STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 00-4321

)

THAI CAFE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on December 19, 2000, via video teleconference at sites in Fort Myers and Tallahassee, Florida.

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: No appearance

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent's public food establishment license should be revoked or

otherwise disciplined based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

On March 27, 2000, the Department of Business and Professional Regulation (the "Department") filed an Administrative Complaint against Respondent, alleging that Respondent failed to renew a license to operate and continued to operate without licensure, in violation of Section 509.241(1), Florida Statutes, and Rule 61C-1.002(6), Florida Administrative Code. Respondent contested the Administrative Complaint, and on October 19, 2000, the Department transmitted the case to the Division of Administrative Hearings for assignment of an Administrative Law Judge and to conduct a formal administrative hearing pursuant to Section 120.57, Florida Statutes.

The case was set for hearing via videoconference on December 19, 2000. The Department's counsel was present and prepared to proceed with the hearing. Respondent was not present, and did not provide notice of its unavailability.

The Department was allowed to proceed with the hearing. On December 19, 2000, the undersigned entered an Order to Show Cause, notifying Respondent that the hearing had been held and providing Respondent a period of 10 days to show cause as to why the record should not be closed and a recommended order

entered based on the current state of the record. Respondent did not respond to the Order to Show Cause.

At the hearing, the Department presented the testimony of Lisa Marie Wofford, a sanitation and safety specialist for the Division of Hotels and Restaurants, and Karlin Dorothy Kahl, a management review specialist and compliance coordinator for District 6. The Department's Exhibits 1 through 4 were admitted into evidence.

A Transcript of the hearing was filed on January 17, 2001. The Department filed a Proposed Recommended Order on January 25, 2001. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made:

1. At all times relevant to this proceeding, Respondent, Thai Café, operated a public food service establishment, located at 4200 Tamiami Trail, Unit 14, Port Charlotte, Florida 33952-9233. Respondent's license, number 18-01285-R, expired on December 1, 1999, and was not renewed until March 22, 2000.

2. Lisa Marie Wofford was, at all times relevant to this proceeding, a sanitation and safety specialist for the

   Division of Hotels and Restaurants, acting primarily as a restaurant inspector.

3. On January 10, 2000, Ms. Wofford inspected Respondent's restaurant, which was open and operating. She found several violations of food service rules that she enumerated on a food service inspection report. The report warned Respondent that it had 10 days, until January 20, 2000, to correct the violations. Ms. Wofford entered a question mark on the report beside the license expiration date, because she could not at that time confirm when Respondent's license would expire.

4. On January 20, 2000, Ms. Wofford conducted a "call back" inspection of Respondent's restaurant, which was open and operating. She found violations of food service rules, which she enumerated on a call back/reinspection report. Ms. Wofford testified that she could not recall whether she looked for Respondent's license on this call back inspection.

5. On March 7, 2000, Ms. Wofford conducted a routine food service inspection of Respondent's restaurant, which was open and operating. She found Respondent in violation of food service rules and found that Respondent failed to display a current license. She enumerated these violations on a food service inspection report. Ms. Wofford noted on this report

   that Respondent was operating its restaurant without a license. Ms. Wofford testified that during the inspection, the owner told her that he had "mailed the license fee already, yesterday."

6. At all times relevant to this proceeding, Karlin Dorothy Kahl was a management review specialist and compliance coordinator for the Division of Hotels and Restaurants, District 6, and was a custodian of the records maintained at the district office in Fort Myers.

7. Ms. Kahl testified that the Division's records reflected that Respondent's license expired on December 1, 1999. The records also reflected that the license fee was not received by the Department until March 22, 2000, well after Ms. Wofford's inspections of January 10, January 20, and March 7, 2000.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57, Florida Statutes.

9. The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the agency charged with licensure and inspection of public food service establishments, pursuant to Chapter 509, Florida Statutes.

10. Respondent is a public food establishment, as defined by Section 509.013(5), Florida Statutes, and is licensed by and subject to the regulatory authority of the Department.

11. Section 509.241(1), Florida Statutes, states in relevant part:

    Each public lodging establishment and public food service establishment shall obtain a license from the division. . . .

    Licenses shall be renewed annually. . . .

    
    

12. Rule 61C-1.002(6), Florida Administrative Code, states in relevant part:

    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.

    
    

13. The Department has carried its burden of demonstrating by clear and convincing evidence that Respondent violated Section 509.241(1), Florida Statutes, and Rule 61C- 1.002(6), Florida Administrative Code, by failing to renew its license on or before December 1, 1999.

14. Section 509.261(1)(a), Florida Statutes, provides that the Department may suspend or revoke the license of, or impose an administrative fine of up to $1,000 per offense

    upon, any public food service establishment operating without a license.

15. Section 509.281(2), Florida Statutes, provides that each day that a public food service establishment operates in violation of statute or rule constitutes a separate offense.

16. The Department requests the imposition of a $1,000 fine in this case, to be reduced to $500 if paid within 10 days of entry of the final order. The Department believes that this lesser fine is appropriate because Respondent did pay the license fee shortly after Ms. Wofford warned Respondent's owner of the violation. It is concluded that the Department's request is reasonable and consistent with fair enforcement of the governing statutes and rules.

RECOMMENDATION

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

Respondent shall pay an administrative fine of $1,000, to be reduced to $500 if paid within 10 days of the date the final order is entered in this proceeding.

DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida.

___________________________________ LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001.

COPIES FURNISHED:

Thai Café

3135 Cortez Road

Fort Myers, Florida 33901

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Herbert S. Fecker, Director Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street Orlando, Florida 32802-1900

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 00-004321

Orders for Case No: 00-004321