08-002659 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Silvestros Status: Closed Recommended Order on Tuesday, September 2, 2008.

Summary: Respondent is guilty of violations of the food code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-2659

)

SILVESTROS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on July 15, 2008, in Cocoa Beach, 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: Charles A. Bless, pro se

Two Antonios, Inc., d/b/a Silvestros

2039 North Atlantic Avenue

Cocoa Beach, Florida 32931

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 December 14, 2006,

Petitioner, Department of Business and Professional Regulation,

Division of Hotels and Restaurants, charged that on

September 20, 2007, and April 4, 2008, Respondent, Silvestros,

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 a violation of Florida Administrative Code Rules

61C-1.002(6)(C)(1), 61C-1.004(10), and 61C-4.010(2); and

Rules 3-501.16(A) and 4-301.11 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. The Department forwarded the matter to the Division of

Administrative Hearings on June 4, 2008, for assignment of an

Administrative Law Judge. An Initial Order was sent to both

parties on June 5, 2008. By Notice of Hearing, the case was

scheduled for final hearing on July 15, 2008, in Cocoa Beach,

Florida. The final hearing was conducted, as scheduled, on that

date.

At the hearing, Petitioner presented the testimony of two

witnesses: Diane Lynn Maynard, a sanitation and safety

specialist; and Edwin George Weimer, a senior inspector.

Petitioner's Exhibits 1 through 4 were offered and received into

evidence. Respondent did not offer any testimony or exhibits,

but Charles A. Bless, owner of Silvestros, made a statement.

Pursuant to the Department's request, official recognition was

taken of Subsection 509.032(6), Florida Statutes; Florida

61C-4.010(2); and Rules 3-501.16(A) and 4-301.11 of the Food

Code.

The one-volume Transcript of the proceedings was filed with

the Division of Administrative Hearings on August 14, 2008.

Petitioner filed a Proposed Recommended Order that has 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 is a permanent food service establishment

holding License No. 1505068.

3. On September 20, 2007, Diane Maynard and Ed Weimer

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

the manager 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.

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

retail practices, such as general cleanliness, organization, and

maintenance of the facility.

7. On April 4, 2008, Respondent's premises were

re-inspected. A Call Back Inspection Report was prepared which

noted the following "critical violations": food product was out

of temperature for an extended period of time. Respondent had

allowed food product including salami, capicola, and blue cheese

to reach temperatures between 50 and 52 degrees Fahrenheit.

After four hours above 41 degrees Fahrenheit, bacteria grows

rapidly in food and food-borne illness may result. In addition,

Respondent's cooler boxes were not maintaining food at the

proper temperature, below 41 degrees Fahrenheit.

8. It was also noted that "Exit" signs were not properly

illuminated.

9. Because the above-noted violations were "critical," a

Stop Sale Order was issued.

10. In addition to the foregoing critical violations, the

call-back inspection found the following non-critical violation:

Respondent had more seats than allowed by its license (49

licensed/110 on premises).

11. On March 7, 2007, Respondent entered into a

Stipulation and Consent Order regarding alleged critical

violations that had occurred in 2006.

CONCLUSIONS OF LAW

12. 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.

13. 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. See 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).

14. "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).

15. Respondent was charged with four critical violations

and one non-critical violation enumerated in the Administrative

Complaint. No evidence was presented that challenged the

findings that four critical violations and one non-critical

violation were observed during the April 4, 2008, call-back

inspection. Petitioner has met the burden of proving that

Respondent violated Florida Administrative Code Rules

61C-1.002(6)(C)(1), 61C-1.004(10), 61C-4.010(2); and

Rules 3-501.16(A) and 4-301.11 of the Food Code, as alleged in

the Administrative Complaint, clearly and convincingly.

16. 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, enter a final order finding that

Respondent, Silvestros, committed the violations as alleged in

the Administrative Complaint and that an administrative fine of

four thousand dollars ($4,000.00) be imposed; further, that 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 2nd day of September, 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] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of September, 2008.

ENDNOTE

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

indicated.

COPIES FURNISHED :

Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Charles A. Bless

Two Antonios, Inc., d/b/a Silvestros

2039 North Atlantic Avenue

Cocoa Beach, Florida 32931

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.