12-001174 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Valentinos Cucina Italiana Status: Closed Recommended Order on Wednesday, July 25, 2012.

Summary: Petitioner demonstrated that Respondent violated Food Code Rules 3-302.11(A)(1), 5-205.11(A), and 6-301.11 and that the violations were critical violations. Recommend administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 12 - 1174

)

VALENTINOS CUCINA ITALIANA , )

)

Respondent. )

______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, a final hear ing was held in this case

on June 11, 2012 , by video teleconference with conn ecting sites

in Lauderdale Lakes and Tallahassee, Florida, befo re Errol H.

Powell, an Administrative Law Judge of the Divi sion of

Administrative Hearings.

APPEARANCES

For Petit ioner: Charles F. Tunnicliff, Esquire

Blair N. Bodenmiller , Qualified

Representative

Department of Business and

Professional Re gulation

19 40 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: Giovanni Rocchio, pro se

Valentinos Cucina Italiana

1145 South Federal Highway

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent com mitted

the offense s set forth in the Administrative Complaint dated

June 2 7, 2011 , and, if so, what action should be taken.

PRELIMINARY STATEM ENT

The Department of Business and Professional Regulation,

Division of Hotels and Restaurants, hereinafter Department,

issued an Administrative Compl aint ag ai nst Valentinos Cucina

Italiana , hereinafter Restaurant , dated June 2 7, 2011 . The

Depar tment char ged the Restaurant w ith a three - count

A dministrative C omplaint : C ount 1 -- v iolating sect ion 509,

Florida Statutes, through a violation of Food Code Rule

3 - 302 .11(A)(1) in that (A) raw animal food was observed stored

over rea dy - to - eat food (eggs, reach - in cooler) and (B) raw

animal food was observed not properly separated from ready - to -

eat food (beef, reach - in cooler); C ount 2 -- violating section 509

through a violation of Food Code Rule 5 - 205.11 (A) in that (A)

the hand wash sink was observed not accessible for employee use

at all times (kitchen) and (B) the hand wash sink was observed

used for purposes other than handwashing (kitchen); and C ount 3 -

- violating section 509 through a violation of Food Code Rule 6 -

301.12 in that (A) the hand wash sink was observe d lacking

proper hand drying provisions (kitchen), (B) the handwashing

cleanser was observed lacking at a hand washing lavatory

(kitchen), and (C) no handwashing sign was provided at a

handsink used by food employees (kitchen) . The Restaurant

disputed the material allegations of fact an d requested a

hearing. On March 3 0, 2012 , this matter was referred to the

Division of Administrative Hearings.

Prior to hearing, a s to C ount 3, the Department dismissed

Counts 3(A) and (C) , thereby, Count 3(B) was remaining .

Further, as to Count 3(B), the Department corrected the citation

of the Food Code violation from a violation of Food Code Rule 6 -

301.12 to a violation of Food Code Rule 6 - 301.11 and set forth

the provision of the said correc ted citation . Moreover, at

h earing, as to C ount 1, the D epartment dismissed Count 1(B),

thereby, Count 1(A) was remaining; and as to C ount 2, the

Department dismissed Count 2(B), thereby, Count 2(A) was

remaining .

At hearing, the Department presented the testimony of two

witness es an d entered three exhibits (Petitioner ' s Exhi bits

numbered 1 through 3 ) into evidence. Giovanni Rocchio testified

on behalf of t he Restaurant . The undersigned took O fficia l

R ecognition of s ection 509.032(6), Florida Statutes ; Florida

Administrative Code Ru le s 61C - 1.001(14) and 61C - 1.005 ; and Fo od

Code Rule s 3 - 302.11(A)(1), 5 - 205.11(A), and 6 - 301.12 .

A t ranscript of the hearing was ordered . At the r equest of

the parties , the time for filing post - hearing su bmissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed o n June 27,

2012 . The Department timely filed its post - hearing submission .

The Restaurant did not file a post - hearing submission. The

Department ' s post - hearing submission has been c onsidered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At a ll times mate rial hereto, the Restaurant was

licensed as a public food service establishment in the State of

Florida by the Department, having been issued license type 2010

an d license number 1620035 .

2. At a ll times mat erial hereto, the Restaurant was

located at 1145 South Federal Highway, Fort Lauderdale , Florida

33316 .

3. A critical violation in food service is considered to

be a violation of the F ood C ode that, if not cor rected, will

most likely cause and is directly related to food - borne illness ,

food contamination, or environmental hazards .

4. A non - critical violation in food service is considered

to be a violation that is less likely to cause and will not

directly cont ribute to food - borne illness or food contamination .

5 . On October 27, 2010 , Lynden Lewis , a n inspector with

the Department, c onducted a routine inspection of the

Restaurant .

6 . D uring the inspection, Inspector Lewis found

violation s , which were considere d to be critical and non -

critical violation s . Further , d uring the inspection,

Inspector Lewis prepared a f ood inspection report , setting forth

the alleged violation s a nd that the violations were required to

be corrected by the next unannounced inspection . The inspection

report was signed by Inspector Lewis and a representative of the

Restaurant . Inspector Lewis made the representative aware of

the alleged violation s and that the violations were required to

be corrected by the next unannounced inspection , and he provided

the representative with a copy of the inspection report.

7 . On June 16, 2011, Inspector Lewis and Begum Khatoon, an

inspector with t he Department, conducted an unannounced routine

inspection of the Restaurant . Among other things, three

c ritical violations were not corrected from the routine

inspection of October 27, 2010. During the unannounced

inspection, Inspector Khatoon prepared a food inspection report,

setting forth, among other things, the alleged cr itical

violations. The unannou nced inspection repo rt was signed by

Inspector Khatoon and a representative of the Restaurant , and

Inspector Khatoon provided the representative with a copy of the

inspection report . Inspector Khatoon made the representative

aware of the alleged violation s and that an administrative

complaint would be recommended .

8 . The most serious alleged critical violation , which had

been found on October 27, 2010 , and was not corrected by

June 16, 2011 , was raw animal food was stored over ready - to - eat

food -- raw eggs were being stored over yogurt -- in the reach - in

cooler . This violation is critical because the ready - to - eat

food (yogurt) has already been cooked and gone through the

process of pathogenic destruction and will no t go through that

process again; whereas, th e raw animal food (eggs) has not been

cooked and not gone through the process of pathogenic

destruction. C ross - c ontamination could occur from the raw

animal food by dripping onto or touching of the ready - to - eat

food , and any pathogens present on the ready - to - eat food, as a

result of the cross - contamination , would pass - on to consumers

when the ready - to - eat food is served . Mr. Rocchio ' s testimony

that eggs are stored on the bottom of the refrigerator (reach - in

cooler) is found to be credible; however, most importantly, the

evidence fails to show that, on the day of the inspection, eggs

were stored on the bottom of the refrigerator .

9 . The next most serious alleged critical violation , which

had been found on October 27, 2010, and was not corrected by

June 16 , 2011, was the hand wash sink in the kitchen was not

accessible for employee use at all times . A garbage can was

placed in front of the hand wash sink in the kitchen, making the

sink inaccessible to employees at all times to wash their hands .

Even thoug h Mr. Rochhio testi fied, and his testimony is found to

be credible, that the garbage can was " not a large garbage c an, "

the evidence fails to show , most importantly, that the garbage

can did not cause the hand wash sink to be inaccessible to the

employees at all times. This violation is a critical violation

because the hands of employees become contaminated as employees

work and, if the handwash sink is not accessible , the employees

will be discouraged from washing their hands .

10. The next most serious a lleged critical violation ,

which had been found on October 27, 2010, and was not corrected

by June 16, 2011, was ha ndwashing cleanser was lacking at the

hand washing lavatory in the kitchen . This violation is a

critical violation because hands are a vehic le of contamination ,

and the use of soap by employees , when washing their hands ,

removes bacteria and viruses that can contaminate the employees '

hands.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the subject matte r of this proceeding and t he

parties thereto pursuant to s ections 120.569 and 1 20.57(1),

Florida Statutes (2012 ).

12 . The Department has the burden of proof to show by

clear and convincin g evidence that the Restaurant committed the

offense s set forth in t he Administrative Complaint. Dep ' t of

Banking & Fin. , Div. of Sec . & Investor Prot . v. Osborne Stern &

Co . , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987).

13 . Section 509.032, F lorida Statutes (2010 ), 1 provides in

pertinent part:

(1) GENERAL. -- The division [Division of

Hotels and Restaurants of the Department of

Business and Professional Regulation] shall

carry out all of the provisions of this

chapter and all other applicable laws and

rules relating to the inspection or

r egulation of public lodging establishments

and public food service establishments for

the purpose of safeguarding the publ ic

health, safety, and welfare . . . .

(2) INSPECTION OF PREMISES.

(a) The division has responsibility and

jurisdiction for all in spections required by

this chapter. The division has

respo nsibility for quality assurance . . . .

(b) For purposes of performing required

inspections and the enforcement of this

chapter, the division has the right of entry

and access to public lodging e stablishments

and public food 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) The 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 obtaining, storing, preparing,

processing, serving, or displaying food in

public food service establishments . . .

conducting necessary public food service

establishment inspections for compliance

with sanitation regulations . . . and

initiating enforcement actions, and for

other such responsibilities deemed necessary

by the division . . . .

* * *

(3) SANITARY STANDARDS; EMERGENCIES;

TEMPORARY FOOD SERVICE EVENTS. -- The

division shall:

(a) Prescribe sanitary standards which

sha ll be enforced in public food service

establishments.

* * *

(6) RULEMAKING AUTHORITY. -- The division

shall adopt such rules as are necessary to

carry out the provisions of this chapter.

14 . Florida Administrative Code Rule 61C - 1.001 provides in

pe rtinent part:

Except when otherwise defined in this rule,

the definitions provided in paragraph

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 2 3,

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 is 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 Administrat ion

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. A copy of the Food Code, as

adopted by the division, is available on the

division ' s Internet 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, 5285 Port

Royal Road, Springfield, VA 22161.

15. Food Code Rule 3 - 302.11 provides in pertinent part:

(A) Food shall be protected from cross

contamination by:

(1) Separating raw animal foods during

storage, preparation, holding, and display

from:

(a) Raw ready - to - eat food including other

raw animal food such as fish for sushi or

molluscan shellfish , or other raw ready - to -

eat food such as vegetables, and

(b) Cooke d ready - to - eat food . . . .

16. The evidence is clear and convincing and demonstrates

that the Restaura nt violated r ule 3 - 302.11(A)(1) in that t he raw

animal food (the eggs) was stored over the ready - to - eat food

(the yogurt) . Furthermore, the evidence is clear and convincing

and de monstrates that the violation wa s a critical violation.

17. Food Code Rule 5 - 205.11 provides in pertinent part:

(A) A handwashing facility shall be

maintained so that it is accessible at all

times for employee use.

18 . The evidence is clear and convincing and demonstrates

that the Rest aurant violated r ule 5 - 205.11(A) in that a garbage

can blocked employees ' access to the handwashing sink in the

kitchen . Furthermore, the evidence is clear and convincing and

de monstrates that the violation wa s a critical violation.

19 . Food Code Rule 6 - 301.11 provides :

Each handwashing lavatory or group of 2

adjacent lavatories shall be provided with a

supply of hand cleansing liquid, powder, or

bar soap.

20 . The evidence is clear and convi ncing and demonstrates

that the Restaurant violated rule 6 - 301.11 in that no

handwashing cleanser (liquid, powder, or soap) was provided at

the handwash sink in the kitchen . Furthermore, the evidence is

clear and convincing and demonstrates that the viola tion was a

critical violation.

21 . As to penalty, s ection 509.261 , Florida Statutes ,

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 t he rules of the division,

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 pro gram sponsored

by the Hospitality Education Program; and

(c) The suspension, revocation, or refusal

of a license issued pursuant to this

chapter.

22 . Florida Administrative Code Rule 61C - 1.005 provides in

pertinent part:

(1) This rule sets out the dis ciplinary

guidelines for imposing penalties upon

public lodging establishments and public

food service establishments under the

jurisdiction of the Division of Hotels and

Restaurants (division) in administrative

actions. The purpose of this rule is to

not ify licensees of the standard range of

penalties routinely imposed unless the

division finds it necessary to deviate from

the standard penalties for the reasons

stated within this rule.

* * *

(5) Definitions.

(a) " Critical violation " means a viola tion

determined by the division to pose a

significant threat to the public health,

safety, 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.

* * *

(c) " First offense " means a violation of

any law subject to penalty under Chapte r

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.

* * *

(6) Standard penalties. This section

spec ifies 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

authorized 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

continuing until the violation is corrected.

1. 1st offense - Administrative fine of

$250 to $500.

* * *

(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 o r mitigating

factors present in a specific case. The

division 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 public.

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 t he licensee

within the 60 months preceding 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 division within

the 12 months precedin g the date the current

administrative 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

violatio n 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 facto rs, as

relevant under the circumstances.

(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 th e

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 month s preceding the date the

current administrative complaint was issued.

8. Any other mitigating factors, as

relevant under the circumstances.

23 . The Department suggests an administrative fine in the

amount of $250.00 per critical violation, totaling $750 .00. The

undersigned considers the suggested administrative fine

reasonable under the circumstances of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professi onal Regulation, Division of Hotels and Restaurants,

enter a fin al order :

1. Finding t hat Valentinos Cucina Italiana violated

section 509, Florida S tatutes, through a violation of Food Code

Rule s 3 - 302.11(A)(1), 5 - 205.11(A), and 6 - 301.11 ; and

2. I mposing an administr ative fine in the amount of

$ 75 0 .00 ag ainst Valentinos Cucina Italiana .

DONE AND ENTERED this 2 5 th day of July, 2012 , in

Tallahassee, Leon County, Florida.

S

__________________________________

ERROL H. POWELL

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 2 5 th day of July, 20 12 .

ENDNOTE

1/ All future references to Flori da Statutes will be for 2010.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Blair N. Bodenmiller , Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street , Su ite 42

Tallahassee, Florida 32399 - 2202

Giovanni Rocchio

Valentinos Cucina Italiana

1145 South Federal Highway

Fort Lauderdale , Florida 33316

William L. Veach , Director

Division of Hotels and Restaurants

Department of Business and

Professional Re gulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

J. Layne Smith , General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, 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 that

will issue the final order in this c ase.