STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS )

)

Petitioner, )

)

vs. )

) BROTHERS AND SISTERS BARBEQUE, ) INC. )

)

Respondent. )

Case No. 06-5338

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on March 5, 2007, in Orlando, Florida, and by video teleconference in Tallahassee, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Pace Mawhinney II

Qualified Representative Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Beverly Mount, pro se

Brothers and Sisters Barbeque, Inc. 1201 Vineland Road

Winter Garden, Florida 34787 STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated September 26, 2006, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department), charged that on September 21, 2006, Respondent, Brothers and Sisters Barbeque, Inc., a licensed restaurant, was found to be in violation of Chapter 509, Florida Statutes (2006),1/ rules promulgated as authorized by Chapter 509, Florida Statutes, and regulations governing public food service establishments in Florida. In particular, Respondent was charged with a violation of Rule

6-501.111, United States Department of Agriculture Food Code (Food Code), which states, in pertinent part:

Controlling Pests: 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.

Respondent timely disputed the facts alleged in the Administrative Complaint and requested an administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings on December 29, 2006, for assignment of an Administrative Law Judge. An Initial Order was sent to both parties on January 2, 2007. By Notice of Hearing By Video Teleconference, the case was scheduled for final hearing on March 5, 2007, in Orlando, Florida. The final hearing was conducted as scheduled on that date.

At the hearing, the Department presented the testimony of Alex Chu, a sanitation and safety inspector employed by the Department, and the Department's Exhibits 1 through 3 were offered and received into evidence. Respondent presented the testimony of Frances Luckett and Jibri Person. Respondent offered one exhibit, which was received into evidence and marked Respondent's Exhibit 1. Pursuant to the Department's request, official recognition was taken of Subsection 509.032(6), Florida Statutes, and Rule 6-501.111, Food Code.

The one-volume Transcript of the proceedings was filed with the Division of Administrative Hearings on June 8, 2007. Both

parties filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida.

2. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184.

3. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted,

   35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found.

   OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION.

   
   

4. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant.

5. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent

   food-borne illness, contamination, or environmental hazard.

   
   

6. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation.

7. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings.

8. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure.

9. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.

   CONCLUSIONS OF LAW

   
   

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

11. In the Administrative Complaint, the Department seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, the Department must prove the allegations 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 Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. "Clear and convincing evidence" is:

    
    

    [E]vidence that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. Clear and convincing evidence requires that 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); Slomowitz v.

    
    

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

    
    

13. Respondent was charged with a violation of Rule 6-501.111, Food Code, which states, in pertinent part:

    Controlling Pests: 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.

       
       

14. Florida Administrative Code Rule 61C-1.004(3) states, as follows:

    Vermin control-–Effective control measures shall be taken to protect against the entrance into the establishment, and the breeding or presence on the premises of rodents, flies, roaches and other vermin. All buildings shall be effectively rodent- proofed, free of rodents and maintained in a rodent-proof and rodent-free condition. All windows used for ventilation must be screened, except when effective means of vermin control are used. Screening material shall not be less than 16 mesh to the inch or equivalent, tight-fitting and free of breaks. Insecticides or rodenticides, when used, shall be used in compliance with Chapter 5E-14, F.A.C., herein adopted by reference.

15. The Department has proved clearly and convincingly Respondent's violation of Rule 6-501.111, Food Code, to the extent that rodent droppings determine the presence of rodents.

16. Section 509.261, Florida Statutes, reads, as follows:

    
    

    (1) Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:

    
    

    1. Fines not to exceed $1,000 per offense;

       
       

    2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

       
       

    3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

    
    

17. It is noted that Respondent, through Massey Services, a licensed pest control operator, had taken remedial action immediately prior to the inspection to cure the rodent problem.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of

$250.00 be imposed for this violation; and that the owner(s) of

Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 22nd day of June, 2007.

ENDNOTE

1/ All citations are to the 2006 Florida Statutes, unless otherwise indicated.

COPIES FURNISHED:

J. Pace Mawhinney II Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Beverly Mount

1201 Vineland Road, Suite 4-A Winter Garden, Florida 34787

William Veach, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation 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: 06-005338

Orders for Case No: 06-005338