STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1495

)

MILDRED JENKINS, d/b/a )

PARADISE LOUNGE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, on September 22, 1983, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: James N. Watson, Esquire

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

For Respondent: Albert P. Singletary

2912 Bethel Court

Jacksonville, Florida 32207

ISSUE

This matter arose on Petitioner's Notice to Show Cause issued against Respondent's food service license. The Notice to Show Cause alleges violations of cleanliness requirements and failure to display license. The parties did not submit proposed findings of fact.

FINDINGS OF FACT

1. Respondent holds a food service license issued by the Division of Hotels and Restaurants, Department of Business Regulation. The licensed establishment is located at 714 W. Ashley Street, Jacksonville, Florida.

   
   

2. Petitioner's investigator inspected the licensed premises on March 9, 1983. A current license was not displayed and could not be produced by the manager.

   
   

3. Petitioner's March 9, 1983, investigation also revealed that roaches and rats had infested the premises. Vermin tracks and feces were found at or near entrance and exit holes. Respondent had not sealed these access holes nor taken other measures to eliminate the vermin.

4. The storage room, located next to the food service area, contained empty boxes and broken furniture. Petitioner considers these items objectionable since they provide hiding or breeding places for vermin.

   
   

5. The restroom provided for patrons had not been cleaned and the toilet seat was broken. Additionally, water on the restroom floor indicated a leak in the plumbing.

   
   

6. Petitioner's inspection report, which set forth the above described deficiencies, was given to Respondent's manager on March 9, 1983, at the conclusion of the inspection. Petitioner conducted a follow-up inspection on March 16, 1983, but none of the deficiencies had been corrected.

   
   

7. Petitioner conducted a second follow-up inspection on April 12, 1983, and found that corrective measures were in progress but not completed. At the hearing, Petitioner agreed to conduct a further follow-up inspection in conjunction with the local health inspection agency. A status report was to be submitted to the Hearing Officer as a late filed exhibit due October13, 1983, describing any uncorrected deficiencies. This report was not filed.

   
   

   CONCLUSIONS OF LAW

   
   

8. Rule 7C-1.02(1), Florida Administrative Code (F.A.C.), requires that the food service license "be displayed in a conspicuous place." Respondent was in violation of this requirement on March 9 and 16, 1983, as evidenced by the inability of the manager to locate the license for Petitioner's investigator.

   
   

9. Rule 7C-1.03(3), F.A.C., states: "Insects, vermin, rodents, termites, etc., shall be kept exterminated." On March 9 and 16, 1983, Respondent was in violation of this provision by its failure to keep the premises clean, seal roach and rodent holes and take extermination measures. Respondent likewise violated Rule 10D-13.27(8), F.A.C., which contains similar provisions on vermin control in food service establishments. This rule requires:

Effective control measures shall be taken to protect against the entrance into the food establishment, and the breeding or presence on the premises of rodents, flies, roaches, and other vermin. All buildings shall be effectively rat-proofed, freed

of rats and maintained in a rat-proof and rat-free condition. .

Rule 10D-13.27 (,5), F.A.C., provides in part:

(5), Toilet facilities - Each food service establishment shall be provided with adequate and conveniently located toilet facilities for its employees and patrons in accordance with provisions of Chapter 10D-9 and 10D-10 of the Florida Administrative Code. Fixtures

shall be of readily cleanable sanitary design.

Toilet facilities shall be kept clean, in

good repair and free from objectionable odors.

Respondent was in violation of the above provision as of March 9 and 16, 1983, by failure to keep its restroom clean and failing to' repair the broken toilet seat.

Rule 10D-13.28(6), F. A. C., provides in part:

All parts of the establishment and its premises shall be kept neat, clean and free of litter and rubbish.

Respondent was charged with violating the above provision with respect to storeroom conditions. Petitioner's witness, who conducted the investigation, could not state with specificity what items were improperly placed in the storeroom. The mere presence of empty boxes and broken furniture does not offend the above provision. Therefore, Respondent is not guilty of this charge.

Section 509.261, Florida Statutes (1982 supp) , provides in part:

1. The division [of Hotels and Restaurants] 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 for each offense, and all amounts collected shall be deposited with the Treasurer to the credit of the Hotel and Restaurant Trust Fund.

The above provisions grant Petitioner authority to revoke or suspend Respondent's food service license or impose a fine for the violations discussed herein. In view of Respondent's willingness to cooperate with Petitioner in improving the condition of the establishment, license revocation or suspension is not warranted.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order finding Respondent guilty of violating Rules 7C-1.02, 7C-1.03 and 10D-13.27, F.A.C., as charged; finding Respondent

`not guilty of violating Rule 10D-13.28, F.A.C., and, fining Respondent $200.

DONE and ENTERED this 10th day of November, 1983, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1983.

COPIES FURNISHED:

James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Albert P. Singletary 2912 Bethel Court

Jacksonville, Florida 32207

Sherman S. Winn, Director

Division of Hotels and Restaurants DePartment of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 83-001495

Orders for Case No: 83-001495