11-004371 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Alma Caribe Cafe Restaurant Status: Closed Recommended Order on Tuesday, December 20, 2011.

Summary: Clear and convincing evidence that Respondent committed five critical violations. Recommend $1,250 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. 1 1 - 4371

)

ALMA CARIBE CAFÉ RESTAURANT , )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Edward T.

Bauer for final hearing by video teleconference on November 16 ,

2011 , at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Sara Strickland, Qualified Representative

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1 9 40 North Monroe Street , Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: No appe arance

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 pro ves one or more of the

alleged violations, then it will be necessary to consider

whether penalties should be imposed on Respondent.

PRELIMINARY STATEMENT

On August 19, 2010 , Petitioner Department of Business and

Professional Regulation, Division of Hotels and Restaurants

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

("Complaint") against Respondent Alma Caribe Café Restaurant ,

charging the licensed restaurant with various offenses rel ating

to noncompliance with the rules governing food ser vice

establishments. Respondent timely requested a formal hearing to

contest the allegations, and , on August 25 , 20 11 , the matter was

referred to the Division of Administrative Hearings.

The parties were properly notified th at the final hearing

would co mmence at 9:00 a.m. on November 16 , 2011 . At the

designated time and pl ace, the undersigned and the Qualified

Representative for Petitioner appeared. Respondent's

representative, however, did not appear. After waiting

approximately 30 minutes and upon r eview of the file, from which

it was determined that Respondent had been given adequate notice

of the final hearing, the undersi gned commenced the proceeding.

During the final hearing, the Division presented the

testimony of Reginald Garcia and introduced three exh ibits,

numbered one through three . Pursuant to Petitioner's request,

the undersign ed took official recognition of the Food Code. 1 /

The T ranscript of the final hearing was filed on

December 7, 2011 . The Division timely submitted a Proposed

Re commended 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 indicated, citations to the Fl orida

Statutes refer to the 2010 edition .

FINDINGS OF FAC T

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 3100 Northwest 17th Avenue, Miami,

Florida , and holding fo o d service license number 2328990 .

3 . On May 19, 2010, and July 2 3 , 2010 , Re spondent was

inspected by Reginald Garcia, a sanitation and safety specialist

employed by the Division. During both visit s, Mr. Garcia

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. Garcia and the exhibits

introduced into evidence duri ng the final hearing, the Division

presented clear and convincin g ev idence that as of July 23 ,

2010, the following deficiencies subsisted at Respondent Alma

Caribe Café Restaurant : (1) potentially hazardous food held at

a temperature greater than 41 degrees Fahrenheit , contrary to

Food Code Rule 3 - 501.16(A); (2) poten tially hazardous food not

cooled from 135 to 41 degrees Fahrenheit within six hours, in

violation of Food Code Rule 3 - 501.14(A); (3) holding equipment

incapable of maintaining potentially hazardous food at proper

temperatures, in violation of Food Code Rul e 4 - 301.11; (4) raw

food stored over cooked food, contrary to Food Code Rule 3 -

302.11(A)(1) ; and (5) n o proof of required empl oyee training, in

violation of s ection 509.049, Florida Statutes.

5 . Each of the foregoing deficiencies is considered a

critical violation by the Division. Critical food code

violations are those that, if uncorrected, present an immediate

threat to public safety.

CONCLUSIONS OF LAW

6 . T he Division of Administrative Hearings has personal

and subject matter jurisdiction in this pr oceeding pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

7 . 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 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 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.

8 . By rule, the Division has d efined the term "Food Code"

as follows:

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

t he 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).

9 . Food Code Rule 3 - 501.16(A) reads :

Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified under Section 3 -

501.19, and except as specified in paragraph

(B) of this Section, potentially haza rdous

food shall be maintained: (1) at 135

degrees Fahrenheit or above, except that

roasts cooked to a temperature and for a

time specified in paragraph 3 - 40 1.11(B) or

reheated as specified in paragraph 3 -

403.11(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.

1 0 . Food Code Rule 3 - 501.14(A) provides :

Co oked potentially hazardous food shall be

cooled: (1) within 2 hours, from 135

degrees Fahrenheit to 70 degrees Fahrenheit;

and (2) within a total of 6 hours, from 135

degrees Fahrenheit to 41 degrees Fahrenheit

or less.

1 1 . Food Code Rule 4 - 301.11 reads :

Cooling, heating and holding capacities.

Equipment for cooling and heating food, and

holding cold and hot food, shall be

sufficient in number and capacity to provide

food temperatures as specified under

Chapter 3.

1 2. Food Code Rule 3 - 302.11(A)(1) provides, in relevant

part :

Food shall be protect ed from cross

contamination by: (1) Separating raw animal

foods during storage, preparation, holding,

and display from . . . [c]ooked ready - to - eat

food.

13. Section 509.049, Florida Statutes, reads, in pertinent

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 c ertified 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.

(e mphasis ad ded).

1 4 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional li cense 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., Div. 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 5 . Clear and convinci ng 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

w eight 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)).

16 . 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 - 501.16(A), as charged in Count One of t he Complaint;

Food Code Rule 3 - 501.14(A), as alleged in Count Two; Food Code

Rule 4 - 301.11, as charged in Count Three; Food Code Rule 3 -

202.11(A)(1), as alleged in C ount Four; and section 509.049, as

alleged in Count Five. In making 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 extrinsic 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 ; Fla. DBPR Dec. 13, 2005). It is therefore

unnecessary to make additional l egal conclusions concerning

the se violations . I d.

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

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

ran ging from $250 to $500 for each of the five critical

violations committed by Resp ondent. Petitioner recommends, and

the undersigned agrees, that the minimum fine of $250 should be

imposed with respect to each count.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Divisio n 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 $1250 , to be paid within 30 days after the fil ing of

the final order with the agency clerk .

DONE AND ENTERED this 20th day of December , 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

Fax Filing (850) 921 - 6847

www.doah.sta t e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of Decem ber , 2011 .

ENDNOTE

1 / 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).

COPI ES FURNISHED :

Sara Strickland, Qualified Representative

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1 9 40 North Monroe Street, Suite 42

T allahassee, Florida 32399 - 2202

Evarista Daniel

Alma Caribe Café Restaura nt

3100 Northwest 17th Avenue

Miami, Florida 33142

William L. Veach , Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Layne Smith , G eneral Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

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.