07-004008 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Vito`s Pizza And Italian Restaurant Status: Closed Recommended Order on Wednesday, November 28, 2007.

Summary: Petitioner demonstrated by clear and convincing evidence that Respondent committed the violations alleged in the Administrative Complaint.

Case No. 07-4008

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND RECOMMENDED ORDER

RESTAURANTS,

Petitioner,

vs.

VITO'S PIZZA AND

ITALIAN RESTAURANT,

Respondent.

On October 16, 2007, a duly-noticed final hearing was held

in Jacksonville and Tallahassee, Florida, by means of video

teleconferencing. The case was considered by Lisa Shearer

Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32308

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent has committed the violations charged in

the Administrative Complaint and if so, what penalty should be

imposed?

PRELIMINARY STATEMENT

On June 26, 2007, the Department of Business and

Professional Regulation, Division of Hotels & Restaurants (the

Department or DBPR) issued an Administrative Complaint against

Vito's Pizza and Italian Restaurant, asserting violations of

Chapter 509, Florida Statutes, and the administrative rules

related to fire and food service violations. On July 24, 2007,

Respondent filed an Election of Rights form disputing issues of

material fact and requesting a hearing pursuant to Section

120.57(1), Florida Statutes. On September 4, 2007, the case was

referred to the Division of Administrative Hearings for an

assignment of an administrative law judge.

On September 18, 2007, a Notice of Hearing was issued

setting the case for hearing via video teleconference on

October 16, 2007, a date provided in the Joint Response to

Initial Order filed by the parties. The Notice and an Order of

Prehearing Instructions was sent to Respondent at the address

listed on its election of rights: 3825 Baymeadows Road,

Jacksonville, Florida 32217. Exhibit and witness lists were

served by Petitioner to Respondent at this same address. No

document issued by the Division has been returned as

undeliverable.

The case proceeded as noticed. The day of the hearing,

Petitioner, Petitioner's witness and the court reporter all

appeared at the noticed time. When Respondent did not appear, a

30-minute recess was taken in case Respondent was running late.

Counsel for Petitioner attempted to reach Respondent's

representative, but reported that she was unable to do so. The

case proceeded in Respondent's absence, and Petitioner presented

one witness and Petitioner's Exhibits lettered A through C were

admitted into evidence. When the hearing adjourned approximately

one hour after the noticed time for the hearing, Respondent had

not appeared.

On Wednesday, October 17, 2007, a letter was received at the

Division from Respondent which says, in its entirety:

Dear Sir:

I deeply apologize for the missing my

court date and the miscommunication I

received regarding my date in court today,

Tuesday, October 16, 2007. I certainly

would have been in attendance if I had

not been misinformed regarding the date

I was requested to attend.

Because the letter did not indicate that it was provided to

counsel for Petitioner, a Notice of Ex Parte Communication was

issued. After reviewing the letter and the file, the undersigned

determined that there was no need to re-convene the hearing.

Respondent did not ask for an opportunity to put on evidence. He

provided no affidavit or other evidence to support his statement

that he thought the hearing was to take place on another day. He

does not identify who "misinformed" him regarding the date for

hearing and did not indicate that he failed to receive the Notice

of Hearing or Order of Prehearing Instructions and they have not

been returned to the Division.

The proceedings were recorded and a transcript was filed

October 29, 2007. The parties were given until November 9, 2007,

to file Proposed Recommended Orders. The Department's Proposed

Recommended Order, which was timely filed, has been carefully

considered in this Recommended Order. No similar submission was

received from Respondent. However, on November 15, 2007,

Respondent filed a document entitled Motion for Rehearing,

objecting to Petitioner's Proposed Recommended Order. As will be

explained more fully in the Conclusions of Law, Petitioner's

Motion for Rehearing is denied.

FINDINGS OF FACT

1. Petitioner is the agency charged with the licensing and

regulation of public food service establishments, pursuant to the

provisions of Chapter 509, Florida Statutes.

2. Respondent is a restaurant holding food service license

number 2608949, in the name of TGF Pizza of Jacksonville, Inc.,

d/b/a as Vito's Pizza and Italian Restaurant.

3. Respondent's address of record is 3825 Baymeadows Road,

Jacksonville, Florida 32217-4364.

4. Bonnie Bradshaw is employed by the Department as a

Sanitation and Safety Specialist. In that capacity, she conducts

inspections of food service and lodging establishments for

compliance with Chapter 509, Florida Statutes; the Food Code; the

National Fire Protection Association Code; and the relevant

Florida Administrative Code Rules. Ms. Bradshaw is a certified

food manager and a certified special fire safety inspector.

5. Critical violations are violations of the relevant rules

and statutes that are more likely to contribute to a food-borne

illness, an environmental hazard, or to food contamination.

6. Non-critical violations are those violations that are

less likely to contribute to a food-borne illness, an

environmental hazard, or to food contamination.

7. On January 25, 2007, Ms. Bradshaw inspected the premises

of Vito's Pizza and Italian Restaurant. During the inspection,

Ms. Bradshaw prepared a Food Service Inspection Report setting

for the findings from her inspection. The Food Service

Inspection Report was provided to and signed for by Maria Teresi,

who was listed as the manager for the restaurant.

8. During the January 25, 2007, inspection, there were four

or more employees engaged in food preparation without a certified

food manager being present. Food managers ensure that proper

hand-washing techniques are used, proper food temperatures are

met and that employees are healthy. Failure to have a food

service manager present when four or more employees are engaged

in food preparation is considered a critical violation.

9. No consumer advisory for raw and undercooked products

was displayed at the establishment at the time of the January 24,

2007, inspection. Failure to post such an advisory is also

considered a critical violation because of the need to advise

consumers that eating raw or undercooked products could increase

their risk of food-borne illness.

10. Ms. Bradshaw also observed an unused and unprotected

opening in the panel box, and the exit signs were not properly

illuminated. Both are considered critical violations. The panel

box opening presents a fire or shock hazard, and the failure to

have the exit sign illuminated impairs the ability of consumers

to exit in the case of an emergency.

11. In addition, an electrical outlet in the electric

closet was missing a cover plate. This is also considered a

critical violation because of the fire or shock hazard presented.

12. The Food Service Inspection Report issued January 25,

2007, stated that violations in the operation of the

establishment must be corrected by May 25, 2007.

13. On May 30, 2007, Ms. Bradshaw returned to Respondent's

establishment for a re-inspection. At that time, she noted that

none of the critical violations previously noted had been

corrected. No certified food service manager was on the premises

although four or more employees were engaging in food

preparation; exit signs were not properly illuminated; no

consumer advisory on undercooked or raw animal products was

posted; the unused opening in the panel box was unprotected and

the electrical outlet in the electric closet still was missing a

cover plate.

14. Ms. Bradshaw prepared a Call Back Inspection Report as

a result of her inspection on May 30, 2007. The inspection

report was provided to and signed by Marie Teresi as manager.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

16. The Division of Hotels and Restaurants within the

Department of Business and Professional Regulation is charged

with the licensing and regulation of public lodging

establishments and public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

17. Any public food establishment that has violated the

provisions of Chapter 509 or the rules authorized by Chapter 509

is subject to fines of up to $1,000.00 per offense; mandatory

attendance at an educational program sponsored by the Hospitality

Program; suspension, revocation or refusal of a license. In

order to impose any such penalties, the Department must

demonstrate the allegations against Respondent by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

18. A "public food service establishment" is defined in

Section 509.013(5)(a), Florida Statutes, as follows:

"Public food service establishment" means any

building, vehicle, place, or structure where

food is prepared, served, or sold for

immediate consumption or in the vicinity of

the premises; called for or taken out by

customers; or prepared prior to being

delivered to another location for

consumption.

19. Respondent is a food service establishment as defined

by Section 509.013(5)(a).

20. Each public food service establishment must have a

license in order to operate. § 509.241, Fla. Stat.

21. Chapter 3 of the Food Code has been incorporated by

reference into the rules governing public food service

establishments. Fla. Admin. Code R. 61C-4.010(1). Provisions of

the Food Code relevant to this case include:

3-603.11 (A) Except as provided in paragraph

3-401.11(C) and Subparagraph 3-401.11(D)(3)

and under paragraph 3-801.11(D), if an animal

food such as beef, eggs, fish, lamb, milk,

pork, poultry, or shellfish is served or sold

raw, undercooked, or without otherwise being

processed to eliminate pathogens, either in

ready-to-eat form or as an ingredient in

another ready-to-eat good, the permit holder

shall inform customers of the significantly

increased risk of consuming such foods by way

of a disclosure and reminder, as specified in

paragraphs (B) and (C) of this section using

brochures, deli case or menu advisories,

label statements, table tents, placards, or

other effective written means.

(B) Disclosure shall include:

(1) A description of the animal-derived

foods, such as "oysters on the half

shall (raw oysters)," "raw-egg Caesar

salad," and "hamburgers (can be cooked

to order):" or

(2) Identification of the animal-

derived foods by asterisking them to a

footnote that states that the items are

served raw or undercooked, or contain

(or may contain) raw or undercooked

ingredients.

(C) Reminder shall include asterisking the

animal-derived foods requiring disclosure to

a footnote that states:

(1) Regarding the safety of these

items, written information is available

upon request;

(2) Consuming raw or undercooked meats,

poultry, seafood, shellfish, or eggs may

increase your risk of foodborne illness;

or

(3) Consuming raw or undercooked meats,

poultry, seafood, shellfish, or eggs may

increase your risk of foodborne illness,

especially if you have certain medical

conditions.

22. The Division of Hotels and Restaurants has also

incorporated Chapter 101 of the National Fire Protection

Association Code into its rules. See Fla. Admin. Code R. 61C-

1.004(5). Relevant portions of National Fire Protection

Association Code provide:

70,110.12(a): Unused cable or raceway

openings in boxes, raceways, auxiliary

gutters, cabinets, cutout boxes, meter socket

enclosures, equipment cases, or housings

shall be effectively closed to afford

protection substantially equivalent to the

wall of the equipment. Where metallic plugs

or plates are used with nonmetallic

enclosures, they shall be recessed at least 6

mm (1/4 in.) from the outer surface of the

enclosure.

70,300.31: Suitable covers shall be

installed on all boxes, fittings, and similar

enclosures to prevent accidental contact with

energized parts or physical damage to parts

or insulation.

23. The Division of Hotels & Restaurants has also adopted

rules with the following requirements:

61C-1.004 General Sanitation and Safety

Requirements.

The following general requirements and

standards shall be met by all public lodging

and public food service establishments:

* * *

(10) Means of access must permit

unobstructed travel at all times and be

maintained free of obstructions and fire

hazards. Halls, entrances and stairways

shall be clean, ventilated and well-lighted

day and night. Hall and stair runners shall

be kept in good condition. Hand rails shall

be installed on all stairways and guard rails

around all porches and steps. Adequate means

of exit shall be provided pursuant to NFPA

101. Exits shall be clearly marked with

approved illuminated signs.

61C-4.023 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 in this

chapter. 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 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.

24. The Administrative Complaint charged that on

January 25, 2007, and May 30, 2007, Respondent violated the

applicable rules in the following respects: 1) no consumer

advisory on raw/undercooked animal products was provided; 2) exit

signs were not properly illuminated; 3) an unused opening in the

panel box was unprotected; 4) an electrical outlet in the

electric closet was missing a cover plate; and 5) there was no

certified food protection manager on duty with four or more

employees engaged in food preparation.

25. There is clear and convincing evidence to substantiate

all five violations charged. Respondent violated Section 3-

603.11 of the Food Code by failing to provide a consumer advisory

for raw or undercooked animal products. Respondent violated

Florida Administrative Code Rule 61C-1.004(10) by failing to have

exit signs properly illuminated. Section 70,110.12(a) of the

National Fire Protection Association Code was violated by leaving

an unused panel in the panel box unprotected, and Section

70,300.31 of the same Code was violated by failing to have a

cover plate on an electrical outlet in the electric closet.

Finally, Respondent violated Florida Administrative Code Rule

61C-4.023(1), by failing to have a certified food protection

manager present when there were four or more employees engaged in

the storage, preparation or service of food.

26. Respondent filed a "Motion for Rehearing" after formal

hearing in this case. In that Motion, it refers to the

correspondence faxed to the Division of Administrative Hearings

on the day scheduled for hearing. It also states that, at some

unstated day, the writer's father was hospitalized requiring his

attention; that the parties did not confer five days prior to the

final hearing; and that he objects to the Petitioner's Proposed

Recommended Order.

27. Florida Administrative Code Rule 28-106.2015(5)

requires a respondent in a licensing proceeding to include the

respondent's name, address, and telephone number in a request for

hearing. Respondent gave the Baymeadows Road address in its

request for hearing. Rule 28-106.208 requires that written

notice for all hearings be provided to parties at their address

of record. Appropriate notice of the hearing was given in

accordance with the rule.

28. Finally, Florida Administrative Code Rule 28-106.210

allows for a continuance of a hearing for good cause shown, and

requires that except in cases of emergency, requests for

continuance must be made at least five days prior to the date

noticed for the hearing. No such motion was ever filed in this

case.

29. While Respondent claims that he did not understand when

the final hearing would take place, the Notice of Hearing was not

returned to the Division. Respondent has not claimed that he did

not receive the notice. Further, Respondent's Motion for

Rehearing refers to requirements in the Order of Prehearing

Instructions issued the same day as and mailed with the Notice of

Hearing. He has provided only an unverified statement that he

was confused as to the date. Even upon learning that the hearing

had taken place, he has not indicated what evidence, if any, he

had intended to present. Under these circumstances, no basis for

"rehearing" the case has been presented, and Respondent's Motion

is denied.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered that finds that Respondent in

violation of the charges alleged in the Administrative Complaint,

imposing an administrative fine in the amount of $2,000.00, and

requiring Respondent to attend an educational program sponsored

by the Hospitality Education Program.

DONE AND ENTERED this 28th day of November, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 28th day of November, 2007.

COPIES FURNISHED:

Jessica Leigh, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Crailio Teresi

TGF Pizza of Jax, Inc.

Vito's Pizza & Italian Restaurant

3825 Baymeadows Road

Jacksonville, Florida 32217

William Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.