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.

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






18Petitioner, )


21vs. ) CASE NO. 96-1154




35Respondents. )



40Upon due notice, William R. Cave, Hearing Officer, Division of

50Administrative Hearings (Division), held a formal hearing in this matter on June

624, 1996, in Winter Haven, Florida.


69For Petitioner: Linton B. Eason, Esquire

75Office of the General Counsel

80Department of Agriculture

83and Consumer Services

86Room 515, Mayo Building

90Tallahassee, Florida 32399-0800

93For Respondents: Gerald A. Robbins

98Qualified Representative

1001026 Biltmore Drive, Northwest

104Winter Haven, Florida 33881


1121. Do the Respondents operate a food establishment as that term is defined

125in Section 500.03(1)(j), Florida Statutes? If so, are the Respondents, under

136the circumstances of this cause, required to obtain a food permit from the

149Department of Agriculture and Consumer Services (Department) in accordance with

159Section 500.12, Florida Statutes, in order to continue operating their food

170establishment located within the premises of International Market World, Inc.

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

1902. If the Respondents are required to obtain a food permit from the

203Department, should the Respondents be required to: (a) purchase a permit for

215each and every year or partial year of operation since being notified by the

229Department of such requirement; (b) pay a late fee for their failure to renew a

244permit that was never issued or; (c) pay an administrative fine for failing to

258obtained a food permit upon being notified of that requirement by the



273This matter was initially referred to the Division by the Department on a

286Notice of Intent to Impose an Administrative Fine and assigned Division Case No.

29995-4517. Subsequent to the matter being referred to the Division, Respondents

310filed a Motion to Dismiss which was unopposed by the Department. A Recommended

323Order of Dismissal was issued by the Hearing Officer and the matter returned to

337the Department for final disposition. As it turned out, the Department was,

349after all, opposed to dismissing the Notice of Intent to Impose an

361Administrative Fine. However, rather than entering an order remanding the

371matter to the Hearing Officer, the Department chose to enter an Order advising

384the Respondents of its intent to issue an immediate cease and desist order

397requiring Respondents to cease operating their alleged food establishment in

407violation of Chapter 500, Florida Statutes, and its intent to impose an

419administrative fine for operating the alleged food establishment in violation of

430Chapter 500, Florida Statutes. The Order contained a Notice of Rights section

442which advised the Respondents of their right to request an informal or formal

455hearing. Subsequently, the Respondents filed a Petition For Formal

464Administrative Hearing with the Department which, along with the Department's

474Order, was forwarded to the Division for the assignment of a Hearing Officer and

488conduct of a hearing.

492At the hearing, the Department presented the testimony of Jimmy D.

503Daugherty and Earnest L. (Buddy) Levins. The Department's exhibits one through

514five were received as evidence. Janet M. Robbins and Gerald A. Robbins

526testified on their own behalf but presented no other witness. Respondents'

537exhibits one through six were received as evidence. Chapter 5K-4, and Rule 12A-

5501.098, Florida Administrative Code, and Chapter 500, Florida Statutes, were

560officially recognized.

562A transcript of this proceeding was filed with the Division on July 8,

5751996. However, upon an unopposed motion filed by Respondents, the parties were

587granted an extension of time within which to file their respective Proposed

599Findings of Fact and Conclusions of Law with the understanding that any time

612constraint imposed under Rule 28-5.402, Florida Administrative Code, was waived

622in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties

632timely filed their respective Proposed Findings of Fact and Conclusions of Law

644under the extended time frame. A ruling on each proposed finding of fact

657submitted by the parties has been made as reflected in an Appendix to the

671Recommended Order.


676Upon consideration of the oral and documentary evidence adduced at the

687hearing, the following relevant findings are made:

6941. The Department is the agency in the State of Florida responsible for

707the administration and enforcement of Chapter 500, Florida Statutes, and the

718rules promulgated thereunder relating to permitting, food safety and the sale of

730food to the consuming public.

7352. Janet M. Robbins and Gerald A. Robbins (Respondents) operate a stall

747within the confines of a flea market owned and operated by Market World located

761on Highway 92 West in Auburndale, Polk County, Florida. The Respondents lease

773the stall from Market World. Respondents receive all proceeds from the sale of

786items from their stall in Market World. Respondents' business mailing address

797is listed as 1026 Biltmore Drive, Northwest, Winter Haven, Polk County, Florida


8103. Respondents did not, at any time pertinent to this proceeding, possess

822an occupational license issued in their name from Polk County, Florida for

834operating their stall in Market World. Instead, Respondents operated under a

845blanket occupational license issued to Market World by the Tax Collector of Polk

858County, Florida in accordance with Polk County Ordinance No. 95-27 which covered

870all flea market vendors within the confines of Market World. However, had

882Market World elected not to purchase this blanket occupational license,

892Respondents would have been required under this ordinance to obtain a Polk

904County occupational license from the Tax Collector in order to operate their

916stall in Market World.

9204. In accordance with Department of Revenue Rule 12A-1.098, Florida

930Administrative Code, flea market vendors are required to collect sales tax on

942their sales but are not required to register with the Department of Revenue in

956order to remit those taxes. Instead, the rule allows the flea market vendor to

970remit the taxes collected under the registration of the flea market operator,

982manager, lessor or owner. Respondents have in the past used this method of

995remitting the sales tax collected by them to the Department of Revenue.

1007However, the Respondents are presently remitting sales tax directly to the

1018Department of Revenue.

10215. On May 6, 1994, Jimmy D. Daugherty, a Department Sanitation and Safety

1034Specialist, visited the Respondents' stall at Market World and observed that

1045Respondents were offering food for sale. Daugherty advised Janet Robbins that a

1057food permit was required to sell food from Respondents' flea market stall. On

1070this same date, Daugherty inspected Respondents' facility and issued a Food

1081Safety Inspection Report and gave the facility an overall rating of good. Also,

1094the report indicated that this was a new firm and that a food permit application

1109was attached. The food permit application had been filled out by Janet Robbins

1122with Daugherty's assistance. Subsequent to filling out the Food Permit

1132Application, Janet Robbins discussed the matter with her husband, Gerald

1142Robbins, who advised the Department that he disputed the requirement that

1153Respondents' establishment must obtain a food permit. While it appears from the

1165record that Respondents' application was submitted to the Department along with

1176Daugherty's Food Safety Inspection Report, there was no evidence that

1186Respondents tendered the proper fee for a permit or that a permit was ever

1200issued to Respondents.

12036. On January 17, 1995, the Department issued Notice Number 95R-69185

1214concerning Respondents' 1995 Food Permit Renewal Notice. The Notice advised

1224Respondents that they had failed to remit their 1995 Food Permit Renewal Fee,

1237the reminder for which had been mailed to them on November 15, 1994. The

1251November 15, 1994, notice was not introduced as evidence. The January 17, 1995,

1264notice also advised Respondents that a late fee of $37.50 would be added if the

1279food permit renewal fee was not paid by January 31, 1995, and that the late fee

1295would be increased to $100.00 if the food permit renewal fee was not paid by

1310February 28, 1995.

13137. On February 15, 1995, and again on April 26, 1995, the Department

1326advised Respondents that the 1995 Food Permit Renewal Fee was past due and that

1340an appropriate late fee had been added.

13478. In pertinent part, each of the Notices provided:

1356If you dispute your firm type, the State

1364Agency regulating your business, or if you

1371are no longer in business, please indicate

1378on the application (reverse side), sign and

1385return.. . . .

13899. Respondents did not respond in writing to the Department disputing any

1401of the matters set forth in the Notices received by them. Instead, Gerald

1414Robbins made telephone calls to Dr. Martha Rose Roberts, Deputy Commissioner,

1425and to Linton Eason in the legal department. These calls were not returned by

1439the Department.

144110. On July 26, 1995, the Department issued a Notice of Intent To Impose

1455Administrative Fine against Janet Robbins for operating a Food Establishment

1465without a Food Permit in violation of Section 500.12, Florida Statutes.

147611. Respondents requested a formal hearing, and this matter was referred

1487to the Division for the assignment of a Hearing Officer and the conduct of a

1502hearing. Respondents moved to dismiss the matter which was unopposed by the

1514Department. A Recommended Order of Dismissal was entered by the Hearing Officer

1526and jurisdiction relinquished to the Department for final agency action. The

1537Department entered an "Order" overruling the Recommended Order of Dismissal and

1548further ordered that the Department intended to issue an immediate cease and

1560desist order and to impose an administrative fine. The matter was again

1572referred to the Division and this hearing ensued.

158012. On May 6, 1994, the Respondents were selling food, as defined in

1593Section 500.03(1)(h), Florida Statutes, from their stall in the flea market

1604known as Market World and have continued to sell food from their stall in the

1619flea market since that date.

162413. Respondents' establishment within Market World is of a semi-permanent

1634nature. This finding is based on the photographs entered into evidence as

1646Respondents' Exhibits 5 and 6 and the unrebutted testimony of Gerald Robbins

1658that certain pieces of Respondents' equipment located within the Respondents'

1668stall at Market World were bolted to the floor.

167714. Several other flea market vendors within Market World have applied for

1689and were issued food permits by the Department after paying the necessary fee.

170215. Because flea market vendors can move from one flea market to another,

1715any flea market vendor who is issued a food permit for one location may operate

1730under that same food permit at another flea market location provided the vendor

1743does not operate at two or more flea market operations simultaneously.

175416. There was no evidence as to the annual gross food sales generated by

1768Respondents' stall located within Market World.

177417. On May 5, 1995, Daugherty visited and inspected Respondents' stall at

1786Market World. The Food Safety Inspection Report submitted by Daugherty for this

1798inspection indicated an overall rating of good as did the report of May 6, 1994.

1813Respondents have not interfered with, or attempted to interfere with, the

1824Department's inspection of their food establishment even though they disagree

1834with the requirement of having to obtain a food permit from the Department.


185018. The Division of Administrative Hearings has jurisdiction over the

1860parties to, and the subject matter of, this proceeding pursuant to Section

1872120.57(1), Florida Statutes.

187519. Sections 500.12(1)(a) and (b), Florida Statutes, in pertinent part


1886(1)(a) A food permit from the department

1893[is required] of [any person] who [operates

1900a food establishment] or retail food store,


19081. Persons operating minor food outlets,

1914including, but not limited to, video stores,

1921that sell commercially prepackaged, nonpo-

1926tentially hazardous candy, chewing gum, soda,

1932or popcorn, provided the shelf space for

1939those items does not exceed 12 linear feet

1947and no other food is sold by the minor food


19582. Persons subject to continuous, onsite

1964federal or state inspection.

19683. Persons selling only legumes in the shell,

1976either parched, roasted, or boiled.

1981(b) An application for a food permit from

1989the department must be accompanied by a fee

1997in an amount determined by department rule,

2004which may not exceed $350. [Food permits must

2012be renewed annually on or before January 1].

2020If an application for renewal of a food permit

2029is not received by the department within 30 days

2038after its due date, a late fee, in an amount not

2049exceeding $100, must be paid in addition to the

2058food permit fee before the department may issue

2066the food permit.. . . . [Emphasis Supplied]

207420. Sections 500.03(1)(j) and (s), Florida Statutes, in pertinent part


2085(1) For purpose of this chapter, the term:

2093* * *

2096(j) "[Food establishment]" means any factory,

2102food outlet, or [any other facility] manufacturing,

2109processing, packing, holding, or preparing food,

2115or [selling food at] wholesale or [retail].. . . .

2125* * *

2128(s) "Retail food store" means any establishment

2135[or section of an establishment] where food and

2143food products are offered to the consumer and

2151intended for off premises consumption. The

2157term includes delicatessens that offer prepared

2163food in bulk quantities only. The term does

2171not include establishments which handle only

2177prepackaged, non-potentially hazardous foods;

2181roadside markets that offer only fresh fruits

2188and vegetables for sale; food service establish-

2195ments; or food and beverage vending machines.

2202[Emphasis Supplied]

220421. Section 500.121(1), Florida Statutes, provides:

2210(1) In addition to the suspension procedures

2217provided in s. 500.12, the department may impose

2225a fine not exceeding $5,000 against any retail

2234food store or food establishment that has

2241violated this chapter, . . . .

224822. Rules 5K-4.020(1)(j),(o),(5)(a)and (b) and (6)(b), Florida

2257Administrative Code, in pertinent part provide:

2263(1) As used in this rule, the following

2271definitions shall apply:

2274* * *

2277(j) [Limited Sales. Any business fitting

2283any of the above definitions with gross food

2291sales less than $10,000 annually].

2297* * *

2300(o) [Mobile vendor]. [Persons selling foods]

2306other than fresh fruits or vegetables from

2313trucks, trailers or similar conveyance, or

2319[at flea markets], roadside stands [or other

2326semi-permanent, transient, or temporary location].

2331* * *

2334(5) Food Permit Fees.

2338(a) One permit shall be issued to and one

2347fee shall be charged to all food operations

2355at a single location, regardless of whether

2362the location may qualify for two or more

2370permits. If a location qualifies for two of

2378more permits, only the largest applicable fee

2385shall be charged to that location, except that

2393nay location qualifying for a Limited Sales

2400permit shall only be charged the fee applicable

2408to a Limited Sales permit. . . . Fees charged

2418new food permit applicants shall be pro-rated

2425with the applicant paying 1/12th of the appli-

2433cable fee for each month remaining in the

2441calendar year, including the month of application.

2448(b) The following schedule of charges is

2455established for each food Permit.

2460* * *

2463Mobile Vendor 75

2466Limited Sales 50

2469(6) Late Fees.

2472(b) No establishment shall be issued a food

2480permit until all applicable fees, including

2486late fees, are received by the department.

2493[Emphasis Supplied]

249523. The general rule is that a party asserting the affirmative of an issue

2509has the burden of presenting evidence as to that issue. Florida Department of

2522Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). Therefore,

2534the Department has the burden of presenting evidence that Respondents must

2545possess a food permit and that their failure to possess such a food permit is a

2561violation of Chapter 500, Florida Statutes. Furthermore, the Department has the

2572burden of presenting its proof by clear and convincing evidence. Department of

2584Banking and Finance, Division of Securities and Investor Protection v. Osborne

2595Stern and Company, 670 So.2d 932 (Fla. 1996). The Department has met its burden

2609in this regard.

261224. Clearly, the evidence establishes that Respondents operate a food

2622establishment as defined in Section 500.03(1)(j), Florida Statutes, and are

2632required to have a food permit since they do not come within any of the

2647exceptions set out in Section 500.12 (1)(a)1.,2., and 3., Florida Statutes.

2659Furthermore, the evidence establishes that Respondents operate their food

2668establishment within the confines of World Market, a flea market, which places

2680them in the category of a mobile vendor as defined in Rule 5K-4.020(1)(o),

2693Florida Administrative Code, notwithstanding that Respondents' establishment is

2701semi-permanent in nature. Since Respondents fall within the definition of a

2712mobile vendor, Rule 5K-4.020(5)(b), Florida Administrative Code, requires a fee

2722of $75 for a food permit. Additionally, the evidence establishes that

2733Respondents have not obtained a food permit as required by Section 500.12(1)(a),

2745Florida Statutes. Having failed to obtain a food permit, Respondents have

2756violated Section 500.12(1)(a), Florida Statutes, and are subject to an

2766administrative fine under Section 500.121(1), Florida Statutes, which is the

2776appropriate penalty for such violation. However, there does not appear to be

2788any authority for the late fees assessed by the Department in its Notice since

2802late fees apply to the failure to timely renew the food permit. In the instant

2817case, Respondents are contesting the requirement of having to obtain the permit

2829in the first place. Therefore, any penalty imposed should be for the violation

2842of not having a permit as required by Section 500.12(1)(a), Florida Statutes,

2854and not for failure to renew a permit that was never issued. However, this does

2869not relieve the Respondents from having to pay the required fee for purchasing a

2883food permit for the partial year 1994, and for a full year for 1995 and 1996.

289925. Respondents contend that World Market should be required to obtain a

2911blanket food permit which would cover all flea market vendors operating a food

2924establishment within World Market, including Respondents, as World Market does

2934with the Polk County occupational license. Respondents argue that since they

2945are not required to obtain an occupational licenses in Polk County to operate

2958their food establishment in World Market, they are not recognized as a business

2971by Polk County and therefore, are somehow exempted from the provisions of

2983Section 500.12(1)(a), Florida Statutes, requiring a food permit of any person

2994operating a food establishment in the State of Florida, unless exempted under

3006Section 500.12(1)(a) 1., 2., and 3., Florida Statutes. Respondents fail to

3017recognize or cite any authority that would allow the Polk County Ordinance to

3030preempt the statutory authority given the Department under Section 500.12(1)(a),

3040Florida Statutes, to require a food permit of any person operating a food

3053establishment unless exempted under Section 500.12(1)(a) 1., 2., and 3., Florida

3064Statutes. To bolster their argument that only one permit is required for all

3077vendors within the confines of World Market, Respondents cite Rule 5K-

30884.020(5)(a), Florida Administrative Code, which requires only one permit for

3098multiple food operations at a single location, notwithstanding that the location

3109may qualify for two or more food permits. This rule applies only to multiple

3123food operations at one location where the food operations and the location have

3136common ownership, for example, a grocery store with several food operations such

3148as a retail bakery or seafood market within its confines under common ownership.

3161This rule does not apply in the instant case since there is no common ownership

3176between Respondents' food establishment and Market World.

318326. Respondents' contention that if they are required to obtain a food

3195permit that they should be allowed to purchase a food permit in the category of

3210Limited Sales is without merit. Respondents' business does not fall within the

3222category of Limited Sales as defined in Rule 5K-4.020(1)(j), Florida

3232Administrative Code, because Respondents' food establishment does not come

3241within any of the definitions set out in Rule 5K-020(1)(a) through (i), Florida

3254Administrative Code, or meet the minimum annual gross food sales set out in Rule

32685K-020(j), Florida Administrative Code.

327227. There was no evidence that Respondents in any fashion interfered with,

3284or attempted to interfere with, the Department's inspection of Respondents' food

3295establishment. Therefore, after considering the circumstances surrounding this

3303case, any penalty imposed should be tempered so that the penalty will not be

3317onerous and create a "chilling effect" on Respondents or others who may wish to

3331challenge an action by the Department or any other agency.


3342Based upon the foregoing Findings of Fact and Conclusions of Law it is

3355recommended that the Department of Agriculture and Consumer Services enter a

3366final order requiring the Respondents to obtain a food permit for the partial

3379year of 1994, and for a full year for 1995 and 1996, and assessing an

3394administrative fine in the amount of $100.00. It is further recommended that no

3407late fees be assessed for failure to renew a food permit that was never issued.

3422RECOMMENDED this 30th day of August, 1996, at Tallahassee, Florida.


3433WILLIAM R. CAVE, Hearing Officer

3438Division of Administrative Hearings

3442The DeSoto Building

34451230 Apalachee Parkway

3448Tallahassee, Florida 32399-1550

3451(904) 488-9675

3453Filed with the Clerk of the

3459Division of Administrative Hearings

3463this 30th day of August, 1996.


3476The following constitutes my specific rulings, pursuant to Section

3485120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

3497by the parties in this case.

3503Department's Proposed Findings of Fact.

35081. Proposed findings of fact 1 through 4 are adopted in substance as

3521modified in Findings of Fact 1 through 17.

3529Respondents' Proposed Findings of Fact.

35341. Proposed findings of fact 1 - 4, 11, 13, 14, 17 and 18 are adopted in

3551substance as modified in Findings of Fact 1 through 17.

35612. Proposed findings of fact 5 and 6 are neither material nor relevant.

35743. Proposed finding of fact 7, as stated, is argument rather than a

3587finding of fact.

35904. Proposed findings of fact 8 - 10 and 15 are unnecessary as findings of

3605fact. However, they are covered in the Preliminary Statement.

36145. Proposed finding of fact 16 is covered in the Conclusions of Law rather

3628than in the Findings of Fact.

36346. The first two sentences of proposed finding of fact 19 are adopted in

3648substance as modified in Finding of Fact 14. The balance of proposed finding of

3662fact 19, as stated, is argument rather than a finding of fact.

36747. There was no proposed finding of fact 12


3685Honorable Bob Crawford

3688Commissioner of Agriculture

3691The Capitol, PL-10

3694Tallahassee, Florida 32399-0810

3697Richard Tritschler, Esquire

3700General Counsel

3702Department of Agriculture and

3706Consumer Services

3708The Capitol, PL-10

3711Tallahassee, Florida 32399-0810

3714Linton B. Eason, Esquire

3718Department of Agriculture and

3722Consumer Services

3724Room 515, Mayo Building

3728Tallahassee, Florida 32399-0800

3731Gerald A. Robbins

3734Qualified Representative

37361026 Biltmore Drive, Northwest

3740Winter Haven, Florida 33881


3750All parties have the right to submit written exceptions to the Recommended

3762Order. All agencies allow each party at least 10 days in which to submit

3776written exceptions. Some agencies allow a larger period within which to submit

3788written exceptions. You should consult with the agency that will issue the

3800final order in this case concerning their rules on the deadline for filing

3813exceptions to this Recommended Order. Any exceptions to this Recommended Order

3824should be filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
Date: 08/30/1996
Proceedings: Recommended Order
Date: 08/30/1996
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 06/04/96.
Date: 08/21/1996
Proceedings: Petitioner`s Proposed Recommended Order received.
Date: 08/06/1996
Proceedings: Order Extending Time for Submission of Proposed Recommended Order sent out. (due by 8/21/96)
Date: 08/05/1996
Proceedings: Petition for Extension of time to File Proposed Recommended Order (Petitioner) (filed via facsimile) received.
Date: 07/24/1996
Proceedings: Respondent`s Proposed Recommended Order received.
Date: 07/08/1996
Proceedings: Transcript of Proceedings received.
Date: 06/04/1996
Proceedings: CASE STATUS: Hearing Held.
Date: 05/31/1996
Proceedings: Amended Notice of Hearing (as to time only) sent out. (Hearing set for 6/4/96; 1:00pm; Winter Haven)
Date: 04/01/1996
Proceedings: Notice of Hearing sent out. (Hearing set for 6/4/96; 9:00am; Winter Haven)
Date: 03/26/1996
Proceedings: Joint Response to Initial Order received.
Date: 03/11/1996
Proceedings: Initial Order issued.
Date: 03/01/1996
Proceedings: Agency referral letter; Petition for Formal Administrative Hearing; Order (DOAH case no. 95-4517) received.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Winter Haven, Florida
Department of Agriculture and Consumer Services

Related DOAH Cases(s) (2):

Related Florida Statute(s) (4):

Related Florida Rule(s) (1):