STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

EL CEVICHE DEL REY,

Respondent.

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) Case No. 12-3870

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on February 27, 2013, by video teleconference at sites in Miami and Tallahassee, Florida, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings, pursuant to the authority set forth in sections 120.569 and 120.57(1),

Florida Statutes.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding are whether Respondent committed the violations alleged in the Administrative Complaint dated August 31, 2012, and, if so, what disciplinary action should be taken against Respondent.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation, Division of Hotels and Restaurants ("Division" or "Petitioner"), alleged in an Administrative Complaint dated August 31, 2012, that El Ceviche Del Rey ("Respondent") violated standards governing public food service establishments. Respondent disputed the allegations and requested an evidentiary hearing pursuant to section 120.57(1), Florida Statutes, through an Election of Rights form.

On November 29, 2012, the case was referred to the Division of Administrative Hearings and assigned to the undersigned. The hearing was conducted on February 27, 2013, as scheduled.

At hearing, Petitioner presented the testimony of one witness, Gladys Diaz, Sanitation and Safety Specialist.

Petitioner's Exhibits one through three were offered and admitted into evidence. Respondent did not attend the hearing or offer any exhibits.

The undersigned took judicial notice of section 509.032(6); Florida Administrative Code Rules 61C-1.001.14 and 61C-1.005; and Food Code Rule 5-103.12.

The proceeding was recorded and transcribed. The Transcript of the final hearing was filed with the Division of Administrative Hearings on March 18, 2013. Petitioner submitted a timely Proposed Recommended Order, which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes.

2. At all times material to this case, Respondent was a restaurant, El Ceviche Del Rey, located at 9947 Southwest 142 Avenue, Miami, Florida 33186, holding food service license number 2324027.

3. Critical violations are those violations that are more likely to result in food-borne illness if not corrected. Non- critical violations are those violations that, if not corrected, are less likely to contribute to food-borne illness.

4. Gladys Diaz ("Inspector Diaz") is employed by the Department as a Sanitation Safety Specialist. Inspector Diaz has worked for the Department for approximately one and one-half years. Prior to working for the Department, Inspector Diaz

   
   

   managed a McDonalds franchise for 18 years. Upon gaining employment with the Department, Inspector Diaz received training in laws and rules pertaining to the public food service and public lodging establishments. She is a Certified Food Manager and continues to receive monthly training in the area of food management.

5. On August 29, 2012, Inspector Diaz performed a routine food service inspection at El Ceviche Del Rey. During the inspection, Inspector Diaz observed El Ceviche Del Rey opened for business but operating with no running water.

6. Inspector Diaz prepared and signed an inspection report setting forth the violation she encountered during her inspection. Inspector Diaz prepared the inspection report on- site at El Ceviche Del Rey.

7. The inspection report was signed by Inspector Diaz and a representative of the El Ceviche Del Rey. Inspector Diaz specifically noted the violation as being out of compliance and stated, "At the time of the inspection, there was no water at establishment."

8. The Division determined that operating a food service establishment without water was a critical violation because an establishment cannot clean utensils and employees cannot wash their hands without water. Unclean utensils and dirty hands can lead to contamination of food. The Division closed the

   
   

   restaurant with an Emergency Order of suspension of license for the critical violation.

9. On or about August 31, 2012, the Division issued an Administrative Complaint against El Ceviche Del Rey for operating a food service establishment with no water at the establishment in violation of Food Code Rule 5-103.12.

10. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed.

11. Additional evidence introduced at hearing showed that El Ceviche Del Rey received previous discipline by Final Order in case 2011-040929, entered on December 7, 2011.

    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.

13. Petitioner has jurisdiction over the operation of public lodging establishments and public food service establishments, pursuant to section 20.165 and chapter 509.

14. The Division is authorized to take disciplinary action against the holder of such a license for operating in violation of chapter 509, or the rules implementing that chapter.

15. In a proceeding, such as this one where the Division

    
    

    seeks to discipline Respondent's license and/or to impose an administrative fine, the Division has the burden of proving the allegations charged in the Administrative Complaint against the Respondent by clear and convincing evidence. Dep't of Banking and Fin. Div. of Sec. and Investor Prot. v. Osborne Stern and

    Co., 670 So. 2d 932 (Fla. 1996) (citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. &

    Prof'l Reg., 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

    
    

16. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Id.

    
    

17. Section 509.032(6) provides that the Division 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 provision of the Food Code, which reads in pertinent part:

    5-103.12

    Pressure. Water under pressure shall be provided to all fixtures, equipment, and non-food equipment that are required to use water except that water supplied as

    specified under [paragraphs] 5-104.12(A) and

    (B) to a temporary food establishment or in response to a temporary interruption of a water supply need not be under pressure.

    
    

19. In this case, the Division proved by clear and convincing evidence that Respondent violated Food Code Rule 5-

    103.12. by having no water at the establishment. Furthermore, the evidence is clear and convincing and demonstrates that the violation was a critical violation.

20. As to penalty, section 509.261, Florida Statutes, 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.

          
          

21. 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.

       
       

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       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.

          
          

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          1. "Second offense," and "second and any subsequent offense" mean a violation of any law subject to penalty under Chapter 509, F.S., after one disciplinary Final Order involving the same licensee has been filed with the Agency Clerk within the 24 months preceding the date the current

          
          

          administrative complaint is issued, even if the current violation is not the same as the previous violation.

          
          

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       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.

       
       

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       (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.

       
       

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       2. 2nd offense – Administrative fine of

       $500 to $1,000.

       
       

22. In its Proposed Recommended Order, the Division proposes assessing the highest allowable fine for a second offense in the amount of $1000.00 based on the emergency closure of El Ceviche Del Rey because of the critical violation. 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 El Ceviche Del Rey violated section 509, Florida Statutes, through a violation of Food Code Rule 5- 103.12; and

2. Imposing an administrative fine in the amount of

$1000.00 against El Ceviche Del Rey, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the agency clerk.

DONE AND ENTERED this 11th day of April 2013, in Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 11th day of April, 2013.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202

Alberto Villalobos El Ceviche Del Rey

9947 Southwest 142nd Avenue Miami, Florida 33186

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

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 12-003870

Orders for Case No: 12-003870