STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

O'NEIL'S OF BOSTON,

Respondent.

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) Case No. 05-2761

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 21, 2005, in Orlando, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: John M. O'Neil, pro se

O'Neil of Boston

2849 South Orange Avenue, Suite 310

Orlando, Florida 32806

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Administrative Complaint dated December 22, 2004, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 22, 2004, Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department), charged that, on October 11, 2004; October 29, 2004; and November 16, 2004, Respondent, O'Neil's of Boston, a licensed restaurant, was found to be in violation of several statutes, rules, and regulations governing public food service establishments in Florida. Respondent was charged with a violation of Section 509.039, Florida Statutes (2004), and Florida Administrative Code Rule 61C-4.023(1), based on the allegation that the restaurant manager had no proof of food manager certification; a violation of Florida Administrative Code Rule 61C-4.023(4)(a), based on the allegation that no proof of employee training was available; and a violation of the National Fire Protection Association Life Safety Code 10, 4-4.1, based on the allegation that a fire extinguisher was on the premises that was tagged August 2003 (had not had maintenance in more than one year).

Respondent timely disputed the facts alleged in the Administrative Complaint and requested an administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings on July 28, 2005, for assignment of an Administrative Law Judge. An Initial Order was sent to both parties on July 29, 2005. Pursuant to Notice, a final hearing was conducted on September 21, 2005.

At the hearing, the Department presented the testimony of Will Goris, a sanitation and safety inspector employed by the Department, and the Department's Exhibits 1 through 5 were offered and received into evidence. Respondent presented the testimony of John O'Neil, the restaurant owner. Respondent offered no exhibits into evidence. Pursuant to the Department's request, official recognition was taken of Florida Administrative Code Rules 61C-4.023(1) and 61C-4.023(4)(a); Section 509.039, Florida Statutes (2004); and National Fire Protection Association Life Safety Code 10, 4-4.1.

The one-volume Transcript of the proceedings was filed with the Division of Administrative Hearings on November 3, 2005.

The Department timely filed its Proposed Recommended Order November 14, 2005; Respondent filed a one-page letter on October 14, 2005. Both parties' proposals have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. See § 509.032, Fla. Stat. (2004).

2. Respondent is a food service establishment licensed and regulated by the Department.

3. On October 11, 2004, Will Goris, a sanitation and safety specialist employed by the Department, inspected the premises of Respondent.

4. During the inspection, Mr. Goris noted that, among other things, "the manager had no proof of food manager certification," "observed no proof of employee training available," and "the fire extinguisher in the rear storage area was tagged 8/03." Mr. Goris prepared a Food Service Inspection Report setting forth his findings.

5. It is Mr. Goris' practice to go over the contents of the report with the manager of the food service establishment and to allow the establishment time to correct any violations. He normally re-inspects the establishment within two weeks to

   30 days of the initial inspection, and, if he finds that measures have been taken to correct the violations, he gives the

   establishment an extension of time in which to complete the corrections.

6. Mr. Goris re-inspected the premises of Respondent on October 29, 2004, and found that the establishment had not corrected three of the violations noted during the October 11, 2004, inspection. First, Respondent's food service manager did not have a current certificate. Second, Respondent did not provide proof that its employees had received food safety training. Finally, the fire extinguisher had not received current maintenance.

7. When Mr. Goris returned on November 16, 2004, while the fire extinguisher problem had been corrected, the other two deficiencies were present.

8. John O'Neil acknowledged the deficiencies and offered plausible excuses for each. For example, attempts were made to enroll in the food manager's certification course but classes were filled during the relevant times. Mr. O'Neil believed that he had been given an extension by Mr. Goris. Mr. Goris denied this, but recalled having called a supervisor during one inspection visit to discuss an extension.

9. Mr. O'Neil's failure to immediately correct the noted deficiencies may have been a result of a misunderstanding regarding the time he had to accomplish the task.

   Notwithstanding the noted violations, Respondent is a well- maintained establishment.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).

11. In the Administrative Complaint, the Department seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, the Department must prove the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. Section 509.039, Florida Statutes (2004), provides in pertinent part:

    It is the duty of the division to adopt, by rule, food safety protection standards for the training and certification of all food service managers who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. The standards adopted by the division shall be consistent with the Standards for Accreditation of Food Protection Manager Certification Programs adopted by the Conference for Food Protection. These standards are to be

    adopted by the division to ensure that, upon successfully passing a test, approved by the Conference for Food Protection, a manager of a food service establishment shall have demonstrated a knowledge of basic food protection practices. . . . All managers employed by a food service establishment must have passed an approved test and received a certificate attesting thereto.

    
    

13. Florida Administrative Code Rule 61C-4.023(1) provides in pertinent part:

    All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted in this chapter. Those managers who successfully pass an approved certification examination shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. . . .

    
    

14. Section 509.049, Florida Statutes (2004), provides in pertinent part:

    1. 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 establishments 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.

       
       

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       (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.

       
       

15. Florida Administrative Code Rule 61C-4.023(4) provides:

    Public Food Service Employee Training.

    
    

    1. All public food service employees must receive training on professional hygiene and foodborne disease prevention. Professional hygiene includes personal cleanliness and hygienic practices in accordance with the Food Code and techniques to prevent cross contamination. Foodborne disease prevention training must include the types and causes of foodborne illness, identification of potentially hazardous food, and how to control or eliminate

       harmful bacteria in a food service establishment.

    2. Public food service employees must receive training which relates to their assigned duties. Employees who prepare foods must be knowledgeable about safe methods of thawing, cooking, cooling, handling, holding and storing foods. Service personnel must be knowledgeable about safe methods of serving food.

       Employees who clean equipment and facilities must be knowledgeable about proper cleaning and sanitization methods. Employees responsible for maintaining the premises must be knowledgeable about proper vermin control methods as specified in the Food Code.

    3. Licensees who provide in-house employee training shall make available on the premises of the establishment, or in a theme park or entertainment complex in a central location, upon the division's request, the curriculum and materials used to conduct training. If training is obtained from an outside provider, the licensee must provide, upon the division's request, information about the selected training program and methods used to evaluate training outcomes. Training outcomes include employees correctly applying procedures and answering questions relative to assigned duties. Employees must perform their work duties safely in a manner consistent with the requirements of the Food Code.

    
    

    While the Administrative Complaint cites "61C-4.023(4)(A) FAC" as the authority for the alleged violation, the specific violation is articulated as "observed no proof of employee training available." It would appear that this is a violation of subsection (c) of the same Florida Administrative Code rule. The evidence revealed that Respondent, as a practical matter,

    was fully aware of the actual violation alleged. It is unclear whether appropriate employee training had occurred, but evident that proper documentation was not available to the inspector.

16. National Fire Protection Association Life Safety Code 10, 4-4.1, reads, as follows: "Extinguishers shall be subjected to maintenance, not more than one year apart."

17. Based on the findings of fact herein, the Department has proven by clear and convincing evidence that Respondent violated Section 509.039, Florida Statutes (2004), and Florida Administrative Code Rule 61C-4.023(1) because it did not employ a certified food protection manager and did not provide proof of employee food safety training at the time of the inspections. In addition, the fire extinguisher in question was out-of- maintenance, having last been inspected in August 2003, more than 12 months before the inspections.

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 finding that Respondent violated Section 509.039, Florida Statutes (2004); Florida Administrative Code Rule 61C-4.023(1); and National Fire Protection Association Life Safety Code 10, 4-4.1, and imposing a fine in the total amount of $250.00.

DONE AND ENTERED this 1st day of December, 2005, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 1st day of December, 2005.

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

John M. O'Neil O'Neil of Boston

2849 South Orange Avenue, Suite 310

Orlando, Florida 32806

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Josefina Tamayo, 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: 05-002761

Orders for Case No: 05-002761