The Issue The issues are whether Respondents are guilty of violating Chapter 509, Florida Statutes, and Rule 61C, Florida Administrative Code, governing operation of a public food service establishment, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the operation of public food service establishments. At all times relevant here, Respondents were licensed to operate Mike's Munchies, a public food service establishment with seating capacity for 38 customers. Respondents operate Mike's Munchies under License Control No. 13-04489R. On August 26-28 and November 18, 1998, Petitioner's inspector visited Respondents' place of business. During these inspections, the inspector observed and documented numerous violations of the Food Code and/or Rule 61C, Florida Administrative Code. The August 26-28 and November 18, 1998, inspections resulted in the issuance of the Administrative Complaint in DOAH Case No. 01-2008. The Administrative Complaint charged Respondent's with violating five provisions of the Food Code and four provisions of the Florida Administrative Code. During the hearing, Petitioner presented clear and convincing evidence that Respondents were guilty of the following violations: (a) The hot dogs in the make table were at 53.2° Fahrenheit; (b) There was no certified food manager; The interior of the upright freezers and freezer compartment of the kitchen refrigerator were dirty; (d) The shelves behind the counter were dirty; (e) The walls, ceiling, floors and equipment were dirty; (f) The interior of the outside storage building was filled with junk and debris; (g) The shelves and storage areas throughout the establishment were cluttered with litter, debris, and non-food service related items; and (h) Two carbon dioxide tanks in the kitchen hallway were unsecured. During the inspections on August 26-28 and November 18, 1998, the inspector observed a dog in the establishment. The dog was not a prohibited animal because it was a "support animal" for Respondents' disabled son. On March 30, 2000, Petitioner's inspector visited Respondent's establishment. During this visit, the inspector observed numerous violations of the Food Code and/or Rule 61C, Florida Administrative Code. The inspector also noted that Mike's Munchies was below the minimum standards of a Florida food service establishment and had been below those standards for several prior inspections. At the conclusion of the March 30, 2000, inspection, the inspector gave Respondents a food service inspection report. The report stated that Respondents had failed to comply with previous inspections, and as a result thereof, Petitioner might issue a notice to show cause why Petitioner should not assess sanctions against Respondents' license. The March 30, 2000, inspection resulted in the issuance of the Administrative Complaint in DOAH Case No. 01-2006. The Administrative Complaint charged Respondents with violating five provisions of the Food Code and two provisions of the Florida Administrative Code. During the hearing, Petitioner presented clear and convincing evidence that Respondents were guilty of the following violations: (a) The interior of the upright freezer and the upright refrigerator was dirty and moldy; (b) The shelf under the counter was dirty, littered with paper, dirty clothing and junk; (c) The floors of the dishwashing room and the kitchen were dirty; (d) The grounds around the rear of the building were littered with debris; and (e) The shelves, worktable and corridor outside the walk-in cooler were dirty and littered with junk. On March 30, 2000, the dog inside the establishment was not a prohibited animal because it was a "support animal" for Respondents' disabled son. Additionally, the outside mop sink was not without the required water pressure because it had an inside turn-on value that provided water pressure to the sink on an as needed basis. On June 14, 2000, Petitioner's inspector performed a routine inspection at Respondents' place of business. During this visit, the inspector observed numerous violations of the Food Code and/or Rule 61C, Florida Administrative Code. On the June 14, 2000, food service inspection report, the inspector recommended that Petitioner issue an emergency order based upon a severe and immediate threat to the public. The June 14, 2000, inspection resulted in the issuance of the Administrative Complaint in DOAH Case No. 01-2007. The Administrative Complaint charged Respondents with violating one provision of the Food Code. During the hearing, Petitioner proved by clear and convincing evidence that all surfaces in Respondents' establishment were dirty to sight and touch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order imposing administrative fines in the amount of $1,200 in DOAH Case No. 01-2006; $500 in DOAH Case No. 01-2007; and $8,000 in DOAH Case No. 01-2008, and suspending Respondents' license until they begin making monthly payments on said fines in a minimum amount as determined by Petitioner. DONE AND ENTERED this 7th day of September, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 7th day of September, 2001. COPIES FURNISHED: Charles McMahan Sandra McMahan 5324 Thomas Drive Panama City, Florida 32408 Claudia J. Pamperin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2002 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The central issue in this case is whether FMG met the qualifications to bid as set forth in the Invitation to Bid. Specifically involved is whether or not FMG met the requirement of having been engaged successfully in the business of food service management for at least a ten (10) year period prior to the date of the bid. As a secondary issue, FMG argued that the requirement is a minor irregularity which, by rule, should be waived.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, FMG organized and filed its Articles of Incorporation on November 8, 1985. The Florida corporation has remained active with all fees due the Secretary of State having been paid through December 31, 1987. On July 14, 1986, Thomas David Witten, became the majority shareholder and president of FMG. Mr. Witten's prior work experience included seventeen years of food service management with the Marriott Corporation followed by six years with Canteen. Mr. Witten left Canteen in 1985. While with Canteen, Mr. Witten had Successfully negotiated the contract at South Florida State Hospital for the food service management program. Canteen had obtained this contract after the bid process in 1981. On May 4, 1987, HRS mailed an Invitation to Bid (ITB) to obtain competitive prices for the food service management program contract to commence July 1, 1987. The ITB required the bidders to have engaged Successfully in the business of food service management for at least ten years prior to the date of the bid. The bidder was also required to furnish, as a part of its bid, a written statement evidencing its ability to accomplish the Specified work. As part of the written statement, the bidder was required to include information as to the immediate availability or ownership of the necessary equipment to perform the work, and the financial worth or reputability of the bidder together with the experience which the bidder has had in Successfully completing projects of a similar size, scope and responsibility The ITB also set forth specification; one of which was a performance and payment surety bond in the amount $250,000 to be furnished by the bidder to the hospital upon award of the contract. On May 14, 1987, HRS conducted a pre-bid conference. In attendance were representatives from Canteen, FMG, ServiceMaster, Food Service, and Service America Corporation (not a party to these proceedings). At this pre-bid conference no question was raised by FMG as to the qualification requiring ten (10) years experience in the business of food service management. The bid proposal submitted by FMG responded to the bidder's qualification by enclosing the curriculum vitae for members of FMG's professional staff. Documents regarding the experience of T. David Witten, Jimmy Blicharz, Williams Cox and Robert J. Trinley were included. Mr. Blicharz's career summary described thirteen years of operational and marketing management in the food service industry. Mr. Witten's curriculum vitae described twenty-three years of food service management experience as previously described. Mr. Cox's experience dated to 1966 and detailed food service activity as both food service director and dietician for various health care providers. Mr. Trinley's experience included over twenty-five years of administrative work with various health care providers. FMG described its bidder experience by listing work which had been performed by its individual employees at various institutions. In each of the instances, the experience noted was as a member of the staff of another company- not FMG. FMG, the company, was the bidder for bid number 595-530. HRS opened the proposals for bid number 595-530 on June 10, 1987. Additional information was requested from all bidders. On June 11, 1987, HRS requested the following information from FMG: Demonstration of ten (10) years of corporate history and corporate management of food services for institutions of Similar size and complexity. A written statement evidencing FMG's ability to accomplish the Specified work. FMG's reply to the HRS request maintained that the experience of its principal employees qualified FMG under the bid requirement Clearly, FMG had not successfully engaged in the business of food Service management for at least ten years prior to its bid proposal. HRS did not waive the ten year requirement. HRS, Food Service, ServiceMaster, and Canteen have agreed to readvertise bid number 595-530. The results of the bid tabulation for bid number 595- 530 were as follows: A. Food Service $103,979 B. ServiceMaster $110,000 C. FMG $ 96,900 D. Canteen $106,000 Four other potential bidders did not submit a proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That HRS enter a Final Order denying the protest filed by FMG. DONE and RECOMMENDED this 22nd day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER 87-3131BID, 87-3132BID, 87-3133BID Rulings on Petitioner, FMG's Proposed Findings of fact: Accepted, finding of fact paragraph 1 Accepted, finding of fact paragraph 2 Paragraphs 3 and 4 are accepted but deemed unnecessary since, at best, the described activities have only occurred within the last two years. Paragraph 5 is accepted, finding of fact paragraph 2. Paragraphs 6 and 7 accepted but are unnecessary to the resolution of the issues in this cause. Paragraph 8 is accepted in material part in finding of fact, paragraph 6. Paragraph 9 is accepted and addressed in material part in findings of fact paragraphs 2 and 6. Paragraph 10 is accepted as provided in findings of fact, paragraphs 2 and 6 the balance of paragraph 10 is deemed unnecessary. Paragraph 11 is accepted as addressed in finding of fact, paragraph 6. Paragraph 12 is rejected as unnecessary. Paragraph 13 is accepted only to the extent addressed in findings of fact, paragraphs 10 and 11. The balance is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as an argumentative conclusion outside the scope the issues to be resolved. Paragraph 15 is accepted in finding of fact, paragraph 14. Paragraph 16 is rejected . Mr. Witten's individual experience is not at issue. Mr. Witten, individually, was not the bidder. FMG chose to submit the proposal and waived its right to challenge the bid qualification requiring ten years experience. The conclusion reached in Paragraph 16 is contrary to the weight of the evidence and the law. Paragraph 17 is rejected. The conclusion reached is argumentative and contray to the weight of evidence and the law. Rulings on HRS' Proposed Findings of Fact: Accepted. Accepted. Accepted but deemed unnecessary to the resolution of the issues of this case. Accepted as addressed in finding of fact, paragraph 3. Accepted as addressed in finding of fact paragraph 3. Accepted as to date for incorporation otherwise rejected as unnecessary. Accepted. Accepted. Accepted. Paragraph 10 and 11 are addressed in material part in finding of fact, paragraphs 6, 7, 10, and 11. Paragraph 12 is accepted. Paragraph 13 is accepted to the extent that its alleges the requirement was considered indispensable, otherwise rejected as unnecessary or not supported by evidence. Paragraphs 14 and 15 are accepted. Rulings on Canteen's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted but unnecessary to the resolution issues in this cause. Accepted. Accepted. Accepted but unnecessary. Accepted. Accepted. Accepted but unnecessary as the parties agreed the sole issue was whether or not FMG met the bid qualification requiring ten years of experience. Rejected. All parties had waived any right to challenge the ten years requirement. Rejected as argumentative Allegation that bid was done as corporation not individually is accepted. Accepted. Rejected. FMG's position is that qualification should be waived. Accepted. COPIES FURNISHED: William E. Williams, Esquire Fuller & Johnson, P.A. 111 North Calhoun Street Tallahassee, Florida 32302 Phil Dresch 2304 Parklake Drive, North East Building 9, Suite 290 Atlanta, Georgia 30345 Roy C. Young, Esquire Young, VanAssenderp, Varnadoe & Benton, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., Esquire District 10 Legal Counsel East Broward Boulevard Fort Lauderdale, Florida 33301-1885 Celeste Rossi, President Duval Street West, Florida 33040 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-700
The Issue At issue in this proceeding is whether Respondent's public food establishment license should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: At all times relevant to this proceeding, Respondent, Thai Café, operated a public food service establishment, located at 4200 Tamiami Trail, Unit 14, Port Charlotte, Florida 33952-9233. Respondent's license, number 18-01285-R, expired on December 1, 1999, and was not renewed until March 22, 2000. Lisa Marie Wofford was, at all times relevant to this proceeding, a sanitation and safety specialist for the Division of Hotels and Restaurants, acting primarily as a restaurant inspector. On January 10, 2000, Ms. Wofford inspected Respondent's restaurant, which was open and operating. She found several violations of food service rules that she enumerated on a food service inspection report. The report warned Respondent that it had 10 days, until January 20, 2000, to correct the violations. Ms. Wofford entered a question mark on the report beside the license expiration date, because she could not at that time confirm when Respondent's license would expire. On January 20, 2000, Ms. Wofford conducted a "call back" inspection of Respondent's restaurant, which was open and operating. She found violations of food service rules, which she enumerated on a call back/reinspection report. Ms. Wofford testified that she could not recall whether she looked for Respondent's license on this call back inspection. On March 7, 2000, Ms. Wofford conducted a routine food service inspection of Respondent's restaurant, which was open and operating. She found Respondent in violation of food service rules and found that Respondent failed to display a current license. She enumerated these violations on a food service inspection report. Ms. Wofford noted on this report that Respondent was operating its restaurant without a license. Ms. Wofford testified that during the inspection, the owner told her that he had "mailed the license fee already, yesterday." At all times relevant to this proceeding, Karlin Dorothy Kahl was a management review specialist and compliance coordinator for the Division of Hotels and Restaurants, District 6, and was a custodian of the records maintained at the district office in Fort Myers. Ms. Kahl testified that the Division's records reflected that Respondent's license expired on December 1, 1999. The records also reflected that the license fee was not received by the Department until March 22, 2000, well after Ms. Wofford's inspections of January 10, January 20, and March 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent shall pay an administrative fine of $1,000, to be reduced to $500 if paid within 10 days of the date the final order is entered in this proceeding. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001. COPIES FURNISHED: Thai Café 3135 Cortez Road Fort Myers, Florida 33901 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this matter are whether Respondent was out of compliance with the food safety requirements of chapter 509, Florida Statutes (2016),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509. Respondent is a licensed public food service establishment in Florida and holds License No. 3915849. Respondent operates a restaurant under the name of Los Gorditos No. 2 located at 6110 Causeway Boulevard, Tampa, Florida. Respondent is a family-owned and operated business. The restaurant opened in November 2014. As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division. Ashley Herrmann (“Inspector Herrmann”) is employed by the Division as a Sanitation Safety Specialist. Inspector Herrmann has worked for the Division for approximately two and a half years as an inspector. Upon gaining employment in the Division, Inspector Herrmann was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. She is also a certified food manager and receives continuing education training on a monthly basis. Inspector Herrmann performs approximately 1,000 inspections each year. On November 5, 2015, Inspector Herrmann performed a routine, unannounced food service inspection on Respondent’s restaurant. During the inspection, Inspector Herrmann prepared a Food Service Inspection Report. In her report, Inspector Herrmann recorded her observations of potential violations. Inspector Herrmann noted approximately 39 conditions for which Respondent had failed to comply with applicable rules or statutes. Jaharia Perez signed the Food Service Inspection Report acknowledging receipt on Respondent’s behalf. Inspector Herrmann informed Respondent that it needed to correct the violations by November 12, 2015. On November 13, 2015, Inspector Herrmann performed a callback inspection on Respondent to follow up on her initial inspection. During this inspection, Inspector Herrmann prepared a Callback Report. Inspector Herrmann found that Respondent had corrected 14 of the violations she identified during her November 5, 2015, inspection. However, Respondent had not addressed the 25 other violations. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by December 5, 2015. Mariella Mendoza signed the Callback Report acknowledging receipt on behalf of Respondent. On December 8, 2015, Inspector Herrmann performed a second callback inspection on Respondent to follow up on the November 13, 2015, inspection. During this inspection, Inspector Herrmann prepared a second Callback Report. She noted that Respondent had corrected five more violations recorded in her November 5, 2015, and November 13, 2015, inspections. However, 20 violations still existed. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by January 5, 2016. Jaharia Perez signed the Callback Report acknowledging receipt on Respondent’s behalf. On January 5, 2016, Inspector Herrmann performed a third callback inspection on Respondent. During this inspection, Inspector Herrmann prepared a third Callback Report. On this report, Inspector Herrmann noted that Respondent had fixed at least one more violation identified during her November 5, 2015, November 13, 2015, and December 8, 2015, inspections. However, a number of violations remained uncorrected. Based on Inspector Hermann’s January 5, 2016, Callback Report, the Division cited Respondent with thirteen violations. These violations included: First Violation: Inspector Hermann observed a cutting board with cut marks which made the cutting board no longer cleanable in violation of rule 4-501.12, Food Code (2009).3/ Cutting boards that have cut marks collect food debris which enables bacteria to accumulate leading to food borne illness. The Food Code defines the governing requirement for this violation as a “core item.” The Division designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent, at the final hearing, expressed that it has obtained a new cutting board. Second Violation: Inspector Herrmann observed non-food grade containers being used for food storage in violation of rule 4-101.11, Food Code. Non-food grade containers can contain chemicals that can leak into food products. The Food Code defines the governing requirement for this violation as a priority item.4/ The Division has designated violations of priority items as “high priority violations.” See Fla. Admin. Code R. 61C-1.005(5)(a). Respondent claimed that it ordered and now uses approved food grade containers. Third Violation: Inspector Herrmann observed a build-up of dust, food debris, and grease on hood filters in violation of rule 4- 601.11(C), Food Code. Debris can potentially fall from hood filters or shelving into food items or accumulate on non-food contact surfaces and transfer to clean containers placing the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that in December 2015, it hired a custodial company to clean grease, debris, and soil in its facility every three months. Fourth Violation: Inspector Herrmann observed that Respondent seated more patrons than its septic system permit authorized in violation of rule 5-403.11, Food Code. Respondent’s establishment was approved for 19 seats, but Inspector Herrmann observed the establishment operating with approximately 48 seats on November 5, 2015, November 13, 2015, and December 8, 2015. On January 5, 2016, Respondent operated with approximately 25 seats. Serving more patrons than the septic system can accommodate can result in a failed septic system that can create a sanitary nuisance. The Food Code defines the governing requirement for this violation as a priority item. The Division has designated violations of priority items as “high priority violations. See Fla. Admin. Code R. 61C-1.005(5)(a). Respondent testified that, following the January inspection, it has reduced its seating to approximately 20 seats. Respondent has also initiated a plan to connect to the city water and sewer. This arrangement will allow the restaurant to expand its seating without violating its septic system capacity. Respondent hopes to connect to city water by Christmas 2016. Fifth Violation: a. Inspector Herrmann observed the presence of standing water around the floor drain, which was draining slowly near the cook line and fryers, in violation of rule 5-205.15, Food Code. Standing water in floor drains can potentially back up into the establishment and create a sanitary nuisance or potentially attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Sixth Violation: Inspector Herrmann observed an outside dumpster sitting directly on the ground without a barrier or non-absorbent surface between the dumpster and the ground in violation of rule 5- 501.11, Food Code. Dumpsters without proper pads allow food waste and chemicals to leak into the ground and attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that it is working with Hillsborough County to redesign the area where the dumpster is located to include a concrete space for the dumpster that complies with regulations. The permits have not yet been approved, but Respondent is working towards them. Seventh Violation: Inspector Hermann observed several broken wall tiles under the three compartment sink and damaged cove molding on the front cook line in violation of rule 6-501.11, Food Code. Damage to wall or cove molding can lead to the accumulation of food debris and the growth of bacteria, putting the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent asserted that it repaired all the wall tiles in December 2015. Eighth Violation: Inspector Herrmann observed soil on Respondent’s floor near or along the baseboards in violation of rule 6-501.12(A), Food Code. Bacteria and dirt on the floor can come into contact with food contact surfaces placing the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Similar to its reaction to the Fourth Violation, Respondent hired a custodial company to clean grease, debris, and soil in its facility every three months. Ninth Violation: a. Inspector Hermann observed that lights above a food preparation table were missing a proper light shield or cover in violation of rule 6-202.11, Food Code. Light covers and shields protect food items and preparation surfaces from shattered glass. The Food Code defines the governing requirement for this violation as a “core item.” The Division designates violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Tenth Violation: Inspector Herrmann observed carbon dioxide/helium tanks that were not adequately secured in violation of Florida Administrative Code Rule 61C-1.004(7)(a). Unsecured tanks might topple over and, if breached, can become a missile-like object and a danger to the public’s safety. The Division designated this violation as a “basic violation.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that the tanks are owned by the owner of the building where the restaurant is located and were present when Respondent opened its business. Further, Respondent understands that the tanks are empty. Therefore, the tanks do not pose a danger if the top valve gets knocked off. Eleventh Violation: Inspector Herrmann observed that Respondent had recently constructed a bar inside the restaurant. Respondent did not submit a plan for the bar to the Division for approval in violation of rule 61C-1.002(5)(c)1. Inspector Herrmann contacted the Division’s Plan Review Office and confirmed that Respondent had not submitted a properly prepared facility plan and specification for review. The Division must approve remodeled or newly constructed public food service establishments to ensure compliance with sanitation and safety requirements. The Division designated this violation as an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent explained that it requested and received approval from the Hillsborough County Fire Department to construct the bar. However, Respondent was not aware that it also needed to submit a plan review to the Division. Consequently, it did not seek approval from the Division. Twelfth Violation: Inspector Herrmann observed Respondent operating with four or more employees engaging in food preparation and/or handling without a certified food protection manager on duty in violation of Florida Administrative Code Rule 61C-4.023(1). At least one certified food protection manager must be present at all times when four or more employees are engaged in the storage, preparation, or serving of food to ensure the establishment is operating with acceptable sanitary practices. The Division designated this violation an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent expressed that it always operates under the supervision of certified food protection managers and believes that a food manager was present during the times of the inspections. Respondent offered that the inspections were accomplished in a short timespan (20 minutes). This short time period, combined with the fact that Spanish is the primary language of many of Respondent’s employees, may have led to a misunderstanding over whether a certified food manager was present during the inspections. At the final hearing, Respondent testified and produced evidence that Respondent currently employs approximately nine certified food managers. Respondent further represented that the two individuals who signed the inspection reports on Respondent’s behalf were also certified food protection managers. Thirteenth Violation: a. Respondent failed to provide Inspector Herrmann with proof of its employees' required state-approved employee training upon request in violation of section 509.049(5). Employees of public food service establishments are required to have basic food safety training which imparts knowledge of basic food handling skills. Lack of this knowledge can result in a breakdown of the food handling process, possibly leading to food borne illness or unsanitary conditions. The Division designated this violation as an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent has one prior disciplinary Final Order filed with the Agency Clerk for the Department of Business and Professional Regulation within the 24 months preceding the administrative complaint in this matter. The Final Order in Case No. 2015-014633 was filed on October 6, 2015. Based on the evidence and testimony presented at the final hearing, the Division demonstrated, by clear and convincing evidence, that Respondent was out of compliance with applicable food safety requirements of the Food Code, Florida Statutes, and the implementing administrative rules of the Division. The Division established that on or about November 5, 2015, November 13, 2015, December 8, 2015, and January 5, 2016, Respondent committed the following violations listed above: the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and thirteenth violations. The Division did not establish, by clear and convincing evidence, the tenth and twelfth violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent, Benitel Eddie Joel Perez, d/b/a Los Gorditos No. 2, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $3,500 for the violations identified above, due and payable to the Division within thirty (30) calendar days of the date the final order is filed with the Agency Clerk. DONE AND ENTERED this 29th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of June, 2016.
The Issue Whether Respondent committed the violations alleged in the administrative complaints dated July 8, 2015, and September 30, 2015; and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: The Division is the state agency charged with regulating public lodging and public food service establishments pursuant to chapter 509. At all times material hereto, Respondent was licensed as a public food service establishment in the state of Florida by the Division. Pet. Ex. 1. The Division's first witness, Inspector Audain, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Audain has worked for the Division for approximately ten years as an inspector. Prior to working for the Division, Audain worked in the food industry as a managing partner at a restaurant in New York. Upon gaining employment in the Division, Audain was trained on the Food Code and the laws and rules pertaining to public food service establishments and public lodging establishments. Audain is also a certified food manager. Audain receives continuing education and training on a monthly basis. Audain performs more than 700 inspections each year. The Division's second witness, Inspector Howard, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Howard has worked for the Division for approximately one and one- half years. Prior to working for the Division, Howard worked in the food industry as an executive chef at a Hilton Hotel in Tampa, a chef at a W Hotel in South Beach, and a chef at Los Hotel in South Beach. Upon gaining employment in the Division, Howard was trained on the Food Code and on the laws and rules pertaining to public food service establishments and public lodging establishments. Howard is also a certified food manager. Howard receives continuing education and training on a monthly basis. Howard performs approximately 800 inspections each year. "Basic Item" means an item defined in the Food Code as a Core Item. Fla. Admin. Code R. 61C-1.001(5) (January 1, 2013). "Basic violation" means a violation of a basic item, as defined in Florida Administrative Code Rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to general sanitation and does not meet the definition of high priority violation or intermediate violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "Intermediate violation" means a violation of an intermediate item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to specific actions, equipment, or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "High priority violation" means a violation of a high priority item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, determined by the Division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of rule 61C-1.005. DBPR Case No. 2015-029646 On July 1, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report setting forth the violation she encountered during the inspection. Pet. Ex. 2. On July 1, 2015, Audain notified Respondent of the cited violation. Ricardo Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 2. During the inspection on July 1, 2015, Audain observed roach activity present as evidenced by eight live roaches found crawling on the floor in the food service area, three live roaches crawling on the fryer in the kitchen, three live roaches found by the water heater in the kitchen, two live roaches found between the hose from the water heater and the wall, two live roaches found underneath the kitchen prep table, at least six live roaches found in the air conditioner closet, one live roach crawling on the wall next to the refrigerator, five live roaches crawling on the reach-in cooler by the door to the front service area, and one live roach crawling on the wall in the front service area of the establishment. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. Pet. Ex. 2. As a result of these observations, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency order was issued on the same date as the inspection, July 1, 2015. Pet. Ex. 7. DBPR Case No. 2015-042510 On July 16, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During this inspection, Audain prepared and signed an inspection report setting forth the violations she encountered during the inspection. Pet. Ex. 3. On July 16, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by July 17, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 3. On July 17, 2015, Howard performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Howard prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, inspection report had not been corrected. Pet. Ex. 4. On July 17, 2015, Howard notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 1, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 4. On September 2, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, and July 17, 2015, inspection reports had not been corrected. Pet. Ex. 5. On September 2, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 3, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 5. On September 3, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015; July 17, 2015; and September 2, 2015, inspection reports had not been corrected. Pet. Ex. 6. The first violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. Audain observed employees engaging in food preparation without proper hair restraints. This is a violation because hair can be both a direct and indirect vehicle for contamination. Food employees may contaminate their hands when they touch their hair. Proper use of a hair restraint keeps dislodged hair from ending up in the food and may also deter employees from touching their hair. The Food Code defines the governing requirement for the first violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3, 5-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 367; Fla. Admin. Code R. 61C-1.005(5)(c). The second violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed equipment in poor repair as evidenced by a freezer chest door having filament (insulation) exposed. This is a violation because failure to properly maintain equipment could lead to violations of the associated requirements of the Food Code that place the health of the public at risk. Refrigeration units in disrepair may no longer be capable of properly cooling or holding potentially hazardous (time/temperature control for safety) foods at safe temperatures. The Food Code defines the governing requirement for the second violation as a Core Item. The Division has designated Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 460; Fla. Admin. Code R. 61C-1.005(5)(c). The third violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. During the July 16, 2015, inspection, Audain observed roach activity present as evidenced by four live roaches found nestled in crevices by the air conditioner in the kitchen and one live roach crawling on the floor in front of the reach-in cooler between the kitchen and front service area. During the September 2, 2015, inspection, Audain observed one live roach crawling on the kitchen floor. Audain also observed one dead roach in the dining room freezer and one dead roach near the kitchen door during her inspection on September 3, 2015. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. The Division properly designated this violation as a high priority violation. Pet. Ex. 3, 5-6; Fla. Admin. Code R. 61C-1.005(5)(a). The fourth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed outer openings to the establishment not protected as evidenced by a rear door which was not self-closing. This is a violation because the presence of insects and rodents (which may transmit bacteria and disease to food) is minimized by protecting and securing outer door openings to the food establishment. The Food Code defines the governing requirement for the fourth violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, pp. 485-486; Fla. Admin. Code R. 61C-1.005(5)(c). The fifth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the manager's food manager certification upon request. This is a violation because managers are required to pass an approved food manager certification course and test which ensures managers have a higher level of knowledge regarding sanitation and food handling, preparation, and storage. Lack of the required knowledge can result in breakdowns in these processes. The Division has designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). The sixth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the employees’ required state-approved employee training. This is a violation because employees of restaurants are required to have basic food safety training, which imparts knowledge of basic food handling skills, including proper glove use, procedures for food temperatures and hot/cold holding, cooking temperature requirements, and basic sanitation measures, such as personal hygiene and hand-washing. Lack of this knowledge can result in a breakdown in these processes, possibly leading to food-borne illness or unsanitary conditions. The Division properly designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). Respondent had one Emergency Order of Suspension of License and Closure filed with the agency clerk by the Division within the 12 months preceding the date the current administrative complaints were issued. The Emergency Order of Suspension of License and Closure was filed on July 7, 2015. Pet. Ex. 7.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, ordering Latchman's Seafood Market and Grill, Inc., d/b/a Latchman's Seafood Market and Grill, Inc., to pay an administrative penalty in the amount of $500.00 for the violation listed above in DBPR Case No. 2015-029646 and an administrative penalty in the amount of $1,650.00 in DBPR Case No. 2015-042510, for a total administrative penalty of $2,150.00, plus any applicable and authorized investigative expenses or costs, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date of the final order. DONE AND ENTERED this 5th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 5th day of May, 2016.
