The Issue Whether Petitioner violated provisions of Chapter 500, Florida Statutes the Florida Food Safety Act, and Chapter 5K-4, Florida Administrative Code, on April 28, May 12 and May 25, 1995 and if so, whether an administrative fine should be imposed for those violations.
Findings Of Fact Petitioner Dunkin Donuts is a retail bakery located at 2025 West New Haven Avenue, West Melbourne, Brevard County, Florida, and had a valid food permit during the relevant time period. Respondent, Department of Agriculture and Consumer Services, is charged with the administration and enforcement of Chapter 500, Florida Statutes, the Florida Food Safety Act, and the rules promulgated thereunder relating to food safety and the selling of food to the consuming public. Following a complaint by a consumer, Respondent's food safety inspectors conducted food safety inspections at Petitioner's place of business on four occasions. On inspections conducted on April 28, 1995, May 12, 1995, and May 25, 1995, Petitioner received an overall rating of "poor". Not until the fourth inspection which was conducted on June 8, 1995, did Petitioner receive an overall rating of "good". On April 28, 1995, an inspection determined that Petitioner held food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: food products improperly stored on the floor of the walk-in freezer; old dried food product spillage on the floor of the walk-in cooler, freezer and storeroom; unpackaged food product left uncovered in the storeroom; shell eggs improperly stored at internal temperature in excess of 60 degrees F.; employees without proper hair restraints; grease build up in several locations; unsealed wood table used for mixer; handwash sink inaccessible to employees. On May 12, 1995, a re-inspection determined that a few of the prior violations had been corrected. However, Petitioner continued to hold food items in an unsanitary environment and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; employees without proper hair restraints; improper use of pest strip in storeroom; no soap or hand drying device provided for employees; paint brush improperly used as pastry brush; cardboard improperly used as shelf liner and floor mats; and wiping cloths failed to be stored in sanitizing solution. On May 25, 1995, a re-inspection determined that several prior violations had not been corrected. Petitioner continued to hold food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; cardboard improperly used as shelf liner; improper use of pest strip; failure to provide soap or hand drying device in processing area; employees without hair restraints ; improper storage of equipment; wiping cloths failed to be stored in sanitizing solution; and failure to cover dumpster. Mr. Ornelas argues that he and his family and several employees operate the facility in an acceptable manner. They work long hard hours. They are baking donuts all the time and do not have time to keep the premises as clean as the inspectors insist. However, they do not offer unsanitary food to the consuming public, and the cited violations were eventually corrected; therefore, Petitioner should not be subjected to the payment of a fine, according to Mr. Ornelas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner be found guilty of numerous violations of the Florida Food Safety Act, on April 28, May 12 and May 25, 1995, and that final order be entered assessing an administrative fine in the amount of $2,000.00 against Petitioner. DONE and ENTERED this 9th day of January, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1996. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4 Rejected as subsumed or a comment on the evidence: paragraph 5. COPIES FURNISHED: Manuel Ornelas Officer and Director Dunkin Donuts 2025 West New Haven West Melbourne, Florida 32904 Linton B. Eason, Esquire Office of the General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint, dated January 25, 2016; and, if so, what penalty is warranted.
Findings Of Fact Petitioner 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 doing business as Hook Fish and Chicken, located at 1830 North Myrtle Avenue, Jacksonville, Florida 32209, holding Permanent Food Service license number 2614999. Linda C. Sutherland is employed by the Division as a senior sanitation safety specialist. Inspector Sutherland has worked for the Division for approximately four years, serving approximately 13 months as a senior inspector and three years as an inspector. She had worked in the food industry for about 30 years before joining the Division. Inspector Sutherland has received training on the U.S. Food and Drug Administration’s Food Code (“Food Code”), as adopted by reference in Florida Administrative Code Rule 61C-1.001, and training on the Florida laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Sutherland is also a certified food manager and performs more than 1,000 inspections each year. On January 20, 2016, Inspector Sutherland performed an unannounced routine food service inspection of Respondent’s premises. Inspector Sutherland prepared and signed an inspection report setting forth the violations she observed during her inspection. She provided a copy of the inspection report to Ahmed Muhamed, the manager on duty. The inspection report notified Respondent that the violations must be corrected by January 21, 2016. During the January 20, 2016, inspection, Inspector Sutherland observed approximately twenty-three (23) dead roaches throughout Respondent’s establishment, seventeen (17) live roaches on a wall above Respondent’s water heater and three- compartment sink in the kitchen area, and three (3) live roaches near a pipe at the bottom of the water heater. Because numerous live roaches were seen on the premises, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency Order was issued on January 20, 2016, the same date as the inspection. On January 21, 2016, Inspector Sutherland performed two separate callback inspections of Respondent’s premises, one commencing at 11:07 a.m. and one commencing at 3:39 p.m. During both callback inspections, Inspector Sutherland prepared and signed inspection reports indicating that the violations noted during the previous day’s inspection had not been corrected. During the first callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches in the kitchen area near the water heater and approximately twelve (12) live roaches on a wall near the three-compartment sink in back of the kitchen area. During the second callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches near the water heater, one (1) live roach on the wall behind the three-compartment sink, and one (1) live roach on the floor of Respondent’s back storage area. Inspector Sutherland notified Respondent about the violations found during both callback inspections on January 21, 2016, and informed Respondent that the violations must be corrected by January 22, 2016. The manager on duty, Ahmed Mohamed, signed for both of Inspector Sutherland’s reports on January 21, 2016, acknowledging receipt on behalf of Respondent. On January 22, 2016, Inspector Sutherland performed an additional callback inspection of Respondent’s premises. During the inspection, Inspector Sutherland noted that some, but not all, of the violations noted on the January 20, 2016, and January 21, 2016, inspection reports had been corrected. Inspector Sutherland observed one live roach on the shelf in the back prep area and three live roaches in the left door of Respondent’s three-door cooler. Rule 61C-1.001 defines “basic item” as “[a]n item defined in the Food Code as a Core Item.” Food Code Rule 1- 201.10(B) defines “core item” as “a provision in this Code that is not designated as a priority item or a priority foundation item.” “Priority” and “priority foundation” items are identified in the Food Code by way of a superscript; therefore, any provision of the Food Code that does not have a superscript is a “core item.” The first violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of numerous dead roaches throughout Respondent’s premises during the January 20 and 21, 2016, inspections. Food Code Rule 6- 501.112 defines this as a core item, which makes it a “basic item” for purposes of discipline by the Division. The second violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of live roaches throughout Respondent’s premises during the January 20, 21, and 22, 2016, inspections. The pervasive presence of live vermin was a violation significant enough to require an Order of Emergency Suspension of License and Closure. Section 509.221(7) requires the operator of a licensed food service establishment to take “effective measures” to protect against the entrance and breeding of vermin. Respondent was issued a prior Order of Emergency Suspension of License and Closure during the 12 months preceding the Administrative Complaint at issue in this proceeding. The Order of Emergency Suspension of License and Closure in Division case number 2015-032315 was filed against Respondent on July 30, 2015. Live and dead roaches were found on the premises in the inspections that led to this Order of Emergency Suspension of License and Closure. Respondent also had a prior disciplinary final order for operating without a license entered within the 24 months preceding the Administrative Complaint at issue in this proceeding. The final order in Division case number 2015-032598 was filed on December 21, 2015. The final order noted that live roaches were observed during the initial inspection and on a callback inspection the following day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $1,500.00, payable under terms and conditions deemed appropriate, and a two-day suspension of Petitioner’s license. DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 12th day of September, 2016.
The Issue Whether Respondent violated the Food Code by failing to control pests; and, if so, the appropriate penalty.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of restaurants. §§ 590.01, et seq., Fla. Stat.; and Fla. Admin. Code 61C-4. The Restaurant is a licensed public food service establishment located at 5756 Dahlia Drive, Orlando, Florida, and holds state food service license number 58-12588. Mr. Goris is a sanitation and safety specialist for the Department, and has worked for the Department for the past eight years. Mr. Goris' experience includes working for the U.S. Army as a food safety inspector for eight years. Further, Mr. Goris received the Department's standardized training on the laws and rules governing public food service establishments. Finally, he is a certified food manager and obtains monthly in-house training from the Department concerning his job duties. On November 15, 2012, Mr. Goris performed a routine inspection of the Restaurant starting at 8:49 a.m. At the time of the inspection, the Restaurant was fully operational and open for business. Mr. Goris observed live roaches at the Restaurant throughout the food preparation area, including over the three- compartment sink, and in the cracks and crevices of the wood table. He also observed dead roaches in the food preparation room inside the hand sink, behind equipment, and on the table where utensils for the oven were stored. Critical violations are those violations that, if uncorrected, are most likely to contribute to contamination, illness, or environmental health hazards. Insects and other pests are capable of transmitting diseases to humans by contaminating the food or food contact surfaces, and this roach infestation was identified by Mr. Goris as a "critical" violation. Edwin Ortiz, the Restaurant's manager, was present with Mr. Goris as he conducted the inspection. At the conclusion of the inspection, Mr. Goris recorded the observed violations in an inspection report which he printed out, and Mr. Ortiz signed the inspection report. In addition to the roach infestation, the Restaurant was cited for additional violations which are detailed in Mr. Goris' inspection report. The Department introduced into evidence a certified copy of the Department's records concerning a past administrative sanction involving the Restaurant. Specifically, the Department's evidence showed that on October 11, 2011, the Restaurant was charged with violating rule 6-501.111 of the Food Code for its failure to control pests, and that the Restaurant failed to challenge the allegations. Consequently, the Department's records show that on January 3, 2012, the Department fined Respondent $400.00 for the violation. Based on the Restaurant's prior disciplinary history and the health danger involved, the Department closed the Restaurant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding that Respondent violated rule 6-501.111, Food Code by failing to control its roach infestation, and that the Restaurant be fined $1,000.00 based on its prior disciplinary history. DONE AND ENTERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 21st day of May, 2013.
The Issue Do the Respondents operate a food establishment as that term is defined in Section 500.03(1)(j), Florida Statutes? If so, are the Respondents, under the circumstances of this cause, required to obtain a food permit from the Department of Agriculture and Consumer Services (Department) in accordance with Section 500.12, Florida Statutes, in order to continue operating their food establishment located within the premises of International Market World, Inc. (Market World) located at 1052 Highway 92 West, Auburndale, Florida? If the Respondents are required to obtain a food permit from the Department, should the Respondents be required to: (a) purchase a permit for each and every year or partial year of operation since being notified by the Department of such requirement; (b) pay a late fee for their failure to renew a permit that was never issued or; (c) pay an administrative fine for failing to obtained a food permit upon being notified of that requirement by the Department?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Department is the agency in the State of Florida responsible for the administration and enforcement of Chapter 500, Florida Statutes, and the rules promulgated thereunder relating to permitting, food safety and the sale of food to the consuming public. Janet M. Robbins and Gerald A. Robbins (Respondents) operate a stall within the confines of a flea market owned and operated by Market World located on Highway 92 West in Auburndale, Polk County, Florida. The Respondents lease the stall from Market World. Respondents receive all proceeds from the sale of items from their stall in Market World. Respondents' business mailing address is listed as 1026 Biltmore Drive, Northwest, Winter Haven, Polk County, Florida 33881. Respondents did not, at any time pertinent to this proceeding, possess an occupational license issued in their name from Polk County, Florida for operating their stall in Market World. Instead, Respondents operated under a blanket occupational license issued to Market World by the Tax Collector of Polk County, Florida in accordance with Polk County Ordinance No. 95-27 which covered all flea market vendors within the confines of Market World. However, had Market World elected not to purchase this blanket occupational license, Respondents would have been required under this ordinance to obtain a Polk County occupational license from the Tax Collector in order to operate their stall in Market World. In accordance with Department of Revenue Rule 12A-1.098, Florida Administrative Code, flea market vendors are required to collect sales tax on their sales but are not required to register with the Department of Revenue in order to remit those taxes. Instead, the rule allows the flea market vendor to remit the taxes collected under the registration of the flea market operator, manager, lessor or owner. Respondents have in the past used this method of remitting the sales tax collected by them to the Department of Revenue. However, the Respondents are presently remitting sales tax directly to the Department of Revenue. On May 6, 1994, Jimmy D. Daugherty, a Department Sanitation and Safety Specialist, visited the Respondents' stall at Market World and observed that Respondents were offering food for sale. Daugherty advised Janet Robbins that a food permit was required to sell food from Respondents' flea market stall. On this same date, Daugherty inspected Respondents' facility and issued a Food Safety Inspection Report and gave the facility an overall rating of good. Also, the report indicated that this was a new firm and that a food permit application was attached. The food permit application had been filled out by Janet Robbins with Daugherty's assistance. Subsequent to filling out the Food Permit Application, Janet Robbins discussed the matter with her husband, Gerald Robbins, who advised the Department that he disputed the requirement that Respondents' establishment must obtain a food permit. While it appears from the record that Respondents' application was submitted to the Department along with Daugherty's Food Safety Inspection Report, there was no evidence that Respondents tendered the proper fee for a permit or that a permit was ever issued to Respondents. On January 17, 1995, the Department issued Notice Number 95R-69185 concerning Respondents' 1995 Food Permit Renewal Notice. The Notice advised Respondents that they had failed to remit their 1995 Food Permit Renewal Fee, the reminder for which had been mailed to them on November 15, 1994. The November 15, 1994, notice was not introduced as evidence. The January 17, 1995, notice also advised Respondents that a late fee of $37.50 would be added if the food permit renewal fee was not paid by January 31, 1995, and that the late fee would be increased to $100.00 if the food permit renewal fee was not paid by February 28, 1995. On February 15, 1995, and again on April 26, 1995, the Department advised Respondents that the 1995 Food Permit Renewal Fee was past due and that an appropriate late fee had been added. In pertinent part, each of the Notices provided: If you dispute your firm type, the State Agency regulating your business, or if you are no longer in business, please indicate on the application (reverse side), sign and return.. . . . Respondents did not respond in writing to the Department disputing any of the matters set forth in the Notices received by them. Instead, Gerald Robbins made telephone calls to Dr. Martha Rose Roberts, Deputy Commissioner, and to Linton Eason in the legal department. These calls were not returned by the Department. On July 26, 1995, the Department issued a Notice of Intent To Impose Administrative Fine against Janet Robbins for operating a Food Establishment without a Food Permit in violation of Section 500.12, Florida Statutes. Respondents requested a formal hearing, and this matter was referred to the Division for the assignment of a Hearing Officer and the conduct of a hearing. Respondents moved to dismiss the matter which was unopposed by the Department. A Recommended Order of Dismissal was entered by the Hearing Officer and jurisdiction relinquished to the Department for final agency action. The Department entered an "Order" overruling the Recommended Order of Dismissal and further ordered that the Department intended to issue an immediate cease and desist order and to impose an administrative fine. The matter was again referred to the Division and this hearing ensued. On May 6, 1994, the Respondents were selling food, as defined in Section 500.03(1)(h), Florida Statutes, from their stall in the flea market known as Market World and have continued to sell food from their stall in the flea market since that date. Respondents' establishment within Market World is of a semi-permanent nature. This finding is based on the photographs entered into evidence as Respondents' Exhibits 5 and 6 and the unrebutted testimony of Gerald Robbins that certain pieces of Respondents' equipment located within the Respondents' stall at Market World were bolted to the floor. Several other flea market vendors within Market World have applied for and were issued food permits by the Department after paying the necessary fee. Because flea market vendors can move from one flea market to another, any flea market vendor who is issued a food permit for one location may operate under that same food permit at another flea market location provided the vendor does not operate at two or more flea market operations simultaneously. There was no evidence as to the annual gross food sales generated by Respondents' stall located within Market World. On May 5, 1995, Daugherty visited and inspected Respondents' stall at Market World. The Food Safety Inspection Report submitted by Daugherty for this inspection indicated an overall rating of good as did the report of May 6, 1994. Respondents have not interfered with, or attempted to interfere with, the Department's inspection of their food establishment even though they disagree with the requirement of having to obtain a food permit from the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that the Department of Agriculture and Consumer Services enter a final order requiring the Respondents to obtain a food permit for the partial year of 1994, and for a full year for 1995 and 1996, and assessing an administrative fine in the amount of $100.00. It is further recommended that no late fees be assessed for failure to renew a food permit that was never issued. RECOMMENDED this 30th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1154 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Department's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 4 are adopted in substance as modified in Findings of Fact 1 through 17. Respondents' Proposed Findings of Fact. Proposed findings of fact 1 - 4, 11, 13, 14, 17 and 18 are adopted in substance as modified in Findings of Fact 1 through 17. Proposed findings of fact 5 and 6 are neither material nor relevant. Proposed finding of fact 7, as stated, is argument rather than a finding of fact. Proposed findings of fact 8 - 10 and 15 are unnecessary as findings of fact. However, they are covered in the Preliminary Statement. Proposed finding of fact 16 is covered in the Conclusions of Law rather than in the Findings of Fact. The first two sentences of proposed finding of fact 19 are adopted in substance as modified in Finding of Fact 14. The balance of proposed finding of fact 19, as stated, is argument rather than a finding of fact. There was no proposed finding of fact 12 COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Linton B. Eason, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Gerald A. Robbins Qualified Representative 1026 Biltmore Drive, Northwest Winter Haven, Florida 33881
