STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 13-1894

BISTRO ON PARK AVENUE,

Respondent.

/

RECOMMENDED ORDER

On July 10, 2013, an administrative hearing in this case was held by video teleconference in Orlando and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

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: Hugo Boesch, pro se

Bistro on Park Avenue 621 Torrey Oaks Court

Longwood, Florida 32750-2965

STATEMENT OF THE ISSUE

Whether the allegations set forth as count one in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Bistro on Park Avenue (Respondent) are correct, and if so, what penalty should be assessed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated March 6, 2013, the Petitioner alleged that the Respondent, a restaurant owned and operated by Hugo Boesch, was in violation of certain Food Code regulations. The Respondent filed an Election of Rights form indicating that there was no dispute regarding the allegations of the complaint and requesting that an informal hearing be conducted to submit mitigating evidence.

The Petitioner convened an informal hearing, during which the Respondent disputed some of the allegations in the Administrative Complaint. On May 17, 2013, the Petitioner forwarded the dispute to the Division of Administrative Hearings. On July 3, 2013, the Petitioner filed a Notice of Voluntary Dismissal of count two of the Administrative Complaint.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1 through 3 admitted into evidence. Mr. Boesch testified on behalf of the Respondent.

The Transcript of the hearing was filed on August 5, 2013. On August 19, 2013, the Petitioner filed a proposed recommended order. On September 3, 2013, the Respondent submitted a letter that has been treated as a proposed recommended order. Both documents have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/

2. At all times material to this case, the Respondent was operating as a public restaurant located at 348 North Park Avenue, Suite 5, Winter Park, Florida 32789.

3. On December 14, 2012, Dennis Watson, a trained and experienced sanitation and safety specialist employed by the Petitioner, performed a routine inspection of the Respondent, during which Mr. Watson observed various violations of the Food

   Code.

   
   

4. At the conclusion of the routine inspection, Mr. Watson

   
   

   prepared a written report documenting the Food Code violations that he had observed. Before leaving the premises, Mr. Watson discussed his observations with Mr. Boesch and provided him with a copy of the inspection report.

   
   

5. According to the inspection report, the violations were to have been corrected by 8:00 a.m., on February 15, 2013, at which time a "callback" inspection was scheduled to occur.

6. The purpose of the callback inspection was to determine whether the Food Code violations identified during the routine inspection had been resolved.

7. The callback inspection occurred on February 19, 2013.

   
   

   Some of the Food Code violations observed during the routine inspection were again observed during the callback inspection.

8. Between the routine inspection and the callback inspection, the Petitioner amended its rules and began to apply an updated version of the Food Code.

9. In relevant part, both versions of the Food Code identify proper food storage temperatures applicable to potentially hazardous food products. The storage of such products at improper temperatures can result in bacterial or pathogenic contamination of the product and can cause serious illness in humans who consume the contaminated products.

10. Both versions of the Food Code require that certain cold food products be stored at temperatures of 41°F or less.

11. At the time of the routine inspection, the applicable Food Code identified violations of the referenced food temperature standard as "critical" violations.

    
    

12. By the time of the callback inspection, the updated Food Code being utilized by the Petitioner identified violations of the food temperature standard as "high priority" violations.

13. According to the report of the routine inspection, Mr. Watson observed that both crème brulee and tiramisu were being held at 44 degrees. According to the report of the callback inspection, Mr. Watson observed that crème brulee was being held at 46 degrees and that butter was being held at

    47 degrees. At the time of both inspections, the cited items were stored in a glass door cooler.

14. At the hearing, Mr. Boesch asserted that the temperatures measured by Mr. Watson were not accurate.

    Mr. Boesch produced the thermometer he used at his restaurant and argued that the thickness of the cited food products was insufficient to permit an accurate determination of their temperatures with his thermometer.

15. Mr. Watson testified that the construction of the thermometer used to measure food temperatures during inspections was superior to that of the thermometer being used by

    Mr. Boesch. Mr. Watson testified that his thermometer was capable of accurately determining the temperature of food products during the inspection and that he routinely calibrated the thermometer to make certain that it was performing properly.

    
    

16. Mr. Watson's testimony and the measurements obtained through his thermometer have been accepted and are credited.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

18. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Chap. 509, Fla. Stat. The Petitioner has adopted by incorporation the various provisions of the Food Code referenced herein. See Fla. Admin. Code R. 61C-1.001.

19. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Dep't of

    Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The burden has been met.

20. The Administrative Complaint charged the Respondent with a violation of section 3-501.16(A) of the Food Code, which requires that, except in limited circumstances not applicable to this case, potentially hazardous cold food must be maintained at a temperature of 41°F or less. The same standard is set forth at section 3-501.16(A) in both versions of the Food Code referenced herein.

    
    

21. The evidence established that the Respondent failed to maintain potentially hazardous foods at a temperature of 41°F or less as required by the applicable Food Code.

22. Section 509.261(1) provides that a food service establishment operating in violation of applicable statutes or rules may be fined in an amount not to exceed $1,000 per offense. In addition, such offenses may be disciplined by mandatory attendance at an educational program sponsored by the Hospitality Education Program or by suspension, revocation, or refusal of a license.

23. Rule 61C-1.005(6)(b)2. identifies the standard disciplinary penalty applicable to this case as an administrative fine of $250 to $500. Although the classification of the violation was amended from "critical" to "high priority" through amendment of the rule between the time of the two inspections, the standard disciplinary penalty for the violation was unchanged.

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 imposing a fine of $250 against the Respondent, and requiring that the Respondent complete an

appropriate educational program related to the violation identified herein.

DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 4th day of September, 2013.

ENDNOTE

1/ All statutory references are to Florida Statutes (2013), unless otherwise noted.

COPIES FURNISHED:

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

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1011

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202

Hugo Boesch

Bistro on Park Avenue 621 Torrey Oaks Court

Longwood, Florida 32750-2965

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: 13-001894

Orders for Case No: 13-001894