05-002733 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Latin American Cafeteria, Inc. Status: Closed Recommended Order on Wednesday, November 2, 2005.

Summary: Respondent, a licensed restaurant, violated several statutes and rules governing food service establishments, warranting discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2733

)

LATIN AMERICAN CAFETERIA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 26 , 2005, at sites in Tallahassee and Miami, Florida.

APPEAR ANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and

Professional Regulation

940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: No appearance

STATEMENT OF THE ISSUES

T he issue s in this disciplinary proceeding arise from

Petitioner's allegation that Respondent, a licensed restaurant ,

violated several statutes and rules governing food service

establishments . If Petitioner proves one or more of the alleged

violations, then it will be necessary to consider whether

penalties should be imposed on Respondent.

PRELIMINARY STATEMENT

On March 30 , 200 5 , Petitioner Department of Business and

Professional Regulation, Division of Hotels and Restaurants ,

issued an Administrative Complaint aga inst Respondent Latin

American Cafeteria, Inc., charging the licensed restaurant with

various offenses relating to noncompliance with the statutes and

rules governing food service establishments . Respondent timely

requested a formal hearing to contest the se allegations, and , on

July 27 , 2005 , the matter was referred to the Division of

Administrative Hearings.

The parties were properly notified that the final hearing

would occur at 9:0 0 a.m. on September 26 , 200 5 . At the

designated time and place, the admi nistrative law judge and

counsel for Petitioner appeared for final hearing. Respondent 's

representative, however, did not appear. After waiting

approximately 3 5 minutes and upon review of the file, from which

it was determined that Respondent had been gi ven adequate notice

of the final hearing, the administrative law judge commenced the

proceeding.

Petitioner offered four exhibits, numbered 1 through 4, and

each was received in evidence. In addition, Petitioner

presented the testimony of its inspector, Jorge Gandolff .

F inally, t he undersigned took official recognition of the

applicable administrative rules.

The transcript of the final hearing was filed on

October 11, 2005, and the reafter the parties were notified that

their respective proposed reco mmended orders would be due on or

before October 21, 2005 . Petitioner timely submitted a proposed

recommended order that has been carefully considered.

Respondent did not file a post - hearing submission of any kind.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

1. Respondent Latin America Cafeteria, Inc. ("Cafeteria")

is a licensed food s ervice establishment. As such, Cafeteria is

subject to the regulatory and disciplinary jurisdictio n of

Petitioner Department of Business and Professional Regulation,

Division of Hotels and Restaurants (the "Division").

2. On three occasions —— February 11, 2005; February 15,

2005; and March 21, 2005 —— an inspector for the Division named

Jorge Gandolff in spected a restaurant located at 2940 Coral Way

in Miami, Florida, which establishment was operated by

Cafeteria. During each visit, Mr. Gandolff noticed several

items that were not in compliance with the laws which govern the

facilities and operations of licensed restaurant s .

3. As of March 21, 2004, the following deficiencies

subsisted: (1) Ready - to - eat, potentially hazardous food had

been held more than 24 hours with no date marking, in violation

of Food Code Rule 3 - 501.17 ( A ) i ; (2) The reach - in freezer door was

not durable under normal use conditions, in violation of Food

Code Rule 4 - 201.11; (3) The walk - in cooler door was in poor

repair, in violat ion of Food Code Rule 4 - 501.11; (4) The gaskets

in the walk - in door were in poor repair, also in violation of

Food Code Rule 4 - 501.11; (5) There was no chemical test kit

available for persons using chemical sanitizer at three

compartment sinks, in violation of Food Code Rule 4 - 302.14; (6)

There was a missing vacuum breaker on the hose bibb at the

cookline, in v iolation of Food Code Rule 5 - 203.14; (7) Walls in

the dishwashing area were soiled with accumulated debris, in

violation of Florida Administrative Code Rule 61C - 1.004(6) ; (8)

Lights in the rear area of the kitchen lacked the proper

shields, sleeve coatings , or covers in violation of Food Code

Rule 6 - 202.11 ; and (9) Although four or more employees were

engaged in food preparation, there was no currently certified

food service manager on duty, in violation of Florida

Administrative Code Rule 61C - 4.023(1).

CONCLUSIONS OF LAW

4 . T he Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

5 . Section 509.261 , Florida Statutes, sets forth the acts

for whic h the Division may impose discipline. This statute

provides, in pertinent part:

(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 [D]ivision,

opera ting without a license, or operating

with a suspended or revoked license may be

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.

(2) For the purposes of this section, the

division may regard as a separate offense

each day or portion of a day on which an

establishment is operated in violation of a

"critical law or rule," as that term is

defined by rule.

6. By rule, the Division has defined the term

"Food Code" as follows:

(14) Food Code – Food Code, 2001

Recommendations of the United States Public

Health Service/Food and Drug Administration

including Annex 3: Public Health

Reasons/Administrative Guidelines and Annex

5: HACCP Guidelines of the Food Code, the

2001 Food Code Errata Sheet (August 23,

2002), and Supplement to the 2001 FDA Food

Code (August 29, 2003).

Fla. Admin. Code R. 61C - 1.001(14) (italics in original) .

7. Florida Adm inistrative Code Rule 61C - 4.010 provides in

relevant part as follows:

(1) Food Supplies and Food Protection –

except as specifically provided in this

rule, public food service establishm ents

shall be subject to the provisions of

Chapter 3, Food Code, herein adopted by

reference.

* * *

(5) Food Equipment, Utensils and Linens –

public food service establishments shall be

subject to the provisions of Chapter 4, Food

Code, herein a dopted by reference.

(6) Physical Facilities – except as

specifically provided in these rules, the

physical facilities at public food service

establishments shall be subject to the

provisions of Chapter 6, Food Code, herein

adopted by reference.

8. Fo od Code Rule 3 - 501.17 provides in pertinent part:

(A) . . . [R]efrigerated, ready - to - eat,

potentially hazardous food prepared and held

in a food establishment for more than 24

hours shall be clearly marked to indicate

the date or day by which the food sh all be

consumed on the premises , sold, or

discarded, based on the temperature and time

combinations specified below:

(1) 5°C (41°F) or less for a maximum of 7

days; or

(2) 7°C (45°F) or between 5°C (41°F) and 7°C

(45°F) for a maximum of 4 days in existing

refrigeration equipment that is not capable

of maintaining the food at 5°C (41°F) or

less if:

(a) The equipment is in place and in use in

the food establishment , and

(b) Within 5 years of the regulatory

authority's adoption of this code , the

equipment is upgraded or replaced to

maintain food at a temperature of 5°C (41°F)

or less.

The day of preparation shall be counted as

Day 1.

(Italics in original.)

9. Food Code Rule 4 - 201.11 provides:

E QUIPMENT and UTENSILS shall be designed and

constructed to be durable and to retain

their characteristic qualities under normal

use conditions.

10. Food Code Rule 4 - 501.11 provides:

(A) EQUIPMENT shall be maintained in a

state of repair and condition that meets the

requirements specified under Parts 4 - 1 and

4 - 2.

(B) EQUIPMENT components such as doors,

seals, hinges, fasteners, and kick plates

shall be kept intact, tight, and adjusted in

accordance with manufacturer's

specifications.

(C) Cutting or piercing parts of can

openers shall be kept sharp to minimize the

creation of metal fragments that can

contaminate food when the container is

opened.

( Italics in original.)

11. Food Code Rule 4 - 301.14 provides:

A test kit or other device that accurately

measures the concentration in mg/L of

SANITIZING solutions shal l be provided.

12. Florida Administrative Code Rule 61C - 1.004 provides in

pertinent part as follows:

The following general requirements and

standards shall be met by all public lodging

and public food service establishments:

* * *

(6) All buildi ng structural components,

attachments and fixtures shall be kept in

good repair, clean and free of obstructions.

13. Food Code Rule 6 - 202.11 provides:

(A) Except as specified in ¶ (B) of this

section, light bulbs shall be shielded,

coated, or otherwise shatter - resistant in

areas where there is exposed FOOD ; clean

EQUIPMENT , UTENSILS , and LINENS ; or

unwrapped SINGLE - SERVICE and SINGLE - USE

ARTICLES .

(B) Shielded, coated, or otherwise shatter -

resistant bulbs need not be used in areas

used only for storin g FOOD in unopened

packages, if :

(1) The integrity of the packages can not

be affected by broken glass falling onto

them; and

(2) The packages are capable of being

cleaned of debris from broken bulbs before

the packages are opened .

(C) An infrared or other heat lamp shall be

protected against breakage by a shield

surrounding and extending beyond the bulb so

that only the face of the bulb is exposed.

(Italics in original.)

14. Florida Administrative Code Rule 61C - 4.023(1) provides

in pertinent part as follows:

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. Each licensed establishment shall

have a minimum of one certified food

protection manager responsible for all

periods of operation. The operator shall

designate in writing the certified food

protection manager or managers for each

location. A current list of certified food

protection man agers shall be available upon

request in each establishment. When four or

more employees, at one time, are engaged in

the storage, preparation or serving of food

in a licensed establishment, there shall be

at least one certified food protection

manager pr esent at all times when said

activities are taking place. The certified

food protection manager or managers need not

be present in the establishment during those

periods of operation when there are three or

fewer employees engaged in the storage,

preparat ion, or serving of foods. It shall

be the responsibility of the certified food

protection manager or managers to inform all

employees under their supervision and

control who engage in the storage,

preparation, or serving of food, to do so in

accordance wi th acceptable sanitary

practices as described in this chapter.

(Emphasis added.)

15. Being penal in nature, the foregoing statutes and

rules "must be construed strictly, in favor of the one against

whom the penalty would be impo sed." Munch v. Departme nt of

Professional Regulation, Div. of Real Estate , 592 So. 2d 1136,

1143 (Fla. 1st DCA 1992).

16 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional license is penal in

nature. State ex rel. Vining v. Flor ida Real Estate Commission ,

281 So. 2d 487, 491 (Fla. 1973). According ly, to impose

discipline, the Division must prove the charges against

Cafeteria by clear and convincing evidence. Department of

Banking and Finance, Div. of Securities and Investor Pro tection

v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla.

1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95 (Fla.

1987)); Nair v. Department of Business & Professional

Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

17 . Regarding the stand ard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth District, canvassed the cases to develop a

"workable definition of clear and convincing evidence" and found

that of necessity such a definition would need to contain "both

qualitative and quantitative standards." The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimo ny

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the fourth

district's description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93 - 62 , 645

So. 2d 398, 404 (Fla. 1994). Th e First District Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that "[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghou se Elec. Corp., Inc. v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 ( Fla. 1992)(citation omitted).

18 . The undersigned has determined, as a matter of

ultimate fact, that the Division established Cafeteria's gu ilt

regarding noncompliance with the following laws: Food Code

Rule 3 - 501.17(A ) ( one violation), Food Code Rule 4 - 201.1 1 ( one

violation) , Food Code Rule 4 - 501.11 ( two violations) , Food Code

Rule 4 - 302.14 ( one violation) , Florida Administrative Code Rule

61C - 1.004(6) ( one violation) , Food Code Rule 6 - 202.11 ( one

violation) , and Florida Administrative Code Rule 61C - 4.023(1)

( one violation) . In making these determinations, the

undersigned concluded that the plain language of the applicable

statutes and rule s , being clear and unambiguous, could be

applied in a straightforward manner to the historical events at

hand without simultaneously examining extrinsic evidence of

legislative intent or resorting to principles of interpretation.

It is therefore unnecessa ry to make additional legal conclusions

concerning the se violations .

19. Although Cafeteria in fact violated Food Code Rule 5 -

203.14 , the undersigned is unable to make a finding of guilt in

connection with such noncompliance because, the Division having

elected not to adopt the provisions of Chapter 5 of the Food

Code as a rule, no basis exists in Florida law for punishing

Cafeteria's disobedience of this particular federal guideline.

20 . The Division has urged the undersigned to recommend

that Cafe teria be fined $3,000 and ordered to attend an

educational program sponsored by the Hospitality Education

Program. This penalty is well within the statutorily authorized

guidelines and, under the circumstances, is reasonable and just.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order :

(a) finding Cafeteria guilty in accordance with the foregoing

Recommended Order; (b) ordering Cafeteria to pay an

administrative penal ty in the amount of $3,000, due and payable

to the Division of Hotels and Restaurants, 1940 North Monroe

Street, Tallahassee, Florida 32399 - 1011, within 30 calendar days

after the filing of the final order with the agency clerk; and

(c) directing Cafeteria to send an appropriate principal to an

educational program sponsored by the Hospitality Education

Program.

DONE AND ENTERED this 2nd day of November , 2005, in

Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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.stae.fl.us

Filed with the Clerk of the

Division o f Administrative Hearings

this 2nd day of November , 2005.

ENDNOTE

i / The Food Code is a publication of the U.S. Food and Drug

Administration, portions of which have been adopted by reference

as rules of the Division. See Fla. Admin. Code R. 61C - 4.010.

COPIES FURNISHED :

Jessica Leigh, Esquire

Department of Business and

Professional Regulation

940 North Monroe Street, Suite 42

T allahassee, Florida 32399 - 2202

Raul Galindo

Latin American Cafeteria, Inc.

2926 Co ral Way

Miami, Florida 33145 - 3206

Geoff Luebkemann, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

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.