STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

TAINOS CAFE,

Respondent.

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) Case No. 06-0419

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RECOMMENDED ORDER

On May 25, 2006, an administrative hearing in this case was held by teleconference between Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, 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

The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 29, 2005, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), alleges that Tainos Cafe (Respondent), a restaurant operated by Jesus Gonzalez, was found to be in violation of various specified provisions of food safety regulations. The Respondent disputed the allegations and requested a formal administrative hearing. The Petitioner forwarded the matter to the Division of Administrative Hearings, which scheduled and conducted the hearing.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1 through 3 admitted into evidence. The Respondent did not appear and was not represented at the hearing.

The Transcript of the hearing was filed on June 9, 2006.

The Petitioner filed a Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2005).

2. The Respondent is a restaurant located at 2311 West Hillsborough Avenue, in Tampa, Florida, holding Permanent Food Service license number 3910762. Jesus Gonzalez is identified on the license as the owner of the Respondent.

3. On October 4, 2005, Catherine Lombard, employed by the Petitioner as a safety and sanitation specialist, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a written report. Ms. Lombard provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a

   re-inspection for November 4, 2005.

   
   

4. On November 7, 2005, Ms. Lombard re-inspected the Respondent and determined that some of the violations identified during the inspection on October 4, 2005, remained uncorrected. The violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection.

5. On November 29, 2005, the Petitioner filed an Administrative Complaint against the Respondent, alleging various continuing and uncorrected violations identified during the inspections.

6. Violations that pose an immediate threat to public health and safety are identified as critical. Violations that do not pose an immediate threat are identified as non-critical.

7. During the inspections on October 4, 2005, and on November 7, 2005, the ventilation hood's fire suppression system tag had expired according to the date on the tag, and there was

   no current hood system report. These violations were identified as critical because failure of the fire suppression system located above the cooking equipment could result in an uncontrolled fire with loss of life and property.

8. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed uncooked food being thawed in a bucket of standing water at room temperature. On October 4, 2005, the food in the water was fish. On November 7, 2005, the food in the water was sausage. This violation was identified as critical because thawing food in room-temperature standing water can permit growth of food-borne bacteria and result in severe illness for persons consuming improperly thawed food.

9. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that food refrigeration units lacked conspicuously located thermometers. This violation was identified as critical because the lack of conspicuously located thermometers makes it more likely that an inadequately operating refrigeration unit will go unnoticed, thereby increasing the risk of food-borne illness related to improper food storage.

10. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed an uncovered electrical panel box located in the kitchen. This violation was identified

    as critical because of the obvious risk to kitchen workers presented by "live" electrical wiring located in proximity to wet kitchen floors.

11. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that a vacuum breaker was missing at a hose bib. This violation was identified as critical because, absent a properly installed vacuum break device, contaminated water in a hose may enter into the potable water supply and be consumed by the public potentially resulting in illness.

12. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard identified several non-critical violations, including the failure to place wet table wiping cloths into a sanitizing solution; a lack of hand-drying provisions in the restroom; damage to the wall behind the food preparation line, which made adequate cleaning of the wall difficult; failure to store utensils in a clean and protected location; and failure to hang a wet mop so as to permit the mop

    to dry.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.569, Fla. Stat. (2005).

14. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

15. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Ch. 509, Fla. Stat. (2005). The Petitioner has adopted by incorporation the various provisions of the Food Code referenced herein. Fla. Admin. Code R. 61C-4.010(1). The Petitioner has further adopted by incorporation the various provisions of the National Fire Protection Association Code referenced herein. Fla. Admin. Code R. 61C-1.004(5).

16. National Fire Protection Association Code Section 96,

    
    

    11.2.1 provides that "inspection and servicing of the

    
    

    fire-extinguishing system and listed exhaust hoods containing a constant or fire-actuated water system shall be made at least every 6 months by properly trained and qualified persons." National Fire Protection Association Code Section 1, 13.1.5-

    10.2.2 requires that detailed records "documenting all systems and equipment testing and maintenance shall be kept by the property owner and shall be made available upon request for review." The evidence establishes that as set forth herein, the Respondent's ventilation hood's fire suppression system tag had

    expired according to the date on the tag. The evidence further establishes that the Respondent did not have a current hood system report available for review.

17. Food Code Rule 3-501.13 provides as follows:

    
    

    3-501.13 Thawing.

    Except as specified in (D) of this section, potentially hazardous food shall be thawed:

    1. Under refrigeration that maintains the food temperature at 5°C (41°F) or less, or at 7°C (45°F) or less as specified under

       3-501.16(A)(2); or

    2. Completely submerged under running water:

       1. At a water temperature of 21°C (70°F) or below,

       2. With sufficient water velocity to agitate and float off loose particles in an overflow, and

       3. For a period of time that does not allow thawed portions of ready-to-eat food to rise above 5°C (41°F), or 7°C (45°F) as specified under 3-501.16(A)(2), or

       4. For a period of time that does not allow thawed portions of a raw animal food requiring cooking as specified under

          3-401.11(A) or (B) to be above 5°C (41°F), or 7°C (45°F) as specified under

          3-501.16(A)(2), for more than 4 hours including:

          1. The time the food is exposed to the running water and the time needed for preparation for cooking, or

          2. The time it takes under refrigeration to lower the food temperature to 5°C (41°F), or 7°C (45°F) as specified under ¶

             3-501.16(A)(2);

    3. As part of a cooking process if the food that is frozen is:

       1. Cooked as specified under 3-401.11(A) or (B) or § 3-401.12, or

       2. Thawed in a microwave oven and immediately transferred to conventional

          cooking equipment, with no interruption in the process; or

    4. Using any procedure if a portion of frozen ready-to-eat food is thawed and prepared for immediate service in response to an individual consumer's order.

       
       

18. The evidence establishes that as set forth herein, the Respondent was thawing uncooked food in a bucket of standing water at room temperature in violation of the referenced code provision.

19. Food Code Rule 4-204.112 requires that refrigeration equipment be equipped with at least one "integral or permanently affixed temperature measuring device that is located to allow easy viewing of the devices' temperature display" and further requires that the display be "easily readable." The evidence establishes that as set forth herein, the Respondent's food refrigeration units lacked conspicuously located thermometers.

20. National Fire Protection Association Code Section 70, 300.31, states as follows:

    Covers required. Suitable covers shall be installed on all boxes to prevent accidental contact with energized parts or physical damage to parts or insulation.

    
    

21. The evidence establishes that as set forth herein, an electrical panel box located in the kitchen had no cover installed.

22. Food Code Rule 5-203.14 requires that the plumbing system of a licensed food establishment include a device

    installed on a hose bibb to preclude backflow of potential contaminants into the water supply system. The evidence establishes that as set forth herein, there was no backflow device installed at the hose bibb.

23. Food Code Rule 3-304.14(B)(2) requires that cloths used for wiping food-spills muse be wet and cleaned as required and stored in a specified sanitation solution. The evidence establishes that as set forth herein, table wiping cloths were not being stored in a sanitizing solution.

24. Food Code Rule 6-301.12 requires that hand-drying provisions, either towels or heated air devices, be provided at hand-washing lavatories. The evidence establishes that as set forth herein, no hand-drying provisions were located in the restroom.

25. Florida Administrative Code Rule 61C-1.004(6) requires public food service establishments maintain all building structural components, attachments, and fixtures in good repair, clean, and free of obstructions. The evidence establishes that as set forth herein, the wall behind the food preparation line was damaged making cleaning the area difficult.

26. Food Code Rule 4-903.11 provides that utensils must be stored as follows:

    4-903.11 Equipment, Utensils, Linens, and Single-Service and Single-Use Articles.

    1. Except as specified in (D) of this section, cleaned equipment and utensils, laundered linens, and single-service and single-use articles shall be stored:

       1. In a clean, dry location;

       2. Where they are not exposed to splash, dust, or other contamination; and

       3. At least 15 cm (6 inches) above the floor.

    2. Clean equipment and utensils shall be stored as specified under ¶ (A) of this section and shall be stored:

       1. In a self-draining position that allows air drying; and

       2. Covered or inverted.

    3. Single-service and single-use articles shall be stored as specified under ¶ (A) of this section and shall be kept in the original protective package or stored by using other means that afford protection from contamination until used.

    4. Items that are kept in closed packages may be stored less than 15 cm (6 inches) above the floor on dollies, pallets, racks, and skids that are designed as specified under § 4-204.122.

       
       

27. The evidence establishes that as set forth herein, utensils were not stored in a clean and protected location.

28. Food Code Rule 6-501.16 requires that mops be placed after use in a position to allow air-drying without soiling walls, supplies, or equipment. The evidence establishes that as set forth herein, a wet mop was not properly stored after use.

29. Subsection 509.261(1), Florida Statutes (2005), provides that each violation is treated as a separate offense, and that each offense is punishable by a fine not to exceed

    $1,000 per offense. In addition, offenses may be disciplined by

    required attendance at an educational program sponsored by the Hospitality Education Program, or by suspension, revocation, or refusal of a license.

30. The Petitioner's Proposed Recommended Order seeks to impose a fine of $3,600 in this case, and to require the Respondent's attendance at an educational program sponsored by the Hospitality Education Program. Upon review of the violations identified herein, the penalty sought by the Petitioner is appropriate based on the range set forth in the statute.

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 imposing a fine of

$3,600 against the Respondent and requiring the Respondent to attend an educational program sponsored by the Hospitality Education Program.

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

S

WILLIAM F. QUATTLEBAUM

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 July, 2006.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Jesus Gonzalez Tainos Cafe

2311 West Hillsborough Avenue Tampa, Florida 33603

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Josefina Tamayo, 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: 06-000419

Orders for Case No: 06-000419