STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

CATFISH COUNTRY,

Respondent.

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) Case No. 05-3777

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RECOMMENDED ORDER

Pursuant to notice, and in accordance with Section 120.57, Florida Statutes (2005), a final hearing was held in this case on December 2, 2005, in Tampa, Florida, before Fred L. Buckine, the designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner:: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the acts alleged in the Administrative Complaint dated December 21, 2004, and, if so,

what disciplinary action should be taken against Respondent's license.

PRELIMINARY STATEMENT

On December 21, 2004, Petitioner filed an Administrative Complaint, DBPR Case No. 2004060588, against Respondent (Theoharris Liristis),1 alleging violations of Chapter 509, Florida Statutes (2004), and the rules promulgated thereto. The Administrative Complaint charged Respondent with violations of the following:

1. Rule 6-501.111, Food Code, which provides in pertinent part that:

   The presence of insects, rodents, and other pests shall be controlled to minimize their presence on the PREMISES by:

   
   

   1. Routinely inspecting incoming shipments of FOOD and supplies;

      
      

   2. Routinely inspecting the PREMISES for evidence of pests:

      
      

   3. Using methods, if pests are found, such as trapping devices or other means of pest control as specified under SS 7-202.12, 7-206.12, and 7-206.13; and

      
      

   4. Eliminating harborage conditions.

      
      

2. Rule 6-501.112, Food Code, which provides in pertinent part that:

   Dead or trapped birds, insects, rodents, and other pests shall be removed from control devices and the PREMISES at a frequency that

   prevents their accumulation, decompositions, or the attraction of pests.

   
   

3. Florida Administrative Code Rule 61C-4.023(1), which provides in pertinent part that:

   (1) All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted in this chapter. Those managers who successfully pass an approved certification examination shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. When four or more employees, at one time, are engaged in the storage, preparation or serving of food in a licensed establishment, there shall be at least one certified food protection manager present at all times when said activities are taking place. The certified food protection manager or managers need not be present in the establishment during those periods of operation when there are three or fewer employees engaged in the storage, preparation, or serving of foods. It shall be the responsibility of the certified food protection manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this chapter.

4. Section 509.049, Florida Statutes (2004), which provides in pertinent part that:

1. The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the division.

   
   

2. The division shall issue a request for competitive sealed proposals which includes a statement of the contractual services sought and all terms and conditions applicable to the contract. The division shall award the contract to the provider whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The division shall contract with a provider on a 4-year basis and is authorized to promulgate by rule a per employee fee to cover the contracted price for the program administered by the provider. In making its selection, the division shall consider factors including, but not limited to, the experience and history of the provider in representing the food service industry, the provider's demonstrated commitment to food safety, and its ability to provide a statewide program with industry support and participation.

   
   

3. Any food safety training program established and administered to food service employees utilized at a licensed public food service establishment prior to July 1, 2000, shall be submitted by the operator or the third-party provider to the division for

   its review and approval on or before September 1, 2004. If the food safety training program is found to be in substantial compliance with the division's required criteria and is approved by the division, nothing in this section shall preclude any other operator of a food service establishment from also utilizing the approved program or require the employees of any operator to receive training from or pay a fee to the division's contracted provider. Review and approval by the division of a program or programs under this section shall include, but need not be limited to, verification that the licensed public food service establishment utilized the program prior to July 1, 2000, and the minimum food safety standards adopted by the division in accordance with this section.

   
   

4. Approval of a program is subject to the provider's continued compliance with the division's minimum program standards. The division may conduct random audits of any approved programs to determine compliance and may audit any program if it has reason to believe a program is not in compliance with this section. The division may revoke a program's approval if it finds a program is not in compliance with this section or the rules adopted under this section.

   
   

5. It shall be the duty of each public food service establishment to provide training in accordance with the described rule to all food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within

60 days after employment. Certification pursuant to this section shall remain valid for 3 years. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at

the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the training occurred, and the approved food safety training program used.

(6)(a) Third-party providers shall issue to a public food service establishment an original certificate for each employee certified by the provider and an original card to be provided to each certified employee. Such card or certificate shall be produced by the certified food service employee or by the public food service establishment, respectively, in its duly issued original form upon request of the division.

(b) Effective January 1, 2005, each third-party provider shall provide the following information on each employee upon certification and recertification: the name of the certified food service employee, the employee's date of birth, the employing food service establishment, the name of the certified food manager who conducted the training, the training date, and the certification expiration date. This information shall be reported electronically to the division, in a format prescribed by the division, within 30 days of certification or recertification. The division shall compile the information into an electronic database that is not directly or indirectly owned, maintained, or installed by any nongovernmental provider of food service training. A public food service establishment that trains its employees using its own in-house, proprietary food safety training program approved by the division, and which uses its own employees to provide this training, shall be exempt from the electronic reporting requirements of this paragraph,

and from the card or certificate requirement of paragraph (a).

1. The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require:

   
   

   1. The use of application forms, which may require, but need not be limited to, the identification of training components of the program and an applicant affidavit attesting to the accuracy of the information provided in the application;

      
      

   2. Third-party providers to maintain and electronically submit information concerning establishments where they provide training or training programs pursuant to this section;

      
      

   3. Specific subject matter related to food safety for use in training program components; and

      
      

   4. The public food service establishment to be responsible for providing proof of employee training pursuant to this section, and the division may request production of such proof upon inspection of the establishment.

      
      

2. The following are violations for which the division may impose administrative fines of up to $1,000 on a public food service establishment, or suspend or revoke the approval of a particular provider's use of a food safety training program:

   
   

   1. Failure of a public food service establishment to provide proof of training pursuant to subsection (5) upon request by the division or an original certificate to the division when required pursuant to paragraph (6)(a).

   2. Failure of a third-party provider to submit required records pursuant to paragraph (6)(b) or to provide original certificates or cards to a public food service establishment or employee pursuant to paragraph (6)(a).

      
      

   3. Participating in falsifying any training record.

      
      

   4. Failure of the program to maintain the division's minimum program standards.

Respondent timely disputed the allegations contained in the Administrative Complaint and petitioned for a final administrative hearing involving disputed issues of material fact. Consequently, the case was transferred to the Division of Administrative Hearings pursuant to Subsection 120.57(1), Florida Statutes (2004).

At the final hearing, Petitioner presented the testimony of one witness: Christopher Damico, sanitation and safety specialist for Petitioner, and offered seven exhibits, which were accepted into evidence.

Upon request, the undersigned took official recognition of Rule 6-501.111 and Rule 6-501.112, Food Code; Florida Administrative Code Rule 61C-4.023(1); and Section 509.049, Florida Statutes (2004).

The one-volume Transcript of Proceeding was filed with the Division of Administrative Hearings on December 12, 2005. On

December 21, 2005, Petitioner filed a Proposed Recommended Order that was considered by the undersigned.

FINDINGS OF FACT

Based upon observation of the witness and his demeanor while testifying and the materials received in evidence, the following relevant and material facts are found:

1. At all times material hereto, Respondent, Catfish Country, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 3900935.

2. At all times material hereto, Christopher Damico was employed by Petitioner as a safety and sanitation specialist. Mr. Damico has been employed with Petitioner as a safety and sanitation specialist for one year and eight months. His duties as an inspector include, but are not limited to, inspecting public lodging and food service establishments and performing routine call-back, complaint, and licensing inspections. Prior to his employment with Petitioner, Mr. Damico was employed for two years as a concierge at Hilton Corporation in Gainesville, Florida. Mr. Damico has two years of education in biology at the University of South Florida, in Tampa, Florida, and three years of agriculture study at the University of Florida, in Gainesville, Florida. Upon his employment by Petitioner,

   Mr. Damico received training in public food service establishments, public lodging establishments, and hazard analysis critical control point; became a special fire safety inspector; and was certified as a food manager. Mr. Damico receives monthly continuing education and on-the-job training.

3. On November 8, 2004, Mr. Damico performed an inspection of Catfish Country. During his inspection, Mr. Damico observed a dead, trapped rodent in a control device, specifically a glue trap. He also observed feces and droppings, evidencing rodent activity and presence. This is a critical violation.

4. A critical violation is a violation that, if not corrected immediately, could pose an immediate public health threat.

5. On November 22, 2004, Mr. Damico performed a follow-up inspection of Catfish Country and set forth his findings in a written report granting Catfish Country's owner, Theoharris Liristis, a time extension until December 14, 2004, to correct noted violations during his prior inspections.

6. On December 14, 2004, Mr. Damico returned for a follow- up correction inspection of Catfish Country. During this inspection, Mr. Damico observed and noted that Mr. Liristis had failed to correct the previous November 8, 2004, violation. During this inspection, Mr. Damico noted that Mr. Liristis could

   not produce evidence of having the required certified food manager for the establishment. This is a critical violation.

7. During his December 14, 2004, inspection, Mr. Damico noted that Mr. Liristis had failed to correct the previous November 22, 2004, violation and had no proof of the required employee training. The latter is a critical violation.

8. After the above inspections, notice of correction, and extension of time for correction of noted violations, the evidence conclusively established that Mr. Liristis knowingly refused, after repeated notice and time for correction, to correct critical violations found in Catfish County, a licensed establishment serving food to the public, which has been issued license number 3900935.

   CONCLUSIONS OF LAW

   
   

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

10. Section 509.261, Florida Statutes (2004), provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of Chapter 509, or the rules promulgated thereunder, is subject to 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.

11. Petitioner, as the party asserting the affirmative of an issue, has the burden of proving by clear and convincing evidence the allegations contained in the Administrative Complaint against Respondent. Department of Banking and

    Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). See also Solmowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

12. Disciplinary action may only be based upon the offenses specifically alleged in the Administrative Complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

13. As alleged in the Administrative Complaint, Section 509.032(6), Florida Statutes (2004), authorizes Petitioner to adopt such rules as are necessary to carry out the provision therein.

14. As alleged in the Administrative Compliant, Florida Administrative Code Rule 61C-4.010 provides that public food service establishments are subject to the provisions of Chapter 3, Food Code, adopted by reference.

15. As alleged in the Administrative Compliant, Rule 6- 501.11, Food Code, establishes the minimum standards with which licensed public lodging and/or food service premises must comply regarding the conditions of the premises and food supplies therein.

16. As alleged in the Administrative Compliant, Rule 6- 501.112, Food Code, imposes immediate removal of dead or trapped prohibited animals on the licensed premises. Dead rodents found were noted and upon reinspection were not removed.

17. As alleged in the Administrative Compliant, Florida Administrative Code Rule 61C-4.023(1) places the responsibility for compliance with the basic knowledge of food protection practices upon a certified manager, who is additionally responsible for compliance by all employees at all times on premises. There was no evidence of having a certified food manager for the establishment as required.

18. As alleged in the Administrative Compliant, Subsections 509.049(8)(a), (5), (6)(a), (6)(b), and (6)(c), Florida Statutes (2004), establish authority of Petitioner to impose administrative fines of up to $1,000 on public food establishments' owners or suspend or revoke approval of a provider's use of a safety training program.

19. As alleged in the Administrative Compliant, Petitioner proved by clear and convincing evidence that Respondent violated

    Rule 6-501.111, Food Code, by having rodent activity as evidenced by rodent droppings found in the kitchen.

20. As alleged in the Administrative Compliant, Petitioner proved by clear and convincing evidence that Respondent violated Rule 6-501.112, Food Code, by having a small, dead rat trapped in a glue trap in the kitchen, that after notice was not removed upon second inspection.

21. As alleged in the Administrative Compliant, Petitioner proved by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C-4.023(1), by not having a certified food manager for the establishment.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

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

1. Respondent, Theoharris Liristis, d/b/a Catfish Country, having been issued license number 3900935, shall pay an administrative fine in the amount of $2,000, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, within 30 calendar days of the date the final order is filed with the agency clerk.

2. Respondent, Theoharris Liristis, having been issued license number 3900935, shall attend an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 6th day of March, 2006, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 6th day of March, 2006.

ENDNOTE

1/ Petitioner's Exhibit B, DBPR Food Service Inspection Report, listed Theoharris Liristis as the licensed owner of the establishment known as Catfish Country.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Theoharris Liristis Catfish Country

712 South Collins Street Plant City, Florida 33565

Josefina Tamayo, 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: 05-003777

Orders for Case No: 05-003777