03-004681 Department Of Business And Professional Regulation, Division Of Alcoholic Beverages And Tobacco, vs. Old Cutler Oyster Co., Inc., D/B/A Old Cutler Oyster Co. Status: Closed Recommended Order on Friday, September 24, 2004.

Summary: There is no clear statutory duty for the proprietor of an enclosed indoor workplace to take any specific action when patrons are seen smoking in such workplace.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC BEVERAGES )

AND TOBACCO, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4681

)

OLD CUTLER OYSTER CO., INC., )

d/b/a OLD CUTLER OYSTER CO., )

)

Respondent. )

)

RECOMMENDED ORDER

The parties to this case have waived an evidentiary hearing

and have stipulated to the issuance of a Recommended Order on

the basis of stipulated facts.

A PPEARANCES

For Petitioner: Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Gregg J. Ormond, Esquire

Law Office of Greeg J. Ormond, P.A.

330 Alhambra Circle

Coral Gables, Florida 33134 - 5004

STATEMENT OF THE ISSUE

This is a license disc ipline proceeding in which, on the

basis of facts alleged in a First Amended Administrative

Complaint, Petitioner seeks to take disciplinary action against

Respondent. It is alleged that Respondent violated Section

386.204, Florida Statutes, “by and throu gh Section 386.207(3),

Florida Statutes,” by allowing patrons to smoke in an enclosed

indoor workplace.

PRELIMINARY STATEMENT

Respondent timely requested an evidentiary hearing to

challenge the alleged violations, and in due course the case was

referred t o the Division of Administrative Hearings, where it

was scheduled for an evidentiary hearing. Prior to the

scheduled hearing date, the parties agreed to waive the

evidentiary hearing and to submit the case for preparation of a

Recommended Order on stipula ted facts and on written and oral

arguments. 1

FINDINGS OF FACT

The parties have stipulated to the fourteen paragraphs of

findings of fact which follow.

1. Petitioner is the State of Florida, Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco.

2. Respondent is Old Cutler Oyster Company, Inc., d/b/a

Old Cutler Oyster Company.

3. Respondent holds license number 22 - 20655, Series 4 - COP,

issued by Petitioner.

4. Michael Pace is the President of Respondent and hold s

100 percent of the stock of Respondent.

5. Lisa Tyrell was the manager and person in charge at

Respondent’s licensed premises on July 9, 2003.

6. Ms. Tyrell is currently employed by Respondent as a

manager.

7. Ms. Tyrell called Michael Pace on the tel ephone, then

gave the receiver to Fernandez (Special Agent), who explained to

Mr. Pace that violations of the Florida Clean Indoor Air Act

were occurring on the licensed premises.

8. On July 9, 2003, Special Agent Fernandez issued an

Official Notice of Wa rning to Ms. Tyrell as a result of

observing patrons smoking which, he claimed, was in violation of

the Florida Clean Indoor Air Act.

9. On August 15, 2003, Special Agent Fernandez issued a

Notice to Comply to Mr. Pace and told him that he had thirty

days to comply with the notice or administrative charges would

be filed. The notice alleged a violation of the Florida Clean

Indoor Air Act by “allowing patron to smoke cigarettes on 4 - COP

SRX licensed premises.”

10. Special Agent Fernandez visited the licen see a third

time on September 18, 2003.

11. At all times material hereto, Respondent held a valid

retail tobacco products dealer permit issued by Petitioner.

12. At no time did Special Agent Fernandez observe any of

Respondent’s employees smoking within Respondent’s business

premises.

13. No patron received a citation for violating the

Florida Clear Indoor Air Act.

14. On July 9, on August 15, and on September 18 of 2003,

Special Agent Fernandez observed patrons smoking tobacco

products within Responden t’s licensed premises.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

case. §§ 120.569 and 120.57(1), Fla. Stat.

16. Petitioner argues that, pursuant to Sections 386.204

and 386.207(3), Florida Statutes, it is authorized to take

disciplinary action against Respondent on the basis of the

events described in the stipulated facts. Respondent argues

that the applicable statutory provisions do not authorize

Petitioner to take disciplinary action against Respondent on the

basis of conduct by patrons on the licensed premises.

17. Section 386.204, Florida Statutes, reads: “A person

may not smoke in an enclosed indoor workplace, except as

otherwise provided in s. 386.2045.” Non e of the exceptions

described in Section 386.2045, Florida Statutes, apply to

Respondent or to Respondent’s licensed premises.

18. Section 386.206(2), Florida Statutes, reads as

follows:

(2) The proprietor or other person in charge

of an enclosed indoor workplace must develop

and implement a policy regarding the smoking

prohibitions established in this part. The

policy may include, but is not limited to,

procedures to be taken when the proprietor or

other person in charge witnesses or is made

aware of a violation of s. 386.204 in the

enclosed indoor workplace and must include a

policy which prohibits an employee from

smoking in the enclosed indoor workplace. In

order to increase public awareness, the

person in charge of an enclosed indoor

workplace may, at his or her discretion, post

"NO SMOKING" signs as deemed appropriate.

(Emphasis added.)

19. Section 386.207(3), Florida Statutes, reads as

follows:

(3) The department or the Division of Hotels

and Restaurants or the Division of Alcoholic

Beverages a nd Tobacco of the Department of

Business and Professional Regulation, upon

notification of observed violations of this

part, shall issue to the proprietor or other

person in charge of such enclosed indoor

workplace a notice to comply with this part .

If th e person fails to comply within 30 days

after receipt of the notice, the department

or the Division of Hotels and Restaurants or

the Division of Alcoholic Beverages and

Tobacco of the Department of Business and

Professional Regulation shall assess a civil

penalty against the person of not less than

$250 and not to exceed $750 for the first

violation and not less than $500 and not to

exceed $2,000 for each subsequent violation .

The imposition of the fine must be in

accordance with chapter 120. If a person

refuses to comply with this part , after

having been assessed such penalty, the

department or the Division of Hotels and

Restaurants or the Division of Alcoholic

Beverages and Tobacco of the Department of

Business and Professional Regulation may file

a comp laint in the circuit court of the

county in which the enclosed indoor workplace

is located to require compliance. (Emphasis

added.)

20. In determining whether the violations asserted in the

charging instrument have been established, it is necessary to

e valuate the stipulated facts in light of the specific factual

allegations made in the charging instrument. Due process

prohibits an agency from taking disciplinary action against a

licensee based upon conduct not specifically alleged in the

charging instr ument. See Hamilton v. Department of Business and

Professional Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000);

Lusskin v. Agency for Health Care Administration , 731 So. 2d 67,

69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance ,

685 So. 2d 137 1, 1372 (Fla. 1st DCA 1996).

21. Furthermore, "the conduct proved [or stipulated to]

must legally fall within the statute or rule claimed [in the

charging instrument] to have been violated." Delk v. Department

of Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992). In deciding whether "the statute or rule claimed to have

been violated" was in fact violated, as alleged by Petitioner,

if there is any reasonable doubt, that doubt must be resolved in

favor of the licensee. See Whitaker v. Depa rtment of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

v. Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977). "Furthermore, if there are any ambiguities

included such must be construed in favor of the applicant or

licensee." Lester , at 925.

22. Petitioner's basic theory of the case is stated in

paragraph 13 of the Firs t Amended Administrative Complaint in

which it alleges that ". . . Respondent violated § 386.204,

Florida Statutes, by and through § 386.207(3), Florida Statutes,

by actively allowing and encouraging persons to smoke inside the

licensed premises." Consisten t with this theory of the case,

the Petitioner argues in its proposed recommended order that

"Florida Statute 386.207(3) clearly prescribes that a civil

penalty against a licensee shall be imposed for a first

violation of not less that $250.00 and not to e xceed $750.00."

And the Notice to Comply issued to Mr. Pace on August 15, 2003,

by Special Agent Fernandez alleged a violation of the Florida

Clean Indoor Air Act by "allowing patron [sic] to smoke

cigarettes on 4 - COP SRX licensed premises." Petitioner's theory

of the case is problematic in at least two regards. The first

problem is that there is nothing in the applicable statutes that

specifies what, if anything, must be done by a "proprietor or

other person in charge of an enclosed indoor workplace" wh en

such a person witnesses or is made aware of a violation of

Section 386.204. Section 386.206(2), Florida Statutes, requires

the development and implementation of "a policy regarding the

smoking prohibitions established in this part." That statutory

pro vision goes on to mandate that the policy prohibit smoking by

employees, but with regard to violations by others, including

patrons, the statute provides, in its second sentence: "The

policy may include , but is not limited to, procedures to be

taken when the proprietor or other person in charge witnesses or

is made aware of a violation of s. 386.204 in the enclosed

indoor workplace. . . ." (Emphasis added.) As emphasized by the

underscoring, a policy as to what should be done when violations

of Section 38 6.204, Florida Statutes (by persons other than

employees), come to the attention of the proprietor or person in

charge is permissive, perhaps even encouraged, but not required.

And again it is significant to note that there is no statutory

requirement tha t the proprietor or other person in charge of an

enclosed indoor workplace take any specific action when such

proprietor or other person in charge observes a patron (or other

non - employee person) smoking tobacco products in an enclosed

indoor workplace. 2

2 3. In view of the foregoing, it appears that the

violation charged in the First Amended Administrative Complaint

in this case should be dismissed because there is no statutory

provision that authorizes the imposition of fines or other

penalties for merely "allowing" a patron to smoke cigarettes.

24. There is a further reason for which it appears that

the violation charged in the First Amended Administrative

Complaint should be dismissed. Respondent in this case is a

corporation named Old Cutler Oyster Co ., Inc., doing business

under the name of Old Cutler Oyster Co. Respondent is a

licensee under the "Florida Beverage Law," Chapters 561 through

569, Florida Statutes, having been issued SRX license number 22 -

20655, Series 4 - COP. Petitioner seeks to impos e against the

Respondent corporation the civil penalties authorized by Section

386.207(3), Florida Statutes. By the terms of the statute those

penalties are to be assessed against "the person" who fails to

comply with a previously issued "notice to comply ," and in the

context in which the term "the person" is used in the statute,

it appears that the meaning of the term is limited to an

individual human being. It is, at best, ambiguous as to whether

the term "the person," as used in Section 386.207(3), Flo rida

Statutes, includes corporate or other non - human juridical

entities. In a case in which Petitioner seeks to impose

penalties, such an ambiguity must be resolved in favor of

Respondent. 3

RECOMMENDATION

On the basis of all of the foregoing it is RECOMM ENDED that

a final order be issued in this case dismissing the First

Amended Administrative Complaint and denying all relief sought

by the Petitioner.

DONE AND ENTERED this 24th day of September, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of September, 2004.

ENDNOTES

1/ In addition to the usual proposed recommended orders, the

parties agreed to the submission of written responses to the

proposed recommended orders and to oral argument, which was

presented by means of a telephone conference call. The parties

submitted the l ast of their written submissions on July 8, 2004,

and oral argument was held on August 12, 2004.

2/ Absent one of the statutory exceptions listed in Section

386.204, Florida Statutes, a patron who smokes in an enclosed

indoor workplace is in violation of Section 386.204, Florida

Statutes. And Section 386.208, Florida Statutes, states: “Any

person who violates s. 386.204 commits a noncriminal violation as

defined in s. 775.08(3), punishable by a fine of not more than

$100 for the first violation and not more than $500 for each

subsequent violation. Jurisdiction shall be with the appropriate

county court.” This would appear to authorize a law enforcement

officer to issue a citation or complaint to a patron seen smoking

in an enclosed indoor workplace, bu t it does not impose any duty

on the proprietor or other person in charge of such a workplace

to take any specific action when a patron is seen smoking in such

a place.

3/ On the basis of the facts stipulated to in this case, Michael

Pace (in his capacit y as “proprietor ”) and Lisa Tyrell (in her

capacity as “person in charge”) would each appear to be a

“person” within the meaning of Section 386.207(3), Florida

Statutes, but they are not mentioned as Respondents in the First

Amended Administrative Complain t in this case.

COPIES FURNISHED:

Jorge Fernandez

Augusta Building, Suite 100

8685 Northwest 53rd Terrace

Miami, Florida 33166

John Cosgrove, Esquire

Cosgrove Law Offices

201 West Flagler Street

Miami, Florida 33130

Gregg J. Ormond, Esquire

Law Offi ce of Gregg J. Ormond, P.A.

330 Alhambra Circle

Coral Gables, Florida 33134 - 5004

Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jack Tuter, Director

Division of Alcoholic Beverages

And Tobacco

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Leon Biegalski, 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 should be filed with the age ncy that

will issue the Final Order in this case.