08-005414 Department Of Business And Professional Regulation vs. Pittsburgh Pete`s Status: Closed Recommended Order on Tuesday, March 3, 2009.

Summary: Respondent had no certified food manager and no documentation that food service employees met training requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 08-5414

)

PITTSBURGH PETE’S, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 23, 2009, an administrative hearing in this case

was held in Largo, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Herbert H. Newman, pro se

10801 Starkey Road, No. 11

Largo, Florida 33777

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 August 25, 2004, the

Department of Business and Professional Regulation, Division of

Hotels and Restaurants (Petitioner), alleged that Pittsburgh

Pete's (Respondent), a restaurant owned and operated by Herbert

Newman, was determined after inspection to be in violation of

specified food safety regulations. The Respondent apparently

disputed the allegations and requested a formal administrative

hearing, although the DOAH did not receive a copy of the

request. The Petitioner forwarded the dispute to DOAH, which

scheduled and conducted the formal hearing.

At the hearing, the Petitioner presented the testimony of

one witness and had Exhibits lettered A through C admitted into

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

The Transcript of the hearing was filed on January 30,

2009. The Petitioner filed a Proposed Recommended Order on

February 11, 2009.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with

regulation of hotels and restaurants pursuant to Chapter 509,

Florida Statutes (2008).

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

a restaurant operating at 10801 Starkey Road, Largo, Florida,

33773, and holding food service license number 6215373.

3. On July 21, 2004, Jim Olsen, a trained sanitation and

safety inspector employed by the Petitioner, performed a routine

inspection of the Respondent.

4. Mr. Olsen identified various food safety regulation

violations in a written report that was provided to Mr. Newman

at the time of the inspection.

5. Violations that pose an immediate threat to public

safety are deemed to be "critical" violations.

6. Mr. Olsen determined that the restaurant manager,

Mr. Newman, was not a certified food manager, which is a

critical violation of food safety regulations.

7. Mr. Olsen also determined that there was no

documentation that the restaurant employees had completed the

required food service training, another critical violation of

food safety regulations.

8. The inspection report stated that the deadline for

correction of the two critical violations was August 23, 2004.

9. On August 23, 2004, Mr. Olsen performed a "callback"

inspection at which time he determined that the restaurant

continued to lack a certified food manager and that there

remained no documentation that the restaurant employees had

completed the required food service training.

10. The violations were noted in the Administrative

Complaint underlying this proceeding.

11. Other deficiencies identified in the July 21, 2004,

inspection report were resolved on a timely basis and are

immaterial to this proceeding.

12. At the hearing, Mr. Newman testified that he

registered to take the food manager certification course at the

earliest opportunity after the July 21, 2004, inspection, but

acknowledged there was no certified food manager in the

restaurant at the time of either inspection.

13. Mr. Newman also testified that some of the food

service employees were trained, but acknowledged that he had no

records at the time of either inspection to document that any of

the employees had completed the training.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

15. The Petitioner is the state agency charged with the

regulation of food service establishments in the State of

Florida. See Ch. 509, Fla. Stat. (2008). The Petitioner has

adopted by incorporation the various provisions of the Food Code

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

16. The Administrative Complaint alleged that, at the time

of the inspections identified herein, the Respondent lacked a

certified food manager or documentation of food service employee

training. 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).

The burden has been met.

17. Section 509.039, Florida Statutes (2004), provides as

follows:

Food service manager certification.--It is

the duty of the division to adopt, by rule,

food safety protection standards for the

training and certification of all food

service managers who are responsible for the

storage, preparation, display, or serving of

foods to the public in establishments

regulated under this chapter. The standards

adopted by the division shall be consistent

with the Standards for Accreditation of Food

Protection Manager Certification Programs

adopted by the Conference for Food

Protection. These standards are to be

adopted by the division to ensure that, upon

successfully passing a test, approved by the

Conference for Food Protection, a manager of

a food service establishment shall have

demonstrated a knowledge of basic food

protection practices. The division may

contract with an organization offering a

training and certification program that

complies with division standards and results

in a certification recognized by the

Conference for Food Protection to conduct an

approved test and certify all test results

to the division. Other organizations

offering programs that meet the same

requirements may also conduct approved tests

and certify all test results to the

division. The division may charge the

organization it contracts with a fee of not

more than $5 per certified test to cover the

administrative costs of the division for the

food service manager training and

certification program. All managers

employed by a food service establishment

must have passed an approved test and

received a certificate attesting thereto.

Managers have a period of 90 days after

employment to pass the required test. The

ranking of food service establishments is

also preempted to the state; provided,

however, that any local ordinances

establishing a ranking system in existence

prior to October 1, 1988, may remain in

effect. (Emphasis supplied)

18. Florida Administrative Code Rule 61C-4.023(1) (2004)

provides, in relevant part, as follows:

All managers who are responsible for the

storage, preparation, display, and serving

of foods to the public shall have passed a

certification test approved by the division

demonstrating a basic knowledge of food

protection practices as adopted in this

chapter. Those managers who successfully

pass an approved certification examination

shall be issued a certificate by the

certifying organization, which is valid for

a period of five years from the date of

issuance. Each licensed establishment shall

have a minimum of one certified food

protection manager responsible for all

periods of operation. The operator shall

designate in writing the certified food

protection manager or managers for each

location. A current list of certified food

protection managers shall be available upon

request in each establishment. When four or

more employees, at one time, are engaged in

the storage, preparation or serving of food

in a licensed establishment, there shall be

at least one certified food protection

manager present at all times when said

activities are taking place. The certified

food protection manager or managers need not

be present in the establishment during those

periods of operation when there are three or

fewer employees engaged in the storage,

preparation, or serving of foods. It shall

be the responsibility of the certified food

protection manager or managers to inform all

employees under their supervision and

control who engage in the storage,

preparation, or serving of food, to do so in

accordance with acceptable sanitary

practices as described in this chapter.

19. The evidence establishes that, at the time of the

inspections referenced herein, the Respondent failed to have a

certified food manager on the premises.

20. Section 509.049, Florida Statutes (2004), provides in

relevant part as follows:

Food service employee training.--

(1) The division shall adopt, by rule,

minimum food safety protection standards for

the training of all food service employees

who are responsible for the storage,

preparation, display, or serving of foods to

the public in establishments regulated under

this chapter. These standards shall not

include an examination, but shall provide

for a food safety training certificate

program for food service employees to be

administered by a private nonprofit provider

chosen by the division.

* * *

(5) 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. (Emphasis

supplied)

21. The evidence establishes that, at the time of the

inspections referenced herein, the Respondent failed to provide

documentation that any of the food service employees had

received the required training.

22. Subsection 509.261(1), Florida Statutes (2004),

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

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

mandatory attendance at an educational program sponsored by the

Hospitality Education Program, or by suspension, revocation, or

refusal of a license.

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 a fine of $500 against the

Respondent and requiring that the Respondent complete an

appropriate educational program related to the violations

identified herein.

DONE AND ENTERED this 3rd day of March, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of March, 2009.

COPIES FURNISHED :

Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Herbert H. Newman

10801 Starkey Road, No. 11

Largo, Florida 33777

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.