06-001594 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Pepe`s Coffee Shop Status: Closed Recommended Order on Friday, September 22, 2006.

Summary: Respondent failed to timely correct a critical violation. Recommend a $5,500 fine.

Case No. 06-1594

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) ) ) ) ) ) ) ) ) ) ) ) )

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND RECOMMENDED ORDER

RESTAURANTS,

Petitioner,

vs.

PEPE'S COFFEE SHOP,

Respondent.

Pursuant to notice, a final hearing was held in this case on

July 21, 2006, by videoteleconference at sites in Lauderdale

Lakes and Tallahassee, Florida, before Florence Snyder Rivas, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John Sawicki, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Joseph Trujillo (Owner), pro se

41 Northeast 44th Street

Fort Lauderdale, Florida 33334

STATEMENT OF THE ISSUE

The issue is whether Respondent committed the violations

alleged in the Administrative Complaint dated January 4, 2006,

and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 4, 2006, the

Department of Business and Professional Regulation, Division of

Hotels and Restaurants (Petitioner or Division), alleged that

Respondent, Pepe's Coffee Shop (Respondent or Pepe's), violated

statutes and rules which govern the operations of licensed

Florida food service establishments. Respondent timely asserted

its right to an administrative hearing to contest the

allegations. In due course, Petitioner referred the matter to

the Division of Administrative Hearings for the assignment of an

administrative law judge to conduct the requested hearing.

The identity of witnesses, exhibits and attendant rulings

are reflected in the one-volume transcript of the proceedings

filed on August 3, 2006. The Division filed a timely Proposed

Recommended Order which has been duly-considered; as of the date

of this Recommended Order, no post-hearing submission has been

filed on Respondent's behalf.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses

presented, and the entire record in this proceeding, the

following findings of fact are made:

1. At all relevant times, the Division is the state agency

responsible for licensing, regulating, and inspecting public food

service establishments. With particular relevance to this case,

it is the Division's responsibility to establish and enforce

rules pertaining to sanitation and public health and safety in

accordance with relevant provisions of the Florida Statutes; to

ensure compliance with its rules; and to impose discipline in

appropriate circumstances.

2. At all relevant times, Pepe's was licensed by the

Division as a public food service establishment under license

number 1616814; was located at 41 Northeast 44th Street in

Ft. Lauderdale, Florida 33060; and was operated and owned by

Joseph Trujillo.

3. At all relevant times, Michele Lynn Schneider

(Ms. Schneider) was employed by the Division as a sanitation and

safety inspector. Ms. Schneider's duties include conducting

inspections of Division licensees, including Pepe's. On or about

November 16, 2005, Ms. Schneider conducted a routine inspection

of Pepe's. Based upon her inspection she documented various

sanitation and safety violations and issued a written warning to

Pepe's which directed that the violations be remedied within 30

days. On December 22, 2005, Ms. Schneider returned to Pepe's to

conduct a re-inspection. Her re-inspection revealed that

violations documented at the time of the re-inspection had not

been remedied.

4. Violations observed by Ms. Schneider at both the

inspection and the re-inspection were "critical" in that they are

more likely than other violations to pose an immediate threat to

public health or safety. The violations observed and documented

by Ms. Schneider at the inspection and again at the re-inspection

were:

a) Violation 08A-28-1, based upon

Ms. Schneider's observation that food was

stored five inches above the floor. Food

stored less than six inches above the floor

is at risk of contamination.

b) Violation 10-8-1, based upon

Ms. Schneider's observation of an ice scoop

handle in contact with ice in an ice storage

container. Utensil handles such as scoop

handles which come in contact with employees'

hands and are then placed in food or other

consumables pose a risk of cross-

contamination.

c) Violation 12A-03, based upon

Ms. Schneider's observation that employees

failed to wash their hands in between

changing food preparation tasks and/or

between handling food and handling money or

other non-sanitary items. Failure to wash

hands between such tasks poses a risk of

cross-contamination.

d) Violation 31-07-1, based upon

Ms. Schneider's observation that there was no

dedicated hand washing sink in the

dishwashing area. To avoid risk of cross-

contamination, handwashing sinks must be

located in the dishwashing area and must be

used strictly for handwashing. Sinks used

for multiple purposes pose a risk of cross-

contamination.

e) Violation 31-08-1, based upon

Ms. Schneider's observation that there was no

hand washing sink in the food preparation

area. To avoid risk of cross-contamination,

handwashing sinks must be located in the

immediate vicinity of the food preparation

area.

f) Violation 12B-03, based upon

Ms. Schneider's observation of an employee

drinking from an open beverage container in a

food preparation area. Ms. Schneider later

observed the same beverage container next to

kitchen utensils. Should the drink spill and

the contents come in contact with food or

utensils, cross-contamination may occur.

5. Ms. Schneider was the only witness at the hearing. Her

testimony with regard to the material allegations of the

Administrative Complaint was credible, and was unrebutted by

Pepe's.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties to and subject matter of this proceeding

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2006). 1

7. Pursuant to Section 509.261, Florida Statutes,

Petitioner is empowered to regulate and discipline public food

service establishments; upon a finding that a public food service

establishment has operated or is operating in violation of

Chapter 509, Florida Statutes, or Florida Administrative Code

Rules promulgated thereto, discipline may be imposed including

administrative fines not to exceed $1,000.00 per offense;

mandatory attendance at the licensee's expense at an educational

program sponsored by the Hospitality Education Program; and the

suspension, revocation or refusal of a license. In order to take

disciplinary action, the Division must provide clear and

convincing evidence of the violations alleged to have been

committed by the licensee. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996).

8. Violations of critical laws or rules are defined in

Florida Administrative Code Rule 61C-1.0021(2), as "those

violations determined by the [Petitioner] to pose a significant

threat to the public health, safety, or welfare.”

9. Petitioner has alleged violations of the following rules

governing public food service establishments:

a. Rule 3-305.11, Food Code, which states in

pertinent part:

. . . food shall be protected from

contamination by storing the food at least 15

cm (6 inches) above the floor.

b. Rule 3-304.12(A), Food Code, which states

in pertinent part:

During pauses in food preparation or

dispensing, food preparation and dispensing

utensils shall be stored . . . in the food

with their handles above the top of the food

and the container . . .

c. Rule 2-301.11, Food Code, which states in

pertinent part:

Food employees shall keep their hands and

exposed portions of their arms clean.

d. Rule 5-204.11, Food Code, which states in

pertinent part:

A hand washing facility shall be located:

(A) To allow convenient use by employees in

food preparation, food dispensing, and

dishwashing areas . . .

e. Rule 2-401.11, Food Code, which states in

pertinent part:

. . . an employee shall eat, drink, or use

any form of tobacco only in designated areas

where the contamination of exposed food;

clean equipment, utensils, and linens;

unwrapped single-service and single-use

articles; or other items needing protection

can not result. . . .

10. Petitioner proved by clear and convincing evidence that

Respondent violated Rule 3-305.11, Food Code, by storing food

less than six inches above the floor.

11. Petitioner proved by clear and convincing evidence that

Respondent violated Rule 3-304.12(A), Food Code, by placing an

ice scoop handle into the ice in an ice storage container.

12. Petitioner proved by clear and convincing evidence that

Respondent violated Rule 2-301.11, Food Code, because employees

failed to wash their hands in between changing food preparation

tasks and/or between handling food and handling money or other

non-sanitary items.

13. Petitioner proved by clear and convincing evidence that

Respondent violated Rule 5-204.11, Food Code, by failing to

provide a dedicated handwashing sink in the dishwashing area.

14. Petitioner proved by clear and convincing evidence that

Respondent violated Rule 5-204.11, Food Code, by failing to

provide a dedicated handwashing sink in the food preparation

area.

15. Petitioner proved by clear and convincing evidence that

Respondent violated Rule 2-401.11, Food Code, by allowing an

employee to drink from an open container in an area not

designated for that purpose.

16. The Division has proposed that Respondent pay an

administrative penalty in the amount of $5,500 and attend, at

personal expense, a Hospitality Education Program approved by the

Division. The proposed penalty is within the Division's

authority and is reasonable under the facts and circumstances of

this case.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is:

RECOMMENDED that Petitioner enter a final order finding the

violations described and imposing an administrative fine on

Pepe's in the amount of $5,500, due and payable on terms

prescribed by the Division; and requiring the owner and/or

manager of Pepe's to attend, at the licensee's expense, an

educational program sponsored by the Hospitality Education

Program or other educational program approved by the Division,

within 60 days of the date of the final order, and to provide

proof thereof to the Division.

DONE AND ENTERED this 22nd day of September, 2006, in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of September, 2006.

ENDNOTE

1/ All further references to statutes and rules are to the 2005

versions in effect at the time of Ms. Schneider's inspections.

COPIES FURNISHED :

John Sawicki, Qualified Representative

Jessica Leigh, Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street,Suite 42

Tallahassee, Florida 32399-2202

Joseph Trujillo

41 Northeast 44th Street

Fort Lauderdale, Florida 33334

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

William Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 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.