STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On August 16, 2005, a final hearing was held pursuant to notice in Orlando, Florida, before Bram D. E. Canter, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tonya S. Chavis, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Dion Nunez, pro se

1718 North Goldenrod Road Orlando, Florida 32818

STATEMENT OF THE ISSUES

The issues in the case are whether the alleged violations set forth in the Petitioner's Administrative Complaint occurred, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint on October 20, 2004, alleging that the Respondent, Amici's Pizza, had violated certain state laws regulating the operation of food service establishments. The Respondent disputed the allegations and requested an administrative hearing. The Petitioner referred the matter to the Division of Administrative Hearings which scheduled and conducted an evidentiary hearing.

At the hearing, the Petitioner presented the testimony of one witness, James Thomason, a Sanitary and Safety Specialist with the Division of Hotels and Restaurants. The Petitioner's Exhibits A through C were admitted into evidence. The Petitioner's request for official recognition of Subsection 509.32(6), Florida Statutes (2004), and Rules 4-501.11(a)

and 3-501.16 of the United States Department of Agriculture's Food Code, was granted. The Respondent presented the testimony of Dion Nunez, the owner of Amici's Pizza. The Respondent offered no exhibits into evidence.

A one-volume Transcript of the hearing was filed on September 7, 2005. The Petitioner submitted a proposed recommended order, and it was considered in the preparation of this Recommended Order. No post-hearing papers were submitted by the Respondent.

FINDINGS OF FACT

Based on the evidence and witness testimony presented and the entire record of this proceeding, the following Findings of Fact are made:

1. The Petitioner is a state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004).

2. The Respondent, Amici's Pizza, is a restaurant located at 1718 North Goldenrod Road in Orlando, Florida. The records of the Division indicate that the restaurant is also known as Amici's Italian Kitchen and Pizzeria. The Respondent holds License No. NOS5808584.

3. James Thomason is a Senior Sanitary and Safety Specialist employed by the Division of Hotels and Restaurants. His duties include inspecting food service establishments and lodging facilities for compliance with applicable law. He conducts approximately 4000 inspections per year for the Division.

4. On August 27, 2004, Mr. Thomason conducted a routine inspection of Amici's Pizza and issued an inspection report. In his report, Mr. Thomason noted several violations, among which are the two violations that are charged in the Petitioner's Administrative Complaint: cheese and sausage in the preparation area were above the maximum allowable temperature, and the pizza cooler was not maintaining food at sufficiently low temperatures.

5. The August 27, 2004, inspection report indicated that the two violations were "critical violations," meaning they posed an immediate threat to the public. The public threat associated

   with food not being kept at a low temperature is the possible consumption of bacteria-contaminated food.

6. Because Mr. Thomason found what he believed to be critical violations at Amici's Pizza, he indicated in his inspection report that the violations had to be corrected by August 30, 2004. A copy of the inspection report was given to the owner of Amici's Pizza, Dion Nunez, on August 27, 2004, at the conclusion of the inspection. Mr. Thomason discussed the violations that he had noted in the report with Mr. Nunez, and Mr. Nunez signed the report.

7. Mr. Thomason conducted a "call back" inspection of Amici's Pizza on August 30, 2004, and noted in his inspection report for that date that the two critical violations identified above had not been corrected. The non-critical violations had been corrected.

8. Mr. Thomason determined on his August 27, 2004, inspection that the temperature of cheese and sausage on the "make line" was 51 degrees Fahrenheit ("F") and 58 degrees F, respectively. As set forth more fully, below, the maximum temperature allowed for these foods was 41 degrees F.

9. Mr. Nunez did not dispute Mr. Thomason's determination on August 27, 2004, that the temperature of the cheese and sausage on the make line exceeded allowable temperatures. In fact, Mr. Nunez responded by immediately disposing of the cheese and sausage.

10. When Mr. Thomason made his call back inspection of Amici's Pizza on August 30, 2004, he found the temperature of the

    cheese and sausage on the make line was 50 degrees F

    and 62 degrees F, respectively. Mr. Nunez did not dispute Mr. Thomason's August 30, 2004, findings regarding food temperature.

11. Mr. Nunez did not dispute Mr. Thomason's findings on August 27 and August 30, 2004, that the cooler at Amici's Pizza was not keeping the foods in the cooler at or below 41

    degrees F.

12. Mr. Nunez' stated that he tried to get an electrician to fix his cooler before the August 30, 2004, call back inspection, but was unable to get an electrician who could respond that soon. Mr. Nunez attributed this problem to the fact that August 27, 2004, was a Friday, giving him only the weekend to find an electrician, and also to the recent passage of a hurricane through the area. Amici's Pizza continued to serve customers during the time that the cooler remained un-repaired, but Mr. Nunez used ice in an attempt to lower the temperature.

    CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

14. Pursuant to Subsection 509.261(1), Florida Statutes (2004), the Petitioner may impose penalties for violations of its rules, 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 the Respondent's license.

15. Because Subsection 509.261(1), Florida Statutes (2004), is a penal statute and the Petitioner is seeking to impose a penal sanction, the Petitioner has the burden of proving the specific allegations set forth in its Administrative Complaint by clear and convincing evidence. See, e.g., Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

16. The clear and convincing evidence standard has been described as follows:

    The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116 (Fla. 1st DCA 1989).

17. Disciplinary action must be confined to the offenses specifically alleged in the administrative complaint. See Cottrill v. Dept. of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).

18. Florida Administrative Code Rule 61C-1.004(1) adopts by reference the Food Code of the United States Department of Agriculture.

19. For failing to maintain potentially hazardous food at a temperature of 41 degrees F or lower, the Department charged the Respondent in its Administrative Complaint with violating Food Code Rule 3-501.16(B). However, Food Code Rule 3-501(16)(B) sets forth requirements for the storage of shell eggs, and is

    inapplicable to the factual allegations of the Administrative Complaint. The applicable provision of the Food Code is Rule 3- 501.16(A)(2).

20. For failing to maintain its cooler to keep foods at

    41 degrees F or lower, the Department charged the Respondent with violating Food Code Rule 4-501.11(A), which requires equipment to be maintained in a state of repair and condition that meets the requirements of Parts 4-1 and 4-2 of the Food Code. The specific requirement within Parts 4-1 or 4-2 of the Food Code that the Department believes the Respondent failed to comply with was not identified in the Administrative Complaint. No requirement within Parts 4-1 and 4-2 states that cooling equipment must maintain food at 41 degrees F or lower. The applicable provision of the Food Code is Rule 4-301.11, which requires there be a sufficient number and capacity of food cooling equipment to provide food temperatures as specified in Chapter 3 of the Food Code (where the 41 degrees F standard is found).

21. An incorrect citation in the charging instrument to the

    law violated is not fatal if the alleged offending acts are adequately described. B.H. v. State, 645 So. 2d 987 (Fla. 1994); Maravel v. Department of Professional Regulation, 498 So. 2d 481 (Fla. 1st DCA 1987); Farzad v. Department of Professional Regulation, 443 So. 2d (Fla. 1st DCA 1983). In this case, the alleged offending acts were adequately described to, understood by, and addressed at the hearing by the Respondent. The Department's misdesignation of the Food Code rules in its

    Administrative Complaint did not prejudice the Respondent and is harmless error under the circumstances.

22. The Department met its burden to prove by clear and convincing evidence that the Respondent failed to maintain potentially hazardous food at required low temperatures, and failed to maintain its cooler to keep such foods at required low temperatures.

23. This is the Respondent's first offense. Mr. Nunez acted responsibly by throwing away food that violated temperature requirements. He made reasonable efforts to fix the malfunctioning cooler as quickly as possible. Under the circumstances, an administrative fine of $500 would be fair and reasonable.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation enter a final order that finds the Respondent violated Food Code Rules 3-501.16(A)(2) and 4-302.11, and imposes an administrative fine of $500.

DONE AND ENTERED this 22nd day of September, 2005, in Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

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 22nd day of September, 2005.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Dion Nunez Amici's Pizza

525 South Ronald Reagan Boulevard Orlando, Florida 32750

Dion Nunez

1718 North Goldenrod Road Orlando, Florida 32818

Tonya S. Chavis, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel 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: 05-002094

Orders for Case No: 05-002094