09-001104
Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs.
El Tablazo Restaurant
Status: Closed
Recommended Order on Tuesday, June 9, 2009.
Recommended Order on Tuesday, June 9, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16DIVISION OF HOTELS AND )
21RESTAURANTS, )
23)
24Petitioner, )
26)
27vs. ) Case No. 09-1104
32)
33EL TABLAZO RESTAURANT, )
37)
38Respondent. )
40)
41RECOMMENDED ORDER
43A final hearing was held in this case on April 15, 2009, by
56video teleconference between sites in Miami and Tallahassee,
64Florida, before Administrative Law Judge Eleanor M. Hunter of
73the Division of Administrative Hearings.
78APPEARANCES
79For Petitioner: Sherria Williams, Qualified Representative
85Charles Tunnicliff, Esquire
88Department of Business and
92Professional Regulation
941940 North Monroe Street, Suite 60
100Tallahassee, Florida 32399-2202
103For Respondent: Omar DeJesus Sanchez, pro se
110El Tablazo Restaurant
1136780 Collins Avenue
116Miami Beach, Florida 33141
120STATEMENT OF THE ISSUES
124The issues in this disciplinary proceeding are whether
132Respondent, a licensed restaurant, was not in compliance with
141food safety regulations as alleged in the Administrative
149Complaint and, if so, what penalty should be imposed.
158PRELIMINARY STATEMENT
160In an Administrative Complaint dated October 10, 2008,
168Petitioner, Department of Business and Professional Regulation,
175Division of Hotels and Restaurants, alleged that Respondent, El
184Tablazo Restaurant, a restaurant owned and operated by Omar
193DeJesus Sanchez, was in violation of several provisions of the
203food safety regulations in Chapter 509, Florida Statutes (2008),
212and Florida Administrative Code Chapters 53A and 53B.
220Respondent disputed the allegations and timely requested a
228formal administrative hearing. The matter was forwarded to the
237Division of Administrative Hearings and assigned DOAH Case
245No. 09-1104. The formal hearing was held on April 15, 2009.
256At the hearing, Petitioner presented the testimony of
264Inspector Oscar Torres, and Petitioner's Exhibits lettered A
272through C, that were received into evidence. At Petitioner's
281request, official recognition was taken of Sections 509.039 and
290509.049, and Subsection 509.032(6), Florida Statutes (2008); and
298Florida Administrative Code Rule 61C-4.023(1). Respondent
304presented the testimony of Omar Sanchez and Luz Elena Cano de
315Sanchez, and, at the request of the undersigned without
324objection, one late-filed Composite Exhibit that was received on
333April 30, 2009.
336The Transcript of the hearing was filed May 9, 2009.
346Proposed Recommended Orders, if any, were due seven business
355days after receipt of the Transcript but, as of this date, none
367have been filed.
370FINDINGS OF FACT
3731. Petitioner, Department of Business and Professional
380Regulation, Division of Hotels and Restaurants (Petitioner), is
388the state agency charged with regulation of hotels and
397restaurants pursuant to Chapter 509, Florida Statutes (2008).
4052. At all times material to this case, El Tablazo
415Restaurant, Inc. (the Restaurant) was a licensed food service
424establishment located at 6780 Collins Avenue, Miami Beach,
432Florida 33141. The Restaurant held food service license number
4412323114, issued by Petitioner.
4453. On July 31, 2008, Oscar Torres, a trained sanitation
455and safety inspector employed by Petitioner, performed a routine
464inspection of the Restaurant.
4684. Mr. Torres identified various food safety regulation
476violations in a written report that was provided to Diana
486Ramirez, a waitress who was working in the Restaurant, at the
497time of the inspection. The report set September 30, 2008, as
508the date for a "callback" inspection which was, in effect, the
519deadline for all violations to be corrected.
5265. On October 3, 2008, Mr. Torres performed the callback
536inspection at which time he noted that the Restaurant continued
546to lack proof of having a certified food safety manager and that
558documentation showing proof that Restaurant employees had
565completed the required employee food service training had an
574expiration date of January 2008. At the time of the inspection,
585one cook and one waitress were working in the Restaurant.
5956. Mr. Torres testified that not having a certified food
605safety manager was the more critical of the two remaining
615violations that serve as the basis for the Administrative
624Complaint in this proceeding.
6287. Other deficiencies identified in the July 31, 2008,
637inspection report were resolved on a timely basis and are
647immaterial to this proceeding.
6518. At the hearing, the Restaurant owner, Omar Sanchez,
660testified that his is a family-owned Restaurant, and that his
670wife and brother-in-law are both certified food managers. He
679acknowledged there was no certified food manager in the
688Restaurant at the time of either inspection. His brother-in-law
697was in New York and his wife, Luz Cano Sanchez, testified that
709she was in Columbia. Mrs. Sanchez testified that his brother-
719in-law kept his certification card in his wallet, but that his
730wife's certification was at the Restaurant.
7369. Mr. Sanchez testified that he contacted a trainer for
746his employees, but not until some time in September, and the
757trainer, Giovanni Bierru, was unable to schedule the training
766until October 14, 2008, after the time of the deadline set for
778the callback inspection. There is no mitigating evidence,
786however, to support a conclusion that all employees were, in
796fact, trained only eleven days after the inspection.
80410. Subsequent to the hearing, on April 30, 2008, the
814Restaurant submitted a certificate indicating that Luz Cano was,
823beginning on February 21, 2002, a certified food safety manager,
833and that she had again completed food safety employee training
843on December 15, 2008.
847CONCLUSIONS OF LAW
85011. The Division of Administrative Hearings has
857jurisdiction over the parties to and the subject matter of this
868proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).
87612. Petitioner is the state agency charged with the
885regulation of food service establishments in the State of
894Florida. See Ch. 509, Fla. Stat. (2008).
90113. The Administrative Complaint alleged that, at the time
910of the inspections, Respondent lacked a certified food safety
919manager and documentation of up-to-date food service employee
927training.
92814. In this proceeding Petitioner has the burden of
937proving by clear and convincing evidence the allegations set
946forth in the Administrative Complaint against Respondent. State
954ex rel. Vining v. Florida Real Estate Commission , 281 So. 2d 487
966(Fla. 1973); Department of Banking and Finance v. Osborne Stern
976and Company , 670 So. 2d 932 (Fla. 1996); Nair v. Department of
988Business and Professional Regulation , 654 So. 2d 205 (Fla. 1st
998DCA 1995).
100015. To meet the clear and convincing evidence standard of
1010proof, as described in Slomowitz v. Walker , 429 So. 2d 797, 800
1022(Fla. 4th DCA 1983), the following is required:
1030. . . The evidence must be of such weight
1040that it produces in the mind of the trier of
1050fact a firm belief or conviction, without
1057hesitancy, as to the truth of the allegations
1065sought to be established.
1069The standard precludes reliance on evidence that is ambiguous.
1078Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc. , 590 So. 2d
1089986, 988 (Fla. 1st DCA 1991), rev. denied , 599 So. 2d 1279 (Fla.
11021992).
110316. Section 509.039, Florida Statutes (2008), provides as
1111follows:
1112Food service manager certification.--It is
1117the duty of the division to adopt, by rule,
1126food safety protection standards for the
1132training and certification of all food
1138service managers who are responsible for the
1145storage, preparation, display, or serving of
1151foods to the public in establishments
1157regulated under this chapter.
116117. The following portion of Section 509.039, Florida
1169Statutes (2008), is cited in Exhibit A to the Administrative
1179Complaint to describe Count One of the violations:
1187All managers employed by a food service
1194establishment must have passed an approved
1200test and received a certificate attesting
1206thereto. Managers have a period of 90 days
1214after employment to pass the required test.
122118. Count One also includes the following requirements of
1230Florida Administrative Code Rule 61C-4.023(1) as follows:
1237All managers who are responsible for the
1244storage, preparation, display, and serving
1249of foods to the public shall have passed a
1258certification test approved by the division
1264demonstrating a basic knowledge of food
1270protection practices as adopted in this
1276chapter. Those managers who successfully
1281pass an approved certification examination
1286shall be issued a certificate by the
1293certifying organization, which is valid for
1299a period of five years from the date of
1308issuance.
130919. That section of the Code continues as follows:
1318Each licensed establishment shall have a
1324minimum of one certified food protection
1330manager responsible for all periods of
1336operation. The operator shall designate in
1342writing the certified food protection
1347manager or managers for each location. A
1354current list of certified food protection
1360managers shall be available upon request in
1367each establishment. When four or more
1373employees, at one time, are engaged in the
1381storage, preparation or serving of food in a
1389licensed establishment, there shall be at
1395least one certified food protection manager
1401present at all times when said activities
1408are taking place. The certified food
1414protection manager or managers need not be
1421present in the establishment during those
1427periods of operation when there are three or
1435fewer employees engaged in the storage,
1441preparation, or serving of foods. It shall
1448be the responsibility of the certified food
1455protection manager or managers to inform all
1462employees under their supervision and
1467control who engage in the storage,
1473preparation, or serving of food, to do so in
1482accordance with acceptable sanitary
1486practices as described in this chapter.
149220. The late-filed Exhibit and the testimony on behalf of
1502the Restaurant confirm that Mrs. Cano de Sanchez had a food
1513service manager certificate dated February 21, 2002. Testimony
1521that her certificate was posted in the restaurant, but that the
1532waitress who was intimidated by the authority figure of the
1542inspector failed to show it to him is credible. Even if the
1554inspector had seen the certificate, however, it would have been
1564clear to him from the face of the certificate, issued on
1575February 21, 2002, valid for five years, or until February 21,
15862008, was invalid on October 3, 2008. The allegation in Count
1597One is established by clear and convincing evidence.
160521. Count Two, as cited in the Administrative Complaint,
1614relies on Section 509.049, Florida Statutes (2008), that
1622provides as follows:
1625Food service employee training.--
1629(1) The division shall adopt, by rule,
1636minimum food safety protection standards for
1642the training of all food service employees
1649who are responsible for the storage,
1655preparation, display, or serving of foods to
1662the public in establishments regulated under
1668this chapter. These standards shall not
1674include an examination, but shall provide
1680for a food safety training certificate
1686program for food service employees to be
1693administered by a private nonprofit provider
1699chosen by the division.
1703* * *
1706(5) It shall be the duty of [the licensee
1715of the] public food service establishment to
1722provide training in accordance with the
1728described rule to all . . . employees [under
1737the licensee's supervision or control]. The
1743[licensee] may designate a certified food
1749service manager to perform this function. .
1756. . Food service employees [hired after
1763November 1, 2001] must receive certification
1769within 60 days after employment.
1774Certification pursuant to this section shall
1780remain valid for 3 years.
178522. That provision continues as follows:
1791All public food service establishments must
1797provide the division with proof of employee
1804training upon request, including, but not
1810limited to, at the time of any division
1818inspection of the establishment. Proof of
1824training for each food service employee
1830shall include the name of the trained
1837employee, the date of birth of the trained
1845employee, the date the training occurred,
1851and the approved food safety training
1857program used.
185923. The evidence clearly established that, as Mr. Sanchez
1868acknowledged, at the time of the callback inspection of the
1878Restaurant, he had tried, but failed to have his employees
1888properly and timely trained. The document related to employee
1897training, provided to the inspector in October 2008, had expired
1907in January 2008. Respondent's late-filed Composite Exhibit
1914showing employee training for Mrs. Cano de Sanchez was not
1924issued until December 15, 2008, and does not prove that all
1935employees received the training within 60 days after employment,
1944as required by law, or that any had valid certificates of
1955training at the time of the callback inspection on October 3,
19662008. A violation of Count Two of the Administrative Complaint
1976is, therefore, established by clear and convincing evidence.
198424. As a matter of ultimate fact, based on unambiguous
1994evidence and law, Petitioner established that Respondent
2001violated Section 509.039, Florida Statutes (2008), and Florida
2009Administrative Code Rule 61C-4.023(1), requiring that a food
2017service manager have a valid certificate (Count One); and
2026violated Section 509.049, Florida Statutes (2008), requiring
2033current proof of training of all food service employees (Count
2043Two).
204425. Subsection 509.261(1), Florida Statutes (2008),
2050provides that each offense is punishable by a fine not to exceed
2062$1,000 per offense. In addition, offenses may be disciplined by
2073requiring mandatory attendance at an educational program
2080sponsored by Petitioner's Hospitality Education Program, or by
2088suspension, revocation, or refusal of a license, and/or any
2097other relief authorized by Chapter 509, Florida Statutes, or the
2107rules authorized to be promulgated pursuant to that Chapter.
211626. Petitioner requested that Respondent be subjected to
2124one or more of the following penalties: Administrative fine not
2134to exceed $1,000 per offense; mandatory attendance at
2143Respondent's expense at an educational program sponsored by the
2152Department's Hospitality Education Program; and/or suspension,
2158revocation, or the other relief authorized by the statute and
2168rules.
216927. The facts of this case are substantially similar to
2179those in Department of Business and Professional Regulation v.
2188Pittsburgh Pete's , DOAH Case No. 08-5414 (R.O. 3/3/09; F.O.
21975/18/09), except that the food service manager had a certificate
2207but was not present on the premises, as required in that case.
2219In both, this case and that one, there was no proof that all
2232employees had been properly trained. For those reasons, the
2241same penalty is recommended.
2245RECOMMENDATION
2246Based on the foregoing Findings of Fact and Conclusions of
2256Law, it is RECOMMENDED that the Department of Business and
2266Professional Regulation, Division of Hotels and Restaurants,
2273enter a final order imposing a fine of $500 against Respondent
2284payable within 30 calendar days of the final order, and
2294requiring that Respondent complete an appropriate educational
2301program related to food safety within 90 calendar days of the
2312final order.
2314DONE AND ENTERED this 9th day of June, 2009, in
2324Tallahassee, Leon County, Florida.
2328S
2329ELEANOR M. HUNTER
2332Administrative Law Judge
2335Division of Administrative Hearings
2339The DeSoto Building
23421230 Apalachee Parkway
2345Tallahassee, Florida 32399-3060
2348(850) 488-9675
2350Fax Filing (850) 921-6847
2354www.doah.state.fl.us
2355Filed with the Clerk of the
2361Division of Administrative Hearings
2365this 9th day of June, 2009.
2371COPIES FURNISHED :
2374Omar DeJesus Sanchez
2377El Tablazo Restaurant
23806780 Collins Avenue
2383Miami Beach, Florida 33141
2387Charles Tunnicliff, Esquire
2390Department of Business and
2394Professional Regulation
23961940 North Monroe Street, Suite 60
2402Tallahassee, Florida 32399-2202
2405Sherria Williams, Qualified Representative
2409Department of Business and
2413Professional Regulation
24151940 North Monroe Street, Suite 60
2421Tallahassee, Florida 32399-2202
2424Reginald Dixon, General Counsel
2428Department of Business and
2432Professional Regulation
2434Northwood Centre
24361940 North Monroe Street
2440Tallahassee, Florida 32399-0792
2443William L. Veach, Director
2447Division of Hotels and Restaurants
2452Department of Business and
2456Professional Regulation
2458Northwood Centre
24601940 North Monroe Street
2464Tallahassee, Florida 32399-0792
2467NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2473All parties have the right to submit written exceptions within
248315 days from the date of this Recommended Order. Any exceptions
2494to this Recommended Order should be filed with the agency that
2505will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/09/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 05/11/2009
- Proceedings: Transcript of Proceedings filed.
- Date: 04/30/2009
- Proceedings: Respondent`s Exhibit (exhibit not available for viewing) filed.
- Date: 04/15/2009
- Proceedings: CASE STATUS: Hearing Held.
Case Information
- Judge:
- ELEANOR M. HUNTER
- Date Filed:
- 03/02/2009
- Date Assignment:
- 03/02/2009
- Last Docket Entry:
- 07/06/2010
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Omar DeJesus Sanchez
Address of Record -
Charles F. Tunnicliff, Esquire
Address of Record