STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

STEAGLES, LLC,

Respondent.

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) Case No. 12-3214

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RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was conducted in this case on November 27, 2012, via video teleconference with sites in Tallahassee and Sebastian, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. The parties were represented as set forth below.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated provisions of the Food Code and, if so, what penalties should be

imposed.

PRELIMINARY STATEMENT

On April 24, 2012, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (hereinafter the "Division"), filed an Administrative Complaint charging Respondent with various violations of Florida Statutes, and rules governing the operation of public eating establishments. Respondent returned the Election of Rights form in which it requested a formal administrative hearing. The request was forwarded to the Division of Administrative Hearings ("DOAH") on September 26, 2012, and the case was scheduled on the date set forth above.

At the final hearing, the Division called one witness: Cristal Wood, senior sanitation safety specialist. The Division's Exhibits 1 through 3 were admitted into evidence. Official recognition was taken of Florida Statutes and portions of the Food Code.

Respondent did not appear at final hearing, neither in person nor through counsel or authorized representative.

A transcript of the final hearing was ordered by the Division. The Transcript was filed at DOAH on December 12,

2012. The parties were, by rule, allowed ten days from filing of the transcript to submit proposed recommended orders. The Division submitted a Proposed Recommended Order and it was duly considered in the preparation of this Recommended Order. No proposed recommended order was filed by Respondent.

FINDINGS OF FACT

1. The Division is responsible for monitoring all places of public food service and preparation in the state. It is the Division's duty to ensure that all public eating establishments comply with the standards set forth in relevant statutes and rules.

2. Steagles, LLC, operates a food establishment located at 1395 Cypress Avenue, No. C, Melbourne, Florida. For purposes of this Recommended Order, the establishment will be referred to as “Steagles.”

3. On January 30, 2012, at 11:10 a.m., the Division conducted an unannounced health and safety inspection of Steagles. A number of violations, both critical and non- critical, were found. Critical violations are those which are likely to lead to food-borne illnesses; non-critical violations are those which are not as likely to lead to such illnesses.

4. At the conclusion of inspection, the Division notified Respondent that a “callback” inspection would be performed on March 29, 2012, at 8:00 a.m., and that all the violations were

   
   

   to be corrected by that time. On the specified date, but at 1:26 p.m., the callback inspection was conducted at Steagles. The callback inspection resulted in a finding of three critical violations and four non-critical violations which had not been corrected since the initial inspection.

5. The critical violations found during the callback inspection were as follows:

   31-09-1 The sink used by employees to wash their hands was blocked by a bucket of towels.

   
   

   22-81-1 The interior of a microwave was heavily soiled; the interior of a reach-in cooler was heavily soiled; and, there was heavy encrusted material on a can opener.

   
   

   32-04-1 The restroom doors did not have self-closing devices attached to them, nor did the trash receptacles have lids.

   
   

6. The non-critical violations found during the callback inspection included the following:

   14-35-1 Cardboard was being used as a shelf liner; a cutting board was badly scored.

   
   

   15-35-1 A wooden shelf did not have sealant on it.

   
   

   37-06-1 Walls were heavily soiled with grease.

   
   

   38-07-1 There were no shields or caps on some of the lighting fixtures.

   
   

7. The storage of towels or other items in the sink used for washing hands could lead to cross-contamination which could lead to food-borne illness.

8. The soiled microwave, can opener, and reach-in cooler could lead to bacterial growth and could cause physical contamination of food.

9. The absence of self-closing doors and lids on restroom trash cans could result in the attraction and harborage of insects and rodents.

10. The non-critical violations, though less serious, could result in bacterial growth, the attraction of rodents, or other problems.

11. The conditions found during the inspection were attested to at final hearing by the inspector who made the observations. Respondent did not rebut or disprove any of the alleged violations.

    CONCLUSIONS OF LAW

    
    

12. 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). Unless stated otherwise herein, all references to the Florida Statutes shall be to the 2012 codification.

13. The burden of proof is on the Division to show, by clear and convincing evidence, that Respondent violated the Food

    
    

    Code as alleged in the Administrative Complaint. Ferris v.

    
    

    Turlington, 510 So. 2d 292 (Fla. 1987). The clear and convincing evidence standard is used in the instant case because the action is a penal licensure proceeding. Munch v. Dep't of Prof'l Reg., 592 So. 2d 1136 (Fla. 1st DCA 1992).

14. Clear and convincing evidence is an intermediate standard of proof which is more than the "preponderance of the evidence" standard used in most civil cases, but less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970). Clear and convincing evidence has been defined as evidence which:

    [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 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.

    
    

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

15. The disciplinary actions may be based only upon those offenses specifically alleged in the Administrative Complaint. See Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); and Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842,

    
    

    844 (Fla. 2d DCA 1984). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel & Rest. Comm'n v. Sunny Seas No. One, 104 So. 2d 570, 571 (Fla. 1958).

16. Florida Administrative Code Rule 61C-1.005 sets forth the various penalties and fines that can be imposed for violations of the Food Code. The rule establishes fines for first offenses, meaning violations for an entity which has not been the subject of a Final Order for the previous 24 months. For critical violations, the penalties are from $250.00 to

    $500.00 per violation; for non-critical violations the penalties range from $150.00 to $300.00. Section 7(b) of the rule allow for mitigation of the fines for certain reasons, including but not limited to the effect of the fine on the business or business owner’s livelihood, any attempts to correct the deficiencies, and whether there have been any disciplinary history for the entity. Respondent did not provide any evidence of mitigation.

17. In this case, the Division proved by clear and convincing evidence that Respondent is guilty of three critical violation and four non-critical violations. None of the violations was egregious; each of them was minimal in nature. There was no testimony that Respondent had prior violations on record.

    
    

18. A fine of $250.00 for each critical violation and

$150.00 for each non-critical violation is warranted, for a total fine in the amount of $1,350.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine in the amount of $1,350.00, to be paid by Respondent, Steagles, LLC, within 30 days of the entry of a Final Order in this matter.

DONE AND ENTERED this 27th day of December, 2012, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 27th day of December, 2012.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

Michael J. Patrick Steagles, LLC

No. 6

1395 Cypress Avenue

Melbourne, Florida 32935

William L. Leach, Director Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

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: 12-003214

Orders for Case No: 12-003214