The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated March 8, 2010, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact The Division is the state agency charged with regulating the operation of public lodging establishments and public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is a restaurant operated under License Number 5807590 at 5731 South Orange Blossom Trail, Orlando, Florida 32839. El Valle Restaurant, Inc., is the owner of the restaurant. PE 1. Petitioner's employees inspected Respondent's premises on March 19, August 6, September 24, and December 3, 2009, and February 16, 2010. During these inspections, numerous violations were seen and incorporated into separate Food Service Inspection Reports for each of these dates. Several follow-up inspections were conducted during these times and noted violations had not been corrected, which ultimately led to the filing of the Administrative Complaint. PE 1-6; T 33-34. Petitioner's witnesses characterized several violations as "critical violations" such as inadequate hand washing; the use of unclean cutting boards; hot water turned off at the only kitchen hand sink; undated potentially hazardous ready–to-eat– food held over 24 hours; improper drainage of raw sewage; the three compartment sink not used in the correct order (wash, rinse, and sanitize) and no hot water used at the mop sink; and a lack of a chemical test-strip kit available to verify the concentration of chemicals at the manual ware washing area. See, e.g., T 16-19, 34-44, 47-48. Critical violations are those that will significantly contribute to food contamination, illness, or health hazards. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(a) for a definition of "critical violation." Other non-critical violations included the lack of a plan review submitted and approved for renovations that were in progress and the unavailability of a choking sign. See, e.g., T 44-50. Non-critical violations are those that are not as likely to significantly contribute to those hazards mentioned above. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(b) for a definition of "non-critical violation." Petitioner's Composite Exhibit 7 includes a certified copy of a Final Order on Waiver entered by the Division on June 27, 2008. T 50. This order resolved the allegations in an Administrative Complaint filed against Respondent on April 8, 2008, alleging violations of provisions of chapter 509, Florida Statutes. This order indicates that Respondent did not respond to this Administrative Complaint. Petitioner assessed Respondent an administrative penalty of $1,000, and Respondent was also required to attend a workshop sponsored by the Hospitality Education Program. This order was offered into evidence solely for the purpose of consideration of an increased penalty pursuant to Rule 61C-1.005(7)(a) if the underlying charges were proven. T 50. The allegations in the Administrative Complaint, as found herein, were proven by clear and convincing evidence.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order, which confirms the violations found and imposes on El Valle Restaurant an administrative fine in the amount of $3,500. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011.
The Issue The issues are whether the shelves of a walk-in cooler were rusty and pitted, in violation of Food Code Rule 4-4.101.19; grease was deposited around the grease receptacle, in violation of Food Code Rule 5-501.116(B); and the employer failed, upon request, to provide evidence of employee food-handler training, as required by section 509.049(5), Florida Statutes. If any of these violations are proved, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent operated a restaurant located at 1851 Broadway in Riviera Beach, Florida, as a public food service establishment under Permanent Food Service license 6009125. On October 16, 2015, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered four violations, including rusty and pitted shelves in the walk- in cooler, grease deposited around the grease receptacle, and a failure, upon request, to produce evidence of employee food- handler training. The first two violations are "basic," and the third violation is "intermediate." The inspector gave Respondent until December 15, 2015, to correct these violations. On December 17, 2015, Petitioner's inspector conducted a callback inspection of Respondent's restaurant. The inspection uncovered the three violations cited in the preceding paragraph. Rust on shelves used for the storage of food can cause food-borne illness. Respondent's defense that no food was placed directly on a rusty shelf does not mean that no food would ever be placed directly on a rusty shelf by a shiftless employee. Greasy buildups of the amount found on inspection can attract vermin that may serve as human vectors of food-borne illness, as the vermin roam the restaurant premises. Respondent's defense that the area in question "wasn't that bad" misses the point that, if it is bad enough that it can attract vermin, it is bad enough to constitute a violation. At the time of both inspections, Respondent failed to provide current training certificates of his employees because the training certificates of employees who had been employed at least 60 days had expired. Respondent's defense is that he needed more time, but the facts fail to support this claim. The three-year term of the expired certificate was enough time for an employee to obtain recertification, and Petitioner allowed Respondent an additional 60 days from the first inspection. Petitioner issued a final order against Respondent within the 24 months preceding the date of the issuance of the Administrative Complaint in this case. By final order issued on September 10, 2015, Petitioner imposed an administrative fine of $325 for three violations that were detected on February 24, 2015, and uncorrected by May 5, 2015. These violations were a failure to hold food cold at the specified temperature, failure to maintain the proper temperature within the walk-in cooler, and failure to provide hot water at the employee handwash sink and both restrooms.
Recommendation It is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of the three violations set forth above and imposing a fine of $1000. DONE AND ENTERED this 21st day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2016. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Charles LaRay Dewrell, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 (eServed) Mohamed Tantawi Miami Subs Grill 1851 Broadway Riviera Beach, Florida 33404 Rick Akin, Director Division of Hotel and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
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.
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license number 1621408. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits, Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than 135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/ The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2013.
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Findings Of Fact Petitioners operate an adult congregate living facility, meeting the definition set forth in Part II of Chapter 400, Florida Statutes, for such a facility. The facility is known as "Florida Happiness" and is located at 174 N.W. Second Avenue, Homestead, Florida. On February 22, 1988, Respondent notified Petitioners that their application for increased capacity and application for license renewal were denied due to multiple and repeated violations of minimum standards governing the operation of such facilities. Certain violations with regard to Petitioners' facility were discovered during the course of inspections conducted by Respondent's employees in January, April and August of 1987. Some of the violations found in January, 1987, were related to food service requirements and were uncorrected by Petitioners at the time of subsequent visits by Respondent employees in April and August of that year. The noted deficiencies were determined by Respondent to have been corrected as the result of another survey conducted on October 23, 1987, but Respondent's subsequent inspections conducted on January 11, 15 and 19, 1988, revealed some of those violations were again in existence. Among the violations found were: Facility income and expense records were not available for review. Also, resident contracts did not contain a refund policy addressing disposition of resident prepayments in the event of transfer of ownership of Petitioners' facility, closing of the facility or discharge of a resident. Petitioners did not provide evidence demonstrating that food service personnel received orientation, training or supervision in regard to their duties, or that such duties were performed in a safe and sanitary manner. Evidence also was not provided that the food service personnel participated in required in service education or possessed requisite knowledge of food and dietary requirements. With regard to therapeutic diets, no evidence existed that documentation of meal patterns, including types and amounts to be served, were properly filed, or that diets were served as ordered. Petitioners did not demonstrate that regular diets were planned or served to meet the nutritional needs of residents in accordance with current recommended dietary allowances. Existing menus did not depict realistic portion amounts or document availability of basic food groups. Menus presented did not show that the food served supplied sufficient calories or quantities. There was no documentation that dietary allowances were met by offering a variety of foods adapted to the food habits, preferences and physical abilities of residents. Petitioners made no showing that substitute foods with comparable nutritive value were planned and offered to residents who refused the normal fare. Menus were not dated and planned one week in advance. The required one week's supply of emergency food and water was not maintained at the facility. The fire alarm system was found to be inoperative and laundry rooms did not have self closing doors. Live roaches were found on kitchen shelves, thermometers in the refrigeration facilities of the kitchen were not functioning correctly, generally refrigeration facilities were soiled and roach infestations were evident. Pots and pans evidenced poor sanitation in that particles of foreign matter were found adhered to many of the containers. Written schedules for cleaning of dietary equipment were not in evidence or supplied to Respondent inspectors. Repeated food service sanitary code violations were corroborated by a Dade County Health Department inspector who found consistent problems with roaches, cleanliness and refrigeration thermometer equipment malfunctions at Petitioners' facility from later 1986 through the beginning of 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' application for increased capacity and relicensure. DONE AND ENTERED this 27th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1880 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. 3.-5. Rejected, not supported by the greater weight of the evidence. RESPONDENT'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. Addressed in finding 3. Addressed in finding 4. Addressed in finding 3. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services North Tower, Room 526 401 North West Second Avenue Miami, Florida 33128 S. Skip Taylor, Esquire 239 North East 20th Street Miami, Florida 33137 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The ultimate issue for determination is whether the Respondent committed the violations alleged in the Notice to Show Cause, issued on February 6, 1990, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was doing business at 26712 Southwest 144th Avenue, Naranja, Dade County, Florida, 33032-7404 as Village Diner. The Village Diner was operated under restaurant license number 23- 16870R. Mr. Steven Hoffman, Environmental Health Specialist Supervisor, Dade County Public Health Department ("DCPHD"), is an expert in food hygiene, safety, and fire safety. Mr. Hoffman's qualifications include certification by the Federal Drug Administration as a food inspector and certification by the State of Florida in fire safety and as a food hygiene coordinator. Mr. Hoffman has been employed by the DCPHD in various capacities for approximately 13 years. Mr. Hoffman's employment duties on January 12, 1990, included performing inspections of food service establishments in response to complaints received by the DCPHD. In response to a complaint, Mr. Hoffman conducted an inspection of the Village Diner on January 12, 1990. Mr. Hoffman found conditions comprising 18 alleged rule violations, of which eight are classified by Petitioner as major violations. Potato salad, cole slaw, and corned beef was improperly refrigerated at 60 degrees. 2/ Such food must be refrigerated at 45 degrees in order to avoid growth of dangerous bacteria that can lead to food poisoning. Food was stored on the floor of the walk-in refrigeration box and was not covered. Uncovered food left on the floor is susceptible to contamination by other substances dripping into the uncovered food and by other bacteria. Food utensils were stored in dirty water. Food prepared or served with utensils stored in dirty water may be cross-contaminated with bacteria from food or filth in the dirty water. Bulk containers used to store flour were dirty and needed to be replaced. Food contact surfaces were not clean, including stove grills, fryers, and the interior of refrigerators. The reach-in box contained dried, hardened splashes of meat. Wilted lettuce and other food debris had accumulated on the bottom of the reach-in box over a substantial period. Non-food contact surfaces were not clean, including walls and storage shelves. Walls were covered with accumulated grease and smoke. These conditions increased the probability of cross-contamination from bacteria and attracted vermin. The premises were infested with roaches and mice. Live roaches and droppings from mice were observed in and around the premises. Mouse urine was observed with a black light. Paper in open cans had been nibbled by mice. Roaches cause cross-contamination of food by picking up bacteria on their legs and carrying it to other foods. Mice contaminate food by urinating on it and by transporting fleas and ticks from one food to another. The floor under the cooking equipment was dirty. Walls were encrusted with old grease and dirt. Such conditions attract vermin. Toxic items were not stored properly. Boric acid powder was spread on top of pipes directly above a food service steam table. Respondent used the boric acid powder to control mice and other vermin. Boric acid is poisonous when ingested and is moderately toxic by skin and subcutaneous contact. Pressurized CO-2 tanks were placed beside a stove in the kitchen. An extension cord was improperly used in the kitchen. Lights in the kitchen were not shielded to prevent glass from falling into food in the event that a light bulb either was inadvertently broken or burst during operation. A pit in the rear of the premises contained white, congealed grease and emitted a foul odor. A trench had been designed to direct grease away from the premises and into the pit. The grease pit attracted vermin and contaminated ground water approximately eight feet below the surface. A faucet outside the premises was not equipped with a "backflow preventer". The absence of a "backflow preventer" permits contamination of the city water system from the premises in the event of negative pressure in the city water system. Not all of the garbage cans in the rear of the premises had plastic liners. Trash and debris was collected outside the back door of the premises. Trash and unused equipment was stored in the rear of the premises and in the storage room. The collection of litter and equipment attracts vermin by providing food sources and hiding places. Mr. Hoffman issued a Food Inspection Report at the conclusion of his inspection on January 12, 1990. Respondent was given until January 17, 1990, to correct the major violations noted in Mr. Hoffman's Food Inspection Report, and was advised that a Notice to Show Cause would be issued. The premises were re-inspected by Mr. Hoffman on January 18, 1990, and a Call Back/Re-Inspection Report was issued. Respondent corrected all of the alleged rule violations found on January 12, 1990, except two. Respondent was instructed to provide proper light shields over food surfaces and to clean sides of grills, fryers, and the tops of refrigeration units. A Notice to Show Cause was issued on February 6, 1990, citing the 18 rule violations found to have existed during the inspection conducted by Mr. Hoffman on January 12, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a fine be imposed against Respondent in an amount not to exceed $1,150. In the event that Respondent is unable to pay the fine imposed, it is further recommended that Respondent's license be suspended for a period not to exceed 20 days. RECOMMENDED in Tallahassee, Leon County, Florida, this 21st day of March, 1991. Daniel Manry 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 21st day of March, 1991.
