09-002136 Department Of Health vs. Whistle Stop Lounge, Inc. Status: Closed Recommended Order on Tuesday, October 20, 2009.

Summary: Petitioner should revoke Respondent's food service establishment license because Respondent operated a bar and lounge in violation of the sanitation rules adopted to protect the public against food-borne illness.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 09-2136

)

WHISTLE STOP LOUNGE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

August 14, 2009, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Victoria Coleman-Miller, Esquire

Department of Health

Palm Beach County Health Department

800 Clematis Street

West Palm Beach, Florida 33401

For Respondent: James S. Lewis, Esquire

200 Southeast 6th Street, Suite 102

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

On March 31, 2009, Petitioner Department of Health issued

an Administrative Complaint against Respondent Whistle Stop,

Inc., charging the licensee with various offenses relating to

noncompliance with the statutes and rules governing food service

establishments. Respondent timely requested a formal hearing to

contest these allegations, and, on April 21, 2009, the matter

was filed with the Division of Administrative Hearings.

The final hearing took place on August 14, 2009, as

scheduled, with both parties present. Petitioner offered

Petitioner's Exhibits 1 through 31, each of which was received

in evidence without objection. In addition, Petitioner called

as witnesses its employees Barbara Hoggard and Daniel Alterwein.

Rose Sheffler, the owner and operator of the establishment in

question, testified on behalf of Respondent. No Respondent's

exhibits were offered.

The final hearing was recorded, but a transcript thereof

has not been made. The parties were directed to file their

respective proposed recommended orders no later than

September 24, 2009. Petitioner timely submitted a proposed

recommended order that has been carefully considered.

Respondent did not file a post-hearing submission of any kind.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. 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.

2. As a licensed food service establishment, Whistle Stop

is subject to the regulatory and disciplinary jurisdiction of

Petitioner Department of Health ("Department").

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

11. 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.

12. 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).

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.)

19. 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.

20. 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.

21. 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.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2009).

23. Section 381.0072, Florida Statutes, defines, as

follows, the Department's jurisdiction in regard to food service

protection:

It shall be the duty of the Department of

Health to adopt and enforce sanitation rules

consistent with law to ensure the protection

of the public from food-borne illness.

These rules shall provide the standards and

requirements for the storage, preparation,

serving, or display of food in food service

establishments as defined in this section

and which are not permitted or licensed

under chapter 500 or chapter 509.

24. The term "food service establishment" is defined to

mean:

any facility, as described in this

paragraph, where food is prepared and

intended for individual portion service, and

includes the site at which individual

portions are provided. The term includes

any such facility regardless of whether

consumption is on or off the premises and

regardless of whether there is a charge for

the food. The term includes detention

facilities, child care facilities, schools,

institutions, civic or fraternal

organizations, bars and lounges and

facilities used at temporary food events,

mobile food units, and vending machines at

any facility regulated under this section.

The term does not include private homes

where food is prepared or served for

individual family consumption; nor does the

term include churches, synagogues, or other

not-for-profit religious organizations as

long as these organizations serve only their

members and guests and do not advertise food

or drink for public consumption, or any

facility or establishment permitted or

licensed under chapter 500 or chapter 509;

nor does the term include any theater, if

the primary use is as a theater and if

patron service is limited to food items

customarily served to the admittees of

theaters; nor does the term include a

research and development test kitchen

limited to the use of employees and which is

not open to the general public.

§ 381.0072(1)(b), Fla. Stat. (emphasis added).

25. The term "bars and lounges" is defined in Florida

Administrative Code Rule 64E-11.002(4), which provides as

follows:

A ["bar and lounge" is a]facility which

possesses a consumption on premises

alcoholic beverage license from the Division

of Alcoholic Beverages & Tobacco; where food

service is limited to:

(a) The preparation of drinks; or

(b) The service of non-potentially

hazardous snack foods (such as, chips,

popcorn and pretzels); or

(c) The service of potentially hazardous

foods and no preparation of potentially

hazardous food occurs.

26. Other relevant definitions are provided in Rule 64E-

11.002, namely:

(16) "Food" – Any raw, cooked or processed

edible substance, ice, beverage or

ingredient used or intended for use in

whole, or in part, for human consumption.

* * *

(18) "Food preparation" – The manipulation

of foods intended for human consumption by

such means as washing, slicing, peeling,

chipping, shucking, scooping, and/or

portioning. The term also includes those

activities involving temperature changes,

combining ingredients, opening ready-to-eat

food packages, or any other activity causing

physical or chemical alterations in the

food.

* * *

(36) "Potentially hazardous food" – Any

perishable food which consists in whole or

in part of milk or milk products, eggs,

meat, poultry, fish, shellfish, edible

crustacea, or other ingredients, including

synthetic ingredients, in a form:

(a) Capable of supporting rapid and

progressive growth of infectious or

toxigenic microorganisms; or

(b) Capable of supporting the slower

growth of Clostridium botulinum.

(c) The term "potentially hazardous food"

does not include foods which have a pH level

of 4.6 or below or a water activity (Aw)

value of 0.85 or less, or air-cooled hard-

boiled eggs with the shell intact.

27. The standards and requirements for the storage,

preparation, serving, or display of food in food service

establishments are prescribed in Florida Administrative Code

Rule 64E-11.007, which includes the following:

(6) Garbage and rubbish disposal

(a) All garbage and rubbish containing

food wastes shall, prior to disposal, be

kept in leakproof, nonabsorbent containers

which shall be kept covered with tight

fitting lids; provided that such containers

need not be covered when stored in a special

vermin proofed room or in a closed food

waste refrigerator. Containers which do not

have tight fitting vermin proof lids may be

used only if garbage is first placed in

plastic bags or wet-strength paper bags

which are securely tied closed. All other

rubbish shall be stored in an approved

manner. The rooms, enclosures, areas and

containers used shall be adequate for the

storage of all food wastes and rubbish which

accumulates between periods of removal.

(b) Garbage and refuse containers,

compactors and dumpsters located outside

shall be stored on or above a smooth surface

of nonabsorbent material such as concrete

that is kept clean and maintained in good

repair. If a compactor system is used for

the storage of garbage, and the garbage is

not stored in a self-contained and leak

proof system, the compactor shall be placed

on a concrete pad which is graded to drain

into a sanitary sewer system.

(c) Adequate cleaning facilities shall be

provided and each container, room or area

shall be thoroughly cleaned after the

emptying or removal of garbage and rubbish.

Waste water from such cleaning operations

shall be disposed of as sewage. Food waste

grinders, if used, shall be suitably

constructed and shall be installed in

accordance with provisions of the applicable

plumbing authority. All garbage and rubbish

shall be removed from the food establishment

premises with sufficient frequency to

prevent nuisance conditions and shall be

disposed of in accordance with provisions of

Chapter 62-701, F.A.C.

(7) Vermin control – Effective control

measures shall be taken to protect against

the entrance into the food establishment,

and the breeding or presence on the premises

of rodents, flies, roaches and other vermin.

All buildings shall be effectively rodent-

proofed, free of rodents and maintained in a

rodent-proof and rodent-free condition. All

openings to the outside air, including

windows, doors, skylights, transoms, intake

and exhaust ducts shall be effectively

protected against the entrance of flies and

other flying insects by self-closing doors

which open outward, closed windows,

screening, controlled air currents or other

effective means. Screening material shall

not be less than 16 mesh to the inch or

equivalent and screens for windows, doors,

skylights, transoms and other openings to

the outside air shall be tight fitting and

free of breaks. Insecticides or

rodenticides, when used, shall be used in

full compliance with Chapter 5E-14, F.A.C.

28. The Department is charged with the duty of inspecting

"each food service establishment as often as necessary to ensure

compliance with applicable laws and rules." § 381.0072(2)(c),

Fla. Stat.

29. Section 381.0072(5), Florida Statutes, sets forth the

acts for which the Department may impose discipline. This

statute provides as follows:

(a) The department may impose fines against

the establishment or operator regulated

under this section for violations of

sanitary standards, in accordance with

s. 381.0061. All amounts collected shall be

deposited to the credit of the County Health

Department Trust Fund administered by the

department.

(b) The department may suspend or revoke

the license of any food service

establishment licensed under this section

that has operated or is operating in

violation of any of the provisions of this

section or the rules adopted under this

section. Such food service establishment

shall remain closed when its license is

suspended or revoked.

(c) The department may suspend or revoke

the license of any food service

establishment licensed under this section

when such establishment has been deemed by

the department to be an imminent danger to

the public's health for failure to meet

sanitation standards or other applicable

regulatory standards.

(d) No license shall be suspended under

this section for a period of more than 12

months. At the end of such period of

suspension, the establishment may apply for

reinstatement or renewal of the license. A

food service establishment which has had its

license revoked may not apply for another

license for that location prior to the date

on which the revoked license would have

expired.

30. Section 381.0061, Florida Statutes, which prescribes

the Department's authority to impose administrative fines,

provides as follows:

(1) In addition to any administrative

action authorized by chapter 120 or by other

law, the department may impose a fine, which

shall not exceed $500 for each violation,

for a violation of s.381.006(16),

s. 381.0065, s. 381.0066, s. 381.0072, or

part III of chapter 489, for a violation of

any rule adopted under this chapter, or for

a violation of any of the provisions of

chapter 386. Notice of intent to impose

such fine shall be given by the department

to the alleged violator. Each day that a

violation continues may constitute a

separate violation.

(2) In determining the amount of fine to be

imposed, if any, for a violation, the

following factors shall be considered:

(a) The gravity of the violation, including

the probability that death or serious

physical or emotional harm to any person

will result or has resulted, the severity of

the actual or potential harm, and the extent

to which the provisions of the applicable

statutes or rules were violated.

(b) Actions taken by the owner or operator

to correct violations.

(c) Any previous violations.

(3) All amounts collected under this

section shall be deposited into an

appropriate trust fund of the department.

31. Being penal in nature, the foregoing statutes and rule

provisions "must be construed strictly, in favor of the one

against whom the penalty would be imposed." Munch v. Department

of Professional Regulation, Div. of Real Estate , 592 So. 2d

1136, 1143 (Fla. 1st DCA 1992).

32. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281 So.

2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Whistle Stop by clear

and convincing evidence. Department of Banking & Fin., Div. of

Sec. & Investor Protection v. Osborne Stern & Co. , 670 So. 2d

932, 933-34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d

292, 294-95 (Fla. 1987)); Nair v. Department of Business &

Professional Regulation, Bd. of Medicine , 654 So. 2d 205, 207

(Fla. 1st DCA 1995).

33. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

34. The undersigned has determined, as a matter of

ultimate fact, that the Department established Whistle Stop's

guilt regarding noncompliance with the following laws: Florida

Administrative Code Rule 64E-11.007(7); Florida Administrative

Code Rule 64E-11.002(4)(c); and Florida Administrative Code Rule

64E-11.007(6). In making these determinations, the undersigned

concluded that the plain language of the applicable statutes and

rules, being clear and unambiguous, could be applied in a

straightforward manner to the historical events at hand without

simultaneously examining extrinsic evidence of legislative

intent or resorting to principles of interpretation. It is

therefore unnecessary to make additional legal conclusions

concerning these violations.

35. The Department has urged the undersigned to recommend

that Whistle Stop be fined a total of $25,375. The undersigned

concludes, however, that the imposition of fines for those

violations which Whistle Stop timely corrected within the grace

period specified in the respective Food Service Inspection

Reports would be an unjust, if not abusive, exercise of

discretion and therefore recommends that fines not be imposed

for such violations.

36. As for those violations which were not timely

corrected, however, the Department's desired penalty of $9,625

is within the statutorily authorized guidelines. Having

considered the factors set forth in Section 381.0061(2), Florida

Statutes, the undersigned concludes that, under the

circumstances, an administrative fine in this amount is

reasonable and just.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.