12-000436 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Piattini Pizzeria And Cafe Status: Closed Recommended Order on Wednesday, June 13, 2012.

Summary: Petitioner proved one critical violation. Imposition of fine recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0436

)

PIATTINI PIZZERIA AND CAFE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 4, 2012, via video tele conference with sites in

Orlando and Tallahassee, Florida. The parties appeared before

Administrative La w Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Sara A. Strickland,

Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Maria Radojkovic, pro se

Piattini Pizzeria and Cafe

595 West Church Street, Suite L

Orlando, Florida 32805

STATEMENT OF THE ISSUE S

Whether Respondent committed the violations set forth in the

Administrative Complaint, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On or about February 28, 2011, Petitioner, Department of

Business and Professional Regulation, Division of Hotels and

Restaurants (Petitioner), filed an Administrative Complaint

against Respondent, Piattini Pizzeria and Cafe (the Restaurant),

alleging violations of certain provisions of chapter 509, Florida

Statutes (2010), 1/ or the applicable rules governing the operation

of public food service establishments. The Administrative

Complaint requested an orde r imposing one or more sanctions

against the Restaurant.

The Restaurant disputed the allegations in the

Administrative Complaint and timely requested a formal

administrative hearing. Petitioner forwarded the case to DOAH

for the assignment of an Administr ative Law Judge.

At the final hearing, Petitioner presented one witness:

Will Goris, a sanitation and safety specialist. Petitioner

offered four exhibits into evidence, all of which were admitted

without objection. Petitioner asked for official recognit ion of

section 509.032(6); Florida Administrative Code Rules 61C -

1.001(14) and 61C - 1.005; and rule 6 - 501.111, Food Code. The

request was granted. The Restaurant called one witness: Maria

Radojkovic, manager of the Restaurant. The Restaurant offered no

exhibits into evidence.

The one - volume Transcript of the final hearing was filed on

May 21, 2012. At hearing, both parties were advised that their

proposed recommended orders were due ten days after the

Transcript was filed with DOAH. Petitioner timely f iled its

Proposed Recommended Order, which has been considered in the

preparation of this Recommended Order. To date, the Restaurant

has not filed any post - hearing submittal.

FINDING S OF FACT

1. At all times material to this case, the Restaurant was a

li censed public food service establishment located at 595 West

Church Street, Suite L, Orlando, Florida. The Restaurant was

first licensed in July 2006, and its food ser vice license number

is 5811488.

2. Petitioner is the state agency charged with the

regu lation of hotels (public lodging establishments) and

restaurants (public food service establishments) pursuant to

chapter 509.

3. Will Goris is a sanitation and safety specialist for

Petitioner. Mr. Goris has worked for Petitioner for eight years.

Prior to working for Petitioner, Mr. Goris worked for the U.S.

Army for eight years as a food safety inspector. Mr. Goris

received Petitioner ' s standardized training on the laws and rules

governing public food service establishments. 2/ Mr. Goris is a

certifie d food manager and obtains monthly in - house training from

Petitioner on his job duties.

4. On February 22, 2011, Mr. Goris performed a routine

inspection of the Restaurant starting at approximately 12:39 p.m.

The Restaurant was fully operational at the t ime , as it was the

lunch hour. Mr. Goris observed live roach activity (infestation)

at the Restaurant in the following locations: under a mat by the

three - compartment sink; on a peg board adjacent to a hand - sink;

under a box of onions; inside a box of pa sta; by the water

heater; and by the wheels of the reach - in cooler. Mr. Goris also

observed dead roaches in vario us locations at the Restaurant.

5. Critical violations are those violations that, if

uncorrected, are most likely to contribute to contaminat ion,

illness or environmental health hazards . I nsects and other pests

are capable of transmitting diseases to humans by contaminating

the food or food contact surfaces , and t his roach infestation was

identified by Mr. Goris as a " critical " violation.

6. Maria Radojkovic is the manager of the Restaurant. As

Mr. Goris was conducting the inspection, he asked Ms. Radojkovic

to observe the same roach activity he was observing. At the

conclusion of the February 22, 2011, inspection , Mr. Goris

recorded the obs erved violations in an inspection report which he

printed out. Ms. Radojkovic signed the inspection report and

rece ived a copy of it at that time.

7. There was no evidence to dispute the allegations.

Ms. Radojkovic confirmed that the roaches " got brought in by

deliveries and boxes. " The Restaurant had at least two

extermination companies to combat the roach infestation problem.

When the first company was unsuccessful, Ms. Radojkovic hired a

different company. However, it took several months for the

sec ond company to " get rid of " the roaches.

8. Ms. Radojkovic expressed her understanding that the

Restaurant needs to be clean, and she is aware of the various

access points for roaches to enter it. Although she maintains it

is impossible for any restauran t to be roach - free, Ms. Radojkovic

maintains that it " just takes time to contain " them.

9 . None of the other putative violations mentioned in the

inspection report (Petitioner ' s Exhibit 2) were addressed at

final hearing and are therefore irrelevant to th is proceeding.

10. No evidence was introduced that a patron had become ill

as a result of the infestation.

1 1 . On February 22, 2011, the Restaurant was served an

Emergency Order of Suspension (E SO ) following the inspection of

that date. Although there w as no testimony as to when the E SO

was actually lifted, at the time of the hearing , the Restaurant

was open for business.

1 2 . On February 28, 2010, a Final Order was issued

involving the Restaurant regarding an Administrative Complaint

that was issued on September 29, 2009. This Administrative

Complaint was based on a June 16, 2009, inspection and a

September 9, 2009, re - inspection. The issue therein was

unrelated to the issue at hand.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

j urisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (2011) .

14. Petitioner is the state agency charged with the

regulation of public food service establishments in the Stat e of

Florida pursuant to section 20.165 , Florida Statutes, and

chapter 509.

15. Petitioner has the burden of proving by clear and

convincing evidence that the Restaurant violated c hapter 509, the

Food Code provisions promulgated pursuant to that chapter, and

the Florida Administrative Code r ules. See Dep ' t of Banking &

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

v. Turlington , 510 So. 2d 292, 294 (Fla. 1987); Pic N ' Save

Central Fla., Inc. v Dep ' t of Bus. & Prof ' l Reg., Div. of

Alcoholi c Beverages & Tobacco , 601 So. 2d 245, 249 (Fla. 1st DCA

1992).

16. Section 509.013(5)(a) provides:

(5)(a) " Public food service establishment "

means any building, vehicle, place, or

structure, or any room or division in a

building, vehicle, place, or str ucture where

food is prepared, served, or sold for

immediate consumption on or in the vicinity

of the premises; called for or taken out by

customers; or prepared prior to being

delivered to another location for

consumption.

The Restaurant is a public food service establish ment as defined

in chapter 509.

17. Section 509.032 provides as follows in pertinent part:

(1) GENERAL. -- The Division shall carry out

all of the provisions of this chapter and all

other applicable laws and rules relating to

the inspecti on or regulation of . . . public

food service establishments for the purpose

of safeguarding the public hea lth, safety,

and welfare. . . .

(2) INSPECTION OF PREMISES. --

(a) The Division has responsibility and

jurisdiction for all inspections required b y

this chapter. The Division has

responsibility for quality assurance. Each

licensed establishment shall be inspected at

least biannually, . . . and shall be

inspected at such other times as the Division

determines is necessary to ensure the

public ' s hea lth, safety, and welfare. The

Division shall establish a system to

determine inspection frequency.

(b) For purposes of performing required

inspections and the enforcement of this

chapter, the Division has the right of entry

and access to . . . public fo od service

establishments at any reasonable time.

(c) Public food service establishment

inspections shall be conducted to enforce

provisions of this part and to educate,

inform, and promote cooperation between the

Division and the establishment.

(d) Th e Division shall adopt and enforce

sanitation rules consistent with law to

ensure the protection of the public from

food - borne illness in those establishments

licensed under this chapter. These rules

shall provide the standards and requirements

for obtain ing, storing, preparing,

processing, serving, or displaying food in

public food service establishments, approving

public food service establishment facility

plans, conducting necessary public food

service establishment inspections for

compliance with sanit ation regulations,

cooperating and coordinating with the

Department of Health in epidemiological

investigations, and initiating enforcement

actions, and for other such responsibilities

deemed necessary by the Division. The

Division may not establish by ru le any

regulation governing the design,

construction, erection, alteration,

modification, repair, or demolition

of any . . . public fo od service

establishment. . . .

* * *

(6) RULEMAKING AUTHORITY. -- The Division shall

adopt such rules as are nec essary to carry out the

provisions of this chapter.

The Restaurant was duly inspected under Petitioner ' s authority as

granted by c hapter 509.

18. Ru le 61C - 1.001(14) provides :

Except when otherwise defined in this rule,

the definitions provided in paragra ph 1 -

201.10(B), Food Code, 2001 Recommendations of

the United States Public Health Service/Food

and Drug Administration, the 2001 Food Code

Errata Sheet (August 23, 2002) ; and

Supplement to the 2001 FDA Food Code

(August 29, 2003) shall apply to Chapters

61C - 1, 61C - 3 and 61C - 4, F.A.C. In addition,

the following definitions apply to Chapters

61C - 1, 61C - 3 and 61C - 4, F.A.C.:

* * *

(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 Guid elines 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. A copy of the Food Code, as

adopted by the division, is available

on the division's Intern et website

www.MyFloridaLicense.com/dbpr/hr. A copy

of the entire Food Code is available on the

U.S. Food and Drug Administration Internet

website. Printed copies of the entire Food

Code are available through the National

Technical Information Service, 5 285 Port

Royal Road, Springfield, VA 22161.

19. Petitioner has adopted the Food Code of the United

States Department of Health and Human Services 2001 as a

guideline for inspecting public food service establishments in

Florida. Rule 6 - 501.111, Food Code , provides :

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 t he 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 §§ 7 - 202.12,

7 - 206.12 , and 7 - 206.13 ; and

(D) Eliminating harborage conditions.

20. Rule 61C - 1.005, wh ich is set forth in pertinent part

herein , provides :

(1) This rule sets out the disciplinary

guidelines for imposing penalties upon . . .

public food service establishments under the

jurisdiction of the Division of Hotels and

Restaurants (division) in adm inistrative

actions. The purpose of this rule is to

notify licensees of the standard range of

penalties routinely imposed unless the

d ivision finds it necessary to deviate from

the standard penalties for the reasons stated

within this rule.

(2) These di sciplinary guidelines are

descriptive in nature and do not use the

language used to formally allege a violation

in a specific case. This rule is not

intended to specifically describe all

possible violations of law that may be

committed by a . . . public f ood service

establishment and that may be subject to

penalty imposed by the d ivision.

(3) The d ivision may impose penalties

against a . . . public food service

establishment for a specific violation not

included in the language of this rule. If a

specif ic violation is not included in the

language of this rule, the d ivision shall

impose a penalty corresponding to the most

similar violation listed in this rule.

(4) These disciplinary guidelines do not

limit the d ivision ' s authority to order a

. . . publi c food service establishment to

cease and desist from any unlawful practice,

or other action authorized by law.

(5) Definitions.

(a) " Critical violation " means a violation

determined by the d ivision to pose a

significant threat to the public health,

sa fety, or welfare and which is identified as

a food borne illness risk factor, a public

health intervention, or critical in DBPR Form

HR - 5022 - 014 Lodging Inspection Report or DBPR

Form HR - 5022 - 015 Food Service Inspection

Report, incorporated by reference in

subsection 61C - 1.002(8), F.A.C., and not

otherwise identified in this rule.

(b) " Non - critical violation " means a

violation not meeting the definition of

critical violation and not otherwise

identified in this rule.

(c) " First offense " means a violation of any

law subject to penalty under Chapter 509,

F.S., when no disciplinary Final Orders

involving the same licensee have been filed

with the Agency Clerk within the 24 months

preceding the date the current administrative

complaint is issued.

(d) " Second offense, " and " second and any

subsequent offense " mean a violation of any

law subject to penalty under Chapter 509,

F.S., after one disciplinary Final Order

involving the same licensee has been filed

with the Agency Clerk within the 24 months

preceding th e date the current administrative

complaint is issued, even if the current

violation is not the same as the previous

violation.

(e) " Third and any subsequent offense " means

a violation of any law subject to penalty

under Chapter 509, F.S., after two or m ore

disciplinary Final Orders involving the same

licensee have been filed with the Agency

Clerk within the 24 months preceding the date

the current administrative complaint is

issued, even if the current violation is not

the same as the previous violation.

(6) Standard penalties. This section

specifies the penalties routinely imposed

against licensees and applies to all

violations of law subject to a penalty under

Chapter 509, F.S. Any violation requiring an

emergency suspension or closure, as

authorize d by Chapter 509, F.S., shall be

assessed at the highest allowable fine

amount.

* * *

(b) Critical violation. Fines may be

imposed for each day or portion of a day that

the violation exists, beginning on the date

of the initial inspection and c ontinuing

until the violation is corrected.

1. 1st offense -- Administrative fine of $250

to $500.

2. 2nd offense - Î Administrative fine of $500

to $1,000.

3. 3rd and any subsequent offense --

Administrative fine of $750 to $1,000,

license suspension, or b oth.

* * *

(7) Aggravating or mitigating factors.

The Division may deviate from the standard

penalties in paragraphs (a) through (h) of

subsection (6) above, based upon the

consideration of aggravating or mitigating

factors present in a specific case. The

d ivision shall consider the following

aggravating and mitigating factors in

determining the appropriate disciplinary

action to be imposed and in deviating from

the standard penalties:

(a) Aggravating factors.

1. Possible danger to the publi c.

2. Length of time since the violation

occurred.

3. Number of violations in the current

administrative complaint.

4. Severity of violations in the current

administrative complaint.

5. Disciplinary history of the licensee

within the 60 months prec eding the date the

current administrative complaint was issued.

6. Number of Emergency Orders of Suspension

or Closure against the same licensee filed

with the Agency Clerk by the d ivision within

the 12 months preceding the date the current

administrativ e complaint was issued.

7. The current administrative complaint

alleges a violation for obstruction of

division personnel.

8. The licensee was prosecuted by another

authority having jurisdiction resulting in a

violation of Chapter 509, F.S., including but

not limited to cases based on discrimination,

civil rights violations, and criminal

violations.

9. Actual physical damage or bodily harm

caused to persons or property by the

violation.

10. Any other aggravating factors, as

relevant under the circum stances.

(b) Mitigating factors.

1. Violation resulted from an act of God or

nature.

2. Length of time since the violation

occurred.

3. Length of time the licensee has been in

operation.

4. Effect of the penalty upon the licensee ' s

livelihood.

5 . Attempts by the licensee to correct the

violation.

6. Number of previous inspections without

violations of Chapter 509, F.S., and the

rules adopted pursuant thereto.

7. Disciplinary history of the licensee

within the 60 months preceding the date the

current administrative complaint was issued.

8. Any other mitigating factors, as relevant

under the circumstances.

21. Petitioner proved by clear and convincing evidence that

the Restaurant violated rule 6 - 501.111, Food Code. At the time

of the inspe ction , the Restaurant had an active roach

infestation, which, if uncorrected , could have led to food

contamination. No evidence was presented that any patrons became

ill as a result of the infestation. Petitioner proved the

Restaurant committed one criti cal violation.

22. In mitigation, there was testimony that the Restaurant

knew of the roach infestation and hired two outside companies to

address the infestation. Further , it has been 16 months since

the violation occurred , and it has been corrected.

23 . In aggravation, there was a possible health danger to

the public, an E S O was issued as a result of the critical

violation, and a prior F inal O rder had been entered against the

Restaurant in 2010.

24. In its Proposed Recommended Order, Petitioner

propos ed the imposition of a fine of $1,000 for violation of one

critical violation. The recommended penalty is consistent with

the guideline s set forth in rule s 61C - 1.005(5)(a) and (d)

and 61C - 1.005(6).

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions of

Law, it is

RECOMMENDED that the Department of Business and Professional

Regulation, Division of Hotels and Restaurants , enter a final

order which confirms the violation found and imposes an

administrative fine in the amount of $1,000 due a nd payable to

the Division of Hotels and Restaurants, 1940 North Monroe Street,

Tallahassee, Florida 32399 - 1011, within 30 days after the filing

of the final order with the agency clerk.

DONE AND ENTERED this 1 3 th day of June , 2012 , in

Tallahassee, Leon C ounty, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th day of June , 2012 .

ENDNOTE S

1/ Unless specifically stated otherwise, all references to

Florida Statutes will be to the 201 0 version.

2/ Mr. Goris has also been trained on the statutes and rules

regulatin g public lodging establishments ; however, t hat area is

not under scrutiny and will not be addressed further.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Sara A. Strickland

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

Maria Radojkovic

Piattini Pizzeria and Cafe

595 West Church Street, Suite L

Orlando, Florida 32805

J. Layne Smith, General Counsel

Department of Business and

Profes sional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Talla hassee, Florida 32399 - 0792

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 th at

will issue the Final Order in this case.