STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

CHINA GATE,

Respondent.

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) Case No. 05-2756

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RECOMMENDED ORDER

Pursuant to notice a hearing was held in this case on September 23, 2005, in Tampa, Florida, before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues are whether Respondent, China Gate, committed the alleged violations set forth in the Administrative Complaint, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), filed an Administrative Complaint on December 7, 2004, alleging that Respondent, China Gate, had violated Chapter 509, Florida Statutes (2004), and the rules promulgated thereunder, related to the operation of food service establishments. Specifically, the Administrative Complaint alleged that Respondent failed to comply with Rule 6-501.111 of the Food Code by having pests (i.e. roaches) in its establishment. Respondent completed the Election of Rights form, and on that form, expressly disputed the material facts in the Administrative Complaint and requested an evidentiary hearing.

Petitioner referred the matter to the Division of Administrative Hearings (DOAH) for assignment of an Administrative Law Judge (ALJ) to conduct the final hearing and prepare a recommended order. Following assignment of an ALJ, a written Notice of Hearing was sent to all parties setting forth the details regarding the scheduling of the final hearing.

The final hearing was scheduled to begin at 9:00 a.m. on September 23, 2005. Petitioner made a timely appearance at the hearing. There was no appearance by or on behalf of Respondent, even though commencement of the evidentiary hearing was delayed until 9:17 a.m. in order to afford Respondent an opportunity to

appear. The hearing was held without any participation by Respondent. There has been no explanation as to the reason for Respondent's failure to appear at the hearing.

At the hearing, Petitioner presented the testimony of Richard Decker, a senior inspector with the Division, and offered six exhibits, all of which were received into evidence. Petitioner's request for official recognition of Section 509.032, Florida Statutes (2004), and Rule 6-501.111 of the Food Code, was granted.

The Transcript of the hearing was filed with DOAH on October 3, 2005. Petitioner filed a Proposed Recommended Order on October 13, 2005, which has been carefully considered during the preparation of this Recommended Order. Respondent has not filed any post-hearing documents.

FINDINGS OF FACT

1. At all times relevant to this case, Respondent has been licensed as a permanent food service facility, having been issued License No. 3915595. Respondent's business address and mailing address is 12049 Anderson Road, Tampa, Florida 33624.

2. On December 1, 2004, Inspector Decker conducted a routine inspection of Respondent's licensed premises. During the course of the inspection, Inspector Decker observed one adult live German roach on the coffin freezer and approximately

   20 live baby German roaches on the food storage shelves.

   Inspector Decker also observed "well over 300 dead German roaches on floors, under equipment, and on food storage shelves in [the] kitchen area."

3. The presence of the live German roaches was evidence of roach infestation in Respondent's food service facility. Because roaches and other pests are capable of transmitting disease to man by contaminating food and food-contact surfaces, this is a critical violation.

4. A critical violation is a violation that, if not corrected, could cause food-borne illness.

5. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division at Florida Administrative Code Chapter 61C. Rule 6-501.111 of the Food Code requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."

6. On December 1, 2004, after the routine inspection and based on the results thereof, Inspector Decker hand-delivered an Emergency Order of Suspension of License and Closure (Emergency Order). Pursuant to the Emergency Order, Respondent's food service establishment was closed until a determination was made that the violations were corrected. Respondent was given until the morning of December 2, 2004, to correct the violations.

7. On December 2, 2004, Inspector Decker conducted a follow-up inspection of Respondent's food service establishment and found that the violations described above had been corrected.

8. On or about December 7, 2004, the Division issued an Administrative Complaint seeking to impose administrative fines and other penalties for the violations revealed during the December 1, 2004, routine inspection.

9. In December 2003, Respondent's food service establishment was cited for the same violation, roach infestation, found in this case. As a result of the violation in December 2003, Respondent's food service establishment was also closed.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes (2005).

11. Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency charged with regulating public food service establishments pursuant to Chapter 509 and Section 20.165, Florida Statutes (2004).

12. Pursuant to Subsection 509.261(1), Florida Statutes (2004), Petitioner may impose penalties for violations of Chapter 509, Florida Statutes (2004), and for rules promulgated under that chapter. The authorized penalties may include an administrative fine of no more than $1,000 for each separate offense, attendance at personal expense at an educational course sponsored by the Hospitality Education Program, and the suspension or revocation of Respondent's license.

13. Here, Petitioner seeks to impose an administrative fine, a penal sanction. Therefore, Petitioner has the burden of proving the specific allegations set forth in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

14. Petitioner has met its burden of proof.

    
    

15. The clear and convincing evidence established that Respondent violated Rule 6-501.111 of the Food Code, which has been incorporated by reference into Florida Administrative Code Rule 61C-1.004(1), by failing to minimize the presence of pests (i.e. German roaches) on the premises.

16. Petitioner established that Respondent was guilty of this same violation in the past. Accordingly, it appears appropriate to impose the maximum administrative fine of $1,000

and require attendance at an educational course sponsored by the Hospitality Education Program, as recommended by Petitioner.

RECOMMENDATION

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

RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order that finds that Respondent, China Gate, violated Rule 6-501.111 of the Food Code, imposes an administrative fine of $1,000, and requires Respondent to attend an educational course sponsored by the Hospitality Education Program.

DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 31st day of October, 2005.

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Zoey Sal

Empress Inc.-China Gate 12049 Anderson Road

Tampa, Florida 33624

Geoff Luebkemann, Director Department of Business and Professional Regulation

Division of Hotels and Restaurants 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: 05-002756

Orders for Case No: 05-002756