07-001702 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. El Condor Plaza Status: Closed Recommended Order on Wednesday, August 8, 2007.

Summary: Respondent violated several statutes and rules governing food service establishments. Recommend a fine of $2,800 and that Respondent`s principal attend an appropriate educational program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

) Case No. 07-1702

vs. )

)

SONIMAR, INC., d/b/a )

EL CONDOR PASA, )

)

Respondent. )

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

June 4, 2007, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Elizabeth Duffy, Esquire

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Enrique Su

El Condor Plaza

953 Southwest 71st Avenue

North Lauderdale, Florida 33068

STATEMENT OF THE ISSUES

The issues in this disciplinary proceeding arise from

Petitioner's allegation that Respondent, which operates a

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 August 18, 2006, Petitioner Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

issued an Administrative Complaint against Respondent Sonimar,

Inc., d/b/a El Condor Pasa, charging the restaurant operator

with various offenses relating to noncompliance with the

statutes and rules governing food service establishments.

Respondent timely requested a formal hearing to contest these

allegations, and, on April 13, 2007, the matter was filed with

the Division of Administrative Hearings.

The final hearing took place on June 4, 2007, as scheduled,

with both parties present. Petitioner offered five exhibits,

numbered 1 through 5, and each was received in evidence. In

addition, Petitioner presented the testimony of its inspector,

Novelette Williams. Enrique Su, the owner and operator of the

restaurant in question, testified on behalf of Respondent. No

Respondent's exhibits were offered. The undersigned took

official recognition of the applicable administrative rules.

The transcript of the final hearing was filed on

July 9, 2007, and thereafter the parties were notified that

their respective proposed recommended orders would be due on or

before July 19, 2007. 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 2006 Florida Statutes.

FINDINGS OF FACT

1. At one time, Respondent Sonimar, Inc., d/b/a El Condor

Pasa ("Sonimar"), held a Permanent Food Service license. This

license expired, however, on December 1, 2005. Thereafter,

Sonimar continued to operate a food service establishment

without a valid license, and was doing so at all times relevant

to this case.

2. Sonimar is subject to the regulatory and disciplinary

jurisdiction of Petitioner Department of Business and

Professional Regulation, Division of Hotels and Restaurants (the

"Division").

3. On two occasions——June 7, 2006, and July 26, 2006——an

agent of the Division inspected a restaurant located at 953 Rock

Island Road in North Lauderdale, Florida, which establishment

was then (and at the time of the hearing) operated by Sonimar.

During each visit, the inspector noticed several items that were

not in compliance with the laws which govern the facilities and

operations of restaurants.

4. As of July 26, 2006, the following deficiencies

subsisted: (1) chlorine sanitizer was not being used to clean

food contact surfaces and utensils, in violation of Food Code

Rule 4-501.114(A) i ; (2) 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; (3) the operator of the

establishment was not licensed, in violation of Section

509.241(2), Florida Statutes ii ; (4) some ceiling tiles in the

kitchen had water stains (evidencing a leak) and there was a

visible hole in the kitchen ceiling, in violation of Florida

Administrative Code Rule 61C-1.004(6); (5) the door of the walk-

in freezer and the floor of the walk-in cooler were in

disrepair, in violation of Food Code Rule 4-501.11; and (6) the

plumbing located above the three-compartment sink was leaking,

in violation of Food Code Rule 5-205.15.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes(2007).

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

for which 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,

operating 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.

7. 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).

8. Florida Administrative 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 establishments

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 adopted by reference.

9. Food Code Rule 4-501.114(A) provides as follows:

A chemical SANITIZER used in a SANITZING

solution for a manual or mechanical

operation at exposure times specified under

¶ 4-703.11(C) shall meet the criteria

specified under § 7-204.11

Sanitizers, Criteria, shall be used in

accordance with the EPA approved

manufacturer's label use instructions, and

shall be used as follows:

(A) A chlorine solution shall have a

minimum temperature based on the

concentration and pH of the solution as

listed in the following chart[.] iii

10. Food Code Rule 3-501.17 provides in pertinent part:

(A) . . . [R]efrigerated, READY-TO EAT,

POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE

CONTROL FOR SAFETY 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 shall be

consumed on the PREMISES, sold, or discarded

. . . . The day of preparation shall be

counted as Day 1.

11. Section 509.241(2), Florida Statutes, provides in

pertinent part as follows:

APPLICATION FOR LICENSE.--Each person who

plans to open a public lodging establishment

or a public food service establishment shall

apply for and receive a license from the

division prior to the commencement of

operation.

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

relevant part as follows:

The following general requirements and

standards shall be met by all public lodging

and public food service establishments:

(1) Water, plumbing and waste. Except as

specifically provided in these rules,

standards for water, plumbing and waste

shall be governed by Chapter 5, Food Code,

herein adopted by reference. For the

purposes of this section, the term "food

establishment" as referenced in the Food

Code shall apply to all public lodging and

public food establishments as defined in

Chapter 509, F.S.

* * *

(6) All building structural components,

attachments and fixtures shall be kept in

good repair, clean and free of obstructions.

13. Food Code Rule 4-501.11 provides in pertinent part as

follows:

(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.

14. Food Code Rule 5-05.15 provides:

A PLUMBING SYSTEM shall be:

(A) Repaired according to LAW; and

(B) Maintained in good repair.

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 imposed." Munch v. Department 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. Florida Real Estate Commission ,

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

discipline, the Division must prove the charges against Sonimar

by clear and convincing evidence. Department of Banking and

Finance, Div. of Securities and Investor Protection 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 standard 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 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.

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). The 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." Westinghouse 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 Sonimar's guilt

regarding noncompliance with the following laws: Food Code

Rule 4-501.114(A) (two violations); Food Code Rule 3-501.17 (one

violation); Section 509.21(2), Florida Statutes (one violation);

Florida Administrative Code Rule 61C-1.004(6) (two violations);

Food Code Rule 4-501.11 (one violation), and Food Code Rule 5-

205.15 (one violation). In making these determinations, the

undersigned concluded that the plain language of the applicable

statutes and rules, 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 unnecessary to make additional legal conclusions

concerning these violations.

19. The Division has urged the undersigned to recommend

that Sonimar be fined $2,800 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.

20. The Division also urges that Sonimar's license be

suspended for 8 days beginning on the first Monday after (a)

Sonimar's appellate rights have been exhausted and (b) Sonimar

has acquired a new license. Such a penalty, however, would be

inconsistent with Section 509.261(3), Florida Statutes, which

provides as follows:

The division shall post a prominent closed-

for-operation sign on any public lodging

establishment or public food service

establishment, the license of which has been

suspended or revoked. The division shall

also post such sign on any establishment

judicially or administratively determined to

be operating without a license. It is a

misdemeanor of the second degree, punishable

as provided in s. 775.082 or s. 775.083, for

any person to deface or remove such closed-

for-operation sign or for any public lodging

establishment or public food service

establishment to open for operation without

a license or to open for operation while its

license is suspended or revoked. The

division may impose administrative sanctions

for violations of this section.

(Emphasis added.) As the plain language of the foregoing

statute informs, the legislature has directed the Division to

close the doors of all restaurants determined to be operating

without a license. The establishment located at 953 Rock Island

Road, North Lauderdale, Florida, falls into that category. The

undersigned therefore declines to recommend the imposition of an

eight-day suspension against a license that has yet to be

issued.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

(a) finding Sonimar guilty in accordance with the foregoing

Recommended Order; (b) ordering Sonimar to pay an administrative

penalty in the amount of $2,800, due and payable to the Division

of Hotels and Restaurants, 1940 North Monroe Street,

Tallahassee, Florida 32399, within 30 calendar days after the

filing of the final order with the agency clerk; and (c)

directing Sonimar to send an appropriate principal to an

educational program sponsored by the Hospitality Education

Program.

DONE AND ENTERED this 8th day of August, 2007, in

Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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.stae.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of August, 2007.

ENDNOTES

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.

ii / Mr. Su admitted at hearing that Sonimar still had not

renewed its license and hence was operating without one.

iii / This is the chart that Food Code Rule 4-501.114(A)

incorporates:

Minimum Concentration Minimum Temperature

MG/L pH 10 or less pH 8 or less

°C (°F) °C (°F)

25 49 (120) 49 (120)

50 38 (100) 24 ( 75)

100 13 ( 55) 13 ( 55)

COPIES FURNISHED :

Elizabeth Duffy, Esquire

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Enrique Su

El Condor Plaza

953 Southwest 71st Avenue

North Lauderdale, Florida 33068

William 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.