STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANT, )

)

Petitioner, )

)

vs. ) Case No. 05-4099

)

PHO HOA II RESTAURANT,1 )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on January 17, 2006, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: David Tran, Owner

Pho Hoa II Restaurant 5435 North State Road 7

Tamarac, Florida 33319

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 27, 2005, Petitioner issued an Administrative Complaint against Respondent alleging that on August 16, 2005, August 17, 2005, and September 19, 2005, Respondent was in

violation of Sections 3-501.17(A), 4-501.11, 4-602.13 and 7-

1. of the Food Code; National Fire Protection Association Standard 96, 6.2.3.3.; and Florida Administrative Code Rule 61C- 1.004(6). On or about October 16, 2005, Respondent requested "an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes,"2 on the allegations made against it in the Administrative Complaint. On November 7, 2005, the matter was referred to DOAH for the assignment of a DOAH administrative law judge to conduct the hearing Respondent had requested.

   As noted above, the hearing was held on January 17, 2006. Two witnesses testified at the hearing: Novelette Williams and David Tran. In addition, four exhibits (Petitioner's Exhibits 1 through 4) were offered and received into evidence.

   At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing with

   DOAH of the hearing transcript) for the filing of proposed recommended orders.

   The Transcript of the hearing (consisting of one volume) was filed with DOAH on February 13, 2006.

   Respondent filed its Proposed Recommended Order on February 21, 2006. To date, Respondent has not filed any post-

   hearing submittal.

   
   

   FINDINGS OF FACT

   
   

   Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

   1. At all times material to the instant case, Respondent operated Pho Hoa II Restaurant (Restaurant), an eating establishment located in Tamarac, Florida.

   2. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-11405-R) authorizing it to operate the Restaurant as a public food service establishment.

   3. David Tran is the manager of the Restaurant and part- owner of Respondent. English is his “second language,” and he has difficulty speaking and understanding it.

   4. On August 16, 2005, Novelette Williams, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of the Restaurant. Her inspection revealed, among other things, the following (which hereinafter

      will be referred to, collectively, as the "Conditions"): refrigerated, ready–to-eat food items, subject to contamination from bacteria over time, were being stored for subsequent use in containers that did not have any date markings on them; wooden shelves on the table in the kitchen were in disrepair and contained surfaces that could attract and harbor vermin; the hood range in the kitchen had loose-fitting grease filters that created a fire hazard; slime and mold were on a gasket in the "reach-in" cooler where food items (that could be contaminated by the slime and mold) were being stored ; the kitchen ceiling had a hole a "couple of inches" in diameter (through which "vermin or rodents [could] enter"); and a toxic substance was being stored in a container not bearing a label identifying its contents.

   5. Before leaving the establishment, Ms. Williams advised Mr. Tran that these Conditions were violations for which Respondent could be disciplined by Petitioner if they were not corrected within 30 days.3 Because of his limited English proficiency, Mr. Tran had some difficulty understanding what he needed to do to avoid disciplinary action.

   6. Ms. Williams conducted a "callback" inspection of the premises of the Restaurant on September 19, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed.

      CONCLUSIONS OF LAW

      
      

   7. Petitioner has been statutorily delegated the authority to "carry out all of the provisions of [Chapter 509, Florida Statutes] and all other laws relating to the inspection or regulation of . . . public food service establishments for the purpose of safeguarding the public health, safety, and welfare."

      § 509.032, Fla. Stat.

      
      

   8. A "public food service establishment," as that term is used in Chapter 509, Florida Statutes, is defined in Section 509.013(5)(a), Florida Statutes, as follows:

      "Public food service establishment" means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.

      
      

   9. Each "public food service establishment" must have a license from Petitioner prior to the commencement of operation.

      § 509.241, Fla. Stat.

      
      

   10. Disciplinary action may be taken against the holder of such license if the licensee "has operated or is operating in violation of any of the provisions of [Chapter 509, Florida Statutes] or the rules of [Petitioner]." Such disciplinary action may include one or more of the following penalties:

       license revocation, with the licensee unable to "apply for another license for that location prior to the date on which the revoked license would have expired"; license suspension (for a period not exceeding 12 months), with the licensee able to "apply for reinstatement or renewal of the license" following the suspension period; imposition of an administrative fine not to exceed $1,000 for each separate offense4; and "[m]andatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program." § 509.261, Fla. Stat.

   11. The “the rules of [Petitioner]," violation of which subject a licensee to disciplinary action pursuant to Section 509.261, Florida Statutes, include the following:

       61C-1.004 General Sanitation and Safety Requirements.

       
       

       The following general requirements and standards shall be met by all . . . public food service establishments:

       
       

       * * *

       
       

       1. The storage and use of poisonous and toxic materials shall be governed by the provisions of Chapter 7, Food Code, herein adopted by reference. For the purposes of this section, the term "food establishment" as referenced in the Food Code shall apply to all . . . public food establishments as defined in Chapter 509, F.S.

          
          

       2. All fire safety, protection and prevention equipment must be installed, approved, maintained and used in accordance

          with Chapter 509, F.S., and the National Fire Protection Association Life Safety Code Chapter 101, as adopted by the Division of State Fire Marshal in Chapter 4A-3, F.A.C.

          
          

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

          
          

          * * *

          
          

          61C-4.010 Sanitation and Safety Requirements.

          
          

          (1) Food Supplies and Food Protection - except as specifically provided in this rule, public food service establishments shall be subject to the provisions of Chapter 3, Food Code, herein adopted by reference

          
          

          * * *

          
          

          (5) Food Equipment, Utensils and Linens - public food service establishments shall be subject to the provisions of Chapter 4, Food Code, herein adopted by reference.

          
          

          * * *

          
          

   12. Section 3-501.17(A) is part of Chapter 3 of the Food Code (which is referenced in Florida Administrative Code Rule 61C-4.010(1)). It provides as follows:

       1. Except as specified in ¶ (D) of this section, refrigerated, ready-to-eat, POTENTIALLY HAZARDOUS FOOD prepared and held in a FOOD ESTABLISHMENT for more than 24 hours shall be clearly marked to indicate the date or day by which the FOOD shall be consumed on the PREMISES, sold, or discarded, based on the temperature and time combinations specified below:

          1. 5°C (41°F) or less for a maximum of 7 days; or

             
             

          2. 7°C (45°F) or between 5°C (41°F) and 7°C (45°F) for a maximum of 4 days in existing refrigeration EQUIPMENT that is not capable of maintaining the FOOD at 5°C (41°F) or less if:

             
             

             1. The EQUIPMENT is in place and in use in the FOOD ESTABLISHMENT, and

                
                

             2. Within 5 years of the REGULATORY AUTHORITY'S adoption of this CODE, the EQUIPMENT is upgraded or replaced to maintain FOOD at a temperature of 5°C (41°F) or less.

       
       

       The day of preparation shall be counted as Day 1

       
       

   13. Section 4-501.11 is part of Chapter 4 of the Food Code (which is referenced in Florida Administrative Code Rule 61C- 4.010(5)). It provides, in pertinent part, as follows:

       (A) EQUIPMENT shall be maintained in a state of repair and condition that meets the requirements specified under Parts 4-1 and 4-2.

       
       

       * * *

       
       

   14. Section 4-602.13 is also part of Chapter 4 of the Food Code. It provides as follows:

       NONFOOD-CONTACT SURFACES OF EQUIPMENT shall

       be cleaned at a frequency necessary to preclude accumulation of soil residues.

   15. Section 7-101.11 is part of Chapter 7 of the Food Code (which is referenced in Florida Administrative Code Rule 61C- 1.004(4)). It provides as follows:

       Containers of POISONOUS OR TOXIC MATERIALS

       and PERSONAL CARE ITEMS shall bear a legible manufacturer’s label.

       
       

   16. The "National Fire Protection Association [NFPA] Life Safety Code Chapter 101, as adopted by the Division of State Fire Marshal in Chapter 4A-3, FAC" (which is referenced in Florida Administrative Code Rule 61C-1.004 (5)) contains the following provisions, among others:

       NFPA 96, 6.2.3.3.

       
       

       Grease filters shall be arranged so that all exhaust air shall pass through the grease filters.

       
       

   17. "No revocation [or] suspension . . . of any [public food service establishment] license is lawful unless, prior to the entry of a final order, [Petitioner] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat.

   18. The licensee must be afforded an evidentiary hearing if, upon receiving such written notice, the licensee disputes the alleged facts set forth in the administrative complaint.

       §§ 120.569(1) and 120.57, Fla. Stat.

       
       

   19. At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed

       the violations, alleged in the administrative complaint. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the licensee's guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of

       Central Florida v. Department of Business Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992); and § 120.57(1)(j), Fla. Stat.

       ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

   20. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

       the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

       from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   21. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegation(s) made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental

       Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).

   22. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

       v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

       Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

   23. The Administrative Complaint issued in the instant case alleges that, on August 16, 2005, August 17, 2005, and September 19, 2005, Respondent was in violation of Sections 3- 501.17(A), 4-501.11, 4-602.13 and 7-101.11 of the Food Code; National Fire Protection Association Standard 96, 6.2.3.3.; and Florida Administrative Code Rule 61C-1.004(6).

   24. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed each of these violations on August 16, 2005, and September 19, 2005. Accordingly, disciplinary action may be taken against Respondent pursuant to Section 509.261, Florida Statutes.

   25. In its Proposed Recommended Order, Petitioner proposes that the undersigned recommend that Respondent be required to pay an administrative fine in the total amount of $2,000.00, as well as “attend an educational program sponsored by the Hospitality Education Program,” for committing the violations alleged in the Administrative Complaint.

   26. This is a reasonable and appropriate penalty that is within Petitioner’s statutory authority to impose.

RECOMMENDATION

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

RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the total amount of $2,000.00 and requiring Respondent (through Mr. Tran) to attend, at its own expense, an "educational program sponsored by the Hospitality Education Program."

DONE AND ENTERED this 24th day of February, 2006, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 24th day of February, 2006.

ENDNOTES

1/ Pho Hoa II Restaurant is the “doing business as” name of Asian Taste, Inc.

2/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (2005).

3/ There were other, more serious violations that Ms. Williams found during her August 16, 2005, routine inspection that she gave Respondent 24 hours to remedy. Ms. Williams returned to the Restaurant on August 18, 2005, to check to see if these violations had been corrected and discovered that they had been. These corrected violations are not at issue in the instant case.

4/ Section 509.261(2), Florida Statutes, provides that, "[f]or the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a 'critical law or rule,' as that term is defined by rule." "Violations of critical laws or rules" are defined in Florida Administrative Code Rule 61C-1.0021(2), as "those violations determined by the [Petitioner] to pose a significant threat to the public health, safety, or welfare."

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

David Tran, Owner

Pho Hoa II Restaurant 5435 North State Road 7

Tamarac, Florida 33319

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Josefina Tamayo, 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: 05-004099

Orders for Case No: 05-004099