STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS

AND RESTAURANTS,

Petitioner,

vs.

LARRY WALKER, UNLICENSED BBQ MFDV,

Respondent.

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) Case No. 06-3874

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on December 8, 2006, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Cross City, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Jennifer Condon, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Larry Walker, pro se

Post Office Box 1811

Cross City, Florida 32628 STATEMENT OF THE ISSUE

Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), filed an Administrative Complaint alleging that Respondent had violated the laws regulating the operation of public food establishments. The Administrative Complaint charged Respondent with violations of subsections 509.241(1) and (2), Florida Statutes, by not applying for or receiving a license to operate a food service establishment.

Respondent disputed the allegations in the Administrative Complaint and petitioned for a formal administrative hearing. The case was referred to the Division of Administrative Hearings on or about October 9, 2006. A formal hearing was set for December 8, 2006, in Cross City, Florida.

At hearing, Petitioner presented testimony of one witness, Julianne Browning. Petitioner's Exhibits numbered 1 and 2 were admitted into evidence. Respondent offered the testimony of Larry Walker and Caroline Jones Walker. Respondent did not offer any exhibits into evidence. Official recognition was requested of Sections 509.032 and 509.241, Florida Statutes. The request was granted.

A Transcript consisting of one volume was filed on December 15, 2006. Petitioner filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. Respondent did not file a post-hearing

submission. All references to the Florida Statutes are to 2006 unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. At all times material to the allegations of the Administrative Complaint, Respondent was not licensed, nor has ever been licensed, by the Division.

3. Julianne Browning is a senior sanitation and safety specialist employed by the Division and has worked for the Division as an inspector for over 15 years. Ms. Browning has a bachelor's degree in hotel and restaurant management. She also has work experience in the hotel and restaurant industry and received training in laws and rules regarding public food service and lodging, as well as fire safety and hazard analysis.

4. On May 19, 2006, Ms. Browning saw Respondent operating a barbeque unit in front of a gas station located Cross City, Florida. The type of barbeque unit was a long, black cylindrical unit on a trailer designed to pull behind a vehicle. She stopped, made an inspection, and issued an inspection report.

   She reviewed the report with Mr. Walker at the time she issued it.

5. During the March 19, 2006 inspection, Ms. Browning observed several violations. The primary violation is that Mr. Walker was operating his barbeque unit without a license.

6. In addition to finding that Mr. Walker was operating a food service establishment without a license, Ms. Browning found the following violations: certain foods were not kept at their required temperatures; certain foods had been prepared at Respondent's home; the barbeque grill was portable with no floor, walls, or ceiling; there were no hand-washing facilities; there was no facility to wash, rinse, and sanitize utensils; there was no portable fire extinguisher; and Respondent had not submitted a plan review prior to operation.

7. Neither Respondent, Mr. Walker, nor his wife, contested what was found by Ms. Browning. However, they explained that they were simply attempting to sell barbeque as a fundraiser to send their daughter on a trip to Washington, D.C. Had he known that a license was required, Mr. Walker would not have undertaken this method of fundraising. Neither Mr. nor Mrs. Walker was attempting to operate a business. Mr. and Mrs. Walker's testimony in this regard is accepted as credible.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. §§ 120.569 and 120.57(1), Fla. Stat.

9. The Division is the state agency charged with regulating public food service establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.

10. Pursuant to Section 509.261(1), Florida Statutes, the Division may impose penalties for violations of Chapter 509, Florida Statutes, including an administrative fine of no more than $1,000 for each separate offense, attendance at personal expense at an educational program sponsored by the Hospitality Education Program, and the suspension or revocation of a license.

11. Because the Division seeks the imposition of an administrative penalty, which is a penal sanction, the Division has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaint. See, e.g., Department of Banking and Finance v. Osborne Stern & Co.,

    670 So. 2d 932 (Fla. 1996).

    
    

12. Through the Administrative Complaint, Respondent is alleged to have violated Section 509.241, Florida Statutes, which reads in pertinent part:

    509.241 Licenses required; exceptions.-

    
    

    1. LICENSES; ANNUAL RENEWALS.- Each public

       . . . food service establishment shall obtain a license from the division. Such license shall not be transferred from one place or individual to another.. . .

       
       

    2. APPLICATION FOR LICENSE.- Each person who plans to open a public. . . food service establishment shall apply for and receive a license from the division prior to the commencement of operation. . . .

13. The Division has met its burden of proving that Respondent was preparing and selling food without a license.

14. In its Proposed Recommended Order, the Division suggests the imposition of an administrative penalty in the amount of $100. Under the circumstances of this case, the imposition of the suggested nominal administrative penalty of

$100 is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Division enter a final order which confirms the violations found and imposes an administrative penalty in the amount of $100, to be paid within 30 days of the issuance of the Agency's Final Order.

DONE AND ENTERED this 25th day of January, 2007, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 25th day of January, 2007.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Jennifer L. Condon, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Larry Walker

Post Office Box 1811

Cross City, Florida 32628

Josefina Tamayo, General Counsel Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-2202

William Veach, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulations 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: 06-003874

Orders for Case No: 06-003874