The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed the various violations charged in the Administrative Complaint, related to purported violation of various food service establishment sanitation and safety requirements under authority provided by Subsection 509.032.(1)(2), Florida Statutes; Section 509.261, Florida Statutes (2003), Florida Administrative Code Rule 61C-1.004, and Chapters 4 and 5 of the "Food Code" (adopted in Florida Administrative Code Rule 61C-1.004, by reference.)
Findings Of Fact The Division is an Agency of the State of Florida charged, in pertinent part, with regulating the operation of food service establishments in accordance with Chapter 509, Florida Statutes (2003), and Florida Administrative Code Rule 61C-1.004, et seq. Included within that area of regulation is the inspection of food service establishments, such as restaurants, to ensure that various food sanitation and safety requirements are complied with and to assess fines and penalties for violation of relevant rules related to food sanitation and safety. The Respondent at all times pertinent hereto has been a licensed restaurant under the Division's food service establishment jurisdiction, holding license number 56-01170-R. The Respondent's last known address is 99 Eglin Parkway, No. 42, Fort Walton Beach, Florida 32548. The Division inspector conducted an inspection of the Respondent's food service premises on April 25, 2003. Steven Kurz was the Division's inspector who carried out the initial inspection of the Respondent's premises on that date. Mr. Kurz noted approximately 18 deficiencies in terms of the Respondent's food service operation on that occasion. Thereafter, a follow-up second inspection was conducted on April 28, 2003. That second inspection was conducted by Mr. Phil Perez, Senior Sanitation and Safety Specialist of the Division. Inspector Perez believed that seven of the original noted 18 deficiencies found on the first inspection of April 25, 2003, still existed on April 28, 2003. He thus opined that there was (1) a dirty towel hanging on a rack over a three- compartment sink; (2) a dirty floor mixer/dough machine; (3) a dirty ice chute; (4) an unprotected or opened tooth pick container, accessible to the public; (5) a kitchen hand sink without hot water being connected thereto; (6) the exterior door of a walk-in refrigerator or cooler was dirty; (7) the "exit" sign for the restaurant was not illuminated; and (8) a cardboard box or boxes were stored over a gas hot water heater. Because of the deficiencies Mr. Perez found on the second follow-up inspection, the Division ultimately issued the subject Administrative Complaint on August 2, 2003. It alleges the remaining deficiencies as violations of Chapter 509, Florida Statutes, and the Administrative Rules promulgated thereunder. The Respondent disputed the allegations of the compliant and timely requested a formal proceeding. The Respondent concedes that a dirty towel was hanging near the sink in the back of the restaurant, as found upon the second inspection; however, he established that the towel was not used for wiping food surfaces or non-food equipment surfaces, but rather was used during the performance of maintenance on a piece of equipment. The Division has conceded, in accordance with this showing, that this was not a violation and has dismissed this portion of the complaint. Although the inspector found the dough machine and dough mixer to be un-cleaned at the time he inspected it, the Respondent showed that he inspected the machines during the lunch hour when they were busy using the machines. The Respondent established that the machines are cleaned thoroughly each day, but they obviously could not be cleaned while they were in active use mixing dough during lunch hour food preparation, or while they were about to be used. This explanation by the Respondent, which is accepted as credible versus the inspector's brief observation of the condition of the machines, shows that this violation did not occur. The machine is kept in a clean condition every day, except when it is actively used for mixing dough, which was the case in the instant situation. The Respondent has also been charged with having dirt or grime on the door of the walk-in cooler on the occasion of both inspections. Mr. Perez observed a discoloration on the door. The Respondent's testimony, which is accepted as credible, shows that the discoloration was in reality oxidation or some discoloration caused by the age of the aluminum metal with which the door is covered. It was not demonstrated that the discoloration was due to dirt, grime, or an unsanitary condition on the door and this violation has not been established. Respondent conceded that the exit sign light bulbs were burned out at the time of both inspections and were inoperative. He also admits to the sink in question not being in working order in terms of hot water being connected at the time of the inspections. The Respondent was however at the time of hearing currently repairing the sink. The Respondent also concedes that the tooth pick dispenser was broken and open, caused by customers reaching inside for tooth picks. He concedes that this was a violation, but had repaired the matter after it was brought to his attention. The Petitioner established that the soda machine ice chute was dirty on both the April 25 and April 28, 2003, inspections. This violation has clearly been established. It has also been established that the Respondent maintained storage of one or more cardboard boxes on top or above the heat- producing gas hot water heater, rendering the boxes as flammable hazards. The Respondent testified generally, and in mitigation, to the effect that the inspection occurred during a busy lunch hour and that it is impossible to keep all items cleaned while actively working in a restaurant during a lunch hour serving customers. The Respondent also established that the restaurant does use a check list for daily cleaning operations. The Respondent showed that, at the time of the second inspection, the Respondent was in the process of repairing the deficient items or conditions, inasmuch as the second inspection was only approximately three days after the initial inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the above- named agency assessing an administrative penalty in the amount of $1,000.00, payable in the manner prescribed in the final order entered herein. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of July 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Susan Wilkinson, Esquire Drew Winter, Esquire Department of Business and and Professional Regulation 940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jeff B. Moyer Godfathers Pizza 99 Eglin Parkway, No. 42 Fort Walton Beach, Florida 32548 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Geoff Luebkemann, Director Division of Hotel and Restaurants Department of Business and Professional Regulation Division of Hotel And Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-2022
The Issue Whether Respondent committed the violations alleged in the administrative complaints dated July 8, 2015, and September 30, 2015; and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: The Division is the state agency charged with regulating public lodging and public food service establishments pursuant to chapter 509. At all times material hereto, Respondent was licensed as a public food service establishment in the state of Florida by the Division. Pet. Ex. 1. The Division's first witness, Inspector Audain, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Audain has worked for the Division for approximately ten years as an inspector. Prior to working for the Division, Audain worked in the food industry as a managing partner at a restaurant in New York. Upon gaining employment in the Division, Audain was trained on the Food Code and the laws and rules pertaining to public food service establishments and public lodging establishments. Audain is also a certified food manager. Audain receives continuing education and training on a monthly basis. Audain performs more than 700 inspections each year. The Division's second witness, Inspector Howard, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Howard has worked for the Division for approximately one and one- half years. Prior to working for the Division, Howard worked in the food industry as an executive chef at a Hilton Hotel in Tampa, a chef at a W Hotel in South Beach, and a chef at Los Hotel in South Beach. Upon gaining employment in the Division, Howard was trained on the Food Code and on the laws and rules pertaining to public food service establishments and public lodging establishments. Howard is also a certified food manager. Howard receives continuing education and training on a monthly basis. Howard performs approximately 800 inspections each year. "Basic Item" means an item defined in the Food Code as a Core Item. Fla. Admin. Code R. 61C-1.001(5) (January 1, 2013). "Basic violation" means a violation of a basic item, as defined in Florida Administrative Code Rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to general sanitation and does not meet the definition of high priority violation or intermediate violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "Intermediate violation" means a violation of an intermediate item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to specific actions, equipment, or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "High priority violation" means a violation of a high priority item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, determined by the Division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of rule 61C-1.005. DBPR Case No. 2015-029646 On July 1, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report setting forth the violation she encountered during the inspection. Pet. Ex. 2. On July 1, 2015, Audain notified Respondent of the cited violation. Ricardo Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 2. During the inspection on July 1, 2015, Audain observed roach activity present as evidenced by eight live roaches found crawling on the floor in the food service area, three live roaches crawling on the fryer in the kitchen, three live roaches found by the water heater in the kitchen, two live roaches found between the hose from the water heater and the wall, two live roaches found underneath the kitchen prep table, at least six live roaches found in the air conditioner closet, one live roach crawling on the wall next to the refrigerator, five live roaches crawling on the reach-in cooler by the door to the front service area, and one live roach crawling on the wall in the front service area of the establishment. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. Pet. Ex. 2. As a result of these observations, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency order was issued on the same date as the inspection, July 1, 2015. Pet. Ex. 7. DBPR Case No. 2015-042510 On July 16, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During this inspection, Audain prepared and signed an inspection report setting forth the violations she encountered during the inspection. Pet. Ex. 3. On July 16, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by July 17, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 3. On July 17, 2015, Howard performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Howard prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, inspection report had not been corrected. Pet. Ex. 4. On July 17, 2015, Howard notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 1, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 4. On September 2, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, and July 17, 2015, inspection reports had not been corrected. Pet. Ex. 5. On September 2, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 3, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 5. On September 3, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015; July 17, 2015; and September 2, 2015, inspection reports had not been corrected. Pet. Ex. 6. The first violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. Audain observed employees engaging in food preparation without proper hair restraints. This is a violation because hair can be both a direct and indirect vehicle for contamination. Food employees may contaminate their hands when they touch their hair. Proper use of a hair restraint keeps dislodged hair from ending up in the food and may also deter employees from touching their hair. The Food Code defines the governing requirement for the first violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3, 5-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 367; Fla. Admin. Code R. 61C-1.005(5)(c). The second violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed equipment in poor repair as evidenced by a freezer chest door having filament (insulation) exposed. This is a violation because failure to properly maintain equipment could lead to violations of the associated requirements of the Food Code that place the health of the public at risk. Refrigeration units in disrepair may no longer be capable of properly cooling or holding potentially hazardous (time/temperature control for safety) foods at safe temperatures. The Food Code defines the governing requirement for the second violation as a Core Item. The Division has designated Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 460; Fla. Admin. Code R. 61C-1.005(5)(c). The third violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. During the July 16, 2015, inspection, Audain observed roach activity present as evidenced by four live roaches found nestled in crevices by the air conditioner in the kitchen and one live roach crawling on the floor in front of the reach-in cooler between the kitchen and front service area. During the September 2, 2015, inspection, Audain observed one live roach crawling on the kitchen floor. Audain also observed one dead roach in the dining room freezer and one dead roach near the kitchen door during her inspection on September 3, 2015. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. The Division properly designated this violation as a high priority violation. Pet. Ex. 3, 5-6; Fla. Admin. Code R. 61C-1.005(5)(a). The fourth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed outer openings to the establishment not protected as evidenced by a rear door which was not self-closing. This is a violation because the presence of insects and rodents (which may transmit bacteria and disease to food) is minimized by protecting and securing outer door openings to the food establishment. The Food Code defines the governing requirement for the fourth violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, pp. 485-486; Fla. Admin. Code R. 61C-1.005(5)(c). The fifth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the manager's food manager certification upon request. This is a violation because managers are required to pass an approved food manager certification course and test which ensures managers have a higher level of knowledge regarding sanitation and food handling, preparation, and storage. Lack of the required knowledge can result in breakdowns in these processes. The Division has designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). The sixth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the employees’ required state-approved employee training. This is a violation because employees of restaurants are required to have basic food safety training, which imparts knowledge of basic food handling skills, including proper glove use, procedures for food temperatures and hot/cold holding, cooking temperature requirements, and basic sanitation measures, such as personal hygiene and hand-washing. Lack of this knowledge can result in a breakdown in these processes, possibly leading to food-borne illness or unsanitary conditions. The Division properly designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). Respondent had one Emergency Order of Suspension of License and Closure filed with the agency clerk by the Division within the 12 months preceding the date the current administrative complaints were issued. The Emergency Order of Suspension of License and Closure was filed on July 7, 2015. Pet. Ex. 7.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, ordering Latchman's Seafood Market and Grill, Inc., d/b/a Latchman's Seafood Market and Grill, Inc., to pay an administrative penalty in the amount of $500.00 for the violation listed above in DBPR Case No. 2015-029646 and an administrative penalty in the amount of $1,650.00 in DBPR Case No. 2015-042510, for a total administrative penalty of $2,150.00, plus any applicable and authorized investigative expenses or costs, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date of the final order. DONE AND ENTERED this 5th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 5th day of May, 2016.
