The Issue This is a license discipline proceeding in which, on the basis of facts alleged in a First Amended Administrative Complaint, Petitioner seeks to take disciplinary action against Respondent. It is alleged that Respondent violated Section 386.204, Florida Statutes, “by and through Section 386.207(3), Florida Statutes,” by allowing patrons to smoke in an enclosed indoor workplace.
Findings Of Fact The parties have stipulated to the fourteen paragraphs of findings of fact which follow. Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Old Cutler Oyster Company, Inc., d/b/a Old Cutler Oyster Company. Respondent holds license number 22-20655, Series 4-COP, issued by Petitioner. Michael Pace is the President of Respondent and holds 100 percent of the stock of Respondent. Lisa Tyrell was the manager and person in charge at Respondent’s licensed premises on July 9, 2003. Ms. Tyrell is currently employed by Respondent as a manager. Ms. Tyrell called Michael Pace on the telephone, then gave the receiver to Fernandez (Special Agent), who explained to Mr. Pace that violations of the Florida Clean Indoor Air Act were occurring on the licensed premises. On July 9, 2003, Special Agent Fernandez issued an Official Notice of Warning to Ms. Tyrell as a result of observing patrons smoking which, he claimed, was in violation of the Florida Clean Indoor Air Act. On August 15, 2003, Special Agent Fernandez issued a Notice to Comply to Mr. Pace and told him that he had thirty days to comply with the notice or administrative charges would be filed. The notice alleged a violation of the Florida Clean Indoor Air Act by “allowing patron to smoke cigarettes on 4-COP SRX licensed premises.” Special Agent Fernandez visited the licensee a third time on September 18, 2003. At all times material hereto, Respondent held a valid retail tobacco products dealer permit issued by Petitioner. At no time did Special Agent Fernandez observe any of Respondent’s employees smoking within Respondent’s business premises. No patron received a citation for violating the Florida Clear Indoor Air Act. On July 9, on August 15, and on September 18 of 2003, Special Agent Fernandez observed patrons smoking tobacco products within Respondent’s licensed premises.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case dismissing the First Amended Administrative Complaint and denying all relief sought by the Petitioner. DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 24th day of September, 2004.
The Issue Whether existing Rule 21F-20.009, Florida Administrative Code, is, as a matter of law, an invalid exercise of delegated legislative authority.
Findings Of Fact There were no findings of fact to be made.
The Issue The issue in the case is whether the allegations set forth in the Department's Proposed Settlement Agreement and Administrative Complaint dated June 14, 1999, are correct and, if so, what penalty should be imposed.
Findings Of Fact The Department of Agriculture and Consumer Services is the state agency charged with the responsibility for enforcement of the Florida Food Safety Act. At all times material to this case, Respondent Hoi Phun was the owner and operator of Town and Country Chevron, 8616 West Hillsborough Avenue, Tampa, Florida. The Respondent had no certified food manager and had no food permit for the facility. On April 8, 1999, a Department representative inspected the Respondent's premises. At the time of the inspection, the soda machine was visibly dirty and mildewed at the dispenser. The ice machine, located in a back room, was also dirty. The "warewash" sink was dirty and had no hot water. Chemicals were stored at the wash area. Wastewater was disposed of by dumping on the ground outside and at the rear of the building. A plumbing fixture lacked a "backflow" device that prevents siphonage of potentially unsanitary water into the building's water lines. The April 8, 1999, overall evaluation rating was "poor." A "stop use" order was issued for the ice machine and for the soda machine. The "stop use" order included placing a red "STOP USE" tag and red tape on each machine. Each violation was discussed with the store manager and a copy of the evaluation was provided during the discussion. On April 22, 1999, a Department representative re- inspected the Respondent's premises. The inspection revealed that the April 8 violations were continuing. The "STOP USE" tape and tags placed on the soda and ice machines during the previous inspection had been removed. The inspector saw the soda machine being used. The soda machine drain was clogged. The April 22, 1999, overall evaluation rating was "poor." The "stop use" order was reissued for the ice machine and for the soda machine. Each violation was discussed with the store manager and a copy of the evaluation was provided during the discussion. On May 3, 1999, a Department representative re-inspected the Respondent's premises. The inspection revealed again that the April 8 violations were continuing. The "STOP USE" tape and tags placed on the soda and ice machines had again been removed. The May 3, 1999, overall evaluation rating was "poor." The "stop use" order was reissued for the ice machine and for the soda machine. Each violation was discussed with the store manager and a copy of the evaluation was provided during the discussion. On May 5, 1999, the Respondent met with the Department representative who conducted the inspections. At that time, the representative released the soda and ice machines from the "stop use" orders. On June 14, 1999, the Department issued a Proposed Settlement Agreement and Administrative Complaint setting forth the allegations addressed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order imposing a fine of $5,000 against the Respondent. DONE AND ENTERED this 26th day of October, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of October, 1999. COPIES FURNISHED: Angela Dempsey, Senior Attorney Department of Agriculture and Consumer Services 515 Mayo Building 407 South Calhoun Street Tallahassee, Florida 32399-0800 Hoi Phun Town and Country Chevron 8616 West Hillsborough Avenue Tampa, Florida 33615 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue is whether Petitioner violated Section 386.207(3), Florida Statutes (2003), by failing to comply with the "Florida Clean Indoor Air Act."
Findings Of Fact Respondent holds License No. 70-00559, Series 2COP. The license authorizes Respondent to sell beer and wine at the licensed premises, which is located in Wildwood, Florida. Respondent is the sole owner of Buddy's Bar-B-Que. She has been licensed to sell beer and wine at her restaurant since June 1999. Sometime before July 18, 2003, Petitioner received an anonymous complaint that Respondent was allowing the smoking of tobacco products inside the establishment. Petitioner subsequently initiated an investigation. On or about July 18, 2004, Petitioner's investigator, Special Agent Karen Evans, observed Respondent and her patrons smoking inside the restaurant. Agent Evans advised Respondent about the prohibitions set forth in the Act and gave Respondent a questionnaire containing frequently asked questions about the Act. Agent Evans also issued Respondent a Notice to Comply. The notice mandated full compliance with the Act within 30 days. More than 30 days later, in the Fall of 2003, Special Agent Jeffrey Yonce and Agent Evans went to Respondent's restaurant. They observed Respondent and her patrons smoking inside the licensed premises. Agent Evens then gave Respondent notice that Petitioner intended to file an Administrative Action against for her failing to comply with the Act. Petitioner issued an Administrative Action against Respondent in November 2003. The opening paragraph of the Administrative Action erroneously refers to Manatee Lanes, Inc. as the entity being charged. However, the Administrative Action clearly indicates that Respondent was the licensee being charged with violating the Act. In fact, Petitioner's counsel admitted during the hearing that his client was aware of the charges against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order imposing an administrative penalty on Respondent in the amount of $250. DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of July, 2004. COPIES FURNISHED: Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street Tallahassee, Florida 32399-2202 Brandon L. Kolb, Esquire 112 East Street, Suite B Tampa, Florida 33602 Peter Williams, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact W. C. Montgomery, trading as Montgomery's, Respondent, holds restaurant license control No. 20-00228B (Exhibit 4) On Friday, 25 July 1900, while Montgomery was attending a Gideon convention in Detroit, Michigan, the restaurant was inspected and numerous discrepancies found (Exhibit 1) . Mrs. Montgomery was present at the time and advised the inspector that her husband was out of town and would return the following Tuesday. A follow-up inspection was conducted on Monday morning 28 July by the same inspector from the Clay County Health Department. This inspection report (Exhibit 2) formed the basis for the Notice to Show Cause date 31 July 1980 issued by the Director, Division of Hotels and Restaurants in Tallahassee. Respondent was earlier issued a Notice to Show Cause regarding similar deficiencies in this restaurant. In December 1979 Montgomery entered into a contract to sell this business to another. Following the January 1980 inspection or the February 11, 1980 inspection (Exhibit 7) , charges similar to the present charges were preferred against Montgomery's. On the Call Back/Re- inspection Report dated 2/26/80 (Exhibit 7) a notation appears: "Discontinue proceedings of Notice to Show Cause. Change of ownership." Thereafter, the contract to sell was not consummated because the purchaser couldn't get financing. On March 7, 1980 the restaurant was again inspected and, to his apparent surprise, the inspector found Montgomery still the owner. A long list of discrepancies appeared on the inspection report (Exhibit 7) and the Health Department closed down the restaurant. Following a Call Back/Re-inspection Report (Exhibit 7) dated 3/14/80 a notation appears on the report: "Reinstate license this date." On Inspection Reports dated 3/31/80, 4/25/80 and 6/20/80 (Exhibit 7) only minor deficiencies were noted. During this period the automatic dishwasher was inoperable and had net been replaced and Respondent had only a three compartment sink in which to wash dishes. No separate sink in which to wash pots and pans was provided. The final Inspection Report admitted into evidence is dated 8/12/80 (Exhibit 3) . On this Inspection Report the dishwashing discrepancy again appears, as does the greasy hood ventilation filters. Also included is a requirement to provide rounded corners at baseboards in walk-in Freezer to facilitate cleaning, all of which appeared on the January 25 and 28 inspections which furnish the grounds upon which disciplinary action is here proposed. One of the discrepancies noted is failure of the commercial refrigerator to have a drain hole through the bottom shelf through which condensation can drain. Respondent's evidence was that this commercial refrigerator was not designed with such a drain hole, gratings were installed on this bottom shelf and no food container ever sat in water although water did sometimes settle on the bottom of this refrigerator. With respect to the deficiency involving vermin, Respondent's evidence that he has engaged the services of a pest control company on a continuing contract basis since opening was not disputed. Respondent has now installed a two-compartment sink in addition to the three-compartment silk and has ordered a dishwasher. Once this dishwasher (or the two-compartment sink) is installed, this longtime discrepancy will be corrected. Respondent owns and operates two other restaurants near Jacksonville which apparently are satisfactory from a sanitation standpoint. Accordingly, it clearly appears that Respondent is cognizant of various various requirements and that failure to comply with these rules can result in disciplinary action against the restaurant's license. Restaurants in Clay County, or at least those coming under the jurisdiction of the inspector here involved, are inspected monthly rather than quarterly as required by statute. Respondent's witness testified that the hood ventilation filters were washed in warm, soapy water twice weekly, yet on most of the inspection reports these filters were reported to be full of grease. Respondent's witness also testified that all defects noted had now been corrected, including the rounded corners in the walk-in freezer floors.
