vs.
Respondent.
) Case No. 12-1107
A hearing was held pursuant to notice, on May 23, 2012, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, via video teleconferencing with sites in Gainesville and Tallahassee, Florida.
For Petitioner: Charles F. Tunnicliff, Esquire
Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate penalty that should be imposed.
Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, filed an Administrative Complaint alleging violations of the provisions of chapter 509, Florida Statutes, or the applicable rules governing the operation of public food establishments.
Respondent disputed the allegations in the Administrative Complaint and petitioned for a formal administrative hearing. The case was referred to the Division of Administrative Hearings on or about March 26, 2012. A formal hearing was set for
May 23, 2012. The hearing took place as scheduled.
At hearing, Petitioner presented testimony of two witnesses, Judy Hentges and Julianne Browning. Petitioner's Exhibits numbered 1 through 6 were admitted into evidence.
Official Recognition was requested of section 509.032(6), Florida Statutes; Florida Administrative Code Rules 61C- 1.001(14) and 61C-1.005; and pertinent portions of the United States Food and Drug Administration's Food Code (Food Code). The request was granted. Respondent presented the testimony of
Stella Caiozzo. Respondent's Exhibit 1 was admitted into evidence.
A Transcript consisting of one volume was filed on June 11, 2012. Petitioner timely filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. Respondent did not file a post-hearing submission.
References to Florida Statutes are to the 2010 version, unless otherwise indicated.
Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is the 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 an eating establishment located in Alachua, Florida. At all times material hereto, Respondent was licensed as a public food establishment by the Division.
Critical violations are those violations that are more likely to result in food-borne illness if not corrected. Non- critical violations are those violations that, if not corrected, are less likely to contribute to food-borne illness.
Judy Hentges has been employed by the Division for approximately 14 years and is a Senior Sanitation and Safety Specialist. Prior to working for the Division, she worked as a
manager for McDonald's for over 18 years. Ms. Hentges has received training in laws and rules regarding public food service and lodging, and continues to receive continuing education training on a monthly basis in this area. She is a Certified Food Manager and performs approximately 1,000 inspections annually.
Julianne Browning is employed by the Department as a Senior Sanitation and Safety Specialist. Ms. Browning has worked as an inspector for approximately 23 years. Prior to working with the Department, Ms. Browning worked as a server, a hostess, a bartender, a manager, an assistant manager of a hotel, and as a bar manager. Ms. Browning performed these functions while employed by Yellowstone National Park, Walt Disney World, Royal Caribbean Cruise Line, a Tallahassee hotel, and various restaurants. Upon gaining employment with the Department, Ms. Browning received training in the laws and rules pertaining to public food and lodging establishments.
On November 15, 2010, Ms. Hentges and another inspector, Ms. Gabbard, performed a routine inspection of Respondent's premises. During the inspection, Ms. Hentges prepared, signed, and issued an inspection report setting forth the violations she observed. The inspection reports are electronically prepared on a Personal Data Assistant by the
inspector. Respondent's owner, Stella (Burgetto) Caiozzo, was present and signed the inspection report indicating receipt.
Ms. Hentges informed the owner about the violations found, noted the violations on the inspection report, and notified Respondent that the violations must be corrected by November 16, 2010.
On November 17, 2010, Ms. Hentges performed a callback inspection of Respondent. During that inspection, she prepared and signed a callback inspection report, which was signed and received by Respondent's owner. At that time, Ms. Hentges made Respondent aware that all violations noted during the inspection needed to be corrected.
On March 7, 2011, Ms. Browning performed a routine inspection and a callback inspection of Respondent's premises. She prepared reports of these inspections setting forth the violations found and notified Respondent of these violations. Ms. Browning also made Respondent aware that all violations noted on the routine inspection needed to be corrected by May 8, 2011.
On May 10, 2011, Ms. Browning performed a callback inspection of Respondent's premises during which she prepared and signed an inspection report indicating that some of the violations noted on the March 7, 2011, inspection had not been corrected. Respondent's manager signed for the report.
Following the May 10, 2011 inspection, Ms. Browning recommended that the Division issue an Administrative Complaint.
On November 15, 2010, and again on March 7, 2011, the inspectors observed food (sausages) being cooled by a non- approved method. Ms. Browning described seeing pans of sausages stacked on top of each other covered with foil, with the temperature of the pans at 93 to 96 degrees Fahrenheit. This is a critical violation because if food is not cooled from 135 degrees Fahrenheit to 41 degrees Fahrenheit within 6 hours, harmful pathogens or toxins can begin to grow in the food.
On November 15, 2010, and again on March 7, 2011, the inspectors observed potentially hazardous (cold) food held at greater than 41 degrees. Ms. Browning described observing chicken stock on the counter at 70 degrees; observing meatballs at 54 degrees, ham at 55 degrees, sausages at 52 degrees, mozzarella at 48 degrees, and beef at 45 degrees on the pizza table; and observing tuna salad at 57 degrees, pasta salad at 58 degrees, egg salad at 57 degrees, potato salad at 56 degrees, boiled eggs at 66 degrees, eggplant salad at 56 degrees and melon at 59 degrees on the salad bar. This is classified as a critical violation.1/
On March 7, 2011, and again on May 10, 2011,
Ms. Browning observed potentially hazardous foods (hot) not held at 135 degrees Fahrenheit or above. She described finding two
pans of chicken on the stove at 121 to 122 degrees and buffet pizzas held at 90 to 128 degrees Fahrenheit. This is classified as a critical violation.2/
On March 23, 2010, a representative of Respondent completed DBPR Form HR 5022-090 entitled "Time as a Public Health Control Written Procedures" for using time control only (in lieu of temperature) to hold potentially hazardous foods. The time limit referenced on the form for the life of foods held utilizing time only as a public health control is 4 hours. The form indicates that the food establishment will use a dry eraser board for the pizza display case and pizza cooler. The form also indicates that the "buffet is from 11 a.m. until 3 p.m.," and that "all items will be discarded when the buffet closes at 3 p.m."
Ms. Caiozzo testified that in March 2011, the restaurant used time in lieu of temperature at all places where food was out or being stored. Ms. Caiozzo was out of the country during the May 2011, inspection. However, she testified credibly that there is a sign at the buffet area showing the time the food gets put out (11 a.m.) and when it comes off the buffet (3:00 p.m.) and that the sign has been there in the same spot since the restaurant opened. She further testified that the sign has been there all the time for two years.
Ms. Browning, however, testified that during the March inspection, she observed that at 2:00 p.m., the time on the pizzas was changed from 10:00 a.m. to 11:00 a.m. This is reflected on her March 7, 2011 and May 10, 2011, inspection reports as follows: "Observed potentially hazardous food held using time as a public health control with a time marking that exceeds the 4 hour limit. Pizzas at front counter. Time on pizzas was changed from 10am to 11am at 2pm. Food may not be served." Ms. Browning further testified that there was not a sign at the salad bar.
While Ms. Caiozzo's testimony was credible, she was not present for the May 10, 2011, inspection. Further,
Ms. Browning's observations regarding the change of times during her inspection are persuasive, especially in light of her noting this at the time she observed it.
On November 15 and 17, 2010, and again on March 7 and May 10, 2011, the inspectors observed processed ready-to-eat, potentially hazardous food (deli meat) held for more than 24 hours without having been properly date-marked after opening. This is a critical violation because the bacteria, listeria monocytogenes, is known to grow at temperatures greater than 41 degrees Fahrenheit, particularly in deli meat.
On March 7 and again on May 10, 2011, Ms. Browning observed potentially hazardous food (fish) thawed in standing
water. This is a critical violation because the freezing process does not destroy all of the pathogens present on the food. According to Ms. Browning, freezing food does not destroy all pathogens, and thawing fish in standing water gives the pathogens or toxins the opportunity to start growing again. The appropriate way to thaw the food is under cold, running water, as part of the cooking process, or in the microwave.
On March 7 and again on May 10, 2011, Ms. Browning observed that the hand wash sink was not accessible for employees at all times because there was a large container of water in the cook line hand sink. This is a critical violation because a lack of proper hand washing is the most common way for foodborne illnesses to be transmitted. According to
Ms. Browning, when hand wash sinks are unavailable or are not accessible at all times, employees are less likely to wash their hands.
On March 7 and again on May 10, 2011, Ms. Browning observed displayed food (lemons) not properly protected from contamination. This is a critical violation due to the risk that someone with a transmissible disease or sickness could sneeze or cough on the exposed food items, contaminating them and potentially spreading illness.
On March 7 and May 10, 2011, Ms. Browning observed boxes of food stored on the floor of both the walk-in freezer
(cooked eggplant) and the walk-in cooler (potatoes). This is a critical violation because the floors have already been contaminated, and the boxes become contaminated when they come into contact with the floor. When the contaminated boxes are then opened, the food inside is exposed and may also become contaminated.
On March 7 and again on May 10, 2011, Ms. Browning observed no currently Certified Food Manager on duty while four or more employees were engaged in food preparation. This is a critical violation because when four or more employees are present, there is usually a higher volume of food being prepared. A Certified Food Manager needs to be there to answer questions and to direct employees.
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 Division 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 Division may impose penalties for violations of chapter 509, Florida Statutes, 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.
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 & Fin. v.
Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Section 509.032(6) provides that the Division of Hotels and Restaurants shall adopt such rules as are necessary to carry out the provisions of chapter 509. Paragraph 1- 201.10(B) and chapters 2, 3, 4, 5, 6 and 7 of the United States Food and Drug Administration's Food Code (Food Code) have been incorporated by reference into the Department's rules governing public food establishments. Fla. Admin. Code R. 61C-1.001(14).
Through the Administrative Complaint, Respondent is alleged to have violated the following provisions of the Food Code, which read in pertinent part:
3-305.11
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.
* * *
3-306.11
Food Display. Except for nuts in the shell and whole, raw fruits and vegetables that are intended for hulling, peeling, or washing by the consumer before consumption, food on display shall be protected from contamination by the use of packaging; counter, service line, or salad bar food guards; display cases; or other effective means.
* * *
3-501.13
Thawing. Except as specified in paragraph
of this section, potentially hazardous food shall be thawed; (A) under refrigeration that maintains the food temperature at 41 degrees Fahrenheit or less, or (B) completely submerged under running water (1) at a water temperature of
70 degrees Fahrenheit or below, (2) with sufficient water velocity to agitate and float off loose particles in an overflow, and (3) for a period of time that does not allow thawed portions of ready-to-eat food to rise above 41 degrees Fahrenheit. . .
* * *
3-501.15
Cooling methods. (A) Cooling shall be accomplished in accordance with the time and temperature criteria specified under Section 3-501.14 by using one or more of the following methods based on the type of food being cooled: (1) Placing the food in shallow pans; (2) Separating the food into
smaller or thinner portions; (3) Using rapid cooling equipment; (4) Stirring the food in a container placed in an ice water bath;
(5) Using containers that facilitate heat transfer; (6) Adding ice as an ingredient; or (7) Other effective methods. . . .
* * *
3-501.16(A)(1)
Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under Section 3- 501.19, and except as specified in paragraph
(B) of this Section, potentially hazardous food shall be maintained: (1) At 135 degrees Fahrenheit or above, except that roasts cooked to a temperature and for a time specified in paragraph 3-401.11(B) or reheated as specified in paragraph 3- 403.11(E) may be held at a temperature of
130 degrees Fahrenheit or above; or (2) at a temperature specified in the following:
(A) 41 degrees Fahrenheit or less.
* * *
3-501.17(B)
Except as provided in paragraphs (D) and
(E) of this section, refrigerated, ready-to- eat, potentially hazardous food prepared and packaged by a food processing plant shall be clearly marked, at the time the original container is opened in a food establishment and if the food is held for more than 24 hours, 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 in paragraph
(A) of this section; and (1) The day the original container is opened in the food establishment shall be counted as day 1; and
(2) The day or date marked by the food establishment may not exceed a manufacturer's use-by date if the
manufacturer determined the use-by date on food safety.
* * *
5-205.11(A)
A hand washing lavatory shall be maintained so that it is accessible at all times for employee use.
Florida Administrative Code Rule 61C-4.023(1) requires food establishments to have a Certified Food Manager present while four or more employees are engaged in food preparation.
The Division proved by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C- 4.023(1) in that Respondent failed to have a food manager present while four or more employees were engaged in food preparation.
The Division proved by clear and convincing evidence that Respondent violated rule 3-501.15, Food Code, in that
Ms. Browning observed pans of sausages stacked on the counter to cool, rather than cooling the food using an approved method.
The Division proved by clear and convincing evidence that Respondent violated rule 3-306.11, Food Code, in that
Ms. Browning observed sliced lemons left uncovered and unprotected from contamination.
The Division proved by clear and convincing evidence that Respondent violated rule 3-306.11, Food Code, in that Ms. Browning observed thawing fish in standing water.
The Division proved by clear and convincing evidence that Respondent violated rule 3-305.11, Food Code, in that
Ms. Browning observed the storage of boxes of food on the floor.
The Division proved by clear and convincing evidence that Respondent violated rule 5-205.11(A), Food Code, because Respondent failed to keep the cook line hand sink accessible for employee use.
The Division proved by clear and convincing evidence that Respondent violated rule 3-501.16(A), Food Code, in that potentially hazardous cold food was held at greater than 41 degrees Fahrenheit, and potentially hazardous hot foods were not held at 135 degrees Fahrenheit or above.
The Division met its burden of proving that Respondent violated rule 3-501.17(B), Food Code, in that Respondent failed to date mark deli meats upon opening the packaging.
Respondent was previously disciplined for violations of the Food Code and laws subject to penalty under chapter 509, Florida Statutes. Two Final Orders were issued by the Division involving temperature violations. One of the Final Orders was issued on January 27, 2011, which is within the 24 months preceding the date the instant Administrative Complaint; the
other Final Order was dated October 21, 2009. Therefore, pursuant to Florida Administrative Code Rule 61C-1.005(5)(d) and (e), the violation contained in the Final Order issued
January 2011 is considered a second offense. However, because more than 24 months have elapsed since the Final Order issued in October 2009, the violations found in the instant case are not considered a third offense.
In its Proposed Recommended Order, the Division proposes a suspension of two consecutive days. However, a suspension is outside the penalty guidelines set forth in rule 61C-1.005(6) to be imposed against licensees for critical violations. The stated guideline for second offenses of critical violation is $500 to $1,000 per offense.
Respondent is guilty of eight critical violations.
These violations constitute a "second violation" under the penalty guidelines. This is a small, family-owned business. Accordingly, a fine of $500 per offense is appropriate.
That the Division enter a final order which confirms the violations found, and imposes an administrative fine in the amount of $4,000 due and payable to the Division of Hotels and
Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the Final Order is filed with the Agency Clerk.
Tallahassee, Leon County, Florida.
Barbara J. Staros Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2012.
1/ Inspector Browning did not testify that this violation is considered critical or to the public health reasons for the violation. However, critical violations are denoted on the Division's inspection forms in evidence by use of an asterisk.
2/ Inspector Browning did not testify that this violation is considered critical or to the public health reasons for the violation. However, critical violations are denoted on the Division's inspection forms in evidence by use of an asterisk.
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.
