STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

CASPIAN CAFE,

Respondent.

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) Case No. 07-0494

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RECOMMENDED ORDER

A formal hearing was conducted in this case on March 12, 2007, in Panama City, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Mohammad Kouchek-Hoseini, pro se

Caspian Café

301 Lyonia Lane

Panama City Beach, Florida 32408

STATEMENT OF THE ISSUES

The issues are whether Respondent violated certain provisions of Section 509.032, Florida Statutes (2006), and the rules promulgated thereto, and if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On or about July 12, 2006, Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner) issued an Administrative Complaint against Respondent Caspian Café (Respondent). The complaint alleged that Respondent had violated the following: (a) Rules 4-202.16, 4-302.14, 5-203.13, 6-202.11, and 6-306.10,

Recommendations of the United States Public Health Service, Food and Drug Administration (Food Code), as incorporated by Florida Administrative Code Rule 61C-1.001(14); (b) Section 25, 4.3.1., National Fire Protection Association Life Safety Code (NFPA), as incorporated by Florida Administrative Code Rule 61C—1.004(5);

(c) Florida Administrative Code Rules 61C-1.004(9)D) and 61C- 4.023(1); and (d) Sections 509.039 and 509.0499, Florida Statutes (2006).

On or about December 12, 2006, Respondent requested a hearing to contest the complaint’s allegations. On January 29,

2007, Petitioner referred the case to the Division of Administrative Hearings.

A Notice of Hearing dated February 9, 2007, scheduled the hearing for March 12, 2007.

During the hearing, Petitioner presented the testimony of one witness. Petitioner offered three exhibits that were accepted as evidence.

Respondent presented the testimony of one witness. Respondent offered three exhibits that were accepted as evidence.

The Transcript was filed on April 20, 2007. On April 30, 2007, Petitioner filed a Proposed Recommended Order. As of the date of issuance of this Recommended Order, Respondent had not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the operation of public food service establishments.

2. At all times material hereto, Respondent held License No. 1305164 to operate a public food service establishment.

3. Critical violations of the statutes and rules that regulate public food service establishments will directly contribute to food contamination, illness or environmental degradation if not corrected. Non-critical violations do not have a direct impact on life or food safety.

4. During a routine inspection on February 23, 2006, and a follow-up inspection on June 5, 2006, Petitioner’s inspector observed the following critical violations in Respondent’s café:

   (a) there was no certified food manager on the premises; (b) there was no proof of employee training; and (c) there was no hood system inspection report.

5. The February 23, 2006, and June 5, 2006, inspections revealed the following non-critical violations: (a) there was no proper chemical test kit; (b) the area above the dishwashing unit was not smooth; (c) there was no installed mop sink; (d) the lights over the food preparation cooler were missing the proper shield sleeve; and (e) carbon dioxide tanks were not adequately secured.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

7. Petitioner has the burden of proving 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 Company, 670 So. 2d 932 (Fla. 1996). Petitioner has met this burden.

8. Pursuant to Section 509.032(6), Florida Statutes (2006), Petitioner has the authority to rules as necessary to carry out the provisions of Chapter 509, Florida Statutes (2006).

9. Rule 4-202.16, Food Code, requires nonfood-contact surfaces to be free of unnecessary ledges, projections, and crevices, and designed and constructed to allow easy cleaning and to facilitate maintenance. The pictures presented by Respondent’s owner clearly show a violation of this provision. Covering the top of the dishwasher with a plastic cover does not meet the requirements of the rule.

10. Rule 4-302.14, Food Code, requires a food establishment to have a test kit or other device to accurately measure the concentration of sanitizing solutions used for wash cloths. Respondent’s owner testified that the test kit was in a bathroom cabinet during the call-back inspection. However, the greater weight of the evidence indicates that Petitioner had not corrected this critical violation prior to the call-back inspection. Additionally, the use of paper towels for some cleaning purposes and sponges for other purposes, did not relieve Respondent’s owner from having a test kit to measure the concentration of bleach in the solution used to soak the wash cloth observed by Petitioner’s inspector.

11. Rules 5-203.13 and 6-306.10, Food Code, require an eating establishment to have at least one curbed cleaning facility/mop sink equipped with a floor drain. Respondent does not dispute that the café violates this provision. Instead, Respondent’s owner argues that the café is located in a historical building and that it is impossible to install a mop sink in the café. Respondent’s assertion that one of Petitioner’s prior inspectors made an exception for the missing mop sink is not persuasive.

12. Rule 6-202.11, Food Code, requires light bulbs to be shielded or otherwise shatter-resistant in areas where there is food, clean equipment, utensils, linens, or unwrapped single- service and single-use articles. Respondent’s owner admitted that the light over the drink machine cooler was not shielded during the routine or call-back inspection. Respondent’s owner solved the problem by taking the light in question out of the machine after the call-back inspection.

13. Section 25, 4.3.1., NFPA, requires an eating establishment to make hood system inspection reports available upon request. Respondent’s owner admitted that he did not have the record of the most recent report during either the routine or call-back inspection. Respondent’s owner ordered a copy of the hood system inspection report after the call-back inspection. Respondent is guilty of this critical violation.

14. Florida Administrative Code Rule 61C-1.004(9)(D), requires eating establishments to secure carbon dioxide and helium tanks in order to prevent a dangerous explosion. The evidence is undisputed that Respondent violated this provision.

15. Section 509.309, Florida Statutes (2006), requires all managers employed by a food service establishment to pass a test and receive a certificate attesting thereto. In this case, Respondent’s owner claimed he had lost his certificate. The most persuasive evidence is that Respondent’s owner was not properly certified at the time of either inspection. Respondent’s owner admitted that he took the test for the second time after the call-back inspection. Failure to comply with the requirements of this provision is a critical violation.

16. Section 509.049, Florida Statutes (2006), requires proof that food service employees have participated in a food safety training program and received a certificate attesting to completion of that training. Petitioner presented competent evidence that Respondent was guilty of this critical violation. Respondent’s owner presented no persuasive evidence to the contrary.

17. Section 509.261(1), Florida Statutes (2006), provides that any public food service establishment that operates in violation of Chapter 509, Florida Statutes (2006), or the rules promulgated by Petitioner, is subject to fines not to exceed

$1,000 per offense, mandatory attendance at an educational program, and the suspension, revocation or refusal of a license. In this case, the evidence is clear and convincing that Respondent should be fined $3,200, and required to attend an approved educational program.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order imposing an administrative fine in the amount of $3,200, and requiring Respondent’s owner to attend an approved educational program.

DONE AND ENTERED this 29th day of May, 2007, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 29th day of May, 2007.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Mohammad Kouchek-Hoseini Caspian Café

301 Lyonia Lane

Panama City Beach, Florida 32408

William Veach, Director

Division of Hotel 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: 07-000494

Orders for Case No: 07-000494