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 At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint dated August 26, 2008, 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.1 At all times material to this case, Respondent was a restaurant located at 2911 West 39th Street, Orlando, Florida 32839, holding Permanent Food Service license number 5810777. On May 20, 2008, Andrea Piel, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. Ms. Piel prepared and signed an inspection report setting forth the violations she observed during her inspection. Ms. Piel provided a copy of the inspection report to Ahmet Engin, Respondent's principal owner. The inspection report notified Respondent that the violations must be corrected by July 20, 2008. On August 6, 2008, Ms. Piel performed a re-inspection of Respondent's premises and prepared a call-back inspection report. The call-back inspection report indicated that certain of the violations found during the May 20, 2008, inspection had not been corrected. During both inspections, Ms. Piel noted potentially hazardous food being held at an improper temperature. Pizza was being held on top of the pizza oven at a temperature of 126 degrees Fahrenheit. Ms. Piel testified that this is a critical violation because food that is hot-held must be held at a temperature of 135 degrees or higher in order to prevent the growth of harmful bacteria. During both inspections, Ms. Piel noted that Respondent was operating under an expired food manager certification. The food manager certification is required to ensure that the operator has an understanding of the proper food safety procedures. Ms. Piel testified that this is a critical violation because a food manager must be re-certified every five years. During both inspections, Ms. Piel noted that the interior of the reach-in cooler was soiled with an accumulation of food residue. Ms. Piel testified that this is a critical violation because cleanliness is required in order to eliminate the potential for the growth of bacteria on surfaces that come into contact with food. During both inspections, Ms. Piel noted that the carbon dioxide tanks were not adequately secured. Ms. Piel testified that this is a violation because a pressurized carbon dioxide tank could become a projectile should it fall and the regulator break off. During both inspections, Ms. Piel noted that the ceiling tile was missing over the refrigerator. Ms. Piel testified that this is a violation because secure floors, walls and ceilings are essential to keep dirt, dust, and vermin out of the kitchen area. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. The improper holding of hot-held food, the outdated certification, and food residue in the cooler were critical violations. The unsecured carbon dioxide tanks and the missing ceiling tile were non-critical violations. The Division presented no evidence of prior disciplinary action against Respondent.
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 $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 17th day of February, 2009, 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 17th day of February, 2009.
The Issue The issues in this case concern whether challenged portions of Proposed Rule 61C-4.023(4)(b) either separately or together constitute an “invalid exercise of delegated legislative authority” on the grounds that the agency has exceeded its grant of rulemaking authority; the proposed rule enlarges, modifies, or contravenes the specific provisions of law implemented; or both.
Findings Of Fact The parties' Joint Prehearing Stipulation and the evidence presented at final hearing established the facts that follow. The Division is the state agency charged with inspecting and regulating licensed “public food service establishments” (which are commonly known as restaurants). See generally Section 509.032, Florida Statutes. In the early 1990s, the legislature enacted Section 509.039, Florida Statutes, which directed the Division to adopt, by rule, food safety protection standards for the training and certification of all food service managers responsible for the storage, preparation, display, or serving of foods to the public in licensed establishments. This legislation required the Division to establish a testing and certification program, to be administered by private or public entities. Id. In 1996, the Legislature went a step further, instructing the Division to adopt minimum food safety protection standards for the training of all food service employees: 509.049 Food service employee training.– The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. See Chapter 96-384, Section 4, Laws of Florida. In 2000, the legislature substantially revised Section 509.049, Florida Statutes, mandating that the Division establish, by rule, a food safety training certification program for food service employees, to be administered by a private provider under a public contract that the Division was directed to let pursuant to competitive proposals. See Chapter 2000-191, Section 1, Laws of Florida. At the same time, the revised law provided that licensed establishments could apply to the Division for approval of their existing food safety training programs——approval which, if granted, would allow such programs to be used in place of the program administered by the Division’s contracted provider. Id. Pursuant to a competitive procurement, the Division selected the Intervenor Association to be its contracted provider for the “official” employee food safety training certification program. Petitioner Food Safety is a provider that offers a food safety training program that the Division has approved for use. Food Safety distributes its training program both by directly administering the program to restaurant employees through on- site, personal instruction, and by selling its program for others to administer.1 In 2001, the legislature again revised Section 509.049, Florida Statutes, adding provisions that pertained to the approval of food safety training programs, allowed some regulation of providers of such programs, and authorized the Division to adopt certain rules. See Chapter 2001-257, Section 1, Laws of Florida. In particular, two new subsections, (4) and (6), were added to Section 509.049, as follows: (4) Approval of a program is subject to the provider's continued compliance with the division's minimum program standards. The division may conduct random audits of approved programs to determine compliance and may audit any program if it has reason to believe a program is not in compliance with this section. The division may revoke a program's approval if it finds a program is not in compliance with this section or the rules adopted under this section. * * * The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require: The use of application forms, which may require, but need not be limited to, the identification of training components of the program and an applicant affidavit attesting to the accuracy of the information provided in the application; Providers to maintain information concerning establishments where they provide training pursuant to this section; Specific subject matter related to food safety for use in training program components; and The licensee to be responsible for providing proof of employee training, and the division may request production of such proof upon inspection of the establishment. Initiating the rulemaking process that led to this challenge, the Division caused a Notice of Proposed Rule Development to be published in the March 23, 2001, edition of the Florida Administrative Weekly. This Notice included the preliminary text of Proposed Rule 61C-4.023(4), which stated in relevant part: Approved program providers must maintain a record of each food service employee certified, including the following: the name of the certified food service employee, the employing food service establishment, the name of the training administrator, the training date, and the certification expiration date. These records shall be transmitted to the division on a monthly basis, either in hard copy or in an electronic format approved by the division. After conducting a workshop on the draft rule on May 24, 2001, the Division caused a Notice of Proposed Rule to be published in the August 17, 2001 edition of the Florida Administrative Weekly. The August 17, 2001, version of the proposed rule stated, in pertinent part: (b) Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program which, upon examination, is found to have failed to keep this required information or to have knowingly participated in falsifying any training record. On September 20, 2001, Food Safety filed its Petition, objecting to provisions in the proposed rule which would impose record-keeping requirements on providers that do “not directly administer training” and which would require the Division to revoke its approval of an authorized program in certain circumstances. After this rule challenge commenced, the Division amended the final sentence of Proposed Rule 61C-4.023(4)(b). The proposed rule assumed its current form in the October 26, 2001, edition of the Florida Administrative Weekly. Proposed Rule 61C-4.023(4)(b) (the “Proposed Rule”), as challenged, provides as follows: Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program where, upon examination, the program provider is found to have failed to keep this required information or to have knowingly participated in falsifying any training record. Petitioner protests the third and fourth sentences of the Proposed Rule, which are underlined above, alleging that the subject provisions either exceed the Division’s rulemaking authority; enlarge, modify, or contravene the specific provisions of law implemented; or both.
The Issue Whether Lenin's, a licensed restaurant, committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against Lenin's.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Lenin's was licensed as a public food service establishment, with the following business address: 444 West Railroad Avenue, Suite 100, West Palm Beach, Florida 33401. On April 25, 2013, and June 28, 2013, Lenin's was inspected by Tamara Burton, a sanitation and safety specialist with the Division. During both visits, Ms. Burton noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Ms. Burton and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of June 28, 2013, the following deficiencies subsisted at Lenin's: (1) hot food, specifically beef empanadas, rice and beans, and rice, held below the required temperature, in violation of Food Code Rule 3.501.16(A)(1); (2) cold food, specifically butter, being held above the required temperature, in violation of Food Code Rule 3.501.16(A)(2); (3) an employee failing to wash his or her hands before putting on a new set of gloves to work with food, in violation of Food Code Rule 2-301.14(H); (4) raw beef stored over produce, in violation of Food Code Rule 3.302.11(A)(1); (5) a chlorine sanitizer not at the proper minimum strength, in violation of Food Code Rule 4-501.114(A); (6) an employee hand-wash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; (7) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes; no proof of required state approved employee training for its employees, in violation of section 509.049(5), Florida Statutes; food, specifically sugar, removed from the original container was not properly labeled as “sugar”, in violation of Food Code Rule 3-302.12; and (10) an employee not wearing a hair restraint, in violation of Food Code Rule 2-402.11. As numbered in the previous finding, and pursuant to Florida Administrative Code Rule 61C-1.005, violations 1-5 are characterized as high priority violations, violations 6-8 are characterized as intermediate violations, and violations 9-10 are characterized as basic violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Lenin's guilty of all counts as charged in the Administrative Complaint; dismissing Count Four of the Administrative Complaint; and ordering Lenin's to pay an administrative penalty in the amount of $3,300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 9th day of January, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 9th day of January, 2014. COPIES FURNISHED: Lenin Martin Lenin's 444 West Rail Road West Palm Beach, Florida 33401 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Diann O. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
