STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF HOTELS AND RESTAURANTS, )

)

Petitioner, )

)

vs. )

) CASE NO. 90-7182 NERO'S PIZZA BY THE SLICE, INC., )

d/b/a LISA PIZZA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 6, 1991, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Emily Moore

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Kenneth S. Davis

Attorney at Law

Post Office Box 5595 Gainesville, Florida 32602

STATEMENT OF THE ISSUES

The issue is whether Respondent's public food service establishment license should be revoked or otherwise penalized based on the acts alleged in the Notice to Show Cause.

PRELIMINARY STATEMENT

The Petitioner, Department of Business Regulation, Division of Hotels and Restaurants (DBR), presented the testimony of Frank Regan, Ronald Schmidt, and Ronald Webb. Petitioner's Exhibits 1-3, 6-8, and 10 were admitted in evidence. Further, DBR's Motion for Official Recognition of the applicable rules and statutes was granted.

Respondent, Nero's Pizza by the Slice, Inc., d/b/a Lisa Pizza, presented the testimony of Leslie A. Smoot, Kathryn Funk, and Loren Brown. Respondent's Exhibits 1 and 2 were admitted in evidence.

The transcript of the proceedings was filed on March 22, 1991. The parties' proposed findings of fact and conclusions of law were timely filed on April 19, 1991. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Nero's Pizza by the Slice, Inc., doing business as Lisa Pizza, was licensed to operate and did operate a public food service establishment, license number 11-01618R, located at 6401 Newberry Road, Gainesville, Florida.

   
   

2. Frank Regan is an Environmental Health Specialist for the Department of Health and Rehabilitative Services, acting primarily as an inspector of restaurants.

   
   

3. On May 30, 1990, Inspector Regan inspected Respondent's establishment and found several violations of food service rules, all of which he marked on his food service inspection report of May 30, 1990.

   
   

4. Among the violations noted by Inspector Regan were potentially hazardous foods being held at unsafe temperatures and the calzone holding unit being turned off (i.e., no facilities to maintain product temperature).

   
   

5. Those violations are marked with an asterisk (*) on the food service inspection report, which means that they have been deemed to be areas of critical concern by the Department of Health and Rehabilitative Services.

   
   

6. Inspector Regan also noted that there was no thermometer in the calzone holding unit and cited several other minor problems.

   
   

7. During the May 30, 1990, inspection Inspector Regan found cheese and calzones held at unsafe temperatures. He issued a Stop Sale Notice and these items were destroyed with Respondent' s consent.

   
   

8. During the May 30, 1990, inspection Inspector Regan placed Respondent on warning and gave notice that he would return on June 4, 1990, to determine if corrections had been made.

   
   

9. When Inspector Regan returned to Respondent's establishment on June 4, 1990, he found that the minor problems had been corrected. However, he again cited Respondent for "potentially hazardous food held at unsafe temperatures, calzone holding unit used for storage of calzones turned off, thermometer not provided in calzone holding unit." These same critical violations existed on May 30, 1990.

   
   

10. Inspector Regan again issued a Stop Sale Notice on June 4, 1990 and the items were destroyed.

    
    

11. Among the ingredients of the calzones prepared for sale by Respondent are broccoli, ham, sausage, chicken, meatballs, mushrooms, and various cheeses, including ricotta, mozzarella, and parmesan.

    
    

12. The temperatures at which Inspector Regan observed the calzones prepared by Respondent ranged from 92 to 98 degrees F. on May 30, 1990, and from

    94 to 112 degrees F. on June 4, 1990.

13. Petitioner and Respondent both presented expert witnesses who opined that these calzones are potentially hazardous food.

    
    

14. Dr. Ronald Schmidt holds a Ph.D. in food science and nutrition. He is also a microbiologist. He is a professor with the University of Florida Department of Food Science and Human Nutrition and was qualified as an expert in food science and hygiene.

    
    

15. Dr. Schmidt was of the opinion that these calzones "are in a form such that they could support rapid and progressive growth of microorganisms," that they are potentially hazardous food, and that any pathogens present in these calzones could grow and be harmful if the calzones were eaten.

    
    

16. According to Dr. Schmidt, "the composition of calzones are such that they would provide ample nutrients to support the growth of food borne pathogens."

    
    

17. Dr. Leslie Smoot was also accepted as a food science and microbiology expert. He is employed by ABC Research Corporation. He conducted the testing of the calzones and prepared a report of February 25, 1991, for Respondent. His report was introduced into evidence as Respondent's Exhibit 2.

    
    

18. According to Dr. Smoot, "It has been recognized by the food science community that the presence of these food substrates [i.e., the ingredients found in the calzones at issue in this case] in prepared food would render it potentially hazardous."

    
    

19. A food is not potentially hazardous if the pH level is 4.6 or below or the water activity value is .85 or less.

    
    

20. The pH of Respondent's calzones, as indicated in Dr. Smoot's report, ranged from 5.0 to 5.8, and the water activity levels ranged from .96 to .97.

    
    

21. According to Dr. Smoot, it is understood in the profession that foods above pH 4.6 or above water activity level .85 will allow growth of bacteria to occur.

    
    

22. It was Dr. Smoot's opinion that the calzones that he tested from Respondent's establishment fill meet the definition of potentially hazardous foods, and that if bacteria from a cut on an employee's hand got into the food, it is "very possible" that it could have cause caused a food-borne illness.

    
    

23. The calzones Dr. Smoot tested did not contain any toxic or infectious microorganisms, but these tests are not conclusive because the calzones tested were prepared with foreknowledge that they would be tested.

    
    

24. Both Dr. Schmidt and Dr. Smoot testified that a means of making these calzone-type potentially hazardous foods as safe as possible for service to the public is to store them at temperatures of above 140 degrees F. or below 45 degrees F., as required by Rule 10D-13.024(2), Florida Administrative Code. These temperature ranges are established so as "to prevent the multiplication of disease causing organisms that may cause food- borne illness."

25. It is the practice of Respondent to leave its calzones on the counter at room temperatures after prebaking, just as Regan had found them on May 30, 1990, and June 4, 1990. They are prebaked at 530 degrees to an internal temperature of 150-180 degrees. After storage at room temperature, they are recooked to an internal temperature of 165 degrees just prior to serving.

    
    

26. DHRS has made only one exception to what is defined by rule to be potentially hazardous food. That one exception is for pizzas by the slice. This exception was allowed due to a national consensus among food protection professionals that the existing hazard from pizzas is minimal. The conditions justifying the exception do not exist in calzones.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

28. Petitioner, Department of Business Regulation, Division of Hotels and Restaurants, is the agency charged with licensure and inspection of public food service establishments in the state of Florida, pursuant to Chapter 509, Florida Statutes.

    
    

29. The Department of Health and Rehabilitative Services (DHRS), pursuant to Section 509.032(2)(b)1, prescribes sanitary standards which shall be enforced in public food service establishments. Under the authority outlined in Section 509.032(2)(b)1, DHRS has promulgated Chapter 10D-13, Florida Administrative Code, which is adopted and incorporated by reference in Petitioner's Rule 7C- 4.0001, Florida Administrative Code.

    
    

30. Respondent is a public food service establishment, as defined in Section 509.013 and is licensed by and subject to the regulatory authority of Petitioner.

    
    

    Rule 10D-13.022 sets forth the following relevant definitions:

    * * *

    1. "Perishable food" - Any food of such type or in such condition as may spoil, provided, that foods which are in hermetically sealed containers processed by heat to prevent spoilage and properly

       packaged dehydrated, dry or powdered foods so low in moisture content as to preclude development of microorganisms shall not be considered to be readily perishable.

    2. "Potentially hazardous food" - Any perishable food which consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea, or other ingredients, including synthetic ingredients, in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms. The term does not include clean, whole, uncracked, odor-free

       shell eggs or foods which have a pH level of

       4.6 or below or a water activity value of

       0.85 or less. (Emphasis added).

       * * *

       (25) "Safe temperatures" - Temperatures of forty-five degrees fahrenheit (45 degrees F.) or below, and one hundred forty degrees fahrenheit (140 degrees F.) or above, as applied to potentially hazardous foods.

       
       

31. Rule 10D-13.024(2), Florida Administrative Code, provides:

    
    

    Perishable foods shall be stored at such temperatures as will protect against spoilage. All potentially hazardous foods shall be kept at safe temperatures (45 degrees F . or below and 140 degrees F. or above) except during necessary periods of preparation and service.

    
    

32. Rule 10D-024(8), Florida Administrative Code, provides, in relevant part:

    
    

    Potentially hazardous foods that have

    been cooked and then refrigerated shall be reheated rapidly to 165 degrees F. or higher throughout before being served or before being placed in a hot food storage

    facility. .

    
    

33. Rule 10D-13.026(1)(a), Florida Administrative Code, in relevant part, requires:

    
    

    Conveniently located refrigeration facilities and hot food storage and display facilities of capacity adequate to maintain all potentially hazardous foods at safe

    temperatures during all storage, preparation, display and serving operations. . . Each facility used for the storage of perishable foods shall be provided with a numerically scaled indicating thermometer accurate to plus or minus three degrees fahrenheit (I 3 degrees F.), located in the warmest or coldest part of the facility as may be applicable and of such type and so situated that the temperature can be easily and readily observed. . .

    
    

34. The calzones prepared and sold to the public by Respondent are perishable and potentially hazardous foods, as defined within Rules 10D- 13.022(2) and (3), Florida Administrative Code.

    
    

35. Respondent failed to maintain these potentially hazardous foods within safe temperatures, as outlined in Rules 10D-13.022(25) and 10D-13.024(2), Florida Administrative Code.

36. Respondent failed to provide adequate facilities to maintain these potentially hazardous foods at safe temperatures as required by Rule 10D- 13.024(2), Florida Administrative Code, in that Respondent refused to turn on its calzone holding unit, in violation of Rule 10D-13.026(1)(a), Florida Administrative Code.

    
    

37. Respondent failed to provide a thermometer in its calzone holding unit, as required by Rule 10D-13.026(1)(a), Florida Administrative Code.

    
    

38. DBR has carried its burden of proving the violations by clear and convincing evidence. Each violation cited in the Notice to Show Cause of June 27, 1990, has been established by clear and convincing evidence.

    
    

39. Sections 509.261(1)-(3) authorize DBR to suspend or revoke the license of Respondent, or to impose administrative fines, not to exceed $500 for each offense, for violations of Chapter 509 or the cited rules.

    
    

40. Section 509.281(2) provides that each day that a public food service establishment is operated in violation of law or rule is a separate offense.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be assessed an administrative fine in the

amount of $3,000.00 ($500.00 for each of the three violations charged in the Notice of Show Cause, for each of the two dates on which they occurred), or, in the alternative, that Respo ndent's public food service established license number 11-01618R be suspended for a period of 30 days for its repeated violations of public food service establishment sanitary standards.

DONE and ENTERED this 8th day of May, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1991.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-7182

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Business Regulation, Division of Hotels and Restaurants:

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-10(1-10); 13-24(11-22); 25(24); and 27(25).

2. Proposed findings of fact 11 and 12 are unnecessary.

3. Proposed finding of fact 26 is subordinate to the facts actually found in this Recommended Order.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Nero's pizza by the Slice, Inc., d/b/a Lisa Pizza:

1. Proposed findings of fact 1, 2, 8, 10, 11, and 12 are subordinate to the facts actually found in this Recommended Order.

2. Proposed findings of fact 3, 7, and 14 are irrelevant.

3. Proposed findings of fact 4-6, 9, 13, 15, and 16 are unsupported by the competent, substantial evidence.

COPIES FURNISHED:

Emily Moore

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Kenneth S. Davis Attorney at Law

Post Office Box 5595 Gainesville, Florida 32602

Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Barbara Palmer, Director

Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

=================================================================

AGENCY FINAL ORDERS

=================================================================

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION

DIVISION OF HOTELS AND RESTAURANTS

DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs. LICENSE NO. 11-01618R

CASE NO. 05-91-03 NERO'S PIZZA BY THE SLICE, INC., DOAH CASE NO. 90-7182

d/b/a LISA PIZZA,

Respondent.

/

FINAL ORDER

COMES NOW, the Director, Division of Hotels and Restaurants, and enters this Final Order in the above-styled cause pursuant to authority vested by Chapter 120, Florida Statutes.

Petitioner, Division of Hotels and Restaurants, adopts in toto the Findings of Fact and Conclusions of Law of the Recommended Order of Diane K. Kiesling, Hearing Officer, Division of Administrative Hearings, issued on May 8, 1991. The Division also adopts the recommended penalty of the Hearing Officer, with modifications to provide the effective dates for imposition of the administrative sanctions.

ORDER

It is, therefore, ordered that Respondent pay an administrative fine in the total amount of $3,000.00, as recommended by the Hearing Officer, and that Respondent pay such fine within 31 days from the date of this Final Order. In the event that Respondent does not submit the referenced administrative fine to the Department of Business Regulation, Division of Hotels and Restaurants, within 31 days, the Division shall thereafter, summarily and without further notice, seize and suspend Respondent's public food service establishment license number 11-016l8R, for a period of 30 consecutive days.

DONE AND ORDERED this 6th of August, 1991.

BARABAR J. PALMER, DIRECTOR DIVISION OF HOTELS AND RESTAURANTS

725 South Bronough Street Tallahassee, Florida 32399-1011

(904) 488-1133

Copies to:

Diane K. Kiesling, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalache Parkway

Tallahassee, Florida 32399-1550

Kenneth S. Davis, Esquire Certified Mail No. P 832 638 545 Post Office Box 5595

Gainesville, Florida 32602 Date Mailed 7-24-91

Emily Moore, Chief Attorney Department of Business Regulation

Kelli Fulcher, Chief

Bureau of Hotels and Restaurants

B. E. Fernandez, Chief of Enforcement Division of Hotels and Restaurants

Richard Metheny, Sanitation and Safety Administrator Division of Hotels and Restaurants

J. Stallcup, Legal Section Department of Business Regulation

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANT

DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs. LICENSE NO. 11-01618R

CASE NO. 05-91-03 NERO'S PIZZA BY THE SLICE, INC., DOAH CASE NO. 90-7182

d/b/a LISA PIZZA,

Respondent.

/

AMENDMENT TO FINAL ORDER

COMES NOW, the Director, Division of Hotels and Restaurants, and amends her July 24, 1991, Final Order in this cause, for reason that the provisions regarding Respondent's right to appeal were omitted from said Final Order.

By virtue of this Amendment to Final Order, the date of the Final Order entered in this case is the date that the Division Clerk files this Amendment to Final Order.

ORDER

It is, therefore, ordered that Respondent pay an administrative fine in the total amount of $3,000.00, as recommended by the Hearing Officer, and that Respondent pay such fine within 31 days from the date of this Amendment to Final Order. In the event that Respondent does not submit the referenced administrative fine to the Department of Business Regulation, Division of Hotels and Restaurants, within 31 days,

the Division shall thereafter, summarily and without further notice, seize and suspend Respondent's public food service establishment license number 11-01618R, for a period of 30 consecutive days.

DONE AND ORDERED this 6th day of August, 1991.

BARARA J. PALMER, DIRECTOR DIVISION OF HOTELS AND RESTAURANTS

725 South Bronough Street Tallahassee, Florida 32399-1011

(904) 488-1133

RIGHT TO APPEAL

This Final Order, which constitutes final agency action, may be appealed pursuant to Section 120.68, Florida

Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal, accompanied by the appropriate filing fees, and with this agency within 30 days of rendition of this Order.

Copies to:

Diane K. Kiesling, Hearing Officer Certified Mail No.P 832 638 548

Division of Administrative Hearings Date mailed 8-6-91 The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Kenneth S. Davis, Esquire Post Office Box 5595 Gainesville, Florida 32602

Emily Moore, Chief Attorney Department of Business Regulation

Kelli Fulcher, Chief

Bureau of Hotels and Restaurants

B. E. Fernandez, Chief of Enforcement Division of Hotels and Restaurants

Richard Metheny, Sanitation and Safety Administrator Division of Hotels and Restaurants

J. Stallcup, Legal Section Department of Business Regulation

Docket for Case No: 90-007182

Orders for Case No: 90-007182