Findings Of Fact The Petitioner, Thriftway of Indiantown, is a retail food store located at 15488 Southwest Warfield Boulevard, Indiantown, Florida. It has a mailing address of Post Office Box 188, Indiantown, Florida 34956. The Department of Agriculture and Consumer Services is charged with the administration and enforcement of Chapter 500, Florida Statutes, along with rules promulgated thereunder relating to food safety and the selling of food to the consuming public. Department food safety inspectors conducted food safety inspections at Thriftway of Indiantown's place of business on the following dates during 1995: April 4 and 19, May 4 and 18, and June 1 and 15. On each of the five inspections from April 4 through June 1, the Thriftway of Indiantown received an overall rating of "poor." These ratings resulted from the fact that on each of these five occasions the inspector observed unsanitary conditions that constituted violations of applicable statutory and rule provisions. On each of the five inspections from April 4 through June 1, most of the violations were not critical violations. Only two critical violations were noted during the subject five inspections. One critical violation was the presence of rodent droppings. The other critical violation was the presence of live roaches. Rodent droppings were observed on all five of the subject inspections. Live roaches were observed on four of the five subject inspections. The last inspection of the Thriftway of Indiantown was on June 15, 1995. On that date there were no rodent droppings, no roaches, and no other critical violations. On June 15, 1995, there were only two minor problems, which were promptly corrected, and the store received an overall rating of "fair." During the period from the "poor" rating on April 4, 1995, until the "fair" rating on June 15, 1995, the manager and owners of Thriftway of Indiantown made diligent and industrious efforts to correct all of the violations noted on all of the inspection reports from April 4, 1995, through June 15, 1995. They made continuous progress towards correcting all of the non- critical violations, but in spite of their best efforts over several weeks they were unable to resolve the rodent and roach problems until early June. During April and May of 1995 the manager and owners of Thriftway of Indiantown did everything they could think of to resolve the rodent and roach problem. They called their pest control service and had extra pest control treatments applied. They searched in vain for rodent nests. They moved stock and cleaned everywhere they thought there might be rodents. They set out mouse traps and glue strips. When the existing pest control service appeared to be unable to solve the rodent and roach problems, the manager and owners of Thriftway of Indiantown began looking for another pest control service. After contacting and negotiating with several pest control companies, on May 31, 1995, the owners of Thriftway of Indiantown signed a contract with a new pest control company. The new pest control company was apparently successful, because when the store was inspected on June 15, 1995, the inspector did not see any rodent droppings or any roaches. On the dates of the five inspections from April 4, 1995, through June 1, 1995, Thriftway of Indiantown held food items in an unsanitary environment and offered such food for sale to the consuming public.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 4th day of April 1996 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1996.
Findings Of Fact The Parties Petitioner, Richard J. Campbell, d/b/a Granny's Donut Shop, was, at all times material hereto, engaged in the business of manufacturing, processing, packing, holding or selling food at retail. Petitioner held food permit number 68877 issued by the Department of Agriculture and Consumer Services (Department), for the premises located at 306 Northeast Eight Street, Homestead, Florida. The Department is charged with the administration and enforcement of Chapter 500, Florida Statutes, including the rules promulgated thereunder, relating to food safety and the selling of food to the consuming public. The Violations Department food safety inspectors conducted food safety inspections at Granny's Donut Shop on December 12, 1994, December 27, 1994, and January 12, 1995. On each of the three inspections, Granny's Donut Shop received an overall rating of "poor." These ratings resulted from the fact that on each of the three inspections the inspector observed multiple unsanitary conditions that constituted violations of applicable statutory and rule provisions; however, most of the violations were not critical violations. The Department's initial inspection of December 9, 1994, resulted in an overall rating of "poor" based on a finding of 16 sanitary violations; however, only one violation, the presence of insect activity, was a critical violation. The Department reinspection of December 27, 1994, again resulted in an overall rating of "poor" based on a finding of 20 sanitary violations. Again, only one violation, the storage of toxic items (cleaning supplies) on a shelf with food products, was a critical item, and the previous critical violation had been corrected. While not critical, approximately seven of the violations noted on the first inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, some soiled linen was stored with food, and the coolers were dirty. The Department's reinspection of January 12, 1995, again resulted in an overall rating of "poor" based on a finding of 18 sanitary violations; however, only one violation, the storage of toxic items (cleaning supplies) above a three-compartment sink, was noted as a critical item, and the previous critical violation had been corrected. Again, while not critical, approximately seven of the violations noted on the previous inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, the wall over the handwashing sink had holes in it, and some soiled linen was stored on a work table. Finally, during the course of the January 12, 1995, inspection, the Department issued a stop use order for a mixer that was found "dirty with old product residue [and] build-up on both food [and] non-food contact surfaces," which it deemed an immediate serious danger to the public health. The Penalty At hearing, the Department offered proof that it is its policy to recommend an administrative fine against an establishment which has received two "poor" ratings in a row and on the third inspection does not achieve an improved rating of "fair" or "good." The Department further observed that under the provisions of Section 500.121(1), Florida Statutes, it is authorized to impose an administrative fine not excededing $5,000 against a food establishment that has violated Chapter 500, Florida Statutes; however, the Department did not offer any proof as to what penalties, if any, it had imposed in prior similar cases, and did not submit a proposed recommended order advocating the assessment of an administrative fine in any particular amount. Compared with the paucity of proof offered by the Department concerning an appropriate fine, petitioner offered proof, which is credited, that Granny's Donut Shop was a small, family owned business, that the demands of the business were taxing, that the business is now closed, and that the business took a severe financial toll on petitioner. While not excusing sanitary violations that could pose a threat to the consuming public, such factors, under the circumstances of this case, provide useful evidence in assessing a penalty that will deter others from similar violations, yet not be unduly harsh toward petitioner's violations. Considering such mitigating factors, as well as the nature of the violations established, an administrative fine in the amount of five hundred dollars ($500.00) is deemed appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding petitioner violated the provisions of Chapter 500, Florida Statutes, and imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 24th day of April 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1996.
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
