DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Respondent.
) Case No. 11-1331
Pursuant to notice, a hearing in this matter was held before the Division of Administrative Hearing’s duly designated Administrative Law Judge Diane Cleavinger on May 26, 2011, in Panama City, Florida.
For Petitioner: Charles F. Tunnicliff, Esquire
The issue in this proceeding is whether Respondent’s restaurant license should be disciplined.
On April 2, 2010, Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department) filed an Administrative Complaint against Respondent, Ruby Rumrunners Grill, alleging a violation of chapter 509, Florida Statutes, and the rules promulgated thereto. Specifically, the Administrative Complaint charged Respondent with permitting an employee to drink from an open beverage container in areas for food preparation, not cleaning cooking equipment properly, not keeping non-food contact areas free of slime, and improper storage of single-service or use items on the floor.
Respondent disputed the allegations contained in the Administrative Complaint and timely requested a formal administrative hearing. The matter was forwarded to the Division of Administrative Hearings (DOAH).
At the hearing, Petitioner presented the testimony of one witness and offered five exhibits into evidence. Respondent did not appear at the hearing; and therefore, presented no evidence. Neither party filed a Proposed Recommended Order.
At all times material hereto, Respondent was licensed as a public food establishment in the State of Florida by the
Department. The restaurant is located at 414B Highway 98, Mexico Beach, Florida.
Janie Smith is employed by the Department as a Senior Sanitation Safety Specialist. Inspector Smith has worked for the Department for approximately four years. Prior to working for the Department, Inspector Smith served as a restaurant manager at Kentucky Fried Chicken for 15 years. Inspector Smith is a Certified Food Manager and continues to receive continuing- education training on a monthly basis. She performs approximately one thousand inspections a year.
On May 18, 2009, Inspector Smith performed a routine food service inspection of Respondent's restaurant. During the inspection, Inspector Smith prepared and signed an inspection report setting forth the violations she encountered during the inspection. These reports are electronically prepared on a Personal Data Assistant by the inspector.
During the May inspection, the inspector observed one of the restaurant's employees drinking from an open beverage container next to a food preparation table and clean equipment and utensils.
In general, drinking from an open beverage container is prohibited in areas where food is prepared to prevent touching the food or food preparation surfaces with an item that has been contaminated by bare hands, thereby transferring germs and
bacteria from the hands to the food. Such contamination can cause illness and is a threat to public health. For that reason, the use of an open beverage container in a food preparation area is a critical violation of the Florida Food Code. The evidence demonstrated that Respondent is guilty of permitting the use of an open beverage container in an area where food is prepared during the May inspection
Additionally, during the May inspection, the inspector observed that the interior of Respondent's ice machine had a buildup of slime. Food contact surfaces, such as the ice machine, must be cleaned at least every 24 hours in order to prevent contaminants from being transferred to food or beverages. Such contamination can cause illness and is a threat to public health. For that reason, not properly cleaning food contact surfaces is a critical violation of the Florida Food Code.
However, there was no evidence that demonstrated whether the slime on the interior of the ice machine had accumulated over a period greater than 24 hours or that the ice machine had not been cleaned at least every 24 hours. Given this lack of evidence, it cannot be determined that Respondent violated the Food Code in relation to the ice machine.
Finally, the inspector also observed that the soda-gun holster, a non-food contact surface, had accumulated slime. The
Food Code requires non-food contact surfaces, such as the soda- gun holster, to be kept free of debris like slime. However, there is no time interval associated with the accumulation of debris on non-food contact surfaces. Therefore, the evidence demonstrated that Respondent violated the Food Code in relation to the soda-gun holster, but such violation was not considered critical by the Department.
On August 21, 2009, Inspector Ross performed another inspection of Respondent's restaurant. During the inspection, she observed that the interior of the microwave, a food contact surface, had a buildup of debris or was soiled. However, again there was no evidence that the buildup or soiling was more than what could accumulate in a 24-hour period. Additionally, there was no evidence that the microwave had not been cleaned at least every 24 hours. As with the ice machine, without such evidence it cannot be concluded that Respondent violated the Food Code.
During the August inspection, Inspector Ross also observed a box of paper napkins or cups stored on the floor. Such items are single-service or use items and are required to be stored above the floor. The purpose of such a requirement is to prevent these items from becoming contaminated with germs and later transferring such contamination to a person. Such contamination can cause illness and is a threat to public
health. For that reason, not properly storing single-service or use items is a critical violation of the Florida Food Code.
On March 1, 2010, Inspector Ross performed a routine food service inspection of Respondent's restaurant. As with the other inspections, she prepared and signed an inspection report setting forth alleged violations she encountered during the inspection.
During the inspection, the inspector again observed slime on the interior surface of the ice machine. However, there was again no evidence to determine the amount of time the ice machine's slime had been present or whether the ice machine had not been cleaned at least every 24 hours. Given these facts, no violation of the Food Code was demonstrated by the evidence in relation to the ice machine and the portions of the Administrative Complaint related thereto should be dismissed.
Additionally, the inspector again observed a buildup of debris or soiling on the interior surface of the microwave. As with the ice machine, there was no evidence to determine the amount of time the microwave's buildup had been present or whether the microwave had not been cleaned at least every 24 hours. Given these facts, no violation of the Food Code was demonstrated by the evidence in relation to the microwave and the portions of the Administrative Complaint related thereto should be dismissed.
During the March inspection, the inspector also again observed slime on the soda-gun holster. As with the May inspection, the evidence demonstrated a non-critical violation of the Food Code.
Likewise, the inspector observed a box of napkins or cups stored on the floor. Such storage constitutes a critical violation of the Food Code.
Finally, during the March inspection, the inspector again observed a restaurant employee drinking from an open beverage container in the food preparation area and next to clean utensils. As in May, such activity constitutes a critical violation of the Food Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§120.569 and 120.57(1), Florida Statutes (2010).
The Department is the state agency charged with regulating public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes. As part of its duties, the Department licenses and inspects restaurants located in the State.
Section 509.032(6) provides that the Division shall adopt such rules as are necessary to carry out the provisions of
the chapter and has incorporated portions of federal regulations and guidelines into the Food Code of Florida.
Florida Administrative Code Rule 61C-1.001(14) states in certain part:
Food Code – This term as used in Chapters 61C-1, 61C-3, and 61C-4, F.A.C., means
paragraph 1-201.10(B), Chapter 2, Chapter 3,
Chapter 4, Chapter 5, Chapter 6, and Chapter
7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Guide Errata Sheet ((August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003), herein adopted by reference.
As such, rule 2-401.11 of the Food Code, pertaining to drinking, eating or smoking in food preparation areas states:
Eating, Drinking or Using Tobacco. (A) Except as specified in (B) of this section, an employee shall eat, drink, or use tobacco only in designated areas where the contamination of exposed food; clean equipment, utensils, and linens; unwrapped single-service and single-use articles; or other items needing protection cannot result
(B) A food employee may drink from a closed beverage container if the container is handled to prevent contamination of: (1) The employees hands; (2) The container; and
(3) Exposed food; clean equipment, utensils and linens; and unwrapped single-service and single-use articles.
Rule 4-602.12 of the Food Code states in pertinent
part:
Cooking and Baking Equipment. (A) The food-contact surfaces of cooking and baking equipment shall be cleaned at least every 24 hours. . . . (B) The cavities and door seals of microwave ovens shall be cleaned at least every 24 hours by using the manufacturers recommended cleaning procedure.
Rule 4-601.11(C) of the Food Code states in pertinent
part:
Non-food contact surfaces of equipment shall be kept free of an accumulation of dust, dirt, food residue, and other debris.
Finally, rule 4-903.11(C) and (D) of the Food Code
states in pertinent part:
(C) Single-service and single-use articles shall be stored as specified under paragraph
(A) of this section and shall be kept in the original protective package or stored using other means that afford protection from contamination until used. (D) Items that are kept in closed packages may be stored less than 15cm (6 inches) above the floor on dollies, pallets, racks, and skids that are designed as specified under section 4- 204.122.
Petitioner has the burden to prove by clear and convincing evidence the allegations against Respondent. Dep’t of Banking and Fin., Div. of Sec. and Inv. Prot. v. Osborne
Stern and Co., 670 So. 2d 932 (Fla. 1996). Evans Packing Co. v. Dep’t of Agric. and Consumer Svcs., 550 So. 2d 112, 116, n.5
(Fla. 1st DCA 1989), described the clear and convincing evidence standard as follows:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts of the issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of [sic] conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
In this case, Petitioner did not establish by clear and convincing evidence that Respondent violated rule 4-602.12 because there was no evidence from which to conclude that neither the ice machine nor the microwave had not been cleaned at least every 24 hours. Given this lack of evidence, the parts of the Administrative Complaint relative to these allegations should be dismissed.
However, the inspectors observed Respondent's employee drinking from an open beverage container during the May and March inspections. Therefore, the clear and convincing evidence established that Respondent violated rule 2-401.11 and that these violations were critical violations. Petitioner, also, established by clear and convincing evidence that Respondent violated Rule 4-903.11 because Respondent stored single-service
or use items on the floor. Further, the evidence established that these violations were critical violations. Finally, Petitioner, established by clear and convincing evidence that Respondent violated rule 4-601.11 because Respondent allowed the accumulation of slime on the soda-gun holster, a non-food contact surface. However, the violations were non-critical.
Section 509.261(1) provides that any public lodging establishment or public food service establishment that has operated or is operating in violation of chapter 509, or the rules promulgated thereunder, is subject to fines not to exceed
$1,000.00 per offense, and/or the suspension, revocation, or refusal of a license. Florida Administrative Code Rule 61C- 1.005(6) states in pertinent part:
Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under Chapter 509, F.S.. Any violation requiring an emergency suspension or closure, as authorized by Chapter 509, F.S., shall be assessed at the highest allowable fine amount. . . .
* * *
Non-critical violation.
1. 1st offense-Administrative fine of
$150.00 to $300.
* * *
Critical violation. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the
date of the initial inspection until the violation is corrected.
1. 1st Offense – Administrative fine of
$250 to $500.
As noted, Respondent is guilty of two critical violations and one non-critical violation. A reasonable fine in this case is $150.00 for the non-critical violation and $500.00 for the two critical violations for a total fine of $650.00.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Recommended Order be entered:
DONE AND ENTERED this 1st day of August, 2011, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2011.
Charles F. Tunnicliff, Esquire Department of Business and
William L. Veach, Director Division of Hotels and Restaurants Department of Business
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.
