STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 04-3583

)

COUNTRYTIME PUB, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on December 16, 2004, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, via video teleconference in Daytona Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1015

For Respondent: Benjamin Williams, pro se

616 North State Street Bunnell, Florida 32110

STATEMENT OF THE ISSUE

Whether Respondent 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 (Division), filed an Administrative Complaint alleging that Respondent had violated the laws regulating the operation of public food establishments. The Administrative Complaint charged Respondent with three 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 1, 2004. A formal hearing was set for December 16, 2004, via video teleconferencing in Daytona Beach and Tallahassee, Florida.

At hearing, Petitioner presented testimony of one witness, Julianne Browning. Petitioner's Exhibits numbered 1 through 3 were admitted into evidence. Official recognition was requested of Section 509.039, Florida Statutes, and Florida Administrative Code Rules 61C-1.004(9)(d), 61C- 4.023(1) and 69A-21.304. The request was granted. Respondent offered the testimony of Benjamin Williams, owner of

Respondent. Respondent did not offer any exhibits into evidence.

A Transcript consisting of one volume was filed on December 27, 2004. Petitioner timely filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. Respondent did not file a 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 an eating establishment located in Bunnell, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 2800494 issued by the Division.

3. Julianne Browning is a sanitation and safety specialist employed by the Division. Ms. Browning has a bachelor's degree in business administration with a major in hotel and restaurant management. She has been employed by the Department of Business and Professional Regulation for 14

   years. She also has work experience in the hotel and restaurant industry and received training in laws and rules regarding public food service and lodging, as well as fire safety and hazard analysis.

   
   

4. On March 22, 2004, Ms. Browning conducted an inspection of Respondent's premises and issued an inspection report while on the premises. Louanne Johnson, a bartender at the restaurant, signed for the inspection report.

5. During the March 22, 2004 inspection, Ms. Browning observed 14 violations and issued a warning that the violations must be corrected by April 22, 2004.

6. Ms. Browning conducted a call-back inspection on April 23, 2004, during which she observed that three of the violations noted on March 22, 2004, had not been corrected.

7. The call back inspection report contained the following regarding a violation she considered not corrected, "Observed Food Manager not certified after 90 days of employment. Ben Williams." She considers this a critical violation because the food manager must be certified to be able to instruct their employees regarding safe food handling practices.

8. At the time of the first inspection, Ms. Browning observed that there was no inspection report from a licensed

   equipment dealer regarding the fire extinguishers. During the call-back inspection, she still did not see an inspection report from a licensed equipment dealer. This is a critical violation because the inspection report indicates whether or not there is anything wrong with the fire suppression system.

   
   

9. During the original inspection, Ms. Browning did not observe anything securing the carbon dioxide tanks which provide the carbon dioxide for drink machines or beer taps. The tanks are required to be secured by chain or bungee-cord. Her report from the call-back inspection again cites Respondent with failure to properly secure the tanks.

10. However, Mr. Williams insists that the tanks were and always have been secured with bungee-cords. His description of the way the bungee-cords secure the tanks was specific and detailed and is accepted as credible.

11. Regarding the violation of the food manager's not being certified, Mr. Williams explained that while he is the owner of Respondent, he does not work there. Further, he asserts that two of his employees, Georgia Oliva and Rhonda Bracewell, are both certified food managers. Accordingly, he has not sought certification as a food manager. This explanation is accepted as credible.

12. Regarding the lack of inspection report from a licensed dealer, Mr. Williams acknowledges that while there is a report, it was "not where it should have been."

    CONCLUSIONS OF LAW

    
    

13. 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.

    
    

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

15. 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.

16. 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).

17. Through the Administrative Complaint, Respondent is alleged to have violated Florida Administrative Code Rule 61C- 4.023, which reads in pertinent part:

    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 or managers 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 the 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 so in accordance with acceptable

       sanitary practices as described in this chapter.

       (emphasis supplied)

       
       

       The Division has not met its burden in establishing that this violation occurred. The call-back report specifically references Mr. Williams as not being certified after 90 days of employment. However, he does not work in the establishment that he owns and therefore is not the person responsible for the storage, preparation, display, and serving of food.

18. Through the Administrative Complaint, Respondent is alleged to have violated Florida Administrative Code Rule 61C- 1.004(9)(d), which reads as follows:

    
    

    General Sanitation and Safety Requirements.

    
    

    (9) Fire safety equipment

    (d) Carbon dioxide and helium tanks shall be adequately secured so as to preclude any danger to safety.

    
    

    The Division has not met its burden in establishing that this violation occurred. Mr. Williams' assertion that the tanks were secured by bungee-cords, an acceptable manner in which to secure such tanks, is credible.

19. Through the Administrative Complaint, Respondent is alleged to have violated Florida Administrative Code Rule 69A- 21.304, which requires an inspection report from a licensed equipment dealer regarding pre-engineered systems, i.e., fire extinguishers. The Division has met its burden of proving

    that this violation occurred. Mr. Williams acknowledged that the report was not in the correct place. Therefore, it was not available to the sanitation and safety specialist as required.

20. In its Proposed Recommended Order, the Division recommends the imposition of a $1,200.00 administrative penalty. The Division met its burden of proof regarding one violation. Accordingly, an administrative penalty in the amount of $500.00 is appropriate here.

RECOMMENDATION

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

RECOMMENDED:

That the Division enter a final order which confirms the violations found, dismisses the violations not found, imposes an administrative penalty in the amount of $500.00, to be paid within 30 days of the issuance of the Agency's Final Order.

DONE AND ENTERED this 25th day of January, 2005, 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 25th day of January, 2005.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32388-1015

Benjamin Williams

616 North State Street Bunnell, Florida 32110

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

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulations 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: 04-003583

Orders for Case No: 04-003583