15-007350
Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs.
Latchman's Seafood Market And Grill, Inc., D/B/A Latchman's Seafood Market And Grill, Inc.
Status: Closed
Recommended Order on Thursday, May 5, 2016.
Recommended Order on Thursday, May 5, 2016.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND
12PROFESSIONAL REGULATION,
14DIVISION OF HOTELS AND
18RESTAURANTS,
19Petitioner,
20vs. Case Nos. 15 - 7347
2615 - 7350
29LATCHMAN'S SEAFOOD MARKET AND
33GRILL, INC., d/b/a LATCHMAN'S
37SEAFOOD MARKET AND GRILL, IN C.,
43Respondent.
44_______________________________/
45RECOMMENDED ORDER
47Pursuant to notice, a final hearing was conducted on
56March 10, 2016, before Administrative Law Judge ("ALJ") Robert L.
68Kilbride , Divisi on of Administrative Hearings ("DOAH") , via video
79teleconference, at locations in Lauderdale Lakes and Tallahassee,
87Florida.
88APPEARANCES
89For Petitioner: Charles F. Tunnicliff, Esquire
95Charles LaRay Dewrell, Esquire
99Depart ment of Business and
104Professional Regulation
1061940 North Monroe Street, Suite 42
112Tallahassee, Florida 32399
115For Respondent: No appearance
119STATEMENT OF THE ISSUE S
124Whether Respondent committed the viol ations alleged in the
133administrative complaints dated July 8, 2015, and September 30,
1422015 ; and, if so, what disciplinary action should be taken
152against Respondent.
154PRELIMINARY STATEMENT
156On July 8, 2015, Petitioner, Department of Business and
165Professional Regulation, Division of Hotels and Restaurants
172( " Division " or "Petitioner" ), filed an Administrative Complaint,
181DBPR Case No. 2015 - 029646, against Respondent , Latchman's Seafood
191Market and Grill, Inc., d/b/a Latchman's Seafood Market and
200Grill, Inc . The A dministrative Complaint alleged the following
210violation:
211(1) Respondent failed to take effective measures to protect
220the establishment against the entrance and the breeding on the
230premises of all vermin, in violation of s ection 509.221(7),
240Florida Statut es (2015). 1/
245Subsequently, on September 30, 2015, Petitioner filed a
253separate Administrative Complaint, DBPR Case No. 2015 - 042510,
262against Respondent. The Administrative Complaint alleged the
269following violations:
271(1) Respondent ' s employee was engaging in food preparation
281while not wearing a hair restraint, in violation of Food Code
292Rule 2 - 402.11 (2009). 2/
298(2) Respondent ' s freezer chest door was in disrepair, in
309violation of Food Code Rule 4 - 501.11.
317(3) Respondent failed to take effective measures to protect
326the establishment against the entrance and the breeding on the
336premises of all vermin, in violation of s ection 509.221(7).
346(4) T he outer openings on Respondent ' s establishment were
357not protected with self - closing doors, in violation of Food Code
369R ule 6 - 202.15(A) , (C) , and (D) .
378(5) Respondent failed to provide proof of valid food
387manager certification for its food manager upon the inspector' s
397request, in violation of s ection 509.039.
404(6) Respondent failed to provide proof of valid employee
413food ha ndler training certifications for its employees upon
422request, in violation of se ction 509.045(5).
429On December 7, 2015 , and on December 10, 2015, Respondent
439executed an Election of Rights form for DBPR Case No. 2015 - 042510
452and DBPR Case No. 2015 - 029646, res pectively , and requested formal
464administrative hearings involving disputed issues of material
471fact.
472O n December 29, 2015, Petitioner referred both of the above
483cases to DOAH to conduct a formal hearing.
491On January 6, 2016, an Order of Consolidation was iss ued,
502consolidating the above cases for all purposes, including final
511hearing, pursuant to Florida Administrative Code Rule 28 - 106.108
521(April 1, 1997) . 3/
526At the final hearing, Petitioner presented the testimony of
535two witnesses, Deborah Audain, s anitation a nd s afety s pecialist
547( " Inspector Audain " or "Audain" ) , and Rebecca Howard, s anitation
558and s afety s pecialist ( " Inspector Howard " or "Howard" ).
569Petitioner offered seven exhibits , which were accepted into
577evidence. Despite proper and timely notification, Re spondent
585failed to appear or attend the hearing, present any testimony, or
596offer any exhibits.
599The T ranscript of the hearing was filed with the Clerk of
611DOAH on April 8, 2016. Petitioner timely filed a Proposed
621Recommended Order. Respondent did not file a post - hearing
631document.
632FINDING S OF FACT
636Based on the evidence presented at the final hearing, the
646undersigned makes the following findings of relevant and material
655facts:
6561. The Division is the state agency charged with regulating
666public lodging and pub lic food service establishments pursuant to
676chapter 509.
6782. At all times material hereto, Respondent was licensed as
688a public food service establishment in the s tate of Florida by
700the Division. P et . Ex. 1.
7073. The Division's first witness, Inspector Auda in, is
716employed by the Division as a s anitation and s afety s pecialist at
7305080 Coconut Creek Parkway, Suite A, Margate, Florida 33063.
739Audain has worked for the Division for approximately ten years as
750an inspector. Prior to working for the Division, Audai n worked
761in the food industry as a managing partner at a restaurant in New
774York.
7754. Upon gaining employment in the Division, Audain was
784trained on the Food Code and the laws and rules pertaining to
796public food service establishments and public lodging
803est ablishments. Audain is also a c ertified f ood m anager. Audain
816receives continuing education and training on a monthly basis.
825Audain performs more than 700 inspections each year.
8335 . The Division' s second witness, Inspector Howard, is
843employed by the Divi sion as a s anitation and s afety s pecialist at
8585080 Coconut Creek Parkway, Suite A, Margate, Florida 33063.
867Howard has worked for the Division for approximately one and one -
879half years.
8816. Prior to working for the Division, Howard worked in the
892food indust ry as an executive chef at a Hilton Hotel in Tampa, a
906chef at a W Hotel in South Beach, and a chef at Los Hotel in
921South Beach.
9237. Upon gaining employment in the Division, Howard was
932trained on the Food Code and on the laws and rules pertaining to
945public food service establishments and public lodging
952establishments. Howard is also a c ertified f ood m anager. Howard
964receives continuing education and training on a monthly basis.
973Howard performs approximately 800 inspections each year.
9808. " Basic Item " means an item defined in the Food Code as a
993C ore I tem. Fla. Admin. Code R . 61C - 1.001(5) ( January 1, 2013).
10099 . " Basic violation " means a violation of a basic item, as
1021defined in Florida Administrative Code Rule 61C - 1.001 or a
1032violation of c hapter 509 or c hapte r 61C, which relates to general
1046sanitation and does not meet the definition of high priority
1056violation or intermediate violation and is not otherwise
1064identified in subsection (6) of rule 61C - 1.005 .
107410. " Intermediate violation " means a violation of an
1082inte rmediate item, as defined in r ule 61C - 1.001 or a violation of
1097c hapter 509 or c hapter 61C, which relates to specific actions,
1109equipment , or procedures that contribute to the occurrence of a
1119high priority violation, but does not meet the definition of high
1130p riority violation or basic violation and is not otherwise
1140identified in subsection (6) of rule 61C - 1.005 .
115011. " High priority violation " means a violation of a high
1160priority item, as defined in r ule 61C - 1.001 or a violation of
1174c hapter 509 or c hapter 61C, d etermined by the D ivision to pose a
1190direct or significant threat to the public health, safety, or
1200welfare and is not otherwise identified in subsection (6) of
1210rule 61C - 1.005 .
1215DBPR C ase N o . 2015 - 029646
12241 2 . On July 1, 2015, Audain performed an inspection of
1236Latchman ' s Seafood Market and Grill, Inc. During the inspection,
1247Audain prepared and signed an inspection report setting forth the
1257violation she encountered during the inspection. P et . Ex. 2 .
126913 . On July 1, 2015, Audain notified Respondent of the
1280cited violation. Ricardo Latchman signed the inspection report
1288on behalf of R espondent. P et . Ex. 2.
12981 4 . During the inspection on July 1, 2015, Audain observed
1310roach activity present as evidenced by eight live roaches found
1320crawling on the floor in the food s ervice area, three live
1332roaches crawling on the fryer in the kitchen, three live roaches
1343found by the water heater in the kitchen, two live roaches found
1355between the hose from the water heater and the wall, two live
1367roaches found underneath the kitchen pre p table, at least six
1378live roaches found in the air conditioner closet, one live roach
1389crawling on the wall next to the refrigerator, five live roaches
1400crawling on the reach - in cooler by the door to the front service
1414area, and one live roach crawling on th e wall in the front
1427service area of the establishment. This is a violation because
1437roaches can place the health of consumers at risk by transferring
1448and transmitting bacteria and disease to food, food contact
1457surfaces, and food storage areas. P et . Ex. 2.
14671 5 . As a result of these observations, the Division entered
1479an Order of Emergency Suspension of License and Closure against
1489Respondent. The emergency order was issued on the same date as
1500the inspection, July 1, 2015. P et . Ex. 7.
1510DBPR C ase N o . 2015 - 042 510
15201 6 . O n July 16, 2015, Audain performed an inspection of
1533Latchman ' s Seafood Market and Grill, Inc. During this
1543inspection, Audain prepared and signed an inspection report
1551setting forth the violations she encountered during the
1559inspection. P et . Ex. 3.
15651 7 . On July 16, 2015, Audain notified Respondent about the
1577violations and informed Respondent that the violations needed to
1586be corrected by July 17, 2015. Mr. Latchman signed the
1596inspection report on behalf of Respondent. P et . Ex. 3.
16071 8 . On July 17, 2 015, Howard performed a callback
1619inspection of Latchman ' s Seafood Market and Grill, Inc. During
1630the inspection, Howard prepared and signed an inspection report
1639indicating that some of the violations noted on the July 16,
16502015 , inspection report had not be en corrected. P et . Ex. 4.
166319 . O n July 17, 2015, Howard notified Respondent about the
1675violations and informed Respondent that the violations needed to
1684be corrected by September 1, 2015. Mr. Latchman signed the
1694inspection report on behalf of Respondent. P et . Ex. 4.
170520 . O n September 2, 2015, Audain performed a callback
1716inspection of Latchman ' s Seafood Market and Grill, Inc. During
1727the inspection, Audain prepared and signed an inspection report
1736indicating that some of the violations noted on the July 16,
17472015 , and July 17, 2015 , inspection reports had not been
1757corrected. P et . Ex. 5.
176321 . O n September 2, 2015, Audain notified Respondent about
1774the violations and informed Respondent that the violations needed
1783to be corrected by September 3, 2015. Mr. Latchm an signed the
1795inspection report on behalf of Respondent. P et . Ex. 5.
18062 2 . On September 3, 2015, Audain performed a callback
1817inspection of Latchman ' s Seafood Market and Grill, Inc. During
1828the inspection, Audain prepared and signed an inspection report
1837ind icating that some of the violations noted on the July 16,
18492015 ; July 17, 2015 ; and September 2, 2015 , inspection reports
1859had not been corrected. P et . Ex. 6.
18682 3 . The first violation was observed during the July 16,
18802015 ; September 2, 2015 ; and September 3 , 2015 , inspections.
1889Audain observed employees engaging in food preparation without
1897proper hair restraints. This is a violation because hair can be
1908both a direct and indirect vehicle for contamination. Food
1917employees may contaminate their hands when the y touch their hair.
1928Proper use of a hair restraint keeps dislodged hair from ending
1939up in the food and may also deter employees from touching their
1951hair.
19522 4 . The Food Code defines the governing requirement for the
1964first violation as a Core I tem. The D iv ision has designated
1977violations of C ore I tems as basic violations. P et . Ex. 3, 5 - 6 ;
1994Fo od Code 2009 - Annex 3 Public Health Reasons/Administrative
2004Guidelines , p . 367; Fla. Admin. Code R . 61C - 1.005(5)(c).
20162 5 . The second violation was observed during the Ju ly 16,
20292015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,
2040inspections. The inspectors observed equipment in poor repair as
2049evidenced by a freezer chest door having filament (insulation)
2058exposed. This is a violation because failure to properly
2067maintain equipment could lead to violations of the associated
2076requirements of the Food Code that place the health of the public
2088at risk. Refrigeration units in disrepair may no longer be
2098capable of properly cooling or holding potentially hazardous
2106(time/ temperature control for safety) foods at safe temperatures.
2115The Food Code defines the governing requirement for the second
2125violation as a Core I tem.
21312 6 . The D ivision has designated Co re I tems as basic
2145violations. P et . Ex. 3 - 6; Food Code 2009 - Annex 3 P ublic Health
2162Reasons/Administrative Guidelines , p . 460; Fla. Admin. Code
2170R . 61C - 1.005(5)(c).
21752 7 . The third violation was observed during the July 16,
21872015 ; September 2, 2015 ; and September 3, 2015 , inspections.
2196During the July 16, 2015 , inspection, Audai n observed roach
2206activity present as evidenced by four live roaches found nestled
2216in crevices by the air conditioner in the kitchen and one live
2228roach crawling on the floor in front of the reach - in cooler
2241between the kitchen and front service area.
22482 8 . Du ring the September 2, 2015 , inspection, Audain
2259observed one live roach crawling on the kitchen floor. Audain
2269also observed one dead roach in the dining room freezer and one
2281dead roach near the kitchen door during her inspection on
2291September 3, 2015. This is a violation because roaches can place
2302the health of consumers at risk by transferring and transmitting
2312bacteria and disease to food, food contact surfaces, and food
2322storage areas.
232429 . T he Division properly designated this violation as a
2335high priority violation. P et . Ex. 3, 5 - 6; Fla. Admin. Code
2349R . 61C - 1.005(5)(a).
23543 0 . The fourth violation was observed during the July 16,
23662015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,
2377inspections. The inspectors observed outer openings to the
2385establis hment not protected as evidenced by a rear door which was
2397not self - closing. This is a violation because the presence of
2409insects and rodents (which may transmit bacteria and disease to
2419food) is minimized by protecting and securing outer door openings
2429to th e food establishment.
243431 . T he Food Code defines the governing requirement for the
2446fourth violation as a C ore I tem. The D ivision has designated
2459violations of C ore I tems as basic violations. P et . Ex. 3 - 6; Food
2476Code 2009 - Annex 3 Public Health Reasons/Adm inistrative
2485Guidelines , p p. 485 - 486; Fla. Admin. Code R . 61C - 1.005(5)(c).
24993 2 . T he fifth violation was observed during the July 16,
25122015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,
2523inspections. During these inspections, the establishment fai led
2531to provide the inspectors with proof of the manager ' s food
2543manager certification upon request.
25473 3 . This is a violation because managers are required to
2559pass an approved food manager certification course and test which
2569ensures managers have a higher le vel of knowledge regarding
2579sanitation and food handling, preparation, and storage. Lack of
2588the required knowledge can result in breakdowns in these
2597processes. The D ivision has designated this violation as an
2607intermediate violation. P et . Ex. 3 - 6; Fla. Ad min. Code R . 61C -
26241.005(5)(b).
26253 4 . The sixth violation was observed during the July 16,
26372015 ; July 17, 2015 ; September 2, 2015 ; and September 3, 2015 ,
2648inspections. During these inspections, the establishment failed
2655to provide the inspectors with proof of the employeesÓ required
2665state - approved employee training.
26703 5 . This is a violation because employees of restaurants
2681are required to have basic food safety training, which imparts
2691knowledge of basic food handling skills, including proper glove
2700use, procedur es for food temperatures and hot/cold holding,
2709cooking temperature requirements, and basic sanitation measures ,
2716such as personal hygiene and hand - washing. Lack of this
2727knowledge can result in a breakdown in these processes, possibly
2737leading to food - borne illness or unsanitary conditions.
27463 6 . The Division properly designated this violation as an
2757intermediate violation. P et . Ex. 3 - 6; Fla. Admin. Code R. 61C -
27721.005(5)(b).
27733 7 . Respondent had one Emergency Order of Suspension of
2784License and Closure filed with the a gency c lerk by the D ivision
2798within the 12 months preceding the date the current
2807a dministrative c omplaints were issued. The Emergency Order of
2817Suspension of License and Closure was filed on July 7, 2015.
2828P et . Ex. 7 .
2834CONCLUSIONS OF LAW
283738. DOAH has jurisdiction over the subject matter of this
2847proceeding and the parties thereto pursuant to sections 120.569
2856and 120.57(1), Florida Statutes.
286039 . Petitioner has jurisdiction over the operation of
2869public lodging establishments and public food service
2876estab lishments in Florida, pursuant to section 20.165 , Florida
2885Statutes, and chapter 509.
288940 . Petitioner is authorized to take disciplinary action
2898against the holder of such a license for operating in violation
2909of chapter 509, or the rules implementing that ch apter.
291941 . Section 509.261(1) provides that any public lodging
2928establishment or public food service establishment that has
2936operated or is operating in violation of c hapter 509, or the
2948rules promulgated thereunder, is subject to fines not to exceed
2958$1,000. 00 per offense, and the suspension, revocation, or refusal
2969of a license.
297242. In a proceeding such as this one , where Petitioner
2982seeks to discipline Respondent's license and/or to impose an
2991administrative fine, Petitioner has the burden of proving the
3000alle gations charged in the a dministrative c omplaint s against
3011Respondent by clear and convincing evidence. Dep't of Banking &
3021Fin. , Div. of Sec. & Investor Prot. v. Osborne Stern & Co. , 670
3034So. 2d 932 (Fla. 1996) (citing Ferris v. Turlington , 510 So. 2d
3046292, 2 94 - 95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg. ,
3061654 So. 2d 205, 207 (Fla. 1st DCA 1995).
307043 . Regarding the standard of proof, in Slomowitz v.
3080Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the c ourt held
3094that clear and convincing evidence requi res that the evidence
3104must be found to be credible; the facts to which the witnesses
3116testify must be distinctly remembered; the testimony must be
3125precise and explicit and the witnesses must be lacking confusion
3135as to the facts in issue. The evidence must be of such weight
3148that it produces in the mind of the trier of fact a firm belief
3162or conviction, without hesitancy, as to the truth of the
3172allegations sought to be established. Id.
317844 . In addition, any disciplinary action must be based only
3189upon the offe nses specifically alleged in the a dministrative
3199c omplaint. See Sternberg v. De p' t of Prof 'l Reg . , Bd . of Med .
3217Exam ' rs , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v.
3231Dep ' t of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter
3246v. Dep ' t of Prof ' l Reg . , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).
326545 . Section 509.032(6) provides that Petitioner shall adopt
3274such rules as are necessary to carry out the provisions of the
3286c hapter.
328846 . Florida Administrative Code Rule 61C - 1.001(14)
3297(January 1, 2013) states , in pertinent part:
3304Food Code - This term as used in Chapters
331361C - 1, 61C - 3, and 61C - 4, F.A.C., means
3325paragraph 1 - 201.10(B), Chapter 2, Chapter 3,
3333Chapter 4, Chapter 5, Chapter 6, Chapter 7,
3341and Sections 8 - 103.11 and 8 - 103.12 of the
3352Food Code, 2009 Recomme ndations of the United
3360States Public Health Service/Food and Drug
3366Administration including Annex 3: Public
3371Health Reasons/Administrative Guidelines;
3374Annex 5: Conducting Risk - based
3380Inspections(https://www.flrules.org/Gateway/r
3381eference.asp?No=Ref - 01536 ), he rein adopted by
3390reference.
339147 . Rule 61C - 1.005(6) states , in pertinent part:
3401(6) Standard penalties. This section
3406specifies the penalties routinely imposed
3411against licensees and applies to all
3417violations of law subject to a penalty under
3425Chapter 509, F. S.
3429(a) Basic violation.
34321. 1st offense Î Administrative fine of $150
3440to $300.
3442* * *
3445(b) Intermediate violation.
34481. 1st offense Î Administrative fine of $200
3456to $400.
3458* * *
3461(c) High priority violation.
34651. 1st offense - Administ rative fine of $250
3474to $500.
347648 . Rule 61C - 1.005(6)(o) states , in pertinent part:
3486(6) Standard penalties. This section
3491specifies the penalties routinely imposed
3496against licensees and applies to all
3502violations of law subject to a penalty under
3510Chapter 50 9, F.S.
3514* * *
3517(o) Any violation requiring an Order of
3524Emergency Suspension of License and Closure,
3530as authorized by Chapter 509, F.S.
35361. 1st offense Î Administrative fine of
3543$500.
354449 . R ule 61C - 1.005(7)(a)4. states , in pertinent part:
3555(7) Ag gravating or mitigating factors . The
3563division may deviate from the standard
3569penalties in paragraphs (a) through (n) of
3576subsection (6) above, based upon the
3582consideration of aggravating or mitigating
3587factors present in a specific case. The
3594division may de viate from the standard
3601penalties in paragraph (o) of subsection (6)
3608above, based upon the consideration of
3614aggravating factors present in a specific
3620case. The division shall consider the
3626following aggravating and mitigating factors
3631in determining the app ropriate disciplinary
3637action to be imposed and in deviating from
3645the standard penalties:
3648(a) Aggravating f actors .
3653* * *
36564. Number of Emergency Orders of Suspension
3663or Closure against the same licensee filed
3670with the Agency Clerk by the divisio n within
3679the 12 months preceding the date the current
3687administrative complaint was issued.
3691DBPR C ase N o . 2015 - 029646
370050 . Section 509.221(7) states:
3705The operator of any establishment licensed
3711under this chapter shall take effective
3717measures to protect the establishment
3722against the entrance and the breeding on the
3730premises of all vermin. Any room in such
3738establishment infested with such vermin shall
3744be fumigated, disinfected, renovated, or
3749other corrective action taken until the
3755vermin are exterminated.
37585 1. Petitioner proved by clear and convincing evidence that
3768Respondent violated s ection 509.221(7), because numerous live
3776roaches were present on July 1, 2015. The presence of
3786approximately three dozen roaches provides sufficient evidence
3793that any means taken by Respondent to eliminate their entrance or
3804breeding was ineffective.
380752 . The Order of Emergency Suspension of License and
3817Closure contained in Petitioner ' s Exhibit 7 has been reviewed for
3829determination of penalty, and , having been considered, it i s
3839concluded that the July 1, 2015 , violation required an Order of
3850Emergency Suspension of License and Closure. Therefore, r ule
385961C - 1.005(6)(o) is the appropriate penalty guideline for the
3869violation.
387053 . As noted, Respondent is guilty of one violation
3880res ulting in an Emergency Order of Suspension of License and
3891Closure. Pursuant to r ule 61C - 1.005(7), mitigating factors do
3902not apply to the r ule 61C - 1.005(6)(o) penalty guideline.
3913Therefore, a $500 .00 fine is the appropriate penalty.
3922DBPR C ase N o . 2015 - 0425 10
393254 . Food Code Rule 2 - 402.11 states:
3941Effectiveness
3942(A) Except as provided in paragraph (B) of
3950this section, food employees shall wear hair
3957restraints such as hats, hair coverings or
3964nets, beard restraints, and clothing that
3970covers body hair, that are designed and worn
3978to effectively keep their hair from
3984contacting exposed food; clean equipment,
3989utensils, and linens; and unwrapped single -
3996service and single - use articles.
400255 . Petitioner proved by clear and convincing evidence
4011that Respondent violated F ood Code Rule 2 - 402.11, because
4022Respondent ' s employee was observed engaging in food preparation
4032without proper hair restraint s on July 16, 2015 ; September 2,
40432015 ; and September 3, 2015.
404856 . Food Code Rule 4 - 501.11 states , in part:
4059Good Repair and Proper Adjustment
4064(A) Equipment shall be maintained in a state
4072of repair and condition that meets the
4079requirements specified under Parts 4 - 1
4086and 4 - 2.
4090(B) Equipment components such as doors,
4096seals, hinges, fasteners, and kick plates
4102shall be kept intact, tight , and adjusted
4109in accordance with manufacturer's
4113specifications.
411457 . Petitioner proved by clear and convincing evidence that
4124Respondent violated Food Code Rule 4 - 501.11, because the freezer
4135chest door was observed in disrepair with exposed filament
4144(insu lation) on July 16, 2015 ; July 17, 2015 ; September 2, 2015 ;
4156and September 3, 2015.
416058 . Section 509.221(7) states:
4165The operator of any establishment licensed
4171under this chapter shall take effective
4177measures to protect the establishment against
4183the entrance and the breeding on the premises
4191of all vermin. Any room in such
4198establishment infested with such vermin shall
4204be fumigated, disinfected, renovated, or
4209other corrective action taken until the
4215vermin are exterminated.
421859 . A public food service establish ment has violated
4228s ection 509.221(7), if vermin, such as roaches, are present in
4239the establishment or there is evidence of their presence in the
4250establishment, even if measures were taken to prevent their
4259entrance and breeding. See Dep ' t of Bus. & Prof ' l Reg. v.
4274Brother & Sister ' s Barbeque, Inc. , Case No. 06 - 5338 (Fla. DOAH
4288June 22, 2007; Fla. DBPR July 31, 2007) (Respondent violated Food
4299Code Rule 6 - 501.111, where Massey Services had treated the
4310establishment two days before the inspector observed rodent
4318droppings during an inspection.) ; and Dep ' t of Bus. & Prof ' l Reg.
4333v. Subway No. 32148 , Case No. 12 - 3871 (Fla. DOAH May 10, 2013;
4347Fla. DBPR June 6, 2013) (Respondent violated Food Code Rule 6 -
4359501.111, because of the observed presence of 17 live roaches
4369duri ng inspection establishes that Respondent ' s efforts to
4379control pests were inadequate and ineffective . ).
438760 . The cited cases involved violations of Food Code
4397Rule 6 - 501.111 (2001). This requirement is similar to the
4408requirements of s ection 509.221(7). Fo od Code Rule 6 - 501.111
4420required an establishment to control insects, rodents, and
4428other pests to minimize their presence on the premises by:
4438(A) routinely inspecting incoming shipments of food and supplies;
4447(B) routinely inspecting the premises for evidenc e of pests;
4457(C) using methods, if pests are found, such as trapping devices
4468or other means of pest control as specified under Food Code
4479Rules 7 - 202.12, 7 - 206.12, and 7 - 206.13; and (D) eliminating
4493harborage conditions.
449561. Similarly, s ection 509.221(7) req uires an establishment
4504to take effective measures to protect the establishment against
4513the entrance and the breeding on the premises of all vermin.
4524Evidence of rodents and the presence of live roaches violated
4534Food Code Rule 6 - 501.111 , because they establ ish the measures
4546taken to control pests were inadequate and ineffective.
4554Likewise, the presence of more than 20 live roaches establishes
4564that Respondent failed to take effective measures to prevent the
4574entrance and breeding of roaches.
457962 . Petitioner pro ved by clear and convincing evidence that
4590Respondent violated s ection 509.221(7), because numerous live
4598roaches were present on July 16, 2015 ; September 2, 2015 ; and
4609September 3, 2015. The presence of roaches during the three
4619inspections establishes that any means taken by Respondent to
4628eliminate their entrance or breeding was ineffective.
463563. Food Code Rule 6 - 202.15(A) and (C) states , in pertinent
4647part:
4648Outer Openings, Protected .
4652(A) Except as specified in ¶¶ (B), (C), and
4661(E) and under ¶ (D) of this section, outer
4670openings of a food establishment shall be
4677protected against the entry of insects and
4684rodents by:
4686(1) Filling or closing holes and other gaps
4694along floors, walls, and ceilings;
4699(2) C losed, tight - fitting windows; and
4707(3) Solid, self - clos ing, tight - fitting
4716doors.
4717* * *
4720(C) Exterior doors used as exits need not be
4729self - closing if they are:
4735(1) Solid and tight - fitting [.]
474264. Petitioner proved by clear and convincing evi dence that
4752Respondent violated Food Code Rule 6 - 202.15(A) , (C) , and (D) due
4764to having outer doors which were not sufficiently self - closing or
4776secured.
477765 . Section 509.039 states, in part:
4784Food service manager certification - It is
4791the duty of the division to adopt, by rule,
4800food safety protection standards for t he
4807training and certification of all food
4813service managers who are responsible for the
4820storage, preparation, display, or serving of
4826foods to the public in establishments
4832regulated under this chapter. The standards
4838adopted by the division shall be consiste nt
4846with the Standards for Accreditation of Food
4853Protection Manager Certification Programs
4857adopted by the Conference for Food
4863Protection. These standards are to be
4869adopted by the division to ensure that, upon
4877successfully passing a test, approved by the
4884Co nference for Food Protection, a manager of
4892a food service establishment shall have
4898demonstrated a knowledge of basic food
4904protection practices.
490666 . Petitioner proved by clear and convincing evidence that
4916Respondent violated s ection 509.039, because Resp ondent failed to
4926provide proof of food manager certification for its manager upon
4936request on July 16, 2015 ; July 17, 2015 ; September 2, 2015 ; and
4948September 3, 2015.
495167 . Section 509.049(5) states:
4956It shall be the duty of each public food
4965service establishm ent to provide training in
4972accordance with the described rule to all
4979food service employees of the public food
4986service establishment. The public food
4991service establishment may designate any
4996certified food service manager to perform
5002this function. Food se rvice employees must
5009receive certification within 60 days after
5015employment. Certification pursuant to this
5020section shall remain valid for 3 years. All
5028public food service establishments must
5033provide the division with proof of employee
5040training upon reque st, including but not
5047limited to, at the time of any division
5055inspection of the establishment. Proof of
5061training for each food service employee shall
5068include the name of the trained employee, the
5076date of birth of the trained employee, the
5084date the trainin g occurred, and the approved
5092food safety training program used.
509768 . Petitioner proved by clear and convincing evidence that
5107Respondent violated s ection 509.049(5), because Respondent failed
5115to provide proof of the required state - approved employee traini ng
5127for its employees upon request on July 16, 2015 ; July 17, 2015 ;
5139September 2, 2015 ; and September 3, 2015.
514669. T he Order of Emergency Suspension of License and
5156Closure contained in Petitioner ' s Exhibit 7 has been reviewed for
5168determination of penalty, a nd , having been considered, it is also
5179concluded that an Emergency Order of Suspension and Closure was
5189filed against Respondent with the a gency c lerk by the D ivision
5202within the 12 months preceding the Administrative Complaint dated
5211September 30, 2015, and is an aggravating factor with regard to
5222the violations cited in that Administrative Complaint.
522970. As noted, Respondent is guilty of three basic
5238violations, two intermediate violations , and one high priority
5246violation. A reasonable fine in this case is $ 225 .00 for each
5259basic violation, $300 .00 for each intermediate violation, and
5268$375 .00 for the high priority violation, for a total fine of
5280$1,650. 00.
5283RECOMMENDATION
5284Based on the foregoing Findings of Fact and Conclusions of
5294Law, it is RECOMMENDED that a f i nal o rder be entered by the
5309Department of Business and Professional Regulation, Division of
5317Hotels and Restaurant s , ordering Latchman ' s Seafood Market and
5328Grill, Inc., d/b/a Latchman ' s Seafood Market and Grill, Inc., to
5340pay an administrative penalty in the amount of $500.00 for the
5351violation listed above in DBPR Case No. 2015 - 029646 and an
5363administrative penalty in the amount of $1,650.00 in DBPR Case
5374No. 2015 - 042510, for a total administrative penalty of $2,150.00,
5386plus any applicable and authorized invest igative expenses or
5395costs, due and payable to the Department of Business and
5405Professional Regulation, Division of Hotels and Restaurants,
54121940 North Monroe Street, Tallahassee, Florida 32399 - 1011, within
542230 calendar days of the date of th e final o rder .
5435DON E AND ENTERED this 5th day of May , 2016 , in Tallahassee,
5447Leon County, Florida.
5450S
5451ROBERT L. KILBRIDE
5454Administrative Law Judge
5457Division of Administrative Hearings
5461The DeSoto Building
54641230 Apalachee Parkway
5467Tallahassee, Flor ida 32399 - 3060
5473(850) 488 - 9675
5477Fax Filing (850) 921 - 6847
5483www.doah.state.fl.us
5484Filed with the Clerk of the
5490Division of Administrative Hearings
5494this 5th day of May , 2016 .
5501ENDNOTE S
55031/ References to Florida Statutes are to the 2015 version, unless
5514otherwi se indicated.
55172/ References to Food Code rules are to the 2009 version, unless
5529otherwise indicated.
55313/ References to Florida Administrative Code rules are to the
5541May 31, 2015, version, unless otherwise indicated.
5548COPIES FURNISHED:
5550Ricardo Latchman
5552La tchman's Seafood Market
5556and Grill, Inc.
5559117 North State Road 7
5564Plantation, Florida 33317
5567Charles F. Tunnicliff, Esquire
5571Charles LaRay Dewrell, Esquire
5575Department of Business and
5579Professional Regulation
55811940 North Monroe Street , Suite 42
5587Tallahassee, Florida 32399
5590(eServed)
5591Rick Akin , Director
5594Division of Hotels and Restaurants
5599Department of Business and
5603Professional Regulation
5605Northwood Centre
56071940 North Monroe Street
5611Tallahassee, Florida 32399
5614(eServed)
5615Jason Maine , General Counsel
5619Department of Business and
5623Professional Regulation
5625Northwood Centre
56271940 North Monroe Street
5631Tallahassee, Florida 32399
5634(eServed)
5635NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5641All parties have the right to submit written exceptions within
565115 days from the date of this R ecommended Order. Any exceptions
5663to this Recommended Order should be filed with the agency that
5674will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 05/05/2016
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 04/08/2016
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 03/10/2016
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 03/02/2016
- Proceedings: Letter to Judge Kilbride from Charles Dewrell enclosing Petitioner's Exhibits filed (exhibits numbered 1-7; not available for viewing).
Case Information
- Judge:
- ROBERT L. KILBRIDE
- Date Filed:
- 12/29/2015
- Date Assignment:
- 12/30/2015
- Last Docket Entry:
- 06/08/2016
- Location:
- Lauderdale Lakes, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Charles LaRay Dewrell, Esquire
Address of Record -
Marc A. Drexler, Esquire
Address of Record -
Ricardo Latchman
Address of Record