98-000367 Division Of Hotels And Restaurants vs. Pizza Hut Of Titusville, Inc., D/B/A Pizza Hut, No. 710602 Status: Closed Recommended Order on Monday, August 3, 1998.

Summary: Respondent refused entry to Petitioner`s inspector, who had a scheduled inspection at 10:15 am. Even though this was before the facility opened for business, inspection was at a reasonable time. Fine recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 98-0367

)

PIZZA HUT OF TITUSVILLE, INC., )

d/b/a PIZZA HUT #710602, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

on June 15, 1998, before Patricia Hart Malono, a duly designated

Administrative Law Judge of the Division of Administrative

Hearings. The hearing was held via video teleconference, with

the Petitioner and the Respondent appearing at Fort Lauderdale,

Florida.

APPEARANCES

For Petitioner: Daniel R. Biggins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Charles S. Caulkins, Esquire

Law Office of Fisher & Phillips LLP

2300 NationsBank Tower

One Financial Plaza

Fort Lauderdale, Florida 33394

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Notice to Show Cause dated October 2, 1997, and, if so, the

penalty which should be imposed.

PRELIMINARY STATEMENT

In a Notice to Show Cause dated October 2, 1997, the

Department of Business and Professional Regulation, Division of

Hotel and Restaurants ("Division"), charged Pizza Hut of

Titusville, Inc., d/b/a Pizza Hut #710602, with violating Section

509.281(2), Florida Statutes, by obstructing an inspector of the

Division in the discharge of her duties and with violating

Section 509.032(2)(b), Florida Statutes, by refusing the

inspector access to the restaurant's premises to perform an

inspection. Pizza Hut timely requested a formal hearing on the

charges, and the Division transmitted the file to the Division of

Administrative Hearings for assignment of an administrative law

judge. The final hearing was held on June 15, 1998.

At the hearing, the Division presented the testimony of Lisa

Bosworth, a Sanitation and Safety Inspector employed by the

Division, and of Gene Peters, Ms. Bosworth's supervisor.

Petitioner's Exhibits 1 and 2 were offered and received into

evidence. Pizza Hut offered the testimony of Scott Navarro, an

area supervisor with TriCon Global Restaurants; Mike Keeler, a

loss prevention manager for TriCon Global Restaurants; and Justin

Mardenfeld, formerly the manager of Pizza Hut #710602.

Respondent's Exhibits A and B were offered and received into

evidence. At the Division's request, official recognition was

taken of Rule 61C-1.0021(3), Florida Administrative Code.

No transcript of the proceeding was filed with the Division

of Administrative Hearings, but the parties timely filed proposed

findings of fact and conclusions of law, which have been duly

considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation,

Division of Hotels and Restaurants, is the state agency

responsible for regulating public food service establishments in

Florida and is authorized to impose penalties for violations of

Chapter 509, Florida Statutes. Sections 509.032 and .261,

Florida Statutes.

2. Pizza Hut #710602 is a public food service establishment

located at 10394 West Sample Road, Fort Lauderdale, Florida. The

establishment operates under the Division's license control

number 16-0869-R.

3. Pizza Hut #710602 is a delivery and carry-out facility

with no customer seating. There is, however, a small counter

where patrons may eat their pizzas on the premises, if they wish.

The store is located at the end of a strip mall, and it opens for

business at 11:00 a.m.

4. On October 2, 1997, the manager of Pizza Hut #710602

arrived shortly before 10:00 a.m. and began carrying out the

administrative tasks necessary to prepare to open the premises

for business. Pursuant to the established routine for Pizza Hut

delivery and carryout facilities, the manager turned off the

alarm and set the time-release safe, which opens fifteen minutes

after it is set. When the safe opened, the manager began

counting the previous night's cash receipts so he could prepare

the deposit and take the cash to the bank. The manager was the

only employee on the premises.

5. Shortly after 10:00 a.m., while the manager was counting

the money from the safe, a woman knocked on the front door of the

restaurant and requested that she be allowed into the restaurant

to conduct a routine health and safety inspection. She showed

the manager her clipboard, which contained a schedule showing

that Pizza Hut #710602 was scheduled for inspection on October 2.

Although she had identification showing that she was Lisa

Bosworth, an inspector employed by the Division, the manager did

not request to see her identification, and she did not show it to

him. Ms. Bosworth did not see anyone in the facility except the

manager.

6. The manager refused to unlock the door for Ms. Bosworth,

telling her through the door that he could not unlock the door

because it was Pizza Hut's policy not to allow anyone but

scheduled employees access to the premises before the facility

was open for business. The manager told Ms. Bosworth to return

at 11:00 a.m.

7. Ms. Bosworth went directly to a pay telephone in the

adjacent parking lot, a short distance from the Pizza Hut, and

called her supervisor to report the manager's refusal to allow

her into the facility. She also spoke by telephone with the

Division's regional supervisor.

8. Meanwhile, the manager finished preparing the deposit,

which totaled approximately $2,000, and left the facility to go

to the bank. As he was going to his car, he noticed Ms. Bosworth

at the pay telephone in the parking lot. He approached her and

again invited her to return at 11:00 a.m. to conduct her

inspection.

9. After the manager left, Ms. Bosworth completed her Food

Service Inspection Report while sitting in her car in the parking

lot, and then she returned to her office, where she completed

more paperwork and spoke with Division personnel. She returned

to Pizza Hut #710602 at around 2:30 p.m. on October 2 and

obtained the manager's signature on her report, which detailed

the events of the morning.

10. Ms. Bosworth usually performs five or six inspections

each day and plans her daily inspections according to the

location of the facilities on her list for the day. Pizza Hut

#710602 appeared on the list of facilities she was to inspect on

October 2, 1997, but she had no set schedule or specific order in

which she was required to perform her assigned inspections. She

stopped at Pizza Hut #710602 shortly after 10:00 a.m. simply

because she had been working in the vicinity of the Pizza Hut

that morning.

11. It is the Division's policy to inspect food service

establishments during operating hours. The Division's Sanitation

and Safety Supervisor testified that, in the Division's view,

operating hours includes anytime anyone is working on the

premises of a public food service establishment. The supervisor

also testified that the reason for inspecting establishments

before and after the hours they are open for business is to

observe activities involving food preparation, to take the

temperature of refrigerators and freezers to ensure that they are

adequate for food storage, to observe the practices used in

cleaning the facilities and in receiving goods, and to observe

general business practices involving food safety issues. The

Division does relatively few before- and after-hours inspections,

although such inspections are part of the Division's normal

routine.

12. As a result of a growing number of robberies of fast-

food restaurants, Pizza Hut instituted a policy approximately

four years ago limiting access to its establishments at times

when they are not open for business. The policy is contained in

section 2.1 of Pizza Hut's January 1996 Administrative Guide,

which provides that, with respect to premises security: "Do not

open front door(s) during non-business hours to anyone, except

known scheduled employees or known vendors. Establish and verify

picture ID of the person PRIOR to opening doors or allowing that

person to enter the premises." The manager of Pizza Hut #710602

was relying on this policy when he refused to allow Ms. Bosworth

to enter the premises before 11:00 a.m.

13. When the Division inspector requested access to Pizza

Hut #710602 shortly after 10:00 a.m. on October 2, 1997, the only

employee on the premises was the manager, who was performing

administrative duties having no relationship to the public

health, safety, and welfare. Nonetheless, access for the purpose

of inspection was requested at a reasonable time and during what

could reasonably be considered the establishment's operating

hours.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.57(1), Florida

Statutes (1997).

15. In its Notice to Show Cause, the Division identified

the possible penalties for the violations alleged as including

suspension or revocation of the license of Pizza Hut #710602 or

the imposition of an administrative fine. Consequently, the

Division has the burden of proving the allegations in the Notice

to Show Cause by clear and convincing evidence. See Department

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932, 933-34

(Fla. 1996). It should be noted, however, that the material

issues of fact in this case are largely undisputed, so that the

primary issue to be resolved is the scope of the Division's right

of access to inspect food service establishments.

16. The duties of the Division are set forth in Section

509.032, Florida Statutes, as follows:

(1) GENERAL.– The division shall carry out

all of the provisions of this chapter and all

other applicable laws and rules relating to

the inspection or regulation of public

lodging establishments and public food

service establishments for the purpose of

safeguarding the public health, safety, and

welfare. . . .

(2) INSPECTION OF PREMISES.–

(a) The division has responsibility and

jurisdiction for all inspections required by

this chapter. . . .

(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.

17. Rule 61C-1.002(8), Florida Administrative Code,

provides in pertinent part:

(b) Division personnel shall inspect all

public food service establishments and other

places where food is served to or prepared

for service to the public as often as

necessary for enforcement of the provisions

of law and rule and protection of the

public's health, safety and welfare. . . .

Persons operating a public food service

establishment shall permit division personnel

right of entry during operating hours to

observe food preparation and service, and if

necessary examine records of the

establishment to obtain pertinent information

pertaining to food and supplies purchased,

received or used.

18. Although the Division has charged Pizza Hut with

violating both Section 509.032(2)(b) and Section 509.281(2),

Florida Statutes, Section 509.032(2)(b) merely sets forth the

authority of the Division to conduct inspections of public food

service establishments. The statutory violation is stated in

Section 509.281(2)(b), which provides:

Any operator who obstructs or hinders any

agent of the division in the proper discharge

of the agent's duties; who fails, neglects,

or refuses to obtain a license or pay the

license fee required by law; or who fails or

refuses to perform any duty imposed upon it

by law or rule is guilty of a misdemeanor of

the second degree, punishable as provided in

s. 775.082 or s. 775.083. Each day that such

establishment is operated in violation of law

or rule is a separate offense.

19. Based on the findings of fact herein, the Division has

proven by clear and convincing evidence that Pizza Hut violated

Section 509.281(2)(b) in that the Division's inspector was

hindered in the proper discharge of her duty to inspect Pizza Hut

#710602 when she was refused access to the establishment by the

manager at approximately 10:15 a.m. on October 2, 1997.

20. Rather than charging Pizza Hut with the criminal

violation specified in Section 509.281(2)(b), the Division seeks

the imposition of administrative penalties against Pizza Hut

pursuant to Section 509.261, Florida Statutes, which provides in

pertinent part:

(1) Any public . . . food establishment

that has operated or is operating in

violation of this chapter or the rules of the

division, . . . may be subject by the

division to:

(a) Fines not to exceed $1,000 per

offense;

(b) Mandatory attendance, at personal

expense, at an educational program sponsored

by the Hospitality Education Program; and

(c) The suspension, revocation, or refusal

of a license issued pursuant to this chapter.

The Division also cites Rule 61C-1.0021(3), Florida

Administrative Code, as authority to impose administrative

penalties in this case. That rule provides that "[a]n operator

who has been determined by the director to have obstructed or

hindered an inspector in the proper discharge of the inspector's

duties shall have his license revoked." The Division does not,

however, suggest that the license of Pizza Hut #710602 be

revoked; rather, it suggests that, if a violation is found, a

fine be levied.

21. The recommended penalty in this case is based upon a

consideration of the gravity of the violation, the severity of

the harm which could have resulted from the violation, and the

extent to which the applicable statutes and rules were violated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

enter a final order finding that Pizza Hut of Titusville, Inc.,

d/b/a Pizza Hut #710602, violated Section 509.281(2)(b), Florida

Statutes, and imposing an administrative fine in the amount of

$250.00.

DONE AND ENTERED this 3rd day of August, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 3rd day of August, 1998.

COPIES FURNISHED:

Daniel R. Biggins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Charles Caulkins, Esquire

Law Office of Fisher & Phillips

2300 Nationsbank Tower

One Financial Plaza

Fort Lauderdale, Florida 33394-0005

Dorothy W. Joyce, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1011

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 R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.