Scott Boyd of the Division of Administrative Hearings.
For Petitioner: Charles F. Tunnicliff, Esquire
The issue in this case is whether on January 26, August 27, and August 28, 2012, Respondent was in compliance with the food safety requirements of section 509.032, Florida Statutes, and
implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, and if not, what penalty is appropriate.
On or about September 6, 2012, Petitioner served an Administrative Complaint against the food service establishment license of St. Johns Seafood and Oyster Bar, Inc., alleging violations of provisions of chapter 509, Florida Statutes, and implementing rules relating to food safety and facility licensure. Respondent requested an informal administrative hearing pursuant to section 120.57(2), Florida Statutes. In that proceeding, Respondent began to contest certain factual allegations in the complaint. The hearing officer advised Respondent that the hearing would need to be heard at the Division of Administrative Hearings and terminated the informal hearing. The matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge on January 17, 2013.
Based upon the parties’ joint response to the Initial Order, the case was noticed for hearing by video teleconference on March 6, 2013, at locations in Jacksonville and Tallahassee, Florida. No one appeared on behalf of Respondent at the noticed time. The hearing was recessed for 20 minutes, but Respondent did not appear and the hearing was resumed. Petitioner
presented the testimony of Ms. Iliana Espinosa-Beckert, an inspector for Petitioner, and offered Exhibits P-1 through P-6, which were admitted into evidence.
The one-volume Transcript was filed on March 22, 2013.
Petitioner submitted a Proposed Recommended Order on April 1, 2013, which was considered.
The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules.
St. Johns Seafood and Oyster Bar, Inc., (St. Johns) is a licensed permanent public food service establishment operating at 7546 Beach Boulevard in Jacksonville, Florida. Its license must be renewed annually.
Ms. Iliana Espinosa-Beckert has been employed by the Division for about five and a half years. She is a sanitation and safety specialist with the Division. She has had training, including formal initial training, on-the-job training, and monthly in-house training, in sanitation and inspection. She is a certified food manager.
On January 26, 2012, Inspector Espinosa-Beckert conducted a food service inspection of St. Johns. Inspector Espinosa-Beckert prepared a Food Service Inspection Report,
DBPR Form HR 5022-015, using her personal data assistant (PDA) to record the violations that she observed during the inspection. The manager of the restaurant, Mr. Robert Rukab, acknowledged receipt of the report on behalf of St. Johns.
During the January inspection, Ms. Espinosa-Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that shrimp, fish, scallops, oysters, and clams had a temperature of
60 degrees Fahrenheit at the seafood reach-in cooler (seafood cooler), and recorded this on her report.
The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015.
Ms. Espinosa-Beckert also observed during the January inspection that the seafood cooler was incapable of maintaining potentially hazardous food at proper temperatures. She noted on her report that there was no thermometer installed inside the seafood cooler, but that her measurements indicated that all of the seafood was at a temperature of 60 degrees Fahrenheit.
On August 27, 2012, Ms. Espinosa-Beckert conducted another inspection of St. Johns. She again prepared an inspection report on DBPR Form HR 5022-015 using her PDA to
record the violations that she observed. Ms. Espinosa-Beckert made Mr. Rukab aware of the violations she found, but Mr. Rukab was upset and refused to acknowledge receipt of the report on behalf of St. Johns.
During the August 27, 2012, inspection, Ms. Espinosa- Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that cheese, chicken, and pasta were at 49 degrees Fahrenheit in a reach-in cooler in a food preparation area near the cook line (prep-line cooler), and recorded this on her report, along with a notation that it was a repeat violation.
Inspector Espinosa-Beckert testified that this was a true “cold-holding” violation. She stated that her measurements of the temperature of the food were taken after the food had gone through the cooling period that is allowed for food to reach the proper temperature.
Ms. Espinosa-Beckert noted in her report that the prep-line cooler was incapable of maintaining potentially hazardous food at proper temperatures. She recorded that the ambient temperature in the prep-line cooler was 46 degrees Fahrenheit and that foods were at a temperature of 49 degrees Fahrenheit, noting that this was a repeat violation.
During the August 27, 2012, inspection, Ms. Espinosa- Beckert also observed that St. Johns was operating without a
current license, because its license had expired on June 1, 2012. She noted this in her report.
Ms. Espinosa-Beckert also observed both live and dead roaches on the premises.1/ She scheduled a call-back inspection for the following day, August 28, 2012.
Inspector Espinosa-Beckert prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on August 28, 2012, using her PDA to record the violations that she observed. Mr. Rukab apologized for his refusal to sign the previous day, and acknowledged receipt of the report on behalf of St. Johns.
On August 28, 2012, Ms. Espinosa-Beckert observed that the prep-line cooler thermometer now read 35 degrees and that cheese was 39 degrees Fahrenheit and pasta was at 40 degrees, within approved temperature limits. She noted this on the first page of her report. The license had not been renewed since the previous day.
The Division served an Administrative Complaint against St. Johns for the above violations on or about September 6, 2012.
On both January 26 and August 27, 2012, St. Johns had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit.
While evidence was presented that on different dates two individual coolers were incapable of maintaining potentially hazardous food at proper temperatures, there was also evidence that on these occasions there was additional adequately cooled space available which could have been utilized to meet the demands of St. Johns’ operations. At hearing, Ms. Espinosa- Beckert testified as follows:
Q: Did he have any other cooler available where he could have moved the food?
A: He had the –- yes, he did. He has the other, which is the seafood cooler, which I don’t think they put anything ready- to-eat in that one. But he has a two-door upright cooler also on the opposite side of this one I made a violation, and that was OK also. So he could have moved the food.
The evidence did not show that on either January 26, 2012, or August 27, 2012, the cooling equipment available at St. Johns was insufficient in number or capacity to maintain all food at required temperatures.
On August 27 and 28, 2012, St. Johns was operating without a license, as its old license had been expired for more than 60 days.
Additional evidence introduced at hearing and considered solely for purposes of penalty calculation showed that St. Johns had two previous disciplinary Final Orders
entered within 24 months of the Administrative Complaint issued in this case.
The first of these was a Stipulation and Consent Order signed by Mr. Rukab on behalf of St. Johns on March 9, 2011, and filed on March 24, 2011, in Case No. 2011-02147. The Order was in settlement of an Administrative Complaint issued on
February 23, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 27, 2010, November 23, 2010, November 24, 2010, and February 8, 2011. Some of the allegations would have constituted critical violations.
The second of the previous disciplinary orders was a Final Order on Waiver filed on August 10, 2011. Respondent had been served an Administrative Complaint and Election of Rights on June 1, 2011, but had failed to respond by June 22, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 26, 2011, and
May 3, 2011. The Final Order on Waiver imposed a fine of $4,400 for several violations, some of which were critical violations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the responsibility to inspect public food service establishments to enforce the provisions of chapter 509, Florida Statutes, (2012)2/ pursuant to
section 509.032(2)(c).
As a licensed public food service establishment, Respondent is subject to inspection and to the requirements of chapter 509 and implementing rules.
Petitioner has the burden of proof to show, by clear and convincing evidence, that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence has been defined as requiring:
[T]hat the 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 in 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.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Disciplinary actions may be based only upon those offenses specifically alleged in the Administrative Complaint. See Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129, 133 (Fla. 5th
DCA 1987); Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984).
Section 509.032(2)(d) requires Petitioner to adopt and enforce standards and requirements for obtaining, storing, preparing, processing, serving, or displaying food to protect the public from food-borne illness in public food service establishments.
Section 509.032(6) gives the Division authority to adopt rules to carry out the provisions of chapter 509.
The Division has adopted Florida Administrative Code Rule 61C-1.001(14),3/ which incorporates by reference various provisions of the 2001 U.S. Food and Drug Administration Food Code (Food Code), including paragraph 1-201.10(B), all of chapters 2 through 7, Annex 3, Annex 5, the 2001 Food Code Errata Sheet, and the Supplement to the 2001 Food Code
(August 29, 2003). The Food Code and the 2003 Supplement have been in effect in Florida since at least February 27, 2005, more than five years ago.
Food Code Rule 3-501.16(A), as amended by the supplement, is entitled "Potentially Hazardous Food, Hot and Cold Holding." It is marked as a critical item and provides:
Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under paragraph 3-501.19, and except as specified in
paragraph (B) of this section, POTENTIALLY HAZARDOUS FOOD shall be maintained:
At 57°C (135°F) 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 54°C (130°F) or above; or
At a temperature specified in the following:
5°C (41°F) or less; or
7°C (45°F) or between 5°C (41°F) and 7°C (45°F) in existing refrigeration EQUIPMENT that is not capable of maintaining the FOOD at 5°C (41°F) or less if:
The EQUIPMENT is in place and in use in the FOOD ESTABLISHMENT, and
Within 5 years of the REGULATORY AUTHORITY'S adoption of this Code, the EQUIPMENT is upgraded or replaced to maintain FOOD at a temperature of 5°C (41°F) or less.
Food Code Rule 1-201.10(B)(65) defines the term "Potentially Hazardous Food" in pertinent part as follows:
"Potentially hazardous food" means a FOOD that is natural or synthetic and that requires temperature control because it is in a form capable of supporting:
The rapid and progressive growth of infectious or toxigenic microorganisms;
The growth and toxin production of Clostridium Botulinum; or
In raw shell EGGS, the growth of Salmonella Enteritidis.
"Potentially hazardous food" includes an animal FOOD (a FOOD of animal origin) that is raw or heat-treated; a FOOD of plant origin that is heat-treated or consists of raw seed sprouts; cut melons; and garlic-in- oil mixtures that are not modified in a way that results in mixtures that do not support growth as specified under subparagraph (a) of this definition.
The testimony of Inspector Espinosa-Beckert indicated that on January 26, 2012, Respondent had potentially hazardous food, including shrimp, fish, scallops, oysters, and clams, in the seafood cooler that was not being maintained at or below
41 degrees Fahrenheit.
The testimony of Inspector Espinosa-Beckert indicated that on August 27, 2012, Respondent had potentially hazardous food, including cheese, chicken, and pasta, in the prep-line cooler that was not being maintained at or below 41 degrees Fahrenheit.
Inspector Espinosa-Beckert is a trained professional and her temperature measurements were unrefuted. The reports prepared by Ms. Espinosa-Beckert at the time of the inspections corroborate her testimony.
Petitioner proved by clear and convincing evidence that Respondent violated Food Code Rule 3-501.17(A), as incorporated by reference in rules of the Division, on January 26, 2012, and August 27, 2012.
Food Code Rule 4-301.11 is entitled “Cooling, Heating, and Holding Capacities.” This rule provides:
EQUIPMENT for cooling and heating FOOD, and holding cold and hot FOOD, shall be sufficient in number and capacity to provide FOOD temperatures as specified under Chapter 3.
Inspector Espinosa-Beckert’s January 26, 2012, report indicated that a seafood cold-holding unit was incapable of maintaining proper temperatures. Her August 27, 2012, report stated that a prep-line cooling unit was incapable of maintaining proper temperatures, and noted an ambient temperature of 46 degrees Fahrenheit in that cooler.
However, as its title suggests, Food Code Rule 4-
301.11 is not necessarily violated simply because a particular cooling unit is broken or unable to maintain adequate temperatures. Rather, this Food Code provision by its terms takes a broader perspective. It assesses the sufficiency of the equipment in the restaurant as a whole. The rule requires a calculation as to whether the restaurant has adequate cold- holding equipment with enough capacity to meet the cooling demands of the operation. The rule thus explicitly references both the number and capacity of the restaurant’s equipment. If the cooling demands of the operation can be met by simply moving the food into other available space, there is no deficiency in the restaurant’s cooling equipment capacity as regulated by Food
Code Rule 4-301.11. This interpretation of the Cooling, Heating, and Holding Capacities rule has been adopted by the Division. Dep’t of Bus. & Prof’l Reg. v. Jazzy Dog Cafe, Case No. 10-0907, 2010 Fla. Div. Adm. Hear. LEXIS 50 (Fla. DOAH
July 12, 2010; Fla. DBPR Sept. 21, 2010)(evidence failed to establish that Respondent did not have sufficient equipment in number and capacity where affected food was moved to other coolers). See also Dep’t of Bus. & Prof’l Reg. v. Soup Swift, Case No. 11-1410, 2011 Fla. Div. Adm. Hear. LEXIS 865 (Fla. DOAH
Aug. 1, 2011)(no violation where licensee had another working cold storage unit with sufficient capacity to hold all food at proper temperatures).
Even if the Cooling, Heating, and Holding Capacities rule could reasonably be construed otherwise, so as to regulate the cooling capability of a particular holding unit in isolation, without regard to the number or capacity of the cooling equipment in the restaurant, any such ambiguity would have to be construed in favor of Respondent. Liner v. Workers Temp. Staffing, 990 So. 2d 473, 477 (Fla. 2008)(even though civil statute was remedial in nature, and would normally be liberally construed, civil penalties of $1,000 for violation required any ambiguity to be interpreted in favor of Appellee); Beckett v. Dep't of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st
DCA 2008)(agency discretion limited in interpreting penal statutes; ambiguity must be interpreted in favor of licensee).
It is Petitioner’s burden to establish all facts necessary to show violation of a Food Code provision by clear and convincing evidence. Petitioner did clearly show food was not maintained at proper temperatures on both January 26, 2012, and August 27, 2012, and presented evidence that one cooler was not functioning properly on the first date and another cooler was not functioning properly on the second. However, there was no evidence that other cold-holding equipment still working properly on the dates of the inspections would have been insufficient, because of location or capacity, to meet the requirements of St. Johns’ operations. In fact, the Division’s witness indicated that St. Johns “could have moved the food.” Respondent’s failure to move food to a properly functioning unit to keep it adequately cooled was a violation of the rule governing required temperatures for potentially hazardous food, as discussed earlier, but not of the Food Code provision requiring a licensee to have sufficient cooling equipment capacity.
Petitioner failed to prove by clear and convincing evidence that on either January 26, 2012, or August 27, 2012, Respondent’s cooling equipment was not sufficient in number or
capacity to maintain the food temperatures provided in chapter 3, in violation of rule 4-301.11.
Section 509.241, Florida Statutes, is entitled “Licenses required; exceptions.” It provides:
LICENSES; ANNUAL RENEWALS. - Each public lodging establishment and public food service establishment shall obtain a license from the division. Such license may not be transferred from one place or individual to another. It shall be a misdemeanor of the second degree, punishable as provided in s.
775.082 or s. 775.083, for such an establishment to operate without a license. Local law enforcement shall provide immediate assistance in pursuing an illegally operating establishment. The division may refuse a license, or a renewal thereof, to any establishment that is not constructed and maintained in accordance with law and with the rules of the division. The division may refuse to issue a license, or a renewal thereof, to any establishment an operator of which, within the preceding
5 years, has been adjudicated guilty of, or has forfeited a bond when charged with, any crime reflecting on professional character, including soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in controlled substances as defined in chapter 893, whether in this state or in any other jurisdiction within the United States, or has had a license denied, revoked, or suspended pursuant to
s. 429.14. Licenses shall be renewed annually, and the division shall adopt a rule establishing a staggered schedule for license renewals. If any license expires while administrative charges are pending against the license, the proceedings against the license shall continue to conclusion as if the license were still in effect.
APPLICATION FOR LICENSE. - Each person who plans to open a public lodging establishment or a public food service establishment shall apply for and receive a license from the division prior to the commencement of operation. A condominium association, as defined in s. 718.103, which does not own any units classified as vacation rentals under s. 509.242(1)(c) is not required to apply for or receive a public lodging establishment license.
DISPLAY OF LICENSE. - Any license issued by the division shall be conspicuously displayed in the office or lobby of the licensed establishment. Public food service establishments which offer catering services shall display their license number on all advertising for catering services.
While the Administrative Complaint cites a violation of subsection (2) of section 509.241, it is subsection (1) that makes it a violation of the statute for a public food service establishment to “operate without a license” and provides that licenses “shall be renewed annually.” See, e.g., Dep’t of Bus.
& Prof’l Reg. v. Ozamori Mobile Kitchen, Case No. 12-3535, 2013 Fla. Div. Adm. Hear. LEXIS 53 (Fla. DOAH Jan. 3, 2013;
Fla. DBPR Jan. 23, 2013)(operating under expired license is violation of section 509.241(1), as charged in Administrative Complaint). Subsection (1) appears to be violated whenever a license has expired. Subsection (2) instead addresses persons who plan to open a public food service establishment and
requires that a license be obtained prior to the commencement of operation.
While the statute’s wording and organization might be improved, it is quite clear that operating after a license has expired is prohibited. To the extent that the specification could be said to be technically deficient for alleging a violation of subsection (2) rather than subsection (1), it is well-settled that an administrative complaint need not be cast with the degree of technical nicety which would be required in a criminal prosecution. Libby Investigations v. Dep't of State, 685 So. 2d 69, 71 (Fla. 1st DCA 1996). An administrative complaint need only state the acts complained of with sufficient specificity to allow a licensee a fair chance to prepare a defense. Seminole Cnty. Bd. of Cnty. Comm’rs v. Long,
422 So. 2d 938, 940 (Fla 5th DCA 1982), rev. denied, 431 So. 2d 989 (Fla. 1983). The allegation in the complaint that Respondent was operating with an expired food service license was clear. Any error in the designation of the applicable subsection of the statute did not prejudice Respondent and is a harmless error under the circumstances.
The testimony and admitted inspection report of Inspector Espinosa-Beckert clearly indicated that on August 27 and August 28, 2012, Respondent was operating without a current license. As clearly indicated by business records of the
Division and the testimony of Inspector Espinosa-Beckert, Respondent’s license had expired more than 60 days before, on June 1, 2012.
Petitioner proved by clear and convincing evidence that Respondent was in violation of section 509.241(1) on August 27 and August 28, 2012.
Section 509.261(1) provides that any public food service establishment that operates in violation of chapter 509, or implementing rules, is subject to fines not to exceed $1,000 per offense, and possible suspension or revocation of its license.
The Division has adopted rule 61C-1.005(6), establishing disciplinary guidelines for the imposition of penalties for violations of the Food Code. It provides in pertinent part:
(6) 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.
* * *
(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.
1st offense - Administrative fine of
$250 to $500.
2nd offense - Administrative fine of
$500 to $1,000.
3rd and any subsequent offense - Administrative fine of $750 to $1,000, license suspension, or both.
* * *
(e) Operating a public lodging establishment or public food service establishment without a license or with a license expired for more than 60 days.
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.
1st offense – Administrative fine of
$250 to $500.
2nd offense – Administrative fine of
$500 to $1,000 or an order to close.
3rd and any subsequent offense – Administrative fine of $750 to $1,000 or an administrative fine of $750 to $1,000 and an order to close.
Rule 61C-1.005(5)(a) provides in relevant part that: '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.
The violations of Food Code Rule 3-501.16(A) were determined by the Division to pose a significant threat to the public health, safety, or welfare and were identified as critical on DBPR Form HR-5022-015, the Food Service Inspection Report. They were therefore critical violations within the meaning of rule 61C-1.005(5)(a).
Rule 61C-1.005(5)(e) defines "third and any subsequent offense" to mean
a violation of any law subject to penalty under chapter 509, F.S., after two or more disciplinary Final Orders involving the same licensee has been filed with the Agency Clerk within the 24 months preceding the date the current administrative complaint is issued, even if the current violation is not the same as the previous violation.
In Kaplan v. Dep’t of Health, 8 So. 3d 391 (Fla. 5th DCA 2009), it was held that prior discipline imposed as a result of a Stipulation and Consent Order could constitute a prior offense for purposes of penalty calculation, even in the absence of a specific finding of statutory violation.
There are therefore two Final Orders in disciplinary cases involving Respondent filed within 24 months of the September 6, 2012, Administrative Complaint issued in this case. The first is Case No. 2011-02147, for which the Stipulation and Consent Order was filed on March 24, 2011. The second is Case No. 2011-05345, for which the Final Order on Waiver was filed on
August 10, 2011. The violations proven here are therefore "third and any subsequent offenses" within the meaning of rule 61C-1.005(5)(e).
Respondent is subject to an administrative fine of
$750 to $1,000, license suspension, or both, for the critical violation. Respondent is also subject to an administrative fine of $750 to $1,000 or an administrative fine of $750 to $1,000 and an order to close on the expired license violation.
Rule 61C-1.005(7) sets forth aggravating or mitigating factors which may be considered in application of the penalty guidelines. None of the factors listed in the rule are present in this case to the extent necessary to justify a penalty outside of the standard penalty range.
In light of the earlier disciplinary orders and the violations proven here, a fine of $750 for the critical violation and $750 for operating with a license expired for more than 60 days, for a total fine of $1,500, is reasonable.
