The Issue Whether the Respondent committed the violations alleged in the Notice to Show Cause dated October 2, 1997, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments in Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes. Sections 509.032 and .261, Florida Statutes. Pizza Hut #710602 is a public food service establishment located at 10394 West Sample Road, Fort Lauderdale, Florida. The establishment operates under the Division's license control number 16-0869-R. Pizza Hut #710602 is a delivery and carry-out facility with no customer seating. There is, however, a small counter where patrons may eat their pizzas on the premises, if they wish. The store is located at the end of a strip mall, and it opens for business at 11:00 a.m. On October 2, 1997, the manager of Pizza Hut #710602 arrived shortly before 10:00 a.m. and began carrying out the administrative tasks necessary to prepare to open the premises for business. Pursuant to the established routine for Pizza Hut delivery and carryout facilities, the manager turned off the alarm and set the time-release safe, which opens fifteen minutes after it is set. When the safe opened, the manager began counting the previous night's cash receipts so he could prepare the deposit and take the cash to the bank. The manager was the only employee on the premises. Shortly after 10:00 a.m., while the manager was counting the money from the safe, a woman knocked on the front door of the restaurant and requested that she be allowed into the restaurant to conduct a routine health and safety inspection. She showed the manager her clipboard, which contained a schedule showing that Pizza Hut #710602 was scheduled for inspection on October 2. Although she had identification showing that she was Lisa Bosworth, an inspector employed by the Division, the manager did not request to see her identification, and she did not show it to him. Ms. Bosworth did not see anyone in the facility except the manager. The manager refused to unlock the door for Ms. Bosworth, telling her through the door that he could not unlock the door because it was Pizza Hut's policy not to allow anyone but scheduled employees access to the premises before the facility was open for business. The manager told Ms. Bosworth to return at 11:00 a.m. Ms. Bosworth went directly to a pay telephone in the adjacent parking lot, a short distance from the Pizza Hut, and called her supervisor to report the manager's refusal to allow her into the facility. She also spoke by telephone with the Division's regional supervisor. Meanwhile, the manager finished preparing the deposit, which totaled approximately $2,000, and left the facility to go to the bank. As he was going to his car, he noticed Ms. Bosworth at the pay telephone in the parking lot. He approached her and again invited her to return at 11:00 a.m. to conduct her inspection. After the manager left, Ms. Bosworth completed her Food Service Inspection Report while sitting in her car in the parking lot, and then she returned to her office, where she completed more paperwork and spoke with Division personnel. She returned to Pizza Hut #710602 at around 2:30 p.m. on October 2 and obtained the manager's signature on her report, which detailed the events of the morning. Ms. Bosworth usually performs five or six inspections each day and plans her daily inspections according to the location of the facilities on her list for the day. Pizza Hut #710602 appeared on the list of facilities she was to inspect on October 2, 1997, but she had no set schedule or specific order in which she was required to perform her assigned inspections. She stopped at Pizza Hut #710602 shortly after 10:00 a.m. simply because she had been working in the vicinity of the Pizza Hut that morning. It is the Division's policy to inspect food service establishments during operating hours. The Division's Sanitation and Safety Supervisor testified that, in the Division's view, operating hours includes anytime anyone is working on the premises of a public food service establishment. The supervisor also testified that the reason for inspecting establishments before and after the hours they are open for business is to observe activities involving food preparation, to take the temperature of refrigerators and freezers to ensure that they are adequate for food storage, to observe the practices used in cleaning the facilities and in receiving goods, and to observe general business practices involving food safety issues. The Division does relatively few before- and after-hours inspections, although such inspections are part of the Division's normal routine. As a result of a growing number of robberies of fast- food restaurants, Pizza Hut instituted a policy approximately four years ago limiting access to its establishments at times when they are not open for business. The policy is contained in section 2.1 of Pizza Hut's January 1996 Administrative Guide, which provides that, with respect to premises security: "Do not open front door(s) during non-business hours to anyone, except known scheduled employees or known vendors. Establish and verify picture ID of the person PRIOR to opening doors or allowing that person to enter the premises." The manager of Pizza Hut #710602 was relying on this policy when he refused to allow Ms. Bosworth to enter the premises before 11:00 a.m. When the Division inspector requested access to Pizza Hut #710602 shortly after 10:00 a.m. on October 2, 1997, the only employee on the premises was the manager, who was performing administrative duties having no relationship to the public health, safety, and welfare. Nonetheless, access for the purpose of inspection was requested at a reasonable time and during what could reasonably be considered the establishment's operating hours.
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 finding that Pizza Hut of Titusville, Inc., d/b/a Pizza Hut #710602, violated Section 509.281(2)(b), Florida Statutes, and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Daniel R. Biggins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Charles Caulkins, Esquire Law Office of Fisher & Phillips 2300 Nationsbank Tower One Financial Plaza Fort Lauderdale, Florida 33394-0005 Dorothy W. Joyce, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1011 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division 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 operating at 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license number 1621408. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits, Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than 135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/ The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 13th day of August, 2013.
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 (2003). The Respondent is a restaurant located at 7924 Ulmerton Road in Largo, Florida, holding Permanent Food Service License No. 6213580. Fadil Rexhepi owns and operates the restaurant. On April 25, 2003, an employee representing the Petitioner performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a written report. The inspector provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for May 30, 2003. On May 30, 2003, the Petitioner’s employee re-inspected the Respondent and determined that some of the violations remained uncorrected. The violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection. The owner of the restaurant was not present during either inspection. On August 28, 2003, the Petitioner filed an Administrative Complaint against the Respondent, alleging various continuing and uncorrected violations identified during the inspections. During the inspections on April 25, 2003, and May 30, 2003, food stored in reach-in units was not being maintained at an appropriate temperature of 41 degrees or below. The required storage temperature is intended to prevent development of toxic microorganisms that can result in food safety issues for persons consuming improperly stored food. On April 25, 2003, the inspector found that the temperature of meats, fish, poultry, meatloaf, and milk stored in the units ranged from 46 to 49 degrees. On May 30, 2003, the inspector found that the food temperatures in the same units ranged from 43 to 56 degrees. During the inspections on April 25, 2003, and May 30, 2003, two refrigeration units were not maintaining a proper temperature of 41 degrees or below. During the inspections on April 25, 2003, and May 30, 2003, the inspector noted that the thermal glass in a reach-in unit door was broken. The broken thermal glass results in inability to maintain proper temperatures. During the inspections on April 25, 2003, and May 30, 2003, the Respondent was unable to provide, at the request of the Petitioner's inspector, documentation that employees had completed food safety training. The purpose of food safety training is to permit employees to perform their duties in a manner consistent with the requirements of the Food Code. The Food Code regulation violations identified herein pose a direct threat to public safety.
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 $2,000 against the Respondent. DONE AND ENTERED this 16th day of July, 2004, 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 16th day of July, 2004. COPIES FURNISHED: William M. McCalister, Qualified Representative Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Fadil Rexhepi 7924 Ulmerton Road Largo, Florida 33771 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent violated food safety standards established by section 509.032, Florida Statutes, and the implementing rules as charged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact Parties At all times material hereto, Richie Cheesesteak was owned and operated by Richard Fascenda, as a licensed permanent public food-service establishment located at 6191 Deltona Boulevard, Spring Hill, Florida. Mr. Fascenda holds License No. 3700896 to operate Richie Cheesesteak.1/ Mr. Fascenda is the owner/operator of Richie Cheesesteak, as well as the only cook. The Division is responsible for monitoring and inspecting licensed food-service establishments to ensure that they comply with the standards set forth in relevant statutes and rules, and the Food Code. Initial Inspection On April 16, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food-service inspection of Richie Cheesesteak. On the date of the inspection, Mr. Roff had been employed by the Division for approximately three months and was still under probation. Mr. Roff had no experience in the food- service industry prior to his employment with the Division. Mr. Roff received training from the Division in the laws relating to food service, and has become certified as a food manager. The Division additionally provides monthly in-house training which Mr. Roff has attended. During his probationary period, Mr. Roff accompanied his senior inspector on food-service establishment inspections, observing how the inspector conducted inspections, identified violations, and provided corrective actions. As part of his training, Mr. Roff was also “shadowed” by his senior inspector as Mr. Roff conducted inspections. On the date of the final hearing, Mr. Roff had conducted approximately 600 restaurant inspections. Cited Violations License and Certification On April 16, 2013, Mr. Roff prepared an Inspection Report noting a total of 13 alleged violations of the standards set forth in applicable statutes, administrative rules, and the Food Code. Respondent was cited for an expired license, a high priority violation which was remedied on-site during the inspection. Among the other violations Mr. Roff noted in his Inspection Report was Respondent?s failure to produce proof of a food manager certificate. Section 509.039 provides for a Food Manager Certification Program to ensure all managers of food-service establishments have a demonstrated knowledge of basic food protection practices. The statute further requires that “[a]ll public food-service establishments must provide the division with proof of food-service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment.” Id. In 2008, Respondent was an assistant manager for Boyz- N-Burgers, operated by McClain Sonic?s, and was certified as a food manager at that time. On the date of inspection, Respondent could not produce a copy of his certificate and explained that the certificate would be on file with his former corporate employer. A food manager certificate expires five years after certification. A violation of section 509.039 is designated by the Division as an intermediate priority violation. Reach-in Cooler Gasket Among the violations Mr. Roff noted was that the gasket on the reach-in cooler was both torn and soiled. Food Code Rule 4-501.11(B) provides, “Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturer?s specifications.” A torn or otherwise damaged cooler gasket can cause cross-contamination of food and prevent the storage of foods at the required temperature. Respondent?s reach-in cooler is at least 30 years old. Respondent did not testify that the gasket had ever been replaced, although he did state that it has been “siliconed over” on several occasions. Respondent admitted at final hearing that the reach-in cooler gasket was torn in one place. Respondent denied that the gasket was soiled, explaining that there might have been some food spilled on it during lunch and the inspection was conducted right after lunch. Respondent insisted that he wipes down the gasket every day. Violation of rule 4-501.11(B) is designated by the Division as a basic violation. Storage of Utensils Among the other violations observed by Mr. Roff was a knife stored between two pieces of kitchen equipment. Food Code Rule 3-304.12 provides, in pertinent part, as follows: During pauses in FOOD preparation or dispensing, FOOD preparation and dispensing UTENSILS shall be stored: * * * (C) On a clean portion of the FOOD preparation table or cooking EQUIPMENT only if the in-use UTENSIL and the FOOD-CONTACT surface of the FOOD preparation table or cooking EQUIPMENT are cleaned and SANITIZED at a frequency specified under subsections 4-602.11 and 4-702.11. * * * (F) In a container of water if the water is maintained at a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) and the container is cleaned at a frequency specified under subparagraph 4-602.11(D)(7). Respondent admitted that a knife was stored in the crack between two pieces of kitchen equipment when Mr. Roff made his initial inspection. Violation of rule 3-304.12 is designated by the Division as a basic violation. Improperly Marked Containers Mr. Roff also observed “cookline bottles” stored in squeeze bottles which were not labeled as to their contents. Food Code Rule 3-302.12 reads as follows: Except for containers holding FOOD that can be readily and unmistakably recognized such as dry pasta, working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD. Respondent keeps two bottles on the cookline, one for oil and one for vinegar. Respondent is the only cook. Respondent testified that he has the bottles marked “oil” and “vinegar” with black marker. He introduced a photograph of the bottles marked as such, but the photograph was taken subsequent to the callback inspection and is not accepted as evidence of the condition of the bottles on the day in question. Mr. Fascenda testified that during the inspection, he showed the bottles to Mr. Roff and pointed out the hand-labeling, but admitted that Mr. Roff could not see the wording because it rubs off easily. Mr. Roff testified he did not recall seeing any labeling on the bottles. Violation of rule 3-302.12 is designated by the Division as a basic violation. Mr. Roff walked through the violations with Respondent, who signed the Inspection Report on April 16, 2013. The Inspection Report noted that a follow-up inspection was required and that the violations must be corrected by June 16, 2013. Callback Inspection On June 17, 2013, Mr. Roff performed a callback inspection at Richie Cheesesteak. Mr. Roff observed that seven of the violations noted in the April 16, 2013, Inspection Report had been corrected. However, the violations detailed above –- gasket on reach-in cooler torn and soiled; knife stored between kitchen equipment; cookline bottles unlabeled; and no proof of food manager training –- were not corrected. Mr. Roff prepared a Callback Inspection Report, which was signed by Respondent. The Callback Inspection Report recommended filing an Administrative Complaint. Petitioner introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code. Owner?s Response Certification Respondent maintained it would be impossible to produce his food manager certificate because it was retained by his employer in 2008. Respondent was clearly frustrated with Mr. Roff?s unwillingness to accept the explanation given at the first inspection and was indignant at being fined for lack of food manager certification following the callback inspection. Respondent?s explanation that he was previously certified but that the certificate was retained by his former employer is not a defense. The statute clearly requires production of the food manager certificate when the Division inspects the manager?s food-service establishment. Following the callback inspection, Respondent obtained a Food Manager Certificate, which was introduced at final hearing. Reach-in Cooler Gasket Respondent argued that if the gasket was not functioning, the reach-in cooler would not be maintaining the appropriate temperature, which it was when tested upon inspection. Respondent?s argument is not a defense. Keeping food at the proper temperature is only one of the aims of the rule. The other is to prevent cross-contamination of food in the cooler with substances on the gasket, whether they are foods spilled thereon or bacteria growing in a torn gasket. Respondent further argues that cross-contamination is not an issue since he is the sole operator and cook. Cross- contamination of foods in the reach-in cooler is not a function of how many different employees use the cooler, but rather the condition in which it is kept. Respondent testified that, since the callback inspection, he “siliconed over” the gasket to seal it and improve its appearance. He produced before and after photographs of the gasket at final hearing. Neither picture is evidence of the condition of the gasket upon inspection,since they were taken approximately two weeks before the hearing. If anything, the “before” picture tends to support the Division?s case that the gasket was torn and soiled upon inspection. Storage of Utensils Respondent admitted that a knife was stored between two pieces of kitchen equipment on the date of the first inspection. But, he maintained that was an accident and he does not regularly store knives that way. Improperly Marked Containers Respondent first argued that his oil and vinegar bottles were labeled, although in marker, and he should not be held in violation. The evidence shows that the labels were unrecognizable when the inspections occurred. Respondent next argued that the following facts should be taken into consideration when determining whether he violated the rule. First, there are only two bottles –- oil and vinegar. Accidental mixing of their contents would not create a health hazard or threat. Second, Respondent is the only cook, so mixing the contents is unlikely. Third, the cookline is separated from the cleaning area. Thus the likelihood of mixing the contents of the cookline bottles with bleach or another cleaning product is minimal. While Respondent?s arguments are no defense, they may be considered mitigating factors.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent Richie Cheesesteak violated section 509.039 and Food Code Rules 3-302.12, 3-304.12, 4- 501.11, and 4-601.11, as alleged in the Administrative Complaint; and Imposing an administrative penalty against Respondent Richie Cheesesteak in the amount of $800, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 16th day of December, 2013.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated May 23, 2011, and if so, whether disciplinary action should be taken against Respondent.
Findings Of Fact The Department 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 a Florida corporation named Stugotz, Inc., doing business as Joey's On Beach. The corporation is wholly owned by Joseph Di Meglio. Respondent holds a public food establishment license issued by the Department. Respondent's business address is 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. Inspector Smith has been employed by the Department as a Sanitation and Safety Specialist for approximately five years. She has received training in laws and rules regarding public food service and lodging, is a certified food manager, and performs approximately 1,000 inspections each year for the Department. Formerly, Inspector Smith was a restaurant manager for 15 years. On March 2, 2011, Inspector Smith performed a food service inspection of Joey's On Beach located at 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. During the inspection, Inspector Smith prepared and signed an inspection report on her electronic personal data assistant setting forth violations she allegedly encountered during the inspection. Ann Marie Di Meglio, the wife of the owner of Joey's On Beach, was present during the inspection and signed the report on the electronic device. According to the inspection report, the March 2, 2011 inspection of Joey's On Beach occurred at 11:11 a.m. Joey's On Beach opens at 11:00 a.m. The inspection occurred during active food preparation. Inspector Smith made the Respondent aware that all violations noted during the inspection needed to be corrected by May 2, 2011. All of the pages of the three-page March 2, 2011, inspection report are prefaced with the heading "FOOD SERVICE INSPECTION REPORT LEGAL NOTICE" with the warning that "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." The third page of the March 2nd report set forth alleged violations as follows: Warning(s) 12A-09-1: Observed food employee wearing jewelry other than a plain ring on their hands/arms while preparing food. 22-25-1: Observed buildup of soiled material on mixer head. 08A-28-11: Observed bag if [sic] bread crumbs on foor [sic] in walkin cooler. 08A-29-1: Observed sauce and bread crumbs uncoverd [sic] in walkin cooler. 02-22-1: Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked. Sausage 08A-23-1: Observed shell eggs over sausage in walkin cooler 08A-28-1: Observed jug of oil stored on the floor. 53B-08-1: No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. 32-16-1: Hand wash sink lacking proper hand drying provisions. Corrected on site. 09-04-1: Observed bare hand contact of ready-to-eat food by employees and establishment has no approved Alternative Operating Procedure in effect. Corrected On Site. On May 3, 2011, Inspector Smith performed a callback inspection of Joey's On Beach. According to the report, the inspection was performed at 10:18 a.m. Respondent had not yet opened for business and the callback inspection was conducted during active food preparation. During the callback inspection, Inspector Smith did not discuss specifics of the case with the owner, Joseph Di Meglio, because, according to Inspector Smith, inspectors are "not allowed to discuss the case at an inspection." Inspector Smith prepared and signed a two-page report for the May 3rd callback inspection on her electronic personal data assistant indicating that some of the violations noted on the March 2, 2011, inspection report had not been corrected. Mr. Di Meglio signed the May 3, 2011, inspection report. Both pages of the May 3 inspection report had the same "Legal Notice" as the earlier report, stating "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." Alleged uncorrected violations recommended for an administrative complaint were noted on the May 3 inspection report as follows: The following item(s) have been recommended for Administrative Complaint: Violation 53B-08-1 No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. At callback no training provided for Ann Marie. Violation 22-25-1 Observed buildup of soiled material on mixer head. Violation 08A-29-1 Observed sauce and breadcrumbs uncovered in walkin cooler Violation 08A-28-1 Observed bag if [sic] breadcrumbs on floor in walkin cooler Violation 02-22-1 Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked, sausage, and at callback sausage and meat balls not date marked in walkin cooler The Administrative Complaint in this case charged Respondent with the same five alleged violations recommended in the May 3rd callback inspection report, in the following order (Counts 1 through 5): (1) Observed ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked in walk-in cooler [referencing 02-22-1, and citing 3-501.17(A), Food Code]; (2) Observed bag of bread crumbs on floor in walk-in cooler [referencing 08A-28-1, and citing 3-305.11, Food Code]; (3) Observed sauce and break [sic] crumbs uncovered in walk-in cooler [referencing 08A-29-1, and citing 3-302.11A)(4), Food Code]; (4) Observed build up of soiled material on mixer head [referencing 22-25-1, and citing 4-601.11(A), Food Code]; and (5) Observed no proof of required training provided, at call back no training provided for Ann Marie [referencing 53B-08-1, and citing 509.049, Florida Statutes]. At the final hearing, the Department announced that Count 5 of the Administrative Complaint, alleging a lack of training in violation of section 509.049, Florida Statutes, had been dropped because Mr. Di Meglio had established to the Department's satisfaction that Respondent's employees were properly trained. The Department presented some evidence in support of the remaining allegations. As discussed below, however, the Department only met its burden of persuasion as to Count 2 alleging that breadcrumbs were improperly stored in an open container on the floor of the walk-in cooler. As to Count 1 of the Administrative Complaint, at the final hearing, Inspector Smith referred to both inspection reports and observed that the reports indicated that Respondent had failed to properly date mark ready-to-eat potentially hazardous food (sausage and meatballs) held on site for more than 24 hours in the walk-in cooler. She explained that such failure was a critical violation because food must be date- marked to indicate the day it was prepared, and the day that it expires. She further explained that potential hazardous foods, such as precooked sausage and meatballs, are only good for seven days from the date prepared. Respondent's witness, Ann Marie Di Meglio, works at the restaurant and was there when the first inspection took place. Her husband, Mr. Di Meglio, was not. According to Ms. Di Meglio, it is Respondent's procedure to date-mark the containers in the walk-in cooler. She further testified that at the time of the inspection, there was active preparation, and it is hard to keep things covered during active preparation. Mr. Di Meglio, through his testimony, further explained that they date-marked the covers of the sausage and other prepared foods in the cooler, but remove the lids to gain access to the food during active preparation. He testified that there were labels on the lids of the sausage and meatball containers at the time of the inspections, but that the lids had been set aside because of preparation. Inspector Smith suggested that she would have cited the sausage and meatball containers for being open, but could not recall whether they were open or not. She did not see the labels on the lids. There were no photographs or specific descriptions of the containers or observations by Inspector Smith. During the final hearing, when asked whether there were dates on the lids of the containers, Inspector Smith testified, "I can't answer that because I'm not there. I didn't write anything about it being uncovered." Based upon the explanations provided by the Di Meglios, the timing of the inspections, the lack of specific recollection by Inspector Smith, and considering that the Department has the burden of persuasion, it is found that the Department did not prove that Respondent failed to properly date its containers of potentially hazardous foods as alleged in Count 1 of the Administrative Complaint. As to Count 2, Inspector Smith stated in both the March 2 and May 3, 2011, inspection reports that she observed an open bag of breadcrumbs stored on the floor in Respondent's walk-in cooler. Storage of breadcrumbs on the floor in an open container is a critical violation because when food is stored on the floor, it can become contaminated by exposure to wastewater or germs from walking back and forth outside to the bathroom. While perhaps an open container could be explained by the fact that there was active food preparation, no excuse or explanation was offered as why an open bag of breadcrumbs was found on the floor during both inspections. Respondent's witnesses did not otherwise address the improper storage of breadcrumbs on the floor as alleged in Count 2 of the Administrative Complaint. As to Count 3 relating to the open containers of breadcrumbs and sauce, it is found that Respondent's explanation of active food preparation was reasonable given the timing of the inspections. In other words, the Department failed to prove that Respondent was storing foods in open containers because it is found that the containers were only opened temporarily during active food preparation.3/ As to Count 4, relating to an alleged dirty mixer head, the inspection reports for both the March 2 and May 3, 2011, inspections indicate there was a "buildup of soiled material on mixer head." While Ms. Di Meglio testified that she did not know if there was something on the mixer head at the time of the inspections, she testified that the mixer is cleaned every day, and that the material on the mixer head, if any, was not old. Rather, she explained, she had used the mixer around 10:00 a.m. the very morning of the first inspection to make dough and cut cheese. Ms. Di Meglio further explained that Respondent's mixer is very old and has some discoloration. And, while admitting that there may have been some dust or flour on the mixer from recent use, both she and her husband denied that there was any soil on the mixer or the mixer head. Inspector Smith's testimony regarding the state of the mixer, and the brief descriptions in the inspection reports referring to "soiled material" on the mixer head, without more, provided less than clear and convincing evidence of a violation. While Inspector Smith testified that she would not cite the equipment as being dirty if it was soiled with everyday use dirt, she was unable to definitively recall her observations. When questioned about the mixer head at the final hearing, Inspector Smith observed: I just noted that it was extremely2/ soiled when I was there at the initial inspection and at the callback. Not the top, but the mixer head being - - that goes over the unit, from what I can remember. When further asked to explain the difference between "soiled" and "dusty," Inspector Smith testified: It was all food debris with - - I mean, I just remember it just being soiled. It was over a year ago. I can't describe in detail what was on it. I would not cite it unless it was old food debris, or it was mold-like substance maybe with a combination. I don't cite everyday dirt. Considering Inspector Smith's less than specific recall, Respondent's explanation, and the Department's lack of specific details or photographs contrary to the testimony of Respondent's employees, it is found that the Department failed to prove the violation alleged in Count 4 of the Administrative Complaint. While the inspection reports were accepted into evidence as corroborative hearsay, it is found that, under the facts and circumstances, they are documents prepared in anticipation of litigation.4/ Specifically, the reports contain warnings and requirements of compliance, with specific mention of the fact that failure to comply may "initiate a complaint." Moreover, the evidence showed that the investigator could not discuss the allegations with Respondent's owner because inspectors are "not allowed to discuss the case at an inspection." Even if the inspection reports were not merely hearsay, their lack of detail when compared to the recollections of Respondent's employees regarding operations and the state of affairs during the inspections, was insufficient to meet the Department's burden of persuasion necessary to prove Counts 1, 3, and 4 of the Administrative Complaint. Count 2 of the Administrative Complaint alleging improper storage of bread crumbs on the floor, however, was uncontroverted, and the Department proved by clear and convincing evidence that Respondent's improper storage of bread crumbs was a critical violation.5/
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department enter a final order which dismisses Counts 1, 3, 4, and 5 and confirms Count 2 of the Administrative Complaint, and imposes an administrative penalty in the amount of $250 for Respondent's critical violation of Rule 3-305.11, relating to improper storage of breadcrumbs discovered during the inspections conducted on March 2 and May 3, 2011. DONE AND ENTERED this 13th day of July, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 13th day of July, 2012.
Findings Of Fact The Division 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 operating at 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 13th day of May, 2013.
