The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, which operates a bar and lounge, violated several statutes and rules governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all times relevant to this case, Respondent Whistle Stop Lounge, Inc. ("Whistle Stop") operated a duly licensed "bar and lounge" at a location in Boca Raton, Florida. Because the business activities of this enterprise also brought it within the statutory definition of a "food service establishment," Whistle Stop was required to be, and was, separately licensed as such. As a licensed food service establishment, Whistle Stop is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Health ("Department"). The Department is charged with the duty of inspecting food service establishments for compliance with sanitation rules designed to protect the public against food-borne illnesses. Accordingly, agents of the Department have inspected Whistle Stop's premises on many occasions, as a routine matter. Whistle Stop, however, has had ongoing problems with compliance since at least 2004, with the result that the Department has inspected its establishment more frequently than otherwise might have been the case. Indeed, from January 2008 though March 2009, the Department inspected Whistle Stop's premises 16 times——at least once in each of 10 separate months——and determined that Whistle Stop's compliance was "unsatisfactory" during 14 of those visits. During the referenced period, the Department twice concluded that Whistle Stop's establishment constituted an imminent danger to the public health. Consequently, the Department issued stop-sale orders on March 13, 2008, and November 7, 2008, each of which required Whistle Stop to close its doors. Although both stop-sale orders were lifted several weeks after their respective dates of issuance, the underlying problems subsisted, albeit in lesser degrees of severity. The problems that most concerned the Department can be divided into three categories: (a) the persistent presence on the premises of roaches, rodents, and flies; (b) the persistent presence on the premises of "potentially hazardous food"; and (c) the persistent presence on the premises of improperly stored garbage. The evidence clearly proves, and the undersigned finds, that Whistle Stop's establishment suffered from chronic infestations of roaches, flies, and rats, which persisted from January 2008 until at least December 11, 2008. During this period, Whistle Stop failed (or was unable) to take effective measures to protect against the entrance of such vermin. The undersigned finds, based on clear and convincing evidence, that within Whistle Stop's premises were routinely kept a variety of "potentially hazardous food" in kinds and quantities that were inconsistent with the owner's explanation that such food was the employees' personal property being temporarily stored for their convenience. Although the Department's agents did not observe potentially hazardous food being served to, or consumed by, Whistle Stop's patrons, they did witness such food in a frozen state and being thawed. For example, on November 7, 2008, chicken breast strips were seen to be decaying in a freezer on the premises. That same day, ground sausage was observed in a cooler, at a temperature that was above freezing and inadequate for long-term storage. On December 11, 2008, the Department's agents witnessed shrimp that was defrosting in the refrigerator, and butter that had been "out of temperature" for more than four hours and needed to be discarded. It is evident that on these occasions (and others), potentially hazardous food items at Whistle Stop's premises were subjected to activities that involved temperature changes, which is a form of "food preparation" according to the relevant regulatory definition of the term. There is clear and convincing evidence that garbage was often stored within Whistle Stop's premises in uncovered containers without first having been placed in plastic bags or wet-strength paper bags, and the undersigned so finds. The Department's agents observed such improper storage of garbage on November 7, 2008; November 13, 2008; and December 11, 2008. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of failing to comply with Florida Administrative Code Rule 64E-11.007(7), which requires food service establishments to take effective measures for controlling vermin on the premises. It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of causing or allowing potentially hazardous food to be prepared on its premises, in violation of Florida Administrative Code Rule 64E-11.002(4)(c), which prohibits such food preparation at a bar and lounge (unless the establishment, unlike Whistle Stop, is also licensed as a restaurant). It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of failing to comply with Florida Administrative Code Rule 64E-11.007(6), which prescribes the requirements for storing and disposing of garbage at a food service establishment. Additional Findings Pertaining to Administrative Fines Having found that Whistle Stop has operated in violation of applicable rules, and in view of the Department's stated intent to impose a fine in excess of $25,000, it is necessary to make some additional findings concerning facts that bear on the amount of fine to be imposed. Each time the Department's agents inspected Whistle Stop's premises, a Food Service Inspection Report was prepared, using a form that the agency has developed for this purpose. The form contained the following notice: Items marked below violate the requirements of Chapter 64E-11 of the Florida Administrative Code and must be corrected. Continued operation of this facility without making these corrections is a violation of [applicable law]. Violations must be corrected by the date and time indicated in the Results section above or an administrative fine or other legal action will be initiated. This language expressly warned the licensee of the consequences of failing timely to fix an identified violation; implicitly, it told the licensee that if a violation were corrected within what was, effectively, a "grace period" until the next inspection, then disciplinary action (e.g., administrative fine or other legal action) would not be taken with regard to that violation. Some of the violations for which the Department wants to impose an administrative fine were timely corrected. One such violation was Whistle Stop's preparation of potentially hazardous food on November 7, 2008, for which the Department would impose a $500 fine. This problem was corrected before the next inspection on November 13, 2008, at which time this particular violation was not noted. Similarly, the Department cited Whistle Stop for preparing potentially hazardous food on December 11, 2009, and it wants to impose a fine of $500 for the violation, which was found herein to have occurred. Whistle Stop, however, had corrected the violation by January 9, 2009, when the Department next inspected its premises. The Department seeks to impose a fine of $500 per day for Whistle Stop's failure to take effective measures for controlling vermin between December 11, 2008 and January 9, 2009. Whistle Stop was cited for this violation on December 11, 2008, but not on January 9, 2009, which means that Whistle Stop corrected the problem at some point before the Department's next inspection. (There is no evidence, moreover, as to when this violation was corrected; thus, even if it were appropriate to impose a fine for a violation that the licensee corrected during the apparent grace period, which is contrary to the undersigned's view, the undersigned could not ascertain for how long the violation actually continued after December 11, 2008.) The Department intends to impose fines of $125 apiece for Whistle Stop's failures properly to store garbage on the dates of November 13, 2008, and December 11, 2008. Each of these violations had been corrected, however, before the next inspections, which took place, respectively, on November 19, 2008, and January 9, 2009. In contrast to the foregoing, there are other violations for which the Department would impose a fine that Whistle Stop did not timely correct. Whistle Stop was cited for improper storage of garbage on November 7, 2008, and that problem was not fixed by the next inspection on November 13, 2008. The Department intends to impose of fine of $125 for this violation. Finally, the Department wants to fine Whistle Stop $500 per day (which amounts to $9,500) for the period from November 7, 2008, to November 26, 2008, for the licensee's continuing failure to control vermin on the premises. This violation did, in fact, continue throughout the subject period and was not timely corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order: (a) finding Whistle Stop guilty in accordance with the foregoing Recommended Order; (b) ordering Whistle Stop to pay an administrative penalty in the amount of $9,625; and (c) revoking Whistle Stop's food service establishment license. DONE AND ENTERED this 20th of October, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of October, 2009. COPIES FURNISHED: Victoria Coleman-Miller, Esquire Department of Health Palm Beach County Health Department 800 Clematis Street West Palm Beach, Florida 33401 James S. Lewis, Esquire 200 Southeast 6th Street, Suite 102 Fort Lauderdale, Florida 33301 Rose D. Sheffler Whistle Stop Lounge, Inc. 198-199 West Camino Real Boca Raton, Florida 33432 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Alina Alonso, Director Palm Beach County Health Department Florida Department of Health 800 Clematis Street West Palm Beach, Florida 33401 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact Gigi's Restaurant, LLC, holds Permanent Food Service license 2331011, which authorizes the operation of a public food establishment at 3585 Northeast 207th Street in Aventura, Florida, and expires October 1, 2011. Respondent last renewed its license on September 21, 2010. On January 13, 2010, at 11:29 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. At the time, Respondent's license had expired. The inspector also observed, among other things, the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate-strength dishmachine sanitizer; not-sanitized- properly-after-cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three-compartment sink. The inspector notified Respondent that a reinspection would take place on March 13, 2010, at 11:30 a.m. On April 21, 2010, the inspector performed a reinspection of the public food establishment. At the time, Respondent still had not renewed its license. The inspector observed the recurrence or continuation of the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate- strength dishmachine sanitizer; not-sanitized-properly-after- cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three- compartment sink. The five remaining violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause food-borne illness.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the five violations identified above and revoking the public food establishment license of Respondent. DONE AND ENTERED this 8th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 8th day of July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Arner Gigi Gigi’s Cafe 3585 Northeast 207 Street, No.C302 Miami, Florida 33180 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against it.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a public food service establishment, the Lifestyle Café, located in Lauderdale Lakes, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a public food service establishment license (license number 16-18253R) authorizing it to operate the Lifestyle Café. On May 3, 2000, William Gubasko, an inspector with Petitioner, conducted an inspection of the premises of the Lifestyle Café. His inspection revealed, among other things, that: the automatic fire suppression system did not have a current certification tag; the light fixture in the walk-in refrigerator did not have a shield; the baseboard on the bottom of the walk-in refrigerator was "decayed" allowing "room temperature" air to seep into the refrigerator; and the kitchen hand sink was filled with pots and pans and therefore employees were not able to wash their hands in the sink. During his May 3, 2000, inspection, Mr. Gubasko issued and served on Respondent a written warning in which he advised Respondent that the conditions described above constituted violations of the law and that if these violations were not remedied by May 9, 2000, administrative penalties would be imposed against Respondent. Mr. Gubasko returned to the premises of the Lifestyle Café on May 9, 2000, and found that the violations described above had not been corrected. The Administrative Complaint that is the subject of the instant controversy was issued on June 19, 2000. Respondent has previously been disciplined by Petitioner (fined $300.00) for other wrongdoing ("fail[ing], neglect[ing], or refus[ing] to pay for [its] license" and operating without a license).
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 Counts 1 through 4 of the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the amount of $1,600.00, which may be paid in one lump sum or in monthly installments of no less than $100, and suspending Respondent's license for a period of up to 12 months if it fails to pay the fine as required. DONE AND ENTERED this 31st day of August, 2001, in Tallahassee, Leon County, Florida. 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 31st day of August, 2001.
