STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS )
REGULATION, DIVISION OF )
HOTELS AND RESTAURANTS, )
)
Petitioner, )
)
vs. ) CASE NO. 91-7103
) ARTHUR PELOSO, d/b/a MR. P'S ) EMPORIUM, )
)
Respondent. )
) DEPARTMENT OF BUSINESS )
REGULATION, DIVISION OF )
HOTELS AND RESTAURANTS, )
)
Petitioner, )
)
vs. ) CASE NO. 91-7567
)
ARTHUR PELOSO, d/b/a )
SPAGHETTI HOUSE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled cases was held in Kissimmee and Orlando, Florida, on June 4 and 5, 1992, respectively, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Tracy P. Moy
Assistant General Counsel
Department of Business Regulation 725 South Bronough St.
Tallahassee, FL 32399-1007
For Respondent: Arthur Peloso, pro se
5521 Courtyard Dr. Margate, FL
STATEMENT OF THE ISSUE
The issue in these cases is whether Respondent is guilty of violating provisions governing the operation of restaurants and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
DOAH Case No. 91-7103 was commenced when Petitioner filed two Notices to Show Cause. The first Notice to Show Cause, which was DBR Case No. 04-92-84, alleges that Respondent, d/b/a Mr. P's Emporium, committed 14 violations of various statutes and rules on September 9 and 10, 1991, by: 1) failing to keep the rear door closed or repair the screen door and keep it closed, in violation of Rule 10D-13.027(8), Florida Administrative Code; 2) failing to store toxic items separately from food, equipment, and utensils, in violation of Rule 10D- 13.024(17); 3) refusing entry for scheduled reinspection, in violation of Section 509.281(2) and 509.032(2)(a)3 and (b), Florida Statutes; 4) failing to label bulk containers, in violation of Rule 10D-13.024(10); 5) storing containers in beverage ice, in violation of Rule 10D- 13.024(13); 6) failing to clean a slicer, a reach-in cooler, dry storage shelves under oil, a mixer, the outside of an ice machine, a floor fan, and cooler gaskets, in violation of Rule 10D-13.026(4)(a); 7) failing to repair, refinish, or replace rusted shelves in the cook's reach-in cooler, in violation of Rule 10D-13.026(2)(o); 8) failing to provide soap at the hand sink, in violation of Rule 10D-13.027(6); 9) failing to bag all garbage before placing it in the dumpster; failing to clean the dumpster; and failing to keep the dumpster lids closed, in violation of Rule 10D-13.027(7)(a); 10) failing to clean the area around the dumpster, in violation of Rule 10D-13.027(7)(b); 11) failing to clean the floors; failing to make the floor surfaces smooth and easily cleanable; and failing to provide molding in all areas of the kitchen, in violation of Rule 10D- 13.028(1); 12) failing to repair holes in walls and failing to ensure that the walls and ceiling in rear prep room met, in violation of Rule 10D-13.028(2); 13) failing to provide shields on all lights in the kitchen, prep areas, coolers, and freezers, in violation of Rule 10D-13.028(3); and 14) failing to post a current DBR license, in violation of Section 509.241(3).
The second Notice to Show Cause, which was DBR Case No. 04-92-85, alleges that Respondent, d/b/a Mr. P's Emporium, committed three violations of various statutes and rules on August 30, 1991, by: 1) displaying a misleading sign appearing to offer a lunch buffet at $2.99 without disclosing the condition that the customer also purchase a beverage separately, in violation of Rule 7C-4.002;
failing to display conspicuously a DBR license--"i.e., the license could not be located at the time of the inspection," in violation of Section 509.241(3); and 3) failing to allow agent access to the establishment and hindering an agent in the proper discharge of his duties--"i.e., at approximately 1:15 p.m. August 30, 1991, Mr. Peloso . . . forced John Lefort, an agent of the division to leave the establishment," in violation of Section 509.032(2)(b) and
509.281(2).
DOAH Case No. 91-7567 was commenced when Petitioner filed another Notice to Show Cause, which was DBR Case No. 04- 91-199. The Notice alleges that Respondent, d/b/a Spaghetti House, committed two violations of statutes and rules on January 2, 1991, by: 1) the presence of a dog in the restaurant kitchen, in violation of Rule 10D-13.028(8) and 2) the denial of access to a food-service inspector, in violation of Section 509.032(2)(a) and (b).
Respondent demanded a hearing on all alleged violations.
At the beginning of the hearing, Petitioner filed a Motion to Amend Notice to Show Cause. In the motion, Petitioner sought to amend seven legal citations contained in two of the Notices. Over the objection of Respondent, the undersigned granted Petitioner leave to amend the Notices.
At the hearing, Petitioner called 10 witnesses and offered into evidence 20 exhibits. Respondent called three witnesses and offered into evidence five exhibits. All exhibits were admitted.
No transcript was ordered. Petitioner filed a proposed recommended order.
Treatment of the proposed findings is detailed in the appendix.
FINDINGS OF FACT
Respondent is the owner and operator of Mr. P's Emporium and the Spaghetti House, which are both names of the
same restaurant located at 1709 West Vine St. (State Route 192), Kissimmee, Florida. Petitioner issued Respondent license number 59-00352-R to operate the restaurant.
Respondent first began operating a restaurant at the West Vine St. location nearly 20 years ago. In 1976, Respondent encountered a problem with Frank Wolf, who was then a food-service inspector employed by the Osceola County Health Department. Mr. Wolf is now the Environmental Health Director of the Osceola County Health Department.
Responsibility for restaurant food-service inspections appears to have been assumed by the Health Department at one time. Presently, food-service inspections are conducted by Petitioner or, pursuant to contract with Petitioner, the Office of Restaurant Programs (ORP), which is part of the Department of Health and Rehabilitative Services.
Mr. Wolf and Respondent had a misunderstanding concerning Respondent's application for a beer and wine license when he was opening his new restaurant. Although the license was issued, Respondent's relations with the Health Department worsened when Mr. Wolf later took photographs during a routine inspection.
In attempting to resolve Respondent's objections to the photographing of his restaurant, the Director of the Health Department worked out an arrangement with Respondent that no inspector would conduct an inspection of Respondent's restaurant without first calling him and making an appointment. If Respondent then failed to be present at the restaurant at the appointed time, the inspector would conduct the inspection without him. However, Respondent invariably made sure he was present so he could accompany the inspector.
This special arrangement was not extended to any other restaurants in the area; such restaurants remained subject to unannounced food-service inspections. In 1981, Respondent moved to South Florida, leaving the Kissimmee restaurant in charge of his son, Art, Jr.
The following year, Art. Jr. expressed an interest in leaving the restaurant business. When Respondent returned to run the Kissimmee restaurant, he learned that Art, Jr. had not required the Health Department inspectors to contact him in advance of inspections. Respondent immediately proceeded to restore this arrangement, not hesitating, as always, to contact supervisors of
supervisors, both locally and in Tallahassee, to ensure that all problems were straightened out to his satisfaction. It appears that the old practice of prior notice before inspection was reinstated.
The alleged violations set forth in DBR Case No. 04-91-199 arose as a result of an inspection on January 2, 1991. On that day, an inspector employed by the Osceola County Health Department, Dolores Miller, visited the restaurant to conduct an inspection. She found the front door locked and approached the side door. She had not made any prior arrangements with Respondent.
Respondent was not in the restaurant at the time of Ms. Miller's visit. There is a dispute as to what transpired. Ms. Miller testified that a big dog attacked her after she announced, at the open side screen door, "Hello, Health Department." This testimony is discredited.
Respondent lived upstairs over the restaurant with this dog, which was permitted to roam the area outside the restaurant but not inside the restaurant. Respondent testified that the dog is friendly and does not serve as a watchdog. Respondent's dog, which sometimes roamed freely outside of the restaurant, would not likely be unfriendly. Otherwise, the dog would frighten away customers. No evidence suggests that the dog could identify Ms. Miller as a food-service inspector from the Health Department, and, sharing Respondent's antipathies, selectively attacked Ms. Miller.
Ms. Miller's testimony is discredited for a second reason. She testified that she left a copy of the Inspection Report, Petitioner Exhibit 3, at the restaurant and that the copy stated at the bottom, in her handwriting: "Management would not allow me to do an insp[ection.]"
Respondent testified that Ms. Miller left a copy of Petitioner Exhibit 3, but it had no such language on it. Respondent produced a copy of his copy, which contained no such language. Respondent's exhibit does not appear to be altered. To the contrary, it is found that Ms. Miller added this notation to her office copy and did not leave at the restaurant a copy of the Inspection Report with the notation. Therefore, the remaining facts concerning the January 2, 1991, incident are primarily based on Respondent's version of the events.
When Ms. Miller appeared at the restaurant, Respondent's dog was in the vicinity. In the course of conversing with the restaurant employees, Ms. Miller inadvertently allowed the dog to enter the kitchen, where the dog was not permitted and, on the rare occasions when the dog found its way into the kitchen, was never allowed to stay.
Ms. Miller did not make an effective request of Respondent to make an inspection. She did ask Respondent's kitchen help for access to the premises for the purpose of conducting an inspection. Acting in accordance with Respondent's usual instructions, the employees denied Ms. Miller permission. Had the matter ended at this point, Respondent, through his agents, would have denied Ms. Miller access for the purpose of conducting an food-service inspection.
However, Ms. Miller returned to the restaurant to alter the date on the form that she had left with the workers. While she was correcting the date on both forms, Respondent returned to the restaurant. Having accidentally allowed Respondent's dog into the kitchen once again, Ms. Miller incurred Respondent's displeasure, as he began to yell at her. Although it is
understandable under the circumstances, Ms. Miller nonetheless, by her own admission, neglected to ask Respondent to allow her to inspect the restaurant.
Although Respondent had authorized his employees to deny an inspector access to the restaurant in his absence, they had no such authority while he was on the premises. The employees' refusal of access, given Ms. Miller's return to the premises almost immediately after her departure, constituted only a deferral of the decision given the fact that Respondent had returned while Ms. Miller was still at the restaurant. Under these circumstances, the deferral of the decision did not ripen into a denial unless and until Ms. Miller directed to Respondent her demand of access.
Petitioner has thus failed to prove the allegations of the Notice to Show Cause arising out of the January 2, 1991, "inspection." 1/
The alleged violations set forth in DBR Case No. 04-92-85 arose as a result of an encounter between Respondent and food-service inspectors on August 30, 1991.
On August 22, 1991, the local office of the Division of Hotels and Restaurants received a complaint from a person who had patronized Respondent's restaurant. She complained that a sign outside Respondent's restaurant was misleading. According to the complaint, the sign advertised a lunch buffet for
$2.99, but the price for the lunch buffet, if no drink were ordered, was actually 49 cents more.
The rectangular sign itself consists of three parts. The uppermost strip states horizontally: "$5.99 DINNER $5.99." The lowermost strip states horizontally: "$2.99 LUNCH $2.99." The larger middle portion states in small angular script: "Italian." Beside the word, "Italian" runs horizontally the word, "BUFFET" in letters larger than any others on the sign. The four prices were in red, the words "DINNER" and "LUNCH" were in green, the word "Italian" was in green, and the word "BUFFET" was in red.
Respondent only offered three items for lunch. The lunch special was salad, spaghetti, and meatballs. The price for the lunch special was $2.99, regardless whether the customer ordered a drink other than water, which was free. The Italian buffet was $2.99, but the menu clearly indicated that the price for the buffet was $3.49 if no beverage (other than water) was ordered. The third item was pizza, which was available a la carte.
Respondent's sign was not false or misleading. The sign advertised a lunch available for $2.99 and a lunch--a nourishing and substantial one--was available at that price. Any expectation that the customer could obtain the lunch buffet for $2.99 was not based on a fair reading of the sign, which advertises the standard lunch entry. 2/ Significantly, there was no evidence of any other complaints concerning the accuracy of the sign, which, perhaps not surprisingly, remained unchanged until February, 1992.
Unfortunately, Respondent's encounter with Mr. Laforte was no happier than his encounter eight months earlier with Ms. Miller. Respondent is an intelligent, sensitive, honest, and hard-working older gentleman operating a restaurant at which business has been better in previous years. Respondent is also impulsive, stubborn, cranky, and quick to demand special treatment. There is no doubt that the patience of most food- service inspectors would be quickly exhausted when confronted by Respondent's in-your-face style of interpersonal relations, constant carping about all but the most obvious of deficiencies noted
in routine inspections, repeated insistence upon nonexistent constitutional rights to protect his property (i.e., the restaurant) from the trespasses (i.e., inspections) of government employees, frequent charges of selective enforcement, and willingness to go over the head of the inspector at what he perceived as the slightest provocation (e.g., an inspection).
Omitting the subordinate details of escalating unpleasantries between Mr. Laforte and Respondent, the key event is that on August 30, 1991, Mr. Laforte and his immediate supervisor, Kendall Burkette, visited the restaurant. As a courtesy, they requested the food-service inspector from ORP to accompany them. Her name is Jo Ellen Beekman-Dean. Responsible for routine food-service inspections of Respondent's restaurant, Ms. Beekman-Dean had, and continues to have, a very good relationship with Respondent. Among other things, Respondent had allowed her to make a food-service inspection of his restaurant on July 8, 1991, although she had not made an appointment first.
As the trio entered the restaurant at about 1:30 p.m., they asked a waitperson or cashier who was in charge. They were introduced to John Bauer, who was a cook. They asked to see the restaurant license, which was not posted at the cashier's station. Mr. Bauer led them to the storeroom, but they could not find the restaurant license that DBR had issued.
In fact, Respondent had closed his restaurant due to declining business earlier in the year and had not paid to renew his license at the normal time in April. However, he had paid the normal fee and late charges on August 6, 1991, about three weeks prior to the August 30 inspection.
Moreover, Mr. Laforte had handled the paperwork on Respondent's late renewal. Mr. Laforte had issued Respondent a receipt, which serves as a temporary license. However, Respondent did not understand this fact and had not posted the receipt/temporary license pending the arrival of the permanent license, which had not yet been sent from Tallahassee.
The alleged violations set forth in DBR Case No. 04-92-84 arose as a result of the August 30 inspection conducted by Ms. Beekman-Dean, as well as subsequent activities occurring on September 9 and 10, 1991.
Ms. Beekman-Dean decided to conduct a food-service inspection on August 30 because she was already at the premises. At the time, she was required to conduct four such inspections annually; if possible, quarterly. She had conducted an inspection on July 8, reinspected certain deficiencies on July 22, and reinspected on August 12 those deficiencies not remedied by July 22. The deficiencies were cleared up by then and Ms. Beekman-Dean determined that the restaurant was in compliance.
As Ms. Beekman-Dean conducted her inspection, she encountered Art, Jr., who had evidently not been in the restaurant when Ms. Beekman-Dean, Mr. Laforte, and Mr. Burkette had first arrived. Saying that he was going to call his father about the inspection, Art, Jr. returned to tell her that she could conduct her inspection.
During the inspection, Ms. Beekman-Dean discovered that the walk-in cooler was not working and the temperature had reached 60-67 degrees. She contacted her supervisor to obtain approval to enter a Stop Sale Order. Getting the supervisor's approval, Ms. Beekman-Dean then informed Art, Jr. of the malfunction. He had not known of the problem and promptly fixed it by flipping a reset switch.
As Ms. Beekman-Dean and Mr. Laforte were sitting at a table while Ms. Beekman-Dean finished her paperwork (Mr. Burkette having already left), Respondent returned to the restaurant. Seeing Mr. Laforte, Respondent, still irritated over his feeling that Mr. Laforte had not dealt with him fairly over the signage question, pointed at him and said, "Get out." As Mr. Laforte left, Ms. Beekman-Dean prepared also to depart, but Respondent assured her that she could remain.
Finishing her Inspection Report, Ms. Beekman-Dean mentioned the problem with the walk-in cooler. After confirming with his son the existence of the problem, Respondent willingly agreed to destroy the food. For this reason, the most serious deficiency uncovered by Ms. Beekman-Dean's August 30 inspection is not alleged as a deficiency in the Notice to Show Cause in DBR Case No. 04- 92-84 or, thus, DOAH Case No. 91-7103.
The only other major deficiency noted on the August 30 Inspection Report, which is Petitioner Exhibit 7, is the failure of the operator to keep the rear (or side) door shut or repair the screen door and then leave it shut. An additional 13 items were noted as minor deficiencies. The deficiencies were: failing to label bulk containers; storing lemons in a sealed, hanging container in the ice machine; storing toxic items improperly; failing to clean the slicer, reach-in cooler, dry-storage shelves, mixer, outside of the ice machine, floor fan, and cooler gaskets; failing to refinish or replace rusted shelves in the reach-in freezer; failing to provide soap at a hand sink; failing to bag all garbage before placing in the dumpster, failing to clean the dumpster, and failing to keep the dumpster lid closed; failing to clean area around the dumpster; failing to clean floors, failing to ensure all surfaces are smooth and easily cleanable, and failing to install molding between the floor and wall to facilitate cleanliness; failing to repair holes in the walls and ensure that that the walls and ceiling in food prep room meet; failing to provide shields on all lights in kitchen, prep areas, coolers, and freezers; and failing to post a DBR restaurant license.
As is the typical practice, Ms. Beekman-Dean gave Respondent a period of time to correct the deficiencies. In this case, she wrote on the form that a reinspection would take place on September 9, 1991. Ms. Beekman-Dean handed Respondent a copy of the Inspection Report, which prominently displayed the reinspection date.
Respondent promptly contacted Petitioner's offices in Tallahassee to complain about selective enforcement and bias. When Ms. Beekman-Dean returned around lunchtime to reinspect the premises on September 9, 1991, Respondent said he was busy preparing food, refused her access to the restaurant, and invited her to return later in the day. She declined and warned him that she would have to report this. He acknowledged her warning and said that she would have to do what duty required.
Some follow-up activities took place, first in connection with an informal conference and later in connection with prehearing preparation in connection with the above-styled cases. The material allegations end as of September 9, when Respondent refused Ms. Beekman-Dean to conduct the reinspection as previously scheduled. It is sufficient to note that, based on inspections that Respondent permitted on October 2, 1991, and March 6, 1992, he had not repaired the screen door by the September 9 reinspection date and a number of the minor deficiencies remained uncorrected as of that time as well.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Petitioner argues that a food service license is an occupational license, not a professional license, so the preponderance standard applies. This argument invites reversible error. See, e.g., Pic N' Save Central Florida, Inc.
v. Department of Business Regulation, So. 2d , 17 FLW D1397, D1380 (Fla. 1st DCA May 28, 1992) (not yet final). In Pic N' Save, the court stated: "It is now settled in Florida that a business license, whether held by an individual or a corporate entity, is subject to suspension or revocation only upon proof of clear and convincing evidence of the alleged violations." Id.
Rule 10D-13.028(8) prohibits an operator from "allow[ing] live birds or animals . . . in a food service establishment . . . or in any other area or facility used to conduct good service operations "
However, Petitioner failed to prove by the requisite standard that Respondent allowed a live dog in the restaurant at anytime during the January 2, 1991, visit by Ms. Miller.
Section 509.032(2)(a) and (b) provides:
The division has responsibility and jurisdiction for all inspections required by this chapter; however, the division may enter into contracts with other entities for purposes of performing required inspections. The division has responsibility for quality assurance and shall have oversight of inspections performed under contract. Each licensed establishment shall be inspected in accordance with the following schedule:
* * *
Each public food service establishment shall be inspected at least four times annually.
(b) For purposes of performing required inspections and the enforcement of this chapter, the division, or its agent, has the right of entry and access to public
food service establishments at any reasonable time.
The above-cited provisions of Section 509.032 clearly authorize Petitioner's employees or employees of ORP, pursuant to its contract with Petitioner, to inspect Respondent's restaurant at any reasonable time. The purpose of the inspection is obviously to protect the public health, safety, and welfare. Respondent's argument that he is entitled to advance notice of an inspection undermines the very purpose of the inspection provisions. Armed with advance notice, a licensee could temporarily eliminate noncompliant conditions that an unannounced inspection could uncover. The statute requires that the
inspection take place at a reasonable time. The statute says nothing about advance notice of an inspection, and to read such a requirement into the statute would frustrate the very purpose of the inspection.
However, for the reasons set forth above, Petitioner has failed to prove by the requisite standard that Respondent failed to allow Ms. Miller access to the restaurant on January 2, 1991, in order to conduct a food-service inspection.
Rule 7C-4.002 prohibits any advertising of any "false or misleading statements relating to food or beverages offered to the public on [the] premises [of a public food service establishment]." The rule applies to "outside and inside advertising."
Petitioner has failed to prove by the requisite standard that the outdoor sign present on and after August 30, 1991, was false or misleading. A substantial and nourishing lunch was available at Respondent's restaurant for the advertised price, even if the customer elected not to order a beverage. The lunch was not a device to protect Respondent from charges of misleading advertising. To the contrary, the lunch was one of three lunch items offered and consisted of a favored Italian meal: i.e., spaghetti and meatballs.
Section 509.241(3) provides that "[a]ny license issued by the division shall be conspicuously displayed in the office or lobby of the licensed establishment."
Petitioner proved by the requisite standard that, on August 30, 1991, Respondent failed to display conspicuously the temporary license that he had been issued less than a month earlier by one of the inspectors on site on August
The evidence suggests that this is a technical violation. Not only did Petitioner have a license, but his failure to display it, although not excusable, was due to his misunderstanding that the receipt for payment also constituted a temporary license, which must be displayed until the permanent license is received.
The provisions of Section 509.032(2)(b) concerning inspections have been cited above. Section 509.281(2) adds:
Any operator who obstructs or hinders any agent of the division in the proper discharge of his duties . . . is guilty of a misdemeanor of the second degree .
. .. Each day that such establishment is operated in violation of law or rule is a separate offense.
Petitioner has failed to prove by the requisite standard that, on August 30, 1991, Respondent violated the statutes requiring that he grant access to food-service inspectors. Mr. Laforte and Ms. Beekman-Dean both had sufficient access to the premises to complete their respective inspections. When Respondent ejected Mr. Laforte from the restaurant, Mr. Laforte had already completed his task and was simply waiting for Ms. Beekman-Dean to complete hers. Although rude, the ejection of Mr. Laforte did not, under these circumstances, amount to a denial of access to the restaurant for the purpose of conducting an inspection.
Rule 10D-13.027(8) provides:
Effective control measures shall be taken to protect against the entrance into the food establishment . . . of rodents, flies,
roaches and other vermin. . . . All openings to the outside air, including windows, doors, skylights, transoms, 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 be tight fitting and free of breaks.
Petitioner proved by the requisite standard that Respondent violated Rule 10D-13.027(8) during the August 30 inspection. Among other things, the screen door was in disrepair.
Rule 10D-13.024(17) prohibits the use of "[p]oisonous or toxic materials . . . in a way that contaminates food, equipment, or utensils, nor in any way that constitutes a hazard to employees or other persons, nor in any way other than in full compliance with the manufacturer's labeling."
Petitioner failed to prove by the requisite standard a violation of the requirement that poisonous or toxic materials were used in a way that contaminates food, equipment, or utensils, nor in a way that constitutes a hazard to employees or other persons. Petitioner offered little evidence as to the nature of such toxic substances or specifically how they posed a hazard to other persons.
The provisions of Sections 509.032(2)(a) and (b) and 509.281(2) concerning inspections have been cited above.
Petitioner proved by the requisite standard that Respondent violated these provisions when, on September 9, 1991, he refused Ms. Beekman-Dean access to the restaurant to conduct a reinspection of the violations cited on August 30.
Rule 10D-13.024(10) provides: "Unless its identify is unmistakable, bulk food such as cooking oil, syrup, salt, sugar or flour not stored in the product container or package in which it was obtained, shall be stored in a container identifying the food by common name."
Petitioner failed to prove by the requisite standard that Respondent failed to identify sufficiently food contained in unlabeled bulk containers.
The inspector could not identify what foods were involved and offered only vague testimony concerning the possibility of confusion.
Although such a prohibition would be sensible, Rule 10D-13.024(13) does not, as Petitioner asserts, prohibit the storage of food in beverage ice. Petitioner proved by the requisite standard that Respondent hung a secure container of lemons in a beverage-ice machine or container. The first three sentences of the rule do not mention ice or food with respect to ice. The fourth sentence mentions ice, but only as to how ice may be dispensed. The fifth sentence of the rule discusses the storage of ice-dispensing utensils.
The seventh sentence deals with how to drain ice storage bins. And the eighth and last sentence of the rule provides generally that ice used for cooling shall not be used for human consumption.
The sixth sentence of the rule provides: "Between uses, ice transfer receptacles shall be stored in a way that protects the utensils from contamination." The receptacle that Respondent is charged with improper storage is the lemon container. An ice transfer receptacle is not a large ice container, which is not stored. The ice container is not a utensil.
Rule 10D-13.026(4)(a) requires that all . . . "food-contact surfaces of equipment, exclusive of cooking surfaces of equipment, shall be thoroughly cleaned and sanitized after each use. . . . Non-food-contact surfaces of equipment shall be cleaned at such intervals as necessary to keep them free of dust, dirt, food particles and otherwise in a clean and sanitary condition."
Petitioner proved by the requisite standard that Respondent failed to maintain proper levels of cleanliness for both food-contact surfaces of equipment and non-food-contact surfaces of equipment.
Rule 10D-13.026(2)(o) requires that "[n]on-food- contact surfaces of equipment which . . . require frequent cleaning . . . shall be . . . in such repair as to be easily maintained in a clean and sanitary condition."
Petitioner proved by the requisite standard that Respondent failed to maintain the rusty shelves of the reach-in cooler in such repair as to be easily maintained in a clean and sanitary condition.
Rule 10D-13.027(6) provides that each food service establishment shall be provided with "adequate, readily accessible, conveniently located lavatories equipped with . . . hand cleansing soap or detergent "
Petitioner proved by the requisite standard that one hand sink did not have hand soap on it. However, Petitioner failed to prove by the requisite standard that detergent was not readily available, which is likely given the location of the hand sink, or that the employees did not have access to an adequate, readily accessible, conveniently located lavatory equipped as required by the rule. The rule does not require that each hand sink have soap on it.
68. Rule 10D-13.027(7)(a) requires:
All garbage and rubbish containing food wastes shall, prior to their disposal, be kept in leakproof, nonabsorbent containers which shall be kept covered with tight fitting lids . . .. [If the container is of a type that is not required to have a tight fitting vermin proof lid, then the garbage must first be] placed in plastic bags or wet- strength paper bags which are securely tied and closed.
Petitioner proved by the requisite standard that Respondent failed to ensure that the lid of the dumpster outside the restaurant was kept closed so as to prevent access by vermin (e.g., rats and roaches).
Rule 10D-13.027(7)(b) deals with the smoothness and texture of the surface beneath the dumpster. The surface must be kept "clean and in good repair."
Petitioner failed to prove by the requisite
standard that the building materials and debris left in the vicinity of the dumpster violated the rule. The rule pertains to drainage and runoff. The evidence fails to suggest that the presence of building materials and debris affected the drainage around the dumpster.
Rule 10D-13.028(1) requires that the "floor surfaces in kitchens and all the rooms and areas in which food is stored or prepared [and utensils are washed or stored . . . shall be of smooth, nonabsorbent material and so constructed as to be easily cleanable." The rule provides: "All floors shall be kept clean and in good repair." The rule adds: "In all new or extensively remodeled establishments utilizing concrete, terrazzo, ceramic tile or similar flooring materials, the junctures between walls and floors shall be coved and sealed."
Petitioner failed to prove by the requisite standard that Respondent violated the rule governing the cleanliness of floors. By contrast with the testimony concerning the dirt and grime detected on food-contact and non-food- contact surfaces of equipment, the testimony concerning the dirty floors was vague and unspecific. The clearest point in the testimony described the absence of cove or quarter-round molding along the juncture of the floor and the wall. However, the last-quoted provision of the rule suggests by negative implication that specific requirement of cove molding is reserved for new or recently remodeled establishments using certain types of floor- covering. Petitioner proved neither precondition in this case.
Rule 10D-13.028(2) requires that all walls and ceilings be kept "clean and in good repair. . . . Studs, joists and rafters shall not be left exposed in . . . food preparation ... rooms. Sheet metal, plastic or other covering materials, if used, shall be closed at all joints and shall be sealed to the wall or ceiling."
Petitioner has proved by the requisite standard that Respondent violated the requirement of maintaining all walls and ceilings in good repair by failing to fix holes and open joints.
Rule 10D-13.028(3) requires: "Effective shields, sleeves, coatings, or covers shall be provided for all artificial lighting fixtures . . . located over, by, or within food storage, preparation and display facilities where food is opened or exposed."
Petitioner proved by the requisite standard that Respondent's failure to shield or cover any of his light fixtures in the kitchen and food preparation areas violated the requirement of shielding.
Section 509.241(3), concerning the failure to display a license, has been cited above. Respondent has properly conceded that no charge is proper for this failure as Respondent was charged with the failure to display the license in the August 30 inspection by Mr. Laforte. 3/
Pursuant to Section 509.261, Petitioner may, upon a finding that Respondent is guilty of a violation of any provision of Chapter 509 or the rules promulgated thereunder, impose a fine of not more than $1000 per offense, require mandatory attendance (at the licensee's expense) at an educational program sponsored by the Hospitality Education Program, suspend the license for not more than 12 months, or revoke the license.
Rule 10D-13.039(4)(a) provides that, in setting the penalty,
Petitioner shall consider the
gravity of the violation, including the probability that death or serious physical or emotional harm to any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.
Rule 10D-13.039(4)(b) and (c) require Petitioner also to consider, in setting the penalty, actions taken by the owner to correct violations and any previous violations.
In its Proposed Recommended Order, Petitioner requests an administrative fine of $3000 or revocation for one year; or, "at a minimum, a fine should be imposed and the license should be subject to immediate suspension upon any inspector being denied access to the premises for the purpose of conducting an inspection."
To the extent based in part or in whole on violations determined to have been proved, the proposed administrative fine suggests the following penalties: failure to display license (Laforte's August 30 inspection): $50; failure to allow inspector access (Beekman-Dean's September 9 reinspection):
$500; and other violations (Beekman-Dean's August 30 inspection): $500. The appropriate administrative fine is $1000 after reducing the $500 suggested penalty for the Beekman-Dean August 30 alleged violations for which Petitioner presented inadequate proof.
The most suitable penalty would combine a fine of $1000 with an extended period of probation, with the condition that any attempt by Respondent to deny unreasonably an inspector access (such as by requiring advance notice or that Respondent or his designee be personally present during the inspection) result in immediate and permanent revocation. However, nothing in Chapter 509 explicitly authorizes probation. 4/
The circumstances of the case do not warrant a suspension. Except for the screen door, all of the August 30 violations were minor in nature. The only other serious violation discovered on August 30 involved the broken cooler. However, this violation was not cited because Respondent immediately agreed to destroy the food and his son promptly fixed the cooler. The failure to display the license was due to a misunderstanding; at all times, Respondent had the necessary license. The most serious violation is Respondent's refusal to allow Ms. Beekman-Dean access to the restaurant for a reinspection on September 9. However, Respondent had previously allowed her free access for an inspection, was not attempting to conceal dangerous conditions from Petitioner, and was motivated largely by a misperception that he had been singled out by other inspectors for unfair treatment.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Business Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of violating the above-cited statutory and regulatory provisions, imposing an administrative fine of $1000, and requiring Respondent to attend a Hospitality Education Program, at his expense, within six months of the date of the
final order.
ENTERED this 18th day of June, 1992, in Tallahassee, Florida.
ROBERT E. MEALE
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 18th day of June, 1992.
ENDNOTES
1/ Although occurring almost eight months prior to the two Notices to Show Cause discussed below, the Notice for the January 2 incident was not transmitted to the Division of Administrative Hearings until two weeks after the later Notices had been transmitted.
2/ The allegations do not address the accuracy of the signage from the perspective of dinner. For dinner, however, Respondent offered four substantial entries for $5.99 (without a drink being order), as well as the Italian buffet for the same price. Three other more expensive entries were available for
$7.99 and $10.99, and, as always, pizza was available a la carte.
3/ In the Proposed Recommendation, which is part of Petitioner's Proposed Recommended Order, Petitioner states, as to Violation 14, which was the failure to display the license: "No charge as it is charged in paragraph b. above." Paragraph b. refers to the charges resulting from Mr. Laforte's inspection.
4/ Pursuant to the factors set forth in Rule 10D-13.039(4)(a), it would appear likely that a 12-month suspension or revocation may be indicated if Respondent again fails to provide reasonable access to a food-service inspector, such as by requiring advance notice or insisting that Respondent or his designee accompany the inspector on the inspection. The risk to the consuming public is great when an operator refuses reasonable access for inspections. Respondent has had his chance to test his incorrect theory about his rights to control access by inspectors. A subsequent violation of the inspection provisions would warrant, under the rule, a severe penalty because, in addition to the importance of the inspection requirement in protecting public safety, Respondent would have repeated a past violation, rather than correct it.
APPENDIX
Treatment Accorded Proposed Findings of Petitioner 1-3: adopted or adopted in substance.
4-5 and 7: rejected as unsupported by the appropriate weight of the evidence.
6 and 8: adopted or adopted in substance.
9: adopted or adopted in substance except as to the length of time of the prior arrangement under which Respondent received notice of the routine inspection.
10: rejected as subordinate.
11-12: rejected as irrelevant based on the allegations.
and 15-17: rejected as subordinate.
and 18-19: adopted or adopted in substance.
20: adopted or adopted in substance (sign read: "Italian buffet").
21 (except last sentence): adopted or adopted in substance.
(last sentence): rejected as irrelevant (sign advertised a different lunch item).
(except last sentence): adopted or adopted in substance.
(last sentence): rejected as unsupported by the appropriate weight of the evidence.
(first two sentences): adopted or adopted in substance.
23 (last two sentences): rejected as irrelevant. 24: rejected as subordinate and irrelevant.
25-26 and 28: adopted or adopted in substance. 27: rejected as irrelevant.
29 (except last sentence): adopted or adopted in substance.
29 (last sentence): rejected as irrelevant. 30-35: adopted or adopted in substance.
36: rejected as irrelevant based on the allegations. 37: rejected as irrelevant.
38: rejected as irrelevant and subordinate.
39 (first sentence): adopted or adopted in substance.
39 (second sentence): rejected as irrelevant based on the allegations. 40-41 and 43-44: adopted or adopted in substance.
42: rejected as irrelevant based on the allegations. 45: rejected as recitation of evidence.
46: rejected as subordinate.
COPIES FURNISHED:
Janet E. Ferris, Secretary Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, FL 32399-1000
Donald D. Conn, General Counsel Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, FL 32399-1000
Barbara Palmer, Director
Division of Hotels and Restaurants Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, FL 32399-1000
Tracy P. Moy
Assistant General Counsel Department of Business Regulation 725 South Bronough St.
Tallahassee, FL 32399-1007
Arthur Peloso, pro se 5521 Courtyard Dr.
Margate, FL
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.
June 19, 1992
Barbara Palmer, Director
Division of Hotels and Restaurants Department of Business Regulation The Johns Building
725 South Bronough Street Tallahassee, Florida 32399-1000
Re: Department of Business Regulation, Division of Hotels and Restaurants v. Arthur Peloso, d/b/a Mr. P's Emporium, DOAH Case No. 91-7103
Department of Business Regulation, Division of Hotels and Restaurants v. Aurthur Peloso, d/b/a Spaghetti House, DOAH Case No. 91-7567
Dear Ms. Palmer:
Enclosed please find the Appendix which was inadvertently omitted. I have served copies of such to all parties of record.
Sincerely,
Robert E. Meale Hearing Officer
Enclosures
cc: Tracy P. Moye, Esquire Mr. Arthur Peloso
Janet E. Ferris, Secretary Donald D. Conn, General Counsel
APPENDIX
Treatment Accorded Proposed Findings of Petitioner 1-3: adopted or adopted in substance.
4-5 and 7: rejected as unsupported by the appropriate weight of the evidence.
6 and 8: adopted or adopted in substance.
9: adopted or adopted in substance except as to the length of time of the prior arrangement under which Respondent received notice of the routine inspection.
10: rejected as subordinate.
11-12: rejected as irrelevant based on the allegations.
and 15-17: rejected as subordinate.
and 18-19: adopted or adopted in substance.
20: adopted or adopted in substance (sign read: "Italian buffet").
21 (except last sentence): adopted or adopted in substance.
(last sentence): rejected as irrelevant (sign advertised a different lunch item).
(except last sentence): adopted or adopted in substance.
(last sentence): rejected as unsupported by the appropriate weight of the evidence.
(first two sentences): adopted or adopted in substance.
23 (last two sentences): rejected as irrelevant.
24: rejected as subordinate and irrelevant.
25-26 and 28: adopted or adopted in substance. 27: rejected as irrelevant.
29 (except last sentence): adopted or adopted in substance.
29 (last sentence): rejected as irrelevant.
30-35: adopted or adopted in substance.
36: rejected as irrelevant based on the allegations. 37: rejected as irrelevant.
38: rejected as irrelevant and subordinate.
39 (first sentence): adopted or adopted in substance.
39 (second sentence): rejected as irrelevant based on the allegations.
40-41 and 43-44: adopted or adopted in substance. 42: rejected as irrelevant based on the allegations. 45: rejected as recitation of evidence.
46: rejected as subordinate.
| Issue Date | Proceedings |
|---|---|
| Jul. 21, 1992 | Final Order filed. |
| Jul. 01, 1992 | Ltr to B. Palmer Parties of Record from R.E. Meale (RE: enclosing page 2 of the recommended Order) sent out. |
| Jun. 19, 1992 | (Petitioner) Motion to File Extended Proposed Recommended Order filed. |
| Jun. 19, 1992 | Motion to Amend Petitioner`s Proposed Recommended Order filed. |
| Jun. 18, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 06/04 & 05/92. |
| Jun. 15, 1992 | Petitioner`s Proposed Recommended Order filed. |
| Jun. 12, 1992 | Petitioner`s Exhibits 16, 17, 18, 19 & 20 filed. (From Tracey P. Moye) |
| Jun. 05, 1992 | CASE STATUS: Hearing Held. |
| Jun. 04, 1992 | (Petitioner) Motion to Amend Notice to Show Cause w/List of Question to be Answered filed. |
| May 05, 1992 | Petitioner`s Request for Admissions; Petitioner`s First Set of Interrogatories filed. |
| Mar. 02, 1992 | Amended Notice of Hearing sent out. (hearing set for 6-4-92; 9:00am; Kissimmee) |
| Feb. 24, 1992 | Order Granting Change of Venue and Setting Hearing Date sent out. (set for March 26, 1992; 9:00am Kissimmee). |
| Feb. 20, 1992 | (Petitioner) Motion to Transfer Venue filed. |
| Jan. 31, 1992 | (Petitioner) Notice of Appearance filed. |
| Jan. 23, 1992 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for March 18, 1992; 9:30am; Ft Lauderdale). |
| Jan. 23, 1992 | Order Granting Consolidation sent out. 91-7103 & 91-7567 consolidated. |
| Jan. 17, 1992 | (Petitioner) Notice of Appearance; Joint Motion to Consolidate filed. |
| Dec. 09, 1991 | Notice of Hearing sent out. (hearing set for March 13, 1992; 9:30am;Ft Laud). |
| Nov. 20, 1991 | (Respondent) Response to Initial Order filed. |
| Nov. 15, 1991 | (Petitioner) Response to Initial Order filed. |
| Nov. 07, 1991 | Initial Order issued. |
| Nov. 05, 1991 | Notice to Show Cause; Notice of Informal Conference; Request for Hearing; Agency referral letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 17, 1992 | Agency Final Order | |
| Jun. 18, 1992 | Recommended Order | Failure to display restaurant license, allow inspector access to restaurant and comply with safety and health rules warrants $1000.00 fine and education. |
