STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs. FLAMERS,

Respondent.

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) Case No. 07-4065

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RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on October 17, 2007, in Fort Lauderdale, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2022

For Respondent: Richard Yo, pro se

6205 Floridian Circle

Lake Worth, Florida 33463 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Flamers, committed the violation alleged and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 21, 2007, the Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Department), executed an Administrative Complaint that alleged the Respondent, Flamers (Respondent), had violated provisions of Chapter 509, Florida Statutes. More specifically, the Petitioner claimed that the Respondent, a restaurant subject to food service inspections, had failed to date food that was stored overnight; and had failed to properly tag and maintain a fire suppression system. The Respondent, Flamers, through its owner, Richard Yo, timely challenged the allegations and the matter was forwarded to the Division of Administrative Hearings for formal hearing on September 10, 2007.

A Notice of Hearing was issued on September 24, 2007, and the case was scheduled for hearing. At the hearing, the Petitioner presented testimony from Damian Morales, a sanitation safety specialist employed by the Department. The Petitioner's Exhibits A, B, and C were admitted into evidence. Richard Yo testified on behalf of the Respondent.

The Transcript of the proceeding was filed with the Division of Administrative Hearings on December 31, 2007. The Petitioner timely filed a Proposed Recommended Order that has been considered in the preparation of this order. The Respondent did not file a proposed order. Both at the hearing and through its Proposed Recommended Order the Petitioner acknowledged that it

voluntarily dismissed its claim of a fire code violation against the Respondent. The sole allegation requiring resolution is the matter of whether the Respondent appropriately labeled for storage food containers. The Respondent maintains that the approved policy was to label and store all food products.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2007).

2. At all times material to the allegations of this case,

   
   

   the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (see Petitioner’s Exhibit A).

3. In his capacity as a sanitation and safety specialist for the Petitioner, Mr. Morales visited the Respondent’s place of business located at 801 North Congress Avenue, Boynton Beach, Florida, on two occasions. Mr. Morales has extensive training and education in food service related matters and has performed numerous inspections for the Petitioner. He is familiar with all relevant food service law and rules pertaining to the inspection of licensed food service establishments.

4. First, on May 11, 2007, Mr. Morales visited the Respondent’s place of business and noted several Food Service Inspection violations. These violations were documented (Petitioner’s Exhibit B) and a copy of the inspection report was

   provided to Mr. Yo. Mr. Yo owns the restuarant and was present during this first inspection. The violation pertinent to this case is more fully described below (see "callback" inspection results).

5. At the time of the first inspection, Mr. Morales warned that a “call back” inspection would be performed and issued the Respondent with a warning regarding the violations noted on the inspection form. The “call back” inspection was provided to afford the Respondent with time to correct the deficiencies noted in the first inspection and to assure that the deficiencies were timely corrected.

6. On June 14, 2007, Mr. Morales returned to the Respondent’s place of business to perform the “call back” inspection. The “call back” inspection report (Petitioner’s Exhibit C) noted two violations had not been corrected. Only one of these violations remains at issue. Specifically, Mr. Morales found that the food containers that stored food overnight were not clearly marked and dated. This is not an approved method of storing food.

7. Mr. Yo was not present during this "call back" inspection. Michael Evancich was present during the "call back." Mr. Evanich identified himself to Mr. Morales as the Respondent's "manager." Mr. Evancich signed the Food Service Inspection Report that detailed the violation.

8. Mr. Morales noted that potentially hazardous food was prepared and held in containers for more than 24 hours without being clearly marked to indicate the date or day by which the

   food would be consumed, sold, or discarded. See Food Code Rule

   3-501.17(A). Food containers with hot dogs, chicken breasts, and burgers were not dated and were stored overnight inside a cooler. According to Mr. Morales this is a critical violation. Undated and out-dated food can grow bacteria leading to a potential health hazard. The purpose of the labeling assures that potentially hazardous products are not sold to the public or consumed.

9. Although he was not present during the "call back" inspection, Mr. Yo maintained that the Respondent has a policy to assure that food products are marked and stored in an approved manner.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 120.57(1), and 509.261, Fla. Stat. (2007).

11. Section 509.261, Florida Statutes (2007), provides, in pertinent part:

    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.

    2. For the purposes of this section, the division 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. [Emphasis Added.]

       
       

12. Section 509.032, Florida Statutes (2007) provides, in pertinent part:

    1. GENERAL.--The division shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of public lodging establishments and public food service establishments for the purpose of safeguarding the public health, safety, and welfare. The division shall be responsible for ascertaining that an operator licensed under this chapter does not engage in any misleading advertising or unethical practices.

    2. INSPECTION OF PREMISES.--

       1. The division has responsibility and jurisdiction for all inspections required by this chapter. The division has responsibility for quality assurance. Each licensed establishment shall be inspected at least biannually, except for transient and nontransient apartments, which shall be inspected at least annually, and shall be inspected at such other times as the division determines is necessary to ensure the public's health, safety, and welfare. * * *

       2. For purposes of performing required inspections and the enforcement of this chapter, the division has the right of entry and access to public lodging establishments and public food service establishments at any reasonable time.

       3. Public food service establishment inspections shall be conducted to enforce provisions of this part and to educate, inform, and promote cooperation between the division and the establishment.

       4. The division shall adopt and enforce sanitation rules consistent with law to ensure the protection of the public from food-borne illness in those establishments licensed under this chapter. These rules shall provide the standards and requirements for obtaining, storing, preparing,

       processing, serving, or displaying food in public food service establishments, approving public food service establishment facility plans, conducting necessary public food service establishment inspections for compliance with sanitation regulations, cooperating and coordinating with the Department of Health in epidemiological investigations, and initiating enforcement actions, and for other such responsibilities deemed necessary by the division. * * *

       
       

13. Florida Administrative Code Rule 61C-1.001, sets forth the definitions applicable to this case. The rule defines:

    (4) Approved – Acceptable to the division following a determination as to conformance with appropriate sanitation and safety standards and good public health practice.

    * * *

    1. Food Code – 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).

    2. Food establishment – As utilized in the Food Code, this term shall apply to public lodging and food service establishments as defined in Chapter 509, F.S., according to the context of the applicable rule language.

    
    

14. Florida Administrative Code Rule 61C-4.010, provides, in part:

    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.

       
       

15. Rule 3-501.17(A) of the Food Code requires that 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. The day of preparation is counted as Day 1.

16. In this matter, the Petitioner bears the burden of proof to establish by clear and convincing evidence the allegations of the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). As to each of the allegations, it has met that burden. It is concluded the Respondent violated the provision of the Food Code as alleged by Petitioner.

17. It is concluded that the Department has established the Respondent failed to clearly mark food stored overnight in containers in an approved manner. Further, the storage of potentially hazardous food in this manner is unacceptable under the guidelines applicable to this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants,

enter a Final Order imposing an administrative fine in the amount of $500.00.

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DONE AND ENTERED this 24th day of January, 2008, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 24th day of January, 2008.

COPIES FURNISHED:

William Veach, Director

Division of Hotels and Restuarants Department of Business and

Professional Regulation 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

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Richard Yo

6205 Floridian Circle

Lake Worth, Florida 33463

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: 07-004065

Orders for Case No: 07-004065