STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

BACCO'S RISTORANTE ITALIANO,

Respondent.

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) Case No. 05-0612

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RECOMMENDED ORDER

Pursuant to notice and in accordance with Section 120.57, Florida Statutes (2004), a formal hearing was held in this case on April 27, 2005, in Sarasota, Florida, before Fred L. Buckine, the 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, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Andrea Posani, pro se

23 North Lemon Avenue Sarasota, Florida 34236

STATEMENT OF THE ISSUES

This issues in this proceeding are whether Respondent, in violation of Chapter 509, Florida Statutes (2004), committed acts alleged in the Administrative Complaint dated April 16, 2004, and, if so, what disciplinary action should be taken against the license held by Respondent.

PRELIMINARY STATEMENT

On April 16, 2004, Petitioner filed an Administrative Complaint, DBPR Case No. 2004023405, against Respondent alleging violations of Chapter 509, Florida Statutes (2004), and rules promulgated thereto. Respondent timely disputed the allegations and petitioned for a formal administrative hearing involving disputed issues of material fact.

On February 22, 2005, this case was referred to the Division of Administrative Hearings.

On March 7, 2005, the Notice of Hearing, scheduling the final hearing for April 27, 2005, was entered.

On April 25, 2005, Respondent filed its motion for continuance, and said motion was denied by Order of April 26, 2005.

At the hearing on April 27, 2005, Petitioner presented the testimony of one witness, Daniel Erdman, deputy district manager, and introduced four exhibits (Petitioner's Exhibits 1 through 4) into evidence. Respondent presented the testimony of

two witnesses, Claudia Zecchin-Moschini and Andrea Posani, and offered one exhibit (Respondent's Exhibit 1) into evidence.

Petitioner's request for judicial notice of Subsection 509.032(6) and Section 509.049, Florida Statutes (2004); Florida Administrative Code Rules 61C-1.001, 61C-1.004(1), and 61C- 4.010(6); and Sections 5-202.12, 5-202.12, 5-204.11, and 6-

1. of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3, and 61C-4, was granted.

   The parties were given 15 days after the filing of the transcript to submit post-hearing submittals. The one-volume Transcript was filed with the Division of Administrative Hearings on May 13, 2005. Petitioner filed its Proposed Recommended Order on May 25, 2005, which has been considered in the preparation of this Recommended Order. Respondent has not filed a proposal as of the date of this Recommended Order.

   FINDINGS OF FACT

   
   

   Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made during the final hearing, and the entire record compiled herein, the following relevant and material facts are found:

   1. At all times material hereto, Respondent, Bacco's Restorante Italliano, a food service and eating establishment, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 6804773-R, type 2010, a Permanent Food Service license.

   2. Respondent's facility is located at 23 North Lemon Avenue, Sarasota, Florida. Andrea Posani testified that he was a "party of interest" in the proceeding because he had a financial interest in Bacco's Restorante Italliano, a food service and eating establishment, and he possessed authority to speak on behalf of (and represent) Respondent, Bacco's Restorante Italliano, licensee.

   3. Petitioner's witness, Daniel Erdman, deputy district manager (for three months) and senior sanitation safety specialist for the preceding five years (1999 through 2004) in Manatee and Sarasota counties, earned his Bachelor of Science degree from Florida State University with a major in hospitality administration. Mr. Erdman conducts more than 1,500 inspections annually.

   4. Mr. Erdman described a "critical violation" in the food business as violation of any of the Florida Statutes, the Florida Administrative Code rules, and the Food Code, that "has more of a potential for food borne ailments."

   5. Mr. Erdman has been Petitioner's inspector of Respondent's business for more than four years in both locations, first, on Main Street and, now, on Lemon Street, in Sarasota, Florida.

   6. Mr. Erdman, on March 1, 2004, inspected Respondent's business, noted violations on DBPR Form HR 5022-014 that was signed by Mr. Erdman and Claudia Zecchin-Moschini (Claudia Zecchin at the time of signing), and a copy was given to

      Ms. Zecchin-Moschini. Thereon was the "callback date/time that informs Respondent of both the time to correct noted violation(s) and the inspection return date.

   7. The Administrative Compliant alleged the following critical violations of Chapter 509, Florida Statutes (2003), Florida Administrative Code, and/or rules of the Division of Hotels and Restaurants noted during the March 1, 2004, inspection:

      1. 27-22 5-202.12 FC Handwashing Facility, Installation. (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least . . . (110 degrees Fahrenheit) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory. (C) A self-closing, slow-closing, or metering faucet shall provide a flow of water for at lease 15 seconds without the need to reactivate the faucet. (D) An automatic handwashing facility shall be installed in accordance with manufacturer's instructions. Observed no cold water provided at handsink (Bar)

         2. 31-10 5-204.11 & 6-401.10 FC

         Handwashing Facility. Conveniently Located. A handwashing facility shall be located:

         (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (B) in, or immediately adjacent to, toilet rooms. Observed missing handsink at dishwashing machine/cold prep area (removed)

         
         

         3. 31-10 5-204.11 & 6-401.10 FC

         Handwashing Facility. Conveniently Located. A hadwashing facility shall be located:

         (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (b) in, or immediately adjacent to, toilet rooms. Observed no handsink provided in prep area, bread station service area in dining room without a handwashing sink. Bread station

         was removed from dining room on 3.15.2004 on reinspection evidence of bread station observed on 4.02.04

         
         

         4. 53B-01 509.049 FS Food Service Employee Training. The Division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishment regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the Division. Any food safety training program established and administered to food handler employees prior to the effective date of this act shall be submitted by the operator to the Division for its review and approval. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may

         designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification pursuant to this section by January 1, 2001. Food service employees hired after November 1, 2000, must received certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years.

         Observed no proof or required employee training 11 employees over 60 days employed (Reihou, Terrence, Paolo) [Emphasis added]

         
         

   8. Mr. Erdman, on March 15, 2004, returned and inspected the facility, finding violations 27-22, 31-10, and 45-14. These violations were granted time extension for correction to

      April 2, 2004.

      
      

   9. Mr. Erdman returned on April 2, 2004, and inspected the facility, identifying seven violations (two 27-22s, three 31- 10s, and two 53B-01s). During this reinspection, Mr. Erdman entered, in the comment section of his inspection report "note plumber scheduled for sink installation, water to bar tomorrow. Employee food safety training booklets ordered [training not completed]. Bread baskets, plated [sic], bread warmer, crumbs etc. observed in dining area/no hand sink provided." This report was not a warning as were the prior inspection reports; this report recommended filing of an administrative complaint.

   10. Respondent's witness, Ms. Zecchin-Moschini, when asked by Respondent, could not recall circumstances pertaining to each alleged violation. Her answers, on both direct and cross

       examinations, consisted primarily of "I don't remember," on four separate occasions. "I don't remember" is the answer given when Ms. Zecchin-Moschini was asked about the location of the sink and the present location of the beer cooler. This witness acknowledged that she did not have food management training:

       Yes, I don't have the training for these people. They were being coming from another restaurant, working there for a couple years, and I didn't ask them if they have any. I never got it. The only one that was there was Paolo that he didn't have.

       
       

   11. Mr. Posani admitted having no personal knowledge of the sink location violation and having no personal knowledge regarding the food management training violations for three of his employees. The record was left open for ten days for post- hearing submission of documentation of training, and none was submitted at the entry of this Recommended Order.

   12. Mr. Posani offered no credible and material evidence that could be considered a legal challenge to violations itemized in the Administrative Complaint and established by Respondent's witness' unrefuted testimony and exhibits in evidence.

   13. Petitioner proved, by clear and convincing evidence, each specific allegation against Respondent contained in the Administrative Complaint filed in this cause.

   14. Petitioner's compliance with cited Florida Statutes and cited rules of the Florida Administrative Code permits the imposition of penalty against Respondent for violations hereinabove found.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2004).

   16. Petitioner is the state agency charged with regulating public lodging establishments and public food service establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes (2004).

   17. Subsections 509.261(1) and (2), Florida Statutes (2004), provide that:

       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.

       2. For the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a "critical law or rule," as that term is defined by rule.

       
       

   18. Petitioner has the burden of proving, by clear and convincing evidence, the allegations against Respondent contained in the Administrative Complaint filed in the cause.

       § 120.57(1), Fla. Stat. (2004); Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In

       Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court provided guidance to the clear and convincing evidence standard:

       [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered, the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

   19. Petitioner proved by clear, convincing, and unrefuted testimony of its witness, Mr. Erdman, each and every allegation contained in the Administrative Complaint filed in this cause.

   20. Petitioner shall adopt rules as are necessary to carry out the provisions of Chapter 509, Florida Statutes (2004).

       Florida Administrative Code Rule 61C-1.001, in pertinent part, provides:

       Except when otherwise defined in this rule, the definitions provided in paragraph 1-201.10(B), Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug

       Administration, the 2001 Food Code Errata Sheet (August 23, 2002), and Supplement to the 2001 FDA Food Code (August 29, 2003), herein adopted by reference, shall apply to Chapters 61C-1, 61C-3 and 61C-4, F.A.C. In addition, the following definitions apply to Chapters 61C-1, 61C-3 and 61C-4, F.A.C.

       
       

   21. The licensee shall comply with both applicable state statutes and administrative rules implementing authority granted in state statutes.

   22. Subsections 509.049(5) and (8), Florida Statutes (2004), in pertinent part, provide:

       (5) It shall be the duty of each public food service establishment to provide training in accordance with the described rule to all food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within

       60 days after employment. Certification pursuant to this section shall remain valid for 3 years. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the

       training occurred, and the approved food safety-training program used.

       
       

       * * *

       
       

       1. The following are violations for which the division may impose administrative fines of up to $1,000 on a public food service establishment, or suspend or revoke the approval of a particular provider's use of a food safety-training program:

          
          

          1. Failure of a public food service establishment to provide proof of training pursuant to subsection (5) upon request by the division or an original certificate to the division when required pursuant to paragraph (6)(a).

          2. Failure of a third-party provider to submit required records pursuant to paragraph (6)(b) or to provide original certificates or cards to a public food service establishment or employee pursuant to paragraph (6)(a).

       
       

   23. Section 5-204.11 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3 and 61C-4, in pertinent part, provides:

       1. To allow convenient use by EMPLOYEES in FOOD preparation, FOOD dispensing, and WAREWASHING areas; and

          
          

       2. In, or immediately adjacent to, toilet rooms.

       
       

   24. Section 6-401.10 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3 and 61C-4, in pertinent part, provides:

       Hand washing facilities shall be conveniently located as specified under 5- 204.11

   25. Section 5-202.12 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3 and 61C-4, in pertinent part, provides:

       1. Hand washing lavatory shall be equipped to provide water at a temperature of at least (100F) through a mixing valve or combination faucet.

          
          

       2. A stream-mixing valve may not be used at a hand-washing lavatory.

          
          

       3. A self-closing, slow-closing, or metering faucet shall provide a flow of water for at least 15 seconds without the need to reactivate the faucet.

          
          

       4. An automatic hand washing facility shall be installed in accordance with manufactures' instructions.

       
       

   26. Petitioner clearly and convincingly proved, through unrefuted testimony of Mr. Erdman, that Respondent, after warning and time for correction, employed three food manager individuals who were not, as required, certified food managers, in violation of Subsection 509.049(5), Florida Statutes (2004).

   27. Petitioner, clearly and convincingly proved, through unrefuted testimony of Mr. Erdman, that Respondent, after warning and time for correction, failed to have a hand sink in the dishwashing and cold preparation area in violation of Sections 5-204.11 and 6-401.10 of the Food Code.

   28. Petitioner, clearly and convincingly proved, through unrefuted testimony of Mr. Erdman, that Respondent, after

       warning and time for correction, failed to provide a hand sink by a bread station service area located in the dining room in violation of Sections 5-204.11 and 6-401.10 of the Food Code.

   29. Petitioner, clearly and convincingly proved, through unrefuted testimony of Mr. Erdman that Respondent, after warning and time for correction, failed to have cold water at the sink located behind the bar, in violation of Section 5-202.12 of the Food Code.

   30. For the violations above found, the appropriate penalty to be imposed should not exceed $250.00 per violation.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order:

1. Finding Respondent guilty of violating Subsection 509.049(5), Florida Statutes (2004), and Sections 5-202.12, 5-204.11, and 6-401.10 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3, and 61C-4; and

2. Imposing an administrative penalty in the amount of

$250.00 per violation for a total penalty amount of $1,000.00, due and payable to: Division of Hotels and Restaurants,

1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk.

DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 5th day of July, 2005.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Andrea Posani

23 North Lemon Avenue Sarasota, Florida 34236

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Leon Biegalski, 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: 05-000612

Orders for Case No: 05-000612