STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 14-3512

ITALIO EAST BOCA, LLC, d/b/a ITALIO,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P. Resavage for final hearing by video teleconference on

September 26, 2014, 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: Christopher Russo, pro se

Post Office Box 772289 Ocala, Florida 34477

STATEMENT OF THE ISSUE

The issue in this case is whether on October 23, 2013, and May 6, 2014, Respondent was out of compliance with the food

safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, as alleged in the Amended Administrative Complaint, and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On July 23, 2014, Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants ("the Division"), issued an Amended Administrative Complaint ("Complaint") against Respondent Italio East Boca, LLC, d/b/a/ Italio, alleging violations of rules implementing chapter 509, Florida Statutes, which relate to food safety. Respondent timely requested a formal hearing to contest the allegations, and on July 28, 2014, the matter was referred to the Division of Administrative Hearings ("DOAH").

During the final hearing, the Division presented the testimony of Tara Palmer and introduced three exhibits. Pursuant to the Division's request, the undersigned took official recognition of various provisions of the Florida Statutes, the Florida Administrative Code, and the Food Code.1/ Christopher Russo testified on behalf of Respondent.

The Transcript of the final hearing was filed on October 14, 2014. The Division timely filed a Proposed Recommended Order and

the same has been considered by the undersigned in issuing this Recommended Order.

Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged violations.

FINDINGS OF FACT

1. The Division is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules.

2. At all times material to this case, Respondent was licensed as a public food service establishment, operating a restaurant located at 1658 North Federal Highway, Boca Raton, and holding license number 6020868.

3. Ms. Tara Palmer has been employed by the Division for almost five years. She is presently a Senior Sanitation and Safety Specialist with the Division. Prior to her employment with the Division she was employed in the food industry for approximately 20 years. She has had training in sanitation and inspection, standardized training regarding the Food Code, on- the-job training, and continual monthly education. She performs approximately 1000 inspections yearly.

4. On October 23, 2013, Ms. Palmer conducted a food service inspection on Respondent. Ms. Palmer prepared a Food Service

   
   

   Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed

   Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent.

5. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on October 23, 2013, Respondent's Roma and Alfredo sauces had been prepared the previous day, placed in tightly covered 22 quart gallon containers, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the sauces were 52°F.

6. Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3-501.15. The improper cooling method deficiency was deemed a violation that required further review; however, same was not an immediate threat to the public. Respondent was notified that the observed violation must be corrected by December 24, 2013.

7. On January 8, 2014, Ms. Palmer performed a "call-back" inspection. On that date, the improper cooling deficiency observed on October 23, 2014, had been corrected.

8. On May 6, 2014, Ms. Palmer conducted a food service inspection of Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations

   
   

   observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed

   Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent.

9. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on May 6, 2014, Respondent's spicy and Pomodoro sauces had been prepared the previous day, placed in a tightly covered 22-quart gallon container, and cooled overnight in a

   walk-in cooler. Due to this methodology, at the time of inspection, the spicy sauce was 48°F at the start of the inspection and 47.5°F at the end of the inspection. The Pomodoro sauce was found to be 48°F at the start of the inspection and 47.3°F at the end of inspection.

10. Again, Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3- 501.15.

11. No evidence was introduced to indicate that Respondent had any previous violations. No evidence was introduced to refute the above-noted deficiencies.

    
    

    CONCLUSIONS OF LAW

    
    

12. DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

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

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

15. 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).

    
    

16. 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 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.

    
    

    In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

    
    

17. Section 509.032(2)(d) requires the Division 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.

18. Section 509.032(6) gives the Division authority to adopt rules to carry out the provisions of chapter 509.

19. The Division has adopted Florida Administrative Code Rule 61C-1.001(14). This rule defines 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, Chapter 7, and Sections 8-103.11 and 8-103.12 of the Food Code, 2009 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: Conducting Risk-based Inspections (https://www.flrules.org/Gateway/reference.as p?No=Ref-01536), herein adopted by reference.

    
    

20. Food Code Rule 3-501.14, entitled "Cooling," provides, in pertinent part:

    
    

    1. Cooked POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE CONTROL FOR SAFETY FOOD) shall be cooled:

       
       

       1. Within 2 hours from 57°C(135°F) to 21°C(70°F); and

          
          

       2. Within a total of 6 hours from 57°C(135°F) to 5°C(41°F) or less.

          
          

    2. POTENTIALLY HAZARDOUS FOOD (TIME/TERMPERATURE CONTROL FOR SAFETY FOOD) shall be cooled within 4 hours to 5°C(41°F) or less if prepared from ingredients at ambient temperature, such as reconstituted FOODS and canned tuna.

       
       

21. Food Code Rule 3-501.15, entitled "Cooling Methods," provides:

    1. Cooling shall be accomplished in accordance with the time and temperature criteria specified under § 3-501.14 by using one or more of the following methods based on the type of FOOD being cooled:

       
       

       1. Placing the FOOD in shallow pans;

          
          

       2. Separating the FOOD into smaller or thinner portions;

          
          

       3. Using rapid cooling EQUIPMENT;

          
          

       4. Stirring the FOOD in a container placed in an ice water bath;

          
          

       5. Using containers that facilitate heat transfer;

          
          

       6. Adding ice as an ingredient; or

          
          

       7. Other effective methods.

       
       

    2. When placed in cooling or cold holding EQUIPMENT, FOOD containers being cooled shall be:

       
       

       1. Arranged in the EQUIPMENT to provide maximum heat transfer through the container walls; and

          
          

       2. Loosely covered, or uncovered if protected from overhead contamination as specified under SUBPARAGRAPH 3-305.11(a)(2), during the cooling period to facilitate heat transfer from the surface of the FOOD.

          
          

22. The unrefuted testimony of Ms. Palmer established that on October 23, 2013, and May 6, 2014, Respondent, on the day prior to the respective inspections, stored sauces in a tightly sealed 22-quart container, and placed the same into a walk-in cooler. Due to this methodology, on the dates of inspection, the cooling of the sauces was not accomplished in accordance with the time and temperature criteria specified under Food Code

    Rule 3-501.14. Specifically, the sauces inspected were not 41°F or less, as is required. Ms. Palmer is an experienced and knowledgeable professional and her testimony is credited. The reports prepared by Ms. Palmer at the time of the respective inspections corroborated her testimony. Respondent offered no evidence to the contrary.

23. Petitioner proved by clear and convincing evidence that Respondent violated Food Code Rule 3-501.15(A), as incorporated by reference in rules of the Division, on October 23, 2013, and May 6, 2014.

    
    

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

    (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.

    
    

25. The Division has adopted rule 61C-1.005(6), establishing disciplinary guidelines for the imposition of penalties for violations of the Food Code. It provides in pertinent part:

    (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.

    
    

    1. 1st offense – Administrative fine of $200 to $400.

    
    

26. Rule 61C-1.005(5)(b) provides in relevant part:

    
    

    "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.

    
    

27. The violations of Food Code Rule 3-501.15(1) were determined by the Division to require further review, but were not an immediate threat to the public and were identified as intermediate items. Florida Administrative Code Rule 61C- 1.001(19) defines the term "intermediate item" as an item defined in the Food Code as a Priority Foundation Item. Food Code Rule

    1-201.10, entitled Applicability and Terms Defined, provides the following concerning a Priority Foundation Item:

    1. "Priority foundation item" means a provision in this Code whose application supports, facilitates or enables one or more PRIORITY ITEMS.

       
       

    2. "Priority foundation item" includes an item that requires the purposeful incorporation of specific actions, equipment or procedures by industry management to attain control of risk factors that contribute to foodborne illness or injury such as personnel training, infrastructure or necessary equipment, HACCP plans, documentation or record keeping, and labeling; and

       
       

    3. "Priority foundation item" is an item that is denoted in this Code with a superscript Pf.

    
    

28. Food Code Rule 3-501.15(A) is noted by the superscript Pf. The above-violations, therefore, are intermediate violations within the meaning of rule 61C-1.005(5)(b).

29. Accordingly, Respondent is subject to an administrative fine of $200 to $400 on each violation.

30. Rule 61C-1.005(7) sets forth aggravating or mitigating factors which may be considered in application of the penalty guidelines. None of the factors listed in the rule are present in this case to the extent necessary to justify a penalty outside of the standard penalty range.

31. Under all the circumstances, a fine of $200 for each of the violations, for a total fine of $400 is reasonable.

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 finding Italio East Boca, LLC, d/b/a Italio, in violation of two intermediate violations, and imposing a fine of $400, to be paid within 30 calendar days of the effective date of the final order entered in this case.

DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 30th day of October, 2014.

ENDNOTE

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 Rule 3- 501.15.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 (eServed)

Christopher Russo Italio

Post Office Box 772289 Ocala, Florida 34477

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399 (eServed)

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399 (eServed)

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: 14-003512

Orders for Case No: 14-003512