STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 15, 2008, in Cocoa Beach, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Charles A. Bless, pro se

Two Antonios, Inc., d/b/a Silvestros 2039 North Atlantic Avenue

Cocoa Beach, Florida 32931

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Administrative Complaint dated April 22, 2008, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 14, 2006, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, charged that on

September 20, 2007, and April 4, 2008, Respondent, Silvestros, was found to be in violation of Chapter 509, Florida Statutes (2007),1 rules promulgated as authorized by Chapter 509, Florida Statutes, and regulations governing public food service establishments in Florida. In particular, Respondent was charged with a violation of Florida Administrative Code Rules 61C-1.002(6)(C)(1), 61C-1.004(10), and 61C-4.010(2); and

Rules 3-501.16(A) and 4-301.11 of the United States Department of Agriculture Food Code (Food Code).

Respondent timely disputed the facts alleged in the Administrative Complaint and requested an administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings on June 4, 2008, for assignment of an Administrative Law Judge. An Initial Order was sent to both parties on June 5, 2008. By Notice of Hearing, the case was scheduled for final hearing on July 15, 2008, in Cocoa Beach,

Florida. The final hearing was conducted, as scheduled, on that date.

At the hearing, Petitioner presented the testimony of two witnesses: Diane Lynn Maynard, a sanitation and safety specialist; and Edwin George Weimer, a senior inspector.

Petitioner's Exhibits 1 through 4 were offered and received into evidence. Respondent did not offer any testimony or exhibits, but Charles A. Bless, owner of Silvestros, made a statement.

Pursuant to the Department's request, official recognition was taken of Subsection 509.032(6), Florida Statutes; Florida Administrative Code Rules 61C-1.002(6)(C)(1), 61C-1.004(10), and 61C-4.010(2); and Rules 3-501.16(A) and 4-301.11 of the Food

Code.

The one-volume Transcript of the proceedings was filed with

the Division of Administrative Hearings on August 14, 2008. Petitioner filed a Proposed Recommended Order that has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made:

1. Petitioner is the state agency responsible for inspecting and regulating public food service establishments in Florida.

2. Respondent is a permanent food service establishment holding License No. 1505068.

3. On September 20, 2007, Diane Maynard and Ed Weimer inspected the premises of Respondent. A Food Service Inspection Report was prepared on site, which noted a number of violations. This Food Service Inspection Report was received and signed by the manager on the day of the inspection. Respondent was notified both verbally and in writing on the inspection report that violations must be corrected by the next unannounced inspection.

4. A critical violation is one that, if not corrected, is more likely than other violations to cause an imminent

food-borne illness, contamination, or environmental hazard.

1. A non-critical violation is one that relates to good retail practices, such as general cleanliness, organization, and maintenance of the facility.

2. On April 4, 2008, Respondent's premises were

   
   

   re-inspected. A Call Back Inspection Report was prepared which noted the following "critical violations": food product was out of temperature for an extended period of time. Respondent had allowed food product including salami, capicola, and blue cheese to reach temperatures between 50 and 52 degrees Fahrenheit.

   After four hours above 41 degrees Fahrenheit, bacteria grows rapidly in food and food-borne illness may result. In addition,

   Respondent's cooler boxes were not maintaining food at the proper temperature, below 41 degrees Fahrenheit.

3. It was also noted that "Exit" signs were not properly illuminated.

4. Because the above-noted violations were "critical," a Stop Sale Order was issued.

5. In addition to the foregoing critical violations, the call-back inspection found the following non-critical violation: Respondent had more seats than allowed by its license (49 licensed/110 on premises).

6. On March 7, 2007, Respondent entered into a Stipulation and Consent Order regarding alleged critical violations that had occurred in 2006.

   CONCLUSIONS OF LAW

   
   

7. 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.

8. In the Administrative Complaint, Petitioner seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, Petitioner must prove the allegations 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 Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

9. "Clear and convincing evidence" is:

   
   

   [Evidence] that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. Clear and convincing evidence requires that 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); Slomowitz v.

   
   

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

   
   

10. Respondent was charged with four critical violations and one non-critical violation enumerated in the Administrative Complaint. No evidence was presented that challenged the findings that four critical violations and one non-critical violation were observed during the April 4, 2008, call-back inspection. Petitioner has met the burden of proving that Respondent violated Florida Administrative Code Rules

    61C-1.002(6)(C)(1), 61C-1.004(10), 61C-4.010(2); and

    Rules 3-501.16(A) and 4-301.11 of the Food Code, as alleged in the Administrative Complaint, clearly and convincingly.

11. Section 509.261, Florida Statutes, reads as follows:

    
    

    1. Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:

1. Fines not to exceed $1,000 per offense;

   
   

2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

   
   

3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Silvestros, committed the violations as alleged in the Administrative Complaint and that an administrative fine of four thousand dollars ($4,000.00) be imposed; further, that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 2nd day of September, 2008, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 September, 2008.

ENDNOTE

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

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Charles A. Bless

Two Antonios, Inc., d/b/a Silvestros 2039 North Atlantic Avenue

Cocoa Beach, Florida 32931

William Veach, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel 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: 08-002659

Orders for Case No: 08-002659