13-000446 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Carina's Stone Fired Pizza-Gelato Status: Closed Recommended Order on Monday, May 13, 2013.

Summary: Clear and convincing evidence that Respondent committed five critical violations, as well as one non-critical violation. In light of Respondent's lack of disciplinary history, mitigated total fine of $1,100 is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 1 3 - 0 446

)

CARINA'S STONE FIRED PIZZA - )

GELATO, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Edward T.

Bauer for final hearing by video teleconference on April 12 ,

2013 , a t sites in Tallahassee and Lauderdale Lakes , Florida.

A PPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Sara C. Hassler, Qualified Representative

Department of Business and

Professional Regulation

1 9 40 North Monroe Street , Suite 42

Tallahassee, Florida 32399 - 2202

For Responde nt: Ronald Schwarby, pro se

4743 North Ocean Drive

Sea Ranch Lakes, Florida 33308

STATEMENT OF THE ISSUES

T he issue s in this disciplinary proceeding arise from

Petitioner's allegation that Respondent, a licensed restaurant ,

violated several ru les and a statutory provision governing food

service establishments . If Petitioner proves one or more of the

alleged violations, then it will be necessary to consider

whether penalties should be imposed on Respondent.

PRELIMINARY STATEMENT

On September 1 7, 2012 , Petitioner Department of Business

and Professional Regulation, Division of Hotels and Restaurants

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

("Complaint") against Respondent Carina's Stone Fired Pizza -

Gelato , charging the licens ed restaurant with various offenses

rel ating to noncompliance with the rules governing food service

establishments. Respondent timely requested a formal hearing to

contest the allegations, and , on January 31 , 20 1 3 , the matter

was referred to the Division of Administrative Hearings.

During the final hearing, the Division presented the

testimony of Jens Rammelmeier and introduced three exh ibits,

numbered one through three . Pursuant to the Division's request,

the undersign ed took official recognition 1/ of various provisions

of the Florida Statutes, the Florida Administrative Code, and

the Food Code . 2/ The owner of the licensed establishment, Ronald

Schwarby, testified on behalf of Respondent.

The T ranscript of the final hearing was filed on April 29 ,

2013 . The Division timely submitted a Proposed Recommended

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 2012 edition .

FINDINGS OF FACT

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 oper ating at 4743 North Ocean Drive , Sea Ranch Lakes,

Florida, and holding fo o d service license number 1621866 .

3 . On June 18, 2012, and August 20, 2012 , Re spondent was

inspected by Jens Rammelmeier , a senior sanitation and safety

specialist employed by the D ivision. During both visit s,

Mr. Rammelmeier noticed multiple items that were not in

compliance with the laws which govern the facilities and

operations of licensed restaurants .

4 . Th r ough the testimony of Mr. Rammelmei e r and the

exhibits introduced into evidence duri ng the final hearing, the

Division presented clear and convincing ev idence that , as of

August 20 , 2012 , the following deficiencies subsisted at

Respondent Carina's Stone Fired Pizza - Gelato : (1) ready - to - eat,

potentially hazardous food was he ld for more than 24 hours with

no date marking, in violation of Food Code Rule 3 - 501.17(B);

(2) an employee made bare - hand contact with ready - to - eat foods

without a written alternative operating procedure in effect,

contrary to Food Code Rule 3 - 301.11(B); (3) a food handler came

into contact with soiled equipment and thereafter engaged in

food preparation without washing his hands, in violation of Food

Code Rule 2 - 301.14; (4) an employee engaged in food preparation

without wearing a hair restraint, contrary to Food Code R ule 2 -

402.11; (5) an accumulation of dead roaches was observed under

several kitchen counters and a dishwasher, in violation of Food

Code Rule 6 - 501.112; and (6) no proof of required empl oyee

training, contrary to section 509.049.

5 . Each o f the foregoing deficiencies , with the exception

of the violation relating to the hair restraint, is considered a

critical violation by the Division. Critical food code

violations are those that, if uncorrected, present an immediate

threat to public safet y.

CONCLUSIONS OF LAW

6 . T he Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

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

7 . Section 509.261 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 l icense, 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, of a remedial educational program

administered by a food safety trai ning

program provider approved by the division,

as provided in s. 509.049; 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 offens e

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 defined the term "Food Code"

as follows:

Food Code -- This term as used in Chapter s

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 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 - 501.17(b) reads :

Except as provided in paragraphs (D) and (E)

of this section, refrigerated, ready - to - eat,

potentially hazardous food prepared and

packaged by a food processing plant shall be

clearly marked, at the time the original

container is opened in a food establishment

and if the food is held for more than

24 hours, to indicate the date or day by

which the food shall be consumed on the

premises, sold, or discarded, based on the

temperature and time comb inations specified

in paragraph (A) of this section; and:

(1) The day the original container is opened

in the food establishment shall be counted

as day 1; and (2) The day or date marked by

the food establishment may not exceed a

manufacturer's use - by da te if the

manufacturer determined the use - by date

based on food safety.

1 0 . Food Code Rule 3 - 301.11(B) provides :

Except when washing fruits and vegetables

specified under section 3 - 302.15 or when

otherwise approved, food employees may not

contact exposed , ready to eat food with

their bare hands and shall use suitable

utensils such as deli tissue, spatulas,

tongs, single use gloves, or dispensing

equipment.

1 1 . Food Code Rule 2 - 301.14 reads :

When to wash. Food employees shall clean

their hands and ex posed portions of their

arms as specified under section 2 - 301.12

immediately before engaging in food

preparation including working with exposed

food, clean equipment and utensils, and

unwrapped single - service and single - use

articles and: (A) After touchin g bare human

body parts other than clean hands and clean,

exposed portions of arms; (b) After using

the toilet room; (C) After caring for or

handling service animals or aquatic animals

as specified in paragraph 2 - 403.11(B);

(D) Except as specified in parag raph 2 -

401.11(B), after coughing, sneezing, using a

handkerchief or disposable tissue , using

tobacco, eating , or drinking; (E) After

handling soiled equipment or utensils;

(F) During food preparation, as often as

necessary to remove soil and contamination

and to prevent cross contamination when

changing tasks; (G) When switching between

working with raw food and working with

ready - to - eat food; (H) Before donning gloves

for working with food; and (I) After

engaging in other activiti es that

contaminate the ha nds.

1 2 . Food Code Rule 2 - 402.11 provides, in relevant part :

Effectiveness. (A) Except as provided in

paragraph (B) of this section, food

employees shall wear hair restraints such as

hats, hair coverings or nets, beard

restraints, and clothing that cove rs body

hair, that are designed and worn to

effectively keep their hair from contacting

exposed food; clean equipment, utensils, and

linens; and unwrapped single - services and

sing - use articles.

(B) This section does not apply to food

employees such as co unter staff . . . .

13. Food Code Rule 6 - 501.112 reads:

Removing dead or trapped birds, insects,

rodents, and other pests. Dead or trapped

birds, insects, rodents, and other pests

shall be removed from control devices and

the premises at a frequency th at prevents

their accumulation, decomposition, or the

attraction of pests.

14. Section 509.049 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 fo r 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 se rvice employees of the

public food service establishment. The

public food service establishment may

designate any certified 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 added).

1 5 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional license 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 disciplin e,

the Division must prove the charges against Respondent by clear

and convincing evidence. Dep't of Banking & 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 (F la.

1987) ; Nair v. Dep't of Bus. & Prof'l Reg . , 654 So. 2d 205, 207

(Fla. 1st DCA 1995).

1 6 . Clear and convincing evidence:

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; th e testimony must be precise

and lacking in confusion as to the facts in

issue. The evidence must be of such a

weight 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 sough t 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)).

17 . 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 - 501.17(B), as charged in Count One of the Complaint;

Food Code Rule 3 - 301.11(B), as alleged in Count Two; Food Code

Rule 2 - 301.14, as alleged in Count Three; Food Code Rule 2 -

402.11, as charged in Count Four; Food Code Rule 6 - 501.112, as

alleged in Count Five; and section 509.049. In making these

determinations, the undersigned concludes that " the plain

language of the applicab le . . . rules , being clear and

unambiguous, [can] be appl ied 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. Caf eteria, Inc. , Case No.

05 - 2733 ( Fla. DOAH Nov. 2, 2005 ; Fla. DBPR Dec. 13, 2005). It

is therefore unnecessary to make additional legal conclusions

concerning the se violations . I d.

18 . In determining the appropriate punitive action to

recommend in th is cas e, it is necessary to consult the

Division's penalty guidelines. As the instant matter involves a

first offense, Florida Administrative Code Rule 6 1C - 1.005(6) (b)

provides for a fine ran ging from $250 to $500 for each of the

five critical violations committed by Respondent. With respect

to the lone non - critical violation, the guidelines ca ll for a

fine of $150 to $300.

19. Rule 61C - 1.005(7) provides that, in applying the

p enalty guidelines, various aggravating and mitigating

circumstances may be c onsidered, such as the licensee's

disciplinary history -- or lack thereof -- within the preceding

60 months. See Fla. Admin. Code R. 61C - 1.005(7)(a)5 . & (7)(b)7.

In light of the absence of any disciplinary history on the part

of Respondent, the undersigned r ecommends mitigated fines of

$200 for each of the five critical violations, as well as a

reduced fine of $100 for the non - critical violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Div ision 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

am ount of $1100 , to be paid within 30 days after the filing of

the final order with the agency clerk .

DONE AND ENTERED this 13 th day of May , 2 013 , in

Tallahassee, Leon County, Florida.

S

Edward T. Bauer

Administrative Law Judge

Division of Ad ministrative 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 13 th day of May, 2013 .

ENDNOTE S

1/ Specifically, the undersigned has taken official recognition

of sections 509.032 and 509.049, Florida Statutes; Florida

Administrative Code Rules 61C - 1.001 and 61C - 1.005; and Food Code

Rules 2 - 301.14, 2 - 402.11, 3 - 301.11, 3 - 501.17, and 6 - 501 .112.

2/ 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).

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

S ara C. Hassler, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Ronald Schwarby

4743 North Ocean Drive

Sea Ranch Lakes, Florida 33308

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

19 40 North Monroe Street

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 f iled with the agency that

will issue the Final Order in this case.