STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 00-4172

) ANTHONY’S ITALIAN RISTORANTE,) INC., )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on November 30, 2000.

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202 For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of violating various provisions of law in operating a restaurant and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 11, 2000, Petitioner alleged seven violations in the operation of Respondent’s restaurant, as cited in inspections of February

25 and March 31, 2000. The Administrative Complaint alleges that a door seal on a two-door cooler was damaged, in violation of Food Code Chapter 4-501.11(B); hood filters were missing from the ventilation system, in violation of National Fire Protection Association Rule 96, 8-1.2; debris was present around a dumpster pad, in violation of Food Code Chapter 5- 501.110; a screen door at the rear of the kitchen was torn, in violation of Rule 61C-1.004(3), Florida Administrative Code; ceiling tiles were missing, in violation of Rule 61C-1.004(6), Florida Administrative Code; a fire extinguisher was missing an inspection tag, in violation of Rule 61C-1.004(9)(b), Florida Administrative Code; no employee was on duty with a current food manager’s certificate, in violation of Section 509.039, Florida Statutes, and Rule 61C-4.023(1), Florida Administrative Code.

In its proposed recommended order, Petitioner seeks an

administrative fine of $4800.

At the hearing, Petitioner called one witness and offered into evidence seven exhibits, which were all admitted. By leave of the Administrative Law Judge, Petitioner filed as a

late exhibit Petitioner Composite Exhibit 7, which consists of previous disciplinary actions taken by Petitioner against Respondent.

Respondent did not appear at the hearing.

The court reporter did not file a transcript.

FINDINGS OF FACT

1. Respondent is licensed to operate a restaurant at 4820 Davis Boulevard in Naples, Florida. Respondent’s license number is 21-01272R, and the license expired on December 1, 2000.

2. On February 25, 2000, Petitioner’s inspector conducted an inspection of the restaurant in response to a complaint and found ten violations.

3. The inspector found a damaged door seal on the two- door prep cooler, an unclean ventilator hood, two missing filters from the hood, a torn screen door at the rear entrance to the kitchen, missing ceiling tiles, mold and fungus behind the ice maker, debris around the dumpster pad, no inspection tag on the fire extinguisher, and no employee present with a current food manager’s certificate despite the presence of at least four other employees. The inspection form notes that the following violations are critical and must be corrected immediately: the torn screen door, missing inspection tag,

   and no employee on duty with a current food manager’s certificate.

4. On March 31, 2000, the inspector conducted a reinspection and found seven violations.

5. The inspector found the damaged door seal on the two- door prep cooler, two missing filters from the hood, a torn screen door at the rear entrance to the kitchen, missing ceiling tiles, debris around the dumpster pad, no inspection tag on the fire extinguisher, and no employee on duty with a current food manager’s certificate despite the presence of at least four other employees.

6. As to the critical violations, the screen door is to prevent disease-carrying pests from entering the kitchen. The fire extinguisher and trained manager also protect the health and safety of the customers and employees.

7. As to the noncritical violations, the door seal assures that the cooler continues to maintain the stored food below a certain temperature in order to protect the customers from unhealthy food. The hood filters, which are installed over cooking surfaces, trap grease; if allowed to collect in the ventilation system, grease poses a fire hazard. Missing ceiling tiles could allow foreign material from the structure fall into the food. Debris around the dumpster pad may attract pests.

8. On August 26, 1999, the inspector conducted an inspection of the restaurant and found 19 violations.

   Although the Administrative Complaint does not allege any violations arising out of any inspection after March 31, 1999, these ongoing conditions are relevant in setting the penalty for the violations that are the subject of this case.

9. The inspector found uncooked lasagna and pizza pork sausage maintained at excessively warm temperatures in two coolers and cooked sausage and meatballs maintained at an excessively cool temperature in one cooler, a broken thermometer in one cooler and no thermometers in two coolers, a damaged door to the lower convection oven, an unsanitized dishwashing machine, no sanitizing bucket, an unclean food container and cooking line, no paper towels or soap at the kitchen hand sink, no employees trained in hygiene, missing ceiling tiles, unshielded lights over the pizza prep area, a burned-out light in the hood system, no barrier between the fryer and six-burner stove, and no employee on duty with a current food manager’s certificate despite the presence of at least four other employees.

10. As to the critical violations not previously discussed, maintaining cooked and uncooked food at the proper temperatures is essential to the safety of the customers.

    Ensuring that employees have received training in hygiene is also important to the safety of the customers.

11. As for the seven violations that are the subject of this case, Respondent had failed to correct three of them, even six months after the initial inspection. Two of these uncorrected violations are critical: the damaged door seal and absence of at least one employee with a current food manager’s certificate. The damaged door seal was allowing the temperature of uncooked food in the two-door cooler to rise to unsafe levels. The third uncorrected violation, which was the missing ceiling tiles, was not critical.

12. On August 27, 2000, the inspector conducted a reinspection and found that Respondent had corrected the violations concerning the thermometers, cleaned the food container and cooking line, added paper towels and soap at the kitchen hand sink, replaced the missing ceiling tiles, shielded the light over the pizza prep area, and installed a barrier between the fryer and stove. At the reinspection, two employees with current food manager’s certificates were on duty, and an employee informed the inspector that Respondent had ordered the door seal for the two-door cooler.

13. On September 10, 2000, the inspector conducted a second reinspection and found that Respondent had still not repaired the seal to the two-door cooler, which was still not

    maintaining uncooked food at safe temperatures. The inspector found that the dishwashing machine was still not sanitizing and, as cited in the first two inspections, a filter was missing from the hood. Respondent had corrected the violation for one of the two previously cited coolers, so it was maintaining food at safe temperatures.

14. Thus, over the seven months covered by inspections in this case, Respondent never repaired the door seal and again removed a hood filter, after replacing it after the first two inspections.

15. By Stipulation and Consent filed August 6, 1997, Respondent agreed to pay an administrative fine of $500 for an uncorrected violation involving the failure to maintain a hood fire-suppression system for the cooking grill. This violation was cited and re-cited during inspections on January 27, February 20, March 10, April 10, and May 19, 1997.

16. By Default Final Order filed October 19, 1999, Petitioner imposed an administrative fine of $450 and required enrollment in a hospitality education program for four violations: an unshielded light over the pizza prep area, a discharged fire extinguisher, a fire extinguisher without an inspection tag, and the use of an electrical extension cord. These violations were cited and re-cited on February 5 and 18, 1998.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

18. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

19. Rules 61C-4.010(6) and 61C-1.004(1) incorporate respectively Chapters 4 and 5 of the United States Public Health Food Code (Food Code). Rule 61C-1.004(5) incorporates National Fire Protection Association (NFPA), Chapter 101.

1. As for the door seals, Food Code Chapter 4-501.11(A) requires that maintenance of equipment in a state of good repair.

2. As for the missing hood filters, NFPA Rule 96, 8-1.2 prohibits the operation of filter-equipped exhaust systems without the filers.

3. As for the debris around the dumpster pad, Food Code Chapter 6-501.114(B) requires that the premises be free of litter.

4. As for the torn screen door, Rule 61C-1.004(3) requires that all buildings be maintained to be free of rodents, flies, roaches, and other vermin and all screening material be maintained free of breaks.

5. As for the missing ceiling tiles, Rule 61C-1.004(6) requires that all structural components of buildings be maintained in good repair.

6. As for the missing inspection tag on the fire extinguisher, Rule 61C-1.004(9)(b) requires the periodic inspection of fire extinguishers.

7. As for the lack of an employee with a current food manager’s certificate, Rule 61C-4.023(1) requires the presence of an employee with a current food manager’s certificate, if at least four employees are present.

8. Section 509.261(1)(a) authorizes Petitioner to impose a wide range of discipline for these violations, including a $1000 administrative fine for each violation. Section 509.261(2) provides that each day of a violation constitutes a separate offense.

9. In this case, Respondent’s seven violations on February 25 and March 31, 2000, are sufficient to sustain the

$4800 fine that Petitioner seeks. The failure to correct three of the critical violations several months later--and the failure to correct one of these three critical violations at

anytime--reinforces the fairness of the proposed fine, as does the prior, progressive discipline previously imposed upon Respondent.

RECOMMENDATION

It is

RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of the seven violations that are the subject of this case and imposing an administrative fine of $4800.

DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida.

___________________________________ ROBERT E. MEALE

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2001.

COPIES FURNISHED:

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

Charles F. Tunnicliff Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Anthony’s Italian Ristorante, Inc. Anthony’s Italian Ristorante

4820 Davis Boulevard

Naples, Florida 33942-5306

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-004172

Orders for Case No: 00-004172