15-002308 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Mexican Food El Rinconcito Mexicano, Llc, D/B/A El Riconcito Mexicano Status: Closed Recommended Order on Tuesday, July 28, 2015.

Summary: Respondent's violation of food safety requirements of chapter 509, Florida Statutes, and implementing rules warrants an administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND

RESTAURANTS,

Petitioner,

vs. Case No. 15 - 2308

MEXICAN FOOD EL RINCONCITO

MEXICANO, LLC, d/b/a

EL RICONCITO MEXICANO,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter came before Administrative

Law Judge J. Bruce Culpepper of the Division of Administrative

Hearings on June 19, 2015, by video teleconference a t sites in

Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Marc A. Drexler, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this matter is whether Respondent was out of

compliance with the food safety requirements of chapter 509,

Florida Statutes (201 5 ) , 1/ and the implementing administrative

rules of the Department of Business and Professional Regulation,

Division of Hotels and Restaurants ; and, if so, what disciplinary

action is appropriate.

PRELIMINARY STATEMENT

On March 2, 2015, Petitioner, Department of Business and

Professional Regulation, D ivision of Hotels and Restaurants (the

" Division " ), filed an Administrative Complaint, DBPR No. 2015 -

009290, against Respondent, Mexican Food El Rinconcito Mexicano ,

LLC, d/b/a El Riconcito Mexicano ( " Respondent " ). The

Administrative Complaint alleged tha t Respondent stored

potentially hazardous food in violation of r ule 3 - 501.16(A)(2) of

the Food Code.

Respondent timely requested a formal administrative

proceeding. On April 22, 2015, the Division referred the matter

to the Division of Administrative Hear ings , where the case was

assigned to the undersigned Administrative Law Judge.

At the final hearing, Petitioner presented the testimony of

two witnesses, Jonathan Johnson and Craig Brown. Petitioner

offered five exhibits which were accepted as evidence. 2/

Respondent did not appear at the final hearing , present any

testimony , or offer any exhibits.

A one - volume T ranscript was filed on June 29, 2015.

Petitioner timely filed a proposed recommended order .

FINDING S OF FACT

1. The Division is the state agency responsible for

regulating the operation of public food service establishments in

Florida pursuant to chapter 509 .

2 . Respondent is a licensed public food service

establishment in Florida and holds license n o. 46 - 05722.

Respondent operates a restaurant u nder the name of El Riconcito

Mexicano located at 1454 Lee B ou l e v ar d, Lehigh Acres, Florida

33963.

3. As a licensed public food service establishment,

Respondent is subject to the Division ' s regulatory jurisdiction.

Respondent must comply with the requ irements of chapter 509 and

its implementing rules. Respondent is subject to inspection by

the Division.

4. Jonathan Johnson ( " Inspector Johnson " ) is employed by

the Division as a Senior Sanitation Safety Specialist . Inspector

Johnson has worked for t he Division for approximately five years,

serving approximately three years as a Senior Inspector and two

years as an I nspector. Prior to working for the Division,

Inspector Johnson worked in the food industry for two years.

Upon gaining employment in th e Division, Inspector Johnson was

standardized on the federal Food Code and trained on the laws and

rules pertaining to public food service establishments and public

lodging establishments. Inspector Johnson is also a Certified

Food Manager . Inspector Jo hnson receive s continuing education

training on a monthly basis. Inspector Johnson performs more

than 1,000 inspections each year.

5. Craig Brown ( " Inspector Brown " ) is employed with the

Division as a Sanitation Safety Specialist . Inspector Brown has

w orked for the Division for approximately two years. Upon

gaining employment in the Division, Inspector Brown was

standardized on the Food Code and trained on the laws and rules

pertaining to public food service establishments and public

lodging establishm ents. Inspector Brown is also a Certified Food

Manager . Inspector Brown receive s continuing education training

on a monthly basis. Inspector Brown performs approximately 700

inspections each year.

6. On February 3, 2015, Inspector Johnson conducted a f ood

service inspection on Respondent. In a reach - in cooler in

Respondent ' s kitchen, Inspector Johnson identified several food

items which he found to be improperly stored. Specifically,

measuring the temperature of the food items with a thermometer,

Insp ector Johnson observed chicken at 63 ºF , lettuce at 48 ºF ,

beans at 50 ºF , beef stew at 49 ºF , rice at 49 ºF , and beef at 51 ºF .

An employee for Respondent informed Inspector Johnson that these

foods had been stored in the reach - in cooler from the previous

nigh t and were not cooked, cooled, or prepared.

7. During his February 3, 2015, inspection, Inspector

Johnson prepared a Food Service Inspection Report. Inspector

Johnson recorded the violations he observed on his report.

Inspector Johnson informed Respon dent that the violations needed

to be corrected by February 4, 2015. Norma Arias signed

Inspector Johnson ' s report acknowledging receipt on behalf of

Respondent.

8. On February 6, 2015, Inspector Brown performed a

callback inspection on Respondent. The purpose of Inspector

Brown ' s inspection was to follow - up on the previous inspection

conducted by Inspector Johnson. During his callback inspection,

Inspector Brown also measured the temperature of food items in

the reach - in cooler in Respondent ' s kitchen. Inspector Brown

observed shrimp, rice, potatoes, cut tomatoes, soup, chicken, and

some sauces at 48 ºF to 51 ºF . According to Respondent ' s M anager,

these foods were not being prepared, cooked, or cooled.

9. Following his inspection, Inspector Brown pre pared an

inspection report indicating that Respondent had not corrected

one of the violations Inspector Johnson had noted on his

February 3, 2015, inspection report. This violation concerned

the food Respondent stored in the reach - in cooler at a

temperatu re greater than 41 ºF .

10. During inspections, Division I nspectors measure food

temperatures by inserting a thermometer into the middle of a food

item, waiting for the temperature reading to stabilize, and then

recording the final temperature reading.

11. Inspector s Johnson and Brown calibrate their

thermometers at least once per week. Calibration is performed by

filling a cup with ice, pouring water into the cup, and then

inserting the thermometer into the water. The thermometer should

read 32 ºF .

12 . Based on the observations of Inspector s Johnson and

Brown, the Division cited Respondent with a violation of rule

3 - 501.16(A)(2) , Food Code . According to the Food Code, except

during preparation, cooking, or cooling , potentially hazardous

food shall be ma intained at a temperature of 41ºF or less. See

rule 3 - 501.16(A)(2)(a), Food Code.

13. The Food Code classifies Respondent ' s violations as a

priority item . 3/ The Division has designated violations of

priority items as " high priority violations. " Potent ially

hazardous foods held in the danger zone, which is above 41 ºF and

under 135 ºF , allows for the rapid growth of bacteria and can lead

to foodborne illness.

14. Respondent has two prior disciplinary Final Orders

filed with the Agency Clerk for the De partment of Business and

Professional Regulations within the 24 months preceding the

Administrative Complaint in this matter. The Final Order in case

n o. 2014011419 was filed on April 7, 2014, and the Final Order in

case n o. 2014050972 was filed on Januar y 20, 2015.

15. Based on the evidence and testimony presented during

the final hearing, the Division demonstrated, by clear and

convincing evidence, that on February 6, 2015, Respondent

maintained potentially hazardous food at greater than 41 ºF .

Therefore , the Division met its burden to prove that Respondent

failed to comply with the applicable food safety requirements of

the Food Code and implementing administrative rules of the

Division.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the subject matte r of this

proceeding and the parties thereto pursuant to sections 120.569

and 120.57(1), Florida Statutes.

17. The Division is responsible for inspecting public food

service establishments to enforce the provisions of chapter 509.

See § 509.032(2)(c) , Fla . Stat .

18. Section 509.032(6) provides that the Division shall

adopt such rules as are necessary to carry out the provisions of

chapter 509. By rule, the Division has incorporated the federal

Food Code , by reference. Florida Administrative Code R ule

6 1C - 1.001(14) states in pertinent part:

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, Chapter 7,

and Sections 8 - 103.11 and 8 - 103.12 of the

Food Code, 2009 Recommendations of the United

States Public Health Service/Food and Drug

Administration including Annex 3: Public

Health Reasons/Administrative Guidelines;

Annex 5: Conducting Risk - based Inspections

(https://www.flrules.org/Gateway/reference. as

p?No=Ref - 01536), herein adopted by reference.

The Food Code applies to all public food service establishments

operating in Florida.

19. Rule 3 - 501.16(A)(2) , Food Code, states in pertinent

part:

Potentially Hazardous Food (Time/Temperature

Control for Safety Food), Hot and Cold

Holding.

(A) Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified under § 3 - 501.19,

and except as specified under paragraph (B)

and in paragraph (C) of this section,

POT ENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE

CONTROL FOR SAFETY FOOD) shall be maintained:

(2) At 5ºC (41ºF) or less; P . . . .

20. Section 509.261(1) provides that any public food

service establishment that has operated , or is operating , in

violation of c ha pter 509 , or the rules promulgated thereunder , is

subject to fines not to exceed $1,000 per offense , as well as the

suspension, revocation, or refusal of its public food service

license.

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

impose o ther discipline upon a license, is penal in nature.

State ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, the Division must prove the

charges against Respondent by clear and convincing evidence.

Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co . , 670 So. 2d 932, 93 3 - 34 (Fla. 1996) (citing Ferris v.

Turlington , 510 So. 2d 2 9 2, 294 - 95 (Fla. 1987)); Nair v. Dep ' t of

Bus. & Prof ' l Reg., Bd. of Med . , 654 So. 2d 205, 207 (Fla. 1st

DCA 1995).

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

DCA 1983), the court developed a " workable definition of clear

and convincing evidence " and found that of necessity, such a

definition would need to contain " both qualitative and

quantitative standards . " The court held that:

[C]lear and convincing evidence requires that

the evidence must be found to be cr e dible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be l acking 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.

Id. The Flori da Supreme Court later adopted the Slomowitz

court ' s description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal has also followed the Slomowitz test, adding the

interpretive comment t hat " [a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc . , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 12 79 (Fla. 1992) (citation omitted).

23. The unrefuted testimony of Inspector s Johnson and Brown

establishes that , as observed during inspections conducted on

February 3 and 6, 2015, Respondent failed to store food as

required by the Food Code. Specifical ly, the food inspected in

Respondent ' s reach - in cooler was not maintained at a temperature

of 41 ºF or less. Accordingly, the Division proved by clear and

convincing evidence that Respondent violated r ule 3 - 501.16(A)(2) ,

Food Code .

24. R ule 61C - 1.005( 5)(f) states:

(5) Definitions

* * *

(f) " Third and any subsequent 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 Age ncy

Clerk within the twenty - four months preceding

the date the current administrative complaint

is issued, even if the current violation is

not the same as the previous violation.

25. R ule 61C - 1.005(5)(a) defines a " high priority

violation " as " a violatio n 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

or significant threat to the public health, safety, or welfare

and is not otherwise id entified in subsection (6) of this rule. "

A " h igh priority item " means an item defined in the Food Code as

a priority item . Therefore, Respondent ' s failure to comply with

rule 3 - 501.16(A)(2) , Food Code, is a high priority violation.

26. R ule 61C - 1.005(6 ) states in pertinent part:

(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.

* * *

(c) High priority violation.

1. 1st offense -- Administrative fine of $250

to $500.

2. 2nd offense -- Administrative fine of $500

to $1,000, license suspension, or both.

3. 3rd and any subsequent offense --

Administrative fine of $750 to $1,000,

license suspension, or both.

27. The facts establish that Respondent committed a high

priority violation. Respondent ' s two prior disciplinary Final

Orders filed within the 24 months preceding this case esta blish

that the violation in this matter should be considered

Respondent ' s third offense. Co nsequently, Respondent is subject

to a penalty , including an administrative fine of $750 to $1,000,

license suspension, or both.

28. In its proposed recommended order , the Division

suggests a fine in the amount of $1,000 as appropriate for

Respondent ' s h igh priority violation. The Division ' s recommended

penalty is consistent with the applicable penalty guidelines and

is reasonable under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED tha t Petitioner, Department of Business

and Professional Regulation, Division of Hotels and Restaurants,

enter a final order finding Respondent, Mexican Food

El Rinconcito Mexicano, LLC, d/b/a El Riconcito Mexicano , in

violation of chapter 509 and its impleme nting rules . It is

further RECOMMENDED that Respondent should pay an administrative

penalty in the amount of $1,000 for the high priority violation

identified above , due and payable to the Division within

30 calendar days of the date the final order is fi led with the

Agency Clerk .

DONE AND ENTERED this 28th day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 28th day of July , 2015 .

ENDNOTE S

1/ All statutory references are to Flo rida Statutes (201 5 ),

unless otherwise noted.

2 / Pursuant to the Division ' s request, the undersigned took

official recognition of various provisions of chapter 509, Florida

Statutes, Florida Administrative Code Rules 61C - 1.001(14) and

61 C - 1.005, and r ule 3 - 501.15 , Food Code .

3/ The Food Code denotes priority items with a superscript " P " .

(Rule 1 - 201.10, Food Code).

COPIES FURNISHED:

Diann S. Worzalla, Director

Division of Hotel and Restaurants

Department of Business and

Professional Regulation

Nor thwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

Marc A. Drexler, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

Jose Luis Magana

El Riconcito Mexicano

1454 Lee Boulevard

Lehigh Acres, Florida 33936 - 4850

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wit hin

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.