08-002710 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Brisas Del Yunque Status: Closed Recommended Order on Friday, September 5, 2008.

Summary: Failure to provide proof of food safety training requires a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-2710

)

BRISAS DEL YUNQUE, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 29, 2008, an administrative hearing in this case

was held by video teleconference between Tallahassee and

Orlando, Florida, before William F. Quattlebaum, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ethan Chase Bender,

Qualified Representative

Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Tomas Lopez, pro se

Brisas del Yunque

29 South Semoran Boulevard

Orlando, Florida 32807

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 8, 2008, the

Department of Business and Professional Regulation, Division of

Hotels and Restaurants (Petitioner), alleges that Brisas Del

Yunque (Respondent), a restaurant owned by Tomas Lopez, was

found to be in violation of food safety regulations related to

training of food service employees and to cleaning of microwave

ovens. 1

Mr. Lopez disputed the allegations and requested a formal

administrative hearing. The Petitioner forwarded the matter to

the Division of Administrative Hearings, which scheduled and

conducted the formal hearing.

At the hearing, the Petitioner presented the testimony of

one witnesses and had Exhibits 1 through 3 admitted into

evidence. Mr. Lopez testified on behalf of the Respondent.

The Transcript of the hearing was filed on August 14, 2008.

The Petitioner filed a Proposed Recommended Order on August 20,

2008.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with

regulation of hotels and restaurants pursuant to Chapter 509,

Florida Statutes (2007).

2. At all times material to this case, the Respondent was

a restaurant holding Food Service license number 5803705 and

operating at 29 South Semoran Boulevard, Orlando, Florida 32807.

3. On October 23, 2007, Alphonso Rullan, a sanitation

safety specialist employed by the Petitioner, performed a

routine inspection of the Respondent at which time there were

employees engaged in food preparation.

4. At the time of the October 23 inspection, the

Respondent was unable to provide any evidence that the employees

had received training in food safety protection.

5. Mr. Rullan also observed during the October 23

inspection that the interior of the microwave oven was soiled

with crusted food material indicating that the oven was not

being routinely cleaned at least every 24 hours.

6. Mr. Rullan noted the deficiencies in an inspection

report, a copy of which was provided to the manager, who was

identified as "Victor Montenegro."

7. On January 11, 2008, Mr. Rullan returned to the

Respondent to perform a call back inspection, during which the

Respondent was still unable to provide evidence that employees

had received training in food safety protection. Mr. Rullan

again observed that the microwave oven was soiled with crusted

food material indicating that the oven was not being cleaned at

least every 24 hours. The deficiencies were cited in an

inspection report which was provided to Mr. Lopez at the time of

the inspection.

8. On February 8, 2008, the Petitioner issued an

Administrative Complaint against the Respondent for failure to

correct the deficiencies cited herein.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla. Stat. (2008).

10. The Petitioner is the state agency charged with the

regulation of food service establishments in the State of

Florida. See Ch. 509, Fla. Stat. (2007). The Petitioner has

adopted by incorporation the various provisions of the Food Code

referenced herein. Fla. Admin. Code R. 61C-4.010(1). The

Petitioner has the burden of proving by clear and convincing

evidence the allegations set forth in the Administrative

Complaint against the Respondent. Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). In

this case, the burden has been met.

11. The Administrative Complaint charged the Respondent

with a violation of Subsection 509.049(5), Florida Statutes

(2007), which provides as follows:

It shall be the duty of each public food

service establishment to provide training in

accordance with the described rule to all

food service employees of the public food

service establishment. The public food

service establishment may designate any

certified food service manager to perform

this function. Food service employees must

receive certification within 60 days after

employment. Certification pursuant to this

section shall remain valid for 3 years. All

public food service establishments must

provide the division with proof of employee

training upon request, including, but not

limited to, at the time of any division

inspection of the establishment. Proof of

training for each food service employee

shall include the name of the trained

employee, the date of birth of the trained

employee, the date the training occurred,

and the approved food safety training

program used.

12. The evidence establishes that at the time of both the

initial and the call back inspections, the Respondent failed to

provide evidence that food service employees had received the

required food safety training.

13. The Administrative Complaint also charged the

Respondent with a violation of Food Code Rule 4-602.12(b), which

provides as follows:

The cavities and door seals of microwave

ovens shall be cleaned at least every

24 hours by using the manufacturer's

recommended cleaning procedure.

14. The evidence establishes that at the time of both the

initial and the call back inspections, observation of the

microwave oven indicated that the cavities and door seals were

not being cleaned in compliance with the rule.

15. Subsection 509.261(1), Florida Statutes (2007),

provides that each violation is treated as a separate offense

and that each offense is punishable by a fine not to exceed

$1,000 per offense. In addition, offenses may be disciplined by

required attendance at an educational program sponsored by the

Hospitality Education Program, or by suspension, revocation, or

refusal of a license.

16. The Petitioner's Proposed Recommended Order recommends

imposition of a total fine of $1,000 in this case. There is no

evidence that the penalty sought by the Petitioner is

inappropriate according to the range set forth in the statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation enter a final order imposing a fine of

$1,000 against the Respondent and requiring the Respondent to

complete an appropriate educational program related to the

violations identified herein.

DONE AND ENTERED this 5th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 5th day of September, 2008.

ENDNOTE

1/ Additionally, the Administrative Complaint included an

allegation related to an "uncovered electrical box behind the

cook's line," but the Petitioner withdrew the allegation at the

commencement of the hearing and offered no evidence related

thereto.

COPIES FURNISHED :

Ethan Chase Bender

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Tomas Lopez

Brisas del Yunque

29 South Semoran Boulevard

Orlando, Florida 32807

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

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.