STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. MATTHEWS,

Respondent.

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) Case No. 12-3470

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on December 7, 2012, by video teleconference at sites in Jacksonville and Tallahassee, Florida, before Administrative Law Judge W. David Watkins of the Division of Administrative Hearings, pursuant to the authority set forth in sections

120.569 and 120.57(1),1/ Florida Statutes.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Matthew Medure

Matthews

2107 Hendricks Avenue

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the Administrative Complaint dated June 4, 2012, and, if so, what disciplinary action should be taken against Respondent?

PRELIMINARY STATEMENT

On June 4, 2012, Petitioner filed an Administrative Complaint, DBPR No. 2012-025394, against Respondent alleging a violation of chapter 509, Florida Statutes, and the rules promulgated thereto. The Administrative Complaint charged Respondent with violating the following:

1. Rule 3-501.16(A), Food Code, states in pertinent part:

Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under section 3- 501.19, and except as specified in paragraph

(B) of this section, potentially hazardous food shall be maintained:

(1) At 135 degrees Fahrenheit or above, except that roasts cooked to a temperature and for a time specified in paragraph 3- 401.11(B) or reheated as specified in paragraph 3-403.11(E) may be held at a temperature of 130 degrees Fahrenheit or above; or (2) at a temperature specified in the following: (A) 41 degrees Fahrenheit or less.

Observed potentially hazardous food cold held at greater than 41 degrees Fahrenheit. Cooked onions and tomatoes at 47 degrees Fahrenheit and cheese at 50 degrees Fahrenheit in prep area.

Respondent disputed the allegation and requested an evidentiary hearing pursuant to section 120.57(1), Florida Statutes, through an Election of Rights form.

On October 22, 2012, the case was referred to the Division of Administrative Hearings and assigned to the undersigned. The case was noticed for hearing on December 7, 2012, and was conducted as scheduled.

At hearing, Petitioner presented the testimony of two witnesses, Emily Pudoff and Iliana Espinosa-Beckert, both of whom are Sanitation and Safety Specialists employed by Petitioner. Petitioner offered three exhibits that were accepted into evidence. In addition, at Petitioner's request, the undersigned took official recognition of section 509.032(6), Florida Statutes; Florida Administrative Code Rules 61C-l.00l.14 and 61C-l.005 and Rule 3-501.16(A), Food Code.

Respondent presented the testimony of Marshall Brown, the manager of Matthews restaurant, and Matthew Medure, the owner of the restaurant. Respondent did not offer any exhibits into evidence.

At the conclusion of the final hearing, the parties stipulated that proposed recommended orders would be filed within 10 days of the filing of the one-volume official transcript with the Division, which occurred on December 19, 2012. However, Respondent subsequently filed a request for

extension of time to file its proposed recommended order, and that request was granted, without objection. Thereafter Petitioner and Respondent timely filed Proposed Recommended Orders, both of which have been carefully considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made:

1. Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (DBPR), is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes.

2. At all times material to this case, Respondent was a restaurant, Matthews, located at 2107 Hendricks Avenue, Jacksonville, Florida 32207, holding Food Service license number 2612238.

3. Emily Pudoff is employed by DBPR as a Sanitation and Safety Specialist in DBPR's Jacksonville office. Inspector Pudoff has worked for DBPR for approximately two-and-a-half years. Prior to working for DBPR, Inspector Pudoff was a server at Ruby Tuesday. Upon gaining employment with DBPR, Inspector Pudoff was standardized on the Food Code and trained on the laws

   
   

   and rules pertaining to public food and lodging establishments. Inspector Pudoff is also a Certified Food Manager and has been trained on Hazard Analysis and Critical Control Points.

   Inspector Pudoff performs approximately eight hundred inspections a year.

4. Petitioner's second witness, Iliana Espinosa-Beckert, is also employed by DBPR as a Sanitation and Safety Specialist in the Jacksonville office. Inspector Espinosa-Beckert has worked for DBPR for approximately five years. Upon gaining employment with DBPR, Inspector Espinosa-Beckert was standardized on the Food Code and trained in the laws and rules pertaining to public food and lodging establishments. Inspector Espinosa-Beckert is also a Certified Food Manager and has been trained on Hazard Analysis and Critical Control Points. Inspector Espinosa-Beckert performs approximately six hundred inspections a year.

5. Critical violations are violations that are more likely to contribute to contamination or an illness or an environmental health hazard. Non-critical violations are less likely to contribute to contamination or illness or an environmental health hazard.

6. On June 28, 2011, Inspector Pudoff performed a "standardization inspection"2/ of Respondent, Matthews restaurant. During the inspection of Matthews, which lasted

   
   

   three hours and 55 minutes, Inspector Pudoff prepared and signed an inspection report setting forth the violations she observed during the inspection. Relevant to the issue to be determined in this proceeding, Inspector Pudoff observed potentially hazardous food cold not held at 41 degrees Fahrenheit or below. Specifically, Inspector Pudoff observed Italian ham at 53 degrees Fahrenheit,3/ and soft cheese4/ at 53 degrees Fahrenheit in a reach-in cooler.

7. At the conclusion of the June 28, 2011, visit, Inspector Pudoff informed Respondent about the violations she had observed. Respondent's representative signed the inspection report, acknowledging receipt of the report. Also, at this time, Inspector Pudoff made the Respondent aware that all violations noted during the inspection needed to be corrected by August 29, 2011.

8. On May 18, 2012, Inspector Espinosa-Beckert performed a routine food service inspection of Matthews. During this inspection, Inspector Espinosa-Beckert prepared and signed an inspection report indicating that some of the violations noted on the June 28, 2011, inspection report had not been corrected. Specifically, two cold food items were found to be at temperatures in excess of 41 degrees Fahrenheit. Those items were cooked onions and tomatoes at 47 degrees Fahrenheit in the prep area, and cheese at 50 degrees Fahrenheit in the prep area.

   
   

9. At the conclusion of the May 18, 2012, inspection, Inspector Espinosa-Beckert notified Respondent of the repeat violations. The report indicated that Inspector Espinosa- Beckert was recommending that an administrative complaint be filed against Matthews based on a repeat temperature violation. Respondent's representative signed the inspection report, thereby acknowledging receipt of, but not the accuracy of, the report.

10. Marshall Brown is the manager of Matthews, and was present during the second inspection. Manager Brown testified that Inspector Espinosa-Beckert incorrectly identified the onions and tomatoes as being cooked, when they were actually uncooked. Mr. Brown credibly testified:

    1. I confirmed that the onions and tomatoes were uncooked, but as you stated earlier, they were in a marination process with olive oil, fresh herbs and vinegar. So like you said, it looked like they were cooked, but it does —- it’s deceiving because when, you know, they’re soaking in those, they tend to break down and look like they’re cooked.

       But it’s an uncooked, room-temperature or cold salad that goes on top of a fish preparation.

       
       

11. Uncooked vegetables are non-potentially hazardous and do not need to be cold held at 41 degrees Fahrenheit or below, while cooked vegetables are potentially hazardous and must be cold held at 41 degrees Fahrenheit or below. In this instance, the more credible testimony established that the onions and

    
    

    tomatoes were uncooked, and therefore did not need to be held at

    
    

    41 degrees Fahrenheit or below.

    
    

12. The second food alleged to have been out of compliance during the second inspection was a soft cheese, identified at hearing as Mozzarella, located in the food preparation area. Inspector Espinosa-Beckert reported the temperature of the approximately two-inch thick piece of cheese to be 50 degrees Fahrenheit. However, Manager Brown testified that he and the restaurant's chef personally checked the temperature of the cheese 10 to 15 minutes after Inspector Espinosa-Beckert, and they recorded the temperature at 40 degrees. Although additional ice had been added adjacent to the pan in which the cheese was located, Manager Brown testified that based upon his more than 20 years’ experience in the restaurant business it would have taken at least an hour to drop the temperature of the cheese by 10 degrees had the cheese actually been at 50 degrees as reported by Inspector Espinosa-Beckert. This testimony was unrebutted by Petitioner.

13. Matthews is extremely diligent in complying with food temperature standards, and has systems in place to ensure that those standards are met. For example, the restaurant's coolers are equipped with “instant-read” thermometers. The cooler temperatures are monitored daily and those temperatures are

    
    

    recorded on a daily log. Preventive maintenance is performed on the coolers monthly to ensure their proper functioning.

14. The facts adduced at hearing do not clearly and convincingly establish that the temperatures of the two food items cited in the May 18, 2012, inspection were out of compliance with Rule 3-501.16(A), Food Code.

    CONCLUSIONS OF LAW

    
    

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

16. Petitioner has jurisdiction over the operation of public lodging establishments and public food service establishments, pursuant to section 20.165 and chapter 509.

17. Petitioner is authorized to take disciplinary action against the holder of such a license for operating in violation of chapter 509, or the rules implementing that chapter.

18. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Being penal in nature, each alleged violation “must be construed strictly, in favor of the one against whom the penalty would be imposed.” Munch v. Dep't

    
    

    of Prof'l Reg., Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).

19. Here, DBPR seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, Petitioner has the burden of proving the allegations charged in the Administrative Complaint against the Respondent by clear and convincing evidence. Dep't of Banking and Fin. Div. of Sec. and

    Investor Prot. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996) (citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987); Nair v. Dep't of Bus. & Prof'l Reg., 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

20. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:

    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 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. Id.

    
    

21. A licensee is charged with knowing the practice act that governs his or her license. Wallen v. Fla. Dep't of Prof'l Reg., Div. of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

22. The Administrative Complaint alleged that on

    
    

    June 28, 2011, and May 18, 2012, Respondent violated Rule 3-501 16(A)(1), Food Code. However, Petitioner brought the Administrative Complaint against Respondent based upon the alleged "repeat violations" observed during the May 18, 2012, inspection, to wit: "Observed potentially hazardous food cold held at greater than 41 degrees F. Cooked onions and tomatoes at 47 degrees F and cheese at 50 degrees F in prep area." (Administrative Complaint, Exhibit A). Thus, it is only the violations allegedly observed during the May 18, 2012, inspection that are legally relevant to the instant proceeding.

23. Food Code rule 3-501.16(A)(1), under which Respondent has been charged in Count I, sets forth the acts for which the Petitioner may impose discipline for time and temperature control for safety food. This rule provides in pertinent part:

    Rule 3-501.16(A), Food Code.

    
    

    Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under Section 3- 501.19, and except as specified in paragraph

    (B) of this Section, potentially hazardous food shall be maintained: (1) At 135 degrees Fahrenheit or above, except that roasts cooked to a temperature and for a time specified in paragraph 3-401.11(B) or

    
    

    reheated as specified in paragraph 3- 403.11(E) may be held at a temperature of

    130 degrees Fahrenheit or above; or (2) at a temperature specified in the following: (A)

    41 degrees Fahrenheit or less.

    
    

24. In this matter, Petitioner did not establish by clear and convincing evidence that Respondent was in violation of rule 3-501.16(A)(1), as alleged in the Administrative Complaint. With respect to the onions and tomatoes, the more credible evidence of record established that this particular food item was uncooked, and therefore need not be cold held at 41 degrees Fahrenheit or below.

25. With respect to the Mozzarella cheese, there was conflicting testimony as to the actual temperature of the cheese during the inspection. The unrebutted credible testimony of Respondent's witness, Manager Brown, that the cheese was 40 degrees Fahrenheit 10 to 15 minutes after being tested by Inspector Espinosa-Beckert, and that the temperature of the cheese could not have been dropped by 10 degrees that quickly, casts reasonable doubt on the accuracy of the reading recorded by Inspector Espinosa-Beckert. Therefore, there is insufficient evidence for a determination, by clear and convincing evidence, that the temperature of the Mozzarella cheese constituted a violation of the Food Code.

    
    

26. Petitioner failed to meet its burden to provide a sufficient factual basis that Respondent violated Rule 3- 501.16(A), Food Code.

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 that finds Respondent not guilty as charged in the Administrative Complaint.

DONE AND ENTERED this 31st day of January, 2013, in Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS 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 31st day of January, 2013.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2012 version.

2/ In order to maintain "standardization" on the Food Code, inspectors are periodically required to conduct inspections with certified training officers. Typically, restaurants that have many complex processes taking place are chosen for standardization inspections since they provide the greatest opportunity for inspectors to observe multiple restaurant operations during the same visit.

3/ The temperature of the Italian ham was also recorded at 52 degrees on the inspection report.

4/ The type of cheese was identified on the inspection report as "Borish" cheese.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

Matthew Medure Matthews

2107 Hendricks Avenue

Jacksonville, Florida 32207

William L. Veach, Director Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

J. Layne Smith, General Counsel 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: 12-003470

Orders for Case No: 12-003470