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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8548

)

KEY WEST BED AND BREAKFAST , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on October 19, 2010, by telephone conference call before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Patricia Ann Nelson, Esquire

Department of Business and

Professional Regulation

1940 N. Monroe Street, Suite 42

Tallahassee, Florida

F or Respondent: Jody Carlson, pro se

415 William Street

Key West, Florida 33040

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

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

should be imposed.

PRELIMINARY STATEMENT

Petitioner is a duly licensed bed and breakfast operating

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

Administrative Complaint against Respondent which alleged

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

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

the licensed premises for the purpose of conducting an

unannounced inspection . Respondent timely disputed the

allegations contained in the Administ rative Complaint, the

matter was referred to DOAH, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony

of Leonardo Hernandez, a Sanitation and Safety Specialist

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

Mr. Her nandez conducts inspections of licensed premises.

Petitioner offered two exhibits, both of which were accepted

into evidence. At the request of Petitioner, the undersigned

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

509.032(6), Florida Statut es , and Florida Administrative Code

Rules 61C - 1.004 and 61C - 1.005.

Respondent presented the testimony of Jody Carlson, the

owner of Key West Bed and Breakfast. Respondent offered no

exhibits.

The Transcript, consisting of one volume, was filed

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

had no objection, the deadline for submitting proposed

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

Petitioner timely filed its Proposed Recommended Order , which

has been duly considered by the undersigned in the preparation

of this Recommended Order. Respondent did not file a proposed

recommended order. Respondent filed a letter addressed to the

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

filed and was not considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

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

PetitionerÓs regulation. That regulation required Petitioner to

comply wit h all relevant provisions set forth in Florida

Statutes, Florida Administrative Code, and the Food Code.

2. At all times relevant to this proceeding Respondent

held license number 5402366. That license authorizes Respondent

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

Florida (the subject facility).

3. Section 509.032, Florida Statutes, requires Petitioner

to inspect licensed premises to safeguard the public health,

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

authori zes the Petitioner to inspect the subject facility at any

reasonable time as follows:

(b) For purposes of performing required

inspections and the enforcement of this

chapter, the division has the right of entry

and access to public lodging establishments

and public food service establishments at

any reasonable time.

4. Leonardo Hernandez is employed by Petitioner as a

Sanitation and Safety Specialist. Mr. Hernandez is experienced

and properly trained to conduct inspections of food service and

public lod ging establishments to ensure compliance with

applicable regulations. Mr. Hernandez performs between 1,200

and 1,400 inspections per year.

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

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

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

subject premises for the inspection was a reasonable time.

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

licensee was required to grant him entry for the purpose of

conducting the inspection.

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

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

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

identified by name, was supervising the preparation of brea kfast

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

arrived. Mr. Hernandez showed the operator his credentials and

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

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

the premises. Mr. Hernandez suggested that the operator call

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

informed her of Mr. Hernandez's presence.

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

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

remained outside of the premises.

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

the reason of his visit and showed her his credentials.

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

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

and public lodging inspections allow the right of entry to

licensed premises for the purpose of unannounced inspection s .

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

into the esta blishment.

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

May 21, 2010.

10. Mr. Hernandez generated the inspection by computer,

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

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

the inspection report with the recommendation that an

administrative complaint be filed against Respondent because he

was refused entry to the premises . The inspection report

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

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

inspection report.

11. Mr. Hernandez asserted that he closed his inspection

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

he would not force his way into the subject facility.

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

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

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

through the premises while he conducted his inspection after

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

closed his inspection report that contained the violation at

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

premises.

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

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

That statement was made after he closed his inspection report.

CONCLUSIONS OF LAW

14. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

15. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

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

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

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

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

repeatedly cited in discussions of the clear and convincing

evidence standard:

Clear and convincing evidence requires that

the evi dence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such wei ght that it produces in the mind of

the trier of fact the firm belief of (sic)

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

16. Petitioner prove d by clear and convincing evidence

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

subject facility for the purpose of conducting an inspection.

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

operator that he contact the owner of the premises, thereby

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

subject facility.

17. After the owner appeared at the premises,

Mr. Hernandez showed his credential s and asserted his authority

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

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

owner gave Mr. Hernandez permission to inspect the premises by

offering to walk him through the facilities while he conducted

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

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

closed his inspection report before Ms. Carlson made her offer

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

amended his inspection report and he could have completed the

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

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

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

thereafter left the premises.

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

the premises and because the owner clearly offered Mr. Hernandez

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

concluded that Petitioner has failed to meet its burden in this

proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Respondent not guilty of the violation alleged in the subject

Administrative Complaint.

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

Tallahas see, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 20 th day of December, 2010 .

ENDNOTES

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

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

accompany Mr. Hernandez because t he subject facility was fully

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

want her guests to be disturbed.

COPIES FURNISHED :

William V. Leach, Director

Division of Hotels and Restaurants

Department of Business and

Professional R egulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Reginald Dixon, General Counsel

Department of Business and

Professional Regulatio n

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Jody Carlson

Key West Bed and Breakfast

415 William Street

Key West, Florida 33040

Patricia Ann Nelson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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 agency that

will issue the Final Order in this case.