DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Case No. 16-1603
BENITEL EDDIE JOEL PEREZ, d/b/a LOS GORDITOS NO. 2,
Respondent.
J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016), on May 24, 2016, by video teleconference with sites in Tallahassee and Tampa, Florida.
The issues in this matter are whether Respondent was out of compliance with the food safety requirements of chapter 509, Florida Statutes (2016),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary action is appropriate.
On February 3, 2016, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (the “Division”), issued an Administrative Complaint, DBPR No. 2016- 005277, against Respondent, Benitel Eddie Joel Perez, d/b/a Los Gorditos No. 2 (“Respondent”).
Respondent timely requested a formal administrative proceeding. On March 21, 2016, the Division referred the matter to the Division of Administrative Hearings (“DOAH”) and requested assignment of an Administrative Law Judge (“ALJ”) to conduct a formal administrative hearing.
The final hearing was held on May 24, 2016. At the final hearing, the Division presented the testimony of Ashley Herrmann. Division Exhibits 1 through 6 were accepted into evidence.
Adianez Ramos testified on behalf of Respondent. Respondent’s Composite Exhibit 1 was accepted into evidence.2/
A one-volume Transcript of the final hearing was filed with DOAH on June 3, 2016. At the close of the hearing, the parties were advised of the ten-day deadline following DOAH’s receipt of the hearing transcript to file post-hearing submittals. The Division filed a proposed recommended order which was duly considered in preparing this Recommended Order.
The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509.
Respondent is a licensed public food service establishment in Florida and holds License No. 3915849. Respondent operates a restaurant under the name of Los Gorditos No. 2 located at 6110 Causeway Boulevard, Tampa, Florida. Respondent is a family-owned and operated business. The restaurant opened in November 2014.
As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division.
Ashley Herrmann (“Inspector Herrmann”) is employed by the Division as a Sanitation Safety Specialist. Inspector Herrmann has worked for the Division for approximately two and a
half years as an inspector. Upon gaining employment in the Division, Inspector Herrmann was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. She is also a certified food manager and receives continuing education training on a monthly basis. Inspector Herrmann performs approximately 1,000 inspections each year.
On November 5, 2015, Inspector Herrmann performed a routine, unannounced food service inspection on Respondent’s restaurant. During the inspection, Inspector Herrmann prepared a Food Service Inspection Report. In her report, Inspector Herrmann recorded her observations of potential violations. Inspector Herrmann noted approximately 39 conditions for which Respondent had failed to comply with applicable rules or statutes. Jaharia Perez signed the Food Service Inspection Report acknowledging receipt on Respondent’s behalf. Inspector Herrmann informed Respondent that it needed to correct the violations by November 12, 2015.
On November 13, 2015, Inspector Herrmann performed a callback inspection on Respondent to follow up on her initial inspection. During this inspection, Inspector Herrmann prepared a Callback Report. Inspector Herrmann found that Respondent had corrected 14 of the violations she identified during her November 5, 2015, inspection. However, Respondent had not
addressed the 25 other violations. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by December 5, 2015. Mariella Mendoza signed the Callback Report acknowledging receipt on behalf of Respondent.
On December 8, 2015, Inspector Herrmann performed a second callback inspection on Respondent to follow up on the November 13, 2015, inspection. During this inspection, Inspector Herrmann prepared a second Callback Report. She noted that Respondent had corrected five more violations recorded in her November 5, 2015, and November 13, 2015, inspections. However,
20 violations still existed. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by January 5, 2016. Jaharia Perez signed the Callback Report acknowledging receipt on Respondent’s behalf.
On January 5, 2016, Inspector Herrmann performed a third callback inspection on Respondent. During this inspection, Inspector Herrmann prepared a third Callback Report. On this report, Inspector Herrmann noted that Respondent had fixed at least one more violation identified during her November 5, 2015, November 13, 2015, and December 8, 2015, inspections. However, a number of violations remained uncorrected.
Based on Inspector Hermann’s January 5, 2016, Callback Report, the Division cited Respondent with thirteen violations. These violations included:
First Violation:
Inspector Hermann observed a cutting board with cut marks which made the cutting board no longer cleanable in violation of rule 4-501.12, Food Code (2009).3/ Cutting boards that have cut marks collect food debris which enables bacteria to accumulate leading to food borne illness. The Food Code defines the governing requirement for this violation as a “core item.” The Division designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c).
Respondent, at the final hearing, expressed that it has obtained a new cutting board.
Second Violation:
Inspector Herrmann observed non-food grade containers being used for food storage in violation of rule 4-101.11, Food Code. Non-food grade containers can contain chemicals that can leak into food products. The Food Code defines the governing requirement for this violation as a priority item.4/ The Division has designated violations of priority items as “high priority violations.” See Fla. Admin. Code R. 61C-1.005(5)(a).
Respondent claimed that it ordered and now uses approved food grade containers.
Third Violation:
Inspector Herrmann observed a build-up of dust, food debris, and grease on hood filters in violation of rule 4-
601.11(C), Food Code. Debris can potentially fall from hood filters or shelving into food items or accumulate on non-food contact surfaces and transfer to clean containers placing the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c).
Respondent explained that in December 2015, it hired a custodial company to clean grease, debris, and soil in its facility every three months.
Fourth Violation:
Inspector Herrmann observed that Respondent seated more patrons than its septic system permit authorized in violation of rule 5-403.11, Food Code. Respondent’s establishment was approved for 19 seats, but Inspector Herrmann observed the establishment operating with approximately 48 seats on
November 5, 2015, November 13, 2015, and December 8, 2015. On
January 5, 2016, Respondent operated with approximately 25 seats. Serving more patrons than the septic system can accommodate can result in a failed septic system that can create a sanitary nuisance. The Food Code defines the governing requirement for this violation as a priority item. The Division has designated violations of priority items as “high priority violations. See
Fla. Admin. Code R. 61C-1.005(5)(a).
Respondent testified that, following the January inspection, it has reduced its seating to approximately 20 seats. Respondent has also initiated a plan to connect to the city water and sewer. This arrangement will allow the restaurant to expand its seating without violating its septic system capacity. Respondent hopes to connect to city water by Christmas 2016.
Fifth Violation:
a. Inspector Herrmann observed the presence of standing water around the floor drain, which was draining slowly near the cook line and fryers, in violation of rule 5-205.15, Food Code. Standing water in floor drains can potentially back up into the establishment and create a sanitary nuisance or potentially attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c).
Sixth Violation:
Inspector Herrmann observed an outside dumpster sitting directly on the ground without a barrier or non-absorbent surface between the dumpster and the ground in violation of rule 5- 501.11, Food Code. Dumpsters without proper pads allow food waste and chemicals to leak into the ground and attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated
violations of core items as “basic violations.” See Fla. Admin.
Code R. 61C-1.005(5)(c).
Respondent explained that it is working with Hillsborough County to redesign the area where the dumpster is located to include a concrete space for the dumpster that complies with regulations. The permits have not yet been approved, but Respondent is working towards them.
Seventh Violation:
Inspector Hermann observed several broken wall tiles under the three compartment sink and damaged cove molding on the front cook line in violation of rule 6-501.11, Food Code. Damage to wall or cove molding can lead to the accumulation of food debris and the growth of bacteria, putting the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin.
Code R. 61C-1.005(5)(c).
Respondent asserted that it repaired all the wall tiles in December 2015.
Eighth Violation:
Inspector Herrmann observed soil on Respondent’s floor near or along the baseboards in violation of rule 6-501.12(A), Food Code. Bacteria and dirt on the floor can come into contact with food contact surfaces placing the public’s health at risk.
The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin.
Code R. 61C-1.005(5)(c).
Similar to its reaction to the Fourth Violation, Respondent hired a custodial company to clean grease, debris, and soil in its facility every three months.
Ninth Violation:
a. Inspector Hermann observed that lights above a food preparation table were missing a proper light shield or cover in violation of rule 6-202.11, Food Code. Light covers and shields protect food items and preparation surfaces from shattered glass. The Food Code defines the governing requirement for this violation as a “core item.” The Division designates violations of core items as “basic violations.” See Fla. Admin. Code
R. 61C-1.005(5)(c).
Tenth Violation:
Inspector Herrmann observed carbon dioxide/helium tanks that were not adequately secured in violation of Florida Administrative Code Rule 61C-1.004(7)(a). Unsecured tanks might topple over and, if breached, can become a missile-like object and a danger to the public’s safety. The Division designated this violation as a “basic violation.” See Fla. Admin. Code R.
61C-1.005(5)(c).
Respondent explained that the tanks are owned by the owner of the building where the restaurant is located and were present when Respondent opened its business. Further, Respondent understands that the tanks are empty. Therefore, the tanks do not pose a danger if the top valve gets knocked off.
Eleventh Violation:
Inspector Herrmann observed that Respondent had recently constructed a bar inside the restaurant. Respondent did not submit a plan for the bar to the Division for approval in violation of rule 61C-1.002(5)(c)1. Inspector Herrmann contacted the Division’s Plan Review Office and confirmed that Respondent had not submitted a properly prepared facility plan and specification for review. The Division must approve remodeled or newly constructed public food service establishments to ensure compliance with sanitation and safety requirements. The Division designated this violation as an “intermediate violation.” See
Fla. Admin. Code R. 61C-1.005(5)(b).
Respondent explained that it requested and received approval from the Hillsborough County Fire Department to construct the bar. However, Respondent was not aware that it also needed to submit a plan review to the Division. Consequently, it did not seek approval from the Division.
Twelfth Violation:
Inspector Herrmann observed Respondent operating with four or more employees engaging in food preparation and/or handling without a certified food protection manager on duty in violation of Florida Administrative Code Rule 61C-4.023(1). At least one certified food protection manager must be present at all times when four or more employees are engaged in the storage, preparation, or serving of food to ensure the establishment is operating with acceptable sanitary practices. The Division designated this violation an “intermediate violation.” See Fla.
Admin. Code R. 61C-1.005(5)(b).
Respondent expressed that it always operates under the supervision of certified food protection managers and believes that a food manager was present during the times of the inspections. Respondent offered that the inspections were accomplished in a short timespan (20 minutes). This short time period, combined with the fact that Spanish is the primary language of many of Respondent’s employees, may have led to a misunderstanding over whether a certified food manager was present during the inspections. At the final hearing, Respondent testified and produced evidence that Respondent currently employs approximately nine certified food managers. Respondent further represented that the two individuals who signed the inspection
reports on Respondent’s behalf were also certified food protection managers.
Thirteenth Violation:
a. Respondent failed to provide Inspector Herrmann with proof of its employees' required state-approved employee training upon request in violation of section 509.049(5). Employees of public food service establishments are required to have basic food safety training which imparts knowledge of basic food handling skills. Lack of this knowledge can result in a breakdown of the food handling process, possibly leading to food borne illness or unsanitary conditions. The Division designated this violation as an “intermediate violation.” See Fla. Admin.
Code R. 61C-1.005(5)(b).
Respondent has one prior disciplinary Final Order filed with the Agency Clerk for the Department of Business and Professional Regulation within the 24 months preceding the administrative complaint in this matter. The Final Order in Case No. 2015-014633 was filed on October 6, 2015.
Based on the evidence and testimony presented at the final hearing, the Division demonstrated, by clear and convincing evidence, that Respondent was out of compliance with applicable food safety requirements of the Food Code, Florida Statutes, and the implementing administrative rules of the Division. The Division established that on or about November 5, 2015,
November 13, 2015, December 8, 2015, and January 5, 2016, Respondent committed the following violations listed above: the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and thirteenth violations. The Division did not establish, by clear and convincing evidence, the tenth and
twelfth violations.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1).
The Division is responsible for inspecting public food service establishments to enforce the provisions of chapter 509. See § 509.032(2)(c), Fla. Stat.
Section 509.032(6) provides that the Division shall adopt such rules as are necessary to carry out the provisions of chapter 509. By rule, the Division has incorporated by reference regulations in the federal Food Code. Rule 61C-1.001(14) provides, in pertinent part:
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/r
eference.asp?No=Ref-01536), herein adopted by reference.
The Food Code applies to all public food service establishments operating in Florida.
Rule 4-501.12, Food Code, provides: Cutting Surfaces.
Surfaces such as cutting blocks and boards that are subject to scratching and scoring shall be resurfaced if they can no longer be effectively cleaned and SANITIZED, or discarded if they are not capable of being resurfaced.
Rule 4-101.11, Food Code, provides: Characteristics.
Materials that are used in the construction of UTENSILS and FOOD-CONTACT SURFACES of
EQUIPMENT may not allow the migration of deleterious substances or impart colors, odors, or tastes to FOOD and under normal use conditions shall be:P
Safe;P
Durable, CORROSION-RESISTANT, and nonabsorbent;
Sufficient in weight and thickness to withstand repeated
WAREWASHING;
Finished to have a SMOOTH, EASILY CLEANABLE surface; and
Resistant to pitting, chipping, crazing, scratching, scoring, distortion, and decomposition.
Rule 4-601.11(C), Food Code, provides:
Equipment, Food-Contact Surfaces, Nonfood- Contact Surfaces, and Utensils
* * *
(C) NonFOOD-CONTACT SURFACES of EQUIPMENT shall be kept free of an accumulation of dust, dirt, FOOD residue, and other debris.
Rule 5-403.11, Food Code, provides: Approved Sewage Disposal System
SEWAGE shall be disposed through an APPROVED
facility that is:
A public SEWAGE TREATMENT plant;P or
An individual SEWAGE disposal system that is sized, constructed, maintained, and operated according to LAW.P
Rule 5-205.15, Food Code, provides: System Maintained in Good Repair
A PLUMBING SYSTEM shall be:
Repaired according to LAW;P and
Maintained in good repair.
Rule 5-501.11, Food Code, provides: Outdoor Storage Surface
An outdoor storage surface for REFUSE, recyclables, and returnables shall be constructed of nonabsorbent material such as concrete or asphalt and shall be SMOOTH, durable, and sloped to drain.
Rule 6-501.11, Food Code, provides: Repairing
PHYSICAL FACILITIES shall be maintained in good repair.
Rule 6-501.12(A), Food Code, provides: Cleaning, Frequency, and Restrictions.
(A) PHYSICAL FACILITIES shall be cleaned as often as necessary to keep them clean.
Rule 6-202.11, Food Code, provides, in pertinent part: Light Bulbs, Protective Shielding.
Except as specified in ¶(B) of this section, light bulbs shall be shielded, coated, or otherwise shatter-resistant in areas where there is exposed FOOD; clean EQUIPMENT, UTENSILS, and LINENS; or unwrapped SINGLE-SERVICE and SINGLE-USE articles;
Shielded, coated, or otherwise shatter- resistant bulbs need not be used in areas used only for storing FOOD in unopened packages, if:
The integrity of the packages cannot be affected by broken glass falling onto them; and
The packages are capable of being cleaned of debris from broken bulbs before the packages are opened.
Rule 61C-1.004(7) provides:
General Sanitation and Safety Requirements
(7) Carbon dioxide and helium tanks shall be adequately secured so as to preclude any danger to safety.
Rule 61C-1.002(5)(c)1., provides, in pertinent part: Licensing and Inspection Requirements.
(5) Public food service establishments, as defined in Section 509.013(5), Florida Statutes, are licensed in accordance with the following classifications and requirements:
(c) Plan reviews.
1. The operator of each public food service establishment to be newly constructed, remodeled, converted, or reopened after being out of business for more than 12 months shall submit properly prepared facility plans and specifications to the division for review and approval in accordance with the provisions of Chapter 509, F.S. and Rule Chapters 61C-1 and 61C-4, F.A.C. Such plans must be approved by the division as meeting the sanitation and safety requirements provided in law prior to scheduling of an opening inspection and licensing. For remodeling, plan review submittal is not required if the division can otherwise determine that the intended remodeling will not have an impact on any sanitation and safety requirements provided in law or rule. Plan review is not required for applications for change of ownership when no interruption in operation or no change to the establishment occurs. Plan reviews for additional theme park food carts are not required if such units have been previously reviewed and approved and have no modifications from the originally approved model.
Rule 61C-4.023(1) provides, in pertinent part:
Food Protection Manager Certification and Public Food Service Employee Training.
(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.
Section 509.049(5) states, in pertinent part: Food Service Employee Training. -
(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.
A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a license, is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487,
491 (Fla. 1973). Accordingly, the Division must prove the charges against Respondent by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996) (citing Ferris v.
Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); and Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med., 654 So. 2d 205, 207
(Fla. 1st DCA 1995).
In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed 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:
[C]lear 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 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.
Id. The Florida Supreme Court later adopted the Slomowitz court’s description of clear and convincing evidence. See In re
Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal has also followed the Slomowitz test, adding the
interpretive comment that “[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991),
rev. denied, 599 So. 2d 1279 (Fla. 1992) (citation omitted).
Based on the competent substantial evidence in the record, the Division proved, by clear and convincing evidence, that Respondent failed to comply with applicable food safety requirements of the Food Code, Florida Statutes, and the implementing administrative rules of the Division. The testimony and inspection reports of Inspector Herrmann establish that, as observed on or about November 5, 2015, November 13, 2015, December 8, 2015, and January 5, 2016, Respondent committed the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and thirteenth violations identified above.
Regarding the tenth violation, the undersigned expresses some hesitancy in concluding that Respondent failed to adequately secure the carbon dioxide/helium tanks. The evidence did not explicitly establish that Respondent, as opposed to the property owner, was responsible for maintaining the tanks. Further, the evidence did not firmly establish that the tanks were full. Therefore, the evidence did not sufficiently demonstrate that the tanks constitute a danger to the public’s safety. Regarding the twelfth violation, Respondent testified that it employs a number of certified food protection managers who regularly oversee the food storage, preparation, or serving operations at the establishment. The undersigned hesitates to conclude that Respondent’s employees were, in fact, preparing food without proper supervision on the inspection dates. The evidence in the record indicates that Inspector Herrmann’s finding on this issue possibly resulted from a miscommunication with Respondent’s staff.
Section 509.261(1) states that any public food service establishment that has operated, or is operating, in violation of chapter 509, or the rules promulgated thereunder, may be subject by the Division to fines not to exceed $1,000 per offense.
Rule 61C-1.005(5)(a) defines a “high priority violation” as “a violation of a high priority item, as defined in rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or
Chapter 61C, F.A.C., determined by the division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of this rule.” “High priority item” means an item defined in the Food Code as a priority item.5/ Therefore, Respondent's failure to comply with rule 4-101.11 and rule 5-403.11, Food Code, are high priority violations.
Rule 61C-1.005(5)(b) defines an “intermediate violation” as “a violation of an intermediate item, as defined in rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to specific actions, equipment or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of this rule.” Therefore, Respondent's failure to comply with rule 61C-1.002(5)(c)1. and section 509.049(5) are intermediate violations.
Rule 61C-1.005(5)(c) defines a “basic violation” as "a violation of a basic item, as defined in rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to general sanitation, operational controls, standard operating procedures, facilities or structures, equipment design, or general maintenance and not meeting the definition of high priority violation or intermediate violation
and is not otherwise identified in subsection (6) of this rule.” A “basic item” means an item defined in the Food Code as a “core item.”6/ Therefore, Respondent's failure to comply with rule 4- 501.12, rule 4-601.11(C), rule 5-205.15, rule 5-501.11, rule 6-
501.11, rule 6-501.12(A), and rule 6-202.11 of the Food Code are all basic violations.
Rule 61C-1.005(5)(e) provides, in pertinent part:
Definitions
* * *
(e) “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.
Rule 61C-1.005(6) provides, in pertinent part:
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.
* * *
Basic Violation
2. 2nd offense - Administrative fine of
$250-$500.
Intermediate Violation
2. 2nd offense - Administrative fine of
$375-$750.
High Priority Violation
2. 2nd offense - Administrative fine of
$500-$1,000, license suspension, or both.
The facts in the record establish that Respondent committed seven basic violations, two intermediate violations, and two high priority violations. Respondent's prior disciplinary Final Order filed within the 24 months preceding this case establish that the violations in this matter constitute Respondent's second offense. Consequently, Respondent is subject to a penalty, including an administrative, fine in the amount of
$250-$500 for each basic violation, $375-$750 for each intermediate violation, and $500-$1,000 for each high priority violation.
At the final hearing, Respondent demonstrated that it made a prompt and good faith effort to correct the areas of noncompliance observed during the inspection time period. Therefore, while the Division inspector reported that certain violations were still present on the last inspection date, Respondent has shown that it is attempting to operate within the governing statutes and regulations. Accordingly, any administrative fine should be calculated using the lowest monetary amount in the penalty range. An administrative fine in
the amount of $3,500 is consistent with the applicable penalty guidelines and is reasonable under the circumstances.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent, Benitel Eddie Joel Perez, d/b/a Los Gorditos No. 2, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $3,500 for the violations identified above, due and payable to the Division within thirty (30) calendar days of the date the final order is filed with the Agency Clerk.
DONE AND ENTERED this 29th day of June, 2016, in Tallahassee, Leon County, Florida.
J. BRUCE CULPEPPER Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2016.
1/ All statutory references are to Florida Statutes (2016), unless otherwise noted.
2/ Respondent’s Exhibit 1 is accepted over the Division’s objection. Respondent brought the exhibit documents to the final hearing. Respondent subsequently filed the documents with DOAH the day after the hearing. Respondent, however, failed to provide a copy of the documents to the Division seven days prior to the final hearing as required in the Order of Pre-Hearing Instructions. Consequently, the undersigned did not make any findings of fact based solely on information contained in Respondent’s Composite Exhibit 1. The undersigned, however, did consider the documents for the very limited extent that they supplemented or explained Respondent’s testimony at the final hearing.
3/ All references to the Food Code are to the 2009 version.
4/ The Food Code denotes priority items with a superscript "P". (Rule 1-201.10, Food Code).
5/ See Endnote 4 above.
Code.
Professional Regulation Capital Commerce Center 2601 Blair Stone Road Tallahassee, Florida 32309 (eServed)
Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
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.
