STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS

AND RESTAURANTS,

vs.

Petitioner,

Case No. 13-4683

SARAH GREEK VILLAGE DELI,

Respondent.

/

RECOMMENDED ORDER

A hearing was held pursuant to notice, on February 5, 2014, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, via video teleconferencing with sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1015

For Respondent: Subra Deeb, pro se

Sarah Greek Village Deli Suite 205

16640 Cagan Crossing Boulevard Clermont, Florida 34714

STATEMENT OF THE ISSUE

Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate penalty that should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint alleging violations of the provisions of chapter 509, Florida Statutes, or the applicable rules governing the operation of public food establishments.

Respondent disputed the allegations in the Administrative Complaint and petitioned for a formal administrative hearing. The case was referred to the Division of Administrative Hearings on or about December 6, 2013. A formal hearing was set for February 5, 2014.

On January 29, 2014, Petitioner filed a Notice of Voluntary Dismissal of Count 3 of the Administrative Complaint. Prior to hearing, Petitioner filed a Notice of Voluntary Dismissal of Count 5 of the Administrative Complaint.

At hearing, Petitioner presented testimony of Cecilia Chiu.

Petitioner's Exhibits numbered 1 through 3 were admitted into evidence. Respondent presented the testimony of Subra Deeb, owner of the establishment. Respondent did not offer any exhibits into evidence.

A Transcript consisting of one volume was filed on March 5, 2014. Petitioner timely filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. Respondent did not file a post-hearing submission.

References to Florida Statutes are to the 2013 version, unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is the state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to section 20.165 and chapter 509, Florida Statutes.

2. Respondent is an eating establishment located in Clermont, Florida. At all times material hereto, Respondent was licensed as a public food establishment by the Division.

3. Cecelia Chiu has been employed by the Division for approximately nine years and is a Senior Sanitation and Safety Specialist. Prior to working for the Division, she owned a restaurant for about 15 years and was employed as a store manager and a district manager with Wendy’s restaurants.

   Ms. Chiu has received training in laws and rules regarding public food service and lodging, and continues to receive continuing education training on a monthly basis in this area.

   
   

   She is a Certified Food Manager and performs approximately 800 inspections annually.

4. On June 5, 2013, Ms. Chiu performed a routine inspection of Respondent's premises. During the inspection, Ms. Chiu prepared, signed, and issued an inspection report setting forth the violations she observed. The inspection report was electronically prepared on an iPad by Ms. Chiu. Respondent's representative was present and signed the inspection report indicating receipt.

5. Ms. Chiu informed Respondent about the violations found, noted the violations on the inspection report, and notified Respondent that the violations must be corrected by August 6, 2013.

6. On August 9, 2013, Ms. Chiu performed a callback inspection of Respondent. During that inspection, she prepared and signed a callback inspection report, which was signed and received by Respondent's owner, Subra Deeb. Ms. Chiu made Respondent aware that some of the violations noted on the

   June 5, 2013, inspection report had not been corrected.

   
   

7. On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed ready-to-eat food, potentially hazardous food prepared onsite, not being date-marked. Ms. Chiu found this to be a violation because while refrigeration slows the growth of pathogens and microorganisms, it does not kill these organisms.

   
   

   In time, these microorganisms and pathogens will significantly grow and pose a risk to public health. Therefore, time marking is required to control this risk to public health.

8. The Division has designated this violation as an intermediate violation.1/

9. On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed an employee wearing jewelry, specifically a bracelet and a watch, while preparing food. Ms. Chiu explained that the construction of jewelry, such as a bracelet, inhibits these items from being thoroughly cleaned and sanitized. Additionally, the jewelry can act as a reservoir for microorganisms and pathogens. If an employee is wearing these items while preparing food, it can cross-contaminate the food. Also, pieces from the jewelry can fall into the food and become a physical hazard to public health.

10. The Division has designated this as a basic violation.2/

11. On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed no vacuum breaker was provided on the fitting/splitter on the hose bibb at the mop sink. Ms. Chiu explained that this is a violation because the open end of the hose attached to a hose bibb on a drinking water line may be dropped into a container filled with dirty water or contact a puddle of dirty water. The backflow prevention device prevents dirty water from

    
    

    being siphoned back into the drinking water system if negative pressure occurs.

12. The Division has designated this as a High Priority Item.3/

13. On June 5, 2013, and again on August 9, 2013, Ms. Chiu observed the carbon dioxide tank not adequately secured.

    Ms. Chiu explained that this is a violation because gas inside a tank, even if the tank is empty, must be properly secured because someone can knock it down, creating a missile and, therefore, a public safety hazard.

14. The Division designates this as a basic violation.

    
    

15. On June 5, 2013 and again on August 9, 2013, Ms. Chiu observed no proof of required state-approved employee training was provided for any employees. This is a violation because all food service employees must be trained in personal hygiene and food-borne illness prevention in order to provide a clean and safe establishment for the public.

16. The Division designates this as an intermediate violation.

    Respondent’s Response

    
    

17. Regarding the alleged violation about food held more than 24 hours but not being properly date-marked, Respondent testified that the food served is prepped daily, and that they

    
    

    only use food the same day that it is prepped. The undersigned finds this testimony to be credible.

18. As for the allegation that an employee wore jewelry (a bracelet and a watch), Ms. Deeb did not refute the allegation, but testified that Ms. Chiu came in the restaurant when Ms. Deeb was cooking, that she washed her hands and wore gloves at the time of the inspection, and that she wears gloves “all the time.”

19. Regarding the alleged violation that there was no vacuum breaker on the hose bibb at the mop sink, Ms. Deeb explained that the vacuum breaker has been replaced.

20. Respondent did not refute the allegation regarding the carbon dioxide tank not being adequately secured or the allegation regarding having no proof of required state-approved employee training.

21. Ms. Deeb did explain that Respondent was a new business at the time of the inspections, that they were in the process of renovating, and that she had misplaced the notice of violations after the June 5, 2013 inspection.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    §§ 120.569, 120.57(1), and 120.60(5), Fla. Stat.

    
    

23. The Division is the state agency charged with

    
    

    regulating public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes.

24. Pursuant to section 509.261(1), the Division may impose penalties for violations of chapter 509, Florida Statutes, including an administrative fine of no more than

    $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; and the suspension, revocation, or refusal of a license.

25. The Department has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaint. See, e.g., Dep't of Banking & Fin. v.

    Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

    
    

26. Section 509.032(6) provides that the Division shall adopt such rules as are necessary to carry out the provisions of chapter 509. Paragraph 1-201.10(B) and chapters 2, 3, 4, 5, 6, and 7, and sections 8-103.11 and 8-103.12 of the United States Food and Drug Administration's Food Code (Food Code) have been adopted by reference into the Department's rules governing public food establishments. Fla. Admin. Code R. 61C-1.001(14).

27. Rule 61C-1.001 provides definitions, including definitions of the three levels of violations. Within this rule, a Basic violation is defined as an item that is “defined in the Food Code as a Core Item”; an Intermediate violation is

    
    

    one that is “defined in the Food Code as a Priority Item”; and a High Priority violation is one that is “defined in the Food Code as a Priority Foundation Item.”

28. Through the Administrative Complaint, Respondent is alleged to have violated the following provisions of the Food Code, which read in pertinent part:

    2-303.11

    
    

    Except for a plain ring such as a wedding band, while preparing food, food employees may not wear jewelry including medical information jewelry on their arms and hands.

    
    

    * * *

    
    

    3-501.17

    
    

    1. Except when packaging food using a reduced oxygen packaging method as specified under § 3-502.12, and except as specified in

       ¶¶ (D) and (E) of this section, refrigerated, ready-to-eat, potentially hazardous food (time/temperature control for safety food) prepared and held in a food establishment for more than 24 hours shall be clearly marked to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded when held at a temperature of 5ºC (41ºF) or less for a maximum of 7 days.

       
       

       * * *

       
       

       5-203.14

       
       

       Backflow Prevention Device, when required. 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

       
       

       1. Providing an air gap as specified under

          § 5-202.13; or

          
          

       2. Installing an approved backflow prevention as specified under § 5-202.14.

       
       

29. Florida Administrative Code Rule 61C-1.004(7) requires carbon dioxide and helium tanks to be adequately secured so as to preclude any danger to safety.

30. Section 509.049(5) provides in pertinent part:

    
    

    * * *

    
    

    (5) It shall be the duty of each public food establishment to provide training in accordance with the described rule to all food service employees of the public food service establishment. The public food service establishment may designate any certified food service manager to perform this function. Food service employees must receive certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. Proof of training for each food service employee shall include the name of the trained employee, the date of birth of the trained employee, the date the training occurred, and the approved food safety training program used.

    
    

31. The Division did not prove by clear and convincing evidence that Respondent violated section 3-501.17(A) of the Food Code in that the Division did not prove that the food had

    
    

    been held more than 24 hours by Respondent, therefore requiring date-marking.

32. The Division proved by clear and convincing evidence that Respondent violated section 2-303.11 of the Food Code, in that Ms. Chiu observed Ms. Deeb wearing jewelry (a watch and a bracelet). Again, Ms. Deeb’s testimony regarding always wearing gloves for food preparation was credible, however, it does not address the prohibition of wearing jewelry specified in the rule, nor does it address the potential hazards explained by Ms. Chiu that may result from wearing jewelry while working with food.

33. The Division proved by clear and convincing evidence that Respondent violated section 5-203.14 of the Food Code, in that there was no vacuum breaker on the fitting/splitter on the hose bibb at the mop sink at the time of the initial and call- back inspections.

34. The Division proved by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C- 1.004(7), in that a carbon dioxide tank was not properly secured on the dates of the initial and call-back inspections.

35. The Division proved by clear and convincing evidence that Respondent violated section 509.049(5), Florida Statutes, because Respondent did not provide proof of the required state-

    
    

    approved employee training at the time of the initial and call- back inspections.

36. In its Proposed Recommended Order, the Division proposes an administrative penalty of a total of $1,425. This is based upon one High Priority violation, two Intermediate violations, and two Basic violations. However, one of the Intermediate violations was not proven.

37. Florida Administrative Code Rule 61C-1.005 specifies the following ranges for the first offense of each type of violation: for a Basic violation, an administrative fine of

    $150 to $300; for an Intermediate violation, an administrative fine of $200-$400; and for a High Priority violation, an administrative fine of $250 to $500.

38. This is a small, family-owned business that had just recently opened at the time of the inspections. The Division introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code. Accordingly, a fine of $150 for each Basic violation, $200 for the Intermediate violation, and $250 for the High Priority violation is appropriate, for a total of $750.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Division enter a final order which confirms the violations found, and imposes an

administrative fine in the amount of $750 due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the Final Order is filed with the Agency Clerk.

DONE AND ENTERED this 31st day of March, 2014, in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2014.

ENDNOTES

1/ The definition of an Intermediate violation is addressed in paragraph 26, infra.

2/ The definition of a Basic violation is addressed in paragraph 26, infra.

3/ The definition of a High Priority violation is addressed in paragraph 26, infra.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32388-1015

Subra Deeb

Sarah Greek Village Deli

16640 Cagan Crossing Blvd, Suite 305

Clermont, Florida 34714

Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Layne Smith, General Counsel Department of Business and

Professional Regulation 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: 13-004683

Orders for Case No: 13-004683