The Issue The issue is whether Respondent is guilty of various violations of Florida statutes and rules in the operation of his restaurant and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds license control number 46-04280R, which is in effect from December 1, 1999, through December 1, 2000. The license authorizes Respondent to operate a restaurant known as Speedy Two Shop at 2957 Martin L. King Boulevard in Fort Myers. Petitioner has previously disciplined Respondent. By Stipulation and Consent Order filed May 22, 1997, the parties agreed that Respondent would pay an administrative fine of $1100 and correct all violations by April 30, 1997. The Stipulation and Consent Order incorporates the findings of inspections on February 25 and March 7, 1997. These inspections uncovered seven violations, including missing hood filters over the cooking surface, heavy grease accumulations on the inside and outside of the hood, a fire extinguisher bearing an expired tag (May 1995), and operation without a license. In Petitioner's District 7, which includes Fort Myers, the licensing year for restaurants runs from December 1 to December 1. Respondent's relevant licensing history includes annual licenses for the periods ending December 1, 1997; December 1, 1998; and December 1, 1999. However, Respondent has operated his restaurant for substantial periods without a license. Respondent renewed his license ending in 1997 after four months of operating without a license, his license ending in 1998 after 17 months of operating without a license, his license ending in 1999 after six and one- half months of operating without a license, and his license ending in 2000 after one and one-half months of operating without a license. For each of these late renewals, Respondent paid a $100 delinquent fee. Petitioner conducts periodic inspections of restaurants. These inspections cover a broad range of health and safety conditions. Certain violations, as marked on the inspection forms, "are of critical concern and must be corrected immediately." This recommended order refers to such violations as "Critical Violations." On January 22, 1998, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered seven Critical Violations. Two Critical Violations involved Respondent's compliance with licensing and training requirements. Respondent was operating the restaurant without a license, and no employee had a food manager's card, which evidences the successful completion of coursework and a test in managing a restaurant. The report warns that if Respondent did not renew his license before February 1, 1998, Petitioner would impose a fine and possibly revoke his license. The report requires Respondent to ensure that an employee obtains a food manager's card by March 3, 1998. Two Critical Violations involved Respondent's noncompliance with fire safety requirements. The fire extinguisher and built-in fire suppression system both bore outdated tags. The former tag expired in April 1997, and the latter tag expired in May 1997. The remaining three Critical Violations were that the restaurant lacked a filter in his hood over the stove, ceramic tiles over the three-compartment sink, and sanitizing solution in the bucket that was supposed to contain sanitizing solution. Respondent's employee explained that the hood filters were being cleaned, but apparently offered no explanation for the other two Critical Violations. Despite the specific warnings concerning the licensing and training violations, the January 1998 inspection report requires only that Respondent correct the violations by the next routine inspection. On March 26, 1998, Petitioner's inspector conducted an reinspection of Respondent's restaurant. The inspection uncovered the same Critical Violations, except for the sanitizing solution. The report states that Respondent must come to Petitioner's office in the next seven days to renew his license. On April 2, 1998, Petitioner served upon Respondent an Administrative Complaint alleging that, on January 1, 1998, Respondent was operating without a license. Neither this nor any subsequent charging document cites any of the other six Critical Violations found in the January 22, 1998, inspection as bases for discipline, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On June 30, 2000--over two years after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to the Division of Administrative Hearings (DOAH) for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2694. On April 29, 1998, Petitioner's inspector conducted another reinspection. Upon identifying himself to Respondent's employee, the employee denied the inspector access to the premises and told him to return at 2:00 PM. The inspector replied that the reinspection would take only five minutes and that he could not return at 2:00 PM, but the employee continued to deny the inspector entry. On May 12, 1998, Petitioner's inspector conducted another reinspection and found the same seven Critical Violations present during the January 1998 inspection. New Critical Violations were the presence of one "small mouse and roaches" under the three-compartment sink and the presence of cooked sausage patties and links with an internal temperature too low to prevent the proliferation of bacteria. As for the food manager's card, Respondent told the inspector that he had left it at home. The report warns that Respondent must correct the violations by May 18, 2000, 8:00 AM. On September 29, 1998, Petitioner served upon Respondent a Notice to Show Cause alleging the violations found during the inspections of March 26, April 29, and May 12, 1998. On June 30, 2000--one year and nine months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2697. On July 31, 1998, Petitioner's inspector conducted another reinspection and found five of the same Critical Violations: operating without a license, no employee with a food manager's card, fire suppression system bearing an outdated tag, ceramic tile missing over the three-compartment sink, and heavy grease accumulation on the hood filters, which had been reinstalled. Petitioner never cited these five Critical Violations in any charging document, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On October 2, 1998, Petitioner's inspector conducted an inspection and found four of the original Critical Violations: no license, no employee with a food manager's card, no current tag on the fire suppression system, and no ceramic tile over the sink. Although the fire extinguisher was presumably current, it was improperly placed on the floor. Other Critical Violations included the storage of sausage at the improperly warm temperature of 51 degrees, the absence of a thermometer in the home-style refrigerator, the presence of rodent feces on the floor, the absence of working emergency lights, the absence of a catch pan in the hood system, a broken self-closer on the side door, a clogged hand sink, an extension cord serving a toaster, and the evident expansion of the restaurant without an approved plan. The report gives Respondent until October 9, 1998, at 11:00 AM to correct the violations. On October 12, 1998, Petitioner's inspector conducted a reinspection and found all of the Critical Violations cited in the preceding paragraph still uncorrected. On October 20, 1998, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of October 2 and 12, 1998. On June 30, 2000--one year and eight months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2695. For some reason, Petitioner neither prosecuted the pending charges nor conducted repeated inspections for several months after October 1998 inspections and Administrative Complaint. The next inspection of Respondent's restaurant took place on April 30, 1999. Despite the six and one-half months that Petitioner effectively gave Respondent to correct the numerous Critical Violations cited in the October 12, 1998, inspection, Respondent continued to violate many of the same provisions for which he had been cited throughout nearly all of 1998. The inspection report discloses that, again, Respondent was operating without a license. The report notes that he lacked a license for the licensing years ending in 1998 and 1999. One of Petitioner's inspectors testified that Respondent had been making progress on the licensing issue. However, the implication that Respondent was unable to pay the $190 licensing fee (usually accompanied by a $100 delinquent fee) is quietly rebutted by the notation, also in the April 30, 1999, report, that Respondent had completed the expansion project--still, without the required plan review. Again, no employee at the restaurant had a food manager's card. Again, the fire suppression system was in violation--this time because the indicator revealed that it needed to be recharged. Again, the hood filters were missing above the cooking surface. Again, the hand sink was inoperative- -this time, it was not only clogged, but it also lacked hot water. Again, emergency lighting was inoperative. Again, the ceramic tile was missing over the three-compartment sink. Again, food was maintained too warm in the refrigerator--this time, chicken was at 69 degrees. A new Critical Violation was the exposure of live electrical lines and insulation. The April 1999 inspection report gives Respondent until May 14, 1999, at 11:00 AM to correct the violations. On May 14, 1999, Petitioner's inspector conducted a reinspection and found that Respondent still had not obtained a license for the licensing year ending in 1999, still lacked an employee with a food manager's card, still had not obtained approval of its expansion plan, still lacked ceramic tile over the three-compartment sink, still had a clogged hand sink without hot water, still lacked working emergency lights, still tolerated exposed electrical line and insulation, and still lacked hood filters above the cooking surface. On June 2, 1999, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of April 20 and May 14, 1999. On June 30, 2000--one year and one month after issuing the Administrative Complaint-- Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2696. Over a period of 16 months, Petitioner conducted eight inspections of Respondent's restaurant. On what would have been a ninth inspection, one of Respondent's employees denied access to the inspector. On each of these eight inspections, Respondent was operating without a license, lacked an employee with a food manager's card, and lacked ceramic tile over the three- compartment sink. On seven of these eight inspections, the fire suppression system was expired or discharged, and the hood filter was missing or excessive grease had accumulated on the filter or the liner. On three of these eight inspections, the fire extinguisher was outdated, and, on a fourth inspection, it was improperly stored on the floor. On three of these eight inspections, sausage or chicken was at improper temperatures--the 86 degrees at which sausage was served on one occasion was only 17 degrees warmer than the 69 degrees at which chicken was stored on another occasion. On three of these eight inspections, the hand sink was unusable because it was clogged or lacked hot water, the emergency lights did not work, and restaurant expansion was taking place or had taken place without review or approval of the plans. On two of these eight inspections, the inspector saw signs of rodents in the kitchen--one time actually seeing a small mouse. On two of these eight inspections, exposed electrical lines and insulation were present in the kitchen. Petitioner has proved by clear and convincing evidence that Respondent committed all of the cited violations. Uncorrected violations over 16 months amount to more than a failure to take advantage of the numerous opportunities that Petitioner gave Respondent to bring his restaurant into compliance. These uncorrected violations constitute a refusal to comply with the basic requirements ensuring the health and safety of the public. The penalty must weigh, among other things, Respondent's blatant disregard of fundamental requirements in licensing, training, and fire and food safety; Petitioner's demonstrated lack of diligence in enforcing Respondent's compliance with these requirements; and the peril posed by these failures upon the public health and safety.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order revoking Respondent's license. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 25th day of October, 2000. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurant Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gail Hoge, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angelo E. Ruth 2774 Blake Street Fort Myers, Florida 33916
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated July 26, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See § 509.032, Fla. Stat. The Coffee Salom Tropical is a food service establishment licensed and regulated by the Division. Jorge Gandolff, an inspector employed by the Division, inspected the premises of Coffee Salom Tropical on May 18, 2004, and prepared a Food Service Inspection Report setting forth his findings. He noted in the report that he had observed a number of violations of the Food Code during the May 18, 2004, inspection. Mr. Gandolff went over the results of the inspection with Pilar Cruz, an owner of Coffee Salom Tropical, and he informed her that he would conduct a re-inspection on June 18, 2004. Mr. Gandolff conducted the re-inspection of Coffee Salom Tropical on July 15, 2004, and completed a Callback Inspection Report in which he noted that Coffee Salom Tropical was in compliance with all except five of the violations noted in the Food Service Inspection Report dated May 18, 2004. The five uncorrected violations Mr. Gandolff observed during the July 15, 2004, re-inspection were (1) "potentially hazardous food thawed in an improper manner"; (2) "no chemical test kit provided when using chemical sanitizer at three compartment sinks"; (3) "plumbing improperly installed, coffee machine draining into handsink"; (4) "manager lacking proof of Food Manager Certification"; and (5) "employee training provided by unapproved provider, training provided by a non certified food manager." After the inspection on May 18, 2004, Aracely Gonzalez, the secretary of the corporation that owns Coffee Salom Tropical, and her brother attended classes required as a prerequisite for taking the test for food manager certification. Ms. Gonzalez contacted a private testing company and arranged to take the test on July 21, 2004. Ms. Gonzalez passed the test and was issued her food manager certification.
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 Coffee Salom Tropical violated Food Code Rule 4-302.14; Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) and (4), and imposing a fine in the amount of $2,500.00. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 25th day of February, 2005.
The Issue The issues are whether Respondent is guilty of certain violations of the Food Code, and if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondent was licensed and regulated by Petitioner. Respondent operated under License No. 20-00805-R, in a leased facility in Green Coves Springs, Florida. On December 26, 2003, Daniel Fulton, Petitioner's Senior Sanitation and Safety Specialist, performed a routine inspection of Respondent's premises. During the inspection, Mr. Fulton prepared a Food Service Inspection Report (FSIR) setting forth his findings. Mr. Fulton gave Respondent's manager a copy of the report and explained each finding as a citation/violation. On January 27, 2004, Mr. Fulton re-inspected Respondent's premises. During the re-inspection, Mr. Fulton prepared a Callback Inspection Report, setting forth his findings. Based on his observations, Mr. Fulton listed citations on the Callback Inspection Report that had not been corrected after the December 2003 inspection. According to the Callback Inspection Report, the gas equipment in Respondent's pit area still did not have a fire suppression system over it. Typically, this would constitute a critical violation. However, during the hearing, Respondent provided evidence that the Clay County Fire Inspector considered the current configuration of the hood exhaust system to be acceptable to the Clay County Department of Public Safety. Petitioner's Proposed Recommended Order indicates that it has withdrawn the allegation that Respondent violated the National Fire Protection Act of 1996. On January 27, 2004, Mr. Fulton observed that an outside cooker was not properly enclosed, creating a critical violation. The walls that enclosed Respondent's cooker were not at least four feet high. The area was not properly screened between the existing walls and the roof. In fact, the roof did not cover part of the area where the cooker was located. On January 27, 2004, Mr. Fulton observed that a faucet or hose bib did not have a back-flow prevention device. The lack of a back-flow prevention device created a critical violation. On January 27, 2004, Mr. Fulton observed that there was a black substance on the interior of an ice machine's lid. The December 2003 FSIR did not list this citation as a critical concern that must be corrected immediately. However, Mr. Fulton provided persuasive testimony that ice is consumable and that any foreign black substance in the interior of an ice machine constituted a critical violation. During the December 2003 inspection, Mr. Fulton cited Respondent for not having adequate sneeze protection over the soup pot on the buffet bar. Simply placing a lid on the crock pot was not sufficient to provide that protection when customers removed the lid. After the December 2003 inspection, Respondent decided to adjust the height of the crock pot to provide more sneeze protection. In making the adjustments, Respondent was careful not to let the soup become inaccessible for children and disabled customers in wheelchairs. On January 27, 2004, Mr. Fulton observed that the crock pot containing soup at the buffet bar continued to have inadequate sneeze protection for a person of average height, approximately five feet and six inches. The sneeze protection over the crock pot was not properly adjusted until Mr. Fulton conducted a third inspection in October 2004. The lack of adequate sneeze protection did not constitute a critical violation. On January 27, 2004, Mr. Fulton observed that the inside light of a reach-in cooler was not operational. Respondent ordered the replacement light after the December 2003 inspection, but had not received it at the time of the callback inspection in January 2004. This was not a critical violation. Respondent was aware of all of the above-referenced violations after the December 2003 inspection. Respondent had not corrected them at the time of the January 2004 inspection. In June 2004, Elizabeth Tillman, one of Respondent's owners took over Respondent's day-to-day management. By the time that Mr. Fulton inspected the premises in October 2004, all violations had been corrected except for violations that required building construction by a new owner of the leased premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative penalty in the amount of $1,000.00. DONE AND ENTERED this 9th day of March, 20005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 9th day of March, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Grant Gibson, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Elizabeth and Ronald Tillman 505 North Orange Avenue Green Cove Springs, Florida 32043 Geoff Luebkemann, Director Department of Business and Professional Regulation Division of Hotel and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
