STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

459 CHINESE SUPER BUFFET, Respondent.

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) Case Nos. 05-2732

) 05-3189

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the formal hearing in this proceeding on October 11, 2005, in Orlando, Florida, on behalf 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: Mary Quinn, pro se

459 Chinese Super Buffet 657 North Primrose Drive Orlando, Florida 32803

STATEMENT OF THE ISSUES

The issues presented in this consolidated proceeding are whether Respondent committed the acts and violations alleged in

the two administrative complaints, and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner filed separate administrative complaints against Respondent dated, respectively, January 7 and June 10, 2005.

Respondent timely requested a formal hearing in each proceeding. Petitioner referred the matters to DOAH to assign an ALJ to conduct the hearing. Prior to hearing, the ALJ consolidated the proceedings identified by DOAH Case Nos. 05-2732 and 05-3189.

At the hearing, Petitioner presented the testimony of one witness and submitted seven exhibits for admission into evidence. Respondent presented the testimony of one witness and submitted no exhibits for admission into evidence.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the record of the proceeding.

The one-volume Transcript of the formal hearing was filed with DOAH on November 17, 2005. The undersigned granted Petitioner's motion for extension of time to file proposed recommended orders. Petitioner and Respondent timely filed their respective proposed recommended orders (PROs) on December 1 and October 24, 2005.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent

   is licensed as a restaurant, pursuant to license number 5802478, and operates as 459 Chinese Restaurant at 657 North Primrose Drive, Orlando, Florida 32803 (the restaurant).

2. A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on October 28 and 29, November 5, and December 1, 2004. The Specialist inspected the restaurant again on April 26 and 27, 2005.

3. On December 1, 2004, Respondent committed three violations of applicable statutes and rules. On April 27, 2005, Respondent committed another violation. Each violation was an uncorrected violation that first occurred in previous inspections.

4. On December 1, 2004, Respondent did not document that an employee at the restaurant had received training in professional hygiene and food-borne disease prevention in violation of Florida Administrative Code Rule 61C-4.023(4)(a). This violation is a critical violation. Petitioner's witness identified a critical violation as a violation that is an immediate danger to the public safety.

5. On December 1, 2004, a grease buildup existed on the kitchen wall near the fryer. Food-debris buildup was also present on the floors in the corner of the kitchen. Neither of these violations is a critical violation.

6. On April 27, 2005, Respondent maintained eggs at a temperature of 64 degrees Fahrenheit, rather than 45 degrees, in violation of Rule 3-5.01.16(B) of the Food Code. This is a critical violation.

7. Several mitigating factors are evidenced in the record.

   
   

   The violations did not result in actual harm. Respondent has no prior discipline. The violations are not continuing or ongoing violations. The only aggravating factor is that two of the violations are critical violations.

   CONCLUSIONS OF LAW

   
   

8. DOAH has jurisdiction over the subject matter of this proceeding pursuant to Section 20.165 and Chapter 509, Florida Statutes (2004). DOAH has jurisdiction over the parties pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005). DOAH provided the parties with adequate notice of the administrative hearing.

9. Petitioner has the burden of proof in this proceeding.

   
   

   Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in each Administrative Complaint, that the alleged acts violated the provisions charged in each Complaint, and that the proposed penalty is reasonable. Department of Banking and Finance, Division of Securities and

   Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

10. Petitioner proved by clear and convincing evidence that Respondent committed the acts and violations alleged in each Administrative Complaint. Subsection 509.261(1), Florida Statutes (2004), in relevant part, authorizes Petitioner to impose a range of penalties for the violations that Respondent committed. The authorized penalties include fines not to exceed

    $1,000 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation, or refusal of a license.

11. The proposed penalty of an administrative fine in the amount of $1,300 is reasonable under the circumstances. The proposed additional training is also reasonable.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in each Administrative Complaint, requiring Respondent's representative to attend the educational program prescribed in Petitioner's PRO, and imposing an administrative fine of $1,300, due and payable to the Division of Hotels and Restaurants,

1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order.

DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 21st day of December, 2005.

COPIES FURNISHED:

Mary Quinn

459 Chinese Super Buffet 657 North Primrose Drive Orlando, Florida 32803

Jessica Leigh, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 05-003189

Orders for Case No: 05-003189