STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS

AND RESTAURANTS,

Petitioner,

vs.

THE DOCK,

Respondent.

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) Case No. 11-3985

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RECOMMENDED ORDER

A hearing was held pursuant to notice, on September 26, 2011, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, via video teleconferencing with sites in Pensacola and Tallahassee, Florida.

APPEARANCES

For Petitioner: Garnett Chisenhall, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1015

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate penalty that should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint alleging violations of the provisions of chapter 509, Florida Statutes, or the applicable rules governing the operation of public food establishments.

Respondent disputed the allegations in the Administrative Complaint and petitioned for a formal administrative hearing. The case was referred to the Division of Administrative Hearings on or about August 9, 2011. A formal hearing was set for September 26, 2011. The Notice of Hearing was mailed to the parties at their addresses of record. The hearing took place as scheduled.

At the commencement of the hearing, the Petitioner's counsel entered his appearance, but no appearance was made on behalf of Respondent. The hearing was recessed for approximately 30 minutes to give a representative of Respondent an opportunity to appear, but no appearance was made on behalf of Respondent.

At hearing, Petitioner presented testimony of one witness, Russell Crowley. Petitioner's Exhibits numbered 1 through 4 were admitted into evidence. Official Recognition was requested of section 509.032(6) Florida Statutes, Florida Administrative Code Rules 61C-4.001(14), 61C-1.005, and 61C-1.004(1)(d) and

pertinent portions of the United States Food and Drug Administration's Food Code (Food Code). The request was granted.

A Transcript consisting of one volume was filed on October 27, 2011. Petitioner timely filed a Proposed

Recommended Order, which has been considered in the preparation of this Recommended Order. Respondent did not file a post- hearing submission. References to Florida Statutes are to the 2010 version, unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is the state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to section 20.165 and chapter 509, Florida Statutes.

2. Respondent is an eating establishment located in Pensacola, Florida. Respondent was issued license number 2702996 as a public food establishment by the Division.

   
   

3. Critical violations are those violations that, if not corrected, could result in a food-borne illness outbreak. Non- critical violations are all other violations.

4. Russell Crowley has been employed by the Division for approximately 13 years and is a senior sanitation and safety specialist. Prior to working for the Division, he served in the United States Air Force where he performed health inspections. Mr. Crowley has received training in laws and rules regarding public food service and lodging, and continues to receive continuing education training on a monthly basis in this area. Mr. Crowley performs approximately 1,000 to 1,200 inspections annually.

5. On April 8, 2010, Mr. Crowley conducted a food service inspection of Respondent's premises. During the inspection, Mr. Crowley prepared, signed, and issued an inspection report setting forth the violations he observed. Bruce Parris, Respondent's general manager, was present and signed the inspection report indicating receipt.

6. Mr. Crowley informed the general manager about the violations he found, noted the violations on the inspection report, and notified Mr. Parris that the violations must be corrected by June 8, 2010.

   
   

7. On June 24, 2010, Mr. Crowley performed a callback inspection of Respondent. During that inspection, he prepared and signed a callback inspection report indicating that some of the violations noted on the April 8, 2010, inspection report had not been corrected. Stephen Hughes, identified as Respondent's manager on the callback inspection report, signed for the receipt of the callback inspection report.

8. On April 8, 2010, and again on June 24, 2010,

   
   

   Mr. Crowley observed cold food held at greater than 41 degrees Fahrenheit. This is a critical violation because allowing the temperature of cold food to rise above 41 degrees allows bacteria to multiply and creates microbes that can result in food borne illness.

9. On April 8, 2010, and again on June 24, 2010,

   
   

   Mr. Crowley observed a cutting board that was grooved and pitted. This is a non-critical violation. However, when a cutting board is scored with deep cuts, bacteria grow in the cutting board. Any product that is placed on the cutting board can become contaminated. This is especially harmful when products are ready-to-eat foods.

10. On April 8, 2010, and again on June 24, 2010,

    
    

    Mr. Crowley observed soil buildup inside an ice bin and soil buildup in reach-in cooler gaskets. This is a critical violation because soil buildup, which is usually mildew or mold,

    
    

    inside an ice machine or in reach-in cooler gaskets can contaminate the ice.

11. On April 8, 2010, and again on June 24, 2010,

    
    

    Mr. Crowley observed evidence of mop cleaning wastewater dumped on the ground. This is a critical violation because it allows insect infestation and microbe growth on the ground, potentially leading to disease.

12. On April 8, 2010, and again on June 24, 2010,

    
    

    Mr. Crowley observed that Respondent had no mop sink installed. This is a non-critical violation.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569, 120.57(1), and 120.60(5), Fla. Stat. (2011).

    
    

14. The Division is the state agency charged with regulating public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes.

15. Pursuant to section 509.261(1), Florida Statutes, the Division may impose penalties for violations of chapter 509, Florida Statutes, including an administrative fine of no more than $1,000 for each separate offense, attendance at personal expense at an educational program sponsored by the Hospitality Education Program, and the suspension or revocation of Respondent's license.

    
    

16. Because the Department seeks the imposition of an administrative fine, the Department has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaint. See, e.g., Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

17. Section 509.032(6) provides that the Division of Hotels and Restaurants shall adopt such rules as are necessary to carry out the provisions of chapter 509. Paragraph 1- 201.10(B) and chapters 2, 3, 4, 5, 6 and 7 of the United States Food and Drug Administration's Food Code (Food Code) have been incorporated by reference into the Department's rules governing public food establishments. Fla. Admin. Code R. 61C-1.001(14).

18. Through the Administrative Complaint, Respondent is alleged to have violated the following provisions of the Food Code, which read in pertinent part:

    3-501.16(A)

    
    

    1. Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under Section 3- 501.19, and except as specified in paragraph

    2. of this Section, potentially hazardous food shall be maintained. . . at a temperature specified in the following: (A) 41 degrees Fahrenheit or less.

       
       

       * * *

       
       

       4-501.12

       
       

       Cutting surfaces. Surfaces such as cutting blocks and boards that are subject to

       
       

       scratching and scoring shall be resurfaced if they can no longer be effectively cleaned and sanitized, or discarded if they are not capable of being resurfaced.

       
       

       * * *

       
       

       4-602.11(E)

       
       

       Except when dry cleaning methods are used as specified under Section 4-603.11, surfaces of utensils and equipment contacting food that is not potentially hazardous shall be cleaned: (1) at any time when contamination may have occurred; (2) at least every 24 hours for iced tea dispensers and consumer self-service utensils such as tongs, scoops, or ladles; (3) before restocking consumer self-service equipment and utensils such as condiment dispensers and display containers;

       (4) in equipment such as ice bins and beverage dispensing nozzles and enclosed components of equipment such as ice makers, cooking oil storage tanks and distribution lines, beverage and syrup dispensing lines or tubes, coffee bean grinders, and water vending equipment; (A) at a frequency specified by the manufacturer, or (B) absent manufacturer specifications, at a frequency necessary to preclude accumulation of soil or mold.

       
       

       * * *

       
       

       6-306.10

       
       

       Availability. A service sink or curbed cleaning facility shall be provided as specified under Chapter 5-203.13 FC; and 5-

       203.12 FC: at least 1 service sink or 1 curbed cleaning facility equipped with a floor drain shall be provided and conveniently located for the cleaning of mops or similar wet floor cleaning tools and for the disposal of mop water and similar liquid waste.

       
       

19. The Division proved by clear and convincing evidence that Respondent violated rule 3-501.16(A), Food Code, in that Mr. Crowley observed potentially hazardous cold food held at greater than 41 degrees Fahrenheit.

20. The Division proved by clear and convincing evidence that Respondent violated rule 4-501.12, Food Code, in that Mr. Crowley observed cutting boards that were grooved and pitted.

21. The Division proved by clear and convincing evidence that Respondent violated rule 4-602.11(E), Food Code, in that Mr. Crowley observed soil buildup inside an ice bin and in reach-in cooler gaskets.

22. Through the Administrative Complaint, Respondent is alleged to have violated Florida Administrative Code Rule 61C- 1.004(1)(d), which requires that all sewage be disposed of in a public sewerage system in accordance with applicable rules.

23. The Division proved by clear and convincing evidence that Respondent violated rule 61C-1.004(1)(d) in that

    Mr. Crowley observed mop cleaning wastewater dumped on the ground of Respondent's premises.

24. The Division met its burden of proving that Respondent violated rule 6-306.10, Food Code, in that Respondent had no mop sink installed in the establishment.

    
    

25. Respondent was previously disciplined for violations of the Food Code and laws subject to penalty under chapter 509, Florida Statutes. As a Final Order was issued by the Division within the 24 months preceding the date the Administrative Complaint, the violations found herein constitute a second offense.

26. In its Proposed Recommended Order, the Division proposes the imposition of a fine of $500 for each critical violation and $250 for each non-critical violation for a total fine of $2,000. Florida Administrative Code Rule 61C-1.005(6) sets forth the penalty guidelines to be imposed against licensees for violations of the applicable statutes and rules. The recommended penalties are consistent with these guidelines.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That the Division enter a final order which confirms the violations found, and imposes an administrative fine in the amount of $2,000 due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the Final Order is filed with the Agency Clerk.

DONE AND ENTERED this 29th day of November, 2011, in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros 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 29th day of November, 2011.

COPIES FURNISHED:

Garnett W. Chisenhall, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32388-1015

Bruce Parris The Dock

Post Office Box 57809

New Orleans, Louisiana 70157

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Layne Smith, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 11-003985

Orders for Case No: 11-003985