STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

SUBWAY NO. 32148,

Respondent.

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) Case No. 12-3871

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on April 2, 2013, by video teleconference at sites in Tallahassee and Tampa, Florida, before Elizabeth W. McArthur, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: James F. Hampton, Authorized Representative Subway No. 32148

9801 Compass Point Way Tampa, Florida 33615-4218

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated October 2, 2012, and, if so, what penalty is warranted.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Hotels and Restaurants (the Division or Petitioner), alleged in an Administrative Complaint dated October 2, 2012 (Complaint), that Subway No. 32148 (Subway or Respondent) violated the standards governing public food service establishments for which a penalty should be imposed. In a timely-filed Election of Rights form, Respondent disputed the allegations and requested an administrative hearing. The case was referred to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing requested by Respondent.

The final hearing was initially set for February 7, 2013.

The Division filed an unopposed motion for continuance, which was granted, and the final hearing was rescheduled for April 2, 2013.

At the hearing, Petitioner presented the testimony of Douglas Peterson, sanitation and safety specialist for the Division. Petitioner's Exhibits 1 and 2 were admitted in evidence. In addition, at Petitioner's request, official recognition was taken of the following laws and rules: section

509.032(6), Florida Statutes (2012)1/; Florida Administrative Code Rules 61C-1.001(13) and 61C-1.005; and rule 6-501.111 of the 2001

1. Food and Drug Administration Food Code (Food Code).2/ Respondent presented the testimony of Julian Paz, manager of

   Subway. Respondent offered in evidence a few invoices bearing the Orkin logo regarding services provided at Subway and two reports purporting to document evaluations of Respondent by Subway franchise representatives. In response to Petitioner's hearsay objection, Respondent explained that the documents were not being offered to prove the truth of the facts stated therein; instead, the documents were only offered to show the steps taken by Respondent to control pests. However, Respondent also indicated that its witness would be able to testify to those facts. Therefore, ruling on the documents was deferred, and Respondent was informed that the documents could be offered again, if they were still deemed necessary after its witness testified. Respondent did not offer the documents in evidence again; the documents would have been cumulative evidence of the limited purpose for which they were initially offered and, otherwise, were uncorroborated hearsay.

   At the conclusion of the final hearing, the parties were informed of their right to file proposed recommended orders within ten days after the final hearing transcript was filed

   at DOAH. The one-volume Transcript was filed on April 16, 2013.

   
   

   Petitioner timely filed its Proposed Recommended Order, which has been considered in the preparation of this Recommended Order.

   Respondent did not file a proposed recommended order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes.

   2. At all times material to this case, Respondent was a restaurant located at 12326 University Mall Court, Tampa,

      Florida, 33612, holding Permanent Food Service license no. NOS3915662.

   3. On September 25, 2012, Douglas Peterson, an experienced sanitation and safety specialist with the Division, performed a routine inspection of Respondent. Mr. Peterson has been employed by the Division for six years and has conducted approximately 1,000 inspections per year. He inspected Subway in the early afternoon, accompanied by one of Respondent's employees, not identified, but described as a young man who was working the counter. Mr. Peterson utilized a personal data assistant to record his findings in an inspection report that he prepared while conducting the inspection.

   4. During the inspection, Mr. Peterson observed a number of live roaches in three different areas and recorded his observations in the inspection report. Mr. Peterson counted ten

      
      

      live roaches under the three-compartment sink between the wall and the sink; there were three live roaches in an old reach-in cooler next to the walk-in cooler; and there were four more live roaches under and behind the ice machine. In addition,

      Mr. Peterson observed dead roaches by the old reach-in cooler next to the walk-in cooler. Mr. Peterson pulled out the reach-in cooler and found more dead roaches in the compressor compartment. Mr. Peterson's testimony regarding the roach activity he observed was credible and unrebutted.

   5. A critical violation of the Food Code is a violation that is likely to contribute to food contamination, illness, and other environmental health hazards. The observed presence of

      17 live roaches at multiple locations in Respondent's establishment was a "critical violation" of the Food Code, because roaches are capable of transmitting disease to humans by contaminating food and cross-contaminating food contact surfaces.

   6. Respondent pointed out that none of the live roaches were observed directly on food contact surfaces. However, the fact that the live roaches were found in dark areas of refuge (in, under, or behind equipment and sinks) in mid-afternoon, while the restaurant was open, does not mean the danger of contamination can be minimized. To the contrary, the presence of a large number of live roaches in multiple areas--including areas

      
      

      near where food is stored and prepared and where dishes are washed--is a significant contamination threat.

   7. Due to the large number of live roaches observed in multiple locations, Mr. Peterson determined that the critical violation was significant enough that it required immediate attention, and his inspection report recommended that restaurant operations stop temporarily until the roach infestation was alleviated. Based on Mr. Peterson's report, the Division entered an emergency order of suspension, and Subway was temporarily closed to correct the violation, with a follow-up inspection the next morning.

   8. Julian Paz, the store manager, was not present during the inspection, but he arrived after Mr. Peterson had sent his inspection report to the Division for a determination regarding whether an emergency suspension order would be issued.

      Mr. Peterson discussed the inspection report's findings with Mr. Paz, and Mr. Paz signed the inspection report on behalf of Respondent.

   9. At hearing, Mr. Paz described the steps taken by Subway in an attempt to control the presence of roaches. He testified that someone from Orkin comes the first Thursday of every month to perform a routine inspection and pest control service. The mall in which Subway is located also has monthly pest control

      
      

      service. In addition, the Subway restaurant undergoes a Subway corporate inspection at a random time every month.

   10. Mr. Paz also described the steps taken by Subway employees, including cleaning the store three or four times a day, sweeping and mopping, and cleaning the surfaces. When there are deliveries, either he or his assistant inspects the boxes for signs of rodent or pest activity.

   11. Mr. Paz testified that he thought that both Orkin and the Subway corporate inspector had conducted inspections as recently as the day before Mr. Peterson's inspection.

   12. The Division presented no evidence of prior disciplinary action against Respondent.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 & 120.57(1), Fla. Stat.

   14. In this disciplinary action, Petitioner bears the burden of pleading in the Complaint the facts and law on which it relies to take action against Respondent. See Cottrill v. Dep't

       of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v.

       
       

       Dep't of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter

       
       

       v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

       
       

   15. Petitioner also has the burden to prove the allegations in the Complaint by clear and convincing evidence. Dep't of

       
       

       Banking and Fin. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). The clear and convincing evidence standard was defined in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), as

       follows:

       
       

       [C]lear 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.

       
       

   16. Petitioner has the responsibility to inspect public food service establishments to enforce the provisions of chapter 509, pursuant to section 509.032(2)(c).

   17. As a licensed public food service establishment, Respondent is subject to inspection and to the requirements of chapter 509 and its implementing rules.

   18. Section 509.032(2)(d) requires Petitioner to adopt and enforce standards and requirements for obtaining, storing, preparing, processing, serving, or displaying food to protect the public from food-borne illness in public food service establishments.

       
       

   19. The Division has adopted rule 61C-1.001(13), which incorporates by reference various provisions of the Food Code, including rule 6-501.111.

   20. Based on the roach activity found on September 25, 2012, the Complaint charged Respondent with a violation of rule 6-501.111 of the Food Code. That rule provides as follows:

       Controlling Pests. The presence of insects, rodents, and other pests shall be controlled to minimize their presence on the premises by: (A) routinely inspecting incoming shipments of food and supplies;

       (B) routinely inspecting the premises for evidence of pests; and (C) using methods, if pests are found, such as trapping devices or other means of pest control as specified under sections 7-202.12, 7-206.12, and

       7-206.13; and (D) eliminating harborage conditions.

       
       

   21. Petitioner proved by clear and convincing evidence that Respondent failed to control pests so as to minimize their presence on the premises. Petitioner reasonably determined that the violation was critical and required immediate action to alleviate the roach infestation and the public health danger posed by that condition.

   22. Respondent established that at least some of the steps identified in the Food Code rule are taken in an effort to control pests, including monthly pest control services, monthly corporate inspections, and store practices that include regular cleaning and inspection of incoming boxes. However, the observed presence on

       
       

       September 25, 2012, of 17 live roaches in three different areas of the restaurant establishes that Respondent's efforts to control pests were inadequate and ineffective. The observed presence

       of 17 live roaches constitutes more than minimal roach presence.4/

       
       

   23. The Division proposed an administrative fine of $500.00 for the critical violation. Rule 61C-1.005 sets forth the Division's disciplinary guidelines, which provide, in relevant part, as follows:

       (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.

          
          

          1. 1st offense--Administrative fine of $150 to $300.

             
             

          2. 2nd offense--Administrative fine of $250 to $500.

             
             

          3. 3rd and any subsequent offense-- Administrative fine of $350 to $1,000, license suspension, or both.

          
          

       2. Critical violation. 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.

       
       

       1. 1st offense--Administrative fine of $250 to $500.

          
          

       2. 2nd offense--Administrative fine of $500 to $1,000.

          
          

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

       
       

   24. The proposed fine is in keeping with the Division's guidelines and is reasonable under all the facts and circumstances of this case.

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 determining that Respondent violated rule 6-501.111 of the Food Code and imposing a fine of $500.00, payable under terms and conditions deemed appropriate.

DONE AND ENTERED this 10th day of May, 2013, in Tallahassee,

Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 10th day of May, 2013.

ENDNOTES

1/ All references to statutes are to the Florida Statutes (2012), the law in effect at the time of the alleged violation.

2/ All references to rules are to the versions in effect on September 25, 2012, when the alleged violation took place. It is noted that Petitioner requested official recognition of rule

61C-1.001(14); the corresponding rule text provided by Petitioner incorporated by reference the 2001 Food Code. The rule paragraph corresponding to that text was renumbered from subsection (14) to subsection (13), by rule amendment, effective in June 2012.

Therefore, the correct number of the rule text for which official recognition was requested and granted is rule 61C-1.001(13). The parties agreed that substantive changes to the rule to incorporate a newer version of the Food Code, which became effective January 1, 2013, are not applicable here.

3/ Respondent offered no evidence of any steps taken to eliminate harborage conditions. The ordinary meaning of "harborage" is shelter or refuge. See, e.g., American Heritage Dictionary of the English Language, 4th Ed. (2010), available online at http://www.yourdictionary.com/harborage. The evidence suggested that harborage conditions existed at Subway, such as an old

reach-in cooler sitting next to the walk-in cooler, where both live and dead roaches were found.

4/ In an effort to minimize the significance of the large number of live roaches observed, Respondent tried to suggest the possibility that all 17 live roaches could have been the offspring of a single roach. It is by no means clear that common lineage would somehow make the large numbers of live roaches less of a concern from a contamination standpoint. Moreover, if Respondent was attempting to suggest the possibility that the

17 roaches may have just been born moments before the inspection, and, thus, not previously detectable, that suggestion is refuted by Mr. Peterson's contemporaneous finding in which he described the roaches he observed as "in various stages of life."

COPIES FURNISHED:

William L. Veach, Director Division of Hotels and Restaurants 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 32399-0792

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

James F. Hampton Subway No. 32148

9801 Compass Point Way Tampa, Florida 33615

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: 12-003871

Orders for Case No: 12-003871