STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 14-2557

CLINTON GREEN, d/b/a CLINTON GREEN,

Respondent.

/

*CORRECTED AS TO THE CHARGING STATUTE ONLY

CORRECTED* RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was conducted in this case on July 10, 2014, via videoconferencing with sites in Tallahassee and Jacksonville, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and Profession Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Clinton Green, pro se

8117 Colonnade Court, West Jacksonville, Florida 32244

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent was operating a public food service establishment without a license, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 7, 2014, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (hereinafter the "Division"), filed an Administrative Complaint charging Respondent with violating section 509.241(1), Florida Statutes (2013), by operating a mobile food establishment without first procuring a license. Respondent, Clinton Green (“Green”), returned the Election of Rights form, seeking a formal administrative hearing to contest the allegations in the Administrative Complaint. The Administrative Complaint and Election of Rights form were forwarded to the Division of Administrative Hearings ("DOAH") on May 30, 2014, and the case was assigned to the undersigned Administrative Law Judge so that a formal administrative hearing could be conducted. The hearing was held on the date set forth above, and both parties were present. The Division was represented by counsel; Mr. Green appeared on behalf of himself.

At the final hearing, the Division called two witnesses: Nicholas Huckaba, sanitary safety specialist (a/k/a inspector); and Andrew Fielder, supervisor. The Division's Exhibits 1-3 were

admitted into evidence. Official recognition was taken of Florida Administrative Code Rule 61C-1.005, and sections 509.032(6), 509.013(5), and 509.241, Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 codification.

Mr. Green testified on behalf of himself, did not call any other witnesses, and did not offer any exhibits into evidence.

A transcript of the final hearing was ordered by the parties. The Transcript was filed at DOAH on August 4, 2014. By rule, the parties were allowed ten days from filing of the transcript to submit proposed recommended orders. Green submitted a pleading entitled “Evidence Supporting My Claim” prior to the transcript being filed at DOAH, which was accepted as his proposed recommended order; the Department submitted a Proposed Recommended Order on August 14, 2014. Each of the parties’ submissions was duly considered in the preparation of this Recommended Order.

Green’s post-hearing submission contained a request for an “immediate order of estoppel” and the return of all property taken from him, including license fees and penalties imposed by both state and municipal governments. The request is without basis or merit and is hereby denied.

FINDINGS OF FACT

1. At all times relevant hereto, Green was operating a mobile food service vehicle at the corner of Hogan Street and West Union Street (the “Site”) in Jacksonville, Florida. By his own admission, Green did not possess a food service license from the State of Florida.

2. The Division is the state agency responsible for the licensing and regulation of public food service establishments, pursuant to chapter 509, Florida Statutes.

3. On Tuesday, April 1, 2014, food inspector Huckaba was conducting a callback inspection of a restaurant in the downtown Jacksonville, Florida, area. As he was leaving a food service establishment, he noticed a mobile food service establishment (the “Food Trailer”) at the Site. Huckaba observed Mr. Green preparing food--a hotdog--and serving it to a customer; the customer paid for the food with cash. Huckaba noticed there was not a valid food service license posted on the Food Trailer. When asked by Huckaba, Green stated that he did not have such a license.

4. On the next day, April 2, Huckaba and his supervisor, Fielder, revisited the Site for the purpose of determining whether Green had a valid license to operate the Food Trailer and whether the establishment was being operated in accordance with provisions of Florida law and rules.

   
   

5. It was again determined that Green did not have a license to operate the Food Trailer. Upon further inspection, Huckaba determined that the following food service violations existed (with corresponding sections from the U.S. Public Health Service/FDA Food Code, a description of the violation, and the level of violation):

   • 08B-38-4 Food stored on the floor--Basic

   • 12A-07-4 Employee failed to wash hands before putting on gloves to work with food--High

   • 28-10-4 Sewage holding tank less than 15% larger in capacity than water supply--Basic

   • 31A-03-4 Handwash sink not accessible for employee due to items stored in sink-- Intermediate

   • 31B-04-4 No handwashing sign provided at sink used by employees--Basic

   • 50-08-4 Operating without a license--High

   • 51-10-4 Interference/obstruction with inspector’s right to entry--Intermediate

     
     

6. Huckaba issued a Food Service Inspection Report setting forth his findings. Green did not sign the report but was furnished a copy. The report was assigned “license number” D05- 04-26; and a “rank”--MFDV. D05 is the designation for district 5, i.e., Jacksonville. 04 is inspector Huckaba’s area number.

   26 is the designation for Duval County. MFDV stands for mobile food dispensing vehicle.

7. The Division then conducted a search of its data base for the purpose of determining whether a food service license had

   
   

   ever been issued to Clinton Green. No such license was discovered.

8. The Division thereafter issued an Administrative Complaint, precipitating the instant matter. The Administrative Complaint cited Green for operating a food service establishment without a license and for the other enumerated violations set forth above. (No evidence was presented at final hearing as to the issues other than the failure to have a license; the other issues are not addressed further in this Recommended Order.)

9. At the final hearing held in this case, Green readily admitted that he did not hold a license issued by the State of Florida for operating a public food service establishment. Due to that admission, there is no disputed issue of material fact to be considered by the undersigned. However, inasmuch as the hearing was conducted and evidence was taken, it is appropriate to set out Green’s stated justification, rationale, and bases for his actions before applying the law to the undisputed facts.

   Rationale for not having a license

   
   

10. Green says he is a human being and is entitled to provide for his family and work as he sees fit. This is a God- given right, he asserts, that cannot be restricted by man.

11. The State of Florida is the only “entity” which can require Green to have a license. However, Green believes the State is a nebulous, ephemeral “thing” that does not actually

    
    

    exist. He claims the so-called agents of the State are not the State, per se, thus their words have no force or effect.

12. Green issued affidavits to an agent of the State (Steve Budungen, district manager of the Division) in 2008 setting forth his beliefs about licensure, State actions, etc. In the affidavits, Green demanded certain documents and information from Budungen. Inasmuch as Budungen did not respond to his affidavits, Green believes that his statements therein

    have the force and effect of law and are “the truth.” As support for Green’s position vis-à-vis the affidavits, he cites to Morris

    v. National Cash Register, 44 S.W.2d 433, 434 (Ct. Civ. App. Tex. 1931). That case, while it does address an affidavit attached to a motion to vacate a judgment, does not stand for the proposition alleged by Green, i.e., that once an affiant makes a statement, it becomes the truth for all purposes. Green’s reading of the law is flawed.

13. Green also asserts that U.S. v. Tweel, 550 F.2d 297

    
    

    (5th Cir. 1977), stands for the proposition that “Silence can only be equated with fraud when there is a legal and moral duty to speak, or when inquiry left unanswered would be intentionally misleading.” Green did not explain why this proposition was relevant to the facts of the instant case. The Tweel case had to do with the Internal Revenue Service intentionally withholding from the plaintiff’s lawyer the fact that plaintiff was about to

    
    

    undergo a criminal investigation. This intentional deception then lulled plaintiff into a false sense of security and kept him from preparing for his criminal investigation. While Green made a general allegation that the Department had “clearly been intentionally deceptive” concerning its dealings with him, he provided no evidence to support the allegation.

14. Green also seems to suggest that he was “cunningly coerced” into waiving his right to due process, citing U.S. v

    Minker, 350 U.S. 179 (1956). There is no support in the record to support Green’s allegation of coercion and it is not relevant to the facts of this case. The holding in the Minker case is not dispositive of any issue in the instant matter.

15. Green states that he is not a chattel to be used and abused by the State as it sees fit. Green says that only if the State of Florida (itself) walks up to him and says, “You need to have a license,” will he believe he has to have one. Otherwise, he doesn’t see any requirement to have a license. And since the State is a fictitious person, unable to speak, he says there is no need to have a license.

16. Lastly, Green says that the only way he would be required to have a license to sell food from his vehicle is if he entered into a contract with the State giving the State permission to govern his actions. Besides, he asserts, the Administrative Complaint filed in this matter lists his name in

    
    

    all capital letters. Only corporations, he asserts, are spelled out in all capital letters; he is, conversely, a natural person. Thus, he reasons, the Administrative Complaint is invalid.

    CONCLUSIONS OF LAW

    
    

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

18. The Division has charged Green with operating a “public food service establishment” without a license. That term is defined in section 509.013(5) as “[Any] building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.” The statute then sets forth certain places or things that are excluded from the definition, none of which are pertinent to the facts of this case.

19. The burden of proof is on the Division to show, by clear and convincing evidence, that Green was operating a public food service establishment without a license. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The clear and convincing

    evidence standard is used in the instant case because the action

    
    

    is a penal licensure proceeding. Munch v. Dep't of Prof'l Reg.,

    
    

    592 So. 2d 1136 (Fla. 1st DCA 1992).

    
    

20. Clear and convincing evidence is an intermediate standard of proof which is more than the "preponderance of the evidence" standard used in most civil cases, but less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970). Clear and

    convincing evidence has been defined as evidence which:

    
    

    [R]equires 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.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) (citations omitted).

21. It is clear from the evidence (and Green’s own admission) that Green was operating a public food service establishment. It is also clear from the evidence that Green did not possess a valid food service license.

22. Disciplinary actions as contemplated in the above- referenced statute may be based only upon those offenses specifically alleged in the Administrative Complaint. See

    Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996);

    
    

    Kinney v. Dep't of State, 501 So. 2d 129, 133 (Fla. 5th DCA

    
    

    1987); and Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel and Rest. Comm'n v. Sunny Seas No. One, 104 So. 2d 570, 571 (Fla. 1958).

23. Florida Administrative Code Rule 61C-1.005 sets forth the various penalties and fines that can be imposed for violations of the Food Code. Rule 61C-1.005(6)(g) sets forth the standard penalty for operating a food service establishment without a license; the fine ranges from $500 to $1000 for a first offense.

24. Green was operating without a license. There was no evidence presented that this was other than Green’s first offense. However, Green’s utter disregard for the applicability of law to his operations is a concern. Based upon the evidence, a fine of $500 is warranted.

25. Green correctly asserted statements of law that apply to all citizens. He acknowledges that the State has no authority to dictate what he may sell, “so long as it is being legally sold in this state.” Selling food from a vehicle in this state is illegal unless the seller has obtained a license to operate. See

§ 509.241, Fla. Stat. Green also recognizes that “All are equal under the law.” Therefore, he, like all other citizens, must be licensed in order to sell food to the public.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500 against Respondent, Clinton Green.

DONE AND ENTERED this 20th day of August, 2014, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 20th day of August, 2014.

COPIES FURNISHED:

Clinton Green

8117 Colonnade Court, West Jacksonville, Florida 32244

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

J. Layne Smith, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

J. Yvette Pressley, Hearing Officer Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

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 Corrected Recommended Order. Any exceptions to this Corrected Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 14-002557

Orders for Case No: 14-002557