STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 05-2845

) LA SEGUNDA BODEGITA DEL MEDIO, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on October 12, 2005, by video teleconference at sites in Miami and Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

On January 24, 2005, Petitioner issued an Administrative Complaint against Respondent alleging that on December 6, 2004, and January 11, 2005, Respondent was in violation of specified statutes and rules.1 These alleged violations were in six separately-numbered paragraphs. In paragraph 1, Petitioner alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(1) based on its violation of Section 5-202.12 of the Food Code (no hot water under pressure to the toilet room handsink). In paragraph 2, Petitioner alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(1) based on its violation of Section 5-203.14 of the Food Code (no backflow preventer on hose bibb over mop sink). In paragraph 3, Petitioner alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(1) based on its violation of Section 6-304.11 of the Food Code (toilet room mechanical ventilation not functioning). In paragraph 4 Petitioner alleged that Respondent was in violation of Florida Administrative Code Rule 61C-1.002(5)(b) (failure to submit plans that would change the establishment’s seating capacity). In paragraph 5,

Petitioner alleged that Respondent was in violation of Section 509.039, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) (no proof of food manager certification). In paragraph 6, Petitioner alleged that Respondent was in violation of Section 509.049, Florida Statutes (no proof of required employee training).

By Election of Rights form dated February 12, 2005, Respondent requested a formal administrative hearing to challenge the alleged violations, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of its inspector, Pedro Ynigo, and offered three exhibits, each of which was admitted into evidence. Respondent did not appear at the final hearing. The Transcript of the hearing (consisting of one volume) was filed with DOAH on November 2, 2005

On November 2, 2005, the undersigned entered an order reflecting that a representative of Respondent had contacted the undersigned’s assistant and ordering Respondent to show cause by close of business on November 18, 2005, why the undersigned should not enter a Recommended Order based on the final hearing conducted October 12, 2005. The Order Requiring Response entered November 2, 2005, included the following:

Pursuant to notice, a final hearing was conducted by video teleconference between Miami and Tallahassee, Florida, on

October 12, 2005. Petitioner appeared at the final hearing and presented its case. No appearance was made by Respondent. The hearing convened at approximately 9:20 a.m. and ended at approximately 10:30 a.m.

During the afternoon of October 12, 2005, a representative of Respondent contacted the undersigned’s assistant and stated that Respondent missed the hearing because the owner of Respondent thought the hearing was suppose to start at 2:00 p.m.

* * *

. . . Respondent shall have until close of business on November 18, 2005, to show cause why the undersigned should not enter a Recommended Order based on the evidence presented by Petitioner at the final hearing conducted October 12, 2005. Failure to show cause will result in the entry of a Recommended Order based on the evidence presented by Petitioner at the final hearing conducted October 12, 2005. This is a filing deadline, not a mailing deadline.

Respondent did not respond to the Order Requiring Response entered November 2, 2005. On November 29, 2005, the undersigned entered an Order Setting Deadline For Filing Proposed Recommended Orders, which included the following:

Respondent has filed no response to the Order entered November 2, 2005. The premises considered, it is ORDERED that the deadline for the filing of proposed recommended orders in this proceeding is hereby established as being the close of business on December 9, 2005.

On December 9, 2005, a representative of Respondent sent the undersigned a letter that requested more time and enclosed what appeared to be a certificate issued to its food manager

that was dated after the second inspection. This letter does not specify the reason Respondent wants more time nor does it state any justification for that request. Respondent has had adequate time to move to reopen the proceedings and/or to file its proposed recommended order. Respondent’s request for additional time, presumably to submit its proposed recommended order, has been denied by separate order.

Petitioner has filed its Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330047. Respondent’s license authorizes Respondent to operate a public food service establishment known as La Segunda Bodegita del Medio at 833 Southwest 29th Avenue, Unit 3, Miami, Florida 33135 (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2

2. At all times material hereto, Pedro Ynigo was an experienced and appropriately trained investigator employed by Petitioner as a Senior Sanitation and Safety Specialist.

   Mr. Ynigo’s job responsibilities included the inspection of

   public food service establishments for compliance with pertinent rules and statutes.

3. Mr. Ynigo performed two routine inspections of Respondent’s establishment during the times material to this proceeding. The initial inspection was on December 6, 2004. The follow-up inspection was on January 11, 2005.

4. The initial inspection listed a series of violations and gave Respondent until January 6, 2005,3 to correct each deficiency.

5. The follow-up inspection determined that the following deficiencies, which had been cited in the initial inspection, had not been corrected. Each violation is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non-critical violation is one that does not rise to the level of a critical violation.

6. Petitioner established that on January 11, 2005, Respondent was guilty of three critical violations and three non-critical violations.

7. The three critical violations were as follows:

   
   

   1. Respondent’s food manager did not have a food management certificate. At the times of the inspections, Respondent’s food managers were Ormundo and Claudia Roque. Neither Mr. or Mrs. Roque had received a food management certificate. The failure of Respondent’s food managers

      to have his or her food management certificate constituted a violation of Section 509.039, Florida Statutes, and Florida Administrative Code Rule 61C- 4.023(1) as alleged in Paragraph 5 of Petitioner’s Administrative Complaint.

   2. Respondent could not provide proof that its employees had undergone training. This inability to produce proof of employee training constituted a violation of Section 509.049, Florida Statutes, as alleged in Paragraph 6 of Petitioner’s Administrative Complaint.

   3. Respondent’s facility had no hot water in the toilet room hand sink. The lack of hot water in the toilet room sink constituted a violation of Section 5-

      202.12 of the Food Code, as alleged by Paragraph 1, of Petitioner’s Administrative Complaint.

      
      

8. The three non-critical violations were as follows:

   
   

   1. There was no backflow preventer on the hose bibb over the mop sink. The failure to have the required backflow preventer constituted a violation of Section 5-203.14 of the Food Code as alleged by Paragraph 2 of Petitioner’s Administrative Code.

   2. The mechanical ventilation in the toilet room was not functioning. The absence of required ventilation in the toilet room constituted a violation of Florida Administrative Code 6-304.11, as alleged in Paragraph 3 of Petitioner’s Administrative Complaint.

   3. Respondent had constructed an additional seating area in its facility without submitting plans for the additional seating to Petitioner for its review. The failure to submit the plans constituted a violation of Florida Administrative Code 61C-1.002(5)(B) as alleged in Paragraph 4 of Petitioner’s Administrative Complaint.

      CONCLUSIONS OF LAW

      
      

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

10. Petitioner has been statutorily delegated the authority to "carry out all of the provisions of [Chapter 509, Florida Statutes] and all other laws relating to the inspection or regulation of . . . public food service establishments for the purpose of safeguarding the public health, safety, and welfare." § 509.032, Fla. Stat.

11. Each "public food service establishment" must have a license from Petitioner prior to the commencement of operation.

    § 509.241, Fla. Stat.

    
    

12. Section 509.26(1), Florida Statutes, provides that any public food services establishment that has operated or is operating in violation of Chapter 509, Florida Statutes, or the rules promulgated thereunder, is subject to license revocation; license suspension; imposition of administrative fines not to exceed $1,000.00 per offense; and mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program (established pursuant to Section 509.302, Florida Statutes).

13. Petitioner bears the burden of proving that the licensee committed the violations alleged 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 Company, 670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of Central Florida v. Department of

    Business Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992); and Section 120.57(1)(j), Florida Statutes.

14. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed each of the violations alleged in paragraphs 1 through 6 of the Administrative Complaint. Accordingly, disciplinary action may be taken against Respondent pursuant to Section 509.261, Florida Statutes.

15. No disciplinary guidelines have been referenced by Petitioner. The recommended penalty set forth below for the violations established by Petitioner was taken from the Petitioner’s Proposed Recommended Order. The amount of the administrative fine urged by Petitioner is adopted because the total amount is substantially below the maximum Petitioner is authorized to impose and appears to be reasonable under the circumstances of this case.4

RECOMMENDATION

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

RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in paragraphs 1 through 6; disciplining Respondent for those violations by imposing a fine in the total amount of $2,600.00; and requiring Respondent's majority owner to attend, at his or her own expense, an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 9th day of January, 2006.

ENDNOTES

1/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (2005). All references to the Florida Administrative Code are to the version of the Florida Administrative Code as of the date of this Recommended Order.

References to the Food Code are to the 1999 Food Code Recommendations of the United States Public Health Service, which has been incorporated by Petitioner as a rule by Florida Administrative Code Rule 61C-1.004(5). Petitioner’s Administrative Complaint sets forth verbatim the applicable portions of the statues and rules Respondent has allegedly violated. Those statutes and rules are incorporated herein by reference.

2/ A "public food service establishment," as that term is used in Chapter 509, Florida Statutes, is defined in Section 509.013(5)(a), Florida Statutes, as follows:

"Public food service establishment" means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.

3/ The Food Service Inspection Report prepared by Mr. Ynigo following his inspection contains a scrivener’s error reflecting a correction deadline of January 6, 2004.

4/ Petitioner recommended an administrative fine in the total amount of $2,600.00 without allocating any particular sum to any particular violation. The undersigned’s recommended penalty is based on a fine in the amount of $1,000.00 for the most serious critical violation (paragraph 5), $500.00 each for the other two critical violations (paragraphs 6 and 1) and $200.00 per violation for each of the non-critical violations (paragraphs 2, 3, and 4).

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Claudia Roque

La Segunda Bogedita De Medio, Inc. 833 Southwest 29th Avenue, Suite 3

Miami, Florida 33135

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, 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: 05-002845

Orders for Case No: 05-002845