STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 11-2599

)

GIGI'S CAFÉ, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on June 27, 2011.

Counsel for Petitioner attended the hearing in Tallahassee. Petitioner's witness and the court reporter attended the hearing in Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Attorney, Division of Hotels and Restaurants

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: no appearance

STATEMENT OF THE ISSUES

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 May 7, 2010, Petitioner alleged that Respondent was licensed by the Division of Hotels and Restaurants to operate a public food establishment at 3585 Northeast 207th Street, Miami. The Administrative Complaint cites eight violations: 1) potentially hazardous food was held at greater-than-41-degrees Fahrenheit; 2) no chemical test kit was provided when using chemical sanitizer at three-compartment sink; 3) the dish-machine chlorine sanitizer was not at proper minimum strength; 4) food-contact surfaces and utensils were not sanitized properly after cleaning; 5) the interior of microwave was soiled; 6) the hand-wash sink lacked proper hand-drying provisions; 7) a manager lacked proof of food manager certification; and 8) proof of required employee training was lacking.

At the hearing, Respondent dropped the first, seventh, and eighth charges. This recommended order therefore will not address these charges.

Respondent requested a hearing.

At the hearing, Petitioner called one witness and offered into evidence three exhibits: Petitioner Exhibits 1-3.

Petitioner did not order a transcript.

FINDINGS OF FACT

1. Gigi's Restaurant, LLC, holds Permanent Food Service license 2331011, which authorizes the operation of a public food establishment at 3585 Northeast 207th Street in Aventura, Florida, and expires October 1, 2011. Respondent last renewed its license on September 21, 2010.

2. On January 13, 2010, at 11:29 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. At the time, Respondent's license had expired. The inspector also observed, among other things, the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate-strength dishmachine sanitizer; not-sanitized- properly-after-cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three-compartment sink.

3. The inspector notified Respondent that a reinspection would take place on March 13, 2010, at 11:30 a.m.

4. On April 21, 2010, the inspector performed a reinspection of the public food establishment. At the time, Respondent still had not renewed its license. The inspector

   
   

   observed the recurrence or continuation of the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate- strength dishmachine sanitizer; not-sanitized-properly-after- cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three- compartment sink.

5. The five remaining violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause food-borne illness.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2010).

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 4-302.14 requires: "A test kit or other device that accurately measures the concentration in mg/L of SANITIZING solutions shall be provided."

9. Food Code Rule 4-501.114(A) provides:

   
   

   A chemical sanitizer used in a SANITIZING solution for a manual or mechanical operation at exposure times specified under

   ¶ 4-703.11(C) shall be listed in 21 CFR 178.1010 (579 KB) SANITIZING solutions,

   shall be used in accordance with the EPA- approved manufacturer's label use instructions, and shall be used as follows:

   
   

   (A) A chlorine solution shall have a minimum temperature based on the concentration and pH of the solution as listed in the following chart;

   
   

   [Chart omitted. Requires concentrations of 25-100 mg/L based on minimum temperatures and alkalinity of water.]

   
   

10. Food Code Rule 4-602.12 provides:

    
    

    1. The FOOD-CONTACT SURFACES of cooking and baking EQUIPMENT shall be cleaned at least every 24 hours. This section does not apply to hot oil cooking and filtering EQUIPMENT if it is cleaned as specified in Subparagraph 4-602.11(D)(6).

       
       

    2. The cavities and door seals of microwave ovens shall be cleaned at least every 24 hours by using the manufacturer's recommended cleaning procedure.

       
       

11. Food Code Rule 6-301.12 requires:

    
    

    Each handwashing 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.

       
       

12. Petitioner must prove the material allegations by clear and convincing evidence. Dep’t. of Banking & Fin. v. Osborne Stern & Company, 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 five remaining violations cited in the Administrative Complaint. These are serious offenses that jeopardize public health. Although they might not normally warrant revocation, based on the tardy renewal of its

license and failure even to appear at the hearing, Respondent has not demonstrated the necessary commitment to food safety that would warrant a penalty short of revocation.

RECOMMENDATION

It is

RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the five violations identified above and revoking the public food establishment license of Respondent.

DONE AND ENTERED this 8th 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 8th day of July, 2011.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Arner Gigi Gigi’s Cafe

3585 Northeast 207 Street, No.C302

Miami, Florida 33180

Layne Smith, General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

William L. Veach, Director Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

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: 11-002599

Orders for Case No: 11-002599