10-002431 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. New San Telmo Status: Closed Recommended Order on Monday, August 30, 2010.

Summary: Clear and convincing evidence that Repondent committed three critical violations and one non-critical violation. Recommend $1,400 total fine as administrative penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-2431

)

NEW SAN TELMO, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Edward T.

Bauer for final hearing by video teleconference on August 2,

2010, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Garnett W. Chisenhall, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues in this disciplinary proceeding arise from

Petitioner's allegation that Respondent, a licensed restaurant,

violated several rules and a statutory provision governing food

service establishments. If Petitioner proves one or more of the

alleged violations, then it will be necessary to consider

whether penalties should be imposed on Respondent.

PRELIMINARY STATEMENT

On May 19, 2008, Petitioner Department of Business and

Professional Regulation, Division of Hotels and Restaurants

("the Division"), issued an Administrative Complaint against

Respondent New San Telmo, charging the licensed restaurant with

various offenses relating to noncompliance with the statutes and

rules governing food service establishments. Respondent timely

requested a formal hearing to contest these allegations, and, on

September 5, 2008, the matter was referred to the Division of

Administrative Hearings.

On November 6, 2008, the parties filed a Joint Motion to

Relinquish Jurisdiction, which indicated that a settlement had

been reached. On April 30, 2010, after Respondent failed to

execute the settlement agreement, Petitioner filed a Motion to

Re-open with the Division of Administrative Hearings.

Petitioner's Motion to Re-open was granted on May 5, 2010, and

the matter was subsequently scheduled for a final hearing.

The parties were properly notified that the final hearing

would occur at 9:00 a.m. on August 2, 2010. At the designated

time and place, the undersigned and counsel for Petitioner

appeared. Respondent's representative, however, did not appear.

After waiting approximately 35 minutes and upon review of the

file, from which it was determined that Respondent had been

given adequate notice of the final hearing, the undersigned

commenced the proceeding.

At the outset of the final hearing, Petitioner announced

that it was abandoning several of the allegations contained in

the Administrative Complaint. 1 Petitioner presented the

testimony of its inspector, Ricardo Unold, and introduced three

exhibits, numbered one through three. Finally, the undersigned

took official recognition of the applicable administrative

rules.

The Transcript of the final hearing was filed on August 17,

2010. Petitioner timely submitted a Proposed Recommended Order

that has been considered in the preparation of this Recommended

Order. Respondent did not file a post-hearing submission of any

kind.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 version of the Florida Statutes.

FINDINGS OF FACT

1. Petitioner is the State agency charged with regulation

of hotels and restaurants pursuant to Chapter 509, Florida

Statutes.

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

restaurant operating at 16850 Collins Avenue, Golden Beach,

Florida, and holding food service license number 2326334.

3. On February 26, 2008, and April 29, 2008, Respondent

was inspected by Ricardo Unold, a Senior Sanitation and Safety

Specialist with the Division. During both visits, Mr. Unold

noticed several items that were not in compliance with the laws

which govern the facilities and operations of licensed

restaurants.

4. Through the testimony of Mr. Unold and the exhibits

introduced into evidence during the final hearing, Petitioner

presented clear and convincing evidence that as of April 29,

2008, the following deficiencies subsisted at Respondent New San

Telmo: (1) In-use utensils stored in standing water less than

135 degrees Fahrenheit, in violation of Food Code 2 Rule 3-

304.12(F); (2) The public bathroom was not equipped with a

tight-fitting, self-closing door, in violation of Food Code Rule

6-202.14 and Florida Administrative Code Rule 61C-1.004(2)(b);

(3) An unlabeled spray bottle, in violation of Food Code Rule 7-

102.11; and (4) No proof of required employee training, in

violation of Section 509.049, Florida Statutes.

5. The deficiencies relating to the lack of proof of

employee training, the unlabeled spray bottle, and the bathroom

door are all considered critical violations by the Division.

Critical food code violations are those that, if uncorrected,

present an immediate threat to public safety.

6. The final deficiency (storing in-use utensils in water

less than 135 degrees Fahrenheit), while not categorized as a

critical violation, is serious nonetheless because it directly

relates to food preparation.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

8. Section 509.261, Florida Statutes, sets forth the acts

for which the Division may impose discipline. This statute

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.

(2) For the purposes of this section, the

division may regard as a separate offense

each day or portion of a day on which an

establishment is operated in violation of a

"critical law or rule," as that term is

defined by rule.

9. By rule, the Division has defined the term

"Food Code" as follows:

(14) Food Code – This term as 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.

Fla. Admin. Code R. 61C-1.001(14)(emphasis in original).

10. Florida Administrative Code Rule 61C-1.004(2)(b)

provides in relevant part as follows:

Public bathrooms shall be completely

enclosed and shall have tight-fitting, self

closing doors or, in public lodging

establishments or bathrooms located outside

a public food service establishment, have

entrances and exits constructed in such a

manner as to ensure privacy of occupants.

11. Food Code Rule 6-202.14 provides in pertinent part:

A toilet room located on the premises shall

be completely enclosed and provided with a

tight-fitting and self-closing door except

that this requirement does not apply to a

toilet room that is located outside a food

establishment and does not open directly

into the food establishment such as a toilet

room that is provided by the management of a

shopping mall.

(Emphasis in original).

12. Food Code Rule 3-304.12(F) provides:

During pauses in food preparation or

dispensing, food preparation and dispensing

utensils shall be stored . . . . In a

container of water if the water is

maintained at a temperature of at least 57 û C

(135 û F) and the container is cleaned at a

frequency specified under Subparagraph 4-

602.11(D)(7).

(Emphasis in original).

13. Food Code Rule 7-102.11 reads:

Working containers used for storing

poisonous or toxic materials such as

cleaners and sanitizers taken from bulk

supplies shall be clearly and individually

identified with the common name of the

material.

(Emphasis in original).

14. Section 509.049, Florida Statutes, provides, in

relevant part:

(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 added).

15. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional license is penal in

nature. State ex rel. Vining v. Florida Real Estate Commission ,

281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose

discipline, the Division must prove the charges against

Respondent by clear and convincing evidence. Department of

Banking and Finance, Div. of Securities and Investor Protection

v. Osborne Stern & Co. , 670 So. 2d 932, 933-34 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292, 294-95 (Fla. 1987); Nair

v. Department of Business & Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995).

16. 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 lacking in confusion as to the facts in

issue. The evidence must be of such a

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)( quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

17. The undersigned has determined, as a matter of

ultimate fact, that the Division established Respondent's guilt

regarding noncompliance with the following provisions: Food

Code Rule 3-304.12 (one violation); Food Code Rule 7-102.11 (one

violation); Food Code Rule 6-202.14 and Florida Administrative

Code Rule 61C-1.004(2)(b) (one violation) 3 ; and Section 509.049,

Florida Statutes (one violation). In making these

determinations, the undersigned concludes that "the plain

language of the applicable statute[] and rules, being clear and

unambiguous, [can] be applied in a straightforward manner to the

historical events at hand without simultaneously examining

extrinsic evidence of legislative intent or resorting to

principles of interpretation." Department of Business &

Professional Regulation, Div. of Hotels & Restaurants v. Latin

American Cafeteria, Inc. , Case No. 05-2733 (DOAH November 2,

2005). It is therefore unnecessary to make additional legal

conclusions concerning these violations. See id.

18. The Division has urged the undersigned to recommend

that Respondent be fined $1,800, which represents the maximum

total penalty authorized under the disciplinary guidelines for

three critical violations and one non-critical violation. 4 Under

the circumstances, however, the undersigned concludes that the

more appropriate penalty is to impose a middle of the guidelines

fine for each violation (i.e, $375 for each of the three

critical violations, and $225 for the non-critical violation),

for a total fine of $1400.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order:

(a) finding Respondent guilty in accordance with the foregoing

Recommended Order; and (b) ordering Respondent to pay an

administrative penalty in the amount of $1400, to be paid within

30 days after the filing of the final order with the agency

clerk.

DONE AND ENTERED this 30th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

Edward T. Bauer

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 30th day of August, 2010.

ENDNOTES

1 Specifically, Petitioner abandoned its allegations that

Respondent did not provide a covered waste receptacle in the

women's bathroom and failed to post a hand washing sign at a

sink used by restaurant employees. Petitioner also dropped the

charge relating to an unused opening in a panel box.

2 The Food Code is a publication of the U.S. Food and Drug

Administration, portions of which have been adopted by reference

as rules of the Division. See Fla. Admin. Code R. 61C-

1.001(14).

3 While Respondent's failure to equip its bathroom with a tight-

fitting and self-closing door runs afoul of Food Code Rule 6-

202.14 and Florida Administrative Code Rule 61C-1.004(2)(b), the

misconduct has been treated as a single violation.

4 As the instant case involves a first offense, Florida

Administrative Code Rule 61C-1.005(6) provides for a fine of

$250 to $500 for each critical violation and $150 to $300 for

every non-critical violation.

COPIES FURNISHED :

Garnett W. Chisenhall, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Mario Szwarc

16850 Collins Avenue

Sunny Isles Beach, Florida 33160

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

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.