09-001104 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. El Tablazo Restaurant Status: Closed Recommended Order on Tuesday, June 9, 2009.

Summary: Petitioner established by clear and convincing evidence that Respondent did not have a food service manager or trained food service employees with valid cerificates during the "callback" inspection. Recommend a penalty of $500 fine/food safety course.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 09-1104

)

EL TABLAZO RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on April 15, 2009, by

video teleconference between sites in Miami and Tallahassee,

Florida, before Administrative Law Judge Eleanor M. Hunter of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sherria Williams, Qualified Representative

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Omar DeJesus Sanchez, pro se

El Tablazo Restaurant

6780 Collins Avenue

Miami Beach, Florida 33141

STATEMENT OF THE ISSUES

The issues in this disciplinary proceeding are whether

Respondent, a licensed restaurant, was not in compliance with

food safety regulations as alleged in the Administrative

Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated October 10, 2008,

Petitioner, Department of Business and Professional Regulation,

Division of Hotels and Restaurants, alleged that Respondent, El

Tablazo Restaurant, a restaurant owned and operated by Omar

DeJesus Sanchez, was in violation of several provisions of the

food safety regulations in Chapter 509, Florida Statutes (2008),

and Florida Administrative Code Chapters 53A and 53B.

Respondent disputed the allegations and timely requested a

formal administrative hearing. The matter was forwarded to the

Division of Administrative Hearings and assigned DOAH Case

No. 09-1104. The formal hearing was held on April 15, 2009.

At the hearing, Petitioner presented the testimony of

Inspector Oscar Torres, and Petitioner's Exhibits lettered A

through C, that were received into evidence. At Petitioner's

request, official recognition was taken of Sections 509.039 and

509.049, and Subsection 509.032(6), Florida Statutes (2008); and

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

presented the testimony of Omar Sanchez and Luz Elena Cano de

Sanchez, and, at the request of the undersigned without

objection, one late-filed Composite Exhibit that was received on

April 30, 2009.

The Transcript of the hearing was filed May 9, 2009.

Proposed Recommended Orders, if any, were due seven business

days after receipt of the Transcript but, as of this date, none

have been filed.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants (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, El Tablazo

Restaurant, Inc. (the Restaurant) was a licensed food service

establishment located at 6780 Collins Avenue, Miami Beach,

Florida 33141. The Restaurant held food service license number

2323114, issued by Petitioner.

3. On July 31, 2008, Oscar Torres, a trained sanitation

and safety inspector employed by Petitioner, performed a routine

inspection of the Restaurant.

4. Mr. Torres identified various food safety regulation

violations in a written report that was provided to Diana

Ramirez, a waitress who was working in the Restaurant, at the

time of the inspection. The report set September 30, 2008, as

the date for a "callback" inspection which was, in effect, the

deadline for all violations to be corrected.

5. On October 3, 2008, Mr. Torres performed the callback

inspection at which time he noted that the Restaurant continued

to lack proof of having a certified food safety manager and that

documentation showing proof that Restaurant employees had

completed the required employee food service training had an

expiration date of January 2008. At the time of the inspection,

one cook and one waitress were working in the Restaurant.

6. Mr. Torres testified that not having a certified food

safety manager was the more critical of the two remaining

violations that serve as the basis for the Administrative

Complaint in this proceeding.

7. Other deficiencies identified in the July 31, 2008,

inspection report were resolved on a timely basis and are

immaterial to this proceeding.

8. At the hearing, the Restaurant owner, Omar Sanchez,

testified that his is a family-owned Restaurant, and that his

wife and brother-in-law are both certified food managers. He

acknowledged there was no certified food manager in the

Restaurant at the time of either inspection. His brother-in-law

was in New York and his wife, Luz Cano Sanchez, testified that

she was in Columbia. Mrs. Sanchez testified that his brother-

in-law kept his certification card in his wallet, but that his

wife's certification was at the Restaurant.

9. Mr. Sanchez testified that he contacted a trainer for

his employees, but not until some time in September, and the

trainer, Giovanni Bierru, was unable to schedule the training

until October 14, 2008, after the time of the deadline set for

the callback inspection. There is no mitigating evidence,

however, to support a conclusion that all employees were, in

fact, trained only eleven days after the inspection.

10. Subsequent to the hearing, on April 30, 2008, the

Restaurant submitted a certificate indicating that Luz Cano was,

beginning on February 21, 2002, a certified food safety manager,

and that she had again completed food safety employee training

on December 15, 2008.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

12. Petitioner is the state agency charged with the

regulation of food service establishments in the State of

Florida. See Ch. 509, Fla. Stat. (2008).

13. The Administrative Complaint alleged that, at the time

of the inspections, Respondent lacked a certified food safety

manager and documentation of up-to-date food service employee

training.

14. In this proceeding Petitioner has the burden of

proving by clear and convincing evidence the allegations set

forth in the Administrative Complaint against Respondent. State

ex rel. Vining v. Florida Real Estate Commission , 281 So. 2d 487

(Fla. 1973); Department of Banking and Finance v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); Nair v. Department of

Business and Professional Regulation , 654 So. 2d 205 (Fla. 1st

DCA 1995).

15. To meet the clear and convincing evidence standard of

proof, as described in Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983), the following is required:

. . . 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.

The standard precludes reliance on evidence that is ambiguous.

Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc. , 590 So. 2d

986, 988 (Fla. 1st DCA 1991), rev. denied , 599 So. 2d 1279 (Fla.

1992).

16. Section 509.039, Florida Statutes (2008), 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.

17. The following portion of Section 509.039, Florida

Statutes (2008), is cited in Exhibit A to the Administrative

Complaint to describe Count One of the violations:

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.

18. Count One also includes the following requirements of

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

19. That section of the Code continues as follows:

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.

20. The late-filed Exhibit and the testimony on behalf of

the Restaurant confirm that Mrs. Cano de Sanchez had a food

service manager certificate dated February 21, 2002. Testimony

that her certificate was posted in the restaurant, but that the

waitress who was intimidated by the authority figure of the

inspector failed to show it to him is credible. Even if the

inspector had seen the certificate, however, it would have been

clear to him from the face of the certificate, issued on

February 21, 2002, valid for five years, or until February 21,

2008, was invalid on October 3, 2008. The allegation in Count

One is established by clear and convincing evidence.

21. Count Two, as cited in the Administrative Complaint,

relies on Section 509.049, Florida Statutes (2008), that

provides 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 [the licensee

of the] public food service establishment to

provide training in accordance with the

described rule to all . . . employees [under

the licensee's supervision or control]. The

[licensee] may designate a certified food

service manager to perform this function. .

. . Food service employees [hired after

November 1, 2001] must receive certification

within 60 days after employment.

Certification pursuant to this section shall

remain valid for 3 years.

22. That provision continues as follows:

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.

23. The evidence clearly established that, as Mr. Sanchez

acknowledged, at the time of the callback inspection of the

Restaurant, he had tried, but failed to have his employees

properly and timely trained. The document related to employee

training, provided to the inspector in October 2008, had expired

in January 2008. Respondent's late-filed Composite Exhibit

showing employee training for Mrs. Cano de Sanchez was not

issued until December 15, 2008, and does not prove that all

employees received the training within 60 days after employment,

as required by law, or that any had valid certificates of

training at the time of the callback inspection on October 3,

2008. A violation of Count Two of the Administrative Complaint

is, therefore, established by clear and convincing evidence.

24. As a matter of ultimate fact, based on unambiguous

evidence and law, Petitioner established that Respondent

violated Section 509.039, Florida Statutes (2008), and Florida

Administrative Code Rule 61C-4.023(1), requiring that a food

service manager have a valid certificate (Count One); and

violated Section 509.049, Florida Statutes (2008), requiring

current proof of training of all food service employees (Count

Two).

25. Subsection 509.261(1), Florida Statutes (2008),

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

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

requiring mandatory attendance at an educational program

sponsored by Petitioner's Hospitality Education Program, or by

suspension, revocation, or refusal of a license, and/or any

other relief authorized by Chapter 509, Florida Statutes, or the

rules authorized to be promulgated pursuant to that Chapter.

26. Petitioner requested that Respondent be subjected to

one or more of the following penalties: Administrative fine not

to exceed $1,000 per offense; mandatory attendance at

Respondent's expense at an educational program sponsored by the

Department's Hospitality Education Program; and/or suspension,

revocation, or the other relief authorized by the statute and

rules.

27. The facts of this case are substantially similar to

those in Department of Business and Professional Regulation v.

Pittsburgh Pete's , DOAH Case No. 08-5414 (R.O. 3/3/09; F.O.

5/18/09), except that the food service manager had a certificate

but was not present on the premises, as required in that case.

In both, this case and that one, there was no proof that all

employees had been properly trained. For those reasons, the

same penalty is recommended.

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 Respondent

payable within 30 calendar days of the final order, and

requiring that Respondent complete an appropriate educational

program related to food safety within 90 calendar days of the

final order.

DONE AND ENTERED this 9th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 9th day of June, 2009.

COPIES FURNISHED :

Omar DeJesus Sanchez

El Tablazo Restaurant

6780 Collins Avenue

Miami Beach, Florida 33141

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Sherria Williams, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Reginald Dixon, 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.