99-005347 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Issa Corporation, D/B/A Nature`s Table Status: Closed Recommended Order on Tuesday, August 8, 2000.

Summary: Respondent was penalized for failing to correct violations of Rule 61C, Florida Administrative Code, and the Food Code, adopted and incorporated by that rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 99-5347

)

ISSA CORPORATION, d/b/a )

NATURE'S TABLE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A formal hearing was held in this case on May 23,

2000, in Gainesville, Florida, before the Division of

Administrative Hearings, by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Jamil Al- Issa, pro se

Issa Corporation

6253 Newberry Road, Suite F-20

Gainesville, Florida 32605

STATEMENT OF THE ISSUE

The issue is whether Respondent's public food

establishment license should be revoked or otherwise

penalized for violating Chapter 509, Florida Statutes, and

Rule 61C, Florida Administrative Code.

PRELIMINARY STATEMENT

Petitioner Department of Business and Professional

Regulation, Division of Hotels and Restaurants (Petitioner)

issued an Administrative Complaint against Respondent Issa

Corporation, d/b/a Nature's Table (Respondent) on February

24, 1999. Respondent requested a formal hearing to contest

the charges in the complaint. Petitioner subsequently

referred the case to the Division of Administrative

Hearings on December 21, 1999.

A Notice of Hearing scheduled the hearing for April

13, 2000. An Amended Notice of Hearing rescheduled the

hearing for May 23, 2000.

At the hearing, Petitioner presented the tes timony of

one witness and offered Exhibit Numbers P1-P3, which were

accepted into evidence. Respondent presented the testimony

of one witness but offered no exhibits for admission into

evidence.

A Transcript of the proceeding was filed on July 13,

2000. Petitioner filed a Proposed Recommended Order on

July 24, 2000. Respondent did not file proposed findings

of fact or conclusions of law.

FINDINGS OF FACT

1. Petitioner is the state agency that has the

responsibility to license and inspect public food service

establishments pursuant to Chapter 509, Florida Statutes.

2. At all times material hereto, Respondent was

licensed to operate and did operate a public food service

establishment, holding license number 11-02423-R.

Respondent's restaurant is located at 6253 Newberry Road,

Gainesville, Florida.

3. On January 22, 1999, Petitioner's staff inspected

Respondent's establishment. The inspection revealed

eighteen violations for which Respondent was cited. Ten of

the violations were repeat offenses. Respondent was

advised in writing that all violations had to be corrected

by February 4, 1999.

4. On February 5, 1999, Petitioner's staff performed

a call back/re-inspection at Respondent's restaurant. The

inspection revealed that Respondent had not corrected the

following five violations: (a) sliced turkey at 51°F in

well of sandwich-maker table; (b) unavailability of a

product thermometer; (c) plastic tableware not dispensed

with handles extended out; (d) glass cleaner stored on

counter at the ice bin; and (e) extension cord used at the

drink refrigerator.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of

this proceeding. Sections 120.569 and 120.57(1), Florida

Statutes.

6. Pet itioner has the burden of proving by clear and

convincing evidence that Respondent failed to correct five

of the violations for which he was cited on January 22,

1999. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

7. Petitioner has the duty to regul ate and inspect

public food service establishments for the purpose of

safeguarding the public health, safety, and welfare.

Section 509.032(1), Florida Statutes. It also has the

responsibility to promulgate such rules as are necessary to

carry out its obligations. Sections 509.032(2),

509.032(3), and 509.032(6), Florida Statutes.

8. In Chapter 61C, Florida Administrative Code,

Petitioner adopted and incorporated by reference certain

relevant chapters of the Food Code, 1997 Recommendations of

the United States Public Health Service/Food and Drug

Administration (Food Code).

9. Chapter 61C, Florida Administrative Code, states

as follows in pertinent part:

61C-1.004 General Sanitation and Safety

Requirements.

The following general requirements and

standards shall be met by all public

lodging and public food service

establishments:

* * *

(4) The storage and use of poisonous

and toxic materials shall be governed

by the provisions of Chapter 7, Food

Code, herein adopted by reference. . .

* * *

61C-4.010 Sanitation and Safety

Requirements.

(1) Food Supplies and Food Protection

- Except as specifically provided in

this rule, public food service

establishments shall be subject to the

provisions of Chapter 3, Food Code,

herein adopted by reference.

* * *

(5) Food Equipment, Utensils and

Linens - Public food service

establishments shall be subject to the

provisions of Chapter 4, Food Code,

herein adopted by reference.

10. Rule 61C-1.004(11), Florida Administrative Code,

prohibits the use of extension cords except during

cleaning, maintenance, and other temporary activities.

Respondent's use of an extension cord at the drink

refrigerator violated this rule.

11. In regard to potentially hazardous food, and the

hot and cold holding of same, Section 3-501.16 of the Food

Code states as follows in pertinent part:

Except during preparation, cooking, or

cooling, or when time is used as the

public health control . . . POTENTIALLY

HAZARDOUS FOOD shall be maintained:

* * *

(c) At 7°C (45°F) or between 7°C

(45°F) and 5°C (41°F) in existing

refrigeration EQUIPMENT that is not

capable of maintaining the food AT 5°C

(41°F) or less if:

(1) The EQUIPMENT is in place and in

use in the FOOD ESTABLISHMENT; and

(2) Within 5 years of the REGULATORY

AUTHORITY'S adoption of this Code, the

EQUIPMENT is upgraded or replaced to

maintain FOOD at a temperature of 5°C

(41°F) or less.

Respondent violated this provision because sliced turkey in

the well of the sandwich-maker table was 51°F.

Respondent's failure to keep the sliced turkey, a

potentially hazardous food, at a safe temperature was

Respondent's most serious offence and a violation of a

"critical rule" as that term is defined in Rule 61C-1.0021,

Florida Administrative Code.

12. Section 4-302.12 of the Food Code states , "FOOD

TEMPERATURE MEASURING DEVICES shall be provided and readily

accessible for use in ensuring attainment and maintenance

of FOOD temperatures as specified under Chapter 3."

Respondent violated this provision because a product

thermometer was unavailable.

13. Section 4-904.11 of the Food Code states the

following relative to kitchenware and tableware:

(A) Single-SERVICE and SINGLE-USE

ARTICLES and cleaned and SANITIZED

UTENSILS shall be handled, displayed,

and dispensed so that contamination of

FOOD- and lip-contact surfaces is

prevented.

(B) Knives, forks, and spoons that are

not prewrapped shall be presented so

that only the handles are touched by

EMPLOYEES and by CONSUMERS if CONSUMER

self-service is provided.

(C) Except as specified under ¶ (B) of

this section, SINGLE-SERVICE ARTICLES

that are intended for FOOD- or lip-

contact shall be furnished for CONSUMER

self-service with the original

individual wrapper intact or from an

APPROVED dispenser.

Respondent violated this provision because plastic

tableware was not dispensed with handles extended out.

14. Section 7-201.11 of the Food Code states as

follows:

POISONOUS OR TOXIC MATERIALS shall be

stored so they can not contaminate

FOOD, EQUIPMENT, UTENSILS, LINENS, and

SINGLE-SERVICE and SINGLE-USE ARTICLES

by:

(A) Separating the POISONOUS OR TOXIC

MATERIALS by spacing or partitioning;

and

(B) Locating the POISONOUS OR TOXIC

MATERIALS in an area that is not above

FOOD, EQUIPMENT, UTENSILS, LINENS, and

SINGLE-SERVICE or SINGLE-USE ARTICLES.

This paragraph does not apply to

EQUIPMENT and UTENSIL cleaners and

SANITIZERS that are stored in

WAREWASHING areas for availability and

convenience if the materials are stored

to prevent contamination of FOOD,

EQUIPMENT, UTENSILS, LINENS, and

SINGLE-SERVICE and SINGLE-USE ARTICLES.

Respondent violated this provision because glass cleaner, a

poisonous or toxic material, was stored on the counter at

the ice bin. The bottle of glass cleaner posed a threat to

public health and safety due to possible leakage onto the

counter, a food contact surface, and to contamination of

the ice, which is defined as food. Respondent's failure to

properly store the glass cleaner was a violation of a

"critical rule."

15. Petitioner carried its burden of proving each of

the above-referenced violations by clear and convincing

evidence.

16. Section 509.261(1)(a), Florida Statues,

authorizes Petitioner to suspend or revoke the license of

Respondent, or to impose administrative fines, not to

exceed $1,000 for each offence.

17. Section 509.281(2), Florida Statues, provides as

follows:

For the purposes of this section, the

division may regard as a separate

offense each day or portion of a day on

which an establishment is operated in

violation of a "critical law or rule,"

as that term is defined by rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and

Conclusions of Law, it is

RECOMMENDED:

that Petitioner enter a final order finding that

Respondent is guilty of violating Chapter 509, Florida

Statues, and imposing an administrative fine in the amount

of $200.00.

DONE AND ENTERED this 8th day of August, 2000, in

Tallahassee, Leon County, Florida.

______________________________

SUZANNE F. HOOD

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 8th day of August, 2000.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Jamil Al- Issa

Issa Corporation

6253 Newberry Road, Suite F-20

Gainesville, Florida 32605

Jamil Al-Issa

5160 Conroy Road, Apartment 1414

Orlando, Florida 32811

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara D. Auger, 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.