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.
Recommended Order on Monday, August 3, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS )
12AND PROFESSIONAL REGULATION, )
16DIVISION OF HOTELS AND )
21RESTAURANTS, )
23)
24Petitioner, )
26)
27vs. ) Case No. 98-0367
32)
33PIZZA HUT OF TITUSVILLE, INC., )
39d/b/a PIZZA HUT #710602, )
44)
45Respondent. )
47__________________________________)
48RECOMMENDED ORDER
50Pursuant to notice, a formal hearing was held in this case
61on June 15, 1998, before Patricia Hart Malono, a duly designated
72Administrative Law Judge of the Division of Administrative
80Hearings. The hearing was held via video teleconference, with
89the Petitioner and the Respondent appearing at Fort Lauderdale,
98Florida.
99APPEARANCES
100For Petitioner: Daniel R. Biggins, Esquire
106Department of Business and
110Professional Regulation
1121940 North Monroe Street
116Tallahassee, Florida 32399-1007
119For Respondent: Charles S. Caulkins, Esquire
125Law Office of Fisher & Phillips LLP
1322300 NationsBank Tower
135One Financial Plaza
138Fort Lauderdale, Florida 33394
142STATEMENT OF THE ISSUE
146Whether the Respondent committed the violations alleged in
154the Notice to Show Cause dated October 2, 1997, and, if so, the
167penalty which should be imposed.
172PRELIMINARY STATEMENT
174In a Notice to Show Cause dated October 2, 1997, the
185Department of Business and Professional Regulation, Division of
193Hotel and Restaurants ("Division"), charged Pizza Hut of
203Titusville, Inc., d/b/a Pizza Hut #710602, with violating Section
212509.281(2), Florida Statutes, by obstructing an inspector of the
221Division in the discharge of her duties and with violating
231Section 509.032(2)(b), Florida Statutes, by refusing the
238inspector access to the restaurant's premises to perform an
247inspection. Pizza Hut timely requested a formal hearing on the
257charges, and the Division transmitted the file to the Division of
268Administrative Hearings for assignment of an administrative law
276judge. The final hearing was held on June 15, 1998.
286At the hearing, the Division presented the testimony of Lisa
296Bosworth, a Sanitation and Safety Inspector employed by the
305Division, and of Gene Peters, Ms. Bosworth's supervisor.
313Petitioner's Exhibits 1 and 2 were offered and received into
323evidence. Pizza Hut offered the testimony of Scott Navarro, an
333area supervisor with TriCon Global Restaurants; Mike Keeler, a
342loss prevention manager for TriCon Global Restaurants; and Justin
351Mardenfeld, formerly the manager of Pizza Hut #710602.
359Respondent's Exhibits A and B were offered and received into
369evidence. At the Division's request, official recognition was
377taken of Rule 61C-1.0021(3), Florida Administrative Code.
384No transcript of the proceeding was filed with the Division
394of Administrative Hearings, but the parties timely filed proposed
403findings of fact and conclusions of law, which have been duly
414considered.
415FINDINGS OF FACT
418Based on the oral and documentary evidence presented at the
428final hearing and on the entire record of this proceeding, the
439following findings of fact are made:
4451. The Department of Business and Professional Regulation,
453Division of Hotels and Restaurants, is the state agency
462responsible for regulating public food service establishments in
470Florida and is authorized to impose penalties for violations of
480Chapter 509, Florida Statutes. Sections 509.032 and .261,
488Florida Statutes.
4902. Pizza Hut #710602 is a public food service establishment
500located at 10394 West Sample Road, Fort Lauderdale, Florida. The
510establishment operates under the Division's license control
517number 16-0869-R.
5193. Pizza Hut #710602 is a delivery and carry-out facility
529with no customer seating. There is, however, a small counter
539where patrons may eat their pizzas on the premises, if they wish.
551The store is located at the end of a strip mall, and it opens for
566business at 11:00 a.m.
5704. On October 2, 1997, the manager of Pizza Hut #710602
581arrived shortly before 10:00 a.m. and began carrying out the
591administrative tasks necessary to prepare to open the premises
600for business. Pursuant to the established routine for Pizza Hut
610delivery and carryout facilities, the manager turned off the
619alarm and set the time-release safe, which opens fifteen minutes
629after it is set. When the safe opened, the manager began
640counting the previous night's cash receipts so he could prepare
650the deposit and take the cash to the bank. The manager was the
663only employee on the premises.
6685. Shortly after 10:00 a.m., while the manager was counting
678the money from the safe, a woman knocked on the front door of the
692restaurant and requested that she be allowed into the restaurant
702to conduct a routine health and safety inspection. She showed
712the manager her clipboard, which contained a schedule showing
721that Pizza Hut #710602 was scheduled for inspection on October 2.
732Although she had identification showing that she was Lisa
741Bosworth, an inspector employed by the Division, the manager did
751not request to see her identification, and she did not show it to
764him. Ms. Bosworth did not see anyone in the facility except the
776manager.
7776. The manager refused to unlock the door for Ms. Bosworth,
788telling her through the door that he could not unlock the door
800because it was Pizza Hut's policy not to allow anyone but
811scheduled employees access to the premises before the facility
820was open for business. The manager told Ms. Bosworth to return
831at 11:00 a.m.
8347. Ms. Bosworth went directly to a pay telephone in the
845adjacent parking lot, a short distance from the Pizza Hut, and
856called her supervisor to report the manager's refusal to allow
866her into the facility. She also spoke by telephone with the
877Division's regional supervisor.
8808. Meanwhile, the manager finished preparing the deposit,
888which totaled approximately $2,000, and left the facility to go
899to the bank. As he was going to his car, he noticed Ms. Bosworth
913at the pay telephone in the parking lot. He approached her and
925again invited her to return at 11:00 a.m. to conduct her
936inspection.
9379. After the manager left, Ms. Bosworth completed her Food
947Service Inspection Report while sitting in her car in the parking
958lot, and then she returned to her office, where she completed
969more paperwork and spoke with Division personnel. She returned
978to Pizza Hut #710602 at around 2:30 p.m. on October 2 and
990obtained the manager's signature on her report, which detailed
999the events of the morning.
100410. Ms. Bosworth usually performs five or six inspections
1013each day and plans her daily inspections according to the
1023location of the facilities on her list for the day. Pizza Hut
1035#710602 appeared on the list of facilities she was to inspect on
1047October 2, 1997, but she had no set schedule or specific order in
1060which she was required to perform her assigned inspections. She
1070stopped at Pizza Hut #710602 shortly after 10:00 a.m. simply
1080because she had been working in the vicinity of the Pizza Hut
1092that morning.
109411. It is the Division's policy to inspect food service
1104establishments during operating hours. The Division's Sanitation
1111and Safety Supervisor testified that, in the Division's view,
1120operating hours includes anytime anyone is working on the
1129premises of a public food service establishment. The supervisor
1138also testified that the reason for inspecting establishments
1146before and after the hours they are open for business is to
1158observe activities involving food preparation, to take the
1166temperature of refrigerators and freezers to ensure that they are
1176adequate for food storage, to observe the practices used in
1186cleaning the facilities and in receiving goods, and to observe
1196general business practices involving food safety issues. The
1204Division does relatively few before- and after-hours inspections,
1212although such inspections are part of the Division's normal
1221routine.
122212. As a result of a growing number of robberies of fast-
1234food restaurants, Pizza Hut instituted a policy approximately
1242four years ago limiting access to its establishments at times
1252when they are not open for business. The policy is contained in
1264section 2.1 of Pizza Hut's January 1996 Administrative Guide,
1273which provides that, with respect to premises security: "Do not
1283open front door(s) during non-business hours to anyone, except
1292known scheduled employees or known vendors. Establish and verify
1301picture ID of the person PRIOR to opening doors or allowing that
1313person to enter the premises." The manager of Pizza Hut #710602
1324was relying on this policy when he refused to allow Ms. Bosworth
1336to enter the premises before 11:00 a.m.
134313. When the Division inspector requested access to Pizza
1352Hut #710602 shortly after 10:00 a.m. on October 2, 1997, the only
1364employee on the premises was the manager, who was performing
1374administrative duties having no relationship to the public
1382health, safety, and welfare. Nonetheless, access for the purpose
1391of inspection was requested at a reasonable time and during what
1402could reasonably be considered the establishment's operating
1409hours.
1410CONCLUSIONS OF LAW
141314. The Division of Administrative Hearings has
1420jurisdiction over the subject matter of this proceeding and of
1430the parties thereto pursuant to Section 120.57(1), Florida
1438Statutes (1997).
144015. In its Notice to Show Cause, the Division identified
1450the possible penalties for the violations alleged as including
1459suspension or revocation of the license of Pizza Hut #710602 or
1470the imposition of an administrative fine. Consequently, the
1478Division has the burden of proving the allegations in the Notice
1489to Show Cause by clear and convincing evidence. See Department
1499of Banking and Finance, Division of Securities and Investor
1508Protection v. Osborne Stern and Co. , 670 So. 2d 932, 933-34
1519(Fla. 1996). It should be noted, however, that the material
1529issues of fact in this case are largely undisputed, so that the
1541primary issue to be resolved is the scope of the Division's right
1553of access to inspect food service establishments.
156016. The duties of the Division are set forth in Section
1571509.032, Florida Statutes, as follows:
1576(1) GENERAL. The division shall carry out
1583all of the provisions of this chapter and all
1592other applicable laws and rules relating to
1599the inspection or regulation of public
1605lodging establishments and public food
1610service establishments for the purpose of
1616safeguarding the public health, safety, and
1622welfare. . . .
1626(2) INSPECTION OF PREMISES.
1630(a) The division has responsibility and
1636jurisdiction for all inspections required by
1642this chapter. . . .
1647(b) For purposes of performing required
1653inspections and the enforcement of this
1659chapter, the division has the right of entry
1667and access to public lodging establishments
1673and public food service establishments at any
1680reasonable time.
168217. Rule 61C-1.002(8), Florida Administrative Code,
1688provides in pertinent part:
1692(b) Division personnel shall inspect all
1698public food service establishments and other
1704places where food is served to or prepared
1712for service to the public as often as
1720necessary for enforcement of the provisions
1726of law and rule and protection of the
1734public's health, safety and welfare. . . .
1742Persons operating a public food service
1748establishment shall permit division personnel
1753right of entry during operating hours to
1760observe food preparation and service, and if
1767necessary examine records of the
1772establishment to obtain pertinent information
1777pertaining to food and supplies purchased,
1783received or used.
178618. Although the Division has charged Pizza Hut with
1795violating both Section 509.032(2)(b) and Section 509.281(2),
1802Florida Statutes, Section 509.032(2)(b) merely sets forth the
1810authority of the Division to conduct inspections of public food
1820service establishments. The statutory violation is stated in
1828Section 509.281(2)(b), which provides:
1832Any operator who obstructs or hinders any
1839agent of the division in the proper discharge
1847of the agent's duties; who fails, neglects,
1854or refuses to obtain a license or pay the
1863license fee required by law; or who fails or
1872refuses to perform any duty imposed upon it
1880by law or rule is guilty of a misdemeanor of
1890the second degree, punishable as provided in
1897s. 775.082 or s. 775.083. Each day that such
1906establishment is operated in violation of law
1913or rule is a separate offense.
191919. Based on the findings of fact herein, the Division has
1930proven by clear and convincing evidence that Pizza Hut violated
1940Section 509.281(2)(b) in that the Division's inspector was
1948hindered in the proper discharge of her duty to inspect Pizza Hut
1960#710602 when she was refused access to the establishment by the
1971manager at approximately 10:15 a.m. on October 2, 1997.
198020. Rather than charging Pizza Hut with the criminal
1989violation specified in Section 509.281(2)(b), the Division seeks
1997the imposition of administrative penalties against Pizza Hut
2005pursuant to Section 509.261, Florida Statutes, which provides in
2014pertinent part:
2016(1) Any public . . . food establishment
2024that has operated or is operating in
2031violation of this chapter or the rules of the
2040division, . . . may be subject by the
2049division to:
2051(a) Fines not to exceed $1,000 per
2059offense;
2060(b) Mandatory attendance, at personal
2065expense, at an educational program sponsored
2071by the Hospitality Education Program; and
2077(c) The suspension, revocation, or refusal
2083of a license issued pursuant to this chapter.
2091The Division also cites Rule 61C-1.0021(3), Florida
2098Administrative Code, as authority to impose administrative
2105penalties in this case. That rule provides that "[a]n operator
2115who has been determined by the director to have obstructed or
2126hindered an inspector in the proper discharge of the inspector's
2136duties shall have his license revoked." The Division does not,
2146however, suggest that the license of Pizza Hut #710602 be
2156revoked; rather, it suggests that, if a violation is found, a
2167fine be levied.
217021. The recommended penalty in this case is based upon a
2181consideration of the gravity of the violation, the severity of
2191the harm which could have resulted from the violation, and the
2202extent to which the applicable statutes and rules were violated.
2212RECOMMENDATION
2213Based on the foregoing Findings of Fact and Conclusions of
2223Law, it is RECOMMENDED that the Department of Business and
2233Professional Regulation, Division of Hotels and Restaurants,
2240enter a final order finding that Pizza Hut of Titusville, Inc.,
2251d/b/a Pizza Hut #710602, violated Section 509.281(2)(b), Florida
2259Statutes, and imposing an administrative fine in the amount of
2269$250.00.
2270DONE AND ENTERED this 3rd day of August, 1998, in
2280Tallahassee, Leon County, Florida.
2284___________________________________
2285PATRICIA HART MALONO
2288Administrative Law Judge
2291Division of Administrative Hearings
2295The DeSoto Building
22981230 Apalachee Parkway
2301Tallahassee, Florida 32399-3060
2304(850) 488-9675 SUNCOM 278-9675
2308Fax Filing (850) 921-6847
2312Filed with the Clerk of the
2318Division of Administrative Hearings
2322this 3rd day of August, 1998.
2328COPIES FURNISHED:
2330Daniel R. Biggins, Esquire
2334Department of Business and
2338Professional Regulation
23401940 North Monroe Street
2344Tallahassee, Florida 32399-1007
2347Charles Caulkins, Esquire
2350Law Office of Fisher & Phillips
23562300 Nationsbank Tower
2359One Financial Plaza
2362Fort Lauderdale, Florida 33394-0005
2366Dorothy W. Joyce, Director
2370Division of Hotels and Restaurants
2375Department of Business and
2379Professional Regulation
23811940 North Monroe Street
2385Tallahassee, Florida 32399-1011
2388Lynda L. Goodgame
2391General Counsel
2393Department of Business and
2397Professional Regulation
23991940 North Monroe Street
2403Tallahassee, Florida 32399-0792
2406NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2412All parties have the right to submit written exceptions within 15
2423days from the date of this R ecommended O rder. Any exceptions to
2436this R ecommended O rder should be filed with the agency that will
2449issue the F inal O rder in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 10/21/1998
- Proceedings: Final Order filed.
- Date: 06/29/1998
- Proceedings: Recommended Order on Findings of Fact and Conclusions of Law (For Judge Signature) filed.
- Date: 06/29/1998
- Proceedings: Respondent Pizza Hut of Titusville, Inc.`s Notice of Filing of Proposed Recommended Order on Findings of Fact and Conclusions of Law filed.
- Date: 06/25/1998
- Proceedings: (Petitioner) Proposed Recommended Order filed.
- Date: 06/16/1998
- Proceedings: Petitioner`s Notice of Filing; Notice to Show Cause; Rule 61C-1/0021, FAC; (3) DOAH Recommended Orders in reference to applicable fine amounts filed.
- Date: 06/15/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 06/12/1998
- Proceedings: Exhibits A and B filed.
- Date: 06/11/1998
- Proceedings: Respondent`s Notice of Amendment to Witness List (filed via facsimile).
- Date: 06/10/1998
- Proceedings: Respondent`s Response to Order Requiring Prehearing Stipulation (filed via facsimile).
- Date: 06/05/1998
- Proceedings: Petitioner`s Response to Order Requiring Prehearing Stipulation filed.
- Date: 04/28/1998
- Proceedings: Amended Notice of Hearing by Video sent out. (Video Final Hearing set for 6/15/98; 9:00am; Ft. Lauderdale & Tallahassee)
- Date: 03/17/1998
- Proceedings: Notice of Hearing by Video sent out. (Video Final Hearing set for 6/15/98; 1:00pm; Ft. Lauderdale & Tallahassee)
- Date: 03/17/1998
- Proceedings: Order Requiring Prehearing Stipulation sent out.
- Date: 01/30/1998
- Proceedings: (Petitioner) Response to Initial Order filed.
- Date: 01/22/1998
- Proceedings: Initial Order issued.
- Date: 01/16/1998
- Proceedings: Agency Referral Letter; Request for Formal Hearing Form; Agency Action Letter filed.