DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Respondent.
) Case No. 11-1410
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 6, 2011, in Tallahassee, Florida.
For Petitioner: Charles F. Tunnicliff, Esquire
The issue in this proceeding is whether Respondent’s restaurant license should be disciplined.
On April 8, 2010, Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department) filed an Administrative Complaint against Respondent, Soup Swift, alleging a violation of chapter 509, Florida Statutes, and the rules promulgated thereto.
Specifically, the Administrative Complaint charged Respondent with violations pertaining to the temperature at which foods are stored, the adequacy of cold storage units, the use of proper food dispensing utensils, the labeling of working food containers and the reporting of changes in the number of licensed seats. 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 two witnesses and offered four exhibits into evidence. After testimony, Petitioner voluntarily dismissed the alleged violation related to reporting of changes in the number of licensed seats and that allegation was dismissed. Respondent presented the testimony of one witness and offered one exhibit into evidence. Respondent also offered the late-filed deposition testimony of Kevin Davis, a Soup Swift employee.
After the hearing, Petitioner filed a Proposed Recommended Order on June 15, 2011. Respondent filed a Proposed Recommended
Order on June 10, 2011.
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 2510 Miccosukee Road, Suite C, Tallahassee, 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 fifteen 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 and, in this case, had a vague memory of the first inspection involved in this matter.
Cindy Ross is also employed by the Department as a Sanitation and Safety Specialist. Inspector Ross has worked for the Department for approximately a year and a half. Prior to working for the Department, Inspector Ross served as a general manager at Ruby Tuesday for 15 years, a fine-dining general manager at Cosmo’s Brick Oven in Tallahassee for two years, and
the owner/operator of Shenanigans Irish Pub in Tallahassee for seven years. Inspector Ross is a Certified Food Manager and continues to receive continuing education training on a monthly basis. Inspector Ross also performs approximately one thousand inspections a year. Similarly, she had a vague memory of the multiple inspections she conducted in this matter.
On November 25, 2009, Inspectors Smith and Ross performed a routine food service inspection of Soup Swift. During the inspection, Inspectors Smith and Ross prepared and signed an inspection report setting forth the violations they encountered during the inspection. These reports are electronically prepared on a Personal Data Assistant by the inspectors.
During the November inspection, Respondent's owner accompanied the inspectors around the restaurant as they completed their inspection. The inspector's observed a liquid substance described, in testimony as a "sauce" that was stored inside one of Respondent's cold storage units. The sauce had a temperature of 50 degrees Fahrenheit, allegedly nine degrees over its proper storage temperature of 41 degrees.
In general, the temperature of food must be maintained according to the type of food and whether it is in the process of being prepared, including cooling down. Temperature maintenance is considered important since food that is not held
at the proper temperature can grow bacteria. Such bacterial growth can cause illness and is a public health threat. For that reason, food which is out of temperature is considered a critical violation of the Food Code which is incorporated in Florida Law.
However, during the November inspection the inspectors did not ascertain and the evidence did not show the nature of the food/sauce that they had observed at 50 degrees. Without such evidence no determination can be made whether a temperature of 50 degrees constituted a violation of the Food Code since, under the code, cooked foods are allotted a certain amount of time in which to cool down. Given this omission the evidence did not demonstrate that Respondent violated the Food Code in regards to the temperature of the "sauce."
Additionally, during the November inspection, the inspectors observed that one of Respondent's cold storage units was not working and was incapable of maintaining food at the proper temperature. As a consequence, the food in that unit was transferred to another cold storage unit with the capacity and functionality to hold the food at the proper temperature. As with food temperature, properly working cold storage units are important in order to maintain food at the proper temperature. Given the fact that Respondent had another working cold storage unit, the evidence did not demonstrate that Respondent violated
the Food Code since she had a sufficient number of working cold storage units with the capacity to hold food at the proper temperature.
The inspectors also observed one of Respondent's employees using a bowl or plastic food container with no handle to dispense ready-to-eat food. Under the Food Code, use of the proper utensils for dispensing food is required to prevent touching the food 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, not using proper dispensing tools on food is a critical violation of the Florida Food Code. The evidence demonstrated that Respondent is guilty of not using proper dispensing tools during the November inspection.
Finally, during the November inspection, the inspectors observed working containers of food such as flour or sugar that were not in their original containers and were not labeled or otherwise identified by their common name. Such labeling is required in order to prevent a mistake in the use of ingredients in prepared food. However, the evidence did not establish that failing to label such working containers constituted a serious risk to health. Therefore, the evidence
did not demonstrate that that this was a critical violation of the Food Code.
At the end of the inspection, Inspectors Smith and Ross notified Respondent about the alleged violations. Respondent’s owner signed the inspection report. Also, at this time, Inspectors Smith and Ross made the Respondent aware that all alleged violations noted during the inspection must be corrected before re-inspection.
On February 9, 2010, Inspector Ross performed a callback inspection of Soup Swift. During the inspection, Inspector Ross prepared and signed an inspection report indicating that all of the violations noted on the November 25, 2009, report had been corrected, including the labeling of working food containers. No other material violations were noted.
On March 9, 2010, Inspector Ross again performed a routine food service inspection of Soup Swift. Respondent's owner was not present for the inspection. As with the other inspections, she prepared and signed an inspection report setting forth alleged violations she encountered during the inspection.
During the inspection, food storage and holding temperature was again investigated. The inspector observed cheese, sausage, and ham being stored at a temperature of 44
degrees Fahrenheit, three degrees over the required temperature for these types of food. However, the better evidence demonstrated that, during the March inspection, the inspector indicated her thermometer had been malfunctioning earlier in the day and may not have been recording the correct temperature.
Indeed, no food was transferred or required to be transferred to another cold storage unit. Given the problem with her thermometer, the evidence did not demonstrate that Respondent violated the Food Code regarding the temperature of the cheese, ham, and sausage. Likewise, the evidence did not demonstrate that this cold-storage unit was not working properly or that Respondent did not have adequate capacity to maintain stored food at the proper temperature. Given these facts, no violations of the Food Code were demonstrated by the evidence.
Additionally, the inspector again observed one of Respondent's employees using a bowl or plastic food container with no handle to dispense ready-to-eat food. Such activity is a critical violation of Florida's Food Code.
Finally, during the March inspection, the inspector again observed working containers of food such as flour or sugar that were not in their original containers and were not labeled or otherwise identified by their common name. However, the evidence did not establish that failing to label such working containers constituted a serious risk to health. Therefore, the
evidence demonstrated a violation of the Food Code, but did not demonstrate that this was a critical violation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §120.57, 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 3-301.11(B) of the Food Code, pertaining to the use of appropriate utensils to dispense ready-to-eat food states:
(B) Except when washing fruits and vegetables as specified under section 3-
302.15 or when otherwise approved, food employees may not contact exposed, ready-to- eat food with their bare hands and shall use suitable utensils such as deli tissues, spatulas, tongs, single-use gloves, or dispensing equipment.
Rule 3-302.12 of the Food Code states in pertinent
part:
part:
Food storage containers, identified with common name food. Working containers holding food or food ingredients that are removed from their original packages for use in the food establishment, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the food except that containers holding food that can be readily and unmistakably recognized such as dry pasta need not be identified.
Rule 3-501.16(A) of the Food Code states in pertinent
Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under Section 3- 501.19, and except as specified in paragraph
(B) of this Section, potentially hazardous food shall be maintained: (1) At 135 degrees Fahrenheit or above, except that roasts cooked to a temperature and for a time specified in paragraph 3-401.11(B) or reheated as specified in paragraph 3- 403.11(E) may be held at a temperature of
130 degrees Fahrenheit or above; or (2) at a temperature specified in the following:
(A) 41 degrees Fahrenheit or less.
* * *
Finally, rule 4-301.11 of the Food Code states in pertinent part:
Cooling, heating, and holding capacities. Equipment for cooling and heating food, and holding cold and hot food, shall be sufficient in number and capacity to provide food temperatures as specified under Chapter 3.
Petitioner has the burden of proving 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 3- 501.16(A) because either the nature of the cold food was unknown or the cold food was not shown to be stored at greater than 41 degrees Fahrenheit. Likewise, Petitioner did not establish by clear and convincing evidence that Respondent violated rule 4- 301.11, Food Code, since Respondent had cold storage facilities sufficient in number and capacity to maintain food temperatures. Given these facts, the parts of the Administrative Complaint relative to these allegations should be dismissed.
However, the inspectors observed Respondent's employee dispensing food with an improper dispenser during both the November and March inspections. Therefore, the clear and convincing evidence established that Respondent violated rule 3- 301.11(B) and that these violations were critical violations. Petitioner, also, established by clear and convincing evidence that Respondent violated rule 3-302.12 because Respondent failed to identify by name, the food removed from the original containers to working containers. However, the evidence did not demonstrate that this was a critical violation.
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 one critical violation and one non-critical violation. A reasonable fine in this case is $150.00 for the noncritical violation and $250.00 for the critical violation for a total fine of $400.00.
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.
