STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 77-1840

)

CHARLOTTE P. LARAMORE t/a )

TONY'S RESTAURANT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on January 3, 1978. The parties were represented by counsel:

APPEARANCES

For Petitioner: Mr. Lawrence D. Winson, Esquire

The Johns Building Tallahassee, Florida 32304

For Respondent: Mr. Herman D. Laramore, Esquire

Post Office Box 793, Courthouse Marianna, Florida 32446

By notice to show cause, mailed June 27, 1977, petitioner's exhibit No. 1, petitioner alleged that respondent was in violation of certain rules, viz.:

Rule 7C4.01 (5)(h) All roaches not exterminated. Back screen door not fly tight.

Rule 7C4.01 (4)(d)(e)(f) Dishwasher not in good repair. Rinse water pressure not adequate to rinse dishes; rinse temperature

163 degrees, Temperature guage [sic] not in good repair.

Rule 7C4.01 (2)(4)(b)(1,2,3) All refrigerators

not proper temperatures - (1) 53 degrees, Dressings

51 degrees.

Rule 7C4.01 (4)(f)(1) All equipment not properly cleaned--Work table tops not clean and smooth with no cracks.

Rule 7C4.01 (5)(d) Pot sink drain leaking on floor of back room.

Rule 7C4.01 (3)(b) All hair restraints not effective.

FINDINGS OF FACT

1. On February 16, 1977, Joe Hodges, an inspector in petitioner's employ, inspected respondent's premises in the normal course of his duties. On a form styled "Public Food Service Inspection Record," Mr. Hodges noted that respondent's refrigerators lacked thermometers; that the dishwasher needed a new temperature gauge; that a screen door opening onto the outside from the kitchen was not in good repair; that the employees' restroom had no soap and towels and had a window screen in need of repair; that the surfaces of some work tables were not smooth; that the employees' hair restraints were ineffective; and that there were many roaches. After this inspection, respondent Laramore acquired thermometers for the refrigerators, caused the area outside the premises to be cleaned, put soap and towels in the employees' restroom and caused the restroom window screen to be repaired.

   
   

2. On March 22, 1977, Mr. Hodges returned to respondent's premises, inspected again and issued a formal directive to respondent to exterminate roaches, clean the kitchen floors, repair certain nozzles on the dishwasher, clean certain equipment, store food elsewhere than on the floor of the walk-in refrigerator, lower the temperature in certain refrigerators, provide additional refrigerator thermometers, repair the lining of a freezer lid, and furnish effective hair restraints to employees. On the following day, respondent contacted Larry Farris of Panhandle Pest Control, who regularly sprayed the restaurant for bugs, and asked him to take whatever extra steps were necessary to exterminate the roaches. On the same day, respondent contacted Easom Plumbing Company and arranged for the dishwasher to be repaired. The screen door was fixed, although it was broken subsequently by men using dollies to deliver supplies. Respondent caused the freezer lining to be replaced, certain table tops to be sanded down, a sink drain to be repaired, and the entire kitchen to be steam cleaned.

   
   

3. On March 21, 1977, Mr. Hodges returned to respondent's premises and filled out a call back inspection report which listed the items set forth in the notice to show cause, petitioner's exhibit No. 1. On December 30, 1977, together with Mr. George Parish, Mr. Hodges made another visit to respondent's premises. Mr. Parish and Mr. Hodges found roaches, a torn screen on the back door, dirty equipment and a refrigerator containing salad and pastries stored at a temperature of 56-60 degrees. Mr. Parish saw live German cockroaches in many places, notably near an oven no longer used for cooking. This oven, certain other equipment, aswell as dish and pot storage shelves were dirty and needed to be cleaned. Mr. Parish noticed roach excrement caked alongside one of the tables in the kitchen. Mr. Parish and Mr. Hodges found that the sink drain leak had been fixed. They perceived no deficiency in respondent's employees' hair restraints, even though these did not differ significantly from restraints used in the spring of 1977.

   
   

4. They also found that respondent's dishwasher had been repaired. At the time of the inspection on December 30, 1977, the dishwasher operator, who was washing one load after another, made a wash cycle last two and a half minutes and followed up with a rinse cycle lasting a minute and a half. The dishwasher contained a hot water heater to boost the temperature of the water used for

   washing and rinsing dishes in the machine. Although this was in good working order, the dishwasher was being operated with a rinse water temperature of only

   172 degrees. The normal wash cycle is 30 seconds and the rinse cycle normally lasts only 12 seconds. With repeated loads of dishes and abnormally long cycles, the water used for dishes in later loads does not reach the same high temperature as at first.

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner failed to establish that respondent violated Rule 7C- 4.01(3)(b), F.A.C. Petitioner did establish that respondent's dishwasher was not working properly in March of 1977, but petitioner's agents testified that the dishwasher was in good repair at the time of the hearing. Petitioner established that a sink drain leaked in respondent's kitchen, in violation of Rule 7C-4.01(5)(d), but this problem had also been rectified by the time of the hearing. Petitioner established that the measures taken to control roaches and insects capable of flying in the back door (on account of the torn screen) were not effective, within the meaning of Rule 7C-4.01(5)(h), F.A.C., although respondent has been trying in good faith to control these insects. The evidence established that some of the equipment in respondent's kitchen, particularly equipment no longer used for cooking, was unsanitary in violation of Rule 7C- 4.01(f)(1), F.A.C. Petitioner demonstrated that a refrigerator containing salads and pastries had a temperature of at least 56 degrees, but failed to establish the nature of the pastries, see Rule 7C-4.01(2)(i)(2), F.A.C., or any other evidentiary basis for concluding that respondent failed to maintain perishable foods "at such temperatures as will protect against spoilage." Rule 7C-4.01(2)(b), F.A.C.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner assess a civil penalty against respondent in the amount of one hundred dollars ($100.00).

DONE and ENTERED this 31st day of January 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Lawrence D. Winson, Esquire The Johns Building

725 South Bronough Street Tallahassee, Florida 32304

Mr. Herman D. Laramore, Esquire Post Office Box 793, Courthouse Marianna, Florida 32446

Docket for Case No: 77-001840

Orders for Case No: 77-001840