STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 89-4624

)

ROSE CARDS, INC., d/b/a )

MELONS RESTAURANT, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on November 21, 1989, in Clearwater, 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: No appearance

STATEMENT OF THE ISSUES

The issue for consideration is whether Respondent `s licensed premises' grease disposal was laden with trash, the kitchen floor was of neither smooth nor nonabsorbent material and was dirty, food and produce improperly stored, kitchen equipment and utensils improperly maintained and dirty, exposed andimproper electrical outlets and standing water observed on the kitchen floor, as is more particularly alleged in the Notice to Show Cause filed herein dated June 20, 1989, and, if so, what, if any, disciplinary sanction is appropriate.

PRELIMINARY STATEMENT

On June 20, 1989, Petitioner entered a Notice to Show Cause against Respondent in which Respondent was directed to show cause why its restaurant license should not be revoked or otherwise disciplined. Respondent requested a hearing before the Division of Administrative Hearings and the file was forwarded to the Division Director for the appointment of a Hearing Officer. In the notice of hearing, dated September 25, 1989, the undersigned directed that the hearing commence at 1:00 p.m., on November 21, 1989, in

Courtroom B, Pinellas County Courthouse, 315 Court Street, Clearwater, Florida. Copies of the notice of hearing were sent to all parties.

At 1:00 p.m., on November 21, 1989, the undersigned, counsel for Petitioner and the court reporter were assembled in Courtroom B, Pinellas County Courthouse, 315 Court Street, Clearwater, Florida. No representative of Respondent's corporation was present. After a wait of some twenty minutes, the undersigned called the hearing to order. Neither Respondent nor a representative on his behalf was present. Respondent filed a Motion For Rehearing by counsel, which was received on December 26, 1989. Counsel's mailing address appears to be identical to Respondent's address. A review of the pleadings revealed that on July 29, 1989, Respondent, through its director of operaticn, Douglas Campbell, requested a hearing in this case and listed as its address:

Intercoastal Restaurant

401 2nd Street East

Indian Rocks Beach, Florida 34635 c/o Doug Campbell

When the matter was forwarded to the Division on August 25, 1989, requesting the appointment/assignment of a Hearing Officer, the Division's Director, on, September 1, 1989, published an Initial Order, which advised the parties of the identity of the Hearing Officer and directed the parties to confer with respect to certain scheduling issues. This Initial Order was received by Petitioner on September 6, 1989, and presumably by Respondent at or about the same time.

Significantly, on September 11, 1989, Petitioner and Respondent conferred telephonically in order to prepare a response to the Initial Order.

Parties to that conversation were Petitioner's counsel and Respondent's corporate president, Mr. Russell Lattimer. The Response to the Initial Order dated Sep ember 11, 1989, reflects the agreement between Petitioner and Respondent, a copy of which was served on Respondent by U.S. Mail, as follows:

Mr. Doug Campbell Intercoastal Restaurants

401 2nd Street East

Indian Rocks Beach, Florida 34635

Respondent in paragraph 2 of its Motion for Rehearing, acknowledges receipt of the Response to Initial Order.

On September 25, 1989, the undersigned signed a Notice of Hearing which established that the hearing would be conducted in Courtroom B, Pinellas County Courthouse, 315 Court Street, Clearwater, Florida. on November 21, 1989. Petitioner acknowledged receipt of its copy of the Notice of Hearing on September 26, 1989. The "copies furnished" portion of the Notice of Hearing includes an entry indicating that Respondent through its director of operations, Douglas Campbell was provided a copy at the above-referenced address.

Following the conduct of the formal hearing, Petitioner submitted a proposed

recommended order on November 28, 1989, a copy of which was served on Respondent at the following address by regular mail:

Douglas Campbell Director of Operations Melon's Restaurant

401 2nd Street East

Indian Rocks Beach, Florida 34635

Respondent, in paragraph 1 of its Motion for Rehearing, acknowledges receipt of its copy of Petitioner's proposed recommended order. Here, the Notice of Hearing was served on all parties with written notice of the time and place of hearing by U.S. Mail in compliance with Rule 22I-6.022, Florida Administrative Code. Since the mail was properly addressed, stamped and mailed, it is presumed that it was in fact received by Respondent, the addressee. See Brown v. Giffen Industries, Inc., 281 So.2d 897, 900 (Fla.

1973). This is the address provided by Respondent in its request for hearing, in the Response to Initial Order and in its Motion for Rehearing. The hearing was scheduled with consideration of the available dates noted by the parties as times when they would be mutually available for the hearing. For all these reasons, it is here concluded that Respondent would not have permitted the week November 6 to come and go without making at least some inquiry about the case status if it had not received a notice of hearing scheduling the matter for hearing on November 21, 1989. Respondent's request for a rehearing is therefore DENIED.

At the hearing, Petitioner requested and the undersigned officially recognized certain sections of the Florida Administrative Code, to wit: 7C- 4.0001; 7C-1.004; 10D-13.024; 10D-13.026; 10D-13.027; and 10D-13.028.

Petitioner presented the testimony of R. A. Wahrenberger and Jeffrey Bowen. Petitioner introduced exhibit 1 which was received in evidence. Petitioner filed a proposed recommended order on November 29, 1989, which was considered and is substantially incorporated in this Recommended Order.

FINDINGS OF FACT

1. At times material hereto, Respondent, Rose Cards, Inc. d/b/a Melons Restaurant (hereinafter referred to as Melons), was doing business at 401 2nd Street East, Indian Rocks Beach, Pinellas County, Florida, under restaurant license number 62-10013R.

   
   

2. Melons serves, inter alia, raw oysters and other seafood items.

   
   

3. Mr. R.A. Wahrenberger is an environmental health specialist employed by Petitioner, Division of Hotels and Restaurants, Department of Business Regulation. In the course of his duties, Wahrenberger inspected Melons on June 14, 1989. Several violations were found and Wahrenberger pointed out all serious violations and explained them to Respondent's assistant manager, Mary Fischer, who was present during the inspection and was provided a copy of Wahrenberger's inspection report.

   
   

4. During the course of Wahrenberger's inspection on June 14, Wahrenberger noted the following violations:

   
   

   1. The grease disposal container used by the licensed premises contained, in addition to grease, trash. The area around the grease disposal container was also not clean. The lid to the disposal container was easily

      removable which fact accounted for the presence of trash and rubbish in the grease.

      
      

   2. The kitchen floor of the licensed premises was of neither smooth nor nonabsorbent material. The kitchen floor was stained and dirty and it was not constructed as to be easily cleanable. There was neither a threshold nor, alternatively, a sweep under the rear kitchen door. A threshold or sweep is required to deny vermin access to the licensed premises.

      
      

   3. Cardboard boxes of produce were stored on the floor of the walk-in cooler. A malfunction of the cooling equipment would result in this produce being exposed to floor moisture. Raw chicken, hamburger and oysters were stored in the walk-in cooler "open", that is, without an impervious and nonabsorbent cover. Portions of this uncovered raw meat, poultry and seafood were stored on shelves below the shelves on which other uncovered portions were stored. This poses a contamination threat in that drippings from the uncovered raw food could contaminate the uncovered raw food stored below. Dirt from the upper shelves also presents a threat of contamination.

      
      

   4. Wahrenberger noted that equipment and utensils were not being maintained by Respondent in a clean and sanitary condition. Refrigerators were dirty; food particles had not been removed. The deep fryer hood and its filters reflected a heavy grease build-up. Grease was dripping from the filters, posing a fire hazard. Both the hood and its filters were badly in need of cleaning. The ice machine was dirty to the point that the inspector's hand was soiled by running it along the inside of the ice machine. Grease stains and food spills marked the cooking equipment. Utensils, specifically two large cooking pans, were extremely dirty. One contained discarded lettuce.

      
      

   5. Wahrenberger further observed that, in addition to the kitchen floor, the floor of the bar was extremely dirty. Broken glass and other refuse was on the bar floor. As in the kitchen, the floor was filthy under the equipment in the bar.

      
      

   6. Standing water was noted on the kitchen floor. This water came from a room adjacent to the kitchen. Although the kitchen did contain the required floor drain, the system was either clogged or inadequate to convey the standing water from the establishment to the sewerage system. The standing water posed a safety hazard.

      
      

   7. The cover of an electrical outlet in the kitchen was missing and the outlet itself was dangling from the wall by "live" wires. Plugged into this dangling outlet was a device into which several extension cords were plugged. This system posed a serious injury and fire threat. Its proximity to the previously mentioned standing water increased the danger.

      
      

5. A pre-conference inspection was conducted shortly before the informal conference on July 13, 1989, to allow Respondent and Petitioner's representative to have available information concerning the extent of correction action taken by the licensee. At that time, no corrective action had been taken by Respondent.

6. Jeffrey Bowen is an environmental health specialist employed by Petitioner. During a regular inspection of Respondent's premises on October 30, 1989, Bowen observed the following:

   
   

   1. The kitchen floor, although new, was filthy.

   2. The ice machine was dirty.

   3. There was standing water on the kitchen floor.

   4. Floor drains contained debris.

   5. Food was stored on the kitchen floor, and food which was stored in the walk-in cooler was not covered.

   6. Trash was observed in the grease disposal container.

      
      

      CONCLUSIONS OF LAW

      
      

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

   
   

8. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

   
   

9. The authority of the Petitioner is derived from Chapter 509, Florida Statutes, and Rule 10D-13, Florida Administrative Code.

   
   

10. Rule 7C-4.0001, Florida Administrative Code, states that "Chapter 10D- 13, Florida Administrative Code, entitled, Food Service, is hereby adopted as the sanitary standards to be enforced in public food service establishment by the health authority."

    
    

11. Rule 10D-13.027, Florida Administrative Code, states in pertinent part:

    
    

    (4) Plumbing - Plumbing shall be sized, installed and maintained in accordance with provisions of Chapter 10D-9 of the Florida Administrative code. It shall provide adequate quantities 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.

    * * *

    (7) Garbage and rubbish disposal - All garbage and rubbish containing food wastes shall, prior to disposal, be kept in leakproof, nonabsorbent containers which shall be kept covered with tight fitting lids; provided that such containers need not be covered when stored in a special vermin proofed room or in a closed waste refrigerator... . The rooms, enclosures, areas and containers used shall be adequate for the storage of all food wastes and

    rubbish which accumulates between periods of removal. Adequate cleaning facilities shall be provided and each container, room or area shall be thoroughly cleaned after the emptying or removal of garbage and rubbish. Waste water from such cleaning operations shall be disposed of as sewage.

    
    

12. Rule 10D-13.028, Florida Administrative Code, states in relevant part:

    
    

    (1) Floors - The floor surfaces in kitchens and in all the rooms and areas in which food is stored or prepared ... shall be of smooth, nonabsorbent material and so constructed as to be easily cleanable. The use of anti-slip floor covering materials is permitted in areas where necessary for safety reasons. Floor drains shall be provided in accordance with provision of Chapter 10D-9 of the Florida Administrative Code in all rooms where floors are subjected to flush or floor type cleaning or where normal operations release or discharge water or other liquid waste onto the floor. Such floors shall be graded to effectively drain... . All floors shall be kept clean and in good repair. (Emphasis added.)

    
    

13. Rule 10D-13.024, Florida Administrative Code, states in relevant parts:

    
    

    (1) Food while being transported, stored, prepared, displayed, served or sold at a food service establishment shall be protected from dust, flies, rodents and other vermin, toxic materials, unclean equipment and utensils, unnecessary handling, coughs and sneezes, flooding by sewage, overhead leakage and all other sources of contamination. (Emphasis added.)

    * * *

    1. Food, whether raw or prepared, if removed from the container or package in which it was obtained shall be stored in a clean covered container except during necessary period of preparation or service. Container covers shall be impervious and nonabsorbent, except that linens or napkins may be used for lining or covering bread or roll serving containers. Solid cuts of meat shall be protected by being covered in storage, except that quarters or sides of meat may be hung uncovered on clean sanitized hooks if no food produce is stored beneath the meat... . Food not subject to further washing or cooking before serving shall be

       stored in a way that protects it against cross contamination from food requiring washing or cooking... . Food shall be stored a minimum of six (6) 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:

       1. Metal pressurized beverage containers and cased food packages in cans, glass or other waterproof containers need not be elevated when the food container is not exposed to floor moisture. (Emphasis

    added.)

    
    

14. Rule 10D-13.026, Florida Administrative Code, states in relevant part:

    
    

    (1) Equipment and facilities provided - Every food service establishment shall be provided with equipment and utensils so designed, constructed, located, installed, maintained and operated as to permit full compliance with the provisions of this chapter. (Emphasis added.)

    (2)(p) 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 removal for cleaning and replacement if not designed to be cleaned in place.

    * * *

    (4) Cleanliness of equipment and utensils.

    (a) All tableware, kitchenware and food contact surface of equipment exclusive of cooking surfaces of equipment shall be thoroughly cleaned and sanitized after each use. Food contact surfaces of grills, griddles and similar cooking devices and the cavities and door seals of microwave ovens shall be cleaned at least once a day; except that this shall not apply to hot oil cooking equipment and hot oil filtering systems. The food contact, surfaces of all cooking equipment shall be kept free of encrusted grease deposits and other accumulated soil. 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... . 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. After cleaning and until use, all food

    contact surfaces of equipment and multi-use utensils shall be so stored and handled as to be protected from manual contact, splash, dust, dirt, insects, and other contaminants.

    
    

15. Rule 7C-1.004, Florida Administrative Code, states in relevant part:

    
    

    (4) Electrical wiring - To prevent fire or injury, defective electric wiring shall be replaced and wiring shall be kept in good repair. No extension cords shall be used. Only wall switch or approved pull cord is permitted in bathrooms. Sufficient electrical outlets shall be provided.

    
    

16. Section 509.261, Florida Statutes (1987), states in relevant part:

    
    

    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.

    2. 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.

    
    

17. The burden is on Petitioner to establish the elements of each allegation in the Notice to Show Cause by substantial, competent evidence; that is, "such evidence as a reasonable man would accept as adequate to support a conclusion." Pauline v. Lee, 147 So.2d 359, 363 (Fla. 2d DCA 1962).

    
    

18. Competent and substantial evidence was offered herein to establish that on June 14, 1989, Respondent's kitchen floor was improperly constructed and was not easily cleanable. This condition was found to be continuing by Petitioner's follow- up inspection on October 30, 1989 when the floor, although newly and properly constructed, was still dirty. Competent and substantial evidence also reveals that on June 14, 1989 and continuing through October 30, 1989, severe fire and safety hazards permeated Respondent's kitchen, in that, improper drain water was standing in the kitchen and posed a hazardous condition since it was located in the immediate vicinity of exposed electrical wires, filthy and a grease-clogged hood and filters, presenting both a contamination danger and a fire hazard.

    
    

19. Competent and substantial evidence was offered herein to establish that on June 14, 1989 and continuing through October 30, 1989, Respondent maintained uncovered storage of raw meat, poultry and oysters in the walk-in cooler which posed a severe contamination danger. Dirt was observed throughout the kitchen areas which manifested itself on the refrigerators, stoves,

floors, pots, the ice machine and the grease container. This condition posed a serious contamination hazard. These conditions were first brought to Respondent's attention at the initial inspection on June 14, and when the pre-conference inspection was held on July 13, 1989, none of the noted deficiencies had been corrected, although the kitchen floor was properly constructed. At a later time, at the inspection on October 30, 1989, the grease container remained uncorrected; the kitchen floor was filthy; the ice machine was dirty; water was standing on the floor; and food was uncovered in the walk-in cooler. Based on the serious nature of the offenses in conjunction with Respondent's unwillingness to take correction action, a stern punishment is indicated, as the public requires protection from a licensee who apparently does not comprehend his obligation to the public of ensuring that his facility is safe and that food served to the consuming public is wholesome.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a Final Order suspending Respondent's Public Food Service Establishment license number 62-10013R for a period of thirty (30) days.

DONE and ENTERED this 16th day of February, 1990, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 16th day of February, 1990.

COPIES FURNISHED:

John B. Fretwell, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Douglas Campbell, Director of Operations Intracoastal Restaurants

401 2nd Street East

Indian Rocks Beach, Florida 34635

Fred Fluty, Director

Division of Hotels and Restaurants The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Stephen R. MacNamara Joseph A. Sole, Esquire

Secretary General Counsel

Department of Business Regulation Dept of Business Regulation 725 South Bronough Street 725 S. Bronough Street Tallahassee, Florida 32399-1000 Tallahassee, FL 32399-1000

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS

DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner, DOAH CASE NO. 89-4624 vs. H&R CASE NO. 03-89-1

LICENSE NO. 62-10013R

ROSE CARDS, INC., d/b/a MELONS RESTAURANT,

Respondent.

/

ADDENDUM TO FINAL ORDER

COMES NOW, the Director, Division of Hotels and Restaurants, and enters this Addendum to her Final Order in the above styled cause, dated March 15, 1990. Since the action directed in this Addendum may be construed as a reduction in the recommended penalty of the Hearing Officer, the following justification is submitted therefor:

1. The complete record has been reviewed (no transcript was prepared);

   
   

2. The record reveals that Respondent was not present at the formal hearing. Upon receipt of Petitioner's Proposed Recommended Order, Respondent moved for a rehearing on the grounds that it never received notice of the: hearing. This motion for a rehearing was quite properly denied by the Hearing Officer. Nevertheless, the Hearing Officer received, also, under the circumstances, quite properly, only Petitioner's view of the facts.

   
   

3. On March 23, 1990, the Director, Division of Hotels and Restaurants, received Respondent's unsigned ten pages of exceptions to the Recommended Order. The exceptions were provided a "Fax" signature of Respondent's corporate

   president on March 28, 1990. The Final Order contains no explicit ruling on each exception", as required by Rule 28-5.405(3), Florida Administrative Code, because the exceptions were untimely filed, in the sense of Rule 28-5.404, Florida Administrative Code, to the extent that they had not even been received by the agency when the Final Order was signed. The Director does not, in this Addendum, render an explicit ruling on each exception because the untimely and unsigned exceptions have no legal efficacy.

   
   

4. Notwithstanding subparagraph 3, supra, the Director did review the exceptions, and noted the following:

   
   

   1. Respondent's corporate president indicates in the exceptions that a 30 day license suspension would end the business, and thus cost the employees their jobs;

      
      

   2. Respondent's corporate president sets forth in the exceptions information which, had it been presented at the hearing, might have had an effect upon the Hearing Officer's recommended penalty; and

      
      

   3. Respondent's corporate president indicates in the exceptions remorse, a determination to avoid any recurrence, and a willingness, indeed an eagerness to accept the $2,200.00 administrative fine initially offered by the Division of Hotels and Restaurants as a settlement.

      
      

5. On March 30, 1990, the Division of Hotels and Restaurants conducted an unannounced inspection of Respondent's licensed premises. The results were satisfactory in every respect.

   
   

6. Respondent was a day late and a dollar short at every stage of this administrative action. It missed the hearing, and thus had to move for a rehearing. It prepared extensive, detailed exceptions to the recommended order, but submitted them untimely and unsigned. Even in light of Respondent being represented only at the motion for a rehearing stage, it is difficult to explain, much less excuse the slipshod manner in which Respondent approached this very serious matter. The above notwithstanding, the Director, upon review of all of the facts and circumstances associated with this unusual case, concludes that justice mandates that the following ORDER be substituted for, and supersede the ORDER set forth in the Final Order dated March 15, 1990.

ORDER

It is hereby ORDERED that Respondent's Public Food Service Establishment license number 6210013R be suspended for a period of thirty (30) days, effective fifteen (IS) days after service of this Addendum to Final Order.

In the event Respondent, within fifteen (15) days after service of this Addendum to Final Order pays in full an administrative fine in the amount of

$2,200.00, the provision of this Order pertaining to suspension of Respondent's Public Food Service Establishment license number 62-10013R for a period of thirty (30) days will be rescinded and become a nullity.

Should Respondent pay the administrative fine by check within the fifteen (IS) day time period, and should said check be later returned due to insufficient funds, the thirty (30) day suspension of Respondent's Public Food Service Establishment license number 62-10013R will take effect as if no payment had been made.

DONE AND ORDERED this 4th day of April 1990.

BARBARA J. PALMER, DIRECTOR DIVISION OF HOTELS AND RESTAURANTS

725 South Bronough Street Tallahassee, Florida 32399-1011

(904) 488-1133

Copies Furnished:

Jamie Latimer, President Intracoastal Restaurants

P.O. Box 4623 Clearwater, FL 34618

John B. Fretwell Assistant General Counsel

Department of Business Regulation

James E. Bradwell, Hearing Officer Division of Administrative Hearings

Kelli Fulcher, Chief

Bureau of Hotels and Restaurants

Joe Alonzo

B. E. Fernandez

Field Operations Coordinator Division of Hotels and Restaurants

Barbara Dietrichsen, Environmental Health Director Division of Hotels and Restaurants

Carol Carr, Legal Section Department of Business Regulation

RIGHT TO APPEAL

This Final Order, which constitutes final agency action, may be appealed pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal, accompanied by the appropriate filing fees, and with this agency within 30 days of rendition of this Order.

Docket for Case No: 89-004624

Orders for Case No: 89-004624