STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 06-2771

)

EMILY’S RESTAURANT NO. 2, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on October 10, 2006, by video teleconference at sites in Miami and Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Drew Winters, Esquire

Jason Kao, Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

On June 12, 2006, Petitioner issued an Administrative Complaint against Respondent’s restaurant located at 16 West Flagler Street, Miami, Florida. Following a routine inspection of Respondent’s restaurant on April 18, 2006, Petitioner cited the restaurant for multiple violations of Chapter 509, Florida Statutes, and the rules promulgated pursuant thereto.1 Respondent was ordered to correct the violations reflected on the initial inspection report and was given a deadline to do so. After the deadline for correction had passed, a follow-up inspection was conducted May 22, 2006. Based on the follow-up inspection Petitioner filed an Administrative Complaint against Respondent that alleged five violations of pertinent rules in five separately-numbered paragraphs. Each violation was for an uncorrected violation cited during the initial inspection.

Paragraph 1 alleged that Respondent violated Section 3.302.11(a)(1) of the Food Code by storing raw meat over ready- to-eat food.

Paragraph 2 alleged that Respondent violated Subsections 5-202.12(A) and (B) of the Food Code by not having hot water at an employee hand-washing sink.

Paragraph 3 alleged that Respondent violated Section

11.42.2 of the National Fire Protection Association by failing to clean an oven hood, which resulted in a greasy or oily sludge build-up.

Paragraph 4 alleged that Respondent violated Section 4-

204.112 of the Food Code by failing to have a conspicuously located thermometer in a food holding unit.

Paragraph 5 alleged that Respondent violated Section 4- 903.11(b) of the Food Code by failing to properly store clean glasses, cups, utensils, pots, and pans.

By a timely filed Election of Rights form, Respondent requested a formal administrative hearing to challenge the alleged violations, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of its inspector, Leonardo Hernandez, and offered three exhibits, each of which was admitted into evidence. Respondent made no appearance at the final hearing. At the request of Petitioner, the undersigned took official recognition of all pertinent statutes and rules.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on October 20, 2006. Petitioner filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order. Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330422. Respondent’s license authorizes Respondent to operate a public food service establishment known as Emily’s Restaurant No. 2 at 16 West Flagler Street, Miami, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location (the subject restaurant).2

2. At all times material hereto, Leonardo Hernandez was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist.

   Mr. Hernandez’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Violations are classified as either critical or non-critical. A critical violation is one that represents an imminent threat to the general public. A non- critical violation is a violation that does not rise to the level of a critical violation.

3. On April 18, 2006, Mr. Hernandez inspected the subject restaurant. Based on that inspection, Mr. Hernandez prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on April 18, 2006, Mr. Hernandez discussed his findings with the owner of the restaurant.

   Mr. Hernandez found that critical and non-critical violations existed and ordered the owner to correct the violations.

4. On May 22, 2006, Mr. Hernandez conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the violations he had ordered corrected had been corrected. Petitioner proved that the following violations existed at the subject restaurant at the time of the initial inspection on April 18 and at the time of the follow-up inspection on May 22, 2006.

   PARAGRAPH 1

   
   

5. Section 3-302.11(1)(a) of the Food Code requires that raw meat be stored so that it will not contaminate ready-to-eat food. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had stored raw meat above ready-to-eat food in violation of the cited Section of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because

   of the manner in which Respondent stored the raw meat could have resulted in the contamination of the ready-to-eat food.

   PARAGRAPH 2

   
   

6. Section 5-202.12(A) and (B) of the Food Code requires that a hand-washing sink utilized by employees have hot water of at least 38°C (100°F). On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had no hot water at the hand-washing sink utilized by Respondent’s employees. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because it pertains to basic sanitation.

   PARAGRAPH 3

   
   

7. Section 11.4.2 of the National Fire Protection Association requires restaurants to keep oven hoods clean so as to prevent the build-up of greasy or oily sludge. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to clean the oven hood and that greasy or oily sludge had built-up on the oven hood. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. Mr. Hernandez testified that this was a non-critical violation.

   PARAGRAPH 4

   
   

8. Section 4-204.112 of the Food Code requires that food storage units have a thermometer to measure ambient temperature and requires that the thermometer be located so that it is easily viewable. On both April 18, 2006, and May 22, 2006,

   Mr. Hernandez observed that Respondent did not have a thermometer in a refrigerated food storage unit. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection.

   This is a critical violation because of the possible danger to the public that might result from the storage of food at the wrong temperature.

   PARAGRAPH 5

   
   

9. Section 4-903.11(b) of the Food Code requires that clean equipment and utensils be stored so that they are either inverted or covered. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to store glasses, cups, utensils, pots, and pans in compliance with Section 4-903.11(b) of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection.

   This is a critical violation because it pertains to basic sanitation.

   CONCLUSIONS OF LAW

   
   

10. DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

11. 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.

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

    § 509.241, Fla. Stat.

    
    

13. Section 509.26(1), Florida Statutes, provides that any public food services establishment that has operated or is operating in violation of Chapter 509, Florida Statutes, or the rules promulgated thereunder, is subject to license revocation; license suspension; imposition of administrative fines not to exceed $1,000.00 per offense; and mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program (established pursuant to Section 509.302, Florida Statutes).

14. Petitioner bears the burden of proving that the licensee committed the violations alleged in the administrative complaint by clear and convincing evidence. 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 Section 120.57(1)(j), Florida Statutes.

15. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed the violations alleged in paragraphs 1, 2, 3, 4 and 5 of the Administrative Complaint. Accordingly, disciplinary action may be taken against Respondent pursuant to Section 509.261, Florida Statutes.

16. No disciplinary guidelines have been referenced by Petitioner. The recommended penalties that follow are within the range of penalties Petitioner is authorized to impose. Petitioner’s Proposed Recommended Order recommends an administrative fine in the total amount of $4,000, which the undersigned finds to be reasonable.

RECOMMENDATION

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

RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1 through 5 of the Administrative Complaint and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $1000.00 for the paragraph 2 violation; $500.00 for the paragraph 3 violation; $1,000.00 for the paragraph 4 violation; and $500.00 for the paragraph 5 violation. In addition, the final order should require Respondent’s owner to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program.

DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 8th day of November, 2006.

ENDNOTES

1/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (2006). All references to the Florida Administrative Code are to the version of the Florida Administrative Code as of the date(s) of the alleged violations. References to the Food Code are to the 1999 Food Code Recommendations of the United States Public Health Service.

References to the Fire Code are to the National Fire Protection Association Life Safety Code. Respondent is required to comply with the applicable sections of both codes pursuant to Florida Administrative Code Rule 61C-1.004(5). Petitioner’s Administrative Complaint sets forth verbatim the applicable portions of the statues and rules Respondent has allegedly violated. Those statutes and rules are incorporated herein by reference.

2/ 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.

COPIES FURNISHED:

Jessica Leigh, Esquire Drew Winters, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Jason Kao, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Maria Pimienta

Emily Restaurant No. 2

16 West Flagler Street Miami, Florida 33130

William Veach, Director 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: 06-002771

Orders for Case No: 06-002771