STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

MIGHTY WINGS AND SUBS,

Respondent.

)

)

)

)

)

)

)

) Case No. 07-4815

)

)

)

)

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, by video-teleconference in Orlando and Tallahassee, Florida, on November 30, 2007.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Simonne Lawrence, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Chin Chong, pro se

Mighty Wings & Subs

402 West Vine Street Kissimmee, Florida 34741

STATEMENT OF THE ISSUE

Whether Respondent failed to complete employee food handler training, as required by statute, as alleged in the Administrative Complaint, dated July 27, 2007, and, if so, what disciplinary action should be taken against Respondent's license.

PRELIMINARY STATEMENT

On July 27, 2007, Petitioner filed an Administrative Complain against Respondent alleging violations of Chapter 509, Florida Statutes, and the rules promulgated thereto. Respondent timely disputed the allegations contained in the Administrative Complaint and petitioned for a formal administrative hearing involving disputed issues of material fact. Thereafter, the case was transferred to the Division of Administrative Hearings ("DOAH"), pursuant to Subsection 120.57(1), Florida Statutes (2007)1, on October 22, 2007.

The final hearing was held on November 30, 2007. At the hearing, Petitioner presented the testimony of one witness: Lydia Gonzalez, Senior Sanitation and Safety Specialist, and offered three exhibits, which were admitted into evidence.

Respondent presented the testimony of Chin Chong and offered no exhibits into evidence. Official judicial notice was taken of Subsection 509.032(6) and Section 509.049, Florida Statutes.

The Transcript was filed on January 18, 2008. Each party was

given ten days from the date of the filing of the transcript to file proposed findings of fact and conclusions of law.

Petitioner submitted its proposal on January 22, 2008. Respondent has not filed its proposal as of the date of this Recommended Order.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses presented, the following findings of fact are made:

1. At all times material hereto, Respondent, Kiamy Doan, d/b/a Mighty Wings & Subs, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 5908403.

2. Respondent's business address is 402 West Vine Street, Kissimmee, Florida 34741. Chin Chong is the co-owner of the business, along with Kiamy Doan, his wife.

3. On March 13, 2007, Lydia Gonzalez ("Gonzalez"), Senior Sanitation and Safety Specialist for Petitioner, inspected the premises of Mighty Wings & Subs. During the inspection, Gonzalez prepared a Lodging Inspection Report, setting forth her findings from the inspection. The Report itemized numerous violations of the Food Code and food handler training requirements. These violations were required to be corrected by June 13, 2007.

4. On June 19, 2007, Gonzalez re-inspected Mighty Wings & Subs. During the inspection, Gonzalez prepared a Callback Inspection Report setting forth her findings following the inspection. All non-critical violations had been corrected, except for the food handler training. Gonzalez observed that the employee food handler training certificate had expired. This is a critical violation, because if food handlers are not properly trained, they could contaminate the food and cause a foodborne illness.

5. Critical violations are violations that affect the public health and safety and that could cause foodborne illnesses. Non-critical violations are violations that do not affect the public health and safety directly.

6. During the hearing, Chin Chong produced a document indicating that Kiamy Doan had completed the required training. The food handler certificate was received by Respondent several days after the call-back inspection had been complete.

7. However, Respondent also acknowledged that he applied for the certificate only ten days before Gonzalez was scheduled to re-inspect Mighty Wings & Subs. Respondent neglected to apply for the certificate for two months after the initial inspection for business reasons.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

9. Petitioner is the state agency charged with licensing and inspection of public lodging establishments and public food service establishments in the State of Florida, pursuant to Section 20.165 and Chapter 509, Florida Statutes.

10. Subsection 509.261(1), Florida Statutes, provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of Chapter 509, or the rules promulgated thereunder, is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license.

11. Therefore, Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

12. Evans Packing Co. v. Department of Agriculture and

    
    

    Consumer Services, 550 So. 2d 112, 116, fn. 5, (Fla. 1st DCA

    1989), provides the following definition pertinent to the clear and convincing evidence standard:

    [C]lear and convincing evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence 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 the firm belief of [sic] conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

13. In addition, the disciplinary action may only be based upon the offenses specifically alleged in the Administrative Complaint. See Kinney v. Department of State, 501 So. 2d. 129,

    133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985), Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

14. Subsection 509.032(1), Florida Statutes, provides that Petitioner has the responsibility and jurisdiction to carry out all inspections required of public food service establishments, and, also, has been directed to adopt such rules as are necessary to carry out the provisions of this chapter.

15. Section 509.049, Florida Statutes, states in pertinent part:

    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. 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.

       
       

       * * *

       
       

       (3) Any food safety training program established and administered to food service employees utilized at a licensed public food service establishment prior to July 1, 2000, shall be submitted by the operator or the third-party provider to the division for its review and approval on or before

       September 1, 2004.

       
       

       * * *

       
       

       (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.

       
       

16. Petitioner proved, by clear and convincing evidence, that Respondent violated Section 509.049, Florida Statutes, by failing to provide a valid food handler certificate at the time of the original inspection or at the time of the call-back inspection.

17. At the hearing, Respondent demonstrated some mitigation for the violation by producing a certificate of training for Kiamy Doan, the license holder. Therefore, the maximum penalty should not be imposed. However, Chin Chong, Respondent's representative, demonstrated poor judgment by waiting until ten days before the re-inspection to apply for the certificate, and could not produce it at the time of the re- inspection.

RECOMMENDATION

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

RECOMMENDED that the Secretary of the Department of Business and Professional Regulation enter a final order as follows:

1. Respondent be found guilty of violating Section 509.049, Florida Statutes;

2. Respondent be assessed an administrative penalty in the amount of $500.00 dollars; and

3. Respondent's representative, Chin Chong, be directed to attend an appropriate education program sponsored by the Hospitality Education Program, as directed by the Secretary.

DONE AND ENTERED this 12th day of February, 2008, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 February, 2008.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2007), unless otherwise indicated.

COPIES FURNISHED:

Jessica Leigh, Esquire

Simonne Lawrence, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Chin Chong

Mighty Wings & Subs

402 West Vine Street Kissimmee, Florida 34741

Ned Luczynski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Veach, Director Department of Business and

Professional Regulation 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: 07-004815

Orders for Case No: 07-004815