vs. ) Case No. 02-4828
Respondent. )
A hearing was held pursuant to notice, on February 25, 2003, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Gainesville, Florida.
For Petitioner: Charles F. Tunnicliff, Esquire
For Respondent: Rita S. Martin, pro se
Whether Petitioner committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint alleging that Respondent had violated the laws regulating the operation of public food establishments. The Administrative Complaint charged Respondent with 10 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 17, 2002. A formal hearing was set for February 25, 2003 in Gainesville, Florida.
At hearing, Petitioner presented testimony of one witness, Julianne Browning. Official recognition was requested of pertinent provisions of the United States Department of Agriculture's Food Code and Rules 61C-1.004 and 61C-4.023, Florida Administrative Code. The request was granted. Petitioner's Exhibits numbered 1-4 were admitted
into evidence. Respondent presented the testimony of Rita S. Martin, an owner of Captain Hugh's Seafood. Respondent's Exhibit numbered one was admitted into evidence.
A Transcript consisting of one volume was filed on May 30, 2003. On June 6, 2003, Petitioner timely filed a
Proposed Recommended Order which has been considered in the preparation of this Recommended Order. Respondent has not filed any post-hearing submission.
Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a 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.
Respondent is an eating establishment located in Bell, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 3100051 issued by the Division.
Julianne Browning is an inspector employed by the Division. Ms. Browning has a bachelor's degree from Florida State University in hotel and restaurant administration. She has been employed by the Department of Business and Professional Regulation since 1990. Prior to that time, she
worked for approximately 10 years in the field of public lodging and food service. She also has received training in laws and rules regarding public food service and lodging, as well as fire safety.
On October 23, 2002, Ms. Browning conducted an inspection of Respondent's premises. Rita Martin was not on the premises at the time of the October 23, 2002 inspection. Christina Martin, Rita Martin's sister-in-law who also works at Respondent's establishment, signed for the inspection report. Ms. Browning subsequently discussed the investigation findings and report with Rita Martin.
During the October 23, 2002 inspection, Ms. Browning observed flies in the kitchen. Having flies in the kitchen is a critical violation because flies carry germs and bacteria, posing a direct threat to the public's health.
Ms. Browning also found that there was no proof that employees who had worked at Respondent's establishment for
60 days or more had received food training. This is a critical violation because employees need to be trained in the correct way to handle food and the required temperatures for food.
Ms. Browning also observed tuna salad in the refrigerator at 45 degrees, which is considered an unsafe temperature. The inspection took place at 2:30 p.m. but
Ms. Browning determined that the tuna salad was prepared at 9:00 a.m. Food kept out of temperature for more than four hours are potentially hazardous because the food begins to grow bacteria if left out of refrigeration for too long.
Ms. Browning also observed coleslaw, tuna salad, and crab salad that were not date-marked. These types of prepared foods can only be held for seven days or they become potentially hazardous food. These foods need to be date- marked so one knows when they were made to then determine when the foods should be thrown away.
Ms. Browning observed that the hood filters had a severe grease buildup. A severe grease buildup in the hood filter is an indication that the flue has a grease buildup, which is a fire hazard.
Ms. Browning observed a black substance on the interior of the ice machine. She was uncertain as to what the black substance was but believed it to be mildew. Mildew is hazardous near food because it has spores which could fall into the ice.
Ms. Browning observed recyclables not stored in a waste handling unit that is inaccessible to insects or rodents. She observed boxes kept either on the ground or in an open trailer. This is a hazard because all garbage, whether recyclables or other garbage, has to be in a container
that protects against the entrance of rodents or flies, which could potentially come into the restaurant.
Ms. Browning observed a light shield missing from the light in the dry storage area. This is potentially hazardous because if the light bulb broke, the glass could shatter with the potential of getting onto the food in the storage area.
Ms. Browning observed that the fire suppression report for the hood over the cooking equipment was not available for review. Such reports are made when the fire extinguishing company comes to service the fire suppression system. The report is the only way a Division inspector can tell if there are any deficiencies that need to be corrected with the fire suppression system.
Ms. Browning observed bulk rice with a handle-free bowl for dispensing. This is hazardous because it allows for bare hand contact with the food.
Rita Martin offered mitigating circumstances regarding some of the deficiencies noted by Ms. Browning.
Regarding the allegation of flies in the kitchen, the Martins built a screened-in porch to keep flies from coming into the restaurant. Further, they put fly machines at the front and back doors and a blower at the back door. According to Ms. Martin, it is rare for flies to get into the
restaurant. When flies get into the restaurant, "we get rid of them" and that she "cannot remember the last time I saw a live fly in my restaurant, period."
Regarding the allegation of lack of proof of employee training, only one employee had worked there more than 60 days at the time of the inspection. Ms. Martin did not post that employee's card because the employee did not want her social security number posted. Eventually, Ms. Martin "whitened out" the social security number to post it. In any event, the employee's card was not available at the time of the inspection as required.
Regarding the allegation that prepared foods were out of temperature and not properly date-marked, she responded:
We try to put our salads or whatever we're making in large containers so that they will cool quickly. The foods that were made that day were made--one of the foods were made at 9:00 a.m., which was the coleslaw and crab. The tuna was made at 2:00. That was one of the ones that was--I think it was the tuna that was out of temperature. It had not been made--think it was less than an hour old.
Her assertion in this regard is accepted as credible.
Regarding the allegation that the hood filters had a grease buildup, Ms. Martin acknowledged that the hoods needed
cleaning and were cleaned approximately one month after the inspection.
Ms. Martin denied the existence of any black buildup on he interior of the ice machine. She looked in the ice machine shortly after the inspection and did not see any black buildup. According to Ms. Martin, there is a lime build-up because of lime in their water, and it is brownish in color. Her assertion in this regard is accepted as credible.
Regarding the allegation of recyclables not stored in a closed unit that is inaccessible to rodents or insects, Ms. Martin explained that only clean boxes are put in a trailer, garbage is put elsewhere.
Ms. Martin denied the allegation that a light shield was missing from the light in the dry storage area. The light shield had just been replaced prior to the inspection and is transparent and difficult to see. The storage area is narrow and it is difficult to see in there. Her assertions in this regard are accepted as credible.
Regarding the allegation that there was no fire suppression report, Ms. Martin asserted that Ms. Browning had not made it clear in the past as to what was required to be posted and available. Whether Ms. Browning verbally reminded Ms. Martin about this requirement or not, the report was not available as required.
Regarding the allegation that a bowl was used to dispense bulk rice, Ms. Martin explained that the rice was in dry, not ready-to-eat, form and that everyone knows to use a scoop. However, she acknowledged that she was not there for the inspection and could not say for certain that there was not a bowl in the rice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case, Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.
The Division is the state agency charged with regulating public food service establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.
Pursuant to Section 509.261(1), Florida Statutes, the Division may impose penalties for violations of Chapter 509, Florida Statutes, including an administrative fine of no more than $1,000 for each separate offense, attendance at personal expense at an educational program sponsored by the Hospitality Education Program, and the suspension or revocation of Respondent's license.
Because the Division seeks the imposition of an administrative penalty, which is a penal sanction, the Division has the burden of proving by clear and convincing evidence the specific allegations in the Administrative
Complaint. See, e.g., Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 6-202.11, which reads in pertinent part:
Except as specified in ¶ (B) of this section, light bulbs shall be shielded, coated, or otherwise shatter-resistant in areas where there is exposed food; clean equipment, utensils, and linens; or unwrapped single-service and single-use articles.
Shielded, coated, or otherwise
shatter-resistant bulbs need not be used in areas used only for storing FOOD in unopened packages, if:
The integrity of the packages can not be affected by broken glass falling onto them; and
The packages are capable of being cleaned of debris from broken bulbs before the packages are opened.
An infrared or other heat lamp shall be protected against breakage by a shield surrounding and extending beyond the bulb so that only the face of the bulb is exposed. (Emphasis in original)
This violation has not been established. The record is insufficient to establish that food in the storage area was in opened packages. Further, Respondent's defense that the bulb cover was brand new and in place is deemed to be credible.
Through the Administrative Complaint, Respondent is alleged to have violated Rule 61C-1.004, Florida Administrative Code, which reads in pertinent part:
The following general requirements and standards shall be met by all public lodging and public food service establishments:
* * *
All fire safety, protection and prevention equipment must be installed, approved, maintained and used in accordance with Chapter 509, F.S., and the National Fire Protection Association Life Safety Code Chapter 101, as adopted by the Division of State Fire Marshal in Chapter 4A-3, F.A.C.
All building structural components, attachments and fixtures shall be kept in good repair, . . . .
The Division has met its burden in establishing that this violation occurred.
Through the Administrative Complaint, Respondent is alleged to have violated Rule 61C-4.023, Florida Administrative Code, which reads in pertinent part:
(4) Public Food Service Employee Training.
(a) All public food service employees must receive training on professional hygiene and foodborne disease prevention. Professional hygiene includes personal cleanliness and hygienic practices in accordance with the Food Code and techniques to prevent cross contamination. Foodborne disease prevention training must include the types and causes of foodborne
illness, identification of potentially hazardous food, and how to control or eliminate harmful bacteria in a food service establishment. . . .
The Division has met its burden in establishing that this violation occurred.
Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 3-501.17, which reads in pertinent part:
on-premises preparation prepare and hold cold
Except as specified in ¶ (E) of this section, refrigerated, ready-to-eat, potentially hazardous food prepared and held refrigerated for more than 24 hours in a food establishment shall be clearly marked at the time of preparation to indicate the date by which the food shall be consumed which is, including the day of preparation:
7 calendar days or less from the day that the food is prepared, if the food is maintained at 5ºC (41ºF) or less; or
4 calendar days or less from the day the food is prepared, if the food is maintained at 7ºC (45ºF) or less as specified under ¶ 3-501.16(C).
The Division has met its burden in proving that this violation occurred.
Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 3-501.16, which reads in pertinent part:
Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under § 3- 501.19, potentially hazardous food shall be maintained:
At 5ºC (41ºF) or less, except as specified in ¶ (C) of this section and
§§ 3-501.17, 3-501.18, and 4-204.111.
The Division has not met its burden of proving that this violation occurred. The tuna salad was made shortly before the inspection, without sufficient time for it to cool to the required 41 degrees Fahrenheit.
Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 3-301.11, which reads in pertinent part:
(C) Food employees shall minimize bare hand and arm contact with exposed food that is not in a ready-to-eat form.
The Division has met its burden of proving that this violation occurred.
Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 4-601.11, which reads in pertinent part:
Equipment food-contact surfaces and utensils shall be clean to sight and touch.
The Division has not met its burden of proving that this violation occurred. Ms. Martin's assertion that the dark
substance on the interior of the ice machine is lime buildup is accepted as credible.
Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 5-501.110, which reads in pertinent part:
Refuse, recyclables, and returnables shall be stored in receptacles or waste handling units so that they are inaccessible to insects and rodents.
The Division has met its burden of proving that this violation occurred.
Through the Administrative Complaint, Respondent is alleged to have violated United States Department of Agriculture Food Code 6-501.111, which reads in pertinent part:
The presence of insects, rodents, and other pests shall be controlled to minimize their presence on the premises by:
Routinely inspecting incoming shipments of FOOD and supplies;
Routinely inspecting the premises for evidence of pests;
Using methods, if pests are found, such as trapping devices or other means of pest control as specified under §§ 7- 202.12, 7-206.12, and 7-206.13; and
Eliminating harborage conditions.
The Division has not met its burden of proving that this violation has occurred. Respondent established that trapping devices and other means of pest control are used to minimize the presence of flies.
In its Proposed Recommended Order, the Department recommends the imposition of a $3,300.00 fine and requires Respondent to provide proof to the Division of attendance at a Hospitality Education Program. However, while the Division presented evidence that it had issued previous inspection reports to Respondent regarding some of the violations in the Administrative Complaint, this past experience was not alleged in the Administrative Complaint. Further, the inspection on October 23, 2002, was not a "call-back" inspection. That is, it did not give Respondent a time certain in which to correct deficiencies. Accordingly, an administrative penalty in the amount of $1,000 is appropriate here, in addition to requiring that Respondent attend a Hospitality Education Program.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Division enter a final order which confirms the violations found, dismisses the violations not found, imposes
an administrative penalty in the amount of $1,000, and requires Respondent to attend a Hospitality Education Program.
DONE AND ENTERED this 27th day of June, 2003, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2003.
Charles F. Tunnicliff, Esquire Department of Business and
Rita S. Martin
Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and
Hardy L. Roberts, III, General Counsel 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.
