STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, ) Case No. 05-0613

)

vs. )

)

LAS PALMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on April 19, 2005, with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Christopher T. Roberts,

Qualified Representative Drew F. Winters, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On or about July 26, 2004, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department) filed an Administrative Complaint against Las Palmas. The Department charged Las Palmas with violating Chapter 509, Florida Statutes, and/or the rules of the Department, as follows: violating Florida Administrative Code Rule 61C- 1.004(11) due to the electrical wiring being in disrepair in the kitchen area; and Florida Administrative Code Rule 61C-1.004(6) due to the ceiling in the kitchen being in disrepair and the walls in the kitchen area being soiled with accumulated dust.

Las Palmas disputed the allegations of fact in the Administrative Complaint and requested a hearing. This matter was referred to the Division of Administrative Hearings on February 22, 2005.

On the day of the hearing Las Palmas filed a Motion for Continuance. At the hearing and by Order dated May 17, 2005, the motion was denied. At the hearing, the Department presented the testimony of one witness and entered four exhibits (Petitioner's Exhibits numbered 1-4) into evidence. No representative of Las

Palmas appeared at the hearing, and no exhibits were entered into evidence on behalf of Las Palmas. Additionally, official recognition was taken of Florida Administrative Code Rules 61C- 1.004(6) and (11) and Section 509.032(6), Florida Statutes.

Subsequent to the hearing, on June 14, 2005, Las Palmas filed a request to re-schedule the hearing, but failed to serve the Department with a copy of the request. A Notice of Ex-Parte Communication was issued on June 16, 2005. The Department, having been provided an opportunity to respond to Las Palmas’ request, filed a response in opposition to the request. By Order dated July 26, 2005, Las Palmas’ request to re-schedule the hearing was denied.

A transcript of the hearing was ordered. At the Department's request, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. By July 18, 2005, the transcript of the hearing had not been filed. By Order dated July 8, 2005, the Department was directed to advise the undersigned as to the status of the transcript. Pursuant to the Order dated July 8, 2005, the Department advised the undersigned that the transcript of the hearing was expected to be filed before the end of July 2005.

The Transcript, consisting of one volume, was filed on July 26, 2005. The undersigned notified the parties regarding the date that the Transcript was filed. The Department timely filed its

post-hearing submission, which was considered in the preparation of this Recommended Order. Las Palmas did not file a post-

hearing submission.

FINDINGS OF FACT

1. At all times material hereto, Las Palmas was licensed by the Department as a public food service establishment, having been issued license number 2313468.

2. Las Palmas’ last known address is 6091 Southwest 8th Street, Miami, Florida.

3. The Department's inspector, Oscar Garcia, inspected Las Palmas on numerous occasions. Mr. Garcia is a Safety and Sanitation Specialist and has been for approximately 11 years. Over the 11-year period, he has been trained in food service, public lodging, fire safety, inspections, and sanitation and safety and has received continuing education in those areas. Mr. Garcia performs over 1,000 inspections annually.

4. On May 13, 2004, Mr. Garcia performed a food service inspection of Las Palmas. At the time of the inspection, while he was at Las Palmas, Mr. Garcia prepared a Food Service Inspection Report (Inspection Report), setting forth his findings, and reviewed the Inspection Report with the manager of Las Palmas, who was the same manager with whom Mr. Garcia had interacted in prior inspections. During the inspection,

   Mr. Garcia found numerous violations and provided in the

   Inspection Report and informed the manager that he (Mr. Garcia) would return on June 13, 2004 to observe whether the violations were corrected. A copy of the Inspection Report was given to the manager by Mr. Garcia.

5. On June 15, 2004, Mr. Garcia returned to Las Palmas for a re-inspection. At that time, he prepared a Call Back/Re- Inspection Report (Re-Inspection Report), setting forth his findings. Mr. Garcia noted that, in the kitchen area, he observed electrical wiring in disrepair, the ceiling in disrepair, and walls soiled with accumulated dust. As to the electrical wiring, he observed that electrical wires were protruding from the kitchen wall; regarding the ceiling, he observed that it was missing ceiling tiles and had other holes in it; and as to the walls, he observed that the walls were dirty and had dust accumulated on them. Furthermore, he noted that the time period for correction was extended to June 27, 2004, to correct the violations. Mr. Garcia reviewed the Re-Inspection Report with the same manager and provided a copy to the manager.

6. The violations were not corrected as of re-inspection date of June 15, 2004.

7. On June 28, 2004, Mr. Garcia returned to Las Palmas. He found the same violations that were indicated in the Re- Inspection Report had not been corrected. Mr. Garcia prepared a Call-Back Inspection Report, setting forth his findings and

   recommending that an administrative complaint be filed.

   
   

   Mr. Garcia reviewed the Call-Back Inspection Report with the same manager and provided a copy to the manager.

8. The same violations were not corrected at the call-back inspection date of June 28, 2004.

9. A critical violation is a violation that poses an immediate danger to the public.

10. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed.

11. Electrical wiring protruding from the wall in the kitchen is a critical violation.

12. The ceiling in the kitchen missing ceiling tiles and having other holes in it is a non-critical violation.

13. The walls in the kitchen being dirty and having dust accumulated on them is a non-critical violation.

14. No evidence of prior disciplinary action being taken against Las Palmas by the Department was presented.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).

16. License revocation proceedings and proceedings involving the levying of administrative fines are penal in nature. The burden of proof is on the Department to establish by clear and convincing evidence the truthfulness of the allegations in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v.

    Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. A licensee is charged with knowing the practice act that governs his/her license. Wallen v. Florida Department of

    Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

18. Matters not charged in the Administrative Complaint cannot be considered as a violation. Chrysler v. Department of

    Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237 (Fla. 2d DCA 1993).

19. Section 509.032(6), Florida Statutes (2003), provides in pertinent part:

    (6) RULEMAKING AUTHORITY.-The division [Division of Hotels and Restaurants] shall adopt such rules as are necessary to carry out the provisions of this chapter.

    
    

20. Florida Administrative Code Rule 61C-1.004, General Sanitation and Safety Requirements, provides the general

    requirements and standards to be met by all public lodging and public food service establishments.

21. Florida Administrative Code Rule 61C-1.004(11) provides in pertinent part:

    To prevent fire or injury, defective electrical wiring shall be replaced and wiring shall be kept in good repair. No extension cords shall be used except during cleaning, maintenance and other temporary activities. Only a wall switch or approved pull cord shall be permitted in bathrooms. In accordance with the provisions of NFPA [National Fire Protection Association Life Safety Code] 70, the National Electrical Code, as adopted by the Division of State Fire Marshall in Chapter 4A-3, F.A.C., Uniform Fire Safety Rules and Standards, sufficient electrical outlets shall be provided.

    
    

22. Florida Administrative Code Rule 61C-1.004(6) provides in pertinent part:

    All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions.

    
    

23. The Department demonstrated by clear and convincing evidence that Las Palmas violated Florida Administrative Code Rules 61C-1.004(6) and (11).

24. As to penalty, Section 509.261, Florida Statutes (2003), provides in pertinent part:

    1. Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division [Division of Hotels and Restaurants],

       operating without a license, or operating with a suspended or revoked license may be subject by the division to:

       1. Fines not to exceed $1,000 per offense;

       2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

       3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

       
       

25. The Department suggests the imposition an administrative fine in the amount of $700.00. One of the violations established by the Department was a critical violation. The other violations established by the Department were not critical violations. The undersigned is persuaded that, under the circumstances of this matter, the Department's suggestion is reasonable.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order:

1. Finding that Las Palmas violated Florida Administrative Code Rules 61C-1.004(6) and (11).

2. Imposing an administrative fine of $700.00, payable under terms and conditions deemed appropriate.

DONE AND ENTERED this 29th day of August 2005, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 29th day of August, 2005.

COPIES FURNISHED:

Pablo Fajardo Las Palmas

6091 Southwest 8th Street Miami, Florida 33144

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 05-000613

Orders for Case No: 05-000613