STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 04-3075

)

LATIN AMERICAN RESTAURANT )

CAFETERIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 29, 2004, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings, by means of video teleconference between sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Drew Winters, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance on behalf of the Respondent.

STATEMENT OF THE ISSUE

This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of alleged sanitary violations described in an administrative complaint.

PRELIMINARY STATEMENT

Following service of the administrative complaint, the Respondent requested an evidentiary hearing and in due course this case was referred to the Division of Administrative Hearings. Following assignment of an Administrative Law Judge, a written Notice of Hearing was sent to all parties setting forth the details regarding the scheduling of the final hearing.

The final hearing was scheduled to begin at 1:00 p.m. on November 29, 2004. The Petitioner made a timely appearance at the hearing. There was no appearance by or on behalf of the Respondent. Unsuccessful efforts were made by telephone to determine whether the Respondent intended to participate in the hearing. The commencement of the evidentiary hearing was delayed until 1:47 p.m. in order to afford the Respondent an opportunity to appear. The hearing was held without any participation by the Respondent. There has been no explanation as to the reason for the Respondent's failure to appear at the hearing.

During the hearing, the Petitioner presented the testimony of one witness and offered two exhibits, both of which were received in evidence. Official Recognition was also taken of Food Code Rule 6-501.111.

The transcript of the final hearing was filed with the Division of Administrative Hearings on December 23, 2004.

Thereafter the Petitioner filed a Proposed Recommended Order, which has been carefully considered during the preparation of

this Recommended Order. The Respondent has not filed any document since the date of the final hearing.

FINDINGS OF FACT

1. At all times material to this case, the Respondent has been licensed as a permanent food service facility, having been issued license number 2318478. The Respondent's last known business address is 9796 S.W. 24th Street, Miami, Florida 33165.

2. On March 17, 2004, the Respondent's licensed premises were inspected by Pedro Ynigo, an inspector employed by the Division of Hotels and Restaurants. During the course of his inspection on March 17, 2004, Inspector Ynigo observed more than thirty fresh mice droppings on the shelves of the second floor storage room.

1. Rodent droppings (including mice droppings) are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food.

2. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division of Hotels and Restaurants at Florida Administrative Code Chapter 61C. Food Code Rule 6-501.111 requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes.

2. The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency charged with regulating public food service establishments pursuant to Section 20.165, Florida Statutes, and Chapter 509, Florida Statutes.

3. Pursuant to Section 509.261(1), Florida Statutes, the Division of Hotels and Restaurants, may impose penalties for violations of Chapter 509, Florida Statutes, as well as for violations of the rules of the Division of Hotels and Restaurants. The authorized penalties include an administrative fine of not more than $1,000 for each separate offense and the suspension or revocation of the subject license.

4. The Respondent violated Food Code Rule 6-501.111 (which has been incorporated into Florida Administrative Code Chapter 61C) by failing to minimize the presence of rodents and pests on the premises. There is no allegation or evidence of any prior similar violations by the Respondent. Accordingly, it appears appropriate to impose an administrative fine less than the maximum fine allowed by statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered in this case imposing an administrative fine in the amount of five hundred dollars ($500.00).

DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida.

MICHAEL M. 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 2nd day of February, 2005.

COPIES FURNISHED:

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Drew Winters, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2201

Ms. Madelaine Galindo Odnilag Incorporated 9796 Southwest 24 Street

Miami, Florida 33165

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: 04-003075

Orders for Case No: 04-003075