(Count 2); and Section 509.049 (Count 3).
On or about September 14, 2012, Respondent requested "a hearing to submit evidence in mitigation, according to [s]ection 120.57(2), Florida Statutes" with respect to the allegations made in the Administrative Complaint. At the mitigation hearing, Respondent raised disputed issues of material fact, prompting Petitioner, on December 17, 2012, to refer the matter to DOAH for the assignment of a DOAH administrative law judge to conduct a disputed-fact hearing pursuant to section 120.57(1).
The disputed-fact hearing was scheduled for March 13, 2013, commencing at 9:00 a.m., at video teleconference sites in Port St. Lucie and Tallahassee, Florida. Petitioner and Respondent were provided with written notice of the scheduled hearing in
accordance with section 120.569(2)(b). Such notice was in the form of a Notice of Hearing by Video Teleconference issued on December 26, 2012.
Petitioner appeared at the hearing, which was held as scheduled on March 13, 2013, through its counsel of record. Respondent, on the other hand, did not make an appearance at the hearing, either in person or through counsel or any other authorized representative. After waiting approximately 35 minutes for Respondent to appear, and not having heard from Respondent, the undersigned went on the record and the hearing commenced without Respondent.
At the outset of the hearing, counsel for Petitioner announced that Petitioner was dropping Count 1 of the Administrative Complaint.
One witness, Michael Petrow, testified at the hearing. In addition to the testimony of Mr. Petrow, five exhibits (Petitioner's Exhibits 1 and 4 through 7) were offered and received into evidence.
At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders. The following day, the undersigned issued and sent to both parties a Notice of Proposed Recommended Order Filing Deadline advising of this deadline.
The Transcript of the hearing (consisting of one volume) was filed with DOAH on March 29, 2013.
Petitioner filed its Proposed Recommended Order on April 9, 2013. To date, Respondent has not filed any post-hearing submittal.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Pacheco's Restaurant (Restaurant) is an eating establishment (with seating) located in Indiantown, Florida.
Rosendo Pacheco, the Restaurant's owner, holds a license issued by Petitioner (license number SEA5301629) authorizing him to operate the Restaurant as a public food service establishment.
On May 15, 2012, Michael Petrow, an inspector with Petitioner, conducted a "routine" inspection of the premises of the Restaurant. During the inspection, proof of required food service manager certification and employee food service training was requested by Mr. Petrow, but not produced by Mr. Pacheco.
During previous inspections of the Restaurant-- conducted on April 13, June 15, and December 20, 2011--Mr. Pacheco had also failed, upon Mr. Petrow's request, to produce proof of required food service manager certification and employee food service training.
For these past failures to produce proof of required food service manager certification and employee food service training (occurring on April 13, June 15, and December 20, 2011), Mr. Pacheco has already been sanctioned by Petitioner (in the form of a fine of $800 imposed by the Final Order on Waiver issued in Petitioner's case number 2011038246 on October 27, 2011, and a fine of $1,600 imposed by the Final Order on Waiver issued in Petitioner's case number 1012003526 on April 2, 2012).
CONCLUSIONS OF LAW
Petitioner has been statutorily delegated the authority to "carry out all of the provisions of [chapter 509, Florida Statutes] 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."
§ 509.032.
A "public food service establishment," as that term is used in chapter 509, is defined in section 509.013(5)(a) as
follows:
"Public food service establishment" means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.
Each "public food service establishment" must have a license from Petitioner prior to the commencement of operation.
§ 509.241(2) ("Each person who plans to open . . . a public food service establishment shall apply for and receive a license from the division prior to the commencement of operation.").
Disciplinary action may be taken by Petitioner against a "public food service establishment" for "operating in violation of [chapter 509] or the rules of [Petitioner]." Such disciplinary action may include one or more of the following sanctions: license revocation, with the licensee unable to "apply for another license for that location prior to the date on which the revoked license would have expired"; license suspension (for a period not exceeding 12 months), with the licensee able to "apply for reinstatement or renewal of the license" following the suspension period; imposition of an administrative fine not to exceed $1,000 for each separate offense; and "[m]andatory completion, at personal expense, of a remedial educational program administered by a food safety training program provider approved by [Petitioner]."
§ 509.261(1) and (5)(a).
Petitioner may not discipline a non-compliant "public food service establishment" more than once for the same offense. See Dep't of Bus. & Prof. Reg. v. Daddy Gills, Case No. 09-5529, 2009 Fla. Div. Adm. Hear. LEXIS 879 *4 (Fla. DOAH Dec. 21, 2009;
Fla. DBPR Mar. 23, 2010)("Petitioner proposes two fines of
$1,000.00 for the same offense. The proposed fines are not reasonable under the facts and circumstances in this proceeding. Relevant statutes authorize only one fine for a single violation."); cf. Walley v. Game & Fresh Water Fish Comm'n, 501 So. 2d 671, 674 (Fla. 1st DCA 1987)("An agency may not reach a decision as to disciplinary action on one occasion, and then at a later date increase the disciplinary action so that the agency disciplines the employee twice for the same offense."); and Dep't of Transp. v. Career Serv. Comm'n, 366 So. 2d 473, 474 (Fla. 1st DCA 1979)("Although the Commission may have inartfully used the term 'double jeopardy,' its reversal was based on sound reasoning. D.O.T. not only lacked authority to discipline Woodard twice for the same offense but its action was fundamentally unfair."). Petitioner may, however, in determining what disciplinary action it should take against a "public food service establishment" for having committed a previously unpunished offense, take into consideration prior offenses for which the "public food service establishment" was previously disciplined. Cf. Tillman v. State, 609 So. 2d 1295, 1298 (Fla. 1992)(habitual offender statute which "allowed enhanced penalties for those defendants who met objective guidelines indicating recidivism" not violative of constitutional protection against double jeopardy); and Castaldi
v. U.S., 783 F.2d 119, 123 n.3 (8th Cir. 1986)("Petitioner also contends that the District Court's consideration of his prior criminal record in sentencing him violated several of his constitutional rights (e.g., Fifth Amendment double jeopardy and Fourteenth Amendment equal protection and due process) since Petitioner has fully completed the sentences imposed on those prior convictions. We dismiss this contention as totally without merit. In sentencing, the district court may conduct a broad inquiry into the defendant's background and generally is unlimited as to the kind and source of information it may consider.").
"For the purposes of [section 509.261], [Petitioner] 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." § 509.261(2).
At all times material to the instant case, a "critical violation" was defined in Florida Administrative Code Rule 61C- 1.005(5)(a) as "a violation determined by [Petitioner] 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- 5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not otherwise identified in this rule." The above-referenced DBPR Form HR-
5022-015 identified lack of "food management certification" and "employee training validation" as "critical violations."
At all times material to the instant case, the statutes and rules violation of which subjected a "public food service establishment" to disciplinary action pursuant to section 509.261 included sections 509.039 and 509.049 and Florida Administrative Code Rule 61C-4.023(1), which provided, in pertinent part, as follows:
Section 509.039
It is the duty of the division to adopt, by rule, food safety protection standards for the training and certification of all food service managers who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. The standards adopted by the division shall be consistent with the Standards for Accreditation of Food Protection Manager Certification Programs adopted by the Conference for Food Protection. These standards are to be adopted by the division to ensure that, upon successfully passing a test, approved by the Conference for Food Protection, a manager of a food service establishment shall have demonstrated a knowledge of basic food protection practices. The division may contract with an organization offering a training and certification program that complies with division standards and results in a certification recognized by the Conference for Food Protection to conduct an approved test and certify all test results to the division. Other organizations offering programs that meet the same requirements may also conduct approved tests and certify all test results to the division. The division may charge the
organization it contracts with a fee of not more than $5 per certified test to cover the administrative costs of the division for the food service manager training and certification program. All managers employed by a food service establishment must have passed an approved test and received a certificate attesting thereto.
Managers have a period of 30 days after employment to pass the required test. All public food service establishments must provide the division with proof of food service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment. . . .
Section 509.049
Food service employee training.--
The [D]ivision [of Hotels and Restaurants of the Department of Business and Professional Regulation] shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. . . .
* * *
(5) It shall be the duty of each public food service establishment to provide training in accordance with the described rule to all food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within
60 days after employment. Certification pursuant to this section shall remain valid for 3 years. All public food service establishments must provide the division with proof of employee training upon
request, including, but not limited to, at the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the training occurred, and the approved food safety training program used.
(6)(a) Third-party providers shall issue to a public food service establishment an original certificate for each employee certified by the provider and an original card to be provided to each certified employee. Such card or certificate shall be produced by the certified food service employee or by the public food service establishment, respectively, in its duly issued original form upon request of the division.
* * *
The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require:
* * *
(d) The public food service establishment to be responsible for providing proof of employee training pursuant to this section, and the division may request production of such proof upon inspection of the establishment.
The following are violations for which the division may impose administrative fines of up to $1,000 on a public food service establishment, or suspend or revoke the approval of a particular provider's use of a food safety training program:
Failure of a public food service establishment to provide proof of training pursuant to subsection (5) upon request by
the division or an original certificate to the division when required pursuant to paragraph (6)(a).
Florida Administrative Code Rule 61C- 4.023(1)
All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted by the division. Those managers who successfully pass an approved certification examination shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. When four or more employees, at one time, are engaged in the storage, preparation or serving of food in a licensed establishment, there shall be at least one certified food protection manager present at all times when said activities are taking place. The certified food protection manager or managers need not be present in the establishment during those periods of operation when there are three or fewer employees engaged in the storage, preparation, or serving of foods. It shall be the responsibility of the certified food protection manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this chapter.
Because they are penal in nature, these statutory and rule provisions must be strictly construed, with any ambiguities being resolved in favor of the "public food service establishment." See Dyer v. Dep't of Ins., 585 So. 2d 1009 (Fla. 1st DCA 1991)(court "[a]ppl[ied] the principle of statutory construction that penal statutes must be strictly construed in favor of the party to be penalized").
Petitioner may fine or otherwise discipline a "public food service establishment" for "operating in violation of [chapter 509] or the rules of [Petitioner]" only after Petitioner has been given the "public food service establishment" reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to sections 120.569 and 120.57. See § 120.60(5).
An evidentiary hearing must be held when there are disputed issues of material fact. See Hollis v. Dep't of Bus. &
Prof'l Reg., 982 So. 2d 1237, 1239 (Fla. 5th DCA 2008); Mixon v.
Dep't of State, 686 So. 2d 755, 756 (Fla. 1st DCA 1997); and §§ 120.569(1) and 120.57(1).
At the hearing, Petitioner must establish the alleged violation by clear and convincing evidence. See Dep't of
Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine deprives the person fined of substantial rights in property. Administrative fines . . . are
generally punitive in nature. . . . Because the imposition of administrative fines . . . [is] penal in nature and implicate[s] significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted."); Diaz de la Portilla v. Fla. Elect. Comm'n, 857 So. 2d 913, 917 (Fla. 3d DCA 2003)("We agree with the administrative law judge that the standard of proof in a case seeking fines under chapter 106 is clear and convincing evidence."); and § 120.57(1)(j) ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings . . . ."). It must do so even if, as the instant case, the accused fails to appear at the hearing (provided that, at Petitioner's request and consistent with prior written warning(s) given the accused, the presiding officer does not, based on the accused's non-appearance, terminate the hearing and close the case file without any evidence being presented3/). See Scott v. Dep't of Prof'l Reg., 603 So. 2d 519, 520 (Fla. 1st DCA 1992)("The appellant is a registered nurse who challenges an administrative order by which her license was suspended after a hearing before the Board of Nursing. The appellant did not appear at the hearing, and did not otherwise respond to the complaint against her. However, the appellant's failure to appear or respond does not relieve
the appellee of its obligation to substantiate the charges by presenting sufficient evidence.").
Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . . 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 in 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." In re
Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting with approval Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of wrongdoing made in the charging instrument provided to the accused "public food service establishment." Due process prohibits an agency from taking penal action based on matters (either factual or legal) not specifically alleged, unless those matters have been tried by consent. See Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A physician may not be disciplined for an offense not charged in the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000)("Marcelin first contends that the administrative law judge found that he had committed three violations which were not alleged in the administrative complaint. This point is well taken. . . . We strike these violations because they are outside the administrative complaint."); and Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated.").
The Administrative Complaint issued in the instant case, as amended by Petitioner at the final hearing, alleges that, on April 13, 2011, June 15, 2011, December 20, 2011, and May 15, 2012, Respondent was in violation of section 509.039 and
Florida Administrative Code Rule 61C-4.023 (Count 2); and section 509.049 (Count 3). Petitioner, through the issuance of Final Orders on Waiver issued in Petitioner's case numbers 2011038246 and 1012003526 on October 27, 2011, and April 2, 2012, respectively, has already determined, with finality, that Respondent violated sections 509.039 and 509.049 and Florida Administrative Code Rule 61C-4.023 on April 13, June 15, and December 20, 2011, and disciplined Respondent for having committed these offenses. Accordingly, only the alleged violations occurring on May 15, 2012, remain for disposition.
Petitioner met its burden of establishing by clear and convincing evidence that, during the inspection of the Restaurant on May 15, 2012, Respondent failed to produce requested proof of required food service manager certification and employee food service training and thereby committed the violations that Counts 2 and 3 of the Administrative Complaint allege were committed on that date. Accordingly, disciplinary action may be taken against Respondent pursuant to section 509.261.
In determining what disciplinary action Petitioner should take against Respondent for having committed these two offenses on May 15, 2012, it is necessary to consult the "disciplinary guidelines" adopted by Petitioner in the aforementioned Florida Administrative Code Rule 61C-1.005, as
they existed on May 15, 2012. See Parrot Heads, Inc. v. Dep't
of Bus. & Prof'l Reg., 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties."); and Orasan v. Ag. for Health Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)("[T]he case was properly decided under the disciplinary guidelines in effect at the time of the alleged violations.").
On May 15, 2012, rule 61C-1.005 provided, in pertinent part, as follows:
Definitions.
* * *
(e) "Third and any subsequent offense" means a violation of any law subject to penalty under Chapter 509, F.S., after two or more disciplinary Final Orders involving the same licensee have 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.
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. . . . .
* * *
(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.
* * *
3. 3rd and any subsequent offense – Administrative fine of $750 to $1,000, license suspension, or both.
* * *
Aggravating or mitigating factors.
The division may deviate from the standard penalties in paragraphs (a) through (h) of subsection (6) above, based upon the consideration of aggravating or mitigating factors present in a specific case. The division shall consider the following aggravating and mitigating factors in determining the appropriate disciplinary action to be imposed and in deviating from the standard penalties:
Aggravating factors.
Possible danger to the public.
Length of time since the violation occurred.
Number of violations in the current administrative complaint.
Severity of violations in the current administrative complaint.
Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.
Number of Emergency Orders of Suspension or Closure against the same licensee filed with the Agency Clerk by the division within the 12 months preceding the date the current administrative complaint was issued.
The current administrative complaint alleges a violation for obstruction of division personnel.
The licensee was prosecuted by another authority having jurisdiction resulting in a violation of Chapter 509, F.S., including but not limited to cases based on discrimination, civil rights violations, and criminal violations.
Actual physical damage or bodily harm caused to persons or property by the violation.
Any other aggravating factors, as relevant under the circumstances.
Mitigating factors.
Violation resulted from an act of God or nature.
Length of time since the violation occurred.
Length of time the licensee has been in operation.
Effect of the penalty upon the licensee’s livelihood.
Attempts by the licensee to correct the violation.
Number of previous inspections without violations of Chapter 509, F.S., and the rules adopted pursuant thereto.
Disciplinary history of the licensee within the 60 months preceding the date the current administrative complaint was issued.
Any other mitigating factors, as relevant under the circumstances.
* * *
Absent any mitigating circumstances, a license may be suspended for no less than two days. Terms of license suspensions resulting from multiple violations or Final Orders shall be applied consecutively, not concurrently.
Fines resulting from multiple violations or Final Orders shall be assessed cumulatively.
License revocation may be recommended in any case or for any violation when the aggravating circumstances, licensee's compliance history, and conditions of
the . . . public food service establishment present a significant threat to the public health, safety, and welfare.
In its Proposed Recommended Order, Petitioner proposes that the undersigned recommend that, for having committed the May 15, 2012, violations alleged in Counts 2 and 3 of the Administrative Complaint, Respondent (as "a third time offender") be required to pay an administrative fine of $1,000 for each violation. Applying the applicable provisions of rule 61C-1.005 (as they read on May 15, 2012) to the facts of the instant case, the undersigned agrees with Petitioner that this a reasonable and appropriate penalty which is within Petitioner's authority to impose.
Petitioner should consider, upon Respondent's written request, allowing Respondent to pay this fine in installments according a payment schedule acceptable to Petitioner.
