10-008548 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Key West Bed And Breakfast
 Status: Closed
Recommended Order on Monday, December 20, 2010.


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Summary: Facility not guilty of refusing to permit an inspection of the premises becauise owner offered to permit inspection before inspector left the premises.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF HOTELS AND )

21RESTAURANTS , )

23)

24Petitioner , )

26)

27vs. ) Case No. 10 - 8548

34)

35KEY WEST BED AND BREAKFAST , )

41)

42Respondent . )

45)

46RECOMMENDED ORDER

48Pursuant to notice, a formal hearing was held in this case

59on October 19, 2010, by telephone conference call before

68Administrative Law Judge Claude B. Arrington of the Division of

78Administrative Hearings (DOAH).

81APPEARANCES

82For Petitioner: Patricia Ann Nelson, Esquire

88Department of Business and

92Professional Regulation

941940 N. Monroe Street, Suite 42

100Tallahassee, Florida

102F or Respondent: Jody Carlson, pro se

109415 William Street

112Key West, Florida 33040

116STATEMENT OF THE ISSUES

120Whether Respondent committed the violations alleged in the

128subject Administrative Complaint, and, if so, the penalties that

137should be imposed.

140PRELIMINARY STATEMENT

142Petitioner is a duly licensed bed and breakfast operating

151in Key West, Florida. On July 1, 2010, Petitioner filed an

162Administrative Complaint against Respondent which alleged

168Respondent violat ed Section 509.032(2)(b), Florida Statutes

175(2010), 1 by refusing to allow an inspector entrance or access to

187the licensed premises for the purpose of conducting an

196unannounced inspection . Respondent timely disputed the

203allegations contained in the Administ rative Complaint, the

211matter was referred to DOAH, and this proceeding followed.

220At the formal hearing, Petitioner presented the testimony

228of Leonardo Hernandez, a Sanitation and Safety Specialist

236employed by Petitioner. As part of his job du ties,

246Mr. Her nandez conducts inspections of licensed premises.

254Petitioner offered two exhibits, both of which were accepted

263into evidence. At the request of Petitioner, the undersigned

272took official recognition of Sections 509.032(2)(b) and

279509.032(6), Florida Statut es , and Florida Administrative Code

287Rules 61C - 1.004 and 61C - 1.005.

295Respondent presented the testimony of Jody Carlson, the

303owner of Key West Bed and Breakfast. Respondent offered no

313exhibits.

314The Transcript, consisting of one volume, was filed

322November 1 , 2010. On Petitioner's motion, to which Respondent

331had no objection, the deadline for submitting proposed

339recommended orders (PROs) was extended to November 19, 2010.

348Petitioner timely filed its Proposed Recommended Order , which

356has been duly considered by the undersigned in the preparation

366of this Recommended Order. Respondent did not file a proposed

376recommended order. Respondent filed a letter addressed to the

385undersigned on December 13, 2010. That letter was not timely

395filed and was not considered in the preparation of this

405Recommended Order.

407FINDINGS OF FACT

4101. At all times relevant to this proceeding, Respondent

419has operated as a bed and breakfast and has been subject to

431PetitionerÓs regulation. That regulation required Petitioner to

438comply wit h all relevant provisions set forth in Florida

448Statutes, Florida Administrative Code, and the Food Code.

4562. At all times relevant to this proceeding Respondent

465held license number 5402366. That license authorizes Respondent

473to operate a bed and breakfast at 415 William Street, Key West,

485Florida (the subject facility).

4893. Section 509.032, Florida Statutes, requires Petitioner

496to inspect licensed premises to safeguard the public health,

505safety, and welfare. Section 509.032(2)(b), Florida Statutes,

512authori zes the Petitioner to inspect the subject facility at any

523reasonable time as follows:

527(b) For purposes of performing required

533inspections and the enforcement of this

539chapter, the division has the right of entry

547and access to public lodging establishments

553and public food service establishments at

559any reasonable time.

5624. Leonardo Hernandez is employed by Petitioner as a

571Sanitation and Safety Specialist. Mr. Hernandez is experienced

579and properly trained to conduct inspections of food service and

589public lod ging establishments to ensure compliance with

597applicable regulations. Mr. Hernandez performs between 1,200

605and 1,400 inspections per year.

6115. On May 21, 2010, Mr. Hernandez appeared at the subject

622facility at 8:26 a.m. for the purpose of conducting an

632un announced inspection. The time Mr. Hernandez appeared at the

642subject premises for the inspection was a reasonable time.

651Mr. Hernandez had the right to inspect the premises and the

662licensee was required to grant him entry for the purpose of

673conducting the inspection.

6766. Ms. Carlson, the owner of the subject facility, was not

687on the premises when Mr. Hernandez first arrived. The person in

698charge of the subject facility (the operator), who was not

708identified by name, was supervising the preparation of brea kfast

718for the guests of the subject facility when Mr. Hernandez first

729arrived. Mr. Hernandez showed the operator his credentials and

738told him why he was at the subject facility. In response, the

750operator, using profane language, denied Mr. Hernandez acce ss to

760the premises. Mr. Hernandez suggested that the operator call

769the owner. The operator called Ms. Carlson by telephone and

779informed her of Mr. Hernandez's presence.

7857. Ms. Carlson arrived at the subject premises within ten

795minutes of that telephone call. In the interim, Mr. Hernandez

805remained outside of the premises.

8108. Upon her arrival, Mr. Hernandez informed Ms. Carlson of

820the reason of his visit and showed her his credentials.

830Ms. Carlson asked why he had not scheduled the inspection.

840Mr. Hern andez explained th at rules governing public food service

851and public lodging inspections allow the right of entry to

861licensed premises for the purpose of unannounced inspection s .

871Mr. Hernandez further explained that he would not force his way

882into the esta blishment.

8869. Mr. Hernandez did not inspect the subject facility on

896May 21, 2010.

89910. Mr. Hernandez generated the inspection by computer,

907while he was at the subject facility, the inspection report that

918was admitted as Petitioner's Exhibit 2. Mr. Hernan dez closed

928the inspection report with the recommendation that an

936administrative complaint be filed against Respondent because he

944was refused entry to the premises . The inspection report

954reflects the time Mr. Hernandez arrived at the subject facility,

964but it does not reflect the time Mr. Hernandez closed the

975inspection report.

97711. Mr. Hernandez asserted that he closed his inspection

986report after Ms. Carlson did not respond to his statement that

997he would not force his way into the subject facility.

100712. The re is no dispute that Mr. Hernandez explained to

1018Ms. Carlson that he had the right to inspect the premises.

1029There is also no dispute that Ms. Carlson offered to walk him

1041through the premises while he conducted his inspection after

1050that explanation. 2 Ms. Carlson's offer came after Mr. Hernandez

1060closed his inspection report that contained the violation at

1069issue in this proceeding, but before Mr. Hernandez left the

1079premises.

108013. Mr. Hernandez told Ms. Carlson that that he had been

1091abused by her staff and th at he would not go into the facility.

1105That statement was made after he closed his inspection report.

1115CONCLUSIONS OF LAW

111814. DOAH has jurisdiction over the subject matter of and

1128the parties to this proceeding pursuant to Sections 120.569 and

1138120.57(1), Florida Statutes.

114115. Petitioner has the burden of proving by clear and

1151convincing evidence the allegations against Respondent. See

1158Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

1169Co. v. Department of Agriculture and Consumer Services , 55 0

1179So.2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

1190645 So.2d 398 (Fla. 1994). The following statement has been

1200repeatedly cited in discussions of the clear and convincing

1209evidence standard:

1211Clear and convincing evidence requires that

1217the evi dence must be found to be credible;

1226the facts to which the witnesses testify

1233must be distinctly remembered; the evidence

1239must be precise and explicit and the

1246witnesses must be lacking in confusion as to

1254the facts in issue. The evidence must be of

1263such wei ght that it produces in the mind of

1273the trier of fact the firm belief of (sic)

1282conviction, without hesitancy, as to the

1288truth of the allegations sought to be

1295established. Slomowitz v. Walker , 429 So.

13012d 797, 800 (Fla. 4th DCA 1983).

130816. Petitioner prove d by clear and convincing evidence

1317that Respondent's operator denied Mr. Hernandez access to the

1326subject facility for the purpose of conducting an inspection.

1335In response to that denial, Mr. Hernandez suggested to the

1345operator that he contact the owner of the premises, thereby

1355agreeing to deal with the owner, not the operator , of the

1366subject facility.

136817. After the owner appeared at the premises,

1376Mr. Hernandez showed his credential s and asserted his authority

1386to inspect the premises. It is not clear why he closed out his

1399inspection report when he did. It is clear, however, that the

1410owner gave Mr. Hernandez permission to inspect the premises by

1420offering to walk him through the facilities while he conducted

1430his inspection on the morning of May 21, 2010, be fore

1441Mr. Hernandez left the premises. The fact that Mr. Hernandez

1451closed his inspection report before Ms. Carlson made her offer

1461does not make her offer untimely. Mr. Hernandez could have

1471amended his inspection report and he could have completed the

1481insp ection on the morning of May 21, but he chose not to do so.

1496Instead, Mr. Hernandez told Ms. Carlson that he had been abused

1507by her staff and that he would not go into the facility. He

1520thereafter left the premises.

152418. Because Mr. Hernandez agreed to dea l with the owner of

1536the premises and because the owner clearly offered Mr. Hernandez

1546entry to inspect the premises before he left the premises, it is

1558concluded that Petitioner has failed to meet its burden in this

1569proceeding.

1570RECOMMENDATION

1571Based on the foregoing Findings of Fact and Conclusions of

1581Law, it is RECOMMENDED that a final order be entered finding

1592Respondent not guilty of the violation alleged in the subject

1602Administrative Complaint.

1604DONE AND ENTERED this 20 th day of December , 2010 , in

1615Tallahas see, Leon County, Florida.

1620S

1621CLAUDE B. ARRINGTON

1624Administrative Law Judge

1627Division of Administrative Hearings

1631The DeSoto Building

16341230 Apalachee Parkway

1637Tallahassee, Florida 32399 - 3060

1642(850) 488 - 9675

1646Fax Filing (850) 921 - 6847

1652www.doah.state.fl.us

1653Filed with the Clerk of the

1659Division of Administrative Hearings

1663this 20 th day of December, 2010 .

1671ENDNOTES

16721 / All statutory references are to Florida Statutes (2010).

16822 / Ms. Carlson testified, credibly, that she wanted to

1692accompany Mr. Hernandez because t he subject facility was fully

1702booked with guests, breakfast was being served, and she did not

1713want her guests to be disturbed.

1719COPIES FURNISHED :

1722William V. Leach, Director

1726Division of Hotels and Restaurants

1731Department of Business and

1735Professional R egulation

1738Northwood Centre

17401940 North Monroe Street

1744Tallahassee, Florida 32399

1747Reginald Dixon, General Counsel

1751Department of Business and

1755Professional Regulatio n

1758Northwood Centre

17601940 North Monroe Street

1764Tallahassee, Florida 32399 - 0792

1769Jody Carlson

1771Key West Bed and Breakfast

1776415 William Street

1779Key West, Florida 33040

1783Patricia Ann Nelson, Esquire

1787Department of Business and

1791Professional Regulation

17931940 North Monroe Street

1797Tallahassee, Florida 32399

1800NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1806All parti es have the right to submit written exceptions within

181715 days from the date of this Recommended Order. Any exceptions

1828to this Recommended Order should be filed with the agency that

1839will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/20/2011
Proceedings: Agency Final Order
PDF:
Date: 01/20/2011
Proceedings: Agency Final Order filed.
PDF:
Date: 12/20/2010
Proceedings: Recommended Order
PDF:
Date: 12/20/2010
Proceedings: Recommended Order (hearing held October 19, 2010). CASE CLOSED.
PDF:
Date: 12/20/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/16/2010
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 12/13/2010
Proceedings: Letter to Judge Arrington from J. Carlson regarding hospitality industry filed.
PDF:
Date: 11/19/2010
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 11/12/2010
Proceedings: Order Granting Extension of Time.
PDF:
Date: 11/09/2010
Proceedings: (Petitioner's) Motion for Extension of Time filed.
Date: 11/01/2010
Proceedings: Transcript (not available for viewing) filed.
Date: 10/19/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/12/2010
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 10/12/2010
Proceedings: Petitioner's Exhibit List (exhibits not available for viewing) filed.
PDF:
Date: 10/12/2010
Proceedings: Notice of Appearance (filed by P. Nelson).
PDF:
Date: 09/15/2010
Proceedings: Order Directing Filing of Exhibits
PDF:
Date: 09/15/2010
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/15/2010
Proceedings: Notice of Telephonic Final Hearing (hearing set for October 19, 2010; 10:00 a.m.).
PDF:
Date: 09/07/2010
Proceedings: Response to Initial Order filed.
PDF:
Date: 08/31/2010
Proceedings: Initial Order.
PDF:
Date: 08/31/2010
Proceedings: Administrative Complaint filed.
PDF:
Date: 08/31/2010
Proceedings: Election of Rights filed.
PDF:
Date: 08/31/2010
Proceedings: Agency referral filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
08/31/2010
Date Assignment:
08/31/2010
Last Docket Entry:
01/20/2011
Location:
Key West, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (3):