The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate penalty that should be imposed.
Findings Of Fact 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.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: 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. DONE AND ENTERED this 10th day of July, 2012, in Tallahassee, Leon County, Florida. S Barbara J. Staros 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 10th day of July, 2012.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of national origin or race in violation of Section 760.08, Florida Statutes (2005),1 during Petitioner’s visit to a Burger King Restaurant on June 3, 2006.
Findings Of Fact Petitioner is in a protected class within the meaning of Subsection 760.02(6). Petitioner’s national origin is Haitian, and his race is Black. Respondent operates a Burger King restaurant located at 1260 North Fifteenth Street, Immokalee, Florida 34142 (the Restaurant). The Restaurant is a place of public accommodation, defined in Subsection 760.02(11)(b). Petitioner and two friends visited the Restaurant on June 3, 2006, for the purpose of purchasing and consuming food served by the Restaurant. Petitioner waited in line to order food for himself and his two friends. Petitioner placed his order and paid for the food he ordered. The cashier and food service employee on duty at the Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman who is married to a Haitian man. At the time the food was ready, Ms. Lopez called the order number. Petitioner attempted to retrieve the food and Ms. Lopez asked him for his receipt with the order number on it. Petitioner indicated that he did not have the receipt. Ms. Lopez directed Petitioner’s attention to a sign stating that customers must have a receipt in order to be served. After a short conversation about the store’s policy and requirement to have a receipt, Ms. Lopez served Petitioner his food. The food order was correct, but Petitioner objected to the manner in which Ms. Lopez placed his food service tray on the counter. Petitioner claims that Ms. Lopez threw the tray on the counter. None of the food spilled out of containers or off the tray. Petitioner demanded that she serve him correctly or refund his money. Ms. Lopez refunded Petitioner’s money. It is undisputed that Petitioner had concluded his business transaction with the Restaurant after requesting the refund. Petitioner intended to leave the Restaurant. Petitioner claims that before he left the Restaurant, Ms. Lopez cursed at him and referred to his national origin by saying, “Get the fuck out, fucking Haitians.” Ms. Lopez testified that she may have cursed at him at the time she refunded the money. However, Ms. Lopez denied making any comments related to national origin. The fact-finder finds the testimony of Ms. Lopez to be credible and persuasive. During the incident at the Restaurant, Petitioner’s two friends and another gentleman joined Petitioner at the counter as he argued with Ms. Lopez. None of the men testified at the hearing. It is undisputed that the alleged comments by Ms. Lopez are the only alleged references to the national origin or race of Petitioner by any employee or manager at the Restaurant. Respondent’s store manager, Mr. Lewis Sowers, a Caucasian male, heard the disturbance at the counter of the Restaurant. Mr. Sowers asked Petitioner and the other gentlemen to leave the Restaurant. Mr. Sowers contacted the police department regarding the disturbance, and the officer on the scene completed a police report. A copy of the police report was admitted into evidence as Respondent’s Exhibit 2 without objection. The alleged discrimination by Ms. Lopez did not impede Petitioner’s ability to contract for goods or services at the Restaurant. The absence of a receipt did not prevent Respondent’s employee from serving Petitioner his food order, and the order appeared to be correct. Once Petitioner received his refund, Petitioner had no intention of staying in the Restaurant and does not have a practice of visiting Burger King restaurants unless he is eating there. Thus, any attempt to contract for goods and services with Respondent had terminated before the alleged discrimination. Petitioner did not see any other customers who lost or did not produce their receipts. Petitioner did not recall the race or national origin of any other customers who may have had their food order served in a different manner. Petitioner presented no evidence of any damages sustained as a result of the alleged discrimination. Petitioner failed to answer Respondent’s Request for Documents evidencing mental anguish, suffering or punitive damage awards he believed to be appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2008.
