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.
Recommended Order on Thursday, May 13, 2010.
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.
- Date
- Proceedings
- PDF:
- Date: 05/13/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 04/30/2010
- Proceedings: Order Granting Extension of Time (proposed recommended order to be filed by May 10, 2010).
- Date: 04/30/2010
- Proceedings: Transcript of Proceedings filed.
- Date: 04/09/2010
- Proceedings: CASE STATUS: Hearing Held.
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
-
Frank Johnson
Address of Record -
Charles F. Tunnicliff, Esquire
Address of Record