STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-0997

)

THOMAS L. BURNS, d/b/a )

HAPPY ACRES TAVERN )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 9, 1988 in Melbourne, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Belinda G. Noah, Esquire

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

FOR RESPONDENT: Thomas L. Burns, Pro Se

2668 West Aurora Road Melbourne, Florida 32935

BACKGROUND

The Respondent, owner of the Happy Acres Tavern, holds a public food service license issued by the Petitioner. The premises of the Happy Acres Tavern were condemned by local health authorities in Brevard County, Florida, as a public health hazard. Subsequently, the Petitioner issued an emergency order of suspension of Respondent's license and a notice for Respondent to show cause why the license should not be suspended, revoked or a civil penalty assessed against Respondent. This administrative hearing followed.

The Petitioner presented testimony of six witnesses and six exhibits at hearing. The Respondent presented testimony of one witness. Proposed findings of fact submitted by the Petitioner are addressed in the appendix to this recommended order. No proposed findings were submitted by the Respondent.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Petitioner is the Division of Hotels and Restaurants of the Department of Professional Regulation.

   
   

2. The Respondent is Thomas L. Burns. At all times pertinent to these proceedings, he was the operator of the Happy Acres Tavern and holder of public food service license number 15-00079R issued by Petitioner.

   
   

3. Michele Cielukowski is a sanitation inspector with the Brevard County Health Department. On February 24, 1988, she inspected the premises of the Happy Acres Tavern. A septic tank and drain field are located immediately adjacent to the facility. Fifteen feet from the other side of the septic tank and drain field is a drainage ditch. She observed water standing in the drainage field and detected the presence of a strong malodor. Further inspection revealed the top soil above the drain field was saturated with water, the lid on the septic tank had been removed from the tank, and the tank's effluent contents were exposed to the open environment. The city water line serving the establishment runs across the top of the septic tank. The tavern's bar sink drain was disconnected from the septic tank, allowing waste water from that source to flow out on the ground. A type of vegetation, known as "dollar weed", grows profusely in the ditch and is a strong indicator that some effluent is leaching into the ditch. Plumbing in the women's rest room of the facility was sluggish and required a second attempt by the inspector before the toilet would flush.

   
   

4. In the course of the inspection, Ms. Cielukowski took water samples from the standing water in the ditch and from a water faucet in the tavern.

   Upon analysis, the faucet water revealed the presence of fecal coliform which are organisms commonly associated with feces eliminated from the digestive tract of animal life. While the faucet water fecal coliform count was less than 10, the quantities of the organism found in the water samples taken from the ditch revealed a count of 1,000.

   
   

5. Based on testimony of Richard G. Biondi, director of consumer health services in Brevard County, the finding is made that fecal coliform should not be present in any amount in the public drinking water supply in the tavern's locale. Since the water line to the tavern runs across the septic tank and surrounding saturated soil, there is a possibility of fecal coliform entering the water system in the event of a drop in the water pressure within the line.

   
   

6. Dr. Manuel Garcia is the director of the Brevard County Health Service. After review of the results of the inspection of the Respondent's business, inclusive of the water analysis results, he ordered the tavern condemned to prevent a hazard to the public health. His decision was based upon the possibility of contamination of the public water supply by the sewage escaping from Respondent's establishment. In addition, the open septic tank and malfunctioning drain field increase the possibility of hepatitis, cholera, typhoid fever and other diseases.

   
   

7. Diann Worzella is a sanitary supervisor with Brevard County. She visited the tavern premises on February 24 and March 1, 1988. The sewage disposal system comprised of the septic tank and drain field were in a serious state of malfunction. Her testimony corroborates that of Ms. Cielukowski with the additional observation that the tavern's sewage system is termed a "dead system." Within the parlance of sanitation experts, such a designation means the system cannot be restored and must be replaced. She noted that local county

   ordinances and state regulations require all businesses offering services to the public to have a properly functioning waste disposal system.

   
   

8. Testimony by the Respondent confirmed a leak existed in the waterline pipe running across the septic tank and into the tavern. The Respondent maintains the leak has been repaired and topsoil above the drain field is now dry. He presented no evidence as to the manner in which the repair had been effected or that water purity in the faucet water had been restored. He also did not address whether the septic tank and its contents had been sealed from exposure, or if other noted plumbing deficiencies had been corrected.

   
   

9. The plumbing difficulties and sewage disposal deficiencies existing at the Happy Acres Tavern constitutes an immediate danger to the public health sufficient to outweigh continued operation of the Respondent's licensed food service business. The Respondent's establishment does not have a properly plumbed and approved sewage disposal system.

   
   

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

   The evidence adduced at hearing established the existence of an immediate danger to the public health and welfare sufficient to support the Petitioner's issuance of the emergency order of suspension. The proof further establishes that Respondent is not in compliance with the statutory conditions applicable to his license requiring that his establishment have a properly plumbed and approved sewage system. Subsections 509.221 (1) and (2), Florida Statutes. The continuation of Respondent's licensed food service operation is far outweighed by the danger to the public health and should cease until Respondent has complied with requirements of the afore stated statutory subsections and provisions of sections 7C-4.001, 10D-13.027 (3) and (4), and 10D-6.046, Florida Administrative Code.

   
   

   RECOMMENDATION

   
   

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered:

   1. Continuing the emergency order of suspension of license number 15- 00079R until Respondent has corrected all deficiencies noted in the public health inspection conducted on February 24, 1988, including provision and maintenance of a properly plumbed and approved sewage disposal system for the facility known as Happy Acres Tavern, provided such suspension shall not exceed the maximum period of 12 months provided by section 509.261 (3), Florida Statutes.

      
      

   2. Finding the Respondent guilty of failing to maintain a safe water source and an approved sewage system as set forth in sub paragraphs 2a. and 2b. of paragraph number 2 in the Notice to Show Cause.

DONE AND RECOMMENDED this 25th day of March, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988.

APPENDIX

The following constitutes my specific rulings on findings of fact submitted by the parties.

Petitioner

1. Included in finding number 2.

2. Rejected as unnecessary.

3. Rejected as unnecessary.

4. Rejected as unnecessary.

5. Included in finding number 7.

6. Included in finding number 7.

7. Included in finding number 7.

8. Included in finding number 7.

9. Rejected as unnecessary.

10. Included in finding number 3.

11. Included in finding number 3.

12. Included in findings 3 and 4.

13. Rejected as unnecessary.

14. Included in finding number 4.

15. Included in finding number 5.

16. Rejected as unnecessary.

17. Unnecessary.

18. Unnecessary.

19. Included in finding number 6.

20. Unnecessary.

21. Included in finding number 8. Proposed findings of fact submitted by Petitioner in paragraphs numbered 22 through 28 are conclusions of law and are rejected as unnecessary.

Docket for Case No: 88-000997

Orders for Case No: 88-000997