STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 00-2687

)

VASKO POPOV, d/b/a KESSY'S )

INTERNATIONAL VP'S BBQ, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida, on November 16, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Vasko Popov, pro se

d/b/a Kessy's International VP's BBQ

7117 North Highway 301

Tampa, Florida 33610

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent's license to operate a restaurant at 7117 North Highway 301 in Tampa, Florida, should be disciplined because of the discrepancies alleged in the Notice to Show Cause filed herein.

PRELIMINARY MATTERS

By Notice to Show Cause dated May 18, 1998, the district administrator for the Division of Hotels and Restaurants advised Respondent, of the Division's intent to discipline his license to operate the restaurant in issue herein located in Tampa, Florida, because of several alleged violations of the 1997 edition of the Food Code published by the U.S. Department of Health and Human Services and distributed by the Department of Business and Professional Regulation. By form dated June 16, 1998, Respondent requested formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Kenneth A. Phillips, a sanitation and safety specialist (health inspector) with the Division's Tampa office; and Copathia A. Burrows, a supervisor, also with the Division's Tampa office. Petitioner also introduced Petitioner's Exhibits 1 through 5. Respondent testified in his own behalf and introduced Respondent's Exhibits 1 through 6.

A Transcript of the testimony given in this matter was provided on December 28, 2000, and subsequent to the receipt thereof, both parties submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of Business and Professional Regulation's Division of Hotels and Restaurants was the state agency responsible for the licensing and regulation of the operation of restaurants and hotels in Florida. Respondent, Vasko Popov, was licensed to operate a restaurant, Kessey's VP BBQ, at 7117 North Highway 301 in Tampa, Florida.

2. On March 30, 1998, Kenneth A. Phillips, a health inspector with the Division, accompanied by his supervisor, Ms. Burrows, went to Respondent's restaurant for a routine sanitation compliance inspection. During his inspection of Respondent's facility Mr. Phillips observed several violations of the Food Code which he documented in a report which he prepared at the facility at the time of the inspection.

3. Among the discrepancies, Mr. Phillips noted that there was no fire extinguisher located at the site of the bar- b-que pit. This constitutes a hazard to life and property, and, as such, is classified as critical. He also found that

   there was no self-closing door on the women's restroom; that there were flies in the restaurant and kitchen; debris, including metal tubing, metal bars, wood, an old desk, and an old soft-drink machine in the area behind the restaurant; electrical wiring hanging from the ceiling of the office storeroom in which food is stored; and twenty patron seats in the restaurant. The restaurant is licensed for only fifteen seats. In addition, when asked to provide access to the storeroom office to the inspector, Respondent refused to do so. The presence of the flies, the dangling electrical wires, and the obstruction of the inspector are also classified as critical violations.

4. Mr. Phillips entered the discrepancies he found in an inspection report which he gave to Respondent. This report also notified Respondent he must correct the alleged violations by April 13, 1998.

5. Mr. Phillips hereafter conducted a follow-up inspection of the restaurant on April 20, 1998. At that time, he noted that some of the violations previously noted had not been corrected, and he extended the time for their correction until April 27, 1998. During this follow-up, Mr. Phillips alleged, Respondent refused to talk with him, and Respondent's wife refused to sign an acknowledgement of receipt for it. As

   a result, Mr. Phillips merely left a copy of the report at the restaurant.

6. On April 30, 1998, Mr. Phillips returned to the restaurant for a second follow-up inspection. At this time he found that those violations which had not been corrected on April 20, were still not corrected. There was still no fire extinguisher in the cooking area; the area behind the restaurant still had the previously noted debris; there was still no self-closing door to the women's rest room; there were still flies in the kitchen and eating area; and there were still more than the authorized number of patron seats. Mr. Phillips was not able to determine whether the hanging wires in the storeroom had been corrected because he was denied access to that area.

7. After the second follow-up inspection, Mr. Phillips sought and received authority from his supervisor to issue a Notice to Show Cause on those violations which had not been corrected by the April 30 extended deadline. Thereafter, on May 26, 1998, he conducted a fourth inspection of Respondent's premises and again found flies in the food service area, debris behind the facility, and more unapproved seating.

8. Respondent admits that some of the allegations of violation are accurate and well founded. However, he contests others. For example, he contends that he had a fire

   extinguisher on the premises, inside on a door near the pit but not outside at it. Admittedly, the electrical wire was hanging from the ceiling, but it was not hooked up to power, Respondent contends. Respondent admitted refusal to allow Mr. Phillips into the room to check, however, is, in itself, a violation, but he justifies his action with the claim that there was no food stored, prepared or served there.

9. Respondent admits that there were flies on the premises. However, with cooking being done outside, it is almost impossible to make the area fly-free, and, he claims, all restaurants of this type have flies. As to the debris behind the restaurant, Respondent claims that what was there was a part of the building, and it was not a place where customers were allowed. The excess seating was the result of there being 4 or 5 picnic tables inside a covered patio. He believes it is impossible to accurately claim a set number of seats. It would all depend on how close people sat to each other on the benches on each side of the table. Finally, Respondent admits he did not have a self-closing hinge on the bathroom door as alleged.

10. Respondent claims he is a responsible business man who tries to do a good job in a clean establishment. He contends he has a good record of inspections before and after the incidents in question and a good reputation in the

    community as a small family business. He wants to make the violations right, just as, he claims, he has always wanted to do. He admits to a bad relationship with Mr. Phillips and is of the opinion that that was a large part of the problem. He admits he was put-off by Mr. Phillips' approach and probably did not respond as well as he should. However, he insists that everything alleged to be a violation has been corrected.

11. In fact, subsequent to the hearing, consistent with an order so permitting, Respondent submitted a statement from a purveyor's representative who was present during a disagreement between Respondent and his wife and Mr. Phillips. If true, this corroborative hearsay statement indicates a lack of professionalism on the part of Mr. Phillips at the time. However, assuming, arguendo, the comments attributed to Mr. Phillips were made by him, the other evidence of record indicates violations existed both at the time of the inspections and before, and there was no connection shown to exist between the citations issued therefor and the relationship between Mr. Phillips and Respondent.

12. Notwithstanding Respondent's claim of a good inspection record prior to the instant series, Ms. Burrows, a supervisor with the Department of Health, along with Mr. Phillips, had visited Respondent's facility on October 21, 1997, to inspect new construction and equipment being

    installed by Respondent. As a result of that inspection, Ms. Burrows and Mr. Phillips found certain discrepancies which they itemized in a report with instructions as to what he had to do to conform with the plans and the rules. Not only did she put them in writing, she also went over them orally with Respondent.

13. The discrepancies noted at the time included an improper installation of the bar-b-que; the presence of only one restroom for use by both male and female patrons; a requirement to seek authority for additional seats on premises which exceeded authorized limit; the need for new licensing as a permanent facility rather than as a mobile operation; an excessive amount of flies on the premises, and the need for screens to keep them out; a requirement for a fire extinguisher; and a requirement to maintain cooked food at an appropriately high temperature. With regard to the last item, Respondent claimed the food in question was for personal consumption and not for sale.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

15. Petitioner seeks to discipline Respondent's license to operate the restaurant in question because of the repeated

    and uncorrected violations discovered in the initial and follow-up inspections between March 30 and May 26, 1998, which, if proven, constitute violations of rules of the Department, other pertinent regulations of the State of Florida, and the Food Code.

16. Petitioner has the burden in this case to establish Respondent's guilt of the violations alleged by clear and convincing evidence. Department of Banking and Finance vs. Osborne Stern and Company, 670 So. 2d 932 (1998).

17. Section 509.261, Florida Statutes, authorizes the Division of Hotels and Restaurants to discipline any public food service establishment that is operating in violations of the rules of the Division.

18. The Division has established by clear and convincing evidence, and Respondent admits, that there was no self closing door on the restroom in the facility. This constitutes a violation of Rule 61C-1.004(2)(b), Florida Administrative Code.

19. The Division has established by clear and convincing evidence that flies were observed in the cooking and serving portions of the establishment, in violation of Rule 6-501.111 of the Food Code. It is recognized, however, that it is almost impossible to maintain fly-free an establishment where a portion of the cooking and some of the food service is

    accomplished outside. However, the operator has the responsibility to expend reasonable efforts to minimize the number of flies in those areas, and it does not appear he has done so in this case.

20. The Division has established by clear and convincing evidence that debris as alleged existed behind the restaurant. Because of the tendency of such materials to attract vermin, a situation inconsistent with food service operations, this constitutes a critical violation of Rule 61C-4.010(5)(b), Florida Administrative Code.

21. The Division has established by clear and convincing evidence that a fire extinguisher was not located in the immediate vicinity of the bar-be-que cooker. An extinguisher on the door inside the building, when the cooker is outside, is insufficient. This constitutes a critical violation of NFPA 7-2.1.

22. Giving Respondent the benefit of the doubt, it cannot be said that the Division clearly and convincingly established that a powered electric line was left exposed and hanging from the ceiling. However, notwithstanding Respondent's claim that the room in which the wire was located did not contain any food or supplies, and that Mr. Phillips had no reason to go in there, the inspector has authority to examine any portion of a public establishment where food is

    prepared and sold, and it is within the inspector's discretion to determine where he or she feels it necessary to enter.

    Therefore, the evidence is clear and convincing that Respondent obstructed the access of the inspector to an area it was felt necessary to see, and this constitutes a violation of Rule 61C-1.002(8)(b), Florida Administrative Code.

23. The evidence of the alleged excess over authorized seating capacity was not established by clear and convincing evidence. Ms. Barrows indicated there were 30 seats when she visited the facility on October 21, 1997. Mr. Phillips indicated there were 20 seats when he visited on April 30, 1998. Respondent claims he had only 15 seats around four or five picnic tables. Neither of the inspectors described the seating or explained how they arrived at their count.

24. Section 509.261, Florida Statutes, provides a variety of penalties which may be imposed for proven violations. These include suspension or revocation of an existing operating license; imposition of an administrative fine of no more than $1,000 per established violation; and a requirement to attend a prescribed continuing education course. Petitioner recommends a penalty of a $5,000 administrative fine for the violations it claims it has established.

25. In light of the absence of prior disciplinary action, suspension or revocation are not appropriate, and to be sure, the Division seek neither. However, the Division's proposed administrative fine is excessive. More appropriate is a lesser fine of $2,000 and a requirement that Respondent attend an education program sponsored by the Hospitality Education Program to familiarize himself with the standards applicable to food service operations in this state.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Hotels and Restaurants enter a final order imposing a total administrative fine of $2,000, and requiring Respondent to attend an appropriate continuing education course within a set time to be prescribed by the Division.

DONE AND ENTERED this 16th day of January, 2001, in Tallahassee, Leon County, Florida.

___________________________________ ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2001.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Vasco Popov

d/b/a Kessy's International VP's BBQ

7117 North Highway 301

Tampa, Florida 33610

Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

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.

Docket for Case No: 00-002687

Orders for Case No: 00-002687