The Issue The issues in this case are whether Respondent violated Florida Administrative Code Rules 61C-1.004(6) and (10) and 61C-3.001(7): by failing to maintain a path of egress unobstructed; by failing to maintain the plumbing system in good repair; by failing to maintain all building structural components, attachments, and fixtures in good repair and clean and free of obstructions; and, if so, what penalties, if any, should be imposed pursuant to Section 509.261(1), Florida Statutes (2001). (All chapter and section references are to Florida Statutes (2001) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating and inspecting public food service establishments defined in Section 509.013(5). Respondent is a public food service establishment located at 3409 Prudence Drive, Sarasota, Florida 34235 (the "licensed premises"). Petitioner conducted follow-up inspections of the licensed premises on: November 12 and 19, 1999, August 3 and September 8, 2000; and February 8, 2001. Each inspection revealed several failures to correct deficiencies in the initial inspections. Respondent failed to correct blocked exits in the licensed premises. A chair at the rear exit blocked egress from the second level to the ground. A cabinet in the hallway for the air conditioning unit blocked the pathway to the top of the stairs. Blocked exits are critical violations because exits are essential to life safety. Water leaked from the hand sink. Leaking water can precipitate mold, wood rot, and building repair. Ceiling tiles were missing in the hallway. Ceiling tiles are components of fire safety and must be maintained in good repair. The side unit of the hall was soiled with cobwebs and dust. An accumulation of the personal belongings obstructed ingress and egress. The yard outside the licensed premises was littered with cans, bottles, bedding, bed frames, and a battery from an automobile. The accumulation of personal belongings is a fire hazard. Respondent failed to keep the licensed premises and surrounding areas clean and in good condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Rules 61C-1.004(6) and (10) and 61C-3.001(7) and imposing a fine of $1,400. DONE AND ENTERED this 8th day of January, 2002, in Tallahassee, Leon County, Florida. ______________________________ DANIEL MANRY 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 8th day of January, 2002. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Diffley, President Palm Hotel, Inc. 3409 Prudence Drive Sarasota, Florida 34235
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. At all times material to the allegations of the Administrative Complaint, Respondent was not licensed, nor has ever been licensed, by the Division. Julianne Browning is a senior sanitation and safety specialist employed by the Division and has worked for the Division as an inspector for over 15 years. Ms. Browning has a bachelor's degree in hotel and restaurant management. She also has work experience in the hotel and restaurant industry and received training in laws and rules regarding public food service and lodging, as well as fire safety and hazard analysis. On May 19, 2006, Ms. Browning saw Respondent operating a barbeque unit in front of a gas station located Cross City, Florida. The type of barbeque unit was a long, black cylindrical unit on a trailer designed to pull behind a vehicle. She stopped, made an inspection, and issued an inspection report. She reviewed the report with Mr. Walker at the time she issued it. During the March 19, 2006 inspection, Ms. Browning observed several violations. The primary violation is that Mr. Walker was operating his barbeque unit without a license. In addition to finding that Mr. Walker was operating a food service establishment without a license, Ms. Browning found the following violations: certain foods were not kept at their required temperatures; certain foods had been prepared at Respondent's home; the barbeque grill was portable with no floor, walls, or ceiling; there were no hand-washing facilities; there was no facility to wash, rinse, and sanitize utensils; there was no portable fire extinguisher; and Respondent had not submitted a plan review prior to operation. Neither Respondent, Mr. Walker, nor his wife, contested what was found by Ms. Browning. However, they explained that they were simply attempting to sell barbeque as a fundraiser to send their daughter on a trip to Washington, D.C. Had he known that a license was required, Mr. Walker would not have undertaken this method of fundraising. Neither Mr. nor Mrs. Walker was attempting to operate a business. Mr. and Mrs. Walker's testimony in this regard is accepted as credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order which confirms the violations found and imposes an administrative penalty in the amount of $100, to be paid within 30 days of the issuance of the Agency's Final Order. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 25th day of January, 2007. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Jennifer L. Condon, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Larry Walker Post Office Box 1811 Cross City, Florida 32628 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I hereby make the following findings of fact: On February 27, 1984, the premises operated by Tony's Sea, Inc., were inspected by two inspectors of the Department of Agriculture and Consumer Services. On that date the inspectors observed, among other things, four boxes of frozen lobster tails which had been processed and packed by Tony's Sea, Inc. The four boxes of frozen lobster tails which came to the attention of the inspectors were sealed and labeled. The label on each box stated that the net weight of the contents was ten pounds. None of the labels contained the name of a dealer or responsible firm, nor did the name of a dealer or responsible firm appear elsewhere on the boxes. The inspectors removed the ice from the frozen lobster tails in each of the four subject boxes and weighed the lobster tails without ice. The net weight of the frozen lobster tails was approximately six pounds per box. The Administrative Complaint served on the Respondent contained the following opening paragraph: You are hereby notified that the Florida Department of Agriculture and Consumer Services intends to take disciplinary sanction authorized by Section 500.121, F.S., and seeks to impose an administrative fine of $1,000 for violation of certain laws of the state applicable to food processors and certain rules of the department.
Recommendation On the basis of all of the foregoing it is recommended that the Department of Agriculture and Consumer Services enter a Final Order ordering the Respondent, Tony's Sea, Inc., to pay an administrative fine in the amount of $1,000.00, such fine to be paid within 15 days of the issuance of the Final Order. DONE and ORDERED this 10th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Mr. Antonio Martinez-Malo President, Tony's Sea, Inc., 7716 N.W. 76 Avenue Medley, Florida 33166 Frank A. Graham, Jr., Esquire Resident Counsel Department of Agriculture and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301 Honorable Doyle A. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of alleged sanitary violations described in an administrative complaint.
Findings Of Fact At all times material to this case, the Respondent has been licensed as a permanent food service facility, having been issued license number 2318478. The Respondent's last known business address is 9796 S.W. 24th Street, Miami, Florida 33165. On March 17, 2004, the Respondent's licensed premises were inspected by Pedro Ynigo, an inspector employed by the Division of Hotels and Restaurants. During the course of his inspection on March 17, 2004, Inspector Ynigo observed more than thirty fresh mice droppings on the shelves of the second floor storage room. Rodent droppings (including mice droppings) are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division of Hotels and Restaurants at Florida Administrative Code Chapter 61C. Food Code Rule 6-501.111 requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered in this case imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 2nd day of February, 2005. COPIES FURNISHED: Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Ms. Madelaine Galindo Odnilag Incorporated 9796 Southwest 24 Street Miami, Florida 33165
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330422. Respondent’s license authorizes Respondent to operate a public food service establishment known as Emily’s Restaurant No. 2 at 16 West Flagler Street, Miami, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location (the subject restaurant).2 At all times material hereto, Leonardo Hernandez was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Hernandez’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Violations are classified as either critical or non-critical. A critical violation is one that represents an imminent threat to the general public. A non- critical violation is a violation that does not rise to the level of a critical violation. On April 18, 2006, Mr. Hernandez inspected the subject restaurant. Based on that inspection, Mr. Hernandez prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on April 18, 2006, Mr. Hernandez discussed his findings with the owner of the restaurant. Mr. Hernandez found that critical and non-critical violations existed and ordered the owner to correct the violations. On May 22, 2006, Mr. Hernandez conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the violations he had ordered corrected had been corrected. Petitioner proved that the following violations existed at the subject restaurant at the time of the initial inspection on April 18 and at the time of the follow-up inspection on May 22, 2006. PARAGRAPH 1 Section 3-302.11(1)(a) of the Food Code requires that raw meat be stored so that it will not contaminate ready-to-eat food. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had stored raw meat above ready-to-eat food in violation of the cited Section of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because of the manner in which Respondent stored the raw meat could have resulted in the contamination of the ready-to-eat food. PARAGRAPH 2 Section 5-202.12(A) and (B) of the Food Code requires that a hand-washing sink utilized by employees have hot water of at least 38°C (100°F). On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had no hot water at the hand-washing sink utilized by Respondent’s employees. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because it pertains to basic sanitation. PARAGRAPH 3 Section 11.4.2 of the National Fire Protection Association requires restaurants to keep oven hoods clean so as to prevent the build-up of greasy or oily sludge. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to clean the oven hood and that greasy or oily sludge had built-up on the oven hood. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. Mr. Hernandez testified that this was a non-critical violation. PARAGRAPH 4 Section 4-204.112 of the Food Code requires that food storage units have a thermometer to measure ambient temperature and requires that the thermometer be located so that it is easily viewable. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent did not have a thermometer in a refrigerated food storage unit. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because of the possible danger to the public that might result from the storage of food at the wrong temperature. PARAGRAPH 5 Section 4-903.11(b) of the Food Code requires that clean equipment and utensils be stored so that they are either inverted or covered. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to store glasses, cups, utensils, pots, and pans in compliance with Section 4-903.11(b) of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because it pertains to basic sanitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1 through 5 of the Administrative Complaint and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $1000.00 for the paragraph 2 violation; $500.00 for the paragraph 3 violation; $1,000.00 for the paragraph 4 violation; and $500.00 for the paragraph 5 violation. In addition, the final order should require Respondent’s owner to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 8th day of November, 2006.
The Issue The issues are whether Respondent offered for sale adulterated or misbranded food in violation of Subsections 500.04(1) and (2) and 500.10(1)(f), Florida Statutes (2007),1 and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating food establishments in the state. Respondent operates a business that sells mostly pre-packaged food products at retail but also provides ancillary food service. The food service operation is a “deli” that prepares ready-to-eat food products in individual portions for consumption on the premises, including sandwiches, coffee, and ice cream. A sanitation and safety specialist (Specialist) for Petitioner performed a routine inspection of the business on February 28, 2008. Numerous food safety violations existed. Ice held for sale had not been tested for safety. An open mayonnaise container was stored at room temperature. Meat used for the preparation of sandwiches was not documented as to how long it had been open. No test strips were available for the chlorine sanitizer. Ready-to-eat food items in the freezer were not labeled with the preparation date. Fish was not labeled with the product name, ingredients, and distributor. Batteries and soap were stored above food items on retail shelves. The Specialist removed the ice machine until the required test for fecal coliforms was performed; the results of which subsequently proved to be negative. The Specialist required Respondent to label all packaged food items with the product name, ingredients, weight, and distributor. The Specialist informed Respondent that she had assigned a poor rating to the premises and would return for a re-inspection, which the Specialist performed on March 17, 2008. Open meat in the deli area remained unmarked as to how long it had been open. A cooker contained rice at 77 degrees rather than the required 135 degrees. Cooked food items in the refrigerator behind the meat cooler remained undated and unlabeled. Food items in the freezer continued to be unlabeled with the product name, ingredients, weight, and distributor. Eggs, milk, and yogurt were stored in a retail cooler at 50 degrees rather than the required 41 degrees. Insect spray and liquid air fresheners were stored above single service paper towels. The Specialist notified Respondent that she rated the premises as poor and would return for another re-inspection, which the Specialist performed on March 31, 2008. Respondent had corrected the previous violations by March 31, 2008. The Specialist returned on April 1, 2008, with her supervisor. Mustard was stored in the deli at 80 degrees rather than the required 41 degrees. Open foods and meat in the self- service coolers in the deli were not documented as to how long they had been open. Food was being stored in the refrigerator behind the meat cases at 61 degrees rather than the required 41 degrees. Food items stored in the refrigerator in the back of the premises were not documented as to how long they had been open, and meat products stored in the self-service area were not labeled. Frozen food in the top of a refrigerator was thawed. A can of gasoline was stored in the mop sink. Petitioner proposes a fine of $3,100.00. A fine of $3,100.00 is reasonable under the circumstances. Petitioner has not promulgated a rule prescribing aggravating and mitigating circumstances for an administrative fine. However, Petitioner presented relevant expert testimony that was credible and persuasive. Respondent committed numerous and egregious food safety violations. A significant number of the violations were critical violations and presented a significant risk to food safety and public health. Respondent prepared, produced, and packed or held food in a manner that exposed the food to contamination and that presented other unwholesome conditions that are injurious to health. The record includes no evidence of actual harm to the public. Respondent has no prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in the Administrative Complaint and imposing a fine of $3,100.00. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.
The Issue The basic issue is whether the fines were properly assessed. This issue is determined by a consideration of whether the shipments in question were traveling in interstate or intrastate commerce. A secondary issue is which party has the burden of proof.
Findings Of Fact Yowell Transportation Services, Inc. is a company based in Dayton, Ohio, and doing business in Florida. It maintains an office in Melbourne, Florida. William Cantillon is the General Manager in the Melbourne office. Yowell has authority granted by the Interstate Commerce Commission to operate as a contract carrier, by motor vehicle, in interstate or foreign commerce. The State of Ohio is not a member of the International Registration Plan (IRP) which permits commercial vehicle operation in member states. Commercial vehicles from non-member states are required to have Florida registration for intrastate operations. Ohio and Florida have a reciprocity agreement only for interstate movement of commerce. In mid July 1987, William Cantillon was contacted regarding a shipment of 1,000 drums of frozen apple juice concentrate originating in Buenos Aires, Argentina. Yowell was hired to transport the shipment from Port Canaveral to Bradenton, where it was to be processed by Tropicana into reconstituted apple juice. The cargo was discharged from the vessel on July 23, 1987, and was placed in a freezer owned by Mid-Florida Freezer Warehouses, Ltd., in Cape Canaveral. An international bill of lading was not obtained because the cargo cleared customs in Port Canaveral. On July 29, 1987, a Yowell truck transporting part of the concentrate was stopped by a DOT Motor Carrier Compliance Officer at the Plant City scales on Interstate 4. The officer weighed the vehicle and checked the registration and bill of lading. The vehicle was registered in the State of Ohio and the bill of lading reflected movement between Cape Canaveral, Florida and Bradenton, Florida. The officer issued a load report and field receipt reflecting a fine of $2,104.00 for non-registered overweight. The fine was paid and the truck was released the same day. On August 11, 1987, another Yowell vehicle carrying frozen concentrate was detained by a DOT Motor Carrier Compliance Officer at the Plant City scales. The vehicle was registered in Ohio and not in Florida. The vehicle was weighed and the bills of lading were examined. There was a bill of lading from Mid- Florida Freezer and another from Yowell. Both showed the shipping point as Cape Canaveral, Florida and the destination as Bradenton, Florida. The Yowell bill of lading described the commodity as apple juice, originating in Argentina, arriving in the U.S. on 7/22/87, on the vessel Betty B. The officer issued a load report and field receipt imposing a $1,796 fine for non-registered overweight. The fine was paid the same date. In both instances, based on the documentation produced by the Yowell drivers, DOT considered the shipments to be in intrastate commerce. If there had been an international bill of lading, the shipments would not have been questioned by the officers. William Cantillon's contact regarding his company's services was with the Florida agent for the Argentine company that produced the apple juice. The only evidence presented by Yowell regarding the juice sales transaction is a photocopy of a statement dated November 23, 1987, on Jucoman S. A. letterhead, addressed to Camerican International, Inc., 480 Alfred Avenue, Teaneck, N.J., 07666, USA: This is to certify that 1000 drums of apple juice concentrate were packed and shipped by us to Bradenton, Florida on the merchant vessel Betty B sailing June 22, 1987 from Buenos Aires, Argentina. The signature is illegible. No person from Jucoman or from Camerican International testified to explain this statement.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a final order be entered finding that Yowell failed to prove entitlement to an exemption and that the fines levied were proper. DONE and RECOMMENDED this 8th day of July, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1988. COPIES FURNISHED: William H. Cantillon General Manager Yowell Transportation Services, Inc. 7830 Ellis Road Melbourne, Florida 32904 V. L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Kaye N. Henderson, P. E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, M.S. 58 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
