STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, ) Case Nos. 02-2160

) 02-2161

vs. )

) OUT OF BOUNDS STEAK N GRILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in these cases on August 16, 2002, in Fort Pierce, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Henry Lance Brandenburg, pro se

Out of Bounds Steak N Grill 2838 South U.S. Highway 1 Fort Pierce, Florida 34982

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what action should be taken.

PRELIMINARY STATEMENT

On August 28, 2001, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner) filed an Administrative Complaint against Out of Bounds Steak N Grill (Respondent): Case No. 02-2160. Petitioner charged Respondent with the following violations: violating Section 509.049, Florida Statutes, by Respondent's failure to complete the food service training for its employees; violating Rules 6-301.11 and .12, Food Code, by Respondent's failure to provide hand towels and soap at the hand wash sink; and violating Rule 6-202.11, Food Code, by Respondent's failure to have a light shield at the grill cook area.

On March 13, 2002, Petitioner filed an Administrative Complaint against Respondent: Case No. 02-2161. Petitioner charged Respondent with the following violations: violating Rule 4-601.11(A), Food Code, due to the slicer blade area having an accumulation of old food debris; violating Rule 4-501.11, Food Code, due to the shelf in the dry food storage area being rusted; violating Rule 61C-1.004(11), Florida Administrative Code, due to extension cords being used in the kitchen near the slicer;

violating Rule 6-202.15(A), Food Code, due to the rear door not being sealed properly at the bottom and side of the door; violating Rule 5-203.14, Food Code, due to the absence of a backflow prevention device on the spigot below the dish machine; Rule 4-202.11, Food Code, due to unapproved containers being reused at the dishwash area; violating Rule 4-302.14, Food Code, due to the absence of test strips to test the concentration of the sanitized solution; and Rule 4-703.11(A) and (B), Food Code, due to the dish machine not sanitizing utensils and the plate temperature being below 160 degrees.

Respondent disputed the allegations of fact in the Administrative Complaints and requested a hearing. These matters were referred to the Division of Administrative Hearings on

May 23, 2002. By Order dated June 12, 2002, these matters were consolidated.

At the hearing, Petitioner presented the testimony of one witness and entered six exhibits (Petitioner's Exhibits numbered

1 through 6) into evidence. Respondent presented the testimony of its owner and entered one exhibit (Respondent's Exhibit numbered 1) into evidence. Official recognition was taken of Section 509.049, Florida Statutes; Rule 61C-1.004, Florida Administrative Code; and Rules 4-202.11, 4-302.14, 4-501.11,

4-601.11, 4-703.11, 5-203.14, 6-202.11 and .15, and 6-301.11 and

.12, Food Code.

A transcript of the hearing was ordered. At the parties' request, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on September 12, 2002. Petitioner timely filed its post-hearing submission, which was considered in the preparation of this Recommended Order.

Respondent failed to file a post-hearing submission.

FINDINGS OF FACT

1. At all times material hereto, Respondent was licensed by Petitioner.

2. Respondent's last known address is 2838 South U.S. Highway 1, Fort Pierce, Florida.

   Case No. 02-2160

   
   

3. Petitioner's inspector inspected Respondent on July 13, 2001. Several deficiencies were noted by the inspector. One deficiency of critical concern was that Respondent's employees had failed to complete their food service training. Because of this critical deficiency, Respondent was given a 30-day warning to have the training completed.

4. Over 30 days later, on August 26, 2001, Petitioner's inspector returned for a re-inspection. Three deficiencies were not corrected and remained: Respondent had failed to complete the food service training for its employees; Respondent failed to

   provide hand towels and soap at the hand wash sink; and Respondent failed to have a light shield at the grill cook area.

5. Respondent, through its owner, does not contend that the deficiencies were not present but provides mitigating circumstances.

6. As to the food service training for employees, the books for the training had been ordered but had not been received at the time of the re-inspection. Additionally, Respondent is closed for the first two weeks in August of each year for vacation and the employees are away. Moreover, the employees completed their training on September 15, 2001.

7. Respondent requested a re-inspection, which was performed by one of Petitioner's supervisors. Respondent had complied with all requirements and no deficiencies were found.

   Case No. 02-2161

   
   

8. Petitioner's same inspector inspected Respondent on January 31, 2002. Several deficiencies, including critical deficiencies, were noted by the inspector.

9. Seven days later, on February 7, 2002, the inspector returned for a re-inspection due to the critical deficiencies being noted. Nine deficiencies were not corrected and remained: the slicer blade area had an accumulation of old food debris; the shelf in the dry food storage area was rusted; extension cords were being used in the kitchen near the slicer; the rear door was

   not sealed properly at the bottom and side of the door; there was no backflow prevention device on the spigot below the dish machine; unapproved containers were being reused at the dishwash area; the absence of test strips to test the concentration of the sanitized solution; the dish machine was not sanitizing utensils; and the plate temperature was below 160 degrees. The critical deficiencies were the dish machine was not sanitizing utensils and the plate temperature was below 160 degrees.

10. Respondent, through its owner, does not contend that the deficiencies were not present but provides mitigating circumstances.

11. As to the critical deficiency of the dish machine not sanitizing utensils, Respondent was unable to get the dish machine repaired in one week.

12. As to the food slicer having an accumulation of old food debris, Respondent's employees are instructed to clean the slicer at the end of each shift. However, at the time of the initial inspection on January 31, 2002, and the re-inspection on February 7, 2002, the slicer contained an accumulation of old food debris.

13. As to the shelf in the dry food storage area being rusted, Respondent was unable to get the rusted area painted in one week.

14. Respondent continued to operate between the inspections and re-inspections performed in 2001 and 2002.

15. For 25 years, Respondent's owner has been in the restaurant business in Saint Lucie County (three years as a manager and 22 years as an owner) without an administrative fine. Further, Respondent has no history of disciplinary action being taken against it by Petitioner.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

17. License revocation proceedings and proceedings involving the levying of administrative fines are penal in nature. The burden of proof is on the Petitioner to establish by clear and convincing evidence the truthfulness of the allegations in the Administrative Complaints. Department of Banking and Finance, Division of Securities and Investor Protection v.

    Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. A licensee is charged with knowing the practice act that governs his/her license. Wallen v. Florida Department of

    Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

19. Since Respondent does not contend that the deficiencies were not present, but presents mitigating circumstances, the undersigned finds it unnecessary to recite the statute and rules alleged to have been violated.

20. Petitioner demonstrated by clear and convincing evidence that Respondent violated the statute and rules indicated in the Preliminary Statement.

21. As to penalty, Section 509.261, Florida Statutes, provides in pertinent part:

    1. Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:

       1. Fines not to exceed $1,000 per offense;

       2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

       3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

       
       

22. Petitioner suggests that Respondent pay an administrative fine, without specifying a dollar amount, and that Respondent's owner be required to attend a Hospitality Education Program class and provide proof of such attendance. Petitioner's suggestion, as to an administrative fine and attending a class, is reasonable under the circumstances of this matter.

23. Furthermore, without specifying a dollar amount for the administrative fine, Petitioner is allowing the undersigned to

determine the recommended fine. The critical deficiencies are of concern to the undersigned. However, Respondent's mitigating circumstances are persuasive but not to the point of not imposing a fine for the critical deficiencies.

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:

1. Finding that Out of Bounds Steak N Grill committed the violations in Case Nos. 02-2160 and 02-2161.

2. Imposing an administrative fine of $500.00 payable within 45 days of the filing of the final order.

3. Requiring the owner of Out of Bounds Steak N Grill, Mr. Henry L. Brandenburg, to attend a Hospitality Education

Program class within 60 days of the filing of the final order and to provide proof of such attendance to the Division of Hotels and Restaurants.

DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 31st day of October, 2002.

COPIES FURNISHED:

Henry Lance Brandenburg Out of Bounds Steak N Grill 2838 South U.S. Highway 1 Fort Pierce, Florida 34982

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Geoff Luebkemann, Director Division of Hotels and Restaurants 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: 02-002161

Orders for Case No: 02-002161