STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. )

) SOPHIA'S ITALIAN RESTAURANT AND ) PIZZA, )

)

Respondent. )

Case No. 04-3917

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on January 19, 2005, in Largo, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Sophia Drakakis, pro se

10395 Seminole Boulevard

Seminole, Florida 33778 STATEMENT OF THE ISSUES

The issues are whether Respondent committed the acts and violations alleged in an Administrative Complaint dated June 24,

2004, and, if so, what penalty, if any, should Petitioner impose on Respondent's license.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent dated June 24, 2004. Respondent timely requested an administrative hearing. Petitioner referred the matter to DOAH to assign an ALJ to conduct the hearing.

At the hearing, the ALJ took official recognition of Sections 509.039 and 509.049, Florida Statutes (2003); Florida Administrative Code Rule 61C-4.023(1); Chapter 3 of the 1999 Recommendations of the United States Public Health Service/Food and Drug Administration, Rule 3-302.11(A)(4); and the National Fire Protection Association Life Safety Code, Rule

8-1.2. Petitioner presented the testimony of one witness and submitted three exhibits for admission into evidence.

Respondent presented the testimony of three witnesses and submitted four exhibits for admission into evidence.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the Transcript of the proceeding filed with DOAH on January 31, 2005. Petitioner timely filed its proposed recommended order (PRO) on February 8, 2005.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number

   62-13807-R, and operates as Sophia's Italian Restaurant and Pizza at 10395 Seminole Boulevard, Seminole, Florida 33778 (the restaurant).

2. A Sanitation and Safety Specialist for Petitioner inspected the restaurant on May 13 and June 16, 2004. Respondent committed four violations on June 16, 2004. Each violation was an uncorrected violation that first occurred on May 13, 2004.

3. Respondent maintained uncovered food outside the restaurant. An ice machine outside in the back of the restaurant had no cover and no roof to prevent edible ice from being contaminated from outside sources in violation of Chapter 3 of the 1999 Recommendations of the United States Public Service/Food and Drug Administration (the Food Code), Food Code Rule 3-302.11.

4. Respondent operated fryers without exhaust filters in violation of the National Fire Protection Association Life Safety Code, as adopted by the Division of State Fire Marshal (the Fire Code), Fire Code Rule 8-1.2. Filters reduce grease emission and retard the spread of fire.

5. Respondent did not document during the second inspection that Respondent complied with training requirements for managers and food service employees. Restaurant staff did not include a qualified food protection manager in violation of Section 509.039, Florida Statutes (2003), and Florida Administrative Code Rule 61C-4.023(1). Respondent also failed to document required training for food service employees in violation of Section 509.049, Florida Statutes (2003).

6. The Sanitation and Safety Specialist for Petitioner reviewed the foregoing violations with the owners of the restaurant on May 13, 2004. Respondent did not correct the violations on or before June 16, 2004.

7. Some aggravating factors are evidenced in the record.

   
   

   Except for the failure to maintain filters over the fryers, the violations that Respondent committed are critical violations.

   Petitioner's witness identified a critical violation as a violation that is an immediate danger to the public safety.

8. Several mitigating factors are evidenced in the record.

   
   

   The violations did not result in actual harm. Respondent has no prior discipline. The violations are not continuing or ongoing violations. Respondent covered the ice machine on June 16, 2004, after Petitioner completed the re-inspection of the restaurant. Respondent corrected the other violations after June 16, 2004.

   CONCLUSIONS OF LAW

   
   

9. DOAH has jurisdiction over the subject matter of this proceeding pursuant to Section 20.165 and Chapter 509, Florida Statutes (2003). DOAH has jurisdiction over the parties pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2004). DOAH provided the parties with adequate notice of the administrative hearing.

10. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint, that the alleged acts violated the provisions charged in the Administrative Complaint, and the reasonableness of any proposed penalty. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and

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

    
    

11. Petitioner proved by clear and convincing evidence that Respondent committed the acts and violations alleged in the Administrative Complaint. However, Petitioner failed to show by clear and convincing evidence that the $1,800 administrative fine Petitioner seeks in its PRO is reasonable under the circumstances.

12. Florida Administrative Code Rule 61C-1.001 adopts the Food Code by reference. Respondent violated Food Code

    Rule 3-302.11 by failing to cover the ice machine located

    outside the back of the restaurant and thereby exposing edible ice to cross-contamination.

13. In relevant part, Florida Administrative Code

    
    

    Rule 61C-1.004(5) adopts the Fire Code by reference. Respondent violated Fire Code Rule 8-1.2 by operating fryers in the restaurant without exhaust filters.

14. In relevant part, Section 509.039, Florida Statutes (2003), and Florida Administrative Code Rule 61C-4.023(1) require Respondent to designate staff during operation of the restaurant as a qualified certified food protection manager. Respondent failed to prove that it staffed the restaurant with a qualified food protection manager during the second inspection.

15. Section 509.049, Florida Statutes (2003), in relevant part, requires Respondent's food service employees to complete a prescribed food service training program. During the second inspection, Respondent failed to document its compliance with the training requirements for its food service employees.

16. Subsection 509.261(1), Florida Statutes (2003), in relevant part, authorizes Petitioner to impose a range of penalties for the violations that Respondent committed. The authorized penalties include fines not to exceed $1,000 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation, or refusal of a license.

17. Several aggravating and mitigating factors are evidenced in the record. They have been previously discussed in

the Findings of Fact.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and four violations alleged in the Administrative Complaint and imposing an administrative fine of $1,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that this Recommended Order is filed with the agency clerk.

DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 23rd day of February, 2005.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Sophia Drakakis 1001 Flushing Avenue

Seminole, Florida 33778

Sophia Drakakis

10395 Seminole Boulevard

Seminole, Florida 33778

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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.

Docket for Case No: 04-003917

Orders for Case No: 04-003917