STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

GREEK FLAME TAVERNA,

Respondent.

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) Case No. 05-4115

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RECOMMENDED ORDER

On January 23, 2006, an administrative hearing in this case was held by videoconference between Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Kaliopi Chrissanthidid, pro se

Greek Flame Taverna

1560 North State Road 436 Winter Park, Florida 32792

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 16, 2004, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), alleges that Greek Flame Taverna (Respondent), a restaurant owned and operated by Kaliopi Chrissanthidid, was found to be in violation of various specified provisions of food safety regulations. The Administrative Complaint appears to have been hand-served to the Respondent on March 9, 2005. The Respondent disputed the allegations and requested a formal administrative hearing. The Petitioner forwarded the matter to the Division of Administrative Hearings, which received the request on

November 9, 2005.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1 through 4 admitted into evidence. Kaliopi Chrissanthidid testified on behalf of the Respondent.

The one-volume Transcript of the hearing was filed on March 21, 2006. The Petitioner filed a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004).

2. The Respondent is a restaurant located at 1560 North State Road 436, Winter Park, Florida, holding Permanent Food Service license number 5809302. Kaliopi Chrissanthidid owns and operates the restaurant.

3. On September 15, 2004, Jim Thomason, a Senior Sanitation and Safety Specialist representing the Petitioner, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations.

4. The violations identified by Mr. Thomason were noted in a written Food Service Inspection Report, a copy of which was provided to the person in charge of the restaurant on the date of the inspection.

5. Mr. Thomason's inspection revealed both critical and non-critical code violations. Critical food safety code violations are those which pose serious public health risk due to potential contamination and subsequent transmission of food- borne illness. Violations that do not pose a serious health risk to the public are identified as non-critical.

6. On September 15, 2004, Mr. Thomason identified several critical violations related to food storage equipment, including

   a reach-in cooler and a "make line" cooler that were incapable of maintaining proper temperatures. Additionally, Mr. Thomason observed chicken and calimari being improperly thawed in a bucket of water. Mr. Thomason also observed a cook handling ready-to-eat salad materials with his bare hands.

7. Food storage coolers must be capable of maintaining a temperature of 41 degrees or below to prevent contamination. The Respondent's reach-in cooler and make line cooler were incapable of maintaining proper temperatures. Mr. Thomason determined that pre-cooked lamb was being held at 60 degrees, precooked beef was held at 58 degrees, lasagna was held at

   58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees.

8. Mr. Thomason estimated that the food items had been maintained at an improper temperature for well in excess of four hours. Improper storage temperatures increase the potential for contamination and transmission of food-borne illness to the public.

9. Due to the issues with the food storage equipment, a Stop Sale Order was issued on September 15, 2004, directing the Respondent to remove the pre-cooked lamb and beef, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration.

10. On September 15, Mr. Thomason identified non-critical violations including: missing hand-washing signs; an open trash receptacle in the women's restroom; a torn screen and missing automatic closing device in a backdoor; the lack of a posted license; the lack of a certified food manager; and the lack of documentation related to employee food safety training.

11. According to the inspection report, a re-inspection was scheduled for September 16, 2004.

12. On September 20, 2004, Mr. Thomason re-inspected the Respondent. Although many of the items cited in the

    September 15 inspection report had been corrected, the faulty food storage equipment had not been repaired and was still not capable of maintaining proper food storage temperatures.

    Mr. Thomason determined that pre-cooked lamb was being held at

    
    

    60 degrees, meat pies were being held at 57 degrees, lasagna was held at 58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees.

13. Mr. Thomason issued another Stop Sale Order, directing that the Respondent remove the precooked lamb, meat pies, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration.

14. Mr. Thomason also referred the critical food storage violations to his supervisors with the recommendation that an Administrative Complaint be filed against the Respondent.

15. On October 18, 2004, Mr. Thomason re-inspected the Respondent at which point, according to the Callback Inspection Report, the food storage and refrigeration violations had been corrected. The only item remaining for repair was the automatic closing device on the backdoor.

16. At the hearing, the Respondent testified that the restaurant had been closed during the month of August, and that no food had been stored during that time. During August 2004, Hurricane Charley came through Central Florida. The Respondent asserted that the restaurant equipment was damaged during the storm, and that the Respondent was unaware of the damage until several weeks after the restaurant reopened. The Respondent testified that repairs to refrigeration equipment were made, but that the coolant was quickly leaking out. Eventually all of the refrigerated food storage equipment was replaced.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57, Fla. Stat. (2005).

18. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the

    Administrative Complaint against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

19. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Ch. 509, Fla. Stat. The Petitioner has adopted by incorporation the various provisions of the Food Code referenced herein. Fla. Admin. Code R. 61C-4.010(1).

20. The Administrative Complaint charges the Respondent with a violation of Food Code Rule 3-501.16(b), which in relevant part requires that, except during preparation or cooking, potentially hazardous food must be maintained at a temperature of 41 degrees or less. The Administrative Complaint further charges the Respondent with a violation of Food Code Rule 4-501.11(a), which requires that food storage equipment be maintained "in a state of repair and condition that meets the requirements specified under Parts 4-1 and 4-2." Food code Parts 4-1 and 4-2 relate to construction of various items used in the food service industry, including accuracy of temperature- measuring devices in food storage units.

21. The evidence establishes that the Respondent failed to comply with Food Code regulations related to safe storage and handling of food. The lack of proper storage and improper food

    handling can result in contamination which poses a direct threat to public safety.

22. Subsection 509.261(1), Florida Statutes (2004), provides that each violation is treated as a separate offense, and that each offense is punishable by a fine not to exceed

    $1,000 per offense. In addition, offenses may be disciplined by required attendance at an educational program sponsored by the Hospitality Education Program, or by suspension, revocation, or refusal of a license.

23. The Petitioner is seeking a fine of $1,000 in this case and a requirement that the Respondent complete an educational program. There is no evidence that the penalty sought by the Petitioner is inappropriate according to the range set forth in the statute.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 against the Respondent, and requiring the Respondent to complete an appropriate educational program related to the violations identified herein.

DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 12th day of April, 2006.

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Kaliopi Chrissanthidid Greek Flame Taverna

1560 North State Road 436 Winter Park, Florida 32792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 05-004115

Orders for Case No: 05-004115