The Issue The issue for determination is whether Petitioner should receive her lottery prize winnings of $2,500.
Findings Of Fact On June 17, 1996, Gussie Mae Dempson (Ms. Dempson) won a lottery prize in the amount of $2,500. By letter dated June 18, 1996, the Department of Health and Rehabilitative Services, now the Department of Children and Family Services (Children and Family Services) notified the Department of the Lottery (Lottery) that, among other things, Ms. Dempson was indebted to Children and Family Services in the amount of $4,622, as of June 18, 1996. Due to being notified of the debt owed by Ms. Dempson to Children and Family Services, the Lottery forwarded Ms. Dempson's lottery prize winnings to the Department of Banking and Finance, Office of the Comptroller (Banking and Finance). By letter dated July 5, 1996, the Banking and Finance notified Ms. Dempson that, among other things, her entire lottery prize winnings were being withheld due to the debt owed by her to Children and Family Services and that all of the winnings would be applied to the debt. The debt owed by Ms. Dempson to Children and Family Services originates from two accounts for Aid to Families with Dependent Children (AFDC) and two accounts for Food Stamps. AFDC Account No. 31-01057-52 Ms. Dempson was determined eligible for AFDC by Children and Family Services on AFDC Account No. 31-01057-52. She received AFDC for numerous months, including the months of October 1976, December 1976, February 1997 through July 1997, and January 1978, being issued allotments ranging from $119 to $88 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $753. For October 1976, Ms. Dempson received $119, but was eligible for $0, resulting in an over-issuance of $119. For December 1976, Ms. Dempson received $88, but was eligible for $78, resulting in an over-issuance of $10. For February, March, April, and May 1977, Ms. Dempson received $88 per month, but was eligible for $0, resulting in an over-issuance of $88 per month or $352. For July 1977, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92. For January 1978, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92. Ms. Dempson was notified of the overpayment, her right to dispute the overpayment, and her responsibility for the overpayment. She made repayments to Children and Family Services from February 8, 1980 through April 20, 1981. Ms. Dempson's debt to Children and Family Services on this account was reduced to $333. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $753 in AFDC. AFDC Account No. 31-01057-53 Ms. Dempson was subsequently determined eligible to receive AFDC by Children and Family Services on AFDC Account No. 31-01057-53 for numerous months, including the months of April 1992 through December 1992. She received allotments of $180 per month from April through November, and two allotments in December for $95 and $180. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,715. For the months of March 1992 through November 1992, Ms. Dempson received $1,620, but was eligible for $0, resulting in an over-issuance of $1,620. In December 1992, Ms. Dempson received $275, but was eligible for $180, resulting in an over- issuance of $95. As a result, Ms. Dempson's total over-issuance for March 1992 through December 1992 was $1,715. By letter dated January 28, 1994, Children and Family Services notified Ms. Dempson, among other things, of the overpayment, her right to dispute the overpayment, and her responsibility of repayment. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services. By a second letter dated April 4, 1994, Children and Family Services notified Ms. Dempson, among other things, of the overpayment and of the overpayment being a debt for which she was responsible for paying. The letter was mailed to the same address as the first letter in that no change in address had been provided to Children and Family Services by Ms. Dempson. Again, no response was received. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,715 in AFDC. Since the notification letters, Children and Family Services has recouped some of the debt from subsequent AFDC checks to Ms. Dempson. Ms. Dempson does not recall receiving and endorsing the AFDC checks for the months of March 1992 through December 1992, and, therefore, denies receiving and endorsing the checks. The evidence is sufficient to support a finding and a finding is made that Ms. Dempson received and endorsed the checks.2 Food Stamp Account No. 31-01057-42 Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057- She received Food Stamps for numerous months, including the months of February 1991 through June 1991, November 1991 through January 1992, and October 1992 through December 1992. She received allotments ranging from $143 to $221 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $1,278. Two separate instances of over-issuance had occurred on this account. One instance resulted in an over-issuance of $935 for the months of February 1991 through June 1991, as well as the months of November 1991 through January 1992. Another instance resulted in an over-issuance of $343 for the months of October 1992 through December 1992. For February 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $90, resulting in an over-issuance of $111. For March 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118. For April 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $118, resulting in an over-issuance of $83. For May 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $32, resulting in an over-issuance of $169. For June 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118. For November 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $77, resulting in an over-issuance of $144. For December 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $136, resulting in an over-issuance of $85. For January 1992, Ms. Dempson received $213 in Food Stamps, but was eligible for $106, resulting in an over-issuance of $107. For October 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $0, resulting in an over-issuance of $143. For November 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $33, resulting in an over-issuance of $110. For December 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $53, resulting in an over-issuance of $90. Ms. Dempson was notified of the over-issuance, her right to dispute the over-issuance, and her responsibility for repayment. Through automatic deductions in her Food Stamps, Ms. Dempson has been repaying the over-issuance since March 1994. The automatic deduction began at $11 a month in her Food Stamp allotment until June 1994 when the deduction became and is currently $10 a month. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,278 in Food Stamps. Food Stamp Account No. 31-01057-43 Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057- She received Food Stamps for numerous months, including the months of August 1992, October 1992 through December 1992, and January 1993 through June 1993, being issued allotments ranging from $203 to $292 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,692. For August 1992, Ms. Dempson received $240 in Food Stamps, but was eligible for $0, resulting in an over-issuance of $240. For October 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For November 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For December 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For January 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $149, resulting in an over-issuance of $143. For February 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $97, resulting in an over-issuance of $195. For March 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $109, resulting in an over-issuance of $183. For April 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193. For May 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193. For June 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $15, resulting in an over-issuance of $188. By letter dated March 11, 1994, Children and Family Services notified Ms. Dempson, among other things, of the over- issuance, her right to dispute the over-issuance, and her responsibility for repayment of the over-issuance. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,692 in Food Stamps. Outstanding Debt As of the date of the hearing, August 15, 1997, the total amount of the debt owed by Ms. Dempson to Children and Family Services was $4,473, representing AFDC Account No. 31- 01057-52 at $333, AFDC Account No. 31-01057-53 at $1,583, Food Stamp Account No. 31-01057-42 at $865, and Food Stamp Account No. 31-01057-43 at $1,692.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance, Office of the Comptroller enter a final order providing for payment to the Department of Children and Family Services of the lottery prize winnings of $2,500 claimed by Gussie Mae Dempson. DONE AND ENTERED this 26th day of November, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1997.
The Issue The issues in the case are whether the allegations set forth in an Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Town and Country Skate World (Respondent) are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes (2011). At all times material to this case, the Respondent was a restaurant operating at 7510 Paula Drive, Tampa, Florida, 33615, and holding food service license number 3203942. On May 6, 2010, Rich Decker (Mr. Decker), employed by the Petitioner as a senior sanitation and safety specialist, performed a routine inspection (May 6 inspection) of the Respondent and observed conditions that violated certain provisions of the Food Code. Food Code violations are classified as "critical" or "non-critical." A critical violation of the Food Code is one that poses a significant threat to the public health, safety, or welfare and is a risk factor for food-borne illness. A non- critical violation of the Food Code is one that does not meet the definition of a critical violation. At the conclusion of the May 6 inspection, Mr. Decker noted the observed violations in an inspection report. A manager for the Respondent was present during the inspection. The manager signed the inspection report and received a copy of the report at that time. According to the inspection report, a follow-up "callback" inspection was scheduled to occur on July 6, 2010, prior to which critical violations were to have been corrected. On July 21, 2010, Kathy Dorsey (Ms. Dorsey), employed by the Petitioner as a senior sanitation and safety specialist, performed the callback inspection (July 21 callback inspection) and observed some of the same Food Code violations noted on the May 6 inspection report. At the conclusion of the July 21 callback inspection, Ms. Dorsey noted the observed violations in an inspection report. An employee of the Respondent present at the time of the inspection signed and received a copy of the callback inspection report. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. Pursuant to state regulations, the Respondent was required to have designated a certified food protection manager responsible for the operation of food service. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the designated food protection manager's certification had expired and that the Respondent was operating without a properly-certified food protection manager. This was a critical violation of the Food Code, because the lack of a properly-certified food protection manager presents a significant threat to the public health, safety, or welfare through the transmission of food-borne illness by improper food preparation. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that no thermometer to ascertain the temperature of food products was present, a critical violation. Foods held at improper temperatures are susceptible to development of bacterial contamination and are a risk factor for transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent, which utilized a chemical system for sanitation of dishes and utensils, had no chemical test kit provided at the location of the sanitation sink. The test kit is required to ascertain whether the composition of the disinfection liquid is appropriate and capable of sanitizing the items. This was a critical violation because improperly sanitized dishes and utensils pose a significant threat to the public health, safety, or welfare through the transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the gaskets located at the reach-in food refrigeration unit were soiled, a critical violation because the situation presents an opportunity for bacterial contamination of food products and transmission of food-borne illness. Sinks used for preparation of food products are not to be used for hand washing, and, accordingly, the Food Code prohibits having hand-washing aids at a food prep sink. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent had hand-washing materials located at a food-prep sink. This was a critical violation because dual use of sinks provides an opportunity for bacterial contamination of food or utensils and transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent's gas tanks (helium and/or carbon dioxide) were not properly secured, which was a non-critical violation of state regulations cited herein. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that ceiling tiles in the kitchen were water-stained, indicating the presence of an unidentified leak above the ceiling tiles, and other tiles were missing. These were non-critical violations of state regulations cited herein.
Recommendation Based on 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 against the Respondent in the amount of $1,550. DONE AND ENTERED this 28th day of November, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 28th day of November, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Alan Blizard Town and Country Skate World 7510 Paula Drive Tampa, Florida 33615 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
Findings Of Fact The Petitioners filed a timely petition challenging the subject rule published by the State of Florida, Department of Health and Rehabilitative Services (HRS). The rule was published at 10 FAW 2323, and was numbered as 10C- 3.60, which would be used as the publication number in the Florida Administrative Code. The publication of the notice of the proposed rule occurred on July 27, 1984 and the Petitioners submitted their challenge on August 10, 1984. The proposed rule establishes terms under which food stamp recipients throughout the state may be required to participate in "workfare programs;" however, at present, this rule may only be utilized in two counties. This limitation is based upon the fact that necessary funding for the implementation of the terms of the rule has only been appropriated for two counties. Funding is pursuant to the 1984 General Appropriations Act of the State of Florida Legislature. That funding is pursuant to the proviso within the Appropriations Act which states: Of the fund in Specific Appropriations 764, up to two hundred thousand dollars from the General Revenue Fund shall be used to continue or establish workfare projects in two counties for recipients of food stamps. The workfare program idea as expressed in the subject rule is an adjunct of the food stamp program, a joint federal-state program authorized by the Food Stamp Act of 1977, as amended, 7 U.S.C., Section 2011, et. seq. HRS administers the Florida version of the food stamp program based upon the authority set forth in Section 409.275, Florida Statutes. The subject rule is under the claimed authority of Section 409.026 - .028, Florida Statutes. Petitioners are heads of households and would potentially be affected by the implementation of the workfare program contemplated by the proposed rule. They are residents of Orange County, Florida who are recipients of food stamps. The contingency of the implementation of a workfare program in Orange County, Florida pursuant to the proposed rule has not occurred. HRS has yet to decide which of the two Florida counties it would accept under the financing envisioned by the General Appropriations Act. As a consequence, no determination has been made on the subject of which food stamp recipients will be affected by the terms of the proposed rule. In making its program choice, HRS provided all of the chairpersons of the various County Commissions within the State of Florida with an announcement of the possible availability of funds for the food stamp workfare program. An example of this notice may be found as the Petitioner's exhibit No. 10 admitted into evidence. That notice contemplated that the counties which are interested in participation would express their interest in writing on or before September 1, 1984, through a letter of intent to participate in the workfare program. This invitation was dated July 25, 1994. Orange County did not express an interest in keeping with this opportunity and is not one of the two counties that will be the recipient of the funds for administration of the workfare program. The recipients will be chosen from the counties which submitted a written statement of interest. As a result, at present, Petitioners will not be required to abide by the terms of the subject rule. For the Petitioners to be subjected to the rule's terms, additional funding must be appropriated beyond that available for the two counties envisioned by the General Appropriations Act, Orange County must opt for participation in the workfare program and the Petitioners must be residing in Orange County, when the first two events occur.
The Issue 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.
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.
Recommendation 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
