The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
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 operating at 16850 Collins Avenue, Golden Beach, Florida, and holding food service license number 2326334. On February 26, 2008, and April 29, 2008, Respondent was inspected by Ricardo Unold, a Senior Sanitation and Safety Specialist with the Division. During both visits, Mr. Unold noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Unold and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that as of April 29, 2008, the following deficiencies subsisted at Respondent New San Telmo: (1) In-use utensils stored in standing water less than 135 degrees Fahrenheit, in violation of Food Code2 Rule 3- 304.12(F); (2) The public bathroom was not equipped with a tight-fitting, self-closing door, in violation of Food Code Rule 6-202.14 and Florida Administrative Code Rule 61C-1.004(2)(b); (3) An unlabeled spray bottle, in violation of Food Code Rule 7- 102.11; and (4) No proof of required employee training, in violation of Section 509.049, Florida Statutes. The deficiencies relating to the lack of proof of employee training, the unlabeled spray bottle, and the bathroom door are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The final deficiency (storing in-use utensils in water less than 135 degrees Fahrenheit), while not categorized as a critical violation, is serious nonetheless because it directly relates to food preparation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1400, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 30th day of August, 2010, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 30th day of August, 2010.
The Issue Whether the Respondent, Michelle's Café, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating public food service establishments operating within the State of Florida. See §§ 509.032 and 509.261, Florida Statutes (2007). At all times material to the allegations of this case the Respondent, Michele’s Café, was a licensed public food establishment governed by the provisions of Chapter 509, Florida Statutes (2006). The Respondent’s address of record is 299 East Broward Boulevard, Fort Lauderdale, Florida. On July 31, 2006, in his capacity as a trained inspector for the Petitioner, Mr. Torres visited the Respondent’s place of business in order to conduct an inspection. Mr. Torres performs between 800 to 1000 inspections per year of licensed food establishments to assure that such businesses are in compliance with all food service rules and regulations. At the time of the inspection, Jessica Sanchez, the manager on duty, represented the Respondent. The inspection report for July 31, 2006, identified several critical violations that needed to be corrected. Mr. Torres notified Mr. Villeda, as the owner and/or operator of the licensed entity, of the inspection results. Mr. Villeda later identified himself as the manager of the café. Critical violations are items that must be corrected because, if not corrected, they pose a threat for imminent food- borne illness, contamination, or environmental hazard. Non- critical violations are less serious but can also lead to a potential health hazard. As to each type of violation, the Petitioner expects the licensee to take appropriate action to correct the cited deficiency. Mr. Torres notified Mr. Villeda of the findings of his inspection of July 31, 2006, because he anticipated that the violations would be corrected in advance of a “call back” inspection. The “call back” inspection was performed on September 18, 2006. This inspection was also performed by Mr. Torres and disclosed the following uncorrected deficiencies (these had been identified to the Respondent in the July 31, 2006 inspection report): There was no thermometer to measure the temperature of food products. This is a critical violation. Food products must be stored and maintained at an acceptable temperature to prevent bacteria from growing. Without a thermometer there is no verifiable system to confirm that acceptable temperatures are being maintained. Additionally, to retain prepared food on-site for sale or use, the prepared food item must be labeled to detail the date of its initial preparation. Ready to eat food can be retained for a maximum of seven days. After that period, there is a presumption that the item may not be safely consumed. Consequently, all prepared food must be clearly labeled to assure it is disposed of at the appropriate time. Because the sale of out-of-date food presents a health hazard, the labeling requirement is considered critical. The failure to follow the guideline is, therefore, considered a critical violation. Sanitizing chemicals used in the cleansing of dishes or food service preparation equipment must be tested to assure a proper level is utilized. The sanitizing chemicals may be toxic, therefore too much can lead to the contamination of the food service item and too little may fail to sanitize and kill bacteria. Accordingly, when used in conjunction with a three-compartment sink or dish machine, a chemical testing kit allows the user to easily verify that the amount of sanitizing chemical is correct. The failure to have and use a test kit is considered a critical violation as the improper use of chemicals may pose a public health hazard. The Respondent did not have the chemical kit to measure the product being used at its location. Food dispensing equipment, such as soda machines, must be kept clean. A build-up of slime on the soda dispenser nozzle poses a threat as mold can form and be dispensed with the soda to the user’s beverage. As illness can result, this deficiency is also considered a critical violation. In this regard the Respondent's soda machine had a build-up of slime on its dispensing nozzle. Food containers must also be kept clean. The interior of Respondent’s reach-in cooler had accumulated a residue of food or soil. As this could contaminate food placed in the cooler, this deficiency is also considered critical. Similarly, food contact surfaces must also be kept smooth and easily cleanable. In this regard, the Respondent’s use of ripped or worn tin foil to cover a shelf was not appropriate. As to each of the deficiencies noted above, the Respondent failed or otherwise refused to timely correct the item. Mr. Villeda represented that the violations were corrected by the last week of September 2006. Implicit in that representation is the admission that such violations were not corrected by September 18, 2006, the date of the “call back” inspection. The Respondent does not have a mop sink. The Respondent’s representation that the owners of the building have a mop sink elsewhere (that is used for the licensed area) has been deemed plausible. If a building janitor uses a mop sink located elsewhere to clean up spills (as was represented), the absence of a mop sink within the licensed area does not demonstrate that no mop sink existed. In this regard the Respondent has been given the benefit of the doubt. The Respondent did not explain why the deficiencies were not corrected before the “call back” inspection. It is accepted that the corrections were later made and the Respondent has been given consideration of this effort in the penalty recommended in this case.
Recommendation Based upon 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, impose an administrative fine in the amount of $1000.00 against the Respondent, Michelle’s Café. S DONE AND ENTERED this 21st day of November, 2007, in Tallahassee, Leon County, Florida. J. D. 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 21st day of November, 2007. COPIES FURNISHED: Jesus Villeda Michelle's Cafe 13161 Northwest 11th Court Sunrise, Florida 33323 Joshua B. Moye, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792
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, Respondent was a restaurant operating at 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
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: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 13th day of May, 2013.
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, Respondent was a restaurant operating at 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license number 1621408. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits, Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than 135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/ The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
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 Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 13th day of August, 2013.
The Issue Whether Respondent committed the following acts alleged in the Notice to Show Cause dated July 8, 1998, and if so, the penalty that should be imposed: Violation of the Food Code, Chapter 61C-1, Florida Administrative Code, by failing to maintain hot, potentially hazardous, foods at or above 140 degrees Fahrenheit (Fº) at all times on the steam table. Violation of the electrical code by failing to provide a spacer for missing circuit breakers in the electrical box near the waitress station. Violation of the Food Code by failing to provide and use a food thermometer to monitor food temperatures. Violation of the Food Code by failing to provide a properly designed bulk food product scoop with a handle for use in the kitchen.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes (1997). Respondent is a public food service establishment that operates in the State of Florida under the Division's License Control Number 03843-R. Derrick Fritts is a Sanitation and Safety Inspector employed by the Petitioner. On February 3, 1998, at approximately 3:55 p.m., Fritts visited the Seaport Restaurant food establishment located at 680 George J. King Boulevard, Port Canaveral, Florida 32920, for the purpose of performing a routine callback inspection. At the time of the inspection, the vegetable mix on the steam table was at a temperature of 116 degrees F. The baked potatoes were at 95 degrees F and the tomato sauce was at 111 degrees F. Dinners were being served from this steam table. Respondent's defense that the steam table are being broken down for diner and customers were not being served is not credible. At the time of the inspection, there was no thermometer that was readily accessible to the server at the steam table to monitor potentially hazardous foods to ensure that they are within the temperature range specified in the Food Code. At the time of the inspection, a large bulk supply of flour was being dispensed with a plastic cup rather than a scoop with a handle. There was insufficient evidence to prove that a fire code violation was present in the electrical circuit breaker box in the main dining room. The Petitioner performs inspections between the hours of 9:00 a.m. and 5:00 p.m., and occasionally after-hours, in order to better observe operating procedures. It is the Petitioner's policy to inspect food service establishments during operating hours. In the Petitioner's view, operating hours includes anytime anyone is working on the premises of a public food service establishment. Although Fritts arrived for the inspection relatively late in the day, the inspection still occurred within the 9-5 time frame. Representatives of Respondent were present for 80 percent of the inspection. Respondent was cited for violations of the 1997 Food Code under the following sections: 3-501.16(A), 4-302.12, and 3-301.11(C), C.F.R. Petitioner sent out an Industry Advisory on January 1, 1998, with the following information for licensees about the 1997 edition of the Food Code: Although the Code and Rule have been adopted, enforcement of these new provisions will not begin until April 1, 1998. Respondent received the above Industry Advisory and erroneously interpreted it to mean that none of the provisions of the 1997 Food Code would be enforced until April 1, 1998. The Food Code contains recommendations made by the United States Public Health Service Food and Drug Administration. Therefore, the Food Code is not mandatory and binding on licensees until it is adopted by the State of Florida. Chapter 61C-1.001, Florida Administrative Code, incorporates by reference the 1997 Food Code into the Florida Administrative Code, thereby adopting it. It then became binding on licensees as an official rule of Petitioner after January 1, 1998.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of the following charges and that the following penalties be imposed against Respondent: Food Code Rule 3-501.16(A), imposing an administrative fine in the amount of $500.00; Food Code Rule 4-302.12, imposing an administrative fine in the amount of $250.00; Food Code Rule 3-301.11(C), imposing an administrative fine in the amount of $250, and that Respondent attend, at personal expense, an educational program sponsored by the Hospitality Education Program. It is further. RECOMMENDED that Respondent be found not guilty of violation of Rule 61C-1.004(11), Florida Administrative Code. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of June, 1999. COPIES FURNISHED: Melvin T. Stith, Jr., Esquire Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Alan C.D. Scott, II, Esquire 101 Orange Street St. Augustine, Florida 32804 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against it, and, if so, the appropriate penalty to be imposed, if any.
Findings Of Fact At all times material hereto, Respondent, Perpulys Sport Bar and Restaurant, has been licensed as a public food service establishment by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent is located in Homestead, Florida. Michael Brown, one of Petitioner's inspectors, has extensive experience and education in the food service industry. On July 19, 2006, he inspected Respondent's premises and found a number of violations of public food service establishment rules. He noted these on his inspection report and gave a copy of the report to Respondent. The report noted that the violations must be corrected by August 20, 2006. On August 21, 2006, Brown returned to Respondent's premises to conduct his "callback" inspection. Four critical item violations remained uncorrected, and he noted them in his report. After he had completed his report, one of Respondent's employees placed a thermometer in the cold holding unit which had lacked one during Brown's inspection. However, the exit signs were still not properly illuminated. Exit signs in a food service establishment are required to be clearly illuminated so that patrons will know where to exit the premises if a fire or other emergency should occur. Improperly illuminated exit signs are a critical item violation. Respondent's employees were still touching ready-to-eat food with their bare hands even though the establishment did not have in place an alternative operating procedure approved by Petitioner. Since touching ready-to-eat food with bare hands can lead to serious illness of the business' patrons, this is also a critical item violation. During that same call-back inspection, raw animal food was stored over ready-to-eat food, specifically, raw steak was stored over cooked shrimp. Since such storage can lead to cross-contamination, which can lead to serious illness of the business' patrons, this is also a critical item violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of three critical item violations, imposing a fine of $1,500 to be paid within 30 days, and requiring Respondent to attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 17th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 17th day of May, 2007. COPIES FURNISHED: William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Soco Salgado Perpulys Sports Bar & Restaurant 113 South Homestead Boulevard Homestead, Florida 33030
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, which operates a bar and lounge, violated several statutes and rules governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all times relevant to this case, Respondent Whistle Stop Lounge, Inc. ("Whistle Stop") operated a duly licensed "bar and lounge" at a location in Boca Raton, Florida. Because the business activities of this enterprise also brought it within the statutory definition of a "food service establishment," Whistle Stop was required to be, and was, separately licensed as such. As a licensed food service establishment, Whistle Stop is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Health ("Department"). The Department is charged with the duty of inspecting food service establishments for compliance with sanitation rules designed to protect the public against food-borne illnesses. Accordingly, agents of the Department have inspected Whistle Stop's premises on many occasions, as a routine matter. Whistle Stop, however, has had ongoing problems with compliance since at least 2004, with the result that the Department has inspected its establishment more frequently than otherwise might have been the case. Indeed, from January 2008 though March 2009, the Department inspected Whistle Stop's premises 16 times——at least once in each of 10 separate months——and determined that Whistle Stop's compliance was "unsatisfactory" during 14 of those visits. During the referenced period, the Department twice concluded that Whistle Stop's establishment constituted an imminent danger to the public health. Consequently, the Department issued stop-sale orders on March 13, 2008, and November 7, 2008, each of which required Whistle Stop to close its doors. Although both stop-sale orders were lifted several weeks after their respective dates of issuance, the underlying problems subsisted, albeit in lesser degrees of severity. The problems that most concerned the Department can be divided into three categories: (a) the persistent presence on the premises of roaches, rodents, and flies; (b) the persistent presence on the premises of "potentially hazardous food"; and (c) the persistent presence on the premises of improperly stored garbage. The evidence clearly proves, and the undersigned finds, that Whistle Stop's establishment suffered from chronic infestations of roaches, flies, and rats, which persisted from January 2008 until at least December 11, 2008. During this period, Whistle Stop failed (or was unable) to take effective measures to protect against the entrance of such vermin. The undersigned finds, based on clear and convincing evidence, that within Whistle Stop's premises were routinely kept a variety of "potentially hazardous food" in kinds and quantities that were inconsistent with the owner's explanation that such food was the employees' personal property being temporarily stored for their convenience. Although the Department's agents did not observe potentially hazardous food being served to, or consumed by, Whistle Stop's patrons, they did witness such food in a frozen state and being thawed. For example, on November 7, 2008, chicken breast strips were seen to be decaying in a freezer on the premises. That same day, ground sausage was observed in a cooler, at a temperature that was above freezing and inadequate for long-term storage. On December 11, 2008, the Department's agents witnessed shrimp that was defrosting in the refrigerator, and butter that had been "out of temperature" for more than four hours and needed to be discarded. It is evident that on these occasions (and others), potentially hazardous food items at Whistle Stop's premises were subjected to activities that involved temperature changes, which is a form of "food preparation" according to the relevant regulatory definition of the term. There is clear and convincing evidence that garbage was often stored within Whistle Stop's premises in uncovered containers without first having been placed in plastic bags or wet-strength paper bags, and the undersigned so finds. The Department's agents observed such improper storage of garbage on November 7, 2008; November 13, 2008; and December 11, 2008. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of failing to comply with Florida Administrative Code Rule 64E-11.007(7), which requires food service establishments to take effective measures for controlling vermin on the premises. It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of causing or allowing potentially hazardous food to be prepared on its premises, in violation of Florida Administrative Code Rule 64E-11.002(4)(c), which prohibits such food preparation at a bar and lounge (unless the establishment, unlike Whistle Stop, is also licensed as a restaurant). It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of failing to comply with Florida Administrative Code Rule 64E-11.007(6), which prescribes the requirements for storing and disposing of garbage at a food service establishment. Additional Findings Pertaining to Administrative Fines Having found that Whistle Stop has operated in violation of applicable rules, and in view of the Department's stated intent to impose a fine in excess of $25,000, it is necessary to make some additional findings concerning facts that bear on the amount of fine to be imposed. Each time the Department's agents inspected Whistle Stop's premises, a Food Service Inspection Report was prepared, using a form that the agency has developed for this purpose. The form contained the following notice: Items marked below violate the requirements of Chapter 64E-11 of the Florida Administrative Code and must be corrected. Continued operation of this facility without making these corrections is a violation of [applicable law]. Violations must be corrected by the date and time indicated in the Results section above or an administrative fine or other legal action will be initiated. This language expressly warned the licensee of the consequences of failing timely to fix an identified violation; implicitly, it told the licensee that if a violation were corrected within what was, effectively, a "grace period" until the next inspection, then disciplinary action (e.g., administrative fine or other legal action) would not be taken with regard to that violation. Some of the violations for which the Department wants to impose an administrative fine were timely corrected. One such violation was Whistle Stop's preparation of potentially hazardous food on November 7, 2008, for which the Department would impose a $500 fine. This problem was corrected before the next inspection on November 13, 2008, at which time this particular violation was not noted. Similarly, the Department cited Whistle Stop for preparing potentially hazardous food on December 11, 2009, and it wants to impose a fine of $500 for the violation, which was found herein to have occurred. Whistle Stop, however, had corrected the violation by January 9, 2009, when the Department next inspected its premises. The Department seeks to impose a fine of $500 per day for Whistle Stop's failure to take effective measures for controlling vermin between December 11, 2008 and January 9, 2009. Whistle Stop was cited for this violation on December 11, 2008, but not on January 9, 2009, which means that Whistle Stop corrected the problem at some point before the Department's next inspection. (There is no evidence, moreover, as to when this violation was corrected; thus, even if it were appropriate to impose a fine for a violation that the licensee corrected during the apparent grace period, which is contrary to the undersigned's view, the undersigned could not ascertain for how long the violation actually continued after December 11, 2008.) The Department intends to impose fines of $125 apiece for Whistle Stop's failures properly to store garbage on the dates of November 13, 2008, and December 11, 2008. Each of these violations had been corrected, however, before the next inspections, which took place, respectively, on November 19, 2008, and January 9, 2009. In contrast to the foregoing, there are other violations for which the Department would impose a fine that Whistle Stop did not timely correct. Whistle Stop was cited for improper storage of garbage on November 7, 2008, and that problem was not fixed by the next inspection on November 13, 2008. The Department intends to impose of fine of $125 for this violation. Finally, the Department wants to fine Whistle Stop $500 per day (which amounts to $9,500) for the period from November 7, 2008, to November 26, 2008, for the licensee's continuing failure to control vermin on the premises. This violation did, in fact, continue throughout the subject period and was not timely corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order: (a) finding Whistle Stop guilty in accordance with the foregoing Recommended Order; (b) ordering Whistle Stop to pay an administrative penalty in the amount of $9,625; and (c) revoking Whistle Stop's food service establishment license. DONE AND ENTERED this 20th of October, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of October, 2009. COPIES FURNISHED: Victoria Coleman-Miller, Esquire Department of Health Palm Beach County Health Department 800 Clematis Street West Palm Beach, Florida 33401 James S. Lewis, Esquire 200 Southeast 6th Street, Suite 102 Fort Lauderdale, Florida 33301 Rose D. Sheffler Whistle Stop Lounge, Inc. 198-199 West Camino Real Boca Raton, Florida 33432 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Alina Alonso, Director Palm Beach County Health Department Florida Department of Health 800 Clematis Street West Palm Beach, Florida 33401 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
