The Issue The issue in this case is whether Respondent violated provisions of Chapter 509, Florida Statutes,1 and/or rules promulgated thereto. If violations did occur, then the ancillary issue is whether a penalty should be imposed.
Findings Of Fact The Restaurant is a licensed eating establishment located in Bonita Springs, Florida. The franchised facility is owned by Raymond Foster and his wife, Cathy Foster. Both owners spend approximately 12 hours per day at the Restaurant. Petitioner is the state agency responsible for, inter alia, inspecting restaurants to ensure safe operation and cleanliness for public health. On January 29, 2007, the Division conducted a routine inspection of the Restaurant. The inspection was conducted by Randall Hughes, a sanitation and safety specialist, who had worked for the Division for approximately nine months at that time.3 Prior to working for the Division, Hughes had worked for Winn-Dixie as a store manager. Prior to the date of the inspection, Hughes had received one week of training from the Division on food laws and rules, one week of training on lodging laws and rules, plus two weeks of special fire training laws and rules. He also takes 20 hours of continuing education courses annually. On March 2, 2007, Hughes conducted a follow-up or call- back inspection of the Restaurant. At that time, he identified several repeat deficiencies, including four that he thought would warrant issuance of an administrative complaint. The follow-up inspection report was received and signed by Cathy Foster. There were four problem areas identified by Hughes as "critical" violations during the follow-up inspection. Critical violations are those deemed by the Division to be an imminent threat to the public. The four problem areas were: Violation No. 45-36-1: The hood suppression type fire extinguisher system, used to extinguish fires in the cooking area, had an inspection tag that was out of date. Violation No. 32-16-1: Lack of hand drying provisions at one sink in the Restaurant. Violation No. 09-01-1: Improper use of plastic bowl with no handle to dispense ready to eat food from reach-in cooler. Violation No. 22-22-1: Build-up of slime in interior of ice machine. A discussion of each of the four alleged violations now follows. The hood suppression type fire extinguisher had an inspection tag dated May 2006. There was no testimony as to whether that was the date of the prior inspection of the extinguisher system or if that was the date the extinguisher was to be re-inspected. It appears the last inspection (in May 2006) was performed by Cintas, a private company under contract with the State. However, Hughes testified that the extinguisher was out of date because it is supposed to be inspected every six months, and, as of January 29, 2007, and March 2, 2007, it had not been re-inspected. Foster testified that the extinguisher was inspected on September 13, 2007 (i.e., the day before the final hearing in this matter), by the Bonita Springs Fire Department. The extinguisher passed inspection and now has a current inspection tag. The Fire Department showed up to inspect the extinguisher unannounced on that day. It is unclear from the testimony whether someone other than the Fire Department was supposed to examine the extinguisher. There was no showing that the Restaurant failed to obtain an inspection of the extinguisher, only that the inspection occurred later than required. The sink area in question under Violation No. 32-16-1 is not located in a food-handling area. Rather, it is a sink used by wait staff and is located outside the kitchen. Foster's testimony that paper towels are available for hand-drying at that sink is credible. He explained that partial rolls of paper towels taken from tables in the restaurant were taken to the sink in question for use by staff. No showing was made that hand-drying provisions were lacking. Foster admits that a plastic bowl without a handle is used to dispense food. The food being dispensed is bleu cheese crumbles for salads. The bowl, while it has no handle, is used by wait staff who are wearing plastic gloves. At no time would the wait staff come into direct contact with the food. The Division's concern about possible contamination is not warranted. Hughes identified a build-up of "slime" in the interior of an ice machine. He did not specify whether the substance was organic or chemical. Foster refuted the finding by explaining the absence of any substance on the ice machine other than a stain caused by an improper seal. Efforts to remove the stain, using a number of different cleansers, have proven fruitless. The stain does not in any fashion contaminate the ice in the machine. None of the other putative violations mentioned in the inspection reports were addressed at final hearing and are therefore irrelevant to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500 against the license of Respondent. DONE AND ENTERED this 20th day of November, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2007.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against a public food service establishment on the basis of alleged violations set forth in an Administrative Complaint.
Findings Of Fact At all times material hereto, the Respondent, SPB #2 Pizza Corp., d/b/a Vito & Michaels Gourmet Pizza, was a licensed public food service establishment, license number 16-15486-R, located at 4838 North Federal Highway, Fort Lauderdale, Florida. Sonia K. Burnett (hereinafter "Inspector Burnett") was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Specialist. Sylvester Kevin Bailey (hereinafter "Inspector Bailey") was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Senior Sanitation and Safety Specialist and Acting Supervisor. On February 10, 1999, Inspector Burnett performed a routine inspection of the Respondent's establishment and found violations of food service rules, which she marked on the food service inspection report of February 10, 1999. On February 18, 1999, Inspector Burnett performed a Call-Back Inspection of the premises and found that the Respondent was still in non-compliance for some of the violations enumerated in the inspection report of February 10, 1999. On February 24, 1999, Burnett performed a Call-Back/Re- Inspection of the premises and found that the Respondent was still in non-compliance for some of the violations enumerated in the inspection report of February 10, 1999. On October 22, 1999, Inspector Burnett and Inspector Bailey performed a Call-Back/Re-Inspection and found that the Respondent had still not taken steps to correct the February 10, 1999, violation related to insufficient fire suppression equipment to protect the deep fryer. On October 27, 1999, Inspector Burnett accompanied by Inspector Bailey and Scott Willie, a fire Inspector with the City of Fort Lauderdale, performed a Call-Back Re-Inspection and found that the Respondent had still not corrected the February 10, 1999, violation related to insufficient fire suppression equipment to protect the deep fryer. On March 15, 2000, Inspector Bailey, accompanied by Scott Willie a City of Fort Lauderdale Fire Inspector, performed a Call-Back Re-Inspection and again found that the Respondent had not corrected the February 10, 1999, violation related to insufficient fire suppression equipment to protect the deep fryer. During all of the inspections described in paragraphs 4 through 9, the Inspectors observed that the deep fryer was not properly protected by fire suppression equipment. This violation is a critical violation because it endangers the health and safety of employees and patrons in the public food establishment. During the course of the February 10, 1999, inspection, and again on a follow-up inspection, Inspector Burnett observed improper disposal of wastewater. On one occasion the wastewater was being disposed of in the 3- compartment sink drain, located in the food preparation area. On another occasion the wastewater was being disposed of on the ground outside the back door. These wastewater disposal violations are critical violations because the unsanitary disposal of wastewater may endanger the health of employees and individuals patronizing the public food establishment. During the inspections on February 18, 1999, and February 24, 1999, Inspector Burnett observed the service sink in disrepair. On February 18, 1999, the service sink was broken and unserviceable. On February 24, 1999, a new service sink was on the premises, but was not installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found in violation of the provisions of Chapter 509, Florida Statutes, and related rules, as alleged in the Administrative Complaint, and that the Respondent's license, number 16-15486-R, be suspended until such time as the fire suppression system has been rebuilt or replaced to accommodate the equipment currently in place. It is further RECOMMENDED that administrative fines in the total amount of $3,000.00 be assessed against the Respondent. DONE AND ENTERED this 29th day of January, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2001.
The Issue The issue is whether Respondent Jack Draft House's public food establishment license should be revoked or otherwise penalized based on the facts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent Jack Draft House, was a licensed public food service establishment, license No. 74-046709-R, located at 2400 North Volusia Avenue, Orange City, Florida 32763. Vicky Mayle was at all material times employed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, as a Sanitation and Safety Specialist. On April 10, 2000, Inspector Mayle performed a routine inspection of Respondent's food service establishment and found violations of food service rules and the rules of the Division of Hotels and Restaurants, all of which she marked on her food service inspection report of April 10, 2000. On April 20, 2000, Inspector Mayle performed a Call- Back/Re-Inspection on Jack Draft House and found that Respondent was still in non-compliance for three of the critical violations enumerated on the food service inspection report of April 10, 2000. On April 24, 2000, Inspector Mayle performed a second Call-Back/Re-Inspection of Jack Draft House and observed that Respondent was still in non-compliance for the three critical violations enumerated on the food service inspection report of April 10, 2000. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that the spacer was still missing in the 12-circuit electrical breaker box. Black tape covered the opening for the missing spacer. Further, on April 24, 2000, the parts had not been ordered to repair the electrical breaker box. The empty spacer in the public food service establishment is a critical violation because it would endanger the safety of an employee because if he or she should inadvertently stick a finger into the empty spacer he or she could be electrocuted. The black tape is not a sufficient remedy for the empty spacer located in the electrical breaker box. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that there was still no hot running water at a temperature of 110°F, in the women's restroom, used by the employees. The lack of hot water, at the temperature of 110°F in the women's restroom, which is used by employees is a critical violation in that it endangers the health of the employees and patrons of the public food service establishment. At the hearing Respondent testified. Prior to the inspection, the cleaning people had used up the hot water at approximately 4:30 a.m. to clean the bar. The water was turned off to install the ice maker later in the morning. The hot water heater may not have had ample time to replenish the water supply and re-heat the water to 110°F. Even if the electric water was not turned off to install the ice maker, the water may not have been replenished in the hot water heater. This being true, the hot water heater may not have had ample time to replenish the water supply and re-heat the water to 110°F by 9:00 a.m. However, by the time the facility would have had customers the temperature would have recovered. On April 24, 2000, during the second Call-Back/Re- Inspection, Inspector Mayle observed that a brown household extension cord was still being used for the freezer and other appliances in the bar. This is a critical violation in that the use of the extension cords in a public food service establishment endangers the health and safety of employees and patrons of the establishment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: Petitioner enter its final order finding Respondent violated the provisions of Chapter 509, Florida Statutes, and its rules, as alleged in the Administrative Complaint, and fining the Respondent $1,000 for electrical safety violations. DONE AND ENTERED this 7th day of February, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2001. COPIES FURNISHED: Dorothy J. Trzeciecka, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sidney J. Simmons, Owner Lisa G. Martin, Manager Jack Draft House 2400 North Volusia Avenue Orange City, Florida 32763 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is an eating establishment located in Bunnell, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 2800494 issued by the Division. Julianne Browning is a sanitation and safety specialist employed by the Division. Ms. Browning has a bachelor's degree in business administration with a major in hotel and restaurant management. She has been employed by the Department of Business and Professional Regulation for 14 years. She also has work experience in the hotel and restaurant industry and received training in laws and rules regarding public food service and lodging, as well as fire safety and hazard analysis. On March 22, 2004, Ms. Browning conducted an inspection of Respondent's premises and issued an inspection report while on the premises. Louanne Johnson, a bartender at the restaurant, signed for the inspection report. During the March 22, 2004 inspection, Ms. Browning observed 14 violations and issued a warning that the violations must be corrected by April 22, 2004. Ms. Browning conducted a call-back inspection on April 23, 2004, during which she observed that three of the violations noted on March 22, 2004, had not been corrected. The call back inspection report contained the following regarding a violation she considered not corrected, "Observed Food Manager not certified after 90 days of employment. Ben Williams." She considers this a critical violation because the food manager must be certified to be able to instruct their employees regarding safe food handling practices. At the time of the first inspection, Ms. Browning observed that there was no inspection report from a licensed equipment dealer regarding the fire extinguishers. During the call-back inspection, she still did not see an inspection report from a licensed equipment dealer. This is a critical violation because the inspection report indicates whether or not there is anything wrong with the fire suppression system. During the original inspection, Ms. Browning did not observe anything securing the carbon dioxide tanks which provide the carbon dioxide for drink machines or beer taps. The tanks are required to be secured by chain or bungee-cord. Her report from the call-back inspection again cites Respondent with failure to properly secure the tanks. However, Mr. Williams insists that the tanks were and always have been secured with bungee-cords. His description of the way the bungee-cords secure the tanks was specific and detailed and is accepted as credible. Regarding the violation of the food manager's not being certified, Mr. Williams explained that while he is the owner of Respondent, he does not work there. Further, he asserts that two of his employees, Georgia Oliva and Rhonda Bracewell, are both certified food managers. Accordingly, he has not sought certification as a food manager. This explanation is accepted as credible. Regarding the lack of inspection report from a licensed dealer, Mr. Williams acknowledges that while there is a report, it was "not where it should have been."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order which confirms the violations found, dismisses the violations not found, imposes an administrative penalty in the amount of $500.00, to be paid within 30 days of the issuance of the Agency's Final Order. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Benjamin Williams 616 North State Street Bunnell, Florida 32110 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
