The Issue Whether Petitioner violated provisions of Chapter 500, Florida Statutes the Florida Food Safety Act, and Chapter 5K-4, Florida Administrative Code, on April 28, May 12 and May 25, 1995 and if so, whether an administrative fine should be imposed for those violations.
Findings Of Fact Petitioner Dunkin Donuts is a retail bakery located at 2025 West New Haven Avenue, West Melbourne, Brevard County, Florida, and had a valid food permit during the relevant time period. Respondent, Department of Agriculture and Consumer Services, is charged with the administration and enforcement of Chapter 500, Florida Statutes, the Florida Food Safety Act, and the rules promulgated thereunder relating to food safety and the selling of food to the consuming public. Following a complaint by a consumer, Respondent's food safety inspectors conducted food safety inspections at Petitioner's place of business on four occasions. On inspections conducted on April 28, 1995, May 12, 1995, and May 25, 1995, Petitioner received an overall rating of "poor". Not until the fourth inspection which was conducted on June 8, 1995, did Petitioner receive an overall rating of "good". On April 28, 1995, an inspection determined that Petitioner held food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: food products improperly stored on the floor of the walk-in freezer; old dried food product spillage on the floor of the walk-in cooler, freezer and storeroom; unpackaged food product left uncovered in the storeroom; shell eggs improperly stored at internal temperature in excess of 60 degrees F.; employees without proper hair restraints; grease build up in several locations; unsealed wood table used for mixer; handwash sink inaccessible to employees. On May 12, 1995, a re-inspection determined that a few of the prior violations had been corrected. However, Petitioner continued to hold food items in an unsanitary environment and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; employees without proper hair restraints; improper use of pest strip in storeroom; no soap or hand drying device provided for employees; paint brush improperly used as pastry brush; cardboard improperly used as shelf liner and floor mats; and wiping cloths failed to be stored in sanitizing solution. On May 25, 1995, a re-inspection determined that several prior violations had not been corrected. Petitioner continued to hold food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; cardboard improperly used as shelf liner; improper use of pest strip; failure to provide soap or hand drying device in processing area; employees without hair restraints ; improper storage of equipment; wiping cloths failed to be stored in sanitizing solution; and failure to cover dumpster. Mr. Ornelas argues that he and his family and several employees operate the facility in an acceptable manner. They work long hard hours. They are baking donuts all the time and do not have time to keep the premises as clean as the inspectors insist. However, they do not offer unsanitary food to the consuming public, and the cited violations were eventually corrected; therefore, Petitioner should not be subjected to the payment of a fine, according to Mr. Ornelas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner be found guilty of numerous violations of the Florida Food Safety Act, on April 28, May 12 and May 25, 1995, and that final order be entered assessing an administrative fine in the amount of $2,000.00 against Petitioner. DONE and ENTERED this 9th day of January, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1996. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4 Rejected as subsumed or a comment on the evidence: paragraph 5. COPIES FURNISHED: Manuel Ornelas Officer and Director Dunkin Donuts 2025 West New Haven West Melbourne, Florida 32904 Linton B. Eason, Esquire Office of the General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910
The Issue Whether Respondent violated section 500.147(1), Florida Statutes (2020),1 when it refused entry to Petitioner's inspectors unless the inspectors agreed 1 Unless stated otherwise, all references to statutes and administrative rules are to the 2020 versions that were in effect during the conduct at issue. Childers v. Dep't of Envtl. Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997). to Respondent's "no camera" policy; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating food establishments pursuant to chapter 500, Florida Statutes (the Food Safety Act), and Florida Administrative Code Chapter 5K-4. At all times relevant, Tampa Maid was permitted as a food establishment (Food Permit No. 28143) by the Department.4 Tampa Maid operates a shrimp and shellfish processing plant at 1600 Kathleen Road in Lakeland, Florida (Facility). As a seafood processor, Tampa Maid is subject to the jurisdiction of the federal Food and Drug Administration (FDA), and specifically to seafood Hazard Analysis Critical Control Points (HACCP) inspections. The Department contracts with the FDA to perform various types of inspections including HACCP inspections. The Department's FDA contract contemplates that (1) Department inspectors will collect information and 3 An official word index to the Transcript was submitted on March 31, 2021. 4 Section 500.03(p) defines "Food establishment" as "factory, food outlet, or other facility manufacturing, processing, packing, holding, or preparing food or selling food at wholesale or retail." evidence, (2) evidence can be in the form of photographs, and (3) evidence collected is not subject to public records requests, but rather must be kept confidential. 5 It states: All information collected during the performance of this contract shall be considered as confidential commercial information, including the Establishment Inspection Report (EIR), FDA 483, or equivalent forms, evidence collected, and all other supporting documentation. Evidence and supporting documentation may include supplier, receiving, and distribution records, photographs, complaint records, laboratory results, and other documents collected during the performance of the contract. The Contractor shall notify the Division Technical Advisor within three (3) business days after receipt of a public records request for information obtained during the performance of the contract is received. The Contractor is not authorized to release confidential commercial information. (emphasis added). The Department trains staff to conduct various types of inspections of food establishments. The Department also issues inspectors equipment to be used to perform their duties. This includes tools such as a flashlight, probe thermometer, test strips for sanitizers, and mobile phones. The Department- issued phones have a camera to take photographs during an inspection. The Department has developed the Manufactured Food Inspection Protocol (Protocol) which contains the following instructions for inspectors: 6.5 Refusal of Inspection Notify a manager immediately if you are denied entry to any part of the establishment including being restricted from taking photographs of violative conditions, collecting samples, or if the 5 Chapter 500 is to be interpreted to be consistent with the FDA's rules and regulations. See § 500.09(3), Fla. Stat. Additionally, the Department has adopted federal regulations and other standards. Fla. Admin. Code R. 5K-4.002. Article 5.3.4 of the FDA's Investigation Operations Manual (2021) provides further instructions and guidance to inspectors of documenting conditions using photographs during inspections. See FDA website at: https://www.fda.gov/media/113432/download (last visited April 6, 2021). establishment management or person in charge refuses to provide access to required food records; this may constitute a refusal of inspection. * * * 7.1 FIMS Review [Before an inspection] review recent inspection reports … for attached files, documents, photographs, etc. * * * 8.1.1. Signing of Non-FDACS Documents Circumstances may arise in which a food establishment requests the [inspector] to sign documents during the inspection. Listed below are specific guidelines for these circumstances. Contact a manager f you encounter a situation not listed. 8.1.2 Proprietary Documents Florida Statute Chapter 500.147 authorizes the Department to have access to any food establishment … for the purposes of inspecting such establishment … to determine whether this chapter or any rule adopted under this chapter is being violated. Documents including, but not limited to, waivers, nondisclosure, confidentiality agreements may include language that inhibits our authority to conduct the inspection. If you are asked to sign these types of documents inform the person in charge that you are not authorized to sign the documents. If they persist and /or deny you entry, contact a manager as this may constitute a refusal of inspection. * * * 8.1.4 Sign-In and Sign-Out Rosters All FADCS employees are authorized to sign-in and sign-out at food establishments, so far as they sign- in document does not include language that would impede the inspection. * * * 13. Inspection Techniques and Evidence Development Collect adequate evidence and documentation in accordance with FDACS procedures to support inspectional observations such as those listed below: * * * 13.2 Photographs Photographs serve as supporting evidence when documenting violative practices or conditions. Photographs should be related to conditions contributing to adulteration of the finished product. Excessive amounts of photographs are not necessary to support your documentation. Ensure photographs clearly represent the conditions observed. These photographs must be uploaded to the FIMS inspection visit. As explained by Inspectors Frank Kilgore and Bhisham Ojha it is "not uncommon" for inspectors to take photographs during an inspection for various reasons. The most obvious reason is to document violative conditions. An example given at the hearing was of an inspector using a camera to take photographs of rodent droppings (which are presumably a health and safety violation in a food establishment) to show they existed inside a particular facility. Another reason an inspector would take photographs would be to establish whether the product is interstate commerce. An inspector could take a photograph of the packing materials on the box in a food establishment to later determine whether it had been shipped from out of state. Inspectors can also document through photographs whether a facility is operating beyond the scope of its permit or license. For example, an entity may be permitted to operate as a warehouse, but during the inspection it may be discovered that the entity is also repacking seafood or spices. A photograph of the unlicensed activity can be included in the inspection report to establish the improper activity. Finally, photographs are helpful for follow-up inspections to establish whether a violation still exists. For example, a piece of equipment may be broken or dirty in violation of safety regulations during an inspection. On the follow-up inspection, a comparison can be made to a photograph taken during the original visit to establish if it has been repaired or cleaned. Inspectors are trained to take photographs during an inspection and how they can be used. As stated in the Protocol and supported by the testimony of the inspectors, an inspector must have a need for taking a picture, such as a suspected violation, and cannot take pictures for no reason. In addition to instructing inspectors on how to use photographs, the Protocol advises inspectors on what types of documents they can sign as long as there are no restrictions on their ability to conduct the inspection. Although they are allowed to sign a "Sign-In/Sign-Out" sheet, they are not to sign "waivers, nondisclosure, confidentiality agreements may include language that inhibits our authority to conduct the inspection." If faced with these documents, they are to refuse to sign them; if denied entry by the entity being inspected, the inspector is instructed to contact the Department. March 9, 2020 On March 9, 2020, Mr. Kilgore and Mr. Ojha visited Tampa Maid's facility to conduct an HAACP and FDA contract inspection. Mr. Kilgore was the lead inspector and was training Mr. Ojha. Upon arrival, the inspectors were asked to sign a COVID protocol acknowledgment or questionnaire. When the inspectors refused to sign the document, Tampa Maid accepted their verbal answers to the COVID questions. Then, as a prerequisite to entering the part of the Facility the inspectors were to inspect, Rod Stokes, Tampa Maid's Director of Food Safety and Quality Assurance, asked the inspectors to sign a ledger titled "Visitors Register," located at a desk in the office of the Facility. The Visitors Register was located on a desk next to a large placard which stated, "FOOD DEFENSE. PLEASE SIGN IN." Next to the Visitors Register and underneath the placard was a document titled, "Visitor's Information" and is copied below: The "Visitor Information" sheet included a list of 14 items typed in "ALL CAPS" including instructions (such as "sign in," "be careful of moving equipment," "do not touch the equipment," and "report any intestinal illness") and prohibitions (for jewelry, gum, food, tobacco, open-toed shoes, and weapons). The item at issue is located in the middle of the list: "8. No Cameras Allowed." At the very bottom of this document, after being instructed to "enjoy your visit," in a smaller font and not capitalized, was a conclusion that, by signing the visitor's log (presumably the same as the "Visitor's Register") a visitor was agreeing to follow the 14 listed statements. Both inspectors had visited the Facility on previous occasions and both had signed the Visitors Register. Mr. Ojha claimed he did not recall the "no camera" instruction listed as number eight on the Visitor Information sheet and did not agree to it, nor did he follow the instructions. Rather, he kept the Department-issued phone, which had the camera, in his back pocket during the inspection. Mr. Kilgore remembered previously signing the Visitors Register, but he did not notice the Visitor Information language. He explained that the Visitor Information sheet was not attached to the Visitors Register. If he had noticed the language, he would not have signed the ledger. He also claimed that he always kept the Department issued phone with him during inspections. When the Department inspectors refused to perform the inspection without their cameras on March 9, 2020, Mr. Stokes would not allow them to proceed. Mr. Stokes did not believe the inspectors had the authority to use a camera during the inspection, and he demanded that the inspectors or the Department give him the legal basis for the Department's authority to bring cameras into a facility. Although there was a discussion between Mr. Stokes and Department staff, nothing was provided to Mr. Stokes to change his mind. Ultimately, Mr. Kilgore informed Mr. Stokes that they would not conduct the inspection without their phones and that prohibiting them from entering the Facility with cameras could result in a refusal of inspection. Mr. Stokes continued to refuse to let the inspectors proceed into the Facility with their Department-issued phones. No inspection took place on March 9, 2020, and there is no evidence the Tampa Maid Facility has been inspected since that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered as follows: Finding that Tampa Maid denied the Department free access to its facility in violation of section 500.147, Florida Statutes, as alleged in the Administrative Complaint, when it refused to let inspectors enter with cameras. Requiring Tampa Maid to pay an administrative fine in the amount of $1,000. Suspending Tampa Maid's Food Permit (Food Permit No. 28143) until such time that access to the food establishment is freely given to the Department. DONE AND ENTERED this 12th day of April, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2021. COPIES FURNISHED: Allan J. Charles, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399 Magdalena Ozarowski, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399 Honorable Nicole "Nikki" Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Daniel J. Fleming, Esquire Johnson Pope Bokor Ruppel & Burns, LLP Suite 3100 401 East Jackson Street Tampa, Florida 33602 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue Whether Respondent committed the violation 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 an eating establishment located in Green Cove Springs, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 2001008 issued by the Division. Critical violations are those violations that, if not corrected, are most likely to contribute to food-bourne illness. Non-critical violations are those that are not directly related to food-bourne illness, but if they remain in non- compliance, are likely to lead to the development of a critical violation. Janet D’Antonio is a sanitation and safety inspector employed by the Division. Ms. D’Antonio has a bachelor’s degree and is a certified food manager. She has been employed by the Division for approximately 23 years. She also has received training in laws and rules regarding public food service and lodging. On September 24, 2008, Ms. D’Antonio conducted an inspection of Respondent's premises and issued an inspection report while on the premises. During the September 24, 2008 inspection, Ms. D’Antonio observed several violations including “false/misleading statements published or advertised relating to food/beverage.” Ms. D’Antonio issued a warning that the violations must be corrected by a call-back date of November 25, 2008. The following appears in the upper right-hand corner of the inspection report: “FOLLOW-UP INSPECTION REQUIRED. Inspector determined violations require further review, but are not an immediate threat to the public.” Ms. D’Antonio cited the restaurant with false/misleading statements because the menu listed crabmeat when artificial crabmeat was actually served. Ms. D’Antonio determined this by looking in the refrigerator and finding a package labeled “imitation crab.” Ms. D’Antonio considers this a critical violation because the public might think real crabmeat is being served when, in fact, it is imitation crabmeat. According to Ms. D’Antonio, the Division’s “operation guidelines” call for an immediate administrative complaint without allowing time for correction for this violation. Ms. D’Antonio conducted a call-back inspection on October 14, 2008. During the call-back inspection, Ms. D’Antonio did not check to see whether Respondent was still out of compliance regarding the allegation that Respondent used false or misleading advertising. She observed that all other violations found on the initial visit had been corrected. However, during the call-back inspection, Ms. D’Antonio observed that all of the menus contained the stamp, “Imitation Crabmeat,” whereas during the initial inspection, the menu said “crabmeat.” The call-back inspection report contained the following notation: “Call back conducted early at owner’s request.” Bao Jin Chen owns the restaurant that is the Respondent in this case. He maintains that the first time he was made aware that there was an issue regarding how crabmeat was identified on his restaurant’s menu was during Ms. D’Antonio’s initial inspection of the restaurant. Mr. Chen asserts that following the initial inspection, he stamped all of the menus to reflect that the crabmeat served was imitation, while waiting for the menus to be reprinted. Mr. Chen also asserts that they put up a large sign on a wall of the restaurant to inform the customers that imitation crabmeat is served rather than real crabmeat. Additionally, when a customer orders a food item with crabmeat, he or his employees inform the customer that they serve imitation crabmeat. His testimony regarding these assertions is deemed credible and is accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Division enter a final order dismissing the Administrative Complaint which gave rise to this proceeding. DONE AND ENTERED this 8th day of June, 2009, in Tallahassee, Leon County, Florida. 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 8th day of June, 2009. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Bao Jin Chen China Wok 3540 US Highway 17, No. 127 Green Cove Springs, Florida 32043 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
