STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. SUPERSCOOPS,

Respondent.

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) Case No. 04-2681

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on November 29, 2004, by video teleconference between West Palm Beach and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Joshua Finet, pro se

Superscoops

1152 Royal Palm Beach Boulevard Royal Palm Beach, Florida 33411

STATEMENT OF THE ISSUES

Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

Respondent converted an existing location into a retail shop selling ice cream and related products to the consuming public in Royal Palm Beach, Florida. A license from Petitioner is necessary to operate Respondent’s establishment. The plans submitted to Petitioner on October 16, 2003, represented that the ceiling in the food preparation area would be tiled with acoustical tiles. Two inspections were conducted after the facility opened. Both inspections cited Respondent for failing to have an acceptable ceiling over a food preparation area.

After the second inspection, Petitioner filed the Administrative Complaint that underpins this proceeding. Petitioner alleged that Respondent did not have an appropriate ceiling over a food preparation area in violation of Section 6-101.11 of the 1999 Food Code (which has been adopted by reference by Petitioner), thereby violating the provisions of Section 509.261(1), Florida Statutes.1 Respondent timely requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of its employees Lynne Peka, Michael Menor, and Sylvester Bailey.

Petitioner presented four sequentially numbered exhibits, each of which was admitted into evidence. Joshua Finet, the owner of the corporation that owns Respondent, testified. Respondent presented no other testimony and no exhibits.

A Transcript of the proceedings was filed on December 6, 2004. Petitioner filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a Proposed

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida that regulates the operation of food service establishments pursuant to the provisions of Chapter 509, Florida Statutes.

2. At all times relevant to this proceeding Respondent has been a public food service establishment within the meaning of Section 509.013(5), Florida Statutes, and, consequently, has been subject to the Petitioner’s regulatory authority.

3. Respondent’s shop is located at 1152 Royal Palm Beach Boulevard, Royal Palm Beach, Florida. On October 16, 2003, Respondent submitted a facility plan to Petitioner which was reviewed as part of Respondent’s application to operate the

   subject location. The facility plan reflected that the ceilings would be tiled with acoustical tile.

4. The facility has a small food preparation area adjacent to the cash register where the shop clerk adds to the consumer’s ice cream selected toppings, such as candy, chocolates, or nuts. The food preparation area is 23 inches wide and 48 inches long.

5. On March 15, 2004, Mike Menor, an appropriately trained and experienced inspector employed by Petitioner, inspected the subject premises. A number of minor deficiencies were noted. Those deficiencies were subsequently corrected and are not at issue in this proceeding. In addition, Mr. Menor noted a deficiency pertaining to the ceiling in the food preparation area described in the preceding paragraph. This area of the facility had no drop ceiling, so that joists, rafters, and pipes were exposed. The area above the small food preparation area was not smooth and easily cleanable.2

6. On April 15, 2004, Mr. Menor conducted a follow-up inspection of Respondent’s facility. The ceiling deficiency had

   not been corrected.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Section 509.26(1), Florida Statutes, provides as follows:

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

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

      2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

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

         
         

9. Pursuant to the provisions of Florida Administrative Code Rule 61C-1.004, Petitioner has adopted the 1999 Food Code, including Section 6-101.11, which requires the ceilings of public food services establishments be smooth and easily cleanable. Petitioner established that Respondent failed to comply with that requirement after being repeatedly informed of the requirement. Petitioner established that Respondent’s failure constituted a violation of Petitioner’s rules and, consequently, a violation of Section 509.26(1), Florida Statutes, as alleged by Petitioner.

10. Petitioner has cited no penalty guidelines to the undersigned. In making the recommendation that follows, the undersigned has considered that Respondent, as a start-up business, will incur considerable expense if it is necessary for

it to install a drop ceiling in the subject area of the facility. The undersigned has also considered that Mr. Finet attempted to reach what appears to be a reasonable solution to the problem without receiving an answer to his question from Petitioner.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating the provisions of Section 509.26(1), Florida Statutes, as alleged in the Administrative Complaint. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $250.00 for the violation.

DONE AND ENTERED this 4th day of January, 2005, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 4th day of January, 2005.

ENDNOTES

1/ This is a brief overview of the Administrative Complaint. All statutory references are to Florida Statutes (2004) and all rule references are the to the version published in the Florida Administrative Code as of the date of this Recommended Order.

2/ In making this finding, the undersigned has considered Mr. Finet’s testimony that the open area above the small food preparation area was of smooth material and easily cleanable.

Mr. Finet’s position is contrary to the greater weight of the credible evidence. After the first inspection, Mr. Finet asked Mr. Menor for a second opinion (presumably from another inspector or a supervisor) as to whether the open area constituted a violation. He also asked whether placing a sneeze guard over the small food preparation area would suffice. Mr.

Menor did not offer to obtain a second opinion and he did not opine whether the sneeze guard would be sufficient. Although Mr. Finet still seeks an answer to whether a sneeze guard would suffice, the undersigned is unable to provide a definitive response because DOAH’s jurisdiction over this matter is limited to resolving whether the charged violation occurred. Hopefully Petitioner will respond to Mr. Finet’s question in the near future.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Joshua Finet Superscoops

1152 Royal Palm Beach Boulevard Royal Palm Beach, Florida 33411

Finet Restaurant Group, Inc. 2254 Ridgewood Court

Royal Palm Beach, Florida 33411

Leon Biegalski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation 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: 04-002681

Orders for Case No: 04-002681