10-002477 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. New York Deli And Bakery Status: Closed Recommended Order on Wednesday, August 18, 2010.

Summary: Restaurant failed to maintain cold foods at the proper temperature and to have a food manager present. Respondent should be fined $1000 and required to attend an educational program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-2477

)

NEW YORK DELI AND BAKERY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on July 28, 2010, in

the Marion County Courthouse, Ocala, Florida, before W. David

Watkins, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Garnett Chisenhall, 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, and 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 May 10, 2010. A formal hearing was set for July 28,

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 30

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.

Petitioner presented the testimony of one witness, Benjamin

J. Bryant, Sanitation and Safety Specialist with the Division of

Hotels and Restaurants. Petitioner offered four exhibits, all

of which were received in evidence. Petitioner’s Exhibit 4

(Certified Final Order) was conditionally admitted, for use only

in the event one or more charges in the Administrative Complaint

were proven on their own merit; and then only for purposes of

mitigation or aggravation of penalty. At the request of

Petitioner, official recognition was taken of Section

509.032(6), Florida Statutes (2008) 1 / , Florida Administrative

Code Rules 61C-1.001(14), 61C-1.005, and 61C-4.023(1), and

Rule 3-501.16(A), Food Code.

A Transcript consisting of one-volume was filed on

August 5, 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 Ocala,

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 continue, are likely

to lead to the development of a critical violation.

5. Benjamin J. Bryant is a Sanitation and Safety

Specialist employed by the Division. He has been employed in

that capacity by the Division for approximately 12 years, and

has 26 years of experience as a restaurant manager. He also has

received training in laws and rules regarding public food

service and lodging. Mr. Bryant performs between 750 to 800

inspections annually.

6. On September 23, 2008, Mr. Bryant performed a routine

food service inspection of New York Deli and Bakery. During the

inspection, Mr. Bryant prepared and signed an inspection report

setting forth several violations he observed during the

inspection.

7. On September 23, 2008, Mr. Bryant notified Respondent

about the violations and further advised that the violations

must be corrected by the next inspection.

8. On May 8, 2009, Mr. Bryant performed another food

service inspection of New York Deli and Bakery. During the

inspection, Mr. Bryant prepared and signed an inspection report

setting forth violations he observed during the inspection.

9. On May 8, 2009, Mr. Bryant notified Respondent about

the violations and recommended the issuance of an administrative

complaint.

10. During the September 23, 2008, and May 8, 2009,

inspections, the most serious violation observed was potentially

hazardous foods held at temperatures greater than 41 degrees

Fahrenheit. This included roast beef, ham, salami and cheese

located in a display cooler at between 57-64 degrees Fahrenheit.

This is a critical violation, because potentially hazardous food

stored at improper temperatures can lead to food-borne illness.

11. The next most serious violation observed during those

inspections was the absence of a food manager certification.

This is a critical violation, because the State of Florida

requires a certified food manager in the restaurant in order to

instruct and observe employees and thereby avoid other

violations from occurring.

12. On December 8, 2008, Petitioner and Respondent entered

into a "Stipulation and Consent Order" relating to the alleged

violations stemming from the September 23, 2008, inspection (and

the follow-up inspection held the next day, September 24, 2008).

(Petitioner's Exhibit 4) Among the "Stipulated Facts" was the

statement that "Respondent neither admits nor denies the

allegations of fact contained in the Administrative

Complaint. . .". Respondent agreed to pay a fine of $250.00,

submit to a post-settlement inspection, and attend a Hospitality

Education Program workshop. Also included in the stipulation

was the statement that "[E]xecution of this Stipulation will not

preclude additional proceedings by the Department for acts or

omissions not addressed in the Administrative Complaint attached

as Exhibit "A" herein." (emphasis supplied)

13. The stipulated settlement was adopted by Final Order

of the Division dated December 24, 2008, and constituted

"appropriate settlement of this matter." There is no evidence

in this record that Respondent did not comply with the terms of

the settlement agreement.

CONCLUSIONS OF LAW

14. 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).

15. The Division is the state agency charged with

regulating public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

16. 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.

17. 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).

18. The Administrative Complaint at issue is grounded on

violations observed during both the September 23, 2008, and

May 8, 2009, inspections. However, as noted above, the

violations allegedly observed during the September 23, 2008,

inspection were the subject of the Stipulation and Consent

Order, and Final Order, disposing of that Administrative

Complaint. That matter was finally resolved without any

admission or finding of violation by Respondent.

19. Paragraph 1-201.10(B) and Chapters 2 through 7 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).

20. Through the Administrative Complaint, Respondent is

alleged to have violated Section 3-501.16(A), Food Code which

states in pertinent part:

Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified under Section 3-

501.19, and except as specified in paragraph

(B) of this Section, potentially hazardous

food shall be maintained: (1) At 135

degrees Fahrenheit or above, except that

roasts cooked to a temperature and for a

time specified in paragraph 3-401.11(B) or

reheated as specified in paragraph 3-

403.11(E) may be held at a temperature of

130 degrees Fahrenheit or above; or (2) At

a temperature specified in the following:

(A) 41 degrees Fahrenheit or less. . .

21. Petitioner met its burden of proof that Respondent

violated Section 3-501.16(A), Food Code, because potentially

hazardous food was observed being held at temperatures greater

than 41 degrees Fahrenheit during the inspection conducted on

May 8, 2009.

22. Through the Administrative Complaint, Respondent

is also alleged to have violated Rule 61C-4.023(1), Florida

Administrative Code, which states in pertinent part:

All managers who are responsible for the

storage, preparation, display, and serving

of foods to the public shall have passed a

certification test approved by the Division

demonstrating a basic knowledge of food

protection practices as adopted in this

chapter. Those managers who successfully

pass an approved certification examination

shall be issued a certificate by the

certifying organization, which is valid for

a period of five years from the date of

issuance.

23. Petitioner met its burden of proof that Respondent

violated Florida Administrative Code Rule 61C-4.023(1), because

the manager lacked proof of Food Manager Certification during

the inspection of May 8, 2009.

24. In its Proposed Recommended Order, the Division

proposes the imposition of the maximum allowable fine of

$1,000.00 for each of the two violations proven. The Division

asserts that the violations at issue constitute a "second

offense" given the prior Final Order in which Respondent agreed

to pay a fine of $250.00 to resolve alleged violations brought

by Petitioner. However, the alleged violations noted in the

September 23, 2008, inspection were neither admitted nor proven,

and therefore it would be inappropriate to categorize the

violations stemming from the May 8, 2009, inspection as a second

offense.

25. Moreover, since the prior Administrative Complaint was

resolved through a settlement stipulation with no admission or

determination of violation, that resolution must stand,

consistent with the principles of administrative finality. Fla.

Power Corp. v. Garcia , 780 So. 2d 34 (Fla. 2001). It is

inappropriate at this juncture to revive the factual allegations

previously resolved through settlement and attempt to use those

same (unproven) allegations as a basis to increase the fines

imposed based upon the May 8, 2009, inspection.

26. The Division met its burden of proof regarding the

allegations contained in the Administrative Complaint as they

relate to the May 8, 2009, inspection. However, since the

proven violations do not constitute a second offense, an

administrative penalty in the amount of $500.00 for each of the

two violations is reasonable and appropriate.

27. Even were the violations arising from the May 8, 2009,

inspection considered to be a second offense, a penalty of

$500.00 per violation is still appropriate given the absence of

additional aggravating factors.

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 during the May 8, 2009, inspection, and impose

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. It

is further recommended that Petitioner require Ramiro Escobar to

complete an appropriate educational program related to the

violations identified herein.

DONE AND ENTERED this 18th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 18th day of August, 2010.

ENDNOTE

1 / All statutory references in this Recommended Order are to the

2009 version of the Florida Statutes with the exception of the

jurisdictional reference contained in the Conclusions of Law.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Ramiro Escoban

New York Deli and Bakery

2800 Southwest 24th Avenue, Suite 406

Ocala, Florida 34474

Garnett W. Chisenhall, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 41

Tallahassee, Florida 32399

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Reginold Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Charlie Liem, Interim Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

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.