STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 11-0436

)

MIAMI SUBS GRILL, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 9, 2011, by video teleconference between Lauderdale Lakes and Tallahassee, Florida, before Administrative Law Judge Claude

B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Mikiel Singh, Qualified Representative Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

For Respondent: Ana Rosa Castro, Manager

Miami Subs Grille

5001 North University Drive Lauderhill, Florida 33351

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is a duly licensed restaurant. By Administrative Complaint dated March 8, 2010, Petitioner alleged that an inspection on December 15, 2009, and a callback inspection on February 24, 2010, revealed certain critical violations of the States Food and Drug Administration Food Code (Food Code). The Food Code has been adopted by Florida Administrative Code Rule 61C-1.001.

Count 1 of the Administrative Complaint alleged that Respondent violated Food Code Rule 3-501.16(A) by the manner in which it stored cold food.

Count 2 alleged that Respondent violated Food Code Rule 6-

301.14 and Florida Administrative Code Rule 61C-1.004(2)(c) by failing to have a hand washing sign at the hand sink used by employees.

Count 3 alleged that Respondent violated Food Code Rule 6- 102.11, by having an unlabeled spray bottle in the "dishroom" [sic].

Count 4 alleged that Respondent violated section 509.049, Florida Statutes,1 by failing to provide proof that all employees had undergone required training.

Respondent timely requested a formal administrative hearing to challenge the allegations of the Administrative Complaint, the matter was referred to DOAH, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Michele Schneider and Terrence Diehl, both of whom are Sanitation and Safety Specialists employed by Petitioner.

Respondent offered four sequentially-numbered Exhibits, each of which was admitted into evidence. At the request of Petitioner, official recognition was taken of sections 509.032(6) and 509.049; Florida Administrative Code Rules 61C-1.001(14), 61C- 1.005, 61C-1.004(2); and Food Code Rules 3-501.16(A), 6-301.14, and 7-102.11.

Respondent presented the testimony of Ana Rosa Castro (the manager of the subject restaurant), but offered no exhibits.

A Transcript of the proceedings, consisting of one volume, was filed on May 26, 2011. Petitioner filed a Proposed Recommended Order (PRO), which has been duly considered by the undersigned in the preparation of this Recommended Order.

Respondent did not file a PRO.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

   
   

   was a restaurant subject to Petitioner's regulation. That regulation required Petitioner to comply with all relevant provisions set forth in Florida Statutes, Florida Administrative Code, and the Food Code. Petitioner's license number is 1614578.

2. Respondent's restaurant is located at 5001 North University Drive, Lauderhill, Florida (the subject premises). At the times relevant to this proceeding, Ana Rosa Castro was the manager of the restaurant.

3. Two inspections of the subject premises are relevant to this proceeding. The first inspection was a routine inspection on December 15, 2009 (the routine inspection). Michele Schneider conducted the routine inspection. A callback inspection was conducted on February 24, 2010 (the callback inspection). Terrence Diehl and Tatiana Joy conducted the callback inspection.

4. Ms. Schneider and Mr. Diehl are experienced and properly trained to conduct inspections of food service facilities to ensure compliance with applicable regulations.

5. For both inspections, an inspector prepared a report on a personal data assistant, printed the report at the establishment, and provided a copy of the report to the person in charge prior to leaving the establishment. The inspectors discussed the report with Ms. Castro and explained the reasons

   
   

   the violations were cited. The routine inspection report and the callback inspection report were admitted into evidence as Petitioner's exhibits 2 and 3, respectively.

6. Ms. Schneider's report noted multiple violations, including the four violations that are issue in this proceeding. Ms. Schneider's report contained a warning that required Respondent to correct each cited violation on or before February 20, 2010, at 8:00 a.m. Ms. Schneider and Ms. Castro signed the routine inspection report.

7. Mr. Diehl and Ms. Joy performed the callback inspection on February 24, 2010. Ms. Joy, working under Mr. Diehl's supervision,2 prepared the callback inspection report setting forth the findings she and Mr. Diehl made. Ms. Joy and

   Mr. Diehl reviewed the findings with Ms. Castro and explained to her the reasons for the violations identified in the report.

   Ms. Joy, Mr. Diehl, and Ms. Castro signed the callback inspection report. The four violations at issue in this proceeding had not been corrected following the routine inspection.

8. Violations of the Food Code are classified as either critical or non-critical. Critical violations are violations that are likely to result in a food-borne illness or an environmental health hazard. Non-critical are violations of the Food Code that have not been classified as critical, and are

   
   

   less likely to contribute to a food-borne illness or an environmental health hazard. Each of the four alleged violations in this proceeding is designated a critical violation.3

9. Food Code Rule 3-501.16(A) requires that except in circumstances inapplicable to this proceeding, food shall be maintained at or below 41 degrees Fahrenheit. On December 15, 2009, and on February 24, 2010, the cook-line reach-in cooler was not maintaining potentially hazardous food at or below 41 degrees Fahrenheit. This is a critical violation because foods that are maintained above 41 degrees become a potential danger for the growth of bacteria that could harm a consumer of the food.

10. Food Code Rule 6-301.14 requires a food establishment to have a sign or poster at a sink used by food service employees notifying the employees to wash their hands. There was no such signage posted during the routine inspection or the callback inspection. This is a critical violation because employee hand-washing is a basic requirement for good hygienic practices, and the sign reminds employees of the requirement that they wash their hands before returning to work.

11. Food Code Rule 7-102.11 requires that "working containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies shall be

    
    

    clearly and individually indentified with the common name of the material." The routine inspection noted the following as a violation: "[o]bserved unlabeled spray bottle dishroom [sic]." On the callback inspection, Mr. Diehl observed several unlabeled bottles that had liquids in them. There was no evidence as to what type liquids were in the spray bottles. Specifically, there was no evidence that the unlabeled spray bottles had to be labeled because they were "containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies."

12. Pursuant to section 509.049(5), Respondent was required provide training of its employees and was required to provide proof of such training to an inspector. On December 15, 2009, Ms. Castro could not provide proof to Ms. Schneider that her employees had been trained. On February 24, 2010,

    Ms. Castro could not provide proof to Ms. Joy and Mr. Diehl that her employees had been trained. The testimony of Mr. Diehl established that this failure is a critical violation because untrained employees may not be aware of the importance of proper hygiene and proper food handling, which can result in contaminated food and the exposure of the consumer to food-borne illness.

13. On June 16, 2009, Petitioner filed an Administrative Complaint against Respondent in case number 2009032247. That

    
    

    Administrative Complaint contained five alleged violations of the Food Code, at least one of which was a critical violation. The alleged violations were resolved by the entry of a Stipulation and Consent Order filed July 21, 2009. By that action, Respondent agreed to pay an administrative fine in the amount of $1,200.00.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1).

15. Section 509.032 delegates to Petitioner the authority to "carry out all of the provisions of [chapter 509] and all other laws relating to the inspection or regulation of . . . public food service establishments for the purpose of safeguarding the public health, safety, and welfare."

16. Subsection 509.049(8)(a) provides, in relevant part, as follows:

    1. The following are violations for which the division may impose administrative fines of up to $1,000 on a public food service establishment . . .:

       
       

       1. Failure of a public food service establishment to provide proof of training pursuant to subsection (5) upon request by the division . . .

          
          

17. Section 509.261(1) provides that any public food services establishment that has operated or is operating in

    
    

    violation of chapter 509, Florida Statutes, or the rules promulgated thereunder, is subject to license revocation; license suspension; imposition of administrative fines not to exceed $1,000.00 per offense; and mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program (established pursuant to section 509.302).4

18. Petitioner bears the burden of proving that the licensee committed the violations alleged in the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Dep't of Agric. & Consumer Servs., 550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994).

19. Petitioner met its burden of establishing by clear and convincing evidence that Respondent committed the violations alleged in paragraphs 1, 2, and 4 of the Administrative Complaint. Accordingly, disciplinary action may be taken against Respondent pursuant to sections 509.049(8)(a) and

    509.261. Petitioner failed to prove that the unlabeled spray bottles contained the type liquid that required labeling, which is a fatal defect in its prosecution of the violation alleged in paragraph 3.

    
    

20. Florida Administrative Code Rule 61C-1.005(6)(b) contains disciplinary guidelines relevant to this proceeding. For a repeat violation of a critical violation, the recommended penalty is the imposition of an administrative fine in the range

$500.00 to $1,000.00. The recommended penalties that follow are within the range of penalties Petitioner is authorized to impose and within the disciplinary guideline. In determining the penalty that should be imposed, the undersigned has considered that the violations of paragraphs 1, 2, and 4 are critical violations and that Respondent has been previously disciplined.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violation alleged in paragraph 3 of the Administrative Complaint. It is further RECOMMENDED that the final order find Respondent guilty of the violations alleged in paragraphs 1, 2, and 4 of the Administrative Complaint. It is further RECOMMENDED that Administrative Fines be imposed against Respondent in the amount of $600.00 for each of the three violations, for a total fine of

$1,800.00.

DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 24th day of June, 2011.

ENDNOTES

1 All statutory references are to Florida Statutes (2010).

2 As a Senior Sanitation and Safety Specialist, Mr. Diehl's responsibilities include training newly hired inspectors.

3 The definition of a critical violation, taken from Mr. Diehl's testimony, is consistent with the definition set forth in Florida Administrative Code Rule 61C-1.005(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 [sic] 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 [Florida Administrative Code Rule 61C- 1.0002(8)], and not otherwise identified in this rule.

4 Petitioner's Proposed Recommended Order does not recommend that Respondent's representative be required to attend this program at Respondent's expense. Consequently, the undersigned's recommendation does not contain the imposition of that penalty.

COPIES FURNISHED:

Layne Smith, 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 Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Mikiel Singh, Qualified Representative Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

Ana Rosa Castro, Manager Miami Subs Grill

5001 North University Drive Lauderhill, Florida 33351

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: 11-000436

Orders for Case No: 11-000436