STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
Petitioner,
vs.
JACKSONVILLE BEACH SEAFOOD,
Respondent.
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) Case No. 06-2770
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RECOMMENDED ORDER
A formal hearing was conducted in this case on October 10, 2006, in Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Jessica Leigh, Esquire
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-2202
For Respondent: Al Millar, Esquire
4267 Ocean Street
Mayport, Florida 32233 STATEMENT OF THE ISSUES
The issues are whether Respondent violated Section 509.032(6), Florida Statutes (2005), by violating Sections 3-
501.16(A), 3-501.13, and 6-501.111, of the Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, incorporated by Chapter 61C, Florida Administrative Code, and if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On June 21, 2006, Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (hereinafter referred as Petitioner), issued an Administrative Complaint against Respondent Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood (hereinafter referred as Respondent). The complaint, referencing License No. 2612694, alleged that Respondent had violated the above-cited provisions of the Food Code during the following temporary food events: the three-day Jacksonville Jazz Festival beginning on April 7, 2006, and the four-day World of Nations Celebration on beginning on May 4, 2006. The City of Jacksonville sponsored both events.
Respondent received the complaint, which was addressed to Beaches Seafood Kitchen, Inc., JAX Beach Seafood, 203 Oceanfront, Neptune Beach, Florida. On June 24, 2006, Respondent filed an Election of Rights form, requesting an administrative hearing to challenge the allegations in the complaint. The Election of Rights form indicates that counsel was representing Rebecca Darlington, d/b/a as Respondent.
On August 1, 2006, Petitioner referred the case to the Division of Administrative Hearings.
The Division of Administrative Hearings assigned the case to Administrative Law Judge Ella Jane P. Davis. Judge Davis issued a Notice of Hearing dated August 11, 2006, scheduling the hearing for October 10, 2006.
On August 28, 2006, Respondent's counsel filed a Motion for Discovery Order in the name of Rebecca Darlington as Respondent. On September 14, 2006, Petitioner filed a Notice of Objection to Respondent's Motion for Discovery. On September 14, 2006, Judge Davis entered an Order, stating that no order is required for the taking of depositions and directing the Clerk of the Division of Administrative Hearings to provide Respondent's counsel with appropriate subpoenas.
On September 25, 2006, Respondent filed a Motion to Dismiss and/or for Summary Judgment. On October 2, 2006, Respondent filed a response in opposition to the motion. Petitioner also filed a Letter of Concern, addressing problems between the parties in scheduling depositions.
On October 3, 2006, Respondent filed a Motion to Continue. That same day, Respondent filed a response in opposition to the motion.
In a telephone conference on October 4, 2006, Judge Davis heard oral arguments on the pending motions. On October 5, 2006, Judge Davis issued an Order, denying both motions.
Prior to hearing, the Division of Administrative Hearings transferred the case to the undersigned.
When the hearing commenced, Respondent's counsel made an appearance on behalf of Rebecca Darlington, d/b/a JAX Beach Seafood and Beaches Seafood Kitchen, Inc. Respondent's counsel argued that the style of the case incorrectly named Jacksonville Beach Seafood, as a respondent. According to Respondent's counsel, Jacksonville Beach Seafood is a restaurant located on Jacksonville Beach, Florida, and that the restaurant is not involved in the case.
The real parties in interest, Rebecca Darlington, d/b/a/ JAX Beach Seafood and Beaches Seafood Kitchen, Inc., had actual notice of the allegations against them and were present and represented by counsel at the hearing. They were prepared to defend Respondent against the allegations against Respondent.
Accordingly, the undersigned ruled that the hearing would proceed as scheduled. This ruling was consistent with Judge Davis's October 5, 2006, Order, denying Respondent's Motion to Dismiss and/or for Summary Judgment.
Respondent's counsel filed a Motion to Strike Letter of Concern. After hearing oral argument, the undersigned denied this motion on the record.
Respondent's counsel filed a Motion to Strike Part of Exhibit B from the Administrative Complaint. After hearing oral argument, the undersigned denied this motion on the record.
Petitioner presented the testimony of three witnesses: Steve Vonbodungen, District Manager; John Phelan, Sanitation and Safety Specialist; and Janet D'Antonio, Sanitation and Safety Specialist. Petitioner offered nine exhibits, P1-P9, that were accepted as evidence.
Respondent presented the testimony of five witnesses: Terry Baker; Rebecca Darlington; Nicole Lyncker; Tiffany Davis; and Louis Stuart, Jr. Respondent offered 13 exhibits, R1-R4, R6-R8, R11a-R11c, R11e, and R11g-R11h, that were accepted as evidence.
Before the hearing was concluded, Respondent's counsel requested that the record remain open for submission of depositions in lieu of testimony and for the submission of additional exhibits to support an argument that Petitioner had not uniformly applied its inspection procedure to all vendors at the May 2006 food festival. Specifically, Respondent argued that Petitioner had targeted Respondent at the May 2006 food event and had not targeted other similarly situated vendors who
might have had citations for violations of the Food Code at the April 2006 food event. Respondent also argued that Petitioner had not inspected any other vendors at the May 2006 festival after the other vendors stopped serving food.
The undersigned granted Respondent's request for an opportunity to conduct additional discovery regarding the food service inspection reports of all vendors at the April and May 2006 food festivals. On October 12, 2006, the undersigned issued a Post-hearing Order, directing Petitioner to provide Respondent with certain documents and giving Respondent an opportunity to file post-hearing depositions in lieu of testimony on or before December 1, 2006.
On October 17, 2006, Petitioner filed Notice of Filing Exhibits as Required in the Post-hearing Order. Petitioner attached ten exhibits to the notice. Petitioner's Exhibit Nos. P10-P19 are hereby accepted as evidence.
On October 31, 2006, Respondent filed an Objection to Petitioner's Post Trial Submission and Motion to Reestablish Time Deadlines Because of Unavailability of a Transcript.
Petitioner filed a response to Respondent's Objection and Motion for Clarification of Post-hearing Order.
On November 2, 2006, the undersigned issued an Order directing Petitioner to provide Respondent with additional documents and providing Respondent with an opportunity to file
depositions in lieu of testimony on or before December 15, 2006. The Order extended the time for the filing of proposed recommended orders to December 29, 2006.
The court reporter filed the Transcript on November 3, 2006.
On November 7, 2006, Petitioner filed a Second Notice of Filing as Required in the Post-hearing Order. Petitioner attached an additional 20 exhibits to the notice. Petitioner's Exhibits Nos. P20-P42 are hereby accepted as evidence.
On December 12, 2006, Respondent filed the depositions of Lin Maple and Steve Vonbodugen in lieu of testimony. The depositions are accepted as evidence.
Petitioner filed its Proposed Recommended Order on December 20, 2006. Respondent filed a Proposed Recommended Order on December 29, 2006.
FINDINGS OF FACT
At all times material here, Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, held a Permanent Food Service License No. 2612694. The current license expires June 1, 2007.
Beaches Seafood Kitchen, Inc., has been a Florida for- profit corporation since October 1997. According the records of the Florida Department of State, Division of Corporations, the address of Beaches Seafood Kitchen, Inc. was changed to 203 Oceanfront, Neptune Beach, Florida, 32266, on May 4, 2005.
Rebecca Darlington is the Registered Agent and a director of the business. On April 18, 2006, Louis Stuart, Jr. was added as an officer of the business.
On February 15, 2006, Rebecca Darlington filed a change of ownership application with Petitioner for License No. 2612694. The application indicates that the mailing address for Rebecca Darlington, as owner, is 203 Oceanfront, Neptune Beach, Florida 32266. That address is the "address of record" for purpose of official communication from Petitioner.
The application, signed by Rebecca Darlington, states that the establishment, Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, has its primary commissary address for mobile food dispensing vehicles or hot dog carts at 225 Tallyrand Avenue, Jacksonville, Florida 32202.
On April 7, 2006, Petitioner's staff inspected Respondent's temporary food service operation at the April 2006 festival from 3:00 to 4:00 p.m. The food service inspection report indicates that the owner is Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, 225 Tallyrand, Jacksonville, Florida 32202. The report references 2612694 as the control number.
The April 2006 inspection report cited Respondent with
11 violations, six of which were of critical concern.
Violations of critical concern are more likely to cause illness
due to food borne diseases than violations which are not critical. One of the most serious violations involved the temperature of raw fish and shrimp at 70 and 54 degrees Fahrenheit respectively.
The April 2006 inspection resulted in a warning that the violations had to be corrected the next morning, April 9, 2006, by 9:00 a.m.
Rebecca Darlington signed the April 2006 inspection report as owner. Her signature acknowledged receipt of the inspection form and attached comments.
Petitioner's staff re-inspected Respondent's food service operation on April 8, 2006, from 11:05 a.m. to
11:25 a.m. The call back/re-inspection report indicates that Respondent had corrected all violations.
The three-day event beginning April 7, 2006, did not require a special food service license. However, the four-day event beginning May 4, 2006, required vendors to apply for a special temporary food service license and to pay an application fee.
Prior to the May 2006 food festival, Steve Vonbodungen, Petitioner's District Manager, met with Petitioner's inspectors to review the inspection process. During that meeting, Steve Vonbodugen advised the inspectors to inspect for sanitation, safety, and licensure as usual. In
regards to Respondent, Steve Vonbodugen gave the inspectors special instructions because he was aware of Respondent's critical violations at the April 2006 festival.
Steve Vonbodugen advised the inspectors to issue an immediate administrative complaint against Respondent if the inspectors observed repeat critical violations in Respondent's operation. Steve Vonbodugen would have given the same special instruction for any vendor that he knew had prior critical violations at the April 2006 food event. However, Steve Vonbodugen was not aware of any other vendor at the May 2006 event that had been cited with critical violations at the April 2006 event. There is no evidence that Petitioner's inspectors discriminated against Respondent by targeting Respondent and failing to target similarly situated vendors.
Louis Stuart, Jr., helped Respondent's employees set up for the World of Nations festival on May 3, 2006. On the morning of May 4, 2006, Rebecca Darlington was at the site with a money order to pay the license application fee.
While Respondents employees were preparing to serve food, one of Petitioner's inspectors came by Respondent's booth and gave Rebecca Darlington an application form. The inspector told Rebecca Darlington that an inspector would return to the booth to take the completed application and the fee and to perform the required inspection.
The first day of the World of Nations festival, May 4, 2006, was primarily for the benefit of school children. School buses with students from the surrounding area began arriving after 9:00 a.m. Each teacher had discretion as to when the students were supposed to return to their school on the buses. The festival was scheduled to last until 2:00 p.m.
Sometime before 1:30 p.m., Rebecca Darlington discovered roaches crawling on plastic-lined bags of french- fries in a cooler. Rebecca Darlington left the food event to buy a spray insecticide. Rebecca Darlington was spraying the insecticide on the roaches that were crawling on the bags of french-fries when John Phelan and Janet D'Antonio returned to inspect Respondent's operation at 1:30 p.m.
Respondent's food service operation was still in operation when the inspectors arrived. Although many students had left the festival, there continued to be people milling around the grounds. Respondent had prepared food on display for sale. Testimony that Petitioner unfairly targeted Respondent, and not other similarly situated vendors by waiting until Respondent stopped serving food to perform the inspection, is not credible.
One of the inspectors directed Rebecca Darlington to discard the contaminated bags of french-fries. She complied
with this request, telling one of the inspectors that the roaches could have come from Respondent's trailer.
Finding roaches in the cooler was a critical violation of the Food Code. Roaches are an imminent health hazard because they spread disease.
The inspectors also observed raw fish thawing in standing water with a temperature of 78 degrees Fahrenheit. This observation constituted two violations. First, it was a critical violation because bacteria grows in food held at
temperatures warmer than 41 degrees Fahrenheit. Second, thawing fish in standing water is an improper thawing procedure.
Fish may be thawed in a refrigerator. Completely submerged fish also may be thawed in flowing water if not allowed to register more than 41 degrees Fahrenheit for more than four hours. If a vendor does not have access to a tank to collect the gray water flowing over the fish, the vendor should thaw the fish using an alternate appropriate method.
The City of Jacksonville has rules that prohibit vendors from spilling, dumping, or running gray water on the ground during any food service event. Gray water is water in which frozen foods are thawed. It is a health hazard for gray water to run on the ground.
Petitioner's inspector John Phelan issued Respondent a Stop Sale Order, referencing control number 2612694, due to the
live roaches in the cooler with the bags of french-fries which were contaminated with insecticide.
The order states the owner of the operation was Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, located at 225 Tallyrand Avenue, Jacksonville, Florida. Rebecca Darlington signed the order, acknowledging its receipt.
John Phelan also issued a food service inspection report on May 4, 2006. The report states that the owner was Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, located at 225 Tallyrand Avenue, Jacksonville, Florida 32202. The report referenced control number 2612694.
The May 4, 2006, inspection report cited Respondent with seven violations, some of which were violations of critical concern. The critical violations included the following: (a) raw fish at 78 degrees Fahrenheit; (b) 20 to 30 live roaches crawling on bags of french-fries in chest freezer; (c) empty chest freezer with approximately 50 live roaches inside; (d) and five cases of french-fries in bags sprayed with insect spray while in freezer.
Rebecca Darlington signed the May 4, 2006, food inspection report as Respondent's owner.
Sometime during the inspection, John Phelan spoke to Louis Stuart, Jr., on the telephone. Louis Stuart, Jr. wanted to know why Respondent was being shut down. Louis Stuart, Jr.,
denied that the roaches could have originated in his trailer because all of his trailers are fumigated after every operation.
A representative of the event sponsor, the City of Jacksonville, was present during the inspection. The City of Jacksonville requested that Respondent leave the premises and not return for the duration of the event.
Petitioner never accepted Respondent's application and application fee for the special temporary food service license. Petitioner never issued Respondent the special license.
Respondent's booth was located in the area of the park reserved for vendors serving food typical of the United States of America. During the hearing, Respondent presented testimony that the roaches may have invaded its booth from a dumpster and/or trash compactor located on the other side of a fence behind Respondent's operations. The greater weight of the evidence indicates that there was no dumpster or trash compactor at that location.
Instead, there was a sealed grease receptacle and a grey water tank on the other side of the fence. In front of the grease receptacle and the grey water tank was a booth for another country facing the opposite direction.
As of August 16, 2006, Petitioner's official records indicate that the address for Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, License No. 2612694, is 225 Talleyrand
Avenue, Jacksonville, Florida 32202. The contact person is listed as Rebecca Darlington.
On August 30, 2006, Rebecca Darlington filed an application for registration of fictitious name with the Florida Secretary of State. The fictitious name was JAX Beach Seafood, with a mailing address at 203 Oceanfront, Neptune Beach, Florida 32266. The application states that Rebecca Darlington, at the same address, would be the owner of the fictitious name. The Florida Secretary of State granted the request, issuing Registration No. GO6242700034 for the name.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).
Petitioner has the burden of proving by clear and convincing evidence that Respondent violated three provisions of the Food Code. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and
Company, 670 So. 2d 932, (Fla. 1996).
One of Petitioner's most important statutory duties pursuant to Chapter 509, Florida Statutes (2005), is to protect the public from any food or food product that represents a threat to the public's safety or welfare. The purpose of
Petitioner's food service inspections of temporary food vendors is not to police or punish the vendors but to ensure that violations of the Food Code do not result in food-borne illness.
Under Section 509.032(6), Florida Statutes (2005), Petitioner has authority to adopt rules to carry out its statutory duties.
Chapter 61C, Florida Administrative Code, incorporates the Food Code, published as the Recommendations of the United States Public Health Service, Food and Drug Administration.
Section 3-501.16(A), Food Code, states as follows in pertinent part:
Except during preparation, cooking, or cooling, or when time is used as the public health control . . . POTENTIALLY HAZARDOUS FOOD shall be maintained:
* * *
(2) At a temperature specified in the following:
(a) 5◦C (41◦F) or less . . .
Section 3-501.13, Food Code, states as follows in relevant part:
Except as specified in ¶ (D) of this section, POTENTIALLY HAZARDOUS FOOD shall be thawed:
Under refrigeration that maintains the FOOD temperature at 5◦C (41◦F) or less .
. .
Completely submerged under running water:
At a water temperature of 21◦C (41◦F) or below,
With sufficient water velocity to agitate and float off loose particles in an overflow, and
* * *
(4) For a period of time that does not allow thawed portions of a raw animal FOOD requiring cooking . . . to be above 5◦C (41◦F) . . . for more than 4 hours including:
(a) The time that the FOOD is exposed to the running water and the time needed for preparation for cooking . . .
Section 6-501.111, Food Code, states as follows:
The presence of insects, rodents, and other pest shall be controlled to minimize their presence on the PREMISES by:
Routinely inspecting incoming shipments of FOOD and supplies;
Routinely inspecting the PREMISES for evidence of pests;
Using methods, if pest are found, such as trapping devices or other means of pest control as specified under §§7-202.12, 7-206.12, and 7-206.13; and
Eliminating harborage conditions.
In this case, clear and convincing evidence indicates that Respondent violated the above-referenced sections of the Food Code. The temperature of Respondent's fish was in violation of Section 3-501.16(A), Food Code. Respondent used an improper method to thaw the fish in violation of Section 3- 501.13, Food Code. The level of roach infestation and the use of an insect spray on bags of french-fries in the cooler shows that Respondent violated Section 6-501.111, Food Code.
There is no persuasive evidence that Petitioner unfairly targeted Respondent when it gave the inspectors a
special instruction about Respondent's prior critical violations. Additionally, Petitioner's inspectors did not discriminatorily wait until Respondent was packing up to leave on May 4, 2006, to perform the inspection. Respondent was still in operation when the inspectors arrived and observed Rebecca Darlington spraying the roaches in the cooler. In sum, Respondent presented no evidence that Petitioner treated Respondent differently from similarly situated vendors.
Section 509.261(1), Florida Statutes (2005), provides that any public food service establishment that has operated or is operating in violation of Chapter 509, Florida Statutes (2005), or the rules promulgated there under, is subject to fines not to exceed $1,000.00 per offense, to mandatory attendance sponsored by Petitioner's Hospitality Education Program, and to suspension or revocation of a license.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That Petitioner enter a final order, requiring Respondent to pay an administrative penalty in the amount of $3000.00, within 30 calendar days of the date that this Recommended Order is filed with Petitioner's Clerk, and requiring Respondent to
attend an hospitality education program as prescribed by Petitioner.
DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida.
S
SUZANNE F. HOOD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2007.
COPIES FURNISHED:
Jessica Leigh, Esquire Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 42
Tallahassee, Florida 32399-2202
Al Millar, Esquire Al Millar, Attorney 4627 Ocean Street
Mayport, Florida 32233
William Veach, Director
Division of Hotels and Restaurants Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Josefina Tamayo, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
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 should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 20, 2007 | Agency Final Order | |
| Feb. 01, 2007 | Recommended Order | Respondent violated three provisions of the Food Code and should pay an administrative fine in the amount of $3000.00 |
