STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0530

)

HOWARD BOULETTE, )

d/b/a HOWARD'S RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- styled case on May 26, 1987 in DeLand, Florida.

APPEARANCES

For Petitioner: Lynne A. Quimby, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927

For Respondent: Howard Boulette

488 South Yonge Street Ormond Beach, Florida 32074

By a Notice To Show Cause dated December 19, 1986 and filed with the Division of Administrative Hearings on February 12, 1987, Petitioner seeks to revoke, suspend or otherwise discipline the restaurant license of Respondent, Howard Boulette. As grounds therefore, it is alleged that the Respondent failed to (a) Store potentially hazardous foods at a safe temperature in violation of Rule 10D-13.024(2), Florida Administrative Code; (b) provide proper thermometers in facilities used for the storage of perishable foods in violation of Rule 10D- 13.026(1)(a), Florida Administrative Code; (c) Keep the meat slicer properly cleaned and sanitized in violation of Rule 10D-13.026(4)(a), Florida Administrative Code; (d) clean non-food contact surfaces in violation of Rule 10D-13.026(4)(a), Florida Administrative Code; (e) Eliminate vermin, insects, or restrict other animals in violation of Rule 10D-13.027(8), Florida Administrative Code and; (f) Provide properly maintained floors in violation of Rule 10D- 13.028(1),Florida Administrative Code after being cited and warned of these alleged violations on November 17, 1986.

In support of the charges Petitioner presented the testimony of Steve Tyler, Lester Euell and Glenn Hartley. Petitioner's exhibits numbers 1, 2 and 3 were received into evidence. Respondent testified on his own behalf and was allowed to late file five (5) exhibits relating to a contract with a pest control company in December, 1986 and four (4) months inspection reports of an

earlier pest control company for the period of June 9, 1986 through September 10, 1986. Petitioner objected to these exhibits being received into evidence on the basis of relevancy and materiality and authenticity. Having reviewed the documents and Petitioner's argument, Respondent's exhibits 1 through 5 are received into evidence.

The Petitioner submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling has been made on each proposed finding; of fact as reflected in the Appendix to this Recommended Order. The Respondent did not submit any posthearing Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent, Howard Boulette, held a Division of Hotels and Restaurants license number 74-03147R, issued to Howard's Restaurant (Howard's), owned by Respondent and located at 488 South Yonge Street, Ormond Beach, Volusia County, Florida.

   
   

2. Steve Tyler (Tyler), an Environmental Health Specialist, employed by the Volusia County Health Department since September, 1984, inspected the premises at Howard's on November 17, 1986 and cited Respondent for several violations which were recorded on the Food Service Inspection Report (Report) prepared by Tyler on November 17, 1986 and left with an employee of Respondent's. The Report issued a warning requiring of both major and minor violations to be corrected by November 20, 1986.

   
   

3. The violations found and noted on the November 17, 1986 Report by Tyler were violation under: (a) Item-03, Potentially hazardous food meets temperature requirements during storage, preparation, display, service, transportation; (b) Item-05, thermometer provided and conspicuous; Item-06, Potentially hazardous food properly thawed; (c) Item-08, Food protection during storage; (d) Item-12, Hands washed and clean, good hygiene protection; (e) Item-22, Food Contact Surface of equipment and utensils clean; (f) Item-23, non-food contact surfaces of equipment and utensils clean; (g) Item-35, Presence of insects/rodents; (h) Item-36, Floors Clean and; (i) Item-5l, Other conditions - sanitary and safe operation. The Report indicated that Items 03, 05, 06 and 35 were both major and minor violations whereas Items 08, 12, 22, 23 and 51 were minor violations and Item 36 was only a major violation.

   
   

4. Tyler upon his follow-up inspection on November 20, 1986 found that Respondent had not complied with previous violations under Item 03, 05, 22, 23,

   35 and 36 listed in the November 17, 1986 Report. Specifically, Tyler on his follow-up inspection of November 20, 1986 found: (a) Potentially hazardous foods such as tuna fish salad and ham being kept in preparation coolers at 52 degrees F and 50 degrees F, respectively when the rule requires 45 degrees F or less; (b) An ice cream freezer, pie cover and a white vertical freezer without thermometers or thermometers not located where they are easily and readily observed; (c) The food contact surface of the meat slicer not clean in that particles of food were left on the slicer, (d) The non-food contact surfaces of grill, deep fat fryer and hood was very greasy; (e) An extremely bad infestation of roaches, especially in kitchen and (e) Dirty floor under grill and deep fat fryer, counters and equipment in kitchen.

5. Tyler made his inspection of Respondent's restaurant between 1:00 and 2:00 p.m., a period during which food is being prepared and served or in close proximity to a period of time when food is being prepared and served.

   
   

6. Respondent's restaurant was on a monthly inspection and treatment plan for insects such as roaches with Terminix, a pest control company. The testimony of Respondent, which I found credible, was that the treatment for insects was ineffective and roaches were present during the period of time of the inspection by Tyler. Respondent terminated Terminix and on December 5, 1986 contracted with TPE for insect control.

   
   

7. Tyler's testimony that other restaurant's had coolers that would maintain a temperature of 45 degrees F during the time food is being prepared and served was credible.

   
   

8. Tyler did not discuss the Report of November 17, 1986 or the Call Back/Re-Inspection Report of November 20, 1987 with Respondent but did leave a copy of each with Respondent's employee on each occasion and on November 17, 1986 advised the employee that compliance was required by November 20, 1986 the day of the Call Back Inspection.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes (1985).

   
   

10. Section 509.032, Florida Statutes, wherein is found the duties of the Petitioner, provides in pertinent part:

    
    

    1. GENERAL - The division shall carry out all of the provisions of this chapter and all other laws relating to the inspection or regulation of ... public food service establishments for the purpose of safeguarding the public health, safety and welfare....

    2. INSPECTION OF PREMISES.--

       1. The division. . .shall inspect at least four times annually each public food service establishment in this state, and for that purpose, it, or its contractual designee, shall have the right of entry and access to such establishments at any reasonable time.

       2. Primary responsibility and jurisdiction for all inspections required by this chapter is placed in the division. The Department of Health and Rehabilitative Services shall:

       1. Prescribe sanitary standards which shall be enforced in public food service establishments and ensure that such standards are maintained;

    3. RULEMAKING AUTHORITY. The division shall adopt such rules as are necessary to carry out the provisions of this chapter.

11. The Department of Health and Rehabilitative Services pursuant to Section 381.031(1)(g)3., Florida Statutes promulgated Chapter 10D-13, Florida Administrative Code which in pertinent part provides as follows:

    
    

    Rule 10D-13.022(2)(3), Florida Administrative Code

    
    

    1. "Perishable food" - Any food of such type or in such condition as may spoil....

    2. "Potentially hazardous food" - Any perishable food which consists in whole or in part of milk, milk products, eggs, meat, poultry, fish, shellfish, edible crustacia, or other ingredients...in a form capable of supporting rapid and progressive growth of infection or toxigenic microorganisms....

    
    

    Rule 10D-13.024(2), Florida Administrative Code

    
    

    Perishable foods shall be stored at such temperatures as will protect against spoilage. All potentially hazardous foods shall be kept at safe temperatures (45 F. or below and 140 F. or above) except during necessary periods of preparation and service.

    
    

    Rule 10D-13.026(1)(a), Florida Administrative Code

    
    

    where temperature requirements must be met, food storage facilities shall be provided with controls which ensure the maintenance of such temperatures. Each facility used for the storage of perishable foods shall? be provided with a numerically scaled indicating thermometer accurate to plus or minus three degrees Fahrenheit (+-3 F), located in the

    ... coldest part of the facility as may be applicable and of such type and so situated that the temperature can be easily and readily observed...

    Rule 10D-13.026(4)(a), Florida Administrative Code. All... food contact surfaces of equipment

    ... shall be thoroughly cleaned and sanitized

    after each use. The food contact surfaces of all cooking equipment shall be kept free of encrusted grease deposits and other accumulated soil... Non-food contact surfaces of equipment shall be cleaned at such intervals as is necessary to keep them free

    of dust, dirt, food particles and otherwise in a clean and sanitary condition....

    
    

    Rule 10D-13.027(8), Florida Administrative Code.

    
    

    Vermin control - Effective control measures shall be taken to protect against the

    entrance into the food establishment, and the breeding or presence on the premises of rodents, flies, roaches and other vermin...

    
    

    Rule 10D-13.028(1), Florida Administrative Code

    
    

    The floor surfaces in kitchens and all the rooms and areas in which food is stored or prepared, utensils are washed or stored, walk-in refrigerators, garbage and rubbish rooms and toilet, dresser and locker rooms

    shall be smooth, nonabsorbent material and so constructed as to be easily cleanable... The floor surfaces in all interior and exterior areas where food is served shall be of such construction and finish as to be easily cleanable.. All floors shall be kept clean and in good repair.

    
    

12. The Petitioner pursuant to Section 509.032(2)(b)1. and (3), Florida Statutes promulgated Rule 7C-4.0001, Florida Administrative Code and adopted the sanitary standards prescribed in Chapter 10D-13, Florida Administrative Code as the sanitary standards to be enforced in public food service establishments by the health authority.

    
    

13. Under Section 509.261, Florida Statutes, the Petitioner is granted the authority to revoke or suspend the license of a public food service establishment that has operated or is operating in violation of Chapter 509, Florida Statutes or Chapter 10D-13, Florida Administrative Code or in lieu thereof to impose an administrative fine for such violation not to exceed

    $500.00 for each offense.

    
    

14. The burden is on the party asserting the affirmative, Balino v. Department of HRS, 348 So2d 347 (1 DCA Fla. 1977). The evidence is clear that the Petitioner has met its burden of proof to show that Respondent had violated:

    (a) Rule 10D-13.026(1)(a), Florida Administrative Code by failing to provide facilities for storage of perishable foods with thermometers or failing to locate such thermometers so that the temperature could be easily and readily observed; (b) Rule 10D-026(4)(a), Florida Administrative Code by failing to keep the food contact surfaces of the meat slicer clean and failing to keep the non- food contact surfaces of the grill and deep fat fryer equipment and hood clean;

    (c) Rule 10D-13.027(8), Florida Administrative Code by failing to have effective roach control inside the restaurant, specifically within the kitchen area and;

    (c) Rule 10D-13.028(1), Florida Administrative Code by failing to keep certain floor surfaces clean.

    
    

15. Petitioner has failed to meet its burden of proof to show a violation of Rule 10D-13.024(2), Florida Administrative Code in that the inspection was made during a time when food is normally being prepared or served and the 5 degree and 7 degree variance in temperature during this period of time would appear to be within an acceptable range. Particularly, since the rule gives no guidance as to an acceptable variance of temperature during the period of time food is being prepared or served.

    
    

16. In making a recommendation for the penalty to be imposed, mitigating circumstances, if any, should be considered. In this regard, the purpose of inspecting a public food service establishment is to inform the licensee of any

    violations observed and to instruct the licensee on the corrective action to be taken to safeguard the public health, safety and welfare and at the same time avoid future violations. In the instant case, Respondent did correct some of the violations within the three- day period as required by the Report.

    Additionally, Respondent did, after the fact, change a pest control company in an effort to control the roaches. Also, the fact that the inspection was made during a period of time considered to be lunch time could explain the meat particles being left on the food contact surface of the meat slicer.

    
    

17. Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine of $1,000.00 against the Respondent.

Respectfully submitted and entered this 18th day of June, 1987, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0530

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Findings of Fact 2 and 3.

4. Adopted in Finding of Fact 3.

5. Adopted in Finding of Fact 3.

6.-10. Adopted in Findings of Fact 3 arid 4.

1. Rejected as immaterial and irrelevant.

2. Adopted in Finding of Fact 8.

13.-20. Adopted in Finding of Fact 4.

21. Adopted in Finding of Fact 7.

22.-26. Treated as part of the conclusions of law and in that regard is rejected as a finding of fact.

1. Adopted in Finding of Fact 6.

2. Rejected as not supported by the substantial competent evidence in the record.

3. Rejected as not supported by the substantial competent evidence in the record.

4. Rejected as immaterial and irrelevant.

5. Rejected as immaterial and irrelevant.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent No Findings of Fact were submitted by Respondent.

COPIES FURNISHED:

R. Hugh Snow, Director

Division of Hotels and Restaurants Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee,. Florida 32399-1000

James Kearney, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Lynn A. Quimby, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927

Howard Boulette

488 South Yonge Street Ormond Beach, Florida 32074

Docket for Case No: 87-000530

Orders for Case No: 87-000530