08-004981 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Food For Your Mood Status: Closed Recommended Order on Wednesday, May 6, 2009.

Summary: Petitioner demonstrated by clear and convincing evidence that Respondent committed a critical violation of the Food Code, regarding controlling pests. Recommendation of $1,000 administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-4981

)

FOOD FOR YOUR MOOD, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on January 15, 2009, by video teleconference with connecting

sites in Miami and Tallahassee, Florida, before Errol H. Powell,

an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Nicole Moxey, pro se

Food For Your Mood

16650 Northwest 27th Avenue

Miami, Florida 33054

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offense set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Hotels and Restaurants, hereinafter Department,

issued an Administrative Complaint against Food For Your Mood,

dated August 22, 2008. The Department charged Food For Your

Mood with violating Food Code Rule 6-501.111, Controlling Pests,

in that 30-plus live roaches and 20-plus dead roaches were

observed behind the reach-in cooler in the kitchen. Food For

Your Mood disputed the material allegations of fact and

requested a hearing. On October 8, 2008, this matter was

referred to the Division of Administrative Hearings.

At hearing, the Department presented the testimony of two

witnesses and entered two exhibits (Petitioner’s Exhibits

numbered 1-2) into evidence. Food For Your Mood presented the

testimony of one witness, Nicole Moxley, who testified on her

own behalf, and entered no exhibits into evidence. The

undersigned took official recognition of Section 509.032(6),

Florida Statutes (2007), and Food Code Rule 6-501.111.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on April 7,

2009. The parties timely filed their post-hearing submissions,

which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Food For Your Mood was

licensed as a public food service establishment in the State of

Florida by the Department, having been issued license type 2010

and license number 2330809.

2. At all times material hereto, Food For Your Mood was

located at 16650 Northwest 27th Avenue, Opa-Locka, Florida

33054.

3. A critical violation in food service is considered to

be a violation that can immediately constitute a health threat

or food-borne illness, or can contribute directly to a food-

borne illness. A non-critical violation is considered to be a

violation that does not immediately constitute a health threat

or food-borne illness, but, if not corrected, can constitute or

often lead to a health threat or food-borne illness.

4. On August 22, 2008, Kevon Pierre, a sanitation and

safety specialist with the Department, conducted an inspection

of Food For Your Mood. Accompanying Mr. Pierre was another

inspector with the Department, Guillermo Alonso, a sanitation

and safety supervisor, who did not perform any of the

inspection.

5. Food For Your Mood was situated between two

restaurants, one of which was closed and abandoned.

6. During the inspection, Mr. Pierre found a violation,

which he considered to be a critical violation. Further, during

the inspection, Mr. Pierre prepared a food inspection report on

his PDA (Personal Data Assistant), setting forth the alleged

critical violation. Mr. Pierre made Ms. Moxley aware of the

alleged critical violation and reviewed the inspection report

with her. The inspection report was signed by Mr. Pierre,

Ms. Moxley, and Mr. Alonso.

7. The inspection on August 22, 2008, involved a possible

closure of Food For Your Mood. Even though Mr. Pierre conducted

the inspection, Mr. Alonso, as a supervisor, was also required

to sign the inspection report because the inspection involved a

possible closure of Food For Your Mood, and because, at that

time, Mr. Pierre was not a “standardized” inspector, meaning

that he was on probationary status.

8. The alleged critical violation on August 22, 2008, was

35A-05-1: 1 “Observed roach activity as evidenced by live roaches

found 30 PLUS LIVE ROACHES BEHIND REACH IN COOLER IN KITCHEN

AREA.” The reach-in cooler was on wheels, so Mr. Pierre was

able to move it, observe the area behind it, and observe the

roaches. Mr. Pierre counted the roaches. Additionally,

Mr. Alonso observed live roaches behind the reach-in cooler, but

did not count them. Mr. Pierre and Mr. Alonso considered this

alleged violation to be a critical violation because the roaches

constituted an immediate health threat and/or cause a food-borne

illness due to some of the diseases that they may carry. Their

testimony on this subject is found to be credible and clear and

convincing.

9. Ms. Moxley looked behind the reach-in cooler after

Mr. Pierre and Mr. Alonso, but failed to observe any roaches.

Her testimony is found to be credible; however, the testimony of

Mr. Pierre and Mr. Alonso is found to be more credible.

10. Even though Mr. Pierre testified that it was standard

procedure to inspect an adjoining restaurant in a shopping

complex or a complex, no testimony was presented as to the

findings of his inspection of the restaurant that was still

operating.

11. Mr. Pierre did not enter and inspect the adjoining

restaurant that was closed and abandoned because the Department

did not have jurisdiction to enter and inspect a closed

restaurant.

12. Food For Your Mood was closed as a result of the

critical violation being found.

13. No evidence was presented regarding the alleged

violation set forth in the Administrative Complaint regarding

20-plus dead roaches observed behind the reach-in cooler in the

kitchen area.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

15. The Department has the burden of proof to show by

clear and convincing evidence that Food For Your Mood committed

the offense set forth in the Administrative Complaint.

Department of Banking and Finance, Division of Securities and

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

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

16. Section 509.032, Florida Statutes (2008), provides in

pertinent part:

(1) GENERAL. --The division [Division of

Hotels and Restaurants of the Department of

Business and Professional Regulation] shall

carry out all of the provisions of this

chapter and all other applicable laws and

rules relating to the inspection or

regulation of public lodging establishments

and public food service establishments for

the purpose of safeguarding the public

health, safety, and welfare. . . .

(2) INSPECTION OF PREMISES.

(a) The division has responsibility and

jurisdiction for all inspections required by

this chapter. The division has

responsibility for quality assurance. . .

(b) For purposes of performing required

inspections and the enforcement of this

chapter, the division has the right of entry

and access to public lodging establishments

and public food service establishments at

any reasonable time.

(c) Public food service establishment

inspections shall be conducted to enforce

provisions of this part and to educate,

inform, and promote cooperation between the

division and the establishment.

(d) The division shall adopt and enforce

sanitation rules consistent with law to

ensure the protection of the public from

food-borne illness in those establishments

licensed under this chapter. These rules

shall provide the standards and requirements

for obtaining, storing, preparing,

processing, serving, or displaying food in

public food service establishments . . .

conducting necessary public food service

establishment inspections for compliance

with sanitation regulations . . . and

initiating enforcement actions, and for

other such responsibilities deemed necessary

by the division. . . .

* * *

(3) SANITARY STANDARDS; EMERGENCIES;

TEMPORARY FOOD SERVICE EVENTS. --The

division shall:

(a) Prescribe sanitary standards which

shall be enforced in public food service

establishments.

* * *

(6) RULEMAKING AUTHORITY. --The division

shall adopt such rules as are necessary to

carry out the provisions of this chapter.

17. Florida Administrative Code Rule 61C-1.004, “General

Sanitation and Safety Requirements,” provides in pertinent part:

The following general requirements and

standards shall be met by all public lodging

and public food service establishments:

(3) Vermin control - Effective control

measures shall be taken to protect against

the entrance into the establishment, and the

breeding or presence on the premises of

rodents, flies, roaches and other vermin.

All buildings shall be effectively rodent-

proofed, free of rodents and maintained in a

rodent-proof and rodent-free

condition. . . .

18. As to alleged violation 35A-05-1, Food Code Rule 6-

501.111, “Controlling Pests,” provides in pertinent part:

The presence of insects, rodents, and other

pests shall be controlled to minimize their

presence on the PREMISES by:

(A) Routinely inspecting incoming shipments

of FOOD and supplies;

(B) Routinely inspecting the PREMISES for

evidence of pests;

(C) Using methods, if pests are found, such

as trapping devices or other means of pest

control as specified under §§ 7-202.12, 7-

206.12, and 7-206.13; and

(D) Eliminating harborage conditions.

(emphasis in original)

19. The evidence is clear and convincing and demonstrates

that Food For Your Mood violated Food Code Rule 6-501.111 in

that 30-plus live roaches were found behind the reach-in cooler

in the kitchen area. Furthermore, the evidence is clear and

convincing and demonstrates that the violation was a critical

violation.

20. Regarding the alleged violation of Food Code Rule 6-

501.111 as to 20-plus dead roaches found behind the reach-in

cooler in the kitchen area, this violation is considered

abandoned by the Department since no evidence was presented.

21. As to penalty, Section 509.261, Florida Statutes

(2008), provides in pertinent part:

(1) Any public lodging establishment or

public food service establishment that has

operated or is operating in violation of

this chapter or the rules of the division,

operating without a license, or operating

with a suspended or revoked license may be

subject by the division to:

(a) Fines not to exceed $ 1,000 per

offense;

(b) Mandatory attendance, at personal

expense, at an educational program sponsored

by the Hospitality Education Program; and

(c) The suspension, revocation, or refusal

of a license issued pursuant to this

chapter.

22. The Department suggests an administrative fine in the

amount of $2,000.00, which is contrary to the administrative

fine provision of Section 509.261(1)(a), Florida Statutes

(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 an administrative fine in the

amount of $1,000.00 against Food For Your Mood.

DONE AND ENTERED this 6th day of May, 2009, in Tallahassee,

Leon County, Florida.

__________________________________

ERROL H. POWELL

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 6th day of May, 2009.

ENDNOTE

1/ This identification number is the corresponding identification

number of the violation in the inspection report.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Nicole Moxey

Food For Your Mood

16650 Northwest 27th Avenue

Miami, Florida 33054

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.