The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint, dated January 25, 2016; and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant doing business as Hook Fish and Chicken, located at 1830 North Myrtle Avenue, Jacksonville, Florida 32209, holding Permanent Food Service license number 2614999. Linda C. Sutherland is employed by the Division as a senior sanitation safety specialist. Inspector Sutherland has worked for the Division for approximately four years, serving approximately 13 months as a senior inspector and three years as an inspector. She had worked in the food industry for about 30 years before joining the Division. Inspector Sutherland has received training on the U.S. Food and Drug Administration’s Food Code (“Food Code”), as adopted by reference in Florida Administrative Code Rule 61C-1.001, and training on the Florida laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Sutherland is also a certified food manager and performs more than 1,000 inspections each year. On January 20, 2016, Inspector Sutherland performed an unannounced routine food service inspection of Respondent’s premises. Inspector Sutherland prepared and signed an inspection report setting forth the violations she observed during her inspection. She provided a copy of the inspection report to Ahmed Muhamed, the manager on duty. The inspection report notified Respondent that the violations must be corrected by January 21, 2016. During the January 20, 2016, inspection, Inspector Sutherland observed approximately twenty-three (23) dead roaches throughout Respondent’s establishment, seventeen (17) live roaches on a wall above Respondent’s water heater and three- compartment sink in the kitchen area, and three (3) live roaches near a pipe at the bottom of the water heater. Because numerous live roaches were seen on the premises, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency Order was issued on January 20, 2016, the same date as the inspection. On January 21, 2016, Inspector Sutherland performed two separate callback inspections of Respondent’s premises, one commencing at 11:07 a.m. and one commencing at 3:39 p.m. During both callback inspections, Inspector Sutherland prepared and signed inspection reports indicating that the violations noted during the previous day’s inspection had not been corrected. During the first callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches in the kitchen area near the water heater and approximately twelve (12) live roaches on a wall near the three-compartment sink in back of the kitchen area. During the second callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches near the water heater, one (1) live roach on the wall behind the three-compartment sink, and one (1) live roach on the floor of Respondent’s back storage area. Inspector Sutherland notified Respondent about the violations found during both callback inspections on January 21, 2016, and informed Respondent that the violations must be corrected by January 22, 2016. The manager on duty, Ahmed Mohamed, signed for both of Inspector Sutherland’s reports on January 21, 2016, acknowledging receipt on behalf of Respondent. On January 22, 2016, Inspector Sutherland performed an additional callback inspection of Respondent’s premises. During the inspection, Inspector Sutherland noted that some, but not all, of the violations noted on the January 20, 2016, and January 21, 2016, inspection reports had been corrected. Inspector Sutherland observed one live roach on the shelf in the back prep area and three live roaches in the left door of Respondent’s three-door cooler. Rule 61C-1.001 defines “basic item” as “[a]n item defined in the Food Code as a Core Item.” Food Code Rule 1- 201.10(B) defines “core item” as “a provision in this Code that is not designated as a priority item or a priority foundation item.” “Priority” and “priority foundation” items are identified in the Food Code by way of a superscript; therefore, any provision of the Food Code that does not have a superscript is a “core item.” The first violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of numerous dead roaches throughout Respondent’s premises during the January 20 and 21, 2016, inspections. Food Code Rule 6- 501.112 defines this as a core item, which makes it a “basic item” for purposes of discipline by the Division. The second violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of live roaches throughout Respondent’s premises during the January 20, 21, and 22, 2016, inspections. The pervasive presence of live vermin was a violation significant enough to require an Order of Emergency Suspension of License and Closure. Section 509.221(7) requires the operator of a licensed food service establishment to take “effective measures” to protect against the entrance and breeding of vermin. Respondent was issued a prior Order of Emergency Suspension of License and Closure during the 12 months preceding the Administrative Complaint at issue in this proceeding. The Order of Emergency Suspension of License and Closure in Division case number 2015-032315 was filed against Respondent on July 30, 2015. Live and dead roaches were found on the premises in the inspections that led to this Order of Emergency Suspension of License and Closure. Respondent also had a prior disciplinary final order for operating without a license entered within the 24 months preceding the Administrative Complaint at issue in this proceeding. The final order in Division case number 2015-032598 was filed on December 21, 2015. The final order noted that live roaches were observed during the initial inspection and on a callback inspection the following day.
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 imposing a fine of $1,500.00, payable under terms and conditions deemed appropriate, and a two-day suspension of Petitioner’s license. DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 12th day of September, 2016.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaints in these consolidated cases and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for enforcement of the Florida Food Safety Act, Chapter 500, Florida Statutes. Handy 89 is located at 14531 North Cleveland Avenue, North Fort Myers, in Lee County. Since June 2002, Handy 89 has been operating a food establishment without a food permit from the Department. The Department does not inspect or approve septic systems at food establishments. Rather, the Department seeks certification that the food establishment has obtained approval from the local health authority or, in the case of large scale systems, from the Department of Environmental Protection. In this case, the Lee County Department of Health was the agency responsible for permitting the sewage system at Handy 89. Handy 89's owners applied to Lee County for a Certificate of Occupancy on May 20, 2002. Johanna Whalen, an environmental specialist with the Lee County Department of Health, coordinated with Handy 89 as to the steps required before the certificate could be issued. Ms. Whalen was familiar with the Handy 89 building because she drove past it every day on her way to work. She knew that the building had been closed to the public for more than one year and that it was serviced by a septic system. Ms. Whalen informed Handy 89 that when a septic system has been out of service for more than one year, it must be upgraded to meet current requirements for such systems. Handy 89 never applied for a construction permit to bring the septic system into full compliance. Klaus Kment is the Department sanitation and safety specialist responsible for inspecting the premises at Handy 89. On June 6, 2002, Mr. Kment authorized Handy 89 to operate as a food establishment. At the time, Mr. Kment was unaware of the problem with Handy 89's septic system. Mr. Kment testified that the Handy 89 building was located in a densely populated area, and he, therefore, assumed that the building was connected to city water and sewer service. Handy 89 opened for business in early June 2002. Ms. Whalen drove past the Handy 89 store and was surprised to see it opened for business. She contacted the Department's main office in Tallahassee, which relayed her concerns to Mr. Kment in Fort Myers. On June 17, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County, and for failure to have a certified food manager. He assigned Handy 89 an overall rating of "poor." Mr. Kment conducted another inspection of the Handy 89 premises on July 2, 2002. He once again cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County, and for failure to have a certified food manager, and again assigned it an overall rating of "poor." Mr. Kment's inspection report noted that Handy 89 "will need additional time to comply." Mr. Kment waited two months before conducting a third inspection, though he visited the store several times during the interim between inspections. On September 6, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County and for failure to properly dispose of mop water. Mr. Kment noted that he had visited Handy 89 numerous times, but no progress had been made in obtaining a permit for the sewage system. By the time of the September 6, 2002, inspection, Mr. Norman Lippman of Handy 89 had become certified as a food manager, correcting that repeated violation. Nonetheless, Mr. Kment assigned Handy 89 an overall rating of "poor." By letter dated September 9, 2002, the Department denied Handy 89's application for a food permit based on its failure to obtain a satisfactory sanitation inspection rating. However, Handy 89 continued to operate and to sell products for which a food permit is required, such as dairy products and meat. The Handy 89 store contained more than 12 linear feet of shelving for these food products. On September 23, 2002, the Department issued an Administrative Complaint against Handy 89, citing the repeated violation for the sewage system, as well as the violations for improper disposal of mop water and failure to have a certified food manager. The Department proposed to settle the complaint for payment of $900.00 and the correction of all violations within 21 days of receipt of the Administrative Complaint. This is the Administrative Complaint at issue in DOAH Case No. 03-0535. On October 17, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County. Mr. Kment also noted the presence of live insect infestation in some self-rising flour on the store shelves. Handy 89 voluntarily destroyed the flour. Due to the failure to make progress on the sewage system, Mr. Kment again assigned Handy 89 an overall inspection rating of "poor." On November 21, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County. He noted that the owner was not present, and that no documentation was left on the premises to indicate any action on the sewage system. Mr. Kment assigned Handy 89 an overall inspection rating of "poor." On December 5, 2002, the Department issued an Administrative Complaint against Handy 89, citing the repeated violation for the sewage system, as well as the violation for insect infestation. The Department proposed to settle the complaint for payment of $750.00 and the correction of all violations within 21 days of receipt of the administrative complaint. This is the Administrative Complaint at issue in DOAH Case No. 03-0536. Dr. John Fruin, the chief of the Division of Food Safety, testified that the Department cannot give Handy 89 a food permit unless it has an approved septic system and that the Department is without authority to waive that requirement. Handy 89 offered no testimony or documentary evidence to dispute the Department's case that its sewage system was not permitted by Lee County.
Recommendation Based on all the evidence of record, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that Handy 89 committed the violations alleged in the Administrative Complaints; ordering Handy 89 to pay an administrative fine in the amount of $5,000.00 within 15 days of receipt of the final order, and ordering that a closed-for-operation sign be prominently posted on Handy 89's food establishment until such time as Handy 89 has obtained a food permit pursuant to Chapter 500. DONE AND ENTERED this 5th day of September, 2003, in Tallahassee, Leon County, Florida. S _____ LAWRENCE P. STEVENSON 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, 2003. COPIES FURNISHED: Norman Lippman Handy 89 Sunoco 14531 North Cleveland Avenue North Fort Myers, Florida 33903 John McCarthy, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Phil Reis 1470 Route 46 East Ledgewood, New Jersey 07825 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated March 17, 2008, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant located at 2054 State Road 436, Suite 128, Winter Park, Florida, holding Permanent Food Service license number 5811081. On March 12, 2008, Wilfredo Goris, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Goris observed 17 live roaches inside a box containing light bulbs in front of the three-compartment sink, two roaches on a water heater in the same general area as the three-compartment sink, and three dead roaches in the vicinity of the three-compartment sink. Mr. Goris showed the roaches to Carlos Nevarez, the manager of Stacked Subs, to make him aware of the problem. Mr. Goris prepared and signed an inspection report detailing his findings during the inspection. Mr. Nevarez also signed the report to indicate receipt of the inspection report. The Division advises its inspectors that all reports of pest activities should be forwarded to the Tallahassee office for review. Mr. Goris sent his inspection report to Tallahassee for a determination of how to proceed against Stacked Subs, i.e., whether to allow the restaurant to remain in operation or to suspend its license until the roach infestation is eliminated. Mr. Goris testified that the Tallahassee office decided that because the roach activity was in the kitchen area, the restaurant should be closed as a threat to public health until the facility was cleaned and sanitized. Mr. Nevarez testified that all the roaches were in a box of fluorescent light bulbs that had been brought in from a storage unit a couple of weeks earlier. The box was removed immediately after the inspection. According to Mr. Nevarez, once the box was removed, the roach problem was eliminated. To corroborate his testimony, Mr. Nevarez submitted a service report from Anteater Pest and Lawn Services, a large pest and lawn company. Anteater's technician arrived at Stacked Subs at 4 p.m. on March 12, 2008, and stayed until 5:30 p.m., inspecting the facility and treating any potential entry point for pests. Anteater's technician could find no roaches inside the restaurant. Mr. Goris returned to Stacked Subs the next day, March 13, 2008. Mr. Goris found no roaches and allowed the restaurant to reopen. Mr. Nevarez submitted photographs of the restaurant to show where Mr. Goris found the box containing the roaches. Mr. Goris viewed the photographs and agreed with Mr. Nevarez as to the location of the box. The photographs indicate that the box was placed next to a hot water heater in the very back of the restaurant, well away from the food preparation area. However, the kitchen is of a long, open galley-type construction, and there were no dividing walls between the hot water heater and the food preparation area. Therefore, the box containing the roaches was technically in the kitchen. A critical violation is a violation that poses an immediate danger to the public. 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. Roaches are carriers of diseases, including staphylococcus. The presence of roaches in the vicinity of the food preparation area constitutes a critical violation. The Division presented no evidence of prior disciplinary action against Respondent.
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 imposing a fine of $500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 11th day of September, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 11th day of September, 2008.
The Issue Do the Respondents operate a food establishment as that term is defined in Section 500.03(1)(j), Florida Statutes? If so, are the Respondents, under the circumstances of this cause, required to obtain a food permit from the Department of Agriculture and Consumer Services (Department) in accordance with Section 500.12, Florida Statutes, in order to continue operating their food establishment located within the premises of International Market World, Inc. (Market World) located at 1052 Highway 92 West, Auburndale, Florida? If the Respondents are required to obtain a food permit from the Department, should the Respondents be required to: (a) purchase a permit for each and every year or partial year of operation since being notified by the Department of such requirement; (b) pay a late fee for their failure to renew a permit that was never issued or; (c) pay an administrative fine for failing to obtained a food permit upon being notified of that requirement by the Department?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Department is the agency in the State of Florida responsible for the administration and enforcement of Chapter 500, Florida Statutes, and the rules promulgated thereunder relating to permitting, food safety and the sale of food to the consuming public. Janet M. Robbins and Gerald A. Robbins (Respondents) operate a stall within the confines of a flea market owned and operated by Market World located on Highway 92 West in Auburndale, Polk County, Florida. The Respondents lease the stall from Market World. Respondents receive all proceeds from the sale of items from their stall in Market World. Respondents' business mailing address is listed as 1026 Biltmore Drive, Northwest, Winter Haven, Polk County, Florida 33881. Respondents did not, at any time pertinent to this proceeding, possess an occupational license issued in their name from Polk County, Florida for operating their stall in Market World. Instead, Respondents operated under a blanket occupational license issued to Market World by the Tax Collector of Polk County, Florida in accordance with Polk County Ordinance No. 95-27 which covered all flea market vendors within the confines of Market World. However, had Market World elected not to purchase this blanket occupational license, Respondents would have been required under this ordinance to obtain a Polk County occupational license from the Tax Collector in order to operate their stall in Market World. In accordance with Department of Revenue Rule 12A-1.098, Florida Administrative Code, flea market vendors are required to collect sales tax on their sales but are not required to register with the Department of Revenue in order to remit those taxes. Instead, the rule allows the flea market vendor to remit the taxes collected under the registration of the flea market operator, manager, lessor or owner. Respondents have in the past used this method of remitting the sales tax collected by them to the Department of Revenue. However, the Respondents are presently remitting sales tax directly to the Department of Revenue. On May 6, 1994, Jimmy D. Daugherty, a Department Sanitation and Safety Specialist, visited the Respondents' stall at Market World and observed that Respondents were offering food for sale. Daugherty advised Janet Robbins that a food permit was required to sell food from Respondents' flea market stall. On this same date, Daugherty inspected Respondents' facility and issued a Food Safety Inspection Report and gave the facility an overall rating of good. Also, the report indicated that this was a new firm and that a food permit application was attached. The food permit application had been filled out by Janet Robbins with Daugherty's assistance. Subsequent to filling out the Food Permit Application, Janet Robbins discussed the matter with her husband, Gerald Robbins, who advised the Department that he disputed the requirement that Respondents' establishment must obtain a food permit. While it appears from the record that Respondents' application was submitted to the Department along with Daugherty's Food Safety Inspection Report, there was no evidence that Respondents tendered the proper fee for a permit or that a permit was ever issued to Respondents. On January 17, 1995, the Department issued Notice Number 95R-69185 concerning Respondents' 1995 Food Permit Renewal Notice. The Notice advised Respondents that they had failed to remit their 1995 Food Permit Renewal Fee, the reminder for which had been mailed to them on November 15, 1994. The November 15, 1994, notice was not introduced as evidence. The January 17, 1995, notice also advised Respondents that a late fee of $37.50 would be added if the food permit renewal fee was not paid by January 31, 1995, and that the late fee would be increased to $100.00 if the food permit renewal fee was not paid by February 28, 1995. On February 15, 1995, and again on April 26, 1995, the Department advised Respondents that the 1995 Food Permit Renewal Fee was past due and that an appropriate late fee had been added. In pertinent part, each of the Notices provided: If you dispute your firm type, the State Agency regulating your business, or if you are no longer in business, please indicate on the application (reverse side), sign and return.. . . . Respondents did not respond in writing to the Department disputing any of the matters set forth in the Notices received by them. Instead, Gerald Robbins made telephone calls to Dr. Martha Rose Roberts, Deputy Commissioner, and to Linton Eason in the legal department. These calls were not returned by the Department. On July 26, 1995, the Department issued a Notice of Intent To Impose Administrative Fine against Janet Robbins for operating a Food Establishment without a Food Permit in violation of Section 500.12, Florida Statutes. Respondents requested a formal hearing, and this matter was referred to the Division for the assignment of a Hearing Officer and the conduct of a hearing. Respondents moved to dismiss the matter which was unopposed by the Department. A Recommended Order of Dismissal was entered by the Hearing Officer and jurisdiction relinquished to the Department for final agency action. The Department entered an "Order" overruling the Recommended Order of Dismissal and further ordered that the Department intended to issue an immediate cease and desist order and to impose an administrative fine. The matter was again referred to the Division and this hearing ensued. On May 6, 1994, the Respondents were selling food, as defined in Section 500.03(1)(h), Florida Statutes, from their stall in the flea market known as Market World and have continued to sell food from their stall in the flea market since that date. Respondents' establishment within Market World is of a semi-permanent nature. This finding is based on the photographs entered into evidence as Respondents' Exhibits 5 and 6 and the unrebutted testimony of Gerald Robbins that certain pieces of Respondents' equipment located within the Respondents' stall at Market World were bolted to the floor. Several other flea market vendors within Market World have applied for and were issued food permits by the Department after paying the necessary fee. Because flea market vendors can move from one flea market to another, any flea market vendor who is issued a food permit for one location may operate under that same food permit at another flea market location provided the vendor does not operate at two or more flea market operations simultaneously. There was no evidence as to the annual gross food sales generated by Respondents' stall located within Market World. On May 5, 1995, Daugherty visited and inspected Respondents' stall at Market World. The Food Safety Inspection Report submitted by Daugherty for this inspection indicated an overall rating of good as did the report of May 6, 1994. Respondents have not interfered with, or attempted to interfere with, the Department's inspection of their food establishment even though they disagree with the requirement of having to obtain a food permit from the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that the Department of Agriculture and Consumer Services enter a final order requiring the Respondents to obtain a food permit for the partial year of 1994, and for a full year for 1995 and 1996, and assessing an administrative fine in the amount of $100.00. It is further recommended that no late fees be assessed for failure to renew a food permit that was never issued. RECOMMENDED this 30th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 30th day of August, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1154 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Department's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 4 are adopted in substance as modified in Findings of Fact 1 through 17. Respondents' Proposed Findings of Fact. Proposed findings of fact 1 - 4, 11, 13, 14, 17 and 18 are adopted in substance as modified in Findings of Fact 1 through 17. Proposed findings of fact 5 and 6 are neither material nor relevant. Proposed finding of fact 7, as stated, is argument rather than a finding of fact. Proposed findings of fact 8 - 10 and 15 are unnecessary as findings of fact. However, they are covered in the Preliminary Statement. Proposed finding of fact 16 is covered in the Conclusions of Law rather than in the Findings of Fact. The first two sentences of proposed finding of fact 19 are adopted in substance as modified in Finding of Fact 14. The balance of proposed finding of fact 19, as stated, is argument rather than a finding of fact. There was no proposed finding of fact 12 COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Linton B. Eason, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Gerald A. Robbins Qualified Representative 1026 Biltmore Drive, Northwest Winter Haven, Florida 33881
The Issue The issue in this case is whether on January 26, August 27, and August 28, 2012, Respondent was in compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, and if not, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. St. Johns Seafood and Oyster Bar, Inc., (St. Johns) is a licensed permanent public food service establishment operating at 7546 Beach Boulevard in Jacksonville, Florida. Its license must be renewed annually. Ms. Iliana Espinosa-Beckert has been employed by the Division for about five and a half years. She is a sanitation and safety specialist with the Division. She has had training, including formal initial training, on-the-job training, and monthly in-house training, in sanitation and inspection. She is a certified food manager. On January 26, 2012, Inspector Espinosa-Beckert conducted a food service inspection of St. Johns. Inspector Espinosa-Beckert prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using her personal data assistant (PDA) to record the violations that she observed during the inspection. The manager of the restaurant, Mr. Robert Rukab, acknowledged receipt of the report on behalf of St. Johns. During the January inspection, Ms. Espinosa-Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that shrimp, fish, scallops, oysters, and clams had a temperature of 60 degrees Fahrenheit at the seafood reach-in cooler (seafood cooler), and recorded this on her report. The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015. Ms. Espinosa-Beckert also observed during the January inspection that the seafood cooler was incapable of maintaining potentially hazardous food at proper temperatures. She noted on her report that there was no thermometer installed inside the seafood cooler, but that her measurements indicated that all of the seafood was at a temperature of 60 degrees Fahrenheit. On August 27, 2012, Ms. Espinosa-Beckert conducted another inspection of St. Johns. She again prepared an inspection report on DBPR Form HR 5022-015 using her PDA to record the violations that she observed. Ms. Espinosa-Beckert made Mr. Rukab aware of the violations she found, but Mr. Rukab was upset and refused to acknowledge receipt of the report on behalf of St. Johns. During the August 27, 2012, inspection, Ms. Espinosa- Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that cheese, chicken, and pasta were at 49 degrees Fahrenheit in a reach-in cooler in a food preparation area near the cook line (prep-line cooler), and recorded this on her report, along with a notation that it was a repeat violation. Inspector Espinosa-Beckert testified that this was a true “cold-holding” violation. She stated that her measurements of the temperature of the food were taken after the food had gone through the cooling period that is allowed for food to reach the proper temperature. Ms. Espinosa-Beckert noted in her report that the prep-line cooler was incapable of maintaining potentially hazardous food at proper temperatures. She recorded that the ambient temperature in the prep-line cooler was 46 degrees Fahrenheit and that foods were at a temperature of 49 degrees Fahrenheit, noting that this was a repeat violation. During the August 27, 2012, inspection, Ms. Espinosa- Beckert also observed that St. Johns was operating without a current license, because its license had expired on June 1, 2012. She noted this in her report. Ms. Espinosa-Beckert also observed both live and dead roaches on the premises.1/ She scheduled a call-back inspection for the following day, August 28, 2012. Inspector Espinosa-Beckert prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on August 28, 2012, using her PDA to record the violations that she observed. Mr. Rukab apologized for his refusal to sign the previous day, and acknowledged receipt of the report on behalf of St. Johns. On August 28, 2012, Ms. Espinosa-Beckert observed that the prep-line cooler thermometer now read 35 degrees and that cheese was 39 degrees Fahrenheit and pasta was at 40 degrees, within approved temperature limits. She noted this on the first page of her report. The license had not been renewed since the previous day. The Division served an Administrative Complaint against St. Johns for the above violations on or about September 6, 2012. On both January 26 and August 27, 2012, St. Johns had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit. While evidence was presented that on different dates two individual coolers were incapable of maintaining potentially hazardous food at proper temperatures, there was also evidence that on these occasions there was additional adequately cooled space available which could have been utilized to meet the demands of St. Johns’ operations. At hearing, Ms. Espinosa- Beckert testified as follows: Q: Did he have any other cooler available where he could have moved the food? A: He had the –- yes, he did. He has the other, which is the seafood cooler, which I don’t think they put anything ready- to-eat in that one. But he has a two-door upright cooler also on the opposite side of this one I made a violation, and that was OK also. So he could have moved the food. The evidence did not show that on either January 26, 2012, or August 27, 2012, the cooling equipment available at St. Johns was insufficient in number or capacity to maintain all food at required temperatures. On August 27 and 28, 2012, St. Johns was operating without a license, as its old license had been expired for more than 60 days. Additional evidence introduced at hearing and considered solely for purposes of penalty calculation showed that St. Johns had two previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. The first of these was a Stipulation and Consent Order signed by Mr. Rukab on behalf of St. Johns on March 9, 2011, and filed on March 24, 2011, in Case No. 2011-02147. The Order was in settlement of an Administrative Complaint issued on February 23, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 27, 2010, November 23, 2010, November 24, 2010, and February 8, 2011. Some of the allegations would have constituted critical violations. The second of the previous disciplinary orders was a Final Order on Waiver filed on August 10, 2011. Respondent had been served an Administrative Complaint and Election of Rights on June 1, 2011, but had failed to respond by June 22, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 26, 2011, and May 3, 2011. The Final Order on Waiver imposed a fine of $4,400 for several violations, some of which were critical violations.
Recommendation Upon consideration of the above 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 finding St. Johns Seafood and Oyster Bar, Inc., has committed a critical violation and was operating with a license expired for more than 60 days, and imposing a fine of $1,500, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 9th day of April, 2013.
