STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF HOTELS ) AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1232

) ST. AUGUSTINE ROAD INVESTMENT, ) INC., d/b/a MCDONALD'S )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on September 28, 1982, in Jacksonville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon issuance of a notice to show cause and subsequent amended notice to show cause by the Division of Hotels and Restaurants alleging violations of Rules 10D-1 and 10D-13, Florida Administrative Code.

APPEARANCES

For Petitioner: John A. Boggs, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Michael A. Kerson, President

St. Augustine Road Investment, Inc. 6050 St. Augustine Road Jacksonville, Florida

ISSUE

As alleged by the amended notice to show cause, the issue is whether Respondent is guilty of the following violations as charged on February 23, 1982:

1. Failure to provide sufficient thermometers [Rule 10D-13.26(1)(a)];

2. Failure to properly protect food during stor- age, display and service [Rule 10D-13.26(1)

   1. and (f), and Rule 10D-13.24];

3. Failure to properly maintain non-food contact surfaces [Rule 10D-13.25(4)];

4. Failure to properly clean and sanitize uten- sils [Rule 10D-13.26 (4) and (5)];

5. Failure to properly clean food contact sur- faces [Rule 10D-13.26(4)(a)];

6. Failure to properly store clean equipment [Rule 10D-13.26(4)(a)];

7. Failure to properly dispose of sewage and waste water [Rule 10D-13.27(3)];

8. Failure to properly maintain restrooms [Rule 10D-13.27(5) and (6)];

9. Failure to properly maintain outside garbage areas [Rule 10D-13.27(7)];

10. Failure to properly control insects [Rule 10D-13.27(8)];

11. Failure to keep floors, walls and ceilings clean and in good repair [Rule 10D-13.28(1) and (2)]

12. Failure to keep premises clear of litter, etc. [Rule 10D-13.28(9)];

13. Failure to properly store flammables [Rule 10D-1.03(8)]; and

14. Failure to properly store soiled linen [Rule 10D-13.28(6)]

On March 31, 1982, Respondent was charged with the following violations:

1. Failure to clean and sanitize food contact surfaces [Rule 10D-13.26(4)(a)];

2. Failure to clean and sanitize food contact surfaces as shown on inspection report [Rule 10D-13.26 (4)];

3. Failure to properly maintain restrooms [Rule 10D-13.27(5) and (6)]; and

4. Failure to properly maintain outside areas in clean condition [Rules 10D-13.27(5) and

10D-13.28(9)].

FINDINGS OF FACT

1. Respondent, St. Augustine Road Investment, Inc., d/b/a McDonald's, holds public food service establishment license #2603571R at the business address of 6050 St. Augustine Road in Jacksonville, Florida.

   
   

2. On February 23, 1982, Tammy Theologus, an inspector with the Duval County Health Department, inspected the licensed premises and noted the following safety or sanitation violations:

   
   

   1. Lack of appropriate number or types of ther- mometers in all cooling units;

   2. Improper storage and display of food;

   3. Failure to properly maintain or clean non- food contact surfaces;

   4. Failure to properly clean cooking utensils;

   5. Failure to properly clean food contact sur- faces;

   6. Failure to adequately or properly store clean equipment;

   7. Failure to adequately or properly dispose of sewage and waste water;

   8. Failure to maintain public restrooms;

   9. Failure to maintain a clean condition in the outside garbage areas;

   10. Failure to adequately control insects as evi- denced by roach droppings and rat excrement present;

   11. Failure to keep the premises clean of litter;

   12. Failure to adequately store soiled linen; and

   13. Failure to adequately store flammables by stor- ing such next to the hot water heater in the licensed premises.

       
       

3. A copy of Ms. Theologus' February 23, 1982, inspection report was entered into evidence as a portion of Petitioner's Composite Exhibit #1.

   
   

4. On February 25, 1982, Ms. Theologus performed a reinspection to determine if the above-cited violations had been corrected. A copy of this reinspection report on February 25 has been entered into evidence as a portion of Petitioner's Composite Exhibit #1. As a result of this February 25 call-back inspection, Ms. Theologus noted a partial correction of the violations; yet there was a failure to comply, and in many instances the very same violations occurred.

   
   

5. Thereafter, on March 1, 1982, Ms. Theologus again inspected the licensed premises and discovered at that point in time that all violations were complied with. The premises was not cited for further violations on that date. A copy of this March 1 call-back inspection report has been entered into evidence as a portion of Petitioner's Composite Exhibit #1.

   
   

6. On March 30, 1982, Ms. Theologus again performed a routine inspection of the licensed premises. On that date, she found the following violations:

   
   

   1. Food contact surfaces were not clean;

   2. Non-food contact surfaces were unclean;

   3. The public restrooms were not maintained in appropriate manner; and

   4. The outside garbage area was dirty, and the general condition of the premises was unclean.

      
      

7. A copy of this March 30 inspection report has been entered into evidence as a portion of Petitioner's Composite Exhibit #1.

   
   

8. On the next day, March 31, 1982, Ms. Theologus scheduled and performed a call-back inspection. The purpose of this call-back inspection on short notice was to determine if the violations cited in the March 30 report had been corrected because those violations were in the nature of daily cleanup activities and could have been corrected as of the next day. However, on March

   31 there was no correction of the cited violations. A copy of the March 31, 1982, inspection report has been entered into evidence as a portion of Petitioner's Composite Exhibit #1.

   
   

9. On April 1, 1982, Ms. Theologus once again inspected the licensed premises as a prelude to an administrative conference on this matter. This inspection revealed that the violations cited in the inspection report of March 30, 1982, had not been corrected. A copy of Ms. Theologus' April 1, 1982, inspection report has been entered into evidence as a portion of Petitioner's Exhibit #1.

10. Ms. Theologus used as a standard the applicable rules relating to public food service establishments and the nature of compliance or cleanliness in other restaurants in the Jacksonville area, including other McDonald's restaurants in the area. The cleanliness or sanitation violations cited in the walk-in cooler, in the lettuce cooler (relating to the tartar sauce gun) and at the catsup dispenser were sanitation problems which were not of a daily nature but were a buildup over several days. Specifically, in one instance a bag of shake mix had been spilled on the floor in the walk-in cooler, and Ms. Theologus advised them to clean it up by the next working day. However, the spill was not cleaned up on March 31, 1982, when she reinspected the premises.

    
    

11. Respondent presented testimony of Jimmy Whitfield, Area Manager for the Respondent, and of Michael A. Kerson, President of Respondent. This testimony was in the nature of their experience in the restaurant industry, particularly related to McDonald's and their basic opinion as to the standard of sanitation occurring at the licensed premises in question here.

    
    

12. Neither Mr. Kerson nor Mr. Whitfield were present at every inspection made of the licensed premises and had no actual knowledge of the conditions except during two of the inspections performed.

    
    

13. A nightly cleanup crew was employed to clean the establishment and prepare it for the following day. However, there was no testimony presented as to the actual work performed in relation to the charges in the inspections. There was general testimony as to a schedule of cleaning; however, there was no specific testimony as to what actual activities were undertaken by this cleanup crew.

    
    

14. Mr. Whitfield admitted that the dumpster area was, in his words, a "problem". He asserted that the conditions found in the walk-in cooler by the inspector were the result of normal daily use and were cleaned at night. However, Respondent also presented testimony that the cooler was only cleaned once a week except when a major spill occurred.

    
    

15. Respondent introduced into evidence three inspection reports which preceded the time frame regarding the charges now pending, and which were received as Respondent's Composite Exhibit #1. These reports are dated March 5, 1981; June 5, 1981; and September 28, 1981. Respondent offered these reports to show that his licensed establishment has basically a "clean record" concerning sanitation violations. The same general conditions concerning lack of cleanliness cited in Petitioner's Composite Exhibit #1, however, were also cited in those reports introduced as Respondent's Composite Exhibit #1, to include failure to clean the walk-in cooler.

    
    

16. Prior to the hearing, the manager of the restaurant had been replaced by the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Department of Business Regulation, Division of Hotels and Restaurants has authority to discipline its licensees pursuant to Chapter 509, Florida Statutes. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this recommended order pursuant to Section 120.57(1), Florida Statutes.

18. Rule 10D-13.26(1), Florida Administrative Code, provides in pertinent part as follows:

    
    

    1. Equipment and facilities provided--Every food service estab- lishment shall be provided with equipment and utensils so designed, constructed, located, installed, maintained and operated as to permit full compliance with the provisions of this chapter. The following equipment and facilities shall be provided where applicable to the operations conducted:

       1. . . . Each facility used for the storage of perishable foods shall be provided with a numerically scaled indicating thermometer accu- rate to plus or minus three degrees fahrenheit, located in the

    warmest or coldest part of the faci- lity as may be applicable and of such type and so situated that the tem- perature can be easily and readily observed. . .

    (f) Counter-protector devices, cabinets, display cases, containers and similar equipment for protecting displayed food against contamination from customers or other sources.

    
    

19. Rule 10D-13.24, Florida Administrative Code, provides in pertinent part:

    
    

    (1) Food while being transported, stored, prepared, displayed, served or sold at a food service establish- ment 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.

    
    

    (9) . . . Food shall be stored a minimum of six (6) inches above the floor, on clean shelves, rack, dollies or other clean surfaces in such a manner as to be protected from splash and other contamination . . .

20. Rule 10D-13.26(4), Florida Administrative Code, provides as follows:

    
    

    1. Cleanliness of equipment and utensils.

       1. All tableware, kitchenware and food contact surfaces of equip- ment, exclusive of cooking surfaces of equipment, shall be thoroughly cleaned and sanitized after each use. Food contact surfaces of grills, griddles and similar cooking devices and the cavities and door seals of microwave ovens shall be cleaned at least once a day; except that this shall not apply to hot oil cooking equipment and hot oil filtering sys- tems. The food contact surfaces of all cooking equipment shall be kept free of encrusted grease deposits and other accumulated soil. 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 potenti- ally hazardous foods on a continuous or production line basis, food contact surfaces of such equipment and uten- sils shall be cleaned and sanitized

          at scheduled intervals throughout the day on a schedule approved by the health authority, based on food tem- perature, type of food and amount of food particle accumulation. 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.

       2. All single service articles shall be stored, handled and dispensed in a sanitary manner and shall be used only once. Food service establish- ments which do not have adequate and defective [sic] facilities for cleaning and sanitizing multi-use utensils shall use single service articles.

       3. Detergents, cleaning components and abrasives shall be thoroughly rinsed off food contact surfaces.

       4. Cloths used by waiters, chefs and other personnel for wiping food contact surfaces shall be dry and clean and shall be used for no other purposes. Moist cloths or sponges used for cleaning non-food contact surfaces of equipment such as counters, dining table tops and shelves shall be clean and rinsed as specified in Section 13.26(5)(a)1. of this chapter, and used for no other purpose. These cloths and sponges shall be stored in the sani- tizing solution between uses.

          
          

21. Rule 10D-13.26(5), Florida Administrative Code, provides the minimum methods for washing and sanitizing of equipment and multi-use utensils, including a manual washing sink, minimum standards for emersion and water temperature, minimum standards for chlorine content, minimum standards for iodine and pH solution, and other chemical sanitizing agents.

    
    

22. Rule 10D-13.27, Florida Administrative Code, provides in pertinent part as follows:

    
    

    1. Toilet facilities -- Each food service establishment shall be pro- vided with adequate and conveniently located toilet facilities for its employees and patrons in accordance with provisions of Chapter 10D-9 and 10D-10 of the Florida Administrative Code. Fixtures shall be of readily cleanable sanitary design. Toilet facilities shall be kept clean, in

       good repair and free from objectionable odors. Toilet rooms shall be well lighted and adequately ventilated.

       Toilet tissue shall be provided. Easily clean able receptacles shall be provided for waste materials and such receptacles in toilet rooms for women shall be covered. Toilet rooms shall be completely enclosed and shall have tight-fitting, self-closing doors.

       Such doors shall not be left open except during cleaning or maintenance. In new establishments and establishments which are extensively altered, toilet rooms shall not open directly into food preparation areas. Handwashing signs shall be posted in each toilet room used by employees.

    2. Handwashing facilities -- Each food service establishment shall be provided with adequate, conveniently located lavatories equipped with run- ning water, hand cleansing soap or detergent and approved sanitary towels or other approved hand drying devices in accordance with provisions of Chap- ter 10D-9 and 10D-10 of the Florida Administrative Code. Lavatories shall be located in or immediately adjacent

       to all toilet rooms. In new establish- ments and establishments which are extensively altered, employee hand- washing facilities, provided with hot and cold running water, shall also be located within food preparation areas. Lavatories, soap dispensers, handdry- ing devices and all other components

       of the handwashing facilities shall be kept clean and in good repair.

       Handwashing signs shall be posted at each lavatory location.

       
       

    3. Garbage and rubbish disposal -- 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 refrig- erator. 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, enclo- sures, areas and containers used shall be adequate for the storage of all food wastes and rubbish which accumu- lates 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 clean- ing 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 Chapter 10D-9 of the Florida Administrative Code. All garbage and rubbish shall be removed from the food establishment premises

       with sufficient frequency to prevent nuisance and shall be disposed of in accordance with provisions of Chapter 17-7 of the Florida Administrative Code.

       
       

    4. 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, includ- ing windows, doors, skylights, transoms and 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, screen- ing, controlled air currents or other effective means. Screening material shall not be 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.

    
    

23. Rule 10D-13.28, Florida Administrative Code, provides in pertinent part:

    
    

    1. Floors -- The floor surfaces in kitchens and all the rooms and areas in which food is stored or prepared, utensils are washed or stored, walk-in refrigerators, garbage and rubbish rooms and toilet, dresser and locker rooms shall be of smooth, nonabsorbent material and so constructed as to be

       easily cleanable. . . . Mats or duck- boards, if used, shall be so constructed as to facilitate being easily cleaned and shall be kept clean. All

       floors shall be kept clean and in good repair. . .

       
       

    2. Walls and ceilings -- All walls and ceilings including doors, windows, skylights, screens and similar clo- sures shall be kept clean and in good repair. . .

    
    

    (6) Housekeeping -- . . . Soiled cloths, linens, aprons, coats and other uniform

    apparel shall be kept in suitable con- tainers until removed for laundering. Only articles necessary for the opera- tion and maintenance of the food service establishment shall be stored on the premises.

    
    

    (9) Premises -- Food service establishments and all parts of property used in connection with their operations shall be kept free of litter. The walk- ing 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.

    
    

24. Rule 7C-1.03(8), Florida Administrative Code, provides as follows:

    
    

    (8) Flammable materials inside an establishment shall be stored in approved type containers (maximum size five (5) gallons) in a safe place.

    
    

25. The testimony in this matter clearly establishes violations by the Respondent of the rules cited above. By reason of the foregoing, Respondent's public food service establishment license #26-03571R is subject to suspension, revocation or the imposition of a civil penalty for each of the violations cited above

    
    

26. It appeared that Respondent's President and Area Manager had taken steps to improve conditions by changing managers at the restaurant; however, the violations were of a serious nature, and the time taken to remedy them was unduly long. Greater supervision and, if necessary, intervention by the Area Manager and upper level management are necessary to improve the efficiency of cleaning.

    
    

    RECOMMENDATION

    
    

27. Having found the Respondent guilty of violating Rules 10D-13.24, 10D- 13.26, 10D-13.27, 10D-13.28 and 7C-1.03, Florida Administrative Code, it is recommended that the Department of Business Regulation, Division of Hotels and Restaurants impose a civil penalty of $1,000 for these violations and reinspect the facility every two weeks for a period of three months. A record of this order should be maintained as evidence in any future proceedings if future violations occur.

DONE and RECOMMENDED this 21st day of October, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1982.

COPIES FURNISHED:

John A. Boggs, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Michael A. Kerson, President St. Augustine Road Investment,

Inc.

6050 St. Augustine Road Jacksonville, Florida

Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Docket for Case No: 82-001232

Orders for Case No: 82-001232