STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-8902

) FIVE STAR HAITIAN RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 19, 2010, by video teleconference with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Louise Wilhite-St Laurent, Qualified Representative

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated December 2, 2009, and, if so, what action should be taken.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Hotels and Restaurants, hereinafter Department, issued an Administrative Complaint against Five Star Haitian Restaurant, hereinafter Restaurant, dated December 2, 2009. The Department charged the Restaurant with violating Food Code Rule 6-301.12 in that the hand wash sink was observed lacking proper hand drying provisions; violating Section 509.231(2), Florida Statutes, in that the Restaurant was operating without a current Hotel and Restaurant State license; violating Florida Administrative Code Rule 61C-4.023(1) in that the manager lacked proof of food manager certification; and violating Section 509.049, Florida Statutes, in that no proof of required employee training was provided. The Restaurant disputed the material allegations of fact and requested a hearing. On September 3, 2010, this matter was referred to the Division of Administrative Hearings.

At hearing, the Department presented the testimony of one witness and entered three exhibits (Petitioner’s Exhibits numbered 1 through 3) into evidence. A representative of the

Restaurant failed to appear at hearing. The undersigned took Official Recognition of Sections 509.032(6), 509.049, and 509.241(2), Florida Statutes; Florida Administrative Code Rules 61C-1.001(14), 61C-1.005, and 61C-4.023(1); and Food Code Rule

6-301.12.

A transcript of the hearing was ordered. At the request of the Department, the time for filing post-hearing submissions was set for ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on November 5, 2010. The Department timely filed its post-hearing submission. The Department's post-hearing submission has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2323257.

2. At all times material hereto, the Restaurant was located at 762 Northwest 183rd Street, Miami Gardens, Florida 33169.

3. A critical violation in food service is considered to be a violation that, if not corrected, is directly related to food-borne illness, food contamination, or health risk.

   
   

4. A non-critical violation in food service is considered to be a violation that, if not corrected, can become a critical violation.

5. On August 14, 2009, Daniel Unold, an inspector with the Department, conducted a routine inspection of the Restaurant.

6. During the inspection, Inspector Unold found violations, which were considered to be critical and non- critical violations. Further, during the inspection,

   Inspector Unold prepared a food inspection report, setting forth the alleged violations and the date for the callback inspection, which was October 14, 2009. The inspection report was signed by Inspector Unold and a representative of the Restaurant.

   Inspector Unold made the representative aware of the alleged violations and that the violations had to be corrected by the callback date of October 14, 2009, and he provided the representative with a copy of the inspection report.

7. On October 19, 2009, Inspector Unold performed the callback inspection. Among other things, four critical violations were not corrected from the routine inspection of August 14, 2009. During the callback inspection,

   Inspector Unold prepared a food callback inspection report, setting forth, among other things, the alleged critical violations. The callback inspection report was signed by Inspector Unold and a representative of the Restaurant.

   
   

   Inspector Unold made the representative aware of the alleged violations.

8. The most serious alleged critical violation, which had been found on August 14, 2009, and was not corrected by October 19, 2009, was no certified food manager for the Restaurant. This violation is critical because it is necessary for the person operating a food service establishment to be knowledgeable regarding food contamination, hygiene, cloth contamination, and food-related diseases. That person is a certified food manager, and the certification process requires class training and a test.

9. The next most serious alleged critical violation not corrected by October 19, 2009, was no proof of required employee training. This violation is a critical violation because it is necessary for every food service employee to have basic knowledge regarding hand washing and food contamination.

10. The next most serious alleged critical violation not corrected by October 19, 2009, was the hand wash sink lacking the proper hand drying provisions. This violation is a critical violation because hand drying is an important part of the hand washing procedure, and, if not performed correctly, it is as if hand washing had not occurred at all.

    
    

11. The next most serious alleged critical violation not corrected by October 19, 2009, was the Restaurant operating without a current Hotel and Restaurant license. The new owner of the Restaurant, Elise Benabe, had not completed a change of ownership application. This violation is a critical violation because the State of Florida requires all public food service establishments to be licensed.

    CONCLUSIONS OF LAW

    
    

12. 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 (2010).

13. The Department has the burden of proof to show by clear and convincing evidence that the Restaurant committed the offenses set forth in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor

    Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Section 509.032, Florida Statutes (2009), provides in pertinent part:

    1. GENERAL. --The division [Division of Hotels and Restaurants of the Department of Business and Professional Regulation] 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 . . . .

       
       

    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 . . . .

          
          

       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 . . .

       conducting necessary public food service establishment inspections for compliance with sanitation regulations and

       initiating enforcement actions, and for other such responsibilities deemed necessary by the division . . . .

       
       

       * * *

       
       

    3. SANITARY STANDARDS; EMERGENCIES; TEMPORARY FOOD SERVICE EVENTS. --The division shall:

       
       

       1. Prescribe sanitary standards which shall be enforced in public food service establishments.

          
          

          * * *

          
          

          (6) RULEMAKING AUTHORITY. --The division shall adopt such rules as are necessary to carry out the provisions of this chapter.

          
          

15. Florida Administrative Code Rule 61C-1.001 provides in pertinent part:

    Except when otherwise defined in this rule, the definitions provided in paragraph 1- 201.10(B), Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003) shall apply to Chapters 61C-1, 61C-3 and 61C-4, F.A.C. In addition, the following definitions apply to Chapters 61C-1, 61C-3 and 61C-4, F.A.C.:

    
    

    * * *

    
    

    (14) Food Code - This term is used in Chapters 61C-1, 61C-3, and 61C-4, F.A.C., means 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), herein adopted by reference. A copy of the Food Code, as adopted by the division, is available on the division's Internet website www.MyFloridaLicense.com/dbpr/hr. A copy of the entire Food Code is available on the

    U.S. Food and Drug Administration Internet

    
    

    website. Printed copies of the entire Food Code are available through the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.

    
    

16. Florida Administrative Code Rule 61C-4.023 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 by the division. 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. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. . . .

       
       

17. The evidence is clear and convincing and demonstrates that the Restaurant violated Florida Administrative Code Rule 61C-4.023(1) in that the Restaurant had no certified food manager. Furthermore, the evidence is clear and convincing and demonstrates that the violation was a critical violation.

18. Section 509.049, Florida Statutes (2009), provides in pertinent part:

    1. The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees

       
       

       who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the division.

       
       

       * * *

       
       

       (5) It shall be the duty of each public food service establishment to provide training in accordance with the described rule to all food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within

       60 days after employment. Certification pursuant to this section shall remain valid for 3 years. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the training occurred, and the approved food safety training program used.

       
       

19. The evidence is clear and convincing and demonstrates that the Restaurant violated Section 509.049, Florida Statutes (2009), in that the Restaurant failed to provide proof of required employee training. Furthermore, the evidence is clear and convincing and demonstrates that the violation was a critical violation.

    
    

20. Food Code Rule 6-301.12 provides in pertinent part:

    
    

    Each hand washing lavatory or group of adjacent lavatories shall be provided with:

    1. Individual, disposable towels;

    2. A continuous towel system that supplies the user with a clean towel; or

    3. A heated-air hand drying device.

    
    

21. The evidence is clear and convincing and demonstrates that the Restaurant violated Food Code Rule 6-301.12 in that the hand washing sink was lacking the proper hand drying provisions. Furthermore, the evidence is clear and convincing and demonstrates that the violation was a critical violation.

22. Section 509.241, Florida Statutes (2009), provides in pertinent part:

    (2) Application for license. --Each person who plans to open a public lodging establishment or a public food service establishment shall apply for and receive a license from the division prior to the commencement of operation. . . .

    
    

23. The evidence is clear and convincing and demonstrates that the Restaurant violated Section 509.241(2), Florida Statutes (2009), in that the new owner of the Restaurant failed to submit a change of ownership application for the Restaurant. Furthermore, the evidence is clear and convincing and demonstrates that the violation was a critical violation.

24. As to penalty, Section 509.261, Florida Statutes (2009), 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.

       
       

25. Florida Administrative Code Rule 61C-1.005 provides in pertinent part:

    1. This rule sets out the disciplinary guidelines for imposing penalties upon public lodging establishments and public food service establishments under the jurisdiction of the Division of Hotels and Restaurants (division) in administrative actions. The purpose of this rule is to notify licensees of the standard range of penalties routinely imposed unless the division finds it necessary to deviate from the standard penalties for the reasons stated within this rule.

       
       

       * * *

       
       

       1. Definitions.

          
          

          (a) "Critical violation" means a violation determined by the division to pose a significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in DBPR Form HR-5022-014 Lodging Inspection Report or DBPR Form HR-5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not otherwise identified in this rule.

          
          

          * * *

          
          

          (c) "First offense" means a violation of any law subject to penalty under Chapter 509, F.S., when no disciplinary Final Orders involving the same licensee have been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued.

          
          

          * * *

          
          

       2. Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under Chapter 509, F.S. Any violation requiring an emergency suspension or closure, as authorized by Chapter 509, F.S., shall be assessed at the highest allowable fine amount.

          
          

          * * *

          
          

          (b) Critical violation. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

          
          

          1. 1st offense - Administrative fine of

          $250 to $500.

          
          

          * * *

          
          

          (e) Operating a public lodging establishment or public food service establishment without a license or with a license expired for more than 60 days.

          Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.

          
          

          1. 1st offense - Administrative fine of

          $250 to $500.

          
          

          * * *

          
          

       3. Aggravating or mitigating factors.

          
          

          The division may deviate from the standard penalties in paragraphs (a) through (h) of subsection (6) above, based upon the consideration of aggravating or mitigating factors present in a specific case. The division shall consider the following aggravating and mitigating factors in determining the appropriate disciplinary action to be imposed and in deviating from the standard penalties:

          
          

          1. Aggravating factors.

             1. Possible danger to the public.

             2. Length of time since the violation occurred.

             3. Number of violations in the current administrative complaint.

             4. Severity of violations in the current administrative complaint.

             5. Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.

             6. Number of Emergency Orders of Suspension or Closure against the same licensee filed with the Agency Clerk by the division within the 12 months preceding the date the current administrative complaint was issued.

             7. The current administrative complaint

                
                

                alleges a violation for obstruction of division personnel.

             8. The licensee was prosecuted by another authority having jurisdiction resulting in a violation of Chapter 509, F.S., including but not limited to cases based on discrimination, civil rights violations, and criminal violations.

             9. Actual physical damage or bodily harm caused to persons or property by the violation.

             10. Any other aggravating factors, as relevant under the circumstances.

             
             

          2. Mitigating factors.

       1. Violation resulted from an act of God or nature.

       2. Length of time since the violation occurred.

       3. Length of time the licensee has been in operation.

       4. Effect of the penalty upon the licensee's livelihood.

       5. Attempts by the licensee to correct the violation.

       6. Number of previous inspections without violations of Chapter 509, F.S., and the rules adopted pursuant thereto.

       7. Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.

       8. Any other mitigating factors, as relevant under the circumstances. (emphasis in original)

       
       

26. The Department suggests an administrative fine in the amount of $1,875.00. The undersigned considers the suggested administrative fine reasonable under the circumstances of 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:

1. Finding that Five Star Haitian Restaurant violated Florida Administrative Code 61C-4.023(1), Section 509.049, Florida Statutes (2009), Food Code Rule 6-301.12, and Section 509.241(2), Florida Statutes (2009); and

2. Imposing an administrative fine in the amount of

$1,875.00 against Five Star Haitian Restaurant.

DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 6th day of December, 2010.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Louise Wilhite-St Laurent, Qualified Representative Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Elise Benabe

Five Star Haitian Restaurant 762 Northwest 183rd Street Miami Gardens, Florida 33169

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Louise Wilhite-St Laurent Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-220

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: 10-008902

Orders for Case No: 10-008902