STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 99-4551

) VINGIANO ITALIAN RESTAURANT, ) d/b/a SAL’S ITALIAN RISTORANTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 21, 2000, by video teleconference with the parties appearing from Fort Lauderdale, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Chris Vingiano, President

Sal’s Italian Ristorante

4801 Linton Boulevard, Suite 12A Delray Beach, Florida 33445

STATEMENT OF THE ISSUES

Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 3, 1999, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department) issued an Administrative Complaint against the Respondent, Vingiano Italian Restaurant, d/b/a Sal’s Italian Ristorante. The complaint alleged six specific violations of provisions governing restaurants regulated by the Department. The Respondent timely disputed the allegations and requested an administrative hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on October 27, 1999.

At the hearing the Petitioner requested and official recognition has been taken of provisions of the Florida Administrative Code, the U.S. Public Health Service Food Code, and Fire Code provisions. The Petitioner presented testimony from Paige Cook. Petitioner’s Exhibits numbered 1 through 3 were admitted into evidence. Chris Vingiano testified on behalf of the Respondent. The Transcript of the proceedings was filed on March 29, 2000. Thereafter neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent, Vingiano Italian Restaurant, d/b/a Sal’s Italian Ristorante, is located at 4801 Linton Boulevard, Delray Beach, Florida. It is a food service establishment and holds license control No. 60-11297R.

2. The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida.

3. At all times material to the allegations of this case, Paige Cook was an inspector employed by the Department. She was responsible for conducting site inspections to assure compliance with all applicable food service rules and regulations.

4. As part of her duties, Ms. Cook received training and is aware of all Department rules and regulations for restaurants.

5. Rules and regulations governing food service establishments have been codified and, in some instances, adopted by reference within the Florida Administrative Code. These rules encompass fire regulations, access, conditions of the premises and food areas, as well as electrical outlets.

6. Ms. Cook inspected the Respondent’s licensed premises on two occasions. The reports of these inspections, identified in this record as Petitioner’s Exhibits 2 and 3, are the subject matter of the instant case.

7. On May 12, 1999, Ms. Cook inspected the Respondent’s licensed premises and identified approximately 13 violations of the rules regulating public food services establishments. The inspection report itemized the violations, included a warning of the seriousness of the problems, and advised Respondent that

   Ms. Cook would return on May 20, 1999, after 8:00 a.m. to verify that the concerns were corrected.

8. On May 20, 1999, Ms. Cook returned to the Respondent’s place of business and found six of the violations had not been corrected. The violations cited on the second inspection included a fire extinguisher that was not properly charged (a violation of the National Fire Protection Act), a missing electrical outlet cover (also a violation of the fire code), an exit light that was not illuminated at the back door (see Rule 61C-1.004(10), Florida Administrative Code), a hole in a back wall (see Rule 61C-1.004(6), Florida Administrative Code), an unclean interior of the ice machine (a food code violation), and an unclean fan guard in the walk-in cooler (also a food code violation).

9. Subsequently, the Respondent corrected all of the cited violations. The Respondent offered no plausible explanation for the failure to correct the violations prior to the re- inspection.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

11. Public food service establishments are subject to the provisions of Chapter 509, Florida Statutes. Section 509.032(2), Florida Statutes, prescribes sanitary standards for public food service establishments. Additionally, rules and regulations governing fire safety have been adopted for public food service establishments.

12. Section 509.261(1)(a), Florida Statutes, provides:

    
    

    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;

          
          

13. In this case the Petitioner bears the burden of proof to establish the violations alleged in the Administrative Complaint. It has met that burden. The Petitioner has proved by clear and convincing evidence six violations of the standards governing food service establishments.

14. The National Fire Protection Act (NFPA) requires that portable fire extinguishers be maintained in a fully charged

    condition. The Respondent failed to correct this cited violation despite notice.

15. The NFPA also requires that electrical outlets have suitable covers to prevent accidental contact. The Respondent failed to timely correct this violation after notice.

16. The United States Food Code requires that food contact services be clean to sight and touch. It also mandates that non-food-contact surfaces of equipment be kept clean. In this case the Respondent failed to timely clean the interior of the ice machine and the fan guard in the walk-in cooler.

17. Finally, the Respondent failed to replace the exit light or to repair the hole in the wall along the back hallway in violation of the rule governing access to public establishments. See Rule 61C-1.004(10), Florida Administrative Code.

RECOMMENDATION

Based upon 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 an administrative fine in the amount of $2,100.00.

DONE AND ENTERED this 28th day of April, 2000, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 28th day of April, 2000.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Chris Vingiano, President Sal’s Italian Ristorante

4801 Linton Boulevard, Suite 12A Delray Beach, Florida 33445

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

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

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: 99-004551

Orders for Case No: 99-004551