STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 01-3011

)

RAMADA INN RESTAURANT, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on October 30, 2001, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Clermont, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Manohar Jain, pro se

Ramada Inn Restaurant

4800 South Apopka Vineland Road Orlando, Florida 32819

STATEMENT OF THE ISSUE

Whether the Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida

Administrative Code, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Following inspection of Respondent's public lodging establishment, Petitioner duly served Respondent with an Administrative Complaint alleging that Respondent violated certain provision of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, which incorporates the National Fire Inspection Association Code (NFPA). On April 16, 2001, Respondent disputed the complaint allegations and elected an administrative hearing on the disputed issues of fact. The case was transferred to the Division of Administrative Hearings on July 25, 2001, for evidentiary hearing.

On June 26, 2001, an Initial Order was forwarded to Petitioner and Respondent. On August 27, 2001, an Amended Notice of Hearing was forwarded to Petitioner and Respondent, setting the final hearing for October 30, 2001, in Clermont, Florida.

During the hearing, Petitioner presented the testimony of two witnesses: Angela Carragher, Safety and Sanitation Supervisor, and Jim Thomason, Senior Safety and Sanitation Specialist. Petitioner's Exhibits 1 through 4 were admitted

into evidence. Respondent presented the testimony of Manohar Jain. Respondent presented no exhibits.

The Department filed a Proposed Recommended Order which was read and considered. Respondent did not file a post hearing brief or proposed findings.

FINDINGS OF FACT

Based on the evidence and testimony of the witness presented and the entire record in this proceeding, the following findings of fact are made:

1. On February 15, 2001, Angela Carragher, Safety and Sanitation Supervisor, conducted an initial inspection of Respondent.

2. Ms. Carragher conducted re-inspections of Respondent on February 16, 2001, and March 5, 2001.

3. During the inspections, Ms. Carragher observed numerous rodent droppings in the backside storage closets, as well as in the food storage area on the shelves.

4. Rodent droppings are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food.

5. Ms. Carragher observed moldy vegetables in the walk- in cooler.

6. Moldy vegetables in the walk-in cooler are a critical violation because spoiled food is not safe to serve to a customer.

7. Ms. Carragher observed raw beef stored over some lettuce and cheese that were in the walk-in cooler.

8. Raw beef stored over ready-to-eat foods like lettuce and cheese are a critical violation because raw beef can have bacteria, which could contaminate or cross-contaminate those ready-to-eat items.

9. Ms. Carragher observed that Respondent did not have proof of a certified food manager at the facility.

10. The certified food manager is the person who has the responsibility to ensure that all of the food workers are trained in food safety and proper food handling and that the facility is following all requirements of the Food Code.

11. Proof that a certified food manager at the facility is critical because, otherwise, there is no way to know if somebody is supervising and overseeing the establishment.

12. Ms. Carragher observed that the fire suppression system was not currently tagged and certified and that an emergency light did not light when tested.

13. The fire suppression system is required to be inspected and certified every six months.

14. The fire suppression system was last inspected in March 2000.

15. A certified and tagged fire suppression system is critical because in the event of a fire, the system may fail to automatically discharge and put the fire out.

16. Ms. Carragher observed an unlabeled spray bottle containing some unidentifiable green chemical solution.

17. Restaurants often use a number of different chemicals in their kitchen, such as window cleaners, degreaser, and sanitizers.

18. An unlabeled spray bottle is a critical violation because an employee may mistakenly use a wrong chemical on the wrong surface, which could create a contamination hazard for food items.

19. Ms. Carragher observed dried food debris on the slicer and inside the three-door, reach-in cooler.

20. Dried food on the slicer and cooler surfaces is a violation because dried food can harbor bacteria which can potentially contaminate fresh food.

21. Ms. Carragher observed that the heat lamp bulbs on the cook's line were not shielded.

22. Unshielded heat lamp bulbs are a violation because should a lamp break, the shattered glass may fall into the food to be served causing a physical hazard.

23. Ms. Carragher observed that the ice scoop was stored on the top of the ice machine and not on a clean surface.

24. The ice scoop is used to scoop the ice that is going to be used for beverages and food.

25. The ice scoop stored on the top of the ice machine is a violation because the top of the machine contains dust and debris, which may cause potential physical contamination.

26. Ms. Carragher observed holes in the walls in the backside storage closet, and grime accumulated on the floor underneath the sink and on the walls in the dishwashing area.

27. Holes in walls and accumulated grime on sinks and walls are a violation because the dirt may contaminate clean dishes and holes may permit access by vermin.

28. Ms. Carragher observed that the gasket on the door on the reach-in cooler was torn.

29. A torn gasket is a violation because the gasket forms a barrier between the outside and inside of the cooler preventing hot air from the kitchen from getting into the cooler. It also creates a place where mildew can grow and contaminate food.

30. Ms. Carragher observed that the carbon dioxide tank in the kitchen was not secured.

31. A carbon dioxide tank which is not secured is a safety violation because a pressurized tank may be propelled

    violently by the compressed gas if the valve is damaged, hurting people in the restaurant.

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57, Florida Statutes (2001).

33. The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency charged with regulating public food service establishments pursuant to Section 20.165, Florida Statutes, and Chapter 509, Florida Statutes.

34. Pursuant to Section 509.261(1), Florida Statutes (2001), the Division of Hotels and Restaurants, may impose penalties for violations of Chapter 509, Florida Statutes, including an administrative fine of no more than $1,000 for each separate offense and the suspension or revocation of Respondent's license.

35. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Section 120.57(1)(h), Florida Statutes (2001); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

36. Petitioner has proven by clear and convincing evidence that Respondent violated Section 6-501.111, Food Code, by failing to minimize the presence of rodents and pests on the premises.

37. Petitioner has proven by clear and convincing evidence that Respondent violated Section 3-701.11(a), Food Code, by failing to discard unsafe food as specified under Section 3-101.11, Food Code.

38. Petitioner has proven by clear and convincing evidence that Respondent violated Section 3-302.11(a)(1), Food Code, by failing to protect food from cross-contamination.

39. Petitioner has proven by clear and convincing evidence that Respondent violated Section 61C-4.023(1), Florida Administrative Code, by failing to have available a certified food manager.

40. Petitioner has proven by clear and convincing evidence that Respondent violated Section 61C-1.004(5), Florida Administrative Code, by failing to maintain fire safety equipment.

41. Petitioner has proven by clear and convincing evidence that Respondent violated Section 8-21, National Fire Protection Association Life Safety Code, by failing to inspect the fire extinguishing system every six months by a properly trained and qualified person.

42. Petitioner has proven by clear and convincing evidence that Respondent violated Section 7-102.11, Food Code, by failing to clearly identify working containers used for storing poisonous or toxic materials.

43. Petitioner has proven by clear and convincing evidence that Respondent violated Section 4-601.11, Food Code, by failing to maintain equipment food-contact surfaces and utensils clean to sight and touch.

44. Petitioner has proven by clear and convincing evidence in two instances that Respondent violated Section 6- 202.11, Food Code, by failing to protect the heat lamp against breakage by using a shield surrounding and extending beyond the bulb so that only the face of the bulb is exposed.

45. Petitioner has proven by clear and convincing evidence that Respondent violated Section 3-304.12(e), Food Code, by failing to store a food preparation utensil in a clean, protected location.

46. Petitioner has proven by clear and convincing evidence that Respondent violated Section 61C-1.004(6), Florida Administrative Code, by failing to keep building structural components in good repair, clean and free of obstructions.

47. Petitioner has proven by clear and convincing evidence that Respondent violated Section 4-501.11, Food Code,

    by failing to keep equipment components in accordance with manufacturers' specifications.

48. Petitioner has proven by clear and convincing evidence that Respondent violated Section 61C-1.004(9)(d), Florida Administrative Code, by failing to adequately secure carbon dioxide tank to preclude danger to occupants.

49. In mitigation, Respondent's owner introduced testimony that was uncontroverted that he was not aware of the inspections and violations until after the last inspection. After attempting to correct the deficiencies prior to the last inspection, the owner closed the restaurant. The owner also stated his business was in jeopardy because of the lack of business following the terrorists' attack on September 11, 2001.

50. The fine being levied is inappropriately large given the efforts of Respondents at remediation after the owner became aware of the faults and the financial impact on his hotel after the September 11, 2001, terrorists' attack.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That a final order be entered for suspension of Respondent's license until he pays a fine in the amount of

$2,000.

DONE AND ENTERED this 21st day of December, 2001, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 21st day of December, 2001.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2201

Lewis Pace

Ramada Inn Restaurant

20349 North U.S. Highway 27

Clermont, Florida 34711

Manohar Jain

Ramada Inn Restaurant

4800 South Apopka Vineland Road Orlando, Florida 32819

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 01-003011

Orders for Case No: 01-003011