STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

OSTERIA CASADIO,

Respondent.

)

)

)

)

)

)

)

) Case No. 02-2279

)

)

)

)

)

RECOMMENDED ORDER

On September 11, 2002, a formal administrative hearing in this case was held in Sarasota, Florida, before William F. Quattlebaum, Administrative Law Judge, 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: Giuseppe Casadio, pro se

934 Boulevard of the Arts Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint are true, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 3, 2002, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner) alleges that Osteria Casadio (Respondent), a restaurant operated by Giuseppe Casadio, was found to be in violation of various specified provisions of food and fire prevention regulations. The Respondent disputed the allegations and requested a formal administrative hearing. The Petitioner forwarded the matter to the Division of Administrative Hearings, which scheduled and conducted the hearing.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1 through 5, 7, 8, and 12 admitted into evidence. Giuseppe Casadio testified on behalf of the Respondent.

The Transcript of the hearing was filed on September 26, 2002. The Petitioner filed a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes.

2. The Respondent is a restaurant located at 29 North Boulevard of the Presidents, Sarasota, Florida 34236. Giuseppe Casadio owns and operates the restaurant.

3. On March 25, 2002, an employee representing the Petitioner performed a routine inspection of the Respondent restaurant. Violations of applicable food and fire safety regulations, adopted and enforced by the Petitioner, were noted during the inspection. The inspector identified the violations to the owner and scheduled a re-inspection for March 27, 2002.

4. On March 27, 2002, the Petitioner's employee re- inspected the Respondent restaurant and determined that some of the violations remained uncorrected.

5. The uncorrected violations are related to refrigeration problems, pest control issues, inadequate fire extinguishers, and improper use of an electrical extension cord.

6. The refrigeration problems resulted in a failure to maintain food at appropriate temperatures. The walk-in refrigerator was not chilling properly, and food items including salmon and ham were not chilled to the 41 degrees Fahrenheit required pursuant to regulation. The required storage

   temperature is intended to retard spoilage and the development of bacteria.

7. At the time of the initial inspection, the Respondent's walk-in refrigerator unit was malfunctioning. The day after the initial inspection, repairs were made to the unit, but the repairs were inadequate and the food storage temperatures remained excessive at the time of the re-inspection. After the re-inspection, additional repair work was required.

8. Another uncorrected violation was the improper storage of a prepared garlic and oil mixture in a "reach-in" refrigerator on the cook's line. The temperature of the mixture was 56 degrees, in excess of the 41 degrees Fahrenheit required pursuant to regulation. Prepared garlic and oil mixtures present the potential for development of botulism if not chilled and stored appropriately.

9. The pest control issue cited in the inspection related to the detection of roaches around the dishwashing machine. The restaurant has a contract with a pest control company, but the measures being taken to reduce the roach population are apparently inadequate.

10. Fire prevention regulations require that an appropriate fire extinguisher be within a travel distance of

    30 feet from "high hazard" cooking equipment. The Respondent

    was not in compliance with the regulations at the time of either inspection because the fire extinguisher was improperly located.

11. Fire prevention regulations prohibit use of electrical extension cords except for temporary use during cleaning. At the time of both inspections, an extension cord was being used to power the reach-in refrigerator unit at the end of the cook's line.

12. The Petitioner has prosecuted similar allegations against the Respondent in a prior administrative proceeding. Pursuant to a Final Order issued in 2001 based on an agreed stipulation and consent order, the Petitioner has previously identified code violations related to improper food storage temperature and inadequate fire suppression equipment during inspections in 1999 and 2001.

    CONCLUSIONS OF LAW

    
    

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

14. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. Chapter 509, Florida Statutes.

15. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

16. The Petitioner has adopted by incorporation provisions of the 1999 Food Code, established by the Food and Drug Administration of the United States Public Health Service. Chapter 61C, Florida Administrative Code. The Petitioner has also adopted by incorporation certain provisions of the National Fire Protection Association Life Safety Code. Chapter 4A-3 and 61C-1.004, Florida Administrative Code.

17. In this case, the Petitioner has established that the Respondent has failed to comply with the specific sections of the 1999 Food Code and National Fire Protection Association Life Safety Code cited in the Administrative Complaint.

18. At the hearing, the Respondent asserted that in his native Italy, food is frequently stored at room temperature without apparent ill effects on the consuming population. While there is no evidence that the Respondent's assertions are incorrect, the State of Florida has adopted regulations related to food storage temperatures, pest control, and fire safety issues. Stored foods must be chilled to prevent spoilage and growth of bacteria. Pests must be eliminated from food areas. Fire suppression equipment must be of a specific type and be properly located. Use of electrical extension cords is

    prohibited except in limited circumstances not present here. The Respondent has failed to comply with these regulations.

19. Section 509.261(1), Florida Statutes, provides that each violation is treated as a separate offense, and that each offense is punishable by a fine not to exceed $1,000 per offense. In addition, offenses may be disciplined by required attendance at an educational program sponsored by the Hospitality Education Program, or suspension, revocation, or refusal of a license.

20. The Petitioner is seeking a fine of $5,600 and to require that the Respondent attend a Hospitality Education Class within 60 days of the date of a final order in this case.

21. While it appears that the Respondent made a good faith effort to have the refrigeration unit repaired after the inspection of March 25, 2002, the unit was not repaired until after the re-inspection found that the temperatures were still too high. The garlic and oil mixture issue was raised during the earlier administrative proceeding, yet the Respondent continues to store the mixture inappropriately. The fire suppression equipment was identified during the 1999 inspection, yet the violation remains as of March 2002. Given the continuing nature of the violations and the Respondent's failure to correct them in a reasonable time frame, there is no reason

to vary from the penalty recommended according to statute by the Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order imposing a fine of $5,600, and requiring that the Respondent attend a Hospitality Education Class at his own expense within 60 days of the date of the Final Order.

DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 17th day of October, 2002.

COPIES FURNISHED:

Joseph Casadio Osteria Incorporated

29 North Boulevard of the Presidents Sarasota, Florida 34236

Giuseppe Casadio

934 Boulevard of the Arts Sarasota, Florida 34236

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

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

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: 02-002279

Orders for Case No: 02-002279