STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 13-3846

LENIN'S,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Jessica E. Varn for final hearing by video teleconference on November 15, 2013, at sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Lenin's, a licensed restaurant, committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against Lenin's.

PRELIMINARY STATEMENT

On August 5, 2013, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), issued an 11-count Administrative Complaint against Lenin's, charging the licensed restaurant with various offenses relating to noncompliance with the rules governing food service establishments. Lenin's timely requested a formal hearing to contest the allegations, and the matter was referred to the Division of Administrative Hearings (DOAH).

During the final hearing held on November 15, 2013, the Division presented the testimony of Tamara Burton, a Sanitation and Safety Specialist; the Division also introduced three exhibits, numbered 1 through 3. Lenin's did not appear at the duly-noticed hearing, present any testimony, or offer any exhibits for consideration.

The Transcript of the final hearing was filed on December 5, 2013. On December 9, 2013, the Division filed a voluntary dismissal of Count 4 in the Administrative Complaint. The Division timely filed a Proposed Recommended Order on

December 16, 2013, which was considered during the preparation of this Recommended Order.

All citations to Florida Statutes refer to the 2013 version, unless otherwise indicated. All citations to the Florida

Administrative Code are to the version in effect at the time of

the violations.

FINDINGS OF FACT

1. The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes.

2. At all times material to this case, Lenin's was licensed as a public food service establishment, with the following business address: 444 West Railroad Avenue, Suite 100, West Palm Beach, Florida 33401.

3. On April 25, 2013, and June 28, 2013, Lenin's was inspected by Tamara Burton, a sanitation and safety specialist with the Division. During both visits, Ms. Burton noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants.

4. Through the testimony of Ms. Burton and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of June 28, 2013, the following deficiencies subsisted at Lenin's: (1) hot food, specifically beef empanadas, rice and beans, and rice, held below the required temperature, in violation of Food Code

   Rule 3.501.16(A)(1); (2) cold food, specifically butter, being held above the required temperature, in violation of Food Code Rule 3.501.16(A)(2); (3) an employee failing to wash his or her

   
   

   hands before putting on a new set of gloves to work with food, in violation of Food Code Rule 2-301.14(H); (4) raw beef stored over produce, in violation of Food Code Rule 3.302.11(A)(1);

   (5) a chlorine sanitizer not at the proper minimum strength, in violation of Food Code Rule 4-501.114(A); (6) an employee

   hand-wash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; (7) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes;

   1. no proof of required state approved employee training for its employees, in violation of section 509.049(5), Florida Statutes;

   2. food, specifically sugar, removed from the original container was not properly labeled as “sugar”, in violation of Food Code Rule 3-302.12; and (10) an employee not wearing a hair restraint, in violation of Food Code

   Rule 2-402.11.

   
   

5. As numbered in the previous finding, and pursuant to Florida Administrative Code Rule 61C-1.005, violations 1-5 are characterized as high priority violations, violations 6-8 are characterized as intermediate violations, and violations 9-10 are characterized as basic violations.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

7. Section 509.262(1), Florida Statutes, provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of chapter 509, or the rules promulgated thereunder, is subject to fines not to exceed $1,000.00 per offense, and the suspension, revocation, or refusal of a license.

8. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Division must prove the charges against Respondent by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. &

   Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996); 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).

9. 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 lacking in confusion as to the facts in issue. The

   
   

   evidence must be of such a 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 Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

10. By rule, the Division has defined the term “Food Code” as follows:

    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, Chapter 7, and Sections 8-103.11 and 8-103.12 of the Food Code, 2009 Recommendations of the United States Public Health Service / Food and Drug Administration including Annex 3: Public Health Reasons / Administrative Guidelines; Annex 5: Conducting Risk-based Inspections (https://www.flrules.org/Gateway/reference.as p?No=Ref-01536), herein adopted by reference.

    
    

11. Rule 61c-1.005(6) states in pertinent part:

(6) 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.

1. Basic violation.

   
   

   1. 1st offense- Administrative fine of $150 to $300.

   
   

2. Intermediate violation.

   
   

   1. 1st offense- Administrative fine of $200 to $400.

   
   

3. High priority violation.

Potentially Hazardous Food (Time/Temperature Control for Safety Food), Hot and Cold Holding.

(A) Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under §3-501.19, and except as specified under 1(B) and in 1(C) of this section,

POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE

CONTROL FOR SAFETY FOOD) shall be maintained:

(1) At 57°C (135°F) or above, except that roasts cooked to a temperature and for a time specified in 5 3-401.11(B) or reheated as specified in 91 3-403.11(E) may be held at a temperature of 54°C (130°F) or above;

1. Food Code Rule 4-301.11 states: Cooling, Heating and Holding Capacities.

   Equipment for cooling and heating FOOD, and holding cold and hot Foot), shall be sufficient in number and capacity to provide

   FOOD temperatures as specified under Chapter 3.P"

2. Food Code Rule 3-302.11(A)(1) states in pertinent part: Packaged and Unpackaged Food - Separation,

   Packaging, and Segregation.

   
   

   1. Food shall be protected from cross contamination by:

      
      

      1. Except as specified in (1)(c) below, separating raw animal FOODS during storage, preparation, holding, and display from:

         
         

         1. Raw READY-TO-EAT Food including other raw animal FOOD such as FISH or sushi or MOLLUSCAN SHELLFISH, or other raw READY-TO- EAT FOOD such as fruits and vegetables,2 and

            
            

         2. Cooked READY-TO-EAT FOOD;

            
            

         3. Frozen, commercially processed and packaged raw animal FOOD may be stored or displayed with or above frozen, commercially processed and packaged, ready-to-eat food.

            
            

3. Food Code Rule 2-301.14(H) states in relevant part: When to Wash.

   Food EMPLOYEES shall clean their hands and exposed portions of their arms as specified

   
   

   under § 2-301.12 immediately before engaging in FOOD preparation including working with exposed FOOD, clean EQUIPMENT and UTENSILS,

   and

   unwrapped SINGLE-SERVICE and SINGLE-USE ARTICLESP and: (H) Before donning gloves for working with FOOD;

   
   

4. Food Code Rule 2-402.11 states: Effectiveness.

   1. Except as provided in 91 (B) of this

      section, FOOD EMPLOYEES shall wear hair restraints such as hats, hair coverings or nets, beard restraints, and clothing that covers body hair, that are designed and worn to effectively keep their hair from contacting exposed FOOD; clean EQUIPMENT, UTENSILS,

      and LINENS; and unwrapped SINGLE-SERVICE and SINGLE-USE ARTICLES.

      
      

   2. This section does not apply to FOOD EMPLOYEES such as counter staff who only serve BEVERAGES and wrapped Or PACKAGED FOODS, hostesses, and wait staff if they present a minimal RISK of contaminating exposed FOOD. clean EQUIPMENT, UTENSILS, and LINENS; and unwrapped SINGLE-SERVICE and SINGLE-USE ARTICLES.

      
      

5. Food Code Rule 4-501.114(A) states:

   
   

   Manual and Mechanical Warewashing Equipment, Chemical Sanitization - Temperature, pH, Concentration, and Hardness.

   
   

   A chemical SANITIZER used in a SANITIZING solution for a manual or mechanical operation at contact times specified under 1 4-703.11(C) shall meet the criteria specified under

   § 7-204.11 SANITIZERS, Criteria, shall be used in accordance with the EPA-registered 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:

   
   

   
   

   Concentration Range	Minimum Temperature
   Mg/L	pH 10 less 0C(01-	p le -
   25-49	49(12	49
   50-99	38(10	24
   100	13(55	13

6. Food Code Rule 5-202.12(A)states: Handwashing Sink, Installation.

   1. A HANDWASHING SINK shall be equipped to provide water at a temperature of at least 38°C (100°F) through a mixing valve or combination faucet.

7. Section 509.039, Florida Statutes, reads:

   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. The ranking of food service establishments is also preempted to the state; provided, however, that any local ordinances establishing a ranking system in existence prior to October 1, 1988, may remain in effect.

8. Section 509.049(5), Florida Statutes, reads:

   
   

   (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.

   
   

9. The Division established Lenin's guilt regarding noncompliance with all of the above cited Food Code and statutory provisions by clear and convincing evidence.

10. Rule 61C-1.005(7) provides that, in applying the penalty guidelines, various aggravating and mitigating circumstances may be considered, such as the current administrative complaint alleging six or more violations, and the current administrative complaint alleging three or more violations characterized as high priority. See Fla. Admin. Code

    R. 61C-1.005(7)(a)2. & 3. Here, both of these aggravating factors exist.

11. A reasonable fine in this case, in light of the aggravating factors, is $400 for every high priority violation,

$300 for every intermediate violation, and $200 for every basic violation, for a total fine of $3,300.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Lenin's guilty of all counts as charged in the Administrative Complaint; dismissing Count Four of the Administrative Complaint; and ordering Lenin's to pay an administrative penalty in the amount of $3,300, to be paid within 30 days after the filing of the final order with the agency clerk.

DONE AND ENTERED this 9th day of January, 2014, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

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 9th day of January, 2014.

COPIES FURNISHED:

Lenin Martin Lenin's

444 West Rail Road

West Palm Beach, Florida 33401

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

Diann O. Worzalla, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

J. Layne Smith, General Counsel 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: 13-003846

Orders for Case No: 13-003846