DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Respondent.
) Case No. 13-0105
Pursuant to notice, a final hearing was held in this case on March 5, 2013, by video teleconference at sites in Tallahassee, Florida and Daytona Beach, Florida, before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.
Whether Respondent violated food safety standards established by section 509.032, Florida Statutes, and the implementing rules as charged in the Administrative Complaint and, if so, the appropriate sanctions.
On August 14, 2012, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), issued an Administrative Complaint against Respondent, The Patio restaurant, by and through its owner, Don Midland, Jr. The Administrative Complaint alleged violations of provisions of chapter 509, Florida Statutes, and implementing rules relating to food safety, specifically related to the holding temperatures of cold food held in Respondent‟s “cook- line” cooler.
The Administrative Complaint was received by Respondent on September 28, 2012. On October 5, 2012, Respondent executed an Election of Rights form and requested a formal administrative hearing involving disputed issues of material fact.
On January 9, 2013, the Division referred the case to the Division of Administrative Hearings to conduct a formal hearing. The final hearing was scheduled for March 5, 2013, and was held as scheduled.
At the final hearing, the Division presented the testimony of Renee Pichardo, a Sanitation and Safety Specialist for the Division, and Kim Pleicones, a Senior Sanitation and Safety Specialist for the Division. The Division offered Petitioner‟s Exhibits 1-3, which were received into evidence. Respondent appeared and testified on his own behalf.
The one-volume Transcript was filed on March 21, 2012. The parties timely filed their post-hearing submittals, which have been considered in the preparation of this Recommended Order.
All statutory references are to Florida Statutes (2012).
All references to Florida Administrative Code Rule 61C-1.001 are to the rule as last amended on June 26, 2012. All references to Florida Administrative Code Rule 61C-1.005 are to the rule as last amended on December 28, 2009. All references to the Food Code are to the 2001 U.S. Food and Drug Administration Food Code (Food Code).
At all times material hereto, Respondent operated a licensed permanent public food service establishment known as The Patio, located at 626 North Dixie Freeway, New Smyrna Beach, Florida. Respondent holds License No. SEA7403397.
The Division is responsible for monitoring and inspecting licensed food service establishments to ensure that
they comply with the standards set forth in relevant statutes and rules, and the Food Code.
On May 8, 2012, Renee Pichardo, a Sanitation and Safety Specialist for the Division, who was accompanied by Kim Pleicones, a Senior Sanitation and Safety Specialist for the Division, conducted a food service inspection of Respondent‟s food service establishment. Both inspectors have received training in sanitation and inspection procedures, and are sufficiently competent and experienced to perform the duties described herein.
Among items subject to the inspection was the temperature at which foods were being held in Respondent‟s coolers. Ms. Pleicones used a thermapen thermometer to determine whether foods were being held at temperatures that met safety standards under the Food Code. A thermapen thermometer is a probe that is inserted into foods to take internal temperatures. After the probe is inserted, a reading of the temperature is digitally displayed.
After measurements were taken of various foods kept in Respondent‟s coolers, Ms. Pleicones showed the thermometer to Ms. Pichardo, who entered the displayed information on her personal data assistant (PDA) Food Service Inspection Report form.
Ms. Pichardo observed that Respondent had potentially hazardous cold food held at greater than the Food Code required
41 degrees Fahrenheit in the “cook-line” cooler. She noted that half-and-half was being held at 51 degrees Fahrenheit, crab salad was being held at 50 degrees Fahrenheit, melon was being held at 47 degrees Fahrenheit, and pasta was being held at 46 degrees Fahrenheit.
The Food Service Inspection Report prepared for the May 8, 2012, inspection indicated that the food in the “cook- line” cooler was “[m]oved to another cooler.”
As a result of her temperature measurements,
Ms. Pichardo determined that the “cook-line” cooler was not capable of maintaining cold foods at their proper temperature.
Ms. Pichardo entered the violations regarding food temperatures and cooling equipment, along with several others that are not material to this proceeding, on the Food Service Inspection Report. Respondent‟s owner, Don Midland, was not at the establishment during the May 8, 2012, inspection. The report was therefore reviewed and signed by Eric Simpson, Respondent‟s manager. The report established July 8, 2012, as the date for a call-back inspection, by which time the violations were to be corrected.
On July 10, 2012, Ms. Pichardo and Ms. Pleicones performed the call-back inspection. Mr. Midland was in
attendance at the call-back inspection. Using the same procedures used on May 8, 2012 for measuring food temperatures, Ms. Pichardo observed that Respondent continued to have potentially hazardous cold food held at greater than 41 degrees Fahrenheit in the “cook-line” cooler. She noted that heavy cream was being held at 52 degrees Fahrenheit, cheese was being held at 50 degrees Fahrenheit, chicken was being held at 50 degrees Fahrenheit, crab mix was being held at 58 degrees Fahrenheit, and melon was being held at 50-51 degrees Fahrenheit.
As a result of her temperature measurements,
Ms. Pichardo determined that the “cook-line” cooler was still not capable of maintaining cold foods at their proper temperature.
Ms. Pichardo prepared a Call-Back Inspection Report using her PDA to record the food temperature and cooling equipment violations that she observed. Mr. Midland signed the report acknowledging receipt.
The Division has determined that the failure to maintain cold food at proper temperatures during storage, display or service, poses a significant threat to the public health, safety, or welfare due to the greater likelihood that it will produce food-borne illnesses by contamination or health hazards. The Division has therefore identified such failure as
a critical violation. That determination is reasonable and is accepted.
The Division has determined that the failure of cooling equipment to operate so as to maintain cold foods at their proper temperature to pose a significant threat to the public health, safety, or welfare. The Division has therefore identified such failure as a critical violation.
Mr. Midland described the “cook-line” cooler at issue1/ as being open at the top, and located close to the stoves. It is used for cooking and salad supplies, and is replenished from food supplies kept in other coolers as needed. Mr. Midland indicated that cold foods kept in the cooler are “never in the danger zone longer than . . . two hours.”
Respondent‟s establishment has at least three major coolers located in the kitchen area, including a reach-in cooler on the cook-line itself, and a large cooler and several chest freezers in an outdoor shed. The reach-in cooler on the cook- line is used to hold cold foods, and to replenish the “cook- line” cooler as its stock is used in preparation of meals. The food kept in the other coolers met the temperature standards established by the Food Code.
Mr. Midland expressed his disagreement with the manner in which the temperatures were being taken during the July 10, 2012, inspection. He indicated that he complained to
Ms. Pleicones that she was not inserting the thermapen probe deep enough into the “stuffing” to accurately gauge the temperature. Ms. Pleicones testified that a shallow depth may be appropriate because the purpose of the inspection is to “get the surface temperature besides the total internal temperature.” She further stated that the thermapen probe has “dimples” that establish the depth to which the probe is to be inserted, and that she inserted the thermapen probe to the “dimples.” She measured the foods in all of the coolers at Respondent‟s establishment the same way. Only food in the “cook-line” cooler was found to be above the 41 degree Fahrenheit temperature required by the Food Code.
Mr. Midland stated his belief that the Division‟s thermapen thermometer was not correctly calibrated.
Ms. Pleicones testified that the thermapen thermometer is calibrated weekly to ensure accuracy. The fact that only the “cook-line” cooler showed exceedances of the food temperature standard, with the food kept in the establishment‟s other coolers found to have met the standard, and the consistency of the temperatures measured during the May 8, 2012 and July 10, 2012, inspections is persuasive evidence that the thermapen thermometer accurately measured the food temperatures in the various coolers.
Mr. Midland is a well-trained and experienced chef.
He has been the sole owner of The Patio for approximately 20 years. His record of compliance with the Food Code is good, there being no evidence of any previous violations at The Patio.
In his post-hearing submittal, Respondent made certain characterizations regarding the testimony of witnesses in this proceeding. Those characterizations are not accepted.
CONCLUSIONS OF LAW
Jurisdiction.
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 (2012).
Standards.
Subsection 509.032(1) provides, in pertinent part, that:
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 . . . .
Section 509.032(2)(d) provides, in pertinent part, that:
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,. . . conducting necessary public food service establishment inspections for compliance with sanitation regulations,. . . and initiating enforcement actions, and for other such responsibilities deemed necessary by the division.
Section 509.032(6) provides that the Division shall adopt such rules as are necessary to carry out the provisions of chapter 509.
The Division has adopted Florida Administrative Code Rule 61C-1.001(13),2/ which incorporates by reference various provisions of the 2001 Food Code, including those applicable to this proceeding.
Section 3-501.16 of the Food Code entitled “Potentially Hazardous Food, Hot and Cold Holding,” provides, in pertinent part:
(A) Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under paragraph 3-501.19, and except as specified in ¶(B) of this section, POTENTIALLY HAZARDOUS FOOD shall be maintained:
* * *
(2) At a temperature specified in the following:
5°C (41°F) or less; or
7°C (45°F) or between 5°C (41°F) and 7°C (45°F) in existing refrigeration EQUIPMENT that is not capable of maintaining the FOOD at 5°C (41°F) or less if:
The EQUIPMENT is in place and in use in the FOOD ESTABLISHMENT, and
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.
Section 1-201.10(B)(65) of the Food Code defines "Potentially Hazardous Food," in pertinent part, as follows:
"Potentially hazardous food" means a FOOD that is natural or synthetic and that requires temperature control because it is in a form capable of supporting:
The rapid and progressive growth of infectious or toxigenic microorganisms;
The growth and toxin production of Clostridium Botulinum; or
In raw shell EGGS, the growth of Salmonella Enteritidis.
"Potentially hazardous food" includes an animal FOOD (a FOOD of animal origin) that is raw or heat-treated; a FOOD of plant origin that is heat-treated or consists of raw seed sprouts; cut melons; and garlic-in- oil mixtures that are not modified in a way that results in mixtures that do not support growth as specified under subparagraph (a) of this definition.
Section 4-301.11 of the Food Code entitled "Cooling, Heating, and Holding Capacities," provides:
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.
Section 509.261 provides in pertinent part, that:
Any . . . public food service establishment that has operated or is operating in violation of this chapter or the rules of the division . . . may be subject by the division to:
Fines not to exceed $1,000 per offense;
Mandatory completion, at personal expense, of a remedial educational program administered by a food safety training program provider approved by the division, as provided in s. 509.049; and
The suspension, revocation, or refusal of a license issued pursuant to this chapter.
Florida Administrative Code Rule 61C-1.005 establishes the disciplinary guidelines for imposing penalties upon food service establishments in administrative actions.
Florida Administrative Code Rule 61C-1.005(6) provides, in pertinent part:
Definitions.
“Critical violation” means a violation determined by the division to pose a significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in .
. . DBPR Form HR-5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not
otherwise identified in this rule. (emphasis added)
“Non-critical violation” means a violation not meeting the definition of critical violation and not otherwise identified in this rule.
The Food Service Inspection Report entered into evidence in this proceeding designates the food temperature violation and the cooling equipment violation as “critical violations.” The form on which the violations appear -- DBPR Form HR-5022-016 -- is not the form -- DBPR Form HR-5022-015 -- identified in the definition of “critical violation.” Nonetheless, the exceedance of the food temperature standard is a “critical violation” by reason of the significant threat to the public health, safety, or welfare from the risk of food- borne illness posed by a violation of the Food Code standard.
Florida Administrative Code Rule 61C-1.005(6) provides, 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.
* * *
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 and continuing until the violation is corrected.
1st offense - Administrative fine of
$250 to $500.
2nd offense - Administrative fine of
$500 to $1,000.
3rd and any subsequent offense - Administrative fine of $750 to $1,000, license suspension, or both.
Florida Administrative Code Rule 61C-1.005(7) establishes aggravating and mitigating factors that may be applied in specific cases.
The Burden and Standard of Proof.
The Division bears the burden of proving the specific allegations of fact that support the charges alleged in the Administrative Complaint by clear and convincing evidence.
§ 120.57(1)(j), Fla. Stat.; Dep‟t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Dep‟t of Ins. and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires more proof than a „preponderance of the evidence‟ but less than „beyond and to the exclusion of a reasonable doubt.‟” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof
entails both a qualitative and quantitative standard. The evidence must be credible;
the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear 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 testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros.,
Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The evidence in this case is clear and convincing that on May 8, 2012, half-and-half, crab salad, melon, and pasta were being held in the “cook-line” cooler at temperatures higher than that allowed by section 3-501.16(A) of the Food Code as adopted in rule 61C-1.001(13), and that such conditions may pose a significant threat to the public health, safety, or welfare as a result of the threat of food-borne illness.
The evidence in this case is clear and convincing that on July 10, 2012, heavy cream, cheese, chicken, crab mix, and melon were being held in the “cook-line” cooler at temperatures higher than that allowed by section 3-501.16(A) of the Food Code as adopted in rule 61C-1.001(13), and that such conditions may pose a significant threat to the public health, safety, or welfare as a result of the threat of food-borne illness.
As its title - Cooling, Heating, and Holding Capacities - suggests, section 4-301.11 of the Food Code is not necessarily violated simply because a particular cooling unit is unable to maintain adequate food temperatures. Rather, the Food Code requires a calculation as to whether the food service establishment has cold food holding equipment that is “sufficient in number and capacity” to meet its overall cooling demands. If the cooling demands of the establishment can be met by simply moving the food into other available space -- as occurred during the May 8, 2012, inspection -- there is no deficiency in the establishment‟s cooling equipment capacity as provided by section 4-301.11 of the Food Code. This interpretation has been adopted by the Division. Dep‟t of Bus. & Prof‟l Reg. v. Jazzy Dog Cafe, Case No. 10-0907, 2010 Fla. Div. Adm. Hear. LEXIS 50 (Fla. DOAH July 12, 2010; Fla. DBPR Sept. 21, 2010)(evidence failed to establish that Respondent did not have sufficient equipment in number and capacity where
affected food was moved to other coolers). See also Dep‟t of
Bus. & Prof‟l Reg. v. Soup Swift, Case No. 11-1410, 2011 Fla. Div. Adm. Hear. LEXIS 865 (Fla. DOAH Aug. 1, 2011)(no violation where licensee had another working cold storage unit with sufficient capacity to hold all food at proper temperatures).
Even if section 4-301.11 of the Food Code could reasonably be construed to regulate the cooling capability of a particular cooling unit in isolation, without regard to the number or capacity of other available cooling equipment in the food service establishment, any such ambiguity must be construed in favor of Respondent. Liner v. Workers Temp. Staffing, 990 So. 2d 473, 477 (Fla. 2008)(even though civil statute was remedial in nature, and would normally be liberally construed, civil penalties of $1,000 for violation required any ambiguity to be interpreted in favor of Appellee); Beckett v. Dep't of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008)(agency discretion limited in interpreting penal statutes; ambiguity must be interpreted in favor of licensee).
Despite the fact that cold food was not maintained at the required temperatures on May 8, 2012, and July 10, 2012 -- a fact that establishes a violation on other grounds -- the Division did not establish that other coolers at the establishment that were operating and holding foods at compliant temperatures were insufficient in number or capacity to meet the
requirements of Respondent‟s operations. Thus, the Division failed to prove by clear and convincing evidence that on either May 8, 2012, or July 10, 2012, Respondent‟s cooling equipment was not “sufficient in number and capacity to provide FOOD temperatures as specified under chapter 3,” in violation of section 4-301.11 of the Food Code as adopted in rule 61C- 1.001(13).
An administrative penalty calculated in accordance with Florida Administrative Code Rule 61C-1.005 is appropriate in this case.
There were no aggravating circumstances proven. Given that Respondent has operated The Patio restaurant for 20 years without incident, the mitigating factor of the “[l]ength of time the licensee has been in operation” set forth in Florida Administrative Code Rule 61C-1.005(7)(b)3. is applicable in this case.
The violation of the Food Code cold food holding temperature standard alleged in count 1 of the Administrative Complaint was a first offense, subject to an administrative fine of $250 to $500. The violation of the Food Code cooling equipment standard alleged in count 2 of the Administrative Complaint was not proven. A mitigating factor based on the length of time Respondent has been in operation should be
applied in this case. Based on the foregoing, a fine of $200 for the violation alleged in Count 1 is reasonable.
RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order:
DONE AND ENTERED this 12th day of April, 2013, in Tallahassee, Leon County, Florida.
E. GARY EARLY Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2013.
1/ Mr. Midland also called the cooler at issue a “pizza cooler” or “prep cooler.” They are, in fact, the same cooler.
2/ Florida Administrative Code Rule 61C-1.001(13) was renumbered as rule 61C-1.001(14), and the 2009 edition was adopted for use in Florida, effective on January 1, 2013. Those changes are not applicable in this proceeding, and in any event would have no material impact on the outcome.
Charles F. Tunnicliff, Esquire Department of Business and
Don Midland, Jr.
William L. Veach, Director Division of Hotels and Restaurants Department of Business
J. Layne Smith, General Counsel Department of Business
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.
