14-004646 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Chef Creole Seafood, Inc., D/B/A Chef Creole Status: Closed Recommended Order on Monday, February 2, 2015.

Summary: Respondent's violations of food safety requirements of chapter 509, Florida Statutes, and implementing rules warrant administrative fines.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND

RESTAURANTS,

Petitioner,

vs. Case No. 14 - 4646

CHEF CREOLE SEAFOOD, INC., d/b/a

CHEF CREOLE,

Respondent.

_______________________ ________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on November 14, 2014, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Marc A. Drexler, Esquire

Jesse Dyer, Qualified Representative

Department of Business and

Professional Regulation

Division of Hotels and Restaurants

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2022

For Respondent: Wilkinson Sejour, pro se

Chef Creole

13125 West Dixie Highway

North Miami, Florida 33161

STATEMENT OF THE ISSUE

Whether Chef Creole Seafood, Inc., d/b/a Chef Creole

(Respondent), committed the offenses alleged in the

Administrative Comp laint dated August 5, 2014, and if so, the

penalties that shoul d be imposed.

PRELIMINARY STATEMENT

Respondent is a duly licensed restaurant. On August 5,

2014, the Department of Business and Professional Regulation,

Division of Hotels and Restaurants (Petitioner) filed an

Administrative Complaint against Responde nt that contained

factual allegations based on an inspection of RespondentÓs

facility on April 21, 2014, and a call - back inspection on

June 23, 2014. Based on those inspections, Petitioner charged

Respondent, in separately numbered paragraphs, with certa in

violations of the Food Code . 1/ On November 6, 2014, Petitioner

dismissed two of those alleged violations. The following alleged

violations were at issue during the formal hearing :

1. Respondent stored food on the f loor in

violation of Food Code r ul e 3 - 305.11(A)(3),

(B), and (C).

2. Respondent stored food under a dripping

water line in a walk - in co oler in violation

of Food Code r ule 3 - 305.12(G).

3. RespondentÓs employee did not change

single - use gloves after changing tasks in

violation of Foo d Code rule 3 - 304.15( A ).

4. RespondentÓs food managerÓs certification

had expired in violation of Florida

Administrative Code Rule 61C - 4.023(1).

5. Respondent had four or more employees

engaged in food preparation or handling

without having a certified food service

manager on duty in violation of Food Code

rule 61C - 4.023(1).

Respondent timely requested a formal administrative hearing

to challenge the allegations of the Administrative Complaint. On

October 6, 2014, the matter was referred to DOAH, and t his

proceeding followed.

At the formal hearing, Petitioner presented the testimony of

Shannon Bures (a s anitation and s afety s pecialist employed by

Petitioner) and offered five sequentially numbered exhibits, each

of which was admitted into evidence.

R espondent presented the testimony of Wilkinson Sejour, the

owner and president of Respondent. Respondent offered no

exhibits.

At the request of Petitioner, the undersigned took official

recognition of section 509.032(6), Florida Statutes; Florida

Admini strative Code Rules 61C - 1.001(14), 61C - 1.005,

and 61C - 4.023(1); and Food Code rules 3 - 304.15(A), 3 - 305.11(A),

(B), and (C), 3 - 305.12(G), and 5 - 501.16(A)(2).

A Transcript of the proceedings was filed on December 9,

2014. At the request of Respondent, the deadline for the filing

of proposed recommended orders was extended to January 8, 2015.

Petitioner and Respondent filed p roposed r ecommended o rders,

which have been duly - considered by the undersigned in the

preparation of this Recommended Order.

FIN DING S OF FACT

1. At all times relevant to this proceeding, Chef Creole

Seafood, Inc., d/b/a Chef Creole (Respondent) , was a restaurant

subject to the regulation of the Department of Business and

Professional Regulation, Division of Hotels and Restaurants

(Petitioner). RespondentÓs license number is 2330245.

Respondent is required to comply with all relevant provisions set

forth in chapter 509, Florida Statutes; Florida Administrative

Code C hapter 61C ; and the Food Code.

2. Respondent has multiple locati ons. RespondentÓs address

at issue in this proceeding is 200 N orth w est 54 th Street, Miami,

Florida 33127 (the subject premises).

3. At all times relevant to this proceeding, Wilkinson

Sejour was RespondentÓs owner and president .

4. Sharon Bures is emp loyed by Petitioner as a sanitation

and s afety s pecialist. Ms. Bures is properly trained to conduct

inspections of food service facilities to ensure compliance with

applicable regulations. Ms. Bures performed approximately 720

inspections during the fisc al year that preceded the formal

hearing.

5. O n April 21, 2014, beginning at 3:57 p.m., Ms. Bures

performed a routine inspection of the subject premises. As part

of the inspection, Ms. Bures prepared a Food Service Inspection

Report (PetitionerÓs Exhibi t 2) setting forth her findings.

Ms. Bures prepared this report utilizing an electronic device

while at the subject premises. Ms. Bures reviewed her findings

with Mr. Sejour, the person in charge of the subject premises,

and discussed with Mr. Sejour th e deficiencies identified on

PetitionerÓs Exhibit 2. Mr. Sejour signed PetitionerÓs

Exhibit 2.

6. PetitionerÓs Exhibit 2 reflects that the subject

premises was required to correct the noted defici encies, and

advised that a call back inspection would be conducted on or after

June 21, 2014.

7. PetitionerÓs Exhibit 2 identified each of the alleged

violations at issue in this proceeding.

8 . Ms. Bures performed the call back inspection of the

subject premises on June 23, 2014, beginning at approximately

2:55 p.m. Ms. Bures prepared a callback Report (PetitionerÓs

Exhibit 3) s etting forth her findings. Ms. Bures reviewed her

findings with Mr. Sejour and explained to him the reasons for the

deficiencies identified by PetitionerÓs Exhibit 3. Ms. BuresÓ

f indings included deficiencies that had been noted in the

inspection on April 21, 2014, but had not been corrected. The

uncorrected def iciencies found during the call back inspection

include the five alleged violations at issue in this proceeding.

9. Pet itioner has classified two of the alleged violations

as Ðbasic,Ñ two as Ðintermediate,Ñ and one as Ðhigh priority.Ñ

10. A Ðbasic itemÑ is, pursuant to rule 61C - 1.001(5), an

item defined in the Food Code as a ÐCore Item.Ñ Rule 61C -

1.005(5)(c) defines a basic violation as follows:

(c) ÐBasic violationÑ means a violation of a

basic item, as defined in Rule 61C - 1.001,

F.A.C., or a violation of Chapter 509, F.S.,

or Chapter 61C, F.A.C., which relates to

general sanitation, operational controls,

standard ope rating procedures, facilities or

structures, equipment design, or general

maintenance and not meeting the definition of

high priority violation or intermediate

violation and is not otherwise identified in

subsection (6) of this rule.

11. An Ðintermediat e itemÑ is, pursuant to rule 61C -

1.001(19), an item defined in the Food Code as a ÐPriority

Foundation Item.Ñ R ule 61C - 1.005(5)(b) defines an i nter mediate

violation as follows:

(b) ÐIntermediate violationÑ means a

violation of an intermediate item, as de fined

in Rule 61C - 1.001, F.A.C., or a violation of

Chapter 509, F.S., or Chapter 61C, F.A.C.,

which relates to specific actions, equipment

or procedures that contribute to the

occurrence of a high priority violation, but

does not meet the definition of hig h priority

violation or basic violation and is not

otherwise identified in subsection (6) of

this rule.

12. A Ðhigh priority itemÑ is, pursuant to rule 61C -

1.001(17), an item defined in the Food Code as a ÐPriority Item.Ñ

R ule 61C - 1.005(5)(a) defines a high priority violation as

follows:

(a) ÐHigh priority violationÑ means a

violation of a high priority item, as defined

in Rule 61C - 1.001, F.A.C., or a violation of

Chapter 509, F.S., or Chapter 61C, F.A.C.,

determined by the division to pose a direct

o r significant threat to the public health,

safety, or welfare and is not otherwise

identified in subsection (6) of this rule.

13. On both inspection dates, Ms. Bures observed a large

tub of seasoning, peppers and hot peppers stored on the kitchen

floor . Except for circumstances not applicable to this

proceeding, Food Code rule 3 - 305.11(A)(3) requires that food

shall be protected from contamination by storing the food at

least 15 cm (6 inches) above the floor. Petitioner proved by the

requisite evident iary standard that Respondent violated the cited

rule . 2/ The testimony of Ms. Bures established that this

violation is properly classified as a basic violation.

14. On both inspection dates, Ms. Bures observed water

dripping onto buckets containing raw p oultry in a walk - in cooler.

Sheets of plastic were used as lids to cover the buckets. On

both inspection dates, water was dripping on the plastic Ðlids.Ñ

Food Code r ule 3 - 305.12(G) prohibits the storage of food under a

leaking water line. Petitioner pr oved by the requisite

evidentiary standard that Respondent violated the cited rule . 3/

The testimony of Ms. Bures established that this violation is

properly classified as a basic violation.

15. On both inspection dates, Ms. Bures observed an

employee h andle peppers and onions after having handled raw

poultry without changing gloves. Food Code rule 1 - 201.10 defines

ready - to - eat food as food that is edible without additional

preparation to achieve food safety. Peppers and onions are

ready - to - eat food. Raw poultry is not ready - to - eat food. Food

Code r ule 3 - 304.15 prohibits the use of single - use gloves for the

working with ready - to - eat food after having worked with raw

poultry . Petitioner proved by the requisite evidentiary standard

that Respondent viol ated Food Code rule 3 - 304.15. The testimony

of Ms. Bures established that this violation is properly

classified as a high priority violation due to the danger of

contaminating ready - to - eat foo d. 4/

16. On both inspection dates, Ms. Bures observed that

Mr. SejourÓs food protection managerÓs certificate had expired.

Mr. SejourÓs certificate had been issued March 10, 2009 , and was

valid through March 10, 2014.

17. On both inspection dates, there were six or more

employees working at the subject premise s. Petitioner proved

that on both inspection dates, Respondent violated r ule 61C -

4.023(1) by failing to have a duly - licensed food protection

manager on duty while six or more employees were working. The

testimony of Ms. Bures established that this violat ion is

properly classified as an intermediate violation because of the

need for a certified food protection manager with up - to - date

knowledge of the rules and regulations dealing with food - borne

illnesses and other risk factors to be present to prevent

mis takes and to instruct employees as to proper food

temperatures, proper hygiene, and methods of prevention of food -

borne illnesses.

18. By ÐFinal Order on WaiverÑ entered by Petitioner on

May 7, 2013, Petitioner disciplined Respondent for certain

violat ions in an unrelated proceeding for having violated

r ule 61C - 4.023(1) by failing to have a duly - certified food

protection manager on duty while six or more employees were

working.

19. By ÐFinal Order on WaiverÑ entered by Petitioner on

April 30, 2014, Pe titioner disciplined Respondent for certain

violations in another unrelated proceeding for having violated

r ule 61C - 4.023(1) by failing to have a duly - certified food

protection manager on duty while six or more employees were

working.

CONCLUSIONS OF LAW

20 . DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes.

21. Petitioner has been statutor ily delegated the authority

to Ð carry out all of the provisions of [chap ter 509] and all

other laws relating to the inspection or regulation of . . .

public food service establishments for the purpose of

safeguarding the public health, safety, and welfare.Ñ § 509.032,

Fla. Stat.

22 . Section 509.261(1), Florida Statutes, pro vides that any

public food services establishment that has operated or is

operating in violation of chapter 509, or the rules promulgated

thereunder, is subject to license revocation; license suspension;

imposition of administrative fines not to exceed $1, 000.00 per

offense; and mandatory attendance, at personal expense, at an

educational program sponsored by the Hospitality Education

Program (established pursuant to section 509.302).

2 3 . Petitioner has the burden of proving by clear and

convincing evidenc e that Respondent committed the violations as

alleged and the appropriateness of any fine and penalty

resulting from the alleged violations. See Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v.

Dep't of Agric. & Consumer Servs. , 550 So. 2d 112 (Fla. 1st DCA

1989); and Inquiry Concerning a Judge , 645 So. 2d 398 (Fla.

1994).

24 . In Slomowitz v . Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the court held that:

Clear and convincing evidence requires that

the evidence must be fou nd to be credible:

the facts to which the witnesses testify must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

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 sought to be established.

2 5 . Petitioner proved by clear and convincing evidence that

Respond ent violated Food Code rule 3 - 3 05.11( A )( 3 ) as alleged in

the Administrative Complain t by storing food on the floor. This

is a basic violation.

2 6 . Petitioner proved by clear and convincing evidence that

Respondent violated Food Code rule 3 - 305.12 ( G) by storing food in

a walk - in cooler under dripping water as alleged in the

Administrativ e Complaint. This is a basic violation.

2 7 . Petitioner proved by clear and convincing evidence that

Respondent violated Food Code rule 3 - 304.15(A) by proving that an

employee failed to change gloves when handling ready - to - eat food

after having handled ra w poultry as alleged in the Administrative

Complaint. This is a high priority violation.

2 8 . The Administrative Complaint charges as a separate

violation that Ðfood manager certification expired.Ñ That

reference is to Mr. SejourÓs certification. Whil e Petitioner

proved that Mr. SejourÓs certification had expired, the gravamen

of the violation is that Respondent had no certified food

protection manager on duty while six or more employees were

working . Because there is no requirement that Mr. Sejour

ma intain his certification, no separate violation should be found

for Mr. SejourÓs failure to timely renew his certificate .

29 . Petitioner proved by clear and convincing evidence that

Respondent violated Florida Administrative Code R ule 61C - 4 . 0 2 3(1)

by fa iling to have a certified food protection manager on duty

while six or more employees were working as alleged in the

Administrative Complaint. This is an intermediate violation.

30 . Accordingly, disciplinary action may be taken against

Respondent pursu ant to section 509.261(1).

31 . R ule 6C - 1.005(5)(f ) contains the following definition

applicable to this proceeding.

(f) ÐThird and any subsequent offenseÑ means

a violation of any law subject to penalty

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

discip linary 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, even if the current violation is not

the same as the previous violation.

32 . Ba sed on the foregoing definition, and the two prior

final orders entered by Petitioner against Respondent on May 7,

2013 , and April 30, 2014, it is concluded that the penalties to

be assessed in this proceeding are third offenses.

3 3 . R ule 6C - 1.005(6) cont ains the following penalty

guidelines applicable to this proceeding.

(6) Standard penalties. This section

specifies the penalties routinely imposed

against licensees and applies to all

violations of law subject to a penalty under

Chapter 509, F.S.

(a ) Basic violation.

* * *

3. 3rd and any subsequent offense -

Administrative fine of $350 to $1000, license

suspension, or both.

(b) Intermediate violation.

* * *

3. 3rd offense Î Administrative fine of $550

to $1,000, lice nse suspension, or both.

(c) High priority violation.

* * *

3. 3rd and any subsequent offense Î

Administrative fine of $750 to $1,000,

license suspension, or both.

3 4 . In its Proposed Recommended Order, Petitioner proposes

a fine in th e amount of $400.00 for each of the two violations

classified as basic violations; a fine in the amount of $800.00

for the violation classified as high priority; and a fine in the

amount of $1,000.00 for the violation classified as intermediate.

Petitione rÓs recommendations are reasonable and within the

penalty guidelines.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

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

Professional Regulation, Division of Hot els and Restaurants enter

a final o rder that adopts the Findings of Fact and Conclusions of

Law set forth herein.

It is FURTHER RECOMMENDED that the final o rder find Chef

Creole Seafood, Inc., d/b/a Chef Creole guilty of violating Food

Code rule 3 - 3 05.11 ( A )( 3 ) as alleged in the Administrative

Complaint and impose an administrative fine in the amount of

$400.00 for that basic violation.

I t is FURTHER RECOMMENDED that the final o rder find

Respondent guilty of violating Food Code rule 3 - 30 5 .12 ( G ) as

allege d in the Administrative Complaint and impose an

administrative fine in the amount of $400.00 for that basic

violation.

It is FURTHER RECOMMENDED that the final order find

Respondent guilty of violating Food Code rule 3 - 304.15(A) as

alleged in the Adminis trative Complaint and impose an

adminis trative fine in the amount of $8 00.00 for that high

priority violation.

It is FURTHER RECOMMENDED that the final order find

Respondent guilty of violating Florida Administrative Code

R ule 61C - 4 . 0 2 3(1) as alleged in the Administrative Complaint and

impose an administrative fine in the amount of $1,000.00 for that

intermediate violation. The total of the recommended fines is

$2,600.00.

DONE AND ENTERED this 2nd day of February , 2015, in

Tallahassee, Leon County, Fl orida.

S

CLAUDE B. ARRINGTON

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 2nd day of February , 2015 .

ENDNOTE S

1/ Any reference to the Florida Administrative Code is to the

version of the Florida Administrative Code as of the date of the

alleged viol ations. The term ÐFood CodeÑ is defined by Florida

Administrative Code Rule 61C - 1.001(14). References in this

Recommended Order to the Food Code are to the documents specified

in that definition. Respondent is required to comply with the

applicable sect ions of the Food Code pursuant to

r ule 61C - 4.010(1). The references to Florida Statutes in this

Recommended Order are to Florida Statutes (2014).

2/ It is not necessary for Petitioner to establish that the

contents of the tub had become contaminated.

3/ It is not necessary for Petitioner to prove that the contents

of the buckets had become contaminated.

4/ Mr. Sejour testified that the Ðready - to - eatÑ peppers and

onions were to be used as part of a marinade for the poultry.

Mr. Sejour argued tha t the employeeÓs failure to change gloves

should not be a violation because the peppers and onions were not

to be used as ready - to - eat food. That argument is rejected

because the peppers and onions were cut - up by an employee who did

not change gloves afte r handling raw poultry. The employee then

set aside the cut - up peppers and onions. While the end - use of

the cut - up peppers and onions may have been in a marinade, the

cut - up peppers and onions could easily have been served (by

design or by mistake) in a ready - to - eat form (such as a garnish

or part of a salad) by the employee who cut the peppers and

onions or by another employee.

COPIES FURNISHED:

Wilkinson Sejour , pro se

Chef Creole

13125 West Dixie Highway

North Miami, Florida 33161

Marc A. Drexle r, Esquire

Department of Business and

Professional Regulation

Division of Hotels and Restaurants

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

Jesse Dyer , Qualified Representative

Department of Business and

Profession al Regulation

Division of H otels and Restaurants

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Co unsel

Department of Business and

Professional Regulation

Division of Hotels and Restaurants

1940 North Monroe Street

Tallah assee, Florida 32399

(eServed)

Diann S. Worzalla, Director

Department of Business and

Professional Regulation

Division of Hotels and Restaurants

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l 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 case.