Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in
Fort Myers, Florida, on September 20, 2000.
For Respondent: Angelo E. Ruth, pro se
The issue is whether Respondent is guilty of various violations of Florida statutes and rules in the operation of his restaurant and, if so, what penalty should be imposed.
The four consolidated cases raise a number of alleged violations, as identified in four sets of inspections taking place between January 1998 and May 1999. The specific allegations incorporate the violations cited in the inspection reports, which are detailed in the Findings of Fact below.
At the hearing, Petitioner called three witnesses and offered into evidence 14 exhibits. Respondent called no witnesses and offered into evidence no exhibits. The Administrative Law Judge has admitted, post-hearing, as Administrative Law Judge Exhibit 1, the licensing certificate for the licensing year ending December 1, 1999. All exhibits were admitted.
Respondent holds license control number 46-04280R, which is in effect from December 1, 1999, through December 1, 2000. The license authorizes Respondent to operate a restaurant known as Speedy Two Shop at 2957 Martin L. King Boulevard in
Fort Myers.
Petitioner has previously disciplined Respondent. By Stipulation and Consent Order filed May 22, 1997, the parties agreed that Respondent would pay an administrative fine of $1100 and correct all violations by April 30, 1997. The Stipulation and Consent Order incorporates the findings of inspections on February 25 and March 7, 1997. These inspections uncovered seven
violations, including missing hood filters over the cooking surface, heavy grease accumulations on the inside and outside of the hood, a fire extinguisher bearing an expired tag (May 1995), and operation without a license.
In Petitioner's District 7, which includes Fort Myers, the licensing year for restaurants runs from December 1 to December 1. Respondent's relevant licensing history includes annual licenses for the periods ending December 1, 1997; December 1, 1998; and December 1, 1999.
However, Respondent has operated his restaurant for substantial periods without a license. Respondent renewed his license ending in 1997 after four months of operating without a license, his license ending in 1998 after 17 months of operating without a license, his license ending in 1999 after six and one- half months of operating without a license, and his license ending in 2000 after one and one-half months of operating without a license. For each of these late renewals, Respondent paid a
$100 delinquent fee.
Petitioner conducts periodic inspections of restaurants. These inspections cover a broad range of health and safety conditions. Certain violations, as marked on the inspection forms, "are of critical concern and must be corrected immediately." This recommended order refers to such violations as "Critical Violations."
On January 22, 1998, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered seven Critical Violations.
Two Critical Violations involved Respondent's compliance with licensing and training requirements. Respondent was operating the restaurant without a license, and no employee had a food manager's card, which evidences the successful completion of coursework and a test in managing a restaurant. The report warns that if Respondent did not renew his license before February 1, 1998, Petitioner would impose a fine and possibly revoke his license. The report requires Respondent to ensure that an employee obtains a food manager's card by March 3, 1998.
Two Critical Violations involved Respondent's noncompliance with fire safety requirements. The fire extinguisher and built-in fire suppression system both bore outdated tags. The former tag expired in April 1997, and the latter tag expired in May 1997.
The remaining three Critical Violations were that the restaurant lacked a filter in his hood over the stove, ceramic tiles over the three-compartment sink, and sanitizing solution in the bucket that was supposed to contain sanitizing solution. Respondent's employee explained that the hood filters were being cleaned, but apparently offered no explanation for the other two Critical Violations.
Despite the specific warnings concerning the licensing and training violations, the January 1998 inspection report requires only that Respondent correct the violations by the next routine inspection.
On March 26, 1998, Petitioner's inspector conducted an reinspection of Respondent's restaurant. The inspection uncovered the same Critical Violations, except for the sanitizing solution. The report states that Respondent must come to Petitioner's office in the next seven days to renew his license.
On April 2, 1998, Petitioner served upon Respondent an Administrative Complaint alleging that, on January 1, 1998, Respondent was operating without a license. Neither this nor any subsequent charging document cites any of the other six Critical Violations found in the January 22, 1998, inspection as bases for discipline, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On June 30, 2000--over two years after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to the Division of Administrative Hearings (DOAH) for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2694.
On April 29, 1998, Petitioner's inspector conducted another reinspection. Upon identifying himself to Respondent's employee, the employee denied the inspector access to the premises and told him to return at 2:00 PM. The inspector
replied that the reinspection would take only five minutes and that he could not return at 2:00 PM, but the employee continued to deny the inspector entry.
On May 12, 1998, Petitioner's inspector conducted another reinspection and found the same seven Critical Violations present during the January 1998 inspection. New Critical Violations were the presence of one "small mouse and roaches" under the three-compartment sink and the presence of cooked sausage patties and links with an internal temperature too low to prevent the proliferation of bacteria. As for the food manager's card, Respondent told the inspector that he had left it at home. The report warns that Respondent must correct the violations by May 18, 2000, 8:00 AM.
On September 29, 1998, Petitioner served upon Respondent a Notice to Show Cause alleging the violations found during the inspections of March 26, April 29, and May 12, 1998. On June 30, 2000--one year and nine months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number
00-2697.
On July 31, 1998, Petitioner's inspector conducted another reinspection and found five of the same Critical Violations: operating without a license, no employee with a food manager's card, fire suppression system bearing an outdated tag,
ceramic tile missing over the three-compartment sink, and heavy grease accumulation on the hood filters, which had been reinstalled.
Petitioner never cited these five Critical Violations in any charging document, so this recommended order treats these other violations as background, rather than as independent grounds for discipline.
On October 2, 1998, Petitioner's inspector conducted an inspection and found four of the original Critical Violations: no license, no employee with a food manager's card, no current tag on the fire suppression system, and no ceramic tile over the sink. Although the fire extinguisher was presumably current, it was improperly placed on the floor. Other Critical Violations included the storage of sausage at the improperly warm temperature of 51 degrees, the absence of a thermometer in the home-style refrigerator, the presence of rodent feces on the floor, the absence of working emergency lights, the absence of a catch pan in the hood system, a broken self-closer on the side door, a clogged hand sink, an extension cord serving a toaster, and the evident expansion of the restaurant without an approved plan. The report gives Respondent until October 9, 1998, at 11:00 AM to correct the violations.
On October 12, 1998, Petitioner's inspector conducted a reinspection and found all of the Critical Violations cited in the preceding paragraph still uncorrected.
On October 20, 1998, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of October 2 and 12, 1998. On June 30, 2000--one year and eight months after issuing the Administrative
Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2695.
For some reason, Petitioner neither prosecuted the pending charges nor conducted repeated inspections for several months after October 1998 inspections and Administrative Complaint.
The next inspection of Respondent's restaurant took place on April 30, 1999. Despite the six and one-half months that Petitioner effectively gave Respondent to correct the numerous Critical Violations cited in the October 12, 1998, inspection, Respondent continued to violate many of the same provisions for which he had been cited throughout nearly all of 1998.
The inspection report discloses that, again, Respondent was operating without a license. The report notes that he lacked a license for the licensing years ending in 1998 and 1999. One of Petitioner's inspectors testified that Respondent had been making progress on the licensing issue. However, the implication that Respondent was unable to pay the $190 licensing fee (usually accompanied by a $100 delinquent fee) is quietly rebutted by the
notation, also in the April 30, 1999, report, that Respondent had completed the expansion project--still, without the required plan review.
Again, no employee at the restaurant had a food manager's card. Again, the fire suppression system was in violation--this time because the indicator revealed that it needed to be recharged. Again, the hood filters were missing above the cooking surface. Again, the hand sink was inoperative-
-this time, it was not only clogged, but it also lacked hot water. Again, emergency lighting was inoperative. Again, the ceramic tile was missing over the three-compartment sink. Again, food was maintained too warm in the refrigerator--this time, chicken was at 69 degrees. A new Critical Violation was the exposure of live electrical lines and insulation. The April 1999 inspection report gives Respondent until May 14, 1999, at 11:00 AM to correct the violations.
On May 14, 1999, Petitioner's inspector conducted a reinspection and found that Respondent still had not obtained a license for the licensing year ending in 1999, still lacked an employee with a food manager's card, still had not obtained approval of its expansion plan, still lacked ceramic tile over the three-compartment sink, still had a clogged hand sink without hot water, still lacked working emergency lights, still tolerated exposed electrical line and insulation, and still lacked hood filters above the cooking surface.
On June 2, 1999, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of April 20 and May 14, 1999. On June 30, 2000--one year and one month after issuing the Administrative Complaint-- Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2696.
Over a period of 16 months, Petitioner conducted eight inspections of Respondent's restaurant. On what would have been a ninth inspection, one of Respondent's employees denied access to the inspector.
On each of these eight inspections, Respondent was operating without a license, lacked an employee with a food manager's card, and lacked ceramic tile over the three- compartment sink. On seven of these eight inspections, the fire suppression system was expired or discharged, and the hood filter was missing or excessive grease had accumulated on the filter or the liner.
On three of these eight inspections, the fire extinguisher was outdated, and, on a fourth inspection, it was improperly stored on the floor. On three of these eight inspections, sausage or chicken was at improper temperatures--the
86 degrees at which sausage was served on one occasion was only
17 degrees warmer than the 69 degrees at which chicken was stored on another occasion. On three of these eight inspections, the
hand sink was unusable because it was clogged or lacked hot water, the emergency lights did not work, and restaurant expansion was taking place or had taken place without review or approval of the plans.
On two of these eight inspections, the inspector saw signs of rodents in the kitchen--one time actually seeing a small mouse. On two of these eight inspections, exposed electrical lines and insulation were present in the kitchen.
Petitioner has proved by clear and convincing evidence that Respondent committed all of the cited violations. Uncorrected violations over 16 months amount to more than a failure to take advantage of the numerous opportunities that Petitioner gave Respondent to bring his restaurant into compliance. These uncorrected violations constitute a refusal to comply with the basic requirements ensuring the health and safety of the public. The penalty must weigh, among other things, Respondent's blatant disregard of fundamental requirements in licensing, training, and fire and food safety; Petitioner's demonstrated lack of diligence in enforcing Respondent's compliance with these requirements; and the peril posed by these failures upon the public health and safety.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to "Sections" are to the Florida
Statutes, all references to "Rules" are to the Florida Administrative Code, all references to "FC" are to the 1997 Food Code, and all reference to "NFPA" are to the 1998 National Fire Protection Association Safety Code.)
Section 509.032 provides in part:
General.--The [Division of Hotels and Restaurants; "division"] shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of public lodging establishments and public food service establishments for the purpose of safeguarding the public health, safety, and welfare. . . .
Inspection of premises.--
The division has responsibility and jurisdiction for all inspections required by this chapter. The division has responsibility for quality assurance. Each licensed establishment shall be inspected at least biannually and at such other times as the division determines is necessary to ensure the public's health, safety, and welfare. . . .
For purposes of performing required inspections and the enforcement of this chapter, the division has the right of entry and access to public lodging establishments and public food service establishments at any reasonable time.
Public food service establishment inspections shall be conducted to enforce provisions of this part and to educate, inform, and promote cooperation between the division and the establishment.
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Rulemaking authority.--The division shall adopt such rules as are necessary to carry out the provisions of this chapter.
Preemption authority.--The regulation and inspection of public lodging establishments and public food service
establishments and the regulation of food safety protection standards for required training and testing of food service establishment personnel are preempted to the state.
Section 509.261 provides:
Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:
Fines not to exceed $1,000 per offense;
Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and
The suspension, revocation, or refusal of a license issued pursuant to this chapter.
For the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a "critical law or rule," as that term is defined by rule.
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(5)(a) A license may not be suspended under this section for a period of more than 12 months. At the end of such period of suspension, the establishment may apply for reinstatement or renewal of the license. A public lodging establishment or public food service establishment, the license of which is revoked, may not apply for another license for that location prior to the date on which the revoked license would have expired.
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(7) A person is not entitled to the issuance of a license for any public lodging establishment or public food service establishment except in the discretion of the director when the division has notified the
current licenseholder for such premises that administrative proceedings have been or will be brought against such current licensee for violation of any provision of this chapter or rule of the division.
Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 509.241(1) provides:
Licenses; annual renewals.--Each public lodging establishment and public food service establishment shall obtain a license from the division. . . . It shall be a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for such an establishment to operate without a license. Local law enforcement shall provide immediate assistance in pursuing an illegally operating establishment. The division may refuse a license, or a renewal thereof, to any establishment that is not constructed and maintained in accordance with law and with the rules of the division. The division may refuse to issue a license, or a renewal thereof, to any establishment an operator of which, within the preceding 5 years, has been adjudicated guilty of, or has forfeited a bond when charged with, any crime reflecting on professional character, including soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in controlled substances as defined in chapter 893, whether in this state or in any other jurisdiction within the United States, or has had a license denied, revoked, or suspended pursuant to s. 400.414. Licenses shall be renewed annually, and the division shall adopt a rule establishing a staggered schedule for license renewals. If any license expires while administrative charges are pending against the license, the proceedings against the license shall
continue to conclusion as if the license were still in effect.
Rule 61C-1.002 (5) and (6) states in part: (5)(c) Plan Reviews and Variances.
1. The operator of each public food service establishment to be newly constructed, remodeled, converted, or reopened shall submit properly prepared facility plans and specifications to the division for review and approval in accordance with the provisions of Chapter 509, FS, and rule chapters 61C-1 and 61C-4, FAC. Such plans must be approved by the division prior to construction, remodeling, conversion, scheduling of an opening inspection and licensing. . . .
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(6) Renewal -- It is the responsibility of the licensee to renew the license prior to the expiration date. . . . Any public lodging or food service establishment operating on an expired license is deemed to be operating without a license, and subject to the penalties provided for this offense in law and rule.
Section 509.039 provides in part:
It is the duty of the division to adopt, by rule, food safety protection standards for the training and certification of all food service managers who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards are to be adopted by the division to ensure that, upon successfully passing a test, a manager of a food service establishment shall have demonstrated a knowledge of basic food protection practices. These standards shall also provide for a certification program which authorizes private or public agencies to conduct an approved test and certify the results of those tests to the division. The fee
for the test shall not exceed $50. All managers employed by a food service establishment must have passed this test and received a certificate attesting thereto.
Managers have a period of 90 days after employment to pass the required test. The ranking of food service establishments is also preempted to the state; provided, however, that any local ordinances establishing a ranking system in existence prior to October 1, 1988, may remain in effect.
Rule 61C-4.023(1) and (2) provides:
All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a written certification test approved by the division demonstrating a basic knowledge of food protection practices regulated and administered by the division or an agency of state government outside Florida which has been approved by the division. Those managers who successfully pass the certification examination shall be issued a certificate which is valid for a period of five years from the date of issuance. All establishments shall designate in writing the food service manager or managers for each location. Establishments that have four or more employees at one time engaged in the storage, preparation or serving of food
shall have at least one certified manager
present at all times when said activities are taking place. All other establishments shall have a certified manager or managers responsible for all periods of operation but said manager or managers need not be present at all times. It shall be the responsibility of the certified manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this chapter.
The test shall be designed to assess the manager's knowledge of basic public health food protection practices which includes:
Receiving and storage of food supplies, including dry, refrigerated and freezer storage;
Food protection and preparation practices, including:
Thawing of potentially hazardous
food;
Techniques to minimize handling; and
Recognition of critical temperatures
during storage, preparation, cooking, serving, displaying and reheating;
Personal hygienic practices of employees during all phases of preparation and serving of food;
Equipment and utensil design and fabrication, installation and location as well as cleaning, sanitizing and storage;
Water supplies;
Sewage disposal;
Plumbing;
Bathroom and handwashing facilities;
Garbage and trash storage and disposal;
Insect and rodent control;
General housekeeping including cleaning, maintenance, lighting and ventilation;
Control of toxic materials; and
Premises sanitation and other miscellaneous activities which the manager needs to ensure are accomplished to prevent the occurrence of foodborne illness.
40. Rule 61C-1.004(3), (5), (6) and provides:
(1) Water, plumbing and waste. Except as specifically provided by these rules, standards for water, plumbing and waste shall be governed by Chapter 5, Food Code, herein adopted by reference. For the purpose of this section, the term "food establishment" as referenced in the Food Code shall apply to all public lodging and public food establishments as defined in Chapter 509, F.S.
(3) Vermin control--Effective control measures shall be taken to protect against the entrance into the establishment, and the
breeding or presence on the premises of rodents, flies, roaches and other vermin. All buildings shall be effectively rodent- proofed, free of rodents and maintained in a rodent-proof and rodent-free condition.
. . .
12 months), and correction of all still-uncorrected violations. These penalties do not seem proportionate to the repeated disregard of numerous, crucial licensing requirements.
RECOMMENDED that the Division of Hotels and Restaurants enter a final order revoking Respondent's license.
ROBERT E. MEALE
Susan R. McKinley, Director Division of Hotels and Restaurant Department of Business and
Barbara D. Auger, General Counsel Department Business and
Angelo E. Ruth 2774 Blake Street
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
