STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 05-2887

)

GOLDEN CORRAL CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on December 2, 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: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Stephen Hahn, pro se

Golden Corral Corp. 7333 Coral Way

Miami, Florida 33065

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On July 22, 2005, Petitioner issued an Administrative Complaint against Respondent’s restaurant located at 9045 Pines Boulevard, Pembroke Pines, Florida, alleging that on June 16, 2005, Respondent was in violation of Section 2-301.14 of the Food Code, which has been duly adopted as a rule as authorized by statute.1 That alleged violation, which pertains to hand- washing requirements prior to an employee handling food or equipment, is the only violation at issue in this proceeding.

By Election of Rights form dated August 1, 2005, Respondent requested a formal administrative hearing to challenge the alleged violation; the matter was referred to DOAH; and this proceeding followed.

At the final hearing, Petitioner presented the testimony of its inspector, Walter Denis, and offered two Exhibits, which were admitted into evidence. Respondent presented the testimony of Mike Kamali, the general manager of the subject restaurant.

At the request of Petitioner, the undersigned took official recognition of all pertinent statutes and rules.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on December 28, 2005. Petitioner filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a proposed 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 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (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, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes.

3. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005.

4. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with

   hand-washing procedures set forth in Section 2-301.14 of the Food Code.

5. A violation of applicable rules by a public food service establishment 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 by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation.

7. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.

   CONCLUSIONS OF LAW

   
   

8. 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.

9. 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.

   
   

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

    § 509.241, Fla. Stat.

    
    

11. 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).

12. 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.

13. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed the critical violation alleged in the Administrative Complaint. Accordingly, disciplinary action may be taken against Respondent pursuant to Section 509.261, Florida Statutes.

14. No disciplinary guidelines have been referenced by Petitioner. The recommended penalty set forth below for the violation 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 half the maximum Petitioner is authorized to impose and appears to be reasonable under the circumstances of this case. The undersigned does not adopt Petitioner’s recommendation that a representative of Respondent be required to attend an educational program sponsored by Petitioner’s Hospitality Education Program because Respondent established that it had appropriate policies in place and that its employees were appropriately trained.

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 violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00.

DONE AND ENTERED this 2nd day of February, 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 2nd day of February, 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 to the date(s) of the alleged violations. 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 rule Respondent has allegedly violated. That rule is 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.

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Stephen Hahn

Golden Corral, Corp. 7333 Coral Way

Miami, Florida 33065

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: 05-002887

Orders for Case No: 05-002887