The Issue Whether Petitioner committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a 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 the owner of an eating establishment located in Gainesville, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 1102934 issued by the Division. Franklin Regan is a sanitation and safety specialist employed by the Division. His duties include inspecting food service and lodging establishments for compliance with Chapter 509, Florida Statutes. Mr. Regan has a bachelor's degree from Florida State University in hotel and restaurant administration and a degree in ornamental horticulture from the University of Florida. He has been employed by the Department of Business and Professional Regulation for 11 years. Prior to that time, he worked for several years in the field of food service and the public lodging business. He also has received training in laws and rules regarding food service and lodging, as well as fire safety. On November 15, 2002, Mr. Regan conducted an inspection of Respondent's premises, Nature's Table restaurant and issued an inspection report. Mr. Alissa signed for the inspection report. During the November 15, 2002, inspection, Mr. Regan observed a small food preparation unit in the service area to be 54 degrees. He wrote on the inspection report to not use that food preparation unit until it was able to maintain potentially hazardous food at 41 degrees. He noted on the inspection report that the restaurant would be checked within the next 7 days to determine if potentially hazardous food was being maintained at 41 degrees or lower. Mr. Regan also made a notation on his November 15, 2002, inspection report that Respondent needed to submit within 10 days new plans with actual locations of all equipment. He was concerned specifically about the labeling of a preparation sink that had been labeled as a hand sink on Respondent's Application for Plan Review. Mr. Regan conducted another inspection at Respondent's restaurant on November 18, 2002. During that inspection, he observed food temperatures over the required 41 degrees. Specifically, he noted ham at 42 degrees, tuna salad at 45 degrees, and egg salad at 44 degrees. This is a critical violation because bacteria can multiply at a rapid rate in food maintained above 41 degrees. This is potentially hazardous because the bacteria can cause infection if consumed. During the November 18, 2002, inspection, Mr. Regan also observed that potentially hazardous foods were not maintained in wells of a preparation unit at 41 degrees or below. This is potentially hazardous for the same reason as noted in the paragraph above. During the November 18, 2002, inspection, Mr. Regan also noted that no hand towels were provided at a hand sink. This is a violation because improper hand washing can lead to transfer of pathogenic bacteria to food and viruses. As a result of the November 18, 2002, inspection, the inspection report included a warning that the noted violations must be corrected by November 22, 2002. Mr. Regan conducted a call back or re-inspection on November 25, 2002. During that re-inspection, he observed three deficiencies that were not corrected from the November 18, 2002, report: that sliced turkey was at 48 degrees and egg salad was at 46 degrees; that the prep unit was not maintaining potentially hazardous food in wells at 41 degrees or lower; and that hand towels were not provided at the front hand sink. During the re-inspection conducted on November 25, 2002, Mr. Regan also noted on his written report that Respondent had not submitted plans with actual locations of equipment as he had requested in his first inspection report dated November 15, 2002. Mr. Alissa offered mitigating circumstances regarding some of the deficiencies noted by Mr. Regan. Regarding the allegation of failure to keep food at an appropriate temperature, Mr. Alissa asserted that he and his employees use a method called "time-in-lieu" to overcome the temperature problem with refrigeration units being opened and closed. Mr. Alissa described two charts in the restaurant regarding the time-in-lieu procedure used in his restaurant. The charts are located next to refrigeration units and state the time the food is put in a refrigeration unit and the time the food is removed. The chart next to the large sandwich unit has columns and rows referring to various potentially hazardous foods, the times the foods were placed in the sandwich bar, and the time the foods should be removed or thrown away. Mr. Alissa has had this procedure in place since Mr. Regan's second inspection. Mr. Alissa's testimony in this regard was detailed including the exact locations of the charts in his restaurant. His testimony in this regard is accepted as credible. However, Respondent's written policy or procedure of using time-in-lieu is not in evidence. When a restaurant uses the time-in-lieu procedure, it must have a written policy establishing the time food was removed from the refrigerator so a person would know when the food has to be used, cooked, or destroyed. The written procedure must be available to the food inspector. Mr. Regan does not recall seeing these charts or any other documentation demonstrating that the time-in-lieu procedure was in place. Respondent did not offer any evidence of mitigation regarding the allegations concerning lack of hand drying provisions or of failure to submit revised plans of the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division of Hotels and Restaurants enter a final order which confirms the violations found, imposes an administrative penalty in the amount of $1,000.00, and requires Respondent to attend a Hospitality Education Program and to provide proof of such attendance to the Division. DONE AND ENTERED this 16th day of January, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jamil Alissa 6419 West Newberry Road, No. G3 Gainesville, Florida 32605 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2007). At all times material to this case, the Respondent was a restaurant holding Food Service license number 5803705 and operating at 29 South Semoran Boulevard, Orlando, Florida 32807. On October 23, 2007, Alphonso Rullan, a sanitation safety specialist employed by the Petitioner, performed a routine inspection of the Respondent at which time there were employees engaged in food preparation. At the time of the October 23 inspection, the Respondent was unable to provide any evidence that the employees had received training in food safety protection. Mr. Rullan also observed during the October 23 inspection that the interior of the microwave oven was soiled with crusted food material indicating that the oven was not being routinely cleaned at least every 24 hours. Mr. Rullan noted the deficiencies in an inspection report, a copy of which was provided to the manager, who was identified as "Victor Montenegro." On January 11, 2008, Mr. Rullan returned to the Respondent to perform a call back inspection, during which the Respondent was still unable to provide evidence that employees had received training in food safety protection. Mr. Rullan again observed that the microwave oven was soiled with crusted food material indicating that the oven was not being cleaned at least every 24 hours. The deficiencies were cited in an inspection report which was provided to Mr. Lopez at the time of the inspection. On February 8, 2008, the Petitioner issued an Administrative Complaint against the Respondent for failure to correct the deficiencies cited herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 5th day of September, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 5th day of September, 2008.
