STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1568

)

MONTGOMERY'S, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on September 17, 1950 at Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Mary Jo M. Gallay, Esquire

Staff Attorney

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: W. C. Montgomery

5942 111th Street

Green Cove Springs, Florida

By Notice to Show Cause dated 31 July 1980 the Division of Hotels and Restaurants, Petitioner, seeks to assess a civil penalty against, or to suspend or revoke the restaurant license of W. C. Montgomery, trading as Montgomery's, Respondent. As grounds therefor it is alleged Respondent violated numerous specified rules relating principally to sanitation in the restaurant. These charges arose from a routine inspection of the restaurant on 25 July 1980 and a follow-up inspection on 28 July 1980. At the hearing one witness was called by Petitioner, two witnesses were called by Respondent and 7 exhibits were admitted into evidence.

FINDINGS OF FACT

1. W. C. Montgomery, trading as Montgomery's, Respondent, holds restaurant license control No. 20-00228B (Exhibit 4)

   
   

2. On Friday, 25 July 1900, while Montgomery was attending a Gideon convention in Detroit, Michigan, the restaurant was inspected and numerous discrepancies found (Exhibit 1) . Mrs. Montgomery was present at the time and advised the inspector that her husband was out of town and would return the following Tuesday.

3. A follow-up inspection was conducted on Monday morning 28 July by the same inspector from the Clay County Health Department. This inspection report (Exhibit 2) formed the basis for the Notice to Show Cause date 31 July 1980 issued by the Director, Division of Hotels and Restaurants in Tallahassee.

   
   

4. Respondent was earlier issued a Notice to Show Cause regarding similar deficiencies in this restaurant. In December 1979 Montgomery entered into a contract to sell this business to another. Following the January 1980 inspection or the February 11, 1980 inspection (Exhibit 7) , charges similar to the present charges were preferred against Montgomery's. On the Call Back/Re- inspection Report dated 2/26/80 (Exhibit 7) a notation appears: "Discontinue proceedings of Notice to Show Cause. Change of ownership." Thereafter, the contract to sell was not consummated because the purchaser couldn't get financing.

   
   

5. On March 7, 1980 the restaurant was again inspected and, to his apparent surprise, the inspector found Montgomery still the owner. A long list of discrepancies appeared on the inspection report (Exhibit 7) and the Health Department closed down the restaurant. Following a Call Back/Re-inspection Report (Exhibit 7) dated 3/14/80 a notation appears on the report: "Reinstate license this date."

   
   

6. On Inspection Reports dated 3/31/80, 4/25/80 and 6/20/80 (Exhibit 7) only minor deficiencies were noted. During this period the automatic dishwasher was inoperable and had net been replaced and Respondent had only a three compartment sink in which to wash dishes. No separate sink in which to wash pots and pans was provided.

   
   

7. The final Inspection Report admitted into evidence is dated 8/12/80 (Exhibit 3) . On this Inspection Report the dishwashing discrepancy again appears, as does the greasy hood ventilation filters. Also included is a requirement to provide rounded corners at baseboards in walk-in Freezer to facilitate cleaning, all of which appeared on the January 25 and 28 inspections which furnish the grounds upon which disciplinary action is here proposed.

   
   

8. One of the discrepancies noted is failure of the commercial refrigerator to have a drain hole through the bottom shelf through which condensation can drain. Respondent's evidence was that this commercial refrigerator was not designed with such a drain hole, gratings were installed on this bottom shelf and no food container ever sat in water although water did sometimes settle on the bottom of this refrigerator.

   
   

9. With respect to the deficiency involving vermin, Respondent's evidence that he has engaged the services of a pest control company on a continuing contract basis since opening was not disputed.

   
   

10. Respondent has now installed a two-compartment sink in addition to the three-compartment silk and has ordered a dishwasher. Once this dishwasher (or the two-compartment sink) is installed, this longtime discrepancy will be corrected.

    
    

11. Respondent owns and operates two other restaurants near Jacksonville which apparently are satisfactory from a sanitation standpoint. Accordingly, it clearly appears that Respondent is cognizant of various various requirements and that failure to comply with these rules can result in disciplinary action against the restaurant's license.

12. Restaurants in Clay County, or at least those coming under the jurisdiction of the inspector here involved, are inspected monthly rather than quarterly as required by statute. Respondent's witness testified that the hood ventilation filters were washed in warm, soapy water twice weekly, yet on most of the inspection reports these filters were reported to be full of grease. Respondent's witness also testified that all defects noted had now been corrected, including the rounded corners in the walk-in freezer floors.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearing has jurisdiction over the parties and subject matter of these proceedings.

    
    

14. Rules which Respondent is alleged to have violated are contained in Chapter 7C-4, Florida Administrative Code. These rules require restaurants to utilize certain equipment and to maintain clean and sanitary conditions in the restaurant. These rules also require a separate two-compartment sink if a three-compartment sink is used for washing dishes. They also ,require a refrigerator to be properly drained into floor drain. There was no evidence presented that the refrigerator here was not properly drained. The fact that condensation may have accumulated on the floor of the refrigerator does not negate the existence of proper drainage for this frigerator.

    
    

15. These rules require design and construction of facilities used in restaurants to be easily leanable and so installed as to facilitate the cleaning thereof and all adjacent areas with the equipment in place. This rule does not specify or require a rounded intersection between walls and floor of a walk-in freezer.

    
    

16. From the evidence presented it is clear that at the time of the July inspections Respondent's restaurant was in an unsanitary condition and that this condition was not corrected during the weekend between these inspections. It is also clear that Respondent was not aware of this condition until he returned from Detroit, and since that time he has taken appropriate steps to correct the problems. It is further concluded that the hood ventilation filters should be washed more frequently that twice per week ))(d that Respondent's pest control contract should be reviewed and the service thereby provided be increased if necessary. It is therefore

RECOMMENDED that Respondent be issued an admonishment for the unsanitary conditions existing in this restaurant in July, 1980, and that he present to Petitioner, in writing, steps he has taken or will take to insure this restaurant is maintained at the prescribed standards.

Entered this 10th day of October, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980.

COPIES FURNISHED:

Mary Jo M. Gallay, Esquire Staff Attorney

Department of Business Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. W. C. Montgomery 5942 111th Street

Green Cove Springs, Florida

Docket for Case No: 80-001568

Orders for Case No: 80-001568