v. ) CASE NO. 88-6356
be kept clean.
The Division reiterated these violations in the Notice to Show Cause.
The Respondents disputed the allegations of fact contained in the Notice to Show Cause and requested a formal administrative hearing.
During the hearing, the Petitioner presented five witnesses and submitted three exhibits which were accepted into evidence. Mr. Le cross-examined the witnesses and testified on behalf of the Respondents. Two exhibits were filed by Mr. Le post hearing, and were accepted into evidence.
A transcript of the hearing was not ordered. Both the Petitioner and the Respondents filed proposed findings of fact. Rulings on the proposed findings are in the Appendix to this Recommended Order.
During the applicable time period, the Respondents held a valid Division license for L'Orient Express Restaurant, license number 39-0587R, located at 4815 West Laurel Street, Tampa, Hillsborough County, Florida 33607- 4507. This license will expire on February 1, 1989.
On December 19, 1988, the premises of the restaurant were inspected by Kristine Turnbull, an Environmental Health Specialist. Ms. Turnbull is employed by the Hillsborough County Health Unit, which is part of the Department of Health and Rehabilitative Services.
During the inspection, Ms. Turnbull tested egg rolls, pork, and shrimp within the restaurant in order to determine whether these foods were being kept at the proper temperatures which would prevent such foods from becoming contaminated. The tests performed by Ms. Turnbull revealed that these foods were being kept at temperatures of 60 degrees F., 50 degrees F., and 50 degrees F., respectively.
Ms. Turnbull observed ten to fifteen roaches run out of the dishwashing machine during the inspection.
The Respondents have made an effort to prevent roach infestation by employing Doug Boyer's Pest Control, Inc. The premises are sprayed for roaches by the company on a monthly basis. In between these scheduled visits, Mr. Le sprays for roaches after the restaurant is closed at night.
Ms. Turnbull observed fresh rat droppings in the restaurants storeroom during the inspection.
Beds and blankets were found within the premises by Ms. Turnbull. However, the platform which the inspector believed was a bed, was actually a makeshift stage used for live band performances. This stage was wrapped in colorful cloths for decorative purposes.
On the date of the inspection, the dishwashing machine was not working properly. Insufficient amounts of chlorine were dispensed into the water which was supposed to clean and sanitize the dishes, glassware, and eating utensils. Once the Respondents learned of the problem, the machine was promptly repaired and restored to working order.
Floors, walls, and ceilings were found to be poorly maintained and in need of extensive cleaning.
Ms. Turnbull found the stove, the stove hood, the fryer, and the wok covered with a thick grease film which appeared to have been built up over an extended period of time. This equipment, along with the slicer and knives used in food preparation, were in need of extensive cleaning. Old food was encrusted in areas of the slicer and knives where such build up could occur.
The conditions observed by the inspector are contrary to the sanitary practices set forth in Chapter 10D-13, Florida Administrative Code. All food service establishments in Florida are required to adhere to these sanitary practices.
The rules were promulgated by the Department of Health and Rehabilitative Services pursuant to Chapter 381, Florida Statutes.
Based upon the rule violations discovered during the inspection, L'Orient Express Restaurant was condemned by Donald Kwalick, Director of the Hillsborough County Health Unit, on December 20, 1988.
On December 20, 1988, the Director of the Hillsborough County Health Unit sent a memorandum to the Director of the Division. The memorandum informed the Director that L'Orient Express Restaurant had been closed. Restaurant conditions which caused the director of the county health unit to close the restaurant were described in the memorandum.
The Director of the Division issued a Notice to Show Cause why the licensed issued by the Division should not be suspended or revoked, based upon the condemnation of the restaurant, and the conditions described within the memorandum.
Three prior consent orders have been issued by the Petitioner against the Respondents for sanitary code violations at L'Orient Express Restaurant within a ten month period.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Sections 120.60(1) and 120.57(1), Florida Statutes.
Section 509.261, Florida Statutes, empowers the Division of Hotels and Restaurants to suspend or revoke or otherwise discipline the license of the Respondents if they are found guilty of any acts which violate Chapter 509, Florida Statutes, or the rules of the Division.
A proceeding to discipline a license is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). In such contests, the Petitioner has the burden of proof and must prove by clear and convincing evidence that the Respondents committed the violations set forth in the charging document.
In this case, the Notice to Show Cause alleged that L'Orient Express Restaurant was condemned by the Director of the County Health Unit as an immediate health hazard and danger to the health, safety, and welfare of the
public based upon a number of sanitary code violations revealed during the December 19, 1988, inspection.
Section 509.26(4)(b), Florida Statutes, allows the Division to suspend or revoke the license of a public food service establishment when "... such establishment has been condemned by the local health authority for failure to meet sanitation standards..."
The underlying factual findings and the decision of the local health authority are not subject to review in these proceedings. Because the condemnation was based on the violation of rules promulgated by the Department of Health and Rehabilitative Services under the authority of Chapter 381, Florida Statutes, the presumption exists that the action by the Department of Health and Rehabilitative Services was just and legal. Section 381.081, Florida Statutes, provides in pertinent part:
The authority, action and proceedings of the Department of Health and Rehabilitative Services in enforcing the rules and regulations adopted by it under the provisions of this chapter shall be regarded as judicial in nature and treated as prima facie just and legal.
The Petitioner proved by clear and convincing evidence that the restaurant was condemned by the local health authority for the reasons given in the Notice to Show Cause. The Petitioner may suspend or revoke the license on that basis. However, in this case, the Petitioner went beyond he presumption of Section 381.081, Florida Statutes, and proved many of the underlying sanitary code violations committed by Respondents. The Divisions authority to seek discipline of the license for these violations is located in Section 509.032, Florida Statutes, which requires the Division to carry out all of the provisions of Chapter 509, Florida Statutes, 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."
Although it was proved that shrimp and pork are "potentially hazardous foods," pursuant to Section 10D-13.022(3), Florida Administrative Code, the Petitioner failed to prove that egg rolls fall within the definition. Accordingly, it was not proved by clear and convincing evidence that the safe temperatures required for all potentially hazardous foods in Rule 10D- 13.024(2)., Florida Administrative Code, apply to the Respondents' egg rolls.
The factual findings of the Hearing Officer establish that the Respondents retained a pest control service that did not use effective control measures against roaches. As Rule 10D-13.028(7), Florida Administrative Code, places the responsibility on the food service establishment, the charges that the licensed premises were not rat free, not rat proof, and were infested with roaches were proved at hearing.
The Petitioner was able to show that the dishwashing machine was not dispensing an effective concentration of chlorine, as a suitable detergent. Failure to properly sanitize dishes is contrary to Rule 10D-13.026(5), Florida Administrative Code. The fact that the machine was promptly repaired should be considered in mitigation of this code violation.
The licensed premises were not used as living quarters. Therefore, there was no underlying violation of Rule 10D-13.028(7), Florida Administrative Code.
Rule 10D-13.028, Florida Administrative Code provides that floors, walls, and ceilings are to be kept clean and in good repair. These provisions were violated by Respondents.
Rule 10D-13.026(4)(a), Florida Administrative Code requires restaurant equipment be kept clean and properly maintained. Violation of this rule was established by clear and convincing evidence at hearing when it was proved that the equipment was covered with grease film buildup, and in need of general cleaning. Even if some of the cleaning problems are a result of building conditions, the rules place the responsibility for complying with sanitation standards on the Respondents.
License revocation or suspension proceedings which are conducted by the Division of Hotels and Restaurants are governed by Rule 7C-1.002(3), Florida Administrative Code. The rule gives the Respondents the opportunity to state facts or law in mitigation of the matters of fact or law asserted in the notice. Facts which mitigate matters of fact asserted in the notice were considered and noted by the hearing officer in the Findings of Fact. Once the Respondents were found guilty of one or more of the allegations set forth in the notice, the three prior orders issued by the Director which discipline the Respondents for past sanitary code violations were considered in the recommendation to revoke or suspend the license.
DONE and ENTERED this 2nd day of February, 1989, at Tallahassee, Florida.
VERONICA E. DONNELLY
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6356
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Department of Business Regulation Division of Hotels and Restaurants
Specific Rulings on Proposed Findings of Fact Submitted by Respondents N.T. & Vinh L. Le
Elizabeth C. Masters, Esquire Joseph A. Sole, Esquire Assistant General Counsel General Counsel Department of Business Regulation Department of Business 725 South Bronough Street Regulation
Vinh L. Le and N.T. Le 4815 West Laurel Street Tampa, Florida 33607-4507
Carol B. Dover, Director Department of Business Regulation Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32399-1011
Van B. Poole, Secretary Department of Business Regulation The Johns Building
