STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

CHAAT HOUSE,

Respondent.

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) Case No. 12-1520

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on July 16, 2012, via video teleconference with sites in Orlando and Tallahassee, Florida. The parties appeared before Administrative Law Judge Lynne A. Quimby-Pennock of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Robert Leroy Ehrhardt, Esquire

Department of Business and Professional Regulation

Suite 14

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: (No Appearance)

STATEMENT OF THE ISSUES

Whether Respondent committed the violations set forth in the Administrative Complaint, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about August 8, 2011, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint against Respondent, Chaat House (the Restaurant), alleging violations of certain provisions of chapter 509, Florida Statutes (2010),1/ or the applicable rules governing the operation of public food service establishments. The Administrative Complaint requested an order imposing one or more sanctions against the Restaurant.

The Restaurant disputed the allegations in the Administrative Complaint and timely requested a formal administrative hearing. Petitioner forwarded the case to DOAH for the assignment of an Administrative Law Judge.

The parties were properly notified that the final hearing would commence at 9:00 a.m. on July 16, 2012. At the designated time and place, the undersigned and Petitioner's counsel appeared. The Restaurant's representative, however, did not appear. After waiting approximately 15 minutes2/ and upon review of the file, from which it was determined that the Restaurant had

been given adequate notice of the final hearing, the undersigned commenced the proceeding.

At the final hearing, Petitioner presented one witness, Sandra "Sam" Hopper, a sanitation and safety specialist.

Petitioner offered four exhibits into evidence, all of which were admitted. Petitioner asked for official recognition of section 509.032(6); Florida Administrative Code Rules 61C- 1.001(14) (2008), 61C-1.004(2)(c), 61C-1.004(6), 61C-

1.004(9)(d),3/ and 61C-1.005 (June 2008); and Rules 3-

302.11(A)(4), 3-302.12, 3-305.11, 4-101.11, 4-501.11, 4-501.12,

4-601.11(C), 4-603.12, 4-903.11(B), 4-903.12(A), 5-205.11(A), and

6-301.14, Food Code (FC). The request was granted. The Restaurant did not appear, nor did it offer any exhibits.

At the conclusion of the hearing, it was announced that the proposed recommended orders (PROs) were due ten days after the transcript was filed with DOAH. The one-volume Transcript of the final hearing was filed on July 30, 2012. On July 13, 2012, Petitioner filed its PRO, which has been duly considered.

Petitioner's PRO was filed after the ten-day period; however, the Restaurant has not filed an objection. To date, the Restaurant

has not filed a PRO.

FINDINGS OF FACT

1. At all times material to this case, the Restaurant was a licensed public food service establishment located at 9472 South

   
   

   Orange Blossom Trail, Orlando, Florida. The Restaurant was first licensed in January 2006, and its food service license number is 5811536.

2. Petitioner is the state agency charged with the regulation of hotels (public lodging establishments) and restaurants (public food service establishments) pursuant to chapter 509.

3. Sandra Hopper is a sanitation and safety specialist for Petitioner. Ms. Hopper has worked for Petitioner for one and one-half years. Prior to working for Petitioner, Ms. Hopper worked in the hospitality industry for over 20 years in various positions. Additionally, she was an instructor at a hospitality school. Ms. Hopper received Petitioner's standardized training on the laws and rules governing public food service establishments.4/ Ms. Hopper is a certified food manager and obtains monthly in-house training from Petitioner on her job duties.

4. Through the testimony of Ms. Hopper and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that as of April 14, 2011, the following critical deficiencies existed at the Restaurant: (1) food was stored on the floor (raw chicken, flour, onions, and beverages) contrary to Rule 3-305.11, FC;

   1. food was left uncovered in the holding unit (gelatin or jello

      
      

      was left uncovered) contrary to Rule 3-302.11(A)(4), FC;

      
      

   2. every handwashing sink was blocked from usage (the employees could not wash their hands at the handwashing sinks) contrary to Rule 5-205.11(A), FC; (4) there were no handwashing signs posted at each sink contrary to Rule 6-301.14, FC; and (5) food that was removed from its original containers was not properly identified by their common names in other containers contrary to Rule 3- 302.12, FC.

5. Critical violations are those violations that, if uncorrected, are most likely to contribute to contamination, illness or environmental health hazards, and present an immediate threat to public safety.

6. Also, through the testimony of Ms. Hopper and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that, as of April 14, 2011, the following non-critical deficiencies existed at the Restaurant: (1) equipment was in poor repair contrary to Rules 4-501.11, 4-501.12, and 4-101.11, FC; (2) old food was stuck to clean dishware and utensils contrary to Rule 4-603.12, FC; (3) non-food contact surfaces were soiled contrary to Rule 4- 601.11(C), FC; (4) clean equipment was improperly stored contrary to Rules 4-903.11(B) and 4-903.12(A), FC; (5) building and fixtures were in poor repair contrary to rule 61C-1.004(6); and

   
   

   (6) carbon dioxide/helium tanks were not adequately secured contrary to rule 61C-1.004(7).

7. None of the other putative violations mentioned in the inspection or re-inspection reports (Petitioner's Exhibits 2 and 3) were addressed at final hearing. Therefore, those are irrelevant to this proceeding.

8. On September 21, 2010, a Final Order (based on a Stipulation and Consent Order) was issued to the Restaurant regarding a May 28, 2008, Administrative Complaint. This Administrative Complaint was based on Restaurant inspections that were conducted on September 5, 2007; February 19, 2008; February 21, 2008; and April 25, 2008. Some of the issues therein are repeat violations.

9. On September 21, 2010, a Final Order on Waiver was issued to the Restaurant regarding a June 10, 2010, Administrative Complaint. This Administrative Complaint was based on Restaurant inspections that were conducted on

   December 3, 2009; March 16, 2010; and June 4, 2008. The issues therein are not the same violations found in the current issues.

   CONCLUSIONS OF LAW

   
   

10. DOAH has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2012).

    
    

11. Petitioner is the state agency charged with the regulation of public food service establishments in the State of Florida pursuant to section 20.165 and chapter 509, Florida Statutes.

12. Petitioner has the burden of proving by clear and convincing evidence that the Restaurant violated chapter 509, the FC provisions promulgated pursuant to that chapter, and the Florida Administrative Code rules. See Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v.

    Turlington, 510 So. 2d 292, 294 (Fla. 1987); Pic N'Save Central Fla., Inc. v. Dep't of Bus. & Prof'l. Reg., Div. of Alcoholic Beverages & Tobacco, 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

13. Clear and convincing evidence:

    
    

    [R]equires 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 lacking in confusion as to the facts in issue. The evidence must be of such a 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)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

14. Section 509.013(5)(a) provides:

    
    

    "Public food service establishment" means any building, vehicle, place, or structure, or

    
    

    any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.

    
    

    The Restaurant is a public food service establishment as defined in chapter 509.

15. Section 509.032 provides in pertinent part:

    
    

    1. GENERAL.--The Division shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of . . . public food service establishments for the purpose of safeguarding the public health, safety, and welfare. . . .

       
       

    2. INSPECTION OF PREMISES.--

1. The Division has responsibility and jurisdiction for all inspections required by this chapter. The Division has responsibility for quality assurance. Each licensed establishment shall be inspected at least biannually, . . . and shall be inspected at such other times as the Division determines is necessary to ensure the public's health, safety, and welfare. The Division shall establish a system to determine inspection frequency.

   
   

2. For purposes of performing required inspections and the enforcement of this chapter, the Division has the right of entry and access to . . . public food service establishments at any reasonable time.

   
   

3. Public food service establishment inspections shall be conducted to enforce provisions of this part and to educate, inform, and promote cooperation between the Division and the establishment.

   
   

4. The Division shall adopt and enforce sanitation rules consistent with law to ensure the protection of the public from food-borne illness in those establishments licensed under this chapter. These rules shall provide the standards and requirements for obtaining, storing, preparing, processing, serving, or displaying food in public food service establishments, approving public food service establishment facility plans, conducting necessary public food service establishment inspections for compliance with sanitation regulations, cooperating and coordinating with the Department of Health in epidemiological investigations, and initiating enforcement actions, and for other such responsibilities deemed necessary by the Division. The Division may not establish by rule any regulation governing the design, construction, erection, alteration, modification, repair, or demolition of

any . . . public food service establishment. . . .

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(6) RULEMAKING AUTHORITY.--The Division shall adopt such rules as are necessary to carry out the provisions of this chapter.

The Restaurant was duly inspected under Petitioner's authority as granted by chapter 509.

16. Rule 61C-1.001(14) (2008) provides:

Except when otherwise defined in this rule, the definitions provided in paragraph 1- 201.10(B), Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code

(August 29, 2003) shall apply to Chapters 61C-1, 61C-3 and 61C-4, F.A.C.

In addition, the following definitions apply to Chapters 61C-1, 61C-3 and 61C-4, F.A.C.:

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(14) Food Code–-This term as used in Chapters 61C-1, 61C-3, and 61C-4, F.A.C., means paragraph 1-201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the

2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003), herein adopted by reference. A copy of the Food Code, as adopted by the division, is available

on the division's Internet website www.MyFloridaLicense.com/dbpr/hr. A copy of the entire Food Code is available on the U.S. Food and Drug Administration Internet website. Printed copies of the entire Food Code are available through the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.

1. Rule 61C-1.004(7) provides:

   
   

   (7) Carbon dioxide and helium tanks shall be adequately secured so as to preclude any danger to safety.

   
   

2. Petitioner has adopted the FC of the United States Department of Health and Human Services 2001 as a guideline for inspecting public food service establishments in Florida. The following FC rules, as recognized, are set forth below in pertinent part:

   
   

   3-305.11 Food Storage.

   
   

   1. Except as specified in ¶¶ (B) and (C) of this section, food shall be protected from contamination by storing the food:

      
      

      1. In a clean, dry location;

         
         

      2. Where it is not exposed to splash, dust, or other contamination; and

         
         

      3. At least 15 cm (6 inches) above the floor.

         
         

   2. Food in packages and working containers may be stored less than 15 cm (6 inches) above the floor on case lot handling equipment as specified under § 4-204.122.

      
      

      3-302.11 Packaged and Unpackaged Food-- Separation, Packaging, and Segregation.

      
      

      (A) Food shall be protected from cross contamination by:

      
      

      * * *

      
      

      1. . . . storing the food in packages, covered containers, or wrappings[.]

         
         

         3-302.12 Food Storage Containers, Identified with Common Name of Food.

         
         

         Working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD except that containers holding FOOD that can be readily and unmistakably recognized such as dry pasta need not be identified.

         
         

         5-205.11 Using a Handwashing Facility.

         
         

         1. A handwashing facility shall be maintained so that it is accessible at all times for EMPLOYEE use.

      
      

      6-301.14 Handwashing Signage.

      
      

      A sign or poster that notifies FOOD EMPLOYEES to wash their hands shall be provided at all handwashing lavatories used by FOOD EMPLOYEES and shall be clearly visible to FOOD EMPLOYEES.

      
      

      4-101.11 Characteristics.

      
      

      Materials that are used in the construction of UTENSILS and FOOD-CONTACT SURFACES of

      EQUIPMENT may not allow the migration of deleterious substances or impart colors, odors, or tastes to FOOD and under normal use conditions shall be:

      
      

      1. Safe;

         
         

      2. Durable, CORROSION-RESISTANT, and nonabsorbent;

         
         

      3. Sufficient in weight and thickness to withstand repeated WAREWASHING.

         
         

      4. Finished to have a SMOOTH, EASILY CLEANABLE surface; and

         
         

      5. Resistant to pitting, chipping, crazing, scratching, scoring, distortion, and decomposition.

      
      

      4-501.11 Good Repair and Proper Adjustment.

      
      

      1. Equipment shall be maintained in a state of repair and condition that meets the requirements specified under Parts 4-1 and 4- 2.

         
         

      2. Equipment components such as doors, seals, hinges, fasteners, and kick plates

         
         

         shall be kept intact, tight, and adjusted in accordance with manufacturer's specifications.

         
         

      3. Cutting or piercing parts of can openers shall be kept sharp to minimize the creation of metal fragments that can contaminate FOOD when the container is opened.

      
      

      4-501.12 Cutting Surfaces.

      
      

      Surfaces such as cutting blocks and boards that are subject to scratching and scoring shall be resurfaced if they can no longer be effectively cleaned and SANITIZED, or discarded if they are not capable of being resurfaced.

      
      

      4-601.11 Equipment, Food-Contact Surfaces, Nonfood-Contact Surfaces, and Utensils.

      
      

      (C) Nonfood–contact SURFACES of EQUIPMENT shall be kept free of an accumulation of dust, dirt, FOOD residue, and other debris.

      
      

      4-603.12 Precleaning.

      
      

      1. Food debris on EQUIPMENT and UTENSILS shall be scrapped over a waste disposal unit or garbage receptacle or shall be removed in a WAREWASHING machine with a prewash cycle.

         
         

      2. If necessary for effective cleaning, UTENSILS and EQUIPMENT shall be preflushed, presoaked, or scrubbed with abrasives.

      
      

      4-903.11 Equipment, Utensils, Linens, and Singe-Service and Single-Use Articles.

      
      

      1. Clean EQUIPMENT and UTENSILS shall be stored as specified under ¶(A) of this section and shall be stored:

         
         

         1. In a self-draining position that allows air drying; and

            
            

         2. Covered or inverted.

      
      

      4-903.12 Prohibitions.

      
      

      (A) Except as specified in ¶(B) of this section, cleaned and SANITIZED EQUIPMENT, UTENSILS, laundered LINENS, and SINGLE- SERVICE and SINGLE-USE ARTICLES may not be stored:

      
      

      1. In locker rooms;

         
         

      2. In toilet rooms;

         
         

      3. In garbage rooms;

         
         

      4. In mechanical rooms;

         
         

      5. Under sewer lines that are not shielded to intercept potential drips;

         
         

      6. Under leaking water lines including leaking automatic fire sprinkler heads or under lines on which water has condensed;

         
         

      7. Under open stairwells; or

         
         

      8. Under other sources of contamination.

      
      

3. Rule 61C-1.005 provides in pertinent part:

   
   

   1. This rule sets out the disciplinary guidelines for imposing penalties upon . . . public food service establishments under the jurisdiction of the Division of Hotels and Restaurants (division) in administrative actions. The purpose of this rule is to notify licensees of the standard range of penalties routinely imposed unless the division finds it necessary to deviate from the standard penalties for the reasons stated within this rule.

      
      

   2. These disciplinary guidelines are descriptive in nature and do not use the language used to formally allege a violation in a specific case. This rule is not intended to specifically describe all possible violations of law that may be

      
      

      committed by a . . . public food service establishment and that may be subject to penalty imposed by the division.

      
      

   3. The division may impose penalties against a . . . public food service establishment for a specific violation not included in the language of this rule. If a specific violation is not included in the language of this rule, the division shall impose a penalty corresponding to the most similar violation listed in this rule.

      
      

   4. These disciplinary guidelines do not limit the division's authority to order a

      . . . public food service establishment to cease and desist from any unlawful practice, or other action authorized by law.

      
      

   5. Definitions.

      
      

      1. "Critical violation" means a violation determined by the division to pose a significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in . . . DBPR Form HR-5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not otherwise identified in this rule.

         
         

      2. "Non-critical violation" means a violation not meeting the definition of critical violation and not otherwise identified in this rule.

      
      

      * * *

      
      

      (e) "Third and any subsequent offense" means a violation of any law subject to penalty under Chapter 509, F.S., after two or more disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is

      
      

      issued, even if the current violation is not the same as the previous violation.

      
      

   6. Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under Chapter 509, F.S. Any violation requiring an emergency suspension or closure, as authorized by Chapter 509, F.S., shall be assessed at the highest allowable fine amount.

      
      

      1. Non-critical violation. In addition to the penalties outlined below, the licensee may be required to attend an educational program sponsored by the Hospitality Education Program.

         
         

         * * *

         
         

         3. 3rd and any subsequent offense-– Administrative fine of $350 to $1000, license suspension, or both.

         
         

      2. Critical violation. In addition to the penalties outlined below, the licensee may be required to attend an educational program sponsored by the Hospitality Education Program. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

         
         

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         3. 3rd and any subsequent offense-– Administrative fine of $750 to $1,000, license suspension, or both.

         
         

         * * *

         
         

   7. Aggravating or mitigating factors.

      
      

      The division may deviate from the standard penalties in paragraphs (a) through (h) of

      
      

      subsection (6) above, based upon the consideration of aggravating or mitigating factors present in a specific case. The division shall consider the following aggravating and mitigating factors in determining the appropriate disciplinary action to be imposed and in deviating from the standard penalties:

      
      

      1. Aggravating factors.

         
         

         1. Possible danger to the public.

            
            

         2. Length of time since the violation occurred.

            
            

         3. Number of violations in the current administrative complaint.

            
            

         4. Severity of violations in the current administrative complaint.

            
            

         5. Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.

            
            

         6. Number of Emergency Orders of Suspension or Closure against the same licensee filed with the Agency Clerk by the division within the 12 months proceeding the date the current administrative complaint was issued.

            
            

         7. The current administrative complaint alleges a violation for obstruction of division personnel.

            
            

         8. The licensee was prosecuted by another authority having jurisdiction resulting in a violation of Chapter 509, F.S., including but not limited to cases based on discrimination, civil rights violations, and criminal violations.

            
            

         9. Actual physical damage or bodily harm caused to persons or property by the violation.

            
            

         10. Any other aggravating factors, as relevant under the circumstances.

         
         

      2. Mitigating factors.

   
   

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   1. Absent any mitigating circumstances, a license may be suspended for no less than two days. Terms of license suspensions resulting from multiple violations or Final Orders shall be applied consecutively, not concurrently.

      
      

   2. Fines resulting from multiple violations or Final Orders shall be assessed cumulatively.

      
      

   3. License revocation may be recommended in any case or for any violation when the aggravating circumstances, licensee's compliance history, and conditions of the public lodging establishment or public food service establishment present a significant threat to the public health, safety, and welfare.

   
   

4. Petitioner proved by clear and convincing evidence that the Restaurant violated Rules 3-302.11(A)(4), 3-302.12, 3-305.11, 5-205.11(A), and 6-301.14, FC. Petitioner proved the Restaurant committed five critical violations.

5. Petitioner proved by clear and convincing evidence that the Restaurant violated Rules 4-101.11, 4-501.11, 4-501.12, 4- 601.11(C), 4-603.12, 4-903.11(B), and 4-903.12(A), FC; and rules 61C-1.004(6) and 61C-1.004(7). Petitioner proved the Restaurant committed six non-critical violations.

   
   

6. In aggravation, there are two prior final orders entered against the Restaurant in 2010, one of which contained similar offenses. There are no mitigating circumstances.

7. In this case, the Restaurant is guilty of five critical violations and six non-critical violations. This is the "third violation" under the guidelines. The penalties range from an administrative fine of $350 to $1,000 per non-critical violation, or $750 to $1,000 per critical violation, and both have the option to suspend the license and/or impose an administrative fine. In its PRO, Petitioner proposes a suspension of four consecutive days. This is within the penalty guidelines.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding the Restaurant guilty of violating five critical and six non-critical Food Code or rule standards and imposing a suspension of the Restaurant's license for four consecutive days. The suspension shall begin on the fortieth day after the final order is filed with Petitioner's agency clerk.

DONE AND ENTERED this 23rd day of August, 2012, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 23rd day of August, 2012.

ENDNOTES

1/ Unless specifically stated otherwise, all references to Florida Statutes will be to the 2010 version.

2/ The hearing did not begin until 9:18 a.m., as the undersigned's assistant attempted to contact Respondent to no avail.

3/ Rule 61C-1.004 was amended on April 18, 2012. Sub-subsection (9)(d) became subsection (7).

4/ Ms. Hopper has also been trained on statutes and rules for the regulation of public lodging establishments. However, that area is not under scrutiny and will not be addressed further.

COPIES FURNISHED:

Robert Leroy Ehrhardt, Esquire Department of Business and

Professional Regulation Suite 14

1940 North Monroe Street Tallahassee, Florida 32399

Mahmood Siddiqui Chaat House

9472 South Orange Blossom Trail Orlando, Florida 32837

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

William L. 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: 12-001520

Orders for Case No: 12-001520