STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

MICHELLE'S CAFE,

Respondent.

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) Case No. 07-3571

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RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on October 5, 2007, by video teleconference with the parties appearing from Lauderdale Lakes, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joshua B. Moye, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Jesus Villeda, Manager

Michelle's Café

299 East Broward Boulevard Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent, Michelle's Café, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner or Department), filed an Administrative Complaint against the Respondent, Michelle's Café (Respondent), on November 14, 2006. Thereafter, the Respondent, through its manager, Jesus Villeda, executed and filed an Election of Rights that disputed the material facts alleged in the Administrative Complaint and requested an evidentiary hearing. The case was forwarded to the Division of Administrative Hearings for formal proceedings August 3, 2007.

The Notice of Hearing by Video Teleconference was issued on August 21, 2007. At the hearing, the Petitioner presented testimony from Larry Torres, a safety and sanitation specialist employed by the Department. The Petitioner's Exhibits 1-3 were admitted into evidence. Jesus Villeda, the manager, testified on behalf of the Respondent. The Respondent was directed to give its exhibits to the court reporter for inclusion with the transcript. The Transcript was filed on October 25, 2007, but the Respondent's exhibits were not included. Findings regarding

pictures or other representations made by the Respondent are included based upon the witness' testimony and have been deemed plausible. The findings of fact or conclusions of law regarding violations have been reached having given the Respondent the benefit of the doubt regarding such matters.

The parties were granted ten days from the filing of the transcript within which to file proposed recommended orders. The Petitioner's Proposed Recommended Order has been fully considered in the preparation of this Order. The Respondent did not file a proposal.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating public food service establishments operating within the State of Florida. See §§ 509.032 and 509.261, Florida Statutes (2007).

2. At all times material to the allegations of this case the Respondent, Michele’s Café, was a licensed public food establishment governed by the provisions of Chapter 509, Florida Statutes (2006). The Respondent’s address of record is 299 East Broward Boulevard, Fort Lauderdale, Florida.

3. On July 31, 2006, in his capacity as a trained inspector for the Petitioner, Mr. Torres visited the Respondent’s place of business in order to conduct an inspection. Mr. Torres performs between 800 to 1000 inspections

   per year of licensed food establishments to assure that such businesses are in compliance with all food service rules and regulations.

4. At the time of the inspection, Jessica Sanchez, the manager on duty, represented the Respondent. The inspection report for July 31, 2006, identified several critical violations that needed to be corrected. Mr. Torres notified Mr. Villeda, as the owner and/or operator of the licensed entity, of the inspection results. Mr. Villeda later identified himself as the manager of the café.

5. Critical violations are items that must be corrected because, if not corrected, they pose a threat for imminent food- borne illness, contamination, or environmental hazard. Non- critical violations are less serious but can also lead to a potential health hazard. As to each type of violation, the Petitioner expects the licensee to take appropriate action to correct the cited deficiency.

6. Mr. Torres notified Mr. Villeda of the findings of his inspection of July 31, 2006, because he anticipated that the violations would be corrected in advance of a “call back” inspection.

7. The “call back” inspection was performed on September 18, 2006. This inspection was also performed by

   Mr. Torres and disclosed the following uncorrected deficiencies

   (these had been identified to the Respondent in the July 31, 2006 inspection report):

   1. There was no thermometer to measure the temperature of food products. This is a critical violation. Food products must be stored and maintained at an acceptable temperature to prevent bacteria from growing. Without a thermometer there is no verifiable system to confirm that acceptable temperatures are being maintained.

      
      

   2. Additionally, to retain prepared food on-site for sale or use, the prepared food item must be labeled to detail the date of its initial preparation. Ready to eat food

      can be retained for a maximum of seven days. After that period, there is a presumption that the item may not be safely consumed.

      Consequently, all prepared food must be clearly labeled to assure it is disposed of at the appropriate time. Because the sale of out-of-date food presents a health hazard, the labeling requirement is considered critical. The failure to follow the guideline is, therefore, considered a critical violation.

      
      

   3. Sanitizing chemicals used in the cleansing of dishes or food service preparation equipment must be tested to assure a proper level is utilized. The sanitizing chemicals may be toxic, therefore too much can lead to the contamination of the food service item and too little may fail to sanitize and kill bacteria. Accordingly, when used in conjunction with a three-compartment sink or dish machine, a chemical testing kit allows the user to easily verify that the amount of sanitizing chemical is correct. The failure to have and use a test kit is considered a critical violation as the improper use of chemicals may pose a public health hazard. The Respondent did not have the chemical kit to

      measure the product being used at its location.

      
      

   4. Food dispensing equipment, such as soda machines, must be kept clean. A build-up of slime on the soda dispenser nozzle poses a threat as mold can form and be dispensed with the soda to the user’s beverage. As illness can result, this deficiency is also considered a critical violation. In this regard the Respondent's soda machine had a build-up of slime on its dispensing nozzle.

      
      

   5. Food containers must also be kept clean. The interior of Respondent’s reach-in cooler had accumulated a residue of food or soil. As this could contaminate food placed in the cooler, this deficiency is also considered critical.

      
      

   6. Similarly, food contact surfaces must also be kept smooth and easily cleanable. In this regard, the Respondent’s use of ripped or worn tin foil to cover a shelf was not appropriate.

      
      

8. As to each of the deficiencies noted above, the Respondent failed or otherwise refused to timely correct the item. Mr. Villeda represented that the violations were corrected by the last week of September 2006. Implicit in that representation is the admission that such violations were not corrected by September 18, 2006, the date of the “call back” inspection.

9. The Respondent does not have a mop sink. The Respondent’s representation that the owners of the building have a mop sink elsewhere (that is used for the licensed area) has been deemed plausible. If a building janitor uses a mop sink

   located elsewhere to clean up spills (as was represented), the absence of a mop sink within the licensed area does not demonstrate that no mop sink existed. In this regard the Respondent has been given the benefit of the doubt.

10. The Respondent did not explain why the deficiencies were not corrected before the “call back” inspection. It is accepted that the corrections were later made and the Respondent has been given consideration of this effort in the penalty recommended in this case.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2007).

12. The Petitioner bears the burden of proof in this matter to establish the allegations by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

13. Section 509.261, Florida Statutes (2006), provides, in part:

    (1) Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating

    with a suspended or revoked license may be subject by the division to:

    
    

    1. Fines not to exceed $1,000 per offense;

       
       

       It is alleged in this case that the Respondent operated in violation of the rules governing public food establishments.

14. As used in this case “public food service establishment” means

    . . . any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.

    
    

15. Section 509.032, Florida Statutes (2006), authorizes the Petitioner to adopt rules necessary to carry out the provisions of the chapter.

16. Florida Administrative Code Rule 61C-1.001 provides, in pertinent part:

    Except when otherwise defined in this rule, the definitions provided in paragraph 1- 201.10(B), Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration, the 2001 Food Code Errata Sheet (August 23, 2002), and Supplement to the 2001 FDA Food Code (August 29, 2003), herein adopted by reference, shall apply to Chapters 61C-1, 61C-3 and 61C-4, F.A.C. In addition, the following definitions apply to Chapters 61C- 1, 61C-3 and 61C-4, F.A.C.:

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    1. Food Code – Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines and Annex 5: HACCP Guidelines of the Food Code, the 2001 Food Code Errata Sheet (August 23, 2002), and Supplement to the 2001 FDA Food Code (August 29, 2003).

    2. Food establishment – As utilized in the Food Code, this term shall apply to public lodging and food service establishments as defined in Chapter 509, F.S., according to the context of the applicable rule language.

    
    

17. As adopted by reference, the following Food Code provisions are applicable to this case:

    1. Rule 3-501.17(A)—This rule requires that potentially hazardous food prepared and held by a public food establishment for more than

       24 hours be clearly marked to indicate the date or day by which the food must be consumed, sold, or discarded. This rule further delineates temperatures for storage of foods and the equipment that must be used to verify that food is maintained at the proper temperature;

       
       

    2. Rule 4-302.12—This rule requires that a food temperature measuring device be provided and readily accessible for use to ensure that foods are kept at the required temperatures;

       
       

    3. Rule 2-103.11(1)—This rule requires that proper sanitizing be used before equipment and utensils are reused so that dishes, equipment and utensils are placed in an appropriate solution to sanitize the item before it is reused; and

    4. Rule 4-601.11(A)—This rule requires that food contact surfaces and utensils be clean to sight and touch.

       
       

18. In this case the Petitioner has established by clear and convincing evidence that the Respondent did not timely correct the violations set forth in the inspection report dated July 31, 2006. When the “call back” inspection was done on September 18, 2006, the deficiencies previously identified remained uncorrected. That the Respondent subsequently corrected the problems does not excuse the violations.

19. As stated in the law, Section 509.032(2), Florida Statutes (2006), inspections of public food service establishments are necessary and the Department must perform such inspections:

    1. For purposes of performing required inspections and the enforcement of this chapter, the division has the right of entry and access to public lodging establishments and public food service establishments at any reasonable time.

       
       

    2. Public food service establishment inspections shall be conducted to enforce provisions of this part and to educate, inform, and promote cooperation between the division and the establishment.

    
    

20. Critical violations cannot be ignored as sanitation rules are geared toward protecting the public from food-borne illnesses. Consequently, standards for storing, preparing, or serving food are necessary. In this case the Petitioner has

shown by clear and convincing evidence four critical violations of the food code. Accordingly, a penalty is appropriate under the circumstances of this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, impose an administrative fine in the amount of $1000.00 against the Respondent, Michelle’s Café.

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DONE AND ENTERED this 21st day of November, 2007, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2007.

COPIES FURNISHED:

Jesus Villeda Michelle's Cafe

13161 Northwest 11th Court Sunrise, Florida 33323

Joshua B. Moye, Esquire Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

William Veach, Director

Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monore Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monore Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 07-003571

Orders for Case No: 07-003571