The Issue Whether Respondent committed the violations set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is a rooming house located in Pensacola, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license numbers 2705932 for food service and 2705800 for operation of a rooming house issued by the Division. Russell Crowley is a Senior Sanitation and Safety Specialist employed by the Division. Mr. Phelan has a two- year degree in environmental technology. He has been employed by the Division for eight years. Prior to working for the Division, he was in the Air Force, Public Health Service, for 26 years. He also received training in laws and rules regarding public food service and lodging, and is a certified special fire inspector. Case Nos. 06-3292, and 06-3293 On February 28, 2006, Mr. Crowley conducted an inspection of Respondent's premises and issued a food service inspection report and a lodging service inspection report while on the premises. Harrison Anderson an employee of Respondent, signed for the inspection reports. During the February 28, 2006 inspection, Mr. Crowley observed six food service violations and four lodging violations and issued a warning that the violations must be corrected by March 28, 2006. Mr. Crowley conducted a call-back inspection on March 29, 2006, during which he observed that four of the violations noted on February 28, 2006 had not been corrected. At the time of the first inspection, Mr. Crowley observed that the fire extinguishers were out of date. During the call-back inspection, he again found the fire extinguishers to be out of date, in that they had last been inspected in April 2005. This is a critical violation because if a fire extinguisher is not inspected to be sure it is in proper working condition, it could malfunction causing a fire safety hazard. During the original inspection, Mr. Crowley also observed that the stove hood in the kitchen was not cleaned. This was listed as a violation because it is a vermin control issue. This is a critical violation because grease buildup in the stove hood system can cause a fire. This violation had not been corrected at the time of the call-back inspection. During the original inspection, Mr. Crowley observed that the hood suppression system in the kitchen was out of date. This had not been corrected at the time of the call- back inspection. Hood suppression systems should be inspected every six months. This is a critical violation because the hood suppression system is how grease fires are put out. Mr. Crowley also observed an accumulation of food debris on the kitchen floor and under the stove and refrigerator. This had not been corrected at the time of the call-back inspection. Another violation that Mr. Crowley found that had not been corrected is that the manager lacked proof of a food manager certification. This is a critical violation because a food manager who has received training in proper food handling procedures must be on the premises. Mr. Crowley gave Respondent a time extension of 60 days to correct this violation. Additionally, Mr. Crowley gave a 60-day time extension for a related violation, in that there was no proof of employee training in proper food handling procedures. A lodging violation that had not been corrected between inspections is that the central heat and air conditioning was inoperable. Mr. Crowley observed space heaters in some but not all rooms. The central air system was still inoperable on the call-back inspection and there were only four space heaters for 15 rooms. On June 6, 2006, Mr. Crowley made a call-back inspection of Respondent's facility and found that there still was no proof of anyone having received food manager training and no proof of employee training. Case No. 06-3294 During the March 29, 2006, call-back inspection of Respondent's facility, Mr. Crowley observed that no room rate schedule was filed with the Division and that no room rate was posted in each room or unit. He wrote an inspection report finding these two lodging violations, issuing a warning about these two violations, and notifying Respondent that the violations needed to be corrected by April 29, 2006. Mr. Crowley went back to Respondent's facility on May 5, 2006, and found that these violations had not been corrected at the time of the call-back inspection. His call- back re-inspection report noted that the owner stated that she sent the room rate schedule to the Division for filing, but that when he called to verify this, there was no record of Respondent's room rate schedule with the Division. In any event, the room rate schedule was not posted. Case Nos. 06-3698 and 06-3699 On April 11, 2006, Mr. Crowley again inspected Respondent's facility. As a result of this inspection, he wrote a lodging inspection report on which he noted nine violations. He noted on the inspection report a call-back date of April 12, 2006. On April 12, 2006, he returned to Respondent's facility to make a joint inspection with an inspector from another agency, the Agency for Health Care Administration. As a result of the April 12, 2006, inspection, he found two violations that had not been corrected: he observed an insufficient number of fire extinguishers and observed 10 live gnats in a resident's room. He also gave a 30-day time extension for the seven other violations found, indicating a call-back date of May 13, 2006. During the April 12, 2006 inspection, Mr. Crowley also observed an expired fire sprinkler inspection tag, indicating it had been last inspected on April 11, 2005. The inspection report again shows a call-back date of May 13, 2006. Mr. Crowley made a call-back inspection of Respondent's facility on June 6, 2006, and found two violations that had not been corrected from the April 2006 inspections: the smoke detector in the common area was not working and there was rotted wood in the restroom. The smoke detector not working is a critical violation; the rotted wood in the bathroom is not. Mr. Crowley did note in his report that the air conditioning/heating system was now working. On May 15, 2006, Mr. Crowley made a call back inspection and found that the fire sprinkler had still not been inspected since April 2005. This is a critical violation. Mitigation Ms. Finkley offered mitigating circumstances regarding some of the deficiencies noted by Mr. Crowley. Regarding the allegation that no food service manager had a certification, Ms. Finkley asserts that before the house was licensed to be a rooming house, it was an assisted living facility. She and others who had previously worked there had received training and were not aware they needed additional training when the facility became a rooming house. Further, Ms. Finkley took the training class on July 17, 2006. Regarding the allegation that the stove hood had a grease buildup, Ms. Finkley asserted that she did have the hood cleaned, and showed the inspector the receipt for the cleaning. Mr. Crowley disputes this and insists that had he been shown the receipt, he would have given her credit for having it. Mr. Crowley's testimony in this regard is more persuasive and accepted. Ms. Finkley explained that the house and floor are very old. Therefore, she feels that it was more the condition of the floor as opposed to uncleanliness. In any event, she has installed a new floor since Mr. Crowley's inspections. Regarding the room rates, Ms. Finkley insists that she mailed the room rates to the Division. It was returned to her from the Division within a couple of days after Mr. Crowley was there, and she then posted it. Her assertion in this regard is accepted as credible. Regarding the allegations about the fire extinguishers, Ms. Finkley asserted that she had taken two fire extinguishers to be inspected and tagged the day Mr. Crowley made his reinspection. According to Ms. Finkley, Mr. Crowley was still in the yard of the facility when she returned with the fire extinguishers and attempted to show them to Mr. Crowley. This apparently happened after he had written his report, as Mr. Crowley recalls passing her in the driveway as he was leaving. Her assertion in this regard is accepted as credible. Regarding the allegation about the smoke detector, Ms. Finkley asserts that it was brand new and had just been installed that day (the day of Mr. Crowley's inspection) by the maintenance man. She was not present during the inspection but retuned to the facility that day and found the smoke detector to be working. Her testimony in this regard is accepted as credible. Regarding the sprinkler system, the utility company was working on the road outside the facility and had cut the water line to the facility due to work being done on the day the inspector inspected the system. This is corroborated by Wesley Perdue's testimony and is accepted as credible. Again, this correction to the cited violation was made after the callback inspection. Wesley and Vicki Perdue lease the facility to Ms. Finkley and perform maintenance on the facility. Regarding the allegation about the rotten wood in the bathroom, they remodeled the entire bathroom including putting in new walls, a new commode, and a new vanity with a new sink. The Perdues also installed the new kitchen floor. According to Mr. Perdue, they repaired many things that were written up by Mr. Crowley after he had cited Ms. Finkley for the deficiencies, and he believes that the repairs were completed during the call-back time frame of Mr. Crowley's inspection reports. While Mr. Perdue believes this, the weight of the evidence is that repairs were not completed before Mr. Crowley's reinspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order that imposes an administrative penalty in the amount of $3,000, places Respondent under probation for a period of two months after issuance of the Final Order, and requires Respondent to attend a Hospitality Education Program. DONE AND ENTERED this 28th day of December, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings 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 this 28th day of December, 2006 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Fannie Finkley House of Love 5191 Zachary Boulevard Pensacola, Florida 32526 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for consideration in this proceeding is whether the Respondent’s license as an adult living facility should be subject to an administrative fine in the amount of five hundred dollars ($500.00) for repeated class III deficiencies.
Findings Of Fact The Respondent is the owner/operator of San Juan Retirement Home. The home is licensed to operate a 6-bed assisted living facility in Jacksonville, Florida. On March 5, 2003, AHCA conducted a survey of Respondent's facility. During that survey, Respondent did not have a fire safety inspection report within 365 days from an earlier fire safety inspection report. Because of the lack of a timely report the facility was cited for violating Tag A209, a Class III deficiency. Tag A209 requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction. In this instance the Agency interprets the word annual to mean 365 days from the last inspection report. Respondent had the facility inspected by the Fire Marshal on March 12, 2003. She received the report the same day. A follow-up survey was conducted on April 15, 2003. Tag A209 was noted as corrected in a timely manner by Respondent. Since this was the first Class III deficiency regarding the timeliness of the inspection report, no penalties were imposed by Petitioner on Respondent. On April 23, 2004, AHCA again inspected Respondent's facility. During the inspection, Respondent again did not have a fire safety inspection report completed within 365 days of the earlier inspection report of March 12, 2003. Because of the lack of the report, the facility was cited for a class III deficiency under Tag A209. Respondent admitted that she twice did not have a timely fire safety inspection report completed for her facility. The evidence demonstrated that, prior to the April 2004 inspection by AHCA, Respondent had called the Fire Marshal’s office to schedule an inspection for the facility. However, the call was not made until the expiration of the March 12, 2003, fire safety inspection report. For some unknown reason the Fire Marshal’s office did not schedule the fire safety inspection until after the April 2004 inspection. However, the Fire Marshal’s failure to schedule the inspection does not excuse Respondent’s lack of a timely inspection and report since Respondent remains responsible for obtaining the inspection and report in a timely manner and did not call the Fire Marshal’s office until the expiration of the earlier report. To her credit, Respondent obtained a new fire safety inspection report on May 4 or 5, 2004, after AHCA had inspected the facility.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED: That AHCA enter a final order imposing a $500.00 administrative fine for repeatedly failing to timely conduct or obtain an annual fire safety inspection report. DONE AND ENTERED this 9th day of November, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2004. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Mail Stop 3 Tallahassee, Florida 32308 Elvira C. Demdam San Juan Retirement home 6561 San Juan Avenue Jacksonville, Florida 32210 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether 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 Pho Hoa II Restaurant (Restaurant), an eating establishment located in Tamarac, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-11405-R) authorizing it to operate the Restaurant as a public food service establishment. David Tran is the manager of the Restaurant and part- owner of Respondent. English is his “second language,” and he has difficulty speaking and understanding it. On August 16, 2005, Novelette Williams, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of the Restaurant. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): refrigerated, ready–to-eat food items, subject to contamination from bacteria over time, were being stored for subsequent use in containers that did not have any date markings on them; wooden shelves on the table in the kitchen were in disrepair and contained surfaces that could attract and harbor vermin; the hood range in the kitchen had loose-fitting grease filters that created a fire hazard; slime and mold were on a gasket in the "reach-in" cooler where food items (that could be contaminated by the slime and mold) were being stored ; the kitchen ceiling had a hole a "couple of inches" in diameter (through which "vermin or rodents [could] enter"); and a toxic substance was being stored in a container not bearing a label identifying its contents. Before leaving the establishment, Ms. Williams advised Mr. Tran that these Conditions were violations for which Respondent could be disciplined by Petitioner if they were not corrected within 30 days.3 Because of his limited English proficiency, Mr. Tran had some difficulty understanding what he needed to do to avoid disciplinary action. Ms. Williams conducted a "callback" inspection of the premises of the Restaurant on September 19, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed.
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 in the total amount of $2,000.00 and requiring Respondent (through Mr. Tran) to attend, at its own expense, an "educational program sponsored by the Hospitality Education Program." DONE AND ENTERED this 24th day of February, 2006, 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 24th day of February, 2006.
