03-002408 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Mcdonalds No. 11546 Status: Closed Recommended Order on Thursday, October 23, 2003.

Summary: Respondent food service establishment charged with four violations of the Food Code. Recommended imposing a $2,500 fine payable within 45 days of Department`s final order and requiring Respondent to attend a Hospitality Education Program within 60 days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2408

)

MCDONALDS NO. 11546, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on September 8, 2003, in Orlando, Florida, before Jeff B. Clark,

the designated Administrative Law Judge of the Division of

Administrative Hea rings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses set forth in the

Administrative Complaint and, if so, what action should be

taken.

PRELIMINARY STATEMENT

On August 29, 2002, the Department of Business and

P rofessional Regulation, Division of Hotels and Restaurants

(Petitioner) filed an Administrative Complaint against McDonalds

No. 11546 (Respondent), DH&R Case No. 04 - 02 - 439. Petitioner

charged Respondent with the following violations: (1) violation

of Flo rida Administrative Code Rule 61C - 4.023(4)(a), “there was

no proof of employee training available for employees employed

for sixty days or more"; (2) violation of Section 3 -

304.14(B)(2), 1999 Food Code, Recommendations of the United

States Public Health Se rvice, Food and Drug Administration

(incorporated into Florida law by Florida Administrative Code

Chapter 61C), “there were wiping cloths on the food prep

counters that were not stored in sanitizer"; (3) violation of

Section 4 - 601.11(A), 1999 Food Code, Re commendations of the

United States Public Health Service, Food and Drug

Administration, “the reach - in freezer by the grill had old food

debris built - up on the inside"; and (4) violation of

Section 6 - 501.111, 1999 Food Code, Recommendations of the United

S tates Public Health Service, Food and Drug Administration,

“observed flies in the kitchen area.”

On September 17, 2002, Respondent disputed the allegations

of fact in the Administrative Complaint and requested a hearing.

These matters were referred to the Division of Administrative

Hearings on June 26, 2003.

An Initial Order was sent to both parties on July 1, 2003.

On July 28, 2003, the case was scheduled for final hearing on

September 8, 2003, in Orlando, Florida.

At the hearing, Petitioner presented the testimony of one

witness, Carolyn Miller, an inspector employed by Petitioner,

and offered three exhibits which were received into evidence and

marked Petitioner’s Exhibits 1 through 3. Respondent failed to

appear.

A transcript of the hearing was ordered by Petitioner. The

Transcript, consisting of one volume, was filed on October 1,

2003. Petitioner timely filed its post - hearing submission,

which was considered in the preparation of this Recommended

Order. All citations are to Florida Statutes (2003), unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

and inspecting restaurants. Respondent is licensed and

regulated by Petitioner. Respondent’s permanent food service

license number is 6902905.

2. Re spondent’s license address is 3785 Orlando Drive,

Sanford, Florida 32773 - 5686.

3. Petitioner's inspector inspected Respondent on July 8,

2002. Several deficiencies were noted by the inspector. Among

the deficiencies were the following: (1) violation of Florida

Administrative Code Rule 61C - 4.023(4)(a), “there was no proof of

employee training available for employees employed for sixty

days or more"; (2) violation of Section 3 - 304.14(B)(2), 1999

Food Code, Recommendations of the United States Public Healt h

Service, Food and Drug Administration (incorporated into Florida

Law by Florida Administrative Code Chapter 61C), “there were

wiping cloths on the food prep counters that were not stored in

sanitizer"; (3) violation of Section 4 - 601.11(A), 1999 Food

Code , Recommendations of the United States Public Health

Service, Food and Drug Administration, “the reach - in freezer by

the grill had old food debris built - up on the inside"; and

(4) violation of Section 6 - 501.111, 1999 Food Code,

Recommendations of the Unit ed States Public Health Service, Food

and Drug Administration, “observed flies in the kitchen area.”

One deficiency of critical concern was that Respondent's

employees had failed to complete their food service training.

4. The Food Service Inspection Rep ort of the July 8, 2002,

inspection advised Respondent:

WARNING: Violations in the operation of

your establishment must be corrected by

July 22, 2002 at 8:00 AM.

5. On July 25, 2002, Petitioner's inspector returned for a

re - inspection of the deficienc ies noted during the July 8, 2002,

inspection. The four deficiencies mentioned in paragraph 3,

supra , had not been corrected. During the re - inspection, the

following observations were made: "53B No proof of employee

certification available for employees employed 60 days or more";

"21 Wiping cloths for food prep counters - no sanitizer";

"22 Mini freezer @ grill w/ old food debris built up on inside

of reach in"; and "35 Flies in kitchen areas."

6. Respondent did not appear at the final hearing and,

the refore, did not present any mitigating circumstances.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1).

8. Petitio ner is the state agency that has jurisdiction

over the operation of public food service establishments.

Chapter 509 and Section 20.165. Respondent is a licensed food

service establishment.

9. License revocation proceedings and proceedings

involving the l evying of administrative fines are penal in

nature. The burden of proof is on Petitioner to establish by

clear and convincing evidence the truthfulness of the

allegations in the Administrative Complaint. Department of

Banking and Finance, Division of Sec urities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

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

10. A licensee is charged with knowing the practice act

that governs its license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990).

11. The 1999 Food Code, Recommendations of the United

States Public Health Service, Food and Drug Administration, is

incorporated into Florida law by Florida Administrati ve Code

Chapter 61C.

12. Florida Administrative Code Rule 61C - 4.023(4)(a) reads

as follows:

(4) Public Food Service Employee

Training.

(a) All public food service employees

must receive training on professional

hygiene and foodborne disease prevent ion.

Professional hygiene includes personal

cleanliness and hygienic practices in

accordance with the Food Code and techniques

toprevent cross contamination. Foodborne

disease prevention training must include the

types and causes of foodborne illness,

id entification of potentially hazardous

food, and how to control or eliminate

harmful bacteria in a food service

establishment.

13. Section 3 - 304.14(B)(2), 1999 Food Code,

Recommendations of the United States Public Health Service, Food

and Drug Administra tion, reads as follows:

(B) Cloths used for wiping food spills

shall be:

* * *

(2) Moist and cleaned as specified under

section 4 - 802.11(D), stored in a chemical

sanitizer at a concentration specified in

section 4 - 501.114, and used for wipi ng

spills from food - contact and nonfood - contact

surfaces of equipment.

14. Section 4 - 601.11(A), 1999 Food Code, Recommendations

of the United States Public Health Service, Food and Drug

Administration, reads as follows:

Equipment food - contact surfaces and

utensils shall be clean to sight and touch.

15. Section 6 - 501.111, 1999 Food Code, Recommendations of

the United States Public Health Service, Food and Drug

Administration, reads as follows:

The presence of insects, rodents, and

other pests shall b e 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 d evices 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. Petitioner demonstrated by clear and convincing

evidence that Respondent violated Florida Administrat ive Code

Rule 61C - 4.023(4)(a) and Sections 3 - 304.14(B)(2), 4 - 601.11(A),

and 6 - 501.111, 1999 Food Code, Recommendations of the United

States Public Health Service, Food and Drug Administration.

17. As to a penalty, Section 509.261 provides in pertinent

par t:

(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 b e

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 the Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

enter a final order:

1. Finding that Respondent committed the violations

alleged in the Administrative Complaint.

2. Imposing an administrative fine of $2,500.00 payable

within 45 days of the filing of the final order.

3. Requiring Respondent’s manager(s) to attend a

Hospitality Education Program class within 60 days of the filing

of the final order and to provide proof of such attendance to

the Division of Hotels and Restaurants.

DONE AND ENTERED this 23rd day of October, 2003, 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

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah. state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of October, 2003.

COPIES FURNISHED :

Kelly A. Fields

McDonalds

Post Office Box 941869

Maitland, Florida 32751

Charles F. Tunnicliff, Esquire

Department of Busi ness and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

Geoff luebkemann, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe St reet

Tallahassee, Florida 32399 - 0792

Nancy Campiglia, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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.