STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. MAHUFFERS,

Respondent.

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) Case No. 07-0636

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RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by Administrative Law Judge T. Kent Wetherell, II, on April 17, 2007, in Largo, Florida.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: David L. Levy, Esquire

10225 Ulmerton Road, No. 8A Largo, Florida 33770

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the violations alleged in the Administrative Complaint, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), alleged in an Administrative Complaint dated August 22, 2006, that Respondent violated various standards governing public food service establishments. Respondent disputed the allegations and requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, through an Election of Rights form received by the Division on September 22, 2006.

The Division referred the matter to the Division of Administrative Hearings (DOAH) on February 7, 2007, for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent. The record does not explain why it took more than four months for the Division to refer this case to DOAH.

The final hearing was initially scheduled for April 10, 2007, but it was rescheduled for April 17, 2007, on the Division’s unopposed motion. At the hearing, the Division presented the testimony of Eric Charpentier, and Respondent presented the testimony of John Susor. The Division’s Exhibits A, B, and C were received into evidence. Official recognition was taken of Section 509.032(6), Florida Statutes (2005)1; Florida Administrative Code Rule 61C-1.004(9)(d); and Food Code

Sections 4-501.12, 4-501.11, 4-101.111, 4-601.11(A), 4- 903.11(A), 6-501.115(A) and (B), 6-101.11, and 6-501.12(A).

The Transcript of the final hearing was filed on May 3, 2007. The parties were initially given 10 days from that date to file proposed recommended orders (PROs), but the deadline was subsequently extended to May 29, 2007, and then to June 6, 2007, upon Respondent’s motions. The Division filed a PRO on May 9, 2007. Respondent filed a PRO on June 5, 2007. The PROs have been given due consideration.

FINDINGS OF FACT

1. Respondent is licensed by the Division as a permanent food service establishment. Its license number is 6212901.

2. Respondent is “beach bar” located in Indian Shores. It has a C-4 alcoholic beverage license and sells “whiskey.”

3. Respondent did not sell food to the general public at any time material to this case. Respondent’s owner, John Susor, testified that he would like to sell hot and cold sandwiches at the establishment at some point in the future.

4. The Division conducted a routine inspection of Respondent’s establishment on May 18, 2006. The inspection was performed by Marcie Ellerman, a sanitation and safety specialist employed by the Division at the time.

5. Ms. Ellerman documented a number of violations at Respondent’s establishment in the Food Service Inspection Report that she prepared during her inspection.

6. The violations included “grooved and pitted cutting boards throughout the kitchen”; broken and moldy reach-in cooler and dirty soda guns; kitchen shelves not smooth and easily cleanable; dirty microwave, stove, slicer, cabinets, drawers, kitchen shelves, and soda gun holsters; clean dishes stored on dirty shelves; “cats walking on bar inside building [and] dining area”; floors not smooth and easily cleanable, floors dirty throughout kitchen and dining area; and carbon dioxide containers not secured in soda room.

7. The violations involving the dirty food contact surfaces and the cats are considered “critical” violations because they pose an immediate threat to the public health through cross-contamination. The other violations are considered “non-critical” violations because they pose a risk to the public health, but not an immediate threat.

8. Ms. Ellerman gave Respondent 30 days, until June 18, 2006, to correct the cited violations.

9. Ms. Ellerman performed a “callback” inspection of Respondent’s establishment on July 7, 2006.

10. According to the report prepared by Ms. Ellerman during the callback inspection, the only cited violations that

    had been corrected since the initial inspection were the dirty microwave and stove. The other violations, including the cats, had not been corrected.

11. The uncorrected violations documented by Ms. Ellerman at the time of the callback inspection are listed in the Administrative Complaint as follows:

    1. 14-37-1 . . . OBSERVED GROOVED AND PITTED CUTTING BOARDS

       
       

    2. 14-33-1 . . . OBSERVED EQUIPMENT IN POOR REPAIR, REACH IN COOLER HAS BROKEN DOORS, GLASS

       
       

    3. 15-30-1 . . . OBSERVED SHELVES THROUGHOUT THE KITCHEN NOT SMOOTH, EASILY CLEANABLE

       
       

       4. 22-23-1 . . .

       
       

       1. SODA GUN HOLSTERS SOILED THROUGHOUT

       2. SLICER SOILED

       3. CABINETS AND DRAWERS SOILED WITH OLD FOOD DEBRIS

       4. REACH IN COOLERS SOLIED WITH BLACK MOLD-LIKE DEBRIS

       5. KITCHEN SHELVES DIRTY THROUGHOUT THE KITCHEN

       
       

       1. 24-06-1 . . . OBSERVED CLEAN DISHES STORED ON SOILED SHELVES

          
          

       2. 35A-01-1 . . . OBSERVED CATS ON BAR, TABLES INSIDE THE ESTABLISHMENT

          
          

       3. 36-11-1 . . . FLOORS NOT SMOOTH AND EASILY CLEANABLE

          
          

       4. 36-15-1 . . . OBSERVED FLOORS THROUGHOUT THE KITCHEN, BAR AND DINING AREAS SOILED WITH DEBRIS

       5. 51-11-1 . . . CARBON DIOXIDE CYLINDERS STORED UNSECURED IN SODA ROOM

       
       

12. Ms. Ellerman is no longer employed by the Division.

    
    

    She did not testify at the final hearing, and there is no evidence in the record regarding her qualifications or experience. Her inspection reports were received into evidence under the hearsay exception in Section 90.803(6), Florida Statutes (2006).

13. Eric Charpentier, the witness who testified on behalf of the Division at the final hearing, has extensive experience in the restaurant industry and has conducted hundreds of restaurant inspections. He was Ms. Ellerman’s supervisor when she worked as an inspector for the Division.

14. Mr. Charpentier has no personal knowledge of the conditions at Respondent’s establishment at the time of Ms. Ellerman’s inspections. For example, he testified that he did not know whether the cutting boards in Respondent’s kitchen could be sanitized despite the groves and pits observed by Ms. Ellerman.

15. Mr. Susor admitted that the violations cited by Ms.

    
    

    Ellerman existed at the time of the inspections. He candidly testified that the violations were “true” and that he had “never seen a kitchen that damned dirty” in his 70 years in the restaurant business.2

16. Mr. Susor testified that he has had cats “in and out of [the restaurant] for over 40 years.” He also testified that there is a possum that comes in “[e]very once in a while,” sleeps in the fish nets hanging in the restaurant, and eats the food that is left out for the cats.

17. Mr. Charpentier has been to Respondent’s establishment since the time of Ms. Ellerman’s inspections. He testified that some of the violations cited by Ms. Ellerman have now been corrected, but that other violations (such as the cats) still exist.

18. Mr. Susor recently purchased new reach-in coolers and cutting boards. He also retiled, repainted, and thoroughly cleaned the kitchen.

19. Mr. Charpentier testified that Respondent did not need a public food service establishment license from the Division if it was not selling food to the public. However, because Respondent has such a license, it is subject to the Division’s jurisdiction and is required to comply with the standards governing public food service establishments.

20. Mr. Susor has taken steps since Ms. Ellerman’s callback inspection to bring Respondent into compliance with the Division’s rules. He is looking for guidance from the Division as to what else he needs to do before he starts selling food to the general public.

    CONCLUSIONS OF LAW

    
    

21. DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006). See also Fla. Admin. Code R. 61C-1.0021(4).

22. The Division is the state agency responsible for licensing and inspecting public food service establishments. See §§ 509.032, 509.241, Fla. Stat. (2006).

23. The Division rules governing public food service establishments are contained in Florida Administrative Code Rule Chapters 61C-1 and 61C-4. The rules incorporate by reference portions of the Food Code adopted by the U.S. Food and Drug Administration, including those sections officially recognized at the final hearing. See, e.g., Fla. Admin. Code R. 61C- 4.010(5) and (6) (incorporating by reference the standards in Chapters 4 and 6 of the Food Code).

24. The Division has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. See Dept. of Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932 (Fla. 1996).

25. The Division did not meet its burden to prove Violation No. 14-37-1 related to the cutting boards. Food Code Section 4-501.12 only requires cutting boards to be resurfaced or discarded “if they can no longer be effectively cleaned and

    sanitized,” and Mr. Charpentier testified that he did not know whether or not the pitted and grooved cutting boards observed by Ms. Ellerman could be effectively cleaned and sanitized.

26. The Division met its burden to prove all of the other violations alleged in the Administrative Complaint. The evidence of the violations was clear and convincing. Mr. Susor’s testimony about the dirtiness of the kitchen, presence of cats, etc., corroborated the observations documented in Ms. Ellerman’s inspection reports, and as detailed below, those conditions constitute violations of the Food Code.

27. The broken doors on the reach-in cooler, Violation No.

    
    

    14-33-1, is a violation of Food Code Section 4-501.11, which requires equipment to be maintained in a state of good repair.

28. The kitchen shelves without smooth, easily cleanable surfaces, Violation No. 15-30-1, is a violation of Food Code Section 4-101.111, which provides that surfaces “that are exposed to splash, spillage, or other food soiling . . . shall be construed of a corrosion-resistant, nonabsorbent, and smooth material.”

29. The dirty shelves, cabinets, and equipment, Violation No. 22-23-1, is a violation of Food Code Section 4-601.11(A), which requires surfaces to be “clean to sight and touch.”

30. The clean dishes on dirty shelves, Violation No. 24- 06-1, is a violation of Food Code Section 4-903.11(A), which

    requires clean equipment and utensils to be stored in a clean, dry location where they are not exposed to contamination.

31. The presence of cats in Respondent’s establishment, Violation No. 35A-01-1, is a violation of Food Code Section 6- 501.115(A), which provides that “live animals may not be allowed on the premises of a food establishment.” None of the exceptions to that general prohibition (e.g., fish in aquariums, service animals for the disabled) are applicable in this case. See Food Code § 6-501.115(B)-(C).

32. The floors without smooth, easily cleanable surfaces, Violation No. 36-11-1, is a violation of Food Code Section 6- 101.11(A), which requires interior floors, walls, and ceilings to be “smooth, durable, and easily cleanable for areas where food establishment operations are conducted.”

33. The dirty floors throughout Respondent’s establishment, Violation No. 36-15-1, is a violation of Food Code Section 6-501.12(A), which provides that the establishment “shall be cleaned as often as necessary to keep [it] clean.”

34. The failure to secure the carbon dioxide containers in the soda room, Violation No. 51-11-1, is a violation of Florida Administrative Code Rule 61C-1.004(9)(d), which requires carbon dioxide tanks to be “adequately secured so as to preclude any danger to safety.”

35. Section 509.261(1), Florida Statutes, provides:

    
    

    1. Any . . . public food service establishment that has operated or is operating in violation of this chapter or the rules of the division . . . 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.

    
    

36. The Division is authorized to consider “each day or portion of a day on which an establishment is operated in violation of a ‘critical law or rule’” as a separate offense for purposes of calculating the appropriate fine. § 509.261(2), Fla. Stat. See also Fla. Admin. Code R. 61C-1.0021(2).

37. The Division proposed a fine of $5,000, and a requirement that Mr. Susor attend an educational program sponsored by the Hospitality Education Program. See Division’s PRO, at 13. Respondent requested that any fine be “suspended or in the alternative assessed . . . in the minimum amount possible under the law.” See Respondent’s PRO, at 3.

38. The fine proposed by the Division is within the range established by Section 509.261, Florida Statutes, but it is not proportionate to the fines imposed by the Division in other

    recent cases. See Dept. of Business & Professional Reg. v. Harrison’s Grill & Bar, Case No. 05-2757; Final Order No. BPR- 2005-06705 (DOAH Oct. 28, 2005; DBPR Dec. 1, 2005) (concluding

    based upon a survey of recent cases that fines imposed by the Division “typically range from $250 to $500 for each critical violation and less for each non-critical violation.”).

39. A more appropriate fine under the circumstances is

    
    

    $1,000. A fine in that amount is sufficient to impress upon Mr. Susor the significance of the cited violations, while also taking into account the mitigating circumstances present in this case.

40. The mitigating circumstances include the fact that Respondent was not serving food to the public at the time of the violations, Mr. Susor’s subsequent efforts to bring Respondent into compliance with the applicable rules, and Mr. Susor's candor at the final hearing.

41. The mitigating circumstances justify a reduction of the fine, not a waiver of the final altogether as urged by Respondent. A fine in some amount is necessary to impress upon Mr. Susor the significance of the violations, and also to help cover the costs incurred by the Division in proceeding through a formal hearing as requested by Respondent in the Election of Rights Form even though Respondent ultimately admitted the allegations in the Administrative Complaint and only wanted to

    argue mitigation. See Transcript, at 52-54; Respondent’s PRO. And cf. Fla. Admin. Code R. 61C-1.0021(4) (distinguishing between formal and informal hearings).

42. A requirement that Mr. Susor attend an educational program sponsored by the Hospitality Education Program is also appropriate under the circumstances. Indeed, the program may provide Mr. Susor with the guidance that he has been seeking in his efforts to bring Respondent into compliance with the Division’s rules before selling food to the public.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Division issue a final order that:

1. finds Respondent guilty of the violations alleged in the Administrative Complaint, except for Violation No. 14-37-1 related to the cutting boards;

2. imposes an administrative fine of $1,000; and

   
   

3. requires Mr. Susor to attend an educational program sponsored by the Hospitality Education Program.

DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II 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 15th day of June, 2007.

ENDNOTES

1/ Unless otherwise indicated, all statutory references in this Recommended Order are to the 2005 version of the Florida Statutes in effect at the time of the events giving rise to the Administrative Complaint.

2/ Transcript, at 40, 43. See also Transcript, at 45 (“[I]t was that God-damned dirty . . . . [I]t was that dirty, and I agreed with them.”) and 50 (“I’d have a hell of a time arguing [the violations] because I’ve already signed agreeing that what [the inspector] said is right. . . . . I have agreed. I have admitted to this, that that’s wrong.”); Respondent's PRO, at ¶ 1 ("Respondent does not take issue with the . . . proposed findings of fact submitted by Petitioner ").

COPIES FURNISHED:

William Veach, Director Department of Business and

Professional Regulation Division of Hotel and

Restaurants Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

David L. Levy, Esquire 10225 Ulmerton Road, No. 8A Largo, Florida 33770

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 07-000636

Orders for Case No: 07-000636