The Issue The issue in this case is whether Respondent was operating a public food service establishment without a license, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant hereto, Green was operating a mobile food service vehicle at the corner of Hogan Street and West Union Street (the “Site”) in Jacksonville, Florida. By his own admission, Green did not possess a food service license from the State of Florida. The Division is the state agency responsible for the licensing and regulation of public food service establishments, pursuant to chapter 509, Florida Statutes. On Tuesday, April 1, 2014, food inspector Huckaba was conducting a callback inspection of a restaurant in the downtown Jacksonville, Florida, area. As he was leaving a food service establishment, he noticed a mobile food service establishment (the “Food Trailer”) at the Site. Huckaba observed Mr. Green preparing food--a hotdog--and serving it to a customer; the customer paid for the food with cash. Huckaba noticed there was not a valid food service license posted on the Food Trailer. When asked by Huckaba, Green stated that he did not have such a license. On the next day, April 2, Huckaba and his supervisor, Fielder, revisited the Site for the purpose of determining whether Green had a valid license to operate the Food Trailer and whether the establishment was being operated in accordance with provisions of Florida law and rules. It was again determined that Green did not have a license to operate the Food Trailer. Upon further inspection, Huckaba determined that the following food service violations existed (with corresponding sections from the U.S. Public Health Service/FDA Food Code, a description of the violation, and the level of violation): 08B-38-4 Food stored on the floor--Basic 12A-07-4 Employee failed to wash hands before putting on gloves to work with food--High 28-10-4 Sewage holding tank less than 15% larger in capacity than water supply--Basic 31A-03-4 Handwash sink not accessible for employee due to items stored in sink-- Intermediate 31B-04-4 No handwashing sign provided at sink used by employees--Basic 50-08-4 Operating without a license--High 51-10-4 Interference/obstruction with inspector’s right to entry--Intermediate Huckaba issued a Food Service Inspection Report setting forth his findings. Green did not sign the report but was furnished a copy. The report was assigned “license number” D05- 04-26; and a “rank”--MFDV. D05 is the designation for district 5, i.e., Jacksonville. 04 is inspector Huckaba’s area number. 26 is the designation for Duval County. MFDV stands for mobile food dispensing vehicle. The Division then conducted a search of its data base for the purpose of determining whether a food service license had ever been issued to Clinton Green. No such license was discovered. The Division thereafter issued an Administrative Complaint, precipitating the instant matter. The Administrative Complaint cited Green for operating a food service establishment without a license and for the other enumerated violations set forth above. (No evidence was presented at final hearing as to the issues other than the failure to have a license; the other issues are not addressed further in this Recommended Order.) At the final hearing held in this case, Green readily admitted that he did not hold a license issued by the State of Florida for operating a public food service establishment. Due to that admission, there is no disputed issue of material fact to be considered by the undersigned. However, inasmuch as the hearing was conducted and evidence was taken, it is appropriate to set out Green’s stated justification, rationale, and bases for his actions before applying the law to the undisputed facts. Rationale for not having a license Green says he is a human being and is entitled to provide for his family and work as he sees fit. This is a God- given right, he asserts, that cannot be restricted by man. The State of Florida is the only “entity” which can require Green to have a license. However, Green believes the State is a nebulous, ephemeral “thing” that does not actually exist. He claims the so-called agents of the State are not the State, per se, thus their words have no force or effect. Green issued affidavits to an agent of the State (Steve Budungen, district manager of the Division) in 2008 setting forth his beliefs about licensure, State actions, etc. In the affidavits, Green demanded certain documents and information from Budungen. Inasmuch as Budungen did not respond to his affidavits, Green believes that his statements therein have the force and effect of law and are “the truth.” As support for Green’s position vis-à-vis the affidavits, he cites to Morris v. National Cash Register, 44 S.W.2d 433, 434 (Ct. Civ. App. Tex. 1931). That case, while it does address an affidavit attached to a motion to vacate a judgment, does not stand for the proposition alleged by Green, i.e., that once an affiant makes a statement, it becomes the truth for all purposes. Green’s reading of the law is flawed. Green also asserts that U.S. v. Tweel, 550 F.2d 297 (5th Cir. 1977), stands for the proposition that “Silence can only be equated with fraud when there is a legal and moral duty to speak, or when inquiry left unanswered would be intentionally misleading.” Green did not explain why this proposition was relevant to the facts of the instant case. The Tweel case had to do with the Internal Revenue Service intentionally withholding from the plaintiff’s lawyer the fact that plaintiff was about to undergo a criminal investigation. This intentional deception then lulled plaintiff into a false sense of security and kept him from preparing for his criminal investigation. While Green made a general allegation that the Department had “clearly been intentionally deceptive” concerning its dealings with him, he provided no evidence to support the allegation. Green also seems to suggest that he was “cunningly coerced” into waiving his right to due process, citing U.S. v Minker, 350 U.S. 179 (1956). There is no support in the record to support Green’s allegation of coercion and it is not relevant to the facts of this case. The holding in the Minker case is not dispositive of any issue in the instant matter. Green states that he is not a chattel to be used and abused by the State as it sees fit. Green says that only if the State of Florida (itself) walks up to him and says, “You need to have a license,” will he believe he has to have one. Otherwise, he doesn’t see any requirement to have a license. And since the State is a fictitious person, unable to speak, he says there is no need to have a license. Lastly, Green says that the only way he would be required to have a license to sell food from his vehicle is if he entered into a contract with the State giving the State permission to govern his actions. Besides, he asserts, the Administrative Complaint filed in this matter lists his name in all capital letters. Only corporations, he asserts, are spelled out in all capital letters; he is, conversely, a natural person. Thus, he reasons, the Administrative Complaint is invalid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500 against Respondent, Clinton Green. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 19th day of August, 2014. COPIES FURNISHED: Clinton Green 8117 Colonnade Court, West Jacksonville, Florida 32244 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 J. Yvette Pressley, Hearing Officer Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether on January 26, August 27, and August 28, 2012, Respondent was in compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, and if not, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. St. Johns Seafood and Oyster Bar, Inc., (St. Johns) is a licensed permanent public food service establishment operating at 7546 Beach Boulevard in Jacksonville, Florida. Its license must be renewed annually. Ms. Iliana Espinosa-Beckert has been employed by the Division for about five and a half years. She is a sanitation and safety specialist with the Division. She has had training, including formal initial training, on-the-job training, and monthly in-house training, in sanitation and inspection. She is a certified food manager. On January 26, 2012, Inspector Espinosa-Beckert conducted a food service inspection of St. Johns. Inspector Espinosa-Beckert prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using her personal data assistant (PDA) to record the violations that she observed during the inspection. The manager of the restaurant, Mr. Robert Rukab, acknowledged receipt of the report on behalf of St. Johns. During the January inspection, Ms. Espinosa-Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that shrimp, fish, scallops, oysters, and clams had a temperature of 60 degrees Fahrenheit at the seafood reach-in cooler (seafood cooler), and recorded this on her report. The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015. Ms. Espinosa-Beckert also observed during the January inspection that the seafood cooler was incapable of maintaining potentially hazardous food at proper temperatures. She noted on her report that there was no thermometer installed inside the seafood cooler, but that her measurements indicated that all of the seafood was at a temperature of 60 degrees Fahrenheit. On August 27, 2012, Ms. Espinosa-Beckert conducted another inspection of St. Johns. She again prepared an inspection report on DBPR Form HR 5022-015 using her PDA to record the violations that she observed. Ms. Espinosa-Beckert made Mr. Rukab aware of the violations she found, but Mr. Rukab was upset and refused to acknowledge receipt of the report on behalf of St. Johns. During the August 27, 2012, inspection, Ms. Espinosa- Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that cheese, chicken, and pasta were at 49 degrees Fahrenheit in a reach-in cooler in a food preparation area near the cook line (prep-line cooler), and recorded this on her report, along with a notation that it was a repeat violation. Inspector Espinosa-Beckert testified that this was a true “cold-holding” violation. She stated that her measurements of the temperature of the food were taken after the food had gone through the cooling period that is allowed for food to reach the proper temperature. Ms. Espinosa-Beckert noted in her report that the prep-line cooler was incapable of maintaining potentially hazardous food at proper temperatures. She recorded that the ambient temperature in the prep-line cooler was 46 degrees Fahrenheit and that foods were at a temperature of 49 degrees Fahrenheit, noting that this was a repeat violation. During the August 27, 2012, inspection, Ms. Espinosa- Beckert also observed that St. Johns was operating without a current license, because its license had expired on June 1, 2012. She noted this in her report. Ms. Espinosa-Beckert also observed both live and dead roaches on the premises.1/ She scheduled a call-back inspection for the following day, August 28, 2012. Inspector Espinosa-Beckert prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on August 28, 2012, using her PDA to record the violations that she observed. Mr. Rukab apologized for his refusal to sign the previous day, and acknowledged receipt of the report on behalf of St. Johns. On August 28, 2012, Ms. Espinosa-Beckert observed that the prep-line cooler thermometer now read 35 degrees and that cheese was 39 degrees Fahrenheit and pasta was at 40 degrees, within approved temperature limits. She noted this on the first page of her report. The license had not been renewed since the previous day. The Division served an Administrative Complaint against St. Johns for the above violations on or about September 6, 2012. On both January 26 and August 27, 2012, St. Johns had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit. While evidence was presented that on different dates two individual coolers were incapable of maintaining potentially hazardous food at proper temperatures, there was also evidence that on these occasions there was additional adequately cooled space available which could have been utilized to meet the demands of St. Johns’ operations. At hearing, Ms. Espinosa- Beckert testified as follows: Q: Did he have any other cooler available where he could have moved the food? A: He had the –- yes, he did. He has the other, which is the seafood cooler, which I don’t think they put anything ready- to-eat in that one. But he has a two-door upright cooler also on the opposite side of this one I made a violation, and that was OK also. So he could have moved the food. The evidence did not show that on either January 26, 2012, or August 27, 2012, the cooling equipment available at St. Johns was insufficient in number or capacity to maintain all food at required temperatures. On August 27 and 28, 2012, St. Johns was operating without a license, as its old license had been expired for more than 60 days. Additional evidence introduced at hearing and considered solely for purposes of penalty calculation showed that St. Johns had two previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. The first of these was a Stipulation and Consent Order signed by Mr. Rukab on behalf of St. Johns on March 9, 2011, and filed on March 24, 2011, in Case No. 2011-02147. The Order was in settlement of an Administrative Complaint issued on February 23, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 27, 2010, November 23, 2010, November 24, 2010, and February 8, 2011. Some of the allegations would have constituted critical violations. The second of the previous disciplinary orders was a Final Order on Waiver filed on August 10, 2011. Respondent had been served an Administrative Complaint and Election of Rights on June 1, 2011, but had failed to respond by June 22, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 26, 2011, and May 3, 2011. The Final Order on Waiver imposed a fine of $4,400 for several violations, some of which were critical violations.
Recommendation Upon consideration of the above 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 finding St. Johns Seafood and Oyster Bar, Inc., has committed a critical violation and was operating with a license expired for more than 60 days, and imposing a fine of $1,500, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 9th day of April, 2013.
Findings Of Fact At all times material hereto, the Respondent has been licensed as an ACLF by the Petitioner. During an inspection of Respondent's facility by Loveda Perry, public health nutritionist, on October 29, 1986, Perry observed a large, industrial size can opener which was used during food preparation. The can opener was dirty, and the gears and blade of the opener were filled with food and metal shavings. Perry considered the food to be old since it appeared that the food had built up and caked on the opener. On a revisit to the facility on November 12, 1986, Perry found that the can opener was clean. During an inspection of Respondent's facility on November 9, 1987, Perry again found the can opener was dirty, with built up food deposits and metal shavings on the blade and gears. There was also a build up of old food on the base of the can opener. On a revisit to the facility on March 21, 1988, Perry found that the can opener was clean. Metal shavings and a food build up on a can opener is likely to lead to the build up of bacteria, and can lead to food borne illnesses. According to Respondent's Administrator, it was the policy of the facility to clean the can opener once a week during the time these inspections took place. At the current time, however, employees are instructed to clean the can opener three to five times a day. In order to meet the minimum standards established by the Petitioner for ACLFs, can openers have to be cleaned after each use.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order imposing an administrative penalty against the ACLF license of Respondent in the amount of 325.00. DONE AND ENTERED this 29th day of December, 1988, in Tallahassee, Florida. DONALD D. CONN 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 29th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4755 Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Rulings on the Respondent's Proposed Findings of Fact: The Respondent filed a letter which summarizes testimony resented at hearing. The letter does not present specific proposed rindings of fact, but is generally contrary to Findings of Fact 2 through 5. COPIES FURNISHED: Edward Haman, Esquire Office of Licensure and Certification 7827 North Dale Mabry Tampa, Florida 33614 Delema Rogers, Administrator The Verandah 4301 31st Street South St. Petersburg, Florida 3371 Sam Power, Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue The issues in this matter are whether Respondent was out of compliance with the food safety requirements of chapter 509, Florida Statutes (2016),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509. Respondent is a licensed public food service establishment in Florida and holds License No. 3915849. Respondent operates a restaurant under the name of Los Gorditos No. 2 located at 6110 Causeway Boulevard, Tampa, Florida. Respondent is a family-owned and operated business. The restaurant opened in November 2014. As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division. Ashley Herrmann (“Inspector Herrmann”) is employed by the Division as a Sanitation Safety Specialist. Inspector Herrmann has worked for the Division for approximately two and a half years as an inspector. Upon gaining employment in the Division, Inspector Herrmann was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. She is also a certified food manager and receives continuing education training on a monthly basis. Inspector Herrmann performs approximately 1,000 inspections each year. On November 5, 2015, Inspector Herrmann performed a routine, unannounced food service inspection on Respondent’s restaurant. During the inspection, Inspector Herrmann prepared a Food Service Inspection Report. In her report, Inspector Herrmann recorded her observations of potential violations. Inspector Herrmann noted approximately 39 conditions for which Respondent had failed to comply with applicable rules or statutes. Jaharia Perez signed the Food Service Inspection Report acknowledging receipt on Respondent’s behalf. Inspector Herrmann informed Respondent that it needed to correct the violations by November 12, 2015. On November 13, 2015, Inspector Herrmann performed a callback inspection on Respondent to follow up on her initial inspection. During this inspection, Inspector Herrmann prepared a Callback Report. Inspector Herrmann found that Respondent had corrected 14 of the violations she identified during her November 5, 2015, inspection. However, Respondent had not addressed the 25 other violations. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by December 5, 2015. Mariella Mendoza signed the Callback Report acknowledging receipt on behalf of Respondent. On December 8, 2015, Inspector Herrmann performed a second callback inspection on Respondent to follow up on the November 13, 2015, inspection. During this inspection, Inspector Herrmann prepared a second Callback Report. She noted that Respondent had corrected five more violations recorded in her November 5, 2015, and November 13, 2015, inspections. However, 20 violations still existed. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by January 5, 2016. Jaharia Perez signed the Callback Report acknowledging receipt on Respondent’s behalf. On January 5, 2016, Inspector Herrmann performed a third callback inspection on Respondent. During this inspection, Inspector Herrmann prepared a third Callback Report. On this report, Inspector Herrmann noted that Respondent had fixed at least one more violation identified during her November 5, 2015, November 13, 2015, and December 8, 2015, inspections. However, a number of violations remained uncorrected. Based on Inspector Hermann’s January 5, 2016, Callback Report, the Division cited Respondent with thirteen violations. These violations included: First Violation: Inspector Hermann observed a cutting board with cut marks which made the cutting board no longer cleanable in violation of rule 4-501.12, Food Code (2009).3/ Cutting boards that have cut marks collect food debris which enables bacteria to accumulate leading to food borne illness. The Food Code defines the governing requirement for this violation as a “core item.” The Division designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent, at the final hearing, expressed that it has obtained a new cutting board. Second Violation: Inspector Herrmann observed non-food grade containers being used for food storage in violation of rule 4-101.11, Food Code. Non-food grade containers can contain chemicals that can leak into food products. The Food Code defines the governing requirement for this violation as a priority item.4/ The Division has designated violations of priority items as “high priority violations.” See Fla. Admin. Code R. 61C-1.005(5)(a). Respondent claimed that it ordered and now uses approved food grade containers. Third Violation: Inspector Herrmann observed a build-up of dust, food debris, and grease on hood filters in violation of rule 4- 601.11(C), Food Code. Debris can potentially fall from hood filters or shelving into food items or accumulate on non-food contact surfaces and transfer to clean containers placing the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that in December 2015, it hired a custodial company to clean grease, debris, and soil in its facility every three months. Fourth Violation: Inspector Herrmann observed that Respondent seated more patrons than its septic system permit authorized in violation of rule 5-403.11, Food Code. Respondent’s establishment was approved for 19 seats, but Inspector Herrmann observed the establishment operating with approximately 48 seats on November 5, 2015, November 13, 2015, and December 8, 2015. On January 5, 2016, Respondent operated with approximately 25 seats. Serving more patrons than the septic system can accommodate can result in a failed septic system that can create a sanitary nuisance. The Food Code defines the governing requirement for this violation as a priority item. The Division has designated violations of priority items as “high priority violations. See Fla. Admin. Code R. 61C-1.005(5)(a). Respondent testified that, following the January inspection, it has reduced its seating to approximately 20 seats. Respondent has also initiated a plan to connect to the city water and sewer. This arrangement will allow the restaurant to expand its seating without violating its septic system capacity. Respondent hopes to connect to city water by Christmas 2016. Fifth Violation: a. Inspector Herrmann observed the presence of standing water around the floor drain, which was draining slowly near the cook line and fryers, in violation of rule 5-205.15, Food Code. Standing water in floor drains can potentially back up into the establishment and create a sanitary nuisance or potentially attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Sixth Violation: Inspector Herrmann observed an outside dumpster sitting directly on the ground without a barrier or non-absorbent surface between the dumpster and the ground in violation of rule 5- 501.11, Food Code. Dumpsters without proper pads allow food waste and chemicals to leak into the ground and attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that it is working with Hillsborough County to redesign the area where the dumpster is located to include a concrete space for the dumpster that complies with regulations. The permits have not yet been approved, but Respondent is working towards them. Seventh Violation: Inspector Hermann observed several broken wall tiles under the three compartment sink and damaged cove molding on the front cook line in violation of rule 6-501.11, Food Code. Damage to wall or cove molding can lead to the accumulation of food debris and the growth of bacteria, putting the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent asserted that it repaired all the wall tiles in December 2015. Eighth Violation: Inspector Herrmann observed soil on Respondent’s floor near or along the baseboards in violation of rule 6-501.12(A), Food Code. Bacteria and dirt on the floor can come into contact with food contact surfaces placing the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Similar to its reaction to the Fourth Violation, Respondent hired a custodial company to clean grease, debris, and soil in its facility every three months. Ninth Violation: a. Inspector Hermann observed that lights above a food preparation table were missing a proper light shield or cover in violation of rule 6-202.11, Food Code. Light covers and shields protect food items and preparation surfaces from shattered glass. The Food Code defines the governing requirement for this violation as a “core item.” The Division designates violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Tenth Violation: Inspector Herrmann observed carbon dioxide/helium tanks that were not adequately secured in violation of Florida Administrative Code Rule 61C-1.004(7)(a). Unsecured tanks might topple over and, if breached, can become a missile-like object and a danger to the public’s safety. The Division designated this violation as a “basic violation.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that the tanks are owned by the owner of the building where the restaurant is located and were present when Respondent opened its business. Further, Respondent understands that the tanks are empty. Therefore, the tanks do not pose a danger if the top valve gets knocked off. Eleventh Violation: Inspector Herrmann observed that Respondent had recently constructed a bar inside the restaurant. Respondent did not submit a plan for the bar to the Division for approval in violation of rule 61C-1.002(5)(c)1. Inspector Herrmann contacted the Division’s Plan Review Office and confirmed that Respondent had not submitted a properly prepared facility plan and specification for review. The Division must approve remodeled or newly constructed public food service establishments to ensure compliance with sanitation and safety requirements. The Division designated this violation as an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent explained that it requested and received approval from the Hillsborough County Fire Department to construct the bar. However, Respondent was not aware that it also needed to submit a plan review to the Division. Consequently, it did not seek approval from the Division. Twelfth Violation: Inspector Herrmann observed Respondent operating with four or more employees engaging in food preparation and/or handling without a certified food protection manager on duty in violation of Florida Administrative Code Rule 61C-4.023(1). At least one certified food protection manager must be present at all times when four or more employees are engaged in the storage, preparation, or serving of food to ensure the establishment is operating with acceptable sanitary practices. The Division designated this violation an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent expressed that it always operates under the supervision of certified food protection managers and believes that a food manager was present during the times of the inspections. Respondent offered that the inspections were accomplished in a short timespan (20 minutes). This short time period, combined with the fact that Spanish is the primary language of many of Respondent’s employees, may have led to a misunderstanding over whether a certified food manager was present during the inspections. At the final hearing, Respondent testified and produced evidence that Respondent currently employs approximately nine certified food managers. Respondent further represented that the two individuals who signed the inspection reports on Respondent’s behalf were also certified food protection managers. Thirteenth Violation: a. Respondent failed to provide Inspector Herrmann with proof of its employees' required state-approved employee training upon request in violation of section 509.049(5). Employees of public food service establishments are required to have basic food safety training which imparts knowledge of basic food handling skills. Lack of this knowledge can result in a breakdown of the food handling process, possibly leading to food borne illness or unsanitary conditions. The Division designated this violation as an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent has one prior disciplinary Final Order filed with the Agency Clerk for the Department of Business and Professional Regulation within the 24 months preceding the administrative complaint in this matter. The Final Order in Case No. 2015-014633 was filed on October 6, 2015. Based on the evidence and testimony presented at the final hearing, the Division demonstrated, by clear and convincing evidence, that Respondent was out of compliance with applicable food safety requirements of the Food Code, Florida Statutes, and the implementing administrative rules of the Division. The Division established that on or about November 5, 2015, November 13, 2015, December 8, 2015, and January 5, 2016, Respondent committed the following violations listed above: the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and thirteenth violations. The Division did not establish, by clear and convincing evidence, the tenth and twelfth violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent, Benitel Eddie Joel Perez, d/b/a Los Gorditos No. 2, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $3,500 for the violations identified above, due and payable to the Division within thirty (30) calendar days of the date the final order is filed with the Agency Clerk. DONE AND ENTERED this 29th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of June, 2016.
Findings Of Fact Dunya Safford is a resident of Gadsden County, Florida. The parties have stipulated that he was admitted to the Tallahassee Memorial Hospital on December 30, 1977, in an emergency medical condition, and that the treatment performed by the hospital was of an emergency nature. The parties have further stipulated that the Tallahassee Memorial Hospital is a regional referral hospital within the meaning of 154.304(4), Florida Statutes (1977). Dunya Safford, then less than one year old, was admitted to the hospital on December 30, 1977 and discharged on January 4, 1978. Dunya is the child of David and Carrie Safford. The total bill for services rendered by the hospital was $1,816.30. The hospital submitted a bill to Gadsden County in the amount of $633.95 for the services. This latter amount is the portion of the bill which can be billed to the county of residence in accordance with the Florida Health Care Responsibility Act. Gadsden County has refused to pay the bill, contending that the patient was not indigent. The patient has not paid the bill. The patient's parents have a total of eight children. One of the children married and moved out of the household prior to the patient's hospitalization. Another of the children is Mrs. Safford's child, but not Mr. Safford's child, although Mr. Safford has taken responsibility for complete support of the child. During the six months prior to the hospitalization, Mrs. Safford had no income. Mr. Safford had approximate average weekly income of $95 in his employment as an agricultural worker. The Saffords were, during that period, food stamp recipients. They received $2,552 in food stamps, and paid $669 for them. They thus received net food stamp benefits of $2,178, or an average of $363 per month.
