STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF HOTELS AND RESTAURANTS, )
)
Petitioner, )
)
vs. ) CASE NO. 89-3869
) CAPTAIN'S TAVERN RESTAURANT, INC. ) d/b/a CAPTAIN'S TAVERN RESTAURANT )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on September 29, 1989, in Miami, Florida.
APPEARANCES
For Petitioner: John B. Fretwell, Esquire
Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: William P. Bowers, Pro Se
9621 South Dixie Highway Miami, Florida 33156
STATEMENT OF THE ISSUES
The ultimate issue for determination is whether the Respondent committed the violations alleged in the Notice to Show Cause, dated April 4, 1989, as amended. If so, a determination of appropriate discipline, if any, must be made.
PRELIMINARY STATEMENT
On April 4, 1989, Petitioner entered a Notice to Show Cause against Respondent. The Respondent requested a hearing before the Division of Administrative Hearings on May 8, 1989. The matter was referred to the Director of the Division of Administrative Hearings for appointment of a Hearing Officer on July 18, 1989.
At the formal hearing, Petitioner's Notion to Amend Notice to Show Cause was granted without objection by Respondent. Petitioner presented testimony from two witnesses, and offered four exhibits, each of which was received into
evidence without objection. Respondent offered one exhibit. It was determined to be irrelevant and excluded from the record. 1/ Respondent testified in his own behalf.
Proposed findings of facts and conclusions of law were due on October 14, 1989. Respondent waived his right to submit proposed findings of fact and conclusions of law. Petitioner's proposed findings of facts and conclusions of law were timely filed, and are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Respondent was doing business at 9621 South Dixie Highway, Miami, Dade County, Florida, as Captain's Tavern under restaurant license number 23-03388R.
Mr. Mohammed Khatibi, Environmental Health Specialist, Department of Health and Rehabilitative Services, inspected Respondent's licensed premises on February 24, 1989.
Clam or oyster shells, stuffed with seafood, were observed in a cooling unit. Other clam or oyster shells were being washed in the dishwasher for subsequent use in serving food. Credible, unrebutted evidence presented by Respondent showed that Respondent removes the animal from the shell, washes the shell, and stuffs the washed shell with seafood to serve to customers. Washing the shell before using it to serve food to customers protects customers from cross contamination by dirt and sea water. Each shell is used only once, and then discarded.
One of 3 sinks in the food preparation area was provided with neither soap nor towels. The other two sinks were provided with both soap and towels. Credible, unrebutted evidence presented by Respondent showed that the sink without soap or towels is next to the ice machine and used exclusively for dispensing ice water to patrons. Any other use may create unsanitary conditions for dispensing ice water to patrons. Soap and towels are not stored at that sink in order to discourage employees from any use except dispensing ice water. Soap and towels are provided at the other two sinks in the food preparation area. Petitioner presented no evidence that Respondent's employees failed to wash their hands properly at the two sinks with soap and towels.
Portable fryers and woks were not positioned under an exhaust hood. Credible, unrebutted evidence presented by Respondent established that the fryers and woks at issue were positioned next to a large exhaust hood designed and used for other types of cooking.
The cutting board below the grill and the food scale were in need of cleaning.
Take out containers were stored next to the lobster tank uncovered and right side up. Credible, unrebutted evidence presented by Respondent established that the take out containers are used exclusively for take out of live lobsters to be cooked by the customer at a location other than Respondent's licensed premises. The take out containers are not used for take out of any food prepared and cooked by Respondent.
A pipe was leaking in the ceiling in the kitchen. Tiles were missing from the ceiling in the kitchen where the pipe was leaking.
Lids on the dumpster outside of the premises were not closed, and the dumpster contained food debris and other loose garbage. Food debris and grease were located on the ground around the dumpster. Credible, unrebutted evidence presented by Respondent demonstrated that Respondent's employees initially place garbage in plastic bags and placed the plastic bags in the dumpsters securely tied. The garbage pick up service uses a truck that turns the dumpster upside down to dump the garbage into the truck. During that process, plastic bags are torn and food debris and loose garbage is spilled. Respondent's employees sweep up after each garbage pick up, place the loose garbage into boxes, and place the boxes into the dumpster.
Used grease is stored outside in a metal storage unit near the garbage dumpster. A pickup service spills grease onto the ground during pickup.
Respondent requires his employees to clean the area after each pick up.
However, it is impossible to remove the grease that is absorbed into the asphalt and which accumulates over time.
Floors under the ice machines, in the walk-in coolers, and under all cooking equipment were in need of cleaning, particularly under the cooking equipment.
Food was observed in containers on the floor of the walk-in freezer. Credible, unrebutted evidence presented by Respondent established that food in the walk in freezer generally is stored on shelves that are 6 inches or more above the ground. The containers of food observed by Mr. Khatibi on the floor of the walk in freezer were placed there by Respondent's employees for present use during the day of inspection.
Walls above and behind the reach-in cooler required cleaning. The wall and door next to a steel table were dirty. The wall below the steel table across from the ovens needed cleaning. Walls behind appliances were particularly dirty. Walls below the towel dispenser and above the wire rack in the dishwashing area had holes in them.
Mr. Khatibi informed Respondent that the items in paragraph 2 constituted violations that must be corrected prior to a call back inspection to be conducted in the future as part of the regular inspection process.
All violations noted on February 24, 1989, were corrected on or before the date of the call back inspection on March 2, 1989.
During subsequent inspections conducted on June 13, and September 11, 1989, a portable fryer was back on the premises and located next to but not underneath the large hood used for other types of cooking.
Six of the nine violations noted on the 24th of February, 1989, were characterized by the inspector as major violations. A violation may be characterized as major for either of two reasons. First, a violation may be characterized as major if it is a recurring violation. Second, a violation may be characterized as major if it is a significant violation even though it has never occurred before.
Pursuant to Stipulation and Consent Orders, administrative fines were levied against Respondent by Petitioner for violations of the Florida Administrative Code in 1986, 1987, and 1988.
One of the two 1986 violations for which Respondent was fined was a failure to clean floors under equipment.
Two of the four 1987 violations for which Respondent was fined were failure to maintain the garbage disposal area by not cleaning the area around the dumpster and failure to repair walls.
Three of the 16 violations for which Respondent was fined in 1988 were: (a) failure to maintain the area outside around the garbage dumpster;
(b) failure to maintain floors; and (c) failure to maintain walls and ceiling.
Mr. Khatibi has been employed as an Environmental Health Specialist for approximately 4 years. His regular duties include inspection of restaurants, including Captain's Tavern.
The condition of the licensed premises has markedly improved during the period that Mr. Khatibi has been conducting inspections. Respondent has purchased roll out equipment so that floors and walls underneath that equipment can be adequately cleaned. A new dishwasher has been purchased and a new floor put in. Walls have been replaced, and other significant improvements have been made. Approximately $120,000 has been expended on these improvements.
CONCLUSIONS OF LAW
The Department of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding.
The burden is on Petitioner to establish the elements of each allegation in the Notice to Show Cause by substantial, competent evidence. Substantial, competent evidence is "such evidence as a reasonable man would accept as adequate to support a conclusion". Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962). Since Respondent's public food service establishment license is not a professional license, the clear and convincing evidence standard of Ferris v. Turlington, 510 So.2d 292 (Fla. 1987) is not applicable.
Respondent did not violate Rule 10D-13.026(4)(b), Florida Administrative Code. Petitioner alleged in paragraph G of the Notice to Show cause, as further explained at the formal hearing, that storing uncovered take out containers right side up next to a lobster tank violated Rule 10D- 13.026(4)(b). The Rule, in relevant part, states:
All single service articles shall be stored, handled and dispensed in a sanitary manner and shall be used only once.
Credible, unrebutted evidence presented by Respondent established that the take out containers in question are used exclusively by customers to carry live lobsters from the premises for preparation, cooking and consumption off of the premises. Rule 10D-13.026(4)(b) is intended to protect the public from possible contamination of prepared food placed in a single service container. The containers at issue are not used for a purpose prohibited by the rule cited in the Notice to Show Cause.
A live lobster is not food, within the meaning of Rule 10D- 13.022(1). Rule 10D-13.022(1), in relevant part, defines the term "food" as any "raw, cooked or processed edible substance...." A live lobster is raw, but it
is not edible. The containers in issue were not used for a purpose prohibited by the rule cited in the Notice to Show Cause.
Respondent did not violate Rules 10D-13.024 and 10D-13.026(2)(e), Florida Administrative Code. Petitioner alleged in Paragraph A of the Notice to Show Cause, as amended by Petitioner's Motion to Amend Notice to Show Cause, that Respondent reused oyster and clam shells for serving food.
Rule 10D-13.024(12), in relevant part, states:
Individual portions of food once served to a customer shall not be served again....
Oyster and clam shells are not food because they are not "edible" within the meaning of Rule 10D-13.022(1). 2/ Even if such shells are served to customers more than once, it would not violate the prohibition in Rule 10D-13.024(12) against serving "food" more than once.
Rule 10D-13.026(2)(e), in relevant part, states:
Mollusk and crustacean shells may be used only once as a serving container. Further reuse of such shells for food service is prohibited.
Oyster and clam shells used by Respondent as a serving container are used only once. The shells are washed prior to such use as a sanitary precaution to protect against cross contamination from dirt and sea water in accordance with the requirements of Rule 10D-13.024(8). 3/ Cleaned shells containing food for serving are stored in a refrigerated area in accordance with the requirements of Rule 10D-13.024(2). 4/ First use of cleaned mollusk and crustacean shells by Respondent and their storage in a refrigerated area prior to such use does not violate the terms of the rules cited in the Notice to Show Cause as amended by Petitioner's Motion to Amend Notice to Show Cause.
Respondent did not violate Rules 10D-13.025(3) and 10D-13.027(6) Florida Administrative Code. 5/ Petitioner alleged in Paragraph B of the Notice to Show Cause, as amended by Petitioner's Motion to Amend Notice to Show Cause, that Respondent failed to follow good hygienic practices in that his employees failed to wash their hands properly in violation of Rule 10D-13.025(3). Petitioner alleged in Paragraph I of the Notice to Show Cause, as amended by Petitioner's Motion to Amend the Notice to Show Cause, that Respondent failed to furnish soap and towels to a hand wash sink in a food preparation room in violation of Rule 10D-13.027(6).
Rule 10D-13.025(3), in relevant part, states:
All employees shall wear clean outer garments, maintain a high degree of personal cleanliness and conform to hygienic practices during all periods of duty. They shall wash their hands thoroughly in an approved handwashing facility before starting to work and as often thereafter as may be necessary to remove soil and contamination. No
employee shall resume work after visiting the toilet room without first thoroughly washing his hands...
Petitioner presented no evidence that Respondent's employees did not comply with the requirements of Rule 10D-13.025(3). As discussed in paragraph 5(b), infra, handwashing facilities are provided by Respondent in the food preparation area. Petitioner presented no evidence that Respondent's employees did not use such handwashing facilities in violation of Rule 10D-13.025(3).
Rule 10D-13.027(6), in relevant part, states:
In new establishments and establishments which are extensively altered, employee handwashing facilities, provided with hot and cold running water, shall also be located within food preparation areas. Lavatories, soap dispensers, handdrying devices and all other components of the handwashing facilities shall be kept clean and in good repair. Handwashing signs shall be posted at each lavatory location.
The requirement for hand washing facilities in food preparation areas applies only to "new establishments and establishments which are extensively altered." Petitioner presented no evidence that Respondent's licensed premises qualified as either a new establishment or an establishment which had been extensively altered within the meaning of Rule 10D-13.027(6). Instead, Respondent presented evidence that the establishment had been in existence and operated by Respondent for a number of years.
Even if Respondent's restaurant qualifies as a new or extensively altered establishment within the meaning of Rule 10D-13.027(6), Florida Administrative Code, Petitioner failed to prove that Respondent-violated the rule. Rule 10D-13.027(6) requires only that "employee handwashing facilities, provided with hot and cold running water, shall be located within food preparation areas." The food preparation area in Respondent's establishment is one large area. Three handwashing facilities are located within that food preparation area. Two of those hand washing facilities are equipped with soap dispensers and hand drying devices in accordance with Rule 10D-13.027(6).
The third handwashing area is located next to the ice machine and used exclusively for preparing ice water for service to customers. It would be unsanitary for customers if Respondent's employees washed their hands at the third sink. To discourage employees from washing their hands at the third sink, Petitioner does not provide soap or towels for the third sink. Petitioner presented no evidence that the 2 handwashing facilities provided by Respondent were not kept clean and in good repair in violation of Rule 10D-13.027(6).
Respondent did not violate Rule 10D-13.026(2) Florida Administrative Code. Petitioner alleged in paragraph D of the Notice to Show Cause, as amended by Petitioner's Motion to Amend Notice to Show Cause, that Respondent failed to install an exhaust hood over fryers and woks in violation of Rule 10D-13.026(2).
Rule 10D-13.026(2)(p), in relevant part, states:
Ventilation hoods and devices shall be designed to prevent grease or condensation from collecting on walls and ceilings and from dripping into food or onto food contact surfaces. Filters or other grease extracting equipment, if used, shall be readily removable for cleaning and replacement if not designed to be cleaned in place.
The rule cited by Petitioner as having been violated addresses the design of ventilation hoods. The cited rule contains no requirement that Ventilation hoods be provided for fryers and woks. Respondent has exhaust hoods in his restaurant, but Petitioner made no allegation and presented no evidence that Respondent's exhaust hoods were improperly designed in violation of Rule 10D- 13.026(2)(p).
Rule 10D-13.026(1)(g), Florida Administrative Code, in relevant part, requires:
Approved local exhaust ventilation installed at or over all cooking units such as ranges, griddles, deep-fat frying units and other units of equipment which release appreciable quantities of steam, odors, grease or smoke.
Petitioner's Motion to Amend Notice to Show Cause deleted Rule 10D-13.026(1)(g) from the allegations in the Notice to Show Cause by substituting "10D-13.026(2)" for "10D-13.026(1)(2)(3)." See, Motion to Amend Notice to Show Cause at para. (e.) Any evidence that Respondent violated Rule 10D-13.026(1)(g), therefore, is inadmissible. 6/
Respondent did not violate Rule 10D-13.024(9), Florida Administrative Code. Petitioner alleged in Paragraph A of the Notice to Show Cause, as amended by Petitioner's Notion to Amend Notice to Show Cause, that Respondent failed to keep food off of the floor of the walk in freezer in violation of Rule 10D-
Rule 10D-13.024(9), in relevant part, states:
Food shall be stored a minimum of six
inches above the floor, on clean shelves, racks, dollies or other clean surfaces in such a manner as to be protected from splash and other contamination provided that:
metal pressurized beverage containers and cased food packaged in cans, glass or other waterproof
containers need not be elevated when the food container is not exposed to floor moisture or
racks and dollies used for food storage are easily movable.
When food is stored less than 6 inches off the ground, it is a violation of Rule 10D-13.024(9). The term "stored" is not defined in Rule 10D-13.022 which is the rule that defines the terms used in Rule 10D-13.024(9). The common usage and meaning of the term "store" means to "stock or supply with stores, provisions, etc. against a future time...." See, Webster's New Twentieth Century Dictionary Unabridged (1980) at 1796. Mr. Khatibi observed containers of food on the floor of the walk in freezer. Petitioner presented no evidence that the containers of food were located on the floor of the walk in freezer for either present or future use.
Credible, unrebutted evidence presented by Respondent demonstrated that food in the walk in freezer generally is stored on shelves that are 6 inches or more above the ground. The containers of food observed by Mr. Khatibi on the floor of the walk in freezer were placed there by Respondent's employees for present use during the day of inspection. Therefore, the food containers were not "stored" less than 6 inches from the ground in violation of Rule 10D- 13.024(9).
Respondent did not violate Rule 10D-13.027(4), Florida Administrative Code. In Paragraph H of the Notice to Show Cause, Petitioner alleged that Respondent failed to provide properly installed and maintained plumbing and failed to repair a leaking pipe in the ceiling. Rule 10D-13.027(4), in relevant part, states:
Plumbing shall be sized, installed and maintained in accordance with provisions of Chapter 10D-9 of the Florida Administrative Code. It shall provide adequate quantifies of water to required locations throughout the establishment, prevent contamination of the water supply, properly convey sewage and liquid wastes from the establishment to the sewerage system; and it shall not constitute a source of contamination of food, equipment or utensils or create an unsanitary condition or nuisance.
Petitioner presented evidence of a leaking pipe in the ceiling. Petitioner presented no evidence of any other violation of Rule 10D-13.027(4).
Credible, unrebutted evidence presented by Respondent established that the pipe in the ceiling broke the night before the inspection on February 24, 1989. The pipe's failure was caused by a mechanical breakdown rather than Respondent's failure to maintain the plumbing in the licensed premises. Therefore, Respondent did not fail to install or maintain the plumbing in the licensed premises in violation of Rule 10D-13.027(4).
Respondent violated Rule 10D-13.027(7), Florida Administrative Code. Petitioner alleged in Paragraphs J and K of the Notice to Show Cause, as amended by Petitioner's Motion to Amend Notice to Show Cause, that Respondent failed to keep garbage dumpster lids closed and clean around the dumpster in violation of Rule 10D-13.027(7). The Rule, in relevant part, states:
Containers which do not have tight fitting vermin proof lids may be used only if garbage is first placed in plastic bags or wet-strength paper bags which are securely tied closed. All other rubbish shall be stored in an approved manner... [E]ach container, room or area shall be thoroughly cleaned after the emptying or removal of garbage and rubbish.
The fact that lids to the garbage dumpster are left open is not a violation of Rule 10D-13.027(7). That rule expressly states that containers without tight fitting vermin proof lids may be used for storing garbage if the garbage is first placed in plastic bags which are securely tied closed. Credible, unrebutted evidence presented by Respondent established that garbage from his restaurant is first placed in securely tied plastic bags before being placed in the garbage dumpster. Respondent complies with the requirements of Rule 10D-13.027(7) when his employees initially place garbage in plastic bags which are securely tied closed before being placed into a garbage container without tight fitting vermin proof lids.
Respondent cleans the garbage dumpster and the area around the dumpster every day by 10:00 a.m. when the garbage pick up service removes the garbage, in accordance with Rule 10D-13.027(7). Respondent's employees rinse the dumpster out with a hose each day while the dumpster is inverted by the garbage removal truck. Loose garbage and debris either falls to the ground while the dumpster is inverted or is removed from the dumpster when it is hosed out by the Respondent's employees. Respondent's employees sweep the loose garbage and debris into a spare box and return it to the garbage dumpster. The area around the dumpster is then cleaned thoroughly with a hose. Respondent complies with the requirements of Rule 10D-13.027(7) by thoroughly cleaning the garbage collection area after removal of the garbage. When Respondent's employees placed the loose garbage and debris into a spare box instead of a plastic bag securely tied closed and placed the spare box into a container without tight fitting vermin proof lids, Respondent violated Rule 10D-13.027(7).
Petitioner presented evidence that Respondent failed to clean grease from the garbage collection area. The Notice to Show Cause, as amended by Petitioner's Notion to Amend Notice to Show Cause, did not allege that Respondent failed to remove grease from the garbage collection area. Nor does any express prohibition concerning grease appear in Rule 10D-13.027(7), Florida Administrative Code.
Grease that is used to cook with and then discarded as garbage is subject to the same requirements as other garbage. Grease is disposed of separately from other garbage when it is placed in a metal container for weekly removal by a special tallow service. The tallow service spills grease in the removal process which is absorbed by the asphalt ground. Even though Respondent's employees thoroughly clean the surface area after removal of the grease, it is impossible to remove the grease that has been absorbed into the sub-surface of
the asphalt. Respondent reasonably complies with the requirements of Rule 10D- 13.027(7) by thoroughly cleaning the garbage collection area after removal of the garbage.
Respondent violated Rule 10D-13.028(1), Florida Administrative Code. Petitioner alleged in Paragraph L of the Notice to Show Cause that Respondent failed to properly maintain the floor underneath both ice machines, in walk in coolers, and under all cooking equipment. Rule 10D-13.028(1) in relevant part, states:
All floors shall be kept clean and in good repair.
Petitioner presented specific evidence that the floor underneath both ice machines, in walk in coolers, and under all cooking equipment are not kept clean. Respondent's general testimony that his employees clean the floors every night in the ordinary course of business was considered neither credible nor sufficient to rebut the specific evidence presented by Petitioner. Therefore, Respondent failed to keep the floors clean in violation of Rule 10D-13.028(1).
Respondent violated Rule 10D-13.028(2), Florida Administrative Code. Rule 10D-13.028(2), in relevant part, states:
All walls and ceilings including doors, windows, skylights, screens and similar closures shall be kept clean and in good repair.
Petitioner alleged a number of specific violations of Rule 10D-13.028(2) in Paragraph N of the Notice to Show Cause. Petitioner presented credible, unrebutted evidence supporting each of its specific allegations except those allegations concerning the failure to clean ceiling tiles. Respondent presented credible, unrebutted evidence that a fire retardant coating on the ceiling tiles make those tiles impossible to clean. However, Respondent's general testimony that his employees clean walls and floors every night in the ordinary course of business was considered neither credible nor sufficient to rebut Petitioner's specific evidence that Respondent failed to:
properly maintain walls and attached equipment;
clean walls above and behind the reach in cooler;
clean walls and the door next to the steel table, walk in cooler, behind the steamer, and behind the dishwashing machine;
clean the wall below the steel table across front the ovens;
repair the wall below the towel dispenser;
replace the missing ceiling tiles in the kitchen; and
repair the wall above the wire rack in the dishwashing area.
Accordingly, Respondent is in violation of Rule 10D-13.028(2).
Respondent violated Rule 10D-13.026(4)(a), Florida Administrative Code. Petitioner alleged in Paragraph E of the Notice to Show Cause, as amended in Petitioner's Motion to Amend Notice to Show Cause, that Respondent failed to provide clean food contact surfaces on equipment and utensils. Specifically, the cutting board below the cooking grill and the food scale were alleged in the Notice to Show Cause to be dirty in violation of Rule 10D-13.026(4)(a). The Rule, in relevant part, states:
All tableware, kitchenware and food contact surfaces of equipment, exclusive of cooking surfaces of equipment, shall be thoroughly cleaned and sanitized after each use. ... All multi-use utensils and food contact surfaces of equipment used in the preparation or storage of potentially hazardous food shall be thoroughly cleaned and sanitized prior to each such use.
Respondent admitted under oath that he had not been cleaning the cutting board and food scale as well as he should. Therefore, Respondent violated Rule 10D- 13.026(4)(a).
Section 509.261, Florida Statutes (1987) , in relevant part, states:
(1) The division may suspend or revoke the license of any public lodging establishment or public food service establishment that has operated or is operating in violation of any of the provisions of this chapter or the rules of the division; such public lodging establishment or public food service establishment shall remain closed while its license is suspended or revoked.
In lieu of the suspension or revocation of licenses, the division may impose fines against licensees for such violations. No fine so imposed shall exceed $500.00 for each offense, and all amounts collected shall be deposited with the Treasurer to the credit of the Hotel and Restaurant Trust Fund.
Respondent failed to place garbage in plastic bags, securely tied closed before placing the garbage in a garbage dumpster without tight fitting, vermin proof lids. Further, Respondent failed to properly clean floors and walls. Accordingly, Respondent violated Rules 10D-13.027(7), 10D-13.028(1), 10D-13.028(2), and 10D-13.026(4)(a), Florida Administrative Code.
The violations committed by Respondent, although recurring, are not of a character or degree that warrant suspension or revocation of his license. The recurring failure to clean walls and floors around equipment 7/ may reflect the degree of difficulty in cleaning around older equipment rather than Respondent's recalcitrance in complying with the rules.
Rule 10D-13.026(2)(q), Florida Administrative Code, recognizes that older equipment may not satisfy the design requirements established for newer equipment in Rule 10D-13.026(2). Many of those design requirements are intended to assure the use of equipment that is easily cleaned. See, e.g., Rules 10D- 13.026(2)(i)-(m) and (o).
The evidence further demonstrated that Respondent initially placed garbage in securely tied plastic bags before placing the bags in a garbage dumpster without tight fitting vermin-proof lids. Only when cleaning up loose garbage and debris spilled by the garbage pick up service did Respondent fail to place garbage in plastic bags in the manner required by the rules.
A suspension or revocation in lieu of a fine for the recurring failure to either clean walls and floors around equipment or to properly clean up after a garbage collection service may be appropriate where it has been demonstrated or it can be inferred from the evidence that such a failure is due to a licensee's recalcitrance. However, no evidence was presented by Petitioner regarding the age of the licensed premises or that the failure to either clean walls and floors around equipment or to properly clean up after the garbage collection service was due to Respondent's recalcitrance.
Respondent has demonstrated a good faith effort to comply with the requirements of applicable administrative rules. Respondent corrected all violations on February 24, 1989, prior to the call back inspection on March 2, 1989. The condition of the licensed premises has markedly improved during the past 3 years. A new dishwasher has been purchased, and a new floor has been installed. Respondent has purchased roll-out equipment so that floors and walls underneath that equipment can be easily cleaned. Walls have been replaced and other significant improvements have been made. In fact, over $120,000 has been spent in improvements during the past 3 years. In the absence of additional evidence from Petitioner, this is not the record of a recalcitrant licensee whose license should be suspended or revoked.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be fined $500 for each offense in violation of
an administrative rule. Respondent violated Rules 10D-13.027(7), 10D-13.028(1),
10D-13.028(2), and 10D-13.026(4)(a), Florida Administrative Code. Some of the offenses violated the same administrative rule. Therefore, the aggregate amount of fines should not exceed $2,000.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of November, 1989.
DANIEL MANRY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1989.
ENDNOTES
1/ Respondent's proposed Exhibit 1 was a frozen container of stuffed shells. Due to its perishable nature, Respondent's Exhibit 1 was not retained as part of the record in this matter.
2/ Rule 10D-13.022(1), in relevant part, defines the term "food" as any "raw, cooked or processed edible substance. "
3/ Rule 10D-13.024(8), in relevant part, requires food to be prepared on surfaces "that prior to use have been cleaned, rinsed and sanitized to prevent cross contamination."
4/ Rule 10D-13.024(2) provides, in relevant part, that perishable foods "shall be stored at such temperatures as will protect against spoilage."
5/ The allegation in para. I of the Notice to Show Cause that Respondent violated Rule 10D-13.027(5) was deleted by Petitioner's Motion to Amend Notice to Show Cause. Rule 10D-13.027(5) provides requirements for toilet facilities.
6/ Rule 10D-13.026(1)(g) requires exhaust hoods to be located "at or over" all frying units which release "appreciable" quantities of grease or smoke. The fryers and woks in question were located "next" to a large exhaust hood. Thus, the evidence presented, if admissible, would have demonstrated that the Respondent's exhaust hood was installed "at or over" Respondent's frying units within the meaning of Rule 10D-13.026(1)(g). Furthers Petitioner's evidence, if admissible, would not have been sufficient to demonstrate that Respondent's frying units released "appreciable" quantities of grease or smoke. Instead, Respondent's evidence, if admissible, would have demonstrated that the frying units were small portable units that did not emit a prohibited amount of grease or smoke.
7/ Paragraph M of the Notice to Show Cause, in relevant part, alleges that Respondent failed to clean walls that: were attached to equipment; above and behind the reach in cooler; next to the steel table; next to the walk in cooler; behind the steamer; and behind the dishwasher.
APPENDIX
Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent waived his right to submit proposed findings of fact.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 Included in Finding 1
2-3 Included in part in Findings 2,3,11 Proposed findings regarding prerequisites for employment were rejected as irrelevant.
Included in part in Finding 3 Out of court communications by employees with the witness were rejected as hearsay.
Included in Finding 3(e)
Included in Finding 12
Included in Findings 4,5
Included in Finding 6
Rejected as irrelevant.
The issue for determination at hearing did not concern the wisdom of the rules violated.
9-12 Included in Findings 7-10
COPIES FURNISHED:
John B. Fretwell Assistant General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
William P. Bowers
9621 South Dixie Highway Miami, Florida 33156
Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building
725 South Bronough
Tallahassee, Florida 32399-1000
Fred Fluty, Director
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
| Issue Date | Proceedings |
|---|---|
| Nov. 01, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 04, 1989 | Agency Final Order | |
| Nov. 01, 1989 | Recommended Order | Restaurant fined $2000 for numerous violations including failure to provide soap and towels for sinks - dirt, filth and grease |
