10-006048 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Galindo Cafe Status: Closed Recommended Order on Tuesday, January 25, 2011.

Summary: Respondent committed three critical violations, as well as three non-critical violations. Recommend $1,800 total fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10 - 6048

)

GALINDO CAFE , )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Edward T.

Bauer for final hearing by video teleconference on December 10 ,

2010 , at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Garnet Chisenhall , Esquire

Department of Business and

Professional Regulation

1 940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: Maria Magdalena Galindo, pro se

30530 South Dixie Highway

Home stead, Florida 33030

STATEMENT OF THE ISSUES

T he issue s 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 September 15, 2009 , Petitioner Department of Business

and Professional Regulation, Division of Hotels and Restaurants

("the Division") , issued a six - count Administrati ve Complaint

against Respondent Galindo Cafe , charging the licensed

restaurant with various offenses rel ating to noncompliance with

the rules governing food service establi shments. Respondent

timely requested a formal hearing to contest the allegations,

and , on July 22, 20 10 , the matter was referred to the Division

of Administrative Hearings.

Although a final hearing was originally scheduled for

October 18, 2010, the hear ing was continued to December 10,

2010, to afford Respondent the opportunity to arrange for an

interpreter. During the final hearing, the Division presented

the testimony of Michael Brown, who is employed as an inspector

with the Division, and Carlos Lezc ano, 1 a Deputy District Manage r

with the Division. The Division also introduced three exhibits,

numbered one through three. The owner of the licensed

restaurant, Maria Magdalena Galindo, testified on behalf of

Respondent .

The T ranscript of the final he aring was filed on December

30, 2010 . The Division timely submitted a Proposed Recommended

O rder th at has been considered in the preparation of this

Recommended Order . Respondent did not file a post - hearing

submission of any kind.

Unless otherwise indic ated, citations to the Fl orida

Statutes refer to the 2009 version of the Florida Statutes.

FINDINGS OF FACT

1. The Division is the State agency charged with

regulation of hote ls and restaurants pursuant to c hapter 509,

Florida Statutes.

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

restaurant operating at 30530 South Dixie High way, Homestead ,

Florida, and holding fo od service license number 2330285 .

3 . On July 6, 2009, and November 3 , 2009 , Re spondent was

inspected by sanitation and safety spe cialists employed by the

Division . During both visit s, inspectors noticed multiple items

that were not in compliance with the laws which govern the

facilities and operations of licensed restaurants .

4 . Th rough the testimony of Mr. Brown and the exhibits

introduced into evidence duri ng the final hearing, the Division

presented clear and convincing ev idence that as of November 3 ,

2009, the following deficiencies subsisted at Respondent Galindo

Cafe : (1) ready - to - eat , potentially hazardous food was held for

more than 24 hours with no date marking, in violation of Food

Code Rule 3 - 501.17(B); (2) food was stored on the floor, raw

food was stored over cooked food, and uncovered food was present

in a holding unit , in violation of Food Code Rules 3 -

305.11(A)(3), 3 - 302.11(A)(1)(b), and 3 - 302.11(A)(4),

respectively 2 ; (3) a cutting board that was grooved, pitted, and

no longer cleanable was observed, in violation of Food Code Rule

4 - 501.12; (4) unclean, wet wiping clothes were observed, in

violation of Food Code Rule 3 - 304.14(B)(2); (5) a buildup of

soiled material on racks in the walk - in cooler was present , in

violation of Food Code Rule 4 - 601.11 (A) ; and (6) a wall soiled

with accumulated grease was observed, in violation of Florida

Administrative Code Rule 61C - 1.004 (6).

5 . T he deficiencies relating to the improper storage of

food, the build - up of soiled material, and the lack of proper

food labeling are all considered critical violations by the

Division. Critical food code violations are those that, if

uncor rected, present an immediate threat to public safety.

6. The three remaining deficiencies ( a grooved and pitted

cutting board, unclean wiping clothes, and the accumulation of

grease on a wall ), while not categorized a s a critical

violation s, are serious nonetheless because they can lead to the

contamination of food .

CONCLUSIONS OF LAW

7 . T he Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 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 operatin g in violation of

this chapter or the rules of the d ivision,

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 person al

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 separa te 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 Î 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

Administr ation 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

referen ce.

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

10 . Food Code Rule 3 - 501.17(B) provides :

Except as provided in paragraphs (D) and (E)

of this section, refrigerated, ready - to - eat,

potentially hazardous food prepared and

packaged by a food processing plant shal l be

clearly marked, at the time the original

container is opened in a food establishment

and if the food is held for more than 24

hours, to indicate the date or day by which

the food shall be consumed on the premises,

sold, or discarded, based on the temp erature

and time combinations specified in paragraph

(A) o f this section; and (1) The day the

original container is opened in the food

establishment sha ll be counted as day 1; and

(2) The day or due date marked by the food

establishment may not exceed a

manufacturer's use - by date if the

manufacturer determined the use - by date

based on food safety .

11 . Food Code Rule 3 - 302.11 (A ) (4) requires that food shall

be protecte d from cross contamination by "[s] toring the food in

packages, covered containers or wra ppings."

1 2 . Food Code Rule 3 - 305.11(A)(3) reads :

Food Storage. (A) Except as specified in

paragraphs (B) and (C) of this section, food

shall be protected from contamination by

storing the food: . . . (3) At least 6

inches above the floor.

1 3 . Food Code Rule 3 - 302.11(A)(1)(b) provides :

(A) Food shall be protected from cross

contamination by: (1) Separating raw animal

foods during storage, preparation, holding,

and display from: . . . (B) Cooked ready - to -

eat food.

1 4 . Food Code Rule 4 - 501.12 reads , in pertinent part:

Cutting Surfaces. Surfaces such as cutting

blocks and boards that are subject to

scratching and scoring shall be resurfaced

in they can no longer be effectively cleaned

and sanitized, or discarded if they are not

capable of being res urfaced.

1 5 . Food Code Rule 3 - 304.14(B)(2) provides:

Cloths used for wi ping food spills shall be:

(2) Wet and cleaned as specified under

paragraph 4 - 802.11(D), stored in a chemical

sanitizer at a concentration specified in

Section 4 - 501.114, and used fo r wiping

spills from food - contact and nonfood - contact

surfaces of equipment.

16. Food Code R ule 4 - 601.11(A) requires that

"[f] ood - contact surfaces and utensils shall be clean

to the sight and touch."

17. Florida Administrati ve Code Ru le 61C - 1.004(6) p rovides

that "[a] ll building structural component s , attachments, and

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

obstructions. "

1 8 . 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. Fla. Real Estate Comm' n , 281

So. 2d 487, 491 (Fla. 1973). According ly, to impose discipline,

the Division must prove the charges against Respondent by clear

and convincing evidence. Dep't of Banking and Fin., Di v. of

Secs. & Investor Prot. 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. Dep't of Bus. & Prof'l Reg . , 654 So. 2d

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

1 9 . Clear and convincing evide nce:

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 th at 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)).

20 . The undersigned has determined, as a matter of

ultimate fact, that the Division established Respondent's guilt

regarding noncompl iance with the following provisions : Food

Code Rule 3 - 501.17(B) ( one critical violation , as charged i n

Count One of the Administrative Complaint ); Food Code Rule s 3 -

302.11(A)(4), 3 - 305.11(A)(3), and 3 - 302.11(A)(1)(b) ( one

critical violation , as charged in Count Two ) ; Food Code Rule 4 -

501.12 (one non - critical violation, as charged in Count Three);

Food Cod e Rule 3 - 304.14(B)(2) (one non - critical violation, as

charged in Count Four); Food Code Rule 4 - 601.11(A) (one critical

violation, as charged in Count Five); and Florida Administrative

Code Rule 61C - 1.004(6) (one violation, as charged in Count Six).

In mak ing these determinations, the undersigned concludes that

" the plain language of the applicab le . . . rules , being clear

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

the historical events at hand without simultaneously examining

extrinsi c evidence of legislative intent or resorting to

principles of interpretation. " Dep't of Bus. & P rof'l Reg. ,

Div. of Hotels & Rests. v. Latin Am. Cafeteria, Inc. , Case No.

05 - 2733 ( Fla. DOAH Nov. 2, 2005 ) . It is therefore unnecessary

to make additional l egal conclusions concerning the se

violations . I d.

21 . As the instant case involves a first offense, Florida

Administrative Code Rule 6 1C - 1.005(6) provides for a fine

ranging from $250 to $500 for each critical violation and $150

to $300 for every non - critical violation. The Division suggests

in its Proposed Recommended Order that Responde nt be fined a

total of $1,800, which represents a m iddle of the guidelines

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

critical violations , and $225 for each of the three non - critical

violation s ) . The undersigned agrees that the penalty sought by

the Division is appropriate under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division of Hotels and

Restaurants enter a final order : (a) finding Respondent gu ilty

in accordance with the foregoing Recommend ed Order; and (b)

ordering Respondent to pay an administ rati ve penalty in the

amount of $18 00 , to be paid within 30 d ays after the filing of

the final order with the agency clerk .

DONE AND ENTERED this 25 th day of January , 2 011 , 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

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta t e.fl.us

Filed with the Clerk of the

Division of Administrative He arings

this 25 th day of January, 2011 .

ENDNOTE S

1 Mr. Lezcano's name is misspelled as "Loscano" in the final

hearing transcript.

2 These three allegations, all of which pertain to the storage

of food, were en umerated in Count Two of the Administrative

Complaint. However, Count Two did not contain the correct Food

Code rules for two of the three violations. At the outset of

the final hearing, the Division sought leave to orally amend the

Administrative Compla int to accurately reflect the appropriate

rules, which the undersigned granted. This did not result in

prejudice, as the undersigned ruled that only one punishment

could be imposed if Respondent was found to have violated Count

Two.

COPIES FURNISHED :

Garnett W. Chisenhall , Esquire

Department of Business and

Professional Regulation

1 940 North Monroe Street, Suite 42

T allahassee, Florida 32399

Maria Magdalena Galindo

30530 South Dixie Highway

Homestead, Florida 33030

William L. Veach , Direct or

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

Northwoo d 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.