12-002748 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Island Way Caf?
 Status: Closed
Recommended Order on Tuesday, November 27, 2012.


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Summary: Failure to maintain proper food temperature warrants fine.

1Case Nos. 12-2627

412-2748

5STATE OF FLORIDA

8DIVISION OF ADMINISTRATIVE HEARINGS

12DEPARTMENT OF BUSINESS AND )

17PROFESSIONAL REGULATION, RECOMMENDED ORDER )

22DIVISION OF HOTELS AND )

27RESTAURANTS, )

29Petitioner, )

31)

32vs. )

34)

35ISLAND WAY CAFE, )

39)

40Respondent. )

42)

43)

44On September 24, 2012, an administrative hearing in these

53cases was held by video teleconference in St. Petersburg and

63Tallahassee, Florida, before William F. Quattlebaum,

69Administrative Law Judge, Division of Administrative Hearings

76(DOAH).

77APPEARANCES

78For Petitioner: Charles F. Tunnicliff, Esquire

84Department of Business and

88Professional Regulation

90Suite 42

921940 North Monroe Street

96Tallahassee, Florida 32399

99For Respondent: Mark Anthony Suarez, pro se

106Island Way Cafe

109288 Windward Passage

112Clearwater, Florida 33767

115STATEMENT OF THE ISSUES

119After the hearing had concluded, the Petitioner filed a

128Notice of Voluntary Dismissal in DOAH Case No. 12-2627.

137Accordingly, the remaining issues for consideration are whether

145the allegations of the Administrative Complaint filed in DOAH

154Case No. 12-2748 are correct, and, if so, what penalty should be

166imposed.

167PRELIMINARY STATEMENT

169By an Administrative Complaint dated May 15, 2012, the

178Department of Business and Professional Regulation, Division of

186Hotels and Restaurants (Petitioner), alleged that Island Way Cafe

195(Respondent), a restaurant owned and operated by Mark Anthony

204Suarez, was in violation of certain Food Code regulations. The

214Respondent filed an Election of Rights form, indicating that

223there was no dispute regarding the allegations of the complaint

233and that an informal hearing was requested to submit mitigating

243evidence.

244On August 15, 2012, the Petitioner forwarded the dispute to

254DOAH, advising that subsequent to the Respondent's filing of the

264Election of Rights form, the Respondent expressed a preference

273for a formal DOAH hearing. DOAH scheduled and conducted the

283formal hearing.

285At the hearing, the Petitioner presented the testimony of

294one witness and had Exhibits 1 through 3 and 5 through 7 admitted

307into evidence. Mr. Suarez testified on behalf of the Respondent.

317The Transcript of the hearing was filed on October 15, 2012.

328The Petitioner filed a Proposed Recommended Order that has been

338considered in the preparation of this Recommended Order.

346FINDINGS OF FACT

3491. The Petitioner is the state agency charged with

358regulation of restaurants pursuant to chapter 509, Florida

366Statutes (2012).

3682. At all times material to this case, the Respondent was

379a restaurant operating at 288 Windward Passage, Clearwater,

387Florida 33767.

3893. The Food Code identifies proper food storage

397temperatures for potentially-hazardous food products. The

403storage of such products at improper temperatures can result in

413bacterial contamination of the product and can cause serious

422illness in humans who consume contaminated products.

4294. Violations of food temperature regulations that present

437an immediate threat to public safety are deemed to be "critical"

448violations of the Food Code.

4535. At the hearing, Mr. Suarez acknowledged that the

462Respondent had been disciplined by the Petitioner for food

471temperatures in excess of those permitted by relevant Food Code

481regulations and that he had paid an administrative fine pursuant

491to a previous Final Order.

4966. On May 9, 2012, Christine Craig, a trained sanitation

506safety specialist employed by the Petitioner, performed a

"514callback" inspection at the Respondent. The violations

521referenced herein were identified by Ms. Craig as critical.

5307. The relevant portion of the Food Code requires that

540certain products be stored at temperatures of 41 degrees

549Fahrenheit or less. Previous inspections at the Respondent

557revealed that holding temperatures of some food products stored

566in a reach-in cooler and in a two-door glass upright cooler did

578not comply with the Food Code requirements.

5858. The purpose of the May 9, 2012, callback inspection was

596to determine whether food temperature violations indentified in

604the previous routine inspections had been resolved.

6119. During the callback inspection, Ms. Craig found that

620ham, chicken broth, and cream cheese were being held in the

631referenced coolers at temperatures in excess of 41 degrees

640Fahrenheit, which were critical violations of the Food Code.

64910. The Respondent did not dispute Ms. Craig's testimony or

659the results of her inspection.

664CONCLUSIONS OF LAW

66711. The Division of Administrative Hearings has

674jurisdiction over the parties to and the subject matter of this

685proceeding. §§ 120.569 and 120.57, Fla. Stat. (2012).

69312. The Petitioner is the state agency charged with the

703regulation of food service establishments in the State of

712Florida. See ch. 509, Florida Statutes (2012). The Petitioner

721has adopted by incorporation the various provisions of the Food

731Code referenced herein. See Fla. Admin. Code R. 61C-4.010(1).

74013. The Petitioner has the burden of proving by clear and

751convincing evidence the allegations set forth in the

759Administrative Complaint against the Respondent. Dep't of

766Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

7791996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). The

790burden has been met.

79414. The Administrative Complaint charged the Respondent

801with a violation of Food Code Rule 3-501.16(A)(2), which requires

811that, except in limited circumstances not applicable to this

820case, potentially-hazardous food must be maintained at

827temperatures of 41 degrees Fahrenheit or less. The evidence

836established that the Respondent failed to maintain potentially

844hazardous foods at a temperature of 41 degrees Fahrenheit or less

855as required by the Food Code.

86115. Section 509.261(1), Florida Statutes (2011), provides

868that a food service establishment operating in violation of

877applicable statutes or rules may be fined in an amount not to

889exceed $1,000 per offense. In addition, such offenses may be

900disciplined by mandatory attendance at an educational program

908sponsored by the Hospitality Education Program, or by suspension,

917revocation, or refusal of a license.

92316. Florida Administrative Code Rule 61C-1.005(6)(b)2.

929identifies the appropriate administrative fine applicable in this

937case as ranging from $500 to $1,000.

945RECOMMENDATION

946Based on the foregoing Findings of Fact and Conclusions of

956Law, it is RECOMMENDED that the Department of Business and

966Professional Regulation, Division of Hotels and Restaurants,

973enter a final order imposing a fine of $750 against the

984Respondent and requiring that the Respondent complete an

992appropriate educational program related to the violation

999identified herein.

1001DONE AND ENTERED this 27th day of November, 2012, in

1011Tallahassee, Leon County, Florida.

1015S

1016WILLIAM F. QUATTLEBAUM

1019Administrative Law Judge

1022Division of Administrative Hearings

1026The DeSoto Building

10291230 Apalachee Parkway

1032Tallahassee, Florida 32399-3060

1035(850) 488-9675

1037Fax Filing (850) 921-6847

1041www.doah.state.fl.us

1042Filed with the Clerk of the

1048Division of Administrative Hearings

1052this 27th day of November, 2012.

1058COPIES FURNISHED: Mark Anthony Suarez

1063Island Way Cafe

1066288 Windward Passage

1069Clearwater, Florida 33767

1072Charles F. Tunnicliff, Esquire

1076Department of Business and

1080Professional Regulation

1082Suite 42

10841940 North Monroe Street

1088Tallahassee, Florida 32399

1091J. Layne Smith, General Counsel

1096Department of Business and

1100Professional Regulation

1102Northwood Centre

11041940 North Monroe Street

1108Tallahassee, Florida 32399-0792

1111William L. Veach, Director

1115Division of Hotels and Restaurants

1120Department of Business and

1124Professional Regulation

1126Northwood Centre

11281940 North Monroe Street

1132Tallahassee, Florida 32399-0792

1135NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1141All parties have the right to submit written exceptions within

115115 days from the date of this Recommended Order. Any exceptions

1162to this Recommended Order should be filed with the agency that

1173will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/18/2012
Proceedings: Agency Final Order
PDF:
Date: 12/18/2012
Proceedings: Agency Final Order filed.
PDF:
Date: 11/27/2012
Proceedings: Recommended Order
PDF:
Date: 11/27/2012
Proceedings: Recommended Order (hearing held September 24, 2012). CASE CLOSED.
PDF:
Date: 11/27/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/25/2012
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 10/15/2012
Proceedings: Transcript (not available for viewing) filed.
PDF:
Date: 09/24/2012
Proceedings: Motion to Restyle Cause filed.
PDF:
Date: 09/24/2012
Proceedings: Notice of Voluntary Dismissal filed.
Date: 09/24/2012
Proceedings: CASE STATUS: Hearing Held.
Date: 09/14/2012
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 09/12/2012
Proceedings: Transmittal Letter (filed in Case No. 12-002748).
PDF:
Date: 09/12/2012
Proceedings: Petitioner's (Proposed) Exhibit List (filed in Case No. 12-002748).
PDF:
Date: 09/12/2012
Proceedings: Petitioner's Witness List (filed in Case No. 12-002748).
PDF:
Date: 08/20/2012
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/20/2012
Proceedings: Notice of Hearing by Video Teleconference (hearing set for September 24, 2012; 9:30 a.m.; St. Petersburg and Tallahassee, FL).
PDF:
Date: 08/20/2012
Proceedings: Order of Consolidation (DOAH Case Nos. 12-2627 and 12-2748).
PDF:
Date: 08/15/2012
Proceedings: Initial Order.
PDF:
Date: 08/15/2012
Proceedings: Petitioner's Motion to Consolidate filed.
PDF:
Date: 08/15/2012
Proceedings: Agency referral filed.
PDF:
Date: 08/15/2012
Proceedings: Election of Rights filed.
PDF:
Date: 08/15/2012
Proceedings: Administrative Complaint filed.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
08/15/2012
Date Assignment:
08/15/2012
Last Docket Entry:
12/18/2012
Location:
St. Petersburg, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (3):

Related Florida Rule(s) (1):