STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 85-3709

)

SANGEO, INC., d/b/a )

THE PROVIDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled matter was held on January 9, 1986, in Miami, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows: For Petitioner: Lynne Quimby, Esquire

Division of Department of Business Regulation Hotels & 725 S. Bronough St.

Restaurants Tallahassee, F1. 32301

For Respondent: George A. Frix, pro se Sangeo, Inc. President, Sangeo, Inc. d/b/a The P.O. Box 530583

Provider Miami Shore, F1. 33153

ISSUES AND PROCEDURAL MATTERS

This proceeding was commenced on February 7, 1985, when the Division issued its Notice to Show Cause, alleging a list of seven violations of Chapter 509 Florida Statutes and certain administrative rules. The matter was handled informally and Final Order was entered by Division Director, R. Hugh Snow, on April 11, 1985. (H & R No. 23-16678R). The Final Order was later withdrawn pursuant to an Order of the First District Court of Appeal, (Case No. BG-307, dated October 29, 1985) and the matter was forwarded to the Division of Administrative Hearings.

At the commencement of the hearing, George Frix was determined to be authorized to represent his family-held corporation. See Magnolias Nursing and Convalescent Center v. DHRS, 428 So.2d 256 (Fla. 1st DCA 1982). The Petitioner presented the testimony of four witnesses and nine exhibits, marked A-l. The Respondent testified on his own behalf and one exhibit was admitted. Both parties submitted post-hearing proposed recommended orders. On January 27, 1986, Petitioner filed a Motion to Strike certain portions of Respondent's proposed recommended order, based upon Respondent's attachment of five exhibits to his proposed order. Those attachments labeled Exhibits #1 through #4 were not entered into evidence at the hearing and were not considered in the preparation of this Recommended Order. However, the attachment labeled Exhibit #5 was admitted at the formal hearing as Respondent's Exhibit #1 (Final Order of the Division, dated 4/11/85). This document is part of the record in this proceeding. Except as addressed above, the Motion to Strike is Denied. A specific ruling on each party's proposed findings of fact is found in the appendix attached to, and incorporated as part of this Recommended Order.

The issue in the proceeding is whether Respondent committed the violations alleged in Petitioner's February 7, 1985, Notice to Show Cause, and if so, what disciplinary or corrective action should be taken.

FINDINGS OF FACT

1. At all times relevant, Sangeo has held license number 23-16678R for the premises known as the Provider at 9713 N. E. 2nd Avenue in Miami Shores. The license was initially issued in January 1982, with an effective date of December 1981. The license is a counter and take-out license; that is, it permits the consumption of food on the premises and preparation of food for take-out. (Hayes testimony). The establishment consists of a sandwich take-out, meat market and grocery. Tables and chairs

   are provided for the customers, but there are no waitresses. The establishment has a beer and wine license, but not a "COP" (consumed on premises) license. (Testimony of Frix).

   
   

2. The Division of Hotels and Restaurants, the licensing authority, maintains a contract with the Department of HRS to conduct inspections of restaurants on a quarterly basis. (Testimony of Livingstone and Hayes).

   
   

3. Joanna Thomas, an Environmental Health Specialist, employed by the Dade County Health Department, conducted her first inspection of the licensee on October 24, 1984. She found several code violations: no urinal in the men's room, the hand wash sink blocked by bicycles and inaccessible, an open hole over

   the heater, failure to keep food at the required temperature, and other violations which she noted on her report and explained to the manager at the premises. (Thomas testimony).

   
   

4. Ms. Thomas returned for a follow-up inspection on October 30, 1984. Some corrections had been made. The manager was told that the urinal had to be installed by the next routine inspection visit. (Thomas testimony).

   
   

5. The next inspection was conducted on January 4, 1985. Again, several violations were found, and the following remedial actions were listed in the instructions on the inspection report: (The numbers correspond to the numbers on the violation checklist).

   
   

   #5 Provide approved thermometer as was told. #8 Elevate foods off floor in walk-in.

   #16 Install drainboards on both ends of three-compartment sink.

   
   

   #17 Provide chemical test kit.

   
   

   #20 Provide sanitizing agent for utensils.

   
   

   #25 Store single service articles upside down.

   
   

   #31 Install urinal in one of the restrooms. Handwash sink must be accessible at all times.

   
   

   #33 Provide covers for garbage cans and keep covered. Provide approved garbage containers

   - not plastic.

   
   

   #36 Clean floor on the side of hand wash sink and clean under items in the storage room.

   
   

   #37 Repair hole over heater or provide a screen to protect entrance of insects/rodents.

   
   

   #38 Light bulbs must be shielded in preparation and dishwashing area.

   
   

   #42 Remove unnecessary articles from storage room. Arrange storage so that floor could be

   reached for cleaning. Store cleaning maintenance equipment properly.

   
   

   (Petitioner's Exhibit A)

   
   

6. At the follow-up inspection on January 10, 1985, Ms. Thomas noted that some of the violations were still not corrected. She found failure to comply with the following: #16, 17, 31, 33, 37, 38. (Numbers correspond to the instructions listed in paragraph 5, above). These violations were the basis for the Notice to Show Cause which gave rise to this proceeding. (Petitioner's Exhibit 3, Notice to Show Cause dated 2/7/85).

   
   

7. On February 22, 1985, Ms. Thomas found compliance with #37 and $38, but not the other violations. On her April 10, 1985 inspection visit, her primary concern was that the urinal was still not installed. On her most recent visit on December 11, 1985, a reinspection, all prior violations had been corrected, except the installation of a range ventilation system (not at issue in the Notice to Show Cause) and the urinal. (Testimony of Thomas, Petitioner's Exhibit C).

   
   

8. The Provider does not now have, nor has it ever had, a urinal in the men's room. It was issued a license without one. The other violations, designated as "minor" on the January 4, 1985 inspection report, existed for varying periods or occasionally re-occurred, but no longer existed by December 11, 1985. The establishment maintains drainboards, but they are portable and not always in view. A handwash sink exists but on occasion it is blocked. Shields are utilized over the light fixtures, but are removed periodically for cleaning. (Testimony of Frix, Petitioner's Exhibits A and C).

   
   

9. George Frix conceded at the hearing that space exists to install a urinal. However, he claims that installation of another water-using device is prohibited by the local pollution control authority. No evidence of that prohibition was presented to substantiate the claim. He also claims that the requirement for the urinal did not exist at the time his license was issued and cites the Division's previous "Final Order", dated April 11, 1985, for authority, since the order does not require correction of the missing urinal. (Testimony of Frix, Respondent's Exhibit

   CONCLUSIONS OF LAW

   
   

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

11. Sub-section 509.032(1)(b) Florida Statutes, places primary responsibility and jurisdiction for inspections of lodging and food service establishments on the Division of Hotels and Restaurants of the Department of Business Regulation. That subsection further requires the Department of Health and Rehabilitative Services to:

    
    

    1. Prescribe sanitary standards which shall be enforced in public food service establishments and ensure that such standards are maintained;

       
       

       This statutory delegation of responsibility was in effect in 1981 at the time that the Provider was licensed.

12. Department of HRS Rule 10D-9.28(21)(d), Florida Administrative Code, governs the type and number of plumbing fixtures required in places serving food and drink. Rules 10D-

    13.21 through lOD-13.36, Florida Administrative Code, govern sanitary practices relating to restaurants and all other places serving food and drink to the public.

    
    

13. Rule 10D-9.28(21)(d), Florida Administrative Code, Table V requires, for male customers and employees, a minimum of one water closet, one urinal and one lavatory. An exception is made for establishments offering only takeout service, so long as the number of employees and patrons does not exceed nine expected to be present at one time, and so long as food is not permitted to be consumed on the premises and tables, chairs, benches, etc., are not provided for the convenience of the customers. In that case, only one toilet for employees and patrons is required. See Rule lOD-9.28(21)(d)3. a. and b., Florida Administrative Code. According to the information provided in Mr. Frix's testimony, the exception would not apply to his establishment since tables and chairs are provided. The cited rule was in effect in 1981 when the Provider was licensed. See history note to Rule lOD- 9.28, Florida Administrative Code.

    
    

14. The other violations which existed at the Provider on January 10, 1985, are each addressed in Chapter lOD-13, Florida Administrative Code.

    
    

    1. Drainboards or similar dish-stacking devices are required by lOD-13.26(1)(m)1.:

       
       

       ". . .Sinks shall be provided with drainboards, easily moveable dishtables of adequate size or other approved equipment so located and so constructed that soiled and cleaned utensils are kept entirely separate and that cleaned utensils are protected against contamination from soiled utensils or dishwashing operations. Drainboards shall slope to the sinks or to suitable drains and shall be installed so as not to interfere with proper use of the sinks. "

       See also lOD-13.26(5)(a), Florida Administrative Code.

       
       

    2. Chemical test kits for measuring sanitizing solutions are required by Rule lOD-13.26(5) 2.d.:

       
       

       "A test kit or other device that accurately measures the parts per million concentration

       of the solution shall be available and used when chemicals are used for sanitization."

       
       

    3. Handwashing facilities are required by Rule lOD- 13.27(6):

       
       

       "Handwashing facilities -- Each food service establishment shall be provided with adequate, conveniently located lavatories equipped with running water, hand cleansing soap or detergent, and approved sanitary towels or other approved hand drying devices in accordance with provisions of Chapter lOD-

       9 and 1 D-10 of the Florida Administrative Code. . ."

    4. Garbage containers are addressed in Rule 1OD-13.27(7): "Garbage and rubbish disposal - All garbage

       and rubbish containing food wastes shall, prior to disposal, be kept in leakproof, nonabsorbant containers which shall be kept covered with tight fitting lids;. . ."

       
       

    5. The covering or screening of holes is required by Rule 1OD-13.27(8):

       
       

       "Vermin control - . . .All buildings shall be effectively rat-proofed, freed of rats and maintained in a rat-proof and rat-free condition. All openings to the outer air, including windows, doors, skylights, transoms and intake and exhaust ducts shall be effectively protected against the entrance of flies and other flying insects by self- closing doors which open outward, closed windows, screening, controlled air currents or other effective means."

       
       

    6. Shields for lights are required by Rule lOD-13.28(3), Florida Administrative Code:

    
    

    ". . . In new or extensively remodeled establishments, shielding to protect against broken glass falling onto food shall be provided for all artificial lighting fixtures and infrared heat lamps located over, by or within food preparation and display facilities."

15. Each of the rules cited in paragraphs 5 above, were in effect in 1981, when the Provider was licensed. See history note to Rules 10D-13.26, .27, and .28, Florida Administrative Code.

    
    

16. The only authority cited by Respondent for his proposition that the law and rules did not require a urinal when the establishment was licensed is his Exhibit #1, the "Final Order" dated April 11, 1985, which found each cited violation occurred, with the exception of the missing urinal. The urinal was not addressed in the conclusions of law, nor was a specific finding made with regard to the urinal. The "Final Order" was vacated and in no way is binding in the instant formal proceeding, a substitute for the prior informal proceeding from which the April 11th order emanated.

    
    

17. Respondent alternatively implies that since he got his license without the urinal he should be able to keep his license without the urinal. This claim amounts to a defense of equitable estoppel. The three elements of equitable estoppel are 1. a misrepresentation; 2. reliance on the misrepresentation, and; 3. a change in position to the detriment of the person relying on the misrepresentation. 22 Fla. Jur. 2nd Estoppel and Waiver Section 31. Respondent neither alleged nor proved reliance and a detrimental change in position as a result of the licensing agency's failure to require the urinal in December 1981. Even if he had clearly proved all elements, the rule of law is that the state and its agents are not ordinarily estopped from the exercise of police power or enforcement of public rights. Fla. Jur. 2nd., supra, Section 80. One example of the application of this rule of law is found in Dade County v. Bengis Associates, Inc., 257 So.2d 291 (Fla. 3rd DCA 1972). Here the County issued, in error, a permit for a sign that was larger than allowed in the particular zoning district. The sign was erected and two years later the County ordered it removed. The court held that the County was not estopped; the permit was issued illegally and removal was not such a hardship as to require an exception to the rule.

18. An even more egregious oversight by a public agency is found in the case of Fraga v. Department of HRS, 464 So.2d 144 (Fla. 3rd DCA 1984). Fraga was a psychiatrist participating in the Medicaid program. HRS changed its rule and said only board- certified physicians could participate and be eligible for Medicaid reimbursement. Fraga told HRS that he wasn't board- certified, but that he felt he was competent. He continued to treat and bill for Medicaid patients and HRS continued to pay him. Later HRS sent him a letter stating that he was ineligible and requesting return of $38,252.75 in reimbursement. The court held that HRS was not equitably estopped from requiring reimbursement and the psychiatrist had to pay.

19. Section 509.241, Florida Statutes, requires that public food establishments obtain a license from the Division of Hotels and Restaurants. The Division may refuse a license or renewal to any establishment that is not constructed or maintained in accordance with law and with the rules of the Division. The Division may also suspend or revoke a license or impose a fine for violations of the law or rules of the Division. Section 509.261(1) and (2), Florida Statutes.

    
    

20. Petitioner has met its burden of proving that the alleged violations existed on January 10, 1985. The violation of failing to provide a urinal continues to exist. Respondent has failed to prove that he is prohibited from compliance. Nor has he presented persuasive authority that the minimum plumbing fixture requirements should not apply to him. He has the option of altering his establishment, by prohibiting the consumption of food on the premises and removing the tables and chairs, or he can install a urinal. He should however, be given a reasonable period to obtain necessary permits and complete the installation. The other violations were of a temporary and minor nature and the disciplinary action should be accordingly considerably less than the $500.00 per offense maximum fine permitted by Section 509.261(2), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

1. That Petitioner enter a Final Order finding the Respondent guilty of the violations cited in paragraphs A, B, D, E, F and G of the Notice to Show Cause, dated February 7, 1985, and imposing a fine of $300.00 ($50.00 per violation).

   
   

2. That Petitioner enter a Final Order finding the Respondent guilty of the violation cited in paragraph C of the Notice to Show Cause dated February 7, 1985, and requiring that compliance be demonstrated within 60 days of the date of the Final Order or thereafter that license No. 23-166F-R be suspended until compliance is demonstrated.

DONE and ORDERED this 6th day of February, 1986, in Tallahassee, Florida.

MARY W. CLARK, Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986.

COPIES FURNISHED:

Richard B. Burroughs, Jr. Secretary

Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301

R. Hugh Snow, Director

Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301

H. Reynolds Sampson, Esquire Post Office Box 3457 Tallahassee, Florida 32315

Lynne Quimby, Esquire

Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Mr. George A. Frix, President Sangeo, Inc.

P.O. Box 530583

Miami Shores, Florida 33153

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of feet submitted by the parties to this ease.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact #1.

   
   

2. Adopted in Finding of Fact #2.

   
   

3. Adopted in Finding of Fact #3.

   
   

4. Adopted in Finding of Fact #4.

   
   

5. Adopted in Finding of Fact #5.

   
   

6. Adopted in Conclusion of Law #5.

7. Rejected as a statement of testimony, not a finding of fact.

   
   

8. Adopted in Finding of Fact #6.

   
   

9. Rejected as immaterial, cumulative and unnecessary.

   
   

10. Rejected as immaterial, cumulative and unnecessary.

    
    

11. Rejected as a simple statement of testimony rather than a finding of fact.

    
    

12. Rejected as cumulative and unnecessary.

13-23. These "proposed findings of fact" are mere recitations of the testimony of various witnesses, and are rejected as such. To the extent that the testimony was credible, material and necessary, the facts adduced are reflected in Findings of Fact #7, 8 and 9.

24-27. These paragraphs citing provisions of the Administrative Code are addressed in Conclusions of Law #4 and 5.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Rejected as a statement of testimony rather than finding of fact. However, the substance of this paragraph was addressed as Respondent's defense in Finding of Fact #9.

   
   

2. Rejected as presenting evidence that was not introduced or admitted at the final hearing (Exhibits 1-4). These exhibits are also immaterial. Exhibit #5 is addressed in Finding of Fact #9.

   
   

3. Rejected as a statement of Respondent's testimony and argument of his position. He failed to produce authority that the law and rules did not exist when the facility was licensed.

   
   

4. Rejected as substantially inconsistent with the evidence.

   
   

5. Rejected as a statement of the Respondent's testimony. His argument that the violations charged were the result of a personality conflict between employees of Petitioner and Respondent, is rejected as based upon wholly unsubstantiated hearsay, and inconsistent with the greater weight of the evidence.

   
   

6. Rejected as immaterial.

   
   

7. Adopted in part in paragraph 8. The final sentence is rejected as inconsistent with competent substantial evidence that

the violations existed on January 10, 1985 and, in some cases, longer.

Docket for Case No: 85-003709

Orders for Case No: 85-003709