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.


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Summary: Petitioner established by clear and convincing evidence that Respondent did not have a food service manager or trained food service employees with valid cerificates during the "callback" inspection. Recommend a penalty of $500 fine/food safety course.

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.

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Date
Proceedings
PDF:
Date: 07/06/2010
Proceedings: (Agency) Final Order filed.
PDF:
Date: 06/02/2010
Proceedings: Agency Final Order
PDF:
Date: 06/09/2009
Proceedings: Recommended Order
PDF:
Date: 06/09/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/09/2009
Proceedings: Recommended Order (hearing held April 15, 2009). CASE CLOSED.
Date: 05/11/2009
Proceedings: Transcript of Proceedings filed.
Date: 04/30/2009
Proceedings: Respondent`s Exhibit (exhibit not available for viewing) filed.
PDF:
Date: 04/22/2009
Proceedings: Order Requiring Filing of Exhibit.
Date: 04/15/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/09/2009
Proceedings: Affidavit of Sherria Donnette Williams filed.
PDF:
Date: 04/09/2009
Proceedings: Petitioner`s Motion to Accept Qualified Representative filed.
PDF:
Date: 04/08/2009
Proceedings: Petitioner`s Witness List filed.
PDF:
Date: 04/08/2009
Proceedings: Petitioner`s Exhibit List filed.
PDF:
Date: 03/10/2009
Proceedings: Order Directing Filing of Exhibits
PDF:
Date: 03/10/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/10/2009
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 15, 2009; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 03/09/2009
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 03/02/2009
Proceedings: Initial Order.
PDF:
Date: 03/02/2009
Proceedings: Election of Rights filed.
PDF:
Date: 03/02/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 03/02/2009
Proceedings: Agency referral

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

Related DOAH Cases(s) (2):

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):