STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

CHEF LOU'S CATERING, INC.,

Respondent.

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) Case No. 07-1407

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on May 2, 2007, in Orlando, Florida, before Jeff B. Clark, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Luis E. Hernandez, pro se

Chef Lou's Catering, Inc. 1495 Seminole Boulevard

Casselberry, Florida 32707

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the Administrative Complaint dated December 14, 2006, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 14, 2006, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department), charged that on September 21, 2006, Respondent, Chef Lou’s Catering, Inc., 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 Subsection 509.213(1), Florida Statutes; Rules 3.4.8.4 and 5.3.1.2, National Fire Protection Association 58; Rule 6.3.4, National Fire Protection

Association 10; Rule 11.2.1, National Fire Protection Association 96; Florida Administrative Code Rule 61C-1.004(9) and (11); and Rules 4-301.11, 4-601.11(A), 5-204.11, 5-203.14,

5-205.15, and 6-202.15, United States Department of Agriculture Food Code (Food Code).

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 March 22, 2007, for assignment of an Administrative Law Judge. An Initial Order was sent to both parties on March 23, 2007. By Notice of Hearing, the case was scheduled for final hearing on May 2, 2007, in Orlando, Florida. The final hearing was conducted, as scheduled, on that date.

At the hearing, the Department presented the testimony of Dennis Watson, a sanitation and safety inspector employed by the Department, and the Department's Exhibits 1 through 3 were offered and received into evidence. Respondent did not offer any testimony or exhibits. Pursuant to the Department's request, official recognition was taken of Subsection 509.213(1), Florida Statutes; Rules 3.4.8.4 and 5.3.1.2, National Fire Protection Association 58; Rule 6.3.4, National Fire Protection Association 10; Rule 11.2.1, National Fire Protection Association 96; Florida Administrative Code Rule

61C-1.004(9) and (11); and Rules 4-301.11, 4-601.11(A),

5-204.11, 5-203.14, 5-205.15, and 6-202.15, Food Code.

The one-volume Transcript of the proceedings was filed with the Division of Administrative Hearings on July 26, 2007.

Petitioner filed a Proposed Recommended Order that has 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 caterer licensed and regulated by the Department, holding License No. 6903584.

3. On October 18, 2006, Dennis Watson inspected the premises of Respondent. Mr. Watson prepared a Food Service Inspection Report, which noted the following violations:

45-39-1: Portable fire extinguisher not properly mounted at least 4 inches off the floor and the top no higher than 5 feet off the floor, K class.

45-39-1: Portable fire extinguisher not properly mounted at least 4 inches off the floor and the top no higher than 5 feet off the floor, abc type.

45-40-1: Portable fire extinguisher with no approved inspection tag, K class.

45-36-1: Hood suppression system tag out- of-date, tagged 8-05. This violation must be corrected by: 11-20-06.

47-06-1: Observed extension cord in use for non-temporary period, powering chest freezer.

29-08-1: Plumbing system in disrepair, faucet at 3 bay sink in disrepair.

08A-26-1: Observed raw animal food stored over ready-to-eat food, eggs over condiments in walk in cooler. Repeat violation.

08A-26-1: Observed raw animal food stored over ready-to-eat food, chicken over cooked pork in walk in cooler.

08A-22-1: Observed improper vertical separation of raw animal foods and ready-to- eat foods, eggs over cream cheese in walk in cooler. Repeat violation.

45-41-1: portable fire extinguisher tag out-of-date, 3 abc types on top of storage cabinet tagged 6-03, 2-05, 2-05. This violation must be corrected by: 11-20-06.

37-01-1: Ceiling tile missing, over universal oven.

22-19-1: Observed interior of microwave soiled.

35B-03-1: Outer openings not protected with self-closing doors, back door.

35B-04-1: Outer openings of establishment cannot be properly sealed when not in operation, gap at bottom of back door

49-12-1: Observed container of flammable material over 5 gallons stored in establishment, propane tanks stored inside the facility.

22-22-1: Observed encrusted material on can opener.

30-02-1: Vacuum breaker mising[sic] at hose bibb, by oven and household stove/kitchen.

31-07-1: Hand sink missing at dishwashing machine or area, hand sink removed, cooking area by household refrigerator. This violation must be corrected by: 11-20-06.

04-01-1: Cold holding equipment incapable of maintaining potentially hazardous food at proper temperatures, walk in cooler ambient air temperature 44F.

51-13-1: No Heimlich maneuver sign posted.

1. 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.

2. A non-critical violation is one that relates to good retail practices, such as general cleanliness, organization, and maintenance of the facility.

3. On November 27, 2006, Mr. Watson re-inspected Respondent's premises. He prepared a Call Back Inspection Report which noted the following "critical violations":

   1. 48-11-1 Propane tanks were stored within the facility. This is a violation of Rules 3.4.8.4 and 5.3.1.2, National Fire Protection Association 58.

      
      

   2. 47-06-1 There was an extension cord powering a freezer chest. This is a violation of Florida Administrative Code Rule 61C-1.004(11).

      
      

   3. 45-40-1 The Class K fire extinguisher had no approved inspection tag. This is a violation of Florida Administrative Code Rule 61C-1.004(9)(b) and Rule 6.3.4, National Fire Protection Association 10.

      
      

   4. 45-36-1 The hood suppression system tag was out-of-date. This is a violation of Rule 11.2.1, National Fire Protection Association 96.

   5. 04-01-1 The ambient air temperature in the walk-in cooler was 49 degrees Fahrenheit. (The internal temperature of beef was 46 degrees Fahrenheit.) This is a violation of Rule 4-301.11, Food Code.

      
      

   6. 31-07-1 The hand sink at the dish washing area was missing. This is a violation of Rule 5-204.11, Food Code.

      
      

   7. 30-02-1 The vacuum breaker was missing at the hose bibb by the household type refrigerator in the

      cooking area. This is a violation of Rule 5-203.14, Food Code.

      
      

   8. 22-22-2 There was encrusted material on the can opener. This is a violation of Rule 4-601.11(A), Food Code.

      
      

   9. 35B-03-1 The back door was lacking a self-closing device. This is a violation of Rule 6-202.15, Food Code.

      
      

4. In addition to the foregoing critical violations, the call-back inspection found the following non-critical violations:

   1. 51-13-1 There was no Heimlich maneuver sign posted. This is a violation of Subsection 509.213(1), Florida Statutes.

      
      

   2. 29-08-1 The faucet at the three bay sink was in disrepair. This is a violation of Rule 6-202.15, Food Code.

      
      

5. These 11 violations listed in the Call Back Inspection Report are the basis for the Administrative Complaint.

6. Respondent cross-examined Mr. Watson on the violations that he found during the call-back inspection, but did not erode the compelling effect of Mr. Watson’s testimony.

   CONCLUSIONS OF LAW

   
   

7. 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.

8. 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).

9. "Clear and convincing evidence" is:

   
   

   [Evidence] 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).

   
   

10. Respondent was charged with nine critical violations and two non-critical violations enumerated in the Administrative Complaint and Paragraphs 7 and 8 herein. No evidence was presented that challenged the findings that nine critical and two non-critical violations were observed during the

    November 27, 2007, call-back inspection. Petitioner has met the burden of proving the allegations of the Administrative Complaint clearly and convincingly.

11. 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.

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, Chef Lou’s Catering, Inc., committed the violations as alleged in the Administrative Complaint and that an administrative fine of four thousand dollars ($4,000.00) be imposed. Further, 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 9th day of August, 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 9th day of August, 2007.

ENDNOTE

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

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Luis E. Hernandez

Chef Lou's Catering, Inc. 1495 Seminole Boulevard

Casselberry, Florida 32707

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: 07-001407

Orders for Case No: 07-001407