy that when the regulations were brought to his attention, he ceased operations, and sought and obtained licensure. He has since been inspected and is in full compliance with the regulations.

13. Section 509.261(1), Florida Statutes, provides that any public lodging establishment or public food service

    establishment that has operated or is operating in violation of Chapter 509, Florida Statutes, or the rules promulgated thereunder, is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license.

14. While the Department may fine up to $1,000, in this case this would be unjust. The Respondent did not intend to violate the regulations and is now completely in compliance with the state regulations. The Respondent has complied with the law. His violation was unintentional, and the conditions prior to his closing down the facility were not egregious enough to prevent the inspectors from purchasing his ribs.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED:

That the Department of Business and Professional Regulation enter a final order finding that the Respondent violated the statutes as alleged and ordering him to pay an administrative penalty in the amount of $100.00 due and payable to the Division of Hotels within 30 calendar days of the date of this Order.

DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2003.

COPIES FURNISHED:

Michael E. Kennedy Mike's Tasty BBQ

1995 North Orange Street Mount Dora, Florida 32757

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-000399

Orders for Case No: 03-000399