14-005644 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Negril Cuisine, Inc., D/B/A Banana Hut Status: Closed Recommended Order on Tuesday, March 10, 2015.

Summary: The Department should impose an administrative fine against restaurant because inspector saw roaches in a storage closet and in the kitchen.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND

RESTAURANTS,

Petitioner,

vs. Case No. 14 - 5644

NEGRIL CUISINE, INC., d/b/a

BANANA HUT,

Respondent.

______________________________ _/

RECOMMENDED ORDER

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

on January 29, 2015, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Div ision of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Division of Hotels and Restaur ants

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2022

For Respondent: Michael Brandon, pro se

Banana Hut

15308 Southwest 111 Street

Miami, Florida 33196

STATEMENT OF THE ISSUE S

Whether Negril Cuisine, Inc., d/b/a Banana Hut (Respondent),

committed the offenses alleged in the Administrative Complaint

dated September 30, 2014, and if so, the penalties that should be

impo sed.

PRELIMINARY STATEMENT

Respondent is a duly licensed restaurant. On September 30,

2014, the Department of Business and Professional Regulation,

Division of Hotels and Restaurants (Petitioner) , filed an

Administrative Complaint against Respondent t hat contained

factual allegations based on an inspection of RespondentÓs

facility on September 23, 2014. Based on that inspection,

Petitioner charged Respondent with violating section 509.221(7),

Florida Statutes. 1/ The alleged violation was based on the

inspectorÓs observation of live roaches in a storage closet and

in the kitchen.

Respondent timely requested a formal administrative hearing

to challenge the allegations of the Administrative Complaint. On

November 26, 2014, the matter was referred to DOA H, and this

proceeding followed.

At the formal hearing, Petitioner presented the testimony of

Douglas Morgadanes (a s enior s anitation and s afety s pecialist

employed by Petitioner) and offered three sequentially numbered

exhibits, each of which was admitt ed into evidence.

Respondent presented the testimony of Michael George Brandon

(RespondentÓs owner), Zuleima Chow (an employee of Petitioner),

and Garth Vassell (an employee of Respondent). Respondent

presented two sequentially numbered exhibits, both o f which were

admitted into evidence.

At the request of Petitioner, the undersigned took official

recognition of sections 509.032(6) and 509.221(7) and Florida

Administrative Code Rules 61C - 1.001(14) and 61C - 1.005.

A Transcript of the proceedings was filed on February 17,

2015. Petitioner and Respondent filed proposed recommended

orders, which have been duly - considered by the undersigned in the

preparation of this Recommended Order.

FINDING S OF FACT

1. At all times relevant to this proceeding, Negr il

Cuisine, Inc., d/b/a Banana Hut (Respondent) , has operated a

restaurant known as the Banana Hut, which is located

at 13740 S outhwest 152 nd Street, Miami, Florida (the subject

premises).

2. Respondent is subject to the regulation of the

Department o f Business and Professional Regulation, Division of

Hotels and Restaurants (Petitioner). 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 /

3. RespondentÓs license number is 2329056. There was no

evidence that RespondentÓs license has been previously

disciplined by Petitioner.

4. At all times relevant to this proceeding, Michael George

Brandon was RespondentÓs owner.

5. Douglas Mor gadanes is employed by Petitioner as a s enior

s anitation and s afety s pecialist. Mr. Morgadanes is experienced

and trained to conduct inspections of food service facilities to

ensure compliance with applicable regulations. Mr. Morgadanes

has been a s anita tion and s afety s pecialist employed by

Petitioner for approximately 18 years. He has been designated as

a s enior s anitation and s afety s pecialist for the last nine

years. Mr. Morgadanes typically performs between 700 and 800

restaurant inspections each y ear.

6. On September 23, 2014, beginning at 9:37 a.m.,

Mr. Morgadanes performed a routine inspection of the subject

premises (the initial inspection). The Banana Hut was open for

business during the initial inspection.

7. As part of the initial insp ection, Mr. Morgadanes

prepared a Food Service Inspection Report (PetitionerÓs

Exhibit 2) setting forth his findings. Mr. Morgadanes prepared

this report utilizing an iPad while at the subject premises.

8. Mr. Morgadanes testified, credibly, that he a sked some

unidentified person from the establishment to accompany him while

he performed the initial inspection, but no one accompanied him.

Garth Vassell is a cook at the subject premises. Mr. Vassell was

on the premises when Mr. Morgadanes conducted th e initial

inspection, but he was not asked by Mr. Morgadanes to accompany

him during that inspection.

9. During the course of the initial inspection,

Mr. Morgadanes observed approximately ten live roaches in a

storage closet and ten or more live roaches in the kitchen.

10. After the inspection, Mr. Morgadanes showed Mr. Vassell

the areas where he had observed the live roaches. Mr. Morgadanes

also showed Mr. Vassell a dead roach. Mr. Vassell did not

observe live roaches.

11. Mr. Morgadanes telephoned his office and notified his

superiors of his observations. Before Mr. Morgadanes left the

premises, Petitioner entered an emergency order that suspended

RespondentÓs licensure and closed the subject premises (the

emergency order). The emergency order fo und that ÐThe risk of

food borne illness from a vermin infestation constitutes an

immediate serious threat to public health and safety.Ñ

12. When Mr. Brandon arrived at the subject premises,

Mr. Morgadanes had completed his initial inspection and was

aff ixing a sign to the entry door of the subject premises that

stated that the restaurant was closed.

13. Mr. Morgadanes showed Mr. Brandon the areas where he

observed the live roaches and reviewed his inspection report

(PetitionerÓs Exhibit 2) with Mr. B randon. Mr. Brandon signed

the inspection report at approximately 11:30 a.m. Mr. Morgadanes

left the premises shortly thereafter.

14. At the request of Mr. Brandon, a callback inspection

was conducted by Mr. Morgadanes and Zuleima Chow beginning

at 3 :14 p.m. , on the afternoon of the initial inspection

(September 23, 2014). No evidence of roaches was observed during

the callback inspection. 3/ As a result of the callback

inspection, Petitioner immediately vacated its emergency order.

15. On Septembe r 30, 2014, Petitioner filed the

Administrative Complaint that initiated this proceeding. Based

on Mr. MorgadanesÓ observing live roaches during his initial

inspection, Petitioner charged that Respondent violated

section 509.221(7), which provides as fol lows:

(7) The operator of any establishment

licensed under this chapter shall take

effective measures to protect the

establishment against the entrance and the

breeding on the premises of all vermin. Any

room in such establishment infested with such

ve rmin shall be fumigated, disinfected,

renovated, or other corrective action taken

until the vermin are exterminated.

16. Petitioner classified the alleged violation as a Ðhigh

priorityÑ violation.

17. 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 vi olation of

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

determined by the division to pose a direct

or significant threat to the public health,

safety, or welfare and is not otherwise

identified in subsection (6) of this rule.

18. The presence in a resta urant of vermin such as roaches

presents a risk to the public because such vermin can carry

diseases that can be transmitted to patrons who consume food that

has been contaminated by the vermin.

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the subj ect matter of and

the parties to this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes.

20. Petitioner has been statutor ily delegated the authority

to Ð carry out all of the provisions of [chapter 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.

21. Each Ð public food service establishment Ñ must have a

license from Petitioner prior to the commencement of operation.

§ 509.241, Fla. Stat. Respondent has the requisite license.

22. Section 509.261(1) provides 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 Educ ation Program

(established pursuant to section 509.302).

23. Petitioner has the burden of proving by clear and

convincing evidence that Respondent committed the violations as

alleged and the appropriateness of any fine and penalty

resulting from the alleg ed 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 more

proof than a Ðpreponderance of the evidenceÑ

but less than Ðbeyond and to the exclusion of

a reasonable doubt.Ñ In re Graziano , 696 So.

2d 744, 753 (F la. 1997). It is an

intermediate standard. Id. For proof to be

considered Ðclear and convincingÑ . . . the

evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly remembered; the testimony must be

precise and e xplicit; 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

soug ht to be established.

25. Petitioner proved by clear and convincing evidence that

Respondent violated section 509.221(7), as alleged in the

Administrative Complaint , by failing to prevent the presence of

live roaches in its premises. Because of the po tential danger to

the public, this is a high priority violation.

26. Accordingly, disciplinary action may be taken against

Respondent pursuant to section 509.261(1).

27 . Florida Administrative Code R ule 6 1 C - 1.005(6)(o)

contains the following penalty guid elines 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.

* * *

(o) Any violation requiring an Emergency

Order of Suspension or Emergency Order of

Closure, as authorized by Chapter 509, F.S.

1. 1 st offense Î - Administrative fine of $500.

28. In its Proposed Recommended Order, Petitioner proposes

a fine in the amount of $500.00 for th e high priority violation.

That recommended penalty is consistent with the applicable

penalty guidelines.

29. PetitionerÓs Proposed Recommended Order does not

contain a recommendation that Respondent require an employee, at

RespondentÓs expense, to att end an educational program sponsored

by the Hospitality Education Program (established pursuant to

section 509.302) as authorized by section 509.261(1).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMEND ED that the Department of Business and

Professional Regulation, Division of H otels and Restaurants,

enter a f inal o rder that adopts the Findings of Fact and

Conclusions of Law set forth herein.

I t i s FURTHER RECOMMENDED that the final o rder find Negril

C uisine, Inc., d/b/a Banana Hut guilty of violating

section 509.221(7), Florida Statutes, as alleged in the

Administrative Complaint and impose an administrative fine in the

amount of $500.00 for that violation.

DONE AND ENTERED this 10th day of March , 2015 , in

Tallahassee, Leon County, Florida.

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 10th day of March , 2015 .

ENDNOTE S

1/ All r eferences to Florida Statutes in this Recommended Order

are to Florida Statutes (2014). All ref erences to the Florida

Administrative Code are to the version of the Florida

Administrative Code as of the date of the alleged violations.

2/ The term ÐFood CodeÑ is defined by Florida Administrative Code

Rule 61C - 1.001(14). References in this Recomme nded Order to the

Food Code are to the documents specified in that definition.

Respondent is required to comply with the applicable sections of

the Food Code pursuant to r ule 61C - 4.010(1).

3/ Based in part on the absence of roaches during the callback

inspection, Mr. Brandon asserts that Mr. Morgadanes lied about

the presence of live roaches during his initial inspection. That

assertion is rejected. The undersigned finds the testimony of

Mr. Morgadanes to be clear and convincing evidence that live

ro aches were present in the storage closet and the kitchen during

his initial inspection.

COPIES FURNISHED:

Michael Brandon

Negril Cuisine, Inc., d/b/a Banana Hut

15308 Southwest 111 Street

Miami, Florida 33196

Charles Tunnicli ff , Esquire

Departmen t of Business and

Professional Regulation

Division of Hotels and Restaurants

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

Divisi on of Hotels and Restaurants

1940 North Monroe Street

Tallahassee, 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

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 iss ue the Final Order in this case.