STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 13-4636

UMAMI,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013),1/ before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"), on

January 24, 2014, by video teleconference at sites in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: ManLup Lee

Umami

1400 Northwest 87th Avenue Doral, Florida 33172

STATEMENT OF THE ISSUE

Whether Respondent, a licensed public food service establishment, violated chapter 509, Florida Statutes, by misrepresenting the identity of a food to the patrons of the establishment, as alleged in the Amended Administrative

Complaint.

PRELIMINARY STATEMENT

On or about September 26, 2013, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, took action against Respondent, Umami, charging the licensed restaurant with violating chapter 509 by misrepresenting the identity of a food (escolar) to the patrons of the establishment. Respondent timely requested an administrative hearing to contest Petitioner's action, and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1). Pursuant to its unopposed Motion to Amend Administrative Complaint, Petitioner subsequently was granted leave to file, and filed, an Amended Administrative Complaint.

Pursuant to notice, the final hearing was held on

January 24, 2014. Petitioner presented the testimony of Douglas Morgadanes, and Petitioner's Exhibits 1, 3, and 4 were admitted into evidence without objection. Respondent presented the

testimony of its owner, ManLup Lee. Respondent did not proffer any exhibits for admission into evidence.

The one-volume Transcript was filed on February 11, 2014, and the parties were given until February 21, 2014, to file their proposed recommended orders. Petitioner timely filed its Proposed Recommended Order, which was duly considered in preparing this Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with administering chapter 509, Florida Statutes, and all other applicable laws and rules related to the regulation and inspection of public food service establishments.

2. Respondent is a public food service establishment located at 1400 Northwest 87th Avenue, Doral, Florida. Respondent is licensed pursuant to, and is subject to, chapter

   509 and the rules adopted to implement that statute.

   
   

3. On September 25, 2013, Douglas Morgadanes, a Senior Sanitation and Safety Specialist employed by Petitioner, conducted a stipulation callback inspection ("callback inspection") at Respondent.2/

4. This callback inspection was conducted because Respondent was cited in June 2013 and paid a fine, pursuant to administrative complaint and final order, for a previous

   
   

   violation involving the issue in this proceeding—— misrepresenting escolar3/ as "white tuna" to its patrons.

5. During the callback inspection, Morgadanes observed fish being prepared at the sushi bar by sushi chefs.

6. Morgadanes testified that a card in the sushi display case identified one of the types of fish as "white tuna." Morgadanes' description of the sushi bar display case indicates that it was visible and accessible to Respondent's patrons.

7. Morgadanes questioned the sushi chefs regarding the type of fish, and they stated it was "white tuna." Upon further questioning, they identified it as escolar.

8. Escolar is not a type of tuna but, rather, is a type of mackerel. Accordingly, holding escolar out to restaurant patrons as "white tuna" would constitute misrepresenting its identity in violation of section 509.292(1).

9. Morgadanes cited Respondent for misrepresenting the identity of a food, escolar, and selling it as "white tuna" in violation of section 509.292(1).

10. At hearing, Respondent's owner, ManLup Lee, denied that Respondent misrepresented the identity of the escolar to its patrons. Lee testified, credibly, that following the first inspection that resulted in a fine for identifying escolar as "white tuna" on its menus,4/ Respondent altered its menus by

    
    

    placing a sticker over the term "white tuna" so that it no longer was visible to patrons as they reviewed the menu.5/

11. On rebuttal, Morgadanes acknowledged that he had seen the menu during the inspection and that the menu had been altered as Lee claimed. Morgadanes clarified that after he saw the altered menu he then went to the sushi bar and questioned the sushi chefs about whether they were serving "white tuna."

12. Morgadanes' testimony regarding the presence of a label card in the sushi display case was vehemently disputed by Lee, who was representing Respondent as its owner. Lee stated that "[w]e never, never put a level [sic] [label] or any name on that case. We have never done that . . . . We never put the name or put a piece of paper there." These statements were made during Lee's cross-examination of Morgadanes, before he (Lee) had been placed under oath to testify in Respondent's case in chief.6/ Lee did not repeat these statements in his testimony after he was placed under oath.7/

13. Under these circumstances,8/ it is determined that Petitioner met its burden to demonstrate that Respondent misrepresented the identity of escolar as "white tuna" to its patrons by labeling a fish in its sushi display case as "white tuna."9/

14. The Amended Administrative Complaint and Callback Inspection Report dated September 25, 2013, both identify the

    
    

    misrepresentation of escolar as "white tuna" as an "intermediate" violation of chapter 509.

    CONCLUSIONS OF LAW

    
    

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

16. This penal proceeding seeks to impose discipline on a professional license. Accordingly, Petitioner must prove the charge against Respondent alleged in the Amended Administrative Complaint by clear and convincing evidence. Dep't of Banking &

    Fin. 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).

17. Clear and convincing evidence requires that:

    
    

    [T]he 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)).

    
    

18. Section 509.292(1) provides in pertinent part:

    1. An operator may not knowingly and willfully misrepresent the identity of any food or food product to any of the patrons of such establishment. The identity of food or a food product is misrepresented if:

       
       

       * * *

       
       

       (b) The food or food product is served, sold, or distributed under the name of another food or food product[.]

       
       

19. Section 509.261(1) provides:

    
    

    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.

       
       

20. Rule 61C-1.005, Florida Administrative Code, establishes the disciplinary guidelines for imposing penalties on public food service establishments in administrative actions. The rule provides in pertinent part:

    1. Definitions.

       
       

       * * *

       
       

       (b) "Intermediate violation" means a violation of an intermediate item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to specific actions, equipment or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of this rule.

       
       

       * * *

       
       

       (e) "Second offense," and "second and any subsequent offense" mean a violation of any law subject to penalty under Chapter 509, F.S., after one disciplinary Final Order involving the same licensee has 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.

       
       

       * * *

       
       

    2. 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.

       
       

       * * *

       
       

       (b) Intermediate violation.

       
       

       * * *

       
       

       2. 2nd offense – Administrative fine of

       $375 to $750.

       
       

       * * *

       
       

    3. Aggravating or mitigating factors. The division may deviate from the standard penalties in paragraphs (a) through (n) 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:

    
    

    * * *

    
    

    (b) Mitigating factors.

    
    

    * * *

    
    

    4. Attempts by the licensee to correct the violation.

    
    

21. Based on the foregoing findings of fact, it is determined that Petitioner demonstrated, by clear and convincing evidence, that Respondent committed one count of misrepresenting a food in violation of section 509.292(1) by displaying escolar labeled as "white tuna" in a sushi bar display case visible and accessible to Respondent's patrons.

22. Pursuant to rule 61C-1.005(5)(e), this violation is Respondent's second offense for such misrepresentation within a 24-month period preceding the date of the Amended Administrative Complaint (December 31, 2013) in this proceeding.

23. Rule 61C-1.005(6)(b)2. authorizes imposition of an administrative fine ranging from $375.00 to $750.00 for the second offense involving an intermediate violation of chapter 509.

24. Here, Respondent attempted to correct the violation

    
    

    for which it was cited in June 2013 by altering its menus to cover the term "white tuna" so that it no longer was visible to patrons. However, the unrefuted evidence establishes that Respondent did not correct the sushi bar labeling.

25. Under these circumstances, it is determined that an administrative fine of $500.00 is reasonable and warranted.10/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order determining that Respondent, Umami, committed one violation of section 509.292(1), Florida Statutes, by misrepresenting a food, and imposing a fine of $500.00 for this violation.

DONE AND ENTERED this 25th day of March, 2014, in Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 25th day of March, 2014.

ENDNOTES

1/ Unless otherwise stated, all references are to Florida Statutes 2013.

2/ A stipulation callback inspection is an inspection performed to determine whether a violation of chapter 509 and applicable rules charged in a previous administrative complaint that resulted in a Stipulation and Consent Order have been corrected.

3/ Misrepresenting the identity of escolar may have significant health consequences for those who consume it because it can cause nausea and severe gastrointestinal symptoms.

4/ Lee testified that the menus previously listed escolar with the term "white tuna" in parentheses because many patrons do not recognize the name "escolar" but instead recognize the type of fish by the vernacular name "white tuna."

5/ The menu was not proffered or admitted into evidence.

6/ Lee is not an attorney.

7/ Section 120.569(2)(g) requires that "all testimony of parties and witnesses shall be made under oath."

8/ Here, Morgadanes' testimony is the only competent evidence in the record regarding whether the sushi display case contained a label identifying escolar as "white tuna."

9/ The statements made by the sushi chefs regarding the identity of the fish are not relevant to the outcome of this case.

Florida case law makes clear that a licensee's culpable responsibility is measured in terms of its own intentional wrongdoing or its negligence and lack of diligence supervising its employees——not the personal misconduct of its employees.

See Pic N' Save Central Florida, Inc. v. Dep't of Bus. Reg., 601 So. 2d 245, 250 (Fla. 1st DCA 1992). Here, there is no evidence that the sushi chefs were authorized to speak on behalf of Respondent or that Respondent was negligent or did not

diligently train its employees regarding representation of the foods it served.

10/ Respondent was fined $400.00 for its first violation of section 509.292(1) by misrepresenting escolar as "white tuna." The only competent evidence in the record establishes that Respondent attempted to, but did not completely, correct that violation. Since this proceeding involves a second offense involving that violation, it is reasonable to impose a slightly higher penalty to provide an incentive for Respondent to fully comply with section 509.292(1).

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

Tsz Lam Umami

1400 Northwest 87th Avenue Doral, Florida 33172

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

Diann S. Worzalla, Director Division of Hotels and Restaurants 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: 13-004636

Orders for Case No: 13-004636