STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

AMERICAN TABLE FAMILY RESTAURANT,

Respondent.

)

)

)

)

)

)

)

) Case No. 04-1364

)

)

)

)

)

)

RECOMMENDED ORDER

On June 8, 2004, a final hearing in this case was held in St. Petersburg, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William M. McCalister,

Qualified Representative Charles F. Tunnicliff, Esquire Department of Business

and Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Fadil Rexhepi, pro se

7924 Ulmerton Road

Largo, Florida 33771

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 August 28, 2003, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), alleges that American Table Family Restaurant (Respondent), a restaurant owned and operated by Fadil Rexhepi, was found to be in violation of various specified 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 3 admitted into evidence. Fadil Rexhepi testified on behalf of the Respondent.

The one-volume Transcript of the hearing was filed on June 21, 2004. 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 (2003).

2. The Respondent is a restaurant located at 7924 Ulmerton Road in Largo, Florida, holding Permanent Food Service License No. 6213580. Fadil Rexhepi owns and operates the restaurant.

3. On April 25, 2003, an employee representing the Petitioner performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a 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 May 30, 2003.

4. On May 30, 2003, the Petitioner’s employee re-inspected the Respondent and determined that some of the violations remained uncorrected. The 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. The owner of the restaurant was not present during either inspection.

6. On August 28, 2003, the Petitioner filed an Administrative Complaint against the Respondent, alleging

   various continuing and uncorrected violations identified during the inspections.

7. During the inspections on April 25, 2003, and May 30, 2003, food stored in reach-in units was not being maintained at an appropriate temperature of 41 degrees or below. The required storage temperature is intended to prevent development of toxic microorganisms that can result in food safety issues for persons consuming improperly stored food. On April 25, 2003, the inspector found that the temperature of meats, fish, poultry, meatloaf, and milk stored in the units ranged from 46 to 49 degrees. On May 30, 2003, the inspector found that the food temperatures in the same units ranged from 43 to 56 degrees.

8. During the inspections on April 25, 2003, and May 30, 2003, two refrigeration units were not maintaining a proper temperature of 41 degrees or below.

9. During the inspections on April 25, 2003, and May 30, 2003, the inspector noted that the thermal glass in a reach-in unit door was broken. The broken thermal glass results in inability to maintain proper temperatures.

10. During the inspections on April 25, 2003, and May 30, 2003, the Respondent was unable to provide, at the request of the Petitioner's inspector, documentation that employees had completed food safety training. The purpose of food safety

    training is to permit employees to perform their duties in a manner consistent with the requirements of the Food Code.

11. The Food Code regulation violations identified herein pose a direct threat to public safety.

    CONCLUSIONS OF LAW

    
    

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

13. 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.

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. Food Code Rule 3-501.12 requires that potentially hazardous food must be maintained at a temperature of 41 degrees or less. The evidence establishes that on the dates of the inspections, food (meat, fish, poultry, meatloaf, and milk- products) located in two of the Respondent's refrigeration units were not being stored at an appropriate temperature.

16. Food Code Rule 4-301.11 requires that refrigeration units be sufficient to maintain the specified food temperatures. The evidence establishes that on the dates of the inspections, two of the Respondent's refrigeration units were not maintaining the appropriate temperature.

17. The Administrative Complaint cites Food Code

    
    

    Rule 4-202.11 as grounds for the charge related to the broken thermal glass door on a reach-in unit. Review of the rule indicates that the rule relates to and requires that "food- contact surfaces" be free of breaks. There is no evidence that the thermal door is a "food-contact surface."

18. Florida Administrative Code Rule 61C-4.023(4) requires that food service employees must receive training on professional hygiene and food-borne disease prevention, as well as in food handling, holding and storage. The rule also requires that a licensee provide, upon request of the Petitioner, information about the training provided to employees. The evidence establishes that at the time of both inspections, the person in charge of the restaurant was unable to provide, upon request of the inspector, information about the food safety training provided to restaurant employees.

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. The Petitioner is seeking a fine of $2,000 in this case. The evidence establishes that the Respondent failed to comply with Food Code regulations related to safe storage and handling of food. The lack of proper storage and improper food handling can result in development of toxic microorganisms, which poses a direct threat to public safety. 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 $2,000 against the Respondent.

DONE AND ENTERED this 16th 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 16th day of July, 2004.

COPIES FURNISHED:

William M. McCalister, Qualified Representative Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Fadil Rexhepi

7924 Ulmerton Road

Largo, Florida 33771

Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 04-001364

Orders for Case No: 04-001364