DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Case No. 13-3848
Respondent.
Pursuant to notice, a final hearing was held in this case on October 28, 2013, in Brooksville, Florida, before Suzanne Van Wyk, a designated Administrative Law Judge of the Division of
Administrative Hearings.
Whether Respondent violated food safety standards established by section 509.032, Florida Statutes, and the
implementing rules as charged in the Administrative Complaint and, if so, the appropriate penalty.
On July 16, 2013, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), issued an Administrative Complaint against Respondent, Richie Cheesesteak. The Administrative Complaint alleged violations of provisions of chapter 509 and implementing rules relating to food safety, specifically related to the condition of the reach-in cooler gasket, storage of knives between equipment, improper labeling of food items not in their original container, and no proof of food manager certification.
Respondent timely executed an Election of Rights form and requested a formal administrative hearing involving disputed issues of material fact.
On October 2, 2013, the Division referred the case to the Division of Administrative Hearings to conduct a formal hearing. The final hearing was scheduled for October 28, 2013, and commenced as scheduled.
At the final hearing, the Division presented the testimony of Nick Roff, Sanitation and Safety Specialist for the Division. The Division offered Exhibits P-1 through P-3, which were received into evidence. Respondent testified on his own behalf
and offered Exhibits R-1; R-2(a), (b), and (c); and R-3(a), (b), and (c), which were received into evidence.
The one-volume Transcript was filed on November 18, 2013.
The parties timely filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
All statutory references are to Florida Statutes (2012).
All references to Florida Administrative Code Rule 61C-1.001 are to the rules which took effect April 18, 2012, and all references to Florida Administrative Code Rule 61C-1.005 are to the rules which took effect January 1, 2013. All references to the Food Code are to the 2009 U.S. Food and Drug Administration Food Code (Food Code).
At all times material hereto, Richie Cheesesteak was owned and operated by Richard Fascenda, as a licensed permanent public food-service establishment located at 6191 Deltona Boulevard, Spring Hill, Florida. Mr. Fascenda holds License No. 3700896 to operate Richie Cheesesteak.1/
Mr. Fascenda is the owner/operator of Richie Cheesesteak, as well as the only cook.
The Division is responsible for monitoring and inspecting licensed food-service establishments to ensure that
they comply with the standards set forth in relevant statutes and rules, and the Food Code.
Initial Inspection
On April 16, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food-service inspection of Richie Cheesesteak.
On the date of the inspection, Mr. Roff had been employed by the Division for approximately three months and was still under probation. Mr. Roff had no experience in the food- service industry prior to his employment with the Division.
Mr. Roff received training from the Division in the laws relating to food service, and has become certified as a food manager. The Division additionally provides monthly in-house training which Mr. Roff has attended.
During his probationary period, Mr. Roff accompanied his senior inspector on food-service establishment inspections, observing how the inspector conducted inspections, identified violations, and provided corrective actions. As part of his training, Mr. Roff was also “shadowed” by his senior inspector as Mr. Roff conducted inspections. On the date of the final hearing, Mr. Roff had conducted approximately 600 restaurant inspections.
Cited Violations
License and Certification
On April 16, 2013, Mr. Roff prepared an Inspection Report noting a total of 13 alleged violations of the standards set forth in applicable statutes, administrative rules, and the Food Code.
Respondent was cited for an expired license, a high priority violation which was remedied on-site during the inspection.
Among the other violations Mr. Roff noted in his Inspection Report was Respondent‟s failure to produce proof of a food manager certificate.
Section 509.039 provides for a Food Manager Certification Program to ensure all managers of food-service establishments have a demonstrated knowledge of basic food protection practices. The statute further requires that “[a]ll public food-service establishments must provide the division with proof of food-service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment.” Id.
In 2008, Respondent was an assistant manager for Boyz- N-Burgers, operated by McClain Sonic‟s, and was certified as a food manager at that time. On the date of inspection, Respondent could not produce a copy of his certificate and
explained that the certificate would be on file with his former corporate employer.
A food manager certificate expires five years after certification.
A violation of section 509.039 is designated by the Division as an intermediate priority violation.
Reach-in Cooler Gasket
Among the violations Mr. Roff noted was that the gasket on the reach-in cooler was both torn and soiled.
Food Code Rule 4-501.11(B) provides, “Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturer‟s specifications.”
A torn or otherwise damaged cooler gasket can cause cross-contamination of food and prevent the storage of foods at the required temperature.
Respondent‟s reach-in cooler is at least 30 years old.
Respondent did not testify that the gasket had ever been replaced, although he did state that it has been “siliconed over” on several occasions.
Respondent admitted at final hearing that the reach-in cooler gasket was torn in one place. Respondent denied that the gasket was soiled, explaining that there might have been some food spilled on it during lunch and the inspection was conducted
right after lunch. Respondent insisted that he wipes down the gasket every day.
Violation of rule 4-501.11(B) is designated by the Division as a basic violation.
Storage of Utensils
Among the other violations observed by Mr. Roff was a knife stored between two pieces of kitchen equipment.
Food Code Rule 3-304.12 provides, in pertinent part, as follows:
During pauses in FOOD preparation or dispensing, FOOD preparation and dispensing UTENSILS shall be stored:
* * *
(C) On a clean portion of the FOOD preparation table or cooking EQUIPMENT only if the in-use UTENSIL and the FOOD-CONTACT surface of the FOOD preparation table or cooking EQUIPMENT are cleaned and SANITIZED at a frequency specified under
subsections 4-602.11 and 4-702.11.
* * *
(F) In a container of water if the water is maintained at a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) and the container is cleaned at a frequency specified under subparagraph 4-602.11(D)(7).
Respondent admitted that a knife was stored in the crack between two pieces of kitchen equipment when Mr. Roff made his initial inspection.
Violation of rule 3-304.12 is designated by the Division as a basic violation.
Improperly Marked Containers
Mr. Roff also observed “cookline bottles” stored in squeeze bottles which were not labeled as to their contents.
Food Code Rule 3-302.12 reads as follows:
Except for containers holding FOOD that can be readily and unmistakably recognized such as dry pasta, working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD.
Respondent keeps two bottles on the cookline, one for oil and one for vinegar. Respondent is the only cook. Respondent testified that he has the bottles marked “oil” and “vinegar” with black marker. He introduced a photograph of the bottles marked as such, but the photograph was taken subsequent to the callback inspection and is not accepted as evidence of the condition of the bottles on the day in question.
Mr. Fascenda testified that during the inspection, he showed the bottles to Mr. Roff and pointed out the hand-labeling, but admitted that Mr. Roff could not see the wording because it rubs off easily.
Mr. Roff testified he did not recall seeing any labeling on the bottles.
Violation of rule 3-302.12 is designated by the Division as a basic violation.
Mr. Roff walked through the violations with Respondent, who signed the Inspection Report on April 16, 2013. The Inspection Report noted that a follow-up inspection was required and that the violations must be corrected by June 16, 2013.
Callback Inspection
On June 17, 2013, Mr. Roff performed a callback inspection at Richie Cheesesteak.
Mr. Roff observed that seven of the violations noted in the April 16, 2013, Inspection Report had been corrected. However, the violations detailed above –- gasket on reach-in cooler torn and soiled; knife stored between kitchen equipment; cookline bottles unlabeled; and no proof of food manager training –- were not corrected.
Mr. Roff prepared a Callback Inspection Report, which was signed by Respondent. The Callback Inspection Report recommended filing an Administrative Complaint.
Petitioner introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code.
Owner‟s Response
Certification
Respondent maintained it would be impossible to produce his food manager certificate because it was retained by his employer in 2008. Respondent was clearly frustrated with Mr. Roff‟s unwillingness to accept the explanation given at the first inspection and was indignant at being fined for lack of food manager certification following the callback inspection.
Respondent‟s explanation that he was previously certified but that the certificate was retained by his former employer is not a defense. The statute clearly requires production of the food manager certificate when the Division inspects the manager‟s food-service establishment.
Following the callback inspection, Respondent obtained a Food Manager Certificate, which was introduced at final hearing.
Reach-in Cooler Gasket
Respondent argued that if the gasket was not functioning, the reach-in cooler would not be maintaining the appropriate temperature, which it was when tested upon inspection.
Respondent‟s argument is not a defense. Keeping food at the proper temperature is only one of the aims of the rule. The other is to prevent cross-contamination of food in the
cooler with substances on the gasket, whether they are foods spilled thereon or bacteria growing in a torn gasket.
Respondent further argues that cross-contamination is not an issue since he is the sole operator and cook. Cross- contamination of foods in the reach-in cooler is not a function of how many different employees use the cooler, but rather the condition in which it is kept.
Respondent testified that, since the callback inspection, he “siliconed over” the gasket to seal it and improve its appearance. He produced before and after photographs of the gasket at final hearing. Neither picture is evidence of the condition of the gasket upon inspection,since they were taken approximately two weeks before the hearing. If anything, the “before” picture tends to support the Division‟s case that the gasket was torn and soiled upon inspection.
Storage of Utensils
Respondent admitted that a knife was stored between two pieces of kitchen equipment on the date of the first inspection. But, he maintained that was an accident and he does not regularly store knives that way.
Improperly Marked Containers
Respondent first argued that his oil and vinegar bottles were labeled, although in marker, and he should not be
held in violation. The evidence shows that the labels were unrecognizable when the inspections occurred.
Respondent next argued that the following facts should be taken into consideration when determining whether he violated the rule. First, there are only two bottles –- oil and vinegar. Accidental mixing of their contents would not create a health hazard or threat. Second, Respondent is the only cook, so mixing the contents is unlikely. Third, the cookline is separated from the cleaning area. Thus the likelihood of mixing the contents of the cookline bottles with bleach or another cleaning product is minimal.
While Respondent‟s arguments are no defense, they may be considered mitigating factors.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).
The Burden and Standard of Proof
The Division bears the burden of proving the specific allegations of fact that support the charges alleged in the Administrative Complaint by clear and convincing evidence.
§ 120.57(1)(j), Fla. Stat.; Dep‟t of Banking & Fin., Div. of
Sec. & Inv. Prot. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Dep‟t of Ins. and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires more proof than a „preponderance of the evidence‟ but less than „beyond and to the exclusion of a reasonable doubt.‟” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof
entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear and convincing evidence requires that 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.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence
is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
The evidence in this case is clear and convincing that, on the dates of the initial and callback inspections, the condition of the gasket on Respondent‟s reach-in cooler was both torn and soiled, a knife was improperly stored in cracks between kitchen equipment, cookline bottles were not properly labeled as to contents, and Respondent did not produce proof of his food manager‟s certificate.
The undersigned concludes that Respondent violated section 509.039 and Food Code Rules 3-302.12, 3-304.12, 4- 501.11, and 4-601.11.
Appropriate Penalty
Florida Administrative Code Rule 61C-1.005(6) 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.
* * *
Basic violation.
1st offense - Administrative fine of
$150 to $300.
* * *
Intermediate violation.
1st offense – Administrative fine of
$200 to $400.
Florida Administrative Code Rule 61C-1.005(7) establishes aggravating and mitigating factors that may be applied in specific cases.
Petitioner introduced no evidence of aggravating factors in this case.
The undersigned does not find Respondent‟s arguments in this case compelling enough to constitute mitigating factors.
The penalty of $800 proposed by the Division represents the lowest penalty in the range of penalty for each violation and is appropriate in this case.
RECOMMENDED that Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order:
DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2013.
1/ For purposes of simplification, Richie Cheesesteak and Richard Fascenda may be referred to herein alternately as “Respondent.”
Charles F. Tunnicliff, Esquire Department of Business and
J. Layne Smith, General Counsel Department of Business and
William L. Veach, Director 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.
