STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

NICKEL CITY BAR AND GRILLE,

Respondent.

)

)

)

)

)

)

)

) Case No. 04-1363

)

)

)

)

)

RECOMMENDED ORDER

On June 15, 2004, an administrative hearing in this case was held in St. Petersburg, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tonya Chavis, Esquire

Charles F. Tunnicliff, Esquire Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Travis McHenry, pro se

Jeff Donato, pro se 7658 Park Boulevard

Pinellas Park, Florida 33781

STATEMENT OF THE ISSUES

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

PRELIMINARY STATEMENT

By Administrative Complaint dated September 26, 2003, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), alleged that Nickel City Bar and Grill (Respondent) was in violation of various provisions of food safety regulations. The Respondent disputed the allegations and requested an 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 4 admitted into evidence. The Respondent is co-owned by Jeff Donato and Travis McHenry, both of whom attended the hearing, with Mr. McHenry participating in the hearing as the Respondent's representative. The Respondent presented the testimony of two witnesses.

The one-volume Transcript of the hearing was filed on July 7, 2004. The Petitioner filed a proposed recommended

order, in which the Petitioner dismissed an allegation set forth

in the Administrative Complaint related to a broken window located near a "prep cooler."

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2003).

2. The Respondent is a restaurant located at 7658 Park Boulevard in Pinellas Park, Florida, holding Permanent Food Service license number 6210970. The Respondent is co-owned by Jeff Donato and Travis McHenry.

3. On July 28, 2003, an employee of the Petitioner performed a routine inspection of the Respondent and found numerous violations of applicable Food Code regulations. The violations were noted in a four-page written report. The inspector provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for August 28, 2003.

4. On August 29, 2003, the Petitioner’s employee

   
   

   re-inspected the Respondent and determined that although many of the violations had been remedied, some of the violations remained uncorrected. The continuing violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection.

5. On September 26, 2003, the Petitioner filed an Administrative Complaint against the Respondent, alleging the various continuing and uncorrected violations identified during the inspections.

6. During the inspections on July 28 and August 29, 2003, there were no disposable hand towels located at the hand sink in the kitchen area, and no other hand-drying system was present. Food Code Rule 6-301.12 requires that each hand-washing lavatory or group of adjacent lavatories be provided with individual disposable towels, a continuous towel system that supplies a user with a clean towel, or a heated-air hand-drying device.

7. During the inspections on July 28 and August 29, 2003, the hand sink located in the dishwashing room was covered with plastic wrap and not available for use by employees. Food Code Rules 6-401.10 and 6-401.11 require that hand-washing facilities be located so as to permit convenient use by employees in food preparation, food dispensing and ware-washing areas.

8. The violations related to hand washing and drying were described by the Petitioner's inspector as "critical," because proper hand washing and drying is required to prevent "cross- contamination of bacteria and viruses."

9. During the inspections on July 28 and August 29, 2003, there were no shields on light bulbs in the walk-in cooler and freezer. Food Code Rule 6-202.11 requires that light bulbs be

   shielded, coated, or otherwise shatter-resistant in areas where there is exposed food, clean equipment, utensils and linens, or unwrapped "single-service and single-use articles."

10. During the inspections on July 28 and August 29, 2003, there was a visible build-up of grease on ceiling tiles located near food fryers. Food grease provides fuel for fire and poses a fire hazard. Florida Administrative Code Rule 61C-1.004(6) requires that all building structural components, attachments, and fixtures shall be kept in good repair, clean, and free of obstructions.

11. During the inspections on July 28 and August 29, 2003, the inspector observed a dish-room exit light that was without signage. Exit signs must be maintained for public and employee safety. Florida Administrative Code Rule 61C-1.004(10) requires that adequate means of exit from the facility must be provided, and all exits must be clearly marked with approved illuminated exit signs.

12. During the inspections on July 28 and August 29, 2003, the inspector noted that there was no backflow prevention device on the hose bib in the kitchen area and dish-room. Food Code Rule 5-402.11 requires prevention of backflow between sewage systems and food-related equipment, and requires installation of a device to prevent the flow of waste materials into a potable water supply.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57, Fla. Stat. (2003).

14. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Chapter 509, Fla. Stat. (2003). The Petitioner has adopted by incorporation the various provisions of the Food Code referenced herein. Fla. Admin. Code R. 61C-4.010(1).

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 Administrative Complaint sets forth the allegations identified in the preceding Findings of Fact. The Petitioner in its proposed recommended order dismissed an additional allegation related to a broken window.

17. Based on comparison of the July 28 inspection report and the August 29 re-inspection report, it is clear that a substantial number of critical food-safety violations were addressed prior to the re-inspection, but that some problems remained at the time of the re-inspection. The continuing violations are addressed in the preceding Findings of Fact.

18. At the hearing, the Respondent asserted that after the July 28 inspection, they prioritized the four-page list of violations and began to remedy those that they believed were the most serious, including problems with improper food storage temperatures and cleanliness. Light shields were ordered, but had not arrived by the time of the August re-inspection. A backflow device was installed, but not at the proper location.

19. Subsection 509.261(1), Florida Statutes (2003), 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 by suspension, revocation, or refusal of a license.

20. At the hearing, the Petitioner offered for purposes of penalty aggravation, a Stipulation and Consent Order entered into by the parties related to a prior complaint. The Order addresses a previous Administrative Complaint alleging lack of a certified food manager that was filed by the Petitioner against the Respondent. The Order states that the Respondent neither admitted nor denied the allegation. The Order imposed a penalty of $350 and attendance at a hospitality-training program.

21. In this case, the Petitioner is seeking a fine of

$2,400. Based on the evidence presented at the hearing, the

Respondent is guilty of six separate violations of applicable standards (no towels, blocked sink, unshielded light bulbs, visible grease build-up, improperly marked fire exit, and lack of backflow device), each of which could result in a fine of

$1,000. There is no evidence that the penalty sought by the Petitioner is inappropriate according to the range set forth in

the statute.

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

$2,400 against the Respondent.

DONE AND ENTERED this 28th day of July, 2004, in Tallahassee, Leon County, Florida.

S

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 28th day of July, 2004.

COPIES FURNISHED:

Travis McHenry Jeff Donato

7658 Park Boulevard

Pinellas Park, Florida 33781

Tonya Chavis, Esquire

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Leon Biegalski, 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: 04-001363

Orders for Case No: 04-001363