J. SPORTS, )
Respondent. )
Upon due notice, a disputed-fact hearing was held in this case on August 3, 2000, in Tallahassee, Florida, before
Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Charles F. Tunnicliff, Esquire
Should Respondent's public food establishment license be revoked or otherwise penalized upon proof of violations as charged in the February 21, 2000, Administrative Complaint?
This case was referred to the Division of Administrative Hearings on or about April 7, 2000.
The disputed-fact hearing was noticed for hearing at the Division of Administrative Hearings on April 27, 2000, for August 3, 2000.
Petitioner complied with the Order of Prehearing Instructions. Respondent did not.
On August 26, 2000, an Amended Notice of Hearing was entered and mailed. The only amendment was a change in the location of the hearing. Both parties were also telephoned on August 25, 2000, and messages were left stating the change of hearing location.1
At the commencement of hearing, Respondent had not appeared, so the hearing was delayed one-half hour to give Respondent an opportunity to arrive. During the delay, the undersigned caused the court reporter to telephone the Division to determine if Respondent had appeared at the Division or had telephoned to explain his delay/absence. He had not. After waiting a half- hour, the undersigned sounded the docket in the hallway at the new hearing location and determined that Respondent still had not appeared. The hearing proceeded thereafter.
Petitioner presented the oral testimony of Alex Kerr and Peter Newman, Investigators for the Division of Hotels and Restaurants. Petitioner's Exhibits Numbered P-1, P-2, P-3, and
P-4, were admitted in evidence. Petitioner's oral motion for official recognition of the applicable rules and statutes was granted.
At the time Petitioner rested, Respondent still had not appeared at the hearing.
On August 14, 2000, a Transcript of the hearing was filed with the Division. On August 16, 2000, a Post-Hearing Order was mailed to both parties. Petitioner's Proposed Recommended Order was filed timely on August 21, 2000, and has been considered.
Petitioner also filed an Amended Proposed Order on August 24, 2000. Respondent has filed no proposal and has never contacted the Division concerning this case.
At all times material, Respondent, A. J. Sports, Inc., d/b/a A.J. Sports, was licensed to operate and did operate a public food service establishment, license number 47-02726-R, located at 1800 West Tennessee Street, Tallahassee, Florida 32304.
At all times material, Alex Kerr was an employee of Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants, acting primarily as an inspector of restaurants.
At all times material, Peter Newman was an employee of Petitioner as its Sanitation and Safety Administrator, the supervisor of its inspectors of restaurants, and the custodian of
records in the district in which Respondent's food establishment is located.
On December 9, 1999, Inspector Kerr inspected Respondent's establishment and observed several violations of food service rules, all of which he marked on his food service inspection report of December 9, 1999.
On January 7, 2000, Inspector Kerr performed a Call-Back Inspection. At that time, some items had been brought into compliance, but Mr. Kerr observed that Respondent was still in non-compliance for the violations listed in paragraphs 6 through
9 of his December 9, 1999, inspection report, as follows:
The Hood Fire Suppression System had last been serviced in January 1999. The Hood Fire Suppression System should have been inspected in July 1999.
A spray nozzle at the three-compartment sink was hanging over the waterline, where the sprayer could become contaminated, thereby contaminating food or drinks.
Plastic beverage containers (single use items) were stored on the floor in the upstairs bar, a dry storeroom. Single use items are taken directly from their carton and are used without further washing. They can become contaminated if the floor or the box in which they are stored becomes water-logged.
Inspector Kerr observed that there was exposed raw wood on top of the beverage shelf in the upstairs bar area.
Previously, on August 23, 1999, Peter Newman had performed an inspection of Respondent's establishment. At that time, he also had found that the Fire Suppression System had not been timely serviced.2
Later, on March 20, 2000 and March 23, 2000, Call-Back Inspections were performed by Edwardo Padillo, another inspector under Mr. Newman's supervision. Inspector Padillo found that the Fire Suppression System still had not been serviced as of those dates.3
On April 5, 2000, Inspector Padillo found that the Fire Suppression System had finally been serviced and inspected sometime after March 23, 2000.4
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the agency charged with licensure and inspection of public food service establishments in the State of Florida, pursuant to Chapter 509, Florida Statutes.
Respondent is a public food service establishment as defined in Section 509.013, Florida Statutes, and is licensed by, and subject to, Petitioner's regulatory authority.
Pursuant to Subsections 509.032(2)(d) and (3)(a), Florida Statutes, Petitioner is required to adopt and enforce sanitation standards in public food establishments. Petitioner has adopted Chapter 61C, Florida Administrative Code. Rule
61C-1.004(1), Florida Administrative Code, adopts, by reference, Chapter 5 of the United States Public Health Service Food Code. Rule 61C-4.010(5), Florida Administrative Code, subjects public food service establishments to Chapter 4 of the United States Public Health Service Food Code.
Section 509.211(2), Florida Statutes, authorizes Petitioner to impose administrative sanctions pursuant to Section 509.261, Florida Statutes, for violations of rules adopted by the State Fire Marshall, pursuant to Chapter 633, Florida Statutes.
Chapter 4A-3, Florida Administrative Code, constitutes the rules of the State Fire Marshall adopted pursuant to Chapter 633, Florida Statutes. The National Fire Protection Association (NFPA) has published Chapter 101, Life Safety Code. Unless specifically modified by Florida Statutes or Chapter 4A-3, Florida Administrative Code, NFPA's Chapter 101 has been adopted and incorporated into the State Fire Marshall's rules by Rule
4A-3.012, Florida Administrative Code.
NFPA Rule 101.96, 8-2, relates to Respondent's Fire Suppression System. It states:
8-2 Inspection - An inspection and servicing of the fire extinguishing system and listing exhaust hoods containing a constant or fire- activated water system shall be made at least
every six months by properly trained and qualified persons.
8-2.1 All actuation components, including remote manual pull stations, mechanical or electrical devices, detectors, actuators, and fire-actuated dampers, shall be checked for proper operation during the inspection in accordance with the manufacturer's listed procedures. In addition to these requirements, the specific inspection requirements of the applicable NFPA standard shall also be followed.
United States Public Health Service Food Code, Chapter 5-203.14,(1997), relates to Respondent's sprayer nozzle at the three-compartment sink hanging below the water line of the sink. It states as follows:
A PLUMBING SYSTEM shall be installed to preclude backflow of a solid, liquid, or gas contaminant into the water supply system at each point of use at the FOOD ESTABLISHMENT, including a hose bibb if a hose is attached or on a hose bibb if a hose is not attached and backflow prevention is required by LAW, by:
Providing an air gap as specified under Section 5-202.13; or
Installing an APPROVED backflow prevention device as specified under Section 5-202.14.
Chapter 4-903.11 (A), (C), and (D), United States Public Health Service Food Code (1997), relates to the plastic single use beverage containers stored on the floor in the storage room of Respondent's upstairs bar. That rule states:
Except as specified in paragraph D of this section, cleaned EQUIPMENT and UTENSILS, laundered LINENS, and SINGLE-
SERVICE and SINGLE-USE ARTICLES shall be
stored:
In a clean, dry location;
Where they are not exposed to splash, dust, or other contamination; and
At least 15 cm (6 inches) above the floor.
* * *
SINGLE SERVICE and SINGLE USE ARTICLES shall be stored as specified under paragraph (A) of this section and shall be kept in the original protective package or stored by using other means that afford protection from contamination until used.
Items that are kept in closed packages may be stored less than 15 cm (6 inches) above the floor on dollies, pallets, racks, and skids that are designed as provided under Section 4-204.121.
Chapter 4-101.111, United States Public Health Service Food Code (1997), relates to the raw, exposed wood on top of the beverage shelf in Respondent's upstairs bar area. It states:
NONFOOD-CONTACT SURFACES of EQUIPMENT that
are exposed to splash, spillage, or other FOOD soiling or that require frequent cleaning shall be constructed of a CORROSION- RESISTANT, nonabsorbent, and SMOOTH material.
Eye-witness testimony has established by clear and convincing evidence the violations charged on December 9, 1999, and found to be uncorrected on January 7, 2000.
Eye-witness and competent business record evidence clearly and convincingly shows an "aggravation" of these violations by the long-standing failure of Respondent to have the
Fire Suppression System serviced and inspected from July 1999 to at least March 24, 2000 (eight months).5
Section 509.261(1)(a), Florida Statutes, authorizes Petitioner to suspend or revoke Respondent's license or to impose administrative fines, not to exceed $1,000.00 for each offense, for violations of Chapter 509, Florida Statutes, or of the cited rules.
Section 509.281(2), Florida Statutes, provides that each day that a public food service establishment is operated in violation of law or rule constitutes a separate offense.
However, Petitioner asserts that a total fine of
