The Issue The administrative complaint, as limited by the abandonment of certain charges at the final hearing, raises four issues about the operation of the respondent's business. These include whether at the time of inspections on August 11 and September 3, 1986, the respondent was a food service establishment which had on its premises food which was not from an approved source; whether it failed to provide dishwashing facilities; whether it failed to provide hot and cold running water under pressure; and whether it failed to provide adequate toilet facilities.
Findings Of Fact France To You Coconut Grove, Inc., operates at 3199 Commodore Plaza, Miami, Florida, in the area known as Coconut Grove. At that location the corporation sells magazines, newspapers, post cards, greeting cards, cigarettes and, at one end of the store, has freezers containing food for sale. The entire facility is comprised of about 900 square feet, and has a single restroom. There is no space for a second restroom. The existing restroom is generally not made available to the public because to reach it, it is necessary to go through a storeroom containing the facility's merchandise. Non-employees therefore are not permitted to use the restroom. Prior to August, 1986, patrons could purchase food in sealed microwaveable packages from the freezer. It would then be heated and made available to the customer on paper plates with plastic, single-use utensils to be consumed outside the premises on a deck containing tables and chairs which France To You had made available. As the result of an article which appeared in the Miami Herald in early August, 1986, which indicated that gourmet food was sold at France To You, the health department sent an inspector, Mr. Hoffman, to the establishment. Hoffman saw people eating on the deck outside France To You. He met with the manager of the facility, Mr. Taylor. Mr. Taylor became distressed when the health department asserted that France To You fell under its jurisdiction. Mr. Hoffman asked Mr. Taylor to come to the health department offices for a planned review. Mr. Taylor did so and after initially meeting with a planned review officer, Mr. Taylor demanded to see someone more senior. During the meeting Mr. Taylor explained he planned to heat for patrons food purchased at France To You, which would be consumed on the deck outside. It was arranged that the administrator of the Dade County Public Health Department, Mr. Livingstone, would come to the Taylor establishment, which is something the administrator ordinarily leaves to regular inspectors. On August 11, 1986, Mr. Livingstone came to France To You with Mr. Ros, the Assistant Director, and Mr. Diaz of the State Department of Business Regulation, Division of Hotels and Restaurants. At that meeting Mr. Livingstone found that the freezers contained prepackaged food, which people were eating on the deck outside the establishment. There was also a Mr. Coffee machine on the premises, but it was used only for employees, not to sell coffee to customers. When Mr. Livingstone attempted to explain the requirement of the sanitation code to Mr. Taylor, Mr. Taylor became abusive and the conversation ended. There were no dishwashing facilities or three- compartment sink at France To You on August 11, 1986, and no hot water in the restroom or hot and cold water under pressure in the food preparation area, i.e. the area where the food was heated and transferred to paper plates for consumption. The prepackaged containers of food came from another France To You store on Mills Drive near the Town and Country Mall in south Dade County. That store has a market license which permits it to sell food, but it does not hold a processing license; the Mills Drive facility has not been approved by the Dade County Health Department to process food that would be packaged for sale at another location. It would have been possible for the food portions sold in Coconut Grove to have been prepared by a food processing plant inspected and approved by the Department of Agriculture or the Food and Drug Administration. There was no evidence presented that the food processing plant which was the source of the food portions at France To You was unapproved by the Department of Agriculture or the Food and Drug Administration. The premises were then reinspected by Mr. Hoffman of the Dade County Department of Public Health, and the supervisor for the area, Mr. Petty, on September 3, 1986. That inspection revealed that food was still being prepared and served on the deck outside where people consumed it. There were no dishwashing facilities or three compartment sink to wash and sanitize any food service equipment. Hot and cold running water under pressure was not available where the food was prepared, which is required to minimize the possibility of hand- to-mouth contamination of food. There was not a second restroom available for patrons. While the inspection report and the testimony of Mr. Hoffman would indicate there were some other violations found that day, such as smoking in the food preparation area and the absence of a thermometer in the freezer cases, those matters are not charged in the administrative complaint and therefore not relevant in this proceeding. A reinspection, following up on that done by Mr. Hoffman and Mr. Petty on September 3, 1986, was performed by Mr.Louis Ron of the Dade County Public Health Department on September 9, 1986. Mr. Ron was accompanied again by Mr. Petty. At the time of the reinspection the violations which had been filed by Mr. Hoffman had not been corrected, i.e. there was still no three-compartment sink, there was only one restroom, and there was no hot water in the handwashing sink in the food preparation area. Mr. Ron inspected the premises again on January 16, 1987. At that time Mr. Ron observed microwave ovens which were dirty and had not been cleaned, that there was no facility for sanitizing utensils being used by the establishment, in that there was no dipper well for the ice cream service operation which then had been installed on the deck, but there was a handwashing sink for that ice cream service. While a three- compartment sink had been installed, there was no running water yet connected to it. Finally, another inspection of the premises took place by Mr. Hoffman on April 2, 1987. At that time, the food service operation had expanded to include grills and stoves installed on the deck for the preparation of food items such as hamburgers, hotdogs, chili, eggs and bacon, as well as ice cream being served at the deck. Photographs of these food service activities taken by Mr. Hoffman were admitted into evidence. There may be other food service establishments in the general Coconut Grove area which do not provide two public restrooms, such as the Subway Sandwich Shop.
Recommendation It is recommended that a Final Order be entered finding the facility to have violated Rules 10D-13.027(1) and 10D-13.027(5), Florida Administrative Code, and imposing an administrative fine of Four Thousand Five Hundred ($4,500) Dollars, pursuant to Section 381.112, Florida Statutes (1985). DONE AND ORDERED this 17th day of December, 1987, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4500M The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: France To You is a food service establishment as covered in the conclusions of law. Covered in finding of facts. Sentence 1 rejected because there is inadequate proof concerning whether the food source was approved by governmental entities other than the Dade County Health Department. Sentences 2 and 3 covered in findings of fact 2 and 7. Covered in finding of fact 4. Covered in findings of fact 5, 6 and 7. Rejected as unnecessary. Covered in finding of fact 4, except as to the coffee service, which is covered in finding of fact 6. Rejected due to the inadequate evidence concerning the licensure status of the food processor. Covered in findings of fact 10 and 11. Rejected as unnecessary, and because there is inadequate proof that the respondent sold any coffee to patrons. Covered in finding of fact 14. Covered in finding of fact 12. Covered in finding of fact 13. Covered in finding of fact 3. Covered in finding of fact 14, but relates only to assessment of penalty not to a violation. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Not adopted because Mr. Taylor's testimony concerning the availability of restrooms at other establishments is not relevant to determining whether the operation of France To You is one which requires two restrooms. Covered in finding of `fact 2. Covered in finding of fact 2. Rejected as unnecessary. Covered in finding of fact 13. Rulings on Respondent's Proposed Findings: Covered in findings of fact 5 through 7. That no inspector actually saw food being prepared, as opposed to food being consumed by patrons of France To You, is not significant. The evidence supports the inference that France To You was serving food. Rejected because inspectors observed patrons eating food at the establishment in August and September of 1986. Generally adopted in finding of fact 6. Although there is inadequate proof that the source of the food sold had received FDA approval, that is not the issue presented. To impose sanctions, the Department of Health and Rehabilitative Services had to prove that the source of the food had not received FDA approval, which it failed to prove. The burden of this finding is adopted in finding of fact 6. Rejected for the reasons given in ruling on proposal 1. Covered in finding of fact 9. Rejected because the inspection performed on January 16 indicated that there was no running water connected to the three-compartment sink. To the extent that the finding includes a proposal that there was a handwash sink with hot water is covered in finding of fact 13. Rejected because the evidence gives rise to the inference, which the Hearing Officer makes, that food was being served prior to January 1, 1987. Rejected as inconsistent with the testimony of the health department inspectors which has been credited. No findings have been made with respect to advertisements because it is unnecessary to do so. Omitted. Rejected because the type of licensure which France To You Food Service Corporation had for the facility on Mills Drive was not a license to process food to be sold elsewhere. Rejected as irrelevant. Whether other establishments may be violating the law does not excuse any violations by France To You. COPIES FURNISHED: Morton Laitner, Esquire Department of Health and Rehabilitative Services 1350 North West. 14th Street Miami, Florida 33125 Michael A. Vandetty, Esquire DIENER & SHAPIRO, P.A. 1790 West 49th Street Suite 312 Hialeah, Florida 33012 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
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 an eating establishment located in Bell, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 3100051 issued by the Division. Julianne Browning is an inspector employed by the Division. Ms. Browning has a bachelor's degree from Florida State University in hotel and restaurant administration. She has been employed by the Department of Business and Professional Regulation since 1990. Prior to that time, she worked for approximately 10 years in the field of public lodging and food service. She also has received training in laws and rules regarding public food service and lodging, as well as fire safety. On October 23, 2002, Ms. Browning conducted an inspection of Respondent's premises. Rita Martin was not on the premises at the time of the October 23, 2002 inspection. Christina Martin, Rita Martin's sister-in-law who also works at Respondent's establishment, signed for the inspection report. Ms. Browning subsequently discussed the investigation findings and report with Rita Martin. During the October 23, 2002 inspection, Ms. Browning observed flies in the kitchen. Having flies in the kitchen is a critical violation because flies carry germs and bacteria, posing a direct threat to the public's health. Ms. Browning also found that there was no proof that employees who had worked at Respondent's establishment for 60 days or more had received food training. This is a critical violation because employees need to be trained in the correct way to handle food and the required temperatures for food. Ms. Browning also observed tuna salad in the refrigerator at 45 degrees, which is considered an unsafe temperature. The inspection took place at 2:30 p.m. but Ms. Browning determined that the tuna salad was prepared at 9:00 a.m. Food kept out of temperature for more than four hours are potentially hazardous because the food begins to grow bacteria if left out of refrigeration for too long. Ms. Browning also observed coleslaw, tuna salad, and crab salad that were not date-marked. These types of prepared foods can only be held for seven days or they become potentially hazardous food. These foods need to be date- marked so one knows when they were made to then determine when the foods should be thrown away. Ms. Browning observed that the hood filters had a severe grease buildup. A severe grease buildup in the hood filter is an indication that the flue has a grease buildup, which is a fire hazard. Ms. Browning observed a black substance on the interior of the ice machine. She was uncertain as to what the black substance was but believed it to be mildew. Mildew is hazardous near food because it has spores which could fall into the ice. Ms. Browning observed recyclables not stored in a waste handling unit that is inaccessible to insects or rodents. She observed boxes kept either on the ground or in an open trailer. This is a hazard because all garbage, whether recyclables or other garbage, has to be in a container that protects against the entrance of rodents or flies, which could potentially come into the restaurant. Ms. Browning observed a light shield missing from the light in the dry storage area. This is potentially hazardous because if the light bulb broke, the glass could shatter with the potential of getting onto the food in the storage area. Ms. Browning observed that the fire suppression report for the hood over the cooking equipment was not available for review. Such reports are made when the fire extinguishing company comes to service the fire suppression system. The report is the only way a Division inspector can tell if there are any deficiencies that need to be corrected with the fire suppression system. Ms. Browning observed bulk rice with a handle-free bowl for dispensing. This is hazardous because it allows for bare hand contact with the food. Rita Martin offered mitigating circumstances regarding some of the deficiencies noted by Ms. Browning. Regarding the allegation of flies in the kitchen, the Martins built a screened-in porch to keep flies from coming into the restaurant. Further, they put fly machines at the front and back doors and a blower at the back door. According to Ms. Martin, it is rare for flies to get into the restaurant. When flies get into the restaurant, "we get rid of them" and that she "cannot remember the last time I saw a live fly in my restaurant, period." Regarding the allegation of lack of proof of employee training, only one employee had worked there more than 60 days at the time of the inspection. Ms. Martin did not post that employee's card because the employee did not want her social security number posted. Eventually, Ms. Martin "whitened out" the social security number to post it. In any event, the employee's card was not available at the time of the inspection as required. Regarding the allegation that prepared foods were out of temperature and not properly date-marked, she responded: We try to put our salads or whatever we're making in large containers so that they will cool quickly. The foods that were made that day were made--one of the foods were made at 9:00 a.m., which was the coleslaw and crab. The tuna was made at 2:00. That was one of the ones that was--I think it was the tuna that was out of temperature. It had not been made--think it was less than an hour old. Her assertion in this regard is accepted as credible. Regarding the allegation that the hood filters had a grease buildup, Ms. Martin acknowledged that the hoods needed cleaning and were cleaned approximately one month after the inspection. Ms. Martin denied the existence of any black buildup on he interior of the ice machine. She looked in the ice machine shortly after the inspection and did not see any black buildup. According to Ms. Martin, there is a lime build-up because of lime in their water, and it is brownish in color. Her assertion in this regard is accepted as credible. Regarding the allegation of recyclables not stored in a closed unit that is inaccessible to rodents or insects, Ms. Martin explained that only clean boxes are put in a trailer, garbage is put elsewhere. Ms. Martin denied the allegation that a light shield was missing from the light in the dry storage area. The light shield had just been replaced prior to the inspection and is transparent and difficult to see. The storage area is narrow and it is difficult to see in there. Her assertions in this regard are accepted as credible. Regarding the allegation that there was no fire suppression report, Ms. Martin asserted that Ms. Browning had not made it clear in the past as to what was required to be posted and available. Whether Ms. Browning verbally reminded Ms. Martin about this requirement or not, the report was not available as required. Regarding the allegation that a bowl was used to dispense bulk rice, Ms. Martin explained that the rice was in dry, not ready-to-eat, form and that everyone knows to use a scoop. However, she acknowledged that she was not there for the inspection and could not say for certain that there was not a bowl in the rice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order which confirms the violations found, dismisses the violations not found, imposes an administrative penalty in the amount of $1,000, and requires Respondent to attend a Hospitality Education Program. DONE AND ENTERED this 27th day of June, 2003, in Tallahassee, Leon County, Florida. 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 27th day of June, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Rita S. Martin Post Office Box 145 Bell, Florida 32619 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Humphrey's On 33rd, a bar/restaurant (with a "full kitchen") located in Fort Lauderdale, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-18150-R) authorizing it to operate Humphrey's On 33rd as a public food service establishment. Edward Humphrey is the majority owner of Respondent. On December 29, 2004, Michele Schneider, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of Humphrey's On 33rd. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): Respondent, upon request, was unable to produce evidence of "food handlers' training for employees by a certified food manager"; there were paper products and other potentially combustible items "on top of and around" a gas- powered hot water heater (which had an "open flame at the bottom"); there was no indication that violations (of the standards of the National Fire Protection Association) previously-noted by a "certified fire inspector" during an inspection of the hood range in the kitchen (which had an ansel fire suppression system) had been corrected; the service tag on the fire extinguisher in the establishment did not indicate the year the extinguisher was last serviced; and there was grease, garbage, and other debris in the "can wash area" outside the establishment, "right behind the back door." Before leaving the establishment, Ms. Schneider advised Mr. Humphrey that these Conditions were violations for which Respondent could be disciplined by Petitioner if not corrected by February 1, 2005. Ms. Schneider conducted a "callback" inspection of the premises of Humphrey's On 33rd on February 1, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed. At neither the time of the December 29, 2004, routine inspection, nor the time of the February 1, 2005, "callback" inspection, was food being served at Humphrey's On 33rd. Respondent had "closed the kitchen down" in or around September of 2004. It was not until approximately six months later, after the December 29, 2004, and February 1, 2005, inspections, that Respondent started serving food again at the establishment. At no time during this six-month period that it stopped serving food did Respondent relinquish its license authorizing it to operate Humphrey's On 33rd as a public food service establishment. Its license remained in effect throughout this period.
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 Alleged Violation Nos. 1 through 5 and disciplining Respondent therefor by imposing a fine in the total amount of $250.00 and requiring Respondent's majority owner to attend, at his own expense, an "educational program sponsored by the Hospitality Education Program." DONE AND ENTERED this 20th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2005.
The Issue Whether the Respondent should be fined for violation of Section 509.261, Florida Statutes?
Findings Of Fact The Division is the state agency charged with regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. The Respondent has at all times material hereto has been subject to the Division of Hotels and Restaurants' (Division) jurisdiction. The Respondent's last known business address is 1995 North Orange Street, Mount Dora, Florida 32757. On June 22, 2002, Henry Christwell, a Division inspector, observed the Respondent operating an outdoor, roadside food vending facility in the vicinity of US Highway 441 in Lake County, Florida. The operation consisted of a tent with a smoker partially under the tent. Christwell inspected the Respondent's premises, and noted that the Respondent was operating without a license; did not have proper hand-washing facilities; and did not have the smoker enclosed. Based on those deficiencies, Christwell issued a Administrative Determination and Order of Closure for the Mobile Food Vendor on that same day, and the Respondent immediately closed the facility, but not before Christwell purchased some ribs from the Respondent. An Administrative Complaint was issued on July 16, 2002, alleging the Respondent's violation of Chapter 509, Florida Statutes, for operating without a license; not having hand-washing facilities; and not having the smoker enclosed. The Respondent elected to dispute the factual allegations of the Administrative Complaint, and timely requested a hearing in accordance with Section 120.57, Florida Statutes. The factual allegations were: Operating without a license. No hand washing facilities available. The smoker was in operation without an enclosure so food was unprotected from possible contamination. At hearing, the Respondent did not controvert the allegations; however, he maintained that there is confusion over when such a facility must be licensed. For example, a local bait shop in the area in which the Respondent was operating does not have its smoker enclosed. Mr. Christwell advised that, because the bait shop sells soft drinks and snack foods, it is not regulated by the Department although it sells food to the public. The Respondent, who is the minister of a local African Methodist Episcopal Church, pointed out that had he been operating on the church's premises, he would have also been exempt. Mr. Christwell agreed that he would not be subject to regulation on the church's premises. The Respondent stated his intent was not to break the law, and he did not believe that he was required to obtain a license. Everyone agreed that on August 6, 2002, the Respondent became licensed for operation as a mobile food vendor. The Respondent also claims he had coolers filled with water in order that he could wash his hands. The fact that the alleged sanitary violations existed did not prevent Mr. Christwell from purchasing ribs from the Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order finding that the Respondent violated the statutes as alleged and ordering him to pay an administrative penalty in the amount of $100.00 due and payable to the Division of Hotels within 30 calendar days of the date of this Order. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2003. COPIES FURNISHED: Michael E. Kennedy Mike's Tasty BBQ 1995 North Orange Street Mount Dora, Florida 32757 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Geoff Luebkemann, 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
Findings Of Fact The hearing proceeded and testimony was taken from Dr. Pillot, Mr. Bayard, and Mr. Brown regarding the composition and organization of the classified non-instructional employees of the school system. There are approximately 900 employees in the county's classified service who are all potential members of the employer group. This total number will be reduced because of lack of funds. Column A below shows the breakdown of employees by general job classification; Column B shows the number of employees after reductions are made. All figures taken from Exhibit 2. A B Secretarial/Clerical 174 167 Food Service 157 157 Custodial/Delivery 200 159 Maintenance 75 67 Teachers' Aides 12 1/ Data Processing 12 12 Transportation 93 2/ 93 There are 716 employees in the aforestated classifications. Approximately 525 employees would be encompassed in the group sought by the Petitioner. The clericals, teachers' adies, and data processing personnel total 191 employees. The Intervenor seeks to represent all 716, however, a unit composed solely of clericals would represent roughly 27 percent of the total. The figures used above are not adjusted for employees who are managerial, confidential, or "supervisory". ORGANIZATION The complete and detailed organization of the school system is set out in Exhibit 20, however, the system is generally organized as follows: | SCHOOL BOARD | | | | |Superintendent | | Superintendent | | | | | | Staff's | | | | | | | | Associate | | Director | | Associate | |Superintendent | | Data | | Superintendent | | Business | | Processing | | Instruction | | | | | | | | | | | | | | | | |Director | |Director | |Director | |Coord.| |Coord.| |School | |Transpor-| |Facilit- | | Finance | | Food | |Purch-| |Prin- | | tation | | ies | | | | Serv.| | asing| | cipals| | | | | | | | | | | | | | | | | | | | Bus | | Food | | Head | |Teachers'| |Clerical| |Drivers| |Service| |Custodian| | Aides | | Staff | | | |Manager| | | | | | | | | | | | | | | | | The system is basically broken into two portions, one dealing directly with educational services and the other with support services. The Data Processing Unit reports directly to the superintendent and performs work for both education and support. The support services branch contains the staff directors and administration for transportation, maintenance, food services, finance and purchasing. However, bus drivers from transportation, custodians from facilities, and food service employees are under the direction, directly or indirectly, of the principal of the school to which they are assigned. Principals are also responsible for the supervision, directly or indirectly, of the clerical staff and teachers' aides assigned to their school. JOB CLASSIFICATIONS AND DUTIES Secretarial and clerical personnel are found throughout the school system's organization, at various levels of the administrative staff and at the schools. On the staff they perform regular office clerical duties and at schools they perform bookkeeping, secretarial, maintain records of registration and attendance, and operate switchboards. There were at the time of hearing 174 such positions, however, a reduction of 8 secretarial positions in the central office was programmed. Note the stipulation by the parties and the positions expressed by the parties concerning exclusion of various secretarial positions at p. 398, Vol. II of Transcript. In brief this would exclude the superintendent's two secretaries, the secretaries of the two associate superintendents and the assistant superintendents. There were differences of opinion regarding whether the secretaries to the principals should be excluded. Based upon the testimony of Mr. Brown, who is a principal, it would appear that the duties of the principal's secretary are not clerical. According to his testimony, his secretary is solely in charge of specific administrative functions such as athletic ticket sales, registration and eligibility of athletes, etc. It would appear that she has broad powers and discretion in performing these tasks under the general supervision of the principal. Based on his testimony, a principal's secretary is more than a typist, and performs the functions of am administrative assistant to the principal administering specific programs under his direction. DATA PROCESSING There are 12 Data Processing employees. They perform various functions directly relating to the programming, operation, and analysis of the data processing function. The unit is under the control of a director, however, he reports to the superintendent as opposed to the associate superintendent for Business. Although the parties generally would exclude the other directors as managerial, they did not expressly agree to the exclusion of the director of Data Processing. The Hearing Officer cannot see any substantial difference in function which would warrant treating this position differently from the other directors. Because he reports directly to the superintendent, he actually holds a higher position in the system than other directors. The Data Processing Unit is located at the central office. TRANSPORTATION The Transportation Division is a part of the business branch, and is physically located adjacent to the central office. This division is responsible for school bus transportation and employs 116 drivers of which 93 are employed by tie system solely as drivers. There are 23 drivers who are also employed in some alternate capacity by the school system. The division is responsible for route planning and driver assignments. Drivers work approximately five hours a day and may be assigned two to three routes for different schools. However, while driving a particular route they are responsible to the principal of that school. In that respect the principal has effective powers of discipline through the Director of Transportation. In the director's office there are am assistant director, route coordinator, and assistant route coordinator for south county. There was mention of a chief mechanic who assigned work on the buses, however, there was no testimony relative to a mechanical section although the superintendent indicated that school system employees did perform the maintenance. P. 72, Vol. I. FACILITIES DEPARTMENT This is the largest department having approximately 250 employees. The department consists of the Planning, Inspection, Maintenance, Signal Repair, and Custodial Sections. The Planning Section consists of an architect, who is excluded from the unit by the parties, and two draftsmen. The draftsmen have the necessary training or experience to perform engineering drafting. They were sought by Petitioner and Intervenor for inclusion in the proposed unit. The Inspection Section is actually one inspector who inspects all construction for compliance with specifications and applicable codes. The parties stipulated to his exclusion. The Signal Repair Section consists of the supervisor, who was excluded by stipulation, and 7-9 repairmen who worked on communications equipment, office machine repair, and audio visual equipment. The section is divided into signal and office machine and audio visual repair subsections. The repairmen are not interchanged between the subsections. MAINTENANCE SECTION This section has the most complex organization and varied functions. It is supervised by the supervisor of maintenance. It is divided into three subsections: mechanical, structural and south county. Each subsection is under the direction of a supervising foreman. All of the aforementioned positions are excluded by stipulation of the parties. Mechanical Subsection has 15-18 employees who work in one of the three trade arena found in the subsection: plumbing, electrical and air conditioning. Each trade area has a working foreman. A locksmith, who is a skilled worker, is normally assigned to carpentry. Grounds, which was formerly a separate section, is now a subsection and the working foreman in charge of grounds does the work formerly done by the supervising foreman of grounds, and the same job performed by the other supervising foremen but he receives a lower salary rate. The Petitioner and Intervenor would not stipulate to his exclusion. There are 8-10 skilled and semiskilled workers in grounds. There are no specific job titles in grounds. The South County Section employs 8-10 persons. This is a separate suborganization with one administrative secretary. There are no working foremen. The employees represent the various skills found in the headquarters sections, performing all maintenance functions on school facilities in South Sarasota County. The shop facility is supervised by the shop foremen who supervises 3-4 skilled and semiskilled employees who work on automobiles, welding, and steel fabrication. There are 5-6 school mechanics who perform general repairs and are on the Facilities Division payroll but who rotate around to the various schools and work directly for the principals. They are assigned duties by and report to the principal of the school at which they are working. These employees have carpentry backgrounds. CUSTODIAL SECTION This section is comprised of supervisor, who is excluded by stipulation by the parties, 6-7 roving custodians, and about 175 custodians who are assigned directly to one of the 28 county schools. At each school, the head custodian supervises the custodians assigned at that school. The head custodian receives a higher salary. Although the head custodian does assign work, has the authority to effectively recommend discipline, and evaluates those under him, he also performs custodial functions. The Petitioner and Intervenor would both include the head custodians within the proposed unit. TEACHERS' AIDES Teachers' aides dare not sides to teachers in the truest sense, but perform various duties as assigned by the principal of the school to which they are assigned. These duties may range from clerical to library assistants to hall and bus monitors. They are rated by the principals for whom they work. These positions are apparently funded for a school term and the number authorized may vary; however, a principal may also elect to convert teacher positions into teacher aide positions in order to obtain a greater total number of positions. The number of teacher aides is dependent, therefore, in part on how much money is available for such positions and how many positions are converted by principals. There were no usable estimates of how many teacher aides would be employed in 1975-76. However, since the school year has begun at this time, this would be a valid area for staff inquiry to supplement the record. CENTRAL ADMINISTRATIVE OFFICE The Central Administrative Office of the school system is composed of the following sections or offices and personnel: Superintendent's Office Superintendent 2 Secretaries 2 Associate Superintendents 2 Secretaries Personnel Office Coordinator of Personnel Assistant Coordinator 5 Secretaries Coordinator of Planning Coordinator Secretary Federal Project Coordinator Coordinator Secretary Vocational Adult Education Assistant Superintendent Secretaries Evaluations Coordinator Coordinator Secretary Test Control Clerk Pupil Services Coordinator Coordinator Secretary 4-5 Clerks Media Coordinator Audio Visual Supervisor Clerks Book Processing Department 6 Clerks Although those functional organizations differ somewhat from those depicted in Exhibit 20, they are included to indicate primarily the distribution and functions of clerical personnel within the central office. It should be noted that all of the proposed reductions in clerical staff were to occur at the central office, where 8 positions were to be eliminated. The parties would exclude nonclassified employees which would exclude the various coordinators. FOOD SERVICE Food Service Coordinator This is a staff position within the superintendent's office staff which consists of the coordinator and assistants who are charged with coordination of purchasing and bookkeeping. The coordinator has no direct control supervision over food service personnel who work at schools. At each school there is a food service manager and in some instances, an assistant manager, whose duties are to supervise the food program at that school. The manager is responsible for the financial management, assignment of duties, and has effective disciplinary control of the food service workers at the school. The assistant manager has essentially the same duties when the manager is not present. Because there are several schools without kitchens, food must he brought in for students. These are satellite operations, and have a satellite manager whose duties are similar but not as complex as a manager's duties because there are no cooking facilities. The Petitioner would exclude all three of the foregoing positions, while the Intervenor would include these positions. The School Board has no position regarding these positions. It would appear from the authority vested in the managers that they are solely responsible for the program at their school but report to the principal. The assistant managers and satellite managers have essentially the same duties, authority, and functions. The food service workers work directly for tie food service manager and either cook or prepare food, serve food, or clean up the food preparation and service areas of the cafeteria. They are assisted to 50150 degree by custodial personnel in cleaning duties. There ore approximately 157 food service workers. FINANCE DIVISION Coordinator or Director is responsible for the internal audit functions. He is assisted by several bookkeepers. In addition there is the manger of investments, the payroll office and several special project bookkeepers. PURCHASING DIVISION The coordinator or director of Purchasing is responsible for ordering and warehousing equipment, materials, and supplies for the school system. He is assisted by an assistant who is a working foreman, 3-4 secretary-bookkeepers, a warehouse manager, and several warehousemen. COMMUNITY OF INTEREST In addition to the organization of the school system and the duties of the various personnel discussed above, the following factors also bear on the community of interest of the employees. Clearly all the full time appointed classified employees have the same fringe benefits regarding holidays, retirement, insurance, sick and annual leave. All salaries are established by the same procedure, starting with a study by the staff, a proposal from the superintendent's office to the School Board, and concluding with board amendment, if necessary, and final approval. The five salary schedules in effect are all keyed to a base of the basic instructional salary. Some employees are paid more and some less than starting teachers but that salary range is the base from which non-instructional salaries are developed. Separate salary schedules exist for secretarial-clerical, supervisory, maintenance, custodial, and data processing personnel. The hours worked by various personnel differ. Secretarial-clerical and data processing personnel work 371/2 hours per week, while all other personnel work 40 hours per week. All members of classified service have the same basic right of employment regarding grievances and appeals of personnel action. This report respectfully submitted this 22nd day of January, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is the 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 an eating establishment located in Clermont, Florida. At all times material hereto, Respondent was licensed as a public food establishment by the Division. Cecelia Chiu has been employed by the Division for approximately nine years and is a Senior Sanitation and Safety Specialist. Prior to working for the Division, she owned a restaurant for about 15 years and was employed as a store manager and a district manager with Wendy’s restaurants. Ms. Chiu has received training in laws and rules regarding public food service and lodging, and continues to receive continuing education training on a monthly basis in this area. She is a Certified Food Manager and performs approximately 800 inspections annually. On June 5, 2013, Ms. Chiu performed a routine inspection of Respondent's premises. During the inspection, Ms. Chiu prepared, signed, and issued an inspection report setting forth the violations she observed. The inspection report was electronically prepared on an iPad by Ms. Chiu. Respondent's representative was present and signed the inspection report indicating receipt. Ms. Chiu informed Respondent about the violations found, noted the violations on the inspection report, and notified Respondent that the violations must be corrected by August 6, 2013. On August 9, 2013, Ms. Chiu performed a callback inspection of Respondent. During that inspection, she prepared and signed a callback inspection report, which was signed and received by Respondent's owner, Subra Deeb. Ms. Chiu made Respondent aware that some of the violations noted on the June 5, 2013, inspection report had not been corrected. On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed ready-to-eat food, potentially hazardous food prepared onsite, not being date-marked. Ms. Chiu found this to be a violation because while refrigeration slows the growth of pathogens and microorganisms, it does not kill these organisms. In time, these microorganisms and pathogens will significantly grow and pose a risk to public health. Therefore, time marking is required to control this risk to public health. The Division has designated this violation as an intermediate violation.1/ On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed an employee wearing jewelry, specifically a bracelet and a watch, while preparing food. Ms. Chiu explained that the construction of jewelry, such as a bracelet, inhibits these items from being thoroughly cleaned and sanitized. Additionally, the jewelry can act as a reservoir for microorganisms and pathogens. If an employee is wearing these items while preparing food, it can cross-contaminate the food. Also, pieces from the jewelry can fall into the food and become a physical hazard to public health. The Division has designated this as a basic violation.2/ On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed no vacuum breaker was provided on the fitting/splitter on the hose bibb at the mop sink. Ms. Chiu explained that this is a violation because the open end of the hose attached to a hose bibb on a drinking water line may be dropped into a container filled with dirty water or contact a puddle of dirty water. The backflow prevention device prevents dirty water from being siphoned back into the drinking water system if negative pressure occurs. The Division has designated this as a High Priority Item.3/ On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed the carbon dioxide tank not adequately secured. Ms. Chiu explained that this is a violation because gas inside a tank, even if the tank is empty, must be properly secured because someone can knock it down, creating a missile and, therefore, a public safety hazard. The Division designates this as a basic violation. On June 5, 2013 and again on August 9, 2013, Ms. Chiu observed no proof of required state-approved employee training was provided for any employees. This is a violation because all food service employees must be trained in personal hygiene and food-borne illness prevention in order to provide a clean and safe establishment for the public. The Division designates this as an intermediate violation. Respondent’s Response Regarding the alleged violation about food held more than 24 hours but not being properly date-marked, Respondent testified that the food served is prepped daily, and that they only use food the same day that it is prepped. The undersigned finds this testimony to be credible. As for the allegation that an employee wore jewelry (a bracelet and a watch), Ms. Deeb did not refute the allegation, but testified that Ms. Chiu came in the restaurant when Ms. Deeb was cooking, that she washed her hands and wore gloves at the time of the inspection, and that she wears gloves “all the time.” Regarding the alleged violation that there was no vacuum breaker on the hose bibb at the mop sink, Ms. Deeb explained that the vacuum breaker has been replaced. Respondent did not refute the allegation regarding the carbon dioxide tank not being adequately secured or the allegation regarding having no proof of required state-approved employee training. Ms. Deeb did explain that Respondent was a new business at the time of the inspections, that they were in the process of renovating, and that she had misplaced the notice of violations after the June 5, 2013 inspection.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Division enter a final order which confirms the violations found, and imposes an administrative fine in the amount of $750 due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the Final Order is filed with the Agency Clerk. DONE AND ENTERED this 31st day of March, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2014.
