STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

LOS TUCANES,

Respondent.

)

)

)

)

)

)

)

) Case Nos. 06-1598

)

)

)

)

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the formal hearing in this proceeding on June 27, 2006, in Tampa, Florida, for the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Maria B. Vences, pro se

Los Tucanes

1235 East Hillsborough Avenue Tampa, Florida 33604

STATEMENT OF THE ISSUES

The issues presented are whether Respondent failed to maintain sewage drains and to prevent the presence of roaches in

violation of Food Code Rules 5-402.13 and 6-501.111, and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on March 21, 2006. Respondent timely requested a formal hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted four exhibits for admission into evidence. Respondent presented the testimony of two witnesses and submitted four exhibits for admission into evidence.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the Transcript of the hearing filed with DOAH on July 12, 2006. Petitioner timely filed its proposed recommended order (PRO) on July 13, 2006. Respondent

did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 3912699, and is located at 1235 Hillsborough Avenue, Tampa, Florida.

2. A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on March 15, 2006. Respondent committed two violations. One violation involved waste water sewage, and the other involved roaches.

3. Waste water sewage backed up into the mop sink in the floor drain in the dishwashing room. Waste water also backed up in the kitchen hand sink drain.

4. Eight roaches were present in a shelf, and 10 roaches were clustered in cracks in a pipe. Another roach crawled out from behind the kitchen stove.

5. The deficiencies were significant violations.

   
   

   Petitioner issued an emergency order closing the restaurant.

   
   

6. Respondent corrected the offenses in one day. There is no evidence the violations are continuing. Respondent submitted credible and persuasive evidence of diligent efforts to maintain the restaurant in proper condition.

   CONCLUSIONS OF LAW

   
   

7. DOAH has jurisdiction over the subject matter of this proceeding pursuant to Section 20.165 and Chapter 509, Florida Statutes (2005). DOAH has jurisdiction over the parties pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005). DOAH provided the parties with adequate notice of the administrative hearing.

8. Petitioner has the burden of proof in this proceeding.

   
   

   Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the proposed penalty is reasonable.

   Department of Banking and Finance, Division of Securities and

   Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

9. Petitioner satisfied its burden of proof concerning the alleged violations. Petitioner proved by clear and convincing evidence that Respondent committed the acts and violations alleged in the Administrative Complaint.

10. Petitioner did not satisfy its burden of proof concerning the proposed penalty. Subsection 509.261(1), Florida Statutes (2005), in relevant part, authorizes Petitioner to impose a range of penalties for the violations that Respondent committed. The authorized penalties include fines not to exceed

    $1,000 per offense.

    
    

11. The proposed penalty of an administrative fine in the amount of $2,000 is not reasonable under the circumstances. Respondent corrected the deficiencies in one day and has made a diligent effort to maintain the restaurant in proper condition. Petitioner submitted no evidence of any actual harm to the public or of any previous discipline against Respondent's

license.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged

in the Administrative Complaint and imposing a fine of $1,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order.

DONE AND ENTERED this 1st day of August, 2006, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 1st day of August, 2006.

COPIES FURNISHED:

Maria B. Vences Los Tucanes

1235 East Hillsborough Avenue Tampa, Florida 33604

Jessica Leigh, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

George 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: 06-001598

Orders for Case No: 06-001598