96-001154 Department Of Agriculture And Consumer Services vs. Janet M. Robbins And Gerald A. Robbins Status: Closed Recommended Order on Friday, August 30, 1996.

Summary: Evidence sufficient to establish facts that food permit required for Respondent's food establishment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1154

)

JANET M. AND GERALD A. ROBBINS, )

)

Respondents. )

________________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of

Administrative Hearings (Division), held a formal hearing in this matter on June

4, 1996, in Winter Haven, Florida.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Office of the General Counsel

Department of Agriculture

and Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

For Respondents: Gerald A. Robbins

Qualified Representative

1026 Biltmore Drive, Northwest

Winter Haven, Florida 33881

STATEMENT OF THE ISSUES

1. Do the Respondents operate a food establishment as that term is defined

in Section 500.03(1)(j), Florida Statutes? If so, are the Respondents, under

the circumstances of this cause, required to obtain a food permit from the

Department of Agriculture and Consumer Services (Department) in accordance with

Section 500.12, Florida Statutes, in order to continue operating their food

establishment located within the premises of International Market World, Inc.

(Market World) located at 1052 Highway 92 West, Auburndale, Florida?

2. If the Respondents are required to obtain a food permit from the

Department, should the Respondents be required to: (a) purchase a permit for

each and every year or partial year of operation since being notified by the

Department of such requirement; (b) pay a late fee for their failure to renew a

permit that was never issued or; (c) pay an administrative fine for failing to

obtained a food permit upon being notified of that requirement by the

Department?

PRELIMINARY STATEMENT

This matter was initially referred to the Division by the Department on a

Notice of Intent to Impose an Administrative Fine and assigned Division Case No.

95-4517. Subsequent to the matter being referred to the Division, Respondents

filed a Motion to Dismiss which was unopposed by the Department. A Recommended

Order of Dismissal was issued by the Hearing Officer and the matter returned to

the Department for final disposition. As it turned out, the Department was,

after all, opposed to dismissing the Notice of Intent to Impose an

Administrative Fine. However, rather than entering an order remanding the

matter to the Hearing Officer, the Department chose to enter an Order advising

the Respondents of its intent to issue an immediate cease and desist order

requiring Respondents to cease operating their alleged food establishment in

violation of Chapter 500, Florida Statutes, and its intent to impose an

administrative fine for operating the alleged food establishment in violation of

Chapter 500, Florida Statutes. The Order contained a Notice of Rights section

which advised the Respondents of their right to request an informal or formal

hearing. Subsequently, the Respondents filed a Petition For Formal

Administrative Hearing with the Department which, along with the Department's

Order, was forwarded to the Division for the assignment of a Hearing Officer and

conduct of a hearing.

At the hearing, the Department presented the testimony of Jimmy D.

Daugherty and Earnest L. (Buddy) Levins. The Department's exhibits one through

five were received as evidence. Janet M. Robbins and Gerald A. Robbins

testified on their own behalf but presented no other witness. Respondents'

exhibits one through six were received as evidence. Chapter 5K-4, and Rule 12A-

1.098, Florida Administrative Code, and Chapter 500, Florida Statutes, were

officially recognized.

A transcript of this proceeding was filed with the Division on July 8,

1996. However, upon an unopposed motion filed by Respondents, the parties were

granted an extension of time within which to file their respective Proposed

Findings of Fact and Conclusions of Law with the understanding that any time

constraint imposed under Rule 28-5.402, Florida Administrative Code, was waived

in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties

timely filed their respective Proposed Findings of Fact and Conclusions of Law

under the extended time frame. A ruling on each proposed finding of fact

submitted by the parties has been made as reflected in an Appendix to the

Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings are made:

1. The Department is the agency in the State of Florida responsible for

the administration and enforcement of Chapter 500, Florida Statutes, and the

rules promulgated thereunder relating to permitting, food safety and the sale of

food to the consuming public.

2. Janet M. Robbins and Gerald A. Robbins (Respondents) operate a stall

within the confines of a flea market owned and operated by Market World located

on Highway 92 West in Auburndale, Polk County, Florida. The Respondents lease

the stall from Market World. Respondents receive all proceeds from the sale of

items from their stall in Market World. Respondents' business mailing address

is listed as 1026 Biltmore Drive, Northwest, Winter Haven, Polk County, Florida

33881.

3. Respondents did not, at any time pertinent to this proceeding, possess

an occupational license issued in their name from Polk County, Florida for

operating their stall in Market World. Instead, Respondents operated under a

blanket occupational license issued to Market World by the Tax Collector of Polk

County, Florida in accordance with Polk County Ordinance No. 95-27 which covered

all flea market vendors within the confines of Market World. However, had

Market World elected not to purchase this blanket occupational license,

Respondents would have been required under this ordinance to obtain a Polk

County occupational license from the Tax Collector in order to operate their

stall in Market World.

4. In accordance with Department of Revenue Rule 12A-1.098, Florida

Administrative Code, flea market vendors are required to collect sales tax on

their sales but are not required to register with the Department of Revenue in

order to remit those taxes. Instead, the rule allows the flea market vendor to

remit the taxes collected under the registration of the flea market operator,

manager, lessor or owner. Respondents have in the past used this method of

remitting the sales tax collected by them to the Department of Revenue.

However, the Respondents are presently remitting sales tax directly to the

Department of Revenue.

5. On May 6, 1994, Jimmy D. Daugherty, a Department Sanitation and Safety

Specialist, visited the Respondents' stall at Market World and observed that

Respondents were offering food for sale. Daugherty advised Janet Robbins that a

food permit was required to sell food from Respondents' flea market stall. On

this same date, Daugherty inspected Respondents' facility and issued a Food

Safety Inspection Report and gave the facility an overall rating of good. Also,

the report indicated that this was a new firm and that a food permit application

was attached. The food permit application had been filled out by Janet Robbins

with Daugherty's assistance. Subsequent to filling out the Food Permit

Application, Janet Robbins discussed the matter with her husband, Gerald

Robbins, who advised the Department that he disputed the requirement that

Respondents' establishment must obtain a food permit. While it appears from the

record that Respondents' application was submitted to the Department along with

Daugherty's Food Safety Inspection Report, there was no evidence that

Respondents tendered the proper fee for a permit or that a permit was ever

issued to Respondents.

6. On January 17, 1995, the Department issued Notice Number 95R-69185

concerning Respondents' 1995 Food Permit Renewal Notice. The Notice advised

Respondents that they had failed to remit their 1995 Food Permit Renewal Fee,

the reminder for which had been mailed to them on November 15, 1994. The

November 15, 1994, notice was not introduced as evidence. The January 17, 1995,

notice also advised Respondents that a late fee of $37.50 would be added if the

food permit renewal fee was not paid by January 31, 1995, and that the late fee

would be increased to $100.00 if the food permit renewal fee was not paid by

February 28, 1995.

7. On February 15, 1995, and again on April 26, 1995, the Department

advised Respondents that the 1995 Food Permit Renewal Fee was past due and that

an appropriate late fee had been added.

8. In pertinent part, each of the Notices provided:

If you dispute your firm type, the State

Agency regulating your business, or if you

are no longer in business, please indicate

on the application (reverse side), sign and

return.. . . .

9. Respondents did not respond in writing to the Department disputing any

of the matters set forth in the Notices received by them. Instead, Gerald

Robbins made telephone calls to Dr. Martha Rose Roberts, Deputy Commissioner,

and to Linton Eason in the legal department. These calls were not returned by

the Department.

10. On July 26, 1995, the Department issued a Notice of Intent To Impose

Administrative Fine against Janet Robbins for operating a Food Establishment

without a Food Permit in violation of Section 500.12, Florida Statutes.

11. Respondents requested a formal hearing, and this matter was referred

to the Division for the assignment of a Hearing Officer and the conduct of a

hearing. Respondents moved to dismiss the matter which was unopposed by the

Department. A Recommended Order of Dismissal was entered by the Hearing Officer

and jurisdiction relinquished to the Department for final agency action. The

Department entered an "Order" overruling the Recommended Order of Dismissal and

further ordered that the Department intended to issue an immediate cease and

desist order and to impose an administrative fine. The matter was again

referred to the Division and this hearing ensued.

12. On May 6, 1994, the Respondents were selling food, as defined in

Section 500.03(1)(h), Florida Statutes, from their stall in the flea market

known as Market World and have continued to sell food from their stall in the

flea market since that date.

13. Respondents' establishment within Market World is of a semi-permanent

nature. This finding is based on the photographs entered into evidence as

Respondents' Exhibits 5 and 6 and the unrebutted testimony of Gerald Robbins

that certain pieces of Respondents' equipment located within the Respondents'

stall at Market World were bolted to the floor.

14. Several other flea market vendors within Market World have applied for

and were issued food permits by the Department after paying the necessary fee.

15. Because flea market vendors can move from one flea market to another,

any flea market vendor who is issued a food permit for one location may operate

under that same food permit at another flea market location provided the vendor

does not operate at two or more flea market operations simultaneously.

16. There was no evidence as to the annual gross food sales generated by

Respondents' stall located within Market World.

17. On May 5, 1995, Daugherty visited and inspected Respondents' stall at

Market World. The Food Safety Inspection Report submitted by Daugherty for this

inspection indicated an overall rating of good as did the report of May 6, 1994.

Respondents have not interfered with, or attempted to interfere with, the

Department's inspection of their food establishment even though they disagree

with the requirement of having to obtain a food permit from the Department.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding pursuant to Section

120.57(1), Florida Statutes.

19. Sections 500.12(1)(a) and (b), Florida Statutes, in pertinent part

provide:

(1)(a) A food permit from the department

[is required] of [any person] who [operates

a food establishment] or retail food store,

[except]:

1. Persons operating minor food outlets,

including, but not limited to, video stores,

that sell commercially prepackaged, nonpo-

tentially hazardous candy, chewing gum, soda,

or popcorn, provided the shelf space for

those items does not exceed 12 linear feet

and no other food is sold by the minor food

outlet.

2. Persons subject to continuous, onsite

federal or state inspection.

3. Persons selling only legumes in the shell,

either parched, roasted, or boiled.

(b) An application for a food permit from

the department must be accompanied by a fee

in an amount determined by department rule,

which may not exceed $350. [Food permits must

be renewed annually on or before January 1].

If an application for renewal of a food permit

is not received by the department within 30 days

after its due date, a late fee, in an amount not

exceeding $100, must be paid in addition to the

food permit fee before the department may issue

the food permit.. . . . [Emphasis Supplied]

20. Sections 500.03(1)(j) and (s), Florida Statutes, in pertinent part

provide:

(1) For purpose of this chapter, the term:

* * *

(j) "[Food establishment]" means any factory,

food outlet, or [any other facility] manufacturing,

processing, packing, holding, or preparing food,

or [selling food at] wholesale or [retail].. . . .

* * *

(s) "Retail food store" means any establishment

[or section of an establishment] where food and

food products are offered to the consumer and

intended for off premises consumption. The

term includes delicatessens that offer prepared

food in bulk quantities only. The term does

not include establishments which handle only

prepackaged, non-potentially hazardous foods;

roadside markets that offer only fresh fruits

and vegetables for sale; food service establish-

ments; or food and beverage vending machines.

[Emphasis Supplied]

21. Section 500.121(1), Florida Statutes, provides:

(1) In addition to the suspension procedures

provided in s. 500.12, the department may impose

a fine not exceeding $5,000 against any retail

food store or food establishment that has

violated this chapter, . . . .

22. Rules 5K-4.020(1)(j),(o),(5)(a)and (b) and (6)(b), Florida

Administrative Code, in pertinent part provide:

(1) As used in this rule, the following

definitions shall apply:

* * *

(j) [Limited Sales. Any business fitting

any of the above definitions with gross food

sales less than $10,000 annually].

* * *

(o) [Mobile vendor]. [Persons selling foods]

other than fresh fruits or vegetables from

trucks, trailers or similar conveyance, or

[at flea markets], roadside stands [or other

semi-permanent, transient, or temporary location].

* * *

(5) Food Permit Fees.

(a) One permit shall be issued to and one

fee shall be charged to all food operations

at a single location, regardless of whether

the location may qualify for two or more

permits. If a location qualifies for two of

more permits, only the largest applicable fee

shall be charged to that location, except that

nay location qualifying for a Limited Sales

permit shall only be charged the fee applicable

to a Limited Sales permit. . . . Fees charged

new food permit applicants shall be pro-rated

with the applicant paying 1/12th of the appli-

cable fee for each month remaining in the

calendar year, including the month of application.

(b) The following schedule of charges is

established for each food Permit.

* * *

Mobile Vendor 75

Limited Sales 50

(6) Late Fees.

(b) No establishment shall be issued a food

permit until all applicable fees, including

late fees, are received by the department.

[Emphasis Supplied]

23. The general rule is that a party asserting the affirmative of an issue

has the burden of presenting evidence as to that issue. Florida Department of

Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). Therefore,

the Department has the burden of presenting evidence that Respondents must

possess a food permit and that their failure to possess such a food permit is a

violation of Chapter 500, Florida Statutes. Furthermore, the Department has the

burden of presenting its proof by clear and convincing evidence. Department of

Banking and Finance, Division of Securities and Investor Protection v. Osborne

Stern and Company, 670 So.2d 932 (Fla. 1996). The Department has met its burden

in this regard.

24. Clearly, the evidence establishes that Respondents operate a food

establishment as defined in Section 500.03(1)(j), Florida Statutes, and are

required to have a food permit since they do not come within any of the

exceptions set out in Section 500.12 (1)(a)1.,2., and 3., Florida Statutes.

Furthermore, the evidence establishes that Respondents operate their food

establishment within the confines of World Market, a flea market, which places

them in the category of a mobile vendor as defined in Rule 5K-4.020(1)(o),

Florida Administrative Code, notwithstanding that Respondents' establishment is

semi-permanent in nature. Since Respondents fall within the definition of a

mobile vendor, Rule 5K-4.020(5)(b), Florida Administrative Code, requires a fee

of $75 for a food permit. Additionally, the evidence establishes that

Respondents have not obtained a food permit as required by Section 500.12(1)(a),

Florida Statutes. Having failed to obtain a food permit, Respondents have

violated Section 500.12(1)(a), Florida Statutes, and are subject to an

administrative fine under Section 500.121(1), Florida Statutes, which is the

appropriate penalty for such violation. However, there does not appear to be

any authority for the late fees assessed by the Department in its Notice since

late fees apply to the failure to timely renew the food permit. In the instant

case, Respondents are contesting the requirement of having to obtain the permit

in the first place. Therefore, any penalty imposed should be for the violation

of not having a permit as required by Section 500.12(1)(a), Florida Statutes,

and not for failure to renew a permit that was never issued. However, this does

not relieve the Respondents from having to pay the required fee for purchasing a

food permit for the partial year 1994, and for a full year for 1995 and 1996.

25. Respondents contend that World Market should be required to obtain a

blanket food permit which would cover all flea market vendors operating a food

establishment within World Market, including Respondents, as World Market does

with the Polk County occupational license. Respondents argue that since they

are not required to obtain an occupational licenses in Polk County to operate

their food establishment in World Market, they are not recognized as a business

by Polk County and therefore, are somehow exempted from the provisions of

Section 500.12(1)(a), Florida Statutes, requiring a food permit of any person

operating a food establishment in the State of Florida, unless exempted under

Section 500.12(1)(a) 1., 2., and 3., Florida Statutes. Respondents fail to

recognize or cite any authority that would allow the Polk County Ordinance to

preempt the statutory authority given the Department under Section 500.12(1)(a),

Florida Statutes, to require a food permit of any person operating a food

establishment unless exempted under Section 500.12(1)(a) 1., 2., and 3., Florida

Statutes. To bolster their argument that only one permit is required for all

vendors within the confines of World Market, Respondents cite Rule 5K-

4.020(5)(a), Florida Administrative Code, which requires only one permit for

multiple food operations at a single location, notwithstanding that the location

may qualify for two or more food permits. This rule applies only to multiple

food operations at one location where the food operations and the location have

common ownership, for example, a grocery store with several food operations such

as a retail bakery or seafood market within its confines under common ownership.

This rule does not apply in the instant case since there is no common ownership

between Respondents' food establishment and Market World.

26. Respondents' contention that if they are required to obtain a food

permit that they should be allowed to purchase a food permit in the category of

Limited Sales is without merit. Respondents' business does not fall within the

category of Limited Sales as defined in Rule 5K-4.020(1)(j), Florida

Administrative Code, because Respondents' food establishment does not come

within any of the definitions set out in Rule 5K-020(1)(a) through (i), Florida

Administrative Code, or meet the minimum annual gross food sales set out in Rule

5K-020(j), Florida Administrative Code.

27. There was no evidence that Respondents in any fashion interfered with,

or attempted to interfere with, the Department's inspection of Respondents' food

establishment. Therefore, after considering the circumstances surrounding this

case, any penalty imposed should be tempered so that the penalty will not be

onerous and create a "chilling effect" on Respondents or others who may wish to

challenge an action by the Department or any other agency.

RECOMMENDATION

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

recommended that the Department of Agriculture and Consumer Services enter a

final order requiring the Respondents to obtain a food permit for the partial

year of 1994, and for a full year for 1995 and 1996, and assessing an

administrative fine in the amount of $100.00. It is further recommended that no

late fees be assessed for failure to renew a food permit that was never issued.

RECOMMENDED this 30th day of August, 1996, at Tallahassee, Florida.

___________________________________

WILLIAM R. CAVE, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of August, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1154

The following constitutes my specific rulings, pursuant to Section

120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

by the parties in this case.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 through 4 are adopted in substance as

modified in Findings of Fact 1 through 17.

Respondents' Proposed Findings of Fact.

1. Proposed findings of fact 1 - 4, 11, 13, 14, 17 and 18 are adopted in

substance as modified in Findings of Fact 1 through 17.

2. Proposed findings of fact 5 and 6 are neither material nor relevant.

3. Proposed finding of fact 7, as stated, is argument rather than a

finding of fact.

4. Proposed findings of fact 8 - 10 and 15 are unnecessary as findings of

fact. However, they are covered in the Preliminary Statement.

5. Proposed finding of fact 16 is covered in the Conclusions of Law rather

than in the Findings of Fact.

6. The first two sentences of proposed finding of fact 19 are adopted in

substance as modified in Finding of Fact 14. The balance of proposed finding of

fact 19, as stated, is argument rather than a finding of fact.

7. There was no proposed finding of fact 12

COPIES FURNISHED:

Honorable Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire

General Counsel

Department of Agriculture and

Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Linton B. Eason, Esquire

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Gerald A. Robbins

Qualified Representative

1026 Biltmore Drive, Northwest

Winter Haven, Florida 33881

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the final order in this case.