STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 13-1751

JKL'S DELIGHT,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Edward T. Bauer for final hearing by video teleconference on July 1, 2013, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Kharetta Blake, pro se

3582 West Broward Boulevard Fort Lauderdale, Florida 33312

STATEMENT OF THE ISSUES

The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food

service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.

PRELIMINARY STATEMENT

On February 11, 2013, Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants ("the Division"), issued a three-count Administrative Complaint ("Complaint") against Respondent JKL's Delight, charging the licensed restaurant with various offenses relating to noncompliance with the rules governing food service establishments. Respondent timely requested a formal hearing to contest the allegations, and, on May 14, 2013, the matter was referred to the Division of Administrative Hearings ("DOAH").

During the final hearing, the Division presented the testimony of Maor Avizohar and introduced three exhibits, numbered 1 through 3. Pursuant to the Division's request, the undersigned took official recognition1/ of various provisions of the Florida Statutes, the Florida Administrative Code, and the Food Code.2/ The owner of the licensed establishment, Kharetta Blake, testified on behalf of Respondent.

The Transcript of the final hearing was filed on July 19, 2013. On July 25, 2013, and at the Division's request, the undersigned extended the deadline for the submission of proposed recommended orders to August 12, 2013. Thereafter, the Division

timely filed a Proposed Recommended Order that has been considered in the preparation of this Recommended Order. Respondent did not file a post-hearing submission of any kind.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2012 edition.

FINDINGS OF FACT

1. The Division 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 operating at 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license

   number 1621408.

   
   

3. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits,

   Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants.

4. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of

   
   

   providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than

   135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/

   
   

5. The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

7. Section 509.261 sets forth the acts for which the Division may impose discipline. This statute provides, in pertinent part:

   1. Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:

      
      

      1. Fines not to exceed $1,000 per offense;

         
         

      2. Mandatory completion, at personal expense, of a remedial educational program administered by a food safety training program provider approved by the division, as provided in s. 509.049; and

         
         

      3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

      
      

   2. For the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a "critical law or rule," as that term is defined by rule.

      
      

8. By rule, the Division has defined the term "Food Code" as follows:

   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.

   
   

   Fla. Admin. Code R. 61C-1.001(14).

9. Food Code Rule 5-202.12 reads: Handwashing Facility, Installation.

   (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least 38°C (100°F) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory.

   
   

10. Food Code Rule 3-304.12(F) provides:

    
    

    During pauses in food preparation or dispensing, food preparation and dispensing utensils shall be stored: (F) In a

    
    

    container of water if the water is maintained at a temperature of at least

    135 degrees Fahrenheit and the container is cleaned at a frequency specified under subparagraph 4-602.11(D)(7).

    
    

11. 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). Accordingly, to impose discipline, the Division must prove the charges against Respondent by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996); 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).

12. 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)).

    
    

13. The undersigned has determined, as a matter of ultimate fact, that the Division established Respondent's guilt

    
    

    regarding noncompliance with the following provisions: Food Code Rule 3-304.12(F), as charged in Count One of the Complaint; and Food Code Rule 5-202.12, as alleged in Count Two. In making these determinations, the undersigned concludes that "the plain language of the applicable . . . rules, being clear and unambiguous, [can] be applied in a straightforward manner to the historical events at hand without simultaneously examining extrinsic evidence of legislative intent or resorting to principles of interpretation." Dep't of Bus. & Prof'l Reg., Div. of Hotels & Rests. v. Latin Am. Cafeteria, Inc., Case

    No. 05-2733 (Fla. DOAH Nov. 2, 2005; Fla. DBPR Dec. 13, 2005).

    
    

    It is therefore unnecessary to make additional legal conclusions concerning these violations. Id.

14. In determining the appropriate punitive action to recommend in this case, it is necessary to consult the Division's penalty guidelines. As the instant matter involves a first offense, Florida Administrative Code Rule 61C-1.005(6)(b) provides for a fine ranging from $250 to $500 for the critical violation committed by Respondent. With respect to the non- critical violation, the guidelines call for a fine of $150 to

    $300.

    
    

15. Rule 61C-1.005(7) provides that, in applying the penalty guidelines, various aggravating and mitigating circumstances may be considered, such as the licensee's

disciplinary history——or lack thereof———within the preceding

60 months. See Fla. Admin. Code R. 61C-1.005(7)(a)5. & (7)(b)7. In light of the absence of any disciplinary history on the part of Respondent, the undersigned recommends a mitigated fine of

$200 in connection with the critical violation, as well as a reduced fine of $100 for the non-critical violation. See Dep't of Bus. & Prof'l Reg., Div. of Hotels & Rests. v. Carina's Stone

Fired Pizza-Gelato, Case No. 13-0446 (Fla. DOAH May 13, 2013; DBPR June 6, 2013)(imposing mitigated fines of $200 per critical violation and $100 for non-critical violation where licensed establishment had no history of discipline).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk.

DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida.

S

Edward T. Bauer 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 13th day of August, 2013.

ENDNOTES

1/ Specifically, the undersigned has taken official recognition of section 509.032(6), Florida Statutes; Florida Administrative Code Rules 61C-1.001(14) and 61C-1.005; and Food Code Rules 3- 304.12(F), 5-202.12(A) and (B), and 6-202.15.

2/ The Food Code is a publication of the U.S. Food and Drug Administration, portions of which have been adopted by reference as rules of the Division. See Fla. Admin. Code R. 61C- 1.001(14).

3/ The Division further alleged (in Count Three of the Complaint), and Mr. Avizohar testified, that one of Respondent's exterior doors could not be properly sealed, in violation of Food Code Rule 6-202.15. The undersigned rejects Mr. Avizohar's testimony on this point in favor of that of Respondent's owner, who persuasively explained that the issue with the door had been adequately remedied prior to the callback inspection. In light of this determination, Count Three necessarily fails as a matter of fact.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Kharetta Blake

3582 West Broward Boulevard Fort Lauderdale, Florida 33312

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

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: 13-001751

Orders for Case No: 13-001751