08-005419 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Flavors Of Italy Status: Closed Recommended Order on Tuesday, February 17, 2009.

Summary: Petitioner demonstrated food safety violations by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-5419

)

FLAVORS OF ITALY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

December 12, 2008, via video teleconference from sites in

Orlando and Tallahassee, Florida, before Lawrence P. Stevenson,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the violations alleged in the Administrative Complaint dated

August 26, 2008, and, if so, what penalty is warranted.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Hotels and Restaurants (the "Division"), alleged in

an Administrative Complaint dated August 26, 2008, that

Respondent violated the standards governing public food service

establishments. Respondent disputed the allegations and

requested an evidentiary hearing pursuant to Section 120.57(1),

Florida Statutes, through an Election of Rights form.

On October 29, 2008, the case was referred to the Division

of Administrative Hearings and assigned to the undersigned. The

case was noticed for hearing on December 12, 2008, and convened

as scheduled.

At 9:00 a.m. on December 12, 2008, the Department's counsel

and witness were present and prepared to proceed with the

hearing. Respondent's principal, Ahmet Engin, was not present,

and did not provide notice of his unavailability. The

undersigned's legal assistant attempted to reach Mr. Engin by

telephone at 9:05 a.m., but was only able to reach an answering

machine.

At 9:15 a.m., the undersigned called the hearing to order

and the Department presented its testimonial and documentary

evidence. Shortly before the conclusion of the hearing, at

approximately 9:30 a.m., Mr. Engin phoned the undersigned's legal

assistant. He told her that his car had broken down, and that he

did not have his phone with him, so that he was unable either to

attend the hearing or notify this tribunal of his problem. The

Department was allowed to complete its prima facie case and the

hearing adjourned at approximately 9:40 a.m.

On December 12, 2008, the undersigned issued an Order to

Show Cause, directing Respondent to show cause within 10 days as

to why the record should not be closed and the recommended order

entered based on the current record. The Order to Show Cause

suggested that Mr. Engin provide some tangible evidence of his

car trouble, such as a sworn affidavit and/or towing or repair

shop receipts.

To provide Mr. Engin every opportunity to justify his

failure to appear at the hearing and to present his own evidence

at a later time, the undersigned held the record open for one

month. Respondent never responded to the Order to Show Cause.

On January 12, 2009, an Order Closing Record was entered.

At the hearing, the Division presented the testimony of

Andrea Piel, a Sanitation and Safety Specialist employed by the

Division. The Division's Exhibits A through C were admitted

into evidence.

A transcript of the hearing was filed at the Division of

Administrative Hearings on December 30, 2008. The Division

filed a Proposed Recommended Order on February 11, 2009.

Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulation

of hotels and restaurants pursuant to Chapter 509, Florida

Statutes. 1

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

restaurant located at 2911 West 39th Street, Orlando, Florida

32839, holding Permanent Food Service license number 5810777.

3. On May 20, 2008, Andrea Piel, a Sanitation and Safety

Specialist with the Division, performed a food service

inspection of the Respondent. Ms. Piel prepared and signed an

inspection report setting forth the violations she observed

during her inspection. Ms. Piel provided a copy of the

inspection report to Ahmet Engin, Respondent's principal owner.

The inspection report notified Respondent that the violations

must be corrected by July 20, 2008.

4. On August 6, 2008, Ms. Piel performed a re-inspection

of Respondent's premises and prepared a call-back inspection

report. The call-back inspection report indicated that certain

of the violations found during the May 20, 2008, inspection had

not been corrected.

5. During both inspections, Ms. Piel noted potentially

hazardous food being held at an improper temperature. Pizza was

being held on top of the pizza oven at a temperature of

126 degrees Fahrenheit. Ms. Piel testified that this is a

critical violation because food that is hot-held must be held at

a temperature of 135 degrees or higher in order to prevent the

growth of harmful bacteria.

6. During both inspections, Ms. Piel noted that Respondent

was operating under an expired food manager certification. The

food manager certification is required to ensure that the

operator has an understanding of the proper food safety

procedures. Ms. Piel testified that this is a critical

violation because a food manager must be re-certified every five

years.

7. During both inspections, Ms. Piel noted that the

interior of the reach-in cooler was soiled with an accumulation

of food residue. Ms. Piel testified that this is a critical

violation because cleanliness is required in order to eliminate

the potential for the growth of bacteria on surfaces that come

into contact with food.

8. During both inspections, Ms. Piel noted that the carbon

dioxide tanks were not adequately secured. Ms. Piel testified

that this is a violation because a pressurized carbon dioxide

tank could become a projectile should it fall and the regulator

break off.

9. During both inspections, Ms. Piel noted that the

ceiling tile was missing over the refrigerator. Ms. Piel

testified that this is a violation because secure floors, walls

and ceilings are essential to keep dirt, dust, and vermin out of

the kitchen area.

10. A critical violation is a violation that poses an

immediate danger to the public.

11. A non-critical violation is a violation that does not

pose an immediate danger to the public, but needs to be

addressed because if left uncorrected, it can become a critical

violation.

12. The improper holding of hot-held food, the outdated

certification, and food residue in the cooler were critical

violations. The unsecured carbon dioxide tanks and the missing

ceiling tile were non-critical violations.

13. The Division presented no evidence of prior

disciplinary action against Respondent.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

15. Petitioner has jurisdiction over the operation of

public lodging establishments and public food service

establishments, pursuant to Section 20.165 and Chapter 509,

Florida Statutes.

16. The Division is authorized to take disciplinary action

against the holder of such a license for operating in violation

of Chapter 509, Florida Statutes, or the rules implementing that

chapter. Such disciplinary action may include suspension or

revocation of the license, imposition of an administrative fine

not to exceed $1,000.00 for each separate offense, and mandatory

attendance, at personal expense, at an educational program

sponsored by the Hospitality Education Program. § 509.261, Fla.

Stat.

17. Here, the Division seeks to discipline Respondent's

license and/or to impose an administrative fine. Accordingly,

the Division has the burden of proving the allegations charged

in the Administrative Complaint against the Respondent 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).

18. A licensee is charged with knowing the practice act

that governs his license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990).

19. Section 509.032(2), Florida Statutes, specifically

empowers the Division to conduct inspections of public food

service establishments, and to adopt and enforce sanitation

rules to ensure the protection of the public from food-borne

illness. Section 509.032(6), Florida Statutes, provides that

the Division shall adopt such rules as are necessary to carry

out the provisions of Chapter 509, Florida Statutes. Florida

Administrative Code Rule 61C-1.001(14) adopts by reference

Chapter 3 (among others) of the U.S. Food and Drug

Administration's Food Code.

20. The Administrative Complaint alleged that Respondent

violated Food Code Rule 3-501.16(A)(1), which provides, in

pertinent part:

(A) Except during preparation, cooking, or

cooling, or when time is used as the public

health control (time/temperature control for

safety food) as specified under § 3-501.19,

and except as specified under ¶ (B) of this

section, potentially hazardous food shall be

maintained:

(1) At 57ºC (135ºF) or above, except

that roasts cooked to a temperature and for

a time specified in ¶ 3-401.11(B) or

reheated as specified in ¶ 3-403.11(E) may

be held at a temperature of 54ºC (130ºF) or

above. . . .

21. Under Food Code Rule 3-501.16(A)(1), Respondent was

required to hold its pizza at a temperature of 135 degrees

Fahrenheit or greater. The Division proved by clear and

convincing evidence that during both inspections, Respondent

stored its pizza at 126 degrees Fahrenheit.

22. The Administrative Complaint alleged that Respondent

violated Florida Administrative Code Rule 61C-4.023(1), which

provides in pertinent part:

(1) 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. . . .

23. The Division proved by clear and convincing evidence

that Respondent violated Florida Administrative Code Rule 61C-

4.023(1) because Respondent was operating under an expired food

manager certification during both inspections.

24. The Administrative Complaint alleged that Respondent

violated Food Code Rule 601.11(C) and (D), which provide in

pertinent part:

(C) Except as specified in ¶ (D) of this

section, if used with potentially hazardous

food (time/temperature control for safety

food), equipment food-contact surfaces and

utensils shall be cleaned throughout the day

at least every 4 hours.

(D) Surfaces of utensils and equipment

contacting potentially hazardous food

(time/temperature control for safety food)

may be cleaned less frequently than every 4

hours if:

(1) In storage, containers of

potentially hazardous food (time/temperature

control for safety food) and their contents

are maintained at temperatures specified

under Chapter 3 and the containers are

cleaned when they are empty;

(2) Utensils and equipment are used to

prepare food in a refrigerated room or area

that is maintained at one of the

temperatures in the following chart and:

(a) The utensils and equipment are

cleaned at the frequency in the following

chart that corresponds to the temperature;

and

Temperature Cleaning Frequency

5.0ºC (41ºF) or less 24 hours

>5.0ºC - 7.2ºC 20 hours

(>41ºF – 45ºF)

>7.2ºC – 10.0ºC 16 hours

(>45ºF – 50ºF)

>10.0ºC – 12.8ºC 10 hours

(>50ºF – 55ºF)

(b) The cleaning frequency based on

the ambient temperature of the refrigerated

room or area is documented in the food

establishment.

(3) Containers in serving situations

such as salad bars, delis, and cafeteria

lines hold ready-to-eat potentially

hazardous food (time/temperature control for

safety food) that is maintained at the

temperatures specified under Chapter 3, are

intermittently combined with additional

supplies of the same food that is at the

required temperature, and the containers are

cleaned at least every 24 hours;

(4) Temperature measuring devices are

maintained in contact with food, such as

when left in a container of deli food or in

a roast, held at temperatures specified

under Chapter 3;

(5) Equipment is used for storage of

packaged or unpackaged food such as a reach-

in refrigerator and the equipment is cleaned

at a frequency necessary to preclude

accumulation of soil residues;

(6) The cleaning schedule is approved

based on consideration of:

(a) Characteristics of the equipment

and its use,

(b) The type of food involved,

(c) The amount of food residue

accumulation, and

(d) The temperature at which the food

is maintained during the operation and the

potential for the rapid and progressive

multiplication of pathogenic or toxigenic

microorganisms that are capable of causing

foodborne disease; or

(7) In-use utensils are intermittently

store in a container of water in which the

water is maintained at 57ºC (135ºF) or more

and the utensils and container are cleaned

at least every 24 hours or at a frequency

necessary to preclude accumulation of soil

residues.

25. The Division proved by clear and convincing evidence

that Respondent violated Food Code Rule 4-602.11(C) and (D),

because the interior of the reach-in cooler was soiled with an

accumulation of food residue during both inspections.

26. The Administrative Complaint alleged that Respondent

violated Florida Administrative Code Rule 61C-1.004(9)(d), which

provides: "Carbon dioxide and helium tanks shall be adequately

secured so as to preclude any danger to safety."

27. The Division proved by clear and convincing evidence

that Respondent violated Florida Administrative Code Rule

61C-1.004(9)(d) because the carbon dioxide tanks were not

adequately secured during either inspection.

28. The Administrative Complaint alleged that Respondent

violated Florida Administrative Code Rule 61C-1.004(6), which

provides: "All building structural components, attachments and

fixtures shall be kept in good repair, clean and free of

obstructions."

29. The Division proved by clear and convincing evidence

that Respondent violated Florida Administrative Code Rule

61C-1.004(6) because the ceiling tile above the freezer was

missing during both inspections.

30. For the three critical and the two non-critical

violations, the Division proposed a total administrative fine of

$2,500.00. In consideration of the hazards posed by the proven

violations, and the lack of any countervailing evidence

presented by Respondent, the proposed administrative fine is

appropriate for the violations proven.

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 $2,500.00, payable under

terms and conditions deemed appropriate.

DONE AND ENTERED this 17th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 17th day of February, 2009.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 edition.

COPIES FURNISHED :

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

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Ahmet Engin

Flavors of Italy

2911 West 39th Street

Orlando, Florida 32839

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.