09-004258 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Ram's Roti Palace Status: Closed Recommended Order on Tuesday, November 3, 2009.

Summary: Petitioner proved by clear and convincing evidence that Respondent committed the violations of the Food Code and Section 509.049, Florida Statutes, alleged in the Administrative Complaint; Recommend a $3,100.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 09-4258

)

RAM'S ROTI PALACE, 1 )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

October 12, 2009, by video teleconference at sites in Lauderdale

Lakes and Tallahassee, Florida, before Stuart M. Lerner, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Frankie B. Ramsook, Manager

Ram's Roti Palace

Post Office Box 491912

Fort Lauderdale, Florida 33349

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On January 29, 2009, Petitioner issued an Administrative

Complaint alleging that, on October 29, 2008, and January 7,

2009, Respondent was in violation of Section 3-305.11 of the

Food Code (Count 1); Section 4-101.11 of the Food Code (Count

2); Section 4-601.11(A) of the Food Code (Count 3); Section 4-

602.13 of the Food Code (Count 4); Section 6-301.12 of the Food

Code (Count 5); Section 6-202.15 of the Food Code (Count 6); and

Section 509.049, Florida Statutes (Count 7).

On or about February 8, 2009, Respondent requested "an

evidentiary hearing pursuant to Section 120.57(1), Florida

Statutes," on the allegations made in the Administrative

Complaint. On August 11, 2009, the matter was referred to DOAH

for the assignment of a DOAH administrative law judge to conduct

the hearing Respondent had requested.

As noted above, the hearing was held on October 12, 2009.

Four witnesses testified at the final hearing: Novelette

Williams and Sean Grosvenor (on behalf of Petitioner); and

Rhoolkumari Nandkishore and Frankie Ramsook (on behalf of

Respondent). In addition to the testimony of these four

witnesses, three exhibits (Petitioner's Exhibits 1 through 3)

were offered and received into evidence.

At the close of the taking of evidence, the undersigned

established a deadline (10 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on October 21, 2009.

Petitioner filed its Proposed Recommended Order on

October 26, 2009. To date, Respondent has not filed any post-

hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Ram's Roti Palace (Restaurant) is a 900-square foot

eating establishment located in Lauderdale Lakes, Florida, that

serves Caribbean food. Its specialty is roti, a sandwich-like,

flour-based "wrap." The vast majority of it sales are from

take-out orders, but it does have tables and chairs for seated

dining. The Restaurant's sales have decreased 20-25 percent

from pre-recession levels, but unlike many of its competitors it

has managed to survive and stay in business.

2. Frankie Ramsook is now, and has been since

September 15, 1999, the holder of a license issued by Petitioner

(present license number SEA1618855) authorizing him to operate

the Restaurant as a public food service establishment.

3. On October 29, 2009, Novelette Williams, a Senior

Sanitation and Safety Specialist with Petitioner, along with

Sean Grosvenor, a Sanitation and Safety Supervisor with

Petitioner, conducted a "routine" inspection of the premises of

the Restaurant. The inspection revealed, among other things,

the following (which hereinafter will be referred to,

collectively, as the "Conditions"): an opened bag of flour was

kept on the floor in the kitchen; food items used to prepare

dishes served in the Restaurant were stored on shelves, and in

an unlocked freezer, both of which were located in a customer-

accessible hallway leading to the Restaurant's bathroom 2 ; food

contact surfaces in the freezer were not smooth and easily

cleanable, but rather were covered with newspapers (which could

"rip and tear and become part of the food" stored in the

freezer); accumulated dirt and other residue build-up were on

food contact surfaces (on the stove, in the oven, in the

microwave, on shelves, and in storage containers), as well as on

non-food contact surfaces (around the stove and the exterior of

the freezer); the Restaurant's bathroom had a sink for

handwashing, but it was not equipped with individual, paper

towels or other hand drying device 3 ; and the rear door to the

Restaurant was not self-closing. 4 Furthermore, Mr. Ramsook was

unable to produce proof of employee food service training when

asked to do so by Ms. Williams and Mr. Grosvenor during the

inspection.

4. Before leaving the establishment, Mr. Grosvenor advised

Mr. Ramsook, who was present during the inspection, that there

would be a "callback" inspection to determine whether these

Conditions had been corrected.

5. Ms. Williams and Mr. Grosvenor conducted a "callback"

inspection of the premises of the Restaurant on January 7, 2009.

The inspection revealed that each of the Conditions described in

Finding of Fact 3 still existed, and, once again, Ms. Williams'

and Mr. Grosvenor's request to see proof of employee food

service training went unfulfilled.

CONCLUSIONS OF LAW

6. 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.

7. A "public food service establishment," as that term is

used in Chapter 509, Florida Statutes, is defined in Section

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

"Public food service establishment" means

any building, vehicle, place, or structure,

or any room or division in a building,

vehicle, place, or structure where food is

prepared, served, or sold for immediate

consumption on 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.

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

license from Petitioner prior to the commencement of operation.

§ 509.241, Fla. Stat.

9. Disciplinary action may be taken against the holder of

such license for "operating in violation of [Chapter 509,

Florida Statutes] or the rules of [Petitioner]." Such

disciplinary action may include one or more of the following

penalties: license revocation, with the licensee unable to

"apply for another license for that location prior to the date

on which the revoked license would have expired"; license

suspension (for a period not exceeding 12 months), with the

licensee able to "apply for reinstatement or renewal of the

license" following the suspension period; imposition of an

administrative fine not to exceed $1,000 for each separate

offense 5 ; and "[m]andatory attendance, at personal expense, at an

educational program sponsored by the Hospitality Education

Program." § 509.261, Fla. Stat.

10. The statutory and rule provisions, violation of which

subject a licensee to disciplinary action pursuant to Section

509.261, Florida Statutes, include the following:

Section 509.049, Florida Statutes Food

service employee training.--

(1) The [D]ivision [of Hotels and

Restaurants of the Department of Business

and Professional Regulation] shall adopt, by

rule, minimum food safety protection

standards for the training of all food

service employees who are responsible for

the storage, preparation, display, or

serving of foods to the public in

establishments regulated under this

chapter. . . .

* * *

(5) It shall be the duty of each public

food service establishment to provide

training in accordance with the described

rule to all food service employees of the

public food service establishment. The

public food service establishment may

designate any certified food service manager

to perform this function. Food service

employees must receive certification within

60 days after employment. Certification

pursuant to this section shall remain valid

for 3 years. All public food service

establishments must provide the division

with proof of employee training upon

request, including, but not limited to, at

the time of any division inspection of the

establishment. Proof of training for each

food service employee shall include the name

of the trained employee, the date of birth

of the trained employee, the date the

training occurred, and the approved food

safety training program used.

* * *

Florida Administrative Code Rule 61C-4.010

Sanitation and Safety Requirements.

(1) Food Supplies and Food Protection -

Except as specifically provided in this

rule, public food service establishments

shall be subject to the provisions of

Chapter 3, Food Code, as adopted by

reference in Rule 61C-1.001, F.A.C.[ 6 ]

* * *

(5) Food Equipment, Utensils and Linens -

Public food service establishments shall be

subject to the provisions of Chapter 4, Food

Code, as adopted by reference in Rule 61C-

1.001, F.A.C.

(6) Physical Facilities - Except as

specifically provided in these rules, the

physical facilities at public food service

establishments shall be subject to the

provisions of Chapter 6, Food Code, as

adopted by reference in Rule 61C-1.001,

F.A.C. . . . . .

* * *

11. Section 3-305.11 of Chapter 3 of the Food Code (which

is incorporated by reference in Florida Administrative Code Rule

61C-4.010(1)) provides as follows:

Section 3-305.11 Food Storage

(A) Except as specified in ¶¶ (B) and (C)

of this section, food shall be protected

from contamination by storing the food:

(1) In a clean, dry location;

(2) Where it is not exposed to splash,

dust, or other contamination; and

(3) At least 15 cm (6 inches) above the

floor.

(B) Food in packages and working containers

may be stored less than 15 cm (6 inches)

above the floor on case lot handling

equipment as specified under § 4-204.122.

(C) Pressurized beverage containers, cased

food in waterproof containers such as

bottles or cans, and milk containers in

plastic crates may be stored on a floor that

is clean and not exposed to floor moisture.

12. Sections 4-101.11, 4-601.11(A), and 4.602.13 of

Chapter 4 of the Food Code (which is incorporated by reference

in Florida Administrative Code Rule 61C-4.010(5)) provide as

follows:

Section 4-101.11 Characteristics

Materials that are used in the construction

of utensils and food-contact surfaces of

equipment may not allow the migration of

deleterious substances or impart colors,

odors, or tastes to food and under normal

use conditions shall be:

(A) Safe;

(B) Durable, corrosion-resistant, and

nonabsorbent; (C) Sufficient in weight and

thickness to withstand repeated warewashing;

(D) Finished to have a smooth, easily

cleanable surface; and

(E) Resistant to pitting, chipping,

crazing, scratching, scoring, distortion,

and decomposition.

* * *

Section 4-601.11 Equipment, Food-Contact

Surfaces, Nonfood-Contact Surfaces, and

Utensils .

(A) Equipment food-contact surfaces and

utensils shall be clean to sight and touch.

* * *

Section 4-602.13 Nonfood-Contact Surfaces

Nonfood-contact surfaces of equipment shall

be cleaned at a frequency necessary to

preclude accumulation of soil residues.

* * *

13. Sections 6-202.15 and 6-301.12 of Chapter 6 of the

Food Code (which is incorporated by reference in Florida

Administrative Code Rule 61C-4.010(6)) provide as follows:

Section 6-202.15 Outer Openings, Protected

(A) Except as specified in ¶¶ (B), (C), and

(E) and under ¶ (D) of this section, outer

openings of a food establishment shall be

protected against the entry of insects and

rodents by:

(1) Filling or closing holes and other gaps

along floors, walls, and ceilings;

(2) Closed, tight-fitting windows; and

(3) Solid, self-closing, tight-fitting

doors.

(B) Paragraph (A) of this section does not

apply if a food establishment opens into a

larger structure, such as a mall, airport,

or office building, or into an attached

structure, such as a porch, and the outer

openings from the larger or attached

structure are protected against the entry of

insects and rodents.

(C) Exterior doors used as exits need not

be self-closing if they are:

(1) Solid and tight-fitting;

(2) Designated for use only when an

emergency exists, by the fire protection

authority that has jurisdiction over the

food establishment; and

(3) Limited-use so they are not used for

entrance or exit from the building for

purposes other than the designated emergency

exit use.

(D) Except as specified in ¶¶ (B) and (E)

of this section, if the windows or doors of

a food establishment, or of a larger

structure within which a food establishment

is located, are kept open for ventilation or

other purposes or a temporary food

establishment is not provided with windows

and doors as specified under ¶ (A) of this

section, the openings shall be protected

against the entry of insects and rodents by:

(1) 16 mesh to 25.4 mm (16 mesh to 1 inch)

screens;

(2) Properly designed and installed air

curtains to control flying insects; or

(3) Other effective means.

(E) Paragraph (D) of this section does not

apply if flying insects and other pests are

absent due to the location of the

establishment, the weather, or other

limiting condition.

* * *

Section 6-301.12 Hand Drying Provision

Each handwashing lavatory or group of

adjacent lavatories shall be provided with:

(A) Individual, disposable towels;

(B) A continuous towel system that supplies

the user with a clean towel; or

(C) A heated-air hand drying device.

14. "No revocation [or] suspension . . . of any [public

food service establishment] license is lawful unless, prior to

the entry of a final order, [Petitioner] has served, by personal

service or certified mail, an administrative complaint which

affords reasonable notice to the licensee of facts or conduct

which warrant the intended action and unless the licensee has

been given an adequate opportunity to request a proceeding

pursuant to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat.

15. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes

the alleged facts set forth in the administrative complaint.

§§ 120.569(1) and 120.57, Fla. Stat.

16. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the administrative complaint. Proof

greater than a mere preponderance of the evidence must be

presented. Clear and convincing evidence of the licensee's

guilt is required. 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.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute . . . .").

17. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983).

18. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific factual allegation(s) made

in the charging instrument. Due process prohibits an agency

from taking penal action against a licensee based on matters not

specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Shore Village Property

Owners' Association, Inc. v. Department of Environmental

Protection , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin

v. Agency for Health Care Administration , 731 So. 2d 67, 69

(Fla. 4th DCA 1999).

19. The Administrative Complaint issued in the instant

case alleges that, on October 29, 2008, and January 7, 2009,

Respondent was in violation of Section 3-305.11 of the Food Code

(Count 1); Section 4-101.11 of the Food Code (Count 2); Section

4-601.11(A) of the Food Code (Count 3); Section 4-602.13 of the

Food Code (Count 4); Section 6-301.12 of the Food Code (Count

5); Section 6-202.15 of the Food Code (Count 6) 7 ; and Section

509.049, Florida Statutes (Count 7).

20. Petitioner met its burden of establishing by clear and

convincing evidence that Respondent committed each of these

violations on October 29, 2008, and January 7, 2009.

Accordingly, disciplinary action may be taken against Respondent

pursuant to Section 509.261, Florida Statutes.

21. In its Proposed Recommended Order, Petitioner proposes

that the undersigned recommend that Respondent be required to

pay an administrative fine totaling $3,100.00 for having

committed these violations.

22. This is a reasonable and appropriate penalty that is

within Petitioner's statutory authority to impose. 8

23. Petitioner should consider, upon Respondent's written

request, allowing Respondent to pay this fine in installments

according a payment schedule acceptable to Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that Petitioner issue a final order finding

that Respondent committed the violations alleged in the

Administrative Complaint and disciplining Respondent therefor by

imposing a fine in the total amount of $3,100.00.

DONE AND ENTERED this 3rd day of November, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 3rd day of November, 2009.

ENDNOTES

1 According to the Department of Business and Professional

Regulation's licensure records, Ram's Roti Palace is the "doing

business as" name used by Frankie B. Ramsook.

2 Proper "[f]ood storage is key to preventing food from being

contaminated."

3 Handwashing and drying are "key in preventing the spread of

disease and food borne illnesses."

4 Self-closing doors on a restaurant's "exterior openings" help

prevent pests and vermin from entering the establishment and

contaminating the food.

5 Section 509.261(2), Florida Statutes, provides that, "[f]or

the purposes of this section, [Petitioner] may regard as a

separate offense each day or portion of a day on which an

establishment is operated in violation of a 'critical law or

rule,' as that term is defined by rule." "Violations of

critical laws or rules" are defined in Florida Administrative

Code Rule 61C-1.0021(2), as "those violations determined by

[Petitioner] to pose a significant threat to the public health,

safety, or welfare."

6 The Food Code is adopted by reference in Subsection (14) of

Florida Administrative Code Rule 61C-1.001, which provides, in

pertinent part, as follows:

Food Code - This term [a]s used in Chapters

61C-1, 61C-3, and 61C-4, F.A.C., means

paragraph 1-201.10(B), Chapter 2, Chapter 3,

Chapter 4, Chapter 5, Chapter 6, and Chapter

7 of the Food Code, 2001 Recommendations of

the United States Public Health Service/Food

and Drug Administration including Annex 3:

Public Health Reasons/Administrative

Guidelines; Annex 5: HACCP Guidelines of the

Food Code; the 2001 Food Code Errata Sheet

(August 23, 2002); and Supplement to the

2001 FDA Food Code (August 29, 2003), herein

adopted by reference.

7 In its Administrative Complaint, Petitioner alleged that

Respondent violated Section 6-202.15 of the Food Code by not

"not protecting with self-closing doors" both the rear exit of

the Restaurant and the Restaurant's restroom. In its Proposed

Recommended Order, however, Petitioner abandoned its claim that

Respondent violated Section 6-202.15 by not having a self-

closing restroom door (evidently recognizing that this section

of the Food Code applies only to "outer openings of a food

establishment").

8 A regulatory agency, such as Petitioner, when deciding what

penalty to impose against a licensee for disciplinable

misconduct, must apply any applicable agency-adopted

"disciplinary guidelines" that were in effect at the time of the

licensee's misconduct. See Parrot Heads, Inc. v. Department of

Business and Professional Regulation , 741 So. 2d 1231, 1233

(Fla. 5th DCA 1999)("An administrative agency is bound by its

own rules . . . creat[ing] guidelines for disciplinary

penalties."); and Orasan v. Agency for Health Care

Administration, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

1st DCA 1996)("[T]he case was properly decided under the

disciplinary guidelines in effect at the time of the alleged

violations."). Petitioner has adopted "disciplinary guidelines"

(in Florida Administrative Code Rule 61C-1.005) to be used "for

imposing penalties upon . . . public food service establishments

under [its] jurisdiction." These guidelines, however, became

effective June 28, 2009, after Respondent had committed the

violations alleged in the Administrative Complaint. These

"disciplinary guidelines" therefore do not govern the outcome of

the instant case (but, even if they did, the undersigned's

penalty recommendation would be the same).

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Jose Blanco, Certified Legal Extern

Department of Business and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Frankie B. Ramsook

Post Office Box 491912

Fort Lauderdale, Florida 33349

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, 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.