STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

PERPULYS SPORT BAR AND RESTAURANT,

Respondent.

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) Case No. 07-0199

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RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on February 20, 2007, by video teleconference with sites in Miami and in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business & Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: did not appear and was not represented STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against it, and, if so, the appropriate penalty to be imposed, if any.

PRELIMINARY STATEMENT

On September 6, 2006, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, issued an Administrative Complaint against Respondent, Perpulys Sport Bar and Restaurant, alleging that the Restaurant had violated certain statutes and rules regulating public food service establishments. Respondent executed an Election of Rights form, disputing the material facts and requesting an administrative hearing. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Michael Brown, and Petitioner's Exhibits numbered 1-3 were admitted in evidence. Additionally, Petitioner's request for official recognition was granted as to the following: Section 509.032(6), Florida Statutes; Florida Administrative Code Rules 61C-1.004(10) and 61C-4.010(1)(d); and Rules 3-301.11(B), 3-302.11(A)(1), and

4-204.112 of the 2001 Food Code.

The Transcript of the final hearing was filed on May 7, 2007, and Petitioner's Proposed Recommended Order was filed on May 14, 2007. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Perpulys Sport Bar and Restaurant, has been licensed as a public food service establishment by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent is located in Homestead, Florida.

2. Michael Brown, one of Petitioner's inspectors, has extensive experience and education in the food service industry. On July 19, 2006, he inspected Respondent's premises and found a number of violations of public food service establishment rules. He noted these on his inspection report and gave a copy of the report to Respondent. The report noted that the violations must be corrected by August 20, 2006.

3. On August 21, 2006, Brown returned to Respondent's premises to conduct his "callback" inspection. Four critical item violations remained uncorrected, and he noted them in his report. After he had completed his report, one of Respondent's employees placed a thermometer in the cold holding unit which had lacked one during Brown's inspection.

4. However, the exit signs were still not properly illuminated. Exit signs in a food service establishment are required to be clearly illuminated so that patrons will know where to exit the premises if a fire or other emergency should

   occur. Improperly illuminated exit signs are a critical item violation.

5. Respondent's employees were still touching ready-to-eat food with their bare hands even though the establishment did not have in place an alternative operating procedure approved by Petitioner. Since touching ready-to-eat food with bare hands can lead to serious illness of the business' patrons, this is also a critical item violation.

6. During that same call-back inspection, raw animal food was stored over ready-to-eat food, specifically, raw steak was stored over cooked shrimp. Since such storage can lead to cross-contamination, which can lead to serious illness of the business' patrons, this is also a critical item violation.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

8. Petitioner seeks to take disciplinary action in this proceeding. Petitioner, therefore, has the burden of proving the allegations in its Administrative Complaint by clear and convincing evidence. Dept. of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern & Co.,

   670 So. 2d 932 (Fla. 1996). Petitioner has met its burden.

9. Section 509.032, Florida Statutes, authorizes the Division of Hotels and Restaurants to adopt rules regarding public food service establishments. The Division has done so in Florida Administrative Code Chapter 61C and has incorporated the 2001 Food Code in those rules. The Administrative Complaint in this cause alleges that Respondent has violated two of the Division's rules and three rules in the 2001 Food Code.

10. Florida Administrative Code Rule 61C-1.004(10) requires that exits be clearly marked with approved illuminated exit signs. At the time of the July 19 and August 21, 2006, inspections, the exit signs for Respondent's back door were not properly illuminated, in violation of the requirements of that Rule. Petitioner has proven this allegation by clear and convincing evidence.

11. Florida Administrative Code Rule 61C-4.010(1)(d) prohibits bare-hand contact with exposed ready-to-eat food unless the public food service establishment has an approved alternative operating procedure in place. Subsequent subsections of that Rule reference Rule 3-301.11(b) of the 2001 Food Code, which contains a similar prohibition. During both inspections Respondent's employees were observed touching ready- to-eat food with their bare hands, and Respondent had no approved alternative operating procedure. Petitioner has proven by clear and convincing evidence that Respondent violated the

    Division's Rule and the Food Code Rule as alleged in the Administrative Complaint.

12. Rule 3-302.11(A)(1) of the 2001 Food Code requires that food be protected from cross-contamination. During both inspections Respondent had raw animal food stored over cooked ready-to-eat food. Petitioner has proven by clear and convincing evidence that Respondent violated this prohibition.

13. Rule 4-204.112 of the Food Code pertains to thermometers in cooling units. That allegation in the Administrative Complaint was voluntarily dismissed by Petitioner during the final hearing in this cause.

14. Section 509.261, Florida Statutes, provides that any public food service establishment found to be in violation of the Division's rules may be subject to fines not exceeding

    $1,000 per offense; mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and suspension or revocation of its license.

15. In its Proposed Recommended Order, Petitioner recommends that Respondent be fined the amount of $500 for each critical item violation and be required to attend an educational program. That recommendation is reasonable and appropriate. Since one of the four violations alleged in the Administrative Complaint was voluntarily dismissed during the final hearing,

the total fine imposed on Respondent should be the amount of

$1,500.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Respondent guilty of three critical item violations, imposing a fine of $1,500 to be paid within 30 days, and requiring Respondent to attend an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 17th day of May, 2007, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 17th day of May, 2007.

COPIES FURNISHED:

William Veach, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel 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

Soco Salgado

Perpulys Sports Bar & Restaurant

113 South Homestead Boulevard Homestead, Florida 33030

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: 07-000199

Orders for Case No: 07-000199