03-000399 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Mike`s Tasty Bbq Status: Closed Recommended Order on Tuesday, June 24, 2003.

Summary: Petitioner showed technical violation of licensing as mobile food dispensing facility. Given the conflicting regulations of similar types of facilities and the subsequent compliance with all the regulations, a minimum fine is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0399

)

MIKE'S TASTY BBQ, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on April 15,

2003, in Tavares, Florida, before the Division of Administrative

Hearings by its Administrative Law Judge, Stephen F. Dean.

APPEARANCES

For Petit ioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0790

For Respondent: Michael E. Kennedy

Mike's Tasty BBQ

1995 North Orange Street

Mount Do ra, Florida 32757

STATEMENT OF THE ISSUE

Whether the Respondent should be fined for violation of

Section 509.261, Florida Statutes?

PRELIMINARY STATEMENT

This case arose when the Department's inspector and his

supervisor were driving down US Highwa y 441 and saw the

Respondent offering for sale barbequed ribs. They stopped at

the facility. It is uncertain from their testimony whether they

stopped to inspect the facility or to purchase ribs because they

did both. Their inspection revealed that the facility was

unlicensed; did not have hand - washing facilities; and did not

enclose the smoker. They issued a cease and desist order which

the Respondent obeyed.

On July 16, 2002, the Department issued an Administrative

Complaint charging the Respondent with the aforementioned

violations, and seeking a fine of $1,000 for each of the three

violations. The Respondent appealed, and the matter was

referred to the Division of Administrative Hearings.

After one continuance at the joint request of the parties,

this matter was heard on April 15, 2003.

The Department presented the testimony of Henry Cristwell

and Angela Carragher and introduced three exhibits.

A Transcript was filed on May 5, 2003, and on May 21, 2003,

the Petitioner filed a Proposed Recommende d Order, which was

read and considered.

FINDINGS OF FACT

1. The Division is the state agency charged with

regulating the operation of hotel and restaurant establishments

pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. The Respondent has at all times material hereto has

been subject to the Division of Hotels and Restaurants'

(Division) jurisdiction.

3. The Respondent's last known business address is 1995

North Orange Street, Mount Dora, Florida 32757.

4. On June 22, 2002, Henry Ch ristwell, a Division

inspector, observed the Respondent operating an outdoor,

roadside food vending facility in the vicinity of US Highway 441

in Lake County, Florida. The operation consisted of a tent with

a smoker partially under the tent. Christwell i nspected the

Respondent's premises, and noted that the Respondent was

operating without a license; did not have proper hand - washing

facilities; and did not have the smoker enclosed.

5. Based on those deficiencies, Christwell issued a

Administrative Deter mination and Order of Closure for the Mobile

Food Vendor on that same day, and the Respondent immediately

closed the facility, but not before Christwell purchased some

ribs from the Respondent.

6. An Administrative Complaint was issued on July 16,

2002, a lleging the Respondent's violation of Chapter 509,

Florida Statutes, for operating without a license; not having

hand - washing facilities; and not having the smoker enclosed.

7. The Respondent elected to dispute the factual

allegations of the Administrati ve Complaint, and timely

requested a hearing in accordance with Section 120.57, Florida

Statutes. The factual allegations were:

a) Operating without a license.

b) No hand washing facilities available.

c) The smoker was in operation without an

enclos ure so food was unprotected from

possible contamination.

8. At hearing, the Respondent did not controvert the

allegations; however, he maintained that there is confusion over

when such a facility must be licensed. For example, a local

bait shop in the area in which the Respondent was operating does

not have its smoker enclosed. Mr. Christwell advised that,

because the bait shop sells soft drinks and snack foods, it is

not regulated by the Department although it sells food to the

public. The Responden t, who is the minister of a local African

Methodist Episcopal Church, pointed out that had he been

operating on the church's premises, he would have also been

exempt. Mr. Christwell agreed that he would not be subject to

regulation on the church's premise s.

9. The Respondent stated his intent was not to break the

law, and he did not believe that he was required to obtain a

license. Everyone agreed that on August 6, 2002, the Respondent

became licensed for operation as a mobile food vendor.

10. The R espondent also claims he had coolers filled with

water in order that he could wash his hands. The fact that the

alleged sanitary violations existed did not prevent

Mr. Christwell from purchasing ribs from the Respondent.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

12. No challenge was raised at hearing to the factual

allegations in th e Administrative Complaint. The Respondent

brought to the attention of the fact - finder that there are a

myriad of conflicting regulations and exceptions to operating a

mobile food service facility. The Respondent did not defend his

actions on the basis t hat the allegations did not occur, but

that he was sincerely confused by the requirements. There is no

controversy that when the regulations were brought to his

attention, he ceased operations, and sought and obtained

licensure. He has since been inspect ed and is in full

compliance with the regulations.

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

any public lodging establishment or public food service

establishment that has operated or is operating in violation of

Chapter 509, Florida Statute s, or the rules promulgated

thereunder, is subject to fines not to exceed $1,000.00 per

offense; mandatory attendance at an educational program

sponsored by the Hospitality Education Program; and the

suspension, revocation or refusal of a license.

14. Whi le the Department may fine up to $1,000, in this

case this would be unjust. The Respondent did not intend to

violate the regulations and is now completely in compliance with

the state regulations. The Respondent has complied with the

law. His violation was unintentional, and the conditions prior

to his closing down the facility were not egregious enough to

prevent the inspectors from purchasing his ribs.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That the Department of Business and Professional Regulation

enter a final order finding that the Respondent violated the

statutes as alleged and ordering him to pay an administrative

penalty in the amount of $100.00 due and payable to the Division

of Hotel s within 30 calendar days of the date of this Order.

DONE AND ENTERED this 24th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

Th e 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 June, 2003.

COPIES FURNISHED :

Michael E. Kennedy

Mike's Tasty BBQ

1995 North Orange Street

Mount Dora, Florida 32757

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0750

Geoff Luebk emann, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order shou ld be filed with the agency that

will issue the final order in this case.