STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-10452

)

NO NAME PUB, )

)

Respondent. )

)

RECOMMENDED ORDER

Errol H. Powell, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee and Key West, Florida, on February 25, 2011. Due to the unavailability of Judge Powell, Administrative Law Judge Robert E. Meale has assumed responsibility for this case, pursuant to section 120.57(1)(a), Florida Statutes.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Division of Hotels and Restaurants

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Douglas Leps, pro se

Post Office Box 430818

Big Pine Key, Florida 33043 STATEMENT OF THE ISSUE

The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 5, 2010, Petitioner alleged that Respondent was licensed by the Division of Hotels and Restaurants to operate a public food establishment on Watson Boulevard in Big Pine Key. The Administrative Complaint cites four violations: 1) repeated failure to provide the required consumer advisory for food that is raw, undercooked, or not otherwise processed to eliminate pathogens;

2) repeated use of working food containers without label as to contents; 3) repeated failure to provide hot water at employee hand wash sink; and 4) repeated failure to provide handwashing cleanser at handwashing lavatory.

Respondent requested a hearing.

At the hearing, Petitioner called three witnesses and offered into evidence three exhibits, which were all admitted. Respondent called one witness.

The court reporter filed the transcript on March 10, 2011.

Petitioner filed its proposed recommended order on April 11,

2011.

FINDINGS OF FACT

1. No Name Pub holds a Permanent Food Service license

   
   

   5400281, for operation of a public food establishment on Watson Boulevard, Big Pine Key, Florida.

2. On April 16, 2009, at 11:58 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. The inspector cited the following violations, among others: 1) failure to provide the required consumer advisory for food that is raw, undercooked, or not otherwise processed to eliminate pathogens; 2) use of working food containers without label as to contents; 3) failure to provide hot water at employee hand wash sink; and 4) failure to provide handwashing cleanser at handwashing lavatory. At the time of this inspection, Respondent corrected the first, third, and fourth violations in the presence of the inspector.

3. On December 7, 2009, the inspector performed another routine inspection of the public food establishment. Among other things, the inspector observed the recurrence or continuation of the four violations described in the preceding paragraph.

   
   

4. The four violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause foodborne illness.

5. Respondent's testimony, even if credited, does not rebut the violations with the exception of the first violation-- the lack of a consumer advisory. Twice, a trained inspector could not find such a warning. The testimony offered by Petitioner is credited over that offered by Respondent.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2011).

7. Florida Administrative Code Rule 61C-1.001(14) provides:

   Food Code – This term as 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. . . .

   
   

8. Food Code Rule 3-603.11 provides, in relevant part:

   
   

   Except as specified in ¶ 3-401.11(C) and Subparagraph 3-401.11(D)(3) and under

   ¶ 3-801.11(D), if an animal FOOD such as beef, EGGS, FISH, lamb, milk, pork, POULTRY, or shellfish that is raw, undercooked, or not otherwise processed to eliminate pathogens is offered in a ready-to-eat form as a deli, menu, vended, or other item; or as a raw ingredient in another READY-TO-EAT FOOD, the PERMIT HOLDER shall inform CONSUMERS by brochures, deli case or menu advisories, label statements, table tents, placards, or other effective written means of the significantly increased RISK associated with certain especially vulnerable CONSUMERS eating such FOODS in raw or undercooked form.

   
   

9. Food Code Rule 3-302.12 requires:

   
   

   Working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD except that containers holding FOOD that can be readily and unmistakably recognized such as dry pasta need not be identified.

   
   

10. Food Code Rule 5-202.12(A) and (B) states:

    
    

    1. A handwashing lavatory shall be equipped to provide water at a temperature of at least 38°C (100°F) through a mixing valve or combination faucet.

    2. A steam mixing valve may not be used at a handwashing lavatory.

       
       

11. Food Code Rule 6-301.11 provides: "Each handwashing lavatory or group of 2 adjacent lavatories shall be provided with a supply of hand cleaning liquid, powder, or bar soap. "

    
    

12. Petitioner must prove the material allegations by clear and convincing evidence. Dep't of Bank. and Fin. v.

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

13. Section 509.261, Florida Statutes, provides:

    
    

    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.

    
    

14. Petitioner has proved the four violations cited in the Administrative Complaint, and they are all critical violations. Petitioner seeks a $1600 administrative fine in its proposed recommended order.

RECOMMENDATION

It is

RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the four violations identified above and imposing an administrative fine of $1600 on Respondent.

DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 July, 2011.

COPIES FURNISHED:

William L. Veach, Director Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Layne Smith, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Douglas P. Leps No Name Pub

Post Office Box 430818

Big Pine Key, Florida 33043

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: 10-010452

Orders for Case No: 10-010452