STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

OZAMORI MOBILE KITCHEN,

Respondent.

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) Case No. 12-3535

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 3, 2012, by video teleconference at sites in Tallahassee, Florida and Jacksonville, Florida, before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent operated a public food-service establishment without a valid license and, if so, the

appropriate sanctions.

PRELIMINARY STATEMENT

On May 8, 2012, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), filed an Administrative Complaint against Respondent, Ozamori Mobile Kitchen (Respondent). The Administrative Complaint alleged that the license under which Respondent operated had expired, and that Respondent was operating without a valid license in violation of section 509.241(1), Florida Statutes, and Florida Administrative Code Rule 61C-1.002(6).

On May 30, 2012, Respondent executed an Election of Rights form and requested a formal administrative hearing involving disputed issues of material fact.

On October 31, 2012, Petitioner referred the case to the Division of Administrative Hearings to conduct a formal hearing. The final hearing was scheduled for December 3, 2012, and was held as scheduled.

At the final hearing, Petitioner presented the testimony of Michael Byrd, a Safety and Sanitation Inspector for Petitioner. Petitioner offered Petitioner‟s Exhibits 1-3, which were

received into evidence. Respondent did not appear at the final hearing.

The one-volume Transcript was filed on December 19, 2012. Petitioner timely filed its Proposed Recommended Order, which has been considered in the preparation of this Recommended Order.

All statutory references are to Florida Statutes (2012).

FINDINGS OF FACT

1. At all times material hereto, Respondent operated a mobile food-dispensing vehicle in Jacksonville, Florida. Respondent held License No. 2651331. A mobile food-dispensing vehicle is a “public food service establishment” as that term is defined in section 509.013, Florida Statutes.

2. On January 9, 2012, Michael Byrd conducted an inspection of Respondent‟s mobile food-dispensing vehicle at its commissary location at 2356 West Beaver Street, Jacksonville, Florida. During the inspection, Mr. Byrd noted that Respondent‟s license, which was displayed as required, had expired on June 1, 2011.

3. Mr. Byrd entered the violation of the Petitioner‟s licensing requirement on an Inspection Report, which report was thereupon signed by Oswald Higgs on behalf of Respondent. The report established March 10, 2012, as the date for a callback inspection, by which time the violation was to be corrected.

   
   

4. On April 20, 2012, Mr. Byrd performed the call back inspection. Respondent failed to produce a current license for the mobile food-dispensing vehicle.

5. Petitioner proved, by clear and convincing evidence, that Respondent was operating a public food-service establishment on an expired license as alleged in the Administrative Complaint.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012).

   1. Standards.

      
      

7. Petitioner is the state agency charged with regulating public lodging establishments and public food-service establishments pursuant to subsection 509.032(1), Florida Statutes.

8. Subsection 509.032(1) provides, in pertinent part,

   
   

   that:

   
   

   (1) The division shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of public lodging establishments and public food service establishments for the purpose of

   
   

   safeguarding the public health, safety, and welfare . . . .

   
   

9. Section 509.032(6) provides that Petitioner shall adopt such rules as are necessary to carry out the provision of this chapter.

10. Subsection 509.241(1) states:

    
    

    1. LICENSES; ANNUAL RENEWALS.-- Each public lodging establishment and public food service establishment shall obtain a license from the division . . . . Licenses shall be renewed annually, and the division shall adopt a rule establishing a staggered schedule for license renewals.

       
       

11. Florida Administrative Code Rule 61C-1.002(6) provides, in pertinent part, that:

    Renewal - It is the responsibility of the licensee to renew the license prior to the expiration date . . . . Any public lodging or food service establishment operating on an expired license is deemed to be operating without a license, and subject to the penalties provided for this offense in law and rule.

    
    

    The rule establishes June 1 of each year as the renewal date for all food-service establishments in Duval County, Florida.

12. Section 509.261 provides, in pertinent part, that:

    
    

    1. Any . . . public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, [or] operating without a license, . . . may be subject by the division to:

       
       

       1. Fines not to exceed $1,000 per offense;

          
          

       2. Mandatory completion, at personal expense, of a remedial educational program administered by a food safety training program provider approved by the division, as provided in s. 509.049; and

          
          

       3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

       
       

13. Florida Administrative Code Rule 61C-1.005 establishes the disciplinary guidelines for imposing penalties upon public food-service establishments in administrative actions. Subsection (6)(f) of the rule establishes a penalty of an administrative fine of $250 to $500 for a first offense of operating a public food-service establishment without a license or with a license expired for more than 60 days.

    1. The Burden and Standard of Proof.

    
    

14. Petitioner bears the burden of proving the specific allegations of fact that support the charges alleged in the Administrative Complaint by clear and convincing evidence.

    § 120.57(1)(j), Fla. Stat.; Dep‟t of Banking & Fin., Div. of

    
    

    Sec. & Inv. Prot. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v.

    Dep‟t of Ins. and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

    
    

15. Clear and convincing evidence “requires more proof than a „preponderance of the evidence‟ but less than „beyond and to the exclusion of a reasonable doubt.‟” In re Graziano,

    
    

    696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof

    entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros.,

    Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

    
    

16. Petitioner proved, by clear and convincing evidence, that Respondent violated subsection 509.241(1), Florida Statutes, and Florida Administrative Code Rule 61C-1.002(6) by

    
    

    operating public food-service establishment without a current and valid license.

17. An administrative penalty calculated in accordance with Florida Administrative Code Rule 61C-1.005 is appropriate in this case. There were no aggravating or mitigating

circumstances proven.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants, enter a final order:

1. Finding that Respondent, Ozamori Mobile Kitchen, violated section 509.241(1), Florida Statutes, and Florida Administrative Code Rule 61C-1.002(6); and

2. Imposing an administrative penalty against Respondent, Ozamori Mobile Kitchen, in the amount of $500, payable to Petitioner within 30 calendar days of the effective date of the final order entered in this case.

DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2013.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

Oswald Higgs

Ozamori Mobile Kitchen 2560 Automobile Drive

Jacksonville, Florida 32209

Amy Toman, Hearing Officer Office of the General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

J. Layne Smith, General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

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: 12-003535

Orders for Case No: 12-003535