STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 16-3010

RAHAF FOOD SERVICE, INC., d/b/a HOOK FISH AND CHICKEN,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on August 3, 2016, by video teleconference from sites in Jacksonville and Tallahassee, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles LaRay Dewrell, Esquire

Department of Business and Professional Regulation

2601 Blair Stone Road Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint, dated January 25, 2016; and, if so, what penalty is warranted.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"), alleged in an Administrative Complaint, dated January 25, 2016, that Respondent violated the standards governing public food service establishments. The Administrative Complaint alleged that dead roaches were observed throughout the establishment, in violation of Food Code Rule 6-501.112 and that live roach activity was observed throughout the establishment, in violation of section 509.221(7), Florida Statutes.1/

Respondent disputed the allegations and requested an evidentiary hearing pursuant to section 120.57(1), Florida Statutes, through an Election of Rights form.

On June 1, 2016, the case was referred to the Division of Administrative Hearings and assigned to the undersigned. The case was noticed for hearing on August 3, 2016, and convened as scheduled.

At 9:30 a.m., on August 3, 2016, the Division's counsel and witness were present and prepared to proceed with the hearing.

Respondent's principal, Yasser Salam, was not present, and did not provide notice of his unavailability. At 9:45 a.m., the undersigned called the hearing to order and the Division presented its testimonial and documentary evidence. At the hearing, the Division presented the testimony of

Linda Sutherland, a senior sanitation and safety specialist, employed by the Division. The Division's Exhibits 1 through 8 were admitted into evidence. The Division was allowed to complete its prima facie case and the hearing adjourned at approximately 10:10 a.m.

On August 8, 2016, the undersigned issued an Order to Show Cause, directing Respondent to show cause within 10 days as to why the record should not be closed and the recommended order entered based on the current record. Respondent never responded to the Order to Show Cause. On August 23, 2016, an Order Closing Record was entered, directing the parties to submit proposed recommended orders no later than the close of business on September 1, 2016.

The one-volume Transcript of the hearing was filed at the Division of Administrative Hearings on August 12, 2016. The Division timely filed a Proposed Recommended Order on August 30, 2016. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner 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, Respondent was a restaurant doing business as Hook Fish and Chicken, located at 1830 North Myrtle Avenue, Jacksonville, Florida 32209, holding Permanent Food Service license number 2614999.

3. Linda C. Sutherland is employed by the Division as a senior sanitation safety specialist. Inspector Sutherland has worked for the Division for approximately four years, serving approximately 13 months as a senior inspector and three years as an inspector. She had worked in the food industry for about

   30 years before joining the Division. Inspector Sutherland has received training on the U.S. Food and Drug Administration’s Food Code (“Food Code”), as adopted by reference in Florida Administrative Code Rule 61C-1.001, and training on the Florida laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Sutherland is also a certified food manager and performs more than 1,000 inspections each year.

4. On January 20, 2016, Inspector Sutherland performed an unannounced routine food service inspection of Respondent’s

   
   

   premises. Inspector Sutherland prepared and signed an inspection report setting forth the violations she observed during her inspection. She provided a copy of the inspection report to Ahmed Muhamed, the manager on duty. The inspection report notified Respondent that the violations must be corrected by January 21, 2016.

5. During the January 20, 2016, inspection, Inspector Sutherland observed approximately twenty-three (23) dead roaches throughout Respondent’s establishment, seventeen (17) live roaches on a wall above Respondent’s water heater and three- compartment sink in the kitchen area, and three (3) live roaches near a pipe at the bottom of the water heater.

6. Because numerous live roaches were seen on the premises, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency Order was issued on January 20, 2016, the same date as the inspection.

7. On January 21, 2016, Inspector Sutherland performed two separate callback inspections of Respondent’s premises, one commencing at 11:07 a.m. and one commencing at 3:39 p.m. During both callback inspections, Inspector Sutherland prepared and signed inspection reports indicating that the violations noted during the previous day’s inspection had not been corrected.

   
   

8. During the first callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches in the kitchen area near the water heater and approximately twelve (12) live roaches on a wall near the three-compartment sink in back of the kitchen area.

9. During the second callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches near the water heater, one (1) live roach on the wall behind the three-compartment sink, and one (1) live roach on the floor of Respondent’s back storage area.

10. Inspector Sutherland notified Respondent about the violations found during both callback inspections on January 21, 2016, and informed Respondent that the violations must be corrected by January 22, 2016. The manager on duty,

    Ahmed Mohamed, signed for both of Inspector Sutherland’s reports on January 21, 2016, acknowledging receipt on behalf of Respondent.

11. On January 22, 2016, Inspector Sutherland performed an additional callback inspection of Respondent’s premises. During the inspection, Inspector Sutherland noted that some, but not all, of the violations noted on the January 20, 2016, and January 21, 2016, inspection reports had been corrected. Inspector Sutherland observed one live roach on the shelf in the

    
    

    back prep area and three live roaches in the left door of Respondent’s three-door cooler.

12. Rule 61C-1.001 defines “basic item” as “[a]n item defined in the Food Code as a Core Item.” Food Code Rule 1- 201.10(B) defines “core item” as “a provision in this Code that is not designated as a priority item or a priority foundation item.” “Priority” and “priority foundation” items are identified in the Food Code by way of a superscript; therefore, any provision of the Food Code that does not have a superscript is a “core item.”

13. The first violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of numerous dead roaches throughout Respondent’s premises during the January 20 and 21, 2016, inspections. Food Code Rule 6-

    501.112 defines this as a core item, which makes it a “basic item” for purposes of discipline by the Division.

14. The second violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of live roaches throughout Respondent’s premises during the January 20, 21, and 22, 2016, inspections. The pervasive presence of live vermin was a violation significant enough to require an Order of Emergency Suspension of License and Closure. Section 509.221(7) requires the operator of a licensed food

    
    

    service establishment to take “effective measures” to protect against the entrance and breeding of vermin.

15. Respondent was issued a prior Order of Emergency Suspension of License and Closure during the 12 months preceding the Administrative Complaint at issue in this proceeding. The Order of Emergency Suspension of License and Closure in Division case number 2015-032315 was filed against Respondent on July 30, 2015. Live and dead roaches were found on the premises in the inspections that led to this Order of Emergency Suspension of License and Closure.

16. Respondent also had a prior disciplinary final order for operating without a license entered within the 24 months preceding the Administrative Complaint at issue in this proceeding. The final order in Division case number 2015-032598 was filed on December 21, 2015. The final order noted that live roaches were observed during the initial inspection and on a callback inspection the following day.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes.

    
    

18. The Division has jurisdiction over the operation of public lodging establishments and public food service establishments, pursuant to section 20.165 and chapter 509, Florida Statutes.

19. The Division is authorized to take disciplinary action against the holder of such a license for operating in violation of chapter 509, or the rules implementing that chapter. Such disciplinary action may include suspension or revocation of the license, imposition of an administrative fine not to exceed

    $1,000.00 for each separate offense, and mandatory attendance, at personal expense, at a remedial educational program administered by a food safety training program provider approved by the Division. § 509.261, Fla. Stat.

20. Here, the Division seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, the Division has the burden of proving the allegations charged in the Administrative Complaint against the Respondent by clear and convincing evidence. Dep’t of Banking and Fin., Div. of Sec. and Inv. Prot. v. Osborne Stern and Co., 670 So. 2d 932

    (Fla. 1996).

    
    

21. A licensee is charged with knowing the practice act that governs its license. Wallen v. Fla. Dep’t of Prof’l Reg., Div. of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

    
    

22. Section 509.032(2) specifically empowers the Division to conduct inspections of public food service establishments, and to adopt and enforce sanitation rules to ensure the protection of the public from food-borne illness. Section 509.032(6) provides that the Division shall adopt such rules as are necessary to carry out the provisions of chapter 509. Rule 61C-1.001(12) adopts by reference chapter 6 (among others) of the Food Code.

23. The Administrative Complaint alleged that Respondent violated Food Code Rule 6-501.112, titled “Removing Dead or Trapped Birds, Insects, Rodents, and Other Pests,” which provides:

    Dead or trapped birds, insects, rodents, and other pests shall be removed from control devices and the premises at a frequency that prevents their accumulation, decomposition, or the attraction of pests.

    
    

24. The Division proved by clear and convincing evidence that Respondent violated Food Code Rule 6-501.112 because dead roaches were observed throughout Respondent’s premises during the inspections of January 20 and 21, 2016.

25. The Administrative Complaint alleged that Respondent violated section 509.221(7), which provides:

    (7) The operator of any establishment licensed under this chapter shall take effective measures to protect the establishment against the entrance and the

    
    

    breeding on the premises of all vermin. Any room in such establishment infested with such vermin shall be fumigated, disinfected, renovated, or other corrective action taken until the vermin are exterminated.

    
    

26. The Division proved by clear and convincing evidence that Respondent violated section 509.221(7) because live roaches were observed throughout Respondent’s premises during the inspections of January 20, 21, and 22, 2016. The presence of roaches during three inspections over the course of three days established that any means employed by Respondent to eliminate their entrance or breeding, or promote their extermination, was ineffective.

27. The final order against Respondent in Division case number 2015-032598, filed on December 21, 2015, has been reviewed for purposes of arriving at a recommended penalty in this case, as has the Order of Emergency Suspension of License and Closure in Division case number 2015-032315 filed against Respondent on July 30, 2015. Both of these cases involved disciplinary action taken against Respondent for the presence of dead and live roaches on its premises.

28. Rule 61C-1.005(5)(e) provides:

    
    

    (5) Definitions

    
    

    * * *

    
    

    (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.

    
    

29. It is concluded that Respondent’s violation in this case is a second offense.

30. Rule 61C-1.005(6), provides as follows, in relevant 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.

    
    

    (a) Basic violation.

    
    

    1. 1st offense – Administrative fine of

       $150 to $300.

       
       

    2. 2nd offense – Administrative fine of

       $250 to $500.

       
       

    3. 3rd and any subsequent offense – Administrative fine of $350 to $1000, license suspension, or both.

    
    

    * * *

    
    

    (o) Any violation requiring an Order of Emergency Suspension of License and Closure, as authorized by chapter 509, F.S.

    
    

    1. 1st offense – Administrative fine of

       $500.

       
       

    2. 2nd offense – Administrative fine of

       $1,000, license suspension, or both.

       
       

    3. 3rd offense – Administrative fine of

    $1,000, license suspension, or license revocation or any combination thereof. (Emphasis added)

    
    

31. Rule 61C-1.005(7) provides as follows, in relevant part:

    (7) 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:

    
    

    (a) Aggravating factors.

    
    

    * * *

    
    

    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.

    
    

    * * *

    
    

    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.

    
    

32. Finally, Rule 61C-1.005(8) provides:

    
    

    (8) Absent any mitigating factors, a license may be suspended for no less than two days. Absent any aggravating factors, a license may be suspended for no more than ten days. Terms of license suspensions resulting from multiple violations or Final Orders shall be applied consecutively, not concurrently.

    
    

33. Respondent is a second-time offender and has been previously disciplined for the presence of live roaches on its premises. Respondent is guilty of committing one basic violation as to the first allegation of the Administrative Complaint, the observation of dead roaches on the premises, with a potential administrative fine of $250 to $500. Respondent is also guilty of committing one violation requiring an Order of Emergency Suspension of License and Closure as to the second allegation of the Administrative Complaint, the observation of live roach activity on the premises, with a potential administrative fine of $1,000, license suspension, or both.

34. In consideration of Respondent’s status as a second offender, the aggravating factor of its prior discipline, the fact that the prior discipline also included an Emergency Order of Suspension of License and Closure, the undersigned recommends that the Division impose an administrative fine of $500 for the basic violation and an administrative fine of $1,000 and a two- day suspension of Respondent’s license for the violation

requiring an Order of Emergency Suspension of License and Closure, for a total penalty of $1,500 in administrative fines and a two-day suspension of Respondent’s license.

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 imposing a fine of $1,500.00, payable under terms and conditions deemed appropriate, and a two-day suspension of Petitioner’s license.

DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 12th day of September, 2016.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2015 edition.

COPIES FURNISHED:

Charles LaRay Dewrell, Esquire Department of Business and

Professional Regulation 2601 Blair Stone Road

Tallahassee, Florida 32399-2202 (eServed)

Yasser Salam

Hook Fish & Chicken 1830 North Myrtle Avenue

Jacksonville, Florida 32209

Rick Akin, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation Capital Commerce Center 2601 Blair Stone Road

Tallahassee, Florida 32399-2202 (eServed)

Jason Maine, General Counsel Department of Business and

Professional Regulation Capital Commerce Center 2601 Blair Stone Road

Tallahassee, Florida 32399-2202 (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: 16-003010

Orders for Case No: 16-003010