STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on November 16, 2009, by video teleconference in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Gil Horn, pro se

Daddy Gills

19046 Bruce B. Downs Boulevard, No. 164 Tampa, Florida 33347

STATEMENT OF THE ISSUES

The issues are whether Respondent operated as a public food service establishment without a license in violation of

Subsections 509.241(1) and (2), Florida Statutes (2008),1 and, if so, what penalty, if any, should be imposed against Respondent.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on February 10, 2009. Respondent timely requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of four witnesses and submitted three exhibits for admission into evidence. Respondent presented the testimony of one witness and submitted two exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the one-volume Transcript of the hearing filed on December 3, 2009. Petitioner timely filed its Proposed Recommended Order (PRO) on December 9, 2009.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating and inspecting public food service establishments defined in Subsection 509.013(5). Based on clear and convincing testimony by the sole witness for Respondent, Respondent operated as a food service establishment without a license at all times material to this proceeding. The business address of Respondent is 4008 Gall Boulevard, Zephyrhills, Florida.

2. The witness for Respondent is its owner and principal.

   
   

   The witness operated Respondent under the mistaken belief that Respondent would be licensed by the Department of Agriculture and Consumer Services (the Department) and was permitted to conduct business operations prior to being licensed by the Department.

3. Two inspectors for Petitioner inspected the premises of Respondent on November 13, 2008, and observed Respondent operating its business without a license from either Petitioner or the Department.2 The inspectors provided Respondent with notice that Respondent was operating without a license from Petitioner and gave Respondent 60 days to submit plans for operating as a new establishment.

4. On January 31, 2009, three inspectors performed a call- back inspection. Respondent provided no proof of licensure from Petitioner during either the initial or call-back inspection.

   CONCLUSIONS OF LAW

   
   

5. DOAH has jurisdiction over the subject matter of and parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009). DOAH provided the parties with adequate notice of the administrative hearing.

6. Petitioner has the burden of proof in this proceeding.

   
   

   Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative

   Complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner satisfied its burden of proof.

7. Petitioner showed by clear and convincing evidence that Respondent operated as a food service establishment in violation of Subsections 509.241(1) and (2). Subsection 509.261(1) authorizes Petitioner to impose a fine in an amount up to

   $1,000.00 for each offense committed by Respondent.

   
   

8. Petitioner proposes two fines of $1,000.00 for the same offense. The proposed fines are not reasonable under the facts and circumstances in this proceeding. Relevant statutes authorize only one fine for a single violation.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of operating a public food service establishment without a license and imposing a fine of

$1,000.00, to be paid within 30 days of the date that this proceeding becomes final.

DONE AND ENTERED this 21st day of December, 2009, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2009.

ENDNOTES

1/ Reference to subsections, sections, and chapters are to Florida Statutes (2008), unless otherwise stated.

2/ Inspectors for both the Department and Petitioner were present on the business premises of Respondent on the date of the initial inspection. However, the Department agreed that licensing jurisdiction belonged to Petitioner and withdrew from the matter at the time of the initial inspection.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Gil Horn Daddy Gills

19046 Bruce B. Downs Boulevard, No. 164 Tampa, Florida 33347

William L. Veach, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Amy Toman, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Reginald Dixon, 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: 09-005529

Orders for Case No: 09-005529