09-005335 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Restaurant El Hondureno Ii Status: Closed Recommended Order on Thursday, December 31, 2009.

Summary: Petitioner demonstrated by clear and convincing evidence that Respondent violated Food Code Rule 6-501.111 as to the failure to control pests. Recommend an administrative fine of $1,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 09-5335

)

RESTAURANT EL HONDURENO II, )

)

Respondent. )

_______________________________ )

RECOMMENDED ORDER

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

on November 20, 2009, by video teleconference with connecting

sites in Miami and Tallahassee, Florida, before Errol H. Powell,

an 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 42

Tallahassee, Florida 32399-2202

For Respondent: Eva Alvarado, pro se

Restaurant El Hondureno II

2298 Northwest 36th Street

Miami, Florida 33142

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offense set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Hotels and Restaurants, hereinafter Department,

issued an Administrative Complaint against Restaurant El

Hondureno II (Restaurant), dated March 17, 2009. The Department

charged the Restaurant with violating Food Code Rule 6-501.111,

Controlling Pests, in that rodent activity was observed as

evidenced by 70-plus fresh rodent droppings in the kitchen

behind the chest-type freezer. The Restaurant disputed the

material allegations of fact and requested a hearing. On

September 30, 2009, this matter was referred to the Division of

Administrative Hearings.

At hearing, the Department presented the testimony of two

witnesses and entered four exhibits (Petitioner’s Exhibits

numbered 1 through 4) into evidence. The Restaurant presented

the testimony of one witness, Eva Alvarado, who testified on her

own behalf, and entered one composite exhibit (Respondent's

Composite Exhibit numbered 1) 1 into evidence. The undersigned

took official recognition of Section 509.032(6), Florida

Statutes (2008), Florida Administrative Code Rule 61C-1.001(14),

and Food Code Rule 6-501.111.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on December 10,

2009. The Department timely filed its post-hearing submission.

The Restaurant did not file a post-hearing submission. The

Department's post-hearing submission has been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Restaurant was

licensed as a public food service establishment in the State of

Florida by the Department, having been issued license type 2010

and license number 2331004.

2. At all times material hereto, the Restaurant was

located at 2298 Northwest 36th Street, Miami, Florida 33142.

3. A critical violation in food service is considered to

be a violation that is directly related to a food-borne illness

risk and could cause the threat of health and sanitation issues;

or any violation that, if left uncorrected, could lead to food

being contaminated and may cause a food-borne illness or cause

someone to become sick or harmed.

4. On March 17, 2009, Mohammad Khan, a senior sanitation

safety specialist with the Department, conducted an inspection

of the Restaurant. Another inspector with the Department,

Maurice Chi, a sanitation safety supervisor, arrived at the

Restaurant after Mr. Khan and accompanied Mr. Khan during the

inspection.

5. During the inspection, among other things, Mr. Khan and

Mr. Chi found a violation, which they considered to be a

critical violation. Further, during the inspection, Mr. Khan

prepared a food inspection report, setting forth the alleged

critical violation. The inspection report was signed by

Mr. Khan, Mr. Chi, and Eva Alvarado, the manager of the

Restaurant. Mr. Khan made Ms. Alvarado aware of the alleged

critical violation, in addition to other violations, and

provided her with a copy of the inspection report.

6. The inspection on March 17, 2009, involved a possible

immediate closure of the Restaurant due to the alleged critical

violation.

7. The alleged critical violation on March 17, 2009, was

35A-04-1: 2 “Observed rodent activity as evidenced by rodent

droppings found found [sic] 70 plus fresh rodent droppings in

kitchen behind chext [sic] type freezer.” Mr. Khan moved the

freezer, observed the area behind it, and observed approximately

70 fresh rodent droppings. Mr. Chi also observed the fresh

rodent droppings. Mr. Khan and Mr. Chi considered this alleged

violation to be a critical violation because the fresh rodent

droppings are directly related to food-borne illness in that

rodents carry a lot of germs and diseases and they could

contaminate food and preparation areas, causing significant

health issues for anyone eating in the Restaurant. Their

testimony is found to be credible and clear and convincing.

8. The Restaurant was closed on March 17, 2009, as a

result of the critical violation being found.

9. The next day, March 18, 2009, the Restaurant was re-

inspected. The critical violation had been corrected, and the

Restaurant was allowed to re-open.

10. Ms. Alvarado testified, among other things, that the

Restaurant had fumigation performed every 15 days. Her

testimony does not negate what was found during the inspection

on March 17, 2009, and the critical violation found.

CONCLUSIONS OF LAW

11. 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 (2009).

12. The Department has the burden of proof to show by

clear and convincing evidence that the Restaurant committed the

offense set forth in the Administrative Complaint. Department

of Banking and Finance, Division of Securities and Investor

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

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

13. Section 509.032, Florida Statutes (2008), provides in

pertinent part:

(1) GENERAL. --The division [Division of

Hotels and Restaurants of the Department of

Business and Professional Regulation] shall

carry out all of the provisions of this

chapter and all other applicable laws and

rules relating to the inspection or

regulation of public lodging establishments

and public food service establishments for

the purpose of safeguarding the public

health, safety, and welfare. . . .

(2) INSPECTION OF PREMISES.

(a) The division has responsibility and

jurisdiction for all inspections required by

this chapter. The division has

responsibility for quality assurance. . .

(b) For purposes of performing required

inspections and the enforcement of this

chapter, the division has the right of entry

and access to public lodging establishments

and public food service establishments at

any reasonable time.

(c) Public food service establishment

inspections shall be conducted to enforce

provisions of this part and to educate,

inform, and promote cooperation between the

division and the establishment.

(d) The division shall adopt and enforce

sanitation rules consistent with law to

ensure the protection of the public from

food-borne illness in those establishments

licensed under this chapter. These rules

shall provide the standards and requirements

for obtaining, storing, preparing,

processing, serving, or displaying food in

public food service establishments . . .

conducting necessary public food service

establishment inspections for compliance

with sanitation regulations . . . and

initiating enforcement actions, and for

other such responsibilities deemed necessary

by the division. . . .

* * *

(3) SANITARY STANDARDS; EMERGENCIES;

TEMPORARY FOOD SERVICE EVENTS. --The

division shall:

(a) Prescribe sanitary standards which

shall be enforced in public food service

establishments.

* * *

(6) RULEMAKING AUTHORITY. --The division

shall adopt such rules as are necessary to

carry out the provisions of this chapter.

14. Florida Administrative Code Rule 61C-1.001 provides in

pertinent part:

Except when otherwise defined in this rule,

the definitions provided in paragraph 1-

201.10(B), Food Code, 2001 Recommendations

of the United States Public Health

Service/Food and Drug Administration; the

2001 Food Code Errata Sheet (August 23,

2002); and Supplement to the 2001 FDA Food

Code (August 29, 2003) shall apply to

Chapters 61C-1, 61C-3 and 61C-4, F.A.C. In

addition, the following definitions apply to

Chapters 61C-1, 61C-3 and 61C-4, F.A.C.:

* * *

(14) Food Code - This term is used in

Chapters 61C-1, 61C-3, and 61C-4, F.A.C.,

means paragraph 1-201.10(B), Chapter 2,

Chapter 3, Chapter 4, Chapter 5, Chapter 6,

and Chapter 7 of the Food Code, 2001

Recommendations of the United States Public

Health Service/Food and Drug Administration

including Annex 3: Public Health

Reasons/Administrative Guidelines; Annex 5:

HACCP Guidelines of the Food Code; the 2001

Food Code Errata Sheet (August 23, 2002);

and Supplement to the 2001 FDA Food Code

(August 29, 2003), herein adopted by

reference. A copy of the Food Code, as

adopted by the division, is available on the

division's Internet website

www.MyFloridaLicense.com/dbpr/hr. A copy of

the entire Food Code is available on the

U.S. Food and Drug Administration Internet

website. Printed copies of the entire Food

Code are available through the National

Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

15. Florida Administrative Code Rule 61C-1.004, “General

Sanitation and Safety Requirements,” provides in pertinent part:

The following general requirements and

standards shall be met by all public lodging

and public food service establishments:

(3) Vermin control - Effective control

measures shall be taken to protect against

the entrance into the establishment, and the

breeding or presence on the premises of

rodents, flies, roaches and other vermin.

All buildings shall be effectively rodent-

proofed, free of rodents and maintained in a

rodent-proof and rodent-free

condition. . . .

16. Food Code Rule 6-501.111, “Controlling Pests,”

provides in pertinent part:

The presence of insects, rodents, and other

pests shall be controlled to minimize their

presence on the PREMISES by:

(A) Routinely inspecting incoming shipments

of FOOD and supplies;

(B) Routinely inspecting the PREMISES for

evidence of pests;

(C) Using methods, if pests are found, such

as trapping devices or other means of pest

control as specified under §§ 7-202.12, 7-

206.12, and 7-206.13; and

(D) Eliminating harborage conditions.

(emphasis in original)

17. The evidence is clear and convincing and demonstrates

that the Restaurant violated Food Code Rule 6-501.111 in that

70-plus fresh rodent droppings were found in the kitchen behind

the chest-type freezer. Furthermore, the evidence is clear and

convincing and demonstrates that the violation was a critical

violation.

18. As to penalty, Section 509.261, Florida Statutes

(2008), provides in pertinent part:

(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.

19. The Department suggests an administrative fine in the

amount of $1,000.00, which is consistent with the administrative

fine provision of Section 509.261(1)(a), Florida Statutes

(2008).

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:

1. Finding that Restaurant El Hondureno II violated Food

Code Rule 6-501.111.

2. Imposing an administrative fine in the amount of

$1,000.00 against Restaurant El Hondureno II.

DONE AND ENTERED this 31st day of December, 2009, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

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 31st day of December, 2009.

ENDNOTES

1/ Eva Alvarado agreed to provide this Administrative Law Judge

and Petitioner with a copy of Respondent’s Composite Exhibit No.

2, which consisted of fumigation reports/receipts from December

2008 through March 2009. However, Ms. Alvarado failed to provide

a copy of Respondent’s Composite Exhibit No. 2, and it,

therefore, cannot be considered.

2/ This identification number is the corresponding identification

number of the violation in the inspection report.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Eva Alvarado

Restaurant El Hondureno II

2298 Northwest 36th Street

Miami, Florida 33142

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, 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.