STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

ARCH RESTAURANTS, INC., d/b/a MCDONALDS NO. 6303,

Respondent.

)

)

)

)

)

)

)

) Case No. 07-0639

)

)

)

)

)

)

RECOMMENDED ORDER

A final hearing was conducted in this case before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings (DOAH) on May 15, 2007, by video- teleconference from sites in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business & Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Darlene Tregunno

Arch Restaurants, Inc., d/b/a McDonalds No. 6303

12511 Vittoria Way

Fort Myers, Florida 33912

STATEMENT OF THE ISSUES

Whether Respondent committed the following acts alleged in the Administrative Complaint, dated August 22, 2006, and, if so, what penalty should be imposed:

1. A violation of Food Code, Rule 2-301.14, on April 11, 2006, and July 19, 2006, by employees failing to properly clean their hands before engaging in food preparation.

2. A violation of the Florida Administrative Code Rule 61C-1.004(6), on April 11 and July 19, 2006, by failing to repair a water leak in the restaurant's storeroom.

3. A violation of the Food Code, Rule 6-202.11, on April 11 and July 19, 2006, by failing to provide protective shielding around light bulbs in the restaurant's storeroom and in one food preparation area.

PRELIMINARY STATEMENT

In the Administrative Complaint, dated August 22, 2006, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner) charged Arch Restaurants, Inc., d/b/a McDonald's No. 6303 (Respondent) with several violations of the Food Code and the Florida Administrative Code. Respondent denied the allegations and filed a request for a formal hearing. This matter was then referred to the DOAH for assignment of an Administrative Law Judge. Following a

continuance granted at the request of Respondent, the hearing was held by video-conference on May 15, 2007.

At the hearing, the Administrative Law Judge and attorney for Petitioner, Charles Tunnicliff, were in a specially-equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in

Fort Myers, Florida. The two hearing rooms were connected by video-teleconference. Petitioner presented the testimony of one witness, Claudia Fields (Fields), Deputy District Manager of the Fort Myers District of the Department of Business and Professional Regulation, Division of Hotels and Restaurants.

Petitioner's Exhibits 1 through 3 were offered and admitted into evidence. At the request of Petitioner, official recognition was taken of Subsection 509.032(6), Florida Statutes (2006)1; Florida Administrative Code Rule 61C-1.004(6); and Rules

2-301.14 and 6-202.11, Food Code. Respondent presented the testimony of Darlene Tregunno, the owner/operator of Arch Restaurants, Inc., d/b/a McDonalds No. 6303. Respondent's Exhibits 1 through 3 were offered and admitted into evidence.

Petitioner requested a transcript of the final hearing, and the parties were given fifteen days from the filing of the transcript in which to file proposed recommended orders. The Transcript was filed on May 22, 2007. Petitioner timely filed its Proposed Recommended Order on June 6, 2007. Respondent has

not submitted its proposal as of the date of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes.

2. Respondent is a public food service establishment that operates in the State of Florida, under Petitioner's license number 4602269, at 1245 West Homestead Road, Lehigh Acres, Florida 33936-6003.

3. Darlene Tregunno is the owner/operator of McDonald's No. 6303. She owns the restaurant through her corporation, Arch Restaurants, Inc.

4. Fields is employed by Petitioner as the Deputy District Manager of the Fort Myers District. She has been working in this position for approximately three years and has been working for the Petitioner for more than 16 years. On April 11, 2006, at 8:30 a.m., Fields visited McDonald's No. 6303, operating at 1245 West Homestead Road, Lehigh Acres, Florida 33936, for the purpose of performing a routine food service inspection.

5. Fields noted numerous violations on an Inspection Report prepared that day. It included the observation that one employee was observed coughing into his or her hand and then

   putting a glove on without washing first. Fields provided the on-duty manager with a copy of the report and notified Respondent that a call-back inspection would be conducted.

6. On July 19, 2007, at 9:16 a.m., Fields conducted a call-back inspection at McDonald's No. 6303.

7. At the time of the call-back inspection, Fields observed an employee changing gloves without washing his or her hands.

8. This, along with the prior incident where an employee coughed into his or her hand and put on gloves without washing first, is considered a critical violation of the Food Code by Petitioner. Critical violations are violations that cause an imminent threat to a customer or an employee of a food service establishment.

9. At the time of the call-back inspection, six ceiling tiles were missing and in disrepair in the storeroom, and water was dripping from the ceiling onto the floor.

10. In addition, at the time of the call-back inspection, light shields were missing in the store and in one food preparation area.

11. Respondent was cited for violations to the Food Code under Rules 2-301.14 and 6-202.11, and for a violation of Florida Administrative Code Rule 61C-1.004(6).

12. Respondent does not deny any of the allegations.

13. However, Respondent trains new employees in food safety. Respondent promotes a policy whereby all employees are told to wash their hands hourly and after performing activities that could otherwise lead to food contamination.

14. Respondent attempted to hire a contractor to repair the leak in the storeroom and to replace the missing and damage ceiling tiles. However, due to storm damage in the area, a contractor was not hired until September, 2006. Respondent tried to hire a contractor sooner, but could not find anyone who would make the repairs in a timely manner. Also, Respondent was unable to make the repairs herself.

15. The repair work was completed in September of 2006, and is currently in good repair.

16. The missing light shields were replaced after the time of the call-back inspection.

    CONCLUSIONS OF LAW

    
    

17. 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.

18. Petitioner is the state agency charged with licensing and inspection of public food service establishments in the State of Florida, pursuant to Chapter 509, Florida Statutes.

19. In its Administrative Complaint, Petitioner identified possible penalties for the violations alleged, which included suspension or revocation of the license of Respondent and the imposition of an administrative fine. Consequently, Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Department of

    Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 933-34 (Fla. 1996).

20. The disciplinary action sought can only be based on the offenses specifically alleged in the Administrative Complaint. See Kinney v Department of State, 501 So. 2d 129,

    133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2nd DCA 1984).

21. Subsection 509.032(1), Florida Statutes, provides that Petitioner has the responsibility and jurisdiction to carry out all inspections required of public food service establishments; and, also, has been directed to adopt such rules as are necessary to carry out the provisions of Chapter 509, Florida Statutes.

22. Pursuant to Florida Administrative Code Rule 61C- 4.010, Sanitation and Safety Requirements for public food

    service establishments are subject to Chapter 3, Food Code, which is adopted by reference. Florida Administrative Code Rule 61C-1.001(14) defines the Food Code as the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines and Annex 5: HACCP Guidelines

    of the Food Code, the 2001 Food Code Errata Sheet (August 23, 2002), and Supplement to the 2001 FDA Food Code (August 29, 2003).

23. Rule 2-301.14, Food Code, provides in pertinent part:

    
    

    Food Employees shall clean their hands and exposed portions of their arms as specified under section 2-301.12 immediately before engaging in food preparation including working with exposed food, clean equipment and utensils, and unwrapped single-service and single-use articles and:

    
    

    1. After touching bare human body parts other than clean hands and clean, exposed portions of arms;

       
       

       * * *

       
       

       (D) Except as specified in section

       2-401.11(B), after coughing, sneezing, using a handkerchief or disposable tissue, using tobacco, eating, or drinking;

       
       

       * * *

       
       

       1. Before donning gloves for working with food; and

          
          

       2. After engaging in other activities that contaminate the hands.

24. Petitioner has proved by clear and convincing evidence that Respondent violated Rule 2-301.14, Food Code, in that Fields observed, on April 11, 2006, an employee cough into his or her hand and then put on a glove without washing his or her hand; and, at the call-back inspection, on July 19, 2006, the inspector observed one of the Respondent's employees change gloves without first washing his or her hands. This evidence was not denied or contradicted.

25. Rule 6-202.11, Food Code, states in pertinent part: ". . . light bulbs shall be shielded, coated, or otherwise shatter-resistant in areas where there is exposed food; clean equipment, utensils and linens; or unwrapped single-service and single-use articles . . .".

26. Petitioner proved by clear and convincing evidence that Respondent violated Rule 6-202.11, Food Code, in that Fields observed, at the call-back inspection, that light shields were still missing in the storeroom and in one food preparation area. This evidence was not denied or contradicted.

27. Florida Administrative Code Rule 61C-1.004(6) provides in pertinent part: "All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions."

28. Petitioner proved by clear and convincing evidence that Respondent violated Florida Administrative Code Rule

    61C-1.004(6), in that Fields observed, at the call-back inspection, that the ceiling tiles were still in disrepair and the roof was leaking water. This evidence was not denied or contradicted.

29. Subsection 509.261(1), Florida Statutes, provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of Chapter 509, Florida Statutes, is subject to fines not to exceed

    $1,000 per offense; mandatory attendance at an education program sponsored by the Hospitality Education Program; and the suspension, revocation, or refusal of a license.

30. Respondent demonstrated some mitigation for each of the violations. Therefore, the maximum penalty should not be imposed.

RECOMMENDATION

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

RECOMMENDED that:

The Department of Business and Professional Regulations, Division of Hotels and Restaurants enter a final order, as follows:

1. Respondent be found guilty of violating, one count each, Rules 2-301.14 and 6-202.11, Food Code, and Florida Administrative Code Rule 61C-1.004(6);

2. Respondent be assessed an administrative fine in the amount of $300 for each of the violations, for a total of $900;

   and

   
   

3. Respondent be directed to attend an education program

sponsored by the Hospitality Education Program.

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

S

DANIEL M. KILBRIDE

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.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2006), unless otherwise indicated.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Darlene Tregunno

Arch Restaurants, Inc., d/b/a McDonalds No. 6303

12511 Vittoria Way

Fort Myers, Florida 33912

William Veach, Director Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 14

Tallahassee, Florida 32399-2202

Michael Martinez, Acting General Counsel Department of Business &

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: 07-000639

Orders for Case No: 07-000639