vs. ) Case No. 05-3243
Respondent. )
Pursuant to notice, a hearing was conducted in this case on November 18, 2005, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
On February 16, 2005, Petitioner issued an Administrative Complaint against Respondent alleging that on December 29, 2004, and February 1, 2005, Respondent was in violation of Florida Administrative Code Rule 61C-1.004(13)(a); Florida Administrative Code Rule 61C-1.004(6); Florida Administrative Code Rule 4A-21.241(1); Florida Administrative Code Rule 4A- 21.304; and Section 509.049, Florida Statutes.2 On or about April 15, 2005, Respondent requested "an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes," on the allegations made against it in the Administrative Complaint. On September 8, 2005, the matter was referred to DOAH for the assignment of a DOAH administrative law judge to conduct the hearing Respondent had requested.
As noted above, the hearing was held on November 18, 2005. Two witnesses testified at the hearing: Michele Schneider and Edward Humphrey. In addition, three exhibits (Petitioner's Exhibits 1 through 3) were offered and received into evidence.
At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing with
DOAH of the hearing transcript) for the filing of proposed recommended orders.
The Transcript of the hearing (consisting of one volume) was filed with DOAH on November 28, 2005
Respondent filed its Proposed Recommended Order on December 2, 2005. On December 12, 2005, Petitioner filed a motion requesting an extension of time to file its proposed recommended order. By Order issued that same day, the motion was granted and Petitioner was given until December 15, 2005, to file its proposed recommended order. Petitioner filed its Proposed Recommended Order on December 15, 2005.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
At all times material to the instant case, Respondent operated Humphrey's On 33rd, a bar/restaurant (with a "full kitchen") located in Fort Lauderdale, Florida.
Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-18150-R) authorizing it to operate Humphrey's On 33rd as a public food service establishment.
Edward Humphrey is the majority owner of Respondent.
On December 29, 2004, Michele Schneider, a Sanitation and Safety Specialist with Petitioner, conducted a routine
inspection of the premises of Humphrey's On 33rd. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): Respondent, upon request, was unable to produce evidence of "food handlers' training for employees by a certified food manager"; there were paper products and other potentially combustible items "on top of and around" a gas- powered hot water heater (which had an "open flame at the bottom"); there was no indication that violations (of the standards of the National Fire Protection Association) previously-noted by a "certified fire inspector" during an inspection of the hood range in the kitchen (which had an ansel fire suppression system) had been corrected; the service tag on the fire extinguisher in the establishment did not indicate the year the extinguisher was last serviced; and there was grease, garbage, and other debris in the "can wash area" outside the establishment, "right behind the back door."
Before leaving the establishment, Ms. Schneider advised Mr. Humphrey that these Conditions were violations for which Respondent could be disciplined by Petitioner if not corrected by February 1, 2005.
Ms. Schneider conducted a "callback" inspection of the premises of Humphrey's On 33rd on February 1, 2005, which
revealed that each of the Conditions described in Finding of Fact 4 still existed.
At neither the time of the December 29, 2004, routine inspection, nor the time of the February 1, 2005, "callback" inspection, was food being served at Humphrey's On 33rd.
Respondent had "closed the kitchen down" in or around September of 2004.
It was not until approximately six months later, after the December 29, 2004, and February 1, 2005, inspections, that Respondent started serving food again at the establishment.
At no time during this six-month period that it stopped serving food did Respondent relinquish its license authorizing it to operate Humphrey's On 33rd as a public food service establishment. Its license remained in effect
throughout this period.
CONCLUSIONS OF LAW
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.
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.
Each "public food service establishment" must have a license from Petitioner prior to the commencement of operation.
§ 509.241, Fla. Stat.
Disciplinary action may be taken against the holder of such license if the licensee "has operated or is operating in violation of any of the provisions of [Chapter 509, Florida Statutes] or the rules of [Petitioner]." Such disciplinary action may include one or more of the following penalties: license revocation, with the licensee unable to "apply for another license for that location prior to the date on which the revoked license would have expired"; license suspension (for a period not exceeding 12 months), with the licensee able to "apply for reinstatement or renewal of the license" following the suspension period; imposition of an administrative fine not to exceed $1,000 for each separate offense3; and "[m]andatory
attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program." § 509.261, Fla. Stat.
The "provisions of [Chapter 509, Florida Statutes]" [and] the rules of [Petitioner]," the violation of which subject a licensee to disciplinary action pursuant to Section 509.261, Florida Statutes, include the following:
509.049 Food service employee training.
(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.[4] 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.
* * *
The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require:
* * *
(d) The public food service establishment to be responsible for providing proof of employee training pursuant to this section, and the division may request production of such proof upon inspection of the establishment.
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:
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).
* * *
61C-1.004 General Sanitation and Safety Requirements.
The following general requirements and standards shall be met by all public lodging and public food service establishments:
* * *
(6) All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions.
* * *
(13) Gas appliances -- All appliances, including water heaters using gas, shall be kept in good repair and properly vented when manufacturers' instructions require venting of the appliance and shall meet the following requirements:
(a) All appliances shall have a nationally recognized testing laboratory seal such as AGA or UL seal.
* * *
69A-21.241 [formerly 4A-21.241]. Standard Service Tags, Specifications.
(1) Service Tags, Annual Maintenance.
Approved standard service tags shall meet the following specifications and shall be arranged as indicated in Figure "A." In lieu of using the standard "tie-on" type service tag, a pressure sensitive label or decal meeting the same specifications as indicated in Figure "A" may be used. Tags, pressure sensitive labels or decals may be printed or otherwise established for any number of years not in excess of five years.
Approved standard service tags, pressure sensitive labels or decals shall bear the following information:
"Do Not Remove."
Serial Number of Extinguisher.
Name of person who performed the service on the extinguisher. Initials are not acceptable.
Permit number of the person who serviced the extinguisher.
Indicate the type of service performed.
Indicate the type of extinguisher involved.
Indicate the month and the year that the service was performed by means of perforation so that only the specific month is indicated.
69A-21.304 [formerly 4A-21.304].
Installation; Service.
All pre-engineered systems are to be inspected in accordance with the standards adopted in Rule 69A-21.302, F.A.C.[5]
Whenever a pre-engineered system is installed, inspected, repaired, maintained or otherwise serviced, the permittee shall complete an inspection report containing, at a minimum, the information in paragraphs (a) through (o), in this subsection. One copy shall be signed by and delivered to the owner, or the representative of the owner, of the facility in which the system was installed. The other copy shall be retained in the fire equipment dealer's files for a period of not less than three years after the last inspection.
Location of system; business name of facility, street address, city, state, zip code, phone number, and name of the owner or manager;
Whether the report is for an annual inspection; semi-annual inspection; a recharge; a new installation; or a renovation;
Where the system is located in the facility;
Type of system; name of manufacturer; model number; size of bottles;
Method, style and degree of actuation;
Reference to drawing number or page number, and date of the manufacturer's manual;
Date of last hydrostatic test;
Date of last recharge;
Serial number;
Whether fuel shut off is gas or electric and the size;
A drawing of a new installation; a first inspection; or whenever changes are made. The drawing shall include the following as a minimum:
Sizes of the hood, plenum, and ducts.
Sizes, types and locations of cooking appliances.
Positions of all nozzles, identification of nozzles, their distances from the hazards that they protect.
Positions of all detectors.
Diagram of the entire piping installation.
Responses to the following questions:
Were the inspection and maintenance performed in accordance with the presently adopted editions of NFPA (indicate standard(s) used? ("No" answers require an explanation)
Was the system tagged in accordance with Rule 69A-21.303, F.A.C.? ("No" answers require an explanation)
Were the inspection and maintenance performed in accordance with the manufacturer's manual and the manufacturer's specifications? ("No" answers require an explanation);
A comments section to allow for explanations if necessary;
A statement that the permittee certifies that he personally inspected the system and found the conditions to be as indicated on the report;
The permittee's name, signature and permit number; the date and time of inspection; and the customer's signature.
"No revocation [or] suspension . . . of any [public food service establishment] license is lawful unless, prior to the entry of a final order, [Petitioner] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat.
The licensee must be afforded an evidentiary hearing if, upon receiving such written notice, the licensee disputes the alleged facts set forth in the administrative complaint.
§§ 120.569(1) and 120.57, Fla. Stat.
At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the administrative complaint. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the licensee's guilt is required. 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 § 120.57(1)(j), Fla. Stat.
("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .
the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegation(s) made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).
Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of
Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah
v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of
Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
The Administrative Complaint issued in the instant case alleges that, on December 29, 2004, and February 1, 2005, Respondent was in violation of Florida Administrative Code Rule 61C-1.004(13)(a) (Alleged Violation No. 1); Florida Administrative Code Rule 61C-1.004(6) (Alleged Violation No. 2), Florida Administrative Code Rule 4A-21.241(1) (Alleged Violation No. 3), Florida Administrative Code Rule 4A-21.304 (Alleged Violation No. 4), and Florida Administrative Code Rule 509.049, Florida Statutes (Alleged Violation No. 5).
Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed each of these violations (Alleged Violation Nos. 1 through 5) on the dates in question. (That Respondent had "closed the kitchen down" and was not serving food on either of these occasions is not a valid defense to any of the charges in the Administrative Complaint6 since Respondent still had its Petitioner-issued public food service establishment license and, consequently, was required to comply with the statutory and rule provisions governing the operation of licensed public food service establishments.)
Accordingly, disciplinary action may be taken against Respondent pursuant to Section 509.261, Florida Statutes.
In its Proposed Recommended Order, Petitioner proposes that the undersigned recommend that Respondent be required to "pay an administrative penalty in the amount of $2,100.00" and "attend an educational program sponsored by the Hospitality Education Program" for committing Alleged Violation Nos. 1 through 5.
This penalty is too harsh, given the fact that, at the time of the violations, Humphrey's On 33rd was not offering food service (although it was licensed to do so). A more appropriate penalty for the commission of Alleged Violation Nos. 1 through 5 would be a fine in the total amount of $250.00, as well as "[m]andatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program."
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 Alleged Violation Nos. 1 through 5 and disciplining Respondent therefor by imposing a fine in the total amount of $250.00 and requiring Respondent's majority owner to attend, at his own expense, an "educational program sponsored by the Hospitality Education Program."
DONE AND ENTERED this 20th day of December, 2005, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 20th day of December, 2005.
ENDNOTES
1/ "Humphrey's on 33rd" is the "doing business" name of 3355 NE ST Corp.
2/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (2005).
3/ Section 509.261(2), Florida Statutes, provides that, "[f]or 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." "Violations of critical laws or rules" are defined in Florida Administrative Code Rule 61C-1.0021(2), as "those violations determined by the [Petitioner] to pose a significant threat to the public health, safety, or welfare."
4/ Petitioner has adopted Florida Administrative Code Rule 61C- 4.023, which provides as follows:
61C-4.023. Food Protection Manager Certification and Public Food Service Employee Training.
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. When four or more employees, at one time, are engaged in the storage, preparation or serving of food in a licensed establishment, there shall be at least one certified food protection manager present at all times when said activities are taking place. The certified food protection manager or managers need not be present in the establishment during those periods of operation when there are three or fewer employees engaged in the storage, preparation, or serving of foods. It shall be the responsibility of the certified food protection manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this chapter.
Temporary food service vendors and vending machine operators, licensed pursuant to Chapter 509, Part I, Florida Statutes, are exempt from the manager certification requirements of this section.
The Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs, as adopted by the Conference for Food Protection on April 12, 2000 and herein adopted by reference, shall be the division standard for the recognition of certifying organizations who provide food manager certification examinations. The Division of Hotels and Restaurants shall accept all certification examinations approved by the Conference for Food Protection. Certifying organizations that are accredited by a Conference for Food Protection sanctioned accreditor shall be recognized by the division as approved providers of a Food Protection Manager Certification Program.
Public Food Service Employee Training.
6/ It is, however, a mitigating factor that should be taken into consideration in determining the disciplinary action to be taken against Respondent for committing these violations.
Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and
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.
