STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 00-2832

)

JACK DRAFT HOUSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 14, 2000, in Deland, Florida, before the Division of Administrative Hearings, by its designated Administrative Law

Judge, Stephen F. Dean.

APPEARANCES

For Petitioner: Dorothy J. Trzeciecka, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Sidney J. Simmons, Owner

Jack Draft House

2400 North Volusia Avenue Orange City, Florida 32763

STATEMENT OF THE ISSUE

The issue is whether Respondent Jack Draft House's public food establishment license should be revoked or otherwise penalized based on the facts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), presented the testimony of Vicky Mayle, Investigator for the Division of Hotels and Restaurants. Petitioner's Exhibits P-1 through P-4, were admitted in evidence. Further, Petitioner's Motion for Official Recognition of the applicable rules and statutes was granted.

Sidney J. Simmons, owner of Jack Draft House, appeared on behalf of Respondent. Respondent's Exhibits 1 through 4, were admitted in evidence.

The Transcript of the proceedings was filed on December 1, 2000.

Petitioner submitted its Proposed Recommended Order on December 11, 2000, which has been reviewed and utilized in preparation of this recommended order. Respondent did not submit a proposed recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent Jack Draft House, was a licensed public food service establishment, license No. 74-046709-R, located at 2400 North Volusia Avenue, Orange City, Florida 32763.

2. Vicky Mayle was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Specialist.

3. On April 10, 2000, Inspector Mayle performed a routine inspection of Respondent's food service establishment and found violations of food service rules and the rules of the Division of Hotels and Restaurants, all of which she marked on her food service inspection report of April 10, 2000.

4. On April 20, 2000, Inspector Mayle performed a Call- Back/Re-Inspection on Jack Draft House and found that Respondent was still in non-compliance for three of the critical violations enumerated on the food service inspection report of April 10, 2000.

5. On April 24, 2000, Inspector Mayle performed a second Call-Back/Re-Inspection of Jack Draft House and observed that Respondent was still in non-compliance for the three critical violations enumerated on the food service inspection report of April 10, 2000.

6. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that the spacer was still missing in the 12-circuit electrical breaker box. Black tape covered the opening for the missing spacer. Further, on

   April 24, 2000, the parts had not been ordered to repair the electrical breaker box. The empty spacer in the public food service establishment is a critical violation because it would endanger the safety of an employee because if he or she should inadvertently stick a finger into the empty spacer he or she could be electrocuted. The black tape is not a sufficient remedy for the empty spacer located in the electrical breaker box.

7. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that there was still no hot running water at a temperature of 110°F, in the women's restroom, used by the employees. The lack of hot water, at the temperature of 110°F in the women's restroom, which is used by employees is a critical violation in that it endangers the health of the employees and patrons of the public food service establishment.

8. At the hearing Respondent testified. Prior to the inspection, the cleaning people had used up the hot water at approximately 4:30 a.m. to clean the bar. The water was turned off to install the ice maker later in the morning. The hot

   water heater may not have had ample time to replenish the water supply and re-heat the water to 110°F. Even if the electric water was not turned off to install the ice maker, the water may not have been replenished in the hot water heater. This being true, the hot water heater may not have had ample time to replenish the water supply and re-heat the water to 110°F by 9:00 a.m. However, by the time the facility would have had customers the temperature would have recovered.

9. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that a brown household extension cord was still being used for the freezer and other appliances in the bar. This is a critical violation in that the use of the extension cords in a public food service establishment endangers the health and safety of employees and patrons of the establishment.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

11. Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the agency charged with licensure and inspection of public food service establishments in the State of Florida, pursuant to Chapter 509, Florida Statutes.

12. Respondent is a public food service establishment, as defined in Section 509.013, Florida Statutes, and is licensed by and subject to the regulatory authority of Petitioner.

13. The Department of Business and Professional Regulation, pursuant to Sections 509.032(2)(d)1 and 509.032(3)(a), Florida Statutes, is authorized to adopt rules prescribing sanitary standards which shall be enforced in public food service establishments. Under the authority outlined in those sections the Department of Business and Professional Regulation promulgated Rules 61C-4.010(6), Florida Administrative Code, and 61C-1.004(1), Florida Administrative Code, incorporating by reference Chapter 5 of the U.S. Public Health Food Code.

14. Chapter 5-202.12, (1997), Department of U.S. Public Health Food Code, provides that:

    Handwashing Lavatory, Water Temperature, and Flow.

    
    

    1. A handwashing lavatory shall be equipped to provide water at a temperature of at least 43°C (110°F) through a mixing valve or combination.

       
       

    2. A steam mixing valve may not be used at a handwashing lavatory.

       
       

    3. A self-closing, slow-closing, or metered faucet shall provide a flow of water for at least 15 seconds without the need to reactivate the faucet.

15. Petitioner showed that the water in the women's rest room was less than 110°F at the time of the inspection on April 24, 2000.

16. Petitioner showed by clear and convincing evidence that Respondent violated Chapter 5-202.12, U.S. Public Health Food Code, by failing to provide hot water at 110°F in the women's restroom that was used by employees of Jack Draft House. However, the Respondent presented evidence that explained the violation. Although there was a technical violation, it was of minimal consequence.

17. Rule 61C-1.004(11), Florida Administrative Code, states:

    Electrical wiring -- To prevent fire or injury, defective electrical wiring shall be replaced and wiring shall be kept in good repair. No extension cords shall be used except during cleaning, maintenance and other temporary activities. Only a wall switch or approved pull cord shall be permitted in bathrooms. In accordance with the provisions of NFPA 70, the National Electrical Code, as adopted by the Division of State Fire Marshal in Chapter 4A-3, FAC, Uniform Fire Safety Rules and Standards, sufficient electrical outlets shall be provided.

    
    

18. Petitioner has carried its burden of proving by clear and convincing evidence that Respondent violated Rule

    61C-1.004(11), Florida Administrative Code, by using a brown

    household extension cord for the freezer and other appliances in Respondent's food service establishment.

19. Chapter 509.261(1)(a), Florida Statutes, authorizes the Department of Business and Professional Regulation, Division of Hotels and Restaurants, to suspend or revoke the license of Respondent, or to impose administrative fines, not to exceed

    $1,000.00 for each offense, for violations of Chapter 509 or the cited rules.

20. Section 509.281(2), Florida Statutes, provides that each day that a public food service establishment is operated in violation of law or rule is a separate offense.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

Petitioner enter its final order finding Respondent

violated the provisions of Chapter 509, Florida Statutes, and its rules, as alleged in the Administrative Complaint, and fining the Respondent $1,000 for electrical safety violations.

DONE AND ENTERED this 7th day of February, 2001, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2001.

COPIES FURNISHED:

Dorothy J. Trzeciecka, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Sidney J. Simmons, Owner Lisa G. Martin, Manager Jack Draft House

2400 North Volusia Avenue Orange City, Florida 32763

Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-002832

Orders for Case No: 00-002832