The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was a restaurant subject to Petitioner's regulation. That regulation required Petitioner to comply with all relevant provisions set forth in Florida Statutes, Florida Administrative Code, and the Food Code. Petitioner's license number is 1614578. Respondent's restaurant is located at 5001 North University Drive, Lauderhill, Florida (the subject premises). At the times relevant to this proceeding, Ana Rosa Castro was the manager of the restaurant. Two inspections of the subject premises are relevant to this proceeding. The first inspection was a routine inspection on December 15, 2009 (the routine inspection). Michele Schneider conducted the routine inspection. A callback inspection was conducted on February 24, 2010 (the callback inspection). Terrence Diehl and Tatiana Joy conducted the callback inspection. Ms. Schneider and Mr. Diehl are experienced and properly trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. For both inspections, an inspector prepared a report on a personal data assistant, printed the report at the establishment, and provided a copy of the report to the person in charge prior to leaving the establishment. The inspectors discussed the report with Ms. Castro and explained the reasons the violations were cited. The routine inspection report and the callback inspection report were admitted into evidence as Petitioner's exhibits 2 and 3, respectively. Ms. Schneider's report noted multiple violations, including the four violations that are issue in this proceeding. Ms. Schneider's report contained a warning that required Respondent to correct each cited violation on or before February 20, 2010, at 8:00 a.m. Ms. Schneider and Ms. Castro signed the routine inspection report. Mr. Diehl and Ms. Joy performed the callback inspection on February 24, 2010. Ms. Joy, working under Mr. Diehl's supervision,2 prepared the callback inspection report setting forth the findings she and Mr. Diehl made. Ms. Joy and Mr. Diehl reviewed the findings with Ms. Castro and explained to her the reasons for the violations identified in the report. Ms. Joy, Mr. Diehl, and Ms. Castro signed the callback inspection report. The four violations at issue in this proceeding had not been corrected following the routine inspection. Violations of the Food Code are classified as either critical or non-critical. Critical violations are violations that are likely to result in a food-borne illness or an environmental health hazard. Non-critical are violations of the Food Code that have not been classified as critical, and are less likely to contribute to a food-borne illness or an environmental health hazard. Each of the four alleged violations in this proceeding is designated a critical violation.3 Food Code Rule 3-501.16(A) requires that except in circumstances inapplicable to this proceeding, food shall be maintained at or below 41 degrees Fahrenheit. On December 15, 2009, and on February 24, 2010, the cook-line reach-in cooler was not maintaining potentially hazardous food at or below 41 degrees Fahrenheit. This is a critical violation because foods that are maintained above 41 degrees become a potential danger for the growth of bacteria that could harm a consumer of the food. Food Code Rule 6-301.14 requires a food establishment to have a sign or poster at a sink used by food service employees notifying the employees to wash their hands. There was no such signage posted during the routine inspection or the callback inspection. This is a critical violation because employee hand-washing is a basic requirement for good hygienic practices, and the sign reminds employees of the requirement that they wash their hands before returning to work. Food Code Rule 7-102.11 requires that "working containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies shall be clearly and individually indentified with the common name of the material." The routine inspection noted the following as a violation: "[o]bserved unlabeled spray bottle dishroom [sic]." On the callback inspection, Mr. Diehl observed several unlabeled bottles that had liquids in them. There was no evidence as to what type liquids were in the spray bottles. Specifically, there was no evidence that the unlabeled spray bottles had to be labeled because they were "containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies." Pursuant to section 509.049(5), Respondent was required provide training of its employees and was required to provide proof of such training to an inspector. On December 15, 2009, Ms. Castro could not provide proof to Ms. Schneider that her employees had been trained. On February 24, 2010, Ms. Castro could not provide proof to Ms. Joy and Mr. Diehl that her employees had been trained. The testimony of Mr. Diehl established that this failure is a critical violation because untrained employees may not be aware of the importance of proper hygiene and proper food handling, which can result in contaminated food and the exposure of the consumer to food-borne illness. On June 16, 2009, Petitioner filed an Administrative Complaint against Respondent in case number 2009032247. That Administrative Complaint contained five alleged violations of the Food Code, at least one of which was a critical violation. The alleged violations were resolved by the entry of a Stipulation and Consent Order filed July 21, 2009. By that action, Respondent agreed to pay an administrative fine in the amount of $1,200.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violation alleged in paragraph 3 of the Administrative Complaint. It is further RECOMMENDED that the final order find Respondent guilty of the violations alleged in paragraphs 1, 2, and 4 of the Administrative Complaint. It is further RECOMMENDED that Administrative Fines be imposed against Respondent in the amount of $600.00 for each of the three violations, for a total fine of $1,800.00. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of June, 2011.
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate disciplinary action that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is an eating establishment located in Gainesville, Florida. Respondent was issued license number 1102902 as a public food establishment by the Division. Critical violations are those violations that pose a significant threat to the health, safety, and welfare of the public. Non-critical violations are any other violation that are not deemed critical. Judy Hentges has been employed by the Division for approximately 12 and one-half years as a sanitation and safety specialist. She also has a food manager's certification. Ms. Hentges has received training in laws and rules regarding public food service and lodging, and continues to receive continuing education training on a monthly basis. Ms. Hentges performs approximately 800 to 1,000 inspections annually. On August 11, 2009, Ms. Hentges conducted a routine inspection of Respondent's premises and issued an inspection report while on the premises. Kitty Lu, manager of the restaurant, was present and signed the inspection report, as did Ms. Hentges. Ms. Hentges informed the manager about the violations she found, which were noted on the inspection report, and explained that the violations must be corrected by the following day. During the August 11, 2009, inspection, Ms. Hentges observed food that was not held at 135 degrees Fahrenheit or above. When food is held "out of temperature," bacteria rises at a rapid rate which can initiate a food-borne illness. This is a critical violation because temperature violations are one of the leading causes of food-borne illnesses and present an immediate health threat to the public. Respondent had previously been cited for this particular violation during inspections that took place on February 11, 2009; February 12, 2009; and April 16, 2009. During her inspection on August 11, 2009, Ms. Hentges also observed that imitation scallops were being used, whereas the menu did not indicate that the scallops were imitation. This constitutes misrepresentation of a food product. Respondent previously had been cited for this particular violation on October 20, 2008; October 21, 2008; February 11, 2009; February 12, 2009; and April 16, 2009.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Division enter a final order which confirms the violations found, and suspends Respondent's hotel and restaurant license for four days, effective the first Monday after 40 days from the date the Final order is filed with the Agency Clerk of the Department of Business and Professional Regulation, Division of Hotels and Restaurants. DONE AND ENTERED this 27th day of August, 2010, in Tallahassee, Leon County, Florida. Barbara J. Staros 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 27th day of August, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Hot Wok c/o H. L. 3006 Northwest 13th Street Gainesville, Florida 32609 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Petitioner, Madeline Smith, d/b/a Madeline L. Smith Boarding Home, (Smith) is entitled to relicensure as an Adult Congregate Living Facility (ACLF) or should be denied relicensure based upon intentional or negligent acts which seriously affect the health, safety or welfare of a resident or residents of the ACLF, as more particularly stated in the denial letter dated September 26, 1985. Petitioner presented the testimony of Madeline Smith, E'Lona Hogan, Carlos Martinez, Jo Ann Brooks, John Wade, Stephen Noulin, John Noulin and Dorothy Kaplan. Petitioner's Exhibits 1-16, 18-20, and 24 were admitted in evidence. Respondent, the Department of Health and Rehabilitative Services (DHRS), presented the testimony of James Valinoti, Phillip Drabick, Paul Grassi and Elizabeth Baller, together with Respondent's Exhibits 1, 2 and 4 which were admitted in evidence. The transcript of these proceedings was filed on June 19, 1986. The parties were to file proposed orders within 30 days of the filing of the transcript. On July 10, 1986, Petitioner filed a Motion for Extension of Time, requesting until after August 4, 1986, to file a proposed order. The motion was granted by order dated July 15, 1986, wherein the parties were granted to and including August 15, 1986, to file their proposed orders. Respondent filed its proposed recommended order on August 18, 1986. To date Petitioner has failed to file a proposed order. Accordingly, this Recommended Order is entered without reference to or consideration of a proposed order by Petitioner. All proposed findings of fact and conclusions of law filed by Respondent have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part hereof.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order DENYING renewal of the ACLF license of the Madeline L. Smith Boarding Home. DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida. DIANE K. KIESLING, 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 15th day of September, 1986. COPIES FURNISHED: James A. Pearson, Esquire 2435 Hollywood Boulevard Hollywood, Florida 33020 Dennis Berger, Esquire Office of Licensure and Certification 5190 N. W. 167 Street Miami, Florida 33014 William Page, Jr., Esquire Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Respondent's Proposed Findings of Fact. Each and every proposed finding of fact of Respondent is adopted in substance in Findings of Fact 1, 2, 3, and 4.
The Issue Whether Respondent failed to timely correct discrepancies noted during the survey of January 31, 1992 and, if so, what penalty is appropriate.
Findings Of Fact During the Annual Survey of Respondent ACLF on January 31, 1992 numerous discrepancies were found and at the exit interview Respondent was notified of these discrepancies and given a time frame in which to correct these discrepancies. In a follow-up inspection on April 29, 1992 more than one month later than Respondent was given to correct the discrepancies, the following deficiencies reported on the January 31, 1992 survey still existed. Residents were not provided the opportunity to plan the menus; Menus were not reviewed by a registered or licensed dietitian on a regular basis; The therapeutic diets provided did not document on the menu the food items which enable residents to comply with their therapeutic diet; and Respondent failed to have an annual nutritional review by a registered or licensed dietitian.
Recommendation RECOMMENDED that Willie Mae Johnson d/b/a Leisure Living be assessed an administrative fine of $250 each for the two violations for a total administrative fine of $500. RECOMMENDED this 3rd day of March, 1993, at Tallahassee, Florida. K. N. AYERS 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 3rd day of March, 1993. COPIES FURNISHED: Thomas W. Caufman, Senior Attorney Agency for Health Care Administration Office of Licensure and Certification 7827 North Dale Mabry Drive Tampa, Florida 33614 Willie Mae Johnson, Owner Leisure Living 401 S.W. 9th Avenue Mulberry, Florida 33860 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Respondent is licensed through June 30, 1996, to operate Cheers Early Learning Center III in Fort Myers as a child care facility, pursuant to Certificate No. 086194. Each of the inspections of Respondent's child care facility in 1995 revealed deficiencies with the sanitary diaper- changing areas of the facility. Cleanliness of the diaper-changing areas is important in preventing the transmission of diseases, especially diarrhea. Staff must carefully clean the area after changing diapers containing fecal material in order to reduce the chances of communicable diseases passing from an infected child to an uninfected child. On the January 5, 1995, inspection, the inspector found items stored on diaper-changing table. Routine use of such items undermined efforts to maintain clean conditions in the diaper- changing area. The inspector cited this deficiency, and Respondent presumably corrected it. On the February 17, 1995, inspection, the inspector found that the diaper-changing table under the changing mat in the two year-old room needed to be thoroughly cleaned, according to the inspection sheet. Respondent cleaned the table the same day. On the May 11, 1995, inspection, the inspector found that Respondent kept the disinfectant in a cabinet in the diaper-changing area in the one year- old room. This meant that staff would have to touch the cabinet every time they washed the changing table and the cabinet would become contaminated. Respondent moved the disinfectant bottle the same day as ordered. On the July 13, 1995, inspection, the inspector found that the mat in the diaper changing area in the infant room and one year-old room had tears. The inspection report asks Respondent to "remind staff to thoroughly clean the cracks and corners on the diaper changing area." This reference probably refers to the thick, plastic-covered mat, which contains large creases where it can be folded. Respondent presumably corrected the deficiencies the same day. On the August 10, 1995, inspection, the inspector found that the changing table in the infant room needed to be cleaned at all times and the changing table should not be used to store unnecessary items, like art projects. The inspector added that the mat had a hole and needed to be repaired or replaced and soap was needed at the changing table so staff could wash their hands after changing diapers. On August 14, 1995, Petitioner's inspector wrote Respondent a letter concerning the deficiencies in the diaper-changing area. The letter notes the importance of cleanliness in this area and offers technical assistance from a Public County Health Nurse. The letter warns that further violations could result in administrative action. On the October 5, 1995, inspection, the inspector found that the diaper table under the mat in the one year-old room needed to be cleaned and the mat had a hole in it. The inspector also found the same deficiencies in the infant room. The inspector left a document disclosing an intent to impose administrative action, citing Rule 10M-12.003(9)(b)2. The document informs Respondent that the "diaper area needs to be cleaned thoroughly--this needs to be maintained." The inspector classified the violation as a Class II violation with a fine range of $50-$100 per violation per day. The form warns: "If you fail to comply with the time frames set forth in this notice, or the same deficiencies continue, you may anticipate receipt of an administrative fine." On the November 13, 1995, inspection, the inspector found that the diaper-changing table under the mat in the three year-old room mat needed to be cleaned. The inspector also found that the mat in the diaper-changing area in the one-year old room needed to be cleaned because the seams or folds of the mat were "filled with dirt and sand." The inspection report notes that the deficiency cited in the three year-old room was corrected on site, but the deficiency cited in the one year- old room was referred for administrative action. Respondent's staff was not cleaning the mat with a sanitizing solution after each use. Otherwise, sand and dirt would not accumulate in the folds of the mat. Petitioner repeatedly warned Respondent of sanitary lapses in the diaper- changing areas, and Respondent repeatedly allowed these lapses to continue. A $50 fine is suitable given the importance of cleanliness in this area and the repeated failures of Respondent to deal with this ongoing problem.
Recommendation It is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing an administrative fine in the amount of $50 against Respondent. ENTERED on June 14, 1996, in Tallahassee, Florida. ROBERT E. MEALE 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 on June 14, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1-11: adopted or adopted in substance. 12-13: rejected as recitation of evidence and subordinate. 14: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4-6: rejected as subordinate and recitation of evidence. 7-8: adopted or adopted in substance. 9: rejected as legal argument. 10-16: rejected as recitation of evidence and subordinate. 17: rejected as legal argument. 18-19: rejected as subordinate. 20: rejected as unsupported by the appropriate weight of the evidence and subordinate. 21: rejected as subordinate. 22: rejected as unsupported by the appropriate weight of the evidence. The subject mat today would not be expected to have the sand and dirt in its seams or folds that it had on the day of the inspection. 23-25: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Susan Mastin Scott, Senior Attorney Department of Health and Rehabilitative Services Post Office Box 60085 Fort Myers, Florida 33906 Robert L. Pollack Robert L. Pollack, P.A. 11983 North Tamiami Trail Suite 101-102 Naples, Florida 33963
