STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS )

AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 01-2009

)

LIFESTYLE CAFÉ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on August 6, 2001, by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32299-2202

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against it.

PRELIMINARY STATEMENT

On June 19, 2000, Petitioner filed an Administrative Complaint against Respondent, a licensed public food service establishment, alleging that, on May 3, 2000, and May 9, 2000, Respondent was in violation of Section 5-205.11(A) of the Food Code (Count 1); Rule 61C-1.004(6), Florida Administrative Code (Count 2); Section 6-202.11 of the Food Code (Count 3); and Section 8-2.1 of NFPA 96, Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations (Count 4). On May 22, 2001, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes. 1/

The hearing was scheduled for August 6, 2001. Petitioner and Respondent were provided with written notice of the scheduled hearing in accordance with Section 120.569(2)(b), Florida Statutes. Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on June 8, 2001, to Petitioner's counsel of record, Charles F. Tunnicliff, Esquire, and to Respondent, at its business address.

Petitioner appeared at the hearing, which was held as scheduled on August 6, 2001, through its counsel of record, Mr. Tunnicliff. Respondent, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative.

Petitioner presented the testimony of William Gubasko, who is employed by Petitioner as an inspector. In addition, it offered four exhibits (Petitioner's Exhibits 1, 2, 3, and 4) into evidence. All four exhibits were received by the undersigned.

At the close of the evidentiary portion of the hearing the undersigned established a deadline (ten days from the date of the filing of the hearing transcript with the Division) for the filing of proposed recommended orders.

A transcript of final hearing (consisting of one volume) was filed with the Division on August 15, 2001. On August 30, 2001, Petitioner filed its Proposed Recommended Order, which the undersigned has carefully considered. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made:

1. At all times material to the instant case, Respondent operated a public food service establishment, the Lifestyle Café, located in Lauderdale Lakes, Florida.

2. Respondent is now, and has been at all times material to the instant case, the holder of a public food service establishment license (license number 16-18253R) authorizing it to operate the Lifestyle Café.

3. On May 3, 2000, William Gubasko, an inspector with Petitioner, conducted an inspection of the premises of the Lifestyle Café. His inspection revealed, among other things, that: the automatic fire suppression system did not have a current certification tag; the light fixture in the walk-in refrigerator did not have a shield; the baseboard on the bottom of the walk-in refrigerator was "decayed" allowing "room temperature" air to seep into the refrigerator; and the kitchen hand sink was filled with pots and pans and therefore employees were not able to wash their hands in the sink.

4. During his May 3, 2000, inspection, Mr. Gubasko issued and served on Respondent a written warning in which he advised Respondent that the conditions described above constituted violations of the law and that if these violations were not remedied by May 9, 2000, administrative penalties would be imposed against Respondent.

5. Mr. Gubasko returned to the premises of the Lifestyle Café on May 9, 2000, and found that the violations described above had not been corrected.

6. The Administrative Complaint that is the subject of the instant controversy was issued on June 19, 2000.

7. Respondent has previously been disciplined by Petitioner (fined $300.00) for other wrongdoing ("fail[ing], neglect[ing], or refus[ing] to pay for [its] license" and operating without a license).

   CONCLUSIONS OF LAW

   
   

8. Petitioner has been statutorily delegated the authority to "carry out all of the provisions of [Chapter 509, Florida Statutes] and all other laws relating to the inspection or regulation of . . . public food service establishments for the purpose of safeguarding the public health, safety, and welfare." Section 509.032, Florida Statutes.

9. Each public food service establishment must have a license from Petitioner prior to the commencement of operation. Section 509.241, Florida Statutes.

10. Disciplinary action may be taken against the holder of such license if the licensee "has operated or is operating in violation of any of the provisions of [Chapter 509, Florida Statutes] or the rules of [Petitioner]." Such disciplinary action may include one or more of the following penalties:

    license revocation, with the licensee unable to "apply for another license for that location prior to the date on which the revoked license would have expired"; license suspension (for a period not exceeding 12 months), with the licensee able to "apply for reinstatement or renewal of the license" following the suspension period; imposition of an administrative fine not to exceed $1,000 for each separate offense; 2/ and "[m]andatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program." Section 509.261, Florida Statutes.

11. The "rules of [Petitioner]," violation of which subject the licensee to disciplinary action pursuant to Section 509.261, Florida Statutes, are found in Chapter 61C, Florida Administrative Code. They include the following provisions:

    61C-1.004 General Sanitation and Safety Requirements.

    
    

    The following general requirements and standards shall be met by all public lodging and public food service establishments:

    
    

    1. Water, plumbing and waste -- Except as specifically provided in these rules, standards for water, plumbing and waste shall be governed by Chapter 5, Food Code, herein adopted by reference. . . .

       
       

       1. All fire safety, protection and prevention equipment must be installed, approved, maintained and used in accordance with Chapter 509, FS, and the National Fire Protection Association Life Safety Code

          Chapter 101, as adopted by the Division of State Fire Marshal in Chapter 4A-3, FAC.

          
          

       2. All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions. . . .

       
       

       61C-4.010 Sanitation and Safety Requirements . . . .

       
       

       (6) Physical Facilities -- Except as specifically provided in these rules, the physical facilities at public food service establishments shall be subject to the provisions of Chapter 6, Food Code, herein adopted by reference. . . .

       
       

12. Chapter 5 of the U.S. Public Health Service's Food Code, which is incorporated by reference in Rule 61C-1.004(1), Florida Administrative Code, contains the following provision, among others:

    OPERATION AND MAINTENANCE 5-205.11 Using a

    Handwashing Lavatory.

    
    

    (A) A handwashing lavatory shall be maintained so that it is accessible at all times for EMPLOYEE use.

    
    

13. Chapter 6 of the U.S. Public Health Service's Food Code, which is incorporated by reference in Rule 61C-4.010(6), Florida Administrative Code, contains the following provisions, among others:

    FUNCTIONALITY 6-202.11 Light Bulbs,

    Protective Shielding

    
    

    1. Except as specified in [Subsection] (B) of this section, light bulbs shall be shielded, coated, or otherwise shatter-

       resistant in areas where there is exposed FOOD; clean EQUIPMENT, UTENSILS, and LINENS;

       or unwrapped SINGLE-SERVICE and SINGLE-USE ARTICLES.

       
       

    2. Shielded, coated or otherwise shatter resistant bulbs need not be used in areas used only for storing FOOD in unopened packages, if:

       
       

       1. The integrity of the packages cannot be affected by broken glass falling onto them; and

          
          

       2. The packages are capable of being cleaned of debris from broken bulbs before the packages are opened.

          
          

    3. An infrared or other heat lamp shall be protected against breakage by a shield surrounding and extending beyond the bulb so that only the face of the bulb is exposed.

    
    

14. The "National Fire Protection Association Life Safety Code Chapter 101, as adopted by the Division of State Fire Marshal in Chapter 4A-3, FAC," which is referenced in Rule 61C- 1.004(5), Florida Administrative Code, contains the following provisions, among others:

    8-2 Inspection

    
    

    An inspection and servicing of the fire extinguishing system and listed exhaust hoods containing a constant or fire-actuated water system shall be made at least every 6 months by properly trained and qualified persons.

    
    

    8-2.1

    
    

    All actuation components, including remote manual pull stations, mechanical or electrical devices, detectors, actuators,

    and fire-actuated dampers, shall be checked for proper operation during the inspection in accordance with the manufacturer's listed procedures. In addition to these requirements, the specific inspection requirements of the applicable NFPA standard shall also be followed.

    
    

15. "No revocation [or] suspension . . . of any [public food service establishment] license is lawful unless, prior to the entry of a final order, [Petitioner] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." Section 120.60(5), Florida Statutes.

16. The licensee must be afforded an evidentiary hearing if, upon receiving such written notice, the licensee disputes the alleged facts set forth in the administrative complaint. Sections 120.569(1) and 120.57, Florida Statutes.

17. At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the administrative complaint. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the licensee's guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern

    and Company, 670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of

    
    

    Central Florida v. Department of Business Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by

    statute ").

    
    

18. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

    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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

    1983).

    
    

19. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary

    presentation in light of the specific factual allegations made in the administrative complaint. Due process prohibits an agency from taking disciplinary action against a licensee based upon conduct not specifically alleged in the agency's administrative complaint or other charging instrument. See

    Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla.

    1st DCA 1996).

    
    

20. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of

    Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

    Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

21. The Administrative Complaint issued in the instant case alleges that, on May 3, 2000, and May 9, 2000, Respondent was in violation of Section 5-205.11(A) of the Food Code (Count 1); Rule 61C-1.004(6), Florida Administrative Code (Count 2); Section 6-202.11 of the Food Code (Count 3); and Section 8-2.1 of NFPA 96, Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations (Count 4).

22. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed each of these violations on the dates in question. Accordingly, disciplinary action may be taken against Respondent pursuant to Section 509.261, Florida Statutes.

23. In its Proposed Recommended Order, Petitioner proposes that the undersigned recommend that "a Final Order be entered [providing] for suspension of Respondent's license until [it] begins to make payment of fines in the amount of $1600.00" and further providing that "Respondent will be required to make monthly payments of no less than $100 and no more than $500 per month at the discretion of the Department."

24. Having carefully considered the matter, the undersigned concludes that, for committing the violations alleged in Counts 1 through 4 of the Administrative Complaint, Respondent should be fined $1,600.00, which fine may be paid in one lump sum or in monthly installments of no less than $100,

and, if it fails to pay the fine as required, its license should be suspended for a period not exceeding 12 months. See Haas v. Department of Business and Professional Regulation, 699 So. 2d 863 (Fla. 5th DCA 1997)("Section 475.25(1), Florida Statutes, provides that the commission may suspend a license up to a maximum of ten years. Here, the suspension may last longer than ten years if Haas is unable to pay the fine and costs. The commission went beyond its statutory authority in imposing the indefinite suspension. . . . By suspending Haas' license up to ten years, the commission can reissue Haas' license at any time upon certification that Haas has complied with the terms and conditions of the disciplinary order. . . . We affirm the disciplinary action, but we remand for imposition of a suspension up to ten years in duration.").

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in Counts 1 through 4 of the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the amount of

$1,600.00, which may be paid in one lump sum or in monthly installments of no less than $100, and suspending Respondent's

license for a period of up to 12 months if it fails to pay the fine as required.

DONE AND ENTERED this 31st day of August, 2001, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 31st day of August, 2001.

ENDNOTES

1/ It is not apparent from a review of the record why it took so long for the matter to be referred to the Division.

2/ Section 509.261(2), Florida Statutes, provides that, "[f]or the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a 'critical law or rule,' as that term is defined by rule." "Violations of critical laws or rules" are defined in Rule 61C-1.0021(2), Florida Administrative Code, as "those violations determined by the [Petitioner] to pose a significant threat to the public health, safety, or welfare."

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32299-0792

Lifestyle Café

2876 North State Road 7 Lauderdale Lakes, Florida 33313

Susan R. McKinley, Director Division of Hotels and Restaurants

Department of Business and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32299-0792

Hardy L. Roberts, III, General Counsel

Department of Business and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32299-0792

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: 01-002009

Orders for Case No: 01-002009