Findings Of Fact By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner. On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell. On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures. Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant. Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc. Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500. RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1982. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Douglas Newell c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mt. Key, Inc. c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. At all times material to the allegations of the Administrative Complaint, Respondent was not licensed, nor has ever been licensed, by the Division. Julianne Browning is a senior sanitation and safety specialist employed by the Division and has worked for the Division as an inspector for over 15 years. Ms. Browning has a bachelor's degree in hotel and restaurant management. She also has work experience in the hotel and restaurant industry and received training in laws and rules regarding public food service and lodging, as well as fire safety and hazard analysis. On May 19, 2006, Ms. Browning saw Respondent operating a barbeque unit in front of a gas station located Cross City, Florida. The type of barbeque unit was a long, black cylindrical unit on a trailer designed to pull behind a vehicle. She stopped, made an inspection, and issued an inspection report. She reviewed the report with Mr. Walker at the time she issued it. During the March 19, 2006 inspection, Ms. Browning observed several violations. The primary violation is that Mr. Walker was operating his barbeque unit without a license. In addition to finding that Mr. Walker was operating a food service establishment without a license, Ms. Browning found the following violations: certain foods were not kept at their required temperatures; certain foods had been prepared at Respondent's home; the barbeque grill was portable with no floor, walls, or ceiling; there were no hand-washing facilities; there was no facility to wash, rinse, and sanitize utensils; there was no portable fire extinguisher; and Respondent had not submitted a plan review prior to operation. Neither Respondent, Mr. Walker, nor his wife, contested what was found by Ms. Browning. However, they explained that they were simply attempting to sell barbeque as a fundraiser to send their daughter on a trip to Washington, D.C. Had he known that a license was required, Mr. Walker would not have undertaken this method of fundraising. Neither Mr. nor Mrs. Walker was attempting to operate a business. Mr. and Mrs. Walker's testimony in this regard is accepted as credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order which confirms the violations found and imposes an administrative penalty in the amount of $100, to be paid within 30 days of the issuance of the Agency's Final Order. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 25th day of January, 2007. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Jennifer L. Condon, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Larry Walker Post Office Box 1811 Cross City, Florida 32628 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this disciplinary proceeding are whether Respondent, a licensed restaurant, was not in compliance with food safety regulations as alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2008). At all times material to this case, El Tablazo Restaurant, Inc. (the Restaurant) was a licensed food service establishment located at 6780 Collins Avenue, Miami Beach, Florida 33141. The Restaurant held food service license number 2323114, issued by Petitioner. On July 31, 2008, Oscar Torres, a trained sanitation and safety inspector employed by Petitioner, performed a routine inspection of the Restaurant. Mr. Torres identified various food safety regulation violations in a written report that was provided to Diana Ramirez, a waitress who was working in the Restaurant, at the time of the inspection. The report set September 30, 2008, as the date for a "callback" inspection which was, in effect, the deadline for all violations to be corrected. On October 3, 2008, Mr. Torres performed the callback inspection at which time he noted that the Restaurant continued to lack proof of having a certified food safety manager and that documentation showing proof that Restaurant employees had completed the required employee food service training had an expiration date of January 2008. At the time of the inspection, one cook and one waitress were working in the Restaurant. Mr. Torres testified that not having a certified food safety manager was the more critical of the two remaining violations that serve as the basis for the Administrative Complaint in this proceeding. Other deficiencies identified in the July 31, 2008, inspection report were resolved on a timely basis and are immaterial to this proceeding. At the hearing, the Restaurant owner, Omar Sanchez, testified that his is a family-owned Restaurant, and that his wife and brother-in-law are both certified food managers. He acknowledged there was no certified food manager in the Restaurant at the time of either inspection. His brother-in-law was in New York and his wife, Luz Cano Sanchez, testified that she was in Columbia. Mrs. Sanchez testified that his brother- in-law kept his certification card in his wallet, but that his wife's certification was at the Restaurant. Mr. Sanchez testified that he contacted a trainer for his employees, but not until some time in September, and the trainer, Giovanni Bierru, was unable to schedule the training until October 14, 2008, after the time of the deadline set for the callback inspection. There is no mitigating evidence, however, to support a conclusion that all employees were, in fact, trained only eleven days after the inspection. Subsequent to the hearing, on April 30, 2008, the Restaurant submitted a certificate indicating that Luz Cano was, beginning on February 21, 2002, a certified food safety manager, and that she had again completed food safety employee training on December 15, 2008.
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 imposing a fine of $500 against Respondent payable within 30 calendar days of the final order, and requiring that Respondent complete an appropriate educational program related to food safety within 90 calendar days of the final order. DONE AND ENTERED this 9th day of June, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 June, 2009. COPIES FURNISHED: Omar DeJesus Sanchez El Tablazo Restaurant 6780 Collins Avenue Miami Beach, Florida 33141 Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Sherria Williams, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 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
