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 violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Humphrey's On 33rd, a bar/restaurant (with a "full kitchen") located in Fort Lauderdale, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-18150-R) authorizing it to operate Humphrey's On 33rd as a public food service establishment. Edward Humphrey is the majority owner of Respondent. On December 29, 2004, Michele Schneider, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of Humphrey's On 33rd. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): Respondent, upon request, was unable to produce evidence of "food handlers' training for employees by a certified food manager"; there were paper products and other potentially combustible items "on top of and around" a gas- powered hot water heater (which had an "open flame at the bottom"); there was no indication that violations (of the standards of the National Fire Protection Association) previously-noted by a "certified fire inspector" during an inspection of the hood range in the kitchen (which had an ansel fire suppression system) had been corrected; the service tag on the fire extinguisher in the establishment did not indicate the year the extinguisher was last serviced; and there was grease, garbage, and other debris in the "can wash area" outside the establishment, "right behind the back door." Before leaving the establishment, Ms. Schneider advised Mr. Humphrey that these Conditions were violations for which Respondent could be disciplined by Petitioner if not corrected by February 1, 2005. Ms. Schneider conducted a "callback" inspection of the premises of Humphrey's On 33rd on February 1, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed. At neither the time of the December 29, 2004, routine inspection, nor the time of the February 1, 2005, "callback" inspection, was food being served at Humphrey's On 33rd. Respondent had "closed the kitchen down" in or around September of 2004. It was not until approximately six months later, after the December 29, 2004, and February 1, 2005, inspections, that Respondent started serving food again at the establishment. At no time during this six-month period that it stopped serving food did Respondent relinquish its license authorizing it to operate Humphrey's On 33rd as a public food service establishment. Its license remained in effect throughout this period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed Alleged Violation Nos. 1 through 5 and disciplining Respondent therefor by imposing a fine in the total amount of $250.00 and requiring Respondent's majority owner to attend, at his own expense, an "educational program sponsored by the Hospitality Education Program." DONE AND ENTERED this 20th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2005.
Findings Of Fact Following an April, 1985 inspection of the ACLF known as Family Affairs, Respondent timely obtained certificates for its two employees viz. Elinore Kolligs and Kathy Cisterna showing them free from communicable diseases and presented these certificates at the follow up inspection to satisfy the cited deficiency. Those two employees were employed during the April, 1986 annual inspection which resulted in a repeat citation for the same alleged violation, i.e. no certification that the employees were free from communicable disease. There is no requirement that employees of an ACLF obtain certificates annually that they are free from communicable diseases. The fact that documentation had been provided to DHRS following the April, 1985 inspection that these same employees cited in 1986 were free from communicable diseases should have carried over to the 1986 inspection. Exhibit 3 lists three employees under ACLF 26, the third being Virginia Sumter who worked as a volunteer at the facility. Ms. Sumter was a former resident at the facility who had provided a certificate that she was free of communicable diseases when she entered as a resident. In this connection during the proceedings Respondent inquired of Petitioner's witness if non-paid volunteers required certificates showing them free from communicable diseases and the response was in the affirmative. When asked if this also applied to Boy or Girl Scouts who worked at the ACLF as volunteers no satisfactory answer was forthcoming. One of the two uncorrected violations listed in the Administrative Complaint dated March 19, 1987 is that Respondent had six residents when the facility was licensed for only five (ACLF 2). This violation was noted at the April 14 inspection and also at a follow up inspection on July 14, 1986. The house in which this facility is located is large and on a minimum square feet per resident basis can accommodate nine residents. On March 18, 1986, before the April, 1986 inspection, Respondent obtained zoning approval from the City of Clearwater to increase the capacity of the ACLF to seven persons (Exhibit 15). Respondent had also communicated with the ACLF Program Manager in Petitioner's Jacksonville office and had been assured that her application to increase the licensed capacity to six residents would be approved. By letter dated May 14, 1986, (Exhibit 10) Respondent was advised by Petitioner that at the time of the April 14, 1986 survey an appraisal for the application to increase licensed capacity from five to six was conducted and the facility met all standards related to the increase. By letter dated May 29, 1986, Petitioner acknowledged that notice of approval of the application to increase the licensed capacity had been received and a recommendation approving the increase had been forwarded to the Office of Licensure and Certification in Jacksonville, Florida (Exhibit 16). By letter dated July 21, 1986, Respondent was issued a new license authorizing six residents at the facility. During the survey conducted on April 14, 1986 the facility did not have a week's supply of non-perishable food on hand as required (ACLF 67) and this deficiency remained uncorrected at the follow up inspection on July 14, 1986. Respondent acknowledged that during that period Mrs. Kolligs' daughter was injured in an accident, that Mrs. Kolligs devoted much time to her daughter and authorized the cook to use the emergency supplies if necessary due to the curtailment of Mrs. Kolligs' shopping time. Subsequent to the July, 1986 re-inspection Mrs. Kolligs sold the facility and no longer operates this ACLF.
The Issue The issue in this case is whether the Respondent, DGJ Properties (Respondent), committed the violations alleged in the Administrative Complaint dated September 2, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state entity charged with the responsibility of licensing and regulating hotels and restaurants within the State of Florida. At all times material to the allegations of this case, the Respondent was licensed by, or subject to, the jurisdiction of the Petitioner. As such, the Respondent is required to comply with all Florida statutes and administrative rules governing lodging establishments. The Respondent is licensed (license number 2300240) as a non-transient 18-apartment complex located at 440 Southwest 5th Avenue, Miami, Florida 33130-2767. The Respondent has owned and operated the subject property since December of 1999. On July 12, 2004, one of Petitioner’s inspectors performed a lodging inspection report that denoted several violations of the administrative rules governing public lodging establishments. The inspector, Jorge Gandolff, listed all of the violations on a Legal Notice Form that accompanied the report. A copy of the report was provided to the Respondent. On July 12, 2004, the inspector noted the following violations at the Respondent’s property: An LP gas tank having a water capacity greater than 2 1/2 pounds was inside apartment six. An exit sign did not illuminate or function properly when tested by the inspector. An emergency light did not function when tested by the inspector. An air conditioner was being operated by power provided through an electrical extension cord. When a balcony certificate was requested, it was not made available to the inspector. There was water damage on the ceiling of apartment six. There was a hole and water damage to the ceiling of bedroom area in apartment six. There was a 12-inch hole in the first floor hallway. There was a torn or worn stair runner. There was a leaking faucet in a bathroom. There were fresh rodent droppings. There was trash and/or debris on the grounds. There was discarded construction or maintenance refuse on the premises including a broken door in a hallway. The license for the establishment was not displayed in the office. The Legal Notice Form listing the violations provided that the Respondent would be afforded approximately ten days to make corrections. On August 19, 2004, the inspector returned to the Respondent’s premises to follow-up on the violations previously noted. At that time, the inspector found the following violations uncorrected: An LP gas tank having a water capacity greater than 2 1/2 pounds was located within apartment six. An exit sign did not illuminate or function appropriately when tested. An emergency light did not function when tested. An electrical extension cord was being used to power an air conditioner. The Respondent could not produce a balcony certificate. There was water damage on the ceiling of apartment six. There was a hole in the ceiling (bedroom area) with plaster falling down in apartment six. There was a 12-inch hole in the first floor hallway. There was a torn or worn stair runner. There was a leaking faucet in a bathroom. There were fresh rodent droppings. There was trash and debris on the grounds. There was discarded construction or maintenance trash on the premises (the broken door was still in the hallway). There was no license for the establishment on display in the office. According to the inspector, “critical violations” are designated “critical” because they pose an immediate threat to the public health and safety. Less “non-critical” violations are given more time to correct. Fire safety issues are generally assessed “critical.” In this case there were no fewer than five “critical” violations because they presented fire safety problems. It was expected that all critical violations would be promptly repaired or cured. The Respondent failed or otherwise refused to make the corrections noted within ten days of the original inspection. The existence of an LP tank at apartment six constituted a critical violation. Using an electrical extension cord to power an air conditioner was also considered a critical violation. The credible evidence from the inspector established that many of the violations were associated with apartment six. The residents in apartment six were in the process of being evicted. In fact, they had changed the lock so that the landlord did not have access to the apartment. The Respondent theorized that the complaint to the Department that precipitated the inspection was in retaliation for the eviction notice being served on the residents in apartment six. The Respondent did not, however, advise the Petitioner at the time of the inspections that the tenant had willfully refused the landlord access to the apartment. Mr. Jimenez believes that the tenant changed the locks to the apartment so that he and his staff could not have access to correct problems within the unit. He also maintained that the emergency sign and exit signs were vandalized. He further claimed that the balcony certificate had been provided to another inspector. Mr. Gandolff searched the Department’s records but could find no balcony certificate for the subject property. The Department maintains certificates for three years. Properties are to have railings and balconies certified for safety as required by the rules. According to Mr. Jimenez by the time of the final hearing he had corrected all matters complained of in this case. He maintained that the residents of apartment six had delayed the repairs and that the hurricanes of last year precluded timely repairs. He opined that most repairmen were unavailable for this type of work because the hurricane damages provided greater and more lucrative employment opportunities for such workers elsewhere. He opined that he could not obtain workers to perform the work any quicker than he did. The Respondent did not, however, produce a copy of a balcony certificate pertaining to the subject property nor any record as to the repairs itemized in the complaint. The Respondent further maintained that it is difficult to correct vandalism because it is a constant problem.
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 an administrative fine in the amount of $3000.00, and requiring the Respondent to attend, at its personal expense, an educational program sponsored by the Hospitality Education Program to fully educate the Respondent regarding its responsibilities under the law. S DONE AND ENTERED this 26th day of May 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 26th day of May, 2005. COPIES FURNISHED: Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Danilo Jimenez Post Office Box 371601 Miami, Florida 33137
The Issue This matter arose on Petitioner's Notice to Show Cause issued against Respondent's food service license. The Notice to Show Cause alleges violations of cleanliness requirements and failure to display license. The parties did not submit proposed findings of fact.
Findings Of Fact Respondent holds a food service license issued by the Division of Hotels and Restaurants, Department of Business Regulation. The licensed establishment is located at 714 W. Ashley Street, Jacksonville, Florida. Petitioner's investigator inspected the licensed premises on March 9, 1983. A current license was not displayed and could not be produced by the manager. Petitioner's March 9, 1983, investigation also revealed that roaches and rats had infested the premises. Vermin tracks and feces were found at or near entrance and exit holes. Respondent had not sealed these access holes nor taken other measures to eliminate the vermin. The storage room, located next to the food service area, contained empty boxes and broken furniture. Petitioner considers these items objectionable since they provide hiding or breeding places for vermin. The restroom provided for patrons had not been cleaned and the toilet seat was broken. Additionally, water on the restroom floor indicated a leak in the plumbing. Petitioner's inspection report, which set forth the above described deficiencies, was given to Respondent's manager on March 9, 1983, at the conclusion of the inspection. Petitioner conducted a follow-up inspection on March 16, 1983, but none of the deficiencies had been corrected. Petitioner conducted a second follow-up inspection on April 12, 1983, and found that corrective measures were in progress but not completed. At the hearing, Petitioner agreed to conduct a further follow-up inspection in conjunction with the local health inspection agency. A status report was to be submitted to the Hearing Officer as a late filed exhibit due October13, 1983, describing any uncorrected deficiencies. This report was not filed.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of violating Rules 7C-1.02, 7C-1.03 and 10D-13.27, F.A.C., as charged; finding Respondent `not guilty of violating Rule 10D-13.28, F.A.C., and, fining Respondent $200. DONE and ENTERED this 10th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1983. COPIES FURNISHED: James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Albert P. Singletary 2912 Bethel Court Jacksonville, Florida 32207 Sherman S. Winn, Director Division of Hotels and Restaurants DePartment of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
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.
