The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1618782. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 7401 West Commercial Boulevard, Tamarac, 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, Sean Grosvenor and Larry Torres were experienced and appropriately trained investigators employed by Petitioner as Sanitation and Safety Specialists. Their job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. On July 7, 2005, Mr. Grosvenor led an inspection of the subject restaurant. Based on that inspection, Mr. Grosvenor prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on July 7, Mr. Grosvenor discussed his findings with the associate manager of the restaurant. Mr. Grosvenor ordered that two of the violations be corrected immediately. He ordered the restaurant to correct the remaining violations by no later than August 7, 2005. On July 8, 2005, Mr. Grosvenor conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the two violations he had ordered corrected immediately had been corrected. One of the two violations that were to be corrected immediately had been corrected and is not at issue in this proceeding. The other violation had not been corrected and is the subject of the Paragraph 1 violation. PARAGRAPH 1 The Food Code requires that food be maintained at a temperature of 41° F. or less. On July 8, 2005, Mr. Grosvenor found the following: cottage cheese located on the buffet table was at a temperature of 48° F., raw hamburger patties located in a cooler were at a temperature of 47° F., and potato salad located in a cooler was at a temperature of 47° F. Mr. Afsarmanesh, the restaurant’s manager, testified that the hamburger patties had been freshly ground and that the potato salad had been freshly made. He testified that these items were brought to a temperature above 41° F. during the preparation process, that they had been placed in coolers to cool down shortly before the inspection, and that they were above 41° F. when Mr. Grosvenor conducted his inspection because they had not had sufficient time to cool down. While his testimony explained Mr. Grosvenor’s findings as to the hamburger patties and the potato salad, Mr. Afsarmanesh had no explanation as to why the cottage cheese was above 41° F. Petitioner established by clear and convincing evidence that Respondent violated Section 3.501.16(B) of the Food Code as alleged in paragraph 1 by proving that Respondent failed to maintain cottage cheese on the buffet line at or below the required minimum temperature. The violations alleged in paragraphs 2-6 were based on Mr. Torres’s follow-up inspection on August 8, 2005. That follow-up inspection was conducted during a power failure which left the restaurant without electricity. Mr. Afsarmanesh requested that the follow-up inspection be rescheduled because of the power outage, but Mr. Torres decided to go forward with the inspection using flashlights. Mr. Torres testified that the absence of electricity had no bearing on his inspection. Based on the violations found, the undersigned finds that Respondent was not prejudiced by Mr. Torres proceeding with the inspection. PARAGRAPH 2 The initial inspection cited Respondent for storing uncovered lettuce, onions, and peppers in a cooler. On August 8, 2005, Mr. Torres observed that lettuce, onions, and peppers were stored uncovered in a cooler. That conduct violated Section 3-302.11(A)(4) of the Food Code. Mr. Afsarmanesh testified that his staff rushed to put these items in the cooler when the electricity went out and that they did not have sufficient time or light to cover them. The exigent circumstances created by the power outage do not excuse the violation observed by Mr. Torres, but those circumstances can be considered in mitigation when determining the penalty to be imposed. Petitioner established by clear and convincing evidence that Respondent violated Section 3-302.11(A)(4) of the Food Code as alleged in paragraph 2. PARAGRAPH 3 Paragraph 3 alleged that Respondent violated Section 3- 304.14(B) of the Food Code by failing to have chlorine sanitizer in a cleaning bucket at minimum strength. On August 8, 2005, Mr. Torres determined that the chlorine sanitizer in a cleaning bucket was below minimum strength. Petitioner established by clear and convincing evidence that Respondent violated Section 3-304.14(B) of the Food Code as alleged in paragraph 3. PARAGRAPH 4 Paragraph 4 alleged that Respondent violated Section 5- 205.11(B) of the Food Code by using a hand-washing sink for purposes other than washing hands. The inspection report does not detail what other use was being made of the hand-washing sink and Mr. Torres could not recall what he had observed to cause him to cite that as a violation. Petitioner failed to establish by clear and convincing evidence the alleged violation of paragraph 4. PARAGRAPH 5 Paragraph 5 alleged that Respondent violated Section 6-202.15 of the Food Code by failing to properly seal an exterior door. On August 8, 2005, Mr. Torres observed that an exterior door to Respondent’s facility was not properly sealed and, consequently, would not prevent the intrusion of pests. Petitioner established by clear and convincing evidence that Respondent violated Section 6-202.15 of the Food Code as alleged in paragraph 5. PARAGRAPH 6 Paragraph 6 alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(7), by failing to keep an electrical room clean and free of debris by storing items in the electric room. On August 8, 2005, Mr. Torres observed that Respondent had stored items in an electric room. Petitioner established by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C-1.004(7), as alleged in paragraph 6. 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. The paragraph 3 violation is a non-critical violation. The remaining violations found are critical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1, 2, 3, 5, and 6 and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $100.00 for the paragraph 2 violation; $100.00 for the paragraph 3 violation; $500.00 for the paragraph 5 violation; and $500.00 for the paragraph 6 violation. In addition, the final order should require a manager responsible for the subject restaurant to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program. 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.
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.
The Issue The issue for consideration in this case is whether Respondent's license to operate a restaurant at 7117 North Highway 301 in Tampa, Florida, should be disciplined because of the discrepancies alleged in the Notice to Show Cause filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department of Business and Professional Regulation's Division of Hotels and Restaurants was the state agency responsible for the licensing and regulation of the operation of restaurants and hotels in Florida. Respondent, Vasko Popov, was licensed to operate a restaurant, Kessey's VP BBQ, at 7117 North Highway 301 in Tampa, Florida. On March 30, 1998, Kenneth A. Phillips, a health inspector with the Division, accompanied by his supervisor, Ms. Burrows, went to Respondent's restaurant for a routine sanitation compliance inspection. During his inspection of Respondent's facility Mr. Phillips observed several violations of the Food Code which he documented in a report which he prepared at the facility at the time of the inspection. Among the discrepancies, Mr. Phillips noted that there was no fire extinguisher located at the site of the bar- b-que pit. This constitutes a hazard to life and property, and, as such, is classified as critical. He also found that there was no self-closing door on the women's restroom; that there were flies in the restaurant and kitchen; debris, including metal tubing, metal bars, wood, an old desk, and an old soft-drink machine in the area behind the restaurant; electrical wiring hanging from the ceiling of the office storeroom in which food is stored; and twenty patron seats in the restaurant. The restaurant is licensed for only fifteen seats. In addition, when asked to provide access to the storeroom office to the inspector, Respondent refused to do so. The presence of the flies, the dangling electrical wires, and the obstruction of the inspector are also classified as critical violations. Mr. Phillips entered the discrepancies he found in an inspection report which he gave to Respondent. This report also notified Respondent he must correct the alleged violations by April 13, 1998. Mr. Phillips hereafter conducted a follow-up inspection of the restaurant on April 20, 1998. At that time, he noted that some of the violations previously noted had not been corrected, and he extended the time for their correction until April 27, 1998. During this follow-up, Mr. Phillips alleged, Respondent refused to talk with him, and Respondent's wife refused to sign an acknowledgement of receipt for it. As a result, Mr. Phillips merely left a copy of the report at the restaurant. On April 30, 1998, Mr. Phillips returned to the restaurant for a second follow-up inspection. At this time he found that those violations which had not been corrected on April 20, were still not corrected. There was still no fire extinguisher in the cooking area; the area behind the restaurant still had the previously noted debris; there was still no self-closing door to the women's rest room; there were still flies in the kitchen and eating area; and there were still more than the authorized number of patron seats. Mr. Phillips was not able to determine whether the hanging wires in the storeroom had been corrected because he was denied access to that area. After the second follow-up inspection, Mr. Phillips sought and received authority from his supervisor to issue a Notice to Show Cause on those violations which had not been corrected by the April 30 extended deadline. Thereafter, on May 26, 1998, he conducted a fourth inspection of Respondent's premises and again found flies in the food service area, debris behind the facility, and more unapproved seating. Respondent admits that some of the allegations of violation are accurate and well founded. However, he contests others. For example, he contends that he had a fire extinguisher on the premises, inside on a door near the pit but not outside at it. Admittedly, the electrical wire was hanging from the ceiling, but it was not hooked up to power, Respondent contends. Respondent admitted refusal to allow Mr. Phillips into the room to check, however, is, in itself, a violation, but he justifies his action with the claim that there was no food stored, prepared or served there. Respondent admits that there were flies on the premises. However, with cooking being done outside, it is almost impossible to make the area fly-free, and, he claims, all restaurants of this type have flies. As to the debris behind the restaurant, Respondent claims that what was there was a part of the building, and it was not a place where customers were allowed. The excess seating was the result of there being 4 or 5 picnic tables inside a covered patio. He believes it is impossible to accurately claim a set number of seats. It would all depend on how close people sat to each other on the benches on each side of the table. Finally, Respondent admits he did not have a self-closing hinge on the bathroom door as alleged. Respondent claims he is a responsible business man who tries to do a good job in a clean establishment. He contends he has a good record of inspections before and after the incidents in question and a good reputation in the community as a small family business. He wants to make the violations right, just as, he claims, he has always wanted to do. He admits to a bad relationship with Mr. Phillips and is of the opinion that that was a large part of the problem. He admits he was put-off by Mr. Phillips' approach and probably did not respond as well as he should. However, he insists that everything alleged to be a violation has been corrected. In fact, subsequent to the hearing, consistent with an order so permitting, Respondent submitted a statement from a purveyor's representative who was present during a disagreement between Respondent and his wife and Mr. Phillips. If true, this corroborative hearsay statement indicates a lack of professionalism on the part of Mr. Phillips at the time. However, assuming, arguendo, the comments attributed to Mr. Phillips were made by him, the other evidence of record indicates violations existed both at the time of the inspections and before, and there was no connection shown to exist between the citations issued therefor and the relationship between Mr. Phillips and Respondent. Notwithstanding Respondent's claim of a good inspection record prior to the instant series, Ms. Burrows, a supervisor with the Department of Health, along with Mr. Phillips, had visited Respondent's facility on October 21, 1997, to inspect new construction and equipment being installed by Respondent. As a result of that inspection, Ms. Burrows and Mr. Phillips found certain discrepancies which they itemized in a report with instructions as to what he had to do to conform with the plans and the rules. Not only did she put them in writing, she also went over them orally with Respondent. The discrepancies noted at the time included an improper installation of the bar-b-que; the presence of only one restroom for use by both male and female patrons; a requirement to seek authority for additional seats on premises which exceeded authorized limit; the need for new licensing as a permanent facility rather than as a mobile operation; an excessive amount of flies on the premises, and the need for screens to keep them out; a requirement for a fire extinguisher; and a requirement to maintain cooked food at an appropriately high temperature. With regard to the last item, Respondent claimed the food in question was for personal consumption and not for sale.
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 imposing a total administrative fine of $2,000, and requiring Respondent to attend an appropriate continuing education course within a set time to be prescribed by the Division. DONE AND ENTERED this 16th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vasco Popov d/b/a Kessy's International VP's BBQ 7117 North Highway 301 Tampa, Florida 33610 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the allegations in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Koy Wan Hibachi Buffet (Respondent) are correct.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a large buffet-type public restaurant located at 945 West State Road 436, Suite 1179, Altamonte Springs, Florida 32714. On April 22, 2013, Amy Zaleski and Cecelia Chiu, trained and experienced sanitation and safety specialists employed by the Petitioner, performed a routine inspection of the Respondent, during which the inspectors observed various violations of the Code. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Ander Chow and discussed the violations with him. According to the inspection report, the violations were to be corrected by 8:00 a.m., on June 21, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On June 24, 2013, Inspectors Zaleski and Chiu performed a callback inspection of the Respondent and observed that some of the Code violations observed during the routine inspection had not been corrected. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Melody Chen and discussed the violations with her. The Code classifies violations as either "high priority," "intermediate" or "basic," essentially reflecting the level of threat to public health posed by a deficiency. A high priority violation is one that poses a direct or significant threat to public health. An intermediate violation is one that, uncorrected, could develop into a high priority violation. A basic violation is one of core sanitation and maintenance requirements that does not meet the level of a high priority or intermediate violation. Count 1 Raw oysters and other "shellstock" are sold to restaurants in containers that are tagged to identify the source of the product and the date of the harvest. The relevant portion of the Code requires that establishments serving shellstock must prevent the comingling of products from different sources and harvest dates. The Code also requires establishments to retain the tags for 90 days to permit identification of the source and date of harvest. The purpose of the requirement is to facilitate identification of a potential source of contaminated shellstock after an occurrence of food-borne illness by persons consuming the product. The Respondent offered raw oysters available for public consumption. On the dates of both the routine and the callback inspections, the Respondent was unable to make the shellstock tags available for inspection, and the Petitioner cited the Respondent for failing to maintain the tags in the manner required. The Petitioner classified the deficiency as an intermediate violation. At the hearing, the Respondent asserted that the tags were properly maintained and available at the time of the inspections, and that the managers present at the time of the inspections were not sufficiently proficient at speaking English to understand the inspectors' request. The assertion was not supported by credible evidence. The Respondent was unable to demonstrate compliance with the tag retention requirement on the dates of the inspections. Counts 2 and 3 The relevant portion of the Code requires that certain food products be stored within specified temperature ranges to minimize the potential for bacterial growth. In the alternative, establishments may use "time control" to monitor the safety of potentially hazardous food. Essentially, an establishment can meet Code requirements either by controlling the temperature at which the product is held or by limiting the time during which the product must be consumed, cooked or discarded. In Count 2, the Petitioner alleged that during both the routine and the callback inspections, the temperatures of various food items including "Krab," sprouts, shrimp, raw pork, surimi, boiled eggs, and cut melon failed to comply with the temperature- based requirements of the Code. The Petitioner classified the deficiency alleged in Count 2 as a high priority violation. In Count 3, the Petitioner alleged that during both the routine and the callback inspections, sushi, a potentially hazardous food being served on the buffet line, failed to comply with the temperature-based requirements of the Code. The Petitioner classified the deficiency alleged in Count 3 as an intermediate violation. The Respondent asserted that it used time control to monitor the products for safety. The Code requires that an establishment choosing to use time control must have written documentation identifying the practices implemented and must make the documentation available to the Petitioner on request. The Respondent was unable to produce written documentation of the time control procedures during either the routine or the callback inspection. Count 5 The relevant portion of the Code prohibits storage of food on the floor because dirt, bacteria, and floor cleaning chemical residue can contaminate food stored on the floor. During both the routine and the callback inspections, the Petitioner's inspectors observed boxed food being stored on the floor of a walk-in freezer. This deficiency was classified as a basic violation. At the hearing, the Respondent asserted that the products had been delivered just prior to the inspections, the delivery employee placed the boxes on the freezer floor, and Respondent's employees had not yet moved the boxes from the floor to the shelves. The assertion was not supported by credible evidence. Count 6 The relevant portion of the Code provides that an employee may drink from a closed beverage container if the container is handled in a manner which prevents contamination of the employee's hands, the container, exposed food, and clean equipment and utensils. The Petitioner alleged that the Respondent violated the Code because inspectors observed an employee's beverage container on a food prep counter. The evidence is insufficient to establish that the potentially permissible beverage container was not handled in such a manner as to comply with the requirements of the Code. Count 9 (Part A) The relevant portion of the Code requires that food contact surfaces must be "clean to sight and touch" to prevent bacterial contamination. During both the routine and the callback inspections, meat-cutting boards at cooking stations were stained and soiled. Count 9 classified the deficiency as an intermediate violation. Counts 10 and 12 The relevant portion of the Code requires that "a handwashing sink shall be maintained so that it is accessible at all times for employee use" and that the sink "shall be equipped to provide water at a temperature of at least 100 degrees." During both the routine and the callback inspections, one of the 12 handwashing sinks available to employees had various items stored in it, and there was no hot water available at that sink. Count 10 identified the hot water deficiency as an intermediate violation. Count 12 classified the accessibility deficiency as an intermediate violation. The Respondent asserted that the hot water supply line was leaking at that particular sink and so it had been turned off. The items were placed in the sink to prevent its usage. The evidence failed to establish the reason the sink remained unrepaired after being cited as a deficiency during the routine inspection. Count 11 The relevant portion of the Code requires that a vacuum breaker device be installed on certain plumbing fixtures to prevent the backflow of contaminated water into the water supply system. During both the routine inspection and the callback inspection, the inspectors observed that a splitter fitting had been installed on the mop sink faucet and that no vacuum device was present. This deficiency was classified as a high priority violation. Count 13 The relevant portion of the Code requires that the operator of an establishment take effective measures to protect the premises from infestation by vermin, such as roaches. During the routine inspection, a gap was visible at the threshold of an exterior door at the rear of the restaurant through which vermin could enter the building. During the routine inspection, inspectors observed dead roaches inside a cabinet under a "soft-serve" ice cream machine, in a cabinet under a handwash sink, on the floor at a "wait station," and inside a storage area where unused equipment was located. Roach excrement was present on the gasket of an unused cooler located in the storage area. During the callback inspection, the gap remained unrepaired. Inspectors again observed dead roaches inside a storage area where unused equipment was located and roach excrement on the gasket of an unused cooler. Roaches present a risk of bacterial contamination and disease to surfaces and food contact areas. Count 13 classified presence of vermin as a high priority violation and the gap under the exterior door as a basic violation. Count 15 The relevant portion of the Code requires that carbon dioxide and helium tanks be adequately secured. An unsecured carbon dioxide tank can fall over, explode, and become a dangerous projectile. During both the routine inspection and the callback inspection, inspectors observed a carbon dioxide tank stored in an upright position without being properly secured. This deficiency was classified as a basic violation.
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 $6,900 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations set forth herein. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 2nd day of April, 2014.
The Issue This proceeding was commenced on February 7, 1985, when the Division issued its Notice to Show Cause, alleging a list of seven violations of Chapter 509 Florida Statutes and certain administrative rules. The matter was handled informally and Final Order was entered by Division Director, R. Hugh Snow, on April 11, 1985. (H & R No. 23-16678R). The Final Order was later withdrawn pursuant to an Order of the First District Court of Appeal, (Case No. BG-307, dated October 29, 1985) and the matter was forwarded to the Division of Administrative Hearings. At the commencement of the hearing, George Frix was determined to be authorized to represent his family-held corporation. See Magnolias Nursing and Convalescent Center v. DHRS, 428 So.2d 256 (Fla. 1st DCA 1982). The Petitioner presented the testimony of four witnesses and nine exhibits, marked A-l. The Respondent testified on his own behalf and one exhibit was admitted. Both parties submitted post-hearing proposed recommended orders. On January 27, 1986, Petitioner filed a Motion to Strike certain portions of Respondent's proposed recommended order, based upon Respondent's attachment of five exhibits to his proposed order. Those attachments labeled Exhibits #1 through #4 were not entered into evidence at the hearing and were not considered in the preparation of this Recommended Order. However, the attachment labeled Exhibit #5 was admitted at the formal hearing as Respondent's Exhibit #1 (Final Order of the Division, dated 4/11/85). This document is part of the record in this proceeding. Except as addressed above, the Motion to Strike is Denied. A specific ruling on each party's proposed findings of fact is found in the appendix attached to, and incorporated as part of this Recommended Order. The issue in the proceeding is whether Respondent committed the violations alleged in Petitioner's February 7, 1985, Notice to Show Cause, and if so, what disciplinary or corrective action should be taken.
Findings Of Fact At all times relevant, Sangeo has held license number 23-16678R for the premises known as the Provider at 9713 N. E. 2nd Avenue in Miami Shores. The license was initially issued in January 1982, with an effective date of December 1981. The license is a counter and take-out license; that is, it permits the consumption of food on the premises and preparation of food for take-out. (Hayes testimony). The establishment consists of a sandwich take-out, meat market and grocery. Tables and chairs are provided for the customers, but there are no waitresses. The establishment has a beer and wine license, but not a "COP" (consumed on premises) license. (Testimony of Frix). The Division of Hotels and Restaurants, the licensing authority, maintains a contract with the Department of HRS to conduct inspections of restaurants on a quarterly basis. (Testimony of Livingstone and Hayes). Joanna Thomas, an Environmental Health Specialist, employed by the Dade County Health Department, conducted her first inspection of the licensee on October 24, 1984. She found several code violations: no urinal in the men's room, the hand wash sink blocked by bicycles and inaccessible, an open hole over the heater, failure to keep food at the required temperature, and other violations which she noted on her report and explained to the manager at the premises. (Thomas testimony). Ms. Thomas returned for a follow-up inspection on October 30, 1984. Some corrections had been made. The manager was told that the urinal had to be installed by the next routine inspection visit. (Thomas testimony). The next inspection was conducted on January 4, 1985. Again, several violations were found, and the following remedial actions were listed in the instructions on the inspection report: (The numbers correspond to the numbers on the violation checklist). #5 Provide approved thermometer as was told. #8 Elevate foods off floor in walk-in. #16 Install drainboards on both ends of three-compartment sink. #17 Provide chemical test kit. #20 Provide sanitizing agent for utensils. #25 Store single service articles upside down. #31 Install urinal in one of the restrooms. Handwash sink must be accessible at all times. #33 Provide covers for garbage cans and keep covered. Provide approved garbage containers - not plastic. #36 Clean floor on the side of hand wash sink and clean under items in the storage room. #37 Repair hole over heater or provide a screen to protect entrance of insects/rodents. #38 Light bulbs must be shielded in preparation and dishwashing area. #42 Remove unnecessary articles from storage room. Arrange storage so that floor could be reached for cleaning. Store cleaning maintenance equipment properly. (Petitioner's Exhibit A) At the follow-up inspection on January 10, 1985, Ms. Thomas noted that some of the violations were still not corrected. She found failure to comply with the following: #16, 17, 31, 33, 37, 38. (Numbers correspond to the instructions listed in paragraph 5, above). These violations were the basis for the Notice to Show Cause which gave rise to this proceeding. (Petitioner's Exhibit 3, Notice to Show Cause dated 2/7/85). On February 22, 1985, Ms. Thomas found compliance with #37 and $38, but not the other violations. On her April 10, 1985 inspection visit, her primary concern was that the urinal was still not installed. On her most recent visit on December 11, 1985, a reinspection, all prior violations had been corrected, except the installation of a range ventilation system (not at issue in the Notice to Show Cause) and the urinal. (Testimony of Thomas, Petitioner's Exhibit C). The Provider does not now have, nor has it ever had, a urinal in the men's room. It was issued a license without one. The other violations, designated as "minor" on the January 4, 1985 inspection report, existed for varying periods or occasionally re-occurred, but no longer existed by December 11, 1985. The establishment maintains drainboards, but they are portable and not always in view. A handwash sink exists but on occasion it is blocked. Shields are utilized over the light fixtures, but are removed periodically for cleaning. (Testimony of Frix, Petitioner's Exhibits A and C). George Frix conceded at the hearing that space exists to install a urinal. However, he claims that installation of another water-using device is prohibited by the local pollution control authority. No evidence of that prohibition was presented to substantiate the claim. He also claims that the requirement for the urinal did not exist at the time his license was issued and cites the Division's previous "Final Order", dated April 11, 1985, for authority, since the order does not require correction of the missing urinal. (Testimony of Frix, Respondent's Exhibit
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order finding the Respondent guilty of the violations cited in paragraphs A, B, D, E, F and G of the Notice to Show Cause, dated February 7, 1985, and imposing a fine of $300.00 ($50.00 per violation). That Petitioner enter a Final Order finding the Respondent guilty of the violation cited in paragraph C of the Notice to Show Cause dated February 7, 1985, and requiring that compliance be demonstrated within 60 days of the date of the Final Order or thereafter that license No. 23-166F-R be suspended until compliance is demonstrated. DONE and ORDERED this 6th day of February, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986. COPIES FURNISHED: Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Post Office Box 3457 Tallahassee, Florida 32315 Lynne Quimby, Esquire Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. George A. Frix, President Sangeo, Inc. P.O. Box 530583 Miami Shores, Florida 33153 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of feet submitted by the parties to this ease. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact #1. Adopted in Finding of Fact #2. Adopted in Finding of Fact #3. Adopted in Finding of Fact #4. Adopted in Finding of Fact #5. Adopted in Conclusion of Law #5. Rejected as a statement of testimony, not a finding of fact. Adopted in Finding of Fact #6. Rejected as immaterial, cumulative and unnecessary. Rejected as immaterial, cumulative and unnecessary. Rejected as a simple statement of testimony rather than a finding of fact. Rejected as cumulative and unnecessary. 13-23. These "proposed findings of fact" are mere recitations of the testimony of various witnesses, and are rejected as such. To the extent that the testimony was credible, material and necessary, the facts adduced are reflected in Findings of Fact #7, 8 and 9. 24-27. These paragraphs citing provisions of the Administrative Code are addressed in Conclusions of Law #4 and 5. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as a statement of testimony rather than finding of fact. However, the substance of this paragraph was addressed as Respondent's defense in Finding of Fact #9. Rejected as presenting evidence that was not introduced or admitted at the final hearing (Exhibits 1-4). These exhibits are also immaterial. Exhibit #5 is addressed in Finding of Fact #9. Rejected as a statement of Respondent's testimony and argument of his position. He failed to produce authority that the law and rules did not exist when the facility was licensed. Rejected as substantially inconsistent with the evidence. Rejected as a statement of the Respondent's testimony. His argument that the violations charged were the result of a personality conflict between employees of Petitioner and Respondent, is rejected as based upon wholly unsubstantiated hearsay, and inconsistent with the greater weight of the evidence. Rejected as immaterial. Adopted in part in paragraph 8. The final sentence is rejected as inconsistent with competent substantial evidence that the violations existed on January 10, 1985 and, in some cases, longer.
