The Issue The issue presented for decision in this case is whether Respondent violated Section 509.032, Florida Statutes, as set forth in the Administrative Complaint dated August 15, 2000.
Findings Of Fact Based on 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 times relevant to this proceeding, Petitioner is the state agency charged with licensing, regulating, and inspecting public lodging establishments to protect public safety. To accomplish this purpose, Petitioner employs persons trained to inspect public lodging establishments to ensure compliance with health and safety regulations. Such inspectors visit and inspect these premises making routine inspections or, in response to complaints, to gather facts and make reports documenting their findings. At all times relevant to this proceeding, Petitioner employed Susan Cecilione ("Cecilione") as an Inspector assigned to its Division of Hotels and Restaurants. At all times relevant to this proceeding, Respondent, Hidden Cove Apartments, was a licensed public lodging establishment within the meaning of Subsection 509.013(4)(a), Florida Statutes, operating under license control number 15-04455H 000, and located at 1951 Southeast Convair Street, Palm Bay, Florida, 32909. During a routine inspection on or about July 14, 2000, Cecilione visited Hidden Cove Apartments. Cecilione's inspection revealed various violations. Specifically, Cecilione observed: The 2A10BC fire extinguisher at building 1961 was discharged; In apartment 101, building 1961, the electricity flickered on and off in the dining room area; Fire ant hills were observed along the walkways around buildings 1951 and 1961; The shower in apartment 103, building 1951, leaked behind the wall into the closet; The cement driveway was caving in and broken apart; There were no back flow prevention devices on hose bibbs at buildings 1951 and 1961; The laundry room had a heavy accumulation of lint and dirt on floor beside, behind, and beneath the dryer; (i) The front windows in many apartments had been either bolted closed or sealed so they could not be opened without the window falling out; There were broken screens on the sliding glass doors at apartments 103 and 104, building 1951; In apartment 102, building 1951 and apartment 101, building 1961, the front door sweeps and seals (gaskets) around the doors were loose fitting, leaving large gaps. Respondent was informed that all violations must be corrected by July 27, 2000. On or about July 28, 2000, Cecilione made a callback/reinspection visit for the purpose of determining whether Respondent had corrected the violations noted on the previous visit. One of the violations previously noted had been corrected. The laundry room had been cleaned. Each of the uncorrected violations listed in paragraph 5 hereinabove constitutes a separate and distinct potential hazard to the health and/or safety of individuals on the premises.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of violating the above-specified provisions of the Florida Statutes and Florida Administrative Code; that Respondent be required to pay a fine in the amount of $2,400; and that Respondent's license be suspended until the fine is paid. DONE AND ENTERED this 11th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2001. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David Moallem Hidden Cove apartments 2115 Palm Bay Road, Northeast No. 3 Palm Bay, Florida 32909
The Issue The issue for consideration in this proceeding is whether the Respondent’s license as an adult living facility should be subject to an administrative fine in the amount of five hundred dollars ($500.00) for repeated class III deficiencies.
Findings Of Fact The Respondent is the owner/operator of San Juan Retirement Home. The home is licensed to operate a 6-bed assisted living facility in Jacksonville, Florida. On March 5, 2003, AHCA conducted a survey of Respondent's facility. During that survey, Respondent did not have a fire safety inspection report within 365 days from an earlier fire safety inspection report. Because of the lack of a timely report the facility was cited for violating Tag A209, a Class III deficiency. Tag A209 requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction. In this instance the Agency interprets the word annual to mean 365 days from the last inspection report. Respondent had the facility inspected by the Fire Marshal on March 12, 2003. She received the report the same day. A follow-up survey was conducted on April 15, 2003. Tag A209 was noted as corrected in a timely manner by Respondent. Since this was the first Class III deficiency regarding the timeliness of the inspection report, no penalties were imposed by Petitioner on Respondent. On April 23, 2004, AHCA again inspected Respondent's facility. During the inspection, Respondent again did not have a fire safety inspection report completed within 365 days of the earlier inspection report of March 12, 2003. Because of the lack of the report, the facility was cited for a class III deficiency under Tag A209. Respondent admitted that she twice did not have a timely fire safety inspection report completed for her facility. The evidence demonstrated that, prior to the April 2004 inspection by AHCA, Respondent had called the Fire Marshal’s office to schedule an inspection for the facility. However, the call was not made until the expiration of the March 12, 2003, fire safety inspection report. For some unknown reason the Fire Marshal’s office did not schedule the fire safety inspection until after the April 2004 inspection. However, the Fire Marshal’s failure to schedule the inspection does not excuse Respondent’s lack of a timely inspection and report since Respondent remains responsible for obtaining the inspection and report in a timely manner and did not call the Fire Marshal’s office until the expiration of the earlier report. To her credit, Respondent obtained a new fire safety inspection report on May 4 or 5, 2004, after AHCA had inspected the facility.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED: That AHCA enter a final order imposing a $500.00 administrative fine for repeatedly failing to timely conduct or obtain an annual fire safety inspection report. DONE AND ENTERED this 9th day of November, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 9th day of November, 2004. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Mail Stop 3 Tallahassee, Florida 32308 Elvira C. Demdam San Juan Retirement home 6561 San Juan Avenue Jacksonville, Florida 32210 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner is entitled to additional credit for his answer to Item 264 on the "Principles and Practice" part of the October 1993 Fire Protection Engineer Examination.
Findings Of Fact Petitioner applied for licensure as a Fire Protection Engineer with Respondent, the state agency responsible for the licensure of Fire Protection Engineers in Florida. Petitioner was required to successfully complete an examination administered by the Respondent to become licensed as a Fire Protection Engineer. Petitioner sat for the licensing examination for Fire Protection Engineer administered by Respondent on October 29 and 30, 1993. A score of 70 is required to pass the "Principles and Practice" part of the licensure examination. Petitioner received a score of 66.30 on that part of the examination, which is a failing grade. Item 264 is a question for which a completely correct answer would have been awarded 10 points. Item 264 contained a diagram of a building and required the applicants to properly space heat or smoke detectors in the building and to justify the type of detection device used in a particular area. Petitioner was awarded a total of four points for his partially correct answer to Item 264. Petitioner would have passed the "Principles and Practice" portion of the examination had he been awarded eight or more points for his answer to Item 264. At Petitioner's request, his response to Item 264 was regraded by the National Council of Examiners for Engineering and Surveying (NCEES), a consulting firm utilized by Respondent to develop and score licensure examinations. When Petitioner's response to the exam was initially scored, he received a score of 4 points. The regrading of the examination did not change that score. The report prepared by NCEES in conjunction with the regrading of Petitioner's answer to Item 264 stated the following 1/ in explaining the score awarded for Petitioner's answer: The examinee did not reference the NFPA 72 A, D, and E standards 2/ to answer the question. The lounge area requires heat detectors rather than smoke detectors. The smoke detectors would be sending false alarms and they would be disconnected to stop the alarms. The heat detectors would be more reliable. The examinee's solution did not show detectors in the corridor, locker room, and boiler room; all of which are required. The examinee's solution did not space the detectors according to NFPA 72. According to the NCEES approved scoring plan, the examinee's solution demonstrates less than minimum competence (score of 4 points). Pursuant to the scoring standards that have been adopted, a score of four represents a borderline unqualified response, which is explained as being: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable, but marginally so. Petitioner's answer to Item 264 failed to properly space detectors in his answer, failed to place detectors in the corridor, locker room, and boiler room, and incorrectly placed smoke detectors in the lounge area instead of heat detectors. Petitioner did not establish that the standards used to score the examination were arbitrary, capricious, or devoid of logic. Petitioner did not establish that the application of those scoring standards to Petitioner's response to Item 264 was arbitrary, capricious, or devoid of logic. Item 264 is a reliable and valid test item. Respondent established that Petitioner's response to Item 264 was fairly graded. Petitioner is not entitled to additional credit for his response to Item 264.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and the conclusions of law contained herein and which DENIES Petitioner's challenge to the scoring of his answer to Item 264 of the October 1993 Fire Protection Engineer Examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November 1994. CLAUDE B. ARRINGTON 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 November 1994.
The Issue Whether Respondent is guilty of violating Sections 509.221(1) and (7) and 509.032, Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5), (6), and (13), 61C- 3.001(2), as set out in the Administrative Complaint dated March 24, 2003.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants (DHR) is the State Agency charged with regulating the operation of hotel establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. At all times material hereto, Respondent has been licensed by DHR or otherwise subject to DHR's jurisdiction, pursuant to issued License No. 26-00783. Respondent's last known business address is Clark Apartment and Rooms, 9762 Bayview Avenue, Jacksonville, Florida 32208. On February 3, 2003, and again on March 10, 2003, a DHR sanitation and safety specialist, John Phelan, inspected Respondent's premises. On February 3, 2003, the initial inspection, Mr. Phelan was accompanied by his superior, David Futlon. At the February 3, 2003, initial inspection, the following deficiencies were observed by both inspectors and noted for Respondent by Mr. Phelan: No proof was observed that the smoke detectors were interconnected as required by law and as stated by management. The door of a gas oven was held in place by a garden spade. Live roaches were on the floor and climbing the walls around the oven. The inspectors observed a stained mattress and a missing mattress pad on the bed in room They also observed that the second floor bathroom was out- of-order, and that shower curtains and shower stalls were dirty with soap scum. On March 10, 2003, Mr. Phelan returned to Respondent's premises by himself and noted that the foregoing problems/violations remained. According to both inspectors, the most serious violation was that there was no documentation that the smoke detectors were interconnected. This is a critical violation because it could present a potential fire hazard. The next violation that was found to be critical was that there was "a garden spade holding the oven door closed." This was seen as a violation because of the potential for fire. Next down the urgent and critical scale was the presence of live roaches around the oven. The absence of a mattress pad on room 17's mattress and the stain on the mattress were of somewhat less concern. However, these bedding problems are violations because they pose a sanitary issue. The next-ranked violation was that the second floor bathroom was out-of-order. The bathroom also presented a lesser sanitary issue, which was that the shower curtain and shower stall were dirty with soap scum. Based on the foregoing uncorrected deficiencies, Mr. Phelan caused an administrative complaint to be issued against Respondent on March 24, 2003, alleging Respondent's violation of Chapter 509, Florida Statutes, and/or the administrative rules promulgated thereunder. Although it was demonstrated at hearing that Mr. Clark, Respondent's principal, had been attempting, between the two inspections, to fix the originally-cited deficiencies, and although some progress at renovation had been made, most problems had not been fully addressed as of the date of the follow-up inspection on March 10, 2003. The credible evidence and testimony as a whole show that Mr. Phelan had recognized that a gas heater which had been cited at the initial inspection had been disconnected by the date of the second inspection and that it was no longer in use at the time of the second inspection. Therefore, the gas heater had been crossed off the notification to Respondent by Mr. Phelan and had not been cited as a violation in the administrative complaint. The stove also had been disconnected prior to the re-inspection. The gas heater and gas stove were disconnected at the same time, so propping the stove door open or closed with a spade had no significance with regard to fire hazard. Like the heater, the stove should have been removed from the premises as a safety precaution, but because Mr. Phelan did not know that the stove had been disconnected when he made his re-inspection, it was cited and included in the administrative complaint. The reason the disconnected stove was still present on the premises was because Respondent was fumigating for roaches by setting off "roach bombs" inside it. The fumigation of the roaches in an area where all other exit holes for them were intentionally sealed had resulted in some dead roaches, but many live roaches had fled into the kitchen in the vicinity of the stove. The live roaches were observed by all the witnesses who saw the kitchen on or about the re-inspection date. The testimony of several witnesses was credible that the upstairs bathroom's sink and tub had been repaired prior to the re-inspection. Mr. Musselwhite recalled credibly that he had screwed the faucet handles back on the tub between the two inspections. However, the testimony of Mr. Musselwhite that he was using the tub and sink upstairs at the time of the re- inspection is not credible. The greater weight of the credible evidence is that the tub and sink upstairs might have been repaired, but they were not actually in working order at the time of the March 10, 2003, re-inspection, because the water had not yet been turned back on. The evidence is clear that plaster board had been installed in the shower by the date of the re-inspection and that this was done to deal with the prior notice concerning discoloration. A dispute among the witnesses as to whether the discoloration on the old shower walls was soap scum, discoloration by scum removers, or mildew cannot be resolved. However, it was proven that, despite several changes of shower curtains between the two inspections, the shower curtains present on the re-inspection date remained covered with soap scum and/or mildew. Respondent admitted that the lack of a mattress pad on the mattress in room 17 on the date of re-inspection was an oversight. It was proven that a mattress from a first floor room had been moved upstairs to room 17. In the opinion of Respondent's witnesses, this constituted, a "new" mattress which was not stained. In this situation, Mr. Phelan's observation of the mattress stain is more credible. On his first inspection, Mr. Phelan told Mr. Clark that in the absence of other documentation, Mr. Clark needed to have the State Fire Marshall inspect Respondent's smoke detectors, in order to provide documentation that they were interconnected. By "interconnectedness" the parties meant that if one smoke detector sounded, then all of the smoke detectors throughout the hotel should also sound. Mr. McGee and Mr. Clark testified that between the two inspections the issue of the smoke detectors had been "looked into" with employees of Home Depot and at the local fire department. Mr. Clark stated that he had contacted the Jacksonville Fire Department, which would not give him any documentation, but its employees agreed to come and inspect his smoke detectors. Mr. Clark testified convincingly that he had purchased and installed smoke detectors from the Home Depot which did not provide written documentation of interconnectedness but which could be tested for interconnectedness by pushing their buttons. He maintained that if the inspector had punched the button on any single smoke detector on the re-inspection date, the interconnectedness of all the smoke detectors would have been demonstrated by their all "going off" at once. The inspectors did not punch the smoke detectors' buttons during the two inspections because they could not reach the buttons, as they had no ladders. Respondent was written-up by DHR on both occasions because written documentation of interconnectedness was not provided and because interconnectedness was not otherwise demonstrated. In other words, Respondent provided neither papers showing interconnectedness nor a physical demonstration of interconnectedness during the second inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, shall enter a final order: Finding Respondent guilty of violating Sections 509.221(1) and (7), Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5) and (6), and 61C-3.001(2), and not guilty of violating Florida Administrative Code Rule 61C- 1.004(13); Ordering Respondent to pay an administrative penalty in the amount of $2,500.00, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399, within 30 days of the final order; Requiring Respondent to attend a Hospitality Education Program class within 60 days of the date of the final order and provide proof thereof to the Department of Business and Professional Regulation Division of Hotels and Restaurants; and Requiring that Respondent pass a re-inspection of its premises within the same 60 days set out in (3), above. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 14th day of July, 2004.
The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint dated October 4, 2005, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following findings of fact are made: At all relevant times, the Division is the state agency responsible for licensing, regulating, and inspecting public lodging establishments. With particular relevance to this case, it is the Division's responsibility to establish and enforce rules pertaining to sanitation and public health and safety in accordance with relevant provisions of the Florida Statutes; to ensure compliance with its rules; and to impose discipline in appropriate circumstances. At all relevant times, Green Terrace was licensed by the Division as a public lodging establishment under license number 1605642. At all relevant times, Green Terrace was located at 260 Southwest 8th Street, Pompano Beach, Florida 33060, and was owned by Peter Sporea (Mr. Sporea). At all relevant times, Larry Torres (Mr. Torres), a certified food manager and specialized fire safety inspector, was employed by the Division as a sanitation and safety inspector. Mr. Torres' duties include conducting inspections of Division licensees, including Green Terrace. On or about August 5, 2005, Mr. Torres conducted a routine inspection of Green Terrace. Based upon his inspection he documented various sanitation and safety violations and issued a written warning to Green Terrace which directed that the violations be remedied within 30 days. On September 29, 2005, Mr. Torres returned to Green Terrace to conduct a re-inspection. His re- inspection revealed that the violations documented at the time of the inspection had not been remedied. Two violations observed by Mr. Torres were "critical" in that they are more likely than other violations to pose an immediate threat to public health or safety; the remaining violations were deemed by Mr. Torres to be “non-critical.” Non-critical violations are violations which pose risk to the public health or safety, but are not considered to present an immediate threat. The violations which Mr. Torres observed and documented at the inspection, and again at the re-inspection were: Violation 01-09, based upon Mr. Torres' observation that a portable fire extinguisher located near apartment four was not charged. Failure to provide and maintain fire extinguishers in an operational condition is a critical violation. Violation 12-02, based upon Mr. Torres' observation of a loose railing on the second floor balcony by apartment seven; all building structural components, attachments and fixtures shall be kept in good repair. This violation is a critical violation due to the risk of serious injury if a person were to fall from a second floor balcony. Violation 13-01, based upon Mr. Torres' observation of a door in disrepair and a broken window in or near apartment 10. This is a violation because building structural components must be kept in good repair. Violation 25-01, based upon Mr. Torres' observation that excessive trash was observed in various places on the property grounds. For example, discarded equipment such as stoves was observed in hallways on the second floor. Violation 26-01, based upon Mr. Torres' observation that garbage was lying loose on the ground in the fenced area where garbage cans are available for community use. This is a violation because proper disposition of garbage is necessary to prevent nuisance conditions. Violation 26-14, based upon Mr. Torres' observation that trash receptacles lacked covers. This is a violation because uncovered trash receptacles could attract pests and constitute a public nuisance. Violation 26-18, based upon Mr. Torres' observation of a soiled waste receptacle that was attracting pests. This is a violation because dirty receptacles may attract pests, as they did here, and constitute a public nuisance. Mr. Torres and Mr. Sporea were the only witnesses at hearing. The trier of fact closely observed each, and evaluated such factors as their demeanor under oath; their candor with the fact-finder and with the opposing party under cross-examination; their opportunity to speak from personal knowledge concerning relevant facts; and their respective backgrounds, training and experience. Mr. Torres was forthright, direct and entirely credible. Mr. Sporea dissembled, and provided no persuasive testimony with respect to any of the material allegations of the Administrative Complaint. Upon a finding that a public lodging establishment licensee has operated in violation of relevant provisions of the Florida Statutes or rules promulgated thereuder, the licensee is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license. In this case the Division has proposed that Respondent pay an administrative penalty in the amount of $2,700.00, and attend, at personal expense, a Hospitality Education Program approved by the Division. The proposed penalty is well within the Division's authority and is reasonable and generous under the facts and circumstances of this case.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a final order finding the violations described and imposing an administrative fine on Green Terrace in the amount of $2700 due and payable on terms prescribed by the Division; and requiring the owner and/or manager of Green Terrace to attend, at the licensee's personal expense, an educational program sponsored the Hospitality Education Program or other educational program approved by the Division, within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 24th day of July 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 24th day of July, 2006.
The Issue The issues in this case are whether the Respondent committed the violations alleged in an Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent has been licensed to engage in the food service business, having been issued license number 16-09404-R. At all times material to this case, the Respondent has operated a restaurant in which food was prepared and served to the public. The Respondent’s restaurant business is located at 625 East Atlantic Boulevard, Pompano Beach, Florida 33060. On July 7, 2004, the Respondent’s restaurant premises were inspected by Larry Torres. Mr. Torres is a Sanitation and Safety Specialist employed by the Petitioner. In conjunction with the inspection on July 7, 2004, Mr. Torres prepared a Food Service Inspection Report in which he noted matters of significance that he observed during the inspection. During the course of his inspection on July 7, 2005, Mr. Torres noted several deficiencies that were violations of applicable statutes and rules. Mr. Torres advised the restaurant owner of these deficiencies and required that they be corrected by the next day. On July 8, 2005, Mr. Torres re-inspected the Respondent’s restaurant. Some of the deficiencies had been corrected and progress was being made towards the correction of others. Mr. Torres granted an extension of time until July 21, 2004, for the correction of the remaining deficiencies. On July 22, 2005, Mr. Torres again re-inspected the Respondent’s restaurant. As of July 22, 2005, all but four of the original deficiencies had been corrected and efforts were underway to correct those four deficiencies. On this occasion Mr. Torres granted an extension of time until August 22, 1004, within which to correct the remaining deficiencies. On August 23, 2004, Mr. Torres conducted another re- inspection of the Respondent’s restaurant. At that time there were three uncorrected deficiencies. Those uncorrected deficiencies were identified by numbers. The numbers were 32, 37, and 45. Deficiency number 32 was the absence of a sign in the area of the employee hand wash sink reminding employees that they were required to wash their hands before preparing or serving food. This is not a critical violation.3 Deficiency number 37 was an unrepaired hole in the wall in the area of the mop sink. The evidence in this case does not reveal what type of safety or sanitation issue resulted from the hole in the wall in the area of the mop sink. This is not a critical violation.4 Deficiency number 45 related to the condition of the automatic fire suppression system incorporated into the hood over some of the cooking elements in the kitchen. The Respondent’s automatic fire suppression system was an older dry chemical system. Such systems require maintenance and testing once every six years, and the Respondent’s system was overdue for maintenance and testing. Automatic fire suppression systems of the type used by the Respondent are rather rare and it can be difficult and time-consuming to locate the dry chemicals necessary to maintain the system. This was a critical violation because of the possibility of having a kitchen fire at a time when the automatic fire suppression system might not be working. The Respondent’s manager made diligent efforts to resolve deficiency number 45. On July 8, 2004, he received a proposal from a fire protection company to replace the existing fire suppression system with a more modern system for approximately three thousand dollars. That was more than the Respondent’s owner was able to spend to resolve that problem. Eventually the Respondent’s manager found someone who would resolve deficiency number 45 by bringing the existing fire suppression system into compliance for only five hundred dollars. By September 27, 2004, the fire suppression in the hood was in compliance and deficiency number 45 was resolved. The Respondent’s manager procrastinated in addressing deficiency number 32 because of his concerns about resolving the more serious matter of deficiency number 45. It took several months for the Respondent’s manager to hang hand washing signs near the employee hand washing sink. The Respondent’s manager addressed deficiency number 37 a bit sooner. At about the same time that deficiency number 45 was resolved, the manager also patched the hole in the wall by the mop sink area.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the three violations identified in the three numbered paragraphs of the Administrative Complaint existed on the dates alleged in the Administrative Complaints; Concluding that no penalty should be imposed for the violation identified in paragraph 1 of the Administrative Complaint; Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 2 of the Administrative Complaint; and Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 3 of the Administrative Complaint. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005.
