STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on August 12, 2008, by video teleconference from Lauderdale Lakes, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cheri-ann Granston

Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2022

For Respondent: Ernst Pierre Louis, pro se

Rosarios II Italian Restaurant 12691 West Sunrise Boulevard Sunrise, Florida 33323

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Rosarios II Italian Restaurant (Respondent), committed the violations alleged and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 1, 2008, the Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Department), executed an Administrative Complaint that alleged the 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 comply with 19 various provisions of the Food Code found in Florida Administrative Code, Chapter 61C. Fourteen of the alleged violations were deemed "critical" in that they presented an immediate danger to the public. The Administrative Complaint chronicled the alleged violations that had been observed. The Respondent disputed the allegations and timely requested an administrative hearing in connection with this matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on June 6, 2008.

At the hearing on August 12, 2008, the Department presented testimony from Sean Grofvenor and Robert Becker, inspectors employed by the Petitioner. The Department’s Exhibits 1-3 were

admitted into evidence. The Respondent presented the testimony of Ernst Pierre Louis. The Respondent did not dispute the information presented in the first inspection report but maintained that all deficiencies cited by the inspection reports had been corrected.

A Transcript of the proceedings was filed on September 11, 2008. The parties were afforded ten days within which to file proposed recommended orders. The Respondent did not file a proposed order. The Petitioner's Proposed Recommended Order was filed on September 19, 2008, and it has been fully considered in the preparation of this Recommended Order.

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. (2008).

   
   

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 1). The Respondent's license number is 1617840.

3. In his capacity as an inspector and as a sanitation and safety supervisor for the Petitioner, Sean Grofvenor visited the Respondent’s place of business (12691 West Sunrise Boulevard, Sunrise, Florida) on November 13, 2007. On that date, the

   violations, more fully described in the inspection report of that date, (Petitioner's Exhibit 2) warranted the closure or emergency order of suspension of license for the establishment. The Respondent was made aware of the violations and the Petitioner announced that it would come back in 24 hours to reassess the closure. The closure was deemed appropriate to protect the public. The 24-hour call-back inspection was provided to reassess the "critical" problems depicted in the inspection report.

4. The November 13, 2007, inspection report described the following "critical" violations:

   1. Live and dead roaches present at the establishment;

      
      

   2. Ready-to-eat food prepared on site and held more than 24 hours without proper date and time tagging;

   3. A hand-wash sink lacked proper drying provisions by the dish machine;

   4. Uncovered food was discovered in a holding unit, the dry storage area, and in a walk-in cooler; and

   5. Soiled gaskets at numerous stations within the food preparation areas.

5. After the 24-hour call-back inspection was completed, the Respondent was allowed to reopen but was advised that a second follow up inspection would be performed. The Respondent was given until January 14, 2008, to correct all of the

   violations previously identified and described in the inspection report of November 13, 2007.

6. Robert Becker is a sanitation and safety specialist employed by the Department. He accompanied Mr. Grofvenor on the November 13, 2007, inspection of the Respondent's establishment and assisted in the compilation of the violations noted in the first inspection report. Inspector Becker performed a call-back inspection of the Respondent's establishment on January 17, 2008.

7. This final call-back inspection report (Petitioner's Exhibit 3) described the violations that remained uncorrected.

8. The Department uses the terms "critical" and "non- critical" to describe violations of the "Food Code." The "Food Code" as it is used in this record, refers to paragraph 1- 201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; 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). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C-

   1. The Food Code is also available through the U. S. Food and Drug Administration Internet website.

9. "Critical" violations of the Food Code are conditions that, if not corrected, could lead to food contamination, food borne illness, or environmental degradation.

10. A "non-critical" violation relates to a preventative measure or practice to keep the environmental conditions of food preparation and service in proper order. If not corrected, a "non-critical" violation has the potential to become a "critical" situation.

11. When Inspector Becker returned to the Respondent's establishment on January 17, 2008, the critical violations described in paragraph 4 were not fully corrected.

12. For example, Inspector Becker observed roach activity within the kitchen of the Respondent's establishment. Roach activity is considered a critical violation as roaches are a direct contributor to the contamination of food and the spread of bacteria and disease. Inspector Becker documented the number and location for each roach discovered at the site.

13. Additionally, Inspector Becker observed unmarked ready-to-eat food that was not appropriately tagged. Date marking ready-to-eat food is necessary to prevent spoilage and the growth of bacteria. Foods may only be held at designated temperatures and within certain conditions for a limited time period. If left unmarked, it is impossible to discern whether the guidelines have been met.

14. Third, Inspector Becker found the hand wash sink lacked proper drying provisions. Although a repeat violation from the previous inspection, the Respondent corrected this violation on site.

15. The fourth critical violation related to uncovered food in holding situations. Food must be properly covered to prevent exposure to contamination. Whether in a walk-in cooler or other station, food must be covered. Sauces and pasta are considered "food."

16. The final critical violation was soiled gaskets on several kitchen appliances or preparation surfaces. Cooler gaskets at the prep reach-in cooler, cooler gaskets at the pizza station, and gaskets near a fryer were dirty or soiled. When gaskets are soiled the mere opening and closing of the device can spread filth and expose food to contaminants. Gaskets must be kept clean and free of all potential contaminants.

17. In addition to the foregoing, there were several non- critical violations of a preventative nature that the Respondent failed to correct. These violations could easily be corrected and did not pose an immediate threat to the public. For example, a restaurant employee without hair restraint is easily corrected.

18. In testifying for the Respondent, Mr. Pierre Louis maintained that while the inspection report of November 13,

    2007, was correct, he had since made the corrections necessary to bring the restaurant into compliance. Those corrections were not, however, completed before January 17, 2008. Mr. Pierre Louis described difficulty finding replacement gaskets for the equipment. The inference being that the gaskets could not be cleaned but had to be replaced. Mr. Pierre Louis did not advise the Department of the difficulty in making the replacements until the time of hearing.

19. The Respondent was given over 60 days within which to make the necessary corrections.

20. The Respondent did not correct the roach problem between November 13, 2007, and January 17, 2008, despite its representation that it had hired an extermination company to address the problem. Roach presence is a critical violation that cannot go unattended or inadequately treated.

    CONCLUSIONS OF LAW

    
    

21. 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. (2008).

22. 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 provisions of law as alleged by Petitioner.

23. Section 509.261, Florida Statutes (2008), provides, in

    
    

    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.

    
    

24. It is concluded that the Department has established

the Respondent operated a food establishment and committed critical violations of the Food Code. Those violations are detailed in the inspection reports received in evidence in this cause. Critical violations pose an immediate threat to the public. The Department has shown that the Respondent failed to correct these violations when given an appropriate amount of time within which to do so.

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 against the Respondent in the amount of $3,500.00. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper sanitary measures are adopted at the restaurant.

DONE AND ENTERED this 26th day of September, 2008, in Tallahassee, Leon County, Florida.

S

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 26th day of September, 2008.

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

Cheri-ann Granston Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Charles Tunnicliff, Esquire Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Ernst Pierre Louis

Rosarios II Italian Restaurant 12691 West Sunrise Boulevard Sunrise, Florida 33323

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: 08-002709

Orders for Case No: 08-002709