STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

DIPPIN' DOTS,

Respondent.

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) Case No. 05-4328

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RECOMMENDED ORDER

A final hearing in this case was held on February 8, 2006, in Cocoa Beach, Florida, before Bram D.E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint on June 3, 2005, alleging that Respondent Dippin' Dots had violated certain state laws regulating the operation of food service establishments. Respondent disputed the allegations and requested an administrative hearing. Petitioner referred the matter to DOAH to conduct an evidentiary hearing.

Notice of the hearing was sent to the parties on December 13, 2005. On February 8, 2006, one hour before the hearing, Respondent informed the undersigned's assistant that Respondent would not be appearing at the hearing. Because

counsel for Petitioner and the undersigned had already traveled to Cocoa Beach, Florida, for the hearing and good cause for Respondent's failure to appear had not been shown, the hearing was held as scheduled, and Petitioner was allowed to present its case.

Petitioner presented the testimony of Diane Maynard, a sanitation and safety specialist with the Division of Hotels and Restaurants. Petitioners' Exhibits 1 through 3 were admitted into evidence. Petitioner's request for official recognition of Subsections 509.032(6) and 509.101(2) and Section 509.039,

Florida Statutes (2005)1/; Florida Administrative Code Rule 61C-4.023(1); and Food Code Rule 4-101.111, was granted.

Following the hearing, Respondent was ordered to show cause for its failure to appear at the hearing and was informed that, if good cause were shown, an opportunity would be provided to Respondent to supplement the record, subject to cross- examination and other rights of Petitioner. No response was received from Respondent by the deadline established for a response, and the evidentiary record was closed.

A one-volume Transcript of the hearing was filed on February 23, 2006. Petitioner submitted a Proposed Recommended Order, and it was considered in the preparation of this Recommended Order. No post-hearing submittal was made by Respondent.

FINDINGS OF FACT

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

2. Respondent is a food service establishment located at 3800 Atlantic Avenue in Cocoa Beach, Florida. Respondent holds License No. 1505775.

3. Ms. Maynard's duties as a sanitation and safety specialist employed by the Division of Hotels and Restaurants include inspecting food service establishments and lodging

   facilities for compliance with applicable law. She conducts approximately 1,200 such inspections each year.

4. On March 14, 2005, Ms. Maynard conducted a routine inspection of Dippin' Dots and issued a Food Service Inspection Report. In the report, Ms. Maynard noted several violations, among which are the three violations charged in Petitioner's Administrative Complaint: 1) the shelves in the kitchen were made of unsealed pressboard; 2) there was no Food Manager Certification available; and 3) there was no copy of Chapter 509, Florida Statutes, available.

5. Unsealed pressboard can absorb food particles and liquids and is difficult to clean.

6. The March 14, 2005, inspection report indicated that the lack of proof of Food Manager Certification is a "critical violation." Ms. Maynard explained that this is a critical violation because the certificate is issued as proof of training in the handling of food to prevent illness to the public.

7. The inspection report included a notation that the violations had to be corrected by April 18, 2005.

8. Ms. Maynard discussed the inspection report with Respondent's employee, Theresa Kihn, who was present at the time of the inspection. Ms. Kihn signed the inspection report to acknowledge that she had received a copy of it.

9. Ms. Maynard conducted a "callback" inspection of Dippin' Dots on April 18, 2005, and prepared a Callback Inspection Report on that date. She noted in this second report that the three violations identified above had not been corrected.

10. A copy of the Callback Inspection Report was left with Ms. Kihn, who signed the report to acknowledge her receipt of it.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

12. Pursuant to Subsection 509.261(1), Florida Statutes, 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 Respondent's license.

13. Because Subsection 509.262(1), Florida Statutes, is a penal statute and Petitioner is seeking to impose a penal sanction, 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. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

14. 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).

15. 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).

16. Florida Administrative Code Rule 61C-1.004(1) adopts by reference the Food Code of the United States Department of Agriculture. Food Code Rule 4-101.111 requires "surfaces exposed to splash, spillage, or other FOOD soiling or that require frequent cleaning shall be constructed of a corrosion- resistant, nonabsorbent, and SMOOTH material." Petitioner met its burden to prove by clear and convincing evidence that Respondent violated this regulation by using pressboard for shelving. Pressboard is not a smooth, nonabsorbent material.

17. Florida Administrative Code Rule 61C-4.023(1) requires all managers responsible for handling foods and serving food to

    the public to pass a certification test and to make the certificate available for inspection at the food service establishment. Petitioner met its burden to prove by clear and convincing evidence that Respondent violated this regulation by failing to have a Food Manager Certification available for inspection.

18. In its Proposed Recommended Order, Petitioner asserts that Respondent's failure to have a copy of Chapter 509, Florida Statutes, is a violation of Subsection 509.101(2), Florida Statutes. That statute, however, is applicable to operators of transient public lodging establishments, not to food service establishments.

19. Petitioner seeks to impose a penalty of $1,100 against Respondent for the three violations charged, but did not indicate what penalty it was seeking for each violation. A penalty of $1,000 would be fair and reasonable under the circumstances for the two violations that were proven.

20. Petitioner also seeks to have Respondent attend an educational program sponsored by the Hospitality Education Program. That is fair and reasonable under the circumstances.

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:

1. finds Respondent violated Food Code Rule 4-101.111, and Florida Administrative Code Rule 61C-4.023(1);

2. requires Respondent to pay an administrative fine of

   
   

   $1,000; and

   
   

3. requires Respondent to attend an education program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 1st day of March, 2006, 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 1st day of March, 2006.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to Florida Statutes (2005).

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Suite 42

Tallahassee, Florida 32399-2202

Chris Bosket Dippin' Dots

1290 Belvedere Avenue

Jacksonville, Florida 32205

Chris Bosket Dippin' Dots

1000 Otter Creek Drive Orange Park, Florida 32065

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, 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: 05-004328

Orders for Case No: 05-004328