The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, the Respondent was a restaurant holding Food Service license number 5807127 and operating at 1900 Summit Tower Boulevard, Orlando, Florida 32810. On June 5, 2006, Gayle Braska, a sanitation and safety inspector employed by the Petitioner, performed a routine inspection of the Respondent at which time there were at least four employees engaged in food preparation. Ms. Braska determined that there was no certified food manager present on the premises at the time of the inspection and cited the deficiency in an inspection report. The report was provided to the Respondent at the time of the inspection as acknowledged by the signature of Restaurant Manager Brigitte Graffuis. The report indicated that correction of the cited deficiency, as well as others not relevant to this proceeding, was required by the time of the "next unannounced inspection" of the establishment. On October 5, 2006, another inspection of the establishment was conducted, this time by Petitioner's Inspector Cecilia Chiu, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent had no certified food manager present on the premises. The deficiency was again cited in an inspection report, which was provided to the Respondent at the time of the inspection as acknowledged by the signature of Ms. Graffuis. The report indicated that a callback inspection would occur on November 5, 2006, by which time the Respondent was required to correct the cited deficiency, as well as others not relevant to this proceeding. On November 7, 2006, a callback inspection of the establishment was conducted by Ms. Chiu, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent still had no certified food manager present on the premises. The deficiency was cited in the callback inspection report which was provided to the Respondent at the time of the inspection as acknowledged again by Ms. Graffuis. The report stated that correction of various deficiencies was required by the time of the "next unannounced inspection" of the establishment, but specifically stated that correction of the food manager certification deficiency was required by January 5, 2007, and that documentation of certification could be faxed to the Petitioner's offices before that date. The Petitioner received no documentation of compliance with the food certification requirements by fax or by any other means of delivery. On April 9, 2007, Ms. Chiu conducted another inspection of the establishment, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent still had no certified food manager present on the premises. The deficiency was cited in the inspection report, which was provided to the Respondent at the time of the inspection as acknowledged by Restaurant Manager Anne Boughey. On May 2, 2007, the Petitioner issued an Administrative Complaint against the Respondent for noncompliance with the certification requirement. Respondent's Exhibit A is a certificate stating that Ms. Graffuis had passed the "Food Protection Manager Certification Examination" on June 13, 2001, and was certified for a five-year period, expiring on June 13, 2006. The first inspection at which the Petitioner cited the Respondent for noncompliance with the certification requirement occurred on June 5, 2006, approximately one week before Ms. Graffuis' certification expired. The evidence establishes that the Respondent failed to provide evidence of certification to any of the Petitioner's inspectors at the time of the inspections. No documentation of food manager certification was provided by the Respondent to the Petitioner until the hearing conducted on September 6, 2007. There is no evidence that Ms. Graffuis advised Ms. Braska that she was apparently certified at the time of the June 5 inspection. There is no evidence that there was any certified food manager present in the restaurant at the time of any inspection occurring after June 13, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $500 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 7th day of December, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2007. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Jose A. Blanco, Certified Legal Intern Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Hasselberger Natures Table Cafe 1900 Summit Tower Boulevard, Suite 190 Orlando, Florida 32810 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding are whether Respondent committed the violations alleged in the Administrative Complaint dated August 31, 2012, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, El Ceviche Del Rey, located at 9947 Southwest 142 Avenue, Miami, Florida 33186, holding food service license number 2324027. Critical violations are those violations that are more likely to result in food-borne illness if not corrected. Non- critical violations are those violations that, if not corrected, are less likely to contribute to food-borne illness. Gladys Diaz ("Inspector Diaz") is employed by the Department as a Sanitation Safety Specialist. Inspector Diaz has worked for the Department for approximately one and one-half years. Prior to working for the Department, Inspector Diaz managed a McDonalds franchise for 18 years. Upon gaining employment with the Department, Inspector Diaz received training in laws and rules pertaining to the public food service and public lodging establishments. She is a Certified Food Manager and continues to receive monthly training in the area of food management. On August 29, 2012, Inspector Diaz performed a routine food service inspection at El Ceviche Del Rey. During the inspection, Inspector Diaz observed El Ceviche Del Rey opened for business but operating with no running water. Inspector Diaz prepared and signed an inspection report setting forth the violation she encountered during her inspection. Inspector Diaz prepared the inspection report on- site at El Ceviche Del Rey. The inspection report was signed by Inspector Diaz and a representative of the El Ceviche Del Rey. Inspector Diaz specifically noted the violation as being out of compliance and stated, "At the time of the inspection, there was no water at establishment." The Division determined that operating a food service establishment without water was a critical violation because an establishment cannot clean utensils and employees cannot wash their hands without water. Unclean utensils and dirty hands can lead to contamination of food. The Division closed the restaurant with an Emergency Order of suspension of license for the critical violation. On or about August 31, 2012, the Division issued an Administrative Complaint against El Ceviche Del Rey for operating a food service establishment with no water at the establishment in violation of Food Code Rule 5-103.12. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed. Additional evidence introduced at hearing showed that El Ceviche Del Rey received previous discipline by Final Order in case 2011-040929, entered on December 7, 2011.
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: Finding El Ceviche Del Rey violated section 509, Florida Statutes, through a violation of Food Code Rule 5- 103.12; and Imposing an administrative fine in the amount of $1000.00 against El Ceviche Del Rey, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the agency clerk. DONE AND ENTERED this 11th day of April 2013, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 11th day of April, 2013. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Alberto Villalobos El Ceviche Del Rey 9947 Southwest 142nd Avenue Miami, Florida 33186 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent violated Section 509.049, Florida Statutes,1/ by using an unapproved food safety training program.
Findings Of Fact Parties The Division is the state agency responsible for licensing and regulating food service establishments pursuant to Part I of Chapter 509, Florida Statutes. Respondent is the owner and operator of a licensed food service establishment located in Tallahassee. FRLA is a trade association that represents the interests of the hospitality and tourism industry in Florida. FRLA’s Interest in this Disciplinary Proceeding One of FRLA’s primary purposes is to educate its members and to promote their compliance with Florida laws. FRLA was involved in the lobbying efforts that led to the passage of Section 509.049, Florida Statutes, which requires all food service employees to undergo food safety training. FRLA owns and administers a food safety training program known as SafeStaff. The SafeStaff program is the food safety training program contracted by the Division pursuant to Section 509.049(2), Florida Statutes. The SafeStaff program has been the state-contracted program since October 2000. As a result of its designation as the state-contracted food safety training program, the SafeStaff program is the only training program -- other than “grandfathered” programs approved under Section 509.049(3), Florida Statutes -- that can be used to train food service employees in Florida. FRLA is authorized to charge a “per employee fee to cover the contracted price for the program.” It was stipulated that the use of an unapproved program to train food service employees adversely impacts FRLA because those employees would likely have otherwise had to use the state-contracted SafeStaff program and pay the per-employee fee to FRLA. Respondent’s Approved Food Service Training Program (1) Submittal, Approval, and Subsequent Non-Use On June 30, 2000, Respondent submitted to the Division for approval a food safety training program that was provided to it by the Florida Restaurant Association (FRA), which is the predecessor to FRLA.2/ Respondent submitted the FRA-provided program pursuant to Section 509.049, Florida Statutes (2000), which stated in pertinent part: Any food service training program established and administered prior to July 1, 2000 shall be submitted by the operator to the division for its review and approval. If the food safety training program is approved by the division, nothing in this section shall preclude any other operator of a food service establishment from also utilizing the approved program or require the employees of any operator to receive training or pay a fee to the division’s contracted provider. The program submitted by Respondent was called SafeStaff, just like FRLA’s current program. The program consisted of the ServSafe program prepared by the National Restaurant Association Educational Foundation along with sections on food-borne illnesses and vermin control that were required by Florida law but were not addressed in the ServSafe program. The program submitted by Respondent was established prior to July 1, 2000, and was administered to Respondent’s food service employees on June 29 and 30, 2000. The Division approved the program submitted by Respondent in a letter dated December 1, 2000. The letter stated in pertinent part: The Division of Hotels and Restaurants has reviewed the food safety program submitted pursuant to Section 509.049, Florida Statutes, and has determined that it is in substantial compliance with the standards and criteria adopted by the Division for food safety training. This program is therefore approved for utilization by any public food service establishment for the required training of its food handler employees, subject to the following conditions: * * * 4. The food safety training curriculum areas may not be deleted or reduced, but must continue to meet or exceed the food safety training standards established by the Division, as amended from time to time. (Emphasis supplied). Thus, as of December 1, 2000, the program submitted by Respondent was considered an approved, or “grandfathered,” program that could be used to train food service employees in lieu of the state-contracted program. In 2004, the Legislature amended Section 509.049, Florida Statutes, to require providers of approved food safety training programs to submit certain information to the Division when the program is used to train employees of other food service establishments. This reporting requirement does not apply when the provider uses its approved program to train its own employees. The 2004 amendments to Section 509.049, Florida Statutes, also established a deadline for submitting food service training programs for approval as a grandfathered program. Specifically, subsection (3) of the statute was amended to require the program to be “submitted by the operator or the third-party provider to the division for its review and approval on or before September 1, 2004.” The Division assigned a unique “Provider ID Number” to each approved food safety training program to be used by the provider when reporting the required training information to the Division. Respondent’s approved program –- the FRA-provided SafeStaff/ServSafe program submitted by Respondent on June 30, 2000, and approved by the Division on December 1, 2000 -- was assigned Provider ID Number 7148473. Respondent never used its approved training program to train its own employees. Instead, it purchased the training programs from FRA and FRLA or it hired employees who had already undergone training at a culinary school. Respondent never used its approved training program (or any other training program) to train employees of other food service establishments, as more fully discussed in Part C(4), below. (2) Sale of the Program to FAMOS In May or June 2008, Respondent was approached by Rick Wallace, the president of FAMOS, about purchasing Respondent’s approved training program. Respondent’s owner, Eric Favier, did not know that Respondent even had an approved program when he was first approached by Mr. Wallace. Indeed, Mr. Favier credibly testified that after the program was approved, it was “put into a drawer” and forgotten about. Mr. Favier relied upon Mr. Wallace’s representations that Respondent had an approved program, and he agreed to sell the program to FAMOS because Respondent was not using, and had no use for, the program. On July 1, 2008, Respondent and FAMOS executed a document titled “Sale Agreement for Licensure of Florida Approved Food Safety Program” (hereafter “the Sale Agreement”) pursuant to which Respondent agreed to sell “the entire license rights and ownership of [its] Florida approved employee food safety training program” to FAMOS. The Sale Agreement required Respondent to “release all ownership and licensing rights of [the] Program commencing at the signing of this agreement.” The agreement further provided that “payment of 10% of the Gross Profit[3/] shall constitute she complete sale of the food safety training program.” The Sale Agreement included a confidentiality provision that precluded the parties from disclosing any of the terms of the agreement. The confidentiality provision was removed through an “Addendum to Sale Agreement” dated October 27, 2008. Respondent has not yet received any money from FAMOS for the sale of the program. However, Mr. Favier testified that he expects to receive money in the future once FAMOS starts earning a profit from the sale of the program. There is no statute, rule, or Division policy that precludes the owner of an approved program from selling the program. Nor is there any statute, rule, or Division policy precluding the purchaser of the program from using the program to train employees of any food service establishment. Respondent was not involved in any way with the use of the program after it was sold to FAMOS. Indeed, on this point, Mr. Favier credibly testified “when I sold the program to Mr. Wallace, I sold it, so I have no idea what he did with it.” It was not until October 28, 2008 (the day after the confidentiality provision was removed from the sale agreement), that the Division was first informed that Respondent’s approved program had been sold to FAMOS. And, it was not until December 12, 2008 (several weeks after the filing of the Administrative Complaint and several days after the filing of Respondent’s petition for hearing4/), that the Division was first provided a copy of the Sale Agreement. The Division has not formally recognized the change of ownership of the program through, for example, an amended license or Provider ID Number issued to FAMOS, and no clear request for such agency action has been made by Respondent or FAMOS. Thus, even though as discussed below, the contact information for the Respondent’s approved program is that of FAMOS, the Division still considers Respondent to be the licensee of record for the program. (3) “Branding” of the Program as TrainSafe On September 24, 2008, Mr. Wallace sent an e-mail to the Division stating: We are in the process of promoting Chez Pierre’s approved food safety program which has been named TrainSafe. How can we add to the Chez Pierre approved list line the name of the program? (Emphasis supplied). Mr. Wallace did not inform the Division that FAMOS had purchased Respondent’s approved training program, nor did he request that Provider ID Number 7148743 be transferred from Respondent to FAMOS. The Division staff advised Mr. Wallace that the request must come from Respondent on its letterhead because Respondent was the license holder for the program. On or about October 13, 2008, the Division received a letter from Mr. Favier on Respondent’s letterhead. The letter was handwritten by Mr. Favier, but the substance of the letter was provided to him by Mr. Wallace. Mr. Favier’s letter stated in pertinent part: Chez Pierre’s proprietary approved food safety program has been branded as TrainSafe® and is being marketed to the restaurant industry in Florida. (Emphasis supplied). Please add the Trainsafe® name to Chez Pierre’s name on the approved food safety list. Please replace Karen Cooley with Rick Wallace as the provider contact . . . . Mr. Favier did not inform the Division that Respondent had sold its approved training program to FAMOS, nor did he request that Provider ID Number 7178743 be transferred from Respondent to FAMOS. The record does not clearly establish why Mr. Wallace and/or Mr. Favier did not inform the Division of the sale of Respondent’s approved program to FAMOS. However, the inclusion of the confidentiality provision in the Sale Agreement suggests a specific intent to keep the facts concerning the sale from third-parties, including the Division. On October 16, 2008, the Division updated its list of approved food safety training programs to change the designation of Respondent’s approved program from “Chez Pierre” to “Chez Pierre/TrainSafe” and to change the contact information for the program to that of FAMOS. The Division made this change without reviewing any documents associated with the TrainSafe program because it had no reason to believe at the time that the “branding” of Respondent’s program as TrainSafe was anything more than a renaming of the program. Indeed, that is all that it was represented to be by Mr. Wallace and Mr. Favier in their communications with the Division. On November 12, 2008, FRLA filed a petition challenging the addition of the TrainSafe name to the Division’s list of approved food safety training programs. FAMOS was permitted to intervene in that case, DOAH Case No. 08-5839, based upon the allegation that it was the owner of Respondent’s approved food safety training program. On or about December 1, 2008, while the case was still pending at DOAH, the Division removed the TrainSafe name from the list of approved food safety training programs. The Division did not change the contact information for the program on the list back to Respondent’s address.5/ The contact information remained that of FAMOS, and, as result, any communications from the Division relating to the program would have gone to FAMOS, not Respondent. On December 11, 2008, the attorney for Respondent and FAMOS sent a letter to the Division formally withdrawing Mr. Favier’s request that the TrainSafe name be added to Respondent’s name on the Division’s list of approved food safety training programs. Thereafter, on December 17, 2008, the file in DOAH Case No. 08-5839 was closed as moot. The Order Closing File stated in pertinent part: The proposed agency action that [FRLA] sought to influence through its Petition for Administrative Hearing was [the Division]’s approval of Chez Pierre’s request to add the TrainSafe name to its name on [the Division]’s approved food safety training provider list. The request that resulted in that proposed agency action has been withdrawn, which, as acknowledged by [FRLA] it its response to the motion, “has the effect of negating [the Division]’s proposed agency action granting Chez Pierre’s request.” There is no additional relief that can be granted to [FRLA] in this proceeding and, therefore, this case is moot. (4) Use of the Program’s Provider Number by FAMOS The first instance of Provider ID Number 7148473 -- the number assigned to Respondent’s approved food safety training program -- being used to train food service employees was on October 11, 2008, which is more than three months after the Sale Agreement was executed by Respondent, but prior to the addition of the TrainSafe name to the Division’s list of approved food safety training programs. Provider ID Number 7148473 was reported to the Division as the “provider” of the training for a total of 166 food service employees at 26 different establishments between October 11, 2008, and January 29, 2009. The name of the program reported for each of the 38 employees trained between October 11 and November 18, 2008, was “TrainSafe.” The names of the programs reported for the 26 employees trained between November 21 and 24, 2008, were “TrainSafe” (11 employees) and “Chez Pierre” (15 employees). The name of the program reported for each of the 102 employees trained after November 24, 2008, was “Chez Pierre.” The training of these food service employees was provided by, or pursuant to training programs sold to the establishments by, FAMOS. There is no credible evidence that Respondent was involved in any way in the training of these food service employees. The TrainSafe Program as an “Approved Program” The TrainSafe program purports to be “a revision of the approved food safety program listed as Chez Pierre on the approval list with the state . . . . State Provider No. 7148473.” The TrainSafe program meets the minimum standards established in the Food Code. There is no statute, rule, or Division policy that limits the revisions to the style, content or presentation of an approved program so long as the program continues to meet the minimum standards established in the Food Code. Nevertheless, the Division staff determined that the TrainSafe program is not merely a revision of Respondent’s approved food service training program, but rather an entirely different program than the program submitted by Respondent and approved by the Division in 2000. This determination was based primarily upon the differences in language, layout, and format between the two programs. When asked to explain the dividing line between a permissible revision/update to an approved program and an impermissible conversion to a different program, Division witness Richard Akin6/ logically testified: What I would typically look at as a revision is when the food code is updated. To give you an example, hot water was originally defined as 110 degrees, it has been subsequently redefined as 100 degrees, so that would be a revision to meet the food code. There’s also -- at one point hot food was supposed to be held at 140 degrees, it’s now held at 135, so that revision would need to be into any approved training program. THE COURT: What about the reformatting component? What -- where is the dividing line between permissible reformatting and impermissible, using my words, impermissible changing of programs? THE WITNESS: The Division doesn’t really have a policy on that. We would just look at the statute, and there’s nothing that’s stated in there. This testimony is consistent with the December 1, 2000, letter approving the FRA-provided program submitted by Respondent. The letter implicitly recognizes a distinction between the specific program –- “this program” – that was determined to meet the requirements for grandfathering and the program’s “curriculum areas” that must be updated to reflect the periodic changes in the minimum standards in the Food Code. Even a cursory review of the TrainSafe program (Joint Exhibit 12) and the program submitted by Respondent and approved by the Division in 2000 (Joint Exhibit 1) support the Division staff’s determination. The only similarities between the programs are the subjects covered. The wording, layout, format, order of presentation, test questions, theme, pictures, and diagrams used in the programs are entirely different. Every food safety training program must meet the minimum standards established by the current edition of the Food Code, so the fact that the TrainSafe program addresses the same subjects as did Respondent’s approved program is not determinative as to whether it is the same program. The TrainSafe program, as such, was not in existence prior to July 1, 2000. The TrainSafe program, as such, was not administered to food service employees prior to July 1, 2000, nor was it submitted to and approved by the Division prior to September 1, 2004, as required for grandfathering under Section 509.049(3), Florida Statutes. The conversion of Respondent’s grandfathered food safety training program into the TrainSafe program had the effect of transforming Respondent’s approved program into an unapproved program because the program, in its current form (i.e., as TrainSafe), no longer meets the requirements of Section 509.049(3), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 15th day of April, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 15th day of April, 2009.
