STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 14-4018

GRANDPA JOHN'S GEORGIA BBQ AND SOUL FOOD, LLC,

Respondent.

/

RECOMMENDED ORDER

On September 29, 2014, an administrative hearing in this case was held by video teleconference at sites in Tampa and Tallahassee, Florida, before D.R. Alexander, Administrative Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Division of Hotels and Restaurants Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of the violation described in the Administrative Complaint, and if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On July 29, 2014, Petitioner issued an Administrative Complaint alleging that Respondent, who operates a restaurant in Tampa, Florida, had violated a regulation in the United States Public Health Service/Food and Drug Administration Food Code (Food Code), which has been adopted by Petitioner. Through its owner, Gilbert Horn, Respondent timely requested a formal hearing to contest the charges, and the matter was referred by Petitioner to DOAH for a hearing.

At the final hearing, Petitioner presented the testimony of Ashley Herrmann, Sanitation Safety Specialist, and offered Petitioner's Exhibits 1-3, which were accepted in evidence.

There was no appearance by Respondent.1

At Petitioner's request, the undersigned has taken official recognition of section 509.032(6), Florida Statutes (2014), Florida Administrative Code Rules 61C-1.001(14) and 61C-1.005, and rule 3-501.16(A)(2), Food Code (2009).

A Transcript of the hearing has been prepared. Both parties submitted a Proposed Recommended Order, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509. By rule, it has incorporated by reference the regulations in the federal Food Code. These regulations apply to all public food service establishments. See Fla. Admin. Code R. 61C-1.001(14).

2. Respondent operates a public restaurant (using its corporate name) located at 12318 University Mall Court, Tampa, Florida, and is subject to Petitioner's regulatory jurisdiction. It holds license number NOS3917320 (Permanent Food Service).

3. Rule 61C-1.005(5)(a)-(c) classifies violations of the Food Code as either "high priority," "intermediate," or "basic," essentially reflecting the level of threat to public health posed by the deficiency. A high priority violation is one that poses a direct or significant threat to public health. Id. This type of violation is at issue in this case.

4. Around 12:24 p.m. on June 11, 2014, Ashley Herrmann, a trained and experienced sanitation and safety specialist employed by Petitioner, performed a routine inspection of Respondent's restaurant, during which Ms. Herrmann observed various violations of the Food Code, including a "high priority" violation.

5. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food must be

   
   

   maintained at a temperature of 41° Fahrenheit or less.2 See rule

   
   

   3-501.16(A)(2)(a), Food Code. A violation of this regulation is classified a high priority violation because food maintained above that temperature is a major contributor to foodborne illnesses. Ms. Herrmann observed several potentially hazardous food items in the walk-in cooler, including (a) raw meat/ poultry, (b) cooked fruits/vegetables, and (c) cheese/milk/ creamer/other dairy products, that were maintained at a temperature greater than 41° Fahrenheit. See Ex. 2.

6. At the conclusion of her inspection, Ms. Herrmann prepared a written report documenting the Food Code violations observed by her. A copy of the inspection report was given to Javari Moore, an employee who was present at that time, and the violations were explained to him. Also, he was told that the violations must be corrected by 10:30 a.m. the following day, June 12, 2014, and that a call-back inspection would be performed at that time to verify that the violations had been corrected.

7. Around 10:30 a.m. on June 12, 2014, Ms. Herrmann performed a call-back inspection of Respondent's premises. While some violations had been corrected, she observed that the high priority Food Code violations observed during the routine inspection on June 11, 2014, had not been corrected. See Ex. 3.

   
   

   Before leaving, Ms. Herrmann provided a copy of the inspection report to Mr. Moore and discussed the violations with him.

8. The findings contained in the inspection reports were used in the preparation of an Administrative Complaint issued against Respondent.

9. Other than stating that no food had been taken out of the walk-in cooler that morning, Mr. Moore gave no further explanation for the high priority violation.3

10. There is no evidence that Respondent has been found guilty of a prior offense of this nature.

    CONCLUSIONS OF LAW

    
    

11. Petitioner has the burden of proof to show, by clear and convincing evidence, that Respondent committed the acts alleged in the Administrative Complaint. See, e.g., Dep't of

    Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).

12. Rule 61C-1.001(14) adopts by reference the regulations in the federal Food Code. Food Code rule 3-501.16(A)(2) requires that potentially hazardous food be maintained "[a]t a temperature [of] . . . 41°F or less." A failure to comply with this regulation is a high priority violation. See Fla. Admin.

    Code R. 61C-1.005(5)(a).

    
    

13. By clear and convincing evidence, Petitioner has established that Respondent held three categories of food items

    
    

    described in Exhibit 3 at a temperature of more than 41°F and therefore violated the regulation.

14. Section 509.262(1) provides that any public food establishment that has operated 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.

15. Rule 61C-1.005(6) specifies the penalties routinely imposed against licensees for all violations subject to a penalty under chapter 509. For a first offense of a high priority offense, the rule specifies that an administrative fine ranging from $250.00 to $500.00 be imposed. However, in imposing a fine, various aggravating and mitigating circumstances may be considered. See Fla. Admin. Code R. 61C-

    1.005(7).

    
    

16. There are no aggravating or mitigating circumstances.

Because this is a first offense, a fine in the amount of $250.00 appears to be appropriate and reasonable.

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 that Respondent is guilty of one high priority violation, and imposing a fine of $250.00. Such

fine shall be 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 21st day of October, 2014, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER 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 21st day of October, 2014.

ENDNOTES

1 Just prior to the commencement of the hearing, Mr. Horn, the owner of the business, telephoned the Tampa video hearing site and advised he would not be attending the final hearing because of "car trouble." A similar telephonic message was later given to the undersigned's office. He did, however, file a Proposed Recommended Order.

2 Potentially hazardous food is defined in the Food Code as "a FOOD that requires time/temperature control for safety (TCS) to limit pathogenic microorganism growth or toxin formation." Subpart 1-201.10, Food Code.

3 Mr. Moore's statement to the inspector undercuts Mr. Horn's assertion in the Election of Rights that "Food was in cool down mode/Just put the food in cooler 5 mins before Inspector came in." In his Proposed Recommended Order, however, Mr. Horn

asserts that the items observed by Ms. Herrmann had just been removed from the cooler by the dishwasher and were in the process of being thrown away. There is no evidence to support either assertion.

COPIES FURNISHED:

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

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202 (eServed)

Charles F. Tunnicliff, Esquire Division of Hotels and Restaurants Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 (eServed)

Gilbert Horn

Grandpa John's Georgia BBQ and Soul Food, LLC

12318 University Mall Court Tampa, Florida 33612-5552

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 14-004018

Orders for Case No: 14-004018