STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. )

) BARBARA C. CLARK, d/b/a BUDDY'S ) BAR-B-QUE, )

)

Respondent. )

Case No. 04-1163

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 8, 2004, in Wildwood, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and Professional Regulation

Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Brandon L. Kolb, Esquire

112 East Street, Suite B Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Petitioner violated Section 386.207(3), Florida Statutes (2003), by failing to comply with the "Florida Clean Indoor Air Act."

PRELIMINARY STATEMENT

On or about November 21, 2003, Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner) issued an Administrative Action, alleging that Respondent Barbara C. Clark, d.b.a.

Buddy's Bar-B-Que (Respondent) had failed to comply with the Florida Clean Indoor Air Act (the Act) by allowing persons to smoke or possess a lighted tobacco product within an enclosed indoor workplace. According to the Administrative Action, Respondent had violated Section 386.207(3), Florida Statutes (2003).

On or about December 10, 2003, Respondent filed a Request for Hearing with Petitioner. Respondent referred the request to the Division of Administrative Hearings on March 30, 2004, without supporting documentation. On April 6, 2004, Petitioner referred the case, together with its supporting documentation, to the Division of Administrative Hearings.

A Notice of Hearing dated April 23, 2004, scheduled the hearing for June 8, 2004. During the hearing, Petitioner presented the testimony of two witnesses and offered one

composite exhibit, which was accepted into the record as evidence. Respondent did not present any witnesses or offer any exhibits as evidence.

The Transcript of the proceeding was filed on June 24,

1. Respondent holds License No. 70-00559, Series 2COP. The license authorizes Respondent to sell beer and wine at the licensed premises, which is located in Wildwood, Florida.

2. Respondent is the sole owner of Buddy's Bar-B-Que. She has been licensed to sell beer and wine at her restaurant since June 1999.

3. Sometime before July 18, 2003, Petitioner received an anonymous complaint that Respondent was allowing the smoking of tobacco products inside the establishment. Petitioner subsequently initiated an investigation.

4. On or about July 18, 2004, Petitioner's investigator, Special Agent Karen Evans, observed Respondent and her patrons smoking inside the restaurant. Agent Evans advised Respondent about the prohibitions set forth in the Act and gave Respondent a questionnaire containing frequently asked questions about the Act.

5. Agent Evans also issued Respondent a Notice to Comply.

   
   

   The notice mandated full compliance with the Act within 30 days.

   
   

6. More than 30 days later, in the Fall of 2003, Special Agent Jeffrey Yonce and Agent Evans went to Respondent's restaurant. They observed Respondent and her patrons smoking inside the licensed premises. Agent Evens then gave Respondent notice that Petitioner intended to file an Administrative Action against for her failing to comply with the Act.

7. Petitioner issued an Administrative Action against Respondent in November 2003. The opening paragraph of the Administrative Action erroneously refers to Manatee Lanes, Inc. as the entity being charged. However, the Administrative Action clearly indicates that Respondent was the licensee being charged with violating the Act. In fact, Petitioner's counsel admitted during the hearing that his client was aware of the charges against her.

   CONCLUSIONS OF LAW

   
   

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

9. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated the Act. Ferris v.

   Turlington, 510 So. 2d 292 (Fla. 1987); Pic N Save Central

   Florida, Inc. v. Dept. of Business and Professional Regulation,

   
   

   Division of Alcoholic Beverages and Tobacco, 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

10. Section 386.204, Florida Statutes (2003), states as follows: "A person may not smoke in an enclosed indoor workplace, except as otherwise provided in s. 386.2045." There are no exceptions that apply in this case.

11. Section 386.206(2), Florida Statutes (2003), states as

    
    

    follows:

    
    

    (2) The proprietor or other person in charge of an enclosed indoor workplace must develop and implement a policy regarding the smoking prohibitions established in this part. The policy may include, but is not limited to, procedures to be taken when the proprietor or other person in charge witnesses or is made aware of a violation of

    s. 386.204. in the enclosed indoor workplace and must include a policy which prohibits an employee from smoking in the enclosed indoor workplace. In order to increase public awareness, the person in charge of an enclosed indoor workplace may, at his or her discretion, post "NO SMOKING" signs as deemed appropriate.

    
    

12. Section 386.207, Florida Statutes (2003), states as follows in relevant part:

    1. The department or the Division of Hotels and Restaurants or the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation shall enforce this part based upon each department's specific areas of regulatory authority and to implement such enforcement shall adopt, in consultation

       with the State Fire Marshal, rules specifying procedures to be followed by enforcement personnel by which appeals may be taken by aggrieved parties.

       
       

       * * *

       
       

       (3) The department or the Division of Hotels and Restaurants or the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation, upon notification of observed violations of this part, shall issue to the proprietor or other person in charge of such an enclosed indoor workplace a notice to comply with this part. If the person fails to comply within 30 days after receipt of the notice, the department or the Division of Hotels and Restaurants or the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation shall assess a civil penalty against the person of not less than $250 and not to exceed $750 for the first violation and not less than $500 and not to exceed

       $2,000 for each subsequent violation. The imposition of the fine must be in accordance with chapter 120.

       
       

13. In this case, Petitioner's enforcement personnel observed Respondent and her patrons smoking inside the licensed premises. More than 30 days after receiving the Notice to Comply, Petitioner's enforcement personnel made the same observations on the licensed premises.

14. There was no specific testimony indicating whether Respondent had ever developed a policy regarding the smoking prohibition contained in the Act. Even so, it is clear that she did absolutely nothing to implement a such a policy. Instead,

    she and her patrons continued to smoke in the restaurant in an open manner.

15. Respondent raises several constitutional arguments, which have been preserved in the record. However, the Division of Administrative Hearings does not have jurisdiction over constitutional questions. Dept. of Revenue of Florida v. Young, 330 So. 2d 864 (1st DCA 1976).

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order imposing an administrative penalty on Respondent in the amount of $250.

DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 20th day of July, 2004.

COPIES FURNISHED:

Michael J. Wheeler, Esquire Department of Business and

Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Brandon L. Kolb, Esquire

112 East Street, Suite B Tampa, Florida 33602

Peter Williams, Director Department of Business and

Professional Regulation Division of Alcoholic Beverages

and Tobacco

1940 North Monroe Street Tallahassee, Florida 32399-2202

Leon Biegalski, 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: 04-001163

Orders for Case No: 04-001163