12-000524 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Bangin Barbeque Status: Closed Recommended Order on Wednesday, May 9, 2012.

Summary: Petitioner proved one critical violation. Recommend fine of $500.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT O F BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS )

AND RESTAURANTS , )

)

Petitioner, )

)

vs. ) Case No. 1 2 - 0524

)

BAN GIN BARBEQUE , )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on April 5 , 20 1 2 , by

Barbara J. Staros, assigned Adminis trative Law Judge of the

Division of Administrative Hearings, in Ta llahassee , Florida.

APPEARANCES

For Petitioner: Marc A. Drexler, Esquire

Sarah Morgan, Qualified Representative

Department of Business and

Profe ssional Regulation

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

penalty that should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants , filed an

Administrative Complaint alleging v iolations of the provisions

of c hapter 509, F lorida 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 Divisio n of Administrative Hearings

on or about February 8 , 20 1 2 . A Notice of Hearing was issued on

February 14, 2012, scheduling the formal hearing for April 5 ,

20 1 2 . The Notice of Hearing was mailed to the parties at their

addresses of record. The hearing to ok place as scheduled.

At the commencement of the hearing, the Petitioner ' s

counsel entered his appearance, and Petitioner's Request to

Accept Qualified Representative was granted. N o 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.

At hearing, Petitioner presented testimony of two

witness es , Edward Bouza and C ynthia Ross . Petitioner ' s Exhibits

numbered 1 , 2 and 4 were admitted into evidence. Petitioner

also withdrew allegations in the Administrative Complaint

referencing an April 6, 2011, inspection. Official R ecognition

wa s requested of s ection 509.032 (6) , Florida Statutes, Florida

Administrative Code Rule s 61C - 4 .00 1 ( 14 ) , and 61C - 1.005 , and

pertinent portions of the United States Food and Drug

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

granted.

A Transcript consisting of one volume was filed on

April 2 3 , 20 1 2 . 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 1 1

version, unless otherwise indicated .

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

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

the state agency charged with the duty and responsibility of

regulating the operation of hotel and restaur ant est ablishments

pursuant to section 20.165 and c hapter 509, Florida Statutes.

2. Respondent is located in Tallahassee , Florida , with a

business address of 710 West Orange Avenue . Respondent was

issued license number 2014 by the D ivision as a mobile food

disp ensing vehicle .

3. Critical violations are those violations that , if not

co rrected, could contribute to food - borne illness , environmental

health hazards, or contamination o f food .

4 . Edward Bouza i s employed by the Division a s a plans

examiner . Befor e becoming a plans examiner, he worked for the

Division as a Sanitation and Safety Specialist inspector .

M r . Bouza has received three to four months of in - field training

regarding public food service and inspections. During the time

he was a Sanitation and Safety Specialist, he continue d to

receive continuing education training on a monthly basis . He

perform ed approximately 800 to 1,000 inspections each year.

5. Cynthia Ross is employed by the Division as a

supervisor. She supervises nine inspectors. Prior to becoming

a supervisor, Ms. Ross worked as a Sanitation and Safety

Specialist for two years. Prior to working at the Division,

Ms. Ross worked as a general manager of a Ruby Tuesday

restaurant for 15 years, as a general manager of a fine dining

establishment for three years, and as a n owner/operator of a

full - service restaurant for seven years. She received training

on the Food Code and was trained in the laws and rules

pertaining to public food service and lodging establishments.

In her former capacity as a Sanitation and Safety Specialist,

she received continuing education training on a monthly basis

and performed approximately 1,000 inspections a year.

6 . On April 1 , 20 1 1 , M r . Bouza and Ms. Ross conducted a

routine food service inspection of Respondent ' s premises . They

observed Respondent operating without any water at its hand

sink, its three - compartment sink, and without hot water at its

hand sink. These are critical violations because without hot

and cold running water, Respondent could not perform basic

cleaning functions in its establishment , could not properly wash

its equipment, or allow its employees to wash their hands.

7. During the inspection, M r . Bouza and Ms. Ross

prepared, signed , and issued an inspection report setting forth

the violations t he y observed . Anthony Rivers , Respondent ' s

o wner , was present and sign ed the inspection report indicating

receipt .

8 . An immediate Administrative Complaint and an Emergency

Closure Order were issued based on the violations documented on

the April 1, 2011 inspection report.

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has

jurisdiction over the parties and subject m atter in this case.

§§ 120.569 and 120.57(1), Fla. Stat.

1 0 . The D ivision is the state agency charged wi th

regulating public food service establishments pursuant to

section 20.165 and c hapter 509, Florida Statutes.

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

impose penalties for violations of c hapter 509, including an

administrative fine of no m ore 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.

12 . 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. , Dep ' t of Banking & Fin . v.

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

1 3 . S ection 509.032(6 ) provides that the Division of

Hotels and Restaurants shall adopt such rules as are necessary

to carry out the provisions of c hapter 509. Paragraph 1 -

201.10(B) and c hapters 2, 3, 4, 5, 6 and 7 of the United States

Food and Drug Administra tion ' s 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 4 . Through the Administrative Complaint, Respondent is

alleged to have violated the fo llowing provision s of the Food

Code, which read in pertinent part:

5 - 1 03 .1 2

Pressure. Water under pressure shall be

provided to all fixtures, equipment, and non -

food equipment that are required to use water

except that water supplied as specified unde r

¶¶ 5 - 104.12(A) and (B) to a temporary food

establishment or in response to a temporary

interruption of a water supply need not be

under pressure.

* * *

5 - 202 .12

Handwashing Facili ty, Installation.

(A) A handwashing lavatory shall be equipped

to provide water at a temperature o f at least

38 ° C (100 ° degrees F) through a mixing valve

or combination faucet.

(B) A steam - mixing valve may not be used at a

handwashing lavatory.

15 . The D ivision proved by clear and convincing evi dence

that Respondent violated r ule 5 - 103 .1 2 , Food Code , in that both

inspectors observed that Respondent's establishment did not have

any running water at its hand sink and three - compartment sink.

16 . T he D ivision proved by clear and convincing evidence

that Respondent violated r ule 5 - 202 .1 2 (A) and (B) , Food Code, in

that Respondent's establishment had no running water at its hand

sink.

17. The Administrative Complaint groups th e above

violations of rul es 5 - 103.12 and 5 - 202.12(A) and (B), Food Code,

as a single violation. Accordingly, the Division seeks only one

penalty to be assessed for both violations. The Division

suggests a fine of $500.

18. Respondent proved that Respondent committed one

criti cal violation.

19 . In its Proposed Recommended Order, the Division

proposes the imposition of a fine of $500 for violation of one

critical violation . Florida Admin istrative Code Rule 61C -

1.005 (6) s ets forth the penalty guidelines to be imposed agains t

licensees for violations of the applicable statutes and rules.

The recommended penalt y is consistent with these guidelines.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That the Division enter a F inal O rder which confirms the

violations found, and imposes an administrative fine in the

amount of $ 5 0 0 due and payable to the Division of Hotels and

Restaurants, 1940 North Monroe Street, Tallahassee, Florida ,

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

is filed with the Agency Clerk.

D ONE AND ENTERED this 9 th day of May , 20 1 2 , in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros

Adminis trative 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 May , 20 1 2 .

COPIES FURNISHED:

Marc A. Drexler , Esquire

Sarah Morgan, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388 - 1015

Anthony Rivers

Bangin Barbeque

4031 Bishop Road

Tallahassee , Florida 32305

William L. Veach , Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Stre et

Tallahassee, Florida 32399 - 0792

Layne Smith , 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 subm it 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.