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 Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330047. Respondent’s license authorizes Respondent to operate a public food service establishment known as La Segunda Bodegita del Medio at 833 Southwest 29th Avenue, Unit 3, Miami, Florida 33135 (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Pedro Ynigo was an experienced and appropriately trained investigator employed by Petitioner as a Senior Sanitation and Safety Specialist. Mr. Ynigo’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Mr. Ynigo performed two routine inspections of Respondent’s establishment during the times material to this proceeding. The initial inspection was on December 6, 2004. The follow-up inspection was on January 11, 2005. The initial inspection listed a series of violations and gave Respondent until January 6, 2005,3 to correct each deficiency. The follow-up inspection determined that the following deficiencies, which had been cited in the initial inspection, had not been corrected. Each violation is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non-critical violation is one that does not rise to the level of a critical violation. Petitioner established that on January 11, 2005, Respondent was guilty of three critical violations and three non-critical violations. The three critical violations were as follows: Respondent’s food manager did not have a food management certificate. At the times of the inspections, Respondent’s food managers were Ormundo and Claudia Roque. Neither Mr. or Mrs. Roque had received a food management certificate. The failure of Respondent’s food managers to have his or her food management certificate constituted a violation of Section 509.039, Florida Statutes, and Florida Administrative Code Rule 61C- 4.023(1) as alleged in Paragraph 5 of Petitioner’s Administrative Complaint. Respondent could not provide proof that its employees had undergone training. This inability to produce proof of employee training constituted a violation of Section 509.049, Florida Statutes, as alleged in Paragraph 6 of Petitioner’s Administrative Complaint. Respondent’s facility had no hot water in the toilet room hand sink. The lack of hot water in the toilet room sink constituted a violation of Section 5- 202.12 of the Food Code, as alleged by Paragraph 1, of Petitioner’s Administrative Complaint. The three non-critical violations were as follows: There was no backflow preventer on the hose bibb over the mop sink. The failure to have the required backflow preventer constituted a violation of Section 5-203.14 of the Food Code as alleged by Paragraph 2 of Petitioner’s Administrative Code. The mechanical ventilation in the toilet room was not functioning. The absence of required ventilation in the toilet room constituted a violation of Florida Administrative Code 6-304.11, as alleged in Paragraph 3 of Petitioner’s Administrative Complaint. Respondent had constructed an additional seating area in its facility without submitting plans for the additional seating to Petitioner for its review. The failure to submit the plans constituted a violation of Florida Administrative Code 61C-1.002(5)(B) as alleged in Paragraph 4 of Petitioner’s Administrative Complaint.
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 paragraphs 1 through 6; disciplining Respondent for those violations by imposing a fine in the total amount of $2,600.00; and requiring Respondent's majority owner to attend, at his or her own expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 January, 2006.
The Issue The issues are whether Respondent operated as a public food service establishment with dirty food contact surfaces and utensils and without a certified food protection manager present in violation of Florida Administrative Code Rules 61C-1.001(14) and 61C-4.023(1) and in violation of Subsection 509.032(6), Florida Statutes (2008),1 and, if so, what penalty, if any, should be imposed against Respondent's license.
Findings Of Fact Petitioner is the state agency responsible for regulating and inspecting public food service establishments defined in Subsection 509.013(5). Respondent is licensed by Petitioner as a public food service establishment. The business address of Respondent is 220 West Miami Avenue, Venice, Florida. On October 21, 2008, an inspector for Petitioner performed a food service inspection of Althea's. No certified food manager was on duty during the inspection. Four or more employees were engaged in food preparation. A buildup of soil material existed on equipment identified in the record as the Blakeslee mixer head. Both violations are critical violations. Both violations present a threat to the public health. Petitioner performed a re-inspection of the premises on December 23, 2008. During the re-inspection, the violations from October 21, 2008, had not been corrected. Ms. Diane Silvia was scheduled to be the certified food manager for Respondent on December 23, 2008. However, she was not present on the premises at the time of the inspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a fine in the aggregate amount of $2,000.00, to be paid within 30 days of the date that this proceeding becomes final. DONE AND ENTERED this 23rd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of March, 2010.
The Issue Whether Petitioner committed the violations set forth in the Administrative Complaint 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 the owner of an eating establishment located in Gainesville, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 1102934 issued by the Division. Franklin Regan is a sanitation and safety specialist employed by the Division. His duties include inspecting food service and lodging establishments for compliance with Chapter 509, Florida Statutes. Mr. Regan has a bachelor's degree from Florida State University in hotel and restaurant administration and a degree in ornamental horticulture from the University of Florida. He has been employed by the Department of Business and Professional Regulation for 11 years. Prior to that time, he worked for several years in the field of food service and the public lodging business. He also has received training in laws and rules regarding food service and lodging, as well as fire safety. On November 15, 2002, Mr. Regan conducted an inspection of Respondent's premises, Nature's Table restaurant and issued an inspection report. Mr. Alissa signed for the inspection report. During the November 15, 2002, inspection, Mr. Regan observed a small food preparation unit in the service area to be 54 degrees. He wrote on the inspection report to not use that food preparation unit until it was able to maintain potentially hazardous food at 41 degrees. He noted on the inspection report that the restaurant would be checked within the next 7 days to determine if potentially hazardous food was being maintained at 41 degrees or lower. Mr. Regan also made a notation on his November 15, 2002, inspection report that Respondent needed to submit within 10 days new plans with actual locations of all equipment. He was concerned specifically about the labeling of a preparation sink that had been labeled as a hand sink on Respondent's Application for Plan Review. Mr. Regan conducted another inspection at Respondent's restaurant on November 18, 2002. During that inspection, he observed food temperatures over the required 41 degrees. Specifically, he noted ham at 42 degrees, tuna salad at 45 degrees, and egg salad at 44 degrees. This is a critical violation because bacteria can multiply at a rapid rate in food maintained above 41 degrees. This is potentially hazardous because the bacteria can cause infection if consumed. During the November 18, 2002, inspection, Mr. Regan also observed that potentially hazardous foods were not maintained in wells of a preparation unit at 41 degrees or below. This is potentially hazardous for the same reason as noted in the paragraph above. During the November 18, 2002, inspection, Mr. Regan also noted that no hand towels were provided at a hand sink. This is a violation because improper hand washing can lead to transfer of pathogenic bacteria to food and viruses. As a result of the November 18, 2002, inspection, the inspection report included a warning that the noted violations must be corrected by November 22, 2002. Mr. Regan conducted a call back or re-inspection on November 25, 2002. During that re-inspection, he observed three deficiencies that were not corrected from the November 18, 2002, report: that sliced turkey was at 48 degrees and egg salad was at 46 degrees; that the prep unit was not maintaining potentially hazardous food in wells at 41 degrees or lower; and that hand towels were not provided at the front hand sink. During the re-inspection conducted on November 25, 2002, Mr. Regan also noted on his written report that Respondent had not submitted plans with actual locations of equipment as he had requested in his first inspection report dated November 15, 2002. Mr. Alissa offered mitigating circumstances regarding some of the deficiencies noted by Mr. Regan. Regarding the allegation of failure to keep food at an appropriate temperature, Mr. Alissa asserted that he and his employees use a method called "time-in-lieu" to overcome the temperature problem with refrigeration units being opened and closed. Mr. Alissa described two charts in the restaurant regarding the time-in-lieu procedure used in his restaurant. The charts are located next to refrigeration units and state the time the food is put in a refrigeration unit and the time the food is removed. The chart next to the large sandwich unit has columns and rows referring to various potentially hazardous foods, the times the foods were placed in the sandwich bar, and the time the foods should be removed or thrown away. Mr. Alissa has had this procedure in place since Mr. Regan's second inspection. Mr. Alissa's testimony in this regard was detailed including the exact locations of the charts in his restaurant. His testimony in this regard is accepted as credible. However, Respondent's written policy or procedure of using time-in-lieu is not in evidence. When a restaurant uses the time-in-lieu procedure, it must have a written policy establishing the time food was removed from the refrigerator so a person would know when the food has to be used, cooked, or destroyed. The written procedure must be available to the food inspector. Mr. Regan does not recall seeing these charts or any other documentation demonstrating that the time-in-lieu procedure was in place. Respondent did not offer any evidence of mitigation regarding the allegations concerning lack of hand drying provisions or of failure to submit revised plans of the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Hotels and Restaurants enter a final order which confirms the violations found, imposes an administrative penalty in the amount of $1,000.00, and requires Respondent to attend a Hospitality Education Program and to provide proof of such attendance to the Division. DONE AND ENTERED this 16th day of January, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jamil Alissa 6419 West Newberry Road, No. G3 Gainesville, Florida 32605 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact The Dixie Cream Restaurant is a public food service establishment owned by Sebastian's Dixie Cream, Inc., and located at 2226 N.W. 6th Street, Gainesville, Florida. It holds license number 11-01053R issued by the Division of Hotels and Restaurants. On March 23, 1982, this establishment was inspected by a supervisor of sanitarians of the Alachua County Health Department, and a sanitarian/inspector of the Division of Hotels and Restaurants. The following conditions were found to exist: Certain food served in the Dixie Cream Restau- rant was being prepared in an adjoining building which was not an approved, inspected, and licensed food preparation source. Stored food items in the walk-in cooler were not covered. The ice cream scoop, a multi-use food utensil, was not kept properly in a clean and sanitary fashion between usages. Toxic materials were stored in the dry food storage area. Hot and cold running water was not provided at the handwashing sink in the food preparation area. Employees were not wearing hair restraints. Multi-use drinking and eating utensils were not maintained in a clean and sanitary manner. The grill, grill accessories, portable fan, shelves, counters, and sides of cooking equip- ment were not maintained in a clean and sanitary manner. Plastic food utensils were not stored in a manner preventing exposure of the food contact surface to hand contact upon being picked up. Plastic, single service utensils and articles were not covered and protected from possible contamination by dirt and roaches. A hose left in the three compartment sink allowed possible back siphonage of sewer water into the sink. Plumbing malfunctions existed causing standing water to exist in the bottom of the reach-in cooler. Severe roach infestation existed throughout the kitchen and food preparation area. Hand towels and cleanser were not provided for use of food preparation employees. The floors in the kitchen, food preparation areas, and walk-in cooler were in a dirty and unsanitary condition. The floor mats in the food preparation area were dirty and encrusted with food particles, grease, and debris. Holes in the walls allowed vermin to enter the food preparation area. There was a gap between the bottom of walls in the food preparation area and the floor, allowing debris and food to accumulate there and be inacces- sible to cleaning. The food preparation facility building used by the Respondent on the back portion of the lot on which the Dixie Cream Restaurant is located was not licensed and approved for such use. Food prepared there was carried to the Dixie Cream Restaurant and served there. On April 14, 1982, the Dixie Cream Restaurant was inspected again, along with the adjoining food preparation facility owned and operated by the Respondent. All of the conditions previously existing there on March 23, 1982, remained in existence, except for the violations number 2, 3, 12, 15 and 17, above, which had been corrected. On June 6, 1982, Mr. Shipley again inspected these same premises. This time he was accompanied by Mr. Pete Schlosser, an inspector for the Division of Hotels and Restaurants. The same conditions discovered there on March 23, 1982, continued to exist, with the exception of conditions numbered 2, 3, 4, 11, 12, 14, 15, 16, and 17, which were corrected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of violating the rules cited in each of the nineteen counts recited in the above conclusions of law. It is further RECOMMENDED that the Respondent be assessed a fine of $100.00 for each of the ten violations which had not been corrected as of the last inspection on June 6, 1982, being violations numbered 1, 5, 6, 7, 8, 9, 10, 13, 18 and 19, recited in the conclusions of law above. The total of these fines is $1,000.00. It is further RECOMMENDED that the Respondent be assessed a fine of $25.00 each for the nine other violations, numbered 2, 3, 4, 11, 12, 14, 15, 16, and 17, as recited in the above conclusions of law, for the reason that these have been corrected. The total of the fines assessed for corrected violations is $225.00. It is further RECOMMENDED that the Final Order provide that License Number 11-01053R be suspended for a period of three (3) months, if the fines assessed above, in the total amount of $1,225.00, are not paid within 30 days of the date of the Final Order. THIS RECOMMENDED ORDER entered this 8th day of October, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 8th day of October, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Stephen N. Bernstein, Esquire P.O. Box 1642 Gainesville, Florida 32602
