97-003021
Division Of Hotels And Restaurants vs.
K. C. Leffler Enterprises, Inc., D/B/A Gizmo`s Reef Dockside
Status: Closed
Recommended Order on Wednesday, November 5, 1997.
Recommended Order on Wednesday, November 5, 1997.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, DIVISION )
17OF HOTELS AND RESTAURANTS, )
22)
23Petitioner, )
25)
26vs. ) Case No. 97-3021
31)
32K. C. LEFFLER ENTERPRISES, INC., )
38d/b/a GIZMOS REEF DOCKSIDE, )
43)
44Respondent. )
46___________________________________)
47RECOMMENDED ORDER
49A formal hearing was held in this case before Division of
60Administrative Hearings, by Administrative Law Judge, Daniel M.
68Kilbride, on October 1, 1997, in Orlando, Florida.
76APPEARANCES
77For Petitioner: Scott R. Fransen
82Chief Assistant General Counsel
86Department of Business
89and Professional Regulation
921940 North Monroe Street
96Tallahassee, Florida 32399- 0010
100For Respondent: K. C. Leffler, pro se
107President, K. C. Leffler Enterprises
112d/b/a Gizmos Reef Dockside
1164263 North Harbor City Boulevard
121Melbourne, Florida 32935
124STATEMENT OF THE ISSUE
128Whether Respondents public food service license should be
136disciplined for the acts alleged in the Notice to Show Cause.
147PRELIMINARY STATEMENT
149On April 16, 1997, the Department of Business and
158Professional Regulation, Division of Hotel and Restaurants,
165hereinafter the Petitioner, issued a Notice to Show Cause to
175Respondent. By letter dated May 5, 1997, Respondent requested a
185formal hearing. On July 1, 1997, this matter was referred to the
197Division of Administrative Hearings and was set for hearing.
206Kenneth Leffler, who is not an attorney, but is the
216principal of the corporation, was permitted to appear pro se over
227the objection of Petitioner. Petitioner presented the testimony
235of two (2) witnesses, Thomas J. Smith and Chester Cole.
245Petitioners Exhibits 1 through 6 were admitted into evidence
254without objection.
256Mr. Leffler testified on behalf of the Respondent.
264Respondents Exhibits 1 through 5 were admitted in evidence
273without objection.
275No transcript of the proceedings was ordered. The
283Petitioner filed proposed findings of fact and conclusions of
292law, which were timely filed by October 11, 1997. Respondent has
303not filed proposed findings of and conclusions of law as of the
315date of this Order.
319FINDINGS OF FACT
3221. At all times material hereto, Respondent was engaged in
332the preparation and sale to the public of food items. Respondent
343is a public food service establishment.
3492. On January 7, 1997, a safety and sanitation inspector
359went to the Respondents public food service establishment to
368conduct an inspection, and cited numerous violations which were
377noted on an Inspection Report.
3823. One of those violations was that Respondent did not have
393a proper grease filter system in the exhaust hood because some
404filters were missing and others did not fit properly.
4134. On January 14, 19 97, the inspector conducted a call-back
424inspection. Respondent took corrective action on several
431violations and brought some of the violations into compliance
440with the law and rules enforced by the Division. Respondent was
451notified at that time that a second call-back inspection would be
462conducted on those items which were not corrected. Respondent
471was given further opportunity to comply with the law and rules
482enforced by the Division.
4865. The second call-back inspection was conducted on
494February 11, 1997, and found that two (2) of the violations cited
506in the routine inspection above continued to be present.
5156. These same uncorrected violations were found to exist by
525the Petitioner on subsequent inspections on April 18, 1997, and
535on September 29, 1997.
5397. In response to the violations noted, a Notice to Show
550Cause was issued on April 16, 1997. The Notice to Show Cause was
563served personally on the Respondents president, Mr. K. C.
572Leffler.
5738. One of the violations noted that the filters, in the
584exhaust hood over the grill, have spaces between them. A filter
595must be tight-fitting, and gaps are not permitted. Gaps are not
606permitted because gaps allow grease-laden air to bypass the
615filters, and this creates a fire hazard.
6229. This violation poses a significant threat to the public
632health, safety and welfare. This violation is considered
640critical by the Petitioner. The violation was discussed with
649Leffler, including the fact that the Division considered this
658violation critical.
66010. Leffler acknowle dged the existence of a gap in the
671exhaust hood filter system, a gap of undetermined length and 3.9
682inches wide; the gaps between the filters have been in existence
693for an extended period of time prior to the first inspection on
705January 7, 1997, and continued until the date of the hearing.
716Respondent alleges that standard filters cannot fit in the gaps.
72611. The exhaust food filter system contains gaps or spaces;
736the filters are not tight-fitting, and were improperly
745installed, or were missing. Therefore, this violation continued
753from January 7, 1997 to October 1, 1997, or 267 days.
76412. The side lot, part of the same property where Leffler
775resides, is part of the premises and is inspected with the rest
787of the establishment. The area has the potential to harbor
797vermin. Roaches and rats are vermin that may be harbored
807whenever excessive debris is kept on or about the premises.
81713. The evidence clearly demonstrates the condition of the
826lot. It shows personal property leaning against a fence, piled in
837the yard, and forming substantial clutter.
84314. The evidence is clear and convincing that the condition
853of the yard is a violation of the rules of the Petitioner.
865CONCLUSIONS OF LAW
86815. The Division of Administrative Hearings has
875jurisdiction of the parties and subject matter of these
884proceedings. Section 120.569 and 120.57(1), Florida Statutes.
89116. Petitioner is the agency charged with regulating the
900operation of public food service establishments by licensing and
909inspecting such establishments in the state of Florida, pursuant
918to Chapter 509, Florida Statutes, for the purpose of safeguarding
928the public health, safety and welfare. Section 509.032(1),
936Florida Statutes. Licensure is not a prerequisite to regulation
945or enforcement action by the Petitioner. Section 509.261(1),
953Florida Statutes.
95517. Respondent holds a license, numbered 15-01855R, from
963the Division, to operate a public food service establishment.
97218. License revocation proceedings are penal in nature.
980The burden of proof in this case is on the Petitioner to
992establish proof of the allegations in the Notice to Show Cause by
1004clear and convincing evidence. Ferris v. Turlington , 510 So. 2d
1014292 (Fla. 1987).
101719. The Division has enforcement authority of rules adopted
1026by the State Fire Marshall pursuant to Chapter 633, Florida
1036Statutes. Section 509.211(2), Florida Statutes.
104120. The State Fire Marshall has adopted National Fire
1050Protection Association 96 (1994) as the Standards for the
1059Installation of Equipment for Removal of Smoke and Grease-laden
1068Vapors from Commercial Cooking Equipment. Rule 4A-21.302(6),
1075Florida Administrative Code.
107821. NFPA 96 (1994), Section 3-2.3, provides that:
1086Grease filters shall be listed and
1092constructed of steel or listed equivalent
1098material and shall be of rigid construction
1105that will not distort or crush under normal
1113operation, handling, and cleaning conditions.
1118Filters shall be tight fitting and firmly
1125held in place.
112822. A condition, shown to have existed on the date of the
1140initial inspection and on the last inspection date, January 7,
11501997, and October 1, 1997, raises a presumption that the
1160condition continued from day-to-day, at least on each day shown,
1170and all intermediate dates. S. Gard, Florida Evidence , Section
11793:36 (1980 ed.)
118223. Section 509.261, Florida Statutes, and Rule
118961C-1.0021(2), Florida Administrative Code, provide that each day
1197a critical violation occurs may be considered a separate offense.
1207The violation of this fire safety rule is a critical violation.
121824. Petitioner has ad opted rules prescribing the sanitary
1227standards which are enforced in pubic food service establishments
1236pursuant to its authority under Section 509.221, Florida
1244Statutes. The rules adopted include the section noted below, as
1254found in Chapter 61C, Florida Administrative Code, at the time
1264Respondent was cited for violation of the Rules of the Division.
127525. Rule 61C-4.010(5)(b), Florida Administrative Code,
1281provides in pertinent part that:
1286Public food service establishments and all
1292parts of property used in connection with
1299their operations shall be kept free of
1306litter.
130726. The definition for litter includes a disorderly
1315accumulation of objects, esp. carelessly discarded waste
1322materials or scraps. The American Heritage Dictionary, Second
1330College Edition.
133227. The material leaning against the fence and in the yard
1343is litter. There is no exemption from the provision merely
1353because the Respondent resides on the premises and states that
1363the litter is in his yard and is not used in connection with
1376the restaurant.
137828. The violation of this rule is a non-critical violation.
138829. Any public food service establishment that is operating
1397in violation of Chapter 509 or the rules of the Division is
1409subject to the imposition of administrative fines not to exceed
1419$1,000 per violation, and the suspension or revocation of its
1430license. Section 509.261(1), Florida Statutes.
143530. Petitioner has carried its burden of proving by clear
1445and convincing evidence, each of the violations cited in the
1455Notice to Show Cause on April 22, 1997.
1463RECOMMENDATION
1464Based upon the foregoing Findings of Facts and Conclusions
1473of Law, it is
1477RECOMMENDED that the Secretary enter a Final Order finding
1486the Respondent guilty of violating Rules 4A-21.302(6), Florida
1494Administrative Code, and 6C-4.010(5)(b), Florida Administrative
1500Code.
1501It is further RECOMMENDED that Respondent shall be assessed
1510an administrative fine in the amount of $1,000 for the fire code
1523violations, and $250 for each of the litter violations, for a
1534total of $1,250; and that a Cease and Desist Order be issued
1547requiring Respondent to bring the violations into compliance
1555within 60 days of the date of the Final Order or its license will
1569be suspended.
1571DONE AND ORDERED this 5th day of November, 1997, in
1581Tallahassee, Leon County, Florida.
1585___________________________________
1586DANIEL M. KILBRIDE
1589Administrative Law Judge
1592Division of Administrative Hearings
1596The DeSoto Building
15991230 Apalachee Parkway
1602Tallahassee, Florida 32399-3060
1605(904) 488-9675 SUNCOM 278-9675
1609Fax Filing (904) 921-6847
1613Filed with the Clerk of the
1619Division of Administrative Hearings
1623this 5th day of November, 1997.
1629COPIES FURNISHED:
1631Scott R. Fransen, Esquire
1635Department of Business and
1639Professional Regulation
1641Division of Hotels and Restaurants
16461940 North Monroe Street
1650Tallahassee, Florida 32399
1653K. C. Leffler, pro se
1658Gizmos Reef Dockside
16614263 North Harbor City Boulevard
1666Melbourne, Florida 32935
1669Dorothy W. Joyce, Director
1673Division of Hotels and Restaurants
1678Department of Business and
1682Professional Regulation
16841940 North Monroe Street
1688Tallahassee, Florida 32399-0792
1691Lynda L. Goodgame, General Counsel
1696Department of Business and
1700Professional Regulation
17021940 North Monroe Street
1706Tallahassee, Florida 32399-0792
1709NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1715All parties have the right to submit written exceptions within 15
1726days from the date of this Recommended Order. Any exceptions to
1737this Recommended Order should be filed with the agency that will
1748issue the final order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 03/03/1998
- Proceedings: Final Order filed.
- Date: 10/13/1997
- Proceedings: (Petitioner) Proposed Recommended Order (for judge signature); (Petitioner) Motion to Amend filed.
- Date: 10/01/1997
- Proceedings: CASE STATUS: Hearing Held.
- Date: 08/19/1997
- Proceedings: Notice of Hearing sent out. (hearing set for 10/1/97; 1:30pm; Orlando)
- Date: 07/23/1997
- Proceedings: Joint Response to Initial Order (filed via facsimile).
- Date: 07/09/1997
- Proceedings: Initial Order issued.
- Date: 07/03/1997
- Proceedings: Agency Referral Letter; Request for Hearing Form; Agency Notice to Show Cause; Request for A Hearing, letter form filed.