Findings Of Fact In February of 1983, petitioner Fred D. Wallace began working for respondent as a meat inspector. Although other meat inspectors were assigned to federal facilities for training, he never was. Petitioner feels he was not sent for training because he was black and that his having a bachelor's degree in agriculture had nothing to do with it. He also testified that unfavorable evaluations were attributable to his being black. Except for petitioner's race, the evidence did not establish the race of respondent's employees.
The Issue Whether Negril Cuisine, Inc., d/b/a Banana Hut (Respondent), committed the offenses alleged in the Administrative Complaint dated September 30, 2014, and if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Negril Cuisine, Inc., d/b/a Banana Hut (Respondent), has operated a restaurant known as the Banana Hut, which is located at 13740 Southwest 152nd Street, Miami, Florida (the subject premises). Respondent is subject to the regulation of the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner). Respondent is required to comply with all relevant provisions set forth in chapter 509, Florida Statutes; Florida Administrative Code Chapter 61C, and the Food Code.2/ Respondent’s license number is 2329056. There was no evidence that Respondent’s license has been previously disciplined by Petitioner. At all times relevant to this proceeding, Michael George Brandon was Respondent’s owner. Douglas Morgadanes is employed by Petitioner as a senior sanitation and safety specialist. Mr. Morgadanes is experienced and trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. Mr. Morgadanes has been a sanitation and safety specialist employed by Petitioner for approximately 18 years. He has been designated as a senior sanitation and safety specialist for the last nine years. Mr. Morgadanes typically performs between 700 and 800 restaurant inspections each year. On September 23, 2014, beginning at 9:37 a.m., Mr. Morgadanes performed a routine inspection of the subject premises (the initial inspection). The Banana Hut was open for business during the initial inspection. As part of the initial inspection, Mr. Morgadanes prepared a Food Service Inspection Report (Petitioner’s Exhibit 2) setting forth his findings. Mr. Morgadanes prepared this report utilizing an iPad while at the subject premises. Mr. Morgadanes testified, credibly, that he asked some unidentified person from the establishment to accompany him while he performed the initial inspection, but no one accompanied him. Garth Vassell is a cook at the subject premises. Mr. Vassell was on the premises when Mr. Morgadanes conducted the initial inspection, but he was not asked by Mr. Morgadanes to accompany him during that inspection. During the course of the initial inspection, Mr. Morgadanes observed approximately ten live roaches in a storage closet and ten or more live roaches in the kitchen. After the inspection, Mr. Morgadanes showed Mr. Vassell the areas where he had observed the live roaches. Mr. Morgadanes also showed Mr. Vassell a dead roach. Mr. Vassell did not observe live roaches. Mr. Morgadanes telephoned his office and notified his superiors of his observations. Before Mr. Morgadanes left the premises, Petitioner entered an emergency order that suspended Respondent’s licensure and closed the subject premises (the emergency order). The emergency order found that “The risk of food borne illness from a vermin infestation constitutes an immediate serious threat to public health and safety.” When Mr. Brandon arrived at the subject premises, Mr. Morgadanes had completed his initial inspection and was affixing a sign to the entry door of the subject premises that stated that the restaurant was closed. Mr. Morgadanes showed Mr. Brandon the areas where he observed the live roaches and reviewed his inspection report (Petitioner’s Exhibit 2) with Mr. Brandon. Mr. Brandon signed the inspection report at approximately 11:30 a.m. Mr. Morgadanes left the premises shortly thereafter. At the request of Mr. Brandon, a callback inspection was conducted by Mr. Morgadanes and Zuleima Chow beginning at 3:14 p.m., on the afternoon of the initial inspection (September 23, 2014). No evidence of roaches was observed during the callback inspection.3/ As a result of the callback inspection, Petitioner immediately vacated its emergency order. On September 30, 2014, Petitioner filed the Administrative Complaint that initiated this proceeding. Based on Mr. Morgadanes’ observing live roaches during his initial inspection, Petitioner charged that Respondent violated section 509.221(7), which provides as follows: (7) The operator of any establishment licensed under this chapter shall take effective measures to protect the establishment against the entrance and the breeding on the premises of all vermin. Any room in such establishment infested with such vermin shall be fumigated, disinfected, renovated, or other corrective action taken until the vermin are exterminated. Petitioner classified the alleged violation as a “high priority” violation. A “high priority item” is, pursuant to rule 61C- 1.001(17), an item defined in the Food Code as a “Priority Item.” Rule 61C-1.005(5)(a) defines a high priority violation as follows: (a) “High priority violation” means a violation of a high priority item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., determined by the division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of this rule. The presence in a restaurant of vermin such as roaches presents a risk to the public because such vermin can carry diseases that can be transmitted to patrons who consume food that has been contaminated by the vermin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is FURTHER RECOMMENDED that the final order find Negril Cuisine, Inc., d/b/a Banana Hut guilty of violating section 509.221(7), Florida Statutes, as alleged in the Administrative Complaint and impose an administrative fine in the amount of $500.00 for that violation. DONE AND ENTERED this 10th day of March, 2015, 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 10th day of March, 2015.
