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.

Summary: Grease filters installed at Respondent's restaurant were not tight fitting and a fine should be imposed. Property used in connection with restaurant contained litter, which also requires a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 97-3021

)

K. C. LEFFLER ENTERPRISES, INC., )

d/b/a GIZMO’S REEF DOCKSIDE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A formal hearing was held in this case before Division of

Administrative Hearings, by Administrative Law Judge, Daniel M.

Kilbride, on October 1, 1997, in Orlando, Florida.

APPEARANCES

For Petitioner: Scott R. Fransen

Chief Assistant General Counsel

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399- 0010

For Respondent: K. C. Leffler, pro se

President, K. C. Leffler Enterprises

d/b/a Gizmo’s Reef Dockside

4263 North Harbor City Boulevard

Melbourne, Florida 32935

STATEMENT OF THE ISSUE

Whether Respondent’s public food service license should be

disciplined for the acts alleged in the Notice to Show Cause.

PRELIMINARY STATEMENT

On April 16, 1997, the Department of Business and

Professional Regulation, Division of Hotel and Restaurants,

hereinafter the Petitioner, issued a Notice to Show Cause to

Respondent. By letter dated May 5, 1997, Respondent requested a

formal hearing. On July 1, 1997, this matter was referred to the

Division of Administrative Hearings and was set for hearing.

Kenneth Leffler, who is not an attorney, but is the

principal of the corporation, was permitted to appear pro se over

the objection of Petitioner. Petitioner presented the testimony

of two (2) witnesses, Thomas J. Smith and Chester Cole.

Petitioner’s Exhibits 1 through 6 were admitted into evidence

without objection.

Mr. Leffler testified on behalf of the Respondent.

Respondent’s Exhibits 1 through 5 were admitted in evidence

without objection.

No transcript of the proceedings was ordered. The

Petitioner filed proposed findings of fact and conclusions of

law, which were timely filed by October 11, 1997. Respondent has

not filed proposed findings of and conclusions of law as of the

date of this Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was engaged in

the preparation and sale to the public of food items. Respondent

is a public food service establishment.

2. On January 7, 1997, a safety and sanitation inspector

went to the Respondent’s public food service establishment to

conduct an inspection, and cited numerous violations which were

noted on an Inspection Report.

3. One of those violations was that Respondent did not have

a proper grease filter system in the exhaust hood because some

filters were missing and others did not fit properly.

4. On January 14, 19 97, the inspector conducted a call-back

inspection. Respondent took corrective action on several

violations and brought some of the violations into compliance

with the law and rules enforced by the Division. Respondent was

notified at that time that a second call-back inspection would be

conducted on those items which were not corrected. Respondent

was given further opportunity to comply with the law and rules

enforced by the Division.

5. The second call-back inspection was conducted on

February 11, 1997, and found that two (2) of the violations cited

in the routine inspection above continued to be present.

6. These same uncorrected violations were found to exist by

the Petitioner on subsequent inspections on April 18, 1997, and

on September 29, 1997.

7. In response to the violations noted, a Notice to Show

Cause was issued on April 16, 1997. The Notice to Show Cause was

served personally on the Respondent’s president, Mr. K. C.

Leffler.

8. One of the violations noted that the filters, in the

exhaust hood over the grill, have spaces between them. A filter

must be tight-fitting, and gaps are not permitted. Gaps are not

permitted because gaps allow grease-laden air to bypass the

filters, and this creates a fire hazard.

9. This violation poses a significant threat to the public

health, safety and welfare. This violation is considered

critical by the Petitioner. The violation was discussed with

Leffler, including the fact that the Division considered this

violation critical.

10. Leffler acknowle dged the existence of a gap in the

exhaust hood filter system, a gap of undetermined length and 3.9

inches wide; the gaps between the filters have been in existence

for an extended period of time prior to the first inspection on

January 7, 1997, and continued until the date of the hearing.

Respondent alleges that standard filters cannot fit in the gaps.

11. The exhaust food filter system contains gaps or spaces;

the filters are not “tight-fitting,” and were improperly

installed, or were missing. Therefore, this violation continued

from January 7, 1997 to October 1, 1997, or 267 days.

12. The side lot, part of the same property where Leffler

resides, is part of the premises and is inspected with the rest

of the establishment. The area has the potential to harbor

vermin. Roaches and rats are vermin that may be harbored

whenever excessive debris is kept on or about the premises.

13. The evidence clearly demonstrates the condition of the

lot. It shows personal property leaning against a fence, piled in

the yard, and forming substantial clutter.

14. The evidence is clear and convincing that the condition

of the yard is a violation of the rules of the Petitioner.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of these

proceedings. Section 120.569 and 120.57(1), Florida Statutes.

16. Petitioner is the agency charged with regulating the

operation of public food service establishments by licensing and

inspecting such establishments in the state of Florida, pursuant

to Chapter 509, Florida Statutes, for the purpose of safeguarding

the public health, safety and welfare. Section 509.032(1),

Florida Statutes. Licensure is not a prerequisite to regulation

or enforcement action by the Petitioner. Section 509.261(1),

Florida Statutes.

17. Respondent holds a license, numbered 15-01855R, from

the Division, to operate a public food service establishment.

18. License revocation proceedings are penal in nature.

The burden of proof in this case is on the Petitioner to

establish proof of the allegations in the Notice to Show Cause by

clear and convincing evidence. Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987).

19. The Division has enforcement authority of rules adopted

by the State Fire Marshall pursuant to Chapter 633, Florida

Statutes. Section 509.211(2), Florida Statutes.

20. The State Fire Marshall has adopted National Fire

Protection Association 96 (1994) as the Standards for the

Installation of Equipment for Removal of Smoke and Grease-laden

Vapors from Commercial Cooking Equipment. Rule 4A-21.302(6),

Florida Administrative Code.

21. NFPA 96 (1994), Section 3-2.3, provides that:

Grease filters shall be listed and

constructed of steel or listed equivalent

material and shall be of rigid construction

that will not distort or crush under normal

operation, handling, and cleaning conditions.

Filters shall be tight fitting and firmly

held in place.

22. A condition, shown to have existed on the date of the

initial inspection and on the last inspection date, January 7,

1997, and October 1, 1997, raises a presumption that the

condition continued from day-to-day, at least on each day shown,

and all intermediate dates. S. Gard, Florida Evidence , Section

3:36 (1980 ed.)

23. Section 509.261, Florida Statutes, and Rule

61C-1.0021(2), Florida Administrative Code, provide that each day

a critical violation occurs may be considered a separate offense.

The violation of this fire safety rule is a critical violation.

24. Petitioner has ad opted rules prescribing the sanitary

standards which are enforced in pubic food service establishments

pursuant to its authority under Section 509.221, Florida

Statutes. The rules adopted include the section noted below, as

found in Chapter 61C, Florida Administrative Code, at the time

Respondent was cited for violation of the Rules of the Division.

25. Rule 61C-4.010(5)(b), Florida Administrative Code,

provides in pertinent part that:

Public food service establishments and all

parts of property used in connection with

their operations shall be kept free of

litter.

26. The definition for “litter” includes “a disorderly

accumulation of objects, esp. carelessly discarded waste

materials or scraps.” The American Heritage Dictionary, Second

College Edition.

27. The material leaning against the fence and in the yard

is litter. There is no exemption from the provision merely

because the Respondent resides on the premises and states that

the litter is in his “yard” and is not used in connection with

the restaurant.

28. The violation of this rule is a non-critical violation.

29. Any public food service establishment that is operating

in violation of Chapter 509 or the rules of the Division is

subject to the imposition of administrative fines not to exceed

$1,000 per violation, and the suspension or revocation of its

license. Section 509.261(1), Florida Statutes.

30. Petitioner has carried its burden of proving by clear

and convincing evidence, each of the violations cited in the

Notice to Show Cause on April 22, 1997.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions

of Law, it is

RECOMMENDED that the Secretary enter a Final Order finding

the Respondent guilty of violating Rules 4A-21.302(6), Florida

Administrative Code, and 6C-4.010(5)(b), Florida Administrative

Code.

It is further RECOMMENDED that Respondent shall be assessed

an administrative fine in the amount of $1,000 for the fire code

violations, and $250 for each of the litter violations, for a

total of $1,250; and that a Cease and Desist Order be issued

requiring Respondent to bring the violations into compliance

within 60 days of the date of the Final Order or its license will

be suspended.

DONE AND ORDERED this 5th day of November, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of November, 1997.

COPIES FURNISHED:

Scott R. Fransen, Esquire

Department of Business and

Professional Regulation

Division of Hotels and Restaurants

1940 North Monroe Street

Tallahassee, Florida 32399

K. C. Leffler, pro se

Gizmo’s Reef Dockside

4263 North Harbor City Boulevard

Melbourne, Florida 32935

Dorothy W. Joyce, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 agency that will

issue the final order in this case.