vs.
Respondent.
) Case No. 06-3668
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on December 14, 2006, by video teleconference with sites in Lauderdale Lakes and Tallahassee,
Florida.
For Petitioner: David W. Young, Esquire
The issue presented is whether Respondent is guilty of the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed, if any.
On July 25, 2006, Petitioner Department of Agriculture and Consumer Services issued an Administrative Complaint against Respondent TJ Baking, LLC d/b/a/ Bagelmania, alleging that the business had committed violations of state and federal rules and statutes governing the operation of that business. Respondent requested an informal hearing regarding the allegations in the Administrative Complaint. When disputed facts arose, the Department terminated the informal hearing and referred this matter to the Division of Administrative Hearings to conduct an evidentiary proceeding.
At the final hearing, the Respondent was represented by John Jimenez, a 50 percent owner of the business. Upon his representation that he was authorized by the other owner to represent the Respondent, and in the absence of objection by the Department to his appearing as the Respondent's authorized representative, he was allowed to appear for the Respondent.
The Department presented the testimony of Ronald Gagnon, Gretchen Rhodes, Cynthia Koza, Rodney Banks, and John Fruin. The Respondent presented the testimony of John Jimenez,
Patricia Marshall, and Denise Jimenez. Additionally, the Department's Exhibits numbered 1-6 were admitted in evidence.
The Department requested official recognition of Sections 500.03(1)(n), 500.04(1) and (2), 500.10(1)(f), 500.12(5)(a),
500.121(1), and 570.07(2)(d), Florida Statutes; Florida Administrative Code Rules 5K-4.002(4) and 5K-4.021; and Section 3-603.11 of the 2001 federal food code adopted by reference in Rule 5K-4.002(4). The Department's request was granted.
Both parties were afforded the opportunity to file proposed recommended orders after the conclusion of the final hearing.
Both parties did so. Those documents have been considered in the entry of this Recommended Order.
Respondent is a bakery, primarily selling bagels.
Respondent bakes, packages, and sells bagels and other baked products wholesale and retail. In addition, it sells ready-to- eat food in individual portions for consumption on or off the premises, including eggs, bacon, sausage, salads, and soups. It also cuts, packages, and sells meats. Respondent also operates a delivery service and a catering business and is open to the public 24 hours a day, seven days a week.
Respondent is regulated by the Department and is routinely inspected by the Department three times a year.
Ronald Gagnon is employed by the Department's Bureau of Food and Meat Inspection as a sanitary and safety specialist.
He performed a routine inspection of the Respondent's premises on May 26, 2006.
Gretchen Rhodes is the sanitation and safety specialist who had been assigned to perform routine inspections of the Respondent, but she was behind schedule in her duties and was covering for her supervisor, Rodney Banks, who was on vacation. Gagnon agreed to perform the inspection of Respondent to assist Rhodes. He had never been on Respondent's premises to inspect it prior to the May 26, 2006, inspection, but he had inspected other bakeries before he inspected Respondent.
Gagnon had been employed by the Department as a sanitation and safety specialist since August 2005. After he was hired, he received six months of on-the-job training accompanying other inspectors on inspections before performing an inspection by himself. He also received one week of training by the Department regarding the different statutes and rules relating to food safety. He also underwent standardization that included performing eight inspections of food establishments under the observation of a federal Food and Drug Administration inspector to ensure that he was performing inspections competently. Prior to inspecting Respondent, Gagnon had been performing inspections by himself for approximately five months.
According to his estimate, he had performed approximately 300 inspections by then. Of those, only six to eight percent of the inspections he performed had been assigned a "poor" rating, which rating required a re-inspection.
Upon entering Respondent's business at about 8:30 a.m., Gagnon told the cashier he was there to inspect the premises and then gave that information to Patricia Marshall, the employee who was in charge at the time. Marshall asked Gagnon to wait for an owner to arrive before he did his inspection, but he advised her that he could perform his inspection as long as there was someone in charge at the business. He invited her to accompany him, but she was busy and did not accompany him during his inspection of the back room and related areas.
Shortly after Gagnon's arrival, Marshall telephoned Denise Jimenez, a manager and the wife of one of the owners, and advised her that an inspector was performing an inspection. Mrs. Jimenez did not arrive at the business until after Gagnon had completed his inspection and was preparing his written report.
When Gagnon completed his inspection of the back room and related areas, he returned to inspect the retail area where Marshall was working. Although she was with him for some parts of the inspection, she was busy and did not observe him during all of his inspection of the retail area. They did have several
conversations, however, regarding specific violations which he noticed.
One of those conversations involved the temperature- recording device in the cooling case in the retail area. Gagnon noticed that the measuring device was in the coldest part of the case by the condenser coils; however, to properly measure the temperature of the food in the case, the device should be located in the warmest part of the cooler. Gagnon explained this problem to Marshall, and Marshall subsequently pulled out the wire of the device so that it was no longer working.
Another conversation involved the soup that was in the ready-to-eat serving area. The soup was in a stainless steel container called a Bay Marie and had been lowered into a crock pot with a heating element. The container had approximately a quart of soup in it. When Gagnon measured the temperature of the soup, it was at 118 degrees Fahrenheit and not at 135 degrees, the temperature required to prevent the growth of harmful bacteria. At hearing, Gagnon testified that Marshall told him she was going to throw that soup away and make new soup for lunch. Marshall testified, however, that she had made the soup for lunch and it was not yet fully heated. The small amount of soup makes Gagnon's recollection more credible than Marshall's. At any rate, Gagnon told her to throw away the soup, and she did.
Gagnon made handwritten notes to record his findings as he performed his inspection. He used the equipment he brought with him as he proceeded. He brought a thermal couple, a digital food thermometer with a probe that could be inserted into food to measure the internal temperature. He had an infrared thermometer to measure surface temperatures. He used these two devices to measure the temperature of food to determine whether it was hot enough or cold enough. If the infrared thermometer showed that the surface temperature was too low or too high, he used the probe thermometer to measure the internal temperature of the food. He also had a flashlight to look into dark areas and test strips to measure the concentration of sanitizer used to clean dishes and cooking utensils to determine whether it was too low or too high. He had alcohol swabs to cleanse the measuring device on the probe thermometer between uses on different foods. Lastly, he had his computer and printer to prepare his report and provide a copy to the business being inspected.
After Gagnon concluded his inspection, he prepared a Food Safety Inspection Report while still on Respondent's premises. The numbers on the left margin of those documents represent different classifications of food safety violations. By virtue of his training, Gagnon was familiar with the different classifications and would press the number for the
class of violations most closely resembling what he had observed. From the available options, he would then select the description most closely fitting what he observed. This description would be printed in lower case letters. Using bold print following that description, Gagnon wrote what he had actually observed. The computer was programmed to print an asterisk beside certain violations which had been determined by the Department to pose a more serious threat to food safety.
These violations are referred to as "critical violations."
Since Mrs. Jimenez arrived at the business after Gagnon finished his report, he went through his report with her verbally. She then accompanied him through the premises, starting in the back area. He pointed out to her each item which he had marked as a violation. She remained silent through most of his concerns, not offering any explanations that he might consider in finalizing his report, except for one. She explained to him that the mixer was black on the inside because the cook had been mixing pumpernickel dough which contains coloring that is black.
When Gagnon and Mrs. Jimenez went into the retail area, a discussion and then argument ensued regarding the broken temperature-measuring device in the cooling case. Mrs. Jimenez insisted that Gagnon had ordered Marshall to move it, which broke the device; Gagnon denied ordering Marshall to do so.
Mrs. Jimenez became quite angry and demanded that Gagnon pay to repair the cooler. She began demanding that Gagnon prove who he was, and he handed her a copy of his inspection report with his name on it and advised her that there was a telephone number for the Department on it if she wanted to call to complain. He then left the business and the confrontation.
Gagnon's inspection report cited numerous violations ranging from minor to serious. Eleven of the violations were critical violations as follows: washed utensils were not properly washed; there was a live roach in the proofer box; single-serve gloves were being used more than once for tasks where glove changes were necessary; food employees were not regularly washing their hands; bacon and sausage were held at room temperature, and the soup was at 118 degrees; salads and deli meats were held at above the required temperature; eggs, ham, and cheeses in the walk-in cooler were above the required temperature; desserts were in a case with ice underneath and were, therefore, above the required temperature; eggs in the reach-in cooler and cheese in the cold case were above the required temperature; equipment was not maintaining required temperatures; and there were no dates marked on the ham. Due to the number of critical violations and the number of other violations, Gagnon gave Respondent a rating of "poor," which
rating required a re-inspection two weeks later to ascertain if the violations had been corrected.
Both Mr. and Mrs. Jimenez called the Department that same day complaining about Gagnon and demanding that the Department immediately send a different inspector to re-inspect the business. They were both advised that the business would be re-inspected in two weeks. Yet, Mr. Jimenez instructed his employees to change nothing so they could prove Gagnon was wrong when the next inspector came. In other words, Jimenez made the decision to not correct the violations noted in Gagnon's report.
In the Food Safety Inspection Supplemental Report Gagnon completed after he had left the business, he memorialized that the key lime desserts, bacon, sausage, and soup were destroyed. As to other violations, such as eggs being held at too high a temperature, he released those products for sale after they were properly refrigerated.
No competent evidence was offered as to any bias on the part of Gagnon against the business or its employees. The evidence is uncontroverted that he had finished his report before the confrontation over the wire in the cooler began. When he left the business to avoid continuing the confrontation, he left a copy of his report, and no changes are alleged to have been made to his report thereafter.
Gretchen Rhodes performed the follow-up inspection on June 7, 2006. She was accompanied by her supervisor, Rodney Banks, due to the reported confrontation on May 26 between Gagnon and Respondent's employees. They observed some of the same violations found by Gagnon on May 26. There were four critical violations found: (1) a food employee in the in-store deli area failed to change single-use gloves and failed to wash his or her hands after the gloves were contaminated; (2) there was no health-risks advisory posted in the in-store deli part of the business although eggs were cooked to order there; (3) salads in the in-store deli cooler were at higher than the required temperature; and (4) heavy rodent droppings were seen in the service closet (utility room) near the ovens.
As on May 26, there was no certified food manager present although there were four or more employees present. As on May 26, Rhodes observed furnishings and equipment that were dirty.
As to the rodent droppings, John Jimenez, as Respondent's 50 percent owner and Respondent's representative at the final hearing, admitted that the business had a rodent problem and had had that problem since February 2006 when it was discovered. Although attempts had been made to eradicate the rodents, they were still present and the business was still cooking and serving food to the public.
On June 7 there were maintenance and cleaning tools stored in the food processing area, including a generator and tires for motor vehicles, thereby creating an area of clutter in which rodents could hide.
Rhodes assigned Respondent a rating of "poor" based upon the violations she found, particularly, the presence of rodents. She gave a copy of her Food Safety Inspection Report and of her Food Safety Inspection Supplemental Report to
Mrs. Jimenez, who signed that she received them.
Rodney Banks, a sanitation and safety supervisor since 1992, accompanied Rhodes on the June 7 inspection. He agreed with her observations and with the violations noted in her report and supplemental report which he reviewed at the conclusion of the inspection.
In addition to supervising Gretchen Rhodes, he also supervises Ronald Gagnon and Cynthia Koza. In fact, he had hired Gagnon and has never received a complaint about Gagnon from any of the businesses Gagnon has inspected, except for Respondent's.
Cynthia Koza, a sanitation and safety specialist, accompanied Rhodes when Rhodes returned to Respondent's premises on July 5, 2006, for a follow-up inspection. It was normal procedure to have two inspectors for the follow-up inspection if a food establishment had two "poor" ratings in a row. She
agreed with Rhodes' observations during the inspection and with the contents of Rhodes' Food Safety Inspection Report and Food Safety Inspection Supplemental Report.
The inspectors did not inspect the retail area of Respondent's premises on that date because there were a lot of customers in that area. They did, however, inspect the back area and once again found rodent droppings not only in the service closet but also behind a butcher block table top leaning against the wall by the walk-in cooler.
They noticed that the back door of the business was standing open at the time of the inspection and was neither self-closing nor tight-fitting. This observation matched that of Gagnon on May 26 that the back door had gaps with huge openings, thereby allowing rodents and insects to enter the food processing area.
The inspectors also noticed that there were chew holes in ceiling tiles near the electric conduit pipes, some ceiling tiles were missing, and there was a hole in the wall in the finishing room. Based upon Rhodes' training and experience, she recognized the chew holes as rodent chew marks. There were also black grease marks around the hole where a rodent's fur brushed against the wall as it squeezed through the hole.
As on May 29 and June 7, there was no certified food manager on the premises on July 5 although there were eight employees present at the time.
Rhodes again noted in her report the continued presence of clutter and the dirty equipment. Foods in the walk- in cooler still were not maintained at the required low temperature.
Rhodes again gave the business a rating of "poor." She gave copies of her Food Safety Inspection Report and Food Safety Inspection Supplemental Report to Mrs. Jimenez.
Dr. John Fruin is the Chief of the Bureau of Food and Meat Inspection, Division of Food Safety, of the Department. He reviewed the Food Safety Inspection Reports dated May 26,
June 7, and July 5, 2006, and agreed that the proper rating for Respondent was "poor" for each of those reports based upon the number of violations, the number of critical violations, and the presence of rodents.
He testified that the three "poor" ratings with repeat violations require that a fine be imposed upon Respondent for the violations observed during each inspection. On May 26 there were six critical violations but some of them were committed more than one time, meriting a fine of $1,375. On June 7 there were fewer critical and non-critical violations, meriting a fine of $950. On July 5 there were still fewer violations, meriting
a fine of $300. The total fine recommended by Dr. Fruin, therefore, is $2,625.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.
Respondent is a "food establishment" as defined by Section 500.03(1)(n), Florida Statutes. Although Respondent is primarily a wholesale bakery, it also conducts ancillary food service activities, selling individual portions of food products for consumption on or off the premises. Food establishments that have ancillary food service activities are regulated by the Department. § 500.12(5)(a), Fla. Stat.
The Department seeks to impose an administrative fine against Respondent in this proceeding. This proceeding, therefore, places the burden of proof on the Department, and the Department must prove the allegations in the administrative complaint by clear and convincing evidence. Dept. of Banking &
Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). The Department has met its burden.
Subsections (1) and (2) of Section 500.04, Florida Statutes, prohibit the manufacture, sale, delivery, holding, or offering for sale of any adulterated or misbranded food and
further prohibit the adulteration or misbranding of any food. A food is deemed adulterated "[i]f it has been produced, prepared, packed, or held under insanitary conditions whereby it may become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health."
§ 500.10(1)(f), Fla. Stat. Respondent was cited for numerous instances of failing to maintain food and food products at the required temperature, failing to wash hands or change single-use gloves as required, failing to keep equipment clean, and continuing to prepare and sell food in the presence of rodents.
Florida Administrative Code Rule 5K-4.002(4) adopts certain provisions of Chapters 1-7 of the 2001 Food Code and the Supplement to the 2001 Food Code published by the Public Health Service of the United States Department of Health and Human Services, including Section 3-603.11. That Section provides that if an animal food such as eggs is:
served or sold raw, undercooked, or without otherwise being processed to eliminate pathogens, either in ready-to-eat form or as an ingredient in another ready-to-eat food, the permit holder shall inform consumers of the significantly increased risk of consuming such goods by way of a disclosure and reminder . . . using brochures, deli case or menu advisories, label statements, table tents, placards, or other effective written means.
Respondent did not have a risk-advisory posted in its premises.
Respondent had four or more employees present and engaged in food establishment operations on May 26, June 7, and July 5, 2006, and was required to have a certified food manager present. Fla. Admin. Code R. 5K-4.021(4). No certified food manager was present on any of those dates.
Section 500.121(1)(a) and (b), Florida Statutes, authorizes the Department to impose a fine not exceeding $5,000 against any food establishment that has violated Chapter 500 or any lawful rules of the Department. The authority to impose a fine also appears in Section 570.07(2)(d), Florida Statutes, upon consideration of the "harm caused by the violation, the cost of rectifying the damage, the monetary benefit to the violator, whether the violation was willful, and the violator's compliance record." No evidence was presented that anyone was injured as a result of Respondent's violations or as to the cost of rectifying any damage, or of any monetary benefit to Respondent from the numerous violations. Respondent's witnesses, however, testified that they intentionally failed to correct the violations noted in the May 26, 2006, inspection report.
Respondent offered no contradictory evidence to most of the Department's evidence in this case. Rather, Respondent's theory in this case was that it could avoid a fine if it could have the first inspection invalidated. If successful, the
Respondent would only have two "poor" ratings in a row, rather than three.
In support of its defense theory, Respondent mounted a personal attack against the first inspector, Ronald Gagnon. Respondent attempted to prove that Gagnon was incompetent and, therefore, his report should be ignored. Proof of Gagnon's incompetence, according to Respondent, was Gagnon's failure to notice that there were rodents in the business premises.
As further support that Gagnon did not inspect the business properly, Respondent argued that Gagnon was not at the business very long. Respondent's evidence, however, did not match Respondent's argument and was inconsistent with not only the Department's evidence but also with the remainder of Respondent's evidence. For example, Gagnon testified that he was in the facility approximately three hours, arriving at 8:30 a.m., and that he reported to the Department that he had spent a total of 4 hours on Respondent's inspection. John Jimenez, who was not even present, testified that Gagnon was only present for
20 minutes. Patricia Marshall testified that Gagnon was present
45 minutes to an hour before he sat down to write his report.
She also testified that she called Mrs. Jimenez shortly after Gagnon arrived. Mrs. Jimenez testified that she drove to the business when she was called, the drive takes 15 minutes, and she arrived at the business between 10:30 and 11:00. The
testimony is uncontroverted that after Gagnon finished his report, he went over it verbally with Denise Jimenez and then they walked around the premises while he pointed out to her the violations he had discovered. Accordingly, the testimony of Gagnon is credible, and the testimony of the Respondent's witnesses on this point is not. Gagnon's testimony is further buttressed by that of Gretchen Rhodes who, along with
Rodney Banks, performed the follow-up inspection. She testified that she was at the business a "couple of hours" and that it was not unusual for an inspection of a bakery to take three or four hours or even longer.
It was clear that Respondent's attempt to discredit Gagnon on a number of issues was Respondent's primary goal during the final hearing. On the other hand, the numerous violations found during each inspection did not seem important to Respondent, and no evidence was offered as to why each violation had occurred and what steps Respondent had taken to keep those violations from being repeated.
There were two violations that Respondent did offer evidence on to show that they were wrongly cited by Gagnon. The first one involved the bacon and sausage being held at room temperature. Both Marshall and Mrs. Jimenez testified that the bacon and sausage were pre-cooked, which allowed them to be held at room temperature so long as there was a chart showing when
they were cooked, how long they were held out of temperature control, and when they were eaten or thrown away. Although such a "time only" procedure is allowed by the Department, Gagnon did not see the required chart. Further, Marshall was with him when he noted that violation. Gagnon told her the bacon and sausage needed to be destroyed because they were sitting at room temperature. Additionally, when Gagnon and Mrs. Jimenez walked through the facility so that he could show her each violation he noted, he talked with her about the bacon and sausage being at room temperature. Neither Marshall nor Mrs. Jimenez told Gagnon that they used the "time only" procedure, and neither showed him the required chart. The testimony of Respondent's two employees regarding this violation is not credible.
Similarly, the violation regarding Respondent's failure to have sanitizer test strips at the sinks was disputed. The test strips reveal the amount of sanitizer being used. If too much sanitizer is being used in the sanitizing sink, the liquid will be toxic; if too little, the amount will be inadequate to properly sanitize the dishes and cooking utensils being washed. Although Respondent offered evidence that it had purchased test strips earlier in the month, that evidence does not prove the required test strips were located at the sanitizing sink. Further, when Mrs. Jimenez reviewed Gagnon's
report with him, she did not tell him or show him that the test strips were located as required.
The amount of each fine recommended by the Department's Bureau Chief is reasonable, as is the total amount of the fine recommended. Although Respondent's representative suggested that Respondent could not afford to pay the fine, he also, during different parts of the final hearing, asserted that the business serves approximately a half million people a day and has in excess of a million dollars in revenue annually.
RECOMMENDED that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint and requiring Respondent to pay to the Department an administrative fine in the amount of $2,625 by a date certain.
DONE AND ENTERED this 12th day of January, 2007, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 12th of January, 2007.
Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and
Richard D. Tritschler, General Counsel Department of Agriculture and
David W. Young, Esquire Department of Agriculture 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.
