STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

NATURES TABLE CAFE,

Respondent.

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) Case No. 07-3138

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RECOMMENDED ORDER

On September 6, 2007, an administrative hearing in this case was held by video teleconference between Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Respondent: Charles F. Tunnicliff, Esquire

Jose A. Blanco, Certified Legal Intern Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: David J. Hasselberger, pro se

Natures Table Cafe

1900 Summit Tower Boulevard, Suite 190

Orlando, Florida 32810

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 May 2, 2007, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), alleges that Nature's Table Cafe (Respondent), a restaurant owned and operated by David J. Hasselberger, was found to be in violation of a food safety regulation requiring that a certified food manager be present during periods when there were at least four employees engaged in food preparation. The Respondent disputed the allegation and requested a formal administrative hearing. The Petitioner forwarded the matter to the Division of Administrative Hearings, which scheduled and conducted the formal hearing.

At the hearing, the Petitioner presented the testimony of two witnesses and had Exhibits A through E admitted into evidence.

The Respondent presented the testimony of two witnesses and offered a document (Exhibit A) into evidence. The exhibit had not been exchanged prior to the hearing as required by the Order of Pre-hearing Instructions dated July 29, 2007. Because the hearing was by video teleconference, the Petitioner did not have

an opportunity to review the document prior to the hearing. The exhibit was marked for identification, but was not admitted during the hearing.

The Transcript of the hearing was filed on November 2, 2007. Respondent's Exhibit A was filed with the Transcript. The exhibit has been reviewed and is addressed as set forth herein.

The Petitioner filed a Proposed Recommended Order. The Respondent submitted a letter, which has been treated as 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.

2. At all times material to this case, the Respondent was a restaurant holding Food Service license number 5807127 and operating at 1900 Summit Tower Boulevard, Orlando, Florida 32810.

3. On June 5, 2006, Gayle Braska, a sanitation and safety inspector employed by the Petitioner, performed a routine inspection of the Respondent at which time there were at least four employees engaged in food preparation.

4. Ms. Braska determined that there was no certified food manager present on the premises at the time of the inspection

   and cited the deficiency in an inspection report. The report was provided to the Respondent at the time of the inspection as acknowledged by the signature of Restaurant Manager Brigitte Graffuis. The report indicated that correction of the cited deficiency, as well as others not relevant to this proceeding, was required by the time of the "next unannounced inspection" of the establishment.

5. On October 5, 2006, another inspection of the establishment was conducted, this time by Petitioner's Inspector Cecilia Chiu, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent had no certified food manager present on the premises.

6. The deficiency was again cited in an inspection report, which was provided to the Respondent at the time of the inspection as acknowledged by the signature of Ms. Graffuis. The report indicated that a callback inspection would occur on November 5, 2006, by which time the Respondent was required to correct the cited deficiency, as well as others not relevant to this proceeding.

7. On November 7, 2006, a callback inspection of the establishment was conducted by Ms. Chiu, at which time there were at least four employees engaged in food preparation.

   According to Ms. Chiu's inspection report, the Respondent still had no certified food manager present on the premises.

8. The deficiency was cited in the callback inspection report which was provided to the Respondent at the time of the inspection as acknowledged again by Ms. Graffuis. The report stated that correction of various deficiencies was required by the time of the "next unannounced inspection" of the establishment, but specifically stated that correction of the food manager certification deficiency was required by January 5, 2007, and that documentation of certification could be faxed to the Petitioner's offices before that date.

9. The Petitioner received no documentation of compliance with the food certification requirements by fax or by any other means of delivery.

10. On April 9, 2007, Ms. Chiu conducted another inspection of the establishment, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent still had no certified food manager present on the premises. The deficiency was cited in the inspection report, which was provided to the Respondent at the time of the inspection as acknowledged by Restaurant Manager Anne Boughey.

11. On May 2, 2007, the Petitioner issued an Administrative Complaint against the Respondent for noncompliance with the certification requirement.

12. Respondent's Exhibit A is a certificate stating that Ms. Graffuis had passed the "Food Protection Manager Certification Examination" on June 13, 2001, and was certified for a five-year period, expiring on June 13, 2006.

13. The first inspection at which the Petitioner cited the Respondent for noncompliance with the certification requirement occurred on June 5, 2006, approximately one week before

    Ms. Graffuis' certification expired.

    
    

14. The evidence establishes that the Respondent failed to provide evidence of certification to any of the Petitioner's inspectors at the time of the inspections. No documentation of food manager certification was provided by the Respondent to the Petitioner until the hearing conducted on September 6, 2007. There is no evidence that Ms. Graffuis advised Ms. Braska that she was apparently certified at the time of the June 5 inspection.

15. There is no evidence that there was any certified food manager present in the restaurant at the time of any inspection occurring after June 13, 2006.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57, Fla. Stat. (2007).

17. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Ch. 509, Fla. Stat. (2006). The Petitioner has adopted by incorporation the various provisions of the Food Code referenced herein. Fla. Admin. Code R. 61C-4.010(1).

18. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). As stated in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the "clear and convincing" standard requires:

    [T]hat 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.

19. The Administrative Complaint charged the Respondent with a violation of Florida Administrative Code

    Rule 61C-4.023(1), which provides as follows:

    
    

    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. (Emphasis supplied)

20. In this case, Petitioner has met the burden of establishing that the Respondent failed to meet the requirements of Florida Administrative Code Rule 61C-4.023(1).

21. The first inspection at which the Respondent was cited for failure to meet the certified food manager requirement occurred on June 5, 2006. Although it appears that Ms. Graffuis was a certified food manager through June 13, 2006, Ms. Graffuis failed to provide the information to Ms. Braska at the time the deficiency was noted in the inspection report.

22. Ms. Graffuis acknowledged receipt of the inspection report. It is reasonable to presume that she was aware of the fact that the establishment was being cited for failing to comply with the requirement that a certified food manager be on the premises. For whatever reason, Ms. Graffuis did not provide the information to the inspector.

23. After the June 13, 2006, expiration of Ms. Graffuis' certification, the Respondent was cited three more times for failure to comply with the certified food manager requirements.

24. Subsection 509.261(1), Florida Statutes (2007), 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.

25. The Petitioner's Proposed Recommended Order recommends imposition of a fine of $500 in this case. There is no evidence that the penalty sought by the Petitioner is inappropriate according to the range set forth in the statute. However, in that the violation was a continuing situation, and the Respondent failed to disclose Ms. Graffuis' certification at the June 5 inspection, the recommended penalty is as set forth below.

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

$500 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violation identified herein.

DONE AND ENTERED this 7th day of December, 2007, 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 7th day of December, 2007.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Jose A. Blanco, Certified Legal Intern Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

David J. Hasselberger Natures Table Cafe

1900 Summit Tower Boulevard, Suite 190

Orlando, Florida 32810

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

William Veach, 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: 07-003138

Orders for Case No: 07-003138