07-004065 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Flamers Status: Closed Recommended Order on Thursday, January 24, 2008.

Summary: Unlabeled food containers that were stored overnight violate Food Code.

Case No. 07-4065

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) ) ) ) ) ) ) ) ) ) ) ) )

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND RECOMMENDED ORDER

RESTAURANTS,

Petitioner,

vs.

FLAMERS,

Respondent.

Pursuant to notice a formal hearing was held on October 17,

2007, in Fort Lauderdale, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2022

For Respondent: Richard Yo, pro se

6205 Floridian Circle

Lake Worth, Florida 33463

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Flamers,

committed the violation alleged and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On June 21, 2007, the Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants

(Petitioner or Department), executed an Administrative Complaint

that alleged the Respondent, Flamers (Respondent), had violated

provisions of Chapter 509, Florida Statutes. More specifically,

the Petitioner claimed that the Respondent, a restaurant subject

to food service inspections, had failed to date food that was

stored overnight; and had failed to properly tag and maintain a

fire suppression system. The Respondent, Flamers, through its

owner, Richard Yo, timely challenged the allegations and the

matter was forwarded to the Division of Administrative Hearings

for formal hearing on September 10, 2007.

A Notice of Hearing was issued on September 24, 2007, and

the case was scheduled for hearing. At the hearing, the

Petitioner presented testimony from Damian Morales, a sanitation

safety specialist employed by the Department. The Petitioner's

Exhibits A, B, and C were admitted into evidence. Richard Yo

testified on behalf of the Respondent.

The Transcript of the proceeding was filed with the Division

of Administrative Hearings on December 31, 2007. The Petitioner

timely filed a Proposed Recommended Order that has been

considered in the preparation of this order. The Respondent did

not file a proposed order. Both at the hearing and through its

Proposed Recommended Order the Petitioner acknowledged that it

voluntarily dismissed its claim of a fire code violation against

the Respondent. The sole allegation requiring resolution is the

matter of whether the Respondent appropriately labeled for

storage food containers. The Respondent maintains that the

approved policy was to label and store all food products.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the

responsibility of regulating hotels and restaurants within the

State of Florida regarding health and safety codes. See §

509.032, Fla. Stat. (2007).

2. At all times material to the allegations of this case,

the Respondent operated as a public food service establishment

subject to the Petitioner’s jurisdiction (see Petitioner’s

Exhibit A).

3. In his capacity as a sanitation and safety specialist

for the Petitioner, Mr. Morales visited the Respondent’s place of

business located at 801 North Congress Avenue, Boynton Beach,

Florida, on two occasions. Mr. Morales has extensive training

and education in food service related matters and has performed

numerous inspections for the Petitioner. He is familiar with all

relevant food service law and rules pertaining to the inspection

of licensed food service establishments.

4. First, on May 11, 2007, Mr. Morales visited the

Respondent’s place of business and noted several Food Service

Inspection violations. These violations were documented

(Petitioner’s Exhibit B) and a copy of the inspection report was

provided to Mr. Yo. Mr. Yo owns the restuarant and was present

during this first inspection. The violation pertinent to this

case is more fully described below (see "callback" inspection

results).

5. At the time of the first inspection, Mr. Morales warned

that a “call back” inspection would be performed and issued the

Respondent with a warning regarding the violations noted on the

inspection form. The “call back” inspection was provided to

afford the Respondent with time to correct the deficiencies noted

in the first inspection and to assure that the deficiencies were

timely corrected.

6. On June 14, 2007, Mr. Morales returned to the

Respondent’s place of business to perform the “call back”

inspection. The “call back” inspection report (Petitioner’s

Exhibit C) noted two violations had not been corrected. Only one

of these violations remains at issue. Specifically, Mr. Morales

found that the food containers that stored food overnight were

not clearly marked and dated. This is not an approved method of

storing food.

7. Mr. Yo was not present during this "call back"

inspection. Michael Evancich was present during the "call back."

Mr. Evanich identified himself to Mr. Morales as the Respondent's

"manager." Mr. Evancich signed the Food Service Inspection

Report that detailed the violation.

8. Mr. Morales noted that potentially hazardous food was

prepared and held in containers for more than 24 hours without

being clearly marked to indicate the date or day by which the

food would be consumed, sold, or discarded. See Food Code Rule

3-501.17(A). Food containers with hot dogs, chicken breasts, and

burgers were not dated and were stored overnight inside a cooler.

According to Mr. Morales this is a critical violation. Undated

and out-dated food can grow bacteria leading to a potential

health hazard. The purpose of the labeling assures that

potentially hazardous products are not sold to the public or

consumed.

9. Although he was not present during the "call back"

inspection, Mr. Yo maintained that the Respondent has a policy to

assure that food products are marked and stored in an approved

manner.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. §§ 120.57(1), and 509.261, Fla. Stat. (2007).

11. Section 509.261, Florida Statutes (2007), 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 division ,

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. [Emphasis Added.]

12. Section 509.032, Florida Statutes (2007) provides, in

pertinent part:

(1) GENERAL.--The division shall carry out

all of the provisions of this chapter and all

other applicable laws and rules relating to

the inspection or regulation of public

lodging establishments and public food

service establishments for the purpose of

safeguarding the public health, safety, and

welfare. The division shall be responsible

for ascertaining that an operator licensed

under this chapter does not engage in any

misleading advertising or unethical

practices.

(2) INSPECTION OF PREMISES.--

(a) The division has responsibility and

jurisdiction for all inspections required by

this chapter. The division has

responsibility for quality assurance. Each

licensed establishment shall be inspected at

least biannually, except for transient and

nontransient apartments, which shall be

inspected at least annually, and shall be

inspected at such other times as the division

determines is necessary to ensure the

public's health, safety, and welfare. * * *

(b) For purposes of performing required

inspections and the enforcement of this

chapter, the division has the right of entry

and access to public lodging establishments

and public food service establishments at any

reasonable time.

(c) Public food service establishment

inspections shall be conducted to enforce

provisions of this part and to educate,

inform, and promote cooperation between the

division and the establishment.

(d) The division shall adopt and enforce

sanitation rules consistent with law to

ensure the protection of the public from

food-borne illness in those establishments

licensed under this chapter. These rules

shall provide the standards and requirements

for obtaining, storing, preparing,

processing, serving, or displaying food in

public food service establishments, approving

public food service establishment facility

plans, conducting necessary public food

service establishment inspections for

compliance with sanitation regulations,

cooperating and coordinating with the

Department of Health in epidemiological

investigations, and initiating enforcement

actions, and for other such responsibilities

deemed necessary by the division. * * *

13. Florida Administrative Code Rule 61C-1.001, sets forth

the definitions applicable to this case. The rule defines:

(4) Approved – Acceptable to the division

following a determination as to conformance

with appropriate sanitation and safety

standards and good public health practice.

* * *

(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).

(15) Food establishment – As utilized in the

Food Code, this term shall apply to public

lodging and food service establishments as

defined in Chapter 509, F.S., according to

the context of the applicable rule language.

14. Florida Administrative Code Rule 61C-4.010, provides,

in part:

(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.

15. Rule 3-501.17(A) of the Food Code requires that

refrigerated, 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

shall be consumed on the premises, sold, or discarded. The day

of preparation is counted as Day 1.

16. In this matter, the Petitioner bears the burden of

proof to establish by clear and convincing evidence the

allegations of the Administrative Complaint. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). As to each of the

allegations, it has met that burden. It is concluded the

Respondent violated the provision of the Food Code as alleged by

Petitioner.

17. It is concluded that the Department has established the

Respondent failed to clearly mark food stored overnight in

containers in an approved manner. Further, the storage of

potentially hazardous food in this manner is unacceptable under

the guidelines applicable to this case.

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 imposing an administrative fine in the amount

of $500.00.

DONE AND ENTERED this 24th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 24th day of January, 2008.

COPIES FURNISHED :

William Veach, Director

Division of Hotels and Restuarants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jessica Leigh, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Richard Yo

6205 Floridian Circle

Lake Worth, Florida 33463

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.