STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 05-4058

)

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

PRELIMINARY STATEMENT

On September 16, 2005, Petitioner issued an Administrative Complaint against Respondent’s restaurant located at 7401 West Commercial Boulevard, Tamarac, Florida, alleging that Respondent had violated multiple provisions of the rules that regulate public food service establishments.1 An initial inspection, conducted July 7, 2005, detailed multiple violations.

Respondent was given until July 8 to correct two of the violations and until August 7 to correct the remaining violations.

Follow-up inspections were conducted on July 8 and

August 8, 2005. Based on those follow-up inspections Petitioner filed an Administrative Complaint against Respondent that alleged six violations of pertinent rules in six separately- numbered paragraphs. Each violation was for an uncorrected violation cited during the initial inspection on July 7, 2005.

Paragraph 1 was based on the follow-up inspection conducted July 8. All other alleged violations were based on the follow- up inspection conducted August 8.

Paragraph 1 alleged that Respondent violated Section 3.501.16(B) of the Food Code by failing to maintain specified food items at or below the required minimum temperature.

Paragraph 2 alleged that Respondent violated Section 3- 302.11(A)(4) of the Food Code by storing uncovered food in a walk-in food cooler.

Paragraph 3 alleged that Respondent violated Section 3- 304.14(B) of the Food Code by failing to have chlorine sanitizer in a cleaning bucket at minimum strength.

Paragraph 4 alleged that Respondent violated Section 5- 205.11(B) of the Food Code by using a hand-washing sink for purposes other than washing hands.

Paragraph 5 alleged that Respondent violated Section 6-

1. of the Food Code by failing to properly seal an exterior door.

   Paragraph 6 alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(7), by failing to keep an electrical room clean and free of debris by storing items in the electric room.

   By Election of Rights form dated October 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 inspectors, Sean Grosvenor and Larry Torres, and offered four Exhibits, each of which was admitted into evidence.

   Respondent presented the testimony of Tony Afsarmanesh, 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 1618782. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 7401 West Commercial Boulevard, Tamarac, 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, Sean Grosvenor and Larry Torres were experienced and appropriately trained investigators employed by Petitioner as Sanitation and Safety Specialists.

      Their job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes.

   3. On July 7, 2005, Mr. Grosvenor led an inspection of the subject restaurant. Based on that inspection, Mr. Grosvenor prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on July 7, Mr. Grosvenor discussed his findings with the associate manager of the restaurant. Mr. Grosvenor ordered that two of the violations be corrected immediately. He ordered the restaurant to correct the remaining violations by no later than August 7, 2005.

   4. On July 8, 2005, Mr. Grosvenor conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the two violations he had ordered corrected immediately had been corrected. One of the two violations that were to be corrected immediately had been corrected and is not at issue in this proceeding. The other violation had not been corrected and is the subject of the Paragraph 1 violation.

      PARAGRAPH 1

      
      

   5. The Food Code requires that food be maintained at a temperature of 41° F. or less. On July 8, 2005, Mr. Grosvenor found the following: cottage cheese located on the buffet table was at a temperature of 48° F., raw hamburger patties located in

      a cooler were at a temperature of 47° F., and potato salad located in a cooler was at a temperature of 47° F.

      Mr. Afsarmanesh, the restaurant’s manager, testified that the hamburger patties had been freshly ground and that the potato salad had been freshly made. He testified that these items were brought to a temperature above 41° F. during the preparation process, that they had been placed in coolers to cool down shortly before the inspection, and that they were above 41° F. when Mr. Grosvenor conducted his inspection because they had not had sufficient time to cool down. While his testimony explained Mr. Grosvenor’s findings as to the hamburger patties and the potato salad, Mr. Afsarmanesh had no explanation as to why the cottage cheese was above 41° F. Petitioner established by clear and convincing evidence that Respondent violated Section 3.501.16(B) of the Food Code as alleged in paragraph 1 by proving that Respondent failed to maintain cottage cheese on the buffet line at or below the required minimum temperature.

   6. The violations alleged in paragraphs 2-6 were based on Mr. Torres’s follow-up inspection on August 8, 2005. That follow-up inspection was conducted during a power failure which left the restaurant without electricity. Mr. Afsarmanesh requested that the follow-up inspection be rescheduled because of the power outage, but Mr. Torres decided to go forward with the inspection using flashlights. Mr. Torres testified that the

      absence of electricity had no bearing on his inspection. Based on the violations found, the undersigned finds that Respondent was not prejudiced by Mr. Torres proceeding with the inspection.

      PARAGRAPH 2

      
      

   7. The initial inspection cited Respondent for storing uncovered lettuce, onions, and peppers in a cooler. On August 8, 2005, Mr. Torres observed that lettuce, onions, and peppers were stored uncovered in a cooler. That conduct violated Section 3-302.11(A)(4) of the Food Code.

      Mr. Afsarmanesh testified that his staff rushed to put these items in the cooler when the electricity went out and that they did not have sufficient time or light to cover them. The exigent circumstances created by the power outage do not excuse the violation observed by Mr. Torres, but those circumstances can be considered in mitigation when determining the penalty to be imposed. Petitioner established by clear and convincing evidence that Respondent violated Section 3-302.11(A)(4) of the Food Code as alleged in paragraph 2.

      PARAGRAPH 3

      
      

   8. Paragraph 3 alleged that Respondent violated Section 3- 304.14(B) of the Food Code by failing to have chlorine sanitizer in a cleaning bucket at minimum strength. On August 8, 2005, Mr. Torres determined that the chlorine sanitizer in a cleaning bucket was below minimum strength. Petitioner established by

      clear and convincing evidence that Respondent violated Section 3-304.14(B) of the Food Code as alleged in paragraph 3.

      PARAGRAPH 4

      
      

   9. Paragraph 4 alleged that Respondent violated Section 5- 205.11(B) of the Food Code by using a hand-washing sink for purposes other than washing hands. The inspection report does not detail what other use was being made of the hand-washing sink and Mr. Torres could not recall what he had observed to cause him to cite that as a violation. Petitioner failed to establish by clear and convincing evidence the alleged violation of paragraph 4.

      PARAGRAPH 5

      
      

   10. Paragraph 5 alleged that Respondent violated Section 6-202.15 of the Food Code by failing to properly seal an exterior door. On August 8, 2005, Mr. Torres observed that an exterior door to Respondent’s facility was not properly sealed and, consequently, would not prevent the intrusion of pests. Petitioner established by clear and convincing evidence that Respondent violated Section 6-202.15 of the Food Code as alleged in paragraph 5.

       PARAGRAPH 6

       
       

   11. Paragraph 6 alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(7), by failing to keep an electrical room clean and free of debris by storing items in the

       electric room. On August 8, 2005, Mr. Torres observed that Respondent had stored items in an electric room. Petitioner established by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C-1.004(7), as alleged in paragraph 6.

   12. 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. The paragraph 3 violation is a non-critical violation. The remaining violations found are critical violations.

       CONCLUSIONS OF LAW

       
       

   13. 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.

   14. 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.

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

       § 509.241, Fla. Stat.

       
       

   16. 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).

   17. 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.

   18. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed the violations alleged in paragraphs 1, 2, 3, 5 and 6 of the Administrative Complaint. Accordingly, disciplinary action may be taken

       against Respondent pursuant to Section 509.261, Florida Statutes.

   19. No disciplinary guidelines have been referenced by Petitioner. The recommended penalties that follow are within the range of penalties Petitioner is authorized to impose.

RECOMMENDATION

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

RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1, 2, 3, 5, and 6 and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation;

$100.00 for the paragraph 2 violation; $100.00 for the paragraph 3 violation; $500.00 for the paragraph 5 violation; and $500.00 for the paragraph 6 violation. In addition, the

final order should require a manager responsible for the subject restaurant to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program.

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 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.

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: 05-004058

Orders for Case No: 05-004058