STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6961

)

CANDICE A REZIN, d/b/a ) BUCCANEER SANDWICH SHOPPE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on May 24, 1990, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Emily Moore, Esquire

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

For Respondent: L.C. Fiedler, Qualified Representative

Buccaneer Sandwich Shoppe 2247 Fowler Street

Fort Myers, Florida 33901 STATEMENT OF THE ISSUES

Whether the Petitioner should revoke, or otherwise discipline, the Respondents restaurant license based upon the charges that the Respondent committed rule violations, which are set forth in the Notice to Show Cause, as amended.

PRELIMINARY STATEMENT

A Notice to Show Cause was issued by the Petitioner, Department of Business Regulation, Division of Hotels and Restaurants (the Division) alleging that the Respondent, Candice A. Rezin, d/b/a Buccaneer Sandwich Shoppe (Buccaneer) had committed a series of rule violations for which its restaurant license should be revoked or otherwise disciplined. During the routine inspection of the restaurant performed by the Lee County Health Unit, the Buccaneer was found to be in violation of the following sanitary practices: a) restaurant equipment was not properly maintained; b) a wall was not in good repair; and c) approved local exhaust ventilation was not provided over all cooking units. The Division reiterated these violations in the Notice to Show Cause.

The Buccaneer disputed the allegations of fact set forth in the Notice to Show Cause and requested a formal administrative hearing.

During the hearing, the Division presented three witnesses and submitted ten exhibits which were accepted into evidence. Mr. Fiedler, the Qualified Representative, testified on behalf of the Buccaneer, and filed seven exhibits. All of these exhibits were also admitted into evidence.

A transcript of the hearing was not ordered. Rulings on the proposed findings of fact submitted by both parties are in the Appendix of this Recommended Order.

Posthearing, the Division sought to amend the evidence presented at hearing by submitting an additional inspection report. As the evidentiary portion of the hearing was closed on May 24, 1990, and Buccaneer responded only to the evidence presented on that date, the Motion to Amend Evidence filed June 8, 1990, is denied.

FINDINGS OF FACT

1. During the applicable time period, the Buccaneer held a current license to operate as a public food service establishment having been issued license number 46-01562R by the Division. The establishment is located at 2247 Fowler Street, Fort Myers, Florida. The current license is in effect until December 1, 1990.

   
   

2. On August 16, 1989, the premises of the restaurant were inspected by Robin Terzagian, an Environmental Health Specialist. Ms. Terzagian is employed by the Lee County Health Unit, which is part of the Department of Health and Rehabilitative Services.

   
   

3. During the inspection, Ms. Terzagian issued a written warning to the Buccaneer informing the establishment of various violations which needed to be corrected by August 30, 1989. The two major violations involved the preservation of food and food protection.

   
   

4. On August 30, 1989, Ms. Terzagian returned to the premises to conduct a second inspection which is referred to as a "call-back" inspection. At this time, the Buccaneer had responded to a number of the violations previously noted by the inspector. The time period for compliance for the remaining violations was extended until September 8, 1989.

   
   

5. On September 8, 1989, the partially torn gasket on the doors of the sandwich cooler had been repaired with a silicone rubber covering as opposed to "replaced", as instructed by Ms. Terzagian in her two prior inspection reports. The leaking faucet had not been repaired or replaced, as previously instructed, and the local exhaust ventilation had not yet been installed. However, the hole in the wall had been patched so this violation no longer existed.

   
   

6. At the close of this second "call-back" inspection, Ms. Terzagian issued a Notice of Intent to File Administrative Charges for failing to correct three of the alleged violations pursuant to her instructions. The violations which were previously marked as "minor" violations were reclassified as "major" violations.

   Torn Gasket on the Sandwich Cooler

   
   

7. Once the partially torn gasket on the sandwich cooler was repaired by Buccaneer, the sandwich cooler maintained the proper temperature required under the sanitary codes. Originally, the repair was made as a temporary measure by the establishment until a replacement gasket could be located by a local appliance company. Due to the age of the cooler, a replacement gasket was not located. The repair is the only measure the establishment can take to correct the problem and keep the same piece of equipment until such time as a new gasket is found.

   
   

8. The repaired gasket has continued to successfully maintain the proper temperature in the cooler. Subsequent inspections by different inspectors have determined that the repair has not interfered with the cleaning of the cooler in the area of the repair, as originally hypothesized by Ms. Terzagian when she insisted on total replacement of the gasket.

   
   

   Leaking Faucet

   
   

9. L.G. Rhodes Plumbing, Inc. was contacted to locate a replacement faucet for the sink prior to the September 8, 1989 inspection. During this inspection, the faucet had not been repaired. However, the manager of the establishment advised the inspector that a faucet was "on order" with Rhodes Plumbing. After several weeks of unsuccessful searching to find a replacement, the plumber repaired the faucet. This also occurred after September 8, 1989.

   
   

10. Before and during the time period the Buccaneer sought to replace or repair the faucet, the restaurant changed its dishwashing procedure. The Buccaneer management argued that the revised procedure mitigated the problems the lack of maintenance of the faucet may have caused.

    
    

11. The leaking faucet caused bacteria to accumulate around the leak. The repaired faucet has passed subsequent inspections made by inspectors who have replaced Ms. Terzagian in the review of this establishment prior to final hearing.

    
    

    Hole in Wall

    
    

12. The hole in the wall in the back room was not indicated on the August 30, 1989 "call-back" inspection. The violation had been cured by the Buccaneer after the warning was issued to the establishment on August 16, 1989.

    
    

13. The allegation in the Notice to Show Cause that the violation was in existence on September 8, 1989 was in error.

    
    

    Local Exhaust Over All Cooking Units

    
    

14. On May 26, 1989, Ken Abler, an inspector with the Fire Prevention Bureau of the Fort Myers Fire Department, sent a follow up letter to the manager of the Buccaneer advising the food service establishment that cooking, other than by microwave, was not permitted on the premises until such time as a proper hood system with automatic fire suppression is installed.

    
    

15. On August 16, 1989, Ms. Terzagian's inspection revealed that the Buccaneer was still cooking food on small, "plugged in" electric griddles without a fire suppression or hood system installed in the establishment. The practice was ongoing, and the griddles were still in use during the call-back

    report of August 30, 1989, the call-back inspection of September 8, 1989, and the reinspection report of October 12, 1989. The griddles were used to fry eggs and hamburger patties, and to heat sandwiches.

    
    

16. In spite of the representations made by the Environmental Health Specialist who inspected the premises on February 28, 1990, that all violations had been corrected on these premises, the automatic hood suppression system which was installed after October 12, 1989, had not had a final inspection and trip test as of March 28, 1990. No reliable additional information was provided by Buccaneer to demonstrate that the system has since been approved.

    
    

17. A search of the Fort Myers Fire Department records through May 23, 1990 did not reveal a final inspection approval by the Fort Myers Fire Department had occurred prior to final hearing.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

    
    

19. Section 509.261, Florida Statutes empowers the Division to suspend, revoke, or otherwise discipline the license of the Respondent if the food service establishment is found guilty of any acts which violate Chapter 509, Florida Statutes, or the rules promulgated by the Division. The Notice to Show Cause filed in this proceeding is directed to four violations at the Buccaneer, which were allegedly occurring on September 8, 1989.

    
    

20. The first charge listed in the Notice to Show Cause alleges that the Buccaneer violated Division rules by failing to replace a torn gasket on the doors of the sandwich cooler. Rule 10D-13.026, Florida Administrative Code, provides as follows, in pertinent part:

    
    

    1. Equipment and faculties provided - Every food service establishment shall be provided with equipment

       . . . so . . . maintained and operated as to permit full compliance with the provisions of this chapter. The following equipment . . . shall be provided where applicable to the operations conducted.

       1. Conveniently located refrigeration facilities adequate to maintain all potentially hazardous foods at safe temperatures during all storage, preparation, display, and serving operations . . .

          * * *

    2. Design and fabrication.

       * * *

       (o) Non-food contact surfaces of equipment which are exposed to splash or food debris or which otherwise requires frequent cleaning, shall be designed and fabricated to be smooth, washable, free of unnecessary ledges, projections or crevices, and readily accessible for cleaning and shall be of such material and in such repair as to be easily maintained in a clean and sanitary condition.

       
       

21. A review of the evidence adduced at hearing demonstrates that the sandwich cooler maintained required temperatures after the partial tear in the gasket was repaired with a silicone rubber covering. There was no showing by

    the Division that the repair prevented the sandwich cooler from being maintained in a clean and sanitary condition. A subsequent inspection report revealed that the repair has continued to function adequately. Accordingly, the Buccaneer is not guilty of the first violation set forth in the Notice to Show Cause.

    
    

22. The second charge alleges that the Buccaneer violated Division rules by failing to repair or replace a leaking faucet on a three compartment sink. Rule 10D-13.027(4), Florida Administrative Code, which deals with sanitary facilities and controls, states:

    
    

    Plumbing . . . shall be . . . maintained in accordance with the provisions of Ch. 10D-9 of the Florida Administrative Code. It shall . . . prevent contamina- tion of the water supply, . . . it shall not constitute a source of contamination if food, equipment or utensils or create an unsanitary condition or nuisance.

    
    

23. At hearing, the Division proved that the leaky faucet created an unsanitary condition or nuisance. Testimony that the leak could cause contamination of the water supply was rejected by the Hearing Officer because the competency of the witness to testify as to how the particular plumbing problem could cause such an occurrence was not established. Without a reliable foundation and a reasonable basis for such testimony, it was mere conjecture.

    
    

24. The Division established that the sandwich shop was guilty of the second violation in the Notice to Show Cause. However, the Buccaneer presented evidence which showed that attempts had been made to replace the faucet prior to the September 8, 1989 call-back inspection. Ultimately, the plumber repaired the faucet to the satisfaction of the Buccaneer and subsequent inspectors of the food service establishment.

    
    

25. While the Buccaneer's efforts to have the repairs initiated prior to September 8, 1989, should be considered for mitigation purposes, the change in dishwashing procedures initiated by the Buccaneer should not be sanctioned in any manner. As a result, only the Buccaneer's repair efforts after the August 16, 1989 warning to the establishment and the ultimate repair will be considered in mitigation of the Buccaneer's guilt.

    
    

26. The third charge alleges that the Buccaneer failed to repair a hole in the wall in the back room of the shop. A review of the call-back inspector reports and the cross-examination of Ms. Terzagian reveal that this alleged violation was cited in error on the Notice to Show Cause. Therefore, the Buccaneer is not guilty of this violation.

    
    

27. The fourth charges alleges that the Buccaneer failed to provide approved local exhaust ventilation over all cooking units. From the evidence presented, the "cooking units" which are the subject of this alleged violation are electric griddles. The griddles are portable devices that can be plugged into standard electric outlets. These were used to fry eggs and hamburger patties and to heat sandwiches in the restaurant.

    
    

28. Rule 10D-13.026(1)(g), Florida Administrative Code, in relevant part requires:

    
    

    Approved local exhaust ventilation installed at or over all cooking units such as ranges, griddles, deep-fat frying units and other units of equipment which release

    appreciable quantities of steam, odors, grease or smoke.

    
    

29. In Department of Business Regulation, Division of Hotels and Restaurants v. Captain's Tavern Restaurant, Inc., 12 FALR 711 (1989), the Director of the Division concluded that Rule 10D-13.026(1)(g), Florida Administrative Code requires the Division to demonstrate that small, portable cooking units used in a particular restaurant emit a prohibited amount of grease or smoke before a violation of this rule can be established. During this case, the Division did not establish that the Buccaneer equipment released "appreciable quantities of steam, odors, grease or smoke". Testimony at hearing revealed that the griddles were used on an infrequent basis. Primarily, they were used when customers ordered hot sandwiches. The establishment is a sandwich shop that specializes in cold sandwiches, but it serve eggs, hamburgers, and heated sandwiches upon customers request. Based upon the Division's interpretation of the rule which was established after the alleged violation was cited by an Environmental Health Specialist from another agency, the Buccaneer is not guilty of the fourth alleged violation.

    
    

30. Rule 7C-1.004(1), Florida Administrative Code, deals with the installation, servicing and size of the fire extinguishers which are required in a food service establishment. There was no evidence presented regarding fire extinguishers, so the Buccaneer is not guilty of a violation of this particular rule as alleged in the fourth violation.

    
    

31. While it is true that the Division proved the Buccaneer has not complied with the Fort Myers Fire Department's requirements involving the final inspection of the automatic hood suppression system, there was no showing that this misconduct was an act which violates Chapter 509, Florida Statutes, or any rules promulgated by the Division. There is no jurisdiction to discipline the Buccaneer for violating such requirements in these proceedings.

Based upon the foregoing, it is RECOMMENDED:

1. That the Buccaneer be found guilty of having violated Rule 10D- 13.027(4), Florida Administrative Code, based upon the establishment's failure to repair or replace the leaking faucet on the three compartment sink by September 8, 1989.

   
   

2. That the Buccaneer be found not guilty of all of the other alleged violations set forth in the Notice to Show Cause.

   
   

3. That the Buccaneer be fined $150.00 for the violation of Rule 10D- 13.027(4), Florida Administrative Code. This recommendation takes into account that a faucet was on order prior to the September 8, 1989 inspection and that the faucet has since been repaired.

DONE and ENTERED this 9th day of July, 1990, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990.

APPENDIX

Petitioner's Proposed Findings of Fact are addressed as follows:

1. Accepted. See HO #1

2. Accepted. See HO #2

3. Accepted. See HO #3

4. Accepted. See HO #3

5. Rejected. Improper legal conclusion.

6. Accepted.

7. Accepted.

8. Accepted.

9. Rejected. Irrelevant

10. Rejected. Speculative

11. Rejected. Irrelevant

12. Rejected. Improper legal conclusion.

13. Rejected. Irrelevant to these proceedings

14. Rejected. Irrelevant

15. Rejected. Irrelevant

16. Rejected. Irrelevant

17. Rejected. Irrelevant

18. Rejected bases for reinspection. Irrelevant. The rest of paragraph 18 is accepted.

19. Rejected as to hole in wall. Contrary to fact. The rest of paragraph 19 is accepted.

20. Rejected. Improper legal conclusion.

21. Rejected. Irrelevant

22. Rejected. Irrelevant

23. Rejected. Contrary to fact. See HO #7 and #8.

24. Rejected, except for the accumulation of bacteria. The rest is speculative. See HO #11.

25. Rejected. Insufficient basis for opinion. Speculative

26. Rejected. Irrelevant to these proceedings.

27. Rejected. Improper legal conclusion.

28. Rejected. Irrelevant.

29. Rejected. Improper conclusion. Irrelevant

30. Rejected. See conclusions of law.

31. Accepted. See HO #16.

32. Rejected. Irrelevant

33. Rejected. Irrelevant

34. Accepted. See HO #7-#8.

35. Accept first sentence. See HO #9. The rest is rejected as irrelevant.

36. Rejected. Insufficient proof.

37. Accepted. See HO #9.

38. Accepted. See HO #12-#13.

39. Accepted

40. Rejected. Irrelevant

41. Accepted.

42. Accepted. See HO #15.

43. Accepted.

44. Accepted.

45. Rejected. Irrelevant. Outside the scope of this hearing.

Respondent's Proposed Findings of Fact are addressed as follows:

1. Accepted. See HO #5, #7, and #8.

2. Rejected. See HO #9 - #11.

3. Accepted. See HO #12 - #13.

4. Rejected. Irrelevant.

Copies furnished to:

Emily Moore, Esquire Assistant General Counsel

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

L.C. Fiedler, Qualified Representative Buccaneer Sandwich Shoppe

2247 Fowler Street

Fort Myers, Florida 33901

Fred Fluty, Director

Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Joseph A. Sole, Esquire Stephen R. MacNamara

General Counsel Secretary

Department of Business Regulation Dept. of Business Regulation 725 South Bronough Street 725 S. Bronough Street Tallahassee, Florida 32399-1000 Tallahassee, FL 32399-1000

Docket for Case No: 89-006961

Orders for Case No: 89-006961