The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted, 35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found. OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of $250.00 be imposed for this violation; and that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S 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 22nd day of June, 2007.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on October 29, 2002.
Findings Of Fact Petitioner is an Hispanic woman who was employed by Respondent from December 1997 until her termination on October 2, 2002. She worked in Alachua County Animal Services (Animal Services) as an animal control officer. Animal Services control officers are supervised by the Animal Services field supervisor who reports to the director of Animal Services. Petitioner received a bachelor's degree in 1983 in agriculture with a concentration in animal production and agricultural management courses, has experience in animal nutritional research, and has one published paper in that field.2/ Prior to working for the Alachua County, Petitioner managed a small pest control business. By the time she applied for the supervisory position, she had obtained Florida Animal Control Association (FACA) Level I, euthanasia, and chemical immobilization certifications. An animal control officer is responsible for enforcing state laws and county ordinances regarding small animals. Animal control officers impound animals at-large, issue warnings and citations, handle citizen complaints, and investigate animal bites and cruelty to animals. Petitioner served as interim Animal Services supervisor for a little over one month in June 2000. When the position of Animal Services field supervisor became vacant in December 2001, Petitioner applied for the job. Penny Lefkowitz, a newly hired Animal Services officer, also applied for the job. At that time, Ms. Lefkowitz had seven years of animal control experience in Arizona as lead officer. In that capacity, she was a sworn officer with firearm authority, a field training officer, and handled over 1,000 calls per year in that position. She held National Animal Control Association (NACA) Level I and II certifications. She was euthanasia- certified and had 25 years' experience breeding dogs and horses. Ms. Lefkowitz has a high school diploma. Ms. Lefkowitz was placed in the interim field supervisor position for a period of approximately three months, during which time she received supervisory pay. The record is not clear whether there was a separate application process for the permanent position following the appointment of the interim supervisor position. In any event, Respondent hired Bill Burris as Animal Services supervisor in March 2002. At the time he applied, Mr. Burris had nine years of animal control experience in Arkansas, where he was the animal control officer and shelter assistant. He held a high school G.E.D. Additionally, he held NACA Level I, II, and III certifications. Petitioner's Charge of Discrimination regarding failure to promote only references Ms. Lefkowitz's appointment to the interim director position, "[i]n December 2001, a newly hired officer, white female with less experience was hired as interim supervisor." It does not reference Mr. Burris as being hired in the director position. Her Petition for Relief alleges, "[t]hose less qualified individuals were hired and promoted in violation of county/company policy." Thus, it is not clear that Respondent hiring Mr. Burris for the permanent position is properly within the scope of this case. Nonetheless, the evidence presented at the hearing regarding Mr. Burris' qualifications is addressed herein. Mr. Burris held the position of field operation supervisor from March 2002 until his resignation in September 2003. Based upon the evidence in the record, at the time the decision was made to place Ms. Lefkowitz in the temporary supervisory position, she and Petitioner met the qualifications for the job. Ms. Lefkowitz had significantly more supervisory and field experience than Petitioner. At the time he was placed in the job, Mr. Burris met the qualifications for the job and had significantly more supervisory experience than Petitioner. Petitioner held a college degree, which neither Ms. Lefkowitz or Mr. Burris had. However, according to Mr. Burris, a college degree was not a minimum requirement of the job, but two years' animal control or animal shelter experience were required. There is nothing in the record to contradict his testimony in this regard. When Mr. Burris became field supervisor, he held a staff meeting and told the animal control officers he supervised that he would start fresh as far as performance and discipline issues. He handed them an empty folder and informed them that he would only consider their past performance if he saw a pattern that caused him to look at past personnel records. Mr. Burris called staff meetings to discuss policies that were not up-to-date or in need of updating. Prior to the staff meeting, Mr. Burris sent a memorandum to the animal control officers informing them that there would be a staff meeting. Officers were expected to attend and were excused only if they were on an emergency call. If an officer was absent from a meeting, Mr. Burris would promptly notify them in memorandum format as to what happened at the meeting. When changes were made in policies or procedures, Mr. Burris would put a copy of the policy changes in every officer's box. Each officer had his or her box where they would receive their mail. Each officer was expected to check that box daily. The boxes were accessible to everyone so that when there was a confidential document, such as payroll information, that document was placed in an envelope and then put in the officer's box. Petitioner's mid-year performance review was due in April 2002, approximately six weeks after Mr. Burris became the supervisor. Petitioner received an overall rating of "exceeded expectation." There are five categories of performance ratings, and "exceeded expectation" is the second highest category. That rating was consistent with ratings Petitioner received from previous supervisors. On April 24, 2002, Mr. Burris held a staff meeting to discuss a new policy regarding issuance of warnings and citations. The new policy required officers to give animal owners in violation of vaccination or licensing requirements 15 days to come into compliance. Previous to this, some officers had given animal owners 30 days to come into compliance. Under extenuating circumstances and upon seeing reasonable attempts to achieve compliance, the officer could extend an owner's deadline by 15 more days. Testimony is conflicting as to whether Petitioner attended this meeting. Petitioner insists she was not at this meeting. Mr. Burris insists that she was and that this issue was discussed in great detail. In any event, Mr. Burris put the new policy in writing a few days after the April 24, 2002, meeting, and the new written policy was given to all the officers. The weight of the evidence establishes that even if Petitioner did not attend the April 24, 2002, meeting, she would have been notified of the policy change shortly thereafter. On April 29, 2002, Petitioner issued a warning to a dog owner, which allowed the dog owner 30 days to achieve compliance with licensing and vaccinations for 24 dogs. According to Petitioner, she considered 30 days to be ample time for the owner to come into compliance. Petitioner maintains that at the time she issued this warning, she was not aware of the change in policy from 30 to 15 days. She acknowledges that Mr. Burris later explained the change in policy to her. It is clear that Mr. Burris informed Petitioner of this policy change and directed her to follow these procedures. In June or July 2002, Mr. Burris designed a policy and procedure manual incorporating all policies and procedures. A manual was issued for each truck used by the animal control officers. On July 31, 2002, Mr. Burris issued a memorandum entitled, "Bite Priority," to the animal control officers. Following a staff meeting where this memorandum was given to the officers, an informal discussion took place around the dispatch area. During this informal discussion, Petitioner questioned Mr. Burris as to whether he had ever read a document called the rabies compendium. Mr. Burris described Petitioner as speaking in a disrespectful, challenging tone. Ms. Lefkowitz witnessed the exchange and described it as disrespectful and condescending.3/ This statement made in front of other officers was inappropriate. The "Bite Priority" memorandum reads, in pertinent part, as follows: All Bites will be priority. Stand-by officers will be required to respond if the bite is after hours during their on-call shift. Bites will not be passed on to the next day. Shifts are 10 hour shifts, not 9 1/2 hours, if you end up working over you are compensated. Officers will not pass calls off to the stand-by person. Priority calls will be taken by Officers during their regular shift. The remainder of the memorandum dealt with off-premise bites. In early August 2002, Mr. Burris decided to "work the roads on a Saturday to take up some of the slack" because the animal control officers were overworked. Late one afternoon, Mr. Burris attempted to reach Petitioner on the radio, but was unable to do so. He asked the dispatcher to contact Petitioner. Petitioner acknowledges that she was contacted by the dispatcher and received Mr. Burris' request to fill up the truck she was driving and to leave the keys and the fuel card on Mr. Burris' desk. Petitioner had already filled up the truck that day in the late morning. She did not fill up the truck again at the end of the day, but described the truck as being seven-eighths full at the end of her shift, after making ten to 12 calls after stopping for fuel. Petitioner believed her actions complied with Mr. Burris' instructions. Mr. Burris described finding the truck the next morning as half-full of gas. Mr. Burris concluded that Petitioner did not follow his instructions. Mr. Burris' conclusion in this regard was not unreasonable. The truck incident gave rise to Mr. Burris' first written warning about her conduct. On August 5, 2002, Mr. Burris issued a memorandum to Petitioner for "failure to follow verbal instruction." The memorandum noted a safety concern in that he was not able to reach Petitioner by radio and his concern that she did not follow his directive. On August 6, 2002, Mr. Burris called Petitioner into his office to discuss the written memorandum. Mr. Burris described Petitioner's behavior when he handed her the memorandum to be disrespectful. As a result, Mr. Burris went to the director's office to explain the circumstances surrounding this incident. This resulted in a meeting in the director's office at which the director, Mr. Burris, and Petitioner were present. Petitioner acknowledges that she made the statement, "I guess one out of a hundred is unacceptable" during this meeting, and that she said it using a sarcastic tone. Later on August 6, 2002, Mr. Burris issued Petitioner another in-house written warning, the subject of which was "improper conduct" about her conduct in the director's office, which read in part: I informed Dr. Caligiuri of Blanca's discourtesy and or improper conduct. I had Blanca meet with me in Dr. Caligiuri's office to discuss her comment and the way in which it was stated. During our conversation in Dr. Caligiuri's office Blanca used mild sarcasm, expressing, "I guess one time out of a hundred is unacceptable" as we discussed the importance of responding to her radio. At this time, I do not want to write this up as a group I #19 Discourtesy to another employee or a Group II #7 Improper conduct which would effect the employees relationship with co-workers. However, if this behavior continues I will be left with no alternative. I know Blanca is capable of doing her job in a professional manner. I only want this as a written documentation of what occurred on this day, to prevent future occurrences of this same behavior. Petitioner refused to sign the August 6, 2002, memorandum. On August 13, 2002, Animal Services received a call about a dog bite at a residence. Animal control officer Jay Butts was dispatched on the call. When he arrived, he saw two or three dogs inside the home, and he could not determine which dog was involved in the reported bite. The owner of the dog was not at home. He left without leaving a written warning because, "I did not have the correct owner or dog, so I didn't know which dog or which owner to leave a written warning to. . . So I wanted to come back and find out which dog actually was involved in the bite." The following morning, Mr. Butts received information from the Health Department regarding the dog's owner and learned that the dog was not currently vaccinated or licensed. Mr. Butts returned to the residence where the bite occurred. He posted a notice to the dog's owner. Apparently the owner was still not home because he posted a warning which included the following necessary corrective action: "Your dog must be placed into quarantine by 5:00 pm on 8-14-02 at our shelter or a licensed vet. If you do not have this done today your animal will be impounded and you will receive a citation of $200.00 per day." The warning required the owner to correct the violation by 5:00 p.m. that day. Officer Butts proceeded to handle other calls until his shift was over. He did not make contact with the dog's owner before his shift ended. His shift ended before 5:00 p.m. The dog's owner called Animal Services after 5:00 p.m. on August 14, 2002. Petitioner took the call. After speaking to the dog's owner, she called a veterinarian and learned that the dog's vaccination had expired by a few months. She did not pick up the dog. She gave the following reason: Yeah, it happened on property. The dog was confined to his property. We had contacted the owner. And basically even though the vaccination had expired, even a one-year vaccination is good for three years. This is a known fact of any vaccine, any rabies vaccine manufactured in the United States, a one-year vaccine has an efficacy of three years. So I take all that matter into consideration when I have to make a decision as to what to do with a bite dog. Petitioner told the dog's owner that he had to comply with the written warning given by Mr. Butts. According to Petitioner, she told the dog's owner that he had to quarantine the dog off the property either at the shelter or at a veterinarian clinic. She also informed him that the only person who could reverse that decision was her supervisor. The next morning, August 15, 2002, the dog's owner called Mr. Burris. Mr. Burris spoke to the dog's owner and then questioned Petitioner to get her side of the story. He then instructed Petitioner to pick up the dog. She did not pick up the dog as instructed; another officer picked up the dog later that day. Mr. Burris gave a verbal warning to Officer Butts regarding his handling of the dog-bite incident. Mr. Butts had received previous disciplinary actions, including suspensions, prior to Mr. Burris becoming the field supervisor. However, on August 20, 2002, Mr. Burris initiated a Notice of Proposed Disciplinary Action (Notice) to Petitioner in which he recommended a three-day suspension without pay. The reasons referenced in the Notice were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employees, or the public; and refusal to perform assigned duties or to comply with written or verbal instructions of a higher level supervisor. The narrative of the Notice referenced the dog-bite incident and the August 6, 2002, improper conduct memorandum. Mr. Burris explained his decision to give different disciplinary actions to Officer Butts and Petitioner: Q What should she have done with the dog? A She should have impounded it immediately. If the owner refused her, she should have issued him a citation for failure to comply. Q Jay Butts participated in this. We had some testimony about that. Jay Butts participated in this event two days prior and one day prior to Ms. Carbia getting involved. Why wasn't Butts given any suspension on the same matter? A Jay Butts was given the same verbal consultation that Officer Carbia had received. The only thing Jay Butts could have done differently would have perhaps left a posted notice the day of or given a notice to the roommate with generic information. Jay Butts received consultation pertaining to that. He did not receive disciplinary action because he never made any contact with the owner. The officer that made contact with the owner and had the first opportunity to take the dog was Officer Carbia. Q So there is a difference in the seriousness of her offense and Jay Butts' offense? A Absolutely. Q Hers was more serious? A Yes. As a result of the Notice, a grievance hearing took place on August 26, 2002, in the director's office. Wayne Mangum, who at that time was the union steward, Mr. Burris, and Petitioner were there, as well as the director, Dr. Caligiuri. During the meeting, Petitioner explained her position. At some point in the meeting, Dr. Caligiuri made a comment to the effect that 80 years ago women could not vote.4/ Petitioner found that comment to be discriminatory toward women. When asked whether Dr. Caligiuri's demeanor in that meeting was aggressive or not cordial, Mr. Mangum replied that his demeanor was "uncordial." In any event, Dr. Caligiuri's comment was offensive and inappropriate. During the August 26, 2002, meeting, Mr. Burris instructed Petitioner to discontinue striking the word "within" from the form used when giving an animal owner a time frame within which to bring in an animal to be impounded. She had not been instructed regarding that previously. Mr. Burris received a copy of a warning form dated August 28, 2002, on which Petitioner had crossed out the word "within" contrary to his instructions. He took no action at the time since he thought it might have been a "slip of the pen." He then received another warning form dated September 9, 2002, regarding a dog bite which Petitioner had again altered by crossing out the word "within." Petitioner had written on the form that the warning had been posted. Posting is a procedure officers follow when the animal owner cannot be found. The notice is posted on the door of the residence for the owner to find upon returning home. Based upon his telephone call to the dog's owner and the information on the form, Mr. Burris was of the belief that the form had not been posted, and that Petitioner's indication on the form that it had been posted was inaccurate. Mr. Burris met with Petitioner regarding this incident. Petitioner acknowledged at hearing that she spoke to the dog's owner, but was intimidated and confused when questioned by Mr. Burris about whether or not she had spoken to the owner. Petitioner contends that she did not lie to Mr. Burris, that initially the owner did not come to the door but later did come to the door. According to Petitioner, she simply neglected to cross out the word "posted" or ask the owner to sign the form. On September 18, 2002, Mr. Burris signed and provided a Notice of Proposed Disciplinary Action to Petitioner which proposed her termination from employment. The stated reasons for the proposed action were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employee, or the public; deliberate falsification and or destruction of county records; and refusal to perform assigned duties or to comply with written or verbal instruction of a higher level supervisor. The Notice referenced the August 28, 2002, warning notice with the word "within" crossed out; the September 10, 2002, warning notice with the word "within" crossed out; the written word "posted" on a warning when she had personally spoken to the dog's owner; and the meeting on August 26, 2002, which resulted in her three-day suspension. The Notice concluded: This is the same type of circumstance concerning the same written instruction after meeting with Blanca and her union rep. This time Blanca was untruthful in her statements, even after I gave her three opportunities to tell me that she had personally spoken to the dog owner. By writing "posted" on the notice which indicates the owner was not home, she falsified a county document. Blanca hand delivered the notice to the dog owner and did not impound the dog when she had the opportunity. Petitioner was terminated from her employment with Respondent effective October 2, 2002. There is no evidence in the record that Petitioner complained to anyone that she felt she was discriminated against on the basis of her gender or national origin. The only evidence presented regarding her national origin was Petitioner's brief testimony: Q Were there any other Hispanics employed at animal services during the time frame that Mr. Burris was there? A No. Do you feel that your national origin had something to do with the way Mr. Burris treated you? A Certainly just—basically I felt that I was treated differently, yeah.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 27th day of July, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 July, 2004.
Findings Of Fact Respondent Janice Prather lives in a subdivision in unincorporated Bay County, Florida. She owns her house, which faces Brookins Road and stands on a lot 135 feet long and 100 feet wide. STAR In April of this year Ms. Prather acquired a six-year old sorrel mare, a Tennessee Walking Horse named Star, who stands 15.2 hands high. Ms. Brunty, whose horse trailer was used to bring the horse to Ms. Prather's home, described Star and Rhonda, Ms. Prather's teenaged daughter, as a "beautiful combination." Star is a gentle horse and small children, including Mr. Serpas grandchildren, have petted her. Some days Rhonda and her friend Michelle take Star riding and let her graze in Michelle's back yard before bringing her back. She spent one night at Michelle's. But most of the time she is confined to the Prathers' fenced back yard, although she was not there for a week or two around the time of the fair. SIX POUNDS A DAY Star produces manure at a rate of about six pounds a Day. Ms. Prather has taken some of this manure to church and to the parsonage for use on shrubbery and gardens there. Over an unspecified period, she has also taken horse manure to Mr. Harold B. Taylor of Millville about three times a week. It has made his gardens green. Thelma King has also used Star's excrement in her garden. Not all of the manure Star has deposited in the Prather back yard has left the premises. Trenches have been dug along the fence line and manure has been buried there. Before removing the manure that she has given away, Ms. Prather or others have gathered it in buckets which are kept in a child's wagon in the back yard, and which may stand there for several days. Nor do the droppings reach the buckets every day. There was testimony that Star's excrement lay where it fell for weeks on end, and Ms. Prather, who holds a full- time job, conceded that she did not remove the manure daily, although she insisted that there was almost daily removal. Sometimes the manure would be covered over with an inch or two of sand. When it rains, some of the waste leaves in the water that flows across the Prather back yard, turns brown and smelly, and covers the neighbors yards. By the time of the hearing, the ground in the Prather back yard, which has a high water table, was saturated with horse urine. Subdivision residents depend on individual wells and septic tanks. A CONGREGATION OF FLIES Most witnesses conceded that there were houseflies in the area long before Star's arrival, but there was overwhelming agreement that the horse bought with it a significant increase in their number. Mr. Serpas, whose house stands directly behind Ms. Prather's testified to the increase and reported, without contradiction, that a "tremendous number" of these flies enter his house whenever a door is opened. The Atwells, whose house is 100 feet from Ms. Prather's lot line also have more flies inside their house than before Star came to live in the neighborhood. The Clarks, whose house is next door to Ms. Prather's, installed an electronic fly killing device from which they regularly remove handfuls of dead flies. It was Mr. Clark who testified that Star's presence has meant "a congregation of flies" in and over his yard as well as Ms. Prather's. The housefly (Musca domestica) is a real, if familiar, health hazard. Because houseflies eat the same things people do, their control is a crucial element in food hygiene. When they land on food intended for human consumption, they bring with them germs they have picked up elsewhere. Horse manure is among the very best breeding grounds for houseflies. Adult houseflies deposit eggs in horse manure where larvae then pupae thrive before emerging as a new generation of adult houseflies seven to ten days later and flying from dung to food. Houseflies are capable of transmitting diseases to human beings and are a major factor in the transmission of some diseases. The wooden fence Ms. Prather has begun building around her back yard has not diminished the number of flies or the "barn yard odor," also attributable to Star's excrement. Both the flies and the excrement were the basis for the neighbors' repeated complaints to the Bay County Health Department (BCHD). ACTION BY THE AUTHORITIES With the neighbors' complaints, there began a series of visits by BCHD employees. BCHD records reflect that the inspector concluded that the neighbors' complaints were "invalid" on April 13, 1983, and reached the same conclusion on April 18, 1983, when the "yard was clean." Respondent's Exhibit No. 3. On May 2, 1983, the BCHD inspector found "[e]ight piles of horse manure in yard. One wagon full of manure also," Respondent's Exhibit No. 3, which, however, was at the BCHD's request, "cleaned up" by May 6, 1983. Before visiting thereafter, the BCHD inspector called ahead, as Ms. Prather had requested. On May 13, 1983, a BCHD employee took pictures of the horse manure he found on that visit. On May 24, 1983, two BCHD employees found "[s]ome manure" but "no flies." Respondent's Exhibit No. 5. Early on BCHD employees suggested to Ms. Prather informally that she board Star somewhere else. They eventually directed her in writing to remove the horse and threatened to initiate the present proceedings to impose an administrative fine if she did not. She received the administrative complaint on or before August 4, 1983. Photographs taken on November 19, 1983, Petitioner's Exhibit No. 1 show an accumulation of dung that must have been at least four days in the making. Star was in residence on November 5, 1983, and, indeed, during the whole period between August 4, 1983, and the time of the hearing, with the possible exception of a two-week period.
Recommendation Accordingly, it is RECOMMENDED: That petitioner impose a fine against respondent in the amount of one hundred dollars ($100.00). DONE and ENTERED this 6th day of January, 1984, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1984. COPIES FURNISHED: JOHN PEARCE, ESQUIRE SUITE 200-A 2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303 JANICE PRATHER 3013 BROOKINS ROAD PANAMA CITY, FLORIDA 32405 DAVID PINGREE, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent, Tony's Prime Meats, Inc., (Tony's) is a Florida corporation which was dissolved for failure to file an annual report on August 13, 1993. The corporation is still doing business under the fictitious name of Scotti's Meats, Co., in Manatee County, Florida, at 510 7th Street East, Bradenton, Florida 34208-9020. At the time of the alleged violation, Respondent, Tony's Prime Meats, Inc. was an active and current Florida corporation. Respondent, Anthony Scotti, Jr., is a shareholder in, the registered agent for, and a corporate officer of, Tony's. Anthony Scotti, Jr. is shown on the corporate records as Anthony G. Scotti, and is a resident of Sarasota County, Florida. The Department is the agency of the State of Florida charged with the administration and enforcement of the provisions of Chapter 585, Florida Statutes. Respondents are engaged in the preparation of, and the offering for sale, animal products capable of use as human food and intended to be used as human food, pursuant to Chapter 585, Florida Statute. Tony's holds a Grant of Inspection, Number 335/P, pursuant to Section 585.74, Florida Statutes, from the Department. On June 2, 1993, meat inspection at Tony's had been withheld by Ernest Tipton, Meat Inspector with the Department, because of sanitary standards violations. At about 8:00 a.m. on June 4, 1993, Inspector Tipton visited Tony's to check on the facility. Arnie Lahtinen, an employee of Tony's who was in charge of the plant during the absence of Anthony Scotti, was present at the facility during Inspector Tipton's visit. During Inspector Tipton's visit, Lahtinen was performing plant improvement tasks in accordance with deficiencies noted when inspection had been withheld on June 2, 1993. Inspector Tipton did not observe the presence of any other employee in the establishment or observe any visible signs of meat processing occurring or observe any evidence that meat processing had been occurring prior to his visit. Inspector Tipton departed Tony's about 8:30 a.m. on June 4, 1993, but returned later in the morning around 10:00 a.m. to pick up some papers. Upon his return, Inspector Tipton observed a car parked at the facility which he identified as belonging to an employee of Tony's named Nick. However, there was no direct evidence that the car belonged to Nick or that Nick was present in the facility during the time in question on June 4, 1993. Inspector Tipton attempted to gain entry but found the facility locked. After ringing the doorbell and getting no response, Inspector Tipton then knocked on the back door but again, received no response. Since Lahtinen had been present in the facility during Inspector Tipton's earlier visit, he assumed Lahtinen was still in the facility, that meat processing was occurring in the facility, and that he was being denied access to the facility in violation of Chapter 585, Florida Statutes. Inspector Tipton determined that his best course of action was to contact his supervisor, Melody Cara. After contacting Ms. Cara, Inspector Tipton contacted the police on the advice of Ms. Cara. Upon her arrival at the facility, Ms. Cara made a similar attempt to gain entry by ringing the door bell and knocking on the door but there was no response. Anthony Scotti arrived at the facility shortly after Ms. Cara and the police officer, and immediately unlocked the facility to allow Ms. Cara, Inspector Tipton and the police officer entry into the facility. When Inspector Tipton, Ms. Cara, Scotti and the police officer entered the facility, one of them turned the lights on in the lobby area and just a short time later Ms. Cara turned the lights on in the processing room. As Scotti and Ms. Cara were entering the processing room, Lahtinen came out of the processing room. The record does not reflect whether Lahtinen heard the door bell ring or the knocking on the door on either occasion and, if he did, why he did not respond. Other than Lahtinen, no other employees were observed in the facility at this time. Upon entering the lobby area, the police officer found a knife and an apron upon which there was a substance that resembled blood. No analysis of the substance on the apron and knife was conducted and the material was never identified as blood. The tables and the floors in the processing room were wet as if they had been washed. However, there was no direct evidence that meat processing had been occurring before the entry. There is insufficient evidence to establish facts to show that Inspector Tipton or Ms. Cara were intentionally denied entry into Tony's facility, or that meat processing had been occurring in Tony's establishment during the time in question on June 4, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing both Count I and Count II of the Administrative Complaint. It is further recommended that the request for attorney's fees and costs be denied without prejudice to the Respondents filing a petition under Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. DONE AND ENTERED this 14th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7087 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5); 6(7); 7(7,8); 8(9); 9(10,11); and 10(12). Proposed finding of fact 11 is neither material nor relevant to this proceeding. Proposed findings of fact 4 - 8 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. Proposed findings of fact 7 and 8 indicate that the parties were denied access which is rejected as not supported by competent substantial evidence in the record. Proposed finding of fact 10 indicates a bloody knife and apron were found on the premises. While a knife and apron with a substance appearing to be blood was found, it was never established that the substance was blood. Respondents' Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5,6); 6(7); 7(7,9); 8(10); 9(10-12)); 11(10); 12(14)and 13(11). Proposed finding of fact 10 is neither material nor relevant to this proceeding. Proposed findings of fact 4,5,6,7 & 9 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Isadore F. Rommes, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Thomas M. Fitzgibbons, Esquire SouthTrust Bank Plaza 1800 Second Street, Suite 775 Sarasota, Florida 34236 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated the House of India (Restaurant), an eating establishment located in Coral Gables, Florida. Respondent is now, and was at times material to the instant case, the holder of a license issued by Petitioner (license number 2313769) authorizing it to operate the Restaurant as a public food service establishment. On the morning of September 28, 2006, Douglas Morgadanes, a Sanitation and Safety Specialist with Petitioner, conducted an inspection of the premises of the Restaurant. His inspection revealed, among other things, that there were, what he believed to be, "rodent droppings" present in the Restaurant, creating "an unsanitary condition [that] could lead to food borne illnesses" if the food served to patrons became contaminated with these droppings. Before leaving the establishment, Mr. Morgadanes advised Respondent that this "unsanitary condition" had to be corrected within 24 hours. The Restaurant closed immediately following the inspection and an extensive cleanup operation was undertaken. In addition, Respondent had "[its] pest control company," Rentokil Pest Control (Rentokil), come to the Restaurant during or around the early morning hours of September 29, 2006, to perform "follow-up" rodent control services. (Rentokil had just made a "routine service" call to the Restaurant on September 27, 2006.) Mr. Morgadanes conducted a "callback" inspection of the Restaurant on September 29, 2006. His inspection revealed that, notwithstanding Respondent's cleanup and rodent control efforts, there were, what appeared to him to be, rodent droppings4 in an unused attic area above, and "a little bit to the side" of, the Restaurant's kitchen. Respondent was unable to produce for Mr. Morgadanes during the "callback" inspection documentation reflecting that Rentokil had been to the Restaurant to provide rodent control services. Respondent subsequently sent such documentation to Mr. Morgadanes' office by facsimile transmission. The documentation for the September 29, 2006, service call (9/29 Documentation) contained the following entries under "Service Performed by Rentokil" and "Cooperation Requested from Customer": Service Performed by Rentokil: Inspected and service[d] facility for pest[s]. Found no activity. Put out glue in kitchen underneath kitchen sink around hole near the back door. Cooperation Requested from Customer: Proofing Adequate? ? Yes ? No Please fix hole underneath sink to prevent rodent harborage. Sanitation Needed? ? Yes ? No Please clean dishwashing station. These entries on the 9/29 Documentation clearly and convincingly establish that, although Respondent had done cleanup work and retained the services of Rentokil in an effort to minimize the presence of rodents in the Restaurant, it had not eliminated harborage conditions on the premises.5 After receiving the documentation from Respondent, Petitioner issued the Administrative Complaint that is the subject of the instant controversy. This was the second time in less than a year that Petitioner had charged Respondent with violating Section 6-301.14 of the Food Code. A prior charge (filed in DBPR Case No. 2005064978) had been disposed of by stipulation, the terms of which were "adopted and incorporated" in a Final Order issued by Petitioner on January 12, 2006. There was no admission or finding of guilt. The "stipulated disposition" of the charge was Respondent's payment of a fine of $500.00 and attending a hospitality education program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine of $1,000.00 and directing that Respondent attend, at its own expense, a hospitality education program. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of August, 2007.
The Issue The issues are whether Respondent committed food service violations, and, if so, whether disciplinary action should be taken. For the reasons set forth below, Respondent did commit violations and should be subject to the fine described herein.
Findings Of Fact At all times material to this matter, Respondent was licensed as a public food establishment in the State of Florida by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department). Respondent's business address is 8084 North Davis Highway, No. A1, Pensacola, Florida. Petitioner's witness, Inspector Crowley, is employed by the Department as a senior sanitation safety specialist in Panama City Beach, Florida. He has worked for the Department for 12 years and has prior experience in the United States Air Force for 26 years, during which he also preformed public health inspections at food and lodging facilities. Inspector Crowley engages in continuing education on a regular basis and performs approximately 800 inspections a year. "Critical violations" are those that are likely to result in food-borne illness or environmental degradation. "Non-critical violations" are minor issues that are not classified as critical violations. Inspection reports are electronically prepared on a Personal Data Assistant by the inspector. On July 14, 2009, Inspector Crowley performed a routine food service inspection of Respondent at its location on North Davis Highway in Pensacola. During the inspection, Inspector Crowley prepared and signed an inspection report setting forth the violations he encountered during the inspection. On that same date, Inspector Crowley notified Respondent about the violations. Respondent's owner signed the inspection report. Also, Inspector Crowley made the owner aware that each violation noted during the inspection must be corrected by the next unannounced inspection. On December 14, 2009, Inspector Crowley performed a routine food service inspection of Respondent. During the inspection, Inspector Crowley prepared and signed an inspection report indicating that some of the violations noted on the July 14, 2009, inspection report had not been corrected. On that date, Inspector Crowley notified Respondent of the violations and the fact that he was recommending an administrative complaint. Respondent's owner signed the inspection report. The most serious violation was observed at both the July 14 and December 14 inspections. Inspector Crowley observed the handwash sink being used for purposes other than handwashing. This is a critical violation because handwashing is the best way to prevent food-borne illness within a public food service establishment. Mr. Wong testified that during both inspections a brush used for cleaning the sink had been left inside the handwash sink. Inspector Crowley observed the next most serious violation during the December 14 inspection, misrepresentation of food products. Imitation crab was advertised as genuine crab meat, and escolar was advertised as white tuna. This constitutes a critical violation because patrons could unknowingly ingest foods causing an allergic reaction or illness. The misrepresentation of food items had been corrected at the time of hearing. Mr. Wong admitted that the escolar labeling had been incorrect, but that the crab labeling was only a handwritten note to the chefs in the area where they work both with soft-shelled crabs (real crab) and imitation crab used in sushi products. The patrons are not served imitation crab when the dish calls for real crab or real crab when the dish calls for imitation crab. Regardless of the corrective actions taken, the Department's policy is to immediately issue an administrative complaint when a misrepresentation violation is noted. The next most serious violation noted by Inspector Crowley occurred during both the July 14 and December 14 inspections. He observed the use of a grooved and pitted cutting board that was no longer cleanable. This constitutes a violation because dirt and food remain in the grooves even after the cutting board has been washed, allowing bacteria to grow, which can lead to future contamination of food products. Respondent was unable to remove the cutting board after the July 14 inspection because it was part of the counter where food preparation occurs. Mr. Wong testified that it is used only as a table since the July 14 inspection, not as a cutting board. He admitted that bacteria on the board could be transferred to the underside of food-bearing plates placed on it. The next most serious violation was observed by Inspector Crowley at both the July 14 and December 14 inspections. He observed a buildup of grease on the surface of equipment that does not come into contact with food. This constitutes a violation of cleanliness standards which can ultimately lead to food-borne illness. Inattention while cleaning led to the buildup of grease on equipment surfaces.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty in the amount of $500 for the critical violation concerning the mislabeling of the escolar; $500 for the critical violation of using the handwashing sink for purposes other than handwashing; $150 for the non-critical violation of continuing to use the grooved and pitted cutting board; and $150 for the non-critical violation of allowing grease to accumulate on non- food contact surfaces. The total fine in the amount of $1,300 shall be paid to the Division of Hotels and Restaurants within 30 days of the entry of its final order. DONE AND ENTERED this 18th day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of January, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Christopher Wong Teriyaki Cafe Sushi and Grill 8084 North Davis Highway, Suite A1 Pensacola, Florida 32514 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
