10-010696 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. I Love N.Y. Pizza Status: Closed Recommended Order on Tuesday, March 15, 2011.

Summary: Respondent committed two repeated critical violations, and one non-critical violation. Recommend fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS )

AND RESTAURANTS , )

)

Petitioner, )

)

vs. ) Case No. 10 - 10 6 96

)

I LOVE N.Y. PIZZA , )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on January 31 , 20 1 1 ,

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

Division of Administrative Hearings, via video teleconferencing

with sites in Gainesville and Ta llahassee , Florida.

APPEARANCES

For Petitioner: Louise Wilhite - St. Laurent

Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1015

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent c ommitted 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 (Division), filed

an Administrative Complaint alleging v iolations of the

provisions of c hapter 509, Florida Statutes, or the applicable

rules governing the operation of public food establishments.

Respondent disputed the allegations in the Adm inistrative

Complaint and petitioned for a formal administrative hearing.

The case was referred to the Division of Administrative Hearings

on or about December 16, 2010. A formal hearing was set for

January 31, 2011. The hearing took place as scheduled.

At the commencement of the hearing, the Division's

representative entered her appearance, but no appearance was

made on behalf of Respondent. The hearing was recessed until

10:00 a.m. to give a representative of Respondent an opportunity

to appear, but n o appearance was made on behalf of Respondent.

The Division's Motion to Accept Qualified Representative was

granted.

At hearing, Petitioner presented the testimony of one

witness, Daniel Fulton. Petitioner's Exhibits numbered 1

through 7 were admitted into evidence. Official Recognition was

requested of relevant portions of the Florida Statutes, Florida

Administrative Code, and portions of the United States Food and

Drug Administration's Food Code (Food Code). The request was

granted.

A Transcript con sisting of one volume was filed on

February 4, 2011. Petitioner timely filed a Proposed

Recommended Order, which has been considered in preparation of

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

submission. References to the Florida S tatutes are to the 2009

version, unless otherwise specified.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

Regulation, Division of Hotels and Restaurants, is a state

agency charged with the duty and responsibility of regula ting

the operation of hotel and restaurant establishments pursuant to

section 20.165 and c hapter 509, Florida Statutes.

2. Respondent is an eating establishment located in

Gainesville , Florida. Respondent was issued license number

110 2924 as a public food establishment by the D ivision .

3. Daniel Fulton is currently self - employed as a

restaurant consultant. Previously, he was employed by the

Division for 24 years, including as a Senior Sanitation Safety

Specialist for 12 years. Prior to working for the Division,

Mr. Fulton owned a restaurant for four years and worked as a

manager in other restaurants for approximately four years.

Mr. Fulton received training in laws and rules pertaining to

public food and lodging establishments, receive d a food manager

certification, and was standardized in Hazard Analysis and

Critical Control Points. During his employment with the

Division, Mr. Fulton received continuing education in the amount

of 40 hours per year, and performed approximately 600

insp ections per year.

4. Critical violations are violations that, if not

corrected , are more likely to cause food - borne illnesses. Non -

critical violations are violations tha t are less likely to cause

food - borne illnesses.

5. On March 23, 2009, Mr. Fulton c onducted a routine

inspection of Respondent's premises. During the inspection,

Mr. Fulton prepared and signed an inspection report using a

Personal Data Assistant. The inspection report set forth those

violations he observed during his inspection visit. During the

inspection visit, Mr. Fulton made Respondent's owner, who signed

the inspection report, aware of the violations and that they

needed to be corrected by the following day. Mr. Fulton

informed Respondent's owner that he would be conducting a

cal lback inspection the following day.

6. On March 24, 200 9 , Mr. Fulton performed a callback

inspection at Respondent's premises. During this inspection,

Mr. Fulton prepared and signed a callback inspection report

indicating that two of the violations noted on the previous day

had not been corrected. He notified Respondent that he was

recommending that the Division issue an Administrative Complaint

on the two violations that were not corrected, and that time

extensions were given on two other violations. 1 / Respondent's

owner signed for the callback inspection report.

7. On October 29, 2009, Mr. Fulton conducted another

routine inspection at Respondent's premises. During the

inspection, Mr. Fulton prepared and signed another inspection

report. Respondent' s owner signed for the report. One of the

violations noted by Mr. Fulton in the two earlier - referenced

inspections had not been corrected.

8. Mr. Fulton notified Respondent of the violations and

informed Respondent that the violat ions needed to be correc ted

by a callback date of December 30, 2009.

9. On January 11, 2010, Mr. Fulton conducted another

callback inspection at Respondent's premises. During this

inspection, he prepared and signed an inspection report

indicating that some of the violatio ns not ed on the October 29,

2009 inspection report had not been corrected. He notified

Respondent of the violations observed and that he was

recommending that an Administrative C omplaint be issued for the

violations he also observed during his previous inspections.

Respondent's owner signed for the report.

10. The most serious violation Mr. Fulton observed during

each of his inspection s of Respondent's premises was potentially

hazardous cold food held at greater than 41 degrees Fahrenheit.

M r. Fulton observed numerous foods at temperatures greater than

41 degrees. This is a critical violation because bacteria grow

on food at an increasingly faster rate as the food temperature

rises from 41 degrees.

11. The next most serious violation observ ed by Mr. Fulton

during each of his inspections was " potentially hazardous food

held under public health control without markings indicating the

four - hour limit." Mr. Fulton observed that Respondent's

whiteboard, which Respondent uses to track the time wh en food

leaves temperature control, did not contain the times certain

food had been made. Four hours is the maximum period that food

is able to be safely held out of temperature. This is a

critical violation because the longer foods are held out of the

p roper temperature, the greater the risk of bacterial growth.

12. The next most serious violation observed by Mr. Fulton

during the October 29, 2009 and January 11, 2010 , inspections

was that food preparation employees were not using hair

restraint s . This is a violation because food workers not

wearing hair restraints have a tendency to contaminate their

hands by touching their hair and scalp, which can cross -

contaminate food that th ey touch with their hands .

13. In 2008, two Final Orders were entered by the Division

in cases in which in which fines were imposed for the violations

alleged in two Administrative Complaints , as a result of

settlement agreements between the parties.

CONCLUSIONS OF LAW

14. The Division of Admin istrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57(1), and 120.60(5), Fla. Stat. (2010).

1 5 . The D ivision is the state agency charged with

regulating public food service establishments pursuant to

s ec tion 20.165 and c hapter 509, Florida Statutes.

1 6 . Pursuant to s ection 509.261(1), the D ivision may

impo se penalties for violations of c hapter 509, including an

administrative fine of no more than $1,000 per offense,

attendance at personal expense at an educational program

sponsored by the Hospitality Education Program, and the

suspension or revocation of Respondent's license.

17 . Because the D ivision seeks the imposition of an

administrative fine, the D epa rtment has the burden of proving by

clear and convincing evidence the specific allegations in the

Administrative Complaint. See , e.g. , Dep ' t of Banking & Fin . v.

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

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

of the Food Code have been incorporated by reference into the

D ivision 's rules governing public food establishments. Fla.

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

19 . Through the Administrative Complaint, Respondent is

alleged to have violated the following provisions of the Food

Code, which read in pertinent part:

3 - 5 01.1 9 Time as a Public Health Control

(A) E xcept as specified under (B) of this

section, if time only, rather than time in

conjunction with temperature, is used as the

public health control for a working supply of

potentially hazardous food before cooking, or

for ready - to - eat potentially hazardous food

that is displayed or held for service for

immediate consumption:

(1) The food shall be marked or otherwise

identified to indi cate the time that is 4

hours past the point in time when the food is

removed from the temperature control.

* * *

3 - 501 .1 6 (A) Except during preparation,

cooking, or cooling, or when time is used as

the public health control as sp ecified under

Section 3 - 501.19, and except as specified in

paragraph (B) of this Section, potentially

hazardous food shall be maintained:

(1) at 135 degrees Fahrenheit or above,

except that roasts cooked to a temperature and

for a time specified in parag raph 3 - 401.11(B)

or reheated as specified in paragraph 3 -

401.11(E) may be held at a temperature of 130

degrees Fahrenheit or above; or

(2) at a temperature specified in the

following: (A) 41 degrees Fahrenheit or less.

* * *

2 - 40 2.11 Effectiveness

(A) Except as provided in paragraph (B) of

this section, food employees shall wear hair

restraints such as hats, hair coverings or

nets, beard restraints, and clothing that

covers body hair, that are designed and worn

to effectively ke ep their hair from

contacting exposed food. . . .

20 . The Division proved by clear and convincing evidence

that Respondent violated r ule 3 - 501.1 9(A) ( 1 ) of the Food Code in

that Respondent held potentially hazardous food under time as a

public health control without noting the time which was four

hours past the time when food was removed from temperature

control .

21 . The Division proved by clear and convincing evidence

that Respondent violated r ule 3 - 501 .1 6(A) of the Food Code,

because Respondent held potentially hazardous food at greater

than 41 degrees Fahrenheit.

22 . The Division proved by clear and convincing evidence

that Respondent violated r ule 2 - 402 .11 of the Food Code, because

Respondent's food preparation employees were not wearing hair

restraints.

2 3 . The violations in this matter occurred both prior to

and after the adoption of Florida Administrative Code Rule 61C -

1.005 , which sets forth the current penalty guidelines to be

imposed against licensees for violations of the applicable

s tatutes and rules. Therefore, s ection 509.261(1) sets forth

the appropriate penalty guidelines for violations occurring

prior to the adoption of the Division's current penalty

guidelines set for th in the above - referenced rule .

24 . In its Proposed Recommended Order, the Division

proposes the imposition of a $2,400 fine for the violations

contained in the Administrative Complaint . In light of the

Division having proven two critical violations a nd one non -

critical violation, and the history of repe ated critical

violations by Respondent, the proposed fine is reasonable.

RECOMMENDATION

Upon consideration 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, 4 00 due and payable to the Division of Hotels and

Restaurants, 1940 North Monroe Street, Tallahassee, Florida

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

is filed with the Agency Clerk.

DONE AND ENTERED this 15 th day of Ma r ch , 2011, in

Tallahassee, Leon County, Florida.

S

Barbara J. Star os

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 15 th day of March, 2011 .

ENDNOTE

1 / According to the Division, a separate Administrative

Complaint resulted from these two uncorrected violations. The

present case also involves the same two violations because they

were observed during the October 29, 2009 and January 11, 2010

inspections, which took place after that Administrative Comp laint

was issued.

COPIES FURNISHED:

Louise Wilhite - St. Laurent

Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1015

Christiano Savona

I Love N.Y. Pizza

490 Northeast 23rd Avenue

Gainesville, Florida 32609

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388 - 1015

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 - 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.