STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on December 12, 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: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint dated August 26, 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 August 26, 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 October 29, 2008, the case was referred to the Division of Administrative Hearings and assigned to the undersigned. The case was noticed for hearing on December 12, 2008, and convened as scheduled.

At 9:00 a.m. on December 12, 2008, the Department's counsel and witness were present and prepared to proceed with the hearing. Respondent's principal, Ahmet Engin, was not present, and did not provide notice of his unavailability. The undersigned's legal assistant attempted to reach Mr. Engin by telephone at 9:05 a.m., but was only able to reach an answering machine.

At 9:15 a.m., the undersigned called the hearing to order and the Department presented its testimonial and documentary

evidence. Shortly before the conclusion of the hearing, at approximately 9:30 a.m., Mr. Engin phoned the undersigned's legal assistant. He told her that his car had broken down, and that he did not have his phone with him, so that he was unable either to attend the hearing or notify this tribunal of his problem. The Department was allowed to complete its prima facie case and the hearing adjourned at approximately 9:40 a.m.

On December 12, 2008, the undersigned issued an Order to Show Cause, directing Respondent to show cause within 10 days as to why the record should not be closed and the recommended order

entered based on the current record. The Order to Show Cause suggested that Mr. Engin provide some tangible evidence of his car trouble, such as a sworn affidavit and/or towing or repair shop receipts.

To provide Mr. Engin every opportunity to justify his failure to appear at the hearing and to present his own evidence at a later time, the undersigned held the record open for one month. Respondent never responded to the Order to Show Cause.

On January 12, 2009, an Order Closing Record was entered.

At the hearing, the Division presented the testimony of Andrea Piel, a Sanitation and Safety Specialist employed by the Division. The Division's Exhibits A through C were admitted into evidence.

A transcript of the hearing was filed at the Division of Administrative Hearings on December 30, 2008. The Division

filed a Proposed Recommended Order on February 11, 2009. 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.1

2. At all times material to this case, Respondent was a restaurant located at 2911 West 39th Street, Orlando, Florida 32839, holding Permanent Food Service license number 5810777.

3. On May 20, 2008, Andrea Piel, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. Ms. Piel prepared and signed an inspection report setting forth the violations she observed during her inspection. Ms. Piel provided a copy of the inspection report to Ahmet Engin, Respondent's principal owner. The inspection report notified Respondent that the violations must be corrected by July 20, 2008.

4. On August 6, 2008, Ms. Piel performed a re-inspection of Respondent's premises and prepared a call-back inspection report. The call-back inspection report indicated that certain of the violations found during the May 20, 2008, inspection had not been corrected.

5. During both inspections, Ms. Piel noted potentially hazardous food being held at an improper temperature. Pizza was

   being held on top of the pizza oven at a temperature of

   
   

   126 degrees Fahrenheit. Ms. Piel testified that this is a critical violation because food that is hot-held must be held at a temperature of 135 degrees or higher in order to prevent the growth of harmful bacteria.

6. During both inspections, Ms. Piel noted that Respondent was operating under an expired food manager certification. The food manager certification is required to ensure that the operator has an understanding of the proper food safety procedures. Ms. Piel testified that this is a critical violation because a food manager must be re-certified every five years.

7. During both inspections, Ms. Piel noted that the interior of the reach-in cooler was soiled with an accumulation of food residue. Ms. Piel testified that this is a critical violation because cleanliness is required in order to eliminate the potential for the growth of bacteria on surfaces that come into contact with food.

8. During both inspections, Ms. Piel noted that the carbon dioxide tanks were not adequately secured. Ms. Piel testified that this is a violation because a pressurized carbon dioxide tank could become a projectile should it fall and the regulator break off.

9. During both inspections, Ms. Piel noted that the ceiling tile was missing over the refrigerator. Ms. Piel testified that this is a violation because secure floors, walls and ceilings are essential to keep dirt, dust, and vermin out of the kitchen area.

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

11. 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.

12. The improper holding of hot-held food, the outdated certification, and food residue in the cooler were critical violations. The unsecured carbon dioxide tanks and the missing ceiling tile were non-critical violations.

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

    CONCLUSIONS OF LAW

    
    

14. 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.

15. 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.

16. 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.

17. 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).

18. 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).

19. Section 509.032(2), Florida Statutes, specifically empowers the Division to conduct inspections of public food

    service establishments, and to adopt and enforce sanitation rules to ensure the protection of the public from food-borne illness. Section 509.032(6), Florida Statutes, provides that the Division shall adopt such rules as are necessary to carry out the provisions of Chapter 509, Florida Statutes. Florida Administrative Code Rule 61C-1.001(14) adopts by reference Chapter 3 (among others) of the U.S. Food and Drug Administration's Food Code.

20. The Administrative Complaint alleged that Respondent violated Food Code Rule 3-501.16(A)(1), which provides, in pertinent part:

    1. Except during preparation, cooking, or cooling, or when time is used as the public health control (time/temperature control for safety food) as specified under § 3-501.19, and except as specified under ¶ (B) of this section, potentially hazardous food shall be maintained:

       
       

       1. At 57ºC (135ºF) or above, except that roasts cooked to a temperature and for a time specified in ¶ 3-401.11(B) or reheated as specified in ¶ 3-403.11(E) may be held at a temperature of 54ºC (130ºF) or above. . . .

          
          

21. Under Food Code Rule 3-501.16(A)(1), Respondent was required to hold its pizza at a temperature of 135 degrees Fahrenheit or greater. The Division proved by clear and convincing evidence that during both inspections, Respondent stored its pizza at 126 degrees Fahrenheit.

22. The Administrative Complaint alleged that Respondent violated Florida Administrative Code Rule 61C-4.023(1), which provides in pertinent part:

    (1) All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted in this chapter. Those managers who successfully pass an approved certification examination shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. . . .

    
    

23. The Division proved by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C- 4.023(1) because Respondent was operating under an expired food manager certification during both inspections.

24. The Administrative Complaint alleged that Respondent violated Food Code Rule 601.11(C) and (D), which provide in pertinent part:

    1. Except as specified in ¶ (D) of this section, if used with potentially hazardous food (time/temperature control for safety food), equipment food-contact surfaces and utensils shall be cleaned throughout the day at least every 4 hours.

       
       

    2. Surfaces of utensils and equipment contacting potentially hazardous food (time/temperature control for safety food) may be cleaned less frequently than every 4 hours if:

       
       

       1. In storage, containers of

          potentially hazardous food (time/temperature control for safety food) and their contents are maintained at temperatures specified under Chapter 3 and the containers are cleaned when they are empty;

          
          

       2. Utensils and equipment are used to prepare food in a refrigerated room or area that is maintained at one of the temperatures in the following chart and:

          
          

          1. The utensils and equipment are cleaned at the frequency in the following chart that corresponds to the temperature; and

             
             

             Temperature Cleaning Frequency

             5.0ºC (41ºF) or less	24 hours
             >5.0ºC - 7.2ºC (>41ºF – 45ºF)	20 hours
             >7.2ºC – 10.0ºC (>45ºF – 50ºF)	16 hours
             >10.0ºC – 12.8ºC (>50ºF – 55ºF)	10 hours

             
             

          2. The cleaning frequency based on the ambient temperature of the refrigerated room or area is documented in the food establishment.

             
             

       3. Containers in serving situations such as salad bars, delis, and cafeteria lines hold ready-to-eat potentially hazardous food (time/temperature control for safety food) that is maintained at the temperatures specified under Chapter 3, are intermittently combined with additional supplies of the same food that is at the required temperature, and the containers are cleaned at least every 24 hours;

          
          

       4. Temperature measuring devices are maintained in contact with food, such as when left in a container of deli food or in a roast, held at temperatures specified under Chapter 3;

          
          

       5. Equipment is used for storage of packaged or unpackaged food such as a reach- in refrigerator and the equipment is cleaned at a frequency necessary to preclude accumulation of soil residues;

          
          

       6. The cleaning schedule is approved based on consideration of:

          
          

          1. Characteristics of the equipment and its use,

             
             

          2. The type of food involved,

             
             

          3. The amount of food residue accumulation, and

             
             

          4. The temperature at which the food is maintained during the operation and the potential for the rapid and progressive multiplication of pathogenic or toxigenic microorganisms that are capable of causing foodborne disease; or

             
             

       7. In-use utensils are intermittently store in a container of water in which the water is maintained at 57ºC (135ºF) or more and the utensils and container are cleaned at least every 24 hours or at a frequency necessary to preclude accumulation of soil residues.

    
    

25. The Division proved by clear and convincing evidence that Respondent violated Food Code Rule 4-602.11(C) and (D), because the interior of the reach-in cooler was soiled with an accumulation of food residue during both inspections.

26. The Administrative Complaint alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(9)(d), which

    provides: "Carbon dioxide and helium tanks shall be adequately secured so as to preclude any danger to safety."

27. The Division proved by clear and convincing evidence that Respondent violated Florida Administrative Code Rule

    61C-1.004(9)(d) because the carbon dioxide tanks were not adequately secured during either inspection.

28. The Administrative Complaint alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(6), which provides: "All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions."

29. The Division proved by clear and convincing evidence that Respondent violated Florida Administrative Code Rule

    61C-1.004(6) because the ceiling tile above the freezer was missing during both inspections.

30. For the three critical and the two non-critical violations, the Division proposed a total administrative fine of

$2,500.00. In consideration of the hazards posed by the proven violations, and the lack of any countervailing evidence presented by Respondent, the proposed administrative fine is appropriate for the violations 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 $2,500.00, payable under terms and conditions deemed appropriate.

DONE AND ENTERED this 17th day of February, 2009, 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

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2008 edition.

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

Charles Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Ahmet Engin Flavors of Italy

2911 West 39th Street Orlando, Florida 32839

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: 08-005419

Orders for Case No: 08-005419