STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

WAFFLE IRON,

Respondent.

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) Case No. 01-2509

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RECOMMENDED ORDER

A formal hearing was conducted in this case on October 15, 2001, in Panama City, Florida, before the Division of Administrative Hearings by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Tiffany Short, Esquire

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: William S. Henry, Esquire

Burke & Blue, P.A. Post Office Box 70

221 McKenzie Avenue

Panama City, Florida 32401

STATEMENT OF THE ISSUES

The issues are whether Respondent violated 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 or about April 27, 2001, Petitioner Department of Business and Professional Regulation, Division of Hotel and Restaurants (Petitioner), filed an Administrative Complaint against Respondent Waffle Iron (Respondent). Said complaint alleged that Respondent had violated Chapter 509, Florida Statutes, and Rule 61C-4, Florida Administrative Code, because it was not in compliance with Sections 3-501.16(c), 4-204.113, and 4-501.114 of the United States Public Health Service/Food and Drug Administration's 1997 Food Code (Food Code).

On or about May 18, 2001, Respondent filed a request for an administrative hearing to contest the facts alleged in the Administrative Complaint. Petitioner referred the case to the Division of Administrative Hearings on June 28, 2001.

A Notice of Hearing dated July 10, 2001, scheduled the hearing for September 7, 2001. Petitioner filed a Motion for Continuance of Formal Hearing on July 17, 2001. An Order dated July 23, 2001, granted a continuance and rescheduled the case for hearing on September 21, 2001.

The parties filed a Prehearing Stipulation on September 20, 2001. That same day, Respondent's counsel requested a telephone conference in order to make an ore tenus motion for continuance. An Order dated September 21, 2001, granted a continuance and rescheduled the case for hearing on October 15, 2001.

During the hearing, Petitioner presented the testimony of three witnesses and offered three exhibits which were accepted into evidence. Respondent presented the testimony of three witnesses and offered seven exhibits which were accepted into evidence.

The court reporter filed a copy of the Transcript on September 29, 2001. Respondent filed its Proposed Recommended Order on November 6, 2001. Petitioner filed its Proposed Recommended Order on November 7, 2001.

FINDINGS OF FACT

1. At all times material to this case, Respondent was licensed to operate a public food service establishment. Respondent operates under License Control No. 13-01371R.

2. On January 9, 2001, Petitioner's inspector, Peter Newman, conducted a routine inspection of Respondent beginning at 8:09 a.m. Although Respondent is generally very busy between 6:30 a.m. and 1:00 p.m., Respondent was not busy on the morning of the inspection.

3. During the inspection, Mr. Newman used a thermometer to test the temperature of hot and cold foods. Between each test, Mr. Newman wiped his thermometer with a clean alcohol swab. There is no persuasive evidence that Mr. Newman's thermometer was not calibrated properly or that testing a hot food immediately prior to testing a cold food resulted in an inaccurate temperature being recorded for the cold food.

4. The January 9, 2001, inspection revealed the following:

   
   

   1. eggs on the cook line at 69 degrees Fahrenheit; (b) American cheese on the make table at 50 degrees Fahrenheit; (c) no instruction placard on the dishwashing machine for chemical sanitizing; and (d) zero parts-per-million of chlorine in the mechanical dishwasher's sanitizing solution during the final rinse at 168 degrees Fahrenheit.

5. Eggs are a potentially hazardous food. Respondent usually uses approximately two cases of eggs (30 dozen per case) everyday within three or four hours. On January 9, 2001, Respondent had three or four flats of eggs (12 flats per case) out of refrigeration and on the cook line. The eggs in the bottom flats were not being used during preparation, cooking, or cooling. Instead, Respondent was using eggs out of the top flat. When eggs are not being prepared, cooked, or cooled and their temperature reaches a temperature above 45 degrees Fahrenheit, they present a risk of causing a food-borne illness.

6. Cheese is also a potentially hazardous food.

   
   

   Respondent uses about three cases of cheese a week. At the time of the January 9, 2001, inspection, Respondent had cheese out of refrigeration and on the make table that was not being used during preparation, cooking, or cooling. Cheese with a temperature above 45 degrees Fahrenheit that is not being prepared, cooked, or cooled presents a risk of causing a food- borne illness.

7. The preparation period for eggs and cheese means the time that the cook is actually working with the product like whipping or mixing eggs for scrambled eggs or melting cheese for a cheese omelet. The preparation period does not include the time that cheese and eggs sit out of refrigeration waiting for the cook to work with them. When the cook is not actually working with eggs and cheese, they should be properly refrigerated.

8. Most eggs will develop salmonella bacteria at a much faster rate when they are left out of refrigeration. Refrigeration does not kill the bacteria. Instead, maintaining the temperature of eggs below 45 degrees Fahrenheit slows the development of salmonella.1 Once salmonella bacteria begins to develop, the normal cooking temperature is insufficient to prevent food-borne illness.

9. On January 9, 2001, Respondent's dishwashing machine displayed the instructions showing how to use hot water alone to sanitize dishes. The dishwashing machine did not have the manufacturer's instructions for chemical sanitizing affixed to it. Instead, the instructions for chemical sanitizing was posted on a bulletin board located seven or eight feet from the dishwashing machine. After the January 9, 2001, inspection, Respondent ordered an instruction plate for chemical sanitizing from the dishwashing machine manufacturer.

10. There are different parameters for the two different sanitation procedures for mechanical dishwashers. If dishes are being sanitized with hot water alone, the final rinse water out of the manifold has to be a minimum of 180 degrees Fahrenheit. If the dishwasher is using chemical sanitation and hot water, the final rinse should contain a minimum of 50 parts per million of chlorine and a minimum water temperature between 75 and 120 degrees Fahrenheit.

11. On January 9, 2001, the final rinse cycle of Respondent's dishwashing machine had zero parts per million of chlorine in the sanitizing solution. The temperature of the final rinse was 168 degrees Fahrenheit, which alone would not ensure the elimination of pathogenic bacteria on the dishes. Respondent's employees corrected this problem while the inspector was still at the restaurant.

12. The January 9, 2001, food service inspection report warned Respondent that the above-referenced violations had to be corrected by February 9, 2001. In other words, Petitioner would perform a call-back inspection on that date, or sometime thereafter, to determine whether Respondent had corrected the violations.

13. On January 30, 2001, Petitioner's inspector, Steven Dennis, performed a routine/initial inspection of Respondent's establishment. Mr. Dennis did not note the existence of any Food Code violations. However, Mr. Dennis was not performing a call-back inspection to determine whether Respondent had corrected the specific violations discussed above.

14. On March 6, 2001, Petitioner's inspector, Fred Foist, performed the call-back inspection at Respondent's establishment. Because it was a recall inspection, Mr. Foist was looking specifically at the violations listed on the January 9, 2001, food service inspection report.

15. During the March 6, 2001, inspection, Mr. Foist used his thermometer to test hot and cold foods. Mr. Foist properly cleaned the thermometer between each use. There is no persuasive evidence that the thermometer was not properly calibrated or that testing a hot food immediately prior to testing a cold food resulted in an inaccurate temperature being recorded for the cold food.

16. Mr. Foist found the following repeat violations on March 6, 2001: (a) an egg in the top flat of four flats of eggs (30 eggs per flat) on the cook line at 66 degrees Fahrenheit;

    1. American cheese on the make table at 52 degrees Fahrenheit;

       
       

    2. zero parts per million of chemical sanitizing solution in the final rinse of the dishwasher; and (d) no instruction placard for chemical sanitation on the dishwashing machine.

17. Because Respondent was not particularly busy on March 6, 2001, Mr. Foist told Respondent's employees to put three out of four flats of eggs back in refrigeration.

    Respondent's employees agreed with Mr. Foist and followed his recommendation, leaving only a partial flat of eggs on the cook line.

18. On March 6, 2001, the chlorine dispensing tube attached to Respondent's dishwasher was cracked at the bottom, preventing the flow of chlorine into the dishwasher. This resulted in a potentially hazardous condition because the final rinse at 145 degrees Fahrenheit was not hot enough to sterilize the contents without the addition of the proper amount of chlorine.

19. At the time of the March 6, 2001, call-back inspection, Respondent still did not have the chemical sanitizing instruction placard on the dishwasher. However, as

    of the date of the hearing, Respondent had received the placard from the manufacturer and applied it to the dishwasher.

20. On October 4, 2001, Petitioner performed another initial/routine inspection of Respondent. The food service inspection report for that date shows that the dishwashing sanitizing concentration was 50 parts per million. This report contains no reference to the temperature of eggs and cheese or to the dishwasher.

    CONCLUSIONS OF LAW

    
    

21. 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.

22. 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).

23. 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.

24. Section 509.032(2)(a), Florida Statutes, requires that Petitioner conduct periodic inspections of restaurants to assure the public health, safety, and welfare.

25. 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.

26. Rules 61C-4.010(1) and 61C-4.010(5), Florida Administrative Code, require public food service establishments to be subject to the provisions of Chapter 3 and Chapter 4 of the Food Code, respectively.

1. Section 3-501.16 of the Food Code states as follows:

   
   

   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:

   
   

   * * *

   
   

   1. At 60°C (140°F) or above, except that roasts cooked to a temperature and for a time specified under ¶3-403.11(E) may be held at a temperature of 54°C (130°F); or

   2. At 5°C (41°F) or less, except as specified under ¶(C) of this section and

      -501.17, 3-501.18, and 4-204.111.

   3. At 7°C (45°F) or between 7°C (45°F) and 5°C (41°F) in existing refrigeration equipment that is not capable of maintaining the food at 5°C (41°F) or less if:

      1. The equipment is in place and in use in the food establishment; and

      2. Within 5 years of the regulatory authority's adoption of this code, the equipment is upgraded or replaced to maintain food at a temperature of 5°C (41°F) or less.

2. Clear and convincing evidence indicates that Respondent violated Section 3-501.16 of the Food Code during the initial inspection on January 9, 2001, and the call-back inspection on March 6, 2001. On both occasions, the eggs and cheese tested higher than allowed.

3. Section 4-204.113 of the Food Code provides as

   
   

   follows:

   
   

   A warewashing machine shall be provided with an easily accessible and readable data plate affixed to the machine by the manufacturer that indicates the machine's design and operating specifications including the:

   1. Temperatures required for washing, rinsing, and sanitizing;

   2. Pressure required for the fresh water sanitizing rinse unless the machine is designed to use only a pumped sanitizing rinse; and

   3. Conveyor speed for conveyor machines or cycle time for stationary rack machines.

   
   

4. On January 9, 2001, and March 6, 2001, Respondent failed to have the proper instruction placard for chemical sanitizing affixed to its mechanical dishwasher. Clear and convincing evidence shows that Respondent violated

   Section 4-204.113 of the Food Code during both inspections.

   
   

5. Section 4-501.114 of the Food Code states as follows in relevant part:

   A chemical santizer used in a sanitizing solution for a manual or mechanical operation at exposure times specified under

   ¶4-703.11(C) shall be listed in 21 CFR 178.1010. Sanitizing solutions, shall be

   used in accordance with the EPA-approved manufacturer's label use instructions, and shall be used as follows:

   (A) A chlorine solution shall have a minimum temperature based on the concentration and pH of the solution as listed in the following chart:

   
   

   Minimum Minimum Concentration Temperature

   
   

   mg/L	pH 10 or	less	pH 8 or less
   	°C(°F)		°C(°F)
   25	49(120)	49(120)
   50	38(100)	24(75)
   100	13(55)	13(55)

   
   

6. Respondent's mechanical dishwasher had zero parts per million of chlorine in its final rinse and water that was not hot enough to sanitize dishes on January 9, 2001, and March 6, 2001. Clear and convincing evidence indicates that Respondent violated Section 4-501.114 of the Food Code on the initial and

call-back inspection.

RECOMMENDATION

Base on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order finding Respondent guilty of violating Sections 3-501.16(c), 4-204.113, and

4-501.114 of the Food Code and imposing an administrative fine in the amount of $500.

DONE AND ENTERED this 13th day of November, 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 (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2001.

ENDNOTE

1/ Under the current version of the Food Code, eggs must be kept at 41 degrees Fahrenheit in storage.

COPIES FURNISHED:

William S. Henry, Esquire Burke & Blue, P. A.

221 Mckenzie Avenue Post Office Box 70

Panama City, Florida 32401

Charles F. Tunnicliff, Esquire Tiffany Short, 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 32399-0792

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.

Docket for Case No: 01-002509

Orders for Case No: 01-002509