15-007347 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Latchman's Seafood Market And Grill, Inc., D/B/A Latchman's Seafood Market And Grill, Inc. Status: Closed Recommended Order on Thursday, May 5, 2016.

Summary: Petitioner proved by clear and convincing evidence that an administrative penalty of $2,150.00 and recoupment of investigative costs were warranted for health and safety violations found at the Respondent's restaurant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND

RESTAURANTS,

Petitioner,

vs. Case Nos. 15 - 7347

15 - 7350

LATCHMAN'S SEAFOOD MARKET AND

GRILL, INC., d/b/a LATCHMAN'S

SEAFOOD MARKET AND GRILL, IN C.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

March 10, 2016, before Administrative Law Judge ("ALJ") Robert L.

Kilbride , Divisi on of Administrative Hearings ("DOAH") , via video

teleconference, at locations in Lauderdale Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Charles LaRay Dewrell, Esquire

Depart ment of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: No appearance

STATEMENT OF THE ISSUE S

Whether Respondent committed the viol ations alleged in the

administrative complaints dated July 8, 2015, and September 30,

2015 ; and, if so, what disciplinary action should be taken

against Respondent.

PRELIMINARY STATEMENT

On July 8, 2015, Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants

( " Division " or "Petitioner" ), filed an Administrative Complaint,

DBPR Case No. 2015 - 029646, against Respondent , Latchman's Seafood

Market and Grill, Inc., d/b/a Latchman's Seafood Market and

Grill, Inc . The A dministrative Complaint alleged the following

violation:

(1) Respondent failed to take effective measures to protect

the establishment against the entrance and the breeding on the

premises of all vermin, in violation of s ection 509.221(7),

Florida Statut es (2015). 1/

Subsequently, on September 30, 2015, Petitioner filed a

separate Administrative Complaint, DBPR Case No. 2015 - 042510,

against Respondent. The Administrative Complaint alleged the

following violations:

(1) Respondent ' s employee was engaging in food preparation

while not wearing a hair restraint, in violation of Food Code

Rule 2 - 402.11 (2009). 2/

(2) Respondent ' s freezer chest door was in disrepair, in

violation of Food Code Rule 4 - 501.11.

(3) Respondent failed to take effective measures to protect

the establishment against the entrance and the breeding on the

premises of all vermin, in violation of s ection 509.221(7).

(4) T he outer openings on Respondent ' s establishment were

not protected with self - closing doors, in violation of Food Code

R ule 6 - 202.15(A) , (C) , and (D) .

(5) Respondent failed to provide proof of valid food

manager certification for its food manager upon the inspector' s

request, in violation of s ection 509.039.

(6) Respondent failed to provide proof of valid employee

food ha ndler training certifications for its employees upon

request, in violation of se ction 509.045(5).

On December 7, 2015 , and on December 10, 2015, Respondent

executed an Election of Rights form for DBPR Case No. 2015 - 042510

and DBPR Case No. 2015 - 029646, res pectively , and requested formal

administrative hearings involving disputed issues of material

fact.

O n December 29, 2015, Petitioner referred both of the above

cases to DOAH to conduct a formal hearing.

On January 6, 2016, an Order of Consolidation was iss ued,

consolidating the above cases for all purposes, including final

hearing, pursuant to Florida Administrative Code Rule 28 - 106.108

(April 1, 1997) . 3/

At the final hearing, Petitioner presented the testimony of

two witnesses, Deborah Audain, s anitation a nd s afety s pecialist

( " Inspector Audain " or "Audain" ) , and Rebecca Howard, s anitation

and s afety s pecialist ( " Inspector Howard " or "Howard" ).

Petitioner offered seven exhibits , which were accepted into

evidence. Despite proper and timely notification, Re spondent

failed to appear or attend the hearing, present any testimony, or

offer any exhibits.

The T ranscript of the hearing was filed with the Clerk of

DOAH on April 8, 2016. Petitioner timely filed a Proposed

Recommended Order. Respondent did not file a post - hearing

document.

FINDING S OF FACT

Based on the evidence presented at the final hearing, the

undersigned makes the following findings of relevant and material

facts:

1. The Division is the state agency charged with regulating

public lodging and pub lic food service establishments pursuant to

chapter 509.

2. At all times material hereto, Respondent was licensed as

a public food service establishment in the s tate of Florida by

the Division. P et . Ex. 1.

3. The Division's first witness, Inspector Auda in, is

employed by the Division as a s anitation and s afety s pecialist at

5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063.

Audain has worked for the Division for approximately ten years as

an inspector. Prior to working for the Division, Audai n worked

in the food industry as a managing partner at a restaurant in New

York.

4. Upon gaining employment in the Division, Audain was

trained on the Food Code and the laws and rules pertaining to

public food service establishments and public lodging

est ablishments. Audain is also a c ertified f ood m anager. Audain

receives continuing education and training on a monthly basis.

Audain performs more than 700 inspections each year.

5 . The Division' s second witness, Inspector Howard, is

employed by the Divi sion as a s anitation and s afety s pecialist at

5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063.

Howard has worked for the Division for approximately one and one -

half years.

6. Prior to working for the Division, Howard worked in the

food indust ry as an executive chef at a Hilton Hotel in Tampa, a

chef at a W Hotel in South Beach, and a chef at Los Hotel in

South Beach.

7. Upon gaining employment in the Division, Howard was

trained on the Food Code and on the laws and rules pertaining to

public food service establishments and public lodging

establishments. Howard is also a c ertified f ood m anager. Howard

receives continuing education and training on a monthly basis.

Howard performs approximately 800 inspections each year.

8. " Basic Item " means an item defined in the Food Code as a

C ore I tem. Fla. Admin. Code R . 61C - 1.001(5) ( January 1, 2013).

9 . " Basic violation " means a violation of a basic item, as

defined in Florida Administrative Code Rule 61C - 1.001 or a

violation of c hapter 509 or c hapte r 61C, which relates to general

sanitation and does not meet the definition of high priority

violation or intermediate violation and is not otherwise

identified in subsection (6) of rule 61C - 1.005 .

10. " Intermediate violation " means a violation of an

inte rmediate item, as defined in r ule 61C - 1.001 or a violation of

c hapter 509 or c hapter 61C, 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 high

p riority violation or basic violation and is not otherwise

identified in subsection (6) of rule 61C - 1.005 .

11. " High priority violation " means a violation of a high

priority item, as defined in r ule 61C - 1.001 or a violation of

c hapter 509 or c hapter 61C, d etermined by the D ivision to pose a

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

welfare and is not otherwise identified in subsection (6) of

rule 61C - 1.005 .

DBPR C ase N o . 2015 - 029646

1 2 . On July 1, 2015, Audain performed an inspection of

Latchman ' s Seafood Market and Grill, Inc. During the inspection,

Audain prepared and signed an inspection report setting forth the

violation she encountered during the inspection. P et . Ex. 2 .

13 . On July 1, 2015, Audain notified Respondent of the

cited violation. Ricardo Latchman signed the inspection report

on behalf of R espondent. P et . Ex. 2.

1 4 . During the inspection on July 1, 2015, Audain observed

roach activity present as evidenced by eight live roaches found

crawling on the floor in the food s ervice area, three live

roaches crawling on the fryer in the kitchen, three live roaches

found by the water heater in the kitchen, two live roaches found

between the hose from the water heater and the wall, two live

roaches found underneath the kitchen pre p table, at least six

live roaches found in the air conditioner closet, one live roach

crawling on the wall next to the refrigerator, five live roaches

crawling on the reach - in cooler by the door to the front service

area, and one live roach crawling on th e wall in the front

service area of the establishment. This is a violation because

roaches can place the health of consumers at risk by transferring

and transmitting bacteria and disease to food, food contact

surfaces, and food storage areas. P et . Ex. 2.

1 5 . As a result of these observations, the Division entered

an Order of Emergency Suspension of License and Closure against

Respondent. The emergency order was issued on the same date as

the inspection, July 1, 2015. P et . Ex. 7.

DBPR C ase N o . 2015 - 042 510

1 6 . O n July 16, 2015, Audain performed an inspection of

Latchman ' s Seafood Market and Grill, Inc. During this

inspection, Audain prepared and signed an inspection report

setting forth the violations she encountered during the

inspection. P et . Ex. 3.

1 7 . On July 16, 2015, Audain notified Respondent about the

violations and informed Respondent that the violations needed to

be corrected by July 17, 2015. Mr. Latchman signed the

inspection report on behalf of Respondent. P et . Ex. 3.

1 8 . On July 17, 2 015, Howard performed a callback

inspection of Latchman ' s Seafood Market and Grill, Inc. During

the inspection, Howard prepared and signed an inspection report

indicating that some of the violations noted on the July 16,

2015 , inspection report had not be en corrected. P et . Ex. 4.

19 . O n July 17, 2015, Howard notified Respondent about the

violations and informed Respondent that the violations needed to

be corrected by September 1, 2015. Mr. Latchman signed the

inspection report on behalf of Respondent. P et . Ex. 4.

20 . O n September 2, 2015, Audain performed a callback

inspection of Latchman ' s Seafood Market and Grill, Inc. During

the inspection, Audain prepared and signed an inspection report

indicating that some of the violations noted on the July 16,

2015 , and July 17, 2015 , inspection reports had not been

corrected. P et . Ex. 5.

21 . O n September 2, 2015, Audain notified Respondent about

the violations and informed Respondent that the violations needed

to be corrected by September 3, 2015. Mr. Latchm an signed the

inspection report on behalf of Respondent. P et . Ex. 5.

2 2 . On September 3, 2015, Audain performed a callback

inspection of Latchman ' s Seafood Market and Grill, Inc. During

the inspection, Audain prepared and signed an inspection report

ind icating that some of the violations noted on the July 16,

2015 ; July 17, 2015 ; and September 2, 2015 , inspection reports

had not been corrected. P et . Ex. 6.

2 3 . The first violation was observed during the July 16,

2015 ; September 2, 2015 ; and September 3 , 2015 , inspections.

Audain observed employees engaging in food preparation without

proper hair restraints. This is a violation because hair can be

both a direct and indirect vehicle for contamination. Food

employees may contaminate their hands when the y touch their hair.

Proper use of a hair restraint keeps dislodged hair from ending

up in the food and may also deter employees from touching their

hair.

2 4 . The Food Code defines the governing requirement for the

first violation as a Core I tem. The D iv ision has designated

violations of C ore I tems as basic violations. P et . Ex. 3, 5 - 6 ;

Fo od Code 2009 - Annex 3 Public Health Reasons/Administrative

Guidelines , p . 367; Fla. Admin. Code R . 61C - 1.005(5)(c).

2 5 . The second violation was observed during the Ju ly 16,

2015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,

inspections. The inspectors observed equipment in poor repair as

evidenced by a freezer chest door having filament (insulation)

exposed. This is a violation because failure to properly

maintain equipment could lead to violations of the associated

requirements of the Food Code that place the health of the public

at risk. Refrigeration units in disrepair may no longer be

capable of properly cooling or holding potentially hazardous

(time/ temperature control for safety) foods at safe temperatures.

The Food Code defines the governing requirement for the second

violation as a Core I tem.

2 6 . The D ivision has designated Co re I tems as basic

violations. P et . Ex. 3 - 6; Food Code 2009 - Annex 3 P ublic Health

Reasons/Administrative Guidelines , p . 460; Fla. Admin. Code

R . 61C - 1.005(5)(c).

2 7 . The third violation was observed during the July 16,

2015 ; September 2, 2015 ; and September 3, 2015 , inspections.

During the July 16, 2015 , inspection, Audai n observed roach

activity present as evidenced by four live roaches found nestled

in crevices by the air conditioner in the kitchen and one live

roach crawling on the floor in front of the reach - in cooler

between the kitchen and front service area.

2 8 . Du ring the September 2, 2015 , inspection, Audain

observed one live roach crawling on the kitchen floor. Audain

also observed one dead roach in the dining room freezer and one

dead roach near the kitchen door during her inspection on

September 3, 2015. This is a violation because roaches can place

the health of consumers at risk by transferring and transmitting

bacteria and disease to food, food contact surfaces, and food

storage areas.

29 . T he Division properly designated this violation as a

high priority violation. P et . Ex. 3, 5 - 6; Fla. Admin. Code

R . 61C - 1.005(5)(a).

3 0 . The fourth violation was observed during the July 16,

2015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,

inspections. The inspectors observed outer openings to the

establis hment not protected as evidenced by a rear door which was

not self - closing. This is a violation because the presence of

insects and rodents (which may transmit bacteria and disease to

food) is minimized by protecting and securing outer door openings

to th e food establishment.

31 . T he Food Code defines the governing requirement for the

fourth violation as a C ore I tem. The D ivision has designated

violations of C ore I tems as basic violations. P et . Ex. 3 - 6; Food

Code 2009 - Annex 3 Public Health Reasons/Adm inistrative

Guidelines , p p. 485 - 486; Fla. Admin. Code R . 61C - 1.005(5)(c).

3 2 . T he fifth violation was observed during the July 16,

2015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,

inspections. During these inspections, the establishment fai led

to provide the inspectors with proof of the manager ' s food

manager certification upon request.

3 3 . This is a violation because managers are required to

pass an approved food manager certification course and test which

ensures managers have a higher le vel of knowledge regarding

sanitation and food handling, preparation, and storage. Lack of

the required knowledge can result in breakdowns in these

processes. The D ivision has designated this violation as an

intermediate violation. P et . Ex. 3 - 6; Fla. Ad min. Code R . 61C -

1.005(5)(b).

3 4 . The sixth violation was observed during the July 16,

2015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,

inspections. During these inspections, the establishment failed

to provide the inspectors with proof of the employeesÓ required

state - approved employee training.

3 5 . This is a violation because employees of restaurants

are required to have basic food safety training, which imparts

knowledge of basic food handling skills, including proper glove

use, procedur es for food temperatures and hot/cold holding,

cooking temperature requirements, and basic sanitation measures ,

such as personal hygiene and hand - washing. Lack of this

knowledge can result in a breakdown in these processes, possibly

leading to food - borne illness or unsanitary conditions.

3 6 . The Division properly designated this violation as an

intermediate violation. P et . Ex. 3 - 6; Fla. Admin. Code R. 61C -

1.005(5)(b).

3 7 . Respondent had one Emergency Order of Suspension of

License and Closure filed with the a gency c lerk by the D ivision

within the 12 months preceding the date the current

a dministrative c omplaints were issued. The Emergency Order of

Suspension of License and Closure was filed on July 7, 2015.

P et . Ex. 7 .

CONCLUSIONS OF LAW

38. DOAH has jurisdiction over the subject matter of this

proceeding and the parties thereto pursuant to sections 120.569

and 120.57(1), Florida Statutes.

39 . Petitioner has jurisdiction over the operation of

public lodging establishments and public food service

estab lishments in Florida, pursuant to section 20.165 , Florida

Statutes, and chapter 509.

40 . Petitioner is authorized to take disciplinary action

against the holder of such a license for operating in violation

of chapter 509, or the rules implementing that ch apter.

41 . Section 509.261(1) provides that any public lodging

establishment or public food service establishment that has

operated or is operating in violation of c hapter 509, or the

rules promulgated thereunder, is subject to fines not to exceed

$1,000. 00 per offense, and the suspension, revocation, or refusal

of a license.

42. In a proceeding such as this one , where Petitioner

seeks to discipline Respondent's license and/or to impose an

administrative fine, Petitioner has the burden of proving the

alle gations charged in the a dministrative c omplaint s 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 (Fla. 1996) (citing Ferris v. Turlington , 510 So. 2d

292, 2 94 - 95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg. ,

654 So. 2d 205, 207 (Fla. 1st DCA 1995).

43 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the c ourt held

that clear and convincing evidence requi res that 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 explicit and the witnesses must be lacking 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.

44 . In addition, any disciplinary action must be based only

upon the offe nses specifically alleged in the a dministrative

c omplaint. See Sternberg v. De p' t of Prof 'l Reg . , Bd . of Med .

Exam ' rs , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v.

Dep ' t of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter

v. Dep ' t of Prof ' l Reg . , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

45 . Section 509.032(6) provides that Petitioner shall adopt

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

c hapter.

46 . Florida Administrative Code Rule 61C - 1.001(14)

(January 1, 2013) 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 Recomme ndations 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/r

eference.asp?No=Ref - 01536 ), he rein adopted by

reference.

47 . Rule 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.

(a) Basic violation.

1. 1st offense Î Administrative fine of $150

to $300.

* * *

(b) Intermediate violation.

1. 1st offense Î Administrative fine of $200

to $400.

* * *

(c) High priority violation.

1. 1st offense - Administ rative fine of $250

to $500.

48 . Rule 61C - 1.005(6)(o) 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 50 9, F.S.

* * *

(o) Any violation requiring an Order of

Emergency Suspension of License and Closure,

as authorized by Chapter 509, F.S.

1. 1st offense Î Administrative fine of

$500.

49 . R ule 61C - 1.005(7)(a)4. states , in pertinent part:

(7) Ag gravating or mitigating factors . The

division may deviate from the standard

penalties in paragraphs (a) through (n) of

subsection (6) above, based upon the

consideration of aggravating or mitigating

factors present in a specific case. The

division may de viate from the standard

penalties in paragraph (o) of subsection (6)

above, based upon the consideration of

aggravating factors present in a specific

case. The division shall consider the

following aggravating and mitigating factors

in determining the app ropriate disciplinary

action to be imposed and in deviating from

the standard penalties:

(a) Aggravating f actors .

* * *

4. Number of Emergency Orders of Suspension

or Closure against the same licensee filed

with the Agency Clerk by the divisio n within

the 12 months preceding the date the current

administrative complaint was issued.

DBPR C ase N o . 2015 - 029646

50 . Section 509.221(7) states:

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 vermin shall

be fumigated, disinfected, renovated, or

other corrective action taken until the

vermin are exterminated.

5 1. Petitioner proved by clear and convincing evidence that

Respondent violated s ection 509.221(7), because numerous live

roaches were present on July 1, 2015. The presence of

approximately three dozen roaches provides sufficient evidence

that any means taken by Respondent to eliminate their entrance or

breeding was ineffective.

52 . The Order of Emergency Suspension of License and

Closure contained in Petitioner ' s Exhibit 7 has been reviewed for

determination of penalty, and , having been considered, it i s

concluded that the July 1, 2015 , violation required an Order of

Emergency Suspension of License and Closure. Therefore, r ule

61C - 1.005(6)(o) is the appropriate penalty guideline for the

violation.

53 . As noted, Respondent is guilty of one violation

res ulting in an Emergency Order of Suspension of License and

Closure. Pursuant to r ule 61C - 1.005(7), mitigating factors do

not apply to the r ule 61C - 1.005(6)(o) penalty guideline.

Therefore, a $500 .00 fine is the appropriate penalty.

DBPR C ase N o . 2015 - 0425 10

54 . Food Code Rule 2 - 402.11 states:

Effectiveness

(A) Except as provided in paragraph (B) of

this section, food employees shall wear hair

restraints such as hats, hair coverings or

nets, beard restraints, and clothing that

covers body hair, that are designed and worn

to effectively keep their hair from

contacting exposed food; clean equipment,

utensils, and linens; and unwrapped single -

service and single - use articles.

55 . Petitioner proved by clear and convincing evidence

that Respondent violated F ood Code Rule 2 - 402.11, because

Respondent ' s employee was observed engaging in food preparation

without proper hair restraint s on July 16, 2015 ; September 2,

2015 ; and September 3, 2015.

56 . Food Code Rule 4 - 501.11 states , in part:

Good Repair and Proper Adjustment

(A) Equipment shall be maintained in a state

of repair and condition that meets the

requirements specified under Parts 4 - 1

and 4 - 2.

(B) Equipment components such as doors,

seals, hinges, fasteners, and kick plates

shall be kept intact, tight , and adjusted

in accordance with manufacturer's

specifications.

57 . Petitioner proved by clear and convincing evidence that

Respondent violated Food Code Rule 4 - 501.11, because the freezer

chest door was observed in disrepair with exposed filament

(insu lation) on July 16, 2015 ; July 17, 2015 ; September 2, 2015 ;

and September 3, 2015.

58 . Section 509.221(7) states:

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 vermin shall

be fumigated, disinfected, renovated, or

other corrective action taken until the

vermin are exterminated.

59 . A public food service establish ment has violated

s ection 509.221(7), if vermin, such as roaches, are present in

the establishment or there is evidence of their presence in the

establishment, even if measures were taken to prevent their

entrance and breeding. See Dep ' t of Bus. & Prof ' l Reg. v.

Brother & Sister ' s Barbeque, Inc. , Case No. 06 - 5338 (Fla. DOAH

June 22, 2007; Fla. DBPR July 31, 2007) (Respondent violated Food

Code Rule 6 - 501.111, where Massey Services had treated the

establishment two days before the inspector observed rodent

droppings during an inspection.) ; and Dep ' t of Bus. & Prof ' l Reg.

v. Subway No. 32148 , Case No. 12 - 3871 (Fla. DOAH May 10, 2013;

Fla. DBPR June 6, 2013) (Respondent violated Food Code Rule 6 -

501.111, because of the observed presence of 17 live roaches

duri ng inspection establishes that Respondent ' s efforts to

control pests were inadequate and ineffective . ).

60 . The cited cases involved violations of Food Code

Rule 6 - 501.111 (2001). This requirement is similar to the

requirements of s ection 509.221(7). Fo od Code Rule 6 - 501.111

required an establishment to control insects, rodents, and

other pests to minimize their presence on the premises by:

(A) routinely inspecting incoming shipments of food and supplies;

(B) routinely inspecting the premises for evidenc e of pests;

(C) using methods, if pests are found, such as trapping devices

or other means of pest control as specified under Food Code

Rules 7 - 202.12, 7 - 206.12, and 7 - 206.13; and (D) eliminating

harborage conditions.

61. Similarly, s ection 509.221(7) req uires an establishment

to take effective measures to protect the establishment against

the entrance and the breeding on the premises of all vermin.

Evidence of rodents and the presence of live roaches violated

Food Code Rule 6 - 501.111 , because they establ ish the measures

taken to control pests were inadequate and ineffective.

Likewise, the presence of more than 20 live roaches establishes

that Respondent failed to take effective measures to prevent the

entrance and breeding of roaches.

62 . Petitioner pro ved by clear and convincing evidence that

Respondent violated s ection 509.221(7), because numerous live

roaches were present on July 16, 2015 ; September 2, 2015 ; and

September 3, 2015. The presence of roaches during the three

inspections establishes that any means taken by Respondent to

eliminate their entrance or breeding was ineffective.

63. Food Code Rule 6 - 202.15(A) and (C) states , in pertinent

part:

Outer Openings, Protected .

(A) Except as specified in ¶¶ (B), (C), and

(E) and under ¶ (D) of this section, outer

openings of a food establishment shall be

protected against the entry of insects and

rodents by:

(1) Filling or closing holes and other gaps

along floors, walls, and ceilings;

(2) C losed, tight - fitting windows; and

(3) Solid, self - clos ing, tight - fitting

doors.

* * *

(C) Exterior doors used as exits need not be

self - closing if they are:

(1) Solid and tight - fitting [.]

64. Petitioner proved by clear and convincing evi dence that

Respondent violated Food Code Rule 6 - 202.15(A) , (C) , and (D) due

to having outer doors which were not sufficiently self - closing or

secured.

65 . Section 509.039 states, in part:

Food service manager certification - It is

the duty of the division to adopt, by rule,

food safety protection standards for t he

training and certification of all food

service managers who are responsible for the

storage, preparation, display, or serving of

foods to the public in establishments

regulated under this chapter. The standards

adopted by the division shall be consiste nt

with the Standards for Accreditation of Food

Protection Manager Certification Programs

adopted by the Conference for Food

Protection. These standards are to be

adopted by the division to ensure that, upon

successfully passing a test, approved by the

Co nference for Food Protection, a manager of

a food service establishment shall have

demonstrated a knowledge of basic food

protection practices.

66 . Petitioner proved by clear and convincing evidence that

Respondent violated s ection 509.039, because Resp ondent failed to

provide proof of food manager certification for its manager upon

request on July 16, 2015 ; July 17, 2015 ; September 2, 2015 ; and

September 3, 2015.

67 . Section 509.049(5) states:

It shall be the duty of each public food

service establishm ent to provide training in

accordance with the described rule to all

food service employees of the public food

service establishment. The public food

service establishment may designate any

certified food service manager to perform

this function. Food se rvice employees must

receive certification within 60 days after

employment. Certification pursuant to this

section shall remain valid for 3 years. All

public food service establishments must

provide the division with proof of employee

training upon reque st, including but not

limited to, at the time of any division

inspection of the establishment. Proof of

training for each food service employee shall

include the name of the trained employee, the

date of birth of the trained employee, the

date the trainin g occurred, and the approved

food safety training program used.

68 . Petitioner proved by clear and convincing evidence that

Respondent violated s ection 509.049(5), because Respondent failed

to provide proof of the required state - approved employee traini ng

for its employees upon request on July 16, 2015 ; July 17, 2015 ;

September 2, 2015 ; and September 3, 2015.

69. T he Order of Emergency Suspension of License and

Closure contained in Petitioner ' s Exhibit 7 has been reviewed for

determination of penalty, a nd , having been considered, it is also

concluded that an Emergency Order of Suspension and Closure was

filed against Respondent with the a gency c lerk by the D ivision

within the 12 months preceding the Administrative Complaint dated

September 30, 2015, and is an aggravating factor with regard to

the violations cited in that Administrative Complaint.

70. As noted, Respondent is guilty of three basic

violations, two intermediate violations , and one high priority

violation. A reasonable fine in this case is $ 225 .00 for each

basic violation, $300 .00 for each intermediate violation, and

$375 .00 for the high priority violation, for a total fine of

$1,650. 00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a f i nal o rder be entered by the

Department of Business and Professional Regulation, Division of

Hotels and Restaurant s , ordering Latchman ' s Seafood Market and

Grill, Inc., d/b/a Latchman ' s Seafood Market and Grill, Inc., to

pay an administrative penalty in the amount of $500.00 for the

violation listed above in DBPR Case No. 2015 - 029646 and an

administrative penalty in the amount of $1,650.00 in DBPR Case

No. 2015 - 042510, for a total administrative penalty of $2,150.00,

plus any applicable and authorized invest igative expenses or

costs, due and payable to the Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

1940 North Monroe Street, Tallahassee, Florida 32399 - 1011, within

30 calendar days of the date of th e final o rder .

DON E AND ENTERED this 5th day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 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 5th day of May , 2016 .

ENDNOTE S

1/ References to Florida Statutes are to the 2015 version, unless

otherwi se indicated.

2/ References to Food Code rules are to the 2009 version, unless

otherwise indicated.

3/ References to Florida Administrative Code rules are to the

May 31, 2015, version, unless otherwise indicated.

COPIES FURNISHED:

Ricardo Latchman

La tchman's Seafood Market

and Grill, Inc.

117 North State Road 7

Plantation, Florida 33317

Charles F. Tunnicliff, Esquire

Charles LaRay Dewrell, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399

(eServed)

Rick Akin , Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Jason Maine , General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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 R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.