STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

STACKED SUBS,

Respondent.

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) Case Nos. 10-1704

) 10-2445

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on August 11, 2010, by video teleconference between sites in Orlando and Tallahassee, 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, Suite 42

Tallahassee, Florida 32399

For Respondent: Carlos Nevarez, pro se

Stacked Subs

2054 State Road 436

Winter Park, Florida 32792

STATEMENT OF THE ISSUES

The issues in DOAH Case No. 10-1704 are whether Respondent, Stacked Subs (Respondent), committed the violations alleged in the Administrative Complaint dated November 5, 2008, and, if so, what penalty should be imposed. Similarly, the issues in DOAH Case No. 10-2445 are whether Respondent committed the violations alleged in the Administrative Complaint dated June 24, 2009, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On November 5, 2008, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Department), entered an Administrative Complaint against Respondent that alleged violations of Chapter 509, Florida Statutes (2008). More specifically, Petitioner claimed that Respondent, a restaurant subject to food service inspections, had failed to comply with various provisions of the Food Code found in Florida Administrative Code Chapter 61C. Three 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 and uncorrected on second inspection.

Respondent disputed the factual allegations of the complaint and timely requested an administrative hearing in connection with the matter. The case was forwarded to the Division of

Administrative Hearings (DOAH) for formal proceedings on March 29, 2010.

On June 24, 2009, Petitioner entered a second Administrative Complaint against Respondent that again alleged violations of Chapter 509, Florida Statutes (2009). More specifically, Petitioner claimed that Respondent, a restaurant subject to food service inspections, had failed to comply with various provisions of the Food Code found in Florida Administrative Code Chapter 61C. The two violations noted were deemed "critical." Respondent disputed the factual allegations of the second complaint and timely requested an administrative hearing in connection with the matter. The second case was forwarded to DOAH on May 5, 2010.

Petitioner’s Motion to Consolidate the two cases was granted, and the matter was scheduled for formal hearing. The cases were originally scheduled for hearing for June 25, 2010, but, due to a scheduling conflict, the matter was subsequently rescheduled to August 11, 2010.

At the hearing, Petitioner presented testimony from Alfonso Rullan and Will Goris, inspectors employed by the Department.

Petitioner’s Exhibits 1 through 7 were admitted into evidence. Official recognition was taken of various provisions of law pertinent to the instant matter (see page 7 of the hearing transcript). Carlos Nevarez testified on behalf of Respondent.

Mr. Nevarez contends that the violations against his restaurant are discretionary and that the allegations stem from an inspector abusing his authority.

A Transcript of the hearing was filed with DOAH on August 26, 2010. The parties were afforded ten days within which to file proposed recommended orders. Respondent did not

file a proposed order. Petitioner's Proposed Recommended Order was filed on September 3, 2010, and has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. 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. (2009).

   
   

2. At all times material to the allegations of these cases, Respondent operated as a public food service establishment subject to Petitioner’s jurisdiction.

3. In his capacity as an inspector for Petitioner, Alfonso Rullan visited Respondent’s place of business (2054 State

   Road 436, Winter Park, Florida) on December 19, 2007. During the inspection, Mr. Rullan noted several food service violations that he memorialized in an inspection report provided to, and signed by, Mr. Nevarez. The violations, more fully described in Petitioner's Exhibit 2, required correction. It was

   
   

   contemplated that Respondent would correct the violations of the Food Code such that on second inspection the violations would no longer be found.

4. Since the inspection revealed “critical” violations, it was incumbent on Respondent to timely correct the violations noted in the inspection report. “Critical” violations are violations that, if left uncorrected, can contribute to food contamination, food-borne illness, or adversely affect public health. Thus, “critical violations” must be timely corrected, as they are a present concern. Violations that could lead to critical violations are denoted as “non-critical.” These “non- critical” violations must also be corrected, but they do not constitute a present threat to the public

5. On March 12, 2008, Inspector Will Goris returned to Respondent’s place of business and completed a second inspection report, denoting critical violations uncorrected from the prior inspection and itemizing the concerns that required correction. Mr. Nevarez signed the report. This report, Petitioner’s Exhibit 3, chronicled ten violations of the Food Code.

6. Subsequently, Petitioner issued an Administrative Complaint (DOAH Case No. 10-1704), outlining the uncorrected and critical violations Respondent had failed to timely address. Respondent timely contested the complaint and sought an administrative hearing in connection with the allegations.

   
   

7. Between December 2007 and March 12, 2008, Respondent failed to correct the following violations:

   1. Cheese in the reach-in cooler at the front counter was

      
      

      51 degrees;

      
      

   2. Employees reported to work and handled food without first washing hands;

   3. The prep table was adjacent to the fryers and under the hood was encrusted and greasy; and

   4. Single service cups were stored on the floor by the register.

8. Of the foregoing violations, the failure of employees to wash their hands prior to handling food was the most critical violation. This violation was noted by both inspectors.

9. On January 26, 2009, Inspector Goris conducted a routine inspection of Respondent’s premises. On this date, minor violations of the Food Code were again noted, but Mr. Nevarez was given a “met inspection standards” review for this visit. Nevertheless, Petitioner expected Respondent to correct the non-critical violations in a timely manner.

10. On June 17, 2009, when Inspector Goris presented at the restaurant, violations were discovered that led to the second Administrative Complaint, DOAH Case No. 10-2445. Two of the violations were deemed repeat violations, and two were critical violations directly related to public safety; to wit:

    
    

    the soda disperser had slime on it, and proof of employee food- handler training was not available. Respondent timely challenged the Administrative Complaint in DOAH Case

    No. 10-2445.

    
    

11. As to all alleged violations, Respondent was provided adequate notice of the allegations and was provided sufficient time to correct deficiencies. Respondent maintains that inspectors should be trained in abuse of power as their inspections can be discretionary and arbitrary. For example, Respondent claimed that the sleeve of cups on the floor by the cash register had merely fallen there when the inspector cited the violation.

12. Respondent’s claim of abuse of power was unsupported by factual evidence. Moreover, the inspections performed by both inspectors documented objective criteria unrelated to opinion or subjective review. For example, dirty, greasy, or encrusted food surfaces were documented. The failure of employees to wash their hands was documented. The inadequate or incorrect temperature of containers of food was documented. These are not subjective items, but were disclosed to Respondent during and at the time of inspection. It is determined that the inspectors’ testimony was credible and persuasive as to the violations cited.

    
    

13. 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-1.001. The Food Code is also available through the U.S. Food and Drug Administration Internet website.

    CONCLUSIONS OF LAW

    
    

14. 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. (2009).

15. In this matter, Petitioner bears the burden of proof to establish by clear and convincing evidence the allegations of the Administrative Complaints. Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987). As to each of the allegations, Petitioner has met that burden. It is concluded that Respondent violated the provisions of law as alleged by Petitioner.

16. Section 509.261, Florida Statutes (2009), 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.

       
       

17. It is concluded that Petitioner has established that 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 and

    are:

    
    

    1. Keeping cheese in a reach-in cooler 10 degrees above

       
       

       the mandated temperature of 41 degrees;

       
       

    2. Allowing employees to handle food without first washing their hands;

    3. Allowing the food prep table adjacent to the fryer free to become encrusted with food and grease;

    4. Storing cups on the floor;

       
       

    5. Allowing slime to cover the soda dispenser; and

       
       

    6. Failing to prove that employees had the appropriate training and certification as required by law.

    
    

18. Critical violations pose an immediate threat to the public. The Department has shown that Respondent failed to correct critical 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 Respondent in the amount of $1,750.00 for the violations listed in DOAH Case No. 10-1704 and $1,000.00 for the violations identified in DOAH Case No. 10-2445. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper guidelines are adopted and implemented at the restaurant.

DONE AND ENTERED this 5th day of October, 2010, 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

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2010.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Reginald Dixon, 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

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: 10-001704

Orders for Case No: 10-001704