DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Case No. 13-3613
Respondent.
Pursuant to notice, a final hearing was held in this case on October 28, 2013, in Brooksville, Florida, before Suzanne Van Wyk, 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 June 25, 2013, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), issued an Administrative Complaint against Respondent, Dominos Pizza, by and through its vice president, Elizabeth Narverud. The Administrative Complaint alleged violations of provisions of chapter 509 and implementing rules relating to food safety, specifically related to the condition of the reach-in cooler gasket, the storage of bulk food with the scoop handle below the top of the food, and the lack of a backflow preventer at the mop sink faucet.1/
The Administrative Complaint was received by Respondent on June 28, 2013. On July 2, 2013, Respondent executed an Election of Rights form and requested a formal administrative hearing involving disputed issues of material fact.
On September 17, 2013, the Division referred the case to the Division of Administrative Hearings to conduct a formal hearing. The final hearing was scheduled for October 28, 2013, and was held as scheduled.
At the final hearing, the Division presented the testimony of Nick Roff, Sanitation and Safety Specialist for the Division. The Division offered Petitioner‟s Exhibits 1 through 3, which
were received into evidence. Respondent testified on her own behalf and presented the testimony of Martin Narverud.
Respondent offered Respondent‟s Exhibits 1 through 3, which were received into evidence.
The one-volume Transcript was filed on November 11, 2013. Petitioner timely filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order.
To date, Respondent has neither filed a proposed recommended order nor requested an extension of the due date therefor.
All statutory references are to Florida Statutes (2013).
All references to Florida Administrative Code Rule 61C-1.001 are to the rules which took effect April 18, 2012, and all references to Florida Administrative Code Rule 61C-1.005 are to the rules which took effect January 1, 2013. All references to the Food Code are to the 2009 U.S. Food and Drug Administration Food Code (Food Code).
At all times material hereto, Dominos Pizza was owned and operated by Narverud Restaurant Systems, Inc., as a licensed permanent public food service establishment located at
13081 Spring Hill Drive, Spring Hill, Florida. Elizabeth Narverud is its vice president. Narverud Restaurant Systems, Inc., holds License No. 3700896.2/
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 March 26, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food service inspection of Dominos Pizza.
On the date of the inspection, Mr. Roff had been employed by the Division for approximately three months and was still under probation. Mr. Roff had no experience in the food service industry prior to his employment with the Division. Mr. Roff received training from the Division in the laws relating to food service, and has become certified as a food manager. The Division additionally provides monthly in-house training which Mr. Roff has attended.
During his probationary period, Mr. Roff accompanied his senior inspector on food service establishment inspections, observing how the inspector conducted inspections, identified violations, and provided corrective actions. As part of his training, Mr. Roff was also “shadowed” by his senior inspector as Mr. Roff conducted inspections. On the date of the final hearing, Mr. Roff had conducted approximately 600 restaurant inspections.
Cited Violations
On March 26, 2013, Mr. Roff prepared an Inspection Report noting a total of 13 alleged violations of the standards set forth in applicable statutes, administrative rules, and the Food Code.
Among the violations Mr. Roff noted was the absence of a backflow preventer on the mop sink faucet. Mr. Roff observed that the mop sink faucet was threaded but no backflow preventer was installed.
Food Code Rule 5-203.14 provides as follows:
A PLUMBING SYSTEM shall be installed to preclude backflow of a solid, liquid, or gas contaminant into the water supply system at each point of use at the FOOD ESTABLISHMENT, including on a hose bibb if a hose is attached or on a hose bibb if a hose is not attached and backflow prevention is required by LAW, by: (A) Providing an air gap as specified under § 5-202.13; or (B) Installing an approved backflow prevention device as specified under § 5-202.14.
Food Code Rule 5-202.13, entitled “Backflow Prevention, Air Gap,” provides as follows:
An air gap between the water supply inlet and the flood level rim of the PLUMBING FIXTURE, EQUIPMENT, or nonFOOD EQUIPMENT
shall be at least twice the diameter of the water supply inlet and may not be less than
25 mm (1 inch).
A vacuum breaker or other backflow preventer prohibits backflow of water from the mop bucket, when being filled in the
mop sink (or by hose attached to the mop sink faucet), into the water supply system in the event of a loss of water pressure, which creates a siphoning action.
The Food Code provides an exception when the distance between the end of the faucet and the top of the rim of the sink is twice the diameter of the faucet but not less than one inch.
Violation of rule 5-203.14 is designated by the Division as a high priority violation.
Among other violations, Mr. Roff noted on the Inspection Report that the reach-in cooler gasket was torn or in disrepair. Mr. Roff did not testify specifically whether the gasket was torn, or otherwise in disrepair. He testified that he typically reaches in and spreads the gasket apart to inspect for tears.
Food Code Rule 4-501.11(B) provides, “Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturer‟s specifications.”
A torn or otherwise damaged cooler gasket can cause cross-contamination and prevent the storage of foods at the required temperature.
Mr. Roff did measure the temperature of the food in the reach-in cooler, but did not testify with certainty whether the temperature met the standard of 41 degrees or less.
Mr. Roff did not note temperature of food stored in the reach-in cooler as a violation. Given the totality of the evidence, the undersigned finds that the food stored in the reach-in cooler met the temperature standard.
Violation of rule 4-501.11(B) is designated by the Division as a basic violation.
Among the other violations observed by Mr. Roff was that the utensil used to scoop corn meal from its bulk container was resting flat on top of the corn meal, where the handle came into contact with the corn meal.
Food Code Rule 3-304.12 provides, in pertinent part, as follows:
During pauses in food preparation or dispensing, food preparation and dispensing utensils shall be stored:
* * *
(B) in food that is not potentially hazardous (time/temperature control for safety food) with their handles above the top of the food within containers or equipment that can be closed, such as bins of sugar, flour, or cinnamon.
At Dominos Pizza, corn meal is used in stretching the pizza dough. The corn meal is scooped from a bulk container onto the food preparation surface and spread by hand on the surface before stretching the dough.
Violation of rule 3-304.12 is designated by the Division as a basic violation.
Mr. Roff met with Ms. Narverud during the inspection on March 26, 2013, walked through each of the alleged violations with her, and gave her a copy of the Inspection Report, which she signed. The Inspection Report notes a callback inspection date of May 27, 2013.
On May 30, 2013, Mr. Roff performed a callback inspection at Respondent‟s food service establishment. Ms. Narverud was not present.
Mr. Roff observed that eight of the violations noted in the March 26, 2013, Inspection Report had been corrected. However, the three violations detailed above –- no backflow preventer at the mop sink, gasket on reach-in cooler torn or in disrepair, and corn meal scoop not stored with handle above food
–- were not corrected.
Mr. Roff prepared a Callback Inspection Report, which was signed by Julio Diaz as Manager. The Callback Inspection Report recommended filing an Administrative Complaint.
Petitioner introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code.
Owner‟s Response
Ms. Narverud has worked as a food service manager for
25 years, has a food manager certification from the Division, and is a certified trainer for Dominos where she trains employees in sanitation requirements. Ms. Narverud is an advocate for food safety and training in order to protect the Dominos brand and reputation.
Ms. Narverud testified that the gasket on the reach-in cooler was replaced approximately one year prior to the inspection. Ms. Narverud testified credibly that a gasket generally lasts three to five years. Ms. Narverud admitted that the gasket was stained with tomato sauce, but maintained it was not torn, soiled, or mildewed.
Respondent introduced a photograph of the gasket in question, which appeared to be in good repair. However, the picture was taken two weeks before the hearing, so it is not accepted as evidence of the condition of the gasket at the time of inspection.
Ms. Narverud contacted her plumber following the March inspection to request that a backflow preventer be installed at the mop sink faucet. The plumber informed her there was no backflow preventer device which would fit that particular faucet.3/
Further, Ms. Narverud maintained that the particular mop sink is exempt from the backflow preventer requirement because the air gap between the end of the faucet and the top of the mop sink was two inches or more, and no hose was attached to the faucet.
Mr. Roff could not recall whether a hose was located within the vicinity of the sink during either the initial or callback inspection.
There was no evidence of the distance between the end of the faucet and the flood level rim of the mop sink, other than Respondent‟s testimony.
Ms. Narverud planned to discuss the issue of the mop sink with Mr. Roff when he returned for the callback inspection. However, Mr. Roff returned on May 30, rather than May 27, the date noted in the March Inspection Report. Ms. Narverud was not present when the callback inspection was conducted.
Having been cited in the Administrative Complaint for the lack of a backflow preventer, despite her plumber‟s advice and her belief that no backflow preventer was required for the type of faucet installed, Ms. Narverud has subsequently had the entire faucet replaced and a backflow preventer installed.
As to the issue of the scoop handle in the corn meal bin, Ms. Narverud disagrees that a violation occurred. Because the corn meal is spread by hand onto the food preparation
surface after scooping, Ms. Narverud argues that it should be irrelevant whether the scoop handle touches the corn meal in the bin.
Mr. Narverud‟s argument, while understandable, is not compelling. But for the handle, employees might as well be scooping the corn meal directly from the bin with their hands. The handle is the carrier by which corn meal in the bin may become contaminated by any number of germs and viruses present on employees‟ hands. The citation may be picky, but it is nevertheless a violation.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1). 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 Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The evidence in this case is not clear and convincing that the condition of the gasket on Respondent‟s reach-in cooler was torn or in disrepair on either March 26, 2013, or May 20, 2013. Mr. Roff checked the box on his inspection form that the cooler gasket was “torn or in disrepair,” but did not identify at the hearing what specific disrepair he observed regarding the gasket upon inspection. Respondent‟s testimony that the gasket was replaced about a year prior to inspection, the fact that the food in the cooler met the temperature standard, and the photograph of the gasket showing its condition two weeks prior to hearing, are evidence that the gasket was in good repair at the time of inspection.
As such, there is insufficient evidence to conclude that Respondent violated Food Code Rule 4-501.11(B).
The evidence in this case is clear and convincing that no backflow prevention device was installed on the mop sink faucet upon inspection. However, the testimony of Respondent calls into question whether a backflow prevention device was required to be installed on the mop sink in question.
Respondent testified that the air gap was at least two inches, meeting the exception in Food Code Rule 5-203.14.
Unfortunately, Respondent‟s testimony is insufficient to establish that the air gap met the standard of “at least twice the diameter of the water supply inlet” and no less than one
inch. There was no evidence of the diameter of the faucet in question.
Petitioner‟s position that a backflow preventer is required because the faucet was threaded is accepted as credible.
The evidence in this case is clear that the handle of the corn meal scoop was not above the top of the corn meal in the bin.
The undersigned concludes that Respondent violated Food Code Rules 5-203.14. and 3-304.12.
Appropriate Penalty
Florida Administrative Code Rule 61C-1.005(6) provides, in pertinent part:
(6) 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.
* * *
Basic violation.
1st offense - Administrative fine of
$150 to $300.
* * *
(c) High Priority Violation.
1. 1st offense – Administrative fine of $250 to $500.
Florida Administrative Code Rule 61C-1.005(7) establishes aggravating and mitigating factors that may be applied in specific cases.
Petitioner introduced no evidence of aggravating factors in this case.
Among the mitigating factors listed in the rule are “[l]ength of time the current licensee has held the license,” and “[a]ttempts by the licensee to correct the violation.”
The evidence shows that Respondent has been licensed by the Division for 12 years without incident.
Respondent made extensive efforts to correct the deficiencies noted in the first Inspection Report, correcting all but four, one of which was dropped at final hearing.
Other mitigating factors which should be considered in this case are: 1) Respondent‟s good faith belief that the mop sink provided an air gap sufficient to prevent backflow;
Respondent‟s good faith belief that the mop sink faucet was not compatible with any back flow prevention device; and
Respondent‟s effort and expense in replacing the entire faucet with a faucet that accommodates a backflow preventer.
For the basic violation of failing to store the bulk food utensil handle above the top of the food in the bin –- a first offense –- a fine of $150 is appropriate.
The high priority violation of the Food Code requirement for a backflow preventer was a first offense, subject to an administrative fine of $250 to $500. Considering the mitigating factors discussed herein, a fine of $50 is more appropriate for the violation of Food Code Rule 5-203.14.
Professional Regulation, Division of Hotels and Restaurants, enter a final order:
DONE AND ENTERED this 12th day of December, 2013, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2013.
1/ A fourth alleged violation relating to required state- approved employee training was dismissed by the Division at the final hearing.
2/ For purposes of simplification, Dominos Pizza; Narverud Restaurant Systems, Inc.; and Elizabeth Narverud may be referred to herein alternately as “Respondent.”
3/ This hearsay testimony is accepted as evidence of what the plumber told Ms. Narverud, but not to prove the truth of the
matter asserted (i.e., that the faucet could not be fitted with a backflow preventer).
Charles F. Tunnicliff, Esquire Department of Business and
J. Layne Smith, General Counsel Department of Business and
William L. Veach, Director Department of Business and
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.
