98-004351 Division Of Hotels And Restaurants vs. Don`s Italian Restaurant, D/B/A Italian Connection Status: Closed Recommended Order on Monday, March 29, 1999.

Summary: $1000 administrative fine is appropriate penalty for restaurant operator who interfered with inspection and prevented inspection.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 98-4351

)

DON'S ITALIAN RESTAURANT OF )

SINGER ISLAND, INC., d/b/a ) 1

ITALIAN CONNECTION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case before Administrative Law Judge Michael M. Parrish of the

Division of Administrative Hearings on March 3, 1999, in Fort

Lauderdale, Florida.

APPEARANCES

For Petitioner: Daniel R. Biggins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Mr. Joel Wallach, President

Don's Italian Restaurant of Singer

Island, Inc.

10471 Utopia Circle, South

Boynton Beach, Florida 33437

STATEMENT OF THE ISSUE

This is a license discipline proceeding in which the

Petitioner seeks to take disciplinary action against the

Respondent on the basis of alleged violations of Section

509.032(2)(b), Florida Statutes, and Rule 61C-1.002(8)(b),

Florida Administrative Code. The alleged violations are set

forth in a Notice to Show Cause dated March 26, 1998.

PRELIMINARY STATEMENT

Following the Respondent's timely request for an evidentiary

hearing on the allegations set forth in the Notice to Show Cause,

this matter was referred to the Division of Administrative

Hearings to conduct the requested hearing. At the request of the

Respondent, the hearing date was twice rescheduled. At the final

hearing on March 3, 1999, the Petitioner presented the testimony

of Albert Pistorio, a Sanitation and Safety Inspector employed by

the Division of Hotels and Restaurants, and of Gene Peters, who

is Mr. Pistorio's supervisor. The Petitioner's Exhibits 1 and 2

were offered and received into evidence. At the Petitioner's

request, official recognition was taken of Rules 61C-1.0021(3)

and 61C-1.002(8)(b), Florida Administrative Code.

The Respondent presented the testimony of Joel Wallach, the

president of the Respondent corporation. The Respondent did not

offer any exhibits.

Neither party filed a transcript of the final hearing with

the Division of Administrative Hearings. Following the hearing,

both parties filed timely P roposed R ecommended O rders. The

parties' post-hearing proposals have been carefully considered

during the preparation of this Recommended Order. 2

FINDINGS OF FACT

1. At all times material, the Respondent, Don's Italian

Restaurant of Singer Island, Inc. (Don's Italian), doing business

as "Italian Connection," operated a public food service

establishment located at 3025 South Federal Highway, Delray

Beach, Florida. At all times material, this establishment

operated under license control number 60-11547-R issued by the

Division of Hotels and Restaurants.

2. At all times material to this case, Joel Wallach was the

president of Don's Italian, and Mr. Wallach was also actively

involved in the operation of the business.

3. The restaurant operated by Don's Italian is a small

restaurant. It has a very limited kitchen area. The approximate

width of the kitchen working area is five feet.

4. On March 24, 1998, at approximately 11:00 a.m.,

Al Pistorio, an inspector employed by the Division of Hotels and

Restaurants, went to the restaurant operated by Don's Italian to

perform a routine inspection as required by the applicable

statutory and rule provisions. Mr. Wallach was present when

Mr. Pistorio arrived. Mr. Pistorio introduced himself to

Mr. Wallach and stated his reason for coming to the restaurant.

Mr. Wallach replied with words to the effect that it was a bad

day or a bad time for an inspection. Mr. Pistorio nevertheless

started walking toward the kitchen to begin his inspection.

Mr. Wallach interrupted Mr. Pistorio and repeated that it was a

bad time for an inspection. Mr. Wallach made it clear that he

wanted Mr. Pistorio to leave without performing an inspection and

to come back at some other time to perform the inspection.

Following some further discussion, during which Mr. Wallach

continued to object to the inspection being performed at that

time, Mr. Pistorio said he would have to call his office for

further instructions.

5. Mr. Pistorio called from the restaurant and one of the

supervisory personnel at the local office of the Division of

Hotels and Restaurants told Mr. Pistorio he should leave the

restaurant and attend to other matters pending further

instructions. Thereupon, Mr. Pistorio left the restaurant.

6. About an hour or so later, Mr. Pistorio was contacted by

his office and told to return to the restaurant operated by Don's

Italian, where he would be met by one of his supervisors.

Mr. Pistorio returned to the restaurant, where he was met in the

parking lot by his immediate supervisor, Gene Peters. Messrs.

Pistorio and Peters entered the restaurant and asked Mr. Wallach

if they could conduct an inspection. Mr. Wallach agreed, and the

two inspectors immediately commenced the inspection.

7. Within just a couple of minutes, Mr. Wallach approached

the two inspectors as they were discussing conditions in the

restaurant that appeared to be minor violations. Mr. Wallach

appeared to be agitated and placed a hand on Mr. Peters' shoulder

to get his attention. Mr. Peters told him to remove his hand.

Mr. Wallach became angry and confrontational and ordered

Mr. Peters to leave the restaurant. During the course of this

confrontation, Mr. Peters told Mr. Wallach that he would be

subject to fines if he prevented the inspectors from completing

their inspection. Mr. Wallach continued to demand that

Mr. Peters leave the restaurant, but did agree that Mr. Pistorio

could remain and finish the inspection. Thereupon, Mr. Peters

went out into the restaurant parking lot and Mr. Pistorio resumed

his efforts to inspect the restaurant.

8. A minute or two later, Mr. Wallach noticed that

Mr. Pistorio was writing up a violation based on the morning

incident. Mr. Wallach again became upset and angry and began to

speak to Mr. Pistorio in a confrontational and abusive manner.

Mr. Wallach's abusive comments to Mr. Pistorio included the

threat that if Mr. Pistorio was going to write him up for

violations, ". . . I'll throw your ass out, too." Under these

hostile circumstances, it was not possible for Mr. Pistorio to

continue his inspection without fear of further unpleasantries,

so he promptly left the restaurant and joined Mr. Peters in the

parking lot. Both inspectors left the restaurant premises

without being able to complete an inspection of the restaurant.

9. It is the policy and practice of the Division of Hotels

and Restaurants to inspect restaurants during hours of operation,

usually between the hours of 9:00 a.m. and 5:00 p.m. It is also

a policy and practice to conduct the inspections without prior

notice to the restaurant. Unannounced inspections are more

likely to reveal the normal condition in which the restaurant

facilities are maintained. Restaurant inspections are often made

during peak meal times in order to observe whether proper

sanitary practices are maintained during periods of peak

activity.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

11. In cases of this nature, the Division of Hotels and

Restaurants bears the burden of proving the allegations in the

Notice to Show Cause by clear and convincing evidence. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932,

935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); Section 120.57(1)(h), Florida Statutes. ("Findings of

fact shall be based on a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute.").

12. The Respondent is charged with violation of the

following statutory and rule provisions: Section 509.032(2)(b),

Florida Statutes, and Rule 61C-1.002(8), Florida Administrative

Code. Section 509.032, Florida Statutes, reads as follows, in

pertinent part:

(1) GENERAL.–The division shall carry out

all of the provisions of this chapter and all

other applicable laws and rules relating to

the inspection or regulation of public

lodging establishments and public food

service establishments for the purpose of

safeguarding the public health, safety, and

welfare. . . .

(2) INSPECTION OF PREMISES.–

(a) The division has responsibility and

jurisdiction for all inspections required by

this chapter. . . .

(b) For purposes of performing required

inspections and the enforcement of this

chapter, the division has the right of entry

and access to public lodging establishments

and public food service establishments at any

reasonable time.

13. Rule 61C-1.002(8), Florida Administrative Code,

provides, in pertinent part:

(b) Division personnel shall inspect all

public food service establishments and other

places where food is served to or prepared

for service to the public as often as

necessary for enforcement of the provisions

of law and rule and protection of the

public's health, safety and welfare. . .

Persons operating a public food service

establishment shall permit division personnel

right of entry during operating hours to

observe food preparation and service, and if

necessary examine records of the

establishment to obtain pertinent information

pertaining to food and supplies purchased,

received or used.

14. The Petitioner seeks the imposition of administrative

penalties against Don's Italian pursuant to Section 509.261,

Florida Statutes, which provides, in pertinent part:

(1) Any public . . . food establishment

that has operated or is operating in

violation of this chapter or the rules of

the division, . . . may be subject by the

division to:

(a) Fines not to exceed $1,000 per offense;

(b) Mandatory attendance, at personal

expense, at an educational program sponsored

by the Hospitality Education Program; and

(c) The suspension, revocation, or refusal

of a license issued pursuant to this chapter.

15. The facts in this case are based on clear and

convincing evidence. The facts show that the Respondent violated

Rule 61C-1.002(8), Florida Administrative Code, by interfering

with and preventing the efforts of the inspectors who were trying

to perform a statutorily authorized inspection. Such conduct is

a serious violation. 3

16. In its P roposed R ecommended O rder, the Petitioner

argues that the appropriate penalty in this case is an

administrative fine in the amount of $1,000. Upon consideration

of all of the factors argued by the Petitioner, that appears to

be an appropriate penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be issued in this case

concluding that the Respondent has violated Rule 61C-1.002(8),

Florida Administrative Code, and imposing a penalty consisting of

an administrative fine in the amount of $1,000.

DONE AND ENTERED this 29th day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March, 1999.

ENDNOTES

1 / The style of this case has been modified to state the

complete name of the Respondent corporation.

2 / The P roposed R ecommended Order submitted by the Petitioner

is, for the most part, consistent with the findings and

conclusions reached by the judge, following a consideration of

all of the evidence and the applicable statues, rules, and

decisional law. Extensive portions of the Petitioner's proposed

findings and conclusions have been incorporated into this

Recommended Order.

3 / The serious nature of the violation is reflected in the fact

that under Section 509.281(2)(b), Florida Statutes, "[a] ny

operator who obstructs or hinders any agent of the division in

the proper discharge of the agent's duties" is guilty of a

misdemeanor of the second degree.

COPIES FURNISHED:

Daniel R. Biggins, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Joel Wallach, President

Don's Italian Restaurant of Singer

Island, Inc., d/b/a Italian Connection

10471 Utopia Circle, South

Boynton Beach, Florida 33437

Susan McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1011

William Woodyard, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

issue the Final Order in this case.