09-005333 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Td's Sports Bar And Grill Status: Closed Recommended Order on Friday, April 16, 2010.

Summary: Respondent had numerous violations of the Food Code; Petitioner proved several and a fine was assessed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 09-5333

)

TD'S SPORTS BAR AND GRILL, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on February 18, 2010, in Orlando, Florida, before Jeff B. Clark,

a duly-designated 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 42

Tallahassee, Florida 32399-2202

For Respondent: David Swanson, pro se

Timothy Smoak, pro se

TD's Sports Bar and Grill

c/o Legend Realty, LLC

2838 University Acres Drive

Orlando, Florida 32817

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint dated April 17, 2009, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated April 17, 2009,

Petitioner, Department of Business and Professional Regulation,

Division of Hotels and Restaurants, charged that on June 2,

2008, October 15, 2008, December 30, 2008, and March 22, 2009,

Respondent, TD's Sports Bar and Grill, was found to be in

violation of Chapter 509, Florida Statutes (2007), rules

promulgated as authorized by Chapter 509, Florida Statutes

(2007), and regulations governing public food service

establishments in Florida. In particular, Respondent was

charged with violations of Rules 3-305.11, 3-603.11,

4-601.11(C), 4-602.11, 6-202.11, 6-501.111 of the United States

Department of Agriculture Food Code (Food Code).

Respondent timely disputed the facts alleged in the

Administrative Complaint and requested an administrative

hearing. Petitioner forwarded the matter to the Division of

Administrative Hearings on September 29, 2009, for assignment of

an Administrative Law Judge. An Initial Order was sent to both

parties on September 30, 2009. By Notice of Hearing dated

October 15, 2009, the case was scheduled for final hearing on

December 2, 2009, in Orlando, Florida. On November 25, 2009, a

Joint Motion for Continuance was filed. The case was continued

to February 18, 2010.

The final hearing was conducted, as rescheduled, on

February 18, 2010. At the hearing, Petitioner presented the

testimony of two witnesses: Will Goris and Nyahin Bandele, both

sanitation and safety specialists. Petitioner's Exhibits 1

through 5 were offered and received into evidence. David

Swanson, managing member of Legend Realty, LLC, and the

licensee, testified for Respondent as did Timothy Smoak, the

general manager. Respondent offered four exhibits that were

received into evidence and marked Respondent's Exhibits 1

through 4. Pursuant to Petitioner's request, official

recognition was taken of Subsection 509.032(6), Florida

Statutes; Florida Administrative Code Rule 61C-1.001(14)(B); and

Rules 3-603.11, 3-305.11, 4-602.11(E), 4-601.11(C), 6-501.111,

and 6-202.11 of the Food Code. Respondent requested that

official recognition be taken of Section 509.091, Florida

Statutes (2007).

The one-volume Transcript of the proceedings was filed with

the Division of Administrative Hearings on March 17, 2010.

Petitioner filed a Proposed Recommended Order that has been

considered in the preparation of this Recommended Order.

All statutory references are to Florida Statutes (2007),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following Findings of Fact are made:

1. Petitioner is the state agency responsible for

inspecting and regulating public food service establishments in

Florida.

2. Respondent is a permanent food service establishment

holding License No. 5808714. Respondent's business address is

11400 University Boulevard, Orlando, Florida 32817.

3. On June 2, 2008, Will Goris, an employee of Petitioner,

conducted a routine inspection of Respondent's premises. A Food

Service Inspection Report was prepared on site which noted a

number of violations. This Food Service Inspection Report was

received and signed by Camilo Gondran on the day of the

inspection. Respondent was notified in writing on the

inspection report that violations must be corrected by the next

unannounced inspection.

4. On October 15, 2008, Nyahin Bandele, an employee of

Petitioner, conducted a routine inspection of Respondent's

premises. A Food Service Inspection Report was prepared on site

which noted a number of violations. This Food Service

Inspection Report was received and signed by Tim Smoak on the

day of the inspection. Respondent was notified verbally and in

writing on the inspection report that violations must be

corrected by December 15, 2008.

5. Ms. Bandele conducted a follow-up inspection on

December 30, 2008. She discovered that some of the violations

noted during the October 15, 2008, inspection had been

corrected, but that some had not. She issued a Call Back

Inspection Report and delivered it to Tim Smoak on the day of

the inspection. She verbally advised and the report stated that

the "remaining violations must be corrected by the next

inspection to avoid an Administrative Complaint."

6. On March 27, 2009, Ms. Bandele conducted a routine

inspection on Respondent's premises. She prepared an inspection

report and delivered it to David Swanson. It noted violations

and recommended that an Administrative Complaint be filed.

7. A critical violation is one that, if not corrected, is

more likely than other violations to cause an imminent

food-borne illness, contamination, or environmental hazard.

8. A non-critical violation is one that relates to good

retail practices, such as general cleanliness, organization, and

maintenance of the facility.

9. On October 15, 2008, and March 27, 2009, the inspection

reports noted that the required consumer advisory for raw,

undercooked, or not otherwise processed foods, was not provided.

This is a violation of Rule 3-603.11 of the Food Code and a

critical violation. Respondent presented credible evidence that

the menu was changed in late August 2009 that corrected this

violation.

10. On October 15, 2008, and March 27, 2009, the

inspection reports noted that there were small flying insects in

the bar area. This is a violation of Rule 6-501.11 of the Food

Code, and a critical violation. Respondent presented credible

evidence that following the confirmed presence of fruit flies

during the October 15, 2008, inspection, a pest control

organization was retained by Respondent and he presented a

service report that indicates "no activity of flying insects" on

February 20, 2009.

11. On October 15, 2008, December 30, 2008, and March 27,

2009, there was a build-up of slime inside the ice machines. In

addition, a build-up of accumulated food debris was noted in the

reach-in coolers. These are critical violations of Rule

4-602.11(E) of the Food Code. No credible evidence was offered

to refute these violations.

12. On October 15, 2008, December 30, 2008, and March 27,

2009, boxes of food were found to be on the floor in the walk-in

cooler. This is a critical violation of Rule 3-305.11 of the

Food Code. No credible evidence was offered to refute these

violations.

13. On October 15, 2008, December 30, 2008, and March 27,

2009, there was an excessive build-up of dirt and dust observed

on hood filters. This is a violation of Rule 4-601.11(C) of the

Food Code, but is a non-critical violation. Respondents

presented evidence that the hoods had been professionally

cleaned on April 13 and October 27, 2008. This does not

preclude the violations noted.

14. On October 15, 2008, December 30, 2008, and March 27,

2009, the lights over the kitchen cookline were missing shields.

This is a non-critical violation of Rule 6-202.11 of the Food

Code. No credible evidence was offered to refute these

violations.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (2009).

16. In the Administrative Complaint, Petitioner seeks to

discipline Respondent's license and/or to impose an

administrative fine. Accordingly, Petitioner must prove the

allegations in the Administrative Complaint by "clear and

convincing" evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne, Stern

and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

17. "Clear and convincing evidence" is:

[Evidence] that entails both a qualitative

and quantitative standard. The evidence

must be credible; the memories of the

witnesses must be clear and without

confusion; and the sum total of the evidence

must be of sufficient weight to convince the

trier of fact without hesitancy. Clear and

convincing evidence requires that 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); Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

18. The Administrative Complaint alleges violation of the

following rules of the Food Code.

19. Rule 3-603.11 of the Food Code states in pertinent

part:

Consumption of Animal Foods that are Raw,

Undercooked, or Not Otherwise Processed to

Eliminate Pathogens.

(A) Except as specified in paragraph

3-401.11(C) and subparagraph 3-401.11(D)(4)

and under paragraph 3-801.11(C), if an

animal food such as beef, eggs, fish, lamb,

milk, pork, poultry, or shellfish is served

or sold raw, undercooked, or without

otherwise being processed to eliminate

pathogens, either in ready-to-eat form or as

an ingredient in another ready-to-eat food,

the permit holder shall inform consumers of

the significantly increased risk of

consuming such foods by way of a disclosure

and reminder, as specified in paragraphs (B)

and (C) of this section using brochures,

deli case or menu advisories, label

statements, table tents, placards, or other

effective written means.

(B) Disclosure shall include:

(1) A description of the animal-derived

foods, such as "oysters on the half shell

(raw oysters)," "raw-egg Caesar salad," and

"hamburgers (can be cooked to order)"; or

(2) Identification of the animal-derived

foods by asterisking them to a footnote that

states that the items are served raw or

undercooked, or contain (or may contain) raw

or undercooked ingredients.

(C) Reminder shall include asterisking the

animal-derived foods requiring disclosure to

a footnote that states:

(1) Regarding the safety of these items,

written information is available upon

request;

(2) Consuming raw or undercooked meats,

poultry, seafood, shellfish, or eggs may

increase your risk of foodborne illness; or

(3) Consuming raw or undercooked meats,

poultry, seafood, shellfish, or eggs may

increase your risk of foodborne illness,

especially if you have certain medical

conditions.

20. Rule 6-501.111 of the Food Code states:

Controlling Pests.

The premises shall be maintained free of

insects, rodents, and other pests. The

presence of insects, rodents, and other

pests shall be controlled to eliminate 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.

21. Rule 4-602.11(E) of the Food Code states:

(E) Except when dry cleaning methods are

used as specified under § 4-603.11, surfaces

of utensils and equipment contacting food

that is not potentially hazardous

(time/temperature control for safety food)

shall be cleaned:

(1) At any time when contamination may have

occurred;

(2) At least every 24 hours for iced tea

dispensers and consumer self-service

utensils such as tongs, scoops, or ladles;

(3) Before restocking consumer self-service

equipment and utensils such as condiment

dispensers and display containers; and

(4) In equipment such as ice bins and

beverage dispensing nozzles and enclosed

components of equipment such as ice makers,

cooking oil storage tanks and distribution

lines, beverage and syrup dispensing lines

or tubes, coffee bean grinders, and water

vending equipment:

(a) At a frequency specified by the

manufacturer, or

(b) Absent manufacturer specifications, at

a frequency necessary to preclude

accumulation of soil or mold.

22. Rule 3-305.11 of the Food Code states:

Food Storage.

(A) Except as specified in paragraphs (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 [6 inches] above the floor.

(B) Food in packages and working containers

may be stored less than [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.

23. Rule 4-601.11(C) of the Food Code states:

Equipment, Food-Contact Surfaces, Nonfood-

Contact Surfaces, and Utensils.

(C) Nonfood-contact surfaces of equipment

shall be kept free of an accumulation of

dust, dirt, food residue, and other debris.

24. Rule 6-202.11 of the Food Code states:

Light Bulbs, Protective Shielding.

(A) Except as specified in paragraph (B) of

this section, light bulbs shall be shielded,

coated, or otherwise shatter-resistant in

areas where there is exposed food; clean

equipment, utensils, and linens; or

unwrapped single-service and single-use

articles.

(B) Shielded, coated, or otherwise shatter-

resistant bulbs need not be used in areas

used only for storing food in unopened

packages, if:

(1) The integrity of the packages cannot be

affected by broken glass falling onto them;

and

(2) The packages are capable of being

cleaned of debris from broken bulbs before

the packages are opened.

(C) An infrared or other heat lamp shall be

protected against breakage by a shield

surrounding and extending beyond the bulb so

that only the face of the bulb is exposed.

25. Petitioner presented evidence of five critical

violations and one non-critical violation noted during the

inspections, and enumerated in the Administrative Complaint.

Petitioner has met the burden of proving that Respondent

violated Rules 3-305.11, 4-601.11(C), 4-602.11(E) and 6-202.11

of the Food Code, as alleged in the Administrative Complaint,

clearly and convincingly. It has failed to prove by the same

standard the alleged violations of Rules 3-603.11 and 6-501.111

of the Food Code.

26. Section 509.261, Florida Statutes, reads as follows:

(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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

enter a final order finding that:

1. Respondent, TD's Sports Bar and Grill, committed the

critical violations of Rules 3-305.11, 4-601.11(C), and

4-602.11(E) of the Food Code, as alleged in the Administrative

Complaint, and be administratively fined $1,500.00 for these

violations;

2. Respondent committed the non-critical violation of

Rule 6-202.11 of the Food Code and be administratively fined

$250.00 for this violation; and

3. The allegations that Respondent violated Rules

3-603.11 and 6-501.11 of the Food Code, be dismissed.

DONE AND ENTERED this 16th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of April, 2010.

COPIES FURNISHED :

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

David Swanson

Timothy Smoak

TD's Sports Bar and Grill

c/o Legend Realty, LLC

2838 University Acres Drive

Orlando, Florida 32817

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.