10-000902 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Cedar One
 Status: Closed
Recommended Order on Thursday, May 13, 2010.


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Summary: Respondent has repeatedly failed to operate its mobile food dispensing vehicle from an approved commissary.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF HOTELS AND )

21RESTAURANTS, )

23)

24Petitioner, )

26)

27vs. ) Case No. 10-0902

32)

33CEDAR ONE, )

36)

37Respondent. )

39)

40RECOMMENDED ORDER

42A formal hearing was conducted in this case on April 9,

532010, by video teleconference with hearing sites located in

62Tallahassee and Panama City, Florida, before Suzanne F. Hood,

71Administrative Law Judge with the Division of Administrative

79Hearings.

80APPEARANCES

81For Petitioner: Charles F. Tunnicliff, Esquire

87Department of Business and

91Professional Regulation

931940 North Monroe Street, Suite 42

99Tallahassee, Florida 32399

102For Respondent: Frank Johnson

106Qualified Representative

108Cedar One

1102709 East Avenue

113Panama City, Florida 32301

117STATEMENT OF THE ISSUES

121The issues are whether Respondent has violated Chapter 509,

130Florida Statutes (2009), by not having its mobile food

139dispensing vehicle report to a commissary as required by Florida

149Administrative Code Rule 61C-4.0161(2)(c).

153PRELIMINARY STATEMENT

155On or about March 26, 2009, Petitioner Department of

164Business and Professional Regulation, Division of Hotels and

172Restaurants (Respondent), issued an Administrative Complaint

178against Respondent Cedar One. The complaint alleged that

186Respondent violated Chapter 509, Florida Statutes, and Florida

194Administrative Code Rule 61C-4.0161(2)(c) by failing to ensure

202that its mobile food dispensing unit reported to a commissary as

213specifically required by the rule.

218Respondent subsequently requested an administrative hearing

224to contest the Administrative Complaint. Petitioner referred

231the case to the Division of Administrative Hearings on

240February 18, 2010. A Notice of Hearing by Video Teleconference

250dated February 24, 2010, scheduled the hearing for April 9,

2602010.

261During the hearing, Petitioner presented the testimony of

269one witness. Petitioner offered four exhibits that were

277accepted as evidence.

280Respondent presented the testimony of one witness.

287Respondent did not offer any exhibits for admission as evidence.

297The Transcript was filed on April 30, 2010. That same day,

308Petitioner filed a Motion for Extension of Time to file a

319proposed order. The undersigned granted the unopposed motion.

327Petitioner timely filed its Proposed Recommended Order on

335May 10, 2010. As of the date that this Recommended Order was

347issued, Respondent had not filed proposed findings of fact and

357conclusions of law.

360Except as otherwise noted, references hereinafter shall be

368to Florida Statutes (2009).

372FINDINGS OF FACT

3751. Petitioner is the agency charged with the

383responsibility of regulating the operation of public food

391services establishments pursuant to Section 20.165 and

398Chapter 509, Florida Statutes, and the rules promulgated there

407under.

4082. At all times material hereto, Respondent was licensed

417as a mobile food dispensing vehicle. Respondent's business

425address is 2709 East Avenue, Panama City, Florida 32401.

4343. Non-critical violations are violations that, if not

442corrected, can create threats to public health, safety, or

451welfare. Failure of a mobile food dispensing vehicle to report

461to a commissary as required by Florida Administrative Code Rule

47161C-4.0161(2)(c) is a non-critical violation of Petitioner's

478rules.

4794. On August 22, 2007, and October 26, 2007, Petitioner's

489inspector conducted inspections of Respondent's business. On

496both occasions, the inspector determined that Respondent's

503mobile food dispensing vehicle was not reporting to a

512commissary.

5135. On December 12, 2007, Petitioner issued an

521Administrative Complaint against Respondent. The complaint

527alleged that Respondent's mobile food dispensing vehicle had not

536reported to a commissary on August 22, 2007, and October 26,

5472007.

5486. After an informal hearing, Petitioner issued a Final

557Order dated March 28, 2008. Pursuant to the Final Order

567Respondent violated five administrative rules, including Florida

574Administrative Code Rule 61C-4.0161(2)(c). The Final Order,

581which was filed with Petitioner's Agency Clerk on April 16,

5912008, required Respondent to pay a $250 administrative fine.

6007. On May 21, 2008, Petitioner's inspector performed a

609call-back food service inspection of Respondent's business.

616During that inspection, the inspector determined, among other

624things, that Respondent's mobile dispensing vehicle was not

632reporting to a commissary.

6368. On February 23, 2009, Petitioner's inspector conducted

644a routine food service inspection of Respondent's business.

652During the inspection, the inspector determined that

659Respondent's mobile food dispensing vehicle was not reporting to

668a commissary.

6709. The record shows that Respondent has repeatedly

678violated Florida Administrative Code Rule 61C-4.0161(2)(c).

684During the hearing, Respondent presented no evidence to the

693contrary.

694CONCLUSIONS OF LAW

69710. The Division of Administrative Hearings has

704jurisdiction over the parties and the subject matter of this

714proceeding pursuant to Sections 120.569 and 120.57(1), Florida

722Statutes.

72311. Petitioner has the burden of proving the allegations

732contained in the Administrative Complaint by clear and

740convincing evidence. See Department of Banking and Finance,

748Division of Securities and Investor Protection v. Osborne Stern

757and Company , 670 So. 2d 932 (Fla. 1996). Petitioner has met

768this burden.

77012. Respondent's mobile food dispensing vehicle is a

"778public food service establishment," which is defined in Section

787509.013(5)(a), Florida Statutes, as follows:

792(5)(a) "Public food service

796establishment" means any building, vehicle,

801place, or structure, or any room or division

809in a building, vehicle, place, or structure

816where food is prepared, served, or sold for

824immediate consumption on or in the vicinity

831of the premises; called for or taken out by

840customers; or prepared prior to being

846delivered to another location for

851consumption.

85213. Petitioner has a duty to regulate public food service

862establishments in order to safeguard the public health, safety,

871and welfare. See § 509.032(1), Fla. Stat.

87814. Pursuant to Section 509.032(6), Florida Statutes,

885Petitioner has authority to promulgate rules as necessary to

894carry out the provisions of Chapter 509, Florida Statutes.

90315. Section 509.261(1), Florida Statutes, provides that

910any public food service establishment that has operated or is

920operating in violation of Chapter 509, Florida Statutes, or the

930rules promulgated thereunder, is subject to fines not to exceed

940$1,000 per offense and the suspension, revocation, or refusal of

951a license.

95316. Florida Administrative Code Rule 61C-4.0161(2)(c)

959states as follows:

962(c) Mobile food dispensing vehicles

967shall operate from an approved commissary

973that meets all applicable requirements of

979this rule. The commissary must be provided

986with potable water and adequate facilities

992for disposal of liquid and solid waste. The

1000mobile food unit must report to the

1007commissary to store or replenish supplies,

1013clean utensils and equipment, or dispose of

1020liquid and solid waste. Mobile food

1026dispensing vehicles which are self-

1031sufficient for equipment, storage, and

1036utilities must report to the commissary as

1043often as needed, but not less than once

1051weekly, to replenish supplies, clean the

1057interior of the unit, or dispose of liquid

1065or solid wastes. For the purpose of this

1073rule, a mobile food dispensing vehicle which

1080is self-sufficient includes a three

1085compartment sink for washing, rinsing, and

1091sanitizing of equipment and utensils; a

1097separate handwash sink; adequate

1101refrigeration and storage capacity; full

1106provision of power utilities including

1111electrical, LP gas, or a portable power

1118generation unit; a potable water holding

1124tank; and a liquid waste disposal system in

1132accordance with Subparts 5-3 and 5-4 of the

1140Food Code, as adopted by reference in Rule

114861C-1.001, F.A.C. Mobile food dispensing

1153vehicles which are not self-sufficient must

1159report to their commissary at least once

1166daily. The exterior of the vehicle may be

1174washed in any location, provided the waste

1181water does not create a sanitary nuisance.

118817. In this case, Respondent admitted that it did not

1198report to a commissary to store or replenish supplies, clean

1208utensils and equipment, or dispose of liquid and solid waste.

1218Instead, Respondent argues that it does not do so because it

1229perfoms these tasks at its place of operation. However,

1238Respondent's place of operation is not an approved commissary.

124718. Clear and convincing evidence indicates that

1254Respondent violated Florida Administrative Code Rule 61C-

12614.0161(2)(c). The appropriate penalty for this violation is

1269controlled by the disciplinary guidelines set forth in Florida

1278Administrative Code Rule 61C-1.005, as follows in relevant part:

1287(5) Definitions.

1289(a) “Critical violation” means a

1294violation determined by the division to pose

1301a significant threat to the public health,

1308safety, or welfare and which is identified

1315as a food borne illness risk factor, a

1323public health intervention, or critical in

1329DBPR Form HR-5022-014 Lodging Inspection

1334Report or DBPR Form HR-5022-015 Food Service

1341Inspection Report, incorporated by reference

1346in subsection 61C-1.002(8), F.A.C., and not

1352otherwise identified in this rule.

1357(b) “Non-critical violation” means a

1362violation not meeting the definition of

1368critical violation and not otherwise

1373identified in this rule.

1377(c) “First offense” means a violation

1383of any law subject to penalty under Chapter

1391509, F.S., when no disciplinary Final Orders

1398involving the same licensee have been filed

1405with the Agency Clerk within the 24 months

1413preceding the date the current

1418administrative complaint is issued.

1422(d) “Second offense,” and “second and

1429any subsequent offense” mean a violation of

1436any law subject to penalty under Chapter

1443509, F.S., after one disciplinary Final

1449Order involving the same licensee has been

1456filed with the Agency Clerk within the 24

1464months preceding the date the current

1470administrative complaint is issued, even if

1476the current violation is not the same as the

1485previous violation.

1487* * *

1490(6) Standard penalties. This section

1495specifies the penalties routinely imposed

1500against licensees and applies to all

1506violation of law subject to a penalty under

1514chapter 509, F.S. . . . .

1521(a) Non-critical violation.

15241. 1st offense--Administrative fine

1528of $150 to $300.

15322. 2nd offense--Administrative fine

1536of $250 to $500.

1540* * *

1543(7) Aggravating or mitigating factors.

1548The division may deviate from the

1554standard penalties . . . based upon the

1562consideration of aggravating or mitigating

1567factors present in a specific case. The

1574division shall consider the following

1579aggravating and mitigating factors in

1584determining the appropriate disciplinary

1588action to be imposed and in deviating from

1596the standard penalties:

1599(a) Aggravating factors.

16021. Possible danger to the public.

16082. Length of time since the violation

1615occurred.

1616* * *

16195. Disciplinary history of the

1624licensee within the 60 months preceding the

1631date the current administrative complaint

1636was issued.

1638* * *

1641(b) Mitigating factors.

1644* * *

16473. Length of time the licensee has

1654been in operation.

165719. Respondent has committed a multiple offenses of a non-

1667critical violation. After considering the aggravating and

1674mitigating circumstances set forth above, the appropriate

1681penalty is an administrative fine in the amount of $1,000.

1692RECOMMENDATION

1693Based on the foregoing Findings of Fact and Conclusions of

1703Law, it is

1706RECOMMENDED:

1707That the Department of Business and Professional Regulation

1715enter a final order finding that Respondent has repeatedly

1724violated Florida Administrative Code Rule 61C-4.0161(2)(c) and

1731imposing an administrative fine in the amount of $1,000.

1741DONE AND ENTERED this 13th day of May, 2010, in

1751Tallahassee, Leon County, Florida.

1755S

1756SUZANNE F. HOOD

1759Administrative Law Judge

1762Division of Administrative Hearings

1766The DeSoto Building

17691230 Apalachee Parkway

1772Tallahassee, Florida 32399-3060

1775(850) 488-9675

1777Fax Filing (850) 921-6847

1781www.doah.state.fl.us

1782Filed with the Clerk of the

1788Division of Administrative Hearings

1792this 13th day of May, 2010.

1798COPIES FURNISHED :

1801Charles F. Tunnicliff, Esquire

1805Department of Business

1808and Professional Regulation

18111940 North Monroe Street, Suite 42

1817Tallahassee, Florida 32399

1820Frank Johnson

1822Cedar One

18242709 East Avenue

1827Panama City, Florida 32401

1831William L. Veach, Director

1835Division of Hotels and Restaurants

1840Department of Business

1843and Professional Regulation

1846Northwood Centre

18481940 North Monroe Street

1852Tallahassee, Florida 32399

1855Reginald Dixon, General Counsel

1859Department of Business

1862and Professional Regulation

1865Northwood Centre

18671940 North Monroe Street

1871Tallahassee, Florida 32399

1874NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1880All parties have the right to submit written exceptions within

189015 days from the date of this Recommended Order. Any exceptions

1901to this Recommended Order should be filed with the agency that

1912will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/23/2010
Proceedings: Agency Final Order
PDF:
Date: 09/23/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 05/13/2010
Proceedings: Recommended Order
PDF:
Date: 05/13/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/13/2010
Proceedings: Recommended Order (hearing held April 9, 2010). CASE CLOSED.
PDF:
Date: 05/10/2010
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 04/30/2010
Proceedings: Order Granting Extension of Time (proposed recommended order to be filed by May 10, 2010).
PDF:
Date: 04/30/2010
Proceedings: Motion for Extension of Time filed.
Date: 04/30/2010
Proceedings: Transcript of Proceedings filed.
Date: 04/09/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/01/2010
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 04/01/2010
Proceedings: Petitioner's Exhibit List (exhibits not attached) filed.
PDF:
Date: 02/24/2010
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/24/2010
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 9, 2010; 10:00 a.m., Central Time; Panama City and Tallahassee, FL).
PDF:
Date: 02/23/2010
Proceedings: (Joint) Response to Initial Order filed.
PDF:
Date: 02/19/2010
Proceedings: Election of Rights filed.
PDF:
Date: 02/19/2010
Proceedings: Administrative Complaint filed.
PDF:
Date: 02/19/2010
Proceedings: Agency referral filed.
PDF:
Date: 02/19/2010
Proceedings: Initial Order.

Case Information

Judge:
SUZANNE F. HOOD
Date Filed:
02/19/2010
Date Assignment:
02/19/2010
Last Docket Entry:
09/23/2010
Location:
Panama City, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

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