10-000035 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Dai Loi Status: Closed Recommended Order on Monday, April 19, 2010.

Summary: Petitioner clearly and convincingly met its burden of proof that Respondent committed violations alleged in Administrative Complaint. Recommend administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS )

AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-0035

)

DAI LOI, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on March 10, 2010, by

Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, via video teleconferencing

with sites in Jacksonville and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1015

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants, filed an

Administrative Complaint alleging violations of the provisions of

Chapter 509, Florida Statutes, or the applicable rules governing

the operation of public food establishments.

Respondent disputed the allegations in the Administrative

Complaint and petitioned for a formal administrative hearing.

The case was referred to the Division of Administrative Hearings

on or about January 4, 2010. A formal hearing was set for

March 10, 2010. The hearing took place as scheduled.

At the commencement of the hearing, Petitioner’s counsel

entered his appearance, but no appearance was made on behalf of

Respondent. The hearing was recessed for approximately 20

minutes to give a representative of Respondent an opportunity to

appear, but no appearance was made on behalf of Respondent. The

undersigned noted on the record that the Notice of Hearing was

mailed to the address provided by Petitioner on its transmittal

letter, which matched the address provided by Respondent on the

Election of Rights.

At hearing, Petitioner presented testimony of one witness,

Steven Rivera. Petitioner's Exhibits numbered 1 and 2 were

admitted into evidence. Official recognition was requested of

Section 509.032(2) and (6), Florida Statutes, Florida

Administrative Code Rules 61C-1.001(14) and 61C-1.005, and

pertinent portions of the United States Food and Drug

A Transcript consisting of one volume was filed on

March 24, 2010. Petitioner timely filed a Proposed Recommended

Order, which has been considered in the preparation of this

Recommended Order. Respondent did not file a post-hearing

submission.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

Regulation, Division of Hotels and Restaurants (Division), is a

state agency charged with the duty and responsibility of

regulating the operation of hotel and restaurant establishments

pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. Respondent is an eating establishment located in

Jacksonville, Florida. Respondent was issued a license as a

public food establishment by the Division.

3. Critical violations are those violations that, if not

corrected, are most likely to contribute to food-borne illness,

cross-contamination, and other environmental hazards.

4. Non-critical violations are those that are not directly

related to food-borne illness, but if they remain in non-

compliance, are likely to lead to the development of a critical

violation.

5. Steven Rivera is a sanitation and safety specialist

employed by the Division. He has been employed by the Division

for approximately three years, and has 12 years experience as a

restaurant manager. He also has received training in laws and

rules regarding public food service and lodging. Mr. Rivera

performs approximately 1,000 inspections annually.

6. On July 7, 2009, Mr. Rivera conducted an inspection of

Respondent's premises and issued an inspection report while on

the premises. Mr. Rivera signed the report on the premises.

Nhon Nguyen, owner of the restaurant, was present but did not

sign the inspection report.

7. During the July 7, 2009, inspection, Mr. Rivera observed

approximately 20 live roaches in the kitchen of the

establishment. He observed the roaches inside a prep table

drawer where utensils are stored, underneath the hand sink near

the prep table, underneath the prep table in the cook line,

underneath the reach-in cooler in the kitchen coming out of the

cooler wheels, and in a corner near the reach-in cooler and table

where open packages of food were being stored.

8. The presence of roaches in the kitchen of a food

establishment is a critical violation because live roaches are

vermin that can walk over food and food contact surfaces, and

present an immediate threat to the public health.

9. During the course of the inspection, the owner of the

restaurant became angry at Mr. Rivera, and made verbal threats

toward him. At one point, the owner attempted to grab a knife

from the cook’s line, at which time the owner’s family held him

back and took him outside. The owner came back into the

establishment, whereupon Mr. Rivera exited the property and

called law enforcement. Law enforcement arrived and stayed with

Mr. Rivera until he completed the inspection.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57(1), and 120.60(5), Fla. Stat. (2009).

11. The Division is the state agency charged with

regulating public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

12. Pursuant to Section 509.261(1), Florida Statutes

(2009), the Division may impose penalties for violations of

Chapter 509, Florida Statutes, including an administrative fine

of no more than $1,000 for each separate offense, attendance at

personal expense at an educational program sponsored by the

Hospitality Education Program, and the suspension or revocation

of Respondent's license.

13. Because the Division seeks the imposition of an

administrative penalty, which is a penal sanction, the Division

has the burden of proving by clear and convincing evidence the

specific allegations in the Administrative Complaint. See , e.g. ,

Department of Banking and Finance v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996).

14. Paragraph 1-201.10(B) and Chapters 2, 3, 4, and 6 of

the United States Food and Drug Administration’s Food Code (Food

Code) have been incorporated by reference into the rules

governing public food establishments. Fla. Admin. Code R.

61C-1.001(14).

15. Through the Administrative Complaint, Respondent is

alleged to have violated the following provisions of the Food

Code, which read in pertinent part:

6-501.111 Controlling Pests. The presence

of insects, rodents, and other pests shall be

controlled to minimize 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 sections 7-202.12, 7-206.12, and

7-206.13; and (D) Eliminating harborage

conditions.

16. Through the Administrative Complaint, Respondent is

alleged to have violated Section 509.032(2)(b), Florida Statutes

(2009), which reads as follows:

Inspection of premises.-

For purposes of performing required

inspections and the enforcement of this

Chapter, the Division has the right of entry

and access to public lodging establishments

and public food service establishments at any

reasonable time.

17. The Division met its burden of proof that Respondent

violated section 6-501.111, Food Code, by failing to control

pests, as approximately 20 live roaches were observed in the

kitchen during the inspection.

18. The Division met its burden of proof that Respondent

violated Section 509.032(2)(b), Florida Statutes, because an

agent of Respondent verbally and physically threatened Inspector

Rivera on July 7, 2009, forcing him to exit the premises while

performing his inspection duties.

19. In its Proposed Recommended Order, the Division

proposes the imposition of a $1,000.00 administrative penalty.

The Division met its burden of proof regarding the allegations

contained in the Administrative Complaint. Accordingly, the

proposed administrative penalty in the amount of $1,000.00 is

reasonable and appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Division enter a final order which confirms the

violations found, and imposes an administrative penalty in the

amount of $1,000.00, to be paid within 30 days of the issuance of

the Agency's Final Order.

DONE AND ENTERED this 19th day of April, 2010, in

Tallahassee, Leon County, Florida.

Barbara J. Staros

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 19th day of April, 2010.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388-1015

Dai Loi

c/o Nhon Nguyen

5808 Normandy Boulevard

Jacksonville, Florida 32205

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel

Department of Business and

Professional Regulations

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.