The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated December 22, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. See § 509.032, Fla. Stat. (2004). Respondent is a food service establishment licensed and regulated by the Department. On October 11, 2004, Will Goris, a sanitation and safety specialist employed by the Department, inspected the premises of Respondent. During the inspection, Mr. Goris noted that, among other things, "the manager had no proof of food manager certification," "observed no proof of employee training available," and "the fire extinguisher in the rear storage area was tagged 8/03." Mr. Goris prepared a Food Service Inspection Report setting forth his findings. It is Mr. Goris' practice to go over the contents of the report with the manager of the food service establishment and to allow the establishment time to correct any violations. He normally re-inspects the establishment within two weeks to 30 days of the initial inspection, and, if he finds that measures have been taken to correct the violations, he gives the establishment an extension of time in which to complete the corrections. Mr. Goris re-inspected the premises of Respondent on October 29, 2004, and found that the establishment had not corrected three of the violations noted during the October 11, 2004, inspection. First, Respondent's food service manager did not have a current certificate. Second, Respondent did not provide proof that its employees had received food safety training. Finally, the fire extinguisher had not received current maintenance. When Mr. Goris returned on November 16, 2004, while the fire extinguisher problem had been corrected, the other two deficiencies were present. John O'Neil acknowledged the deficiencies and offered plausible excuses for each. For example, attempts were made to enroll in the food manager's certification course but classes were filled during the relevant times. Mr. O'Neil believed that he had been given an extension by Mr. Goris. Mr. Goris denied this, but recalled having called a supervisor during one inspection visit to discuss an extension. Mr. O'Neil's failure to immediately correct the noted deficiencies may have been a result of a misunderstanding regarding the time he had to accomplish the task. Notwithstanding the noted violations, Respondent is a well- maintained establishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, enter a final order finding that Respondent violated Section 509.039, Florida Statutes (2004); Florida Administrative Code Rule 61C-4.023(1); and National Fire Protection Association Life Safety Code 10, 4-4.1, and imposing a fine in the total amount of $250.00. DONE AND ENTERED this 1st day of December, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 December, 2005. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 John M. O'Neil O'Neil of Boston 2849 South Orange Avenue, Suite 310 Orlando, Florida 32806 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
