STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

vs.

Petitioner,

Case No. 14-3495

ZORBA'S PIZZA RESTAURANT, INC., d/b/a ZORBA'S GREEK RESTAURANT,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton II of the Division of Administrative Hearings heard this case on September 16, 2014, by video teleconference at sites in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Polixeni Euse, pro se

9106 Bonita Beach Road

Bonita Springs, Florida 34135-4214

STATEMENT OF THE ISSUE

The issue in this case is whether on June 23, 2014, Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant (Zorba's), was in compliance with food safety requirements set forth in administrative rules of Petitioner, Department of Business and Professional Regulation (Department), Division of Hotels and Restaurants, and, if not, what penalty is appropriate.

PRELIMINARY STATEMENT

The Department alleged in an Administrative Complaint dated June 24, 2014, that Zorba's violated the standards governing public food service establishments. Specifically, the Administrative Complaint alleged that the Department's inspector observed "[p]otentially hazardous . . . food cold [sic] held at greater than 41 degrees Fahrenheit . . . in [the] reach-in cooler across from [the] cook line" during an inspection conducted on June 23, 2014, in violation of chapter 509, Florida Statutes (2014),1/ and section 3-501.16(A)(2) of the Food Code. Zorba's disputed the allegations and requested an evidentiary hearing.

The case was referred to the Division of Administrative Hearings on July 24, 2014. The case was noticed for hearing on August 7, 2014. The undersigned conducted the hearing as noticed.

At the hearing, the Department presented the testimony of Jonathan Johnson, the inspector who conducted the inspections of

Zorba's restaurant. Department Exhibits 1 and 2 were admitted into evidence. Polixeni Euse appeared and testified on behalf of Zorba's. The Department objected to Zorba's Exhibit 1 on the basis that it was untimely filed. The objection was overruled and Exhibit 1 was admitted.

A Transcript of the hearing was filed at the Division of Administrative Hearings on September 29, 2014. The Department filed a proposed recommended order, which has been considered in the preparation of this Recommended Order. Zorba's did not file a proposed recommended order.

FINDINGS OF FACT

1. The Department is an agency of the State of Florida responsible for monitoring the operations of hotels and restaurants to ensure compliance with food safety and sanitation standards set forth in relevant statutes and rules.

2. Zorba's is a licensed and regulated business under the jurisdiction of the Department's Division of Hotels and Restaurants. Zorba's business license number is 46-01794.

3. Jonathan Johnson works for the Department as a senior sanitation and safety specialist. Mr. Johnson has worked for the Department for approximately four and one-half years. Before that, he worked for two years in restaurants. Mr. Johnson undergoes periodic training for his present position as an inspector. He is also a certified food manager. Mr. Johnson

   
   

   performs approximately 1,000 or more inspections for the Department annually. Mr. Johnson's training, experience, and demeanor make him a very credible witness.

4. On May 6, 2014, at 5:09 p.m., Mr. Johnson inspected Zorba's restaurant. Mr. Johnson observed tomatoes, hummus, and cheese in the "reach-in" coolers behind the cook line at temperatures between 44ºF and 46ºF. Tomatoes, hummus, and cheese are "priority items," under the Food Code, making them "high priority items" under Florida Administrative Code 61C-1.001(17).

   § 3-501.16(A), Food Code. Under the Food Code, they must be held at a temperature below 41ºF. § 3-501.16(A), Food Code.2/ A "high priority violation" is a violation of the rules regulating a "high priority item" and is determined by the Department to pose a direct or significant threat to the public health. Fla. Admin. Code R. 61C-1.005(a).

5. As a result of his inspection, Mr. Johnson prepared an inspection report setting forth his findings and issued Zorba's a warning. Mr. Johnson scheduled a callback inspection for May 7, 2014.

6. Within 11 hours after receiving the inspection report, Zorba's employed a refrigeration repair company to inspect the restaurant's refrigeration equipment at a cost of $234.00. A service order, admitted as hearsay evidence, suggests the technician measured the ambient temperature of the walk-in cooler

   
   

   at 33ºF and the reach-in cooler at 38ºF. Since the document is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat.

7. Mr. Johnson returned to Zorba's on May 7, 2014, at 8:00 a.m. The cheese, tomatoes, and deli meat in the reach-in

   coolers were at temperatures between 44ºF and 46ºF. The walk-in cooler contained soups and sauces at temperatures between 48ºF and 50ºF and chicken and butter at 44ºF. At the conclusion of the inspection, Mr. Johnson told Ms. Euse about the violations and, again, issued Zorba's a warning. At this time, Mr. Johnson told Ms. Euse that all violations documented during the inspection needed to be corrected by June 23, 2014. He noted the violations were not an immediate threat to the public. Zorba's acknowledged the violations on both reports dated May 6 and 7, 2014.

8. As a result of a stipulation, the Department issued a Final Order on May 16, 2014, imposing a fine of $200.00 for these violations.

9. Mr. Johnson performed a callback inspection, as contemplated by the Final Order, at Zorba's restaurant on June 23, 2014. The inspection revealed that the cheese,

   tomatoes, and deli meat held within the reach-in cooler were at

   
   

   temperatures between 44ºF and 46ºF. Mr. Johnson prepared a Callback Inspection Report, which was signed by a Zorba's representative. The Callback Inspection Report recommended filing an Administrative Complaint.

10. After receiving the non-compliance violation report, Zorba's contacted a different refrigeration repair company to perform an additional inspection of the refrigeration equipment. A service order, admitted as hearsay evidence, suggested that a technician measured the temperature of the reach-in cooler at 38ºF on June 30, 2014. Since it is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Ms. Euse replaced the restaurant's plastic storage containers with aluminum containers because the technician suggested it.

11. The clear and convincing evidence proves that on

    
    

    June 23, 2014, Zorba held hazardous food at levels above the 41ºF standard required by section 3-501.16(A)(1) of the Food Code.

12. Zorba's attempted to cooperate with the Department's inspection report by hiring refrigeration technicians to perform maintenance on and evaluate the subject coolers. Nonetheless, the Department presented evidence that Zorba's violated the Food Code on the day on which the inspection was conducted.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

    § 120.569 and 120.57(1), Fla. Stat.

    
    

14. The Department is the state agency charged with regulating public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes.

15. The Department may impose penalties for violations of chapter 509, including an administrative fine of no more than

    $1,000. § 509.261(1)(a), Fla. Stat.

    
    

16. The Department must establish the allegations in the Administrative Complaint by clear and convincing evidence. Dep't

    of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

17. Section 509.032(6) provides that the Department shall adopt such rules as are necessary to carry out the provisions of the chapter.

18. Section 3-501.16(A) of the Food Code contains the legal standards the Department charges that Zorba's violated. It

    provides:

    
    

    (A) Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under § 3-501.19

    . . . POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE CONTROL FOR SAFETY FOOD)

    shall be maintained:

    
    

    * * *

    
    

    (2) At 5ºC (41ºF) or less.[3/]

    
    

19. Foods that are considered "time/temperature control foods" are categorized in section 3-501.19 of the Food Code. For every category there is a corresponding minimum temperature standard for each food item under section 3-501.16 of the Food Code.

20. The unrebutted testimony of Mr. Johnson that hazardous foods were observed in Zorba's reach-in cooler at a temperature above the 41ºF standard provides clear and convincing evidence that Zorba's was in violation of section 3-501.16(A)(2) of the Food Code. Considering the inspector's experience with, and knowledge of, the subject violations he testified to observing, the Department has met its burden of establishing that Zorba's was in violation of chapter 509 and section 3-501.16(A)(2) of the Food Code.

21. Rule 61C-1.005(6) provides discipline standards for high priority violations. It states:

    (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.

    
    

    * * *

    
    

    (c) High priority violation.

    
    

    1. 1st offense--Administrative fine of $250 to $500.

       
       

    2. 2nd offense--Administrative fine of $500 to $1,000, license suspension, or both.

    
    

22. Rule 61C-1.005(5)(e) defines a "second offense" as:

    
    

    1. violation of any law subject to penalty under Chapter 509, F.S., after one disciplinary Final Order 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.

       
       

23. The violation established in this proceeding is Zorba's second offense, due to the filing of one disciplinary Final Order within 24 months preceding the Administrative Complaint in the present case. Rule 61C-1.005(6)(c) provides that discipline for a second offense, high-priority violation is an administrative fine of $500 to $1,000. The Department has established one

    high-priority violation. However, Zorba's took good faith, if unsuccessful, steps to cure the problem and spent money in the process. This weighs in favor of a lesser penalty. Fla. Admin. Code R. 61C-1.005(7)(b)4.

24. In its proposed recommended order, the Department seeks the minimum fine of $500.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business

and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a $500.00 fine upon Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant, for violations of the Food Code requirements.

DONE AND ENTERED this 3rd day of November, 2014, in Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2014.

ENDNOTES

1/ All statutory references are to Florida Statutes (2014), unless otherwise noted.

2/ "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, Chapter 7, and Sections 8-103.11 and 8-103.12 of the Food Code, 2009 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: Conducting Risk-based Inspections (https://www.flrules.org/Gateway/reference.asp?No=Ref-01536), 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, 5301 Shawnee Road, Alexandria, VA 22312." Fla. Admin. Code R. 61C-1.001(14).

3/ It is significant to note that the standard, as interpreted by the Department, applies to the temperature of the food, not the temperature inside the cooler.

COPIES FURNISHED:

Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2201 (eServed)

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2201 (eServed)

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202 (eServed)

Polixeni Euse

9106 Bonita Beach Road

Bonita Springs, Florida 34135-4214

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 14-003495

Orders for Case No: 14-003495