08-000995 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Big Apple Pizza Status: Closed Recommended Order on Monday, December 22, 2008.

Summary: Respondent violated numerous Florida Statutes and Florida Administrative Code rules regarding food safety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-0995

)

BIG APPLE PIZZA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 1, 2008, in Orlando, Florida, before Jeff B. Clark, a

duly-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, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Vinchaso Burtuto, President

Big Apple Pizza

4976 Millenia Boulevard, Suite C

Orlando, Florida 32839

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint dated April 22, 2008, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated October 29, 2007,

Petitioner, Department of Business and Professional Regulation,

Division of Hotels and Restaurants, charged that on August 22

and October 29, 2007, Respondent, Big Apple Pizza

Company @ Millenia, Inc., was found to be in violation of

Chapter 509, Florida Statutes (2007), 1 rules promulgated as

authorized by Chapter 509, Florida Statutes, and regulations

governing public food service establishments in Florida. In

particular, Respondent was charged with violations of Sections

509.032, 509.039, and 509.049, Florida Statutes; Florida

Administrative Code Rules 61C-1.004(6), 61C-1.004(9)(D),

61C-1.0021 and 61C-4.010(7); and Rules 3-304.14(B)(2) and

6-301.11 of the United States Department of Agriculture Food

Code (Food Code).

Respondent timely disputed the facts alleged in the

Administrative Complaint and requested an administrative

hearing. Petitioner forwarded the matter to the Division of

Administrative Hearings on February 25, 2008, for assignment of

an Administrative Law Judge. An Initial Order was sent to both

parties on February 25, 2008. By Notice of Hearing dated

March 7, 2008, the case was scheduled for final hearing on

April 29, 2008, in Orlando, Florida. On April 23, 2008, a Joint

Motion for Continuance was filed. The case was continued to

June 19, 2008. On June 17, 2008, a second Joint Motion for

Continuance was filed. The case was rescheduled for hearing on

October 1, 2008.

The final hearing was conducted, as rescheduled, on

October 1, 2008. At the hearing, Petitioner presented the

testimony of two witnesses: Andrea Piel, a sanitation and

safety specialist; and Michael Campbell, supervisor of

inspectors. Petitioner's Exhibits A through D were offered and

received into evidence. Vinchaso Burtuto, Respondent's

president, testified. Pursuant to Petitioner's request,

official recognition was taken of Subsections 509.032(2)(b)

and (c) and 509.032(6) and Section 509.039, Florida Statutes;

Florida Administrative Code Rules 61C-1.002(5)(B), 61C-1.004(6),

61C-4.023(1); Rules 3-304.14(B)(2) and 6-301.11 of the Food

Code; and National Fire Protection Association (Code) 96,

11.1.2.

The one-volume Transcript of the proceedings was filed with

the Division of Administrative Hearings on November 12, 2008.

Extensions of time were granted Respondent for filing a proposed

recommended order. Both parties filed Proposed Recommended

Orders that have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following Findings of Fact are made:

1. Petitioner is the state agency responsible for

inspecting and regulating public food service establishments in

Florida.

2. Respondent, Big Apple Pizza Company @ Millenia, Inc.,

is a permanent food service establishment holding License

No. 5811720. 2

3. On August 22, 2007, Andrea Piel inspected the premises

of Respondent. A Food Service Inspection Report was prepared on

site which noted a number of violations. This Food Service

Inspection Report was received and signed by "Vinnie Burruto

[sic]" on the day of the inspection. Respondent was notified

both verbally and in writing on the inspection report that

violations must be corrected by the next unannounced inspection.

4. A critical violation is one that, if not corrected, is

more likely than other violations to cause an imminent

food-borne illness, contamination, or environmental hazard.

5. A non-critical violation is one that relates to good

retail practices, such as general cleanliness, organization, and

maintenance of the facility.

6. On October 22, 2007, Andrea Piel attempted to perform a

follow-up inspection on Respondent's premises, but was denied

access to the kitchen. This was acknowledged by Respondent's

witness. The excuse offered for refusing Petitioner's inspector

access, that he had just received a food shipment, is

unacceptable.

7. On October 29, 2007, Respondent's premises were

re-inspected by Michael Campbell. A Call Back Inspection Report

was prepared which noted the following "critical violations":

no soap at hand-wash sink in kitchen; no required food manager

certification available; and no required proof of employee food

handler training available. In addition, the following "non-

critical" violations were noted: prep surfaces were not

sanitized after use and prior to reuse; no sanitizing buckets

were available with any measurable sanitizer in them; a sponge

was found in the three-compartment sink; ceiling tiles were

missing in the kitchen; and carbon dioxide tanks were not

properly secured. Each of these violations is a repeat

violation, not corrected from the initial inspection.

8. Petitioner withdrew and did not offer any evidence

regarding violations of National Fire Protection Association

(Code) 96, 11.1.2., and Florida Administrative Code Rules

61C-1.002(5)(B), 61C-1.004(11), and 61C-4.010(7).

9. Vinchaso Burtuto, Respondent's witness, was not on

Respondent's premises during the "call-back" inspection. The

credibility of his testimony is eroded by the fact that he was

not present.

10. The inspection reports and citations of specific

violations of Inspectors Piel and Campbell are credible and

present clear and convincing evidence of the reported

violations.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

12. In the Administrative Complaint, Petitioner seeks to

discipline Respondent's license and/or to impose an

administrative fine. Accordingly, Petitioner must prove the

allegations in the Administrative Complaint by "clear and

convincing" evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

13. "Clear and convincing evidence" is:

[Evidence] that entails both a qualitative

and quantitative standard. The evidence

must be credible; the memories of the

witnesses must be clear and without

confusion; and the sum total of the evidence

must be of sufficient weight to convince the

trier of fact without hesitancy. 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994); Slomowitz v.

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

14. Petitioner presented evidence of three critical

violations and three non-critical violations noted on the "call-

back" inspection of October 29, 2007, and enumerated in the

Administrative Complaint. No credible evidence was presented

that challenged the findings that three critical violations and

four non-critical violations were observed during the

October 29, 2007, call-back, inspection. In addition,

Respondent, through its president, refused to allow Petitioner's

inspector to conduct an inspection on October 22, 2007, an

egregious violation of Subsection 509.032(b), Florida Statutes,

which could result in the revocation of Respondent's license.

See Fla. Admin. Code R. 61C-1.0021. Petitioner has met the

burden of proving that Respondent violated Sections 509.032,

509.039 and 509.49, Florida Statutes; Florida Administrative

Code Rules 61C-1.004(6), 61C-1.004(9)(D), 61C-4.023(1); and

Rules 3-304.14(B)(2) and 6-301.11 of the Food Code, as alleged

in the Administrative Complaint, clearly and convincingly.

15. Section 509.261, Florida Statutes, reads as follows:

(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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

enter a final order finding that:

1. Respondent, Big Apple Pizza, committed the violations

as alleged in the Administrative Complaint;

2. An administrative fine of four thousand dollars

($4,000.00) be imposed for the violations incidental to

Respondent's failure to cure the violations as determined during

the "call-back" inspection of October 29, 2007;

3. An additional administrative fine of one thousand

dollars ($1,000.00) be imposed for the October 22, 2007,

violation wherein Petitioner's inspector was denied access to

Respondent's premises; and

4. The owner(s) of Respondent be required to attend, at

personal expense, an educational program sponsored by the

Hospitality Education Program.

DONE AND ENTERED this 22nd day of December, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December, 2008.

ENDNOTES

1/ All references are to 2007 Florida Statutes, unless otherwise

indicated.

2/ It is noted that Big Apple Pizza Company @ Millenia, Inc. is

listed as an "inactive" corporation by the Department of State.

COPIES FURNISHED :

Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Vinchaso Burtuto

Big Apple Pizza

4976 Millenia Boulevard, Suite C

Orlando, Florida 32839

William Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

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.