The Issue against Petitioner by terminating him due to his handicap
Findings Of Fact This cause arose because Petitioner wanted to return to work in Respondent-Employer's grocery store after having been off work due to epileptic seizures and treatment therefor in March, 1995. Respondent terminated Petitioner effective April 10, 1995. Petitioner claims to be the victim of an unfair employment practice on the basis of handicap. At least from March 22, 1995 and continuing through the date of formal hearing, Petitioner has suffered from epileptic seizures up to twice a day. During the entire period, Petitioner has remained on medication (Dilantin) for control of these seizures. At formal hearing, Petitioner complained that he must take Dilantin every 4-5 hours, but it sometimes is not effective to control his seizures after 3-4 hours. It is therefore concluded that his epileptic seizures are not under control. Petitioner was hired by Respondent before his handicap manifested itself and was a good worker during the time employed. On December 21, 1993, Respondent hired Petitioner to work as a Meat Cutter. His hours of employment were typically noon to 9:00 or 10:00 p.m., although apparently he worked one shift a week from 7:00 a.m. to 4:00 p.m. Between the hours of 4:00 p.m. and closing, Petitioner was the only Meat Cutter on duty in his grocery store. Meat Cutters are highly skilled tradesmen who are required to be knowledgeable about cuts of meat. In the Respondent's grocery stores they are paid at the highest rate for non-supervisory personnel. Petitioner worked primarily as a part-time apprentice Meat Cutter until July 23, 1994, when his pay rate increased and he was designated a full-time employee. At all times material, Calvin Jenkins was Petitioner's immediate supervisor. As Market Manager, Mr. Jenkins was responsible for overseeing the Meat Department and its employees. At all times material, Ron Funderburk, Store Director, had ultimate supervisory, hiring and firing responsibilities and authority for the grocery store. Respondent qualifies as an "employer" under Chapter 760, Florida Statutes. On or about March 22, 1995, Petitioner experienced a seizure while asleep at home. Thereafter, Petitioner received medical treatment, and Dr. Ayala placed him on Dilantin to control his seizures. Dr. Ayala remains Petitioner's primary treating physician. As a result of his medical condition, Petitioner was totally unable to work for a few weeks immediately after he experienced his first seizure. Respondent gave Petitioner time off and did not fill his position as a Meat Cutter, hoping that he would be able to return to work. Twice during March and April 1995, Petitioner had a friend deliver to Ron Funderburk and/or Calvin Jenkins Dr. Ayala's written restrictions to the affect that Petitioner should not work as a Meat Cutter while on medication and Dr. Ayala's recommendation that Petitioner be allowed to work as a Meat Wrapper. In making that recommendation, Dr. Ayala was unaware of what wrapping meat entails. He has since altered that recommendation. When deposed on July 16, 1996, he testified that he had not had enough information to recommend that Petitioner be hired back as a Meat Wrapper. As of that date, Dr. Ayala felt Petitioner should not be around heavy machinery that poses a risk to him until medication renders him seizure-free for six months. At all times material, and presently, the essential functions and/or bona fide occupational duties of the Employer's Meat Cutters included unloading trucks of meat; slicing, grinding, and cutting meat; "working the case" (arranging the wrapped case goods), servicing customers, and cleaning up. The Employer's Meat Cutters have been, and are, responsible for cutting all the meat in the store and for wrapping most of the meat. They must be able to use and were/are required to use knives, saws, slicers, meat grinders and meat wrapping machines. The saw which is most used to cut meat consists of a "band saw". It relies on a circular blade to cut any bones in the meat. The slicer consists of a saw with a 14-inch circular blade. A Meat Cutter was/is also required to use a meat grinder. Any of these machines would be dangerous to an individual, such as Petitioner, who may be rendered unconscious due to a seizure. Digits, and even limbs, can be automatically drawn into these apparatuses and/or severed. In March or April 1995, when presented with Petitioner's medical restrictions, Ron Funderburk and Calvin Jenkins concluded that Petitioner could no longer function as a Meat Cutter. By Request for Admission 6, Petitioner admitted that, "due to his physician's medical restriction, from April 1995 to the present, Petitioner was not qualified to perform the essential functions of a Meat Cutter." Further, Petitioner testified that he has not been "capable of cutting anything" since March 22, 1995 and that he never told Mr. Funderburk that he wanted to return to his job as a Meat Cutter. Petitioner applied for Social Security Supplemental Security Income benefits on March 13, 1996. On his application, Petitioner claimed he had been disabled since March 1, 1995. He also said that his condition caused him to stop working as of April 10, 1995. Finally, Petitioner stated that he could not use any machinery, knives or work around machines. Several times, he has informed the Social Security Administration that he cannot use knives, or any machines, including a lawn mower. He also stated he cannot walk much, shop, cook, socialize, and/or perform housework, and that his condition is worsening. It is abundantly clear that Petitioner consistently has not been qualified to perform the bona fide qualifications of the Meat Cutter position since March 22, 1995. In March or April 1995, Mr. Funderburk offered to transfer Petitioner to another position. Petitioner responded by asking if the alternative position would pay him at the same rate as he had been earning as a Meat Cutter. The only position available at that time was a Clerk position which paid less than a Meat Cutter position even with no loss of Petitioner's earned seniority. Mr. Funderburk is clear and credible that Petitioner never told him Petitioner would take the Clerk's job at less pay. Also, it is abundantly clear Petitioner did not report to work in that category, and his testimony generally suggests that he had not wanted to work for the lesser salary. Respondent would have had to create a position to employ Petitioner as a cleanup person, but cleanup personnel also are paid less than a Meat Cutter. In hindsight, Petitioner suggested that regardless of whether he ever actually asked Mr. Funderburk for a specific position or not, it was the Employer's duty to search out a job of comparable pay scale which Petitioner could do, such as working in the service case or deli. However, in March and April 1995 there was no job position limited to working in the service case. Petitioner also believes now that he should have been transferred into the position of Stocker or Meat Wrapper, but each of those positions also made less than a Meat Cutter. Also, there is no credible evidence that Petitioner actually requested any accommodation of his handicap and only his self-serving testimony that he requested that he be designated a Meat Wrapper and paid at the higher salary he had previously been paid as a Meat Cutter. It was initially Petitioner's contention that while employed as a Meat Cutter prior to his seizures, he actually had never been required to cut meat. Therefore, Petitioner reasoned, the Employer was obligated to "accommodate" his handicap by paying him at the rate for a Meat Cutter even if, after his seizures began, he was able only to clean up the store and perform the duties of a Meat Wrapper. Contrary to his initial contention, however, Petitioner eventually testified that while employed by this Employer as a Meat Cutter prior to his first seizure he had, indeed, cut meat, mostly chicken; had sliced meat; had ground hamburger; and one day a week, he had to use the automatic wrapping machine. Also, Petitioner failed to credibly show that he had never cut other types of meat before he began to have seizures. In making this finding of fact, every effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth. To that end, Petitioner has been given the benefit of the doubt, but where conflicts exist, the credibility issue has been resolved against Petitioner for the following reasons: Mr. Funderburk hired Petitioner based in part on Petitioner's vocational training and experience as a Meat Cutter. Petitioner's candor and demeanor while testifying that he had never cut meat other than chicken was not that of a wholly credible witness, and he frequently contradicted this statement. Petitioner has made myriad prior statements which are inconsistent and, indeed, contradictory to his denial of cutting meat. Petitioner had filled out a workers' compensation accident report for Respondent on July 21, 1994 asserting that he cut himself with a knife in the course and scope of cutting meat while employed by Respondent-Employer as a Meat Cutter. His supervisor, Mr. Jenkins, observed Petitioner cutting and grinding meat and using all of the equipment associated with the Meat Cutter position. Petitioner informed the federal Social Security Administration that he had used "cutting saw, meat department, knife, grinder for meat, buffing machine, meat slicer, chain saw, Meat Cutter at Harvey's, Bruno's, using all of these tools while there [sic]" Moreover, to believe Petitioner that he never had to cut any meat except chicken during his employment from December 1993 through February 1995 when he was the only Meat Cutter on duty in Respondent's store from 4:00 p.m. to closing would also require believing that in all that period of time no customer every requested a special cut of meat after 4:00 p.m. Common sense precludes finding such a representation by Petitioner to be credible. More to the point is whether Petitioner asked for a Meat Wrapper position, was qualified to wrap meat, or could be accommodated by being assigned solely as a Meat Wrapper. The credible evidence clearly and convincingly demonstrated that at all times material, and presently, Respondent employs several Meat Cutters and only one Meat Wrapper, Ms. Toni Albert. Ms. Albert has occupied this sole Meat Wrapper position since 1993. The sole Meat Wrapper position has never been vacant. Therefore, it was never available to Petitioner. Respondent has phased the Meat Wrapper position out of most of its stores, and has made the corporate decision that if Ms. Albert retires or quits, she will not be replaced and her position of Meat Wrapper will be eliminated. At all times material, and presently, Respondent's Meat Cutters could/can, and did/do wrap meat as well as cut it. Respondent-Employer's Meat Cutters are paid at a higher scale than is its sole Meat Wrapper. Petitioner was earning $7.50 per hour as a Meat Cutter at night when he was let go. If the Employer had made Petitioner a Meat Wrapper with his seniority in April 1995, Petitioner would have earned only $5.75 per hour, and would have had to consistently work the 7:00 a.m. to 4:00 p.m. shift. A bona fide qualification of both Respondent's Meat Cutters and of its sole Meat Wrapper, Ms. Albert, requires them to be able to use Respondent's machinery to wrap meat. One of Respondent's machines which wraps meat is an automatic meat wrapper. This machine has moving parts and conveyer wheels or rollers. In the vernacular, it qualifies as "heavy machinery," which is precluded by Petitioner's use of medication and frequent seizures. (See Finding of Fact 10) It is capable of drawing Petitioner's hands into it if he fell unconscious. (See Finding of Fact 2) Although the automatic meat wrapper has a safety device, it requires pushing a button to activate it. The device would not activate just because an employee, such as Petitioner, suddenly became unconscious. The automatic meat wrapper is located in the Meat Department as are all the other Meat Cutter tools and machinery which are also dangerous to Petitioner. (See Finding of Fact 16) Therefore, Petitioner has not demonstrated that he has been capable and qualified to perform the bona fide occupational qualifications of a Meat Cutter or a Meat Wrapper at any time since March 22, 1995. Nor has Petitioner clearly stated that he would accept the Meat Wrapper's reduced pay rate. At formal hearing and by his post-hearing proposal, Petitioner expressed himself as not wanting his Meat Cutter job back but wanting some money because of the time he has been off work. On his original December 2, 1993 application for employment by Respondent, Petitioner represented that he had never been convicted of a felony. In fact, Petitioner has been convicted of at least one felony. Petitioner knew that he had lied on his employment application, but he tried to justify his answer because Respondent did not check his background. Respondent first became aware that Petitioner had falsified his application during the Petitioner's deposition on January 9, 1996. While Respondent sometimes hires persons who admit felony convictions, Respondent maintains a policy of terminating employees who lie on their employment applications. Accordingly, Petitioner would not qualify as a "rehire" even if he were now able to return to work for the Respondent-Employer in any capacity. Within a month of Petitioner's separation from Respondent-Employer he began working for Harvey's, but he only worked one month. Rather than search out other employment so as to mitigate his salary loss, Petitioner relied on unemployment compensation and sought federal Social Security Supplemental Security Income benefits. It was not until after Petitioner applied for these benefits, which were denied, that Petitioner decided to "try to go back to work." At the time of formal hearing, Petitioner was employed doing custodial work. The record does not reflect what functions he was actually performing or his rate of pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Relations Commission enter a final order dismissing the Petition for Relief and its underlying claim/complaint of discrimination by an unfair employment practice. RECOMMENDED this 6th day of June, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997. COPIES FURNISHED: Deborah A. Mattison, Esquire Robert F. Childs, Esquire GORDON, SILBERMAN, WIGGINS & CHILDS, P.A. 1400 South Trust Tower Birmingham, AL 35203 Marvin Young 2114 Saxon Street Tallahassee, FL 32304 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Tallahassee, FL 32303 Dana Baird, Esquire Human Relations Commission 325 John Knox Road Tallahassee, FL 32303
The Issue This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of alleged sanitary violations described in an administrative complaint.
Findings Of Fact At all times material to this case, the Respondent has been licensed as a permanent food service facility, having been issued license number 2318478. The Respondent's last known business address is 9796 S.W. 24th Street, Miami, Florida 33165. On March 17, 2004, the Respondent's licensed premises were inspected by Pedro Ynigo, an inspector employed by the Division of Hotels and Restaurants. During the course of his inspection on March 17, 2004, Inspector Ynigo observed more than thirty fresh mice droppings on the shelves of the second floor storage room. Rodent droppings (including mice droppings) are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division of Hotels and Restaurants at Florida Administrative Code Chapter 61C. Food Code Rule 6-501.111 requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered in this case imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. 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 2nd day of February, 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 Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Ms. Madelaine Galindo Odnilag Incorporated 9796 Southwest 24 Street Miami, Florida 33165
Findings Of Fact From late 1981 to mid-1983, Respondent advertised its meat products in the Pensacola newspaper. These ads offered large quantities of beef for sale on installment plans. The ads contain intentionally confusing messages with the large print suggesting higher quality meat or lower prices than is actually offered. For example, in some of the ads the "special" giving the weight in pounds and price for four payments is immediately adjacent to language such as "plus this free. . . bonus." The description of the "special" is typically placed over or immediately adjacent to a drawing or representation of a steer. A careful reading of the fine print reveals that the "bonus" is actually included within the total weight which at first appears to be the representation of the amount of beef that will be received. The "bonus" consists not of beef, but of other types of meat. In November 1981, Leslie and Bernice Shelby responded to an advertisement offering 200 to 300 pounds of beef for approximately $150. When they attempted to make this purchase, they were dissuaded from doing so by the salesman who told them the advertised meat was of poor quality. He then questioned them as to their income and advised them they could afford better quality meat. They eventually purchased about 500 pounds of meat for 12 monthly installments totalling over $1,600. The Shelby's felt they were hurried into signing an agreement and didn't know what they were getting. Mrs. Shelby was especially upset over a $35 insurance charge that she didn't understand and didn't realize would be included in the contract price.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner find probable cause to initiate judicial proceedings against Hammond eat Market pursuant to Subsection 501.207(1), Florida Statutes (1983). DONE and ENTERED this 16th day of March, 1984, 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 16th day of March, 1984. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Ms. Connie Hammond Hammond Meat Market 4708 North "W" Street Pensacola, Florida 32501
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint, dated January 25, 2016; and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant doing business as Hook Fish and Chicken, located at 1830 North Myrtle Avenue, Jacksonville, Florida 32209, holding Permanent Food Service license number 2614999. Linda C. Sutherland is employed by the Division as a senior sanitation safety specialist. Inspector Sutherland has worked for the Division for approximately four years, serving approximately 13 months as a senior inspector and three years as an inspector. She had worked in the food industry for about 30 years before joining the Division. Inspector Sutherland has received training on the U.S. Food and Drug Administration’s Food Code (“Food Code”), as adopted by reference in Florida Administrative Code Rule 61C-1.001, and training on the Florida laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Sutherland is also a certified food manager and performs more than 1,000 inspections each year. On January 20, 2016, Inspector Sutherland performed an unannounced routine food service inspection of Respondent’s premises. Inspector Sutherland prepared and signed an inspection report setting forth the violations she observed during her inspection. She provided a copy of the inspection report to Ahmed Muhamed, the manager on duty. The inspection report notified Respondent that the violations must be corrected by January 21, 2016. During the January 20, 2016, inspection, Inspector Sutherland observed approximately twenty-three (23) dead roaches throughout Respondent’s establishment, seventeen (17) live roaches on a wall above Respondent’s water heater and three- compartment sink in the kitchen area, and three (3) live roaches near a pipe at the bottom of the water heater. Because numerous live roaches were seen on the premises, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency Order was issued on January 20, 2016, the same date as the inspection. On January 21, 2016, Inspector Sutherland performed two separate callback inspections of Respondent’s premises, one commencing at 11:07 a.m. and one commencing at 3:39 p.m. During both callback inspections, Inspector Sutherland prepared and signed inspection reports indicating that the violations noted during the previous day’s inspection had not been corrected. During the first callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches in the kitchen area near the water heater and approximately twelve (12) live roaches on a wall near the three-compartment sink in back of the kitchen area. During the second callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches near the water heater, one (1) live roach on the wall behind the three-compartment sink, and one (1) live roach on the floor of Respondent’s back storage area. Inspector Sutherland notified Respondent about the violations found during both callback inspections on January 21, 2016, and informed Respondent that the violations must be corrected by January 22, 2016. The manager on duty, Ahmed Mohamed, signed for both of Inspector Sutherland’s reports on January 21, 2016, acknowledging receipt on behalf of Respondent. On January 22, 2016, Inspector Sutherland performed an additional callback inspection of Respondent’s premises. During the inspection, Inspector Sutherland noted that some, but not all, of the violations noted on the January 20, 2016, and January 21, 2016, inspection reports had been corrected. Inspector Sutherland observed one live roach on the shelf in the back prep area and three live roaches in the left door of Respondent’s three-door cooler. Rule 61C-1.001 defines “basic item” as “[a]n item defined in the Food Code as a Core Item.” Food Code Rule 1- 201.10(B) defines “core item” as “a provision in this Code that is not designated as a priority item or a priority foundation item.” “Priority” and “priority foundation” items are identified in the Food Code by way of a superscript; therefore, any provision of the Food Code that does not have a superscript is a “core item.” The first violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of numerous dead roaches throughout Respondent’s premises during the January 20 and 21, 2016, inspections. Food Code Rule 6- 501.112 defines this as a core item, which makes it a “basic item” for purposes of discipline by the Division. The second violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of live roaches throughout Respondent’s premises during the January 20, 21, and 22, 2016, inspections. The pervasive presence of live vermin was a violation significant enough to require an Order of Emergency Suspension of License and Closure. Section 509.221(7) requires the operator of a licensed food service establishment to take “effective measures” to protect against the entrance and breeding of vermin. Respondent was issued a prior Order of Emergency Suspension of License and Closure during the 12 months preceding the Administrative Complaint at issue in this proceeding. The Order of Emergency Suspension of License and Closure in Division case number 2015-032315 was filed against Respondent on July 30, 2015. Live and dead roaches were found on the premises in the inspections that led to this Order of Emergency Suspension of License and Closure. Respondent also had a prior disciplinary final order for operating without a license entered within the 24 months preceding the Administrative Complaint at issue in this proceeding. The final order in Division case number 2015-032598 was filed on December 21, 2015. The final order noted that live roaches were observed during the initial inspection and on a callback inspection the following day.
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 $1,500.00, payable under terms and conditions deemed appropriate, and a two-day suspension of Petitioner’s license. DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 12th day of September, 2016.
The Issue The issues are whether Respondent, China Gate, committed the alleged violations set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this case, Respondent has been licensed as a permanent food service facility, having been issued License No. 3915595. Respondent's business address and mailing address is 12049 Anderson Road, Tampa, Florida 33624. On December 1, 2004, Inspector Decker conducted a routine inspection of Respondent's licensed premises. During the course of the inspection, Inspector Decker observed one adult live German roach on the coffin freezer and approximately 20 live baby German roaches on the food storage shelves. Inspector Decker also observed "well over 300 dead German roaches on floors, under equipment, and on food storage shelves in [the] kitchen area." The presence of the live German roaches was evidence of roach infestation in Respondent's food service facility. Because roaches and other pests are capable of transmitting disease to man by contaminating food and food-contact surfaces, this is a critical violation. A critical violation is a violation that, if not corrected, could cause food-borne illness. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division at Florida Administrative Code Chapter 61C. Rule 6-501.111 of the Food Code requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests." On December 1, 2004, after the routine inspection and based on the results thereof, Inspector Decker hand-delivered an Emergency Order of Suspension of License and Closure (Emergency Order). Pursuant to the Emergency Order, Respondent's food service establishment was closed until a determination was made that the violations were corrected. Respondent was given until the morning of December 2, 2004, to correct the violations. On December 2, 2004, Inspector Decker conducted a follow-up inspection of Respondent's food service establishment and found that the violations described above had been corrected. On or about December 7, 2004, the Division issued an Administrative Complaint seeking to impose administrative fines and other penalties for the violations revealed during the December 1, 2004, routine inspection. In December 2003, Respondent's food service establishment was cited for the same violation, roach infestation, found in this case. As a result of the violation in December 2003, Respondent's food service establishment was also closed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order that finds that Respondent, China Gate, violated Rule 6-501.111 of the Food Code, imposes an administrative fine of $1,000, and requires Respondent to attend an educational course sponsored by the Hospitality Education Program. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of October, 2005. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Zoey Sal Empress Inc.-China Gate 12049 Anderson Road Tampa, Florida 33624 Geoff Luebkemann, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 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
The Issue Whether Negril Cuisine, Inc., d/b/a Banana Hut (Respondent), committed the offenses alleged in the Administrative Complaint dated September 30, 2014, and if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Negril Cuisine, Inc., d/b/a Banana Hut (Respondent), has operated a restaurant known as the Banana Hut, which is located at 13740 Southwest 152nd Street, Miami, Florida (the subject premises). Respondent is subject to the regulation of the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner). Respondent is required to comply with all relevant provisions set forth in chapter 509, Florida Statutes; Florida Administrative Code Chapter 61C, and the Food Code.2/ Respondent’s license number is 2329056. There was no evidence that Respondent’s license has been previously disciplined by Petitioner. At all times relevant to this proceeding, Michael George Brandon was Respondent’s owner. Douglas Morgadanes is employed by Petitioner as a senior sanitation and safety specialist. Mr. Morgadanes is experienced and trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. Mr. Morgadanes has been a sanitation and safety specialist employed by Petitioner for approximately 18 years. He has been designated as a senior sanitation and safety specialist for the last nine years. Mr. Morgadanes typically performs between 700 and 800 restaurant inspections each year. On September 23, 2014, beginning at 9:37 a.m., Mr. Morgadanes performed a routine inspection of the subject premises (the initial inspection). The Banana Hut was open for business during the initial inspection. As part of the initial inspection, Mr. Morgadanes prepared a Food Service Inspection Report (Petitioner’s Exhibit 2) setting forth his findings. Mr. Morgadanes prepared this report utilizing an iPad while at the subject premises. Mr. Morgadanes testified, credibly, that he asked some unidentified person from the establishment to accompany him while he performed the initial inspection, but no one accompanied him. Garth Vassell is a cook at the subject premises. Mr. Vassell was on the premises when Mr. Morgadanes conducted the initial inspection, but he was not asked by Mr. Morgadanes to accompany him during that inspection. During the course of the initial inspection, Mr. Morgadanes observed approximately ten live roaches in a storage closet and ten or more live roaches in the kitchen. After the inspection, Mr. Morgadanes showed Mr. Vassell the areas where he had observed the live roaches. Mr. Morgadanes also showed Mr. Vassell a dead roach. Mr. Vassell did not observe live roaches. Mr. Morgadanes telephoned his office and notified his superiors of his observations. Before Mr. Morgadanes left the premises, Petitioner entered an emergency order that suspended Respondent’s licensure and closed the subject premises (the emergency order). The emergency order found that “The risk of food borne illness from a vermin infestation constitutes an immediate serious threat to public health and safety.” When Mr. Brandon arrived at the subject premises, Mr. Morgadanes had completed his initial inspection and was affixing a sign to the entry door of the subject premises that stated that the restaurant was closed. Mr. Morgadanes showed Mr. Brandon the areas where he observed the live roaches and reviewed his inspection report (Petitioner’s Exhibit 2) with Mr. Brandon. Mr. Brandon signed the inspection report at approximately 11:30 a.m. Mr. Morgadanes left the premises shortly thereafter. At the request of Mr. Brandon, a callback inspection was conducted by Mr. Morgadanes and Zuleima Chow beginning at 3:14 p.m., on the afternoon of the initial inspection (September 23, 2014). No evidence of roaches was observed during the callback inspection.3/ As a result of the callback inspection, Petitioner immediately vacated its emergency order. On September 30, 2014, Petitioner filed the Administrative Complaint that initiated this proceeding. Based on Mr. Morgadanes’ observing live roaches during his initial inspection, Petitioner charged that Respondent violated section 509.221(7), which provides as follows: (7) The operator of any establishment licensed under this chapter shall take effective measures to protect the establishment against the entrance and the breeding on the premises of all vermin. Any room in such establishment infested with such vermin shall be fumigated, disinfected, renovated, or other corrective action taken until the vermin are exterminated. Petitioner classified the alleged violation as a “high priority” violation. A “high priority item” is, pursuant to rule 61C- 1.001(17), an item defined in the Food Code as a “Priority Item.” Rule 61C-1.005(5)(a) defines a high priority violation as follows: (a) “High priority violation” means a violation of a high priority item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., determined by the division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of this rule. The presence in a restaurant of vermin such as roaches presents a risk to the public because such vermin can carry diseases that can be transmitted to patrons who consume food that has been contaminated by the vermin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is FURTHER RECOMMENDED that the final order find Negril Cuisine, Inc., d/b/a Banana Hut guilty of violating section 509.221(7), Florida Statutes, as alleged in the Administrative Complaint and impose an administrative fine in the amount of $500.00 for that violation. DONE AND ENTERED this 10th day of March, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2015.
