STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

TONY'S PIZZA RISTORANTE,

Respondent.

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) Case No. 02-4782

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case by video teleconference at sites in West Palm Beach and Tallahassee, Florida, on March 18, 2003, before Florence Snyder Rivas, an 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 32399-0750

For Respondent: Shpetin Abouramani, pro se

Tony's Pizza Ristorante 1363 North Military Trail

West Palm Beach, Florida 33409

STATEMENT OF THE ISSUES

Whether Respondent committed the violations set forth in the Administrative Complaint dated September 4, 2002, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 4, 2002, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Division), charged Respondent, Tony's Pizza Ristorante (Respondent or Tony's Pizza), with violations of Florida law regarding the training of employees involved in assuring food safety in state- licensed restaurants.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered seven exhibits which were admitted into evidence. The principal of Tony's Pizza testified on Respondent's behalf.

The identity of the witnesses and exhibits and attendant rulings are set forth in the transcript of the hearing filed on April 29, 2003. Petitioner timely filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the operation of food service establishments pursuant to Chapter 509, Florida Statutes.

2. Respondent has at all times material to this case been licensed by the State and subject to Petitioner's jurisdiction by virtue of its operation of Tony's Pizza, a restaurant located in West Palm Beach, Florida.

3. On July 24, 2002, and again on August 30, 2002, an inspector for Petitioner inspected Respondent's premises. All but two of the violations noted at the first inspection were corrected by the time of the second inspection. The deficiencies noted at the second inspection each relate to requirements for specialized training for employees and managers involved in assuring the safety of the food served in the establishment.

4. Specifically those violations, which form the basis of the Administrative Complaint, are failure to have present on the premises a certified professional food manager and failure to have available proof that employees had been trained in food sanitation and safety procedures.

5. Shpetin Abouramani (Abouramani) owns Tony's Pizza, which he opened in the year 2000 after two decades in the restaurant business in Palm Beach County.

6. English is not Abouramani's native language. His ability to communicate in English is sufficient to run Tony's Pizza, but he is unable to understand the nuances and subtleties of the language sufficiently to deal with matters which require a vocabulary he does not use daily. Abouramani's difficulty in understanding the hearing participants and in making himself understood was sufficient to justify granting a request for an interpreter, had such a request been made.

7. When Abouramani obtained an occupational license for Tony's Pizza, he believed that he had fulfilled all legal requirements for operating the restaurant. Otherwise, he reasoned, why would he have been granted a license? The answer is that state law affords restaurant owners 60 and 90 days, respectively, from the date a restaurant opens, to obtain the required employee safety training and food manager training.

8. Tony's Pizza was inspected at least three times after it opened, with no mention made until July 2002 of the violations which give rise to this proceeding.

9. Taking into account Abouramani's limited proficiency in English, and his demeanor while testifying, the undersigned credits his testimony that he did not comprehend the legal duty placed upon him to obtain food safety training for himself and his employees.

10. Abouramani's misunderstanding was reasonable under the circumstances of this case. Abouramani is not a scofflaw. The record reflects that he has been diligent in attending to regulatory requirements, promptly correcting violations brought to his attention. There is no evidence of prior disciplinary history, nor of any actual injury to public safety.

11. By the time Abouramani came to understand that it would be necessary to take time away from work to receive food manager training, he was understaffed and felt pressured not to take even a day off from the restaurant, which has yet to recover from a post-September 11 downturn in business. He asked inspectors to give him a little more time to obtain the necessary certifications.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding.

13. The burden of proof is on Petitioner to show by clear and convincing evidence that Respondent committed the violations alleged in the Administrative Complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. In this case, the Division has carried its burden to show that Respondent failed to timely comply with the law concerning employee training, but has not made a persuasive case for imposing a severe penalty.

15. The state's interest in assuring the health and safety of patrons of Florida's restaurants is an important one, and it is entirely appropriate to insist upon prompt compliance with state training requirements for food service employees.

16. The record in this case demonstrated substantial mitigating factors which militate against penalties which could have the effect of forcing a financially fragile business to close.

17. For the reasons set forth in the Findings of Fact, it is recommended that the penalty imposed in this case be directed to achieving prompt compliance with the law, without pushing to insolvency a small business which has not intentionally violated the law nor harmed the public.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That Respondent, if it has not already done so, furnish proof that all employees and food service managers have received

   state-mandated training not later than 15 days from the date of the final order.

2. If Respondent fails to do so, a fine of $600.00 should be imposed, payable within 30 calendar days of the date the final order is filed with the agency clerk

3. Respondent shall also attend a Hospitality Education Program class within 60 days of the date the final order is filed with the agency clerk, if Respondent fails to comply with the terms of paragraph 1 of this Recommendation.

DONE AND ENTERED this 14th day of May, 2003, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 14th day of May, 2003.

COPIES FURNISHED:

Shpetin Abouramani Tony's Pizza Ristorante 1363 North Military Trail

West Palm Beach, Florida 33409

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 02-004782

Orders for Case No: 02-004782