08-002657 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Lul Grill Cafe Status: Closed Recommended Order on Monday, January 12, 2009.

Summary: Restaurant should be fined for multiple violations of the Food Code and for failing to provide proof of employee training.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-2657

)

LUL GRILL CAFE, )

)

Respondent, )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 29, 2008, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

LeChea Parson, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2022

For Respondent: Eli Weinberg, p ro se

Etty Weinberg, pro se

LUL Grill Cafe

Elite Luggage Corporation

18288 Collins Avenue, No. 2

Sunny Isles Beach, Florida 33160

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the

Administrative Complaint and, if so, the penalties that should

be imposed.

PRELIMINARY STATEMENT

Respondent is a duly licensed restaurant. On December 27,

2007, Petitioner filed an Administrative Complaint against

Respondent that contained factual allegations based on an

inspection of Respondent’s facility on October 9, 2007, and a

call-back inspection on December 12, 2007. Based on those

inspections, Petitioner charged Respondent, in separately

numbered paragraphs, with the following eight violations of the

Food Code: 1

1. Respondent failed to provide a

consumer advisory for raw or undercooked

animal products in violation of Rule

3.603.11 of the Food Code.

2. Respondent stored raw chicken over

beef and other foods with a lower minimum

cooking temperature in violation of Rule 3-

302.11(A)(1) of the Food Code.

3. Respondent’s employee made bare-hand

contact of ready-to-eat food in violation of

Rule 3.301.11(B) of the Food Code.

4. There was no hand-wash sink accessible

for employee use at all times in the

dishwashing area in violation of Rule 5-

205.11(A) of the Food Code.

5. Accumulated food debris was observed

on the kitchen floor in violation of Rule 6-

501.12(A) of the Food Code.

6. A wall in the dishwashing area was

soiled with accumulated black debris in

violation of Fla. Admin. Code R. 61C-

1.004(6).

7. Light in the walk-in cooler was

missing the proper shield, sleeve coating,

or covers in violation of Rule 6-202.11 of

the Food Code.

8. Respondent failed to provide proof of

employee training in violation of Section

509.049, Florida Statutes. [2]

Respondent timely requested a formal administrative hearing

to challenge the allegations of the Administrative Complaint.

On June 4, 2008, the matter was referred to DOAH and this

proceeding followed.

At the formal hearing, Petitioner presented the testimony

of Ricardo Daniel Unold (a Sanitation and Safety Specialist

employed by Petitioner) and offered three sequentially lettered

exhibits, each of which was admitted into evidence.

Respondent presented the testimony of Eli Weinberg (one of

the owners of the subject restaurant) and offered six

sequentially numbered exhibits, each of which was admitted into

evidence.

At the request of Petitioner, the undersigned took official

recognition of Sections 509.032(6) and 509.049, Florida

Statutes; Fla. Admin. Code R. 61C-1.004(6); and Rules 3-603.11,

202.11, of the Food Code.

A Transcript of the proceedings was filed on December 11,

2008. Petitioner and Respondent filed Proposed Recommended

Orders, which have been duly-considered by the undersigned in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

was a restaurant subject to Petitioner’s regulation. That

regulation required Petitioner to comply with all relevant

provisions set forth in Florida Statutes, Florida Administrative

Code, and the Food Code. Petitioner’s license number is

2331106.

2. Respondent’s address is 18288 Collins Avenue No. 2,

Sunny Isles Beach, Florida (the subject premises).

3. Ricardo Daniel Unhold is employed by Petitioner as a

Senior Sanitation and Safety Specialist. Mr. Unhold is

experienced and properly trained to conduct inspections of food

service facilities (and public lodging establishments) to ensure

compliance with applicable regulations. Mr. Unhold performs

between 800 and 1,400 inspections per year.

4. On October 9, 2007, beginning at 10:20 a.m., Mr. Unhold

performed an inspection of the subject premises. As part of the

inspection, Mr. Unhold prepared a Food Service Inspection Report

(Petitioner’s Exhibit B) setting forth his findings. Mr. Unhold

reviewed his findings with the person in charge of the subject

premises and discussed with that person the deficiencies

identified on Exhibit B. Exhibit B reflected that the subject

premises was required to correct the noted deficiencies and that

a call-back inspection would be conducted on December 10, 2007.

5. Mr. Unhold performed the call-back inspection of the

subject premises on December 12, 2007, at approximately

1:00 p.m. Mr. Unhold prepared a second Food Service Inspection

Report (Petitioner’s Exhibit C) setting forth his findings.

Mr. Unhold reviewed his findings with Mr. Weinberg and explained

to him the reasons for the deficiencies identified by Exhibit C.

Mr. Unhold’s findings included deficiencies that had been noted

in the inspection on October 9, 2007, but had not been

corrected. The uncorrected deficiencies found during the call-

back inspection are the violations at issue in this proceeding.

6. On December 12, 2007, Mr. Weinberg could not provide

Mr. Unhold with proof that his employees had been trained as

required by Section 509.049, Florida Statutes. The testimony of

Mr. Unhold established that this failure is a critical violation 3

because untrained employees may not be aware of the importance

of proper hygiene and proper food handling, which can result in

contaminated food and the exposure of the consumer to food-borne

illness. Petitioner established the allegations of Paragraph 8

of the Administrative Complaint by clear and convincing

evidence.

7. On December 12, 2007, Mr. Unhold observed an employee

of the restaurant handling ready-to-eat food without gloves or

utensils. This inappropriate handling of food, referred to by

Mr. Unhold “bare-hand contact”, is a violation of Rule

3.301.11(B) of the Food Code. Mr. Unhold’s testimony

established that this should be considered a critical violation

because bare-handed contact of ready-to-eat food presents a

danger of cross-contaminating food. Petitioner established the

allegations of paragraph 3 of the Administrative Complaint by

clear and convincing evidence.

8. On December 12, 2007, Mr. Unhold observed that there

was no consumer advisory warning label advising that consuming

raw or undercooked meats could be hazardous to the consumer’s

health as alleged in paragraph 1 of the Administrative

Complaint. Mr. Unhold considered this to be a critical

violation. Petitioner established the factual allegations of

paragraph 1 by clear and convincing evidence. Petitioner

alleged that the fact that there was no consumer warning label

constituted a violation of Rule 3.603.11 of the Food Code.

Respondent operates as a kosher restaurant and does not serve

raw seafood or undercooked meat. Whether Respondent is required

to provide the warnings set forth in Rule 3.603.11 of the Food

Code will be discussed in the Conclusions of Law section of this

Recommended Order.

10. On December 12, 2007, Respondent stored raw chicken in

a bin directly above a bin of raw meat. If chicken juices were

to spill on to raw meat, a consumer of the cooked meat could be

exposed to salmonella because chicken needs to be cooked to a

temperature of 165° Fahrenheit while meat needs to be cooked

only to 145 Fahrenheit. The testimony of Mr. Unhold established

that such storage creates a health risk for the consumer and

should, consequently, be considered a critical violation.

Petitioner established the violation alleged in paragraph 2 by

clear and convincing evidence.

11. On December 12, 2007, Mr. Unhold observed a hand sink

that was used to store chemical bottles and towel and was

unavailable for employee hand washing. Mr. Weinberg testified

that the sink observed by Mr. Unhold was not used for employee

hand-washing, but that another small sink was used for that

purpose. Mr. Unhold could not recall the additional sink

referred to by Mr. Weinberg, but he testified that all hand

sinks should be used for no purpose other than employee hand

washing and that those sinks should be accessible to employees

at all times. Petitioner alleged in paragraph 4 of the

Administrative Complaint that the use of the hand sink to store

chemical bottles and towels violated Rule 5-205.11(A) of the

Food Code. Petitioner proved that allegation by clear and

convincing evidence. The fact that the employees had another

sink that could use for hand-washing should be considered in

determining the penalty that should be imposed for the

violation.

12. On December 12, 2007, Mr. Unhold observed food debris

on the kitchen floor. Specifically, he observed grease and

onion peel on the floor. The floor should be clean to avoid

attracting vermin. Rule 6-202.12(a) of the Food Code requires

that the licensee’s physical facilities be cleaned as often as

necessary to keep them clean. There is no exception for a

working kitchen during the hours the facility is open for

business. Petitioner proved the allegations of paragraph 5 of

the Administrative Complaint by clear and convincing evidence.

13. On December 12, 2007, Mr. Unhold observed accumulated

black debris in the dishwashing area of the wall that appeared

to be a mold-like substance. Mr. Unhold was concerned that an

employee could come into contact with the accumulated black

debris and thereafter contaminate dishes in the dishwashing

area. Mr. Unhold’s testimony established that this is a

violation of Florida Administrative Code Rule 61C-1.004(6),

which requires the premises to be kept clean. Petitioner

established the violation alleged in paragraph 6 of the

Administrative Complaint by clear and convincing evidence.

14. On December 12, 2007, Mr. Unhold observed that the

light bulb in the walk-in cooler was missing a proper shield.

Mr. Unhold testified that without a shield, a light bulb that

bursts could deposit shards of glass in the food stored in the

cooler. Mr. Unhold’s testimony established that this is a

violation of Rule 6-202.11 of the Food Code as alleged in

paragraph 7 of the Administrative Complaint. Petitioner

established the violation alleged in paragraph 7 of the

Administrative Complaint by clear and convincing evidence.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

16. Petitioner has been statutorily delegated the

authority to "carry out all of the provisions of [Chapter 509,

Florida Statutes] and all other laws relating to the inspection

or regulation of . . . public food service establishments for

the purpose of safeguarding the public health, safety, and

welfare." § 509.032, Fla. Stat.

17. Each "public food service establishment" must have a

license from Petitioner prior to the commencement of operation.

§ 509.241, Fla. Stat.

18. Subsection 509.049(8)(a), Florida Statutes, provides

in relevant part, as follows:

(8) The following are violations for which

the division may impose administrative fines

of up to $1,000 on a public food service

establishment . . .:

(a) Failure of a public food service

establishment to provide proof of training

pursuant to subsection (5) upon request by

the division . . .

19. Section 509.261(1), Florida Statutes, provides that

any public food services establishment that has operated or is

operating in violation of Chapter 509, Florida Statutes, or the

rules promulgated thereunder, is subject to license revocation;

license suspension; imposition of administrative fines not to

exceed $1,000.00 per offense; and mandatory attendance, at

personal expense, at an educational program sponsored by the

Hospitality Education Program (established pursuant to Section

509.302, Florida Statutes).

20. Petitioner bears the burden of proving that the

licensee committed the violations alleged in the administrative

complaint by clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932, 935

(Fla. 1996); Pic N' Save of Central Florida v. Department of

Business Regulation , 601 So. 2d 245, 249 (Fla. 1st DCA 1992);

and § 120.57(1)(j), Fla. Stat.

21. Paragraph 1 alleges that Respondent failed to provide

the consumer warning required by Rule 3-603.11 of the Food Code.

Except in circumstance inapplicable to this proceeding, that

Rule requires the consumer warning under the following

circumstances: “. . . if an animal food such as beef, eggs,

fish, lamb, milk, port, 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 food. . . .” The testimony

of Mr. Weinberg established that Respondent operates as a kosher

restaurant and does not serve any raw or uncooked products

(other than vegetables). Consequently, it is concluded that

Respondent was not required to give the consumer warning

required by Rule 3-603.11 of the Food Code, and that Respondent

is not guilty of the offense alleged in paragraph 1 of the

Administrative Complaint.

22. Petitioner met its burden of establishing by clear and

convincing evidence that Respondent committed the violations

alleged in paragraphs 8, 3, 2, 4, 5, 6 and 7 of the

Administrative Complaint. Accordingly, disciplinary action may

be taken against Respondent pursuant to Sections 509.049(8)(a),

and 509.261(1), Florida Statutes.

23. No disciplinary guidelines have been referenced by

Petitioner.

24. The recommended penalties that follow are within the

range of penalties Petitioner is authorized to impose. In

determining the penalty that should be imposed, the undersigned

has considered that the violations of paragraphs 8, 3, and 2 are

critical violations. The undersigned has also considered that

paragraphs 4-7 are considered non-critical violations. As to

the paragraph 4 violation the undersigned has considered that

there was another hand sink available for the use of the

employees. As to the paragraph 5 violation, the undersigned has

considered that the inspection was conducted while the

restaurant was opened and there was no determination as to how

long the debris had been on the floor.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that Petitioner enter a final

order finding Respondent not guilty of the violation alleged in

paragraph 1 of the Administrative Complaint. It is further

RECOMMENDED that the final order find Respondent guilty of the

violations alleged in the remaining numbered paragraphs of the

Administrative Complaint. It is further RECOMMENDED that

Administrative Fines be imposed against Respondent as follows:

$1,000.00 for paragraph 8; $1,000.00 for paragraph 3; $1,000.00

for paragraph 2; $100.00 for paragraph 4; $100.00 for

paragraph 5; $200.00 for paragraph 6; and $100.00 for

paragraph 7, for a total of $3,500.00. It is further

RECOMMENDED that Respondent send a manager at its expense to

attend an educational program sponsored by Petitioner’s

Hospitality Education Program.

DONE AND ENTERED this 12th day of January, 2009, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2009.

ENDNOTES

1 / Any reference to the Florida Administrative Code is to the

version of the Florida Administrative Code as of the date of the

alleged violations. The term “Food Code” is defined by Florida

Administrative Code Rule 61C-1.001(14). References in this

Recommended Order to the Food Code are to the documents

specified in that definition. Respondent is required to comply

with the applicable sections of the Food Code pursuant to

Florida Administrative Code Rule 61C-4.010(1). Petitioner’s

Administrative Complaint sets forth verbatim the applicable

portions of the statutes and rules Respondent has allegedly

violated. Those statutes and rules are incorporated herein by

reference. The references to Florida Statutes in this

Recommended Order are to Florida Statutes (2008).

2 / This is intended to be a summary of the allegations set forth

in the Administrative Complaint. Any question as to those

allegations should be resolved by reviewing that pleading in its

entirety.

In its Administrative Complaint, Petitioner incorrectly cites

the authority in Paragraph 8 as being “509.049 F.A.C.” which is

presumed to be a reference to the Florida Administrative Code.

The reference should have been to Florida Statutes. The

undersigned has construed this to be a scrivener’s error that

has caused Respondent no prejudice.

At the formal hearing and in its Proposed Recommended Order,

Petitioner addressed the alleged violations in the paragraphs

numbered sequentially from 1 to 8 in the Administrative

Complaint in the following order: 8, 3, 1, 2, 4, 5, 6, and 7.

For ease of reference, the undersigned has used the order

adopted by Petitioner.

3 / Whether a violation is a critical violation or a non-critical

violation goes only to the penalty that should be imposed for

the violation. During his testimony, Mr. Unhold defined the

term “critical violation” to be the type violation that

contributes directly to foodborne illness, contamination, health

risk, and illness. That definition is accepted as being

consistent with the following provision set forth in Florida

Administrative Code Rule 61C-1.0021(2):

(2) Violations of critical laws or rules

are those violations determined by the

division to pose a significant threat to the

public health, safety, or welfare. . . .

COPIES FURNISHED :

Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Eli Weinberg

LUL Grill Cafe

Elite Luggage Corporation

18288 Collins Avenue, No. 2

Sunny Isles Beach, Florida

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.