Findings Of Fact Petitioner's current address is 3195 East Atlantic Drive, Boynton Beach, Florida 33435. At all times material to this proceeding, Petitioner received AFDC and Food Stamp benefits. At all times material to this proceeding, Petitioner worked for Winn Dixie, 1565 S. Congress Ave., West Palm Beach, Florida, but failed to timely and/or accurately report her income to DHRS. By letters dated April 14, 1993, DHRS notified Petitioner that her failure to timely and/or accurately report her income resulted in an overissuance of $3,889 in Food Stamp benefits and an overpayment of $6,664 in AFDC benefits for the period of June, 1991 through November, 1992. On or about April 21, 1994, Petitioner filed a winning ticket in the face amount of $10,000 with the Lottery. On or about April 26, 1994, DHRS certified to the Lottery that Petitioner owed an arrearage in the amount of $10,533.00 for overpayments of AFDC and Food Stamp Benefits. On April 29, 1993, Petitioner acknowledged her liability and signed a Repayment Agreement for the AFDC and Food Stamp debts. On or about June 2, 1994, the Lottery transmitted Petitioner's $7,200 net prize ($10,000 less federal income tax in the amount of $2,800) to DBF with a request that DBF apply the funds as directed by Section 24.115(4), Florida Statutes. By letter dated June 8, 1994, DBF notified Petitioner that it intended to apply $7,200 of Petitioner's winnings to her unpaid debt. Said notice informed Petitioner of her right to a formal hearing pursuant to Section 120.57(1), Florida Statutes. Petitioner received DBF's June 8, 1994, letter by certified mail on or about June 17, 1994. However, Petitioner failed to request a formal hearing until July 14, 1994. Record evidence established Petitioner's debt for overissuance of Food Stamps and overpayment of AFDC benefits. Petitioner did not make an appearance at the formal hearing held on November 22, 1994. At that time, Petitioner had not repaid DHRS any portion of her $10,533 debt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that DBF enter a Final Order dismissing Petitioner's petition and transferring Petitioner's net prize in the amount of $7,200 to DHRS for credit to Petitioner's account in partial satisfaction of her debts to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1994. SUZANNE F. HOOD, Hearing Officer 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 29th day of December, 1994. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact The Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact Accepted in Findings of Fact (FOF) #1. Accepted in FOF #5. Accepted in FOF #6. Accepted in FOF #8. Accepted in FOF #9. Accepted in FOF #10. Accepted in FOF #10 except as modified. The record does not contain a copy of a Final Order dated July 14, 1994. Accepted in FOF #10 except as modified. The record does not contain a copy of a Final Order date July 14, 1994. Accepted in FOF # 11. Accepted in FOF #6. Accepted in FOF #4. Accepted in FOF #7. Accepted in FOF #11. Accepted in FOF #11. Accepted in FOF #12 except as modified to eliminate subordinate information. COPIES FURNISHED: Emma Gonzales 3195 East Atlantic Drive Boynton Beach, Florida 33435 Mindy K. Raymaker, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Jorge Cruz-Bustillo, Esquire Department of Health and Rehabilitative Services 1317 Winewood Blvd. Bldg. E, Room 200 Tallahassee, Florida 32399-0700 Continued next page. Louisa H. Warren, Esquire Department of Lottery 250 Marriot Drive Tallahassee, Florida 32399-4000 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. Marcia Mann, Secretary Department of the Lottery 250 Marriot Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of the Lottery 250 Marriot Drive Tallahassee, Florida 32301
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1618782. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 7401 West Commercial Boulevard, Tamarac, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Sean Grosvenor and Larry Torres were experienced and appropriately trained investigators employed by Petitioner as Sanitation and Safety Specialists. Their job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. On July 7, 2005, Mr. Grosvenor led an inspection of the subject restaurant. Based on that inspection, Mr. Grosvenor prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on July 7, Mr. Grosvenor discussed his findings with the associate manager of the restaurant. Mr. Grosvenor ordered that two of the violations be corrected immediately. He ordered the restaurant to correct the remaining violations by no later than August 7, 2005. On July 8, 2005, Mr. Grosvenor conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the two violations he had ordered corrected immediately had been corrected. One of the two violations that were to be corrected immediately had been corrected and is not at issue in this proceeding. The other violation had not been corrected and is the subject of the Paragraph 1 violation. PARAGRAPH 1 The Food Code requires that food be maintained at a temperature of 41° F. or less. On July 8, 2005, Mr. Grosvenor found the following: cottage cheese located on the buffet table was at a temperature of 48° F., raw hamburger patties located in a cooler were at a temperature of 47° F., and potato salad located in a cooler was at a temperature of 47° F. Mr. Afsarmanesh, the restaurant’s manager, testified that the hamburger patties had been freshly ground and that the potato salad had been freshly made. He testified that these items were brought to a temperature above 41° F. during the preparation process, that they had been placed in coolers to cool down shortly before the inspection, and that they were above 41° F. when Mr. Grosvenor conducted his inspection because they had not had sufficient time to cool down. While his testimony explained Mr. Grosvenor’s findings as to the hamburger patties and the potato salad, Mr. Afsarmanesh had no explanation as to why the cottage cheese was above 41° F. Petitioner established by clear and convincing evidence that Respondent violated Section 3.501.16(B) of the Food Code as alleged in paragraph 1 by proving that Respondent failed to maintain cottage cheese on the buffet line at or below the required minimum temperature. The violations alleged in paragraphs 2-6 were based on Mr. Torres’s follow-up inspection on August 8, 2005. That follow-up inspection was conducted during a power failure which left the restaurant without electricity. Mr. Afsarmanesh requested that the follow-up inspection be rescheduled because of the power outage, but Mr. Torres decided to go forward with the inspection using flashlights. Mr. Torres testified that the absence of electricity had no bearing on his inspection. Based on the violations found, the undersigned finds that Respondent was not prejudiced by Mr. Torres proceeding with the inspection. PARAGRAPH 2 The initial inspection cited Respondent for storing uncovered lettuce, onions, and peppers in a cooler. On August 8, 2005, Mr. Torres observed that lettuce, onions, and peppers were stored uncovered in a cooler. That conduct violated Section 3-302.11(A)(4) of the Food Code. Mr. Afsarmanesh testified that his staff rushed to put these items in the cooler when the electricity went out and that they did not have sufficient time or light to cover them. The exigent circumstances created by the power outage do not excuse the violation observed by Mr. Torres, but those circumstances can be considered in mitigation when determining the penalty to be imposed. Petitioner established by clear and convincing evidence that Respondent violated Section 3-302.11(A)(4) of the Food Code as alleged in paragraph 2. PARAGRAPH 3 Paragraph 3 alleged that Respondent violated Section 3- 304.14(B) of the Food Code by failing to have chlorine sanitizer in a cleaning bucket at minimum strength. On August 8, 2005, Mr. Torres determined that the chlorine sanitizer in a cleaning bucket was below minimum strength. Petitioner established by clear and convincing evidence that Respondent violated Section 3-304.14(B) of the Food Code as alleged in paragraph 3. PARAGRAPH 4 Paragraph 4 alleged that Respondent violated Section 5- 205.11(B) of the Food Code by using a hand-washing sink for purposes other than washing hands. The inspection report does not detail what other use was being made of the hand-washing sink and Mr. Torres could not recall what he had observed to cause him to cite that as a violation. Petitioner failed to establish by clear and convincing evidence the alleged violation of paragraph 4. PARAGRAPH 5 Paragraph 5 alleged that Respondent violated Section 6-202.15 of the Food Code by failing to properly seal an exterior door. On August 8, 2005, Mr. Torres observed that an exterior door to Respondent’s facility was not properly sealed and, consequently, would not prevent the intrusion of pests. Petitioner established by clear and convincing evidence that Respondent violated Section 6-202.15 of the Food Code as alleged in paragraph 5. PARAGRAPH 6 Paragraph 6 alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(7), by failing to keep an electrical room clean and free of debris by storing items in the electric room. On August 8, 2005, Mr. Torres observed that Respondent had stored items in an electric room. Petitioner established by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C-1.004(7), as alleged in paragraph 6. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. The paragraph 3 violation is a non-critical violation. The remaining violations found are critical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1, 2, 3, 5, and 6 and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $100.00 for the paragraph 2 violation; $100.00 for the paragraph 3 violation; $500.00 for the paragraph 5 violation; and $500.00 for the paragraph 6 violation. In addition, the final order should require a manager responsible for the subject restaurant to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
