The Issue Whether the Department of Corrections’ proposed award of RFP Number 96-DC-6902 to Cini-Little International, Inc. (Cini- Little) is contrary to the agency’s governing statutes, the agency’s rules or policies, or the bid or proposals specifications. Specifically, whether Cini-Little's proposal was responsive to material provisions in the request for proposal.
Findings Of Fact On July 26, 1996, the Department issued a request for proposals for RFP Number 96-DC-6902, a Feasibility Study of a Advanced Food Production system for the Department. The study was to consider costs benefits of a centralized food production system for the Department which would cook and freeze or chill foods in a central food plant and ship pre-packaged foods to the Department’s institutions where the food would be reheated and served. This process would replace the current “cook and serve” method of preparing meals used in the Department. The Department projects it will serve 330,000 meals per day to its inmates and staff in the year 2001. The study was to consider the best and most economical technology for a state of the art comprehensive food service program employing advanced food production methods. No protest of the terms and conditions of the RFP was filed. Certain of the provisions were deemed mandatory requirements, generally by the use of “shall”, “must” or “will”, and failure to meet those provisions was grounds for rejection of a proposal. See Paragraph 1.4. Paragraph 4.3.6.1 of the RFP provided as follows regarding rejection of mandatory requirements: The department has established certain requirements with respect to proposals to be submitted by proposers. The use of “shall”, “must” or “will” (except to indicate simple futurity) in this Request for Proposal indicates a requirement or condition from which a material deviations may not be waived by the department. A deviation is material if, in the department’s sole discretion, the deficient response is not in substantial accord with this Request for Proposal’s requirements, provides an advantage to one proposer over other proposers, has a potentially significant effect on the quantity or quality of items proposed, or on the cost to the department. Material deviations cannot be waived. Six companies submitted proposals, including the Jacobs and Cini-Little. The proposals of three of the six companies were determined to be non-responsive and were not assessed further. Scoring of the RFP was based on a 1,000 point scale with 500 points awarded for technical evaluation and 500 points awarded for costs. The technical evaluation assigned 200 points for corporate qualifications, 100 points for project staff, and 200 points for service delivery and approach. Corporate qualifications included consideration of the items listed under Paragraph 5.1.2 of the RFP. Paragraph 5.1.2 of the RFP provided in pertinent part that the proposer shall supply the information indicated thereafter for his own firm and for any subcontractors. Paragraph 5.1.2.1 requested financial statements; Paragraph requested details of corporate background; Paragraph requested corporate experience; and Paragraph 5.1.2.4 requested corporate references. This information was required to be provided, and was a mandatory requirement. Paragraph 5.1.2.3 regarding corporate experience provided: Details of corporate experience with the last three (3) years relevant to the proposed contract specifically current historical experience of designing for a minimum of four (4) facilities of similar size and scope to this project. (Emphasis supplied.) Paragraph 5.1.2.4 regarding corporate references provided as follows: The proposer shall furnish at least three (3) corporate references with his proposal (Attachment 1). The references shall included the company name, contact person and their telephone number. The reference shall describe where services similar in magnitude and scope to that requested in the Request for Proposal were provided. Employees of the Department of Corrections may not be used as corporate references. The department reserves the right to contact references not listed in the proposal. In order to insure current expertise, projects utilized as client references shall have been completed within 36 months preceding the issuance date of this RFP. (Emphasis supplied.) One of the interested companies poised the following question, to which the following answer was provided in the addendum to the RFP: Q: Does “facilities” mean Feasibility Studies of the nature as described in the RFP, actual physical facilities, or a combination of both? A: Feasibility studies that were not implemented are not acceptable. One feasibility study as reference to a completed physical facility may be included and both together will count as two references. Two additional physical facility references will also be required. (Emphasis supplied.) tabular form: Project Name Date Facility design/built Maryland DOC 1992 No/No In response to the requirement to list its corporate historical experience of designing four facilities of similar size and scope, Cini-Little listed the following projects. Information regarding the date of the project together and whether a facility was designed and constructed is summarized below in 1. 2. NY,NY DOC 1993 No/No 1989 Ongoing 1990 Yes/Yes Yes/No No/No 6. Hillsborough Co 1988 No/No 7. NY,NY DOC Current No/No 8. Mecklenburg Co 1992 No/No 9. NY State no date No/No 10. Eastern Corr. 1989 No/No 11. Pa. FCI 1991 Yes/Yes 12. Md. FCI 1991 No/No 13. Montgomery, Md. 1992 No/No Fla Hospital Missouri DOC Dade County Of the projects listed by Cini-Little evidencing corporate experience, the majority did not fall within the required time frame of three years prior to the issuance of the RFP. The dates of the ninth project in the table above done for New York State was not provided. Only the second, fourth and seventh projects were done during the required time period. Eugene Jacobs testified concerning these projects. He also was involved with bidding these projects and was familiar with the dates and nature of them. Regarding the second project above, it was a cost analysis and feasibility study of converting existing kitchens to receive pre-prepared meals which were to be prepared by a central kitchen located outside of New York City. It has not been implemented. Regarding the fourth project above, it is an on-going study for the State of Missouri. A portion of the work is completed; however, it involves a cook and serve dining hall. This is contrary to the nature of the Department’s RFP which is moving away from cook and serve. The remainder of the project involves a facility of the nature of the Florida study; however, design of this facility has not been completed and the project has not been implemented. See Cini-Little’s description contained in its proposal. Regarding the seventh project above, it is a follow up to the other study done for New York City discussed above. This study considered how to improve meal service using existing facilities given the lack of implementation of the previous study. It did not involve advanced food preparation methods, but related to cook and serve facilities. The size of the project is not specifically provided; however, a kitchen capable of serving 15,000 meals daily is referenced. See Cini-Little’s description contained in its proposal. The Department’s proposed order reflects consideration of Cini-Little’s projects for Mecklenburg County and Montgomery County under corporate references. These projects were completed in 1992, and while they may be considered by the Department, they do not count towards meeting the RFP’s requirement to list four projects of similar size and scope completed within the three years prior to the issuance of the bid. Cini-Little’s proposal listed three corporate references: Maryland DOC 15 year plan, New York City Department of Correction’s Feasibility Study, and Florida Hospital Center Feasibility Study. The work on the Maryland project was completed in 1992, and the work for Florida Hospital Center was completed in 1989. Neither project was completed within 36 months preceding issuance of the RFP. Only the current work for the New York City is within the required time period, and it has not resulted in the approval of a plan for the construction of a facility of the size and scope envisioned in the Department’s RFP. The requirement to list similar projects completed in the three years prior to issuance to the RFP to establish corporate experience is mandatory. Further, it is a material requirement. By establishing a requirement that a proposer perform a certain quantity of work of a particular size within a finite time, the requirement establishes the ability of a consultant to perform projects of the size of the Department’s project. The requirement for client references is mandatory, and the RFP explains this requirement by stating, “In order to ensure current expertise, projects utilized as client references shall have been completed within the 36 months preceding the issuance date of this RFP.” Cini-Little only gave one reference within the required period. Cini-Little did not meet the requirement to list four projects of similar scope and size completed within three years prior to the issuance of the RFP, and did not meet the requirement to list three references relating to projects of similar scope and size completed within the 36 months prior to the issuance of the bid. By failing to disqualify Cini-Little’s bid for failing to meet these two mandatory requirements, the Department did not follow the requirements of its own RFP regarding these material requirements which go directly to the competence of the bidder to complete work of the size and scope covered in the RFP. The Cini-Little’s proposal received a total of 907 points, 407 points on its technical evaluation and 500 points for its cost of $148,600. Jacobs’ proposal received a total of 811 points, 482 points on its technical evaluation, and 329 points for its cost of 225,000. Jacobs’ proposal met all the requirements of the RFP. (However, it was not established that Jacobs was the next lowest bidder.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order finding that the proposal of Cini-Little International, Inc., is not responsive. DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Eugene A. Jacobs, President Jacobs Associates, Inc. 8119 Oakleigh Road Baltimore, Maryland 21234 Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-1500 Harry K. Singletary, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-1500 Louis A. Vargas, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-1500
The Issue The parties' prehearing statement filed on November 6, 1989, appropriately identifies the controversy as follows: Whether the evidence to be presented by petitioner establishes that respondent was in actual and/or constructive possession of more than twenty (20) grams of cannabis (marijuana), which is a felony violation of Section 893.13, F.S., and drug paraphernalia, which is a misdemeanor violation of Section 893.147, F.S., on November 19, 1988. If proven, do these acts constitute immorality and misconduct in office under Section 231.36(4), F.S.; and Are these acts of such a serious nature that respondent should be discharged from employment and his continuing contract as a teacher with petitioner be terminated.
Findings Of Fact The Respondent, Robert W. Stafford, is 51 years old. At the time of his suspension in 1989, he had been employed as an elementary school teacher with the Brevard County School District approximately 30 years, and was under a continuing contract. For the last 20 years Robert Stafford has owned and lived in his residence located at 5645 Crane Road, Melbourne Village, Florida. He is divorced and, at the time in question, shared the home with his son, Christopher Stafford, and three other young adult males: Martin Lenz, Paul Daniel Butler, and Larry Peace. Each of these individuals had lived in the home for several months or several years prior to November 1988. Each had his own bedroom and due to varying work schedules, only occasionally interacted. In lieu of paying rent, the occupants contributed toward food and utilities and the upkeep and maintenance of the house and its 3/4 acre grounds. Robert Stafford rarely had occasion to enter the bedrooms of the young men. They did their own cleaning. From time to time he would close a window, or put clean laundry in Christopher's room, but generally, the bedrooms, including Robert Stafford's, were considered the private domain of the occupant. On Friday night, November 18, 1988, Robert Stafford left the house around 8:00 or 9:00 p.m. to go to the movies. Larry Peace was at home entertaining his girlfriend. After the elder Stafford left, Peace and the girl smoked marijuana in his room and in the living room. They used a bong (type of water pipe) that he ordinarily kept in his room under his bed. They also burned incense throughout the house. To Peace's knowledge, no one else was home except Martin Lenz, who always kept to himself in his own room, upstairs above the main area of the residence. At some point the couple retired to Robert Stafford's room, leaving the bong in the living room. Although they did not have permission to use the room, the bed was bigger. Christopher Stafford works as custodian in a 2:00 p.m. to 10:00 p.m. shift at Roy Allen Elementary School. He returned home after 10:00 p.m. on the night of November 18, 1988. His father was still out and the others were apparently asleep. He rolled a marijuana cigarette in his room and smoked it outside. When he returned to the house he lit various kinds of incense in the living room and throughout the house. He ate dinner and settled in watching television. Shortly after midnight he heard the dogs barking. When he went out to the backyard, two police officers jumped him and served a search warrant. The Stafford residence had been under surveillance by the Melbourne Village Police Department for several months. Prior to the surveillance, on April 20, 1987, Chief Donald Lock, who was then an officer with the Melbourne Village Police Department, searched the room of Larry Peace, the suspect in a crime which had occurred earlier. The search was pursuant to Peace's written consent and Robert Stafford's verbal consent. The officer was looking for certain clothing, and found, in addition to the clothing, a shotgun, a tray with some marijuana seeds and a waterpipe or bong. After the search was completed, Robert Stafford signed the property receipt for the items. The surveillance was conducted by Officer Norman Rudd with the Melbourne Village Police Department, who at the time of hearing, in November 1989, was 22 years old and had been with the department for two and a half years. Periodically, from February 1988 until November 1988, Officer Rudd viewed the backyard of the Stafford residence from a vantage point in a highly vegetated area behind the property line. He claimed, at various times, to have observed a garden patch of 1-inch marijuana seedlings outside the property line but on a beaten path leading to the property, four males inside the house smoking a bong, a large party in progress with some people smoking marijuana in the backyard, and black plastic pots with larger marijuana plants in the wooded area behind the Stafford property line. Seven or eight police officers converged on the Stafford house the early morning of November 19, 1988. This included the entire 3-man Melbourne Village Police Department and assistance from neighboring Palm Bay and West Melbourne Police Departments. This was the first search warrant executed by Melbourne Village, in the experience of Chief Lock. The search took approximately 5 1/2 hours, and was videotaped (approximately 50 minutes) by an officer from the Palm Bay department. Robert Stafford returned home around 1:00 a.m. and was detained in the living room with the other residents as the search continued. The search revealed Larry Peace's black bong in the northeast corner of the living room. Other paraphernalia and contraband were found in the various bedrooms, including a marijuana pipe with residue and a marijuana cigarette butt and rolling papers on or near Paul Butler's dresser; numerous pieces of drug paraphernalia, hashish oil, cocaine residue, and marijuana, primarily in the form of stems, seeds and parts of discarded cigarettes, in Christopher Stafford's room; a bong and pieces of a bong, marijuana seeds, leaves and butts, a pipe and miscellaneous paraphernalia in Larry Peace's room; and baggies with marijuana residue, a brass pipe with residue, a marijuana butt and tongs in Martin Lenz' room. One item of interest in the search was found in Robert Stafford's room: approximately 27.2 grams of marijuana in two plastic baggies rolled into another baggie and stashed behind a picture on the wall. No other residue, paraphernalia or devices were found in that room. In contrast to Robert Stafford's room, which was neat and uncluttered, the rooms of the young men were messy and filled with books, clothes, posters, papers and debris. Two of the rooms contained wire animal cages, for snakes, rabbits or other small animals. The rooms were small, except for Christopher's, and appeared to be partially make-shift renovation. Most of the items confiscated in the search were either completely hidden in closets or drawers, or were behind beer bottles, books or other clutter. Other items were found (the discarded stems, seeds, and butts) with other refuse in trash cans. The visual effect portrayed in the video tape was such disarray that it would be difficult to focus on a single item of contraband without specifically looking for that item. The officers described the pervasive odor in the house as marijuana, and one officer became ill during the search and had to leave. Other evidence established the odor as incense, including Christopher's blend of strawberry, musk and sandalwood, and of animals. Robert Stafford denies knowledge of the presence of the contraband in his home or the plants growing beyond the property line. He denies that he would have recognized the paraphernalia or the marijuana, except in the form of a plant, which he would recognize from pictures. Sometime prior to the November 1988 incident, Stafford was shown a marijuana plant by the custodian at Turner Elementary School on a morning when he was hurrying to class. When he signed the property receipt at the time of the search of Peace's bedroom, the marijuana seeds and pipe were not presented to him. The marijuana stashed in Robert Stafford's room belonged to Christopher, who had secreted it there for safe- keeping when he suspected someone was messing with the things in his room. The youths never used drugs in front of the elder Stafford and burned incense in their rooms and elsewhere to cover the odor. There is no evidence suggesting that Robert Stafford uses or used drugs or marijuana and he emphatically denies such. When Robert Stafford failed to report the presence of marijuana at school when it was shown to him by the custodian, he was given a written reprimand. This is the only blemish on his 30-year teaching career. His performance evaluations have been satisfactory or outstanding. He has been commended for setting up a model computer center and for work with difficult children. He has been a regular volunteer in child enrichment activities such as Little League. In April 1989, the Staffords and other residents were charged with criminal violations arising from the November 1988 search. Robert Stafford's charges were disposed of, nolle prosequi. The Department of Education found no probable cause to pursue discipline of his teaching certificate. The evidence in this proceeding failed to establish that Robert Stafford was in actual or constructive possession of cannabis (marijuana) or drug paraphernalia.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the Petition for Discharge of Robert W. Stafford be dismissed. DONE AND RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 22nd day of February, 1990.
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
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Petitioner is the state agency charged with regulating and inspecting restaurants. Respondent is licensed and regulated by Petitioner. Respondent’s permanent food service license number is 6902905. Respondent’s license address is 3785 Orlando Drive, Sanford, Florida 32773-5686. Petitioner's inspector inspected Respondent on July 8, 2002. Several deficiencies were noted by the inspector. Among the deficiencies were the following: (1) violation of Florida Administrative Code Rule 61C-4.023(4)(a), “there was no proof of employee training available for employees employed for sixty days or more"; (2) violation of Section 3-304.14(B)(2), 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration (incorporated into Florida Law by Florida Administrative Code Chapter 61C), “there were wiping cloths on the food prep counters that were not stored in sanitizer"; (3) violation of Section 4-601.11(A), 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, “the reach-in freezer by the grill had old food debris built-up on the inside"; and violation of Section 6-501.111, 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, “observed flies in the kitchen area.” One deficiency of critical concern was that Respondent's employees had failed to complete their food service training. The Food Service Inspection Report of the July 8, 2002, inspection advised Respondent: WARNING: Violations in the operation of your establishment must be corrected by July 22, 2002 at 8:00 AM. On July 25, 2002, Petitioner's inspector returned for a re-inspection of the deficiencies noted during the July 8, 2002, inspection. The four deficiencies mentioned in paragraph 3, supra, had not been corrected. During the re-inspection, the following observations were made: "53B No proof of employee certification available for employees employed 60 days or more"; "21 Wiping cloths for food prep counters - no sanitizer"; "22 Mini freezer @ grill w/ old food debris built up on inside of reach in"; and "35 Flies in kitchen areas." Respondent did not appear at the final hearing and, therefore, did not present any mitigating circumstances.
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 committed the violations alleged in the Administrative Complaint. Imposing an administrative fine of $2,500.00 payable within 45 days of the filing of the final order. Requiring Respondent’s manager(s) to attend a Hospitality Education Program class within 60 days of the filing of the final order and to provide proof of such attendance to the Division of Hotels and Restaurants. DONE AND ENTERED this 23rd day of October, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 23rd day of October, 2003. COPIES FURNISHED: Kelly A. Fields McDonalds Post Office Box 941869 Maitland, Florida 32751 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Geoff luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated March 17, 2008, 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 located at 2054 State Road 436, Suite 128, Winter Park, Florida, holding Permanent Food Service license number 5811081. On March 12, 2008, Wilfredo Goris, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Goris observed 17 live roaches inside a box containing light bulbs in front of the three-compartment sink, two roaches on a water heater in the same general area as the three-compartment sink, and three dead roaches in the vicinity of the three-compartment sink. Mr. Goris showed the roaches to Carlos Nevarez, the manager of Stacked Subs, to make him aware of the problem. Mr. Goris prepared and signed an inspection report detailing his findings during the inspection. Mr. Nevarez also signed the report to indicate receipt of the inspection report. The Division advises its inspectors that all reports of pest activities should be forwarded to the Tallahassee office for review. Mr. Goris sent his inspection report to Tallahassee for a determination of how to proceed against Stacked Subs, i.e., whether to allow the restaurant to remain in operation or to suspend its license until the roach infestation is eliminated. Mr. Goris testified that the Tallahassee office decided that because the roach activity was in the kitchen area, the restaurant should be closed as a threat to public health until the facility was cleaned and sanitized. Mr. Nevarez testified that all the roaches were in a box of fluorescent light bulbs that had been brought in from a storage unit a couple of weeks earlier. The box was removed immediately after the inspection. According to Mr. Nevarez, once the box was removed, the roach problem was eliminated. To corroborate his testimony, Mr. Nevarez submitted a service report from Anteater Pest and Lawn Services, a large pest and lawn company. Anteater's technician arrived at Stacked Subs at 4 p.m. on March 12, 2008, and stayed until 5:30 p.m., inspecting the facility and treating any potential entry point for pests. Anteater's technician could find no roaches inside the restaurant. Mr. Goris returned to Stacked Subs the next day, March 13, 2008. Mr. Goris found no roaches and allowed the restaurant to reopen. Mr. Nevarez submitted photographs of the restaurant to show where Mr. Goris found the box containing the roaches. Mr. Goris viewed the photographs and agreed with Mr. Nevarez as to the location of the box. The photographs indicate that the box was placed next to a hot water heater in the very back of the restaurant, well away from the food preparation area. However, the kitchen is of a long, open galley-type construction, and there were no dividing walls between the hot water heater and the food preparation area. Therefore, the box containing the roaches was technically in the kitchen. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. Roaches are carriers of diseases, including staphylococcus. The presence of roaches in the vicinity of the food preparation area constitutes a critical violation. The Division presented no evidence of prior disciplinary action against Respondent.
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 $500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 11th day of September, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2008.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
