STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 15-2308

MEXICAN FOOD EL RINCONCITO MEXICANO, LLC, d/b/a

EL RICONCITO MEXICANO,

Respondent.

/

RECOMMENDED ORDER

The final hearing in this matter came before Administrative Law Judge J. Bruce Culpepper of the Division of Administrative Hearings on June 19, 2015, by video teleconference at sites in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Marc A. Drexler, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this matter is whether Respondent was out of compliance with the food safety requirements of chapter 509,

Florida Statutes (2015),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary

action is appropriate.

PRELIMINARY STATEMENT

On March 2, 2015, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"), filed an Administrative Complaint, DBPR No. 2015- 009290, against Respondent, Mexican Food El Rinconcito Mexicano, LLC, d/b/a El Riconcito Mexicano ("Respondent"). The Administrative Complaint alleged that Respondent stored potentially hazardous food in violation of rule 3-501.16(A)(2) of the Food Code.

Respondent timely requested a formal administrative proceeding. On April 22, 2015, the Division referred the matter to the Division of Administrative Hearings, where the case was assigned to the undersigned Administrative Law Judge.

At the final hearing, Petitioner presented the testimony of two witnesses, Jonathan Johnson and Craig Brown. Petitioner offered five exhibits which were accepted as evidence.2/ Respondent did not appear at the final hearing, present any testimony, or offer any exhibits.

A one-volume Transcript was filed on June 29, 2015.

Petitioner timely filed a proposed recommended order.

FINDINGS OF FACT

1. The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509.

2. Respondent is a licensed public food service establishment in Florida and holds license no. 46-05722. Respondent operates a restaurant under the name of El Riconcito Mexicano located at 1454 Lee Boulevard, Lehigh Acres, Florida 33963.

3. As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division.

4. Jonathan Johnson ("Inspector Johnson") is employed by the Division as a Senior Sanitation Safety Specialist. Inspector Johnson has worked for the Division for approximately five years, serving approximately three years as a Senior Inspector and two years as an Inspector. Prior to working for the Division, Inspector Johnson worked in the food industry for two years.

   Upon gaining employment in the Division, Inspector Johnson was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Johnson is also a Certified

   
   

   Food Manager. Inspector Johnson receives continuing education training on a monthly basis. Inspector Johnson performs more than 1,000 inspections each year.

5. Craig Brown ("Inspector Brown") is employed with the Division as a Sanitation Safety Specialist. Inspector Brown has worked for the Division for approximately two years. Upon gaining employment in the Division, Inspector Brown was standardized on the Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Brown is also a Certified Food Manager. Inspector Brown receives continuing education training on a monthly basis. Inspector Brown performs approximately 700 inspections each year.

6. On February 3, 2015, Inspector Johnson conducted a food service inspection on Respondent. In a reach-in cooler in Respondent's kitchen, Inspector Johnson identified several food items which he found to be improperly stored. Specifically, measuring the temperature of the food items with a thermometer, Inspector Johnson observed chicken at 63ºF, lettuce at 48ºF, beans at 50ºF, beef stew at 49ºF, rice at 49ºF, and beef at 51ºF. An employee for Respondent informed Inspector Johnson that these foods had been stored in the reach-in cooler from the previous night and were not cooked, cooled, or prepared.

   
   

7. During his February 3, 2015, inspection, Inspector Johnson prepared a Food Service Inspection Report. Inspector Johnson recorded the violations he observed on his report. Inspector Johnson informed Respondent that the violations needed to be corrected by February 4, 2015. Norma Arias signed Inspector Johnson's report acknowledging receipt on behalf of Respondent.

8. On February 6, 2015, Inspector Brown performed a callback inspection on Respondent. The purpose of Inspector Brown's inspection was to follow-up on the previous inspection conducted by Inspector Johnson. During his callback inspection, Inspector Brown also measured the temperature of food items in the reach-in cooler in Respondent's kitchen. Inspector Brown observed shrimp, rice, potatoes, cut tomatoes, soup, chicken, and some sauces at 48ºF to 51ºF. According to Respondent's Manager, these foods were not being prepared, cooked, or cooled.

9. Following his inspection, Inspector Brown prepared an inspection report indicating that Respondent had not corrected one of the violations Inspector Johnson had noted on his February 3, 2015, inspection report. This violation concerned the food Respondent stored in the reach-in cooler at a temperature greater than 41ºF.

10. During inspections, Division Inspectors measure food temperatures by inserting a thermometer into the middle of a food

    
    

    item, waiting for the temperature reading to stabilize, and then recording the final temperature reading.

11. Inspectors Johnson and Brown calibrate their thermometers at least once per week. Calibration is performed by filling a cup with ice, pouring water into the cup, and then inserting the thermometer into the water. The thermometer should read 32ºF.

12. Based on the observations of Inspectors Johnson and Brown, the Division cited Respondent with a violation of rule 3-501.16(A)(2), Food Code. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous

    food shall be maintained at a temperature of 41ºF or less. See

    
    

    rule 3-501.16(A)(2)(a), Food Code.

    
    

13. The Food Code classifies Respondent's violations as a priority item.3/ The Division has designated violations of priority items as "high priority violations." Potentially hazardous foods held in the danger zone, which is above 41ºF and under 135ºF, allows for the rapid growth of bacteria and can lead to foodborne illness.

14. Respondent has two prior disciplinary Final Orders filed with the Agency Clerk for the Department of Business and Professional Regulations within the 24 months preceding the Administrative Complaint in this matter. The Final Order in case

    
    

    no. 2014011419 was filed on April 7, 2014, and the Final Order in case no. 2014050972 was filed on January 20, 2015.

15. Based on the evidence and testimony presented during the final hearing, the Division demonstrated, by clear and convincing evidence, that on February 6, 2015, Respondent maintained potentially hazardous food at greater than 41ºF. Therefore, the Division met its burden to prove that Respondent failed to comply with the applicable food safety requirements of the Food Code and implementing administrative rules of the Division.

    CONCLUSIONS OF LAW

    
    

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

17. The Division is responsible for inspecting public food service establishments to enforce the provisions of chapter 509. See § 509.032(2)(c), Fla. Stat.

18. Section 509.032(6) provides that the Division shall adopt such rules as are necessary to carry out the provisions of chapter 509. By rule, the Division has incorporated the federal Food Code, by reference. Florida Administrative Code Rule

    61C-1.001(14) states in pertinent part:

    
    

    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.

    
    

    The Food Code applies to all public food service establishments operating in Florida.

19. Rule 3-501.16(A)(2), Food Code, states in pertinent

    
    

    part:

    
    

    Potentially Hazardous Food (Time/Temperature Control for Safety Food), Hot and Cold Holding.

    
    

    (A) Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under § 3-501.19, and except as specified under paragraph (B) and in paragraph (C) of this section, POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE CONTROL FOR SAFETY FOOD) shall be maintained:

    
    

    1. At 5ºC (41ºF) or less;P . . . .

       
       

20. Section 509.261(1) provides that any 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 per offense, as well as the suspension, revocation, or refusal of its public food service license.

21. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a license, is penal in nature.

    
    

    State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487,

    
    

    491 (Fla. 1973). Accordingly, 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) (citing Ferris v.

    Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med., 654 So. 2d 205, 207 (Fla. 1st

    DCA 1995).

    
    

22. In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of clear and convincing evidence" and found that of necessity, such a definition would need to contain "both qualitative and quantitative standards." The court held that:

    [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.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz

    
    

    court's description of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court

    of Appeal has also followed the Slomowitz test, adding the

    
    

    interpretive comment that "[a]lthough this standard of proof may

    
    

    be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

    rev. denied, 599 So. 2d 1279 (Fla. 1992) (citation omitted).

    
    

23. The unrefuted testimony of Inspectors Johnson and Brown establishes that, as observed during inspections conducted on February 3 and 6, 2015, Respondent failed to store food as required by the Food Code. Specifically, the food inspected in Respondent's reach-in cooler was not maintained at a temperature of 41ºF or less. Accordingly, the Division proved by clear and convincing evidence that Respondent violated rule 3-501.16(A)(2), Food Code.

24. 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 twenty-four months preceding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.

   
   

   1. Rule 61C-1.005(5)(a) defines a "high priority violation" as "a violation of a high priority 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., determined by the division to pose a direct

      
      

      or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of this rule." A "high priority item" means an item defined in the Food Code as a priority item. Therefore, Respondent's failure to comply with rule 3-501.16(A)(2), Food Code, is a high priority violation.

   2. Rule 61C-1.005(6) states in pertinent part:

      
      

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.

* * *

(c) High priority violation.

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

   
   

2. 2nd offense--Administrative fine of $500 to $1,000, license suspension, or both.

   
   

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

1. The facts establish that Respondent committed a high priority violation. Respondent's two prior disciplinary Final Orders filed within the 24 months preceding this case establish that the violation in this matter should be considered Respondent's third offense. Consequently, Respondent is subject to a penalty, including an administrative fine of $750 to $1,000, license suspension, or both.

   
   

2. In its proposed recommended order, the Division suggests a fine in the amount of $1,000 as appropriate for Respondent's high priority violation. The Division's recommended penalty is consistent with the applicable penalty guidelines and is reasonable under the circumstances.

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 finding Respondent, Mexican Food

El Rinconcito Mexicano, LLC, d/b/a El Riconcito Mexicano, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $1,000 for the high priority violation identified above, due and payable to the Division within

30 calendar days of the date the final order is filed with the Agency Clerk.

DONE AND ENTERED this 28th day of July, 2015, in Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER 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 July, 2015.

ENDNOTES

1/ All statutory references are to Florida Statutes (2015), unless otherwise noted.

2/ Pursuant to the Division's request, the undersigned took official recognition of various provisions of chapter 509, Florida Statutes, Florida Administrative Code Rules 61C-1.001(14) and

61C-1.005, and rule 3-501.15, Food Code.

3/ The Food Code denotes priority items with a superscript "P". (Rule 1-201.10, Food Code).

COPIES FURNISHED:

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed)

William N. Spicola, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed)

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed)

Marc A. Drexler, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed)

Jose Luis Magana

El Riconcito Mexicano 1454 Lee Boulevard

Lehigh Acres, Florida 33936-4850

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: 15-002308

Orders for Case No: 15-002308