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

View Dockets  
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.








24Petitioner, )


27vs. ) Case No. 09-4258




39Respondent. )



44Pursuant to notice, a hearing was conducted in this case on

55October 12, 2009, by video teleconference at sites in Lauderdale

65Lakes and Tallahassee, Florida, before Stuart M. Lerner, a duly-

75designated Administrative Law Judge of the Division of

83Administrative Hearings (DOAH).


87For Petitioner: Charles F. Tunnicliff, Esquire

93Department of Business and

97Professional Regulation

991940 North Monroe Street

103Tallahassee, Florida 32399-2202

106For Respondent: Frankie B. Ramsook, Manager

112Ram's Roti Palace

115Post Office Box 491912

119Fort Lauderdale, Florida 33349


127Whether Respondent committed the violations alleged in the

135Administrative Complaint and, if so, what penalty should be



147On January 29, 2009, Petitioner issued an Administrative

155Complaint alleging that, on October 29, 2008, and January 7,

1652009, Respondent was in violation of Section 3-305.11 of the

175Food Code (Count 1); Section 4-101.11 of the Food Code (Count

1862); Section 4-601.11(A) of the Food Code (Count 3); Section 4-

197602.13 of the Food Code (Count 4); Section 6-301.12 of the Food

209Code (Count 5); Section 6-202.15 of the Food Code (Count 6); and

221Section 509.049, Florida Statutes (Count 7).

227On or about February 8, 2009, Respondent requested "an

236evidentiary hearing pursuant to Section 120.57(1), Florida

243Statutes," on the allegations made in the Administrative

251Complaint. On August 11, 2009, the matter was referred to DOAH

262for the assignment of a DOAH administrative law judge to conduct

273the hearing Respondent had requested.

278As noted above, the hearing was held on October 12, 2009.

289Four witnesses testified at the final hearing: Novelette

297Williams and Sean Grosvenor (on behalf of Petitioner); and

306Rhoolkumari Nandkishore and Frankie Ramsook (on behalf of

314Respondent). In addition to the testimony of these four

323witnesses, three exhibits (Petitioner's Exhibits 1 through 3)

331were offered and received into evidence.

337At the close of the taking of evidence, the undersigned

347established a deadline (10 days from the date of the filing with

359DOAH of the hearing transcript) for the filing of proposed

369recommended orders.

371The Transcript of the hearing (consisting of one volume)

380was filed with DOAH on October 21, 2009.

388Petitioner filed its Proposed Recommended Order on

395October 26, 2009. To date, Respondent has not filed any post-

406hearing submittal.


411Based on the evidence adduced at hearing, and the record as

422a whole, the following findings of fact are made:

4311. Ram's Roti Palace (Restaurant) is a 900-square foot

440eating establishment located in Lauderdale Lakes, Florida, that

448serves Caribbean food. Its specialty is roti, a sandwich-like,

457flour-based "wrap." The vast majority of it sales are from

467take-out orders, but it does have tables and chairs for seated

478dining. The Restaurant's sales have decreased 20-25 percent

486from pre-recession levels, but unlike many of its competitors it

496has managed to survive and stay in business.

5042. Frankie Ramsook is now, and has been since

513September 15, 1999, the holder of a license issued by Petitioner

524(present license number SEA1618855) authorizing him to operate

532the Restaurant as a public food service establishment.

5403. On October 29, 2009, Novelette Williams, a Senior

549Sanitation and Safety Specialist with Petitioner, along with

557Sean Grosvenor, a Sanitation and Safety Supervisor with

565Petitioner, conducted a "routine" inspection of the premises of

574the Restaurant. The inspection revealed, among other things,

582the following (which hereinafter will be referred to,

590collectively, as the "Conditions"): an opened bag of flour was

601kept on the floor in the kitchen; food items used to prepare

613dishes served in the Restaurant were stored on shelves, and in

624an unlocked freezer, both of which were located in a customer-

635accessible hallway leading to the Restaurant's bathroom 2 ; food

644contact surfaces in the freezer were not smooth and easily

654cleanable, but rather were covered with newspapers (which could

"663rip and tear and become part of the food" stored in the

675freezer); accumulated dirt and other residue build-up were on

684food contact surfaces (on the stove, in the oven, in the

695microwave, on shelves, and in storage containers), as well as on

706non-food contact surfaces (around the stove and the exterior of

716the freezer); the Restaurant's bathroom had a sink for

725handwashing, but it was not equipped with individual, paper

734towels or other hand drying device 3 ; and the rear door to the

747Restaurant was not self-closing. 4 Furthermore, Mr. Ramsook was

756unable to produce proof of employee food service training when

766asked to do so by Ms. Williams and Mr. Grosvenor during the


7794. Before leaving the establishment, Mr. Grosvenor advised

787Mr. Ramsook, who was present during the inspection, that there

797would be a "callback" inspection to determine whether these

806Conditions had been corrected.

8105. Ms. Williams and Mr. Grosvenor conducted a "callback"

819inspection of the premises of the Restaurant on January 7, 2009.

830The inspection revealed that each of the Conditions described in

840Finding of Fact 3 still existed, and, once again, Ms. Williams'

851and Mr. Grosvenor's request to see proof of employee food

861service training went unfulfilled.


8686. Petitioner has been statutorily delegated the authority

876to "carry out all of the provisions of [Chapter 509, Florida

887Statutes] and all other laws relating to the inspection or

897regulation of . . . public food service establishments for the

908purpose of safeguarding the public health, safety, and welfare."

917§ 509.032, Fla. Stat.

9217. A "public food service establishment," as that term is

931used in Chapter 509, Florida Statutes, is defined in Section

941509.013(5)(a), Florida Statutes, as follows:

"946Public food service establishment" means

951any building, vehicle, place, or structure,

957or any room or division in a building,

965vehicle, place, or structure where food is

972prepared, served, or sold for immediate

978consumption on or in the vicinity of the

986premises; called for or taken out by

993customers; or prepared prior to being

999delivered to another location for


10058. Each "public food service establishment" must have a

1014license from Petitioner prior to the commencement of operation.

1023§ 509.241, Fla. Stat.

10279. Disciplinary action may be taken against the holder of

1037such license for "operating in violation of [Chapter 509,

1046Florida Statutes] or the rules of [Petitioner]." Such

1054disciplinary action may include one or more of the following

1064penalties: license revocation, with the licensee unable to

"1072apply for another license for that location prior to the date

1083on which the revoked license would have expired"; license

1092suspension (for a period not exceeding 12 months), with the

1102licensee able to "apply for reinstatement or renewal of the

1112license" following the suspension period; imposition of an

1120administrative fine not to exceed $1,000 for each separate

1130offense 5 ; and "[m]andatory attendance, at personal expense, at an

1140educational program sponsored by the Hospitality Education

1147Program." § 509.261, Fla. Stat.

115210. The statutory and rule provisions, violation of which

1161subject a licensee to disciplinary action pursuant to Section

1170509.261, Florida Statutes, include the following:

1176Section 509.049, Florida Statutes Food

1181service employee training.--

1184(1) The [D]ivision [of Hotels and

1190Restaurants of the Department of Business

1196and Professional Regulation] shall adopt, by

1202rule, minimum food safety protection

1207standards for the training of all food

1214service employees who are responsible for

1220the storage, preparation, display, or

1225serving of foods to the public in

1232establishments regulated under this

1236chapter. . . .

1240* * *

1243(5) It shall be the duty of each public

1252food service establishment to provide

1257training in accordance with the described

1263rule to all food service employees of the

1271public food service establishment. The

1276public food service establishment may

1281designate any certified food service manager

1287to perform this function. Food service

1293employees must receive certification within

129860 days after employment. Certification

1303pursuant to this section shall remain valid

1310for 3 years. All public food service

1317establishments must provide the division

1322with proof of employee training upon

1328request, including, but not limited to, at

1335the time of any division inspection of the

1343establishment. Proof of training for each

1349food service employee shall include the name

1356of the trained employee, the date of birth

1364of the trained employee, the date the

1371training occurred, and the approved food

1377safety training program used.

1381* * *

1384Florida Administrative Code Rule 61C-4.010

1389Sanitation and Safety Requirements.

1393(1) Food Supplies and Food Protection -

1400Except as specifically provided in this

1406rule, public food service establishments

1411shall be subject to the provisions of

1418Chapter 3, Food Code, as adopted by

1425reference in Rule 61C-1.001, F.A.C.[ 6 ]

1432* * *

1435(5) Food Equipment, Utensils and Linens -

1442Public food service establishments shall be

1448subject to the provisions of Chapter 4, Food

1456Code, as adopted by reference in Rule 61C-

14641.001, F.A.C.

1466(6) Physical Facilities - Except as

1472specifically provided in these rules, the

1478physical facilities at public food service

1484establishments shall be subject to the

1490provisions of Chapter 6, Food Code, as

1497adopted by reference in Rule 61C-1.001,

1503F.A.C. . . . . .

1509* * *

151211. Section 3-305.11 of Chapter 3 of the Food Code (which

1523is incorporated by reference in Florida Administrative Code Rule

153261C-4.010(1)) provides as follows:

1536Section 3-305.11 Food Storage

1540(A) Except as specified in ¶¶ (B) and (C)

1549of this section, food shall be protected

1556from contamination by storing the food:

1562(1) In a clean, dry location;

1568(2) Where it is not exposed to splash,

1576dust, or other contamination; and

1581(3) At least 15 cm (6 inches) above the


1591(B) Food in packages and working containers

1598may be stored less than 15 cm (6 inches)

1607above the floor on case lot handling

1614equipment as specified under § 4-204.122.

1620(C) Pressurized beverage containers, cased

1625food in waterproof containers such as

1631bottles or cans, and milk containers in

1638plastic crates may be stored on a floor that

1647is clean and not exposed to floor moisture.

165512. Sections 4-101.11, 4-601.11(A), and 4.602.13 of

1662Chapter 4 of the Food Code (which is incorporated by reference

1673in Florida Administrative Code Rule 61C-4.010(5)) provide as


1682Section 4-101.11 Characteristics

1685Materials that are used in the construction

1692of utensils and food-contact surfaces of

1698equipment may not allow the migration of

1705deleterious substances or impart colors,

1710odors, or tastes to food and under normal

1718use conditions shall be:

1722(A) Safe;

1724(B) Durable, corrosion-resistant, and

1728nonabsorbent; (C) Sufficient in weight and

1734thickness to withstand repeated warewashing;

1739(D) Finished to have a smooth, easily

1746cleanable surface; and

1749(E) Resistant to pitting, chipping,

1754crazing, scratching, scoring, distortion,

1758and decomposition.

1760* * *

1763Section 4-601.11 Equipment, Food-Contact

1767Surfaces, Nonfood-Contact Surfaces, and

1771Utensils .

1773(A) Equipment food-contact surfaces and

1778utensils shall be clean to sight and touch.

1786* * *

1789Section 4-602.13 Nonfood-Contact Surfaces

1793Nonfood-contact surfaces of equipment shall

1798be cleaned at a frequency necessary to

1805preclude accumulation of soil residues.

1810* * *

181313. Sections 6-202.15 and 6-301.12 of Chapter 6 of the

1823Food Code (which is incorporated by reference in Florida

1832Administrative Code Rule 61C-4.010(6)) provide as follows:

1839Section 6-202.15 Outer Openings, Protected

1844(A) Except as specified in ¶¶ (B), (C), and

1853(E) and under ¶ (D) of this section, outer

1862openings of a food establishment shall be

1869protected against the entry of insects and

1876rodents by:

1878(1) Filling or closing holes and other gaps

1886along floors, walls, and ceilings;

1891(2) Closed, tight-fitting windows; and

1896(3) Solid, self-closing, tight-fitting


1901(B) Paragraph (A) of this section does not

1909apply if a food establishment opens into a

1917larger structure, such as a mall, airport,

1924or office building, or into an attached

1931structure, such as a porch, and the outer

1939openings from the larger or attached

1945structure are protected against the entry of

1952insects and rodents.

1955(C) Exterior doors used as exits need not

1963be self-closing if they are:

1968(1) Solid and tight-fitting;

1972(2) Designated for use only when an

1979emergency exists, by the fire protection

1985authority that has jurisdiction over the

1991food establishment; and

1994(3) Limited-use so they are not used for

2002entrance or exit from the building for

2009purposes other than the designated emergency

2015exit use.

2017(D) Except as specified in ¶¶ (B) and (E)

2026of this section, if the windows or doors of

2035a food establishment, or of a larger

2042structure within which a food establishment

2048is located, are kept open for ventilation or

2056other purposes or a temporary food

2062establishment is not provided with windows

2068and doors as specified under ¶ (A) of this

2077section, the openings shall be protected

2083against the entry of insects and rodents by:

2091(1) 16 mesh to 25.4 mm (16 mesh to 1 inch)


2103(2) Properly designed and installed air

2109curtains to control flying insects; or

2115(3) Other effective means.

2119(E) Paragraph (D) of this section does not

2127apply if flying insects and other pests are

2135absent due to the location of the

2142establishment, the weather, or other

2147limiting condition.

2149* * *

2152Section 6-301.12 Hand Drying Provision

2157Each handwashing lavatory or group of

2163adjacent lavatories shall be provided with:

2169(A) Individual, disposable towels;

2173(B) A continuous towel system that supplies

2180the user with a clean towel; or

2187(C) A heated-air hand drying device.

219314. "No revocation [or] suspension . . . of any [public

2204food service establishment] license is lawful unless, prior to

2213the entry of a final order, [Petitioner] has served, by personal

2224service or certified mail, an administrative complaint which

2232affords reasonable notice to the licensee of facts or conduct

2242which warrant the intended action and unless the licensee has

2252been given an adequate opportunity to request a proceeding

2261pursuant to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat.

227115. The licensee must be afforded an evidentiary hearing

2280if, upon receiving such written notice, the licensee disputes

2289the alleged facts set forth in the administrative complaint.

2298§§ 120.569(1) and 120.57, Fla. Stat.

230416. At the hearing, Petitioner bears the burden of proving

2314that the licensee engaged in the conduct, and thereby committed

2324the violations, alleged in the administrative complaint. Proof

2332greater than a mere preponderance of the evidence must be

2342presented. Clear and convincing evidence of the licensee's

2350guilt is required. See Department of Banking and Finance,

2359Division of Securities and Investor Protection v. Osborne Stern

2368and Company , 670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of

2381Central Florida v. Department of Business Regulation , 601 So. 2d

2391245, 249 (Fla. 1st DCA 1992); and § 120.57(1)(j), Fla. Stat.

2402("Findings of fact shall be based upon a preponderance of the

2414evidence, except in penal or licensure disciplinary proceedings

2422or except as otherwise provided by statute . . . .").

243417. Clear and convincing evidence "requires more proof

2442than a 'preponderance of the evidence' but less than 'beyond and

2453to the exclusion of a reasonable doubt.'" In re Graziano , 696

2464So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

2475Id. For proof to be considered "'clear and convincing' . . .

2487the evidence must be found to be credible; the facts to which

2499the witnesses testify must be distinctly remembered; the

2507testimony must be precise and explicit and the witnesses must be

2518lacking in confusion as to the facts in issue. The evidence

2529must be of such weight that it produces in the mind of the trier

2543of fact a firm belief or conviction, without hesitancy, as to

2554the truth of the allegations sought to be established." In re

2565Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

2576from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA


258918. In determining whether Petitioner has met its burden

2598of proof, it is necessary to evaluate its evidentiary

2607presentation in light of the specific factual allegation(s) made

2616in the charging instrument. Due process prohibits an agency

2625from taking penal action against a licensee based on matters not

2636specifically alleged in the charging instrument, unless those

2644matters have been tried by consent. See Shore Village Property

2654Owners' Association, Inc. v. Department of Environmental

2661Protection , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin

2673v. Agency for Health Care Administration , 731 So. 2d 67, 69

2684(Fla. 4th DCA 1999).

268819. The Administrative Complaint issued in the instant

2696case alleges that, on October 29, 2008, and January 7, 2009,

2707Respondent was in violation of Section 3-305.11 of the Food Code

2718(Count 1); Section 4-101.11 of the Food Code (Count 2); Section

27294-601.11(A) of the Food Code (Count 3); Section 4-602.13 of the

2740Food Code (Count 4); Section 6-301.12 of the Food Code (Count

27515); Section 6-202.15 of the Food Code (Count 6) 7 ; and Section

2763509.049, Florida Statutes (Count 7).

276820. Petitioner met its burden of establishing by clear and

2778convincing evidence that Respondent committed each of these

2786violations on October 29, 2008, and January 7, 2009.

2795Accordingly, disciplinary action may be taken against Respondent

2803pursuant to Section 509.261, Florida Statutes.

280921. In its Proposed Recommended Order, Petitioner proposes

2817that the undersigned recommend that Respondent be required to

2826pay an administrative fine totaling $3,100.00 for having

2835committed these violations.

283822. This is a reasonable and appropriate penalty that is

2848within Petitioner's statutory authority to impose. 8

285523. Petitioner should consider, upon Respondent's written

2862request, allowing Respondent to pay this fine in installments

2871according a payment schedule acceptable to Petitioner.


2879Based upon the foregoing Findings of Fact and Conclusions

2888of Law, it is hereby

2893RECOMMENDED that Petitioner issue a final order finding

2901that Respondent committed the violations alleged in the

2909Administrative Complaint and disciplining Respondent therefor by

2916imposing a fine in the total amount of $3,100.00.

2926DONE AND ENTERED this 3rd day of November, 2009, in

2936Tallahassee, Leon County, Florida.




2945Administrative Law Judge

2948Division of Administrative Hearings

2952The DeSoto Building

29551230 Apalachee Parkway

2958Tallahassee, Florida 32399-3060

2961(850) 488-9675 SUNCOM 278-9675

2965Fax Filing (850) 921-6847


2970Filed with the Clerk of the

2976Division of Administrative Hearings

2980this 3rd day of November, 2009.


29871 According to the Department of Business and Professional

2996Regulation's licensure records, Ram's Roti Palace is the "doing

3005business as" name used by Frankie B. Ramsook.

30132 Proper "[f]ood storage is key to preventing food from being


30253 Handwashing and drying are "key in preventing the spread of

3036disease and food borne illnesses."

30414 Self-closing doors on a restaurant's "exterior openings" help

3050prevent pests and vermin from entering the establishment and

3059contaminating the food.

30625 Section 509.261(2), Florida Statutes, provides that, "[f]or

3070the purposes of this section, [Petitioner] may regard as a

3080separate offense each day or portion of a day on which an

3092establishment is operated in violation of a 'critical law or

3102rule,' as that term is defined by rule." "Violations of

3113critical laws or rules" are defined in Florida Administrative

3122Code Rule 61C-1.0021(2), as "those violations determined by

3130[Petitioner] to pose a significant threat to the public health,

3140safety, or welfare."

31436 The Food Code is adopted by reference in Subsection (14) of

3155Florida Administrative Code Rule 61C-1.001, which provides, in

3163pertinent part, as follows:

3167Food Code - This term [a]s used in Chapters

317661C-1, 61C-3, and 61C-4, F.A.C., means

3182paragraph 1-201.10(B), Chapter 2, Chapter 3,

3188Chapter 4, Chapter 5, Chapter 6, and Chapter

31967 of the Food Code, 2001 Recommendations of

3204the United States Public Health Service/Food

3210and Drug Administration including Annex 3:

3216Public Health Reasons/Administrative

3219Guidelines; Annex 5: HACCP Guidelines of the

3226Food Code; the 2001 Food Code Errata Sheet

3234(August 23, 2002); and Supplement to the

32412001 FDA Food Code (August 29, 2003), herein

3249adopted by reference.

32527 In its Administrative Complaint, Petitioner alleged that

3260Respondent violated Section 6-202.15 of the Food Code by not

"3270not protecting with self-closing doors" both the rear exit of

3280the Restaurant and the Restaurant's restroom. In its Proposed

3289Recommended Order, however, Petitioner abandoned its claim that

3297Respondent violated Section 6-202.15 by not having a self-

3306closing restroom door (evidently recognizing that this section

3314of the Food Code applies only to "outer openings of a food


33288 A regulatory agency, such as Petitioner, when deciding what

3338penalty to impose against a licensee for disciplinable

3346misconduct, must apply any applicable agency-adopted

"3352disciplinary guidelines" that were in effect at the time of the

3363licensee's misconduct. See Parrot Heads, Inc. v. Department of

3372Business and Professional Regulation , 741 So. 2d 1231, 1233

3381(Fla. 5th DCA 1999)("An administrative agency is bound by its

3392own rules . . . creat[ing] guidelines for disciplinary

3401penalties."); and Orasan v. Agency for Health Care

3410Administration, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

34201st DCA 1996)("[T]he case was properly decided under the

3430disciplinary guidelines in effect at the time of the alleged

3440violations."). Petitioner has adopted "disciplinary guidelines"

3447(in Florida Administrative Code Rule 61C-1.005) to be used "for

3457imposing penalties upon . . . public food service establishments

3467under [its] jurisdiction." These guidelines, however, became

3474effective June 28, 2009, after Respondent had committed the

3483violations alleged in the Administrative Complaint. These

"3490disciplinary guidelines" therefore do not govern the outcome of

3499the instant case (but, even if they did, the undersigned's

3509penalty recommendation would be the same).


3518Charles F. Tunnicliff, Esquire

3522Jose Blanco, Certified Legal Extern

3527Department of Business and Professional Regulation

35331940 North Monroe Street

3537Tallahassee, Florida 32399-2202

3540Frankie B. Ramsook

3543Post Office Box 491912

3547Fort Lauderdale, Florida 33349

3551William L. Veach, Director

3555Division of Hotels and Restaurants

3560Department of Business and

3564Professional Regulation

35661940 North Monroe Street

3570Tallahassee, Florida 32399-0792

3573Reginald Dixon, General Counsel

3577Department of Business and

3581Professional Regulation

35831940 North Monroe Street

3587Tallahassee, Florida 32399-2202


3596All parties have the right to submit written exceptions within

360615 days from the date of this Recommended Order. Any exceptions

3617to this Recommended Order should be filed with the agency that

3628will issue the Final Order in this case.

Select the PDF icon to view the document.
Date: 11/03/2009
Proceedings: Recommended Order
Date: 11/03/2009
Proceedings: Recommended Order (hearing held October 12, 2009). CASE CLOSED.
Date: 11/03/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
Date: 10/27/2009
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 10/21/2009
Proceedings: Transcript filed.
Date: 10/12/2009
Proceedings: CASE STATUS: Hearing Held.
Date: 09/02/2009
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for October 12, 2009; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
Date: 08/19/2009
Proceedings: Order Concerning Hearing Exhibits, Witnesses, and Dispute Resolution.
Date: 08/19/2009
Proceedings: Notice of Hearing by Video Teleconference (hearing set for September 22, 2009; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
Date: 08/17/2009
Proceedings: Response to Initial Order filed.
Date: 08/11/2009
Proceedings: Initial Order.
Date: 08/11/2009
Proceedings: Election of Rights filed.
Date: 08/11/2009
Proceedings: Administrative Complaint filed.
Date: 08/11/2009
Proceedings: Agency referral filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Lauderdale Lakes, Florida
Department of Business and Professional Regulation


Related DOAH Cases(s) (1):

Related Florida Statute(s) (8):

Related Florida Rule(s) (3):