15-005827 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Latin Bohemia Grill Inc., D/B/A Latin Bohemia Grill Status: Closed Recommended Order on Monday, February 8, 2016.

Summary: $1875 fine for two high priority and one basic second Food Code offenses for restaurant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND

RESTAURANTS,

Petitioner,

vs. Case No. 15 - 5827

LATIN BOHEMIA GRILL INC., d/b/a

LATIN BOHEMIA GRILL,

Respondent.

_______________________________/

RECOMMENDED ORDER

On December 1, 2015 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Lauder d ale

Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee , Florida 3 3299 - 2202

For Respondent : no appearance

STATEMENT OF THE ISSUE S

The issues are whether Respondent 's dishmachine chlorine

sanitizer was not at proper minimum stren gth, in violation of

Food Code R ule 4 - 501.114(A); whether vacuum breakers were missing

from hose bibs at the mop s ink, in violation of Food Code

R ule 5 - 203.1 4; and whether kitchen ceiling light fixtures hosted

an accumulation of dead insects, in violation of Food Code

R ule 6 - 501.112. If any of these violations are proved, an

additional issue is the penalty that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 2, 2015 ,

Petitioner alleged that its inspector conducted inspections of

Respondent's restaurant located at 1261 South Powerline Road in

Pompano Beach, Florida, on March 17, May 20, and July 21, 2015.

The Administr ative Complaint alleges that, on these dates,

inspections disclosed that Respondent was in violation of the

three Food Code provisions cited immediately above. The

Administrative Complaint seeks an administrative fine of

$1000 per violation.

Respondent requested a hearing by timely filing an Election

of Rights dated September 25, 2015. Petitioner transmitted the

file to DOAH on October 16, 2015. On October 20, 2015, a hearing

by videoconference was scheduled for December 1, 2015.

Respondent failed to appear at the hearing.

At the hearing , Petitioner called two witnesses and offered

into evidence five e xhibits: Petitioner Exhibits 1 through 5.

All of the exhibits were admitted into evidence.

The court reporter filed the transcript on Januar y 6, 2016.

Petitioner filed a proposed recommended order on January 15,

2016.

FINDING S OF FACT

1. At all material times, Respondent operated a restaurant

located at 1261 South Powerline Road in Pompano Beach, Florida,

as a public food service establish ment under Permanent Food

Service license SEA1620854, profession 2010.

2. On March 17, 2015, Petitioner's inspector conducted an

inspection of Respondent's restaurant. The inspection uncovered

several violations. The violations included a dishmachine

chlorine sanitizer that tested at zero parts per million, which

is below proper minimum strength; a missing vacuum breaker at the

hose bibb at the mop sink in the rear; and an accumulation of

dead insects in the kitchen ceiling light fixtures. The first

t wo violations are "high priority," and the third violation is

"basic." The inspector gave Respondent until May 20, 2015, to

correct these violations.

3. On May 20, 2015, Petitioner's inspector conducted a

followup inspection of Respondent's restaurant. The inspection

uncovered several violations, including the three violations

cited in the preceding paragraph. The inspector issued warnings

for these three uncorrected violations, but gave Respondent an

extension of time until July 21, 2015, to correct th ese

violations.

4. On July 21, 2015, Petitioner's inspector conducted a

second followup inspection of Respondent's restaurant. The

inspection uncovered three violations, which were the three

violations cited in the preceding paragraphs. There were now t wo

hose bibbs lacking vacuum breakers.

5. The failure to maintain the proper strength of chlorine

in the dishmachine sanitizer jeopardizes the process by which

used items are cleaned and sanitized, so as to be free of

pathogens, germs, and viruses. The failure to maintain a vacuum

breaker, which creates an air gap in a water line, raises the

possibility that dirty water will backflow into, and thus

contaminate, a potable water line . The failure to remove the

dead insects from the kitchen ceiling fixture poses a risk of

attracting additional insects.

6. In the 24 months preceding the issuance of the

Administrative Complaint, Respondent had been the subject of one

disciplinary order. By Stipulation and Consent Order filed

October 21, 2014, Respond ent agreed to pay an administrative fine

of $840 to settle allegations of several Food Code violations,

which Respondent neither admitted nor denied.

CONCLUSIONS OF LAW

7 . DOAH has jurisdiction. §§ 120.569 and 120.57(1), Fla.

Stat.

8. The burden of proof is on Petitioner to prove the

material allegations by clear and convincing evidence. Dep't of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996).

9 . Florida Administrative Code R ule 61C - 1.001(14) defines

"Food Code," as used in Florida Administrative Code C hapters

61C - 1, 61C - 3, and 61C - 4, as chapters 4, 5, and 6, among others,

of the Food Code (2009).

10. Food Code R ule 4 - 501.1 14(A) requires that the chlorine

solution for a chemical sanitizer used in connection with

warewashing equipment maintain a minimum concentration of at

least 25 mg/L, depending on the operating conditions.

11. Food Code R ule 5 - 203.14 requires that a plumbing system

incorporate an air gap or backflow prevention device to prevent

the backflow of contaminants into the water supply system at each

point of use within a restaurant, including a hose bibb.

12. Food Code R ule 6 - 501.112 requires that dead insects be

removed from control devices and the premises at a frequency that

prevents their accumulation , deco mposition, or attraction of

pests.

13. Petitioner has proved each of these three violations by

clear and convincing evidence.

14. Section 509.261(1) , Florida Statutes, authorizes

Petitioner to impose a fine of not more than $1000 per offense or

to suspend or revoke a license for any violation of chapter 509

or the rules adopted under chapter 509. Rule 61C - 1.005(5)(e)

provides that these three violations are a "second o ffense" due

to their occurrence within 24 months of an earlier disciplinary

final order. Rule 61C - 1.005(6) (c)2. provides that the standard

penalty for a second offense of a "high priority" violation is a

fine of $500 to $1000 and/or suspension. Rule 61C - 1.005(6)( a)2.

provides that the standard penalty for a sec ond offense of a

"basic" violati on is a fine of $250 to $500.

15. In its proposed recommended order, Petitioner has

sought a fine of $750 for each of the "high priority" violations

and $375 for the "basic" violation. These are within the

parameters set forth in the preceding paragraph and are

reasonable under the circumstances set forth above.

RECOMMENDATION

It is

RECOMMENDED that the Department of Business and Professional

Regulation, Division of Hotels and Restaurants, enter a final

order finding Respondent guilty of the three violations set forth

above and imposing a fine of $1875.

DONE AND ENTERED this 8th day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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

File d with the Clerk of the

Division of Administrative Hearings

this 8th day of February , 2016 .

COPIES FURNISHED:

Blanca Balcazar

Latin Bohemia Grill

1261 South Powerline Road

Pompano Beach, Florida 33069

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

Marc A. Drexler, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 323 99 - 2202

(eServed)

Diann S. Worzalla, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

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. A ny exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.