Judges: LINDA M. RIGOT
Agency: Department of Business and Professional Regulation
Latest Update: Aug. 16, 1982
Summary: Civil fine assessed for refusing entry to public health inspector for inspection of restaurant's kitchen during normal hours of business.
82-0664STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF HOTELS ) AND RESTAURANTS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-664
) MT. KEY, INC., d/b/a KEY LARGO ) RESTAURANT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 28, 1982, in Key Largo, Florida.
APPEARANCES
For Petitioner: William A. Hatch, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Did not appear and was not represented.
Petitioner issued a Notice to Show Cause to Respondent, Mt. Key, Inc., doing business as Key Largo Restaurant, License Control No. 54-29-R, alleging that Respondent had denied authorized persons the right to enter the premises to conduct a routine inspection on December 17, 1981. Demand for formal hearing was made by Douglas Newell, President. Accordingly, the issue for determination is whether Respondent's license should be suspended, revoked, or have a civil penalty assessed against it.
Petitioner presented the testimony of Howard Farris and Arthur Maze. Additionally, Petitioner's Exhibits numbered 1 through 4 were admitted in evidence.
Petitioner submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner.
On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell.
On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures.
Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant.
Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc.
Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.
Chapter 509, Florida Statutes (1981), authorizes Petitioner to regulate public lodging and public food service establishments. Section 509.091 provides that service of notices be made on the "operator" of a public food service establishment. Section 509.013(2) defines "operator" as "the owner, operator, keeper, proprietor, lessee, manager, assistant manager, desk clerk, agent, or employee of a public food service establishment." Since Newell and his corporation are the lessee, manager, and operator of the Key Largo Restaurant, Petitioner properly served its Notice to Show Cause and all subsequent documents on its licensee Mt. Key, Inc., by serving Douglas Newell.
Section 509.032(2)(a), Florida Statutes (1981), provides that the Petitioner "shall inspect at least four times annually each public food service
establishment in this state, and for that purpose it, or its contractual designee, shall have the right of entry and access to such establishments at any reasonable time." Sanitarians Farris and Maze of the Monroe County Health Department, a unit of the Department of Health and Rehabilitative Services and contractual designee, have the right of entry and access to the Key Largo Restaurant and its kitchen facilities at any reasonable time. Since the Key Largo Restaurant was open for business on December 17, 1981, when the inspectors attempted to inspect the premises, their request to inspect was made at a reasonable time. The denial to them of the right of entry was in violation of Section 509.032(2)(a), Florida Statutes (1981), as alleged in the Petitioner's Notice to Show Cause.
Section 509.261, Florida Statutes (1981), provides that the Division of Hotels and Restaurants may suspend or revoke the license of any public food service establishment that has violated any of the provisions of Chapter 509; in lieu thereof, the Division may impose a civil penalty not to exceed $500 for each offense. Petitioner has recommended that a penalty of $500 be imposed, and no evidence has been presented in mitigation of that recommendation. The recommended penalty is reasonable in light of the severe nature of the offense, denying the inspectors the right to enter and inspect.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED THAT:
A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500.
RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1982.
COPIES FURNISHED:
William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Douglas Newell
c/o Key Largo Restaurant Overseas Highway
Post Office Box 494
Key Largo, Florida 33037
Mt. Key, Inc.
c/o Key Largo Restaurant Overseas Highway
Post Office Box 494
Key Largo, Florida 33037
Mr. Gary Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Docket for Case No: 82-000664
Orders for Case No: 82-000664
| Issue Date |
Document |
Summary |
|
Aug. 16, 1982 |
Recommended Order
|
Civil fine assessed for refusing entry to public health inspector for inspection of restaurant's kitchen during normal hours of business.
|
