13-000807 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. El Crazy Pollo Latin Grill Status: Closed Recommended Order on Tuesday, May 21, 2013.

Summary: Restaurant violated the food code by failing to control roach infestation; and fined $1,000.00 as a repeat offender.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0807

)

EL CRAZY POLLO LATIN GRILL , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on

April 16, 2013 , by video - teleconference at sites in Tallahassee

and Orlando, Florida , before Thomas P. Crapps, a designated

Administrative La w Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Suite 42

1 940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Elena B. Hidalgo

El Crazy Pollo Latin Grill

5756 Dahlia Drive

Orlando, Florida 32807

STATEMENT OF THE ISSUE S

Whethe r Respondent violated the Food Code by failing to

control pests; and , if so, the appropriate penalty.

PRELIMINARY STATEMENT

On November 27, 2012, the Florida Department of Business and

Professional Regulation, Division of Hotels and Restaurants

(Departm ent) , issued an Administrative Complaint charging

Respondent, El Crazy Pollo Latin Grill (Restaurant), with

violating chapter 509, Florida Statutes (2012) 1 / and the

applicable rules governing the operation of restaurants.

Specifically, the Administrative Complaint alleged that the

Restaurant failed to control pests based on an inspection finding

"evidence of roach infestation inside the facility."

On January 22, 2013, Elena Hidalgo (Ms. Hidalgo), as the

Restaurant's owner , filed a request for an administra tive

hearing. On March 7, 2013, the Department transmitted the case

to DOAH for a final hearing. The undersigned was assigned the

case, and set the case for final hearing on April 16, 2013.

At the final hearing, the Department presented the testimony

o f Wilberto Goris, a sanitation and safety specialist, Valerie

Freeman, a district manager for the Department, and introduced

three exhibits into evidence. The u ndersigned took official

recognition of section 509.032(6); Florida Administrative Code

r ules 6 1C - 1.001(14) and 61C - 1.005 ; and Food Code rule 6 - 501.111.

The Restaurant failed to appear at the final hearing. A one -

volume T ranscript was filed on May 10 , 2013, and the Department

submitted a proposed recommended order. Respondent failed to file

a prop osed recommended order.

FINDING S OF FACT

1. The Department is the state agency charged with the

licensing and regulation of restaurants. § § 590.01, et seq. ,

Fla. Stat.; and Fla. Admin. Code 61C - 4 .

2. The Restaurant is a licensed public food service

es tablishment located at 5756 Dahl ia Drive, Orlando, Florida , and

holds state food service license number 58 - 12588.

3. Mr. Goris is a sanitation and safety specialist for the

Department, and has worked for the Department for the past eight

years. Mr. Go ris' experience includes working for the U.S. Army

as a food safety inspector for eight years. Further, Mr. Goris

received the Department's standardized training on the laws and

rules governing public food service establishments. Finally, he

is a certifi ed food manager and obtains monthly in - house training

from the Department concerning his job duties.

4. On November 15, 2012, Mr. Goris performed a routine

inspection of the Restaurant starting at 8:49 a.m. At the time

of the inspection, the Restaurant was fully operational and open

for business. Mr. Goris observed live roach es at the Restaur ant

throughout the food preparation area, including over the three -

compartment sink, and in the cracks and crevices of the wood

table. He also observed dead roach es in the food preparation

room inside the hand sink, behind equipment, and on the table

where utensils for the oven were stored.

5. Critical violations are those violations that, if

uncorrected, are most likely to contribute to contamination,

illness , or environmental health hazards. Insects and other

pests are capable of transmitting diseases to humans by

contaminating the food or food contact surfaces, and this roach

infestation was identified by Mr. Goris as a "critical"

violation.

6. Edwin Orti z, the Restaurant's manager, was present with

Mr. Goris as he conducted the inspection. At the conclusion of

the inspection, Mr. Goris recorded the observed violations in an

inspection report which he printed out, and Mr. Ortiz signed the

inspection repor t.

7. In addition to the roach infestation, the Restaurant was

cited for additional violations which are detailed in Mr. Goris'

inspection report.

8. The Department introduced into evidence a certified copy

of the Department's records concerning a past a dministrative

sanction involving the Restaurant. Specifically, the

Department's evidence showed that on October 11, 2011, the

Restaurant was charged with violating rule 6 - 501.111 of the Food

Code for its failure to control pests, and that the Restaurant

f ailed to challenge the allegations. Consequently, the

Department's records show that on January 3, 2012, the Department

fined Respondent $400.00 for the violation.

9. Based on the Restaurant's prior disciplinary history and

the health danger involved, th e Department closed the Restaurant.

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over the parties and subject

matter of this proceeding. § § 120.57(1) and 120.569, Fla. Stat.

11. The Department is the state agency charged with

regulating public food se rvice establishments pursuant to

section 20.165 and chapter 509, Florida Statutes. As part of its

duties, the Department licenses and inspects restaurants located

in the State. § 509.032, Fla. Stat .

12. Section 509.032(6) provides the Department with the

authority to adopt rules necessary to carry out the provisions of

chapter 509. T he Department has incorporated portions of federal

regulations and guidelines into the Food Code of Florida.

Fla. Admin. Code R 61C - 1.001(14). 2 / The Department has ado pted

the Food Code of the United States Department of Health and Human

Services 2001 as a guideline for inspection of public food

establishments. Id.

13. Rule 6 - 501.111, Food Code, specifically addresses

"Controlling Pests," and provides that:

The pres ence 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 the premises for

evidence of pests;

(C) Using meth ods, 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.

14. The Department has the burden of proof to show by clear

and convinci ng evidence 3 / that Respondent violated the Food Code

as alleged in the Administrative Complaint. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Moreover, it is clear

that di sciplinary actions may be based only on the offenses

charged in the Administra tive Complaint. See Cottrill v. Dep't

of Ins. , 685 So. 2d 1371 (Fla. 1st DCA 1996). A penal statute is

strictly construed against the charging agency. Hotel & Rest.

Comm'n v. Sunny Seas No. One , 104 So. 2d 570, 571 (Fla . 1958).

15. The Department met its burden of showing by clear and

convincing evidence that the Restaurant contained pests and, th us,

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

inspection, the Restaurant had an active roach infestation,

which, if uncorrected, could have led to food contamination.

16. In determining the appropriate penalty, the Department

has set out disciplinary guidelines in Florida Administrative

Code Rule 61C - 1.005 . 4 / Rule 61C - 1.005 creates different

categories of violations, as well as aggravating and mitigating

factors that the Department considers in fashioning an

appropriate penalty.

17. Applying rule 61C - 1 . 005 to the facts in the instant

case, the undersigned finds that the appropriate penalty is a

$1,000.00 fine. 5 /

18. The Department proved th at the Restaurant's violation

is a critical violation as defined by rule 61C - 1.005(5)(a).

Further, the Department introduced evidence showing that the

current violation is the Restaurant's second offense within 24

months preceding the Administrative Compl aint in this case. See

Fla. Admin. Code R . 61C - 1.005(5)(d). Under rule 61C - 1.005(6)(b),

the standard penalty is an administrative fine of $500 .00 to

$1 , 000 .00 for each day or portion of the day that the violation

exists. The evidence here showed that th e violation occurred on

November 15, 2012, and that the Department closed the restaurant.

19. There was no evidence showing any aggravating or

mitigating factors for deviating from the standard penalty set out

in rule 61C - 1.005(6)(b). Fla. Admin. Code R. 61C - 1.005(7).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Hotels and Restaurants ,

enter a final order findin g that Responden t violated

r ule 6 - 501.111, Food Code by failing to control its roach

infestation, and that the Restaurant be fined $1 , 000 .00 based on

its prior disciplinary history .

DONE AND ENTERED this 21st day of May , 2013 , in Tallahassee,

Leon County, Florida.

S

THOMAS P. CRAPPS

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 wi th the Clerk of the

Division of Administrative Hearings

this 21st day of May , 2013 .

ENDNOTE S

1/ References to Florida Statutes shall be the 2012 version

unless otherwise indicated.

2/ Florida Administrative Code Rule 61C - 1.001(14) states in

certain p art:

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 Se rvice/Food

and Drug Administration including Annex 3:

Public Health Reasons/Administrative

Guidelines; Annex 5: HACCP Guidelines of the

Food Code; the 2001 Food Guide Errata Sheet

((August 23, 2002); and Supplement to the

2001 FDA Food Code (August 29, 200 3), herein

adopted by reference.

3/ 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; the evidence must be precise and

explicit and the witnesse s must be lacking in confusion as to the

facts of the issue. The evidence must be of such weight that it

produces in the mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the truth of the allegations

sought to be establishe d. " Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

4/ Florida Administrative Code Rule 61C - 1.005 , provides , in

pertinent part:

(1) This rule sets out the disciplinary

guidelines for imposing penalties upon . . .

public food service est ablishments under the

jurisdiction of the Division of Hotels and

Restaurants (division) in administrative

actions. The purpose of this rule is to

notify licensees of the standard range of

penalties routinely imposed unless the

division finds it necessary t o deviate from

the standard penalties for the reasons stated

within this rule.

(2) These disciplinary 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 s pecifically describe all possible

violations of law that may be committed by a

. . . public food service establishment and

that may be subject to penalty imposed by the

division.

(3) The division may impose penalties

against a . . . public food service

establishment for a specific violation not

included in the language of this rule. If a

specific violation is not included in the

language of this rule, the division shall

impose a penalty corresponding to the most

similar violation listed in this rule.

(4) These disciplinary guidelines do not

limit the division's authority to order

a . . . public 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 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 Inspe ction Report or DBPR

Form HR - 5022 - 015 Food Service Inspection

Report, incorporated by reference in

sub section 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

c ritical 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 O rder

involving the same licensee has 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.

(e) "Third and any sub sequent offense" means

a violation of any law subject to penalty

under Chapter 509, F.S., after two or more

disciplinary Final Orders involving the same

licensee have been filed with the Agency

Clerk within the 24 months preceding the date

the current admi nistrative 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 p enalty 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 d ay 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 .00 to $500 .00 .

2. 2nd offense -- Administrative fine of

$ 500 .00 to $1,000 .00 .

3. 3rd and any subsequent of fense --

Administrative fine of $ 750 .00 to $1,000 .00 ,

license suspension, or both.

* * *

(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

division shall consider the following

aggravating and mitigating factors in

determining the appropriate disciplinary

a ction 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 the licensee

within the 60 months preceding the date the

current administrative complaint was issued.

6. Number of Emergency Orders of Suspension

or Closure ag ainst the same licensee filed

with the Agency Clerk by the division within

the 12 months preceding 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

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 circumstances.

(b) Mitigating factors.

1. Violation resulted from an act of God or

nature.

2. Length of time since th e 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 C hapter 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 circumst ances.

5/ The Department in its Proposed Recommended Order

recommended the $1 , 000 .00 fine consistent with its

guidelines.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monr oe Street

Tallahassee, Florida 32399

Elena B. Hidalgo

El Crazy Pollo Latin Grill

5756 Dahlia Drive

Orlando, Florida 32807

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monr oe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.