The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact Gigi's Restaurant, LLC, holds Permanent Food Service license 2331011, which authorizes the operation of a public food establishment at 3585 Northeast 207th Street in Aventura, Florida, and expires October 1, 2011. Respondent last renewed its license on September 21, 2010. On January 13, 2010, at 11:29 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. At the time, Respondent's license had expired. The inspector also observed, among other things, the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate-strength dishmachine sanitizer; not-sanitized- properly-after-cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three-compartment sink. The inspector notified Respondent that a reinspection would take place on March 13, 2010, at 11:30 a.m. On April 21, 2010, the inspector performed a reinspection of the public food establishment. At the time, Respondent still had not renewed its license. The inspector observed the recurrence or continuation of the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate- strength dishmachine sanitizer; not-sanitized-properly-after- cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three- compartment sink. The five remaining violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause food-borne illness.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the five violations identified above and revoking the public food establishment license of Respondent. DONE AND ENTERED this 8th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Arner Gigi Gigi’s Cafe 3585 Northeast 207 Street, No.C302 Miami, Florida 33180 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issues to be resolved in this proceeding concern whether Respondent committed the violations alleged in the Administrative Complaint dated April 9, 2010, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, Canton Rose Chinese Restaurant ("Canton Rose"), located at 4038 S.W. 67th Avenue, Miami, Florida 33155, holding Food Service license number 2321953. Jorge Gandolff ("Inspector Gandolff") is employed by the Department as a Senior Sanitation Safety Specialist. Inspector Gandolff has worked for the Department for approximately eleven years. Prior to working for the Department, Inspector Gandolff worked for the Department of Agriculture as a food safety inspector for a year and-a-half and as a restaurant general manager for Kentucky Fried Chicken for five years. He is a Certified Food Manager and continues to receive continuing education training. Inspector Gandolff performs approximately eight hundred inspections a year. On September 15, 2009, Inspector Gandolff performed a food service inspection at Canton Rose. During the inspection, Gandolff prepared and signed an inspection report setting forth the violations he spotted during his inspection. During the September inspection, Inspector Gandolff observed and specifically decided that the hot food was not at the proper temperature and that the rice was not being cooled in a proper manner. Inspector Gandolff specifically noted both as violations being out of compliance and stated in the inspection report: * * * Violation(s) * * * 03D-01-1: Observed food being cooled by nonapproved method * * * 03B-03-1 Potentially hazardous food not held at 135 degrees Fahrenheit or above Cooked chicken 92 degrees on prep table * * * Inspector Gandolff prepared the inspection report on- site at Canton Rose electronically on a Personal Data Assistant. Respondent's manager signed the report. It warned "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." On March 8, 2010, Inspector Gandolff returned to Canton Rose and performed the follow-up food service inspection. He determined that two repeat critical violations remained uncorrected from the September 15, 2010, inspection. A critical violation if left uncorrected can lead to food contamination, illnesses, or a health threat to the person who eats the food. It also is a violation that poses an immediate danger to the public health and safety. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. During the March inspection, Inspector Gandolff prepared an Inspection Report setting forth the findings from the re-inspection and recommended that an Administrative Complaint be filed. The first uncorrected violation for which Respondent was cited was Food Code Rule 03D-01-1--"Observed food being cooled by nonapproved method Repeat Violation." On both the September and March inspections, Canton Rose had just prepared the rice before the inspector arrived and was in the process of cooling it down. Neither the September nor March inspections took over one and-a-half hours to complete. Respondent used its same daily methodology for cooking and cooling rice during both inspections which included: cooking the rice for about 20 minutes; steaming it for about 20 minutes until it is completely cooked; opening the lid and using a long fork to mix and separate the rice to cool it down; dividing the rice into four large plastic container shallow pans; air-cooling the rice in the shallow pans for about 30 minutes so that the moisture in the rice would be reduced and become cool to the touch; and manually breaking up the rice by hand by an employee wearing gloves, which continues to cool the rice. After each grain of rice is separated by hand, the rice is cooler. After following the process the rice is cooled to 70 degrees Fahrenheit within two hours. Respondent was also cited for a violation of Food Code Rule 03B-03-1--"Potentially hazardous food not held at 135 degrees Fahrenheit or above cooked rice 112 degrees and cooked eggs at 117 degrees. Repeat violation." While inspecting, Inspector Gandolff observed both cooked rice at 112 degrees Fahrenheit and cooked eggs at 117 degrees Fahrenheit. The rice's temperature of 112 degrees Fahrenheit, allegedly was 23 degrees under its proper storage temperature of 135 degrees, and the eggs at a temperature of 117 degrees Fahrenheit, allegedly was 18 degrees under its proper temperature of 135 degrees. Both the rice and eggs were in the process of being cooled down through Canton Rose’s methodology. In general, the temperature of food must be maintained according to the type of food and whether it is in the process of being prepared, including cooling down. Temperature maintenance is considered important since food that is not held at the proper temperature can grow bacteria. Such bacterial growth can cause illness and is a public health threat. For that reason, food, which is out of temperature, is considered a critical violation of the Food Code, which is incorporated in Florida Law. Respondent owns Canton Rose. The restaurant has been open for four years. Respondent cooks about six pots of rice a day and usually it is all sold daily before it is completely cooled down and put it in the cooler. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order that finds Respondent not guilty as charged in Counts I and II of the Administrative Complaint. DONE AND ENTERED this 26th day of September 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 26th day of September, 2011. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Guo Xun Zhoz 4038 Southwest 67th Avenue Miami, Florida 33155 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact No Name Pub holds a Permanent Food Service license 5400281, for operation of a public food establishment on Watson Boulevard, Big Pine Key, Florida. On April 16, 2009, at 11:58 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. The inspector cited the following violations, among others: 1) failure to provide the required consumer advisory for food that is raw, undercooked, or not otherwise processed to eliminate pathogens; 2) use of working food containers without label as to contents; 3) failure to provide hot water at employee hand wash sink; and 4) failure to provide handwashing cleanser at handwashing lavatory. At the time of this inspection, Respondent corrected the first, third, and fourth violations in the presence of the inspector. On December 7, 2009, the inspector performed another routine inspection of the public food establishment. Among other things, the inspector observed the recurrence or continuation of the four violations described in the preceding paragraph. The four violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause foodborne illness. Respondent's testimony, even if credited, does not rebut the violations with the exception of the first violation-- the lack of a consumer advisory. Twice, a trained inspector could not find such a warning. The testimony offered by Petitioner is credited over that offered by Respondent.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the four violations identified above and imposing an administrative fine of $1600 on Respondent. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 26th day of July, 2011. COPIES FURNISHED: William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Douglas P. Leps No Name Pub Post Office Box 430818 Big Pine Key, Florida 33043
