STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

TWISTEE TREAT,

Respondent.

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) Case No. 05-1761

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RECOMMENDED ORDER

On June 22, 2005, a final hearing was held pursuant to notice in Tampa, Florida, before Bram D. E. Canter, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Derek Scott, pro se

1423 Ridge Green Loop, North Lakeland, Florida 33563

STATEMENT OF THE ISSUE

The issue in the case is whether the alleged violations set forth in the Petitioner's Administrative Complaint are true, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint alleging that the Respondent, Twistee Treat, had violated certain state laws regulating the operation of food service establishments. The Respondent disputed the allegations and requested an administrative hearing. The Petitioner referred the matter to the Division of Administrative Hearings, which scheduled and conducted a hearing.

At the hearing, the Petitioner presented the testimony of one witness, Louay Bayyat, an inspector with the Division of Hotels and Restaurants. The Petitioner's Exhibits 1 through 3 were admitted into evidence. The Petitioner's request for official recognition of pertinent provisions of the Florida Statutes, Florida Administrative Code, and U.S. Department of Agriculture's Food Code, was granted. The Respondent presented the testimony of Derek Scott, the current owner of Twistee Treat; Deborah Cribbs, the manager of Twistee Treat; and Don Scott, the previous owner. The Respondent's Exhibits 1 through

4 were admitted into evidence.

A one-volume Transcript of the hearing was filed on July 8, 2005. The parties were given 10 days from the filing of the transcript to submit proposed findings of fact and conclusions of law. Both parties timely submitted proposed recommended

orders, and they were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004).

2. The Respondent, Twistee Treat, is a restaurant located at 2301 South Jim Redman Parkway, Plant City, Florida. The Petitioner's official records indicate that Twistee Treat is owned by DWDC, Inc. At the hearing, Derek Scott stated that he is the owner. This discrepancy was not addressed at the hearing, but is immaterial. The Respondent holds License No. 3911021 (Permanent Food Service).

3. Louay Bayyat is a sanitation and safety supervisor with the Division of Hotels and Restaurants. His duties include inspecting food service establishments for compliance with applicable law. On December 1, 2003, Mr. Bayyat conducted an inspection of Twistee Treat and issued an inspection report.

4. In his December report, Mr. Bayyat noted several violations, among which were the three violations that are alleged in the Petitioner's Administrative Complaint: a hand-wash sink was not connected to pressurized water; a

   restroom door was not self-closing; and there was no restroom

   accessible to the public. The inspection report indicated that the violations had to be corrected by January 1, 2004.

5. Mr. Bayyat conducted a "call back" inspection of Twistee Treat on January 12, 2004, and noted in his inspection report for that date that the three violations found during the previous inspection, identified above, had not been corrected.

6. The Petitioner asserts that the hand-wash sink and public restroom violations are "critical" violations that pose imminent harm to the public. However, the Food Service Inspection Report, DBPR Form HR 5022-015, used by Mr. Bayyat and submitted into evidence by the Petitioner, suggests that the three alleged violations in this case are not critical violations. The form indicates by an asterisk the violations that are critical, and the three violations charged by the Petitioner are not marked with an asterisk.

7. The December 1, 2003, inspection report was signed by Derek Scott, and the January 12, 2004, inspection report was signed by Sommer Kelly, the night manager for Twistee Treat. The Petitioner stipulated at the hearing, that signing the inspection reports is not an admission of the truth or accuracy of the statements contained in the reports, but merely an acknowledgement of receipt of the report.

   Hand-Wash Sink

   
   

8. The purpose of the requirement to provide pressurized water to the hand-wash sink is for convenient and effective hand-washing by employees who handle food prepared for consumption by the public.

9. The Respondent did not dispute that the hand-wash sink is not connected to pressurized water. Instead, evidence was presented through the testimony of Derek Scott and Don Scott, the previous owner of the Twistee Treat in Plant City and the owner of two other Twistee Treats in Lakeland, Florida, that no other inspector for the Division of Hotels and Restaurants had ever indicated that this hand-wash sink violates state law. Self-Closing Restroom Door

10. The purpose of requiring restroom doors to be self- closing is to minimize the potential for spread of disease through insects and rodents.

11. There is no dispute that, at the time of the December 1, 2003, inspection, the door to the restroom at the Twistee Treat was not self-closing. The violation was corrected, and there is now a device on the door to make it self-close. The only dispute concerned whether the violation was corrected before or after the January 12, 2004, inspection.

12. The testimony of Derek Scott and Mr. Bayyat on this factual issue is contradictory, and there is no other evidence

    in the record that resolves the contradiction. Neither Derek Scott nor Mr. Bayyat was more credible than the other on this particular issue.

    Public Restroom

    
    

13. Under state law, the number of seats at a restaurant determines the number of public restrooms that must be provided. Mr. Bayyat noted in his inspection reports that there were 13 tables with seating for 26 persons at Twistee Treat. Deborah Cribbs, a manager at Twistee Treat since 1997, stated that it would be impossible to have 13 tables at Twistee Treat because of the limited space available for tables. The Respondent's Exhibits 2 through 4, which are photographs taken in June 2005 of the Twistee Treat building and facilities, support the Respondent's position on this issue.

14. The more credible evidence of the seating provided at Twistee Treat at the time of the inspections was the testimony of Derek Scott and Ms. Cribbs, who stated that there were five tables and 13 seats.

15. There are now three tables and seven seats at Twistee Treat.

16. There is a restroom at Twistee Treat, but it was disputed whether the restroom was available to the public, or only to employees. Mr. Bayyat's determination that there was no restroom available to the public was based on his belief that

    the only access to the restroom was through the kitchen. Derek Scott claimed that the public had access to the restroom through the back door of Twistee Treat.

17. The back door of Twistee Treat is hidden from view by a fence. The fence creates a small enclosure within which are a walk-in cooler, a sink, a hose, and the back door of the building. There is no sign on the fence that informs a person that a public restroom is somewhere behind the fence. Because the back door is not visible to the public and there is no sign indicating how to gain access to the restroom, I find that Twistee Treat does not currently provide a restroom accessible to the public.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

19. Pursuant to Subsection 509.261(1), Florida Statutes (2004), the Petitioner may impose penalties for violations of Chapter 509, Florida Statutes, including an administrative fine of no more than $1,000 for each separate offense, attendance at personal expense at an educational program sponsored by the Hospitality Education Program, and the suspension or revocation of the Respondent's license.

20. Because Subsection 509.262(1), Florida Statutes (2004), is a penal statute and the Petitioner is seeking to impose a penal sanction, the Petitioner has the burden of proving the specific allegations set forth in its Administrative Complaint by clear and convincing evidence. See, e.g., Department of Banking and Finance v. Osbourne Stern & Co., 670 So. 2d 932 (Fla. 1996).

21. The clear and convincing evidence standard has been described as follows:

    The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116 (Fla. 1st DCA 1989).

22. Disciplinary action must be confined to the offenses specifically alleged in the administrative complaint. See Cottrill v. Dept. of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).

23. Florida Administrative Code Rule 61C-1.004(1) adopts by reference the Food Code of the U.S. Department of Agriculture.

    Hand-Wash Sink

    
    

24. Food Code Rule 5-103.12 provides in pertinent part:

    Water under pressure shall be provided to all fixtures, EQUIPMENT, and nonfood EQUIPMENT that are required to use

    water . . . .

    
    

    The Respondent did not dispute that the fixture in question at Twistee Treat was used for employee hand-washing. Water is required to wash one's hands. Therefore, the hand-wash sink is a fixture that requires water under pressure according to the Food Code.

25. The Petitioner presented no evidence to explain or rebut the Respondent's evidence that the hand-wash sink at Twistee Treat has never before been noted as a violation of Food Code Rule 5-103.12 by an inspector of the Division of Hotels and Restaurants. Nevertheless, the rule is unambiguous and the Respondent has not cited another rule or law that exempts the hand-wash sink at Twistee Treat from the requirement of

    Rule 5-103.12. The Petitioner has met its burden to show that Twistee Treat violated this regulation. Under the circumstances, however, this violation warrants only a small fine. An administrative fine of $50 would be fair and reasonable.

    Self-Closing Restroom Door

    
    

26. Florida Administrative Code Rule 61C-1.004(2) requires that restrooms have self-closing doors. The Petitioner met its burden to show that Twistee Treat was in violation of this

    regulation at the time of the December 1, 2003, inspection. The testimony was contradictory as to whether the violation was corrected before or after the January 12, 2004, inspection. The Petitioner has not demonstrated by clear and convincing evidence that the violation remained uncorrected on the second inspection. Therefore, no penalty should be imposed.

    Public Restroom

    
    

27. Florida Administrative Code Rule 61C-4.010(7)(e) requires public food service establishments that seat 10 persons or fewer to have at least one bathroom accessible to the public. The Petitioner has met its burden to show that the Respondent violated this regulation. An administrative fine of $250 would be fair and reasonable.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation enter a final order that finds the Respondent violated Florida Administrative Code

Rules 61C-1.004(1) and 61C4.010(7)(e), and imposes an administrative fine of $300 against the Respondent.

DONE AND ENTERED this 26th day of July, 2005, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 26th day of July, 2005.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Derek Scott Twistee Treat

2301 Jim Redman Parkway Plant City, Florida 33563

Derek Scott

1423 Ridge Green Loop, North Lakeland, Florida 33563

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 05-001761

Orders for Case No: 05-001761