07-000200 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. House Of India Status: Closed Recommended Order on Wednesday, August 22, 2007.

Summary: Respondent is in violation of the Food Code as a result of its failure to eliminate rodent harborage conditions. Recommend a $1,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 07-0200

)

HOUSE OF INDIA, 1 )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

July 25, 2007, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Elizabeth Duffy, Esquire

Jose Blanco, Certified Legal Extern

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Sukhpal Singh, Manager

House of India

22 Merrick Way

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On October 17, 2006, Petitioner issued an Administrative

Complaint alleging that, on September 28 and 29, 2006,

Respondent was in violation of Section 6-501.111 of the Food

Code. On or about November 6, 2006, Respondent requested "an

evidentiary hearing pursuant to Section 120.57(1), Florida

Statutes," 2 on the allegations made against it in the

Administrative Complaint. On January 16, 2007, the matter was

referred to DOAH for the assignment of a DOAH administrative law

judge to conduct the hearing Respondent had requested.

As noted above, the hearing was held on July 25, 2007. 3 Two

witnesses testified at the hearing: Douglas Morgadanes (for

Petitioner) and Sukhpal Singh (for Respondent). In addition to

the testimony of Mr. Morgadanes and Mr. Singh, six exhibits

(Petitioner's Exhibits 1 through 5, and Respondent's Exhibit 1)

were offered and received into evidence.

At the close of the taking of evidence, the undersigned

established a deadline (10 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume) was

filed with DOAH on August 7, 2007.

Respondent filed its Proposed Recommended Order on

August 17, 2007. To date, Respondent has not filed any post-

hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. At all times material to the instant case, Respondent

operated the House of India (Restaurant), an eating

establishment located in Coral Gables, Florida.

2. Respondent is now, and was at times material to the

instant case, the holder of a license issued by Petitioner

(license number 2313769) authorizing it to operate the

Restaurant as a public food service establishment.

3. On the morning of September 28, 2006, Douglas

Morgadanes, a Sanitation and Safety Specialist with Petitioner,

conducted an inspection of the premises of the Restaurant. His

inspection revealed, among other things, that there were, what

he believed to be, "rodent droppings" present in the Restaurant,

creating "an unsanitary condition [that] could lead to food

borne illnesses" if the food served to patrons became

contaminated with these droppings.

4. Before leaving the establishment, Mr. Morgadanes

advised Respondent that this "unsanitary condition" had to be

corrected within 24 hours.

5. The Restaurant closed immediately following the

inspection and an extensive cleanup operation was undertaken.

6. In addition, Respondent had "[its] pest control

company," Rentokil Pest Control (Rentokil), come to the

Restaurant during or around the early morning hours of

September 29, 2006, to perform "follow-up" rodent control

services. (Rentokil had just made a "routine service" call to

the Restaurant on September 27, 2006.)

7. Mr. Morgadanes conducted a "callback" inspection of the

Restaurant on September 29, 2006. His inspection revealed that,

notwithstanding Respondent's cleanup and rodent control efforts,

there were, what appeared to him to be, rodent droppings 4 in an

unused attic area above, and "a little bit to the side" of, the

Restaurant's kitchen.

8. Respondent was unable to produce for Mr. Morgadanes

during the "callback" inspection documentation reflecting that

Rentokil had been to the Restaurant to provide rodent control

services.

9. Respondent subsequently sent such documentation to

Mr. Morgadanes' office by facsimile transmission.

10. The documentation for the September 29, 2006, service

call (9/29 Documentation) contained the following entries under

"Service Performed by Rentokil" and "Cooperation Requested from

Customer":

Service Performed by Rentokil : Inspected

and service[d] facility for pest[s]. Found

no activity. Put out glue in kitchen

underneath kitchen sink around hole near the

back door.

Cooperation Requested from Customer :

Proofing Adequate? ! Yes " No Please fix

hole underneath sink to prevent rodent

harborage.

Sanitation Needed? " Yes ! No Please

clean dishwashing station.

11. These entries on the 9/29 Documentation clearly and

convincingly establish that, although Respondent had done

cleanup work and retained the services of Rentokil in an effort

to minimize the presence of rodents in the Restaurant, it had

not eliminated harborage conditions on the premises. 5

12. After receiving the documentation from Respondent,

Petitioner issued the Administrative Complaint that is the

subject of the instant controversy.

13. This was the second time in less than a year that

Petitioner had charged Respondent with violating

Section 6-301.14 of the Food Code. A prior charge (filed in

DBPR Case No. 2005064978) had been disposed of by stipulation,

the terms of which were "adopted and incorporated" in a Final

Order issued by Petitioner on January 12, 2006. There was no

admission or finding of guilt. The "stipulated disposition" of

the charge was Respondent's payment of a fine of $500.00 and

attending a hospitality education program.

CONCLUSIONS OF LAW

14. Petitioner has been statutorily delegated the

authority to "carry out all of the provisions of [Chapter 509,

Florida Statutes] and all other laws relating to the inspection

or regulation of . . . public food service establishments for

the purpose of safeguarding the public health, safety, and

welfare." § 509.032, Fla. Stat.

15. A "public food service establishment," as that term is

used in Chapter 509, Florida Statutes, is defined in Section

509.013(5)(a), Florida Statutes, as follows:

"Public food service establishment" means

any building, vehicle, place, or structure,

or any room or division in a building,

vehicle, place, or structure where food is

prepared, served, or sold for immediate

consumption on or in the vicinity of the

premises; called for or taken out by

customers; or prepared prior to being

delivered to another location for

consumption.

16. Each "public food service establishment" must have a

license from Petitioner prior to the commencement of operation.

§ 509.241, Fla. Stat.

17. Disciplinary action may be taken against the holder of

such license for "operating in violation of [Chapter 509,

Florida Statutes] or the rules of [Petitioner] . . . ." Such

disciplinary action may include one or more of the following

penalties: license revocation, with the licensee unable to

"apply for another license for that location prior to the date

on which the revoked license would have expired"; license

suspension (for a period not exceeding 12 months), with the

licensee able to "apply for reinstatement or renewal of the

license" following the suspension period; imposition of an

administrative fine not to exceed $1,000 for each separate

offense 6 ; and "[m]andatory attendance, at personal expense, at an

educational program sponsored by the Hospitality Education

Program." § 509.261, Fla. Stat.

18. "[T]he rules of [Petitioner]," violation of which

subject a licensee to disciplinary action pursuant to Section

509.261, Florida Statutes, include Florida Administrative Code

Rule 61C-4.010(6), which provides, in pertinent part, as

follows: 7

61C-4.010 Sanitation and Safety

Requirements.

* * *

(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. . . .

* * *

19. Section 6-501.111 is part of Chapter 6 of the Food

Code (which is incorporated by reference in Florida

Administrative Code Rule 61C-4.010(6)). It provides as follows:

Section 6-501.111 Controlling Pests

The presence of insects, rodents, and other

pests shall be controlled to minimize their

presence on the premises by:

(A) Routinely inspecting the premises for

evidence of pests;

(B) Using methods, if pests are found, such

as trapping devices or other means of pest

control as specified under §§ 7-202.12, 7-

206.12, and 7-206.13; and

(D) Eliminating harborage conditions.

20. "No revocation [or] suspension . . . of any [public

food service establishment] license is lawful unless, prior to

the entry of a final order, [Petitioner] has served, by personal

service or certified mail, an administrative complaint which

affords reasonable notice to the licensee of facts or conduct

which warrant the intended action and unless the licensee has

been given an adequate opportunity to request a proceeding

pursuant to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat.

21. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes the

alleged facts set forth in the administrative complaint.

§§ 120.569(1) and 120.57, Fla. Stat.

22. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the administrative complaint. Proof

greater than a mere preponderance of the evidence must be

presented. Clear and convincing evidence of the licensee's guilt

is required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of Central Florida

v. Department of Business Regulation , 601 So. 2d 245, 249 (Fla.

1st DCA 1992); and § 120.57(1)(j), Fla. Stat. ("Findings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute . . . .").

23. Clear and convincing evidence "requires more proof than

a 'preponderance of the evidence' but less than 'beyond and to

the exclusion of a reasonable doubt.'" In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id.

For proof to be considered "'clear and convincing' . . . the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

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." In re Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

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

24. In determining whether Petitioner has met its burden of

proof, it is necessary to evaluate its evidentiary presentation

in light of the specific factual allegation(s) made in the

charging instrument. Due process prohibits an agency from taking

penal action against a licensee based on matters not specifically

alleged in the charging instrument, unless those matters have

been tried by consent. See Shore Village Property Owners'

Association, Inc. v. Department of Environmental Protection , 824

So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for

Health Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA

1999).

25. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint] to have been violated." Delk , 595 So. 2d at 967. In

deciding whether "the statute or rule claimed to have been

violated" was in fact violated, as alleged by Petitioner, if

there is any reasonable doubt, that doubt must be resolved in

favor of the licensee. See Whitaker v. Department of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

v. Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

26. The Administrative Complaint issued in the instant case

alleges that, on September 28 and 29, 2006, Respondent was in

violation of Section 6-501.111 of the Food Code as evidenced by

rodent droppings found in the Restaurant during inspections on

those days.

27. As noted above, Section 6-501.111 of the Food Code

specifies measures that must be taken to "minimize" the presence

of rodents and other pests on the premises of a public food

service establishment. 8 These measures include "[e]liminating

harborage conditions."

28. The record evidence clearly and convincingly

establishes that Respondent violated Section 6-501.111 of the

Food Code on September 28 and 29, 2006, as alleged in the

Administrative Complaint, by not "eliminating harborage

conditions" at the Restaurant. Accordingly, disciplinary action

may be taken against Respondent pursuant to Section 509.261,

Florida Statutes.

29. In its Proposed Recommended Order, Petitioner proposes

that the undersigned recommend that, as punishment for

Respondent's committing the violations alleged in the

Administrative Complaint, Respondent's license be suspended for

four days and it be required to pay an administrative fine of

$1,000.00 and attend, at its own expense, a hospitality

education program.

30. In the undersigned's view, this is too harsh a

penalty, given the efforts that Respondent did make to minimize

the presence of rodents in the Restaurant.

31. Taking into account the totality of circumstances

(including these efforts made by Respondent, as well as the

disposition of the charge filed against Respondent in DBPR Case

No. 2005064978), the undersigned concludes that a more

reasonable and appropriate penalty would be to merely require

Respondent to pay an administrative fine of $1,000.00 and

attend, at its own expense, a hospitality education program,

without suspending its license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that Petitioner issue a final order finding

that Respondent committed the violations alleged in the

Administrative Complaint and disciplining Respondent therefor by

imposing a fine of $1,000.00 and directing that Respondent

attend, at its own expense, a hospitality education program.

DONE AND ENTERED this 22nd day of August, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 August, 2007.

ENDNOTES

1 House of India is the "doing business as" name of Suni House

of India, Inc.

2 All references to Florida Statutes in this Recommended Order

are to Florida Statutes (2006).

3 The hearing was originally scheduled for March 22, 2007, but

was twice continued.

4 While it is not apparent from the record that Mr. Morgadanes

had sufficient expertise to determine that the droppings he

observed on September 28 and 29, 2006, were the product of

rodents, Respondent does not dispute that these droppings were

indeed, as Mr. Morgadanes determined, rodent feces. Whether

these droppings were fresh or not, the evidentiary record does

not reveal.

5 The 9/29 Documentation can be relied upon to make a finding

concerning Respondent's failure to eliminate harborage

conditions in the Restaurant inasmuch as it was Respondent that

offered this documentation into evidence (as part of

Respondent's Exhibit 1) and it did so without limitation or

reservation. Cf. Guzman v. IBP, Inc. , 2000 Neb. App. LEXIS 261

*8-9 (Neb. Ct. App. 2000)("IBP asserts that the information on

exhibit 53 is uncorroborated hearsay. Thus, IBP concludes that

we should not rely on the report in our review of this case.

While IBP's contentions might be well taken if it had not

offered the exhibit or if the exhibit was received over IBP's

objections on these grounds, IBP waived these objections by

offering the exhibit, and we consider it for what it is

worth-- . . . . Finally, IBP ignores the fact that Guzman may

support her case not only by her own evidence, but by the

evidence produced by IBP as well."); and State v. Holliday , 110

Ore. App. 426, 428 n.1 (Or. Ct. App. 1992)("Defendant waived any

objection to the lack of certification or supporting affidavits

for the records by offering them as his exhibit.").

6 Section 509.261(2), Florida Statutes, provides that, "[f]or

the purposes of this section, [Petitioner] 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." "Violations of

critical laws or rules" are defined in Florida Administrative

Code Rule 61C-1.0021(2), as "those violations determined by the

[Petitioner] to pose a significant threat to the public health,

safety, or welfare."

7 "[T]he rules of [Petitioner]" also include the following

provision found in Florida Administrative Code Rule 61C-

1.004(3):

61C-1.004 General Sanitation and Safety

Requirements.

The following general requirements and

standards shall be met by all . . . public

food service establishments:

* * *

(3) Vermin control - Effective control

measures shall be taken to protect against

the entrance into the establishment, and the

breeding or presence on the premises of

rodents, flies, roaches and other vermin.

All buildings shall be effectively rodent-

proofed, free of rodents and maintained in a

rodent-proof and rodent-free condition. All

windows used for ventilation must be

screened, except when effective means of

vermin control are used. Screening material

shall not be less than 16 mesh to the inch

or equivalent, tight-fitting and free of

breaks. Insecticides or rodenticides, when

used, shall be used in compliance with

Chapter 5E-14, F.A.C., herein adopted by

reference.

* * *

Respondent, however, was not charged with, and therefore cannot

be found guilty of, violating this rule provision. See Willner

v. Department of Professional Regulation, Board of Medicine , 563

So. 2d 805, 806 (Fla. 1st DCA 1990)("[A]ppellant correctly

argues that three of the violations were not charged in the

administrative complaints against him. We, therefore, set aside

the findings of guilt and the fines for violation of Section

458.331(1)(h), Florida Statutes (1981); Section 458.331(1)(t),

Florida Statutes (1981); and Section 458.331(1)(n), Florida

Statutes (1983)."); and Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he

conduct proved must legally fall within the statute or rule

claimed [in the administrative complaint] to have been

violated.").

8 The presence of rodents or their droppings at a public food

service establishment is not in and of itself a violation of

Section 6-501.111 of the Food Code. It is merely proof of such

a violation.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Elizabeth Duffy, Esquire

Jose Blanco, Certified Legal Extern

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Sukhpal Singh, Manager

House of India

22 Merrick Way

Coral Gables, Florida 33134

Bill Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Lucynski, 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.