STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 16-2758

CASA MEXICANA RESTAURANT, INC., d/b/a CASA MEXICANA RESTAURANT, INC.,

Respondent.

/

RECOMMENDED ORDER

On July 12, 2016, an administrative hearing in this case was held by video teleconference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles LaRay Dewrell, Esquire

Department of Business and Professional Regulation

2601 Blair Stone Road Tallahassee, Florida 32399

For Respondent: Antelma Cruz, pro se

Carlos Osoino, pro se

Casa Mexicana Restaurant, Inc. Suite 300

7730 Palm River Road Tampa, Florida 33619

STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Casa Mexicana Restaurant, Inc., d/b/a Casa Mexicana Restaurant, Inc. (Respondent), are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated March 21, 2016, the Petitioner cited the Respondent, a food service establishment in Tampa, Florida, for allegedly violating certain Food Code (Code) regulations identified therein.

The Respondent filed an Election of Rights form disputing the allegations and requesting that a formal hearing be conducted. On May 18, 2016, the Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1 through 8 admitted into evidence. The Respondent presented the testimony of one witness.

The Transcript of the hearing was filed on July 20, 2016. On July 28, 2016, the Petitioner filed a Proposed Recommended Order that has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2015).1/

2. At all times material to this case, the Respondent was operating as a licensed food service establishment located at 7730 Palm River Road, Suite 300, Tampa, Florida 33619.

3. The Respondent is owned and operated by Antelma Cruz and Carlos Osoino, who were present at the hearing.

4. On March 1, 2016, Ashley Herrmann, a sanitation and safety specialist employed by the Petitioner, performed an unannounced routine inspection of the Respondent, during which she observed various violations of the Code. The material violations in this case were related to the Respondent’s walk-in cooler.

5. At the conclusion of the inspection, Ms. Herrmann prepared a written Food Service Inspection Report (Inspection Report) documenting the Code violations she had observed during her inspection.

6. Before leaving the Respondent, Ms. Herrmann provided a copy of the Inspection Report to Antelma Cruz. The Inspection Report stated as follows:

   Inspector determined violations require further review, but are not an immediate threat to the public. WARNING: Violations

   
   

   in the operation of your establishment must be corrected by March 2, 2016 at 8:00:00 AM EST.

   
   

7. According to the Inspection Report, a “callback” inspection was scheduled to occur “on or after” March 2, 2016. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected.

8. On March 2, 2016, Ms. Herrmann returned to the Respondent’s location to conduct the callback inspection. At that time, Ms. Herrmann determined that some of the Code violations observed during the routine inspection had not been corrected.

9. At the conclusion of the callback inspection,

   
   

   Ms. Herrmann prepared a written Callback Report documenting the uncorrected Code violations.

10. Before leaving the premises, Ms. Herrmann provided a copy of the Callback Report to Antelma Cruz.

    The Callback Report stated as follows:

    
    

    Inspector determined violations require further review, but are not an immediate threat to the public. Time Extended.

    
    

11. According to the Callback Report, a second callback inspection was scheduled to occur “on or after” March 3, 2016.

12. On March 3, 2016, Ms. Herrmann returned to the Respondent’s location to conduct the second callback inspection.

    
    

    At that time, Ms. Herrmann determined that some of the Code violations observed during the routine inspection and the first callback inspection were still not corrected.

13. At the conclusion of the second callback inspection, Ms. Herrmann prepared another written Callback Report documenting the uncorrected Code violations, wherein

    Ms. Herrmann recommended that administrative charges be filed against the Respondent for the uncorrected violations.

14. Before leaving the premises, Ms. Herrmann provided a copy of the Callback Report to an employee identified as

    Ana Gonzalez, an employee of the Respondent.

    
    

    The Callback Report stated as follows:

    
    

    Inspector determined violations require further review, but are not an immediate threat to the public. ADMINISTRATIVE COMPLAINT recommended.

    
    

15. The Code classifies violations as either “high priority,” “intermediate” or “basic,” essentially reflecting the level of threat to public health posed by non-compliance with Code requirements.

16. A high priority violation is one that poses a direct or significant threat of causing food-borne illness to a person who consumes the product.

17. In relevant part, Code Section 3-501.16(A)(2) requires that potentially hazardous food must be maintained at 41 degrees

    
    

    Fahrenheit or less, except during preparation, cooking, or cooling.

18. The violations cited herein are high-priority violations because the failure to maintain the product at or below the required temperatures can result in bacteria growth that can cause food-borne illness in persons who consume the product.

19. At the time of the routine inspection on March 1, 2016, Ms. Herrmann observed the following violations of food temperature requirements:

    Cheese-46 degrees;

    Raw chicken-46 degrees;

    Cooked peppers and onions-45 degrees; and Salsa-45 degrees.

    
    

20. At the time of the first callback inspection on

    
    

    March 2, 2016, Ms. Herrmann observed the following violations of food temperature requirements:

    Cheese-48 degrees; Raw beef-46 degrees;

    Pico de gallo-48 degrees; Cooked beef-51 degrees; and Milk-43 degrees.

    
    

21. At the time of the second callback inspection on March 3, 2016, Ms. Herrmann observed the following violations of food temperature requirements:

    Cheese-45 degrees;

    Pico de gallo-46 degrees; Salsa-45 degrees;

    Cooked potatoes-46 degrees;

    
    

    Raw beef-45 degrees; and Raw chicken-48 degrees.

    
    

22. The Respondent does not dispute the food temperature violations alleged by the Petitioner.

23. The Respondent has been the subject of four previous disciplinary actions.

24. On May 19, 2014, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to sanitation deficiencies. In June 2014, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of

    $600.

    
    

25. On October 8, 2014, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to food temperature control. In December 2014, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of

    $400.

    
    

26. On August 11, 2015, the Petitioner issued an Order of

    
    

    Emergency Suspension of License and Closure for various code

    
    

    violations, including food temperature control, which “constituted a severe and immediate threat to public safety and welfare.” On August 12, 2015, the Petitioner issued an Order Vacating the Order of Emergency Suspension of License and Closure, stating that the threat had been resolved and the Respondent was permitted to reopen.

27. On August 17, 2015, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to pest infestation. In November 2015, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of $800.

28. At the hearing, Mr. Osoino testified on behalf of the Respondent about the difficulty the Respondent experienced in having the walk-in cooler repaired. According to Mr. Osoino, it took several attempts over the course of approximately a week to identify and repair the refrigeration malfunction that was the basis for the temperature control violations. Mr. Osoino also testified that penalizing the Respondent by closing the restaurant again would present an extreme hardship for his small business and its employees.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

30. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Ch. 509, Fla. Stat. The Petitioner has adopted by

    incorporation the various provisions of the Code specifically identified in the Administrative Complaint and referenced herein. See Fla. Admin. Code R. 61C-1.001.

31. The Petitioner has the burden of proving the allegations set forth in the Administrative Complaint filed against the Respondent by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern and Co., 670 So. 2d 932 (Fla.

    1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met. The evidence establishes that on March 1, March 2 and March 3, 2016, the Respondent failed to comply with Code provisions related to safe food temperature control.

32. The Petitioner has adopted disciplinary guidelines applicable to this case at Florida Administrative Code Rule 61C-1.005. Rule 61C-1.005(6)(c)3. provides that an administrative fine of $750 to $1,000, license suspension, or

    
    

    both, is the appropriate penalty for the third “or any subsequent offense” of a high-priority violation.

33. According to the Petitioner’s Proposed Recommended Order, the Petitioner is seeking to impose a penalty of a two- day suspension of the Respondent’s license for the violations established in this case.

34. At the hearing, Mr. Osoino emphasized that temporary closure of the restaurant would pose a hardship for his small business and its employees.

35. The Respondent has been the subject of four previous disciplinary actions. Rule 61C-1.005(5)(f) provides as follows:

    “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.

    
    

36. As previously stated, the violations identified herein are high-priority violations. In relevant part, rule 61C- 1.005(5)(a) states that a high-priority violation is a deficiency “determined by the division to pose a direct or significant threat to the public health, safety, or welfare.”

37. Because the Administrative Law Judge is not unmindful of the impact that closure of the restaurant would have on the employees, the penalty proposed below does not include

    
    

    suspension of the Respondent’s license. However, the evidence in this case supports an upward deviation from the maximum administrative fine set forth in the disciplinary guidelines. Rule 61C-1.005(7) provides as follows:

    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 may deviate from the standard penalties in paragraph (o) of subsection (6) above, based upon the consideration of aggravating 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:

    
    

    1. Aggravating factors.

       
       

       1. Possible danger to the public.

          
          

       2. The current administrative complaint alleges six or more violations.

          
          

       3. The current administrative complaint alleges three or more violations of any high priority item.

          
          

       4. Number of Emergency Orders of Suspension or Closure against the same licensee filed with the Agency Clerk by the division within the 12 months preceding the date the current administrative complaint was issued.

          
          

       5. Actual physical damage or bodily harm caused to persons or property by the violation.

          
          

       6. The current administrative complaint alleges a violation for which the licensee was previously disciplined in a Final Order filed with the Agency Clerk by the division within the 24 months preceding the date the current administrative complaint was issued.

          
          

       7. Any other aggravating factors, as relevant under the circumstances.

       
       

    2. Mitigating factors.

       
       

       1. Violation resulted from a natural or manmade disaster, civil disturbance or other emergency out of the operators’ control and no corrective action was possible.

          
          

       2. Effect of the penalty upon the licensee’s livelihood.

          
          

       3. Attempts by the licensee to correct the violation.

          
          

       4. Any other mitigating factors, as relevant under the circumstances.

       
       

38. Although the Respondent has been the subject of four previous disciplinary actions, the prior Administrative Complaints have not been considered as aggravating factors in determining the appropriate penalty because three of the previous actions were settled with no determination as to whether the underlying allegations were correct.

39. On the other hand, the Respondent was the subject of an Emergency Suspension of License and Closure in August 2015, for the same type of violations that have been established in this case. Such food temperature violations present a threat of causing significant illness to the patrons of the restaurant

through the ingestion of contaminated food products. The Respondent should take the obligation to protect the health of its patrons as seriously as it does the obligation to protect the earnings of its employees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of

$1,250 against the Respondent. Additionally, the final order should require that the Respondent be required to successfully complete a remedial food safety training course within a time to be determined by the Petitioner.

DONE AND ENTERED this 9th day of August, 2016, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 9th day of August, 2016.

ENDNOTE

1/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Charles LaRay Dewrell, Esquire Department of Business and

Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed)

Antelma Cruz Carlos Osoino

Casa Mexicana Restaurant, Inc. Suite 300

7730 Palm River Road Tampa, Florida 33619

Rick Akin, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399 (eServed)

Jason Maine, General Counsel Department of Business and

Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32309 (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: 16-002758

Orders for Case No: 16-002758