05-002094 Department Of Business And Professional Regulation vs. Amici`s Pizza Status: Closed Recommended Order on Thursday, September 22, 2005.

Summary: Restaurant violated food code rules requiring that certain foods be kept at 41 degrees F or lower and maintain cooling equipment so that it keeps food at 41 degrees F or lower.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 05-2094

)

AMICI'S PIZZA, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 16, 2005, a final hearing was held pursuant to

notice in Orlando, Florida, before Bram D. E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Tonya S. Chavis, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Dion Nunez, pro se

1718 North Goldenrod Road

Orlando, Florida 32818

STATEMENT OF THE ISSUES

The issues in the case are whether the alleged violations set forth in the Petitioner's Administrative Complaint occurred, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants, filed an

Administrative Complaint on October 20, 2004, alleging that the

Respondent, Amici's Pizza, had violated certain state laws

regulating the operation of food service establishments. The

Respondent disputed the allegations and requested an

administrative hearing. The Petitioner referred the matter to

the Division of Administrative Hearings which scheduled and

conducted an evidentiary hearing.

At the hearing, the Petitioner presented the testimony of

one witness, James Thomason, a Sanitary and Safety Specialist

with the Division of Hotels and Restaurants. The Petitioner's

Exhibits A through C were admitted into evidence. The

Petitioner's request for official recognition of Subsection

509.32(6), Florida Statutes (2004), and Rules 4-501.11(a)

and 3-501.16 of the United States Department of Agriculture's

Food Code, was granted. The Respondent presented the testimony

of Dion Nunez, the owner of Amici's Pizza. The Respondent

offered no exhibits into evidence.

A one-volume Transcript of the hearing was filed on

September 7, 2005. The Petitioner submitted a proposed

recommended order, and it was considered in the preparation of

this Recommended Order. No post-hearing papers were submitted by

the Respondent.

FINDINGS OF FACT

Based on the evidence and witness testimony presented and

the entire record of this proceeding, the following Findings of

Fact are made:

1. The Petitioner is a state agency charged with the

regulation of hotels and restaurants pursuant to Chapter 509,

Florida Statutes (2004).

2. The Respondent, Amici's Pizza, is a restaurant located

at 1718 North Goldenrod Road in Orlando, Florida. The records of

the Division indicate that the restaurant is also known as

Amici's Italian Kitchen and Pizzeria. The Respondent holds

License No. NOS5808584.

3. James Thomason is a Senior Sanitary and Safety

Specialist employed by the Division of Hotels and Restaurants.

His duties include inspecting food service establishments and

lodging facilities for compliance with applicable law. He

conducts approximately 4000 inspections per year for the

Division.

4. On August 27, 2004, Mr. Thomason conducted a routine

inspection of Amici's Pizza and issued an inspection report. In

his report, Mr. Thomason noted several violations, among which

are the two violations that are charged in the Petitioner's

Administrative Complaint: cheese and sausage in the preparation

area were above the maximum allowable temperature, and the pizza

cooler was not maintaining food at sufficiently low temperatures.

5. The August 27, 2004, inspection report indicated that

the two violations were "critical violations," meaning they posed

an immediate threat to the public. The public threat associated

with food not being kept at a low temperature is the possible

consumption of bacteria-contaminated food.

6. Because Mr. Thomason found what he believed to be

critical violations at Amici's Pizza, he indicated in his

inspection report that the violations had to be corrected by

August 30, 2004. A copy of the inspection report was given to

the owner of Amici's Pizza, Dion Nunez, on August 27, 2004, at

the conclusion of the inspection. Mr. Thomason discussed the

violations that he had noted in the report with Mr. Nunez, and

Mr. Nunez signed the report.

7. Mr. Thomason conducted a "call back" inspection of

Amici's Pizza on August 30, 2004, and noted in his inspection

report for that date that the two critical violations identified

above had not been corrected. The non-critical violations had

been corrected.

8. Mr. Thomason determined on his August 27, 2004,

inspection that the temperature of cheese and sausage on the

"make line" was 51 degrees Fahrenheit ("F") and 58 degrees F,

respectively. As set forth more fully, below, the maximum

temperature allowed for these foods was 41 degrees F.

9. Mr. Nunez did not dispute Mr. Thomason's determination

on August 27, 2004, that the temperature of the cheese and

sausage on the make line exceeded allowable temperatures. In

fact, Mr. Nunez responded by immediately disposing of the cheese

and sausage.

10. When Mr. Thomason made his call back inspection of

Amici's Pizza on August 30, 2004, he found the temperature of the

cheese and sausage on the make line was 50 degrees F

and 62 degrees F, respectively. Mr. Nunez did not dispute

Mr. Thomason's August 30, 2004, findings regarding food

temperature.

11. Mr. Nunez did not dispute Mr. Thomason's findings on

August 27 and August 30, 2004, that the cooler at Amici's Pizza

was not keeping the foods in the cooler at or below 41

degrees F.

12. Mr. Nunez' stated that he tried to get an electrician

to fix his cooler before the August 30, 2004, call back

inspection, but was unable to get an electrician who could

respond that soon. Mr. Nunez attributed this problem to the fact

that August 27, 2004, was a Friday, giving him only the weekend

to find an electrician, and also to the recent passage of a

hurricane through the area. Amici's Pizza continued to serve

customers during the time that the cooler remained un-repaired,

but Mr. Nunez used ice in an attempt to lower the temperature.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

14. Pursuant to Subsection 509.261(1), Florida Statutes

(2004), the Petitioner may impose penalties for violations of its

rules, 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 the Respondent's

license.

15. Because Subsection 509.261(1), Florida Statutes (2004),

is a penal statute and the Petitioner is seeking to impose a

penal sanction, the Petitioner has the burden of proving the

specific allegations set forth in its Administrative Complaint by

clear and convincing evidence. See , e.g. , Department of Banking

and Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

16. The clear and convincing evidence standard has been

described as follows:

The evidence must be of such weight that it

produces in the mind of the trier of fact the

firm belief, without hesitancy, as to the

truth of the allegations sought to be

established.

Evans Packing Co. v. Department of Agriculture and Consumer

Services , 550 So. 2d 112, 116 (Fla. 1st DCA 1989).

17. Disciplinary action must be confined to the offenses

specifically alleged in the administrative complaint. See

Cottrill v. Dept. of Insurance , 685 So. 2d 1371 (Fla. 1st DCA

1996).

18. Florida Administrative Code Rule 61C-1.004(1) adopts by

reference the Food Code of the United States Department of

Agriculture.

19. For failing to maintain potentially hazardous food at a

temperature of 41 degrees F or lower, the Department charged the

Respondent in its Administrative Complaint with violating Food

forth requirements for the storage of shell eggs, and is

inapplicable to the factual allegations of the Administrative

Complaint. The applicable provision of the Food Code is Rule 3-

501.16(A)(2).

20. For failing to maintain its cooler to keep foods at

41 degrees F or lower, the Department charged the Respondent with

violating Food Code Rule 4-501.11(A), which requires equipment to

be maintained in a state of repair and condition that meets the

requirements of Parts 4-1 and 4-2 of the Food Code. The specific

requirement within Parts 4-1 or 4-2 of the Food Code that the

Department believes the Respondent failed to comply with was not

identified in the Administrative Complaint. No requirement

within Parts 4-1 and 4-2 states that cooling equipment must

maintain food at 41 degrees F or lower. The applicable provision

of the Food Code is Rule 4-301.11, which requires there be a

sufficient number and capacity of food cooling equipment to

provide food temperatures as specified in Chapter 3 of the Food

Code (where the 41 degrees F standard is found).

21. An incorrect citation in the charging instrument to the

law violated is not fatal if the alleged offending acts are

adequately described. B.H. v. State , 645 So. 2d 987 (Fla. 1994);

Maravel v. Department of Professional Regulation , 498 So. 2d 481

(Fla. 1st DCA 1987); Farzad v. Department of Professional

Regulation , 443 So. 2d (Fla. 1st DCA 1983). In this case, the

alleged offending acts were adequately described to, understood

by, and addressed at the hearing by the Respondent. The

Department's misdesignation of the Food Code rules in its

Administrative Complaint did not prejudice the Respondent and is

harmless error under the circumstances.

22. The Department met its burden to prove by clear and

convincing evidence that the Respondent failed to maintain

potentially hazardous food at required low temperatures, and

failed to maintain its cooler to keep such foods at required low

temperatures.

23. This is the Respondent's first offense. Mr. Nunez

acted responsibly by throwing away food that violated temperature

requirements. He made reasonable efforts to fix the

malfunctioning cooler as quickly as possible. Under the

circumstances, an administrative fine of $500 would be fair and

reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and Professional

Regulation enter a final order that finds the Respondent violated

Food Code Rules 3-501.16(A)(2) and 4-302.11, and imposes an

administrative fine of $500.

DONE AND ENTERED this 22nd day of September, 2005, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

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 22nd day of September, 2005.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Dion Nunez

Amici's Pizza

525 South Ronald Reagan Boulevard

Orlando, Florida 32750

Dion Nunez

1718 North Goldenrod Road

Orlando, Florida 32818

Tonya S. Chavis, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

Geoff Luebkemann, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Leon Biegalski, 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.