DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Respondent.
) Case No. 07-4811
Pursuant to notice a hearing was held in this case on December 5, 2007, by video teleconference at sites in Tallahassee and Tampa, Florida, before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative
Hearings.
The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated August 28, 2007, and, if so, what penalty should be imposed against Respondent's license.
On or about August 28, 2007, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (hereinafter referred to as "Division"), filed an Administrative Complaint alleging that in May, June, and July 2007, Respondent, Sonic (hereinafter referred to as "Sonic" or "Respondent"), violated various standards governing public food service establishments. Specifically, the Administrative Complaint charged Respondent with violating Food Code
Rules 4-204.120, 6-501.111, and 6-501.12(A), and 4-601.11(C).
Respondent disputed the allegations and requested an evidentiary hearing.
The matter was referred to the Division of Administrative Hearings on October 22, 2007, for assignment of an Administrative Law Judge to conduct the hearing. A notice was issued on November 8, 2007, scheduling the hearing for December 5, 2007.
At hearing, the Division presented the testimony of Lori Kennedy, a sanitation and safety specialist with the Division.
The Division's Exhibits 1 though 5 were received into evidence. Respondent presented no testimony or evidence. At the request of the Division, the undersigned took official recognition of Subsection 509.032(6), Florida Statutes (2006), and Food Code Rules 4-601.11(C), 4-204.120, 6-501.111, and 6-501.12(A).
The Transcript of the hearing was filed with the Division of Administrative Hearings on December 24, 2007. The Division filed its Proposed Recommended Order on January 10, 2008.
Respondent did not file a proposed recommended order.
At all times material hereto, Sonic was a public food establishment, licensed and regulated by the Division. Sonic's license number is 6215607.
Sonic's address is 3698 Tampa Road, Oldsmar, Florida 34677.
Lori Kennedy is employed by the Division as a sanitation and safety specialist and has been so employed for three and a half years. Ms. Kennedy has a bachelor's degree in biology from Florida State University, a master's degree in public health from the University of South Florida, and a graduate certificate in infection control from Florida State University. At the time Ms. Kennedy was employed by the Division, she was a certified food manager and a special fire safety inspector. As part of her current position, Ms. Kennedy
attends monthly continuing education courses. During her employment with the Division, Ms. Kennedy inspects between 950 and 1000 public food service establishments and lodging establishments each year.
On May 31, 2007, Ms. Kennedy inspected the premises of Sonic. During the inspection, Ms. Kennedy observed numerous violations. Of these violations, only two were critical violations that were required to be corrected within 24 hours. Ms. Kennedy set forth her findings and listed all the violations on the Food Service Inspection Report on the day of the inspection. That same day Ms. Kennedy provided a copy of the report to Michelle Snyder, the general manager of the establishment. The Food Service Inspection Report notified
Ms. Snyder that a callback inspection would be conducted the following day, June 1, 2007.
In the May 31, 2007, Food Service Inspection Report, Ms. Kennedy specified that there were two critical violations, both of which had to be corrected within 24 hours. The first critical violation was that there were insects/rodents present in the establishment. The second critical violation was that the establishment's employees were directly touching ready-to- eat foods with their bare hands, without having the written alternative operating procedure checklist.
A violation of the Food Code is deemed a critical violation when such violation, if left unattended or uncorrected, will contribute to a food-borne illness or endanger life safety.
A non-critical violation is one which may not directly contribute to the promotion of a food-borne illness. However, a non-critical violation which is not addressed can lead to a critical violation.
On June 1, 2007, Ms. Kennedy conducted a call-back inspection at Sonic to determine if the two critical violations she had observed the previous day had been corrected. During the "call back" inspection, Ms. Kennedy observed that the two critical violations cited on the May 31, 2007, Food Service Inspection Report had been corrected. The first critical violation was corrected in that Ms. Kennedy did not observe any roaches at the establishment. The second critical violation was corrected by the employees using gloves for preparing ready-to- eat foods.
After Ms. Kennedy completed the call back inspection on June 1, 2007, Ms. Kennedy prepared a Callback Inspection Report and gave a copy of that report to Ms. Snyder.
On the June 1, 2007, Callback Inspection Report,
Ms. Kennedy appropriately noted that the two critical violations had been corrected.
The June 1, 2007, Callback Inspection Report also listed violations for which Sonic had been cited on May 31, 2007, but which were not deemed to be critical violations. Thus, those violations were not required to be corrected within
24 hours. According to the June 1, 2007, Callback Inspection Report, the time for Sonic to correct the non-critical violations was extended for 30 days, or until about July 1, 2007.
On July 2, 2007, Ms. Kennedy re-inspected the Sonic premises. During this re-inspection, Ms. Kennedy again listed
13 violations, initially cited in the May 31, 2007, Food Service Inspection Report, that still had not been corrected. However, after the July 2, 2007, re-inspection, Sonic was given an additional 30 days, or until August 2, 2007, to correct the violations. This additional 30-day extension was based on new Division guidelines.
Ms. Kennedy gave Sonic the additional time to correct the non-critical violations after she was informed by the Division district manager of the new Division guidelines implemented on July 1, 2007. According to those guidelines, the call-back period for the uncorrected non-critical violations for which Sonic was cited was extended from 30 days to 60 days.
On August 16, 2007, Ms. Kennedy again inspected Sonic's premises. This inspection was conducted to verify
compliance with the previously cited non-critical violations and those for which Sonic was given 60 days to correct. On the day of the inspection, Ms. Kennedy completed a Food Service Inspection Report, including a page titled, "Comment Sheet" (hereinafter referred to as the "August 16, 2007, Food Service Inspection Report") on which she noted her observations and findings.
During the August 16, 2007, "callback," Ms. Kennedy verified that four of the previously cited 13 non-critical violations had not been corrected and that the remaining previously uncorrected non-critical violations were in compliance. Also, Ms. Kennedy verified and reported one additional violation---one which had been cited on the May 31, 2007, Food Service Inspection Report, but was corrected within the required 24-hour time period.
The four previously cited violations that were not in compliance on August 16, 2007, were based on the following observations made by Ms. Kennedy and described in
paragraphs 17 through 20.
During the August 16, 2007, inspection, Ms. Kennedy observed that the floor behind the slush machine was covered with standing water. This is not a critical violation. However, it was cited because standing water on the floor has the potential to attract roaches and to breed flies. Further,
such standing water promotes the growth of mildew and mold, neither of which is sanitary in a food service establishment.
The second previously cited, but uncorrected violation Ms. Kennedy observed on August 16, 2007, was that condensate in the walk-in cooler was dripping on food boxes. This is not a critical violation. However, it was cited because the condensate, which possibly contained chemicals, insulation, and lubricants, could have impacted food storage.
The third previously cited, but uncorrected violation that Ms. Kennedy observed on August 16, 2007, was the buildup of grease under the table by a warming drawer, a non-food contact surface. This was not a critical violation. However, the grease on this non-food contact surface and the wheel under the table of the warming drawer, provide food and harborage for the roaches.
The fourth previously cited, but uncorrected violation that Ms. Kennedy observed on August 16, 2007, was the buildup of grease on the wheels of cooking equipment. This is a non- critical violation. It was cited because the grease on the wheels of cooking equipment provides food and harborage for roaches. In fact, on the day of this inspection, Ms. Kennedy observed roaches on the wheels of this cooking equipment.
In addition to the foregoing uncorrected non-critical violations Ms. Kennedy observed on August 16, 2007, she observed
and verified one previously corrected critical violation. Specifically, Ms. Kennedy observed live roaches in the establishment---two on the wheel of the prep table, one by the wire rack, and one by the dry storage area. This is a critical violation because roaches act as mechanical vectors that can transport bacteria and other pathogens on their limbs. As a result when they contact food, they could possible contaminate it with those pathogens.
There is no indication that the Division has inspected the Sonic establishment since August 16, 2007. Moreover, Respondent presented no evidence or testimony at hearing. Thus, it is unknown whether the violations cited on August 16, 2007, have been corrected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2007). See also Fla. Admin. Code R.
61C-1.0021(4).
The Division is the state agency responsible for licensing and inspecting public food service establishments. See §§ 509.032 and 509.241, Fla. Stat. (2007).
A "public food service establishment" is defined in Subsection 509.013(5)(a), Florida Statutes (2007), as follows:
(5)(a) "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.
Each "public food service establishment" must have a license from the Division prior to commencement of operation.
§ 509.241, Fla. Stat. (2007).
The Division is authorized to take disciplinary action against the holder of such license for operating in violation of Chapter 509, Florida Statutes (2007), or the rules implementing that chapter. Such disciplinary action may include suspension or revocation of the license, imposition of an administrative fine not to exceed $1,000.00 for each separate offense, and mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program.
§ 509.261, Fla. Stat. (2007).
Here, the Division seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, the Division has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. See Dept. of Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932 (Fla. 1996).
Subsection 509.032(6), Florida Statutes (2007), authorizes the Division to adopt such rules that are necessary to carry out the provision of that chapter.
Pursuant to its rulemaking authority, the Division has adopted rules governing public food service establishments contained in Florida Administrative Code Rule Chapters 61C-1 and 61C-4. The rules incorporate by reference portions of the Food Code adopted by the U.S. Food and Drug Administration, including those sections officially recognized at the final hearing.
See, e.g., Fla. Admin. Code R. 61C-4.010(1), (5) and (6) (incorporating by reference the standards in Food Code Chapters 4 and 6).
The Administrative Complaint alleged that on
August 16, 2007, Respondent violated Food Code Rules 4-204.120, 6-501.111, and 6-501.12(A), and 4-601.11(C).
Food Code Rule 4-204.120 states:
Equipment compartments that are subject to accumulation of moisture due to conditions such as condensation, food or beverage drip, or water from melting ice shall be sloped to an outlet that allows complete draining.
Food Code Rule 4-601.11(C) states in pertinent part:
Nonfood-contact food surfaces of equipment shall be kept free of an accumulation of dust, dirt, food residue, and other debris.
Food Code Rule 6-501.111 states in pertinent part:
The presence of insects, rodents, and other pests shall be controlled to minimize their presence on the premises by:
* * *
(D) Eliminating harborage conditions.
Food Code Rule 6-501.12(A) states:
The Physical facilities shall be cleaned as often as necessary to keep them clean.
The Division met its burden of establishing by clear and convincing evidence that Respondent violated Food Code Rules 4-204.120, 6-501.111, and 6-501.12(A), and 4-601.11(C), as alleged in the Administrative Complaint. With respect to Food Code Rule 4-601.11(C), there were two separate violations. See paragraphs 19 and 20 above.
The Division proposed a total administrative fine of
$2,500 for the alleged violations and a requirement that Respondent (Respondent's owners and/or employees) attend an educational program sponsored by the Hospitality Education Program. The proposed penalty is within the scope of those authorized by Subsection 509.261(1)(a) and (b), Florida Statutes (2007).
RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order:
DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2008.
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.
