STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case by video teleconference between sites in Tallahassee and Fort Lauderdale, Florida, on April 21, 2005, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Grant Gibson, Qualified Representative

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 32399-2202

For Respondent: Sean Trujillo, Manager

Bagel Restaurant

625 East Atlantic Boulevard Pompano Beach, Florida 33060

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent committed the violations alleged in an Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

At the final hearing on April 21, 2005, the Petitioner presented the testimony of one witness, Larry Torres, who is a Sanitation and Safety Specialist employed by the Petitioner.

The Petitioner also offered five Exhibits, all of which were received in evidence. The Respondent presented the testimony of its Manager, Sean Trujillo. The Respondent also offered one Exhibit, which was received in evidence.1

At the conclusion of the hearing the parties requested, and were granted, 15 days from the filing of the transcript of the hearing within which to file their respective proposed recommended orders. The transcript was filed on April 26, 2005, and on May 3, 2005, the Petitioner filed a timely Proposed Recommended Order containing proposed findings of fact and conclusions of law.2 As of the date of this Recommended Order, the Respondent has not filed any post-hearing document other than its exhibit.

FINDINGS OF FACT

1. At all times material to this case, the Respondent has been licensed to engage in the food service business, having been issued license number 16-09404-R. At all times material to this case, the Respondent has operated a restaurant in which food was prepared and served to the public. The Respondent’s restaurant business is located at 625 East Atlantic Boulevard, Pompano Beach, Florida 33060.

2. On July 7, 2004, the Respondent’s restaurant premises were inspected by Larry Torres. Mr. Torres is a Sanitation and Safety Specialist employed by the Petitioner. In conjunction with the inspection on July 7, 2004, Mr. Torres prepared a Food Service Inspection Report in which he noted matters of significance that he observed during the inspection.

3. During the course of his inspection on July 7, 2005, Mr. Torres noted several deficiencies that were violations of applicable statutes and rules. Mr. Torres advised the restaurant owner of these deficiencies and required that they be corrected by the next day.

4. On July 8, 2005, Mr. Torres re-inspected the Respondent’s restaurant. Some of the deficiencies had been corrected and progress was being made towards the correction of others. Mr. Torres granted an extension of time until July 21, 2004, for the correction of the remaining deficiencies.

5. On July 22, 2005, Mr. Torres again re-inspected the Respondent’s restaurant. As of July 22, 2005, all but four of the original deficiencies had been corrected and efforts were underway to correct those four deficiencies. On this occasion Mr. Torres granted an extension of time until August 22, 1004, within which to correct the remaining deficiencies.

6. On August 23, 2004, Mr. Torres conducted another re- inspection of the Respondent’s restaurant. At that time there were three uncorrected deficiencies. Those uncorrected deficiencies were identified by numbers. The numbers were 32, 37, and 45. Deficiency number 32 was the absence of a sign in the area of the employee hand wash sink reminding employees that they were required to wash their hands before preparing or serving food. This is not a critical violation.3

7. Deficiency number 37 was an unrepaired hole in the wall in the area of the mop sink. The evidence in this case does not reveal what type of safety or sanitation issue resulted from the hole in the wall in the area of the mop sink. This is not a critical violation.4

8. Deficiency number 45 related to the condition of the automatic fire suppression system incorporated into the hood over some of the cooking elements in the kitchen. The Respondent’s automatic fire suppression system was an older dry chemical system. Such systems require maintenance and testing

   once every six years, and the Respondent’s system was overdue for maintenance and testing. Automatic fire suppression systems of the type used by the Respondent are rather rare and it can be difficult and time-consuming to locate the dry chemicals necessary to maintain the system. This was a critical violation because of the possibility of having a kitchen fire at a time when the automatic fire suppression system might not be working.

9. The Respondent’s manager made diligent efforts to resolve deficiency number 45. On July 8, 2004, he received a proposal from a fire protection company to replace the existing fire suppression system with a more modern system for approximately three thousand dollars. That was more than the Respondent’s owner was able to spend to resolve that problem. Eventually the Respondent’s manager found someone who would resolve deficiency number 45 by bringing the existing fire suppression system into compliance for only five hundred dollars. By September 27, 2004, the fire suppression in the hood was in compliance and deficiency number 45 was resolved.

10. The Respondent’s manager procrastinated in addressing deficiency number 32 because of his concerns about resolving the more serious matter of deficiency number 45. It took several months for the Respondent’s manager to hang hand washing signs near the employee hand washing sink.

11. The Respondent’s manager addressed deficiency

    
    

    number 37 a bit sooner. At about the same time that deficiency number 45 was resolved, the manager also patched the hole in the wall by the mop sink area.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

13. In a case of this nature the Petitioner bears the burden of proving by clear and convincing evidence the facts alleged in the Administrative Complaint. The evidence in this case is sufficient to meet that burden.

14. As authorized by Section 509.032(6), Florida Statutes, the Petitioner has adopted numerous rules regarding the operation of restaurants and other food service businesses. The Petitioner has also adopted provisions of the National Fire Protection Act and the National Food Code and made them applicable to the operation of restaurants and other food service businesses.

15. Section 509.261(1), Florida Statutes, reads as follows, in pertinent part:

    1. Any public lodging establishment or public food service establishments that has operated or is operating in violation of this chapter or the rules of the division

       . . . 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.

          
          

16. There is no dispute that the deficiencies described above as numbers 32 and 37 are violations of applicable rules and of provisions of the National Food Code that are incorporated into rules. But it is also undisputed that these are not serious violations. Further, there is no evidence that either of these minor violations resulted in any harm or exposed any member of the public to any harm. Such being the case, the undersigned is of the view that only a small penalty is appropriate for these violations. Specifically, $50.00 for each violation appears to be appropriate.

17. The violation described above as number 45 is a more serious violation due to the fact that the failure of an automatic fire suppression system could result in serious safety consequences. However, the seriousness of the violation is mitigated by the fact that the owner and manager of the Respondent took immediate action to address the problem as soon as it was brought to their attention, and the delay in resolving the problem was due more to the fact that it was difficult to find someone to work on the Respondent’s antiquated fire

suppression system than to any lack of diligence on the part of the Respondent’s owner or manager. It appears that the owner and the manager did the best they could to resolve the fire suppression problem as soon as they could. That course of conduct should be encouraged, not penalized. Accordingly, it does not appear appropriate to impose a penalty regarding the deficiency described as number 45.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect:

1. Concluding that the three violations identified in the three numbered paragraphs of the Administrative Complaint existed on the dates alleged in the Administrative Complaints;

2. Concluding that no penalty should be imposed for the violation identified in paragraph 1 of the Administrative Complaint;

3. Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 2 of the Administrative Complaint; and

4. Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 3 of the Administrative Complaint.

DONE AND ENTERED this 27th day of May, 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 27th day of May, 2005.

ENDNOTES

1/ By agreement of the parties, the Respondent was allowed to file its exhibit after the hearing. Ruling on the admissibility of the exhibit was reserved until the Petitioner had an opportunity to review the exhibit. Following review of the exhibit, there was no objection. Accordingly, the Respondent’s Exhibit number 1 was received in evidence.

2/ The Petitioner’s Proposed Recommended Order has been carefully considered during the preparation of this Recommended Order.

3/ There is no evidence that the employees of the Respondent restaurant failed to wash their hands prior to preparing or serving food.

4/ Mr. Torres testified that the deficiencies identified as numbers 32 and 37 were not critical violations.

COPIES FURNISHED:

Sean Trujillo, Manager Bagel Restaurant

625 East Atlantic Boulevard Pompano Beach, Florida 33060

Grant Gibson, Qualified Representative 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 32399-2202

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

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: 05-000822

Orders for Case No: 05-000822