The Issue The issue in this case is whether Respondent was operating a public food service establishment without a license, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant hereto, Green was operating a mobile food service vehicle at the corner of Hogan Street and West Union Street (the “Site”) in Jacksonville, Florida. By his own admission, Green did not possess a food service license from the State of Florida. The Division is the state agency responsible for the licensing and regulation of public food service establishments, pursuant to chapter 509, Florida Statutes. On Tuesday, April 1, 2014, food inspector Huckaba was conducting a callback inspection of a restaurant in the downtown Jacksonville, Florida, area. As he was leaving a food service establishment, he noticed a mobile food service establishment (the “Food Trailer”) at the Site. Huckaba observed Mr. Green preparing food--a hotdog--and serving it to a customer; the customer paid for the food with cash. Huckaba noticed there was not a valid food service license posted on the Food Trailer. When asked by Huckaba, Green stated that he did not have such a license. On the next day, April 2, Huckaba and his supervisor, Fielder, revisited the Site for the purpose of determining whether Green had a valid license to operate the Food Trailer and whether the establishment was being operated in accordance with provisions of Florida law and rules. It was again determined that Green did not have a license to operate the Food Trailer. Upon further inspection, Huckaba determined that the following food service violations existed (with corresponding sections from the U.S. Public Health Service/FDA Food Code, a description of the violation, and the level of violation): 08B-38-4 Food stored on the floor--Basic 12A-07-4 Employee failed to wash hands before putting on gloves to work with food--High 28-10-4 Sewage holding tank less than 15% larger in capacity than water supply--Basic 31A-03-4 Handwash sink not accessible for employee due to items stored in sink-- Intermediate 31B-04-4 No handwashing sign provided at sink used by employees--Basic 50-08-4 Operating without a license--High 51-10-4 Interference/obstruction with inspector’s right to entry--Intermediate Huckaba issued a Food Service Inspection Report setting forth his findings. Green did not sign the report but was furnished a copy. The report was assigned “license number” D05- 04-26; and a “rank”--MFDV. D05 is the designation for district 5, i.e., Jacksonville. 04 is inspector Huckaba’s area number. 26 is the designation for Duval County. MFDV stands for mobile food dispensing vehicle. The Division then conducted a search of its data base for the purpose of determining whether a food service license had ever been issued to Clinton Green. No such license was discovered. The Division thereafter issued an Administrative Complaint, precipitating the instant matter. The Administrative Complaint cited Green for operating a food service establishment without a license and for the other enumerated violations set forth above. (No evidence was presented at final hearing as to the issues other than the failure to have a license; the other issues are not addressed further in this Recommended Order.) At the final hearing held in this case, Green readily admitted that he did not hold a license issued by the State of Florida for operating a public food service establishment. Due to that admission, there is no disputed issue of material fact to be considered by the undersigned. However, inasmuch as the hearing was conducted and evidence was taken, it is appropriate to set out Green’s stated justification, rationale, and bases for his actions before applying the law to the undisputed facts. Rationale for not having a license Green says he is a human being and is entitled to provide for his family and work as he sees fit. This is a God- given right, he asserts, that cannot be restricted by man. The State of Florida is the only “entity” which can require Green to have a license. However, Green believes the State is a nebulous, ephemeral “thing” that does not actually exist. He claims the so-called agents of the State are not the State, per se, thus their words have no force or effect. Green issued affidavits to an agent of the State (Steve Budungen, district manager of the Division) in 2008 setting forth his beliefs about licensure, State actions, etc. In the affidavits, Green demanded certain documents and information from Budungen. Inasmuch as Budungen did not respond to his affidavits, Green believes that his statements therein have the force and effect of law and are “the truth.” As support for Green’s position vis-à-vis the affidavits, he cites to Morris v. National Cash Register, 44 S.W.2d 433, 434 (Ct. Civ. App. Tex. 1931). That case, while it does address an affidavit attached to a motion to vacate a judgment, does not stand for the proposition alleged by Green, i.e., that once an affiant makes a statement, it becomes the truth for all purposes. Green’s reading of the law is flawed. Green also asserts that U.S. v. Tweel, 550 F.2d 297 (5th Cir. 1977), stands for the proposition that “Silence can only be equated with fraud when there is a legal and moral duty to speak, or when inquiry left unanswered would be intentionally misleading.” Green did not explain why this proposition was relevant to the facts of the instant case. The Tweel case had to do with the Internal Revenue Service intentionally withholding from the plaintiff’s lawyer the fact that plaintiff was about to undergo a criminal investigation. This intentional deception then lulled plaintiff into a false sense of security and kept him from preparing for his criminal investigation. While Green made a general allegation that the Department had “clearly been intentionally deceptive” concerning its dealings with him, he provided no evidence to support the allegation. Green also seems to suggest that he was “cunningly coerced” into waiving his right to due process, citing U.S. v Minker, 350 U.S. 179 (1956). There is no support in the record to support Green’s allegation of coercion and it is not relevant to the facts of this case. The holding in the Minker case is not dispositive of any issue in the instant matter. Green states that he is not a chattel to be used and abused by the State as it sees fit. Green says that only if the State of Florida (itself) walks up to him and says, “You need to have a license,” will he believe he has to have one. Otherwise, he doesn’t see any requirement to have a license. And since the State is a fictitious person, unable to speak, he says there is no need to have a license. Lastly, Green says that the only way he would be required to have a license to sell food from his vehicle is if he entered into a contract with the State giving the State permission to govern his actions. Besides, he asserts, the Administrative Complaint filed in this matter lists his name in all capital letters. Only corporations, he asserts, are spelled out in all capital letters; he is, conversely, a natural person. Thus, he reasons, the Administrative Complaint is invalid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500 against Respondent, Clinton Green. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 19th day of August, 2014. COPIES FURNISHED: Clinton Green 8117 Colonnade Court, West Jacksonville, Florida 32244 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 J. Yvette Pressley, Hearing Officer Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 13th day of May, 2013.
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 relevant to this proceeding, Respondent was a restaurant subject to Petitioner's regulation. That regulation required Petitioner to comply with all relevant provisions set forth in Florida Statutes, Florida Administrative Code, and the Food Code. Petitioner's license number is 1614578. Respondent's restaurant is located at 5001 North University Drive, Lauderhill, Florida (the subject premises). At the times relevant to this proceeding, Ana Rosa Castro was the manager of the restaurant. Two inspections of the subject premises are relevant to this proceeding. The first inspection was a routine inspection on December 15, 2009 (the routine inspection). Michele Schneider conducted the routine inspection. A callback inspection was conducted on February 24, 2010 (the callback inspection). Terrence Diehl and Tatiana Joy conducted the callback inspection. Ms. Schneider and Mr. Diehl are experienced and properly trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. For both inspections, an inspector prepared a report on a personal data assistant, printed the report at the establishment, and provided a copy of the report to the person in charge prior to leaving the establishment. The inspectors discussed the report with Ms. Castro and explained the reasons the violations were cited. The routine inspection report and the callback inspection report were admitted into evidence as Petitioner's exhibits 2 and 3, respectively. Ms. Schneider's report noted multiple violations, including the four violations that are issue in this proceeding. Ms. Schneider's report contained a warning that required Respondent to correct each cited violation on or before February 20, 2010, at 8:00 a.m. Ms. Schneider and Ms. Castro signed the routine inspection report. Mr. Diehl and Ms. Joy performed the callback inspection on February 24, 2010. Ms. Joy, working under Mr. Diehl's supervision,2 prepared the callback inspection report setting forth the findings she and Mr. Diehl made. Ms. Joy and Mr. Diehl reviewed the findings with Ms. Castro and explained to her the reasons for the violations identified in the report. Ms. Joy, Mr. Diehl, and Ms. Castro signed the callback inspection report. The four violations at issue in this proceeding had not been corrected following the routine inspection. Violations of the Food Code are classified as either critical or non-critical. Critical violations are violations that are likely to result in a food-borne illness or an environmental health hazard. Non-critical are violations of the Food Code that have not been classified as critical, and are less likely to contribute to a food-borne illness or an environmental health hazard. Each of the four alleged violations in this proceeding is designated a critical violation.3 Food Code Rule 3-501.16(A) requires that except in circumstances inapplicable to this proceeding, food shall be maintained at or below 41 degrees Fahrenheit. On December 15, 2009, and on February 24, 2010, the cook-line reach-in cooler was not maintaining potentially hazardous food at or below 41 degrees Fahrenheit. This is a critical violation because foods that are maintained above 41 degrees become a potential danger for the growth of bacteria that could harm a consumer of the food. Food Code Rule 6-301.14 requires a food establishment to have a sign or poster at a sink used by food service employees notifying the employees to wash their hands. There was no such signage posted during the routine inspection or the callback inspection. This is a critical violation because employee hand-washing is a basic requirement for good hygienic practices, and the sign reminds employees of the requirement that they wash their hands before returning to work. Food Code Rule 7-102.11 requires that "working containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies shall be clearly and individually indentified with the common name of the material." The routine inspection noted the following as a violation: "[o]bserved unlabeled spray bottle dishroom [sic]." On the callback inspection, Mr. Diehl observed several unlabeled bottles that had liquids in them. There was no evidence as to what type liquids were in the spray bottles. Specifically, there was no evidence that the unlabeled spray bottles had to be labeled because they were "containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies." Pursuant to section 509.049(5), Respondent was required provide training of its employees and was required to provide proof of such training to an inspector. On December 15, 2009, Ms. Castro could not provide proof to Ms. Schneider that her employees had been trained. On February 24, 2010, Ms. Castro could not provide proof to Ms. Joy and Mr. Diehl that her employees had been trained. The testimony of Mr. Diehl established that this failure is a critical violation because untrained employees may not be aware of the importance of proper hygiene and proper food handling, which can result in contaminated food and the exposure of the consumer to food-borne illness. On June 16, 2009, Petitioner filed an Administrative Complaint against Respondent in case number 2009032247. That Administrative Complaint contained five alleged violations of the Food Code, at least one of which was a critical violation. The alleged violations were resolved by the entry of a Stipulation and Consent Order filed July 21, 2009. By that action, Respondent agreed to pay an administrative fine in the amount of $1,200.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violation alleged in paragraph 3 of the Administrative Complaint. It is further RECOMMENDED that the final order find Respondent guilty of the violations alleged in paragraphs 1, 2, and 4 of the Administrative Complaint. It is further RECOMMENDED that Administrative Fines be imposed against Respondent in the amount of $600.00 for each of the three violations, for a total fine of $1,800.00. DONE AND ENTERED this 24th day of June, 2011, 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 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, 2011.
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several statutes and rules governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact Respondent Latin America Cafeteria, Inc. ("Cafeteria") is a licensed food service establishment. As such, Cafeteria is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"). On three occasions——February 11, 2005; February 15, 2005; and March 21, 2005——an inspector for the Division named Jorge Gandolff inspected a restaurant located at 2940 Coral Way in Miami, Florida, which establishment was operated by Cafeteria. During each visit, Mr. Gandolff noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. As of March 21, 2004, the following deficiencies subsisted: (1) Ready-to-eat, potentially hazardous food had been held more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(A)i; (2) The reach-in freezer door was not durable under normal use conditions, in violation of Food Code Rule 4-201.11; (3) The walk-in cooler door was in poor repair, in violation of Food Code Rule 4-501.11; (4) The gaskets in the walk-in door were in poor repair, also in violation of Food Code Rule 4-501.11; (5) There was no chemical test kit available for persons using chemical sanitizer at three compartment sinks, in violation of Food Code Rule 4-302.14; (6) There was a missing vacuum breaker on the hose bibb at the cookline, in violation of Food Code Rule 5-203.14; (7) Walls in the dishwashing area were soiled with accumulated debris, in violation of Florida Administrative Code Rule 61C-1.004(6); (8) Lights in the rear area of the kitchen lacked the proper shields, sleeve coatings, or covers in violation of Food Code Rule 6-202.11; and (9) Although four or more employees were engaged in food preparation, there was no currently certified food service manager on duty, in violation of Florida Administrative Code Rule 61C-4.023(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Cafeteria guilty in accordance with the foregoing Recommended Order; (b) ordering Cafeteria to pay an administrative penalty in the amount of $3,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days after the filing of the final order with the agency clerk; and (c) directing Cafeteria to send an appropriate principal to an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 2nd day of November, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2005.
