vs. ) CASE NO. 86-3993
CHARLES L. HARRISS, d/b/a )
Respondent. )
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 13, 1986 in Naples, Florida.
For Petitioner: Lynne A. Quimby, Esquire
For Respondent: Charles L. Harriss, pro se
By Notice to Show Cause issued on August 25, 1986, petitioner, Department of Business Regulation, Division of Hotels and Restaurants, has alleged that respondent, Charles L. Harriss, d/b/a Mister Donut, was guilty of twenty-five violations of Chapter 10D-13, Florida Administrative Code. These violations were alleged to have been detected during an inspection of respondent's food service establishment in Naples, Florida conducted on July 4, 1986.
After an informal conference was held, respondent requested a formal hearing on September 22, 1986 to contest the allegations pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was referred by petitioner to the Division of Administrative Hearings on October 9, 1986, with a request that a Hearing Officer be assigned to conduct a formal hearing.
On November 5, 1986 petitioner moved to amend its Notice to Show Cause to reflect that the inspection of respondent's establishment occurred on July 9 rather than July 4, 1986. This motion was granted at the outset of the final hearing.
By notice of hearing dated October 23, 1986, the matter was scheduled for final hearing on November 13, 1986 in Miami, Florida. Upon request of petitioner, venue was changed to Naples, Florida. At final hearing, petitioner presented the testimony of Lewis W. Feif, Patrick A. Noble, Karlin D. Kahl and Dean McCormick. It also offered petitioner's exhibits 1-6. All were received into evidence. Respondent testified on his own behalf and presented the testimony of Tonita Sloan and Jeff Ahlquist. He also offered respondent's exhibits 1-12. All were received into evidence.
There is no transcript of hearing. Petitioner filed proposed findings of fact and conclusions of law on November 24, 1986. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.
The issue is whether respondent's license should be disciplined for the reasons set forth in the Notice to Show Cause as amended.
At all times relevant hereto, respondent, Charles L. Harriss, was the owner and operator of a food service establishment known as Mister Donut located at 5567 Golden Gate Parkway, Naples, Florida. Respondent holds license control number 21-1041-R issued by petitioner, Department of Business Regulation, Division of Hotels and Restaurants (Division), and is subject to that agency's regulatory jurisdiction. Mister Donut is a retail bakery outlet that sells donuts, coffee and other similar items.
On the afternoon of July 9, 1986, a Collier County environmental health specialist conducted a routine inspection of respondent's establishment to determine if prescribed health and safety standards were being maintained. The inspection was made in the presence of an employee of respondent. The specialist found respondent to have violated various food service rules promulgated by the Department of Health and Rehabilitative Services in twenty- five respects. All but two, which respondent has conceded are correct, are in dispute. After an informal conference failed to resolve the matter, this proceeding ensued.
The Donut Shop is one of three retail bakery outlets owned by Harriss. Besides the store in question, he operates a second outlet in Naples and one in Miami. There is no baking or cooking done on the premises of the establishment, although some "finishing" of products (such as adding sugar or filling) occurs. Donuts are delivered to the establishment from Harriss' other Naples store at 5:30 a.m. each morning, and from noon to 3:00 p.m. on an as-needed basis. The finishing of the product generally takes place shortly after it is delivered. There are three work shifts for employees: 6:00 a.m. -- 12:00 noon; 12:00 -- 6:00 p.m.; and 6:00 p.m. to 10:00 p.m. The floors are to be mopped and the area cleaned at the end of each shift. The busiest time of the day is between 7:00 and 9:00 a.m. The store is located in a shopping center.
Although the specialist's qualifications to conduct a competent inspection were challenged by Harriss during the witness' testimony, it is found he has the experience, education and training necessary to adequately perform his job.
In conjunction with his inspection, the specialist filled out a food service inspection report identifying each violation detected. This report has been received into evidence as petitioner's exhibit number 2. In addition, the specialist categorized violations as either being major or minor. When the inspection was made, the specialist was accompanied by a food services coordinator who also made her own inspection as a cross- check on the specialist's work. Her report has been received into evidence as petitioner's exhibit number 5.
The violations are identified on the report by number. For ease in discussing the numerous violations, reference to the number on the report will be made in the findings hereinafter.
Violation 02 -- Drawers containing food components (candy toppings) were not labeled as required by Rule 10D- 13.24(9), Florida Administrative Code. The drawers were also soiled with food particles.
Violation 03 -- Food (soup) was not being maintained at proper temperature (140 degrees) as required by Rule 10D-13.24(2), Florida Administrative Code.
Violation 04 -- Although petitioner charged Harriss with having no "indicating thermometer" on the food warmer, it was established that the warmer had low, medium and high settings. This constitutes substantial compliance with Rule 10D-13.24(2), Florida Administrative Code.
Violation 05 -- Harriss has been cited with violating Rule 10D- 13.24(8), Florida Administrative Code, for failure to have conspicuous thermometers in or on his refrigerator and the food warmer. However, the more persuasive evidence is that a thermometer was hung on the top left side of the refrigerator while the food warmer had low, medium and high settings. This satisfies the foregoing rule.
Violation 08 -- During the course of the inspection, donuts and rolls were found in uncovered or non- encased display areas. This is contrary to Rule 10D-13.24(1), Florida Administrative Code, which requires that such food be in a glassed case or otherwise covered in some manner.
Violation 09 -- An employee was observed scooping ice into a cup without an ice scoop. This resulted in the employee's hand coming into contact with the ice in violation of Rule 10D-13.24(8), Florida Administrative Code.
Violation 10 -- In conjunction with the prior violation, no ice scoop was seen or used. Rule 10D-13.24(10), Florida Administrative Code, requires that food be served in a manner that will minimize contamination.
Violation 12 -- The specialist observed respondent's employee with food particles and sugar on her hands. Rule 10D-13.25(3), Florida Administrative Code, requires that employees wash their hands as often as necessary to remove soil and contamination.
Violation 13 -- Employees are required to wear hair nets or hair spray to keep hair from getting into food. Although no hair net was worn by the employee, the employee used an effective hair restraint (hair spray) so as to comply with the rule.
Violation 14 -- As noted earlier, a proper utensil for serving ice was not being used or displayed. This is in contravention of Rule 10D-13.24(8), Florida Administrative Code.
Violation 15 -- It was established that non-food contact surfaces were covered with frosting and powdered sugar. Rule 10D-13.26(4)(1), Florida Administrative Code, requires that such surfaces be cleaned at such intervals as is necessary to keep them in a clean and sanitary condition.
Violation 17 -- Chemical test kits are required by Rule 10D- 13.26(5)(a)2.d., Florida Administrative Code, for the purpose of accurately measuring solutions used for sanitization purposes. Although a kit was not seen by the specialist, there was such a testing kit on the first shelf near the three compartment sink on respondent's premises.
Violation 20 -- The specialist could not recall the nature of this violation.
Violation 21 -- According to Rule 10D-13.26(4)(d), Florida Administrative Code, soiled cloths and sponges must be stored in a sanitizing solution between uses. The specialist found several soiled cloths in a sink. However, since these were just temporarily placed in the sink for rinsing before being placed in a linen bag for laundry service, no violation occurred.
Violation 22 -- The drawer containing candy topping was not clean. Rule 10D-13.26(4)(a), Florida Administrative Code, requires that food contact surfaces be cleaned at least once a day. Since the inspection occurred in the afternoon, and prior to the end of the day, it was not shown that respondent failed to clean this area that day.
Violation 23 -- The interior of non-food contact areas such as cabinets, shelves, refrigerator and sides of equipment were observed to have food particles on them, and were not clean. This was in violation of Rule 10D- 13.26(4)(a), Florida Administrative Code, which requires that non-food contact surfaces of equipment be cleaned, and kept in a sanitary condition.
Violation 24 -- Various utensils in drawers were not clean. Rule 10D- 13.26(4)(a), Florida Administrative Code, requires that all kitchenware be thoroughly cleaned and sanitized after each use.
Violation 25 -- The specialist found respondent storing food (toppings) in single service articles (paper cups). However, the applicable rule (10D-13.26(4)(b), Florida Administrative Code) simply provides that such articles be used "only once". There was no indication that these articles were used more than one time, and consequently no violation of the rule occurred.
Violation 31 -- It was established that a three compartment sink was not readily accessible since a trash can blocked access to the sink, and dirty linens were in the sink itself. No pertinent rule was cited by petitioner as governing the accessibility of sinks.
Violation 32 -- No hand soap was found in any sink. This controverted the requirements of Rule 10D-13.27(6), Florida Administrative Code, which requires that each establishment be provided with hand cleansing soap.
Violation 33 -- The specialist observed the trash can in front of the sink to be uncovered. This was a violation of Rule 10D-13.27(7), Florida Administrative Code, which requires such receptacles to be kept covered with tight fitting lids.
Violation 34 -- There is a dumpster directly behind respondent's store which was found to be unclosed, and with overflow trash on the ground. However, this dumpster is shared by other shopping center tenants, and is the responsibility of the center rather than respondent.
Violation 35 -- The specialist detected ants in the food preparation area. Although respondent has a monthly pest control service, the presence of such insects violated Rule 10D-13.27(8), Florida Administrative Code, which requires effective control measures against rodents, flies, roaches and other vermin.
Violation 36 -- The floors in the food preparation area were observed to be littered with food particles. This is in contravention of Rule 10D- 13.28(1), Florida Administrative Code, which requires that floor surfaces in rooms where food is prepared to be "clean".
Violation 37 -- The walls in the food preparation area were "splattered" with food and toppings. In addition, certain equipment attached to the walls had toppings, frosting and glazing covering them. This was in violation of Rule 10D- 13.29(2), Florida Administrative Code, which requires such walls and equipment to be kept clean.
Violations 38 and 41 -- Respondent has not disputed these violations, and it is found that these violations occurred.
Violation 42 -- The specialist found the outside area of the premises to be littered with cigarette butts, paper and other debris. However, this is a common problem throughout the entire shopping center, and fault cannot be attributed to respondent for this condition.
Violation 44 -- As previously noted in violation 21, soiled linens were observed in a sink. However, they were placed there only temporarily for rinsing before being stored in a linen bag. Therefore, there was no rule violation.
Violation 45 -- The fire extinguisher on respondent's premises did not have a current inspection tag. While this may violate some regulation, the rule relied upon by the specialist (10D-13.28(2), Florida Administrative Code) is not applicable.
Violation 46 -- An exit light was observed to have been burned out. Again, the same rule relied upon by the specialist is inapplicable.
Violation 47 -- It was alleged that respondent used extension cords in the food preparation area. However, the specialist could not recall which appliance used such a cord. Respondent's testimony that no such cords were used is more persuasive, and it is found that no extension cords were used by Harriss.
Violation 53 -- When the inspection was made, there was no employee on the premises with a valid food management certification. Such a certification is required by Rule 10D-13.25(2), Florida Administrative Code.
After the inspection was completed, the specialist reviewed the inspection report with one of respondents employees. It was the specialist's opinion that the above cited violations rendered the establishment unsafe for the public.
A second inspection was simultaneously conducted by a food service coordinator. Her findings tend to corroborate the same violations noted by the specialist. Reference to her specific findings is accordingly not necessary.
Aside from his own testimony, Respondent presented the testimony of the employee who was present when the inspection occurred, and his local manager. Except where noted above, they did not credibly contradict the testimony of the two inspectors. At the same time, Harriss pointed out that by the very nature of the donut business, it is impossible to keep crumbs and other food particles off the floor and other areas. He has been in the business for twenty-three years, and has no prior violations. He contended the specialist was "nit-picking", and that most of the violations are minor in nature. He also asserted that he has made all reasonable efforts to correct the problems.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).
Respondent is charged with a multitude of violations in Chapter 10D- 13, Florida Administrative Code, which governs sanitary practices in food service establishments. By the more credible and persuasive evidence, petitioner has shown that the violations identified in the specialist's report as numbers 02, 03, 08, 09, 10, 12, 14, 15, 22, 23, 24, 32, 33, 35, 37, 38, 41 and 53 were present on July 9, 1986. The remainder are not supported by the evidence, or are based upon incorrect rule violations, and must be dismissed. 1/
In its proposed order, petitioner suggests that a civil penalty of
$3,900 be imposed on respondent. This penalty is predicated upon a combination of $100 and $500 fines for each violation. In view of the reduced number of violations (18), and their technical or minor nature in many instances, a $1000 fine is more appropriate.
Based on the foregoing findings of fact and conclusions of law , it is RECOMMENDED:
That respondent be found guilty of the eighteen violations cited in conclusion of law number 2, and that he pay a $1000 civil fine within thirty days after the date of Final Order. All other charges should be dismissed.
DONE AND ORDERED this 15th day of December, 1986, in Tallahassee, Florida.
DONALD R. ALEXANDER
Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.
1/ Incorrect rules were cited for violations 31, 45 and 46. As to 31, petitioner cited Rule 10D-13.27(5), which requires "adequate and conveniently located toilet facilities". The violation pertained to accessibility to a sink. Violations 45 and 46 related to an untagged fire extinguisher and a burned out fire exit light. Petitioner relied upon Rule 10D-13.28(2), which requires items attached to the walls to be kept "clean".
APPENDIX TO RECOMMENDED ORDER IN CASE NO.
Covered in finding of fact 1.
Covered in finding of fact 4.
Covered in finding of fact 2.
Covered in finding of fact 2.
Covered in finding of fact 7.
Rejected as being unnecessary.
Covered in finding of fact 8.
Rejected since witness Nobles' primary concern was that the "wet-dry warmer (had no) operating thermostat and thermometer".
Rejected as being contrary to the greater weight of evidence.
Covered in finding of fact 11.
Covered in finding of fact 12.
Covered in finding of fact 12.
Covered in finding of fact 14.
Rejected since compliance with the Code can be met with hair spray.
Covered in finding of fact 16.
Covered in finding of fact 17.
Rejected since the greater weight of evidence established that a test kit was on the premises.
Rejected since the soiled wiping cloths were only temporarily placed in the sink.
Rejected since petitioner failed to sustain its burden on this violation.
Covered in finding of fact 22.
Covered in finding of fact 23.
Rejected since the cited rule does not proscribe the observed conduct.
Rejected since the cited rule does not proscribe the observed conduct.
Covered in finding of fact 26.
Covered in finding of fact 27.
Rejected as being a violation since maintaining the dumpster was not Harriss' responsibility.
Covered in finding of fact 29.
Covered in finding of fact 30.
Covered in finding of fact 31.
Covered in finding of fact 32.
Rejected as being a violation for the reasons stated in finding of fact 33.
Rejected since the soiled linens were only temporarily placed in the sink.
Rejected as being a violation since the cited rule does not proscribe the observed conduct.
Rejected as being a violation since the cited rule does not proscribe the observed conduct.
Rejected as being contrary to the greater weight of evidence.
Covered in finding of fact 38.
Covered in finding of fact 39.
Covered in finding of fact 39.
39-51. Covered in finding of fact 40.
68-91. No ruling required since these proposed findings merely recite the rules alleged to have been violated.
Lynne A. Quimby, Esquire 725 South Bronough Street
Charles L. Harriss 2300 S.W. 87th Avenue
Miami, Florida 33165 R.
Division of Hotels & Restaurants 725 South Bronough Street Tallahassee, Florida 32301-1927
