STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on July 25, 2008, via video teleconference from sites in Orlando and Tallahassee, Florida, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth Duffy, Esquire

Cheri-ann Granston, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Carlos Nevarez, pro se

Stacked Subs

2054 State Road 436

Suite 128

Winter Park, Florida 32792

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated March 17, 2008, and, if so, what penalty is warranted.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"), alleged in an Administrative Complaint dated March 17, 2008, that Respondent violated the 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.

On June 5, 2008, the case was referred to the Division of Administrative Hearings and assigned to the undersigned. The case was noticed for hearing on July 25, 2008, and conducted as scheduled.

At hearing, the Division presented the testimony of Wilberto Goris. The Division's Exhibits 1 and 2 were admitted into evidence. Respondent presented the testimony of Carlos Nevarez, the manager of Stacked Subs. Respondent's Exhibits 1 and 2 were admitted into evidence.

A transcript of the hearing was filed at the Division of Administrative Hearings on August 14, 2008. The Division filed

a Proposed Recommended Order on August 20, 2008. Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes.

2. At all times material to this case, Respondent was a restaurant located at 2054 State Road 436, Suite 128, Winter Park, Florida, holding Permanent Food Service license number 5811081.

3. On March 12, 2008, Wilfredo Goris, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Goris observed 17 live roaches inside a box containing light bulbs in front of the three-compartment sink, two roaches on a water heater in the same general area as the three-compartment sink, and three dead roaches in the vicinity of the three-compartment sink.

4. Mr. Goris showed the roaches to Carlos Nevarez, the manager of Stacked Subs, to make him aware of the problem. Mr. Goris prepared and signed an inspection report detailing his findings during the inspection. Mr. Nevarez also signed the report to indicate receipt of the inspection report.

5. The Division advises its inspectors that all reports of pest activities should be forwarded to the Tallahassee office for review. Mr. Goris sent his inspection report to Tallahassee for a determination of how to proceed against Stacked Subs, i.e., whether to allow the restaurant to remain in operation or to suspend its license until the roach infestation is eliminated.

6. Mr. Goris testified that the Tallahassee office decided that because the roach activity was in the kitchen area, the restaurant should be closed as a threat to public health until the facility was cleaned and sanitized.

7. Mr. Nevarez testified that all the roaches were in a box of fluorescent light bulbs that had been brought in from a storage unit a couple of weeks earlier. The box was removed immediately after the inspection. According to Mr. Nevarez, once the box was removed, the roach problem was eliminated.

8. To corroborate his testimony, Mr. Nevarez submitted a service report from Anteater Pest and Lawn Services, a large pest and lawn company. Anteater's technician arrived at Stacked Subs at 4 p.m. on March 12, 2008, and stayed until 5:30 p.m., inspecting the facility and treating any potential entry point for pests. Anteater's technician could find no roaches inside the restaurant.

9. Mr. Goris returned to Stacked Subs the next day, March 13, 2008. Mr. Goris found no roaches and allowed the restaurant to reopen.

10. Mr. Nevarez submitted photographs of the restaurant to show where Mr. Goris found the box containing the roaches. Mr. Goris viewed the photographs and agreed with Mr. Nevarez as to the location of the box. The photographs indicate that the box was placed next to a hot water heater in the very back of the restaurant, well away from the food preparation area. However, the kitchen is of a long, open galley-type construction, and there were no dividing walls between the hot water heater and the food preparation area. Therefore, the box containing the roaches was technically in the kitchen.

11. A critical violation is a violation that poses an immediate danger to the public.

12. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation.

13. Roaches are carriers of diseases, including staphylococcus. The presence of roaches in the vicinity of the food preparation area constitutes a critical violation.

14. The Division presented no evidence of prior disciplinary action against Respondent.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.1

16. Petitioner has jurisdiction over the operation of public lodging establishments and public food service establishments, pursuant to Section 20.165 and Chapter 509, Florida Statutes.

17. The Division is authorized to take disciplinary action against the holder of such a license for operating in violation of Chapter 509, Florida Statutes, or the rules implementing that chapter. Such disciplinary action may include suspension or revocation of the license, imposition of an administrative fine not to exceed $1,000.00 for each separate offense, and mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program. § 509.261, Fla. Stat.

18. Here, the Division seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, the Division has the burden of proving the allegations charged in the Administrative Complaint against the Respondent by clear and convincing evidence. Department of Banking and Finance

    Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

19. A licensee is charged with knowing the practice act that governs his license. Wallen v. Florida Department of

    Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

20. The Administrative Complaint alleged that on

    
    

    March 12, 2008, Respondent violated Food Code Rule 6-501.111.

    
    

21. Food Code Rule 6-501.111 states:

    
    

    Controlling Pests. The presence of insects, rodents, and other pests shall be controlled to minimize their presence on the premises by: (A) Routinely inspecting incoming shipments of food and supplies;

    (B) Routinely inspecting the premises for evidence of pests; (C) Using methods, if pests are found, such as trapping devices or other means of pest control as specified under sections 7-202.12, 7-206.12, and

    7-206.13; and (D) Eliminating harborage conditions.

    
    

22. The Division proved the allegation of the Administrative Complaint by clear and convincing evidence to the extent that there were roaches in the vicinity of the hot water heater, which was a part of the open kitchen area. However, the Division did not prove that live roaches were found "throughout the establishment" as alleged in the Administrative Complaint.

23. The Division proposed a total administrative fine of

$1,000.00 for the critical violation. In consideration of the

limited nature of the roach infestation actually proven, and the speed and ease with which the infestation was eliminated, a reduction of the penalty sought is warranted. A fine in the amount of $500.00 is appropriate for the violation actually

proven.

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 a fine of $500.00, payable under terms and conditions deemed appropriate.

DONE AND ENTERED this 11th day of September, 2008, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 11th day of September, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references are to the 2007 Florida Statutes.

COPIES FURNISHED:

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

William L. Veach, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Elizabeth Duffy, Esquire Cheri-ann Granston, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Carlos Nevarez Stacked Subs

2054 State Road 436, Suite 128 Winter Park, Florida 32792

Charles Tunnicliff, Esquire Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

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: 08-002654

Orders for Case No: 08-002654