The Issue Whether Respondent operated a public food-service establishment without a valid license and, if so, the appropriate sanctions.
Findings Of Fact At all times material hereto, Respondent operated a mobile food-dispensing vehicle in Jacksonville, Florida. Respondent held License No. 2651331. A mobile food-dispensing vehicle is a “public food service establishment” as that term is defined in section 509.013, Florida Statutes. On January 9, 2012, Michael Byrd conducted an inspection of Respondent?s mobile food-dispensing vehicle at its commissary location at 2356 West Beaver Street, Jacksonville, Florida. During the inspection, Mr. Byrd noted that Respondent?s license, which was displayed as required, had expired on June 1, 2011. Mr. Byrd entered the violation of the Petitioner?s licensing requirement on an Inspection Report, which report was thereupon signed by Oswald Higgs on behalf of Respondent. The report established March 10, 2012, as the date for a callback inspection, by which time the violation was to be corrected. On April 20, 2012, Mr. Byrd performed the call back inspection. Respondent failed to produce a current license for the mobile food-dispensing vehicle. Petitioner proved, by clear and convincing evidence, that Respondent was operating a public food-service establishment on an expired license as alleged in the Administrative Complaint.
Recommendation Based upon the 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 that Respondent, Ozamori Mobile Kitchen, violated section 509.241(1), Florida Statutes, and Florida Administrative Code Rule 61C-1.002(6); and Imposing an administrative penalty against Respondent, Ozamori Mobile Kitchen, in the amount of $500, payable to Petitioner within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of January, 2013. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Oswald Higgs Ozamori Mobile Kitchen 2560 Automobile Drive Jacksonville, Florida 32209 Amy Toman, Hearing Officer Office of the General Counsel 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 Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Respondent, a licensed public food service establishment, violated chapter 509, Florida Statutes, by misrepresenting the identity of a food to the patrons of the establishment, as alleged in the Amended Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with administering chapter 509, Florida Statutes, and all other applicable laws and rules related to the regulation and inspection of public food service establishments. Respondent is a public food service establishment located at 1400 Northwest 87th Avenue, Doral, Florida. Respondent is licensed pursuant to, and is subject to, chapter 509 and the rules adopted to implement that statute. On September 25, 2013, Douglas Morgadanes, a Senior Sanitation and Safety Specialist employed by Petitioner, conducted a stipulation callback inspection ("callback inspection") at Respondent.2/ This callback inspection was conducted because Respondent was cited in June 2013 and paid a fine, pursuant to administrative complaint and final order, for a previous violation involving the issue in this proceeding—— misrepresenting escolar3/ as "white tuna" to its patrons. During the callback inspection, Morgadanes observed fish being prepared at the sushi bar by sushi chefs. Morgadanes testified that a card in the sushi display case identified one of the types of fish as "white tuna." Morgadanes' description of the sushi bar display case indicates that it was visible and accessible to Respondent's patrons. Morgadanes questioned the sushi chefs regarding the type of fish, and they stated it was "white tuna." Upon further questioning, they identified it as escolar. Escolar is not a type of tuna but, rather, is a type of mackerel. Accordingly, holding escolar out to restaurant patrons as "white tuna" would constitute misrepresenting its identity in violation of section 509.292(1). Morgadanes cited Respondent for misrepresenting the identity of a food, escolar, and selling it as "white tuna" in violation of section 509.292(1). At hearing, Respondent's owner, ManLup Lee, denied that Respondent misrepresented the identity of the escolar to its patrons. Lee testified, credibly, that following the first inspection that resulted in a fine for identifying escolar as "white tuna" on its menus,4/ Respondent altered its menus by placing a sticker over the term "white tuna" so that it no longer was visible to patrons as they reviewed the menu.5/ On rebuttal, Morgadanes acknowledged that he had seen the menu during the inspection and that the menu had been altered as Lee claimed. Morgadanes clarified that after he saw the altered menu he then went to the sushi bar and questioned the sushi chefs about whether they were serving "white tuna." Morgadanes' testimony regarding the presence of a label card in the sushi display case was vehemently disputed by Lee, who was representing Respondent as its owner. Lee stated that "[w]e never, never put a level [sic] [label] or any name on that case. We have never done that . . . . We never put the name or put a piece of paper there." These statements were made during Lee's cross-examination of Morgadanes, before he (Lee) had been placed under oath to testify in Respondent's case in chief.6/ Lee did not repeat these statements in his testimony after he was placed under oath.7/ Under these circumstances,8/ it is determined that Petitioner met its burden to demonstrate that Respondent misrepresented the identity of escolar as "white tuna" to its patrons by labeling a fish in its sushi display case as "white tuna."9/ The Amended Administrative Complaint and Callback Inspection Report dated September 25, 2013, both identify the misrepresentation of escolar as "white tuna" as an "intermediate" violation of chapter 509.
Recommendation 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 determining that Respondent, Umami, committed one violation of section 509.292(1), Florida Statutes, by misrepresenting a food, and imposing a fine of $500.00 for this violation. DONE AND ENTERED this 25th day of March, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 25th day of March, 2014.
