12-002627 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Island Way Cafe Status: Closed Recommended Order on Tuesday, November 27, 2012.

Summary: Failure to maintain proper food temperature warrants fine.

Case Nos. 12-2627

12-2748

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, RECOMMENDED ORDER )

DIVISION OF HOTELS AND )

RESTAURANTS, )

Petitioner, )

)

vs. )

)

ISLAND WAY CAFE, )

)

Respondent. )

)

)

On September 24, 2012, an administrative hearing in these

cases was held by video teleconference in St. Petersburg and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Mark Anthony Suarez, pro se

Island Way Cafe

288 Windward Passage

Clearwater, Florida 33767

STATEMENT OF THE ISSUES

After the hearing had concluded, the Petitioner filed a

Notice of Voluntary Dismissal in DOAH Case No. 12-2627.

Accordingly, the remaining issues for consideration are whether

the allegations of the Administrative Complaint filed in DOAH

Case No. 12-2748 are correct, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated May 15, 2012, the

Department of Business and Professional Regulation, Division of

Hotels and Restaurants (Petitioner), alleged that Island Way Cafe

(Respondent), a restaurant owned and operated by Mark Anthony

Suarez, was in violation of certain Food Code regulations. The

Respondent filed an Election of Rights form, indicating that

there was no dispute regarding the allegations of the complaint

and that an informal hearing was requested to submit mitigating

evidence.

On August 15, 2012, the Petitioner forwarded the dispute to

DOAH, advising that subsequent to the Respondent's filing of the

Election of Rights form, the Respondent expressed a preference

for a formal DOAH hearing. DOAH scheduled and conducted the

formal hearing.

At the hearing, the Petitioner presented the testimony of

one witness and had Exhibits 1 through 3 and 5 through 7 admitted

into evidence. Mr. Suarez testified on behalf of the Respondent.

The Transcript of the hearing was filed on October 15, 2012.

The Petitioner filed a Proposed Recommended Order that has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with

regulation of restaurants pursuant to chapter 509, Florida

Statutes (2012).

2. At all times material to this case, the Respondent was

a restaurant operating at 288 Windward Passage, Clearwater,

Florida 33767.

3. The Food Code identifies proper food storage

temperatures for potentially-hazardous food products. The

storage of such products at improper temperatures can result in

bacterial contamination of the product and can cause serious

illness in humans who consume contaminated products.

4. Violations of food temperature regulations that present

an immediate threat to public safety are deemed to be "critical"

violations of the Food Code.

5. At the hearing, Mr. Suarez acknowledged that the

Respondent had been disciplined by the Petitioner for food

temperatures in excess of those permitted by relevant Food Code

regulations and that he had paid an administrative fine pursuant

to a previous Final Order.

6. On May 9, 2012, Christine Craig, a trained sanitation

safety specialist employed by the Petitioner, performed a

"callback" inspection at the Respondent. The violations

referenced herein were identified by Ms. Craig as critical.

7. The relevant portion of the Food Code requires that

certain products be stored at temperatures of 41 degrees

Fahrenheit or less. Previous inspections at the Respondent

revealed that holding temperatures of some food products stored

in a reach-in cooler and in a two-door glass upright cooler did

not comply with the Food Code requirements.

8. The purpose of the May 9, 2012, callback inspection was

to determine whether food temperature violations indentified in

the previous routine inspections had been resolved.

9. During the callback inspection, Ms. Craig found that

ham, chicken broth, and cream cheese were being held in the

referenced coolers at temperatures in excess of 41 degrees

Fahrenheit, which were critical violations of the Food Code.

10. The Respondent did not dispute Ms. Craig's testimony or

the results of her inspection.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2012).

12. The Petitioner is the state agency charged with the

regulation of food service establishments in the State of

Florida. See ch. 509, Florida Statutes (2012). The Petitioner

has adopted by incorporation the various provisions of the Food

Code referenced herein. See Fla. Admin. Code R. 61C-4.010(1).

13. The Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Dep't of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). The

burden has been met.

14. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 3-501.16(A)(2), which requires

that, except in limited circumstances not applicable to this

case, potentially-hazardous food must be maintained at

temperatures of 41 degrees Fahrenheit or less. The evidence

established that the Respondent failed to maintain potentially

hazardous foods at a temperature of 41 degrees Fahrenheit or less

as required by the Food Code.

15. Section 509.261(1), Florida Statutes (2011), provides

that a food service establishment operating in violation of

applicable statutes or rules may be fined in an amount not to

exceed $1,000 per offense. In addition, such offenses may be

disciplined by mandatory attendance at an educational program

sponsored by the Hospitality Education Program, or by suspension,

revocation, or refusal of a license.

16. Florida Administrative Code Rule 61C-1.005(6)(b)2.

identifies the appropriate administrative fine applicable in this

case as ranging from $500 to $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

enter a final order imposing a fine of $750 against the

Respondent and requiring that the Respondent complete an

appropriate educational program related to the violation

identified herein.

DONE AND ENTERED this 27th day of November, 2012, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 27th day of November, 2012.

COPIES FURNISHED: Mark Anthony Suarez

Island Way Cafe

288 Windward Passage

Clearwater, Florida 33767

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

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.