STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

EL VALLE RESTAURANT,

Respondent.

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) Case No. 11-0437

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings (DOAH), by Administrative Law Judge Charles A. Stampelos, held a hearing in the above-styled case on March 21, 2011, by video teleconferencing at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Louise Wilhite–St. Laurent

Qualified Representative Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint dated March 8, 2010, and, if so, what disciplinary action should be taken against Respondent.

PRELIMINARY STATEMENT

On March 8, 2010, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Division), filed an Administrative Complaint charging Respondent, El Valle Restaurant (Respondent or El Valle Restaurant), with violating several provisions of Florida Administrative Code Chapter 61C, Food Code Rules, and

section 509.213(1), Florida Statutes (2009). (All citations to Florida Statutes are to the 2009 version unless otherwise indicated.)

El Valle Restaurant, by and through its president, Felix Jimenez, signed an Election of Rights form and requested an evidentiary hearing pursuant to section 120.57(1), Florida Statutes. The matter was referred to DOAH for the assignment of an administrative law judge.

A Notice of Hearing by Video Teleconference was entered on February 3, 2011, advising the parties that a hearing would be held on March 21, 2011, at 9:00 a.m., by video teleconference at sites in Orlando and Tallahassee, Florida. Copies of this Notice were furnished to counsel for Petitioner and to Mr. Jimenez on behalf of Respondent.

Petitioner timely filed its exhibit list and list of documents for official recognition as well as an amended witness

list. No exhibit or witness lists were filed on behalf of Respondent.

On March 21, 2011, the video teleconference hearing was convened at approximately 9:00 a.m. Ms. Wilhite-St. Laurent was accepted as a qualified representative to appear on behalf of Petitioner. No one appeared on behalf of Respondent. The hearing reconvened at approximately 9:15 a.m. No one appeared on behalf of Respondent. Petitioner elected to go forward with its case-in-chief.

Petitioner requested that official recognition be taken of sections 509.032(6) and 509.213(1), Florida Statutes; Florida Administrative Code Rules 61C–1.001(14), 61C-1.002(6)(C)(1), 61C-1.004(1)(D), and 61C-1.005; and Food Code Rules 2-301.14,

3-501.17(A), 4-301.12(A), 4-302.14, 4-601.11(A), and 5-202.12(A)

and (B), and the request was granted.1 Transcript (T) 8.

Petitioner called two witnesses: Carolyn Moore, a former Division sanitation and safety specialist; and Roberto Goris, a current Division sanitation and safety specialist. Petitioner's Exhibits (PE) one through seven were admitted in evidence. No evidence was offered on behalf of Respondent.

The Transcript of the final hearing was filed on May 3, 2011. On May 12, 2011, Petitioner filed a proposed recommended order, which has been considered. No post–hearing submission has been filed by Respondent.

FINDINGS OF FACT

1. The Division is the state agency charged with regulating the operation of public lodging establishments and public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes.

2. Respondent is a restaurant operated under License Number 5807590 at 5731 South Orange Blossom Trail, Orlando, Florida 32839. El Valle Restaurant, Inc., is the owner of the restaurant. PE 1.

3. Petitioner's employees inspected Respondent's premises on March 19, August 6, September 24, and December 3, 2009, and February 16, 2010. During these inspections, numerous violations were seen and incorporated into separate Food Service Inspection Reports for each of these dates. Several follow-up inspections were conducted during these times and noted violations had not been corrected, which ultimately led to the filing of the Administrative Complaint. PE 1-6; T 33-34.

4. Petitioner's witnesses characterized several violations as "critical violations" such as inadequate hand washing; the use of unclean cutting boards; hot water turned off at the only kitchen hand sink; undated potentially hazardous ready–to-eat– food held over 24 hours; improper drainage of raw sewage; the three compartment sink not used in the correct order (wash, rinse, and sanitize) and no hot water used at the mop sink; and a

   
   

   lack of a chemical test-strip kit available to verify the concentration of chemicals at the manual ware washing area. See,

   e.g., T 16-19, 34-44, 47-48. Critical violations are those that will significantly contribute to food contamination, illness, or health hazards. T 12, 24. See also Fla. Admin. Code

   R. 61C-1.005(5)(a) for a definition of "critical violation."

   
   

5. Other non-critical violations included the lack of a plan review submitted and approved for renovations that were in progress and the unavailability of a choking sign. See, e.g., T 44-50. Non-critical violations are those that are not as likely to significantly contribute to those hazards mentioned above. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(b) for a definition of "non-critical violation."

6. Petitioner's Composite Exhibit 7 includes a certified copy of a Final Order on Waiver entered by the Division on

   June 27, 2008. T 50. This order resolved the allegations in an Administrative Complaint filed against Respondent on April 8, 2008, alleging violations of provisions of chapter 509, Florida Statutes. This order indicates that Respondent did not respond to this Administrative Complaint. Petitioner assessed Respondent an administrative penalty of $1,000, and Respondent was also required to attend a workshop sponsored by the Hospitality Education Program. This order was offered into evidence solely for the purpose of consideration of an increased penalty pursuant

   
   

   to Rule 61C-1.005(7)(a) if the underlying charges were proven. T 50.

7. The allegations in the Administrative Complaint, as found herein, were proven by clear and convincing evidence.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

   §§ 120.57(1) and 120.569, Fla. Stat.

   
   

9. Petitioner has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Dep't of Agric. & Consumer Servs., 550 So. 2d 112 (Fla. 1st DCA 1989).

10. Petitioner proved by clear and convincing evidence that Respondent violated section 509.213(1); Florida Administrative Code Rules 61C-1.002(5)(c)1., see endnote 1, and 61C-1.004(1)(D); and Food Code Rules 2-301.14, 3-501.17(A), 4-301.12(A), 4-302.14, 4-601.11(A), and 5-202.12(A) and (B).

11. Section 509.261(1) provides that any public lodging establishment or public food service establishment that is operated or is operating in violation of chapter 509, or the rules promulgated thereunder, is subject to fines not to exceed

    $1,000 per offense, and the suspension, revocation, or refusal of a license.

    
    

12. Some of the violations in this matter occurred both prior to and after the adoption of rule 61C-1.005, which sets forth the Division's current penalty guidelines to be considered for violations of the applicable statutes and rules.

    Section 509.261(1) provides the appropriate penalty guidelines for violations occurring prior to the adoption of amendments to rule 61C–1.005. Rule 61C-1.005(6) provides the appropriate range of penalties for the violations that occurred after the adoption of the Division's current penalty guidelines.

13. Petitioner requests a fine in the amount of $3,500.

The amount of the proposed fine is reasonable under the circumstances.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order, which confirms the violations found and imposes on

El Valle Restaurant an administrative fine in the amount of

$3,500.

DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011.

ENDNOTE

1/ It appears that rule 61C-1.002(6)(C)(1) does not exist. Rather, the same language that was cited in Petitioner's references to specific portions of statutes and rules for which official recognition has been taken, appears in rule 61C- 1.002(5)(c)1. pertaining to "plan review and variances" and specifically requires, in part, the operator of a public food establishment to submit renovation plans for Division review and approval. Nevertheless, as pled in the Administrative Complaint, Respondent had reasonable notice of the facts giving rise to this alleged and proven violation. See generally Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996).

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Felix Jimenez

El Valle Restaurant

5731 South Orange Blossom Trail Orlando, Florida 32839

Louise Wilhite-St. Laurent, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

William L. Veach, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

J. Layne Smith, 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: 11-000437

Orders for Case No: 11-000437