STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 07-1697

)

ADELITA'S CAFE,1 )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on May 30, 2007, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Jose Blanco, Certified Legal Extern Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 11, 2006, Petitioner issued an Administrative Complaint alleging that, on October 4, 2006, and November 28, 2006, Respondent was in violation of Section 509.241(2), Florida Statutes; Florida Administrative Code Rules 61C-1.004(2)(a) and (10); and Sections 3-305.11, 3-602.12(A), 3-603.11, 4-204.13,

and 6-301.14 of the Food Code. On or about December 21, 2006, Respondent requested "an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes,"2 on the allegations made against it in the Administrative Complaint. On April 13, 2007, the matter was referred to DOAH for the assignment of a DOAH administrative law judge to conduct the hearing Respondent had requested.

The hearing was scheduled for May 30, 2007. Petitioner and Respondent were provided with written notice of the scheduled hearing in accordance with Section 120.569(2)(b), Florida Statutes. Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on April 26, 2007, to Petitioner's counsel of record, Charles F. Tunnicliff, Esquire, and to Respondent.

Petitioner appeared at the hearing, which was held as scheduled on May 30, 2007, through Mr. Tunnicliff and Jose Blanco, a Certified Legal Extern under Mr. Tunnicliff's supervision. Respondent, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative.

Petitioner presented the testimony of one witness, Sajjad Karim. In addition, it offered three exhibits (Petitioner's Exhibits 1 through 3), which were all received into evidence.

At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on June 6, 2007.

Respondent filed its Proposed Recommended Order on June 15, 2007. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. At all times material to the instant case, Respondent operated Adelita's Cafe (Restaurant), an eating establishment located in Fort Lauderdale, Florida.

2. Respondent is now, and has been since December 21, 2006, the holder of a license issued by Petitioner (license number 1619606) authorizing it to operate the Restaurant as a public food service establishment.

3. On October 4, 2007, Sajjad Karim, a Sanitation and Safety Specialist with Petitioner, conducted an "unscheduled inspection" of the premises of the Restaurant. His inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): refrigerated, ready–to-eat food items prepared in the Restaurant (including soups and cold cuts), subject to contamination from bacteria over time, that were being stored in the walk-in cooler for subsequent use were not in containers having date markings on them; these food items were not properly "covered" and therefore were exposed to splash, dust, or other contamination; undercooked animal products (including meat, poultry, eggs, and fish) were available for consumption, but there was no written notice in the Restaurant to consumers of the health risks associated with the consumption of such products; a sign instructing employees to wash their hands was not posted in a restroom used by employees; a cutting board surface used in the kitchen was stained and had "cracks in it," with "food

   debris . . . in between the cracks"; exit signs were not illuminated; "ceiling tiles [were] missing in the men's

   [rest]room"; and Respondent did not possess a license from Petitioner authorizing it to operate the Restaurant as a public food service establishment.

4. Before leaving the establishment, Ms. Karim advised Respondent that these Conditions had to be corrected within 30 days.

5. Mr. Karim conducted a "callback" inspection of the premises of the Restaurant on November 28, 2006. His inspection revealed that each of the Conditions described in Finding of Fact 3 still existed.

   CONCLUSIONS OF LAW

   
   

6. Petitioner has been statutorily delegated the authority to "carry out all of the provisions of [Chapter 509, Florida Statutes] and all other laws relating to the inspection or regulation of . . . public food service establishments for the purpose of safeguarding the public health, safety, and welfare."

   § 509.032, Fla. Stat.

   
   

7. A "public food service establishment," as that term is used in Chapter 509, Florida Statutes, is defined in Section 509.013(5)(a), Florida Statutes, as follows:

   "Public food service establishment" means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by

   customers; or prepared prior to being delivered to another location for consumption.

   
   

8. Each "public food service establishment" must have a license from Petitioner prior to the commencement of operation.

   § 509.241, Fla. Stat.

   
   

9. Disciplinary action may be taken against the holder of such license for "operating in violation of [Chapter 509, Florida Statutes] or the rules of [Petitioner], [or] operating without a license . . . ." Such disciplinary action may include one or more of the following penalties: license revocation, with the licensee unable to "apply for another license for that location prior to the date on which the revoked license would have expired"; license suspension (for a period not exceeding 12 months), with the licensee able to "apply for reinstatement or renewal of the license" following the suspension period; imposition of an administrative fine not to exceed $1,000 for each separate offense3; and "[m]andatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program." § 509.261, Fla. Stat.

10. The “the rules of [Petitioner]," violation of which subject a licensee to disciplinary action pursuant to Section 509.261, Florida Statutes, include the following:

61C-1.004 General Sanitation and Safety Requirements.

The following general requirements and standards shall be met by all . . . public food service establishments:

* * *

(2) Public bathrooms.

(a) . . . . The walls, ceilings and floors of all bathrooms shall be kept in good condition.

* * *

(c) Handwashing signs shall be posted in each bathroom used by employees.

* * *

(6) Physical Facilities - except as specifically provided in these rules, the physical facilities at public food service establishments shall be subject to the provisions of Chapter 6, Food Code, herein adopted by reference. . . .

* * *

(10) . . . . Exits shall be clearly marked with approved illuminated exit signs.

* * *

61C-4.010 Sanitation and Safety Requirements.

(1) Food Supplies and Food Protection - except as specifically provided in this rule, public food service establishments shall be subject to the provisions of Chapter 3, Food Code, herein adopted by reference.

* * *

(5) Food Equipment, Utensils and Linens - public food service establishments shall be subject to the provisions of Chapter 4, Food Code, herein adopted by reference.

* * *

11. Sections 3-305.11, Section 3.501-17, 3-602.12, and 3-

1. are all part of Chapter 3 of the Food Code (which is incorporated by reference in Florida Administrative Code Rule 61C-4.010(1)). They provide as follows:

   Section 3-305.11 Food Storage

   
   

   1. Except as specified in ¶¶ (B) and (C) of this section, food shall be protected from contamination by storing the food:

      
      

      1. In a clean, dry location;

         
         

      2. Where it is not exposed to splash, dust, or other contamination; and

         
         

      3. At least 15 cm (6 inches) above the floor.

      
      

   2. Food in packages and working containers may be stored less than 15 cm (6 inches) above the floor on case lot handling equipment as specified under § 4-204.122.

      
      

   3. Pressurized beverage containers, cased food in waterproof containers such as bottles or cans, and milk containers in plastic crates may be stored on a floor that is clean and not exposed to floor moisture.

Section 3.501-17 Ready-To-Eat, Potentially Hazardous Food, Date Marking

1. Except as specified in ¶ (D) of this section, refrigerated, ready-to-eat, potentially hazardous food prepared and held in a food establishment for more than 24

   hours shall be clearly marked to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded, based on the temperature and time combinations specified below:

   
   

   1. 5°C (41°F) or less for a maximum of 7 days; or

      
      

   2. 7°C (45°F) or between 5°C (41°F) and 7°C (45°F) for a maximum of 4 days in existing refrigeration equipment that is not capable of maintaining the food at 5°C (41°F) or less if:

      
      

      1. The equipment is in place and in use in the food establishment, and

         
         

      2. Within 5 years of the regulatory authority's adoption of this code, the equipment is upgraded or replaced to maintain food at a temperature of 5°C (41°F) or less.

         
         

         The day of preparation shall be counted as Day 1

         
         

         Section 3-602.12 Other Forms of Information

         
         

         1. If required by law, consumer warnings shall be provided.

            
            

         2. Food establishment or manufacturers' dating information on foods may not be concealed or altered.

Section 3-603.11 Consumption of Animal Foods that are Raw, Undercooked, or Not Otherwise Processed to Eliminate Pathogens

1. Except as specified in ¶ 3-401.11(C) and Subparagraph 3-401.11(D)(3) and under 3- 801.11(D), if an animal food such as beef, eggs, fish, lamb, milk, pork, poultry, or shellfish is served or sold raw, undercooked, or without otherwise being processed to eliminate pathogens, either in

   ready-to-eat form or as an ingredient in another ready-to-eat food, the permit holder shall inform consumers of the significantly increased risk of consuming such foods by way of a disclosure and reminder, as specified in ¶¶ (B) and (C) of this section using brochures, deli case or menu advisories, label statements, table tents, placards, or other effective written means.

   
   

2. Disclosure shall include:

   
   

   1. A description of the animal-derived foods, such as "oysters on the half shell (raw oysters)," "raw-egg Caesar salad," and "hamburgers (can be cooked to order);" or

      
      

   2. Identification of the animal-derived foods by asterisking them to a footnote that states that the items are served raw or undercooked, or contain (or may contain) raw or undercooked ingredients.

   
   

3. Reminder shall include asterisking the animal-derived foods requiring disclosure to a footnote that states:

   
   

   1. Regarding the safety of these items, written information is available upon request;

      
      

   2. Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness; or

      
      

   3. Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness, especially if you have certain medical conditions.

1. Section 4-204.13 is part of Chapter 4 of the Food Code (which is referenced in Florida Administrative Code Rule 61C- 4.010(5)). It provides as follows:

   Dispensing Equipment, Protection of Equipment and Food.

   
   

   In equipment that dispenses or vends liquid food or ice in unpackaged form:

   
   

   1. The delivery tube, chute, orifice, and splash surfaces directly above the container receiving the food shall be designed in a manner, such as with barriers, baffles, or drip aprons, so that drips from condensation and splash are diverted from the opening of the container receiving the food;

      
      

   2. The delivery tube, chute, and orifice shall be protected from manual contact such as by being recessed;

      
      

   3. The delivery tube or chute and orifice of equipment used to vend liquid food or ice in unpackaged form to self-service consumers shall be designed so that the delivery tube or chute and orifice are protected from dust, insects, rodents, and other contamination by a self-closing door if the equipment is:

      
      

      1. Located in an outside area that does not otherwise afford the protection of an enclosure against the rain, windblown debris, insects, rodents, and other contaminants that are present in the environment, or

         
         

      2. Available for self-service during hours when it is not under the full-time supervision of a food employee; and

         
         

   4. The dispensing equipment actuating lever or mechanism and filling device of consumer self-service beverage dispensing equipment shall be designed to prevent contact with the lip-contact surface of glasses or cups that are refilled.

2. Section 6-301.14 is part of Chapter 6 of the Food Code (which is incorporated by reference in Florida Administrative Code Rule 61C-1.004(6)). It provides as follows:

   Handwashing Signage.

   
   

   A sign or poster that notifies food employees to wash their hands shall be provided at all handwashing sinks used by food employees and shall be clearly visible to food employees.

   
   

3. "No revocation [or] suspension . . . of any [public food service establishment] license is lawful unless, prior to the entry of a final order, [Petitioner] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat.

4. The licensee must be afforded an evidentiary hearing if, upon receiving such written notice, the licensee disputes the alleged facts set forth in the administrative complaint.

   §§ 120.569(1) and 120.57, Fla. Stat.

   
   

5. At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the administrative complaint. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the licensee's

   guilt is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern

   and Company, 670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of Central Florida v. Department of Business Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992); and § 120.57(1)(j), Fla. Stat.

   ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

6. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

   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), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

7. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegation(s) made in the charging instrument. Due process prohibits an agency from taking penal action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).

8. The Administrative Complaint issued in the instant case alleges that, on October 4, 2006, and November 28, 2006, Respondent was in violation of Section 509.241(2), Florida Statutes; Florida Administrative Code Rules 61C-1.004(2)(a) and (10); and Sections 3-305.11, 3-602.12(A), 3-603.11, 4-204.13, and 6-301.14 of the Food Code.

9. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed each of these violations on October 4, 2006, and November 28, 2006. Accordingly, disciplinary action may be taken against Respondent pursuant to Section 509.261, Florida Statutes.

10. In its Proposed Recommended Order, Petitioner proposes that the undersigned recommend that Respondent be required to

    pay an administrative fine totally $3,600.00 for committing the violations alleged in the Administrative Complaint.

11. This is a reasonable and appropriate penalty that is within Petitioner’s statutory authority to impose.

RECOMMENDATION

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

RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the total amount of $3,600.00.

DONE AND ENTERED this 19th day of June, 2007, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 19th day of June, 2007.

ENDNOTES

1/ Adelita's Cafe is the “doing business as” name of Los Vendedores Corporation.

2/ All references to Florida Statutes in this Recommended Order are to Florida Statutes (2006).

3/ Section 509.261(2), Florida Statutes, provides that, "[f]or the purposes of this section, [Petitioner] may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a 'critical law or rule,' as that term is defined by rule." "Violations of critical laws or rules" are defined in Florida Administrative Code Rule 61C-1.0021(2), as "those violations determined by the [Petitioner] to pose a significant threat to the public health, safety, or welfare."

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Jose Blanco, Certified Legal Extern

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Adela Aleantara

3820 Northwest 36th Street Miami, Florida 33142

Bill Veach, Director

Division of Hotels and Restaurants

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Lucynski, General Counsel

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: 07-001697

Orders for Case No: 07-001697