Judges: CHARLES C. ADAMS
Agency: Department of Business and Professional Regulation
Latest Update: Jul. 24, 1980
Summary: Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all foods were not properly stored and protected from all sources of contamination, in violation of Rule 7C- 4.01(2)(a)(k)(m), F.A.C. Whether or not on on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all floors were not kept clean, in violation of Rule 7C-4.01(6)(a)(b), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection
Summary: Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all foods were not properly stored and protected from all sources of contamination, in violation of Rule 7C- 4.01(2)(a)(k)(m), F.A.C. Whether or not on on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all floors were not kept clean, in violation of Rule 7C-4.01(6)(a)(b), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the walk-in cooler was not kept clean, in violation of Rule 7C-4.01(4)(a)(1), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the dishwasher was not kept clean, in violation of Rule 7C-4.01(4)(f), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the premises were not free of roaches, in violation of 7C-4.01(5)(h), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that all garbage cans were not kept clean in violation of Rule 7C-4.01(5)(g), F.A.C. Whether or not on or about June 20, 1977 the Petitioner's inspection of the licensed premises revealed that the kitchen was not kept clean in violation of Rule 7C-4.01(6)(f), F.A.C.Respondent did not keep premises clean as mandated by the rules. Impose $50 fine.
More
vs. ) CASE NO. 77-1238
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at Room 103, Office of the Division of Administrative Hearings, 101 Collins Building, Tallahassee, Florida, at 9:00 A.M., September 1, 1977.
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
For Respondent: Russell M. McGregor
This cause comes on for consideration based upon the Petitioner's notice to show cause issued to the Respondent, and the Respondent's request for formal hearing on the allegations set forth in the notice to shown cause. Those allegations will be more completely discussed in the latter portions of this recommended order.
The Respondent, Flanigans, Inc., does business under the name Flanigans, at a licensed premises located at 303 East Jefferson Street, Tallahassee, Florida. The Respondent is licensed by Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. The license number is number 47-52R. That license was in effect during the pendency of the matters which are at issue.
On June 20, 1977 Elliott Duggar, Inspector I, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, went to the licensed premises to inspect the conditions found in the restaurant. This inspection is conducted in accordance with the terms of the license held by the Respondent under the permission of the Petitioner. This inspection was being conducted in accordance with the requirement that periodic inspections be made and also pursuant to a complaint made by a patron in the restaurant. The Complaint concerns the patron's discovery of some form of bug located in a baked potato which he had been served. (The last periodic inspection had been held in February, 1977.)
The current inspection took place around 10:00 o'clock A.M. While inspecting in the food preparation area, Mr. Duggar observed that one food container containing slaw, was not covered. By this it meant that the saran wrap that was on the top of the container had fallen into the slaw. In addition an employee was dipping slaw from this container into other containers by using a bowl, which did not have a handle and which allowed the employee's hands to touch the slaw.
Duggar also observed bread in the middle of the room which was not wrapped. There were bread crumbs on the floor in the food preparation area.
During the course of the check Mr. Duggar saw a residue of grease on the floor and some grease underneath the kitchen equipment. Specifically, there was grease behind and under the stove.
The walls were found to be dirty. There were signs of roaches, which the witness Duggar described as "leavings". These were found in one of the store rooms found in the kitchen area. Duggar also saw a roach in the kitchen area.
The area of the dishwasher was dirty and there were a number of pots and pans and dishware stacked on the dishwasher, which were dirty. The inside of the dishwasher was dirty.
The garbage cans in the premises were dirty. The garbage can in the area of the dishwasher had a foul odor and trash in the bottom of the can.
As a result of his inspection, Dugger rendered a written report which is Respondent's Exhibit #2, admitted into evidence. Following the report the restaurant was cited for violations, and these violations constitute the basis of the case.
In explaining the condition of the licensed premises on the date of inspection, the licensee established that it had lost its dishwasher the night before, when the dishwashing employee walked off the job. In addition the all day waiter that was assigned for the June 19, 1977 shift was not available, which further contributed to the problems in the kitchen area.
On June 24, 1977, Mr. Duggar returned to the licensed premises for a follow up inspection and noted that the licensee had compliance with his request to clean, with the exception of the area underneath the equipment, back of the cooking equipment specifically, which was still dirty. A copy of the call back inspection report may be found as Respondent's Exhibit #1, admitted into evidence.
The initial count in the notice to show cause brought against the Respondent contain alleged violations of Rule 7C-4.01(2)(a)(k)(m), F.A.C. Those various provisions state as follows:
"(2) Food Protection
Food while being stored, prepared, displayed, served or sold at a food service establishment shall be protected from dust, flies, rodents, and other vermin, toxic materials, unclean equipment and utensils, unnecessary handling, coughs and sneezes, flooding by sewage, overhead leakage and all other sources of contamination.
(k) Food shall be displayed and served in such manner as to minimize contamination. Manual contact with unpackaged foods shall be avoided. Clean tongs, scoops, forks, spoons, spatulas or other suitable implements shall be used by employees. Similar implements shall be provided for self-service by customers. Sugar, if provided, shall be in closed dispensers or in individual packages.
(m) Unwrapped foods which are displayed or otherwise placed on counters or serving lines at cafeterias, smorgasbords, buffets or similar type operations and all unwrapped foods on tables, racks, carts, counters and shelves at any food service establishment shall be protected against contamination from customers and other sources. Such protection shall be provided by glass or other approved enclosures or by the installation of easily cleanable sneeze-guards or other effective counter protector devices designed to intercept a direct line between the mouth of the
customer and the food. Self-service openings on counter guards shall be so designed and arranged as to protect food from manual contact by customers.
Special smorgasbords and buffets for particular groups, organizations and associations and not a part of a regular or permanent operation for the general public, shall be excepted from the requirement of enclosures, sneeze-guards or counter protector devices as herein required."
In reviewing the language of those several subsections, it is established through the facts that the uncovered slaw, and the way that the slaw was being dispensed, was in violation of those cited subsections. The unwrapped bread that was discovered would also constitute violations of those same subsections.
The second count in the notice to show cause allege violations of Rule 7C-4.01(6)(a)(b), F.A.C., these sections read as follows:
"(6) Other Facilities and Operations:
Floors - The Floor surface in kitchens and all other rooms and areas in which food is stored or prepared, utensils are washed or stored, walk-in refrigerators, garbage, and rubbish rooms and toilet, dressing and locker rooms shall be of smooth, non-absorbent material. Floor drains
shall be provided in accordance with provisions of this code in all rooms where floors are subjected to flush or flood type cleaning or
where normal operations release or discharge water
or other liquid waste onto the floor such floors shall be graded to effectively drain. Mats or duckboards, if used, shall be so constructed as to facilitate being easily cleaned and shall be kept clean.
The floor surfaces in all interior and exterior areas where food is served shall be of such construction and finish as to be easily cleanable. Carpeting,
if used on floors of interior dining rooms, shall be kept in good repair and shall be cleaned by dustless methods. All floors shall be kept clean and in good repair. Sawdust,
wood shavings, peanut hulls and similar materials shall not be permitted on the floors of a food service establishment.
Walls and ceiling - All walls and ceilings including doors, windows, skylights, screens and similar closures shall be kept clean and in good repair. The walls of all food preparation, utensil-washing and hand-washing rooms or areas shall have light-colored, smooth, easily cleanable surfaces and shall be washable up to the
highest level reached by splash or spray. Studs, joist and rafters shall not be left exposed in food preparation or washing areas or toilet rooms. If exposed in other rooms or areas, they shall be suitably finished and all surfaces shall be kept clean and in good repair. Sheet metal, plastic or other covering materials, if used, shall be closed
at all joints and shall be sealed to the wall or ceiling. Acoustical materials may be used
on ceilings, provided ventilation is adequate to minimize grease and moisture adsorption. Light fixtures, fans, hoods, and other equipment and materials attached to walls or ceilings
shall be kept clean."
The testimony in this case establishes that the floors and walls and ceiling were not kept clean.
The third count pertained to an alleged violation of the Rule 7C- 4.10(4)(a)(1), F.A.C., in particular the allegation was that the walk-in cooler was not kept clean. The testimony did not establish a violation of that nature.
Count four of the notice to show cause pertained to the dishwasher and an allegation that the dishwasher was not kept clean. This was asserted as a violation of Rule 7C-4.01(4)(f), F.A.C., which states:
"(4) Food Equipment and Utensils.
(f) Cleanliness of equipment and utensils.
1. All multi-use eating and drinking utensils shall be thoroughly cleaned and sanitized after each useage. All kitchenware and food contact surfaces of equipment used in the preparation or serving of food or drink and all multi-use food storage utensils, exclusive of cooking surfaces of equipment shall be cleaned at
least once a day. All multi-use utensils and food contact surfaces of equipment used in the preparation or storage of potentially hazardous food shall be thoroughly cleaned and sanitized prior to each such use. Where equipment and multi-use utensils are used for preparation of potentially hazardous foods on a continuous or production line basis, food-contact surfaces of such equipment and utensils shall be cleaned and sanitized at scheduled intervals throughout the day as approved by the health authority.
Non-food contact surfaces of equipment shall be cleaned at such intervals as is necessary to keep them free of dust, dirt, food particles and otherwise in a clean and sanitary condition. After cleaning and until use, all food-contact surfaces of equipment and multi-use utensils shall be so stored and handled as to be protected from manual contact, splash, dust,
dirt, insects and other contaminants. All cracked and broken dishes, enamelware and utensils shall be disposed of and not be placed in any form of service. work table tops must be metal or hardwood with no cracks, and cutting boards for slicing prepared foods other than meat block shall be used. No papers or
oil cloth be used on tables and shelves in kitchens. All stoves, ranges, ovens, dish racks, windows,
meat blocks, meat slicers, choppers, grinders, tenderizers, saws, can openers, knife racks, coffee making equipment, tables, shelves, floors and other equipment must be properly constructed, kept clean,
sanitary, in good repair, and free from accumulated grease and dirt."
The facts established that the dishwasher was not kept clean.
Count five of the notice to show cause alleged that the premises were not free of roaches, and therefore violated Rule 7C-4.01(5)(h), F.A.C. The testimony established that there were roaches in the licensed premises. The cited section of the Rule states:
"(5) Sanitary facilities and controls:
(h) 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 rat- proofed, freed of rats and maintained in a rat-proof and rat free condition. All openings to the outer air 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, when required shall be not less than sixteen (16) mesh to the inch or equivalent and screens for windows, doors, skylights,
transoms and other openings to the outer air shall be tight-fitting and free of breaks."
In reviewing the facts, it has not been established that the licensed premises failed to take effective control measures to protect against the entrance of roaches.
The sixth count of the notice to show cause complains of the Respondent's failure to keep the garbage cans clean. The section on this allegation is Rule 7C-4.01(5)(g), F.A.C. which contains the following language:
"(5) Sanitary Facilities and controls:
(g) Garbage and rubbish disposal - All garbage and rubbish containing food wastes shall, prior to disposal, be kept in leak-proof, non-absorbent con- tainers 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 or during the period of time that frequency of use makes the lid covering impractical. 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. 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 dispensed of as sewage. Food-waste grinders, if used, shall be suitably constructed. All garbage and rubbish shall be removed from the food
establishment premises with sufficient frequency to prevent nuisance."
The testimony concerning the status of the three garbage cans in the licensed premises, indicates that the condition of the garbage cans was in violation of this subsection.
Finally, there is an overall allegation in count seven, which states that the kitchen was not kept clean, claiming a violation of Rule 7C-4.01(6)(f), F.A.C., this section states:
"(6) Other Facilities and Operations:
(f) Housekeeping - All parts of the establishment and its premises shall be kept neat, clean and free of litter and rubbish. Cleaning operations shall be conducted in such a manner as to minimize contamina- tion of food and food-contact surfaces. Vacuum cleaning, wet cleaning, or other dustless methods shall be used for cleaning floors, walls and ceilings; provided, that dust arresting sweeping compounds and push-brooms may be employed for floors. All such cleaning, except emergency floor cleaning, shall be done during periods when the least amount of food is exposed, such as after closing and between meals. Soiled cloths, linens, aprons, coats and other uniform apparel shall be kept in suitable containers until removed for laundering."
The facts as established indicate a violation of this subsection.
As an aspect of this hearing, the parties have agreed that the undersigned may take official notice of the Florida Administrative Code and its various provisions, to include the rules which were the basis of the notice to show cause. A copy of the written stipulation is made a part of the record herein.
APPEARANCES
The Division of Administrative Hearings has jurisdiction in this cause.
The undersigned takes official notice of the Florida Administrative Code and the rules contained in the allegations of the notice to show cause.
Based upon an examination of the facts, it has been shown that all foods were not properly stored and protected from all sources of contamination to wit: the slaw and bread, in violation of Rule 7C-4.01(2)(a)(k)(m), F.A.C., thereby subjecting the Respondent to the penalties found in s. 509.261, F.S.
Based upon an examination of the facts, it has been shown that all floors and walls were not kept clean in violation of Rule 7C-4.01(6)(a)(b), F.A.C., thereby subjecting the Respondent to the penalties found in 509.261, F.S.
Based upon an examination of the facts, the Petitioner has failed to show that the walk-in cooler was not kept clean.
Based upon an examination of the facts, it has been shown that the dishwasher was not kept clean, in violation of Rule 7C-4.01(4)(f), F.A.C., thereby subjecting the Respondent to the penalties found in s. 509.261, F.S.
Based upon an examination of the facts, the Petitioner has failed to show that the premises was not free of roaches within the meaning of Rule 7C- 4.01(5)(h), F. A. C.
Based upon an examination of the facts, it has been shown that all garbage cans were not kept clean, in violation of Rule 7C-4.01(5)(g), F.A.C., thereby subjecting the Respondent to the penalties found in s. 509.261, F.S.
Based upon an examination of the facts, it has been shown that the kitchen was not kept clean, in violation of Rule 7C-4.01(6)(f) F.A.C., thereby subjecting the Respondent to the penalties found in s. 509.261, F.S.
Upon consideration of the facts in this cause and the Petitioner's statement that the Respondent had been offered a $50.00 fine to settle the alleged violations, it is recommended that payment of a $50.00 fine be accepted as a disposition of this case.
DONE AND ENTERED this 22nd day of November, 1977, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Richard Gentry, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Russell M. McGregor
