10-005922 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. C And K Smoke House Bbq Status: Closed Recommended Order on Monday, November 22, 2010.

Summary: Petitioner failed to prove that Respondent violated rule requiring plan approval to remodel restaurant. Respondent replaced old equipment with like equipment in the same general area, without construction or alteration of any structure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 5922

)

C AND K SMOKE HOUSE BBQ , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 4, 2010, by video teleconference between sites in

Tallahassee and Sarasota , before Elizabeth W. McArthur, a

duly - designated Adm inistrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John J. Truitt, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallah assee, Florida 32399 - 2202

For Respondent: Carl Rhodes, Jr., pro se

C and K Smoke House BBQ

12125 U.S. Highway 301 , North

Parrish, Florida 34219

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed

th e violation alleged in the Administrative Complaint, and , if

so, what discipline should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants (Petitioner or

Division) , filed a one - count Administrative Complaint against

Respondent, C and K Smoke House BBQ (Respondent), a licensed

restaurant co - owned by Carl Rhodes, Jr., and Kimberly V. Rhodes.

The Administrative Complaint alleged that Respondent violated a

rule that requires su bmission of plans to the Division for

review and approval before a restaurant is constructed,

remodeled, converted, or reopened. The factual allegations,

based on inspection reports, were that "renovations" were "in

progress" to add a "rotisserie smoker u nit at [the] outside

patio area" and that the "area is also not propely [sic]

screened."

Respondent timely requested an administrative hearing

involving disputed issues of material fact, and the matter was

referred to the Division of Administrative Hearin gs for

assignment of an Administrative Law Judge to conduct the hearing

requested by Respondent.

Petitioner presented the testimony of Victoria Bagley, a

s anitation and s afety s upervisor , who inspected Respondent's

establishment. Petitioner's E xhibits 1 through 4 were received

into evidence. In addition, Petitioner's request was granted

for official recognition of Subsection 509.32(6), Florida

Statutes (2010), 1 and Florida Administrative Code Rules

61C - 1.001(14), 61C - 1.002(6)(C)(1)[sic], 2 and 61C - 1.005.

Mr. Rhodes, as co - owner of Respondent, self - represented

Respondent and testified on Respondent's behalf. Respondent's

other co - owner, Kimberly Rhodes, was present , but did not

testify. Respondent's E xhibits 1 through 4 were received into

evidence.

A Tr anscript of the final hearing was filed on October 14,

2010. The Division timely filed its Proposed Recommended Order,

which has been considered in the preparation of this Recommended

Order. Respondent did not file a proposed recommended order.

FINDING S OF FACT

1. Since November 9, 2004, Respondent has been licensed

and regulated by the Division as a permanent food service

establishment in Parrish, Florida. Respondent's license number

is 5105120.

2. Before initial licensure, Respondent submitted plan s

for the restaurant to the Division with the required plan review

application and plan review fee of $150.00. The 2004 plans

submitted for Division review and approval were not offered into

evidence.

3. The Division periodically inspects licensed food

s ervice establishments , such as Respondent , to ensure compliance

with applicable laws and regulations. For example, on

October 7, 2009, the Division conducted a routine inspection of

Respondent and determined that Respondent "met inspection

standards durin g this visit."

4. Two days later, on October 9, 2009, the Division

conducted another inspection of Respondent. The Division's

witness, Ms. Bagley, who conducted the inspection, gave no

explanation for conducting another inspection so close in time

to the October 7 , 2009, inspection in which inspection standards

were found to be met.

5. Ms. Bagley's October 9, 2009, inspection report

indicates several violations, and as a result, Ms. Bagley

conducted a call - back inspection the next morning. Some of the

i tems identified in the October 9 , 2009, report were addressed

to Ms. Bagley's satisfaction by the next morning. Ms. Bagley

determined that additional time, through December 10, 2009,

should be given to address two remaining items. One of those

items, des ignated as a "non - critical" violation , was described

as follows in both the October 9, 2009, inspection report and

the October 10, 2009, call - back inspection report:

51 - 16 - 1: No plan review submitted to and

approved by division of hotels and

restaurants a nd renovations in progress.

Added routissary [sic] smoker unit unto

outside patio area. Area is \\ also not

propely [sic] screened. Must comply.

6. Ms. Bagley conducted a call - back inspection on

December 11, 2009. She found that one of the two items

sch eduled for call - back inspection was in compliance. She

recommended issuance of an A dministrative C omplaint with regard

to the other item described , as follows:

Violation: 51 - 16 - 1

No plan review submitted to and approved by

division of hotels and restauran ts and

renovations in progress. Added routissary

[sic] smoker unit unto outside patio area,

area is \\ also not propely [sic] screened.

Must comply.

7. On January 22, 2010, Petitioner issued an

Administrative Complaint against Respondent, as recommended by

Ms. Bagley. The Administrative Complaint quoted the rule

allegedly violated, as follows:

1. 51 - 16 - 1 61C - 1.002(6)(C)(1) FAC:

(1) The operator of each public food service

establishment to be newly constructed,

remodeled, converted, or reopened shall

submit properly prepared facility plans and

specifications to the Division for review

and approval in accordance with the

provisions of Chapter 509 and Rule Chapters

61C - 1 and 61C - 4, FAC. Such plans must be

approved by the Division prior to

construction, remodeling, conversion,

scheduling of an opening inspection and

licensing.

The allegations of fact relied on to establish the claimed rule

violation were as follows:

No plan review submitted to and approved by

Division of Hotels and Restaurants and

renova tions in progress, added rotisserie

smoker unit at outside patio area; area is

also not propely [sic] screened.

8. Ms. Bagley testified that she prepared the three

inspection reports on October 9, 10, and December 11, 2009,

using a hand - held computer whi le she was on site. Ms. Bagley

did not describe what she observed at any of the three

inspections or elaborate on the description of the charged

violation as set forth and repeated in each of the three

inspection reports. Ms. Bagley did not identify any changes of

any nature at Respondent's establishment besides the placement

of a new rotisserie smoker unit in an area she described as the

outside patio area.

9. Mr. Rhodes acknowledged that a new rotisserie smoker

unit was acquired as replacement equipme nt to replace another

smoker that wore out. Mr. Rhodes did not construct, remodel, or

renovate space to house the new rotisserie. Instead, the new

unit was placed in the same general area as the replaced unit,

two feet from where the previous unit stood. The new unit could

not sit in the identical spot as the prior unit , because it was

an upright grill instead of a flat one. Though it was not

identical equipment, it was "like" equipment. Mr. Rhodes'

testimony was credible and unrebutted.

10. Responden t submitted pictures into evidence to show

the cooking area where the new rotisserie grill stands, adjacent

to a larger smoker that sits next to another large smoker.

These pictures were taken approximately three weeks after

Ms. Bagley's last inspection. Ms. Bagley did not identify

anything new or different in the scenes shown in the pictures

from what she observed at the December 11, 2009, inspection.

These pictures confirm Mr. Rhodes' testimony that the new

rotisserie unit was placed in the same genera l area that was ,

and still is , used for cooking.

11. Ms. Bagley's three inspection reports use the phrase

"renovations in progress." However, Ms. Bagley was unable to

define what she meant by that phrase:

Mr. Rhodes: I would like to get

[Ms. Bagley's] de finition of "renovation in

progress."

Ms. Bagley: Well, actually I wouldn't have

a definition of renovation in progress.

I would end up referring you to the plan

review person, as well as the website. I

believe that the definition in Florida

Administra tive Code 61(c) lists multiple

possibilities, and then the Division has

guidelines and policies that help explain

those further.

12. Ms. Bagley's reference to the list of "multiple

possibilities" is to Florida Administrative Code Rule

61C - 1.002(5)(c)1., which states that the "operator of a public

food service establishment to be newly constructed, remodeled,

converted, or reopened" must submit plans to the Division for

review and approval. This rule does not use the term

"renovation," but it does use the term "remodeled."

13. The sentence after the excerpt of Florida

Administrative Rule 61C - 1.002(5)(c)1., quoted in the

Administrative Complaint , provides as follows: "For remodeling,

plan review submittal shall not be required if the division can

otherw ise determine that the intended remodeling will not have

an impact on the Florida Clean Indoor Air Act, fire safety,

bathroom requirements, or any other sanitation and safety

requirements provided in law or rule."

14. When Ms. Bagley was asked about this provision and , in

particular, how the Division defined the term "remodeling" used

in its rule, her response was as follows:

Well, I could say that just adding the

smoker onto the patio area would be a change

in use of that patio area. It turned it

into a cooking, a food prep area that was

originally, the plan was not approved for.

As previously noted, however, no evidence was presented of the

original plans or the extent to which areas were separately

designated for specific uses. The pictures in evidenc e do not

support Ms. Bagley's apparent view that the so - called "patio

area" with the new rotisserie grill is physically separated from

the so - called "cooking area" with the large smokers. The two

areas are adjacent. A large smoker in the so - called "cooki ng

area" is immediately adjacent to the new rotisserie smoker in

the so - called "patio area" with nothing separating them besides

a foot or two of space. Both areas appear to have ceilings,

partial walls, and screening. The only apparent differences in

th e two areas are cosmetic, such as different flooring and

different finishes to the walls.

15. Although Ms. Bagley was unable to define "renovation"

or "remodeling," she referred to the Division's "guidelines and

policies that help explain [the terms liste d in the rule]

further." The Division maintains a website page that sets forth

"Restaurant Plan Review FAQ [frequently asked questions]."

Respondent consulted this website page, which includes the

following:

Q: When am I required to submit plans for

rev iew?

A: Plans are required for any of the

following situations:

Construction of a new food service

establishment. Remodeling of an existing

establishment if the proposed changes affect

the sanitation, safety, or restroom

requirements or the Florida Cle an Indoor Air

Act. Reopening an establishment that has

been closed over one (1) year. Conversion

of an existing structure for use as a food

establishment.

Q: What changes do not require a plan

review?

A: Changes that are only cosmetic in nature

do not require a plan review. Such changes

involve painting, replacing dining room

carpeting, or replacing like equipment

(e.g., replacing an old refrigerator with

new). If you are in doubt, call the

Customer Contact Center at 850.487.1395 for

further clari fication.

Ms. Bagley did not specifically address this guidance or explain

why Respondent would not have reasonably relied on the

authorization for "replacing like equipment" without plan

review.

16. Leaving aside the threshold question of whether there

was any "remodeling," no evidence was presented that the

placement of the replacement rotisserie grill two feet away from

where the prior grill was located is a change that implicates

any new or different safety or sanitation requirements.

Although Ms. B agley testified that placing the new rotisserie

grill two feet from the site of the old grill changed the use of

the new location, she did not identify any specific sanitation

or safety requirements impacted by the changed location.

Presumably, if any su ch regulatory requirements had been

impacted by the placement of the new rotisserie grill,

Ms. Bagley would have cited them in her inspection reports.

17. Finally, although the inspection reports and

Administrative Complaint allege that the area where the new

rotisserie grill is located is improperly screened, no evidence

was presented to prove this allegation. Ms. Bagley did not

explain what she meant by improper screening, where or how there

was improper screening, or what the requirements are for prope r

screening. Respondent's pictures show screening in the entire

cooking area that houses the new rotisserie grill and the other

two larger smokers, but no evidence was presented regarding

whether the screening was in any way improper. 3

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

19. Petitioner has the burden of pleading , with

particularity , in the Administrative Complaint th e facts and law

on which it relies to take disciplinary action against

Respondent. Willner v. Department of Professional Regulation,

Board of Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1990);

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fl a.

1st DCA 1996); United Wisconsin Life Insurance Co. v. Office of

Insurance Regulation , 849 So. 2d 417, 422 (Fla. 1st DCA 2003).

20. In addition, Petitioner has the burden to prove the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996). The

clear and convincing evidence standard was defined in Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), as follows:

[C]lear and convin cing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issu e. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

21. The Administrative Complaint in this case charges

Re spondent with a single violation of the following rule

requirement:

(1) The operator of each public food

service establishment to be newly

constructed, remodeled, converted, or

reopened shall submit properly prepared

facility plans and specifications to the

Division for review and approval in

accordance with the provisions of Chapter

509 , F.S., and Rule Chapters 61C - 1 and

61C - 4, F . A . C. Such plans must be approved

by the Division prior to construction,

remodeling, conversion, scheduling of an

opening ins pection and licensing.

Fla. Admin. Code R. 61C - 1.002(5)(c)1. (cited incorrectly in the

Administrative Complaint as Rule 61C - 1.002(6)(C)(1), but quoted

accurately).

22. The only facts alleged in the Administrative Complaint

as the basis for the charged ru le violation were as follows:

No plan review submitted to and approved by

Division of Hotels and Restaurants and

renovations in progress, added rotisserie

smoker unit at outside patio area; area is

also not propely [sic] screened.

23. Without question, R espondent did not engage in new

construction, did not convert an existing non - restaurant

building for use as a food service establishment, nor did

Respondent reopen a restaurant that had been closed. Thus, the

only possible trigger under the rule is "remo deling."

24. Petitioner failed to meet its burden to prove by clear

and convincing evidence that Respondent remodeled its food

service establishment so as to violate the rule requiring plan

submission. The only evidence of a change of any kind was that

R espondent replaced a grill with like equipment and put the new

grill in the same general area as the old grill, two feet away

from where the old grill sat.

25. Petitioner does not contend that Respondent did not

have proper plans for the restaurant subm itted and approved

prior to initial licensure in 2004. Petitioner did not present

evidence of the original plans it approved, nor did Petitioner

present any other evidence of what specifically changed at

Respondent's establishment, if anything, besides th e acquisition

of a replacement grill placed in the same general area and two

feet away from where the old grill sat. No evidence was

presented of any construction or alteration of any structure,

such as if Respondent had added a room to house the replacem ent

equipment or rebuilt any existing structures, in whole or in

part. Respondent's unrebutted testimony was that no such

activity occurred.

26. Petitioner's own inspector was unable to define what

she meant by "renovation in progress," despite the fact that

that is the phrase she used in her inspection report to describe

Respondent's alleged violation.

27. Petitioner's inspector also was unable to define

"remodeling," as used in the rule allegedly violated by

Respondent. The only categories triggerin g the plan review

requirement are new construction, remodeling, conversion, and

reopening of a food service establishment ; and the only one of

those categories suggested by Petitioner to have occurred here

is "remodeling." But Petitioner's inspector never determined

whether there was any "remodeling , " as required by the plan

review rule. Instead, the inspector jumped to the exception in

the rule and treated the exception as if it created an

additional category.

28. The exception in the rule provides as f ollows: "For

remodeling, plan review submittal shall not be required if the

division can otherwise determine that the intended remodeling

will not have an impact on the Florida Clean Indoor Air Act,

fire safety, bathroom requirements, or any other sanitat ion and

safety requirements provided in law or rule." Ms. Bagley

ignored the "remodeling" requirement and , instead, rewrote the

exception to provide a new category subject to the plan review

requirement -- any change in a restaurant establishment that has

a n impact on any sanitation and safety requirements. But the

Division's rule , as written , plainly requires as a threshold

trigger of the plan review requirement that there must be

"remodeling." Consideration of the impact on sanitation and

safety requirem ents only comes into play after there is a

determination that a restaurant intends to remodel its

establishment. Then, under the exception, if the remodeling

will not impact sanitation and safety requirements in statutes

and rules, the remodeling can go f orward without plan review.

The exception serves to narrow the scope of the regulation so

that not all remodeling is subject to the plan review

requirement.

29. Even if Petitioner's rule required plan submission and

approval for any change in a restaur ant that impacts sanitation

and safety requirements or for any change in use, Petitioner

would not have met its burden of proving, with clear and

convincing evidence, that the two - foot relocation of the

replacement equipment was such a change. As noted in the

F indings of F act, the inspection reports did not cite any

violations of any safety and sanitation requirements caused by

locating the replacement grill two feet away from where the old

grill sat. Moreover, Petitioner did not prove with clear and

conv incing evidence that the relocated equipment was a "change

in use" of the patio area. Petitioner failed to offer into

evidence the original approved plans, and , thus, there is no

evidentiary basis for determining what uses were originally

approved in what areas. But neither "change in use," nor

"change impacting sanitation and safety requirements," are among

the four categories listed in the Division's rule that triggers

the plan review and approval requirement.

30. The Division is bound by its rule as w ritten. Boca

Raton Artificial Kidney Center v. Department of Health and

Rehabilitative Services , 493 So. 2d 1055, 1057 (Fla. 1st DCA

19 86) . That is particularly true in this penal context where

the rule prescribes conduct to which regulated persons are

r equired to conform or be subject to penalties as the Division

seeks to impose here.

31. In the absence of a statutory or rule definition of

the term "remodeling," the common and ordinary meaning and usage

should apply. See, e.g. , Humana Hospital - Biscay ne v. Department

of Banking and Finance , 603 So. 2d 672, 673 (Fla. 1st DCA 1992).

"Remodel" means "to alter the structure of." Webster's Ninth

New Collegiate Dictionary at 996. Accord Merriam - Webster's

Online Dictionary , www.merriam - webster.com (providin g as an

example of common usage: "We remodeled the kitchen last year").

Using this common meaning and usage, Respondent did not remodel

the restaurant by replacing equipment with like equipment, even

if the replacement equipment was placed in a different location ,

two feet from where the old equipment sat. As the terms

"remodeling" and "renovating" are commonly understood, no one

would say that buying a replacement rotisserie oven for one's

kitchen, even if located in a slightly different place,

constitu tes remodeling or renovating the kitchen.

32. Respondent reasonably assumed that replacement of worn

out equipment with like equipment in the same general area,

unaccompanied by construction or alteration to the

establishment's structure, would not be con sidered remodeling

subject to the plan review submission requirement. That

reasonable assumption was supported by the Division's website

FAQs, which explain that replacement of "like equipment" does

not trigger the regulatory plan review requirement.

3 3. As to the allegation that an area was "not properly

screened," Petitioner failed to charge a specific statute or

rule allegedly violated. The only rule violation charged in the

Administrative Complaint was the rule requiring submission of

plans for rev iew and approval before new construction,

remodeling, conversion, or reopening and that rule plainly does

not contain any requirements for proper screening. Moreover,

Petitioner failed to meet its burden of proving the factual

allegation of improper scree ning.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be entered by the

Petitioner, Department of Business and Professional Regulation,

Division of Hotels and Restaurants, dismissing the

Administrative Complaint against Respondent, C and K Smoke

House BBQ.

DONE AND ENT ERED this 22nd day of November , 2010 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of November , 2010 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 20 1 0 version.

2/ Both the Administrative Complaint and the rule excerpts

prepared by the Division for its official recognition request

cite Florida Admini strative Code Rule 61C - 1.002(6)(C)(1) as the

provision addressing plan review requirements for restaurants.

There is no such rule. However, the text quoted in the

Administrative Complaint and in the Division's rule excerpt

corresponds to Florida Administ rative Code Rule

61C - 1.002(5)(c)1. according to the Department of State's Florida

Administrative Code rules available online at

https://www.flrules.org/Default.asp . While the failure to

charge a violation of the correct rule could be considered fatal

to a n Administrative Complaint, here the text of the rule relied

on is quoted in full. Therefore, although the error is noted,

it is not the basis for the recommendation herein.

3/ The October 9, 2009, inspection report lists several

"Warnings," including items identifying repairs needed to the

screening in both the patio area and the adjacent area where the

two large smokers are located. These warning items use

reference No. 35B, a violation category that addresses outer

openings (such as screening) to p rotect from insects. In

contrast, the plan review issue raised in the Administrative

Complaint falls under reference No. 51, which is a general

violation category covering other conditions affecting sanitary

and safe operation. There is no charged rule v iolation in the

Administrative Complaint to correspond with the screening issues

raised in the inspection report.

COPIES FURNISHED :

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business of

Professional Regulation

1940 N orth Monroe Street

Tallahassee, Florida 32399

Reginald Dixon, General Counsel

Department of Business of

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Charles F. Tunnicliff, Esquire

Department of Business and

Profess ional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Carl Rhodes, Jr.

C and K Smoke House BBQ

12125 US Highway 301 North

Parrish, Florida 34219

John Juitt, Qualified Representative

Department of Business &

Professional R egulation

1940 North Monroe Street, Suite 60

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 Re commended Order should be filed with the agency that

will issue the Final Order in this case.