The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2008). At all times material to this case, the Respondent was a restaurant operating at 10801 Starkey Road, Largo, Florida, 33773, and holding food service license number 6215373. On July 21, 2004, Jim Olsen, a trained sanitation and safety inspector employed by the Petitioner, performed a routine inspection of the Respondent. Mr. Olsen identified various food safety regulation violations in a written report that was provided to Mr. Newman at the time of the inspection. Violations that pose an immediate threat to public safety are deemed to be "critical" violations. Mr. Olsen determined that the restaurant manager, Mr. Newman, was not a certified food manager, which is a critical violation of food safety regulations. Mr. Olsen also determined that there was no documentation that the restaurant employees had completed the required food service training, another critical violation of food safety regulations. The inspection report stated that the deadline for correction of the two critical violations was August 23, 2004. On August 23, 2004, Mr. Olsen performed a "callback" inspection at which time he determined that the restaurant continued to lack a certified food manager and that there remained no documentation that the restaurant employees had completed the required food service training. The violations were noted in the Administrative Complaint underlying this proceeding. Other deficiencies identified in the July 21, 2004, inspection report were resolved on a timely basis and are immaterial to this proceeding. At the hearing, Mr. Newman testified that he registered to take the food manager certification course at the earliest opportunity after the July 21, 2004, inspection, but acknowledged there was no certified food manager in the restaurant at the time of either inspection. Mr. Newman also testified that some of the food service employees were trained, but acknowledged that he had no records at the time of either inspection to document that any of the employees had completed the training.
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 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 3rd day of March, 2009, 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 3rd day of March, 2009. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Herbert H. Newman 10801 Starkey Road, No. 11 Largo, Florida 33777 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent is guilty of violating National Fire Protection Rule 10, 4-4.1, Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) as charged in the January 25, 2005, Administrative Complaint; and if so, what discipline is appropriate.
Findings Of Fact At all times material, Respondents, Lorenzo and Francenia Greene, held a 2014 license for "Fran's Floating Ribs" at North Market Street, in Webster, Florida, having been issued license numbr 7050128. Such licenses are issued and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Agency). At all times material, Respondent's address was 524 North Market Street, Webster, Florida 33597. However, it appeared at hearing that the property and/or business has been sold since the Administrative Complaint was filed. At all times material, John Dancho was employed by the Agency as a Sanitation and Safety Specialist. Mr. Dancho has been an inspector for five years. Prior to that, he worked for a restaurant chain called the "Victoria Station Restaurants" for 11 years. Mr. Dancho has earned an AAS degree in hotel/restaurant management from Paul Smith College and a B.S. in hotel/restaurant management from Florida International University. When Mr. Dancho joined the Agency he was formally trained and standardized in the rules and laws regulating public lodging and food service. Additionally, Mr. Dancho has completed ongoing continuing education training for food service, lodging, and fire certification. Mr. Dancho conducts between 600 to 900 inspections for the Agency each year. On October 25, 2004, Mr. Dancho inspected the premises of Fran's Floating Ribs Restaurant. During the inspection, Mr. Dancho prepared a Food Service Inspection Report setting forth his findings. On that date, Mr. Dancho had observed that there was no proof on the premises of food manager certification and no proof of employee training done by the food manager. He also observed a fire extinguisher with a tag that was out-of-date. He further observed problems with the hot and cold water at the employee hand washing sink and that a light shield was missing from the lights inside the unit. Mr. Dancho informed Respondent, Lorenzo Greene, that the fire extinguisher violation needed correction by November 8, 2004; that the food manager's certification and employee training needed correction by November 25, 2004; and that Respondent had until the next routine inspection to correct the other violations. On January 10, 2005, Mr. Dancho re-inspected Fran's Floating Ribs Restaurant. During his inspection, Mr. Dancho prepared a Call Back/Re-inspection Report, setting forth his findings from the re-inspection. On January 10, 2005, Mr. Dancho observed that some of the violations that were in the warning status from the previous inspection, October 25, 2004, had been corrected, but that other violations had not yet been corrected. The hot water at the hand washing sink and the light shield had been corrected. However, Mr. Dancho observed that the following violations had not been corrected: lack of food manager certification on site; lack of employee training on site; portable extinguisher with an out-of-date tag; and no cold water at the hand washing sink. A critical violation is a violation of the utmost importance which needs immediate correction. A non-critical violation is a violation that is not a critical violation, but one that needs to be corrected over an acceptable period of time, usually thirty (30) days or three (3) months. Mr. Dancho testified that lack of proof of food manager certification is a critical violation, because a food manager must be able to ensure the proper operation, safety and sanitation of the unit. He also must be able to train employees in the proper handling of food procedures, and in sanitation and safety of the unit. On January 10, 2005, Mr. Dancho also observed that there was no proof on site of employee training by the certified food manager. Because the food manager is responsible for everything that goes on in the unit and the employees need to have the knowledge required for proper food handling and sanitation techniques, this, too, was a critical violation. On January 10, 2005, Mr. Dancho also observed a portable fire extinguisher with an out-of-date tag. He testified that this, too, was a critical violation. The Florida Fire Code requires fire extinguishers to be checked annually by a registered or certified technician to ensure that they are functional and will work, if needed. Without an up-to-date tag, it may be logically assumed that the fire extinguisher on the subject property had not been inspected within the current annual cycle. Apparently, Respondent's sister, G. Burgohy, was in charge of the premises and signed as receiving the call-back/re- inspection form from Mr. Dancho. (P-3.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order as follows: Requiring Respondent to pay an administrative penalty in the amount of $500.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date this Order is filed with the Agency clerk, and Further, Respondent shall attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 7th day of July, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 7th day of July, 2006. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 42 Tallahassee, Florida 32399-2202 Geneva Burgohy 557 Northwest 3rd Street Webster, Florida 33597 Lorenzo Greene Fran's Floating Ribs 12 Berry Court Mascotte, Florida 34753 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
