STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS )

AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 01-4834

)

CUPS & CONES YOGURT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on January 29, 2002, by video teleconference at sites in West Palm

Beach 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: Mahmudul Haque, Vice President

Cups & Cones Yogurt 6346 Lantana Road

Lake Worth, Florida 33463

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 October 1, 2001, Petitioner filed an Administrative Complaint against Respondent, a licensed public food service establishment, alleging that, on July 31, 2001, and September 4, 2001, Respondent was in violation of Rule 61C-4.010(7), Florida Administrative Code (Count 1); Rule 61C-1.004(10), Florida Administrative Code (Count 2); Section 509.039, Florida Statutes, and Rule 61C-4.023(1), Florida Administrative Code (Count 3); and Section 509.049, Florida Statutes (Count 4). On or about November 6, 2001, Respondent requested "a formal hearing, pursuant to Section 120.57(1), Florida Statutes," on the allegations made against it in the Administrative Complaint. On December 17, 2001, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.

As noted above, the hearing was held on January 29, 2002. Three witnesses testified at the hearing: Addie Alice Manulis Umne Habiba Lucy, and Mahmudul Haque. In addition to the

testimony of these three witnesses, four exhibits (Petitioner's Exhibits 1 through 4) were received into evidence.

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

A transcript of final hearing (consisting of one volume) was filed with the Division on February 15, 2002. On February 25, 2002, Petitioner filed its Proposed Recommended

Order, which has been 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, Cups & Cones Yogurt, located in Lake Worth, 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 60-12633-R) authorizing it to operate Cups & Cones Yogurt.

3. On July 31, 2001, Addie Alice Manulis, an inspector with Petitioner, conducted an inspection of the premises of Cups & Cones Yogurt. Her inspection revealed, among other things,

   that: the establishment did not have a food service manager certified by Petitioner1 (which is a critical violation because of the important public health-related function that certified food managers play in supervising and training employees in food protection and handling); there was no documentation on the premises establishing that employees had received required food service training (which is a critical violation because such training helps to prevent the spread of food-borne illnesses); the exit sign at the rear emergency exit was not illuminated; and the establishment had 12 seats, notwithstanding that its licensed capacity was ten and it had only one restroom.

4. During her July 31, 2001, inspection, Ms. Manulis issued and served on Respondent a written warning in which she advised Respondent that the conditions described above constituted violations of the law and that if these violations were not remedied by September 4, 2001, administrative penalties would be imposed against Respondent.

5. Ms. Manulis had previously visited Cups & Cones Yogurt in early April of 2001, to inspect the establishment. Following that visit, she provided Respondent with a written "comments sheet," on which she wrote, among other things, the following:

   Proof of food employee training not available. . . .

   Note- Food manager card for Mohammed Chowdhurry expires 5/13/01.2 All managers must be certified- phone #s given. . . .

   
   

6. Ms. Manulis returned to the premises of Cups & Cones Yogurt on September 4, 2001, and found that the violations described above had not been corrected.

7. Respondent had replaced a light bulb in the rear emergency exit sign following the July 31, 2001, inspection, but, nonetheless, the sign was not illuminated when Ms. Manulis returned to the establishment on September 4, 2001.

8. In addition, one of Respondent's employees, Mahmudul Haque, had attempted to become a certified food service manager, but he had been unable to pass the certification test prior to September 4, 2001.

   CONCLUSIONS OF LAW

   
   

9. 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.

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

11. 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;3 and "[m]andatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program." Section 509.261, Florida Statutes.

12. The "provisions of [Chapter 509, Florida Statutes]" and the rules of [Petitioner], the violation of which subject a licensee to disciplinary action pursuant to Section 509.261, Florida Statutes, include the following:

    509.039 Food service manager certification.

    
    

    It is the duty of the division to adopt, by rule, food safety protection standards for the training and certification of all food service managers who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These

    standards are to be adopted by the division to ensure that, upon successfully passing a test, a manager of a food service establishment shall have demonstrated a knowledge of basic food protection practices. These standards shall also provide for a certification program which authorizes private or public agencies to conduct an approved test and certify the results of those tests to the division. The fee for the test shall not exceed $50. All managers employed by a food service establishment must have passed this test and received a certificate attesting thereto.

    Managers have a period of 90 days after employment to pass the required test. The ranking of food service establishments is also preempted to the state; provided, however, that any local ordinances establishing a ranking system in existence prior to October 1, 1988, may remain in effect.

    
    

    509.049 Food service employee training.

    
    

    (1) The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the division.

    
    

    * * *

    
    

    1. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as

       an agent of the licensee. Food service employees must receive certification within

       60 days after employment. Certification pursuant to this section shall remain valid for 3 years.

       
       

    2. The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require:

    
    

    * * *

    
    

    1. The licensee to be responsible for providing proof of employee training, and the division may request production of such proof upon inspection of the establishment.

       
       

       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:

       
       

       * * *

       
       

       (10) . . . . Exits shall be clearly marked with approved illuminated exit signs. . . .

       
       

       61C-4.010 Sanitation and Safety Requirements.

       
       

       * * *

       
       

       (7) Bathroom facilities -- Each

       public food service establishment shall maintain a minimum of one public bathroom for each sex, properly designated, except as provided herein:

       
       

       * * *

       
       

    2. Public food service establishments which seat 10 persons or less shall be required to provide a minimum of one bathroom accessible to the public. . . .

       
       

       61C-4.023 Food Protection Manager Certification and Public Food Service Employee Training.

       
       

       1. All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted in this chapter. Those managers who successfully pass an approved certification examination shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. When four or more employees, at one time, are engaged in the storage, preparation or serving of food in a licensed establishment, there shall be at least one certified food protection manager present at all times when said activities are taking place. The certified food protection manager or managers need not be present in the establishment during those periods of operation when there are three or fewer employees engaged in the storage, preparation, or serving of foods. It shall be the responsibility of the certified food protection manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this

    chapter. . . .

13. "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.

14. 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.

15. 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 ").

    
    

16. 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).

17. 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).

18. 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).

19. The Administrative Complaint issued in the instant case alleges that, on July 31, 2001, and September 4, 2001, Respondent was in violation of Rule 61C-4.010(7), Florida Administrative Code (Count 1); Rule 61C-1.004(10), Florida Administrative Code (Count 2); Section 509.039, Florida

    Statutes, and Rule 61C-4.023(1), Florida Administrative Code (Count 3); and Section 509.049, Florida Statutes (Count 4).

20. 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.

21. 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 $3,000.00."

22. This penalty is too harsh, given the totality of circumstances in the instant case, including the efforts made by Respondent to remedy the violations cited in the written warning issued by Ms. Manulis during her July 31, 2001, inspection. Instead, for committing the violations alleged in Counts 1 through 4 of the Administrative Complaint, Respondent should be fined $2,500.00, which fine may be paid in one lump sum or in monthly installments of no less than $250, 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

$2,500.00, which may be paid in one lump sum or in monthly installments of no less than $250, 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 28th day of February, 2002, 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 28th day of February, 2002.

ENDNOTES

1/ Respondent had had a certified food manager on staff (Mohammed Chowdhurry), but Mr. Chowdhurry was no longer employed by Respondent at the time of Ms. Manulis' July 31, 2001, inspection.

2/ Mr. Chowdhurry renewed his certification, but, as noted above, was not working at the establishment at the time of Ms. Manulis' July 31, 2001, inspection.

3/ 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 32299-2202

Mahmudul Haque, Vice President Cups & Cones Yogurt

6346 Lantana Road

Lake Worth, Florida 33463

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.

1 Respondent had had a certified food manager on staff (Mohammed Chowdhurry), but Mr. Chowdhurry was no longer employed by Respondent at the time of Ms. Manulis' July 31, 2001, inspection.

2 Mr. Chowdhurry renewed his certification, but, as noted above, was not working at the establishment at the time of Ms. Manulis' July 31, 2001, inspection.

3 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."

Docket for Case No: 01-004834

Orders for Case No: 01-004834