STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 03-3823

)

JAMIL ALISSA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on December 4, 2003, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Gainesville, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Jamil Alissa, pro se

6419 West Newberry Road, No. G3 Gainesville, Florida 32605

STATEMENT OF THE ISSUE

Whether Petitioner committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint alleging that Respondent had violated the laws regulating the operation of public food establishments. The Administrative Complaint charged Respondent with 4 violations of the provisions of Chapter 509, Florida Statutes, or the applicable rules governing the operation of public food establishments.

Respondent disputed the allegations in the Administrative Complaint and petitioned for a formal administrative hearing. The case was referred to the Division of Administrative Hearings on or about October 16, 2003. A formal hearing was set for December 4, 2003, in Gainesville, Florida.

At hearing, Petitioner presented testimony of one witness, Franklin Regan. Official recognition was requested of pertinent provisions of the United States Department of Agriculture's Food Code and Chapter 61C, Florida Administrative Code. The request was granted. Petitioner's Exhibits numbered 1-5 were admitted into evidence. Respondent presented the testimony of Jamil Alissa, owner of a restaurant named Nature's Table, but did not offer any exhibits into evidence.

A Transcript consisting of one volume was filed on December 19, 2003. The parties requested three weeks after the filing of the Transcript to submit post-hearing written

submissions. The request was granted. Petitioner timely filed a Proposed Recommended Order which has been considered in the

preparation of this Recommended Order. Respondent has not filed any post-hearing submission.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. Respondent is the owner of an eating establishment located in Gainesville, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 1102934 issued by the Division.

3. Franklin Regan is a sanitation and safety specialist employed by the Division. His duties include inspecting food service and lodging establishments for compliance with Chapter 509, Florida Statutes. Mr. Regan has a bachelor's degree from Florida State University in hotel and restaurant administration and a degree in ornamental horticulture from the University of Florida. He has been employed by the Department of Business and Professional Regulation for 11 years. Prior to that time, he worked for several years in the field of food service and the public lodging business. He also has received training in laws and rules regarding food service and lodging, as well as fire safety.

4. On November 15, 2002, Mr. Regan conducted an inspection of Respondent's premises, Nature's Table restaurant and issued an inspection report. Mr. Alissa signed for the inspection report.

5. During the November 15, 2002, inspection, Mr. Regan observed a small food preparation unit in the service area to be

   54 degrees. He wrote on the inspection report to not use that food preparation unit until it was able to maintain potentially hazardous food at 41 degrees. He noted on the inspection report that the restaurant would be checked within the next 7 days to determine if potentially hazardous food was being maintained at

   41 degrees or lower.

6. Mr. Regan also made a notation on his November 15, 2002, inspection report that Respondent needed to submit within 10 days new plans with actual locations of all equipment. He was concerned specifically about the labeling of a preparation sink that had been labeled as a hand sink on Respondent's Application for Plan Review.

7. Mr. Regan conducted another inspection at Respondent's restaurant on November 18, 2002. During that inspection, he observed food temperatures over the required 41 degrees. Specifically, he noted ham at 42 degrees, tuna salad at 45 degrees, and egg salad at 44 degrees. This is a critical violation because bacteria can multiply at a rapid rate in food maintained above 41 degrees. This is potentially hazardous because the bacteria can cause infection if consumed.

8. During the November 18, 2002, inspection, Mr. Regan also observed that potentially hazardous foods were not maintained in wells of a preparation unit at 41 degrees or below. This is potentially hazardous for the same reason as noted in the paragraph above.

9. During the November 18, 2002, inspection, Mr. Regan also noted that no hand towels were provided at a hand sink. This is a violation because improper hand washing can lead to transfer of pathogenic bacteria to food and viruses.

10. As a result of the November 18, 2002, inspection, the inspection report included a warning that the noted violations must be corrected by November 22, 2002.

11. Mr. Regan conducted a call back or re-inspection on November 25, 2002. During that re-inspection, he observed three deficiencies that were not corrected from the November 18, 2002, report: that sliced turkey was at 48 degrees and egg salad was at 46 degrees; that the prep unit was not maintaining potentially hazardous food in wells at 41 degrees or lower; and that hand towels were not provided at the front hand sink.

12. During the re-inspection conducted on November 25, 2002, Mr. Regan also noted on his written report that Respondent had not submitted plans with actual locations of equipment as he had requested in his first inspection report dated November 15, 2002.

13. Mr. Alissa offered mitigating circumstances regarding some of the deficiencies noted by Mr. Regan.

14. Regarding the allegation of failure to keep food at an appropriate temperature, Mr. Alissa asserted that he and his employees use a method called "time-in-lieu" to overcome the temperature problem with refrigeration units being opened and closed.

15. Mr. Alissa described two charts in the restaurant regarding the time-in-lieu procedure used in his restaurant. The charts are located next to refrigeration units and state the time the food is put in a refrigeration unit and the time the food is removed. The chart next to the large sandwich unit has columns and rows referring to various potentially hazardous foods, the times the foods were placed in the sandwich bar, and the time the foods should be removed or thrown away. Mr. Alissa has had this procedure in place since Mr. Regan's second inspection.

    Mr. Alissa's testimony in this regard was detailed including the exact locations of the charts in his restaurant. His testimony in this regard is accepted as credible. However, Respondent's written policy or procedure of using time-in-lieu is not in evidence.

16. When a restaurant uses the time-in-lieu procedure, it must have a written policy establishing the time food was removed from the refrigerator so a person would know when the food has to be used, cooked, or destroyed. The written procedure must be available to the food inspector. Mr. Regan does not recall seeing these charts or any other documentation demonstrating that the time-in-lieu procedure was in place.

17. Respondent did not offer any evidence of mitigation regarding the allegations concerning lack of hand drying provisions or of failure to submit revised plans of the facility.

    CONCLUSIONS OF LAW

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

    §§ 120.569, 120.57(1), and 120.60(5), Fla. Stat. (2002).

19. The Division is the state agency charged with regulating public food service establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.

20. Pursuant to Section 509.261(1), Florida Statutes, the Division may impose penalties for violations of Chapter 509, Florida Statutes, including an administrative fine of no more than $1,000 for each separate offense, attendance at personal expense at an educational program sponsored by the Hospitality Education Program, and the suspension or revocation of Respondent's license.

21. Because the Division seeks the imposition of an administrative penalty, which is a penal sanction, the Division has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaint. See, e.g., Department of Banking and Finance v. Osborne Stern & Co.,

    670 So. 2d 932 (Fla. 1996).

22. Through the Administrative Complaint, Respondent is alleged to have violated Florida Administrative Code Rule 61C- 1.002, which reads in pertinent part:

    (5) The criteria for licensing public food service establishments as defined in subsection 509.013(5), F.S., shall be in accordance with the following classifications and requirements:

    
    

    * * *

    (c) Plan Reviews and Variances.

    1. The operator of each public food service establishment to be newly constructed, remodeled, converted, or reopened shall submit properly prepared facility plans and specifications to the division for review and approval in accordance with the provisions of Chapter 509, F.S., and Rule Chapters 61C-1 and 61C-4, F.A.C. Such plans must be approved by the division prior to construction, remodeling, conversion, scheduling of an opening inspection and licensing . . . .

    
    

    The Division has met its burden regarding this violation. The request for submission of revised plans was included in the November 15, 2002, inspection report, informing Respondent that he had 10 days to comply. The call back inspection was 10 days later and Respondent did not submit any revised plans.

23. Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 3-501.16, which reads in pertinent part:

    Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under § 3-501.19, potentially hazardous food shall be maintained:

    
    

    * * *

    
    

    (B) At 5ºC (41ºF) or less, except as specified under ¶(C) of this section and

    §§ 3-501.17, 3-501.18, and 4-204.111.

    The Division has met its burden regarding this violation. The Division established that the turkey and egg salad were not at the required 41 degrees Fahrenheit at the time of the re- inspection or call back inspection. Mr. Alissa's testimony,

    while believable, was insufficient to overcome the Food Code requirement that potentially hazardous food be kept at 41 degrees Fahrenheit.

24. Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 4-301.11, which reads in pertinent part:

    Cooling, Heating and Holding Capacities.

    Equipment for cooling and heating food, and holding cold and hot food, shall be sufficient in number and capacity to provide food temperatures as specified under Chapter 3.

    
    

    The Division has met its burden regarding this violation. The Division established that the prep unit was not maintaining the temperature of 41 degrees Fahrenheit at the time of the call back inspection. Mr. Alissa's testimony, while believable, was insufficient to overcome the Food Code requirement that potentially hazardous food be kept at 41 degrees Fahrenheit.

25. The exact requirements of the time-in-lieu procedure are not clear from the record. Whether the charts described by Mr. Alissa satisfy the time-in-lieu requirements and whether meeting those requirements overcomes the clear mandate of the Food Code regarding the temperature of potentially hazardous food, cannot be determined from the facts in evidence.

26. Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 6-301.12, which reads in pertinent part:

    Hand Drying Provision

    Each handwashing lavatory or group of adjacent lavatories shall be provided with:

    
    

    1. Individual, disposable towels;

       
       

    2. A continuous towel system that supplies the user with a clean towel; or

       
       

    3. A heated-air hand drying device.

       
       

       The Division has met its burden of proving that this violation has occurred.

27. In its Proposed Recommended Order, the Division recommends the imposition of a $2,500.00 fine and the requirement that Respondent provide proof to the Division of attendance at a Hospitality Education Program. However, there is no allegation in the Administrative Complaint that Respondent had previously been fined for any deficiencies. Accordingly, an administrative penalty in the amount of $1,000.00 is more appropriate here, in addition to requiring that Respondent attend a Hospitality Education Program and provide proof of such attendance to the Division.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Division of Hotels and Restaurants enter a final order which confirms the violations found, imposes an administrative penalty in the amount of $1,000.00, and requires Respondent to attend a Hospitality Education Program and to provide proof of such attendance to the Division.

DONE AND ENTERED this 16th day of January, 2004, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 16th day of January, 2004.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Jamil Alissa

6419 West Newberry Road, No. G3 Gainesville, Florida 32605

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 03-003823

Orders for Case No: 03-003823