Findings Of Fact On March 6, 1991, Mr. Leonard Baldwin, an inspector for the Department of Professional Regulation, inspected the salon known as Wonderful Hairweaving #2, located at 1439 Northeast 4th Avenue, Fort Lauderdale, Florida 33304. At the time he entered, the owner of the establishment, Kettly Guilbaud, was not present. Mr. Baldwin found two persons working at the salon; one person, a lady who identified herself as Rachel Guillaume, was placing chemicals on the hair of a patron as part of giving a permanent to the patron. The gentleman, who identified himself as St. Armond Iout, was cutting the hair of another patron. Both acknowledged that they had no license from the Department of Professional Regulation to perform cosmetology. Ms. Rachel Guillaume stated that she had only been at the salon for two days and was just there to help out a friend. It is not clear whether this was meant to mean that she was helping Ms. Guilbaud, the owner of the shop, or the person whose hair was being permed. It is more likely that she meant that she was helping Ms. Guilbaud. See Finding 6, below. Mr. Baldwin was not able determine how long Mr. Iout had been working there because of Mr. Iout's great difficulty with English. A customer translated for Mr. Iout, who told Mr. Baldwin through the customer that although he was cutting a man's hair, he did not work there. This is not believable. Mr. Baldwin also found sanitation violations at the salon, in that the implements available for use had not been sanitized, and they were kept in a drawer which was not clean. The sanitation rules were not displayed at the shop. Ms. Guilbaud testified that Rachel Guillaume was there only to answer the telephone and to make appointments for customers who would either call or come to the shop. Ms. Guilbaud was away at another location which she was preparing to open as an additional salon. She also testified that St. Armond Iout was there because the electrical inspector from the City of Fort Lauderdale was to come to the salon to look at some electrical wiring and that Mr. Iout was there only to meet the inspector. In view of Mr. Iout's very limited fluency in English this is unlikely, for he could have been no assistance to the electrical inspector. Rachel Guillaume could have admitted the inspector to the shop. I find the testimony of Mr. Baldwin persuasive, that both Ms. Guillaume and Mr. Iout were either perming or cutting hair. Neither were at the salon for the limited purposes described by Ms. Guilbaud. I accept Ms. Guilbaud's testimony that both Ms. Guillaume and Mr. Iout are not fluent in English, but Mr. Baldwin has not been confused by difficulties in understanding either Ms. Guillaume or Mr. Iout. What is significant is what Mr. Baldwin observed, not what Ms. Guillaume or Mr. Iout tried to explain to him.
Recommendation It is RECOMMENDED, based upon the foregoing findings of fact and conclusions of law, that a final order be entered by the Board of Cosmetology finding Kettly Guilbaud, doing business as Wonderful Hairweaving #2, to be guilty of the acts alleged in Counts I and II of the Administrative Complaint, and that a fine of $600 be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June 1992. WILLIAM R. DORSEY, JR. 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 19th day of June 1992. Copies furnished: Roberta Fenner, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kettly Guilbaud, pro se 1439 Northeast 4th Avenue Fort Lauderdale, Florida 33304 Ms. Kaye Howerton Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues to be considered in this Recommended Order relate to an Administrative Complaint which the Petitioner filed against Respondent. In particular, the Administrative Complaint calls for the revocation of Respondent's certificate to conduct laboratory analyses for various microbiological parameters, select chemical tests and turbidity studies. This disciplinary action is in keeping with the State Public Water Laboratory Certification Program, Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, which relates to that same subject. These alleged violations are set forth in the Administrative Complaint and those allegations are further refined through the attachments to the Administrative Complaint. They deal with certain alleged failures on the part of the Respondent in performing tests, analyses, recording functions, provision of materials, tabulations, and retention of records. He is also accused of making false statements through documents dealing with certification. All of these acts are in violation of provisions of Chapter 10D-41, Florida Administrative Code, according to the complaint. (The details of the Administrative Complaint are discussed in the Conclusions of Law section of this Recommended Order.) WITNESSES AND EXHIBITS The list of witnesses, in order of their appearance, may be found in the index to transcript. The list of exhibits, page of their identification and receipt may be found in the index to transcript, with the exception of those exhibits upon which ruling on their admissibility was reserved. Those exhibits which were not admitted in the course of the hearing are discussed in the Conclusions of Law section of this Recommended Order.
Findings Of Fact In keeping with language in Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, Petitioner licensed Kamran Kahjeh- Noori, who does business as as Kahjeh-Noori Laboratory. The licensing was through a process of certification to allow Kahjeh-Noori to conduct water testing. In particular, the laboratory was certified in microbiology (membrane filters); microbiology (most probable number); chemistry, and those materials, arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver; chemistry (nitrates); chemistry (fluorides) and turbidity. Water testing laboratories test drinking water from community and non- community water distribution systems. At times relevant to this case, Respondent's laboratory performed microbiological and chemical tests of drinking water. On October 13, 1981, Petitioner filed an Administrative Complaint against the Respondent charging various violations related to Respondent's certification. The Respondent requested a Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on August 11, 1982. In connection with the aforementioned certification in the various categories which Respondent had applied for and been granted, Petitioner, through its employees, conducted surveys of the Kahjeh-Noori Laboratory on December 12, 1979; December 8, 1980, February 10 and 11, 1981, and June 9, 1981, to insure compliance with rules related to Respondent's certification. The inspection on December 12, 1979, revealed that the inhibitory residue test as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, had not been performed to demonstrate that the washing/rinsing processes provide glass free of toxic materials. This relates to microbiology. Respondent was made aware of this deficiency in writing and in responding to the statement of deficiencies, indicated that correction had been made or as Respondent stated that the correction had been "performed." A survey conducted by the Petitioner on December 8, 1980, revealed the same problem with the inhibitory residue test as had been described in the matters related to the December 12, 1979, visit, in that that test had not been performed in accordance with Rule 10D-41.55(6)(b)8., Florida Administrative Code. Respondent was again advised in writing of the deficiencies and in response to the deficiencies indicated that a correction had been "performed" on January 8, 1981. This response, as was the case in the December 12, 1979, incident, was a written response. A further survey was conducted on February 10 and 11, 1981, in which the laboratory was inspected and the problem with the inhibitory residue test, in that it was not performed, was discovered in the course of this inspection, again related to Rule 10D-41.55(6)(b)8., Florida Administrative Code. This statement of deficiencies or violation was made known in writing and in his written response, Respondent indicated "media have been ordered from FIFFCO and will be completed by week of 4/20/81." Finally, in an inspection on June 9, 1981, the problem with the inhibitory residue test, that is to say the fact that that test was not being performed to demonstrate that the washing/rinsing processes were providing glassware free of toxic material as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, was still observed in the inspection. The inhibitory residue test, which is designed to determine whether the washing of glassware is leaving residue on that container which might inhibit or enhance bacterial growth, was conducted subsequent to the last survey. In particular, it was conducted on June 17, 1981, and February 25, 1982, by an employee of the Respondent. The results of those tests may be found as Respondent's Exhibit Nos. 1 and 2. In the inspection of December 12, 1979, it was discovered by Petitioner that laboratory pure water had not been analyzed annually by the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code (microbiology). Respondent was made aware of this shortcoming by written notification and in replying to this deficiency, indicated that the matter had been "performed." Further inspection of the matter of laboratory pure water in the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code, was made during December 8, 1980, and a written notification was given to Respondent, indicating that this test had not been performed and requiring an explanation of that deficiency. In responding to the deficiency, Respondent indicated that it "had been analyzed only 2 parameters missing" and the date stated for the completion of that correction was January, 1981. The inspection of February 10 and 11, 1981, discovered the same difficulty on the topic of laboratory pure water, in that the water was found not to have been analyzed on an annual basis by the test for bacteriological properties as required by Rule 10D-41.55(6)(a)4., Florida Administrative Code. This violation or problem was made known to the Respondent by written communication and replying to the deficiencies, in writing, Respondent indicated that "water will be analyzed by end of April." The June 9, 1981, survey by the Petitioner of the Respondent's laboratory, established the same problem with testing related to laboratory pure water under the terms of Rule 10D-41.55(6)(a)4., Florida Administrative Code. Again written notification was made of this shortcoming. Subsequent to the inspection of June 9, 1981, and specifically on June 17, 1981, an employee of Respondent made the test required by Rule 10D- 41.55(6)(a)4., Florida Administrative Code, and the results of that test may be found in Respondent's Exhibit No. 2. The water tested was that water which had been used in the Respondent's laboratory as far back as May, 1981, the date of the initial employment of the employee conducting this test. The conclusion reached was that the water did not contain toxic substances. The survey of December 12, 1979, revealed that laboratory pure water had not been analyzed monthly for conductance, pH, chlorine residual and standard plate count as specified by Rule 10D-41.55(6)(a)5., Florida Administrative Code (microbiology). Surveys by the Petitioner of Respondent's laboratory conducted on December 8, 1980; February 10 and 11, 1981, and June 9, 1981, concerning Rule 10D-41.55(6)(a)5., Florida Administrative Code, revealed the same shortcomings on the matter of monthly analysis for conductance, pH, chlorine residual and standard plate count. The responses made to the written notification of the problems, which notification occurred following each survey, were the same as were related in the responses for violations of Rule 10D- 41.55(6)(a)4., Florida Administrative Code, discussed above. The inspection of Respondent's laboratory, by Petitioner's employee, which occurred on December 8, 1980, revealed that sample bottles were not being tested with lauryl tryptose broth as required by Rule 10D-41.55(6)(b)9., Florida Administrative Code (microbiology). This problem was announced to Respondent in writing. By written response, the Respondent indicated that this matter was "performed" on January 8, 1981. Further inspection of February 10 and 11, 1981, as conducted by Petitioner on Respondent's laboratory, revealed a lack of compliance with the rule related to testing of sample bottles with lauryl tryptose broth as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code. This deficiency was made known in writing from Petitioner to Respondent and in answering this shortcoming, Respondent indicated in writing that the matter was "completed," effective February 17, 1981. In the period beginning late December, 1980, through late May, 1981, some tests related to sample bottles by the lauryl tryptose broth technique were carried out by one of Respondent's employees; however, no record was kept. In the absence of that record, it was reported in the evaluation report of the June 9, 1981, survey, which report was made by Petitioner's employee, that the matter related to testing sample bottles with lauryl tryptose broth, as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code, was still a problem. Beginning June 13, 1981, written records were kept of bottles tested with lauryl tryptose broth, as may be seen through Respondent's Exhibit No. 4a, which is a record of those tests. That record reveals no growth of bacteria. The February 10 and 11, 1981, survey conducted by Petitioner's employee, revealed that Respondent's laboratory was not recording the time of water sample arrivals as specified by Rule 10D-41.55(5)(a)7., Florida Administrative Code (microbiology). This violation was made known to the Respondent in writing and in his written reply, Respondent indicated that the matter was being "performed" effective February 12, 1981. The inspection of June 9, 1981, conducted by Petitioner's employee found that Respondent and his laboratory personnel were still failing to record the time of sample arrival, as required by Rule 10D-41.55(5)(a)7., Florida Administrative Code. Petitioner had contended that Respondent, in his equipment, i.e., sample bottles with screw caps, had liners to those caps that could not withstand repeated sterilizations as required by Rule 10D-41.55(5)(a)6., Florida Administrative Code (microbiology). This notice of violation was made in the course of the June 9, 1981, survey conducted by Petitioner at Respondent's laboratory. The facts when considered do not reveal such a violation or problem. Moreover, the Respondent's laboratory used "whirlpacks" for purposes of collecting drinking water samples and that had been its process beginning June, 1980. During the June 9, 1981, survey, Petitioner discovered that the Respondent, in his laboratory operation, was not carrying out water sample incubations at 350 degrees Celsius +/- 0.5 degrees Celsius. This discovery in the June 9, 1951, survey is borne out by the record of temperature controls made by the Respondent in a period of April, May and June, 1981, prior to the inspection, and also following the inspection in June through December, 1981, Respondent's Exhibit Nos. 5a-c. This allegedly violates Standard Methods, 14th Edition, pages 916, 917, 918 and 931, and thereby contravenes Rule 10D- 41.55(4)(a), Florida Administrative Code (microbiology). Respondent admits that he had this text during pertinent times; however, this volume was not provided to the Hearing Officer. The inspection of December 8, 1980, conducted by Petitioner's employee, revealed that the Respondent, in his laboratory operation, was not using quality control charts or a tabulation of mean and standard deviation to document data validity of silver and nitrate analyses as required by Rule 10D- 41.56(5)(1), Florida Administrative Code (chemistry). This problem was made known to the Respondent in writing and in answering the deficiencies Respondent indicated that the matter had been "performed" effective January 8, 1981. During the course of the February 10 and 11, 1981, inspection, the same problem was observed with the quality control charts on the topic of tabulation of mean and standard deviation set forth in Rule 10D-41.56(5)(1), Florida Administrative Code. In response to this written notification of violation, Respondent replied in writing "corrected and copy was mailed 2/20/81" and indicated a completion date of 2/18/81. Although certain charts had been received by the Petitioner prior to the June 9, 1981, survey (Petitioner's Exhibit No. 9c), that survey still revealed that quality control charts on silver and nitrate analyses as required by Rule 10D-41.56(5)(1), Florida Administrative Code, were missing. Respondent ultimately submitted charts on silver and nitrate, Respondent's Exhibit Nos. 10 through 13. Those exhibits from the Respondent are flawed in that the measurements of precision and accuracy related to the chemical substances are identical and that degree of exactitude makes the results unreliable. (Accuracy describes whether an average of a group of identical samples represents a true value of those samples and precision describes whether the individual test results of several identical samples are similar.) In the June 9, 1981, survey, it was discovered that the raw data and calculations related to quality control charts for the substances arsenic, barium, cadmium, chromium, lead, mercury, selenium and fluoride analyses had not been retained by Respondent's laboratory as specified by Rule 10D-41.59(1)(f)2., Florida Administrative Code. Respondent has made statements in answering stated deficiencies found in paragraphs 5a through 5h of the Administrative Complaint which did not prove to be accurate. These circumstances are reported in the findings of fact related above. Tests of sample bottles performed using lauryl tryptose broth during the period late December, 1980, through May, 1981, were not always recorded as specified by Rule 10D-41.59, Florida Administrative Code, in that on some occasions no record was made of the test.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Eileen Jenzano, was a licensed cosmetologist in the State of Florida having been issued License No. CL0158955 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was employed at Today's Hair and Nails, a cosmetology salon located at 3936 West Hillsboro Boulevard, Deerfield Beach, Florida (the "Salon"). A Department of Professional Regulation inspector visited the Salon on July 27, 1990. During that visit he noticed certain problems which he discussed with the Salon's manager. Among the items discussed were the ventilation in the Salon and certain sanitary problems in the Salon. The evidence was inconclusive as to the specific sanitary problems that were found during that inspection. The investigator indicated that he would return to follow-up on those matters at a later date. The Department's inspector returned to the Salon on August 6, 1990. Respondent was not working on that day. During this second visit, the Department's investigator noted that many of the problems discussed during the first visit had been corrected. For example, the ventilation had been improved and wet sanitizers were being utilized. However, some of the work stations, including Respondent's work station, were not clean. The countertop at Respondent's work station was cluttered and dirty and there were brushes with hair still in them. In addition, the drawer at Respondent's work station was not dry sanitized. Respondent argues that, since she was not working on the day of the second inspection, she should not be charged with any sanitary violations on that day. Respondent contends that she would have cleaned up her work station and sanitized all equipment before beginning work on customers the next day when she returned. However, no adequate explanation was given for the uncleanliness of her work station over the weekend. There is no evidence that any unsanitized equipment was used by Respondent on customers. The evidence does not clearly and convincingly support a conclusion that Respondent was not utilizing proper sanitation procedures before the combs and brushes were used on a customer. Without evidence of such use, Respondent cannot be guilty of a violation of the Board's rule on the provision of wet sanitizers and the sanitation of combs or brushes before their use. However, the evidence did establish that Respondent did not cleanse, sanitize and store her implements in a clean closed cabinet until used as required by the Board's Rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order reprimanding Respondent for violation of Chapter 477, Florida Statutes and imposing a $50 fine. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July, 1991. J. STEPHEN MENTON 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 10th day of July, 1991. COPIES FURNISHED: Mark E. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Eileen Jenanzo 1630 SE 5th Court Deerfield Beach, Florida 33441 Eileen Jenanzo c/o Today's Hair & Nails 3936 West Hillsboro Boulevard Deerfield Beach, Florida 33442 Myrtle Aase Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rules 64E- 6.022(1)(l) and 64E-6.022(1)(q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the state agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Sub-Chapter 64E-6. Mr. Hoag is registered as a Septic Tank Contractor pursuant to Florida Administrative Code Rule 64E-6.019. He was issued registration no. SR0911053. It was necessary to install a new septic tank at residences located at 8817 and 8821 Bellrose Avenue, in Duval County, during March 2004. The owner of the premises, Ben Lewis, contracted with Florida Septic Tank Service, Inc., to accomplish this work. A repair application was submitted to the Department on March 8, 2004, and was approved. Florida Septic Tank Service, Inc., engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. Sometime on April 8, 2004, the exact time not being estimated, Mr. Hoag disconnected the stub from the residences that ran to the former septic tank. This was done so that pipes could be run to a new septic tank. He neither connected the line that he disconnected to the new septic tank nor capped the pipe. Mr. Hoag requested the occupants of the residences to refrain from using the sanitary facilities within the residences until he was able to continue his work on April 9, 2004. Despite this request, the facilities were used between April 8, 2004, and April 9, 2004. On April 9, 2004, sometime prior to 11:45 in the morning, Colleen Bierbach, an inspector with the Department, entered the premises of 8817 and 8821 Bellrose Avenue and observed household wastewater and human fecal matter on the ground at the terminus of the stub. Pictures were taken that memorialized the nature of the deposits. Inspector Scott Turner, of the Department, issued a citation to Mr. Hoag that indicated that the offense occurred at 11:45 a.m. on April 9, 2004. The citation reflected a violation of Section 386.041(1)(a), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l) and (q). With regard to Florida Administrative Code Rule 64E-6.022(1)(l), the citation charged only that he committed, "Gross negligence, incompetence, or misconduct which causes no monetary harm to a customer." The citation was accepted by Mr. Hoag on April 15, 2004. Mr. Hoag's failure to either connect the line to the new septic tank or to cap the outflow line, caused an unsanitary and unsafe condition to exist at 8817 and 8821 Bellrose Avenue, Duval County, on April 9, 2004. No evidence was adduced as to the exact time that the pipe was opened on April 8, 2004, or as to the exact time that the pipe was closed and the area decontaminated on April 9, 2004.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Hoag on April 9, 2004. DONE AND ENTERED this 15th day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of February, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 Robert J. Hoag Plumbing & Contracting by Hoag Post Office Box 7931 Jacksonville, Florida 32238 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether the Respondent, Terry John Conley, d/b/a Terry's for Men's/Women's Hair, should be disciplined for violating Section 477.029(1)(i), Florida Statutes (1985)?
Findings Of Fact At all times relevant to this proceeding the Respondent, Terry John Conley, was licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida. Mr. Conley's license numbers are CL 0095556 and CE 0028208. At all times relevant to this proceeding, Mr. Conley was the owner of a cosmetology salon known as Terry's for Men's/Women's Hair (hereinafter referred to as "Terry's"). Terry's is located at 272 Palm Coast Parkway, Palm Coast, Florida 32026. On December 3, 1987, an employee of the Petitioner inspected Terry's. More than one of the drawers where employees of Terry's stored sanitized brushes and combs contained hair, coins, cards and medicine. Mr. Conley admitted that there may have been coins in the drawers and a little hair on brushes. Two additional alleged violations were cited as a result of the December 3, 1987, inspection. These alleged violations were corrected as of the date of the next inspection of Terry's by the Petitioner. On September 21, 1988, the same employee of the Petitioner that inspected Terry's on December 3, 1987, inspected Terry's again. During this inspection the inspector determined that the drawers where sanitized brushes and combs were stored were in a condition similar to their condition on December 3, 1987. Additionally, the following additional conditions were discovered during the September 21, 1988, inspection: Hair rollers, and the trays where hair rollers were kept, contained an excessive amount of hair and dirt; The Petitioner's sanitation rules were not displayed for public viewing in a conspicuous place; and More than one of the five sanitizer jars for combs were not filled sufficiently-to cover all of the teeth of the combs. Mr. Conley admitted that the jars are refilled "every day or two." The inspector also cited Terry's because one of the persons working at the shop had allegedly used clippers and scissors without sanitizing them. This alleged violation was not supported by the weight of the evidence. Mr. Conley has been operating Terry's for eleven years. The cited violations of December 3, 1987, and September 21, 1988, are the first violations cited against Mr. Conley or Terry's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be found to have violated Rules 21F-20.002 and 21F-20.004, Florida Administrative Code, in violation of Section 477.029(1)(i), Florida Statutes. It is further RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be required to pay an administrative fine of $150.00. DONE and ENTERED this 10th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1989. COPIES FURNISHED: Charles Tunnicliff Senior Attorney Tobi C. Pam Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Terry John Conley d/b/a Terry's for Men's/Women's Hair 272 Palm Coast Parkway Palm Coast, Florida 32307 Myrtle Aase Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact V.M.P. Corporation operates a facility known as Stud's Pub in Jacksonville, Florida. Vincent M. Paul owns the facility and the corporation. The facility is on lots that were platted prior to 1972. Respondent is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Respondent pursuant to provisions of Chapter 381, Florida Statutes. Section 381.0065(8)(a), Florida Statutes (1991) specifically provides: The department may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the department is satisfied that: The hardship was not caused intentionally by the action of the applicant; No reasonable alternative exists for the treatment of the sewage; and The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972. Rule 10D-6.045(3), Florida Administrative Code, is the portion of the rule which is the subject of this proceeding and, in pertinent part, reads as follows: Upon consideration of the merits of each application and the recommendations of the review board, the Deputy Secretary for Health or his designee has discretionary authority to either grant a variance as requested, grant a provisional variance or deny the variance request. A variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where proper use of the onsite sewage disposal system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public. An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters. Variances shall only be granted to the permit applicant and are not transferable to other persons unless specifically authorized by the department as a stipulation of the variance approval. . . . (emphasis added). The rule also tracks the language of Section 381.0065(8)(a), Florida Statutes (1991), and requires that "special consideration" be given to those lots platted prior to 1972 in those instances where soil conditions, water table elevation and setback provisions are deemed by Respondent to be "satisfactory." While minor amendments to the rule were made March 17, 1992, the substantive content of Rule 10D-6.045(3), Florida Administrative Code, has remained virtually unchanged since February 5, 1985. Two adjective modifiers in the rule, the terms "minor" and "excessive" which respectively modify the terms "deviation" and "hardship", have not been formally defined by Respondent in the rule. Respondent's rationale for this failure, as professed in the testimony of Respondent's policy representative at the final hearing, was to permit Respondent's review board maximum freedom to evaluate and consider the merit of each application for variance on an individual basis within the statutory authority of Section 385.0065(8)(a), Florida Statutes, i.e., variances may be recommended by the board where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated.
Findings Of Fact Although numerous customers were present, four of them testified at the hearing. No service quality problems were described with regard to either water or sewer service. Indeed, several of the customers described water quality as being good or excellent. The primary concern of the customers was the magnitude of the proposed rate increase, although a number of then opined that some increase in rates may he necessary. Expert engineering witnesses presented by both the Comission and the Petitioner established that the Utility has not been cited by any local, state or federal agency for health or environmentally related violations. No corrective orders are in force either by the Department of Environmental Regulation, the Lee County Health Department, or the Public Service Commission. The water and sewer treatment exceeds all governmental quality standards extant. In order to enhance service quality, the company has constructed a one million gallon ground storage tank and has installed an additional high-service pump. All parties agree that the cost of these improvements should be added to the Utility's rate base for purposes of this proceeding. Rate Base The Utility propounded evidence alleging its proper water rate base to be $1,872,470.00 and the appropriate sewer rate base to be $1,917,931.00. In arriving at the Utility's net investment in property used in the public service (rate base), it is necessary to calculate the amount of contributions-in-aid-of-construction, which serve to decrease the Utility's investment. Normally, where there has been a previous rate case for a utility in which the utility's net investment would have been determined by the Commission, the calculation of the utility investment in a current rate case is generally competed by adding additions to plant-in-service and subtracting additional contributions-in-aid-of construction in order to arrive at the current net "return yielding" investment. In the instant proceeding, however, Lehigh has elected to take issue with the amount of contributions-in-aid-of-construction (CIAC) previously determined by the Commission in the last rate case. In that last case (Docket No. R-73384-WS), the amount of CIAC was determined by multiplying water connections by $350.00 and sewer connections by $400.00. (See Exhibits 10, 19 and 20) The Utility in the prior proceeding agreed with that method of calculation and, further, two land sales contracts in evidence show that a charge of $750.00 for "sales price of water and sewer" to purchasers of houses in the service area has been imposed by the Utility or its predecessor, Lehigh Corporation (development company), when the Utility was merely a division of the development company. Notwithstanding that prior position, the Utility in this proceeding has elected to attempt to prove its level of CIAC ab initio and has conducted a "Special CIAC Study" in an attempt to show that the amount of contributions is now substantially less than the amount it and the Commission agreed to be applicable in the last rate proceeding and that which the Commission maintains is germane to this proceeding. The Utility thus is alleging that the appropriate charge per connection for CIAC is $650.00 for a water and sewer connection as opposed to the Commission's contention that the figure should be $750.00 per connection. Although a developer's agreement with an affiliated company shows a water and sewer connection charge of $650.00, the testimony of a senior officer of the Utility establishes that there were a total of 1,308 such contracts indicating a sales price for water and sewer service of $750.00. The Utility contends that only $650.00 of the $750.00 charge in question was actually transferred to the utility company and that, therefore, the $650.00 is the appropriate amount to attribute to CIAC. There is no question, however, that with regard to these 1,308 land sales contracts, that $750.00 was actually collected from the lot purchasers involved as the sales price of water and sewer service. Thus, the actual amount of CIAC paid by those 1,308 customers was $750.00 each, for a total of $981,000.00 for water and sever service and that figure represents in its entirety contributions-in-aid-of-construction. The contracts for which the customers involved paid $750.00 for water and sewer service, were entered into in the latter 1960's and early 1970's. Prior to that time, the same type of contracts carried an amount of $650.00 for water and sewer and following the period of time when the fee was $750.00, the line item in the contract was changed so that there was no longer any separate item providing for "sales price of water and sewer." The water and sewer charge was thereafter included in the amount charged for "sales price of improvements." Thus, contrary to the position of Lehigh, because of the segregation of the items in the purchase price shown in these land sales contracts into separate figures for price and for the sales price of water and sewer service, there have been shown to be definite, proven amounts of contributions-in-aid-of-construction supported by company records. The remaining portion of the contributions attributable to the Utility and not represented by these contracts were contributed in the sum of $650.00 per connection, with which figure both parties agree. An additional issue regarding contributions and the "Special CIAC Study" concerns contributions recorded as income from the inception of the Utility operation until November 30, 1964. As demonstrated by Exhibit 12, the amount of contributions recorded as income equals $756,656.00. The Utility's own "Special CIAC Study" refers to contributions recorded as income and Lehigh received sums of money for the availability of water and sewer service in the early 1960's which it treated as income. During the early 1960's when the Utility was regulated by Lee County, the Lee County regulatory board allowed it and other water and sewer utilities to receive and record service availability fees as revenue. This was done in order to enhance the apparent financial posture of the utilities and therefore improve their credit status as an aid to financing improvements. There is no question that those fees during this time period were paid into the Utility or its predecessor for water and sewer service availability and hence should properly be accounted for as CIAC. It might be argued, as the Utility does, that if Lehigh declared the contributions it received to be revenues with the Internal Revenue Service, then the benefit of those contributions or the amount of revenue they represent to the Utility would be reduced by the amount of the resulting income tax, and that if they are now determined to be contributions instead of revenue that an additional detriment to the Utility would occur by the reduction by that amount of its rate base and, therefore, its dollar return. It should be pointed out, however, that because of the tax advantages of the Utility's demonstrated operating loss carry-overs and investment tax credits, as well as accelerated depreciation, all of which tax advantages this Utility has been able to employ, no actual income tax has been paid on such "revenue." Further, Lehigh is depreciating this $756,655.00 in assets in its returns to the Internal Revenue Service and is thereby recovering the costs of the assets. If the Utility is permitted to treat them for regulatory rate-making purposes as revenue instead of CIAC, then the effect would be to maintain rate base and return at a correspondingly higher level than if these amounts are determined to be CIAC, which would reduce rate base and thereby the net investment upon which a return could be earned for regulatory purposes. Thus, the appropriate amount of contributions-in-aid-of-construction for the water system as of the closing date of March 31, 1979, equals $1,057,000.00. The amount of contributions-in-aid-of-construction attributable to the sewer system as of that date equals $1,389,977.00. (Net of amortization). The detailed calculations and adjustments supportive of the above findings with regard to rate base are attached hereto and incorporated by reference herein as Schedules I, II and II. The first issue to be concerned with in calculating the operating expense basis for the revenue requirement is the cost of the above-referenced CIAC study. The Utility prepared this special CIAC study because of its fear that, in view of the Commission's decision in Tamarac Utilities, Inc. v. Hawkins, 354 So.2d 437, that it would not otherwise be able to meet its burden of proof on the issue of contributions and therefore would suffer a dismissal of the petition. In the Tamarac case, the Public Service Commission auditors encountered numerous problems resulting from a lack of primary data supporting the amount of contributions and the Commission issued an order allowing the Utility to provide clarifying evidence. When the Utility failed to satisfactorily perform this task, it ultimately suffered a dismissal of its petition and a refund of monies collected under interim rates. In this case, however, it has been demonstrated that there is no dearth of primary data or books and record supportive of the level of CIAC; nor has an order been issued requiring this Utility to provide such clarification or a "study" of its CIAC. Moreover, in the case of this utility, a previous rate case has been finalized wherein it was found by the Commission that there was a definite, specific level of contributions which were also consistent with those alleged by the petitioner in that proceeding. Thus, there is adequate primary data upon which a determination of CIAC can be computed in this proceeding without resort to a "Special CIAC Study" and the additional increment of rate case expense it represents. It should be further noted that even if the instant case involved a "Tamarac situation" where financial books and records were not adequate to properly document contributions-in-aid-of-construction that, in that event, if a CIAC study were made, then the proper rate-making treatment would be to amortize tile cost of that study over several years, since it is a large, nonrecurring expense in the Utility's operation, as opposed to allowing the entire expense to be written off (and charged to the customers through rates) based upon one year. The Utility has alleged that certain additional pro-forma adjustments to various expense items should be accomplished in order to arrive at the appropriate revenue which will support an adequate rate of return. Thus, the increased costs alleged for purchases of lime, chlorine and gasoline, depicted in the attached schedules incorporated herein, were undisputed, agreed to, are reasonable and therefore should be accepted. The alleged pro-forma cost for payroll is a mere estimate and not supported by competent, substantial evidence. Additionally, it was established by the Commission's accounting witness that certain rate case expenses arose from a prior rate case and therefore should be removed from consideration in arriving at revenue requirements for purposes of this proceeding. This adjustment was not contested, nor were similar adjustments to remove depreciation expense on construction work in progress, to remove depreciation expense on the contributed property, to remove unsupported property taxes, and to remove property tax as an expense and depreciation expense attributable to non-used and useful portions of the Utility's invested plant. None of these adjustments were disputed by the Utility. They are appropriate and reasonable and should be adopted. The Utility has also requested allowance of a $55.00 annual fire hydrant charge and a $10.00 charge for the initial commencement of service. The Utility submitted evidence (Exhibits 6 and 7) supportive of the actual number of water and sewer connections made during the test years as well as the costs upon which the initial commencement of service charge requested is based. The Commission did not dispute, therefore, the requested $10.00 charge for initial commencement of service and, inasmuch as the current $25.00 annual fire hydrant charge was established in the late 1960's and was shown to be no longer sufficient to cover costs, the Commission also did not dispute the increase in the annual fire hydrant charge from $25.00 to $55.00, which accordingly should be increased. Cost of Capital The Utility has requested a rate of return of 11.76 percent which includes an attrition allowance of .78 percent. There is no dispute as to the debt-equity ratios in the capital structure of the Utility. The common stock equity represents approximately 49.57 percent of the total capitalization. Long-term debt makes up 35.96 percent of capital and cost-free capital items make up 14.47 percent. The cost rate of the equity in the capital structure was established by the Commission's financial expert witness to be 14.5 percent or the midpoint in a range for companies and utility companies possessing a similar degree of risk to equity investors of 13.5 percent to 15.5 percent. The 14.5 percent cost of equity figure represents an accurate assessment of the opportunity costs of equity capital for such a company. The imbedded cost of long-term debt is 8.3 percent, which is a very advantageous rate to be enjoyed by such a company in today's money market and reflects a high degree of management efficiency on the part of the operation and management personnel of the petitioner. These two items, when combined with a zero cost factor shown to be appropriate for the cost-free capital items, results in a calculated rate of return of 10.35 percent, which does not take into account an attrition allowance due to inflation. The Utility advocated an attrition allowance equal to 10 percent of the weighted cost of equity capital to help offset the erosion in earnings caused by inflation. There can be little doubt that attrition of earnings due to significant inflation in costs of operation experienced by such companies is a very real factor. However, this record contains no substantial and competent evidence to demonstrate whether the utility wants coverage of capital attrition or attrition of its ability to cover operation and maintenance expenses nor which could justify the alleged 10 percent factor or any other quantification of attrition of earnings which may be experienced. Thus in the absence of a definitive establishment of the appropriate attrition factor, a cost of equity and a corresponding return on rate base in the midpoint of the range found above is appropriate. Thus, the proper return on rate base for this Utility has been shown to be 10.35 percent, which is within the range 9.85 percent to 10.84 percent. A summary of the cost of capital structure and weighted cost of capital calculation is depicted as follows: CALENDAR YEAR 1979 COMMON STOCK EQUITY RATIO 49.57 COST RATE 14.5 WEIGHTED COST 7.19 LONG TERM DEBT 35.96 8.8 3.16 COST FREE 14.47 -0- -0- 10.35 Floor CSE at 13.5 9.85 Ceiling CSE at 15.5 10.34 In summary, the required operating revenue for the Utility's water system should be $658,451.00 which results in an operating income of $211,407.00. The sewer system requires an annual, gross operating revenue of $475,629.00 in order to obtain a return or operating income of $130,017.00. The operating expenses and adjustments supportive of these figures are depicted in more detail in Schedules IV, V and VI attached hereto and incorporated by reference herein. The sewer revenue requirement found herein is less than the interim revenues authorized for sewer service, thus a refund is in order.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Lehigh Utilities, Inc. be granted in part, and that the Utility be authorized to receive a gross annual water revenue of $658,451.00 and gross annual sewer revenue of $475,629.00 to be achieved by rates filed with and approved by the Public Service Commission. It is further RECOMMENDED that the Utility be required to file revised tariff pages containing rates designed to produce annual revenues in the above amounts. It is further RECOMMENDED that the Utility be required to refund the interim sewer revenues previously authorized in this proceeding which exceed those sewer revenues determined to be appropriate herein. It is further RECOMMENDED that the above refunds be accomplished within ninety (90) days. This Recommended Order entered this 13th day of October, 1980, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1980. COPIES FURNISHED: R. M. C. Rose, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 William H. Harrold, Esquire 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Richard Byers, was a licensed cosmetologist in the State of Florida having been issued license No. CL0155765 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was the manager of Today's Hair and Nails, a cosmetology salon located at 3936 West Hillsboro Blvd. Deerfield Beach, Florida (the "Salon"). A Department of Professional Regulation inspector visited the Salon on July 27, 1990. During that visit he noticed certain problems which he discussed with Respondent. Among the items discussed were the ventilation in the Salon and certain sanitary problems in the Salon. The evidence was inconclusive as to the specific sanitary problems found during that inspection. The investigator indicated that he would return to follow-up on those matters at a later date. The Department's inspector returned to the Salon on August 6, 1990. Respondent was not working on that day. During the second visit, the Department's investigator noted that many of the problems discussed during the first visit had been corrected. For example, the ventilation had been improved and wet sanitizers were being utilized. However, some of the work stations, including Respondent's work station, were not clean. The countertop at Respondent's work station was cluttered and dirty and there were brushes with hair still in them. In addition, the drawer at Respondent's work station was not dry sanitized. Respondent argues that, since he was not working on the day of the second inspection, he should not be charged with any sanitation violations on that day. Respondent contends that he would have cleaned up his work station and sanitized all equipment before beginning work on customers the next day when he returned. However, no adequate explanation was given for the uncleanliness of his work station over the weekend. There is no evidence that any unsanitized equipment was used by Respondent on customers. The evidence does not clearly and convincingly support a conclusion that Respondent was not utilizing proper sanitation procedures before the combs and brushes were used on a customer. Without evidence of such use, Respondent cannot be guilty of a violation of the Board's rule on the provision of wet sanitizers and the sanitation of combs or brushes before their use. However, the evidence did establish that Respondent did not cleanse, sanitize and store his implements in a clean closed cabinet until used as required by the Board's Rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order reprimanding Respondent for violating Chapter 477, Florida Statutes and imposing a $50 fine. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July, 1991. J. STEPHEN MENTON 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 10th day of July, 1991. COPIES FURNISHED: Mark E. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Richard Byers 9769 N. W. 20th Street Coral Springs, Florida 33071 Richard Byers c/o Today's Hair & Nails 3936 West Hillsboro Boulevard Deerfield Beach, Florida 33442 Myrtle Aase Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are: Whether Mr. Decker had an improperly maintained septic system on his property. Whether Mr. Decker illegally repaired his on-site sewage treatment and disposal system. Whether the Department of Health properly issued a citation to Mr. Decker for violation of Sections 381.0065(4) and 386.041(1)(b), Florida Statutes.
Findings Of Fact On April 25, 1997, an employee of the Department of Health, Volusia County Health Department, David Stark, inspected Mr. Decker's property known as Bulow Creek Farm. Mr. Decker provides low-cost rental housing on this property which utilizes an onsite well to provide drinking water. Mr. Stark observed a wet area in the ground with the smell of sewage near the building identified as Apartment Building C, which houses seven (7) apartments. Mr. Stark identified this area as a sewage leak. On May 28, 1997, Mr. Stark returned to Mr. Decker's property with another Volusia County Health Department employee, Ed Williams. They both observed a wet area in the ground with the smell of sewage in the vicinity of the septic tank serving Apartment Building C. Mr. Stark identified this area as a sewage leak. Mr. Stark issued a Notice of Violation (NOV) to Mr. Decker which stated the raw sewage leak was a sanitary nuisance and provided that Mr. Decker should have his drainfield repaired in accordance with the repair permit Mr. Decker had previously obtained from the Department. The NOV stated the repair should be completed no later than June 11, 1997. A repair permit is valid for a period of eighteen (18) months. Mr. Decker's permit expired on April 20, 1997. Repairs must be inspected by the Department as they are made. On June 13, 1997, Mr. Stark mailed Mr. Decker a letter reiterating the need for repair of his septic system and enclosed a Notice of Intended Action giving Mr. Decker a deadline of June 20, 1997 to make the needed repairs. Mr. Stark received a letter dated June 29, 1997, from Mr. Decker, informing him that Mr. Decker, himself, had repaired the drainfield for Apartment Building C. The letter described the new tank and drainfield which Mr. Decker had installed, and Mr. Decker stated his repair was a "cheaper version of what you wanted me to do in the first place." Mr. Decker had not sought the required inspections for the repairs which he had made to the septic system, and the repairs were not inspected and approved by the Department. The Department cited Mr. Decker for having an improperly built or maintained septic system, and for failing to repair the system in accordance with the terms of the permit. The citation levied a $500 civil fine for Mr. Decker's violation.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue a final order affirming the civil penalty against Mr. Decker and requiring Mr. Decker to repair his septic system according to permit. If Mr. Decker fails to effect the repairs, the Department should initiate action to abate this public health hazard. DONE AND ENTERED this 6th day of March, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
The Issue This proceeding was commenced on February 7, 1985, when the Division issued its Notice to Show Cause, alleging a list of seven violations of Chapter 509 Florida Statutes and certain administrative rules. The matter was handled informally and Final Order was entered by Division Director, R. Hugh Snow, on April 11, 1985. (H & R No. 23-16678R). The Final Order was later withdrawn pursuant to an Order of the First District Court of Appeal, (Case No. BG-307, dated October 29, 1985) and the matter was forwarded to the Division of Administrative Hearings. At the commencement of the hearing, George Frix was determined to be authorized to represent his family-held corporation. See Magnolias Nursing and Convalescent Center v. DHRS, 428 So.2d 256 (Fla. 1st DCA 1982). The Petitioner presented the testimony of four witnesses and nine exhibits, marked A-l. The Respondent testified on his own behalf and one exhibit was admitted. Both parties submitted post-hearing proposed recommended orders. On January 27, 1986, Petitioner filed a Motion to Strike certain portions of Respondent's proposed recommended order, based upon Respondent's attachment of five exhibits to his proposed order. Those attachments labeled Exhibits #1 through #4 were not entered into evidence at the hearing and were not considered in the preparation of this Recommended Order. However, the attachment labeled Exhibit #5 was admitted at the formal hearing as Respondent's Exhibit #1 (Final Order of the Division, dated 4/11/85). This document is part of the record in this proceeding. Except as addressed above, the Motion to Strike is Denied. A specific ruling on each party's proposed findings of fact is found in the appendix attached to, and incorporated as part of this Recommended Order. The issue in the proceeding is whether Respondent committed the violations alleged in Petitioner's February 7, 1985, Notice to Show Cause, and if so, what disciplinary or corrective action should be taken.
Findings Of Fact At all times relevant, Sangeo has held license number 23-16678R for the premises known as the Provider at 9713 N. E. 2nd Avenue in Miami Shores. The license was initially issued in January 1982, with an effective date of December 1981. The license is a counter and take-out license; that is, it permits the consumption of food on the premises and preparation of food for take-out. (Hayes testimony). The establishment consists of a sandwich take-out, meat market and grocery. Tables and chairs are provided for the customers, but there are no waitresses. The establishment has a beer and wine license, but not a "COP" (consumed on premises) license. (Testimony of Frix). The Division of Hotels and Restaurants, the licensing authority, maintains a contract with the Department of HRS to conduct inspections of restaurants on a quarterly basis. (Testimony of Livingstone and Hayes). Joanna Thomas, an Environmental Health Specialist, employed by the Dade County Health Department, conducted her first inspection of the licensee on October 24, 1984. She found several code violations: no urinal in the men's room, the hand wash sink blocked by bicycles and inaccessible, an open hole over the heater, failure to keep food at the required temperature, and other violations which she noted on her report and explained to the manager at the premises. (Thomas testimony). Ms. Thomas returned for a follow-up inspection on October 30, 1984. Some corrections had been made. The manager was told that the urinal had to be installed by the next routine inspection visit. (Thomas testimony). The next inspection was conducted on January 4, 1985. Again, several violations were found, and the following remedial actions were listed in the instructions on the inspection report: (The numbers correspond to the numbers on the violation checklist). #5 Provide approved thermometer as was told. #8 Elevate foods off floor in walk-in. #16 Install drainboards on both ends of three-compartment sink. #17 Provide chemical test kit. #20 Provide sanitizing agent for utensils. #25 Store single service articles upside down. #31 Install urinal in one of the restrooms. Handwash sink must be accessible at all times. #33 Provide covers for garbage cans and keep covered. Provide approved garbage containers - not plastic. #36 Clean floor on the side of hand wash sink and clean under items in the storage room. #37 Repair hole over heater or provide a screen to protect entrance of insects/rodents. #38 Light bulbs must be shielded in preparation and dishwashing area. #42 Remove unnecessary articles from storage room. Arrange storage so that floor could be reached for cleaning. Store cleaning maintenance equipment properly. (Petitioner's Exhibit A) At the follow-up inspection on January 10, 1985, Ms. Thomas noted that some of the violations were still not corrected. She found failure to comply with the following: #16, 17, 31, 33, 37, 38. (Numbers correspond to the instructions listed in paragraph 5, above). These violations were the basis for the Notice to Show Cause which gave rise to this proceeding. (Petitioner's Exhibit 3, Notice to Show Cause dated 2/7/85). On February 22, 1985, Ms. Thomas found compliance with #37 and $38, but not the other violations. On her April 10, 1985 inspection visit, her primary concern was that the urinal was still not installed. On her most recent visit on December 11, 1985, a reinspection, all prior violations had been corrected, except the installation of a range ventilation system (not at issue in the Notice to Show Cause) and the urinal. (Testimony of Thomas, Petitioner's Exhibit C). The Provider does not now have, nor has it ever had, a urinal in the men's room. It was issued a license without one. The other violations, designated as "minor" on the January 4, 1985 inspection report, existed for varying periods or occasionally re-occurred, but no longer existed by December 11, 1985. The establishment maintains drainboards, but they are portable and not always in view. A handwash sink exists but on occasion it is blocked. Shields are utilized over the light fixtures, but are removed periodically for cleaning. (Testimony of Frix, Petitioner's Exhibits A and C). George Frix conceded at the hearing that space exists to install a urinal. However, he claims that installation of another water-using device is prohibited by the local pollution control authority. No evidence of that prohibition was presented to substantiate the claim. He also claims that the requirement for the urinal did not exist at the time his license was issued and cites the Division's previous "Final Order", dated April 11, 1985, for authority, since the order does not require correction of the missing urinal. (Testimony of Frix, Respondent's Exhibit
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order finding the Respondent guilty of the violations cited in paragraphs A, B, D, E, F and G of the Notice to Show Cause, dated February 7, 1985, and imposing a fine of $300.00 ($50.00 per violation). That Petitioner enter a Final Order finding the Respondent guilty of the violation cited in paragraph C of the Notice to Show Cause dated February 7, 1985, and requiring that compliance be demonstrated within 60 days of the date of the Final Order or thereafter that license No. 23-166F-R be suspended until compliance is demonstrated. DONE and ORDERED this 6th day of February, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986. COPIES FURNISHED: Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Post Office Box 3457 Tallahassee, Florida 32315 Lynne Quimby, Esquire Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George A. Frix, President Sangeo, Inc. P.O. Box 530583 Miami Shores, Florida 33153 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of feet submitted by the parties to this ease. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact #1. Adopted in Finding of Fact #2. Adopted in Finding of Fact #3. Adopted in Finding of Fact #4. Adopted in Finding of Fact #5. Adopted in Conclusion of Law #5. Rejected as a statement of testimony, not a finding of fact. Adopted in Finding of Fact #6. Rejected as immaterial, cumulative and unnecessary. Rejected as immaterial, cumulative and unnecessary. Rejected as a simple statement of testimony rather than a finding of fact. Rejected as cumulative and unnecessary. 13-23. These "proposed findings of fact" are mere recitations of the testimony of various witnesses, and are rejected as such. To the extent that the testimony was credible, material and necessary, the facts adduced are reflected in Findings of Fact #7, 8 and 9. 24-27. These paragraphs citing provisions of the Administrative Code are addressed in Conclusions of Law #4 and 5. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a statement of testimony rather than finding of fact. However, the substance of this paragraph was addressed as Respondent's defense in Finding of Fact #9. Rejected as presenting evidence that was not introduced or admitted at the final hearing (Exhibits 1-4). These exhibits are also immaterial. Exhibit #5 is addressed in Finding of Fact #9. Rejected as a statement of Respondent's testimony and argument of his position. He failed to produce authority that the law and rules did not exist when the facility was licensed. Rejected as substantially inconsistent with the evidence. Rejected as a statement of the Respondent's testimony. His argument that the violations charged were the result of a personality conflict between employees of Petitioner and Respondent, is rejected as based upon wholly unsubstantiated hearsay, and inconsistent with the greater weight of the evidence. Rejected as immaterial. Adopted in part in paragraph 8. The final sentence is rejected as inconsistent with competent substantial evidence that the violations existed on January 10, 1985 and, in some cases, longer.
