The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Vingiano Italian Restaurant, d/b/a Sal’s Italian Ristorante, is located at 4801 Linton Boulevard, Delray Beach, Florida. It is a food service establishment and holds license control No. 60-11297R. The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida. At all times material to the allegations of this case, Paige Cook was an inspector employed by the Department. She was responsible for conducting site inspections to assure compliance with all applicable food service rules and regulations. As part of her duties, Ms. Cook received training and is aware of all Department rules and regulations for restaurants. Rules and regulations governing food service establishments have been codified and, in some instances, adopted by reference within the Florida Administrative Code. These rules encompass fire regulations, access, conditions of the premises and food areas, as well as electrical outlets. Ms. Cook inspected the Respondent’s licensed premises on two occasions. The reports of these inspections, identified in this record as Petitioner’s Exhibits 2 and 3, are the subject matter of the instant case. On May 12, 1999, Ms. Cook inspected the Respondent’s licensed premises and identified approximately 13 violations of the rules regulating public food services establishments. The inspection report itemized the violations, included a warning of the seriousness of the problems, and advised Respondent that Ms. Cook would return on May 20, 1999, after 8:00 a.m. to verify that the concerns were corrected. On May 20, 1999, Ms. Cook returned to the Respondent’s place of business and found six of the violations had not been corrected. The violations cited on the second inspection included a fire extinguisher that was not properly charged (a violation of the National Fire Protection Act), a missing electrical outlet cover (also a violation of the fire code), an exit light that was not illuminated at the back door (see Rule 61C-1.004(10), Florida Administrative Code), a hole in a back wall (see Rule 61C-1.004(6), Florida Administrative Code), an unclean interior of the ice machine (a food code violation), and an unclean fan guard in the walk-in cooler (also a food code violation). Subsequently, the Respondent corrected all of the cited violations. The Respondent offered no plausible explanation for the failure to correct the violations prior to the re- inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing an administrative fine in the amount of $2,100.00. DONE AND ENTERED this 28th day of April, 2000, in Tallahassee, Leon County, Florida. J. D. 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 28th day of April, 2000. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Chris Vingiano, President Sal’s Italian Ristorante 4801 Linton Boulevard, Suite 12A Delray Beach, Florida 33445 Dorothy W. Joyce, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Respondent's license number 23-3483H should be suspended or revoked, or a civil penalty assessed for alleged violation of Section 509.221(3)(7)(8), F.S. Rule 7C-1.03(1), (5), and (7) , F.A.C., as set forth in Notice to Show Cause, dated June 5, 1978. Respondent did not appear at the hearing nor did any representative in his behalf. He had received an order of the Hearing Officer continuing the hearing from November 22, 1978 to December 5, 1978 which was issued on November 17, 1978. In a post-hearing letter to the Hearing Officer, dated December 6, 1978, Respondent stated that he knew the hearing was set for December 5 but misfiled the date of hearing, and requested another hearing. He was advised by the Hearing Officer, by letter of December 7, 1978, that such a rehearing would be precluded pursuant to Rule 28-5.25(9), Florida Administrative Code. In view of the fact that Respondent did not appear at the hearing after being properly notified, the hearing was conducted as an uncontested proceeding, pursuant to Rule 28-5.25(5), Florida Administrative Code.
Findings Of Fact Respondent holds license control number 23-3483H issued by Petitioner pursuant to Chapter 509, Florida Statutes, for apartments located at 1040 Lenox Avenue, Miami Beach, Florida. Respondent has been so licensed during the year 1978. (Testimony of Gelber, Exhibit 2) On May 9, 1978, Sidney Gelber, Petitioner's sanitation and maintenance inspector, visited the premises of Respondent's apartments on a routine inspection. The apartments consisted of two separate buildings, one behind the other, each containing four units. Gelber observed broker tiles on the steps at the main entrance to the rear building. He found much trash and debris, including junked auto parts and glass jalousies at the rear of the grounds where the tenants utilized a laundry line and disposed of garbage. In the garbage area, cans were uncovered, dirty, and flies and bugs were observed. He saw a large open vent on the south side of the front building with no screen, and the screen of the rear door of the front building was torn. (Testimony of Gelber) A warning notice which set forth the deficiencies found as a result of the inspection was sent to Respondent which he received on May 15. The notice provided that such minor violations must be corrected by May 19, 1978. On May 23, the inspector revisited the premises and found that Respondent had not complied with the notice by correcting the deficiencies. On June 5, 1978, Petitioner sent Respondent a Notice to Show Cause why disciplinary action should not be taken against him for the cited violations. Respondent thereupon requested a hearing in the matter. (Testimony of Gelber, Exhibit 1) The inspector testified at the hearing that the broken tiles, open vents, debris, and torn screens constituted a hazardous condition. Respondent had received notice of prior similar violations on October 11, 1977, which he subsequently remedied. (Testimony of Gelber)
Recommendation That an administrative fine in the amount of $250.00 be imposed against Respondent for violation of Rule 7C-1.103(1), 7C-1.03(5), and 7C-1.03(7), Florida Administrative Code, under the authority of Section 509.261(2), Florida Statutes. DONE and ENTERED this 21st day of December, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mary Jo Gallay, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Tallahassee, Florida 32304 R. C. Weit 775 NE 79th Street, Suite B Miami, Florida 33138
The Issue The ultimate issue for determination is whether the Respondent committed the violations alleged in the Notice to Show Cause, issued on February 6, 1990, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was doing business at 26712 Southwest 144th Avenue, Naranja, Dade County, Florida, 33032-7404 as Village Diner. The Village Diner was operated under restaurant license number 23- 16870R. Mr. Steven Hoffman, Environmental Health Specialist Supervisor, Dade County Public Health Department ("DCPHD"), is an expert in food hygiene, safety, and fire safety. Mr. Hoffman's qualifications include certification by the Federal Drug Administration as a food inspector and certification by the State of Florida in fire safety and as a food hygiene coordinator. Mr. Hoffman has been employed by the DCPHD in various capacities for approximately 13 years. Mr. Hoffman's employment duties on January 12, 1990, included performing inspections of food service establishments in response to complaints received by the DCPHD. In response to a complaint, Mr. Hoffman conducted an inspection of the Village Diner on January 12, 1990. Mr. Hoffman found conditions comprising 18 alleged rule violations, of which eight are classified by Petitioner as major violations. Potato salad, cole slaw, and corned beef was improperly refrigerated at 60 degrees. 2/ Such food must be refrigerated at 45 degrees in order to avoid growth of dangerous bacteria that can lead to food poisoning. Food was stored on the floor of the walk-in refrigeration box and was not covered. Uncovered food left on the floor is susceptible to contamination by other substances dripping into the uncovered food and by other bacteria. Food utensils were stored in dirty water. Food prepared or served with utensils stored in dirty water may be cross-contaminated with bacteria from food or filth in the dirty water. Bulk containers used to store flour were dirty and needed to be replaced. Food contact surfaces were not clean, including stove grills, fryers, and the interior of refrigerators. The reach-in box contained dried, hardened splashes of meat. Wilted lettuce and other food debris had accumulated on the bottom of the reach-in box over a substantial period. Non-food contact surfaces were not clean, including walls and storage shelves. Walls were covered with accumulated grease and smoke. These conditions increased the probability of cross-contamination from bacteria and attracted vermin. The premises were infested with roaches and mice. Live roaches and droppings from mice were observed in and around the premises. Mouse urine was observed with a black light. Paper in open cans had been nibbled by mice. Roaches cause cross-contamination of food by picking up bacteria on their legs and carrying it to other foods. Mice contaminate food by urinating on it and by transporting fleas and ticks from one food to another. The floor under the cooking equipment was dirty. Walls were encrusted with old grease and dirt. Such conditions attract vermin. Toxic items were not stored properly. Boric acid powder was spread on top of pipes directly above a food service steam table. Respondent used the boric acid powder to control mice and other vermin. Boric acid is poisonous when ingested and is moderately toxic by skin and subcutaneous contact. Pressurized CO-2 tanks were placed beside a stove in the kitchen. An extension cord was improperly used in the kitchen. Lights in the kitchen were not shielded to prevent glass from falling into food in the event that a light bulb either was inadvertently broken or burst during operation. A pit in the rear of the premises contained white, congealed grease and emitted a foul odor. A trench had been designed to direct grease away from the premises and into the pit. The grease pit attracted vermin and contaminated ground water approximately eight feet below the surface. A faucet outside the premises was not equipped with a "backflow preventer". The absence of a "backflow preventer" permits contamination of the city water system from the premises in the event of negative pressure in the city water system. Not all of the garbage cans in the rear of the premises had plastic liners. Trash and debris was collected outside the back door of the premises. Trash and unused equipment was stored in the rear of the premises and in the storage room. The collection of litter and equipment attracts vermin by providing food sources and hiding places. Mr. Hoffman issued a Food Inspection Report at the conclusion of his inspection on January 12, 1990. Respondent was given until January 17, 1990, to correct the major violations noted in Mr. Hoffman's Food Inspection Report, and was advised that a Notice to Show Cause would be issued. The premises were re-inspected by Mr. Hoffman on January 18, 1990, and a Call Back/Re-Inspection Report was issued. Respondent corrected all of the alleged rule violations found on January 12, 1990, except two. Respondent was instructed to provide proper light shields over food surfaces and to clean sides of grills, fryers, and the tops of refrigeration units. A Notice to Show Cause was issued on February 6, 1990, citing the 18 rule violations found to have existed during the inspection conducted by Mr. Hoffman on January 12, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a fine be imposed against Respondent in an amount not to exceed $1,150. In the event that Respondent is unable to pay the fine imposed, it is further recommended that Respondent's license be suspended for a period not to exceed 20 days. RECOMMENDED in Tallahassee, Leon County, Florida, this 21st day of March, 1991. Daniel Manry Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991.
The Issue The issue is whether Respondent Jack Draft House's public food establishment license should be revoked or otherwise penalized based on the facts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent Jack Draft House, was a licensed public food service establishment, license No. 74-046709-R, located at 2400 North Volusia Avenue, Orange City, Florida 32763. Vicky Mayle was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Specialist. On April 10, 2000, Inspector Mayle performed a routine inspection of Respondent's food service establishment and found violations of food service rules and the rules of the Division of Hotels and Restaurants, all of which she marked on her food service inspection report of April 10, 2000. On April 20, 2000, Inspector Mayle performed a Call- Back/Re-Inspection on Jack Draft House and found that Respondent was still in non-compliance for three of the critical violations enumerated on the food service inspection report of April 10, 2000. On April 24, 2000, Inspector Mayle performed a second Call-Back/Re-Inspection of Jack Draft House and observed that Respondent was still in non-compliance for the three critical violations enumerated on the food service inspection report of April 10, 2000. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that the spacer was still missing in the 12-circuit electrical breaker box. Black tape covered the opening for the missing spacer. Further, on April 24, 2000, the parts had not been ordered to repair the electrical breaker box. The empty spacer in the public food service establishment is a critical violation because it would endanger the safety of an employee because if he or she should inadvertently stick a finger into the empty spacer he or she could be electrocuted. The black tape is not a sufficient remedy for the empty spacer located in the electrical breaker box. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that there was still no hot running water at a temperature of 110°F, in the women's restroom, used by the employees. The lack of hot water, at the temperature of 110°F in the women's restroom, which is used by employees is a critical violation in that it endangers the health of the employees and patrons of the public food service establishment. At the hearing Respondent testified. Prior to the inspection, the cleaning people had used up the hot water at approximately 4:30 a.m. to clean the bar. The water was turned off to install the ice maker later in the morning. The hot water heater may not have had ample time to replenish the water supply and re-heat the water to 110°F. Even if the electric water was not turned off to install the ice maker, the water may not have been replenished in the hot water heater. This being true, the hot water heater may not have had ample time to replenish the water supply and re-heat the water to 110°F by 9:00 a.m. However, by the time the facility would have had customers the temperature would have recovered. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that a brown household extension cord was still being used for the freezer and other appliances in the bar. This is a critical violation in that the use of the extension cords in a public food service establishment endangers the health and safety of employees and patrons of the establishment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: Petitioner enter its final order finding Respondent violated the provisions of Chapter 509, Florida Statutes, and its rules, as alleged in the Administrative Complaint, and fining the Respondent $1,000 for electrical safety violations. DONE AND ENTERED this 7th day of February, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 7th day of February, 2001. COPIES FURNISHED: Dorothy J. Trzeciecka, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sidney J. Simmons, Owner Lisa G. Martin, Manager Jack Draft House 2400 North Volusia Avenue Orange City, Florida 32763 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Did Respondent commit the violations set forth in the May 11, 1989, Notice to Show Cause, as amended at hearing? If so, what penalties should be imposed?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Mary C. Demeritt d/b/a Eddie's Drive Inn holds license number 23-02938R issued by the Division of Hotels and Restaurants of the Department of Business Regulation. Eddie's Drive Inn is a food service establishment located in Dade County, Florida. On January 10, 1989, Fernando Williams, an Environmental Health Specialist with the Dade County Health Department, conducted an inspection of Eddie's Drive Inn in the course of the performance of his official duties. At the time of Williams' inspection there were some patrons seated at the counter in the serving area of the establishment. They were being served by a man standing behind the counter. The man's clothes were soiled and emitted an unpleasant odor. Lying on the counter was a dirty cloth that had been used to wipe the counter. It too was soiled and emitted an unpleasant odor. The man behind the counter made no effort to remove it, notwithstanding that it needed to be washed before it could be used again. There was a heavy infestation of cockroaches around the counter, particularly near where a refrigerator was located. In addition, there was a considerable amount of accumulated dust and dirt on the floor in the vicinity of the refrigerator. Litter, in the form of empty bottles and cardboard and wooden boxes, was also on the floor in this area. An electrical outlet in the serving area was uncovered. As a result, wires were exposed and therefore there was an increased risk of injury to those using the outlet. An examination of the ladies rest room revealed that several ceiling tiles were missing. Additionally, sections of the concrete walls in the rest room were unpainted. Where there was no paint, the surface of the walls was rough and therefore difficult to clean. Upon entering the kitchen area of the establishment, Williams observed a three compartment sink. In one of the compartments, there were dirty dishes and small pots immersed in soapy water. The other two compartments were empty. There was no hot or warm running water available to wash, rinse and sanitize these dishes and pans inasmuch as the water heater was in disrepair. The only running water in the establishment had a temperature of approximately 55 to 60 degrees Fahrenheit. Because the three compartment sink did not have a booster heater and there was no utensil rack near the sink, Williams surmised that a chemical method, rather than hot water, was used to sanitize multi-use eating and drinking utensils. Accordingly, he asked one of the kitchen workers to show him the chemical test kit that the establishment used in preparing the sanitizing solution. The worker, however, was unable to produce such a kit. Williams also observed a large stove and a food preparation table in the kitchen. The top and the sides of the stove were dirty. They were littered with the remains of spilled food that had accumulated over time. On the food preparation table, in addition to flour and other food items, were a can of insecticide spray and a dirty wiping cloth that needed to be washed. Williams further noted that clean pots, pans and trays were being stored on the kitchen floor and were thus unprotected from manual contact, splash, dust, dirt, insects and other contaminants. There was also standing water on the kitchen floor. The water had come from the broken water heater that was located in the kitchen. No attempt was made to remove the water during Williams' visit to the establishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of the rule violations alleged in the Notice to Show Cause, as amended, and suspending her license for twenty days for these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of October, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1989.
