01-002007 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Charles Mcmahan And Sandra Mcmahan, D/B/A Mike`s Munchies Status: Closed Recommended Order on Friday, September 7, 2001.

Summary: Respondents are guilty of violating numerous provisions of the Food Code and several rules regulating public food establishments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case Nos. 01-2006

) 01-2007

CHARLES MCMAHAN AND SANDRA ) 01-2008

MCMAHAN, d/b/a MIKE'S MUNCHIES, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 19,

2001, in Panama City, Florida, before the Division of

Administrative Hearings by its Administrative Law Judge ,

Suzanne F. Hood.

APPEARANCES

For Petitioner : Charles F. Tunnicliff, Esquire

Claudia J. Pamperin, Legal Intern

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent : Sandra McMahon, no appearance

Charles McMahan, pro se

5324 Thomas Drive

Panama City, Florida 32408

STATEMENT OF THE ISSUES

The issues are whether Respondents are guilty of violating

Chapter 509, Florida Statutes, and Rule 61C, Florida

Administrative Code, governing operation of a public food

service establishment, and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On February 12, 1999, Petitioner Department of Business and

Professional Regulation (Petitioner) filed an Administrative

Complaint in DBPR Case No. 6-99-28, alleging that Respondents

Charles and Sandra McMahan, d/b/a Mike's Munchies (Respondents),

were guilty of violating the statutes and rules governing the

operation of public food service establishments. This complaint

included eight alleged violations of the 1997 Food Code,

Recommendations of the United States Public Health Service/Food

and Drug Administration (Food Code), which is adopted by

reference in Rule 61C, Florida Administrative Code.

On May 26, 2000, Petitioner filed an Administrative

Complaint in DBPR Case No. 6-00-78, alleging that Respondents

were guilty of violating the statutes and rules governing the

operation of public food service establishments. This complaint

included six alleged violations of the Food Code.

On July 19, 2000, Petitioner filed an Adminis trative

Complaint in DBPR Case No. 6-00-125, alleging that Respondents

were guilty of violating the statutes and rules governing the

operation of public food service establishments. This complaint

included one alleged violation of the Food Code.

On May 2 2, 2001, Petitioner referred the above-referenced

complaints to the Division of Administrative Hearings. That

same day, Petitioner filed a Motion for Consolidation. An order

dated June 4, 2001, consolidated the cases.

A Notice of Hearing dated June 5, 2001, scheduled the

consolidated cases for hearing.

During the hearing, Petitioner presented the testimony of

one witness. Petitioner offered nine exhibits, which were

accepted into the record as evidence.

Pursuant to the agreement of the parties, Respondent

Charles McMahan made an appearance and testified by telephone.

Respondent Sandra McMahan did not make an appearance.

Respondents presented no exhibits for admission into evidence.

The court reporter filed the Transcript on August 22, 2001.

Petitioner filed a Proposed Recommended Order on August 31,

2001. Respondents did not file proposed findings of fact and

conclusions of law.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the operation of public food service establishments.

2. At all times relevant here, Respondents were licensed

to operate Mike's Munchies, a public food service establishment

with seating capacity for 38 customers. Respondents operate

Mike's Munchies under License Control No. 13-04489R.

3. On August 26-28 and November 18, 1998, Petitioner's

inspector visited Respondents' place of business. During these

inspections, the inspector observed and documented numerous

violations of the Food Code and/or Rule 61C, Florida

Administrative Code.

4. The August 26-28 and November 18, 1998, inspections

resulted in the issuance of the Administrative Complaint in DOAH

Case No. 01-2008. The Administrative Complaint charged

Respondent's with violating five provisions of the Food Code and

four provisions of the Florida Administrative Code.

5. During the hearing, Petitioner presented clear and

convincing evidence that Respondents were guilty of the

following violations: (a) The hot dogs in the make table were

at 53.2° Fahrenheit; (b) There was no certified food manager;

(c) The interior of the upright freezers and freezer compartment

of the kitchen refrigerator were dirty; (d) The shelves behind

the counter were dirty; (e) The walls, ceiling, floors and

equipment were dirty; (f) The interior of the outside storage

building was filled with junk and debris; (g) The shelves and

storage areas throughout the establishment were cluttered with

litter, debris, and non-food service related items; and (h) Two

carbon dioxide tanks in the kitchen hallway were unsecured.

6. During the inspections on August 26-28 and November 18,

1998, the inspector observed a dog in the establishment. The

dog was not a prohibited animal because it was a "support

animal" for Respondents' disabled son.

7. On March 30, 2000, Petitioner's inspector visited

Respondent's establishment. During this visit, the inspector

observed numerous violations of the Food Code and/or Rule

61C, Florida Administrative Code. The inspector also noted that

Mike's Munchies was below the minimum standards of a Florida

food service establishment and had been below those standards

for several prior inspections.

8. At the conclusion of the March 30, 2000, inspection,

the inspector gave Respondents a food service inspection report.

The report stated that Respondents had failed to comply with

previous inspections, and as a result thereof, Petitioner might

issue a notice to show cause why Petitioner should not assess

sanctions against Respondents' license.

9. The March 30, 2000, inspection resulted in the issuance

of the Administrative Complaint in DOAH Case No. 01-2006. The

Administrative Complaint charged Respondents with violating five

provisions of the Food Code and two provisions of the Florida

Administrative Code.

10. During the hearing, Petitioner presented clear and

convincing evidence that Respondents were guilty of the

following violations: (a) The interior of the upright freezer

and the upright refrigerator was dirty and moldy; (b) The shelf

under the counter was dirty, littered with paper, dirty clothing

and junk; (c) The floors of the dishwashing room and the kitchen

were dirty; (d) The grounds around the rear of the building were

littered with debris; and (e) The shelves, worktable and

corridor outside the walk-in cooler were dirty and littered with

junk.

11. On March 30, 2000, the dog inside the establishment

was not a prohibited animal because it was a "support animal"

for Respondents' disabled son. Additionally, the outside mop

sink was not without the required water pressure because it had

an inside turn-on value that provided water pressure to the sink

on an as needed basis.

12. On June 14, 2000, Petitioner's inspector performed a

routine inspection at Respondents' place of business. During

this visit, the inspector observed numerous violations of the

Food Code and/or Rule 61C, Florida Administrative Code. On the

June 14, 2000, food service inspection report, the inspector

recommended that Petitioner issue an emergency order based upon

a severe and immediate threat to the public.

13. The June 14, 2000, inspection resulted in the issuance

of the Administrative Complaint in DOAH Case No. 01-2007. The

Administrative Complaint charged Respondents with violating one

provision of the Food Code.

14. During the hearing, Petitioner proved by clear and

convincing evidence that all surfaces in Respondents'

establishment were dirty to sight and touch.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

16. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996), and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

17. Section 509.261(1), Florida Statutes, authorizes

Petitioner to suspend or revoke a license and to impose a fine

not exceeding $1,000 per offense for violations of Chapter 509,

Florida Statutes, or the rules promulgated pursuant thereto.

18. Section 509.032(2)(a), Florida Statutes, requires that

Petitioner conduct periodic inspections of restaurants to assure

the public health, safety, and welfare.

19. Section 509.032(2)(d), Florida Statutes, requires

Petitioner to adopt and enforce sanitation rules consistent with

law to ensure the protection of the public from food-borne

illness in establishments licensed under Chapter 509, Florida

Statutes.

20. Rule 61C-1.004, Florida Administrative Code, as

amended on July 2, 1998, states as follows in relevant part:

The following general requirements and

standards shall be met by all public lodging

and public food service establishments:

(1 ) Water, plumbing and waste.

Except as specifically provided in these

rules, standards for water, plumbing and

waste shall be governed by Chapter 5, Food

Code, herein adopted by reference. For the

purposes of this section, the term "food

establishment" as reference in the Food Code

shall apply to all public lodging and public

food establishments as defined in Chapter

509, F.S.

* * *

(2 ) Public bathrooms.

* * *

(d ) For the purposes of this section, the

term toilet shall mean a flush toilet

properly plumbed, connected and discharging

to an approved sewage disposal system. In a

bathroom where more than one toilet is

provided, each toilet shall be separated by

a partition from adjoining fixtures and a

door shall be provided which will partially

conceal the occupant from outside view.

* * *

(6 ) All building structural components,

attachments and fixtures shall be kept in

good repair, clean and free of obstructions.

* * *

(9 ) Fire safety equipment.

* * *

(d ) Carbon dioxide and helium tanks shall

be adequately secured so as to preclude any

danger to safety.

21. Rule 61C-4.010, Florida Administrative Code, as

amended on December 6, 2000, provides as follows in pertinent

part:

(1 ) Food Supplies and Food Protection --

except as specifically provided in this

rule, public food service establishments

shall be subject to the provisions of

Chapter 3, Food Code, herein adopted by

reference.

* * *

(5 ) Food Equipment, Utensils and

Linens -- public food service establishment

shall be subject to the provisions of

Chapter 4, Food Code, herein adopted by

reference.

(6 ) Physical Facilities -- except as

specifically provided in these rules, the

physical facilities at public food service

establishments shall be subject to the

provisions of Chapter 6, Food Code, herein

adopted by reference. Public food service

establishments and all parts of property

used in connection with their operations

shall be kept free of litter. The walking

and driving surfaces of all exterior areas

of food service establishments shall be

effectively maintained so as to minimize

dust. These surfaces shall be graded to

prevent pooling of water.

22. Rule 61C-4.023, Florida Administrative Code, as

amended on January 18, 1998, states as follows in pertinent

part:

(1 ) All managers who are responsible for

the storage, preparation, display, and

serving of foods to the public shall have

passed a written certification test approved

by the division demonstrating a basic

knowledge of food protection practices

regulated and administered by the division

or an agency of state government outside

Florida which has been approved by the

division. Those managers who successfully

pass the certification examination shall be

issued a certificate which is valid for a

period of five years from the date of

issuance. All establishments shall

designate in writing the food service

manager or managers for each location.

Establishments that have four or more

employees at one time engaged in the

storage, preparation or serving of food

shall have at least one certified manager

present at all times when said activities

are taking place. All other establishments

shall have a certified manager or managers

responsible for all periods of operation but

said manager or managers need not be present

at all times. It shall be the

responsibility of the certified manager or

managers to inform all employees under their

supervision and control who engage in the

storage, preparation, or serving of food, to

do so in accordance with acceptable sanitary

practices as described in this chapter.

23. Chapter 3, paragraph 501.16 of the Food Code states as

follows in part:

3- 501.16 Potentially Hazardous Food, Hot

and cold Holding.

Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified under § 3-

501.19, Potentially Hazardous Food shall be

maintained:

* * *

(b ) At 5°C (41°F) or less, except as

specified under ¶(C) of this section and

§§3-501.17, 3-501.18, and 4-204.111.

24. Chapter 4, paragraph 601.11 of the F ood Code states as

follows in part:

4- 601.11 Equipment, Food-Contact

Surfaces, Nonfood-Contact Surfaces, and

Utensils.

(A ) Equipment food-contact surfaces and

utensils shall be clean to sight and touch.

* * *

(C ) Nonfood-contact surfaces of equipment

shall be kept free of an accumulation of

dust, dirt, food residue, and other debris.

25. Chapter 5, paragraph 103.12 of the Food Code states as

follows in part:

5- 103.12 Pressure.

Water under pressure shall be provided to

all fixtures, equipment, and nonfood

equipment that are required to use water

except that water supplied as specified

under ¶¶5-104.12(A) and (B) to a temporary

food establishment or in response to a

temporary interruption of a water supply

need not be under pressure.

26. Chapter 6, paragraph 501.12 of the Food Code provides

as follows in part:

6- 501.12 Cleaning, Frequency and

Restrictions

(A ) The physical facilities shall be

cleaned as often as necessary to keep them

clean.

27. Chapter 6, paragra ph 501.114 of the Food Code states

as follows in part:

6- 501.114 Maintaining Premises,

Unnecessary Items and Litter.

The premises shall be free of:

(A ) Items that are unnecessary to the

operation of maintenance of the

establishment such as equipment that is

nonfunctional or no longer used; and

(B ) Litter.

28. Chapter 6, paragraph 501.115 of the Food Code states

as follows in part:

6- 501.115 Prohibiting Animals.

(A ) Except as specified in ¶¶ (B) and (C)

of this section, live animals may not be

allowed on the premises of a food

establishment.

(B ) Live animals may be allowed in the

following situation if the contamination of

food, clean equipment, utensils, and linens,

and unwrapped single-use articles cannot

result:

* * *

(3 ) In areas that are not used for food

preparation such as dining and sales areas,

support animals such as guide dogs that are

trained to assist an employee or other

person who is handicapped, are controlled by

the handicapped employee or person, and are

not allowed to be on seats or tables . . . .

29. DOAH Case No. 01-2008 relates to inspections of

Respondents' establishment that occurred on August 26-28, 1998,

and November 18, 1998. Petitioner has met his burden of proving

that Respondents are guilty of violating the following

paragraphs of the Food Code: (a) 3-501.16(B), relating to

temperature of potentially hazardous food; (b) 4-601.11(A),

relating to cleanliness of equipment food-contact surfaces and

utensils; (c) 4-601.11(C), relating to cleanliness of nonfood-

contact surfaces of equipment; and (d) 6-501.114, relating to

litter on premises. Petitioner also met its burden that

Respondent violated the following rules: (a) Rules 61C-1.004(6)

and 61C-4.010(5), Florida Administrative Code, relating to the

maintenance and cleanliness of the physical facility, including

all building structural components, attachments and fixtures;

(b) Rule 61C-1.004(9)(d), Florida Administrative Code, relating

to the unsecured carbon dioxide tanks; and (c) Rule

61C-4.023(1), Florida Administrative Code, relating to the lack

of a certified food manager.

30. On the other hand, Respondents presented persuasive

testimony that the dog on the premises qualified as a "support

animal" that was kept in the establishment's office. Therefore,

Respondents are not guilty of violating paragraph 6-501.115 of

the Food Code.

31. DOAH Case No. 01-2006 relates to Petitioner's

inspections of Respondents' establishment that occurred on

March 30, 2000. Petitioner presented clear and convincing

evidence that Respondents were guilty of the following

violations on March 30, 2000: (a) failure to keep all equipment

food-contact and nonfood-contact surfaces and utensils clean;

and (b) failure to keep the physical facility clean. Therefore,

Respondents are guilty of violating paragraphs 4-601.11(A) ,

4-601.11(c), and 6-501.12 of the Food Code. Petitioner also met

its burden of proving that Respondent were in violation of Rule

61C-4.010(6)(b), Florida Administrative Code, because there was

no certified food manager on March 30, 2000.

32. Petitioner's March 30, 2000, inspection report,

together with its comments sheet, does not indicate that

Respondents violated Rule 61C-1.004(2)(d), Florida

Administrative Code, by failing to have running water under

pressure in the public bathrooms. Instead, the March 30, 2000,

inspection report indicates that Respondent had no water

pressure for an outside mop sink in violation of paragraph

5-103.12 of the Food Code. However, persuasive testimony at the

hearing indicates that Respondents had a special turn-off valve

in the establishment that would provide water pressure to the

outside sink on an as needed basis. Therefore, Respondents have

not violated paragraph 5-103.12 of the Food Code.

33. The Administrative Complaint in DOAH Case No. 01-2006

contains an allegation that Respondents had a dog in the

restaurant. Persuasive evidence indicates that the dog was a

"support animal" for Respondents' son. Therefore, Petitioner is

not guilty of violating paragraph 6-501.115 of the Food Code.

34. DOAH Case No. 01-2007 related to the June 14, 2000,

inspection of Respondents' establishment. The Administrative

Complaint charged Respondents with one violation of the Food

Code. Petitioner met its burden of proving, by clear and

convincing evidence, that Respondents violated paragraph

4-601.11(A) of the Food Code. The food-contact surfaces of

equipment and utensils in the restaurant were not clean to sight

and touch.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order imposing administrative

fines in the amount of $1,200 in DOAH Case No. 01-2006; $500 in

DOAH Case No. 01-2007; and $8,000 in DOAH Case No. 01-2008, and

suspending Respondents' license until they begin making monthly

payments on said fines in a minimum amount as determined by

Petitioner.

DONE AND ENTERED this 7th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of September, 2001.

COPIES FURNISHED :

Charles McMahan

Sandra McMahan

5324 Thomas Drive

Panama City, Florida 32408

Claudia J. Pamperin, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2002

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.