DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Respondent.
) Case No. 11-4224
On October 10, 2011, an administrative hearing in this case was held by video teleconference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Charles F. Tunnicliff, Esquire
The issues in the case are whether the allegations set forth in an Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and
Restaurants (Petitioner), against Town and Country Skate World (Respondent) are correct, and, if so, what penalty should be
imposed.
By Administrative Complaint dated August 3, 2010, the Petitioner alleged that the Respondent was in violation of certain food safety regulations at the time of inspections conducted by employees of the Petitioner. The Respondent disputed the allegations and requested an administrative hearing. On August 18, 2011, the Petitioner forwarded the dispute to the Division of Administrative Hearings, which scheduled and conducted the proceeding.
At the hearing, the Petitioner presented the testimony of two witnesses and had Exhibits 1 through 3 admitted into evidence. The Respondent did not attend the hearing and was otherwise unrepresented.
The Transcript of the hearing was filed on October 26, 2011. The Petitioner filed a Proposed Recommended Order on November 4, 2011.
The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes (2011).
At all times material to this case, the Respondent was a restaurant operating at 7510 Paula Drive, Tampa, Florida, 33615, and holding food service license number 3203942.
On May 6, 2010, Rich Decker (Mr. Decker), employed by the Petitioner as a senior sanitation and safety specialist, performed a routine inspection (May 6 inspection) of the Respondent and observed conditions that violated certain provisions of the Food Code.
Food Code violations are classified as "critical" or "non-critical." A critical violation of the Food Code is one that poses a significant threat to the public health, safety, or welfare and is a risk factor for food-borne illness. A non- critical violation of the Food Code is one that does not meet the definition of a critical violation.
At the conclusion of the May 6 inspection, Mr. Decker noted the observed violations in an inspection report. A manager for the Respondent was present during the inspection. The manager signed the inspection report and received a copy of the report at that time.
According to the inspection report, a follow-up "callback" inspection was scheduled to occur on July 6, 2010, prior to which critical violations were to have been corrected.
On July 21, 2010, Kathy Dorsey (Ms. Dorsey), employed by the Petitioner as a senior sanitation and safety specialist,
performed the callback inspection (July 21 callback inspection) and observed some of the same Food Code violations noted on the May 6 inspection report.
At the conclusion of the July 21 callback inspection, Ms. Dorsey noted the observed violations in an inspection report. An employee of the Respondent present at the time of the inspection signed and received a copy of the callback inspection report.
The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding.
Pursuant to state regulations, the Respondent was required to have designated a certified food protection manager responsible for the operation of food service. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the designated food protection manager's certification had expired and that the Respondent was operating without a properly-certified food protection manager. This was a critical violation of the Food Code, because the lack of a properly-certified food protection manager presents a significant threat to the public health, safety, or welfare through the transmission of food-borne illness by improper food preparation.
During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted
that no thermometer to ascertain the temperature of food products was present, a critical violation. Foods held at improper temperatures are susceptible to development of bacterial contamination and are a risk factor for transmission of food-borne illness.
During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent, which utilized a chemical system for sanitation of dishes and utensils, had no chemical test kit provided at the location of the sanitation sink. The test kit is required to ascertain whether the composition of the
disinfection liquid is appropriate and capable of sanitizing the items. This was a critical violation because improperly sanitized dishes and utensils pose a significant threat to the public health, safety, or welfare through the transmission of food-borne illness.
During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted
that the gaskets located at the reach-in food refrigeration unit were soiled, a critical violation because the situation presents an opportunity for bacterial contamination of food products and transmission of food-borne illness.
Sinks used for preparation of food products are not to be used for hand washing, and, accordingly, the Food Code
prohibits having hand-washing aids at a food prep sink. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent had hand-washing materials located at a food-prep sink. This was a critical violation because dual use of sinks provides an opportunity for bacterial contamination of food or utensils and transmission of food-borne illness.
During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent's gas tanks (helium and/or carbon dioxide)
were not properly secured, which was a non-critical violation of state regulations cited herein.
During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted
that ceiling tiles in the kitchen were water-stained, indicating the presence of an unidentified leak above the ceiling tiles, and other tiles were missing. These were non-critical violations of state regulations cited herein.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 & 120.57, Fla. Stat. (2011).
The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See Ch. 509, Fla. Stat. (2011).
Florida Administrative Code Rule 61C-1.001(14) provides the following definition:
Food Code--This term as used in Chapters 61C-1, 61C-3, and 61C-4, F.A.C., means
paragraph 1-201.10(B), Chapter 2, Chapter 3,
Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; 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), herein adopted by reference. A copy of the Food Code, as adopted by the division, is available on the division’s Internet website
www.MyFloridaLicense.com/dbpr/hr. A copy of the entire Food Code is available on the
U.S. Food and Drug Administration Internet website. Printed copies of the entire Food Code are available through the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
The Administrative Complaint alleged violations of the Food Code provisions cited herein. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). As set forth in the preceding Findings of Fact,
the burden has been met. However, the Administrative Complaint included an allegation related to damaged floor tiles that was not addressed during the hearing or in the Petitioner's Proposed Recommended Order, and the burden was not met as to this allegation.
Rule 61C-1.005(5) provides, in relevant part, as
follows:
Definitions.
"Critical violation" means a violation determined by the division to pose a significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in DBPR Form HR-5022-014 Lodging Inspection Report or DBPR Form HR-5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not otherwise identified in this rule.
"Non-critical violation" means a violation not meeting the definition of critical violation and not otherwise identified in this rule.
The Administrative Complaint charged the Respondent with a violation of rule 61C-4.023(1), which provides as
follows:
All managers who are responsible for the storage, preparation, display, and serving of foods to the public shall have passed a certification test approved by the division demonstrating a basic knowledge of food protection practices as adopted by the division. Those managers who successfully pass an approved certification examination
shall be issued a certificate by the certifying organization, which is valid for a period of five years from the date of issuance. Each licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. The operator shall designate in writing the certified food protection manager or managers for each location. A current list of certified food protection managers shall be available upon request in each establishment. When four or more employees, at one time, are engaged in the storage, preparation or serving of food in a licensed establishment, there shall be at least one certified food protection manager present at all times when said activities are taking place. The certified food protection manager or managers need not be present in the establishment during those periods of operation when there are three or fewer employees engaged in the storage, preparation, or serving of foods. It shall be the responsibility of the certified food protection manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this chapter.
The evidence established that on May 6, 2010, and July 21, 2010, the Respondent failed to have a certified food protection manager responsible for operation of the facility.
The Administrative Complaint charged the Respondent with a violation of Food Code Rule 4-302.12, which provides as follows:
Food Temperature Measuring Devices.
Food temperature measuring device shall be provided and readily accessible for use
in ensuring attainment and maintenance of food temperatures as specified under Chapter 3.
A temperature measuring device with a suitable small-diameter probe that is designed to measure the temperature of thin masses shall be provided and readily accessible to accurately measure the temperature in thin foods such as meat patties and fish filets.
The evidence established that on May 6, 2010, and July 21, 2010, the Respondent failed to have a thermometer or other device present in the kitchen by which food temperatures could be measured.
The Administrative Complaint charged the Respondent with a violation of Food Code Rule 4-302.14, which provides as follows:
Sanitizing Solutions, Testing Devices.
A test kit or other device that accurately measures the concentration in mg/L of sanitizing solutions shall be provided.
The evidence established that on May 6, 2010, and July 21, 2010, the Respondent failed to have a test kit or other device available to ascertain whether the sanitizing solution used in cleaning dishes and utensils was of appropriate concentration.
The Administrative Complaint charged the Respondent with a violation of Food Code Rule 4-602.11(C) and (D), which provides, in relevant part, as follows:
Except as specified in ¶ (D) of this section, if used with potentially hazardous food, equipment food-contact surfaces and utensils shall be cleaned throughout the day at least every 4 hours.
Surfaces of utensils and equipment contacting potentially hazardous food may be cleaned less frequently than every 4 hours if:
* * *
Equipment is used for storage of packaged or unpackaged food such as a reach- in refrigerator and the equipment is cleaned at a frequency necessary to preclude accumulation of soil residues;
The evidence established that on May 6, 2010, and July 21, 2010, there was an accumulation of soil visible on the gasket of the reach-in refrigeration unit.
The Administrative Complaint charged the Respondent with a violation of Food Code Rule 6-301.13, which provides, in relevant part, as follows:
6-301.13 Handwashing Aids and Devices, Use restrictions.
A sink used for food preparation or utensil washing, or a service sink or curbed cleaning facility used for the disposal of mop water or similar wastes, may not be provided with the handwashing aids and devices required for a handwashing lavatory. . . .
The evidence established that on May 6, 2010, and July 21, 2010, the Respondent provided hand-washing materials at a sink used in food preparation.
The Administrative Complaint charged the Respondent with violations of rule 61C-1.004, which provides, in relevant part, as follows:
All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions.
* * *
(9) Fire safety equipment.
* * *
(d) Carbon dioxide and helium tanks shall be adequately secured so as to preclude any danger to safety.
The evidence established that on May 6, 2010, and July 21, 2010, some ceiling tiles in the Respondent's kitchen were either water-stained or missing. Although the ceiling tile violations were cited in the Administrative Complaint as separate violations ("water-stained" or "missing"), the Petitioner's Proposed Recommended Order states that, assuming the allegations were proven, the penalty should be assessed as a single violation of rule 61C-1.004(6).
The evidence also established that on the same dates, the Respondent's carbon dioxide and/or helium gas tanks were not properly secured, a violation of rule 61C-1.004(9)(d).
Section 509.261, Florida Statutes (2010), provides, in relevant part, as follows:
Revocation or suspension of licenses; fines; procedure.--
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:
Fines not to exceed $1,000 per offense;
Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and
The suspension, revocation, or refusal of a license issued pursuant to this chapter.
For the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an establishment is operated in violation of a "critical law or rule," as that term is defined by rule.
Rule 61C-1.005(6) provides, in relevant part, as follows:
Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under Chapter 509,
F.S. Any violation requiring an emergency suspension or closure, as authorized by Chapter 509, F.S., shall be assessed at the highest allowable fine amount.
Non-critical violation.
1. 1st offense-–Administrative fine of $150 to $300.
* * *
Critical violation. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.
1. 1st offense-–Administrative fine of $250 to $500.
This case involves five critical and three non- critical violations, all of which were observed by safety inspectors on two separate dates. The Petitioner's Proposed Recommended Order seeks a total penalty of $1,550, which is within the range of penalties appropriate under the referenced rule.
Based on 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, enter a final order imposing an administrative fine against the Respondent in the amount of $1,550.
DONE AND ENTERED this 28th day of November, 2011, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2011.
Charles F. Tunnicliff, Esquire Department of Business and
William L. Veach, Director Division of Hotels and Restaurants 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.
