09-005523 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Althea's Status: Closed Recommended Order on Tuesday, March 23, 2010.

Summary: Restaurant that failed to correct dirty mixer and to have certified food manager present before re-inspection should be fined $2,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 09-5523

)

ALTHEA'S, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on February 17, 2010, by video teleconference in

Tallahassee and Sarasota, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Diane Silvia, pro se

220 West Miami Avenue

Venice, Florida 34285

STATEMENT OF THE ISSUES

The issues are whether Respondent operated as a public food

service establishment with dirty food contact surfaces and

utensils and without a certified food protection manager present

in violation of Florida Administrative Code Rules 61C-1.001(14)

and 61C-4.023(1) and in violation of Subsection 509.032(6),

Florida Statutes (2008), 1 and, if so, what penalty, if any,

should be imposed against Respondent's license.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent on February 6, 2009. Respondent timely requested an

administrative hearing, and Petitioner referred the matter to

DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of one

witness and submitted two exhibits for admission into evidence.

Respondent presented the testimony of two witnesses and

submitted one composite exhibit for admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the one-volume Transcript of

the hearing filed on February 26, 2010. Petitioner timely filed

its Proposed Recommended Order (PRO) on March 8, 2010.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating and inspecting public food service establishments

defined in Subsection 509.013(5). Respondent is licensed by

Petitioner as a public food service establishment. The business

address of Respondent is 220 West Miami Avenue, Venice, Florida.

2. On October 21, 2008, an inspector for Petitioner

performed a food service inspection of Althea's. No certified

food manager was on duty during the inspection. Four or more

employees were engaged in food preparation. A buildup of soil

material existed on equipment identified in the record as the

Blakeslee mixer head.

3. Both violations are critical violations. Both

violations present a threat to the public health.

4. Petitioner performed a re-inspection of the premises on

December 23, 2008. During the re-inspection, the violations

from October 21, 2008, had not been corrected.

5. Ms. Diane Silvia was scheduled to be the certified food

manager for Respondent on December 23, 2008. However, she was

not present on the premises at the time of the inspection.

CONCLUSIONS OF LAW

6. DOAH has jurisdiction over the subject matter of and

parties to this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat. (2009). DOAH provided the parties with adequate notice of

the administrative hearing.

7. Petitioner has the burden of proof in this proceeding.

Petitioner must show by clear and convincing evidence that

Respondent committed the acts alleged in the Administrative

Complaint and the reasonableness of any proposed penalty.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). Petitioner

satisfied its burden of proof.

8. Petitioner showed by clear and convincing evidence that

Respondent operated a food service establishment in violation of

Rules 61C-1.001(14) and 61C-4.023(1) and Subsection 509.032(6).

Subsection 509.261(1) authorizes Petitioner to impose a fine in

an amount up to $1,000.00 for each offense committed by

Respondent.

9. Petitioner proposes two fines of $1,000.00 for each

offense. The proposed fines are reasonable under the facts and

circumstances in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Division of Hotels and Restaurants

enter a final order finding Respondent guilty of the allegations

in the Administrative Complaint and imposing a fine in the

aggregate amount of $2,000.00, to be paid within 30 days of the

date that this proceeding becomes final.

DONE AND ENTERED this 23rd day of March, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 23rd day of March, 2010.

ENDNOTE

1/ Reference to subsections, sections, and chapters are to

Florida Statutes (2008), unless otherwise stated.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Diane Silvia

220 West Miami Avenue

Venice, Florida 34285

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.