STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 04-3919

)

COFFEE SALOM TROPICAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 3, 2005, by video teleconference, with the Petitioner appearing in Tallahassee, Florida, and the Respondent appearing in Miami, Florida, before Patricia Hart Malono, a duly- designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation,

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Aracely Gonzalez, pro se

10630 Southwest 7th Terrace Miami, Florida 33174

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Administrative Complaint dated July 26, 2004, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated July 26, 2004, the Department of Business and Professional Regulation, Division of Hotels and Restaurants ("Division"), charged Coffee Salom Tropical with five violations of the 1999 Food Code ("Food Code"), incorporated by reference into Florida Administrative Code Rule Chapter 61C. The Division charged specifically that, at inspections conducted on May 18, 2004, and on July 15, 2004, Coffee Salom Tropical (1) was in violation of Food Code Rule 3-

501.13 because potentially hazardous foods were observed being thawed in an improper manner; (2) was in violation of Food Code Rule 4-302.14 because no chemical test kit was observed at the three-compartment sink; (3) was in violation of Food Code

Rule 5-202.11 because plumbing was improperly installed; (4) was in violation of Section 509.039, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) because the manager did not have proof of her food manager certification; and (5) was in violation of Section 509.049, Florida Statutes, because employees were observed being trained by an unapproved provider. Coffee Salom Tropical timely requested a formal hearing, and the

Division forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge.

Pursuant to notice, the final hearing was held on January 3, 2005.

At the hearing, the Division presented the testimony of Jorge Gandolff, and Petitioner's Exhibits 1 through 4 were offered and received into evidence. Aracely Gonzalez testified on behalf of Coffee Salom Tropical but offered no exhibits into evidence. At the Division's request, official recognition was taken of Food Code Rules 3-501.13, 4-302.14, 5-202.11; Sections

1. and 509.049, Florida Statutes (2004)1; and Florida Administrative Code Rule 61C-4.023(1).

   The one-volume transcript of the proceeding was filed with the Division of Administrative Hearings on January 19, 2005, and the Petitioner timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

   1. The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See § 509.032, Fla. Stat.

   2. The Coffee Salom Tropical is a food service establishment licensed and regulated by the Division.

   3. Jorge Gandolff, an inspector employed by the Division, inspected the premises of Coffee Salom Tropical on May 18, 2004, and prepared a Food Service Inspection Report setting forth his findings. He noted in the report that he had observed a number of violations of the Food Code during the May 18, 2004, inspection. Mr. Gandolff went over the results of the inspection with Pilar Cruz, an owner of Coffee Salom Tropical, and he informed her that he would conduct a re-inspection on June 18, 2004.

   4. Mr. Gandolff conducted the re-inspection of Coffee Salom Tropical on July 15, 2004, and completed a Callback Inspection Report in which he noted that Coffee Salom Tropical was in compliance with all except five of the violations noted in the Food Service Inspection Report dated May 18, 2004. The five uncorrected violations Mr. Gandolff observed during the July 15, 2004, re-inspection were (1) "potentially hazardous food thawed in an improper manner"; (2) "no chemical test kit provided when using chemical sanitizer at three compartment sinks"; (3) "plumbing improperly installed, coffee machine draining into handsink"; (4) "manager lacking proof of Food Manager Certification"; and (5) "employee training provided by

      unapproved provider, training provided by a non certified food manager."

   5. After the inspection on May 18, 2004, Aracely Gonzalez, the secretary of the corporation that owns Coffee Salom Tropical, and her brother attended classes required as a prerequisite for taking the test for food manager certification. Ms. Gonzalez contacted a private testing company and arranged to take the test on July 21, 2004. Ms. Gonzalez passed the test and was issued her food manager certification.

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

   7. In the Administrative Complaint, the Division seeks to suspend or revoke Coffee Salom Tropical's license and/or to impose an administrative fine. Accordingly, the Division must prove the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   8. Section 509.032, Florida Statutes, provides in pertinent part:

      1. GENERAL.--The division shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of public lodging establishments and public food service establishments for the purpose of safeguarding the public health, safety, and welfare. . . .

         
         

      2. INSPECTION OF PREMISES.--

         
         

         1. The division has responsibility and jurisdiction for all inspections required by this chapter. The division has responsibility for quality assurance.

            Each licensed establishment shall be inspected at least biannually, except for transient and nontransient apartments, which shall be inspected at least annually, and shall be inspected at such other times as the division determines is necessary to ensure the public's health, safety, and welfare. . . .

            
            

            * * *

            
            

         2. For purposes of performing required inspections and the enforcement of this chapter, the division has the right of entry and access to public lodging establishments and public food service establishments at any reasonable time.

            
            

         3. Public food service establishment inspections shall be conducted to enforce provisions of this part and to educate, inform, and promote cooperation between the division and the establishment.

            
            

         4. The division shall adopt and enforce sanitation rules consistent with law to ensure the protection of the public from food-borne illness in those establishments licensed under this chapter. These rules shall provide the standards and requirements for obtaining, storing, preparing, processing, serving, or displaying food in

         public food service establishments, approving public food service establishment facility plans, conducting necessary public food service establishment inspections for compliance with sanitation regulations, cooperating and coordinating with the Department of Health in epidemiological investigations, and initiating enforcement actions, and for other such responsibilities deemed necessary by the division. . . .

         
         

         * * *

         
         

         (6) RULEMAKING AUTHORITY.--The division shall adopt such rules as are necessary to carry out the provisions of this chapter.

         
         

   9. Florida Administrative Code Rule 61C-1.001(14) defines "Food Code" as "Food Code, 1999 Recommendations of the United States Public Health Service/Food and Drug Administration."

   10. Section 4-302.14 of the Food Code provides: "A test kit or other device that accurately measures the concentration in mg/L of sanitizing solutions shall be provided." Based on the findings of fact herein, the Division has proven by clear and convincing evidence that Coffee Salom Tropical violated Section 4-302.14 of the Food Code.

   11. Florida Administrative Code Rule 61C-4.010(1) provides that, with certain exceptions not relevant to this proceeding, "public food service establishments shall be subject to the provisions of Chapter 3, Food Code, herein adopted by reference." Food Code Rule 3-501.13 sets forth specific standards applicable to the thawing of potentially hazardous

       food and requires, inter alia, that such food be thawed "[u]nder refrigeration that maintains the food temperature at 5ºC (41ºF)." Although Mr. Gandolff noted in both the Food Service Inspection Report and the Callback Inspection Report that he observed "potentially hazardous food thawed in an improper manner," Mr. Gandolff did not state in either inspection report or in his testimony the manner in which potentially hazardous food was being thawed. The only specific reference in the report is in the Food Service Inspection Report dated May 18, 2004, in which Mr. Gandolff notes that raw beef, chicken, and pork were stored at "40 Degrees F." Accordingly, the Division has failed to prove by clear and convincing evidence that Coffee Salom Tropical violated Food Code Rule 3-501.13.

   12. Florida Administrative Code Rule 61C-1.004 provides in pertinent part:

       The following general requirements and standards shall be met by all public lodging and public food service establishments:

       
       

       1. Water, plumbing and waste. Except as specifically provided in these rules, standards for water, plumbing and waste shall be governed by Chapter 5, Food Code, herein adopted by reference.

          
          

          Food Code Rule 5-202.11 provides that

          
          

          1. A plumbing system shall be designed, constructed, and installed according to law

             (b) A plumbing fixture such as a handwashing facility, toilet, or urinal shall be easily cleanable.

             
             

             Mr. Gandolff noted in both inspection reports that he observed "plumbing improperly installed, coffee machine draining into handsink." He did not, however, specify in either inspection report or in his testimony how the plumbing was not "installed according to law" or how the handsink was rendered not "easily cleanable." Accordingly, the Division has failed to prove by clear and convincing evidence that Coffee Salom Tropical violated Food Code Rule 5-202.11.

   13. Section 509.039, Florida Statutes, provides in pertinent part:

       It is the duty of the division to adopt, by rule, food safety protection standards for the training and certification of all food service managers who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. The standards adopted by the division shall be consistent with the Standards for Accreditation of Food Protection Manager Certification Programs adopted by the Conference for Food Protection. These standards are to be adopted by the division to ensure that, upon successfully passing a test, approved by the Conference for Food Protection, a manager of a food service establishment shall have demonstrated a knowledge of basic food protection practices. . . . All managers employed by a food service establishment must have passed an approved test and received a certificate attesting thereto.

   14. Florida Administrative Code Rule 61C-4.023(1) provides in pertinent part:

       All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted in this chapter. Those managers who successfully pass an approved certification examination shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. . . .

       
       

   15. Section 509.049, Florida Statutes, provides in pertinent part:

       1. The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the division.

          
          

          * * *

          
          

          1. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the

             described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification within

             60 days after employment. Certification pursuant to this section shall remain valid for 3 years.

             
             

          2. The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require:

          
          

          * * *

          
          

          (d) The licensee to be responsible for providing proof of employee training, and the division may request production of such proof upon inspection of the establishment.

          
          

   16. Florida Administrative Code Rule 61C-4.023(4) provides:

       Public Food Service Employee Training.

       
       

       1. All public food service employees must receive training on professional hygiene and foodborne disease prevention. Professional hygiene includes personal cleanliness and hygienic practices in accordance with the Food Code and techniques to prevent cross contamination. Foodborne disease prevention training must include the types and causes of foodborne illness, identification of potentially hazardous food, and how to control or eliminate harmful bacteria in a food service establishment.

          
          

       2. Public food service employees must receive training which relates to their assigned duties. Employees who prepare foods must be knowledgeable about safe methods of thawing, cooking, cooling, handling, holding and storing foods.

          Service personnel must be knowledgeable about safe methods of serving food.

          Employees who clean equipment and facilities must be knowledgeable about proper cleaning and sanitization methods. Employees responsible for maintaining the premises must be knowledgeable about proper vermin control methods as specified in the Food Code.

          
          

       3. Licensees who provide in-house employee training shall make available on the premises of the establishment, or in a theme park or entertainment complex in a central location, upon the division's request, the curriculum and materials used to conduct training. If training is obtained from an outside provider, the licensee must provide, upon the division's request, information about the selected training program and methods used to evaluate training outcomes. Training outcomes include employees correctly applying procedures and answering questions relative to assigned duties. Employees must perform their work duties safely in a manner consistent with the requirements of the Food Code.

       
       

   17. Based on the findings of fact herein, the Division has proven by clear and convincing evidence that Coffee Salom Tropical violated Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1)

       and (4) because Coffee Salom Tropical did not employ a certified food protection manager at the time of the May 18, 2004, or

       July 15, 2004, inspections and did not provide proof of employee food safety training at the time of the May 18, 2004, or

       July 15, 2004, inspections.

   18. Section 509.261, Florida Statutes, provides in pertinent part:

       1. Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:

1. Fines not to exceed $1,000 per offense;

   
   

2. Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and

   
   

3. The suspension, revocation, or refusal of a license issued pursuant to this chapter.

It is concluded that the penalty recommended by the Division is reasonable and falls within the statutory standards.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division Of Hotels and Restaurants, enter a final order finding that Coffee Salom Tropical violated Food Code Rule 4-302.14; Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) and (4), and imposing a fine in the amount of $2,500.00.

DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida.

S

PATRICIA HART MALONO

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 25th day of February, 2005.

ENDNOTE

1/ All citations to the Florida Statutes are to the 2004 edition, unless otherwise indicated.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Aracely Gonzalez

10630 Southwest 7th Terrace Miami, Florida 33174

Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-003919

Orders for Case No: 04-003919