STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

DALE HILL, d/b/a

D AND R BBQ AND CATERING,

Respondent.

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) Case No. 05-3797

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on December 1, 2005, in Sarasota, Florida, before Fred L. Buckine, the duly-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 ISSUES

Whether Respondent committed the acts alleged in the Administrative Complaint dated August 6, 2004, and, if so, what action should be taken against Respondent.

PRELIMINARY STATEMENT

On July 18, 2004, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (DBPR), entered an Administrative Determination and Order of Closure: Mobile Food Vendor, against Respondent, Dale Hill, d/b/a D and R BBQ and Catering (Respondent), at 4460 Tallevast Road, Sarasota, Florida 34243, after observation and inspection revealed that Respondent was operating an unlicensed establishment pursuant to Chapter 509, Florida Statutes (2004). At that time, Respondent was provided information on plans and review for licensing procedures. The style of this case was amended to Dale Hill, d/b/a D and R BBQ and Catering, to correctly identify the party against whom action was taken by Petitioner.

On August 6, 2004, DBPR filed an Administrative Complaint, DBPR No 2004-040515, against Respondent alleging violations of the United States Department of Agriculture Food Code (Food Code), Chapter 509, Florida Statutes (2004), and the rules promulgated thereto. The Administrative Complaint charged Respondent with violations of the following:

1. Rule 5-103.12, Food Code;

   
   

2. Florida Administrative Code Rule 61C-1.004(2)(d);

   
   

3. Rule 5-204.11(A) and (B), Food Code;

4. Rule 6-401.10, Section 5-204.11, Food Code;

1. Rule 6-202.15, Food Code; and

   
   

2. Subsection 509.241(1), Florida Statutes (2004).

On November 2, 2004, Respondent signed an Election of Rights form disputing the allegations in the Administrative Complaint and petitioned for a formal administrative hearing involving disputed issues of material fact.

On October 13, 2005, the case was transferred to the Division of Administrative Hearings ("DOAH") pursuant to Subsection 120.57(1), Florida Statutes (2005), and on that same day the Initial Order was entered. On October 18, 2005, DBPR responded to the Initial Order, and on October 19, 2005, the Order of Pre-Hearing Instructions and the Notice of Hearing were entered scheduling the formal hearing for December 1, 2005, in Sarasota, Florida. On November 10, 2005, DBPR filed its List of Witnesses.

At the formal hearing on December 1, 2005, DBPR presented the testimony of Victoria Bagley, senior sanitation and safety specialist with DBPR, and offered four (Nos. 1 thru 4) exhibits that were accepted into evidence. Respondent did not appear at the formal hearing.

Upon request of DBPR, official recognition was taken by the undersigned of Rules 5-103.12, 5-204.11, 6-401.10, and 6-202.15,

Food Code; Florida Administrative Code Rule 61C-1.004(2)(d); and Subsections 509.032(6) and 509.241(1), Florida Statutes (2004).

On December 19, 2005, the Transcript was filed. On January 24, 2006, DBPR filed a motion for extension of time to file the proposed recommended order, and on January 25, 2006, an Order granting extension was entered. DBPR filed a Proposed Recommended Order on January 30, 2006, that was considered by the undersigned.

FINDINGS OF FACT

Based upon observation of the witness and her demeanor while testifying in person, documentary materials received into evidence, and the entire record compiled herein, the following relevant and material facts are determined:

1. At all times material hereto, Respondent, Dale Hill, d/b/a D and R BBQ and Catering, was not licensed, nor had he been licensed to operate a public food service establishment in the State of Florida by DBPR.

2. Victoria Bagley, senior sanitation and safety specialist with DBPR, is certificated in food management; special fire inspection; standardized public lodging, the Food Code; public food service laws; and rules of the State of Florida. Ms. Bagley has conducted approximately 750 inspections annually during the last three years of her 14-year tenure with DBPR.

3. On July 18, 2004, during an inspection of the premises, Ms. Bagley found Respondent was operating D and R BBQ and Catering without the required license. This is a critical item violation. A critical item violation is a provision of the Food Code, that, if in noncompliance, is more likely than other violations to contribute to food contamination, illness, or environmental health hazard and is denoted in the Food Code with an asterisk. Rule 1-201.10(b)(19), Food Code.

4. The July 18, 2004, inspection found a lack of hot and cold running water at the required fixtures. This is a critical item violation.

5. The July 18, 2004, inspection found there was not a conveniently located handwash sink. This is a critical item violation.

6. By clear and convincing evidence, Petitioner proved each allegation in the Administrative Complaint filed against Respondent in this case.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57 and Chapter 509, Florida Statutes (2005).

8. Petitioner has the burden of proving, by clear and convincing evidence, allegations against Respondent contained in

   the Administrative Complaint filed in this cause. Department of Banking and Finance, Division of Securities and Investor

   Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); and Pic N' Save Central Florida, Inc. v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and

   Tobacco, 601 So. 2d 245, 249 (Fla. 1st DCA 1992). In Slomowitz

   
   

   v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court provided guidance to the clear and convincing evidence standard:

   [C]lear 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 evidence 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 is 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.

   
   

9. Petitioner is the state agency charged with regulating public lodging establishments and public food service establishments pursuant to Subsection 509.032(1), Florida Statutes (2004).

10. Subsection 509.032(1), Florida Statutes (2004), provides 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. The division shall be responsible for ascertaining that an operator licensed under this chapter does not engage in any misleading advertising or unethical practices . . . .

       
       

11. Subsection 509.241(1), Florida Statutes (2004), provides that:

    1. Each public lodging establishment and public food service establishment shall obtain a license from the division. Such license may not be transferred from one place or individual to another. It shall be a misdemeanor of the second degree, punishable as provided in s. 775.082 or

       s. 775.083, for such an establishment to operate without a license. Local law enforcement shall provide immediate assistance in pursuing an illegally operating establishment. The division may refuse a license, or a renewal thereof, to any establishment that is not constructed and maintained in accordance with law and with the rules of the division.

       
       

12. Subsection 509.032(6), Florida Statutes (2004), provides that DBPR shall adopt such rules as are necessary to carry out the provision of this chapter.

13. Rule 5-103.12, Food Code, states:

    
    

    Water under pressure shall be provided to all fixtures, equipment, and nonfood equipment that are required to use water except that water supplied as specified under [paragraphs] 5-104.12(A) and (B) to a temporary food establishment or in response to a temporary interruption of a water supply need not be under pressure.

14. Florida Administrative Code Rule 61C-1.004(2)(d) states:

    The following general requirements and standards shall be met by all public lodging and public food service establishments:

    
    

    * * *

    
    

    (2) Public bathrooms.

    
    

    * * *

    
    

    (d) For the purpose of this section, the term toilet shall mean a flush toilet properly plumbed, connected and discharging to an approved sewage disposal system. In a bathroom where more than one toilet is provided, each toilet shall be separated by a partition from adjoining fixtures and a door shall be provided which will partially conceal the occupant from outside view.

    
    

15. DBPR proved by clear and convincing evidence that Respondent violated Rule 5-103.13, Food Code, and Florida Administrative Code Rule 61C-1.004(2)(d), by not having hot and cold running water provided.

16. Rule 5-204.11, Food Code, states:

    
    

    A handwashing facility shall be located:

    
    

    1. To allow convenient use by Employees in Food preparation, Food dispensing, and Warewashing areas: and

       
       

    2. In, or immediately adjacent to, toilet rooms.

17. Rule 6-401.10, Food Code, states:

    
    

    Handwashing facilities shall be conveniently located as specified under [section]

    5-204.11.

    
    

18. DBPR proved by clear and convincing evidence that Respondent violated Rules 5-204.11 and 6-401.10, Food Code, by not having a conveniently located hand-washing sink provided.

19. Rule 6-202.15, Food Code, states:

    
    

    1. Except as specified in [paragraphs] (B), (C), and (E) and under [paragraph] (D) of this section, outer openings of a Food Establishment shall be protected against the entry of insects and rodents by: (1) Filling or closing holes and other gaps along floors, walls, and ceilings;

       1. Closed, tight-fitting windows; and

       2. Solid, self-closing, tight-fitting doors.

       
       

    2. Paragraph (A) of this section does not apply if a Food Establishment opens into a large structure, such as a mall, airport, or office building, or into an attached structure, such as a porch, and the outer openings from the larger or attached structure are protected against the entry of insects and rodents.

       
       

    3. Exterior doors used as exit need not be self-closing if they are: (1) Solid and tight-fitting; (2) Designed for use only when an emergency exists, by the fire protection authority that has jurisdiction over the Food Establishment; and

       (3) Limited-use so they are not used for entrance or exit from the building for purposes other than the designed emergency exit use.

       
       

    4. Except as specified in [paragraphs]

    (B) and (E) of this section, if the windows

    or doors of a Food Establishment, or of a larger structure within which a Food Establishment is located, are kept open for ventilation or other purposes or a temporary Food Establishment is not provided with windows and doors as specified under [paragraph] (A) of this section, the openings shall be protected against the entry of insects and rodents by: (1) 16 mesh to 25.4mm (16 mesh to 1 inch) screens;

    1. Properly designed and installed air curtains to control flying insects; or

    2. Other effective means.

    
    

    (E) Paragraph (D) of this section does not apply if flying insects and other pests are absent due to the location of the establishment, the weather, or other limiting condition.

    
    

20. DBPR proved by clear and convincing evidence that Respondent violated Rule 6-202.15, Food Code, by having an outside barbeque cooker without floors, walls, or ceiling; by serving food from a tent without floors and walls; and by preparing and cooking food in the open air.

21. Subsection 509.241(1), Florida Statutes (2004), states:

    1. LICENSES; ANNUAL RENEWALS.-- Each public lodging establishment and public food service establishment shall obtain a license from the division. Such license may not be transferred from one place or individual to another. It shall be a misdemeanor of the second degree, punishable as provided in

       s. 775.082 or s. 775.083, for such an establishment to operate without a license. Local law enforcement shall provide immediate assistance in pursuing an illegally operating establishment. The division may refuse a license, or a renewal

       thereof, to any establishment that is not constructed and maintained in accordance with law and with the rules of the division. The division may refuse to issue a license, or a renewal thereof, to any establishment an operator of which, within the preceding

       5 years, has been adjudicated guilty of, or has forfeited a bond when charged with, any crime reflecting on professional character, including soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in controlled substances as defined in chapter 893, whether in this state or in any other jurisdiction within the United States, or has had a license denied, revoked, or suspended pursuant to

       s. 400.414. Licenses shall be renewed annually, and the division shall adopt a rule establishing a staggered schedule for license renewals. If any license expires while administrative charges are pending against the license, the proceedings against the license shall continue to conclusion as if the license were still in effect.

       
       

22. DBPR proved by clear and convincing evidence that Respondent violated Subsection 509.241(1), Florida Statutes (2004), by maintaining a public food service establishment and preparing and serving food to customers without the required license.

23. Section 509.261, Florida Statutes (2004), provides that:

    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.

          
          

    2. For the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a "critical law or rule," as that term is defined by rule.

       
       

24. DBPR alleged and proved by clear and convincing evidence that Respondent violated Rule 5-103.12, Food Code, and Florida Administrative Code Rule 61C-1.0004(2)(d), a critical item violation, by not having hot and cold running water provided.

25. DBPR alleged and proved by clear and convincing evidence that Respondent violated Rules 5-204.11 and 6-401.10, Food Code, critical item violations, by not having a conveniently located handwash sink provided.

26. DBPR alleged and proved by clear and convincing evidence that Respondent violated Rule 6-202.15, Food Code, a critical item violation, by having an outside barbeque cooker without floors, walls, or ceiling, by serving food from a tent without floors and walls, and by preparing and cooking food in the open air.

27. DBPR alleged and proved by clear and convincing evidence that Respondent violated Section 509.241, Florida Statutes (2004), a critical item violation, by preparing and serving food to customers without the required food service license.

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, Dale Hill, d/b/a/ D and R BBQ and Catering, violated Rules 5-103.12, 5-204.11, 6-401.10, and 6.202.15, Food Code; Florida Administrative Code Rule

   61C-1.004(2)(d); and Subsection 509.241(1), Florida Statutes (2004);

2. Imposing an administrative penalty against Respondent, Dale Hill, in the amount of $500, per critical item violation, for a total of $2,000, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk; and

3. Requiring Respondent, Dale Hill, to attend an education program sponsored by the Hospitality Education Program, at Respondent's expense.

DONE AND ENTERED this 27th day of February, 2006, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 27th day of February, 2006.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Dale Hill

D & R BBQ & Catering 4460 Tallevast Road

Sarasota, Florida 34243

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

John Washington, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

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 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: 05-003797

Orders for Case No: 05-003797