DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Respondent.
) Case No. 12-0876
Pursuant to notice, a final hearing was conducted in this case on April 27, 2012, by video teleconference at sites in Panama City and Tallahassee, Florida, before James H. Peterson III, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Charles F. Tunnicliff, Esquire
Whether Respondent committed the violations alleged in the Administrative Complaint dated May 23, 2011, and if so, whether disciplinary action should be taken against Respondent.
On May 23, 2011, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (the Department or Petitioner) filed an Administrative Complaint, DBPR No. 2011-26330 (Administrative Complaint), against Joey's On Beach (Respondent or Joey's On Beach) alleging violations of chapter 509, Florida Statutes, and related rules governing the operation of public food establishments.
Respondent timely disputed the allegations in the Administrative Complaint and elected to have an administrative hearing. The case was transferred to the Division of Administrative Hearings (DOAH) pursuant to section 120.57(1), Florida Statutes, and assigned to the undersigned for hearing.
At the hearing, the Department presented the testimony of one witness, Senior Sanitation Specialist Janie Smith (Inspector Smith) and offered three exhibits that were received into evidence without objection as Exhibits P-1 through P-3. Also, at the Department's request, the undersigned took official recognition of sections 509.032(6) and 509.049, Florida Statutes, and Florida Administrative Code Rules 61C-1.001(14)
and 61C-1.005, as well as the United States Food and Drug Administration’s Food Code (Food Code) Rules 3-501.17(A), 3-305.11, 3-302.11(A)(4), and 4-601.11(A).1/ Respondent
presented the testimony of its owner, Joseph Di Meglio, and its owner's wife, Ann Marie Di Meglio, but did not introduce any exhibits.
The proceedings were transcribed and a Transcript was ordered. The parties were allowed 30 days from the filing of the Transcript within which to submit proposed recommended orders. The Transcript, consisting of one volume, was filed on May 16, 2012. The Department timely filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. Respondent did not file a proposed
recommended order.
The Department 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 a Florida corporation named Stugotz, Inc., doing business as Joey's On Beach. The corporation is wholly owned by Joseph Di Meglio. Respondent holds a public food establishment license issued by the Department.
Respondent's business address is 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408.
Inspector Smith has been employed by the Department as a Sanitation and Safety Specialist for approximately five years. She has received training in laws and rules regarding public food service and lodging, is a certified food manager, and performs approximately 1,000 inspections each year for the Department. Formerly, Inspector Smith was a restaurant manager for 15 years.
On March 2, 2011, Inspector Smith performed a food service inspection of Joey's On Beach located at 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. During the inspection, Inspector Smith prepared and signed an inspection report on her electronic personal data assistant setting forth violations she allegedly encountered during the inspection. Ann Marie Di Meglio, the wife of the owner of Joey's On Beach, was present during the inspection and signed the report on the electronic device.
According to the inspection report, the March 2, 2011 inspection of Joey's On Beach occurred at 11:11 a.m. Joey's On Beach opens at 11:00 a.m. The inspection occurred during active food preparation.
Inspector Smith made the Respondent aware that all violations noted during the inspection needed to be corrected by May 2, 2011.
All of the pages of the three-page March 2, 2011, inspection report are prefaced with the heading "FOOD SERVICE INSPECTION REPORT LEGAL NOTICE" with the warning that "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." The third page of the March 2nd report set forth alleged violations as follows:
Warning(s)
12A-09-1: Observed food employee wearing jewelry other than a plain ring on their hands/arms while preparing food.
22-25-1: Observed buildup of soiled material on mixer head.
08A-28-11: Observed bag if [sic] bread crumbs on foor [sic] in walkin cooler.
08A-29-1: Observed sauce and bread crumbs uncoverd [sic] in walkin cooler.
02-22-1: Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked.
Sausage
08A-23-1: Observed shell eggs over sausage in walkin cooler
08A-28-1: Observed jug of oil stored on the floor.
53B-08-1: No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11.
32-16-1: Hand wash sink lacking proper hand drying provisions. Corrected on site.
09-04-1: Observed bare hand contact of ready-to-eat food by employees and establishment has no approved Alternative Operating Procedure in effect. Corrected On Site.
On May 3, 2011, Inspector Smith performed a callback inspection of Joey's On Beach. According to the report, the inspection was performed at 10:18 a.m. Respondent had not yet opened for business and the callback inspection was conducted during active food preparation.
During the callback inspection, Inspector Smith did not discuss specifics of the case with the owner, Joseph Di Meglio, because, according to Inspector Smith, inspectors are "not allowed to discuss the case at an inspection."
Inspector Smith prepared and signed a two-page report for the May 3rd callback inspection on her electronic personal data assistant indicating that some of the violations noted on the March 2, 2011, inspection report had not been corrected. Mr. Di Meglio signed the May 3, 2011, inspection report.
Both pages of the May 3 inspection report had the same "Legal Notice" as the earlier report, stating "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines."
Alleged uncorrected violations recommended for an administrative complaint were noted on the May 3 inspection report as follows:
The following item(s) have been recommended for Administrative Complaint:
Violation 53B-08-1
No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. At callback no training provided for Ann Marie.
Violation 22-25-1
Observed buildup of soiled material on mixer head.
Violation 08A-29-1
Observed sauce and breadcrumbs uncovered in walkin cooler
Violation 08A-28-1
Observed bag if [sic] breadcrumbs on floor in walkin cooler
Violation 02-22-1
Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked, sausage, and
at callback sausage and meat balls not date marked in walkin cooler
The Administrative Complaint in this case charged Respondent with the same five alleged violations recommended in the May 3rd callback inspection report, in the following order (Counts 1 through 5): (1) Observed ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked in walk-in cooler [referencing 02-22-1, and citing 3-501.17(A), Food Code]; (2) Observed bag of bread crumbs on floor in walk-in cooler [referencing 08A-28-1, and citing 3-305.11, Food Code]; (3) Observed sauce and break [sic] crumbs uncovered in walk-in cooler [referencing 08A-29-1, and citing 3-302.11A)(4), Food Code]; (4) Observed build up of soiled material on mixer head [referencing 22-25-1, and citing
4-601.11(A), Food Code]; and (5) Observed no proof of required training provided, at call back no training provided for Ann Marie [referencing 53B-08-1, and citing 509.049, Florida Statutes].
At the final hearing, the Department announced that Count 5 of the Administrative Complaint, alleging a lack of training in violation of section 509.049, Florida Statutes, had been dropped because Mr. Di Meglio had established to the Department's satisfaction that Respondent's employees were properly trained.
The Department presented some evidence in support of the remaining allegations. As discussed below, however, the Department only met its burden of persuasion as to Count 2 alleging that breadcrumbs were improperly stored in an open container on the floor of the walk-in cooler.
As to Count 1 of the Administrative Complaint, at the final hearing, Inspector Smith referred to both inspection reports and observed that the reports indicated that Respondent had failed to properly date mark ready-to-eat potentially hazardous food (sausage and meatballs) held on site for more than 24 hours in the walk-in cooler. She explained that such failure was a critical violation because food must be date- marked to indicate the day it was prepared, and the day that it expires. She further explained that potential hazardous foods, such as precooked sausage and meatballs, are only good for seven days from the date prepared.
Respondent's witness, Ann Marie Di Meglio, works at the restaurant and was there when the first inspection took place. Her husband, Mr. Di Meglio, was not. According to Ms. Di Meglio, it is Respondent's procedure to date-mark the
containers in the walk-in cooler. She further testified that at the time of the inspection, there was active preparation, and it is hard to keep things covered during active preparation.
Mr. Di Meglio, through his testimony, further explained that they date-marked the covers of the sausage and other prepared foods in the cooler, but remove the lids to gain access to the food during active preparation. He testified that there were labels on the lids of the sausage and meatball containers at the time of the inspections, but that the lids had been set aside because of preparation.
Inspector Smith suggested that she would have cited the sausage and meatball containers for being open, but could not recall whether they were open or not. She did not see the labels on the lids. There were no photographs or specific descriptions of the containers or observations by Inspector Smith. During the final hearing, when asked whether there were dates on the lids of the containers, Inspector Smith testified, "I can't answer that because I'm not there. I didn't write anything about it being uncovered."
Based upon the explanations provided by the
Di Meglios, the timing of the inspections, the lack of specific recollection by Inspector Smith, and considering that the Department has the burden of persuasion, it is found that the Department did not prove that Respondent failed to properly date its containers of potentially hazardous foods as alleged in Count 1 of the Administrative Complaint.
As to Count 2, Inspector Smith stated in both the March 2 and May 3, 2011, inspection reports that she observed an open bag of breadcrumbs stored on the floor in Respondent's
walk-in cooler. Storage of breadcrumbs on the floor in an open container is a critical violation because when food is stored on the floor, it can become contaminated by exposure to wastewater or germs from walking back and forth outside to the bathroom.
While perhaps an open container could be explained by the fact that there was active food preparation, no excuse or explanation was offered as why an open bag of breadcrumbs was found on the floor during both inspections. Respondent's witnesses did not otherwise address the improper storage of breadcrumbs on the floor as alleged in Count 2 of the Administrative Complaint.
As to Count 3 relating to the open containers of breadcrumbs and sauce, it is found that Respondent's explanation of active food preparation was reasonable given the timing of the inspections. In other words, the Department failed to prove that Respondent was storing foods in open containers because it is found that the containers were only opened temporarily during active food preparation.3/
As to Count 4, relating to an alleged dirty mixer head, the inspection reports for both the March 2 and May 3,
2011, inspections indicate there was a "buildup of soiled material on mixer head."
While Ms. Di Meglio testified that she did not know if there was something on the mixer head at the time of the inspections, she testified that the mixer is cleaned every day, and that the material on the mixer head, if any, was not old. Rather, she explained, she had used the mixer around 10:00 a.m. the very morning of the first inspection to make dough and cut cheese.
Ms. Di Meglio further explained that Respondent's mixer is very old and has some discoloration. And, while admitting that there may have been some dust or flour on the mixer from recent use, both she and her husband denied that there was any soil on the mixer or the mixer head.
Inspector Smith's testimony regarding the state of the mixer, and the brief descriptions in the inspection reports referring to "soiled material" on the mixer head, without more, provided less than clear and convincing evidence of a violation.
While Inspector Smith testified that she would not cite the equipment as being dirty if it was soiled with everyday use dirt, she was unable to definitively recall her observations. When questioned about the mixer head at the final hearing, Inspector Smith observed:
I just noted that it was extremely2/ soiled when I was there at the initial inspection and at the callback. Not the top, but the mixer head being - - that goes over the unit, from what I can remember.
When further asked to explain the difference between "soiled" and "dusty," Inspector Smith testified:
It was all food debris with - - I mean, I just remember it just being soiled. It was over a year ago. I can't describe in detail what was on it. I would not cite it unless it was old food debris, or it was mold-like substance maybe with a combination. I don't cite everyday dirt.
Considering Inspector Smith's less than specific recall, Respondent's explanation, and the Department's lack of specific details or photographs contrary to the testimony of Respondent's employees, it is found that the Department failed to prove the violation alleged in Count 4 of the Administrative Complaint.
While the inspection reports were accepted into evidence as corroborative hearsay, it is found that, under the facts and circumstances, they are documents prepared in anticipation of litigation.4/ Specifically, the reports contain warnings and requirements of compliance, with specific mention of the fact that failure to comply may "initiate a complaint." Moreover, the evidence showed that the investigator could not discuss the allegations with Respondent's owner because
inspectors are "not allowed to discuss the case at an inspection."
Even if the inspection reports were not merely hearsay, their lack of detail when compared to the recollections of Respondent's employees regarding operations and the state of affairs during the inspections, was insufficient to meet the Department's burden of persuasion necessary to prove Counts 1, 3, and 4 of the Administrative Complaint.
Count 2 of the Administrative Complaint alleging improper storage of bread crumbs on the floor, however, was uncontroverted, and the Department proved by clear and convincing evidence that Respondent's improper storage of bread crumbs was a critical violation.5/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.
§§ 120.569, 120.57(1), and 120.60(5), Fla. Stat.(2011).
The Department 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), the Department may impose penalties for violations of chapter 509, 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.
Further, Florida Administrative Code Rule 61C-1.005(6) states in its pertinent part:
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. . . .
(b) 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.
Because the Department seeks the imposition of an administrative penalty, which is a penal sanction, the Department has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaint. See, e.g., Dep’t of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996)(reaffirming the decision in Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)).
Clear and convincing evidence:
requires that evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind
of the trier of fact, a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz
v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983)).
Paragraph 1-201.10(B) and chapters 2 through 7 of the United States Food and Drug Administration’s Food Code (Food Code) have been incorporated by reference into the rules governing public food establishments. Fla. Admin. Code R. 61C- 1.001(14).
Count 1 of the Administrative Complaint alleges that Respondent violated rule 3-501.17(A) of the Food Code which states in pertinent part:
Ready-to-Eat, Potentially Hazardous Food, Date Marking. Except as specified in paragraph (D) of this section, refrigerated, ready-to-eat, potentially hazardous food prepared and held in a food establishment for more than 24 hours shall be clearly marked to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded, based on the temperature and time combinations specified below: (1) 5°C (41°F) or less for a maximum of 7 days; or (2) 7°C (45°F) or between 5°C (41°F) and 7°C (45°F) for a maximum of 4 days in existing refrigeration equipment that is not capable of maintaining the food at 5°C (41°F) or less if: (a) The equipment is in place and in use in the food establishment, and (b) Within 5 years of the regulatory authority's adoption of this code, the equipment is upgraded or replaced to maintain the food at a temperature of 5°C
(41°F) or less. The day of preparation shall be counted as Day 1.
As noted in the Findings of Fact, above, the Department failed to prove Count 1 of the Administrative Complaint by clear and convincing evidence, and thus failed to prove that Respondent violated rule 3-501.17(A), Food Code.
As previously noted, the Department also failed to prove by clear and convincing evidence Count 3, alleging that Respondent violated rule 3-305.11 of the Food Code, which states in pertinent part:
Food shall be protected from cross contamination by: . . . (4) Storing the food in packages, covered containers or wrappings.
The Department further failed to prove by clear and convincing evidence Count 4 of the Administrative Complaint alleging a violation of rule 4-601.11(A) of the Food Code, based upon an alleged dirty mixer head. Rule 4-601.11(A) states in pertinent part, relating to equipment, that "[f]ood- contact surfaces shall be clean to sight and touch." As explained in the Findings of Fact, above, there was no clear recollection or explanation of facts necessary to prove this allegation in light of the collective denials and insistence by Respondent's employees that the mixer head was cleaned daily.
Despite its failure to prove Counts 1, 3, and 4 of the Administrative Complaint, as further noted above, the Department
proved by clear and convincing evidence that Respondent improperly stored bread crumbs in a manner which was a critical violation of Food Code Rule 3-305.11. Rule 3-305.11 states in its pertinent part:
Food Storage. (A) Except as specified in paragraphs (B) and (C) of this section, food shall be protected from contamination by storing the food: (1) In a clean, dry location; (2) Where it is not exposed to splash, dust, or other contamination; and
(3) At least 6 inches above the floor.
Food in packages and working containers may be stored less than 6 inches above the floor on case lot handling equipment as specified under Section 4-204.122.
Pressurized beverage containers, cased food in waterproof containers such as bottles or cans, and milk containers in plastic crates may be stored on a floor that is clean and not exposed to floor moisture.
In its Proposed Recommended Order, the Department proposed the imposition of a fine of $1000 for the four violations, Counts 1 through 4, listed in the Administrative Complaint which remained after Count 5 was dropped.
The Department met its burden of proof as to only Count 2 of the Administrative Complaint, regarding Respondent's improper storage of breadcrumbs.
Considering the proposed penalty of $1,000 suggested by the Department if it had proved all four of the alleged violations, as well as the range of penalties suggested by applicable law and rules, it is recommended that a $250 penalty
be imposed upon Respondent for Respondent's one critical violation of rule 3-305.11, Food Code.
RECOMMENDED that the Department enter a final order which dismisses Counts 1, 3, 4, and 5 and confirms Count 2 of the Administrative Complaint, and imposes an administrative penalty in the amount of $250 for Respondent's critical violation of Rule 3-305.11, relating to improper storage of breadcrumbs discovered during the inspections conducted on March 2 and
May 3, 2011.
DONE AND ENTERED this 13th day of July, 2012, in Tallahassee, Leon County, Florida.
JAMES H. PETERSON, III
Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2012.
this Recommended Order are to the 2010 versions in effect at the time of the alleged violations.
3/ While accepting the offered excuse of active preparation, the fact that an opened bag of bread crumbs was found on the floor during both inspections has been considered in determining that the Department proved the critical violation alleged in Count 2 of the Administrative Complaint by clear and convincing evidence.
4/ If "a record is made for the purpose of preparing for litigation, its trustworthiness is suspect and should be closely scrutinized." King v. Auto Supply of Jupiter, Inc., 917 So. 2d 1015, 1019 (Fla. 1st DCA 2005) (quoting Professor Ehrhardt
5/ Critical violations are those violations that, if not corrected, are most likely to contribute to food-borne illness, cross-contamination, and other environmental hazards. Cf. Fla. Admin. Code R. 61C-1.005(5)(a).
Charles F. Tunnicliff, Esquire Department of Business
William L. Veach, Director Division of Hotels and Restaurants Department of Business
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.
