STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 13-4979

NEW ROSEAU RESTAURANT,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Jessica E. Varn for final hearing by video teleconference on March 7, 2014, at sites in Miami and Tallahassee, Florida.

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: Jean-Claude Duval, pro se

New Roseau Restaurant 1313 North Federal Highway

Hollywood, Florida 33020-7864 STATEMENT OF THE ISSUE

Whether New Roseau Restaurant (New Roseau), a licensed restaurant, committed the violations alleged in the

Administrative Complaint, and, if so, what disciplinary action should be taken against New Roseau.

PRELIMINARY STATEMENT

On October 10, 2013, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), issued a 2-count Administrative Complaint against New Roseau, charging the licensed restaurant with two offenses relating to noncompliance with the rules governing food service establishments. New Roseau timely requested a formal hearing to contest the allegations, and the matter was referred to the Division of Administrative Hearings (DOAH).

During the final hearing held on March 7, 2014, the Division presented the testimony of Dominique Adam, a sanitation and safety specialist; the Division also introduced five exhibits, numbered 1 through 5. New Roseau presented the testimony of

Jean-Claude Duval, the license holder.

The Transcript of the final hearing was filed on March 28, 2014. The Division timely filed a Proposed Recommended Order which was considered during the preparation of this Recommended Order.

All citations to Florida Statutes refer to the 2013 version, unless otherwise indicated. All citations to the Florida Administrative Code are to the version in effect at the time of the violations.

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, New Roseau was licensed as a public food service establishment, with the following business address: 1180 Northwest 119th Street, Miami, Florida 33168.

3. On April 10, 2013, and August 21, 2013, New Roseau was inspected by Dominique Adam, a sanitation and safety specialist with the Division. During both visits, Mr. Adam noticed items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants.

4. Through the testimony of Mr. Adam and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 21, 2013, the following deficiencies subsisted at New Roseau: (1) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes; (2) no proof of required

   state-approved employee training for its employees, in violation of section 509.049(5), Florida Statutes.

5. Both of these deficiencies, pursuant to Florida Administrative Code Rule 61C-1.005, are characterized as intermediate violations.

   
   

6. New Roseau is a third or subsequent offender due to the filing of two disciplinary Final Orders within twenty-four months preceding the Administrative Complaint in the present case.

   CONCLUSIONS OF LAW

   
   

7. 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.

8. Section 509.261(1), Florida Statutes, provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of chapter 509, or the rules promulgated thereunder, is subject to fines not to exceed $1,000.00 per offense, and the suspension, revocation, or refusal of a license.

9. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional or business 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 Sec. & 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).

   
   

10. 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 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)).

11. Section 509.039, Florida Statutes, reads:

    
    

    It is the duty of the division to adopt, by rule, food safety protection standards for the training and certification of all food service managers who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. The standards adopted by the division shall be consistent with the Standards for Accreditation of Food Protection Manager Certification Programs adopted by the Conference for Food Protection. These standards are to be adopted by the division to ensure that, upon successfully passing a test, approved by the Conference for Food Protection, a manager of a food service establishment shall have demonstrated a knowledge of basic food protection practices. The division may contract with an organization offering a training and certification program that complies with division standards and results in a certification recognized by the Conference for Food Protection to conduct an approved test and certify all test results to the division. Other organizations offering programs that meet the same requirements may also conduct approved tests and certify all test results to the division. The division may charge the organization it contracts with a fee of not more

    
    

    than $5 per certified test to cover the administrative costs of the division for the food service manager training and certification program. All managers employed by a food service establishment must have passed an approved test and received a certificate attesting thereto. Managers have a period of 30 days after employment to pass the required test. All public food service establishments must provide the division with proof of food service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment. The ranking of food service establishments is also preempted to the state; provided, however, that any local ordinances establishing a ranking system in existence prior to October 1, 1988, may remain in effect.

12. Section 509.049(5), Florida Statutes, reads:

    
    

    1. It shall be the duty of each public food service establishment to provide training in accordance with the described rule to all food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within 60 days after employment. Certification pursuant to this section shall remain valid for

       3 years. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the training occurred, and the approved food safety training program used.

       
       

13. The Division established New Roseau's guilt regarding noncompliance with the above-cited statutory provisions by clear and convincing evidence.

    
    

14. Florida Administrative Code Rule 61C-1.005(5)(f)

    
    

    states:

    
    

    1. Definitions.

       
       

       * * *

       
       

       (f) “Third and any subsequent offense” means a violation of any law subject to penalty under Chapter 509, F.S., after two or more disciplinary Final Orders involving the same licensee have 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.

       
       

15. The prior Final Orders contained in Division Exhibits 4 and 5 have been reviewed for determination of the appropriate penalty. New Roseau is a third or subsequent offender due to the filing of two disciplinary Final Orders within twenty-four months preceding the Administrative Complaint in the present case. New Roseau was previously cited for violating sections 509.039 and 509.049(5), Florida Statutes.

16. Rule 61C-1.005(6)(b)(3) states:

(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.

* * *

(b) Intermediate violation.

* * *

3. 3rd offense- Administrative fine of $550 to $1,000, license suspension, or both.

1. Rule 61C-1.005(7) provides that, in applying the penalty guidelines, various aggravating and mitigating circumstances may be considered, including any aggravating factor that is relevant under the circumstances. See Fla. Admin. Code

   R. 61C-1.005(7)(a)6. Here, the previous citations for the same violations are aggravating factors.

2. A reasonable fine in this case, in light of the aggravating factors, is $800 for each of the two intermediate violations, for a total fine of $1,600.00.

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 New Roseau guilty of both counts in the Administrative Complaint, and ordering New Roseau to pay an administrative penalty in the amount of $1,600.00, to be paid within 30 days after the filing of the final order with the agency clerk.

DONE AND ENTERED this 28th day of April, 2014, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

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 28th day of April, 2014.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202

Jean-Claude Duval

New Roseau Restaurant 1313 North Federal Highway

Hollywood, Florida 33020-7864

Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

J. Layne Smith, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 13-004979

Orders for Case No: 13-004979