vs. ) CASE NO. 88-0739
Respondent. )
A hearing was held in this case in Plant City, Florida, on April 13, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether the Respondent's license to operate the Market Restaurant should be disciplined because of the alleged violations outlined in the Notice to Show Cause filed herein.
For the Petitioner: Harry L. Hooper, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
On December 22, 1987, Barbara A. Deitricksen, District Supervisor, Division of Hotels and Restaurants, issued a Notice to Show Cause in this case alleging that the Division intended to take action against Respondent's restaurant license for various alleged violations of food protection rules outlined in Chapter 10D-13.024 - 10D-13.032, Florida Administrative Code. Respondent submitted a Request for Hearing in which he disputed all allegations. The matter was forwarded to the Division of Administrative Hearings, and on February 22, 1988, the undersigned set the case for hearing as held.
At the hearing, Petitioner presented the testimony of Ms. Deitricksen and Harry P. Messick, an Environmental Health Specialist with the Hillsborough County Health Department, and introduced Petitioner's Exhibits 1-6. Respondent testified in his own behalf.
Subsequent to the hearing, Petitioner submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the allegations herein, Respondent, Danny Paul, held Florida Restaurant License 39-219R for The Market Restaurant located at 1401 West Haines Street, Plant City, Florida. The Division of Hotels and Restaurants is the State of Florida agency charged with licensing restaurants.
On the afternoon of December 16, 1987, Harry P. Messick, an Environmental Health Specialist for the Hillsborough County Health Department, under contract to do food sanitation inspections for the Department of Business Regulation, in the company of his supervisor, Jordan Lewis, entered the Respondent's restaurant to conduct a no-notice, routine, quarterly inspection.
The Market Restaurant is a full service restaurant capable of serving in excess of 100 patrons at a time. At the time of this inspection the restaurant was open for business. Both the cafeteria line and table service were in operation.
When he entered the facility, Mr. Messick identified himself to Respondent, and advised him of what he was going to do. Mr. Messick had with him two different types of thermometers and a flashlight. During the inspection, Mr. Paul left the premises.
Mr. Messick first went to the kitchen where he observed cooked sausage and sausage gravy sitting out without protection. The gravy was at a temperature of 95 degrees and the cooked sausage was at a temperature of 85 degres (all temperatures mentioned herein are stated in farenheit). These temperatures indicated the items had been kept at room temperature rather than at the 140 degrees as required by rule. Mr. Paul admitted the items were as described but indicated that to refrigerate and reheat them destroys the taste. He has chosen not to offer these items after the breakfast rush rather than store and reheat them.
Mr. Messick also observed other discrepancies. Cream pies sitting out in the kitchen were not under refrigeration at the required temperature of not more than 45 degrees. Mr. Paul admits that he has always kept his pies at room temperature and has never been written up for this before.
A sandwich preparation cooler with a roll down lid, containing the makings for sandwiches, which are required to be kept at no more than 45 degrees, was found to maintain the food at 54 degrees - above the maximum allowed. Mr. Paul does not deny this allegation. He did not check for compliance.
Frozen food was left to thaw at room temperature prior to cooking. It should have been maintained at 45 degrees but was not, nor did the method of thawing, constitute the approved method as found in the rule. Mr. Paul contends he has to defrost as he does to insure the temperature of the meat is sufficiently high to allow it to cook uniformly the way he chooses to prepare it. If the center were to be cooler than the outside, it would not cook properly, in his opinion, and he indicated he will not thaw food the way the rule prescribes.
Pies were displayed on the serving line without a sneeze guard to protect them. Mr. Paul admits no sneeze guard was present nor has there been one in place at any time during the prior six years he has operated the restaurant. He also admits that mesh bags of onions were sitting on the concrete floor in the kitchen, but contends they had just been delivered and he had not had time to put them away.
Bulk ingredients, such as rice and flour, stored in barrels, were not dispensed by scoops with handles to prevent hand contact with the food product. Instead, a bowl was used to remove the needed quantity from the barrel. Mr. Paul admits this, reasoning that scoops with handles are no more sanitary than bowls without handles since the substance routinely gets on the handles as well. Nonetheless, he has now affixed handles to the bowls he uses in place of scoops.
Ice scoops were not properly stored in the ice or in a storage spot with the handles up. Instead, they were placed in the dust on top of the ice machine. Mr. Paul denies the scoops were on top of the machine, contending the waitresses could not reach them there. They were not properly stored, however, and are now stored in the ice as required.
Respondent was not using approved food grade plastic bags, either clear or white plastic, for food storage but was instead using trash bags for this purpose. Trash bags are not permitted because many are made from recycled plastic or have insecticide contained in the plastic and are not safe for food. Respondent admits that as of the time of the inspection, he was not using the required bags. He is now.
Some utensils were stored with the eating surface up instead of the handles as required. Mr. Paul attributes this to personnel taking too many clean utensils by mistake and improperly replacing them. When brought from the dishwashing machine, utensils are always placed at the waitress station with the handle up. Mr. Messick did not contend the utensils were dirty, merely that the method of handling was improper. He made no mention of cooking utensils.
Mr. Messick noted that major food contact surfaces were not kept clean. Cooler racks, counter tops, the food preparation cooler, and the can opener blades needed cleaning and displayed accumulations of material not merely from the current day's use. Based on his experience, Mr. Messick concluded that these surfaces had not been cleaned on a routine basis. Mr. Paul strongly denied this, however, contending that each day when the restaurant closes a cleaning man comes in and goes over every food preparation surface. However, Mr. Messick's observations are more credible than Respondent's denials.
Under the rules of the Division, hand washing facilities must be available in each food service area. There was a sink available, but because of objects placed in front of it, (milk cases and a basket), it was impossible to get to. In addition, neither soap nor towels were available. Mr. Paul contended the obstructions could have been moved, but their presence indicates the sink is not often used.
The grease trap outside the restaurant, newly installed, has a lid to cover it which, at the time of the inspection, had been left open. This allowed flies and other vermin access and permitted bad smells to escape. According to Mr. Paul, an employee merely forgot to close the lid which is normally kept closed at all times. There is no reason to doubt this explanation.
Petitioner asserts and Respondent admits that as of the time of the inspection, several ceiling lights did not have either the plastic or wire mesh shields to prevent glass fragments from getting into the food if the light were broken. This situation has now been corrected on all but one light.
At the time of the inspection, oven cleaner, a toxic substance, was observed on a shelf where food was stored and automatic battery operated fly spray dispensers were located on the wall within twelve feet of open food. Mr. Paul indicates that if oven cleaner was there, it was unusual because all cleaning supplies are routinely kept away from food supplies. He does not contest the location of the spray dispensers but contends that here, as in several other violations, the condition had existed for a long time without prior write-up. Mr. Paul's memory of write-ups or the lack thereof is somewhat faulty. For example, the facility was cited about iced tea spoons in the inspection in September, 1987; he has been cited for the light shields before; and he was cited for the fly spray dispensers in June, 1987.
When the inspection was complete and the report written, Mr. Messick showed it to Mr. Lewis, who agreed, and both discussed it with Mrs. Paul, in the absence of Mr. Paul who was not present. All of the write-ups except two, the temperatures of food, (hot and cold), and the protection of food during storage are considered minor defects which would not require follow-up. However, those dealing directly with food are considered major and will normally require a follow-up compliance inspection.
Respondent has received two previous Final Orders from the Division as a result of discrepancies in prior compliance inspections. In the first, dated October 13, 1986, he was found guilty of twelve separate violations and ordered to pay a fine of $1200.00. In the second, he was found guilty of six separate violations and ordered to pay a fine of $600.00. Neither fine has been paid and Mr. Paul unequivocally stated his intention not to pay them. He places no credence in the authority of the Division or the Health Department to govern his activities and indicates he has no interest in the report of inspection prepared by Mr. Messick after this last visit. He states that if the present hearing results in a fine or other disciplinary action, he will still not comply with a Final Order and pay a fine but will "appea1 and keep [his] license."
Respondent contends that throughout the first few years of his operation, he had no problem with the Health Department or any other regulatory agency. Only when he had problems with the fire hood over his stove and paid a company $600.00 to make some cosmetic change and place a sticker on it to "keep the Health Department off his back" did his problems begin. He finds the inspectors and department personnel to be heavy handed and overbearing. He claims they have threatened him (not physically) and are prejudiced against him. At the re-check inspection done on September 28, 1987, Mr. Messick was ordered out of the restaurant by the Respondent, who contends the inspector came in during meal service and started to take the temperature of the food while it was being served. Mr. Messick denies interference and claims he gave respondent no cause to order him out. Whatever the facts may be, Mr. Paul did order Mr. Messick out of his restaurant. He may have some legitimate reason to believe the Health Department employees are not cooperative, however.
Mr. Paul has repeatedly asked the Health Department to come by his restaurant and tell him what to do. He says he will make the required corrections once. After that, he wants to be left alone and not be subjected to repeated inspections. He apparently cannot accept the requirements for routine quarterly inspections. He has contacted Ms. Deitricksen and has asked that a
doctor from the Department come to his restaurant to talk with him. It is Division policy, however, that Division personnel not go on inspections with Health Department personnel unless requested by the Department to do so. She has repeatedly met with Respondent to outline the procedure and the need for quarterly inspections to him and to explain the results of these inspections. These discussions, though not resulting in agreement, have been amicable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case.
The sanitary standards of the Department of Business Regulation, Division of Hotels and Restaurants, are set out in Chapter 10D-13, Florida Administrative Code, (Chapter 7C-4.0001, Florida Administrative Code).
Chapter 10D-13.024(2) and (15) requires perishable food to be stored at temperature of 45 degrees Farenheit or below or 140 degrees Farenheit or above as appropriate. Respondent failed to comply as alleged in Violation 1 and
2 of the Notice to Show Cause.
Respondent also failed to comply with the provisions of Chapter 10D- 13.024(4), Florida Administrative Code which prescribes the acceptable methods of thawing frozen food.
Food shall be protected from dust, vermin, toxic materials, unclean equipment and utensils, unnecessary handling, coughs and sneezes, and other sources of contamination (Chapter 10D-13.24(1), Florida Administrative Code). Respondent failed to comply as alleged in Violation 4 of the Notice to Show Cause.
Food shall be stored, prepared, and served with the least possible manual contact. By failing to provide scoops with handles for dry bulk foods, Respondent violated Chapter 10D- 13.024(8), (10), and (12), Florida Administrative Code, and by failing to properly store ice scoops, leaving them in the dust on top of the ice maker, violated Chapter 10D-13.24(12), Florida Administrative Code, as alleged in Violations 5 and 6 of the Notice to Show Cause.
By using non-food approved storage bags and by failing to keep cooler racks, counter-tops, and can opener blades free of accumulated food, Respondent violated Chapter 10D-13.24(9), Florida Administrative Code, as alleged in Violations 7 and 9 of the Notice to Show Cause.
By failing to provide unobstructed access to a hand washing sink furnished with soap and towel, Respondent violated Chapter 10D-13.027(6), Florida Administrative Code, as alleged in Violation 11 of the Notice to Show Cause.
Chapter 10D-13.028(3) requires shielding to prevent broken glass from falling into food from lighting fixtures located over or within food preparation and display facilities. By failing to provide even one shield, Respondent violated this rule as alleged in Violation 13 of the Notice to Show Cause.
By failing to properly store or use toxic materials under such conditions as will not contaminate food or constitute a hazard to man,
Respondent violated Chapter 10D-13.024(16), Florida Administrative Code, as alleged in Violation 14 of the Notice to Show Cause.
There is insufficient evidence to establish Respondent's violation of items 8, 10, and 12 of the Notice to Show Cause, which relate to the failure to properly wash, rinse, and sanitize utensils; to store utensils with handles up; and to maintain grease storage clean and covered.
Respondent has shown a total contempt for the rules of the Division. These rules were designed to protect against hazards to health as a result of the commercial storage, preparation, and service of food. He alleges that the Health Department is picking on him. Though perhaps less than tactful at all times, Health Department personnel have not been shown, by any evidence of record, to have been unfair, unreasonable, or unlawful in their application of the published standards to this restaurateur. His contention is without merit and his repeated failure to comply with the Final Orders of the Division in the past, which in each instance called for no more than a monetary fine, indicate more stringent measures are required.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's license to operate The Market Restaurant,
License No. 39-219R, be suspended for 90 days.
Recommended this 13th day of May, 1988, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0739
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted in this case.
relating to utensils which is rejected as not proven.
16 - 17. Accepted and incorporated herein.
18. Accepted as to content. This as well as all other proposed findings of fact are couched, however, in the form of a restatement of testimony rather than as a finding of fact.
19 - 20. Accepted.
21 - 26. Accepted and the substance incorporated throughout the
Recommended Order as appropriate. 27 - 41.
not findings of fact.
Harry L. Hooper, Esquire Deputy General Counsel Department of Business
Mr. Danny Paul
Van B. Poole, Secretary Department of Business
