The Issue The issues in this case are whether Respondent has violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11, and, if so, what discipline should be imposed.
Findings Of Fact Mama B.’s is a restaurant located in Orlando, Florida. The Department is the state agency which is charged with the licensing and regulation of public food establishments in Florida pursuant to Section 20.165 and Chapter 509, Florida Statutes. On July 13, 2005, Andrea Piel, an inspector for the Department, went to Mama B.’s to perform a food service inspection. Ms. Piel found that the sandwich cooler located at Mama B.’s was not maintaining potentially hazardous food at 41 degrees Fahrenheit or below. Specifically, she found that the temperature of the ham, turkey, and seafood in the reach-in cooler was 47 degrees Fahrenheit. The temperature of the salami in the reach-in cooler was 50 degrees Fahrenheit, and the temperature of the pepperoni and pastrami stored in the reach-in cooler was 48 degrees Fahrenheit. The temperature of the cheese in the reach-in cooler was 42 degrees Fahrenheit. On the same inspection, Ms. Piel also found that hot foods were not being held at a temperature of at least 135 degrees Fahrenheit. She found the following on the front line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at 112 degrees Fahrenheit, and cooked onions at 130 degrees Fahrenheit. On her inspection on July 13, 2009, Ms. Piel also observed that Mama B.’s was not using proper cooling methods to cool hot food from 135 to 41 degrees Fahrenheit within six hours. Steak was being cooled in deep containers with tight fitting lids. Ms. Piel saw tomatoes being stored less than six inches above the floor. There was ready-to-eat cheese, which had been rewrapped and undated, stored in a cooler. On July 13, 2009, Mama B.’s was given a warning by Ms. Piel, and a call-back inspection was scheduled for July 14, 2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the call-back inspection. She again observed that tomatoes were being stored about an inch off the ground. There was food being stored in the sandwich cooler at temperatures above 41 degrees Fahrenheit. The cooler contained ham and salami at 48 degrees Fahrenheit; capicola and seafood at 50 degrees Fahrenheit; turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro meat at 45 degrees Fahrenheit. On July 15, 2009, Ms. Piel also saw steak and onions, which were being cooled in deep containers with tight fitting lids. She also saw hot pastrami being held at 125 degrees Fahrenheit. Ms. Piel testified that the pastrami being held was not for orders waiting to be filled. Ms. Piel did not explain how she knew that there were no other orders for pastrami sandwiches. Mr. Adamik, an owner of Mama B.’s who was present at the time of the July 15, 2009, inspection, testified that there were several orders for pastrami sandwiches, which were being filled at the time Ms. Piel observed the pastrami. According to Mr. Adamik, the rolls were already placed on the board awaiting the placement of the pastrami, but, because the preparation area was so small, it was impossible to completely prepare more than one pastrami sandwich at a time. Mr. Adamik’s testimony is credited. The pastrami, which Ms. Piel observed, was being used for immediate service in response to consumer orders. The cooler in which the food was being stored above 41 degrees Fahrenheit had been in operation at Mama B.’s since the late 1990’s. The machine cools from beneath and does not also cool from the top as newer models do. After the violations were noted on July 15, 2009, the old cooler was replaced. Mama B.’s had contacted a repairman after the July 13, 2009, inspection, but the cooler could not be repaired so as to make it cool foods at 41 degrees Fahrenheit or less. Mr. Adamik knew that the location of the tomatoes was a violation, but he did not correct it by the July 15, 2009, because he was busy trying to get the cooler repaired. Mr. Adamik had no explanation why the ready-to-eat food, which had been opened at Mama B.’s, did not have appropriate date marks. Violations of Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B) are considered to be critical violations by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the violation of Food Code Rule 3-305.11; imposing a fine of $300 for the violation of Food Code Rule 3-501.15; imposing a fine of $500 for the violation of Food Code Rule 3-501.16(A); and imposing a fine of $400 for a violation of Food Code Rule 3-501.17(B). DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2010.
Findings Of Fact Petitioner is Fred Burke, Jr. He was an existing employee of a juvenile detention facility in Jacksonville, Florida in 1978, when Respondent assumed responsibility for operation of the facility. Petitioner continued to be employed by Respondent in the position of detention careworker class I, until notified of his demotion and reassignment to other duties on May 25, 1989. Respondent's demotion and reassignment of Petitioner followed Petitioner's refusal to work overtime on two occasions. On each of these occasions, Petitioner cited his cardiac condition as the basis for his refusal. All detention care workers in the facility are subject to mandatory overtime policy requirements which provide that overtime may be required if there is a need for additional supervisory coverage of clients. Prior to taking the demotion and reassignment action, Respondent sought an independent medical evaluation of Petitioner's ability to perform the duties of the position of detention careworker class I. Respondent required Petitioner to report to a family care physician who declined to make a medical judgement regarding Petitioner's health. Instead, the physician suggested that Respondent obtain the opinion of the cardiologist who had treated Petitioner for his heart condition in 1987. On May 4, 1989, that cardiologist offered his opinion as to Petitioner's health. Specifically, the doctor, who had seen Petitioner as recently as February 1989, noted that Petitioner's health deficiencies dictated that he work no more than eight hours per day; that he refrain from strenuous activity; that he not break-up fights; and that he not carry clients out of the facility in the event of fire. The specific work prohibitions noted by the cardiologist are all job tasks that an individual assigned to a detention careworker position, may be expected to perform. Upon the expiration of a required notice period to Petitioner, Respondent effectuated the reassignment of Petitioner to the position of cashier in the food stamp office. The position requires no overtime work and is less stressful. Petitioner is generally permitted to sit in the course of performing his duties. Following his reassignment, Petitioner continued to enjoy his same salary, although the cashier position occupied a lower pay grade than his previous position. Two other employees were alleged by Petitioner to have received favored treatment from Respondent. These employees, both female, did receive evaluations for the period ending in 1989 which indicated that their work performance exceeded required standards. While the evaluations made the other two employees eligible for merit incentive pay increases, neither employee ever received such an increase or any other pecuniary benefit. Petitioner, whose evaluation reflects that he achieved required work standards, did not receive disparate treatment from that accorded the two female employees by Respondent. As established by the Final Order of the PERC Commission in Case No. CS-89-166, Respondent's transfer to the position of food stamp cashier was warranted, comported with procedural requirements and served a legitimate governmental interest. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's sex or handicap. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered dismissing the Petition for Relief. RECOMMENDED this 11th day of December, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5278 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-18. Adopted in substance, but not verbatim. PETITIONER'S PROPOSED FINDINGS Petitioner's proposed finding consisted of nine unnumbered paragraphs. Those paragraphs have been numbered one through nine, respectively, and are addressed as follows: 1.-7. Adopted in substance. Rejected, not supported by the greater weight of the evidence. Rejected, not supported by the greater weight of the evidence. Further, one female employee had always been employed in the "lighter duty" situation of the control room. The other female employee was placed in a telephone receptionist position. Notably, no creditable evidence was presented that either of these employees refused to work overtime, or that they were not put on the "bubble list." COPIES FURNISHED: Robert Travis, Jr., Esq. 16 North Adams Street Quincy, FL 32351 Scott D. Leemis, Esq. Assistant District Legal Counsel P.O. Box 2417 Jacksonville, FL 32231-0083 Ronald M. McElrath Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Margaret Jones Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue The issues in this case are whether Respondent violated Florida Administrative Code Rule 61C-1.004(2)(b) and the following provisions of the Food Code: 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.11, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of public food service establishments, pursuant to section 20.165 and chapter 509, Florida Statutes. The Restaurant is and has been at all times material to this proceeding licensed by the Department, license number 58- 11330. The Restaurant is owned by Shea Lowe (Mr. Lowe) and is located in Eatonville, Florida. On April 14, 2010, Dennis Watson (Mr. Watson), an inspector for the Department, made a routine inspection of the Restaurant. Mr. Watson found that the temperature of the pancake batter that was being used on the cook line was 67 degrees, Fahrenheit (F.); the temperature of the sausage on the cook line was 64 Degrees, F.; eggs were being held on the cook line for more than 30 minutes at a temperature greater than 45 degrees, F.; the gaskets/seals on a cold holding unit were in poor repair; lights in the food storage area were missing proper covers; the vacuum breaker was missing at the hose bibb outside the back door; and the door to the men's restroom was not tight- fitting and self-closing. The Restaurant was given a warning for the violations found during the April 14, 2010, inspection. The Restaurant was given until June 14, 2010, to correct the violations. On June 15, 2010, Mr. Watson returned to the Restaurant for a call-back inspection. Mr. Watson found the following violations: the gaskets/seals on the cold holding unit were in poor repair; the vacuum breaker was missing at the hose bibb outside at the back door; the pancake batter and sausage were being held on the cook line for more than 30 minutes at temperatures greater than 41 degrees, F.; raw eggs in the shell were held on the cook line for more 30 minutes at room temperature; food in the glass door coolers were held at temperatures between 49 and 53 degrees, F.; the lights over the food storage rack/kitchen were missing the proper covers; and the door to the men's restroom was not tight-fitting and self- closing. The failure to maintain the food in the coolers at 41 degrees, F.; the failure to maintain raw, shell eggs at a temperature of 45 degrees, F.; the failure to keep the pancake batter and sausage on the cook line at the proper temperature; the failure to install a vacuum breaker on the hose bib outside the back door; and the failure to have a self-closing door for the men's restroom are critical violations. Rule 61C- 1.005(5)(a) defines "critical violation" as a violation which poses a significant threat to the public health, safety, or welfare and which is identified as a food-borne illness risk factor or a public health intervention. Mr. Lowe acknowledged that the coolers were not working properly and has since replaced the coolers. He bought a self- closing latch for the restroom door, but the door will not self- close because the door frame does not fit the door, and he cannot afford to repair the door. He now keeps the eggs in the cooler until time to cook them. He has purchased some covers for the lights, but he did not know if they were in place when the inspections took place. The failure to have a self-closing door in the men's restroom and the failure to maintain the gaskets on the cooler door are non-critical violations. Both inspection reports were signed by persons other than Mr. Lowe. Mr. Lowe was not present for either inspection. The Restaurant has been previously disciplined by a Final Order entered on December 2, 2008, based on Stipulation and Consent Order entered into by the parties.
Recommendation Based on 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, finding that Lowe's Good Eaton Restaurant violated rule 61C- 1.004(2)(B) and Food Code Rules 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.114-50; and imposing an administrative fine of $500 for each of the three critical violations and $250 for each of the two non-critical violations for a total administrative fine of $2,000. DONE AND ENTERED this 14th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 14th day of December, 2011.
The Issue The issues in these consolidated cases are stated in the counts set forth in the Administrative Complaint for each case: Whether Falcon Catering Service No. 7 (hereinafter "Falcon 7") and Falcon Catering Service No. 8 (hereinafter "Falcon 8") failed to maintain the proper protection and temperature requirements for food sold from their mobile site in violation of the federal Food and Drug Administration Food Code ("Food Code"). In the Prehearing Stipulation filed in this matter, each Respondent generally admitted to the violations in the Administrative Complaints, but suggested that mitigating factors should absolve them of the charges or greatly reduce any administrative fine imposed.
Findings Of Fact The Division is responsible for monitoring all licensed food establishments in the state. It is the Division's duty to ensure that all such establishments comply with the standards set forth in relevant statutes and rules. Respondents Falcon 7 and Falcon 8 are licensed mobile food dispensing vehicles. Falcon 7 has license No. MFD5852560, which was initially issued on April 23, 2005; Falcon 8 has license No. MFD5852642, which was issued on October 19, 2005. Each of the Respondents serves meals and snacks to, inter alia, laborers at construction sites. On or about March 13, 2009, the Division conducted a food service inspection on Falcon 7. At that time, the food truck was located at 4880 Distribution Court, Orlando, Florida. One of the Food Code violations found by the inspector was Item 53b. That citation meant there was no validation of employee training on the truck. A follow-up inspection was deemed to be required. On April 10, 2009, a follow-up inspection was conducted by the Division. At that time, Item 53b was cited as a repeat offense. Also, Item 8a was cited. Item 8a refers to protection of food from contaminants and keeping food at an acceptable temperature. Notes by the inspector indicate that a further violation of Item 8a occurred because customers were allowed to serve themselves directly from food containers, and there was no fan in operation during the serving of food. On May 28, 2009, another inspection of Falcon 7 was conducted. At that time, the food truck was located at 12720 South Orange Blossom Trail, Orlando, Florida. Item 8a was again cited as a deficiency. The inspector's notes indicate that food was not properly protected from contamination and that customers were being served "buffet style" from the back of the truck. The inspector noted that this was a repeat violation. A follow-up or "call-back" inspection was conducted on December 3, 2009, at which time the temperature in Orlando was unusually cold. The food truck was at the same address on Orange Blossom Trail as noted in the prior inspection. Falcon 7 was again found to have been serving food buffet style from the back of the food truck. An Item 8a violation was again noted by the inspector. Another inspection of Falcon 7 was conducted on January 19, 2010, another very cold day in Orlando. At that time, the food truck was located at the same site as the last two inspections. The inspector cited the food truck for an Item 8a violation again, stating that the food was not being protected from contaminants. Dust was flying up on the back of the truck to exposed food items. An inspection of Falcon 8 was conducted on August 25, 2009, while the truck was located at 4880 Distribution Court, Orlando, Florida. An Item 8a violation was noted by the inspector, who found that displayed food was not properly protected from contaminants. The food truck was located under an Interstate 4 overpass and was open to flying debris. The inspector noted that customers were being served buffet style and that there was no protection of food from contamination by the customers. A follow-up inspection for Falcon 8 was conducted on August 27, 2009, at 9:12 a.m., while the food truck was located at the same site. Another Item 8a violation was cited at that time. The violation notes indicate essentially the same situation that had been cited in the initial inspection two days earlier. Less than one hour after the follow-up inspection, another inspection was conducted on Falcon 8 at the same location as the prior two inspections. There were no Item 8a citations issued during this inspection, but the food truck was found to have no water available for hand washing. The food truck employee was using a hand sanitizer to clean her hands. Respondents do not dispute the facts set forth above. However, Respondents provided mitigating facts for consideration in the assessment of any penalty that might be imposed. Those mitigating factors are as follows: The food trucks were serving an inordinately large number of workers during the dates of the inspections. The City of Orlando was constructing its new basketball arena, and there were numerous laborers involved in the project. In order to serve the workers, it was necessary for the food trucks to put their food out on tables, rather than ladle the food directly from the food warmers in the food truck. In fact, the shelves in the food trucks are so narrow that dipping food out of the warmers would be impossible. Due to the cold weather in Orlando during this time, it was impossible to keep the food at acceptable temperature levels for very long. The large number of workers washing their hands at the food trucks caused the trucks to run out of water much more quickly than normal. When the water ran out, the employees took care to sanitize their hands as well as possible. Ms. Falcon testified that the inspector's testimony concerning use of tables to serve food was erroneous. However, Sabrina Falcon was not present during the inspections, and her contradictory testimony is not reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500.00 against Falcon Catering Service, No. 7, in DOAH Case No. 10-10925; and a fine of $750.00 against Falcon Catering Service, No. 8, in DOAH Case No. 10-10930. All fines should be paid within 30 days of the entry of the Final Order by the Division. DONE AND ENTERED this 10th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 May, 2011. COPIES FURNISHED: William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Sabrina Falcon Falcon Catering Service 642 Mendoza Drive Orlando, Florida 32825 Megan Demartini, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for determination is whether Petitioner should receive her lottery prize winnings of $2,500.
Findings Of Fact On June 17, 1996, Gussie Mae Dempson (Ms. Dempson) won a lottery prize in the amount of $2,500. By letter dated June 18, 1996, the Department of Health and Rehabilitative Services, now the Department of Children and Family Services (Children and Family Services) notified the Department of the Lottery (Lottery) that, among other things, Ms. Dempson was indebted to Children and Family Services in the amount of $4,622, as of June 18, 1996. Due to being notified of the debt owed by Ms. Dempson to Children and Family Services, the Lottery forwarded Ms. Dempson's lottery prize winnings to the Department of Banking and Finance, Office of the Comptroller (Banking and Finance). By letter dated July 5, 1996, the Banking and Finance notified Ms. Dempson that, among other things, her entire lottery prize winnings were being withheld due to the debt owed by her to Children and Family Services and that all of the winnings would be applied to the debt. The debt owed by Ms. Dempson to Children and Family Services originates from two accounts for Aid to Families with Dependent Children (AFDC) and two accounts for Food Stamps. AFDC Account No. 31-01057-52 Ms. Dempson was determined eligible for AFDC by Children and Family Services on AFDC Account No. 31-01057-52. She received AFDC for numerous months, including the months of October 1976, December 1976, February 1997 through July 1997, and January 1978, being issued allotments ranging from $119 to $88 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $753. For October 1976, Ms. Dempson received $119, but was eligible for $0, resulting in an over-issuance of $119. For December 1976, Ms. Dempson received $88, but was eligible for $78, resulting in an over-issuance of $10. For February, March, April, and May 1977, Ms. Dempson received $88 per month, but was eligible for $0, resulting in an over-issuance of $88 per month or $352. For July 1977, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92. For January 1978, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92. Ms. Dempson was notified of the overpayment, her right to dispute the overpayment, and her responsibility for the overpayment. She made repayments to Children and Family Services from February 8, 1980 through April 20, 1981. Ms. Dempson's debt to Children and Family Services on this account was reduced to $333. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $753 in AFDC. AFDC Account No. 31-01057-53 Ms. Dempson was subsequently determined eligible to receive AFDC by Children and Family Services on AFDC Account No. 31-01057-53 for numerous months, including the months of April 1992 through December 1992. She received allotments of $180 per month from April through November, and two allotments in December for $95 and $180. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,715. For the months of March 1992 through November 1992, Ms. Dempson received $1,620, but was eligible for $0, resulting in an over-issuance of $1,620. In December 1992, Ms. Dempson received $275, but was eligible for $180, resulting in an over- issuance of $95. As a result, Ms. Dempson's total over-issuance for March 1992 through December 1992 was $1,715. By letter dated January 28, 1994, Children and Family Services notified Ms. Dempson, among other things, of the overpayment, her right to dispute the overpayment, and her responsibility of repayment. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services. By a second letter dated April 4, 1994, Children and Family Services notified Ms. Dempson, among other things, of the overpayment and of the overpayment being a debt for which she was responsible for paying. The letter was mailed to the same address as the first letter in that no change in address had been provided to Children and Family Services by Ms. Dempson. Again, no response was received. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,715 in AFDC. Since the notification letters, Children and Family Services has recouped some of the debt from subsequent AFDC checks to Ms. Dempson. Ms. Dempson does not recall receiving and endorsing the AFDC checks for the months of March 1992 through December 1992, and, therefore, denies receiving and endorsing the checks. The evidence is sufficient to support a finding and a finding is made that Ms. Dempson received and endorsed the checks.2 Food Stamp Account No. 31-01057-42 Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057- She received Food Stamps for numerous months, including the months of February 1991 through June 1991, November 1991 through January 1992, and October 1992 through December 1992. She received allotments ranging from $143 to $221 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $1,278. Two separate instances of over-issuance had occurred on this account. One instance resulted in an over-issuance of $935 for the months of February 1991 through June 1991, as well as the months of November 1991 through January 1992. Another instance resulted in an over-issuance of $343 for the months of October 1992 through December 1992. For February 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $90, resulting in an over-issuance of $111. For March 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118. For April 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $118, resulting in an over-issuance of $83. For May 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $32, resulting in an over-issuance of $169. For June 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118. For November 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $77, resulting in an over-issuance of $144. For December 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $136, resulting in an over-issuance of $85. For January 1992, Ms. Dempson received $213 in Food Stamps, but was eligible for $106, resulting in an over-issuance of $107. For October 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $0, resulting in an over-issuance of $143. For November 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $33, resulting in an over-issuance of $110. For December 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $53, resulting in an over-issuance of $90. Ms. Dempson was notified of the over-issuance, her right to dispute the over-issuance, and her responsibility for repayment. Through automatic deductions in her Food Stamps, Ms. Dempson has been repaying the over-issuance since March 1994. The automatic deduction began at $11 a month in her Food Stamp allotment until June 1994 when the deduction became and is currently $10 a month. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,278 in Food Stamps. Food Stamp Account No. 31-01057-43 Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057- She received Food Stamps for numerous months, including the months of August 1992, October 1992 through December 1992, and January 1993 through June 1993, being issued allotments ranging from $203 to $292 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,692. For August 1992, Ms. Dempson received $240 in Food Stamps, but was eligible for $0, resulting in an over-issuance of $240. For October 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For November 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For December 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For January 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $149, resulting in an over-issuance of $143. For February 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $97, resulting in an over-issuance of $195. For March 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $109, resulting in an over-issuance of $183. For April 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193. For May 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193. For June 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $15, resulting in an over-issuance of $188. By letter dated March 11, 1994, Children and Family Services notified Ms. Dempson, among other things, of the over- issuance, her right to dispute the over-issuance, and her responsibility for repayment of the over-issuance. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,692 in Food Stamps. Outstanding Debt As of the date of the hearing, August 15, 1997, the total amount of the debt owed by Ms. Dempson to Children and Family Services was $4,473, representing AFDC Account No. 31- 01057-52 at $333, AFDC Account No. 31-01057-53 at $1,583, Food Stamp Account No. 31-01057-42 at $865, and Food Stamp Account No. 31-01057-43 at $1,692.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance, Office of the Comptroller enter a final order providing for payment to the Department of Children and Family Services of the lottery prize winnings of $2,500 claimed by Gussie Mae Dempson. DONE AND ENTERED this 26th day of November, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1997.
The Issue Whether Respondent committed the following acts alleged in the Notice to Show Cause dated July 8, 1998, and if so, the penalty that should be imposed: Violation of the Food Code, Chapter 61C-1, Florida Administrative Code, by failing to maintain hot, potentially hazardous, foods at or above 140 degrees Fahrenheit (Fº) at all times on the steam table. Violation of the electrical code by failing to provide a spacer for missing circuit breakers in the electrical box near the waitress station. Violation of the Food Code by failing to provide and use a food thermometer to monitor food temperatures. Violation of the Food Code by failing to provide a properly designed bulk food product scoop with a handle for use in the kitchen.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes (1997). Respondent is a public food service establishment that operates in the State of Florida under the Division's License Control Number 03843-R. Derrick Fritts is a Sanitation and Safety Inspector employed by the Petitioner. On February 3, 1998, at approximately 3:55 p.m., Fritts visited the Seaport Restaurant food establishment located at 680 George J. King Boulevard, Port Canaveral, Florida 32920, for the purpose of performing a routine callback inspection. At the time of the inspection, the vegetable mix on the steam table was at a temperature of 116 degrees F. The baked potatoes were at 95 degrees F and the tomato sauce was at 111 degrees F. Dinners were being served from this steam table. Respondent's defense that the steam table are being broken down for diner and customers were not being served is not credible. At the time of the inspection, there was no thermometer that was readily accessible to the server at the steam table to monitor potentially hazardous foods to ensure that they are within the temperature range specified in the Food Code. At the time of the inspection, a large bulk supply of flour was being dispensed with a plastic cup rather than a scoop with a handle. There was insufficient evidence to prove that a fire code violation was present in the electrical circuit breaker box in the main dining room. The Petitioner performs inspections between the hours of 9:00 a.m. and 5:00 p.m., and occasionally after-hours, in order to better observe operating procedures. It is the Petitioner's policy to inspect food service establishments during operating hours. In the Petitioner's view, operating hours includes anytime anyone is working on the premises of a public food service establishment. Although Fritts arrived for the inspection relatively late in the day, the inspection still occurred within the 9-5 time frame. Representatives of Respondent were present for 80 percent of the inspection. Respondent was cited for violations of the 1997 Food Code under the following sections: 3-501.16(A), 4-302.12, and 3-301.11(C), C.F.R. Petitioner sent out an Industry Advisory on January 1, 1998, with the following information for licensees about the 1997 edition of the Food Code: Although the Code and Rule have been adopted, enforcement of these new provisions will not begin until April 1, 1998. Respondent received the above Industry Advisory and erroneously interpreted it to mean that none of the provisions of the 1997 Food Code would be enforced until April 1, 1998. The Food Code contains recommendations made by the United States Public Health Service Food and Drug Administration. Therefore, the Food Code is not mandatory and binding on licensees until it is adopted by the State of Florida. Chapter 61C-1.001, Florida Administrative Code, incorporates by reference the 1997 Food Code into the Florida Administrative Code, thereby adopting it. It then became binding on licensees as an official rule of Petitioner after January 1, 1998.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of the following charges and that the following penalties be imposed against Respondent: Food Code Rule 3-501.16(A), imposing an administrative fine in the amount of $500.00; Food Code Rule 4-302.12, imposing an administrative fine in the amount of $250.00; Food Code Rule 3-301.11(C), imposing an administrative fine in the amount of $250, and that Respondent attend, at personal expense, an educational program sponsored by the Hospitality Education Program. It is further. RECOMMENDED that Respondent be found not guilty of violation of Rule 61C-1.004(11), Florida Administrative Code. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of June, 1999. COPIES FURNISHED: Melvin T. Stith, Jr., Esquire Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Alan C.D. Scott, II, Esquire 101 Orange Street St. Augustine, Florida 32804 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792
