STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-2317

)

JIMMY CARRIGAN, d/b/a )

VILLAGE DINER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on September 11, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Robin Suarez, Esquire

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

For Respondent: Mr. Jimmy Carrigan, pro se

26712 Southwest 144th Avenue Naranja, Florida 33032

STATEMENT OF THE ISSUES

The ultimate issue for determination is whether the Respondent committed the violations alleged in the Notice to Show Cause, issued on February 6, 1990, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner entered a Notice to Show Cause against Respondent on February 6, 1990. On March 9, 1990, Respondent requested a formal hearing before the Division of Administrative Hearings (the "Division"). The matter was referred to the Division for appointment of a Hearing Officer by letter dated April 16, 1990. A formal hearing was scheduled for July 25, 1990, pursuant to a Notice of Hearing issued on May 15, 1990. Respondent filed a motion for continuance on July 18, 1990, and the formal hearing was rescheduled for September 11, 1990, pursuant to the Order Continuing and Rescheduling Formal Hearing entered on July 23, 1990.

At the formal hearing, Petitioner presented testimony from two witnesses, and offered 11 exhibits for admission in evidence. All but one of Petitioner's exhibits were admitted in evidence without objection. Respondent's objection as to the relevancy of Petitioner's Exhibit 9 was sustained. 1/ Respondent testified in his own behalf, presented the testimony of one witness, and offered no exhibits for admission in evidence. A transcript of the record of the formal hearing was not ordered.

Proposed findings of facts and conclusions of law were due on October 1, 1990. The form of the proposed findings of fact and conclusions of law were required to conform to the order of the undersigned entered on the record at the conclusion of the formal hearing, including numbered paragraphs. Petitioner's proposed findings of facts were properly and timely filed on September 27, 1990, and are addressed in the Appendix to this Recommended Order. Respondent filed a document on October 1, 1990, which contained neither proposed findings of fact nor numbered paragraphs. Respondent's document is not addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was doing business at 26712 Southwest 144th Avenue, Naranja, Dade County, Florida, 33032-7404 as Village Diner. The Village Diner was operated under restaurant license number 23- 16870R.

   
   

2. Mr. Steven Hoffman, Environmental Health Specialist Supervisor, Dade County Public Health Department ("DCPHD"), is an expert in food hygiene, safety, and fire safety. Mr. Hoffman's qualifications include certification by the Federal Drug Administration as a food inspector and certification by the State of Florida in fire safety and as a food hygiene coordinator. Mr. Hoffman has been employed by the DCPHD in various capacities for approximately 13 years.

   
   

3. Mr. Hoffman's employment duties on January 12, 1990, included performing inspections of food service establishments in response to complaints received by the DCPHD. In response to a complaint, Mr. Hoffman conducted an inspection of the Village Diner on January 12, 1990. Mr. Hoffman found conditions comprising 18 alleged rule violations, of which eight are classified by Petitioner as major violations.

   
   

4. Potato salad, cole slaw, and corned beef was improperly refrigerated at

   60 degrees. 2/ Such food must be refrigerated at 45 degrees in order to avoid growth of dangerous bacteria that can lead to food poisoning.

   
   

5. Food was stored on the floor of the walk-in refrigeration box and was not covered. Uncovered food left on the floor is susceptible to contamination by other substances dripping into the uncovered food and by other bacteria.

   
   

6. Food utensils were stored in dirty water. Food prepared or served with utensils stored in dirty water may be cross-contaminated with bacteria from food or filth in the dirty water.

7. Bulk containers used to store flour were dirty and needed to be replaced. Food contact surfaces were not clean, including stove grills, fryers, and the interior of refrigerators. The reach-in box contained dried, hardened splashes of meat. Wilted lettuce and other food debris had accumulated on the bottom of the reach-in box over a substantial period. Non-food contact surfaces were not clean, including walls and storage shelves. Walls were covered with accumulated grease and smoke. These conditions increased the probability of cross-contamination from bacteria and attracted vermin.

   
   

8. The premises were infested with roaches and mice. Live roaches and droppings from mice were observed in and around the premises. Mouse urine was observed with a black light. Paper in open cans had been nibbled by mice. Roaches cause cross-contamination of food by picking up bacteria on their legs and carrying it to other foods. Mice contaminate food by urinating on it and by transporting fleas and ticks from one food to another.

   
   

9. The floor under the cooking equipment was dirty. Walls were encrusted with old grease and dirt. Such conditions attract vermin.

   
   

10. Toxic items were not stored properly. Boric acid powder was spread on top of pipes directly above a food service steam table. Respondent used the boric acid powder to control mice and other vermin. Boric acid is poisonous when ingested and is moderately toxic by skin and subcutaneous contact.

    
    

11. Pressurized CO-2 tanks were placed beside a stove in the kitchen. An extension cord was improperly used in the kitchen. Lights in the kitchen were not shielded to prevent glass from falling into food in the event that a light bulb either was inadvertently broken or burst during operation.

    
    

12. A pit in the rear of the premises contained white, congealed grease and emitted a foul odor. A trench had been designed to direct grease away from the premises and into the pit. The grease pit attracted vermin and contaminated ground water approximately eight feet below the surface.

    
    

13. A faucet outside the premises was not equipped with a "backflow preventer". The absence of a "backflow preventer" permits contamination of the city water system from the premises in the event of negative pressure in the city water system.

    
    

14. Not all of the garbage cans in the rear of the premises had plastic liners. Trash and debris was collected outside the back door of the premises. Trash and unused equipment was stored in the rear of the premises and in the storage room. The collection of litter and equipment attracts vermin by providing food sources and hiding places.

    
    

15. Mr. Hoffman issued a Food Inspection Report at the conclusion of his inspection on January 12, 1990. Respondent was given until January 17, 1990, to correct the major violations noted in Mr. Hoffman's Food Inspection Report, and was advised that a Notice to Show Cause would be issued.

    
    

16. The premises were re-inspected by Mr. Hoffman on January 18, 1990, and a Call Back/Re-Inspection Report was issued. Respondent corrected all of the alleged rule violations found on January 12, 1990, except two. Respondent was instructed to provide proper light shields over food surfaces and to clean sides of grills, fryers, and the tops of refrigeration units. A Notice to Show Cause was issued on February 6, 1990, citing the 18 rule violations found to have existed during the inspection conducted by Mr. Hoffman on January 12, 1990.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. The notice of hearing was proper and sufficient.

    
    

18. The burden of proof is on Petitioner to establish the elements of each allegation in the Notice to Show Cause by substantial, competent evidence. Substantial, competent evidence is "such evidence as a reasonable man would accept as adequate to support a conclusion". Pauline v. Lee, 147 So. 2d 359 (Fla. 2nd DCA 1962). Since Respondent's public food service establishment license is not a professional license, the clear and convincing evidence standard of Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) is not applicable.

    
    

19. Respondent violated Florida Administrative Code Rule 10D-13.024(2) by failing to keep potentially hazardous food at a refrigerated temperature of 45 degrees or less. 3/ Respondent violated Rule 10D-13.024(1) by storing uncovered food on the floor of the walk-in refrigeration unit in a manner that exposed the stored food to rodents, other vermin, overhead leakage, and other sources of contamination.

    
    

20. Respondent violated Rule 10D-13.024(10) by storing in dirty, standing water utensils used to dispense food. Multi- use equipment in the form of dirty bulk containers which were used to store flour and needed to be replaced contributed to the contamination of food in violation of Rule 10D-13.026(2)(a). Respondent violated Rule 10D-13.026(4)(a) by failing to keep food contact surfaces and non-food surfaces clean and sanitized.

    
    

21. The grease pit in the back of the premises violated the requirement in Rule 10D-13.027(3) to dispose of sewage in a public sewerage system. Respondent's failure to equip an exterior faucet with a device to prevent backflow violated Rule 10D-13.027(4)(a). Respondent violated the requirements in Rule 10D-13.027(7) for proper disposal of garbage and rubbish by: failing to keep plastic liners in garbage cans; allowing trash and debris to collect in the back of the premises; and allowing litter and old equipment to collect inside the storage area of the premises. The same conditions that violated Rule 10D- 13.027(7) also violated the requirement in Rule 10D-13.028(6) for the premises to be kept neat, clean, and free of litter and rubbish.

    
    

22. Infestation of the premises by mice and roaches violated the requirement in Rule 10D-13.027(8) for proper control of vermin. Dirty floors under the cooking equipment and encrustation of smoke and grease on the kitchen walls violated provisions in Rules 10D-13.028(1) and (2) that require Respondent to maintain clean floors and walls in the kitchen area.

    
    

23. The use of boric acid on pipes above the steam table in the kitchen violated the prohibition in Rule 10D- 13.024(16) against using toxic materials in a manner and under such conditions that will contaminate food or constitute a hazard to man. The use of an extension cord violated the prohibition in Rule

    7C-1.004(4) against the use of extension cords in food service establishments.

24. The presence of pressurized CO-2 tanks beside the kitchen stove did not violate the prohibition in Rule 7C-1.004(3) against fire hazards. The prohibition in Rule 7C-1.004(3) against fire hazards is limited to fire hazards in " . . . [h]alls, closets and stairways . . . ." Petitioner failed to establish that the pressurized CO-2 tanks beside Respondent's stove were in either a hall, closet, or stairway within the meaning of Rule 7C-1.004(3).

    
    

25. Respondent did not violate Rule 10D-13.028(3) by failing to provide shielding for artificial lighting within food preparation areas. The requirement for such shielding is limited to " . . . new or extensively remodeled establishments . . . ." No evidence was presented that The Village Diner is a new or extensively remodeled establishment within the meaning of Rule 10D-13.028(3).

    
    

26. The alleged violation of Rule 10D-13.028(3) by Respondent was one of the two uncorrected violations noted on the Call Back/Re-Inspection Report issued on January 18, 1990. The other uncorrected violation involved dirty grills, fryers, and refrigerator tops within the meaning of Rule 10D- 13.026(4)(a).

    
    

27. Section 509.261(1), Florida Statutes, 4/ authorizes the suspension or revocation of the license of any public food service establishment that ". . . has operated or is operating in violation of any of the provisions of this chapter or the [applicable] rules . . . ." Section 509.261(2) authorizes the imposition of fines in lieu of suspension or revocation a license. Fines imposed in lieu of license suspension or revocation are limited to $500 for each offense.

    
    

28. Respondent "has operated" the Village Diner in a manner that violated

    16 provisions in the applicable administrative rules. Respondent could be subject to fines in the aggregate amount of $8,000. Petitioner, however, has requested the imposition of a fine in the amount of $1,150. In the event that Respondent is unable to pay such a fine, Petitioner has requested that Respondent's license be suspended for 20 days.

    
    

29. The primary and alternative penalties requested by Petitioner are reasonable under the facts and circumstances in this proceeding. The fact that Respondent corrected all but one of his 16 violations does not preclude the imposition of fines for all 16 violations. When read in pari materia, Sections 509.261(1) and (2), Florida Statutes, authorize the imposition of fines in lieu of license suspension or revocation if it is determined that Respondent "has operated" or "is operating" in violation of applicable administrative rules.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a fine be imposed against Respondent in an amount not to exceed

$1,150. In the event that Respondent is unable to pay the fine imposed, it is further recommended that Respondent's license be suspended for a period not to exceed 20 days.

RECOMMENDED in Tallahassee, Leon County, Florida, this 21st day of March, 1991.

Daniel Manry 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 21st day of March, 1991.

ENDNOTES

1/ Petitioner's Exhibit 9 was a copy of an Inspection Report from July 13, 1989.

2/ All temperatures are stated in terms of fahrenheit unless specifically stated otherwise.

3/ All references to rules are rules published in the Florida Administrative Code unless provided otherwise.

4/ All statutory references are to Florida Statutes (1989) unless provided otherwise.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2317

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 1

2. Accepted in Findings 2-3

3. Accepted in Findings 2-3

4. Accepted in Finding 3

5. Accepted in Findings 4-14

6. Accepted in Finding 15

Robin Suarez

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

Mr. Jimmy Carrigan

26712 Southwest 144th Avenue Naranja, Florida 33032

Janet E. Ferris, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Barbara Palmer, Director Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

John B. Fretwell, Esquire Deputy General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-002317

Orders for Case No: 90-002317