Judges: ELLA JANE P. DAVIS
Agency: Department of Business and Professional Regulation
Latest Update: Jun. 01, 1988
Summary: Whether or not on April 27, 1987 the Respondent violated specific rules as alleged in its Notice to Show Cause dated May 27, 1987.$500 per sanitation offense was excessive penalty; $100 per sanitation offense imposed
87-3178STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION,) DIVISION OF HOTELS AND )
RESTAURANTS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3178
) PETRILLO ENTERPRISES, INC., d/b/a ) CHICKEN UNLIMITED, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing before Ella Jane P. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 28, 1988, in Miami, Florida.
APPEARANCES
For Petitioner: Belinda G. Noah, Esquire
Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Louis F. Petrillo, Sr.
7900 Southwest 143rd Street Miami, Florida 33155
ISSUE
Whether or not on April 27, 1987 the Respondent violated specific rules as alleged in its Notice to Show Cause dated May 27, 1987.
BACKGROUND AND PROCEDURE
At the commencement of formal hearing, Louis F. Petrillo sought to represent Respondent corporation as its qualified representative. Petitioner initially opposed this representation but subsequently withdrew its motion to disqualify. A resolution of the Respondent corporation, under its seal, authorizing Louis F. Petrillo to represent the corporation at formal hearing had previously been filed with the Division of Administrative Hearings. Upon the record, the undersigned inquired of the Respondent's president, Louis A. Petrillo, who acknowledged, under oath, that the resolution was authentic and that it was his desire, as the corporate president and the officer requesting
formal hearing, that his father, Louis F. Petrillo, represent the corporation. 1/ Upon examination, the undersigned found Louis F. Petrillo to be a qualified representative to act for Respondent pursuant to Rules 22I-6.008 and 28-5.1055, Florida Administrative Code.
Petitioner had admitted three exhibits and presented the oral testimony of Norman Hayes and David Petty. Respondent's motion to dismiss for failure to prove the allegations of the Notice to Show Cause made prior to Petitioner's completing its case in chief was denied without prejudice. The motion was not renewed. Official recognition was taken of a certified copy of Respondent's 1987 Annual Report.
Petitioner requested that judicial notice be taken of Rules 7C-4.0001; 10D- 13.026(2) and (3); 10D-13.026(1)(m) and (5); 10D-13.027(4) ; 10D-13.027(5) ;
10D-13.027(8) ; 10D-13.028(2) ; 10D- 13.028(3) and 10D-13.028(4), Florida
Administrative Code, and Respondent opposed the request. Petitioner was permitted to file copies of the aforesaid rules with a speaking motion for official recognition within five days of the conclusion of formal hearing, and same was filed. Thereafter, Respondent never filed any formal opposition thereto, and upon consideration that these are matters for which official recognition is mandated, official recognition has been granted. However, it is axiomatic that only those statutes and rules in effect on April 27, 1987 and charged in the May 27, 1987 Notice to Show Cause, may be prosecuted against or applied to Respondent in this present license disciplinary proceeding.
Respondent offered no documentary evidence, but Messrs. Louis A. Petrillo and Louis F. Petrillo each testified orally.
No transcript was provided. Petitioner filed proposed findings of fact and conclusions of law, the findings of fact of which have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), Florida Statutes. Respondent filed no post-hearing proposals.
FINDINGS OF FACT
The Notice to Show Cause, dated May 27, 1987, charges the following offenses existed on April 27, 1987:
Violation of Florida Statutes, Section 509.032(1)(2) and (3). In particular,
the following violations will be described and reference to the statutes, rules or regulation as follows:
Florida Administrative Code - F.A.C.
A. Violation of 10D-13.26(2)(3) , F.A.C.
Failure to provide proper non-food contact surface. Repair loose door to deep fat fryer.
B. Violation of 10D-13.26(1)(m)(5) F.A.C.
Failure to provide chemical test kit.
Violation of 10D-13.27(4) F.A.C. Failure to provide properly installed and main-
tained plumbing. Reinstall kitchen lavatory.
Violation of 10D-13.27(5) F.A.C. Failure to provide convenient, accessible, ade-
quate toilet and handwashing facilities.
Violation of 10D-13.27(5)(b) F.A.C. Failure to maintain and/or equipment [sic] restroom with proper handwashing and drying equipment.
Violation of 10D-13.27(8) F.A.C. Failure to protect outer openings.
Violation of 10D-13.28(2) F.A.C. Failure to provide properly maintained walls and attached equipment.
Violaiton [sic] of 10D-13.28(3) F.A.C. Failure to provide proper shielding for kitchen ceiling lights.
Violation of 10D-13.28(4) F.A.C. Failure to vent rooms and/or equipment required.
The rules defining these offenses were all renumbered in August, 1987 and some rules were further amended. However, the rules as charged in the charging document and as in effect on the material date, April 27, 1987, govern this proceeding.
Respondent, Petrillo Enterprises, Inc. d/b/a Chicken Unlimited (hereinafter Chicken Unlimited), license 23-186220, was licensed at all times material as a public food establishment at 6757 Bird Road, Miami, Florida, and remained licensed as of the date of formal hearing, although it had ceased operation before the date of hearing.
On April 22, 1987, Chicken Unlimited was operating as a public food service establishment and David Petty, an Environmental Health Supervisor for the Dade County Department of Public Health, made out a food service inspection report reflecting Respondent's noncompliance with 16 sanitary regulations of Petitioner. He ranked each as a "minor" violation. Mr. Petty was not asked at hearing if he observed these violations on that day, but on the basis of his testimony concerning certain violations corrected while he was still present on April 22, 1987 and other violations observed again by him upon his revisit to the public food establishment on April 27, 1987, I infer that he actually observed the conditions cited in the April 22, 1987 inspection report, which conditions Petty considered to be code violations.
On April 27, 1987, Chicken Unlimited was operating as a public food service establishment and Mr. Petty conducted a reinspection to determine whether the violations not corrected on April 22 had now been corrected. During the reinspection, Mr. Petty observed 10 of the prior conditions which had not been corrected. These were as follows: A loose door on the deep fat fryer had not been repaired. The kitchen lavatory needed to be reinstalled. The rear kitchen door had not been sealed to prevent the entrance of vermin; missing wall tiles had not been replaced in the kitchen; proper shielding had not been installed for the kitchen ceiling lights; sanitizing test papers had not been procured; and a current manager certification in food management was not displayed or produced by personnel on the premises. (The failure of certification was noted in the reinspection report but never charged in the Notice to Show Cause against this Respondent.) In Petty's opinion, Chicken Unlimited also had failed to provide convenient, accessible and adequate toilet and handwashing facilities on both inspection dates. The ventilator fan in the men's restroom was not working. Petty personally observed that the fan was not working and that a broken sink was in the restroom under a counter on the reinspection date. When challenged on cross-examination regarding his
qualifications to determine whether the fan was working, since he is not an electrical engineer, Mr. Petty replied that "if you turn the fan on at the switch and the blades don't rotate, something is wrong." His observation was made from inside the men's room looking up into the fan.
Mr. Louis A. Petrillo, president and manager, was not present on the premises while Mr. Petty was there either on April 22 or 27, 1987.
Respondent did not refute any of Mr. Petty's testimony. Louis A. Petrillo testified that copies of the statutes and rules applicable to Chicken Unlimited were not provided to him by Petitioner at the time his license was issued and that his own employee who received copies of the inspection report on April 22, 1987 and of the reinspection report on April 27, 1987 failed to transmit them to him. He maintained that for these reasons, he was unable to maintain the Chicken Unlimited premises according to the applicable rules and was also unable to timely correct the violations once they were cited.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.
The Notice to Show Cause charges violations of Section 509.032(1), (2), and (3), Florida Statutes, and of Florida Administrative Code Rules 10D- 13.26(2)and (3) for violation (A), of 10D-13.26(1)(m) and (5) for violation (B), of 10D-13.27(4) for violation (C), of 10D-13.27(5) for violation (D), of 10D- 13.27(5)(b) for violation (E), of 10D-13.27(8) for violation (F) of 10D-13.28(2) for violation (G), of 10D-13.28(3) for violation (H), and of 10D-13.28(4) for violation (I).
Section 509.261, Florida Statutes, grants Petitioner the authority to revoke or suspend the license of a public food service establishment that has operated or is operating in violation of Chapter 509, Florida Statues, or Chapter 10D-13, Florida Administrative Code, or, in lieu thereof, to impose an administrative fine for such violation not to exceed $500 for each offense.
Section 509.032, Florida Statutes (1987), provides, in pertinent part:
* * *
INSPECTION OF PREMISES.--
The division shall inspect, at least four times annually, each public lodging establishment except a nontransient public lodging establishment, which shall be inspected at least two times annually, and shall inspect at least four times annually each public food service establishment in this state, and for that purpose, it, or its contractual designee, shall have the right of entry and access to such establishments at any reasonable time.
Primary responsibility and jurisdiction for all inspections required by this chapter is placed in the Division. The Department of
Health and Rehabilitative Services shall:
Prescribe sanitary standards which shall be enforced in public food service establish- ments and ensure that such standards are maintained;
Inspect public food service establish- ments not more than twice annually to ensure the maintenance of sanitary standards concurrently with the inspections performed by the division and whenever necessary to respond to an emergency or epidemiological
condition, except as provided in paragraph (a)
Immediately report to the Secretary of the Department of Business Regulation any significant failure of the division to enforce sanitary standards; and
Send the Governor a written report at the end of each fiscal year, which report shall state, but not be limited to, the total number of inspections conducted to ensure the enforcement of sanitary standards, the total number of inspections conducted in response to emergency or epidemiological conditions, the number of violations of each sanitary standard, and any recommendations for improved surveillance procedures.
RULEMAKING AUTHORITY.--The division shall adopt such rules as are necessary to carry out the provisions of this chapter.
Rule 7C-4.001, Florida Administrative Code, in effect on the material date provided:
Chapter 10D-13 F.A.C. entitled Food Service is hereby adopted as the sanitary standards to be enforced in public food service establishments by the health authority.
Charge A of the Notice to Show Cause cites two offenses: violation of Rules 10D-13.26(2) and (3), "failure to provide a proper non-food contact surface" and failure to "repair loose door to deep fat fryer." Rule 10D- 13.26(2) actually addresses methods and materials which appropriately may be used to repair equipment. A deep fat fryer is a piece of multi-use equipment. Aside from the language in subparagraph (2)(a) that "Multi-use equipment and utensils shall be constructed and repaired with safe materials; . . . " there is nothing in this lengthy rule subsection to mandate action by the licensee unless he has already undertaken repairs in a manner inconsistent with its provisions, but failure to undertake repair of the deep fat fryer in violation of subsection
(2) has been proven.
Charge A also cites Rule 10D-13.26(3), Florida Administrative Code. That rule, as in effect on the material date, addressed installation and location of equipment and is irrelevant to the facts as found. Petitioner's post-hearing proposals cite this rule, as renumbered, as governing the height that certain equipment must be mounted above the floor. Some portions of the rule as existing on the material date impose a similar height requirement, but
no testimony was elicited at hearing concerning measurements above the floor where Chicken Unlimited's equipment was installed. Moreover, the inspection and reinspection reports in evidence are ambiguous as to this issue simply because the violations charged encompass so many factual possibilities of which this is only one. A violation of subsection (3) has not been proven.
Charge B cites two offenses: violations of Rules 10D- 13.26(1)(m) and (5), "failure to provide a chemical test kit." Rule 10D-13.26(1)(m), Florida Administrative Code, provided in pertinent part:
(1) Equipment and facilities provided--Every food service establishment shall be provided with equipment and utensils so designed, constructed, located, installed, maintained and operated as to permit full compliance with the provisions of this chapter. The following equipment and facilities shall be provided where applicable to the operations conducted:
* * *
(m) Approved facilities for manual and mechanical dishwashing of multi-use eating and drinking utensils. Suitable facilities shall be provided for removing food scraps and food residue from utensils, including glasses, before they are placed in the wash water or wash compartment.
1. When utensils are washed and sanitized by hand, a three compartment sink shall be provided . . . .
Rule 10D-13.26(5) was also cited for Charge B. Subsection (a)2.d. of that rule provided in pertinent part:
(5) Methods of washing and sanitizing--
Prior to washing, all equipment and multi-use utensils shall be preflushed or prescraped and, when necessary, presoaked to remove gross food particles and soil. Effective concentrations of suitable detergent shall be used in both manual and mechanical dishwashing.
Manual-- For manual washing, rinsing and sanitizing of utensils and equipment, a sink with not fewer than three compartments shall be provided and used . . . All multi-use eating and drinking utensils and, where required, the food contact surfaces of all other equipment and multi-use utensils shall be sanitized in the third compartment by one of the following methods:
Immersion for a period of at least one- half (1/2) minute in clean, hot water at a temperature of one hundred seventy degrees Fahrenheit (170F.) or above.
Immersion for a period of at least one
(1) minute in a clean sanitizing solution
d. A test kit or other device that accurately measures the parts per million concentration of the solution shall be avail- able and used when chemicals are used for sanitization.
Only a violation of Rule 10D-13.26(5) for the test kit has therefore been proven under this Charge B.
Charge C of the Notice to Show Cause cites Rule 10D- 13.27 (4) with regard to "reinstall kitchen lavatory." This could as easily be a violation of Rule 10D-13.26(1)(m) as listed in Charge B, but it was not so charged in Charge
C. Rule 10D- 13.27(4), cited for alleged violation C, provided:
Plumbing -- Plumbing shall be sized, installed and maintained in accordance with provisions of Chapter 10D-9 of the Florida Administrative Code. It shall provide adequate quantities of water to required locations throughout the establishment, prevent contamination of the water supply, properly convey sewage and liquid wastes from the establishment to the sewerage system; and it shall not constitute a source of contamination of food, equipment or utensils
or create an unsanitary condition or nuisance. . .
The violation of Rule 10D-13.27(4) has been proven.
Charge D of the Notice to Show Cause cites Rule 10D- 13.27(5), "failure to provide convenient, accessible, adequate toilet and handwashing facilities." That subsection provides:
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 Chapters 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. Toilet rooms shall be well lighted and adequately ventilated. Toilet tissue shall be provided. Easily cleanable receptacles shall be provided for waste materials and such receptacles in toilet rooms for women shall be covered. Toilet rooms shall be completely enclosed and shall have tight-fitting, self-closing doors. Such doors shall not be left open except during cleaning or maintenance. In new establishments and establishments which are extensively altered, toilet rooms shall not open directly into food preparation areas.
Handwashing signs shall be posted in each toilet room used by employees.
The violation of 10D-13.27(5) has been proven
On the material date, there was no subsection 10D- 13.27(5)(b), as cited for Charge E, "failure to maintain and/or equip restroom with proper handwashing and drying equipment," in the Notice to Show Cause. Based upon the post-hearing proposals, one must assume Petitioner intended to charge Respondent with a violation of 10D-13.27(6) covering "handwashing facilities" but did not. Having been charged once under 10D-13.27(5), in Charge D, the miscitation of subparagraph (5)(b) in Charge E cannot be presumed to be harmless. To do so would result in finding two offenses for one condition without appropriate notice in the charging document.
Charge F alleges a violation of Rule 10D-13.27(8), "failure to protect outer openings." That subsection provides:
Vermin control -- 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. 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. Screening material shall not be less than sixteen (16) mesh to the inch or equivalent and screens for windows, doors, skylights, transoms and other openings to the outer air shall be tight fitting and free of breaks.
The violation of Rule 10D-13.27(8) has been proven.
Rules 10D-13.28(2), cited for alleged Charge G, improperly maintained walls, 10D-13.28(3), cited for alleged Charge H, unshielded kitchen lights, and 10D-13.28(4), cited for alleged Charge I, failure to vent rooms, provided in pertinent parts:
Walls and ceilings -- All walls and ceilings including doors, windows, skylights, screens, and similar closures shall be kept clean and in good repair. The walls of all food preparation, utensil washing and handwashing rooms or areas shall have smooth, easily cleanable surfaces and shall be washable up to the highest level `reached by splash or spray . . .
Lighting -- . . . shielding to protect
against broken glass falling onto food shall be provided for all artificial lighting fixtures.
Ventilation -- All rooms in which food is stored, prepared or served, utensils are washed, toilet, dressing and locker rooms and garbage storage areas shall be well ventilated. Obnoxious odors, fumes and vapors shall be effectively vented to the outside air. Ventilation hoods and devices shall be designed to prevent grease and condensate from dripping into food or onto food contact surface. Filters, where used, shall be readily removable for cleaning unless designed to be cleaned in place. Ventilation systems shall comply with applicable fire prevention requirements and shall discharge in such a manner as not to create a nuisance. Intake and exhaust air ducts shall be maintained to prevent the entrance of dust, dirt and other contaminating materials.
Those three violations have been proven.
The conditions observed by Mr. Petty constitute violations of the rules cited in paragraphs A (one offense), B (one offense), C, D, F, G, H and I of the Notice to Show Cause. Paragraph E thereof cites a nonexistent subsection.
Respondent established no affirmative duty in the agency to provide Respondent with copies of applicable laws and regulations (rules) concurrent with its granting of a license to Respondent. Ignorance of the law is no excuse for Respondent's failure to maintain the premises within those standards.
It also was not established that there is any legal requirement that the agency seek out an establishment's manager or corporate president to present him with inspection reports when that manager or corporate president is not physically on the premises at the time of an inspection and/or reinspection.
The president's absence from the premises and lack of communication with his staff is not mitigation for the offenses proved.
Respondent timely requested a hearing pursuant to Section 120.57(1), Florida Statutes, as is its right, and the corporation, through its principal, has been heard on each violation charged. Thereby, due process has been effected.
Petitioner seeks to invoke a $500 fine for each offense proved. This seems excessive in light of the inspector's classifying each condition as "minor," in light of the circumstance that single conditions can result in several violations, and in light of the language of Section 509.261, Florida Statutes, that administrative fines for such violations ought "not to exceed"-
$500 per offense. Accordingly, a fine of $100 for each of the eight violations proved seems sufficient.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent
corporation guilty of the following eight violations as charged in paragraphs A (one violation), B (one violation), C, D, F, G, H, and I, constituting eight violations, respectively, 10D-13.26(2), 10D-13.26(5), 10D-13.27(4), 10D- 13.27(5), 10D-13.27(8), and 10D-13.28(2), (3) and (4), and fining Respondent
$100 per offense for a total of $800.
DONE AND ENTERED this 1st day of June, 1988, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1988.
ENDNOTE
1/ Both Messrs. Petrillo repeatedly renewed, ore tenus, a written motion for appointment of an attorney at taxpayer expense, which written motion was denied by order entered in this cause on October 26, 1987. The ore tenus motions were likewise denied. No authority exists for the appointment of free legal counsel under the circumstances of this case.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3178
The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the Petitioner's proposed findings of fact (PFOF).
1. | Covered in FOF 2. |
|
2. | Unnecessary. |
3. | Cumulative. |
4. | Unnecessary. |
5. | Covered in FOF 3. |
6-17. | Except where not supported by the record or where | mere |
| argument of counsel covered in FOF 4. |
|
18. | Subordinate and unnecessary. |
|
19. | Except as subordinate and unnecessary, covered in | FOF 6. |
20. Rejected as not supported by the pleadings or record. See FOF 1.
21-22. Accepted that most of the rules cited are cited accurately but these are rules renumbered since the Notice to Show Cause initiated this proceeding and several have been amended as well. They are addressed briefly in the introductory material, in FOF 1, and in the Conclusions of Law. Otherwise they are irrelevant.
COPIES FURNISHED:
Belinda G. Noah, Esquire Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
Louis A. Petrillo
c/o Petrillo Enterprises, Inc. 6757 Southwest 40th Street Miami, Florida 33155
Louis F. Petrillo
7900 Southwest 143rd Street Miami, Florida 33158
R. Hugh Snow, Director
Department of Business Regulation Division of Hotels and Restaurants The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
Joseph A. Sole, Esquire Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1007
Docket for Case No: 87-003178
Orders for Case No: 87-003178
| Issue Date |
Document |
Summary |
|
Jun. 24, 1988 |
Agency Final Order
|
|
|
Jun. 01, 1988 |
Recommended Order
|
$500 per sanitation offense was excessive penalty; $100 per sanitation offense imposed
|
