STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 99-0299

)

MANOS, INC., d/b/a SEAPORT )

RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on April 14, 1999, in Melbourne, Florida.

APPEARANCES

For Petitioner: Melvin T. Stith, Jr., Esquire

Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Alan C.D. Scott, II, Esquire

101 Orange Street

St. Augustine, Florida 32804 STATEMENT OF THE ISSUES

Whether Respondent committed the following acts alleged in the Notice to Show Cause dated July 8, 1998, and if so, the penalty that should be imposed:

1. Violation of the Food Code, Chapter 61C-1, Florida Administrative Code, by failing to maintain hot, potentially hazardous, foods at or above 140 degrees Fahrenheit (Fº) at all times on the steam table.

2. Violation of the electrical code by failing to provide a spacer for missing circuit breakers in the electrical box near the waitress station.

3. Violation of the Food Code by failing to provide and use a food thermometer to monitor food temperatures.

4. Violation of the Food Code by failing to provide a properly designed bulk food product scoop with a handle for use in the kitchen.

   PRELIMINARY STATEMENT

   
   

   In a Notice to Show Cause dated July 8, 1998, the Department of Business and Professional Regulation, Division of Hotels and Restaurant (Petitioner) charged Mano's Inc., d/b/a Seaport Restaurant (Respondent) with several violations of the Food Code and the electrical code. Respondent timely filed a request for a hearing. This matter was first assigned to a hearing officer for an informal hearing. It was subsequently determined that there were disputed issues of material fact. Therefore, on January 19, 1999, this matter was transmitted to the Division of Administrative Hearings for assignment of an Administrative Law Judge. Following denial of Respondent's Motion to Dismiss, the hearing was held on April 14, 1999.

   At hearing, the Petitioner presented the testimony of Derrick Fritts, Sanitation and Safety Specialist, and Petitioner's Exhibits Nos. 1, 2, and 3 were offered and admitted into evidence. At the request of the Petitioner, official recognition was taken of Chapters 1-201(59) and 4-302.12, 3- 301.11, 3-501.16, Code of Federal Regulations (C.F.R); the Food Code of the United States Department of Health and Human Services, 1997; and Chapter 61C-1, Rule 61C-1.007(11), Florida Administrative Code.

   Respondent presented the testimony of Raymond J. Cascella, President of Mano's Inc. Respondent's Exhibits Nos. 1 and 2 were presented and received into evidence. The document, Respondent's Exhibit A, was marked for identification. At the request of Respondent, official recognition was taken of Rule 61C-1.001, Florida Administrative Code.

   The Transcript of the hearing was filed on April 30, 1999. Each party was given 10 days from the date of the filing of the Transcript in which to file proposed recommended orders.

   Petitioner filed its proposals on May 10, 1999. Respondent has not filed proposals as of the date of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments

      within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes (1997).

   2. Respondent is a public food service establishment that operates in the State of Florida under the Division's License Control Number 03843-R.

   3. Derrick Fritts is a Sanitation and Safety Inspector employed by the Petitioner. On February 3, 1998, at approximately 3:55 p.m., Fritts visited the Seaport Restaurant food establishment located at 680 George J. King Boulevard, Port Canaveral, Florida 32920, for the purpose of performing a routine callback inspection.

   4. At the time of the inspection, the vegetable mix on the steam table was at a temperature of 116 degrees F. The baked potatoes were at 95 degrees F and the tomato sauce was at 111 degrees F. Dinners were being served from this steam table.

   5. Respondent's defense that the steam table are being broken down for diner and customers were not being served is not credible.

   6. At the time of the inspection, there was no thermometer that was readily accessible to the server at the steam table to monitor potentially hazardous foods to ensure that they are within the temperature range specified in the Food Code.

   7. At the time of the inspection, a large bulk supply of flour was being dispensed with a plastic cup rather than a scoop with a handle.

   8. There was insufficient evidence to prove that a fire code violation was present in the electrical circuit breaker box in the main dining room.

   9. The Petitioner performs inspections between the hours of 9:00 a.m. and 5:00 p.m., and occasionally after-hours, in order to better observe operating procedures.

   10. It is the Petitioner's policy to inspect food service establishments during operating hours. In the Petitioner's view, operating hours includes anytime anyone is working on the premises of a public food service establishment.

   11. Although Fritts arrived for the inspection relatively late in the day, the inspection still occurred within the 9-5 time frame. Representatives of Respondent were present for 80 percent of the inspection.

   12. Respondent was cited for violations of the 1997 Food Code under the following sections: 3-501.16(A), 4-302.12, and 3-301.11(C), C.F.R.

   13. Petitioner sent out an Industry Advisory on January 1, 1998, with the following information for licensees about the 1997 edition of the Food Code:

       Although the Code and Rule have been adopted, enforcement of these new provisions will not begin until April 1, 1998.

       
       

   14. Respondent received the above Industry Advisory and erroneously interpreted it to mean that none of the provisions of the 1997 Food Code would be enforced until April 1, 1998.

   15. The Food Code contains recommendations made by the United States Public Health Service Food and Drug Administration. Therefore, the Food Code is not mandatory and binding on licensees until it is adopted by the State of Florida. Chapter 61C-1.001, Florida Administrative Code, incorporates by reference the 1997 Food Code into the Florida Administrative Code, thereby adopting it. It then became binding on licensees as an official rule of Petitioner after January 1, 1998.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

   17. In its Notice to Show Cause, Petitioner identified the possible penalties for the violations alleged as including suspension or revocation of the license of Respondent and the imposition of an administrative fine. Consequently, Petitioner the burden of proving the allegations in the Notice to Show Cause by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932, 933-34 (Fla. 1996).

   18. The Duties of the Petitioner are set forth in Section 509.032, Florida Statutes, as follows:

       1. GENERAL.-The division shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of public

          lodging establishments and public food service establishments for the purpose of safeguarding the public health, safety, and welfare . . . .

          
          

       2. INSPECTION OF PREMISES

          1. The division has responsibility and jurisdiction for all inspections required by this chapter . . .

          2. For purposes of performing required inspections and the enforcement of this chapter, the division has the right of entry and access to public lodging establishments and public food service establishments at any reasonable time.

   19. Rule 61C-1.002(8), Florida Administrative Code, provides in pertinent part:

       1. Division personnel shall inspect all public food service establishments and other places where food is served to or prepared for service to the public as often as necessary for enforcement of the provisions of law and rule and protection of the public's health, safety and welfare . . . Persons operating a public food service establishment shall permit division personnel right of entry during operating hours to observe food preparation and service, and if necessary examine records of the establishment to obtain pertinent information pertaining to food and supplies purchased, received or used.

   20. Each of the violations deal with the requirements of the Food Code. Respondent's primary defense to these violations is that the Industry Advisory sent out by the Petitioner was unclear. Respondent improperly argues that this Advisory invalidated the entire Food Code until April 1, 1998. However, even if Respondent's interpretation were correct, the 1995 edition of the Food Code would still be in effect. To reach a

       contrary conclusion would mean that no rules were in effect from January 1, 1998 (the date of the Industry Advisory) until April 1, 1998. Clearly the Petitioner did not intend this result.

   21. Respondent was cited for violations of the Food Code under the following sections: 3.501.15(A), 4-302.12, and 3- 301.11(C). Section 3-501.16(A) requires a licensee to maintain potentially hazardous food at 140 degrees Fº or above. Section 4-302.12 requires that food temperature measuring devices be provided and readily accessible for use in ensuring attainment and maintenance of food temperatures. Section 3-301.11(C) requires that food employees minimize bare hand and arm contact with exposed food that is in a ready-to-eat form.

   22. None of the above sections are the new provisions referenced in the Industry Advisory. In fact, the 1997 version of these provisions are word for word identical to the 1995 version of the provisions, except for 3-501.15(A) which contains a minor unsubstantive change that doesn’t affect the meaning of the section. Therefore, even if it is determined that the Industry Advisory should be read to mean that the entire 1997 Food Code wouldn't be enforced until April 1, 1998, this only means that Petitioner should have charged Respondent under the 1995 Food Code. Since the provisions at issue here are virtually identical in the two Food Codes, this is no more than harmless error that did not prejudice Respondent. See generally Jacker

       vs. School Board of Dade County, 426 So. 2d 1149 (Fla. 3d DCA 1983)

   23. Based on the Findings of Fact herein, Petitioner has proven by clear and convincing evidence that Respondent violated Food Code Rules 3-501.16(A), 4-302.12, 3-301.11(C), but has not done so as to a violation of the electrical code, Rule 61C- 1.004(11), Florida Administrative Code.

   24. Petitioner seeks the imposition of administrative penalties against Respondent pursuant to Section 509.261, Florida Statutes, which provides in pertinent part:

       1. Any public . . . food establishment that has operated or is operating in violation of this chapter or the rules of the division, . . . may be subject by the division to:

          1. Fines not to exceed $1,000 per offense;

          2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

          3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

   25. The recommended penalty in this case is based upon a consideration of the gravity of the violation, the severity of the harm that could have resulted from the violation, and the extent to which the applicable statutes and rules were violated.

RECOMMENDATION

Based on the foregoing Findings of fact and Conclusions of Law, it is

RECOMMENDED that Respondent be found guilty of the following charges and that the following penalties be imposed against Respondent:

1. Food Code Rule 3-501.16(A), imposing an administrative fine in the amount of $500.00;

2. Food Code Rule 4-302.12, imposing an administrative fine in the amount of $250.00;

3. Food Code Rule 3-301.11(C), imposing an administrative fine in the amount of $250, and that

4. Respondent attend, at personal expense, an educational program sponsored by the Hospitality Education Program. It is further.

RECOMMENDED that Respondent be found not guilty of violation of Rule 61C-1.004(11), Florida Administrative Code.

DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999.

COPIES FURNISHED:

Melvin T. Stith, Jr., Esquire Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Alan C.D. Scott, II, Esquire

101 Orange Street

St. Augustine, Florida 32804

Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Woodyard, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Northwood Centre

Tallahassee, Florida 32399-0792

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: 99-000299

Orders for Case No: 99-000299