10-007767 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Dq At 39 Ave And I-75 Status: Closed Recommended Order on Thursday, December 9, 2010.

Summary: Respondent committed two critical and three non-critical violations of Food Code and rules. Recommend $2,500 administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT O F BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS )

AND RESTAURANTS , )

)

Petitioner, )

)

vs. ) Case No. 10 - 7767

)

DQ @ 39 AVE AND I - 75 , )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on October 1 2 , 20 10 ,

by Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, via video teleconferencing

with sites in Gaines ville and Ta llahassee , Florida.

APPEARANCES

For Petitioner: Megan Demartini, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1015

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regul ation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1015

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations set forth in

the Administrative Complaint and, if so, what is the appropriate

disciplinary action that should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants (D ivision ), filed

an Administrative Complaint alleging violations of the

provis ions of Chapter 509, Florida Statutes, or the applicable

rules governing the operation of public food establishments.

Respondent disputed the allegations in the Administrative

Complaint and petitioned for a formal administrative hearing.

The case was referred to the Division of Administrative Hearings

on or about August 1 6 , 20 10 . A formal hearing was set for

October 1 2 , 20 10 . The Notice of Hearing was mailed to the

parties at their addresses of record. 1/ The hearing took place

as scheduled.

At the commencement of the hearing, the D ivision Ós counsel

entered his appearance, but no appearance was made on behalf of

Respondent. The hearing was recessed for approximatel y 2 0

minutes to give a representative of Respondent an opportunity to

appear, but no appearance was made on behalf of Respondent. The

D ivision 's Motion to Accept Qualified Representative was

granted.

At hearing, Petitioner presented testimony of one witness ,

Judy Hentges . Petitioner's Exhibits numbered 1 through 4 were

admitted into evidence. Official R ecognition wa s requested of

Section 509.032 (6) Florida Statutes, Florida Administrative Code

Rule s 61C - 1.00 1 ( 14) , 61C - 1.002(6)(c)1., and 61C - 1.00 4(6) , and

pertinent portions of the United States Food and Drug

AdministrationÓs Food Code (Food Code). The request was

granted.

A Transcript consisting of one volume was filed on

November 3 , 20 10 . Petit ioner timely filed a Proposed

Recommended Order, which ha s been considered in the preparation

of this Recommended Order. Respondent did not file a post -

hearing submission. References to Florida Statutes are to the

20 08 version, unless otherwise indicated .

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

Regulation, Division of Hotels and Restaurants (D ivision ), is a

state agency charged with the duty and responsibility of

regulating the operation of hotel and restaurant establishments

pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. Respondent is an eating establishment located in

Gaines ville , Florida. Respondent was issued license number

110 3079 as a public food establishment by the D ivision .

3. Crit ical violations are those violations that pose a

significant threat to the public health, safety, and welfare and

which is identified as a food - borne illness risk factor . Non -

critical violation s are violation s that do not relate to a food -

borne illness ri sk factor .

4 . Judy Hentges has been employed by the Division for

approximately 12 y ears as a s anitation and safety specialist .

She also has a food manager's certification. Ms. Hentges has

received training in laws and rules regarding public food

service and lodging , and continues to receive continuing

education training on a monthly basis . M s . Hentges performs

approximately 800 to 1,000 inspections annually.

5 . On May 30 , 200 8 , M s . Hentges conducted a routine

inspection of Respondent's premises . During the inspection,

Ms. Hentges prepared, signed , and issued an inspection report

while on the premises. Sonja Dobbins , Respondent's manager , was

present and sign ed the inspection report.

6. Ms. Hentges informed the manager about the violations

she found, noted the violations on the inspection report, placed

the establishment on warning, and explained to the manager that

the violations must be corrected by July 31, 2008 .

7. On July 31, 2008, Ms. Hentges performed a callback

inspection of Respondent. Dur ing that inspection, she prepared

and signed a callback inspection report indicating that some of

the violations noted on the May 30, 2008, inspection report had

not been corrected. Renee Sicard, Respondent's representative,

signed for the callback inspec tion report.

8. On May 30, 2008 , and again on July 31, 2008, the most

serious violation observed by Ms. Hentges was the presence of

flies in the kitchen. This is a critical violation because

flies regurgitate when they land on food, then fly to another

food item repeating tha t cycle. This can lead to food - borne

illness.

9 . On May 30, 2 008 , and again on July 31, 2008, the next

most serious violation observed by Ms. Hentges was that the

vacuum breaker was missing at the hose bib b . The vacuum breaker

i s a back flow preventer. This is a critical violation because

without a vacuum breaker, contaminated water can back up into

potable water used for washing dishes or for mixing food. This

can introduce bacteria which can lead to food - borne illness.

10. On May 30, 2008 , and again on July 31, 2008,

Ms. Hentges observed that renovations were in progress while no

plan review had been submitted to the Division . This is

considered a violation because unauthorized movement of

equipment coul d lead to more serious problems such as the

blockage of a hand wash sink. This is a non - critical violation.

11. On May 30, 2008 , and again on July 31, 2008,

Ms. Hentges observed was that non - food contact equipment was in

poor repair. T her e was a leak i nside the walk - in freezer

causing a massive ice build - up . This is a violation because an

employee could fall and get injured. This is a non - critical

violation.

12. On May 30, 2008 , and again on July 31, 2008,

Ms. Hentges observed that the lights on the hood, in the

hallway, and in the walk - in freezer were not functioning. This

is a violation because without adequate light, employees are

unable to observe soil buildup on equipment that needs to be

cleaned. This is a non - critical violation.

CONCLUSIONS OF LAW

1 3 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57(1), and 120.60(5), Fla. Stat. (20 1 0).

14 . The D ivision is the state agen cy charged with

regulating public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

15 . Pursuant to Section 509.261(1), Florida Statutes, the

D ivision may impose penalties for violations of Chapter 509,

Florida St atutes, including an administrative fine of no more

than $1,000 for each separate offense, attendance at personal

expense at an educational program sponsored by the Hospitality

Education Program, and the suspension or revocation of

Respondent's license.

1 6 . Because the D epartment seeks the imposition of an

administrative fine , the D epartment has the burden of proving by

clear and convincing evidence the specific allegations in the

Administrative Complaint. See , e.g. , Department of Banking and

Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

1 7 . Paragraph 1 - 201.10(B) and Chapters 2, 3, 4, 5, 6 and 7

of the United States Food and Drug AdministrationÓs Food Code

(Food Code) have been incorporated by reference into the

Department's rules governing public food establishments. Fla.

Admin. Code R. 61C - 1 . 001(14) .

1 8 . Through the Administrative Complaint, Respondent is

alleged to have violated the following provision s of the Food

Code, which read in pertinent part:

4 - 5 01 .1 1 Good repair and adjustment

(A) Equipment shall be maintained in a state

of repair and condition that meets the

requirements specified in parts 4 - 1 and 4 - 2.

(B) Equipment components such as doors,

seals, hinges, fasteners, and kick plates

shall be kept int act, tight, and adjusted in

accordance with manufacturers' specifications.

* * *

5 - 203.14 Backflow Prevention Device, when

required.

A plumbing system shall be installed to

preclude backflow of a solid, liquid, or gas

containment into the water supply system at

each point of use at the food establishment,

including a hose bibb if a hose is attached or

on a hose bibb if a hose is not attached and

backflow prevention is required by law, by:

(A) Providing an air gap as specified un der

section 5 - 202.13; or

(B) Installing an approved backflow

prevention device as specified under section

5 - 202.14.

* * *

6 - 501.111 Controlling Pests

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 Sections 7 -

202.12, 7 - 206.12, and 7 - 2006.13; and

(D) Eliminating harborage conditions.

19 . The D ivision proved by clear and convincing evidence

that Respondent violated Rule 4 - 501.11(A) and (B) of the Food

Code in that a leak in Respondent's walk - in freezer caused a

massive build - up of ice on the floor.

20 . The D ivision proved by clear and convincing evidence

that Respondent violated Rule 5 - 203.14, Food Code, because the

vacuum breaker was missing at the hose bibb.

21 . The D ivision proved by clear and convincing evidence

that Respondent violated Rule 6 - 501.111, Food Code, as live

flies were in the ki tchen.

2 2 . Through the Administrative Complaint, Respondent is

alleged to have violated Florida Administrative Code Rule 61C -

1.004(6) , which requires that all building structural

components, attachments and fixtures be kept in good repair,

clean, and free of obstructions.

23 . The D ivision proved by clear and convincing evidence

that Respondent violated Florida Administrative Code Rule 61C -

1.004(6) in that lights were observed not functioning at the

hood, in the hallway, and in the walk - in freezer.

2 4 . Th rough the Administrative Complaint, Respondent is

alleged to have violated Florida Administrative Code 61C -

1.002(5 )(c)1., which provides in pertinent part : 2/

Licensing and Inspection Requirements . -

( 5)(c) 1. The operator of each public food

establishment to be newly constructed,

remodeled, converted, or reopened shall

submit properly prepared facility plans and

specifications to the division for review

and approval in accordance with the

provisions of Chapter 509, F.S., an d Rule

Chapters 61C - 1 and 61C - 4, F.A.C. Such plans

must be approved by the division prior to

construction, remodeling, conversion,

scheduling of an opening inspection and

licensing. . . .

2 5 . The Division met its burden of pro ving that Respondent

violated Florida Administrative Code Rule 61C - 1.002(5)(c) 1. , in

that Respondent had not submitted an updated plan review and

renovations were in progress .

26 . In its Proposed Recommended Order, the Division

proposes the imposition of $2,500 fine. Florida Admin istrative

Code Rule 61C - 1.005 s ets forth the penalty guidelines to be

imposed against licensees for violations of the applicable

statutes and rules. However, the Administrative Complaint was

issued prior to the adoption of this rule. Therefore, Section

509.261(1), Florida Statutes, sets forth the appropriate penalty

guidelines.

27 . In light of the Division having proven two critical

and three non - critical violations, the proposed fine is

reasonable.

RECOMMENDATION

Upon consid eration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That the Division enter a final order which confirms the

violations found, and imposes an administrative fine in the

amount of $2,500 due and payable to the Divisio n of Hotels and

Restaurants, 1940 North Monroe Street, Tallahassee, Florida

32399 - 1011, within 30 calendar days of the date the Final Order

is filed with the Agency Clerk.

D ONE AND ENTERED this 9 th day of December , 20 10 , in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of December , 20 10 .

1/ In its Proposed Recommended Order, the D ivision notes that

after the hearing took place, a piece of undeliverable mail was

returned by the Postal Service indicating a new address for James

Hill, President of Respondent. Nothing mailed to Respondent by

the Division of Administrative Hearings has been returned as

undeliverable. The undersigned confirmed on the record that

Respondent's copy of the Notice of Hearing was mailed to the

address provided by the Division on its transmittal letter, which

matched the address provided by Mr. Hil l on the Election of

Rights as his mailing address. In an abundance of caution, a

copy of this Recommended Order will be mailed to Respondent's

address of record and to the address provided by the Division in

its P roposed Recommended Order.

2/ The Admi nistrative Complaint incorrectly cites this as

Florida Administrative Code 61C - 1.002(6)(c)1. However, the

content of the rule was quoted putting Respondent on notice of

the provision alleged to have been violated.

COPIES FURNISHED:

Charles F. Tunnicliff , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388 - 1015

DQ @ 39 Avenue and I - 75

c/o James Hill

1035 South W est 81st Drive

Gaines ville , Florida 3 2 60 7

DQ @ 39 Avenue and I - 75

c/o James Hill

4434 South West 102nd Drive

Gainesville, Florida 32608 - 7143.

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 , Gen eral Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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.