The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against it.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a public food service establishment, Cups & Cones Yogurt, located in Lake Worth, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a public food service establishment license (license number 60-12633-R) authorizing it to operate Cups & Cones Yogurt. On July 31, 2001, Addie Alice Manulis, an inspector with Petitioner, conducted an inspection of the premises of Cups & Cones Yogurt. Her inspection revealed, among other things, that: the establishment did not have a food service manager certified by Petitioner1 (which is a critical violation because of the important public health-related function that certified food managers play in supervising and training employees in food protection and handling); there was no documentation on the premises establishing that employees had received required food service training (which is a critical violation because such training helps to prevent the spread of food-borne illnesses); the exit sign at the rear emergency exit was not illuminated; and the establishment had 12 seats, notwithstanding that its licensed capacity was ten and it had only one restroom. During her July 31, 2001, inspection, Ms. Manulis issued and served on Respondent a written warning in which she advised Respondent that the conditions described above constituted violations of the law and that if these violations were not remedied by September 4, 2001, administrative penalties would be imposed against Respondent. Ms. Manulis had previously visited Cups & Cones Yogurt in early April of 2001, to inspect the establishment. Following that visit, she provided Respondent with a written "comments sheet," on which she wrote, among other things, the following: Proof of food employee training not available. . . . Note- Food manager card for Mohammed Chowdhurry expires 5/13/01.2 All managers must be certified- phone #s given. . . . Ms. Manulis returned to the premises of Cups & Cones Yogurt on September 4, 2001, and found that the violations described above had not been corrected. Respondent had replaced a light bulb in the rear emergency exit sign following the July 31, 2001, inspection, but, nonetheless, the sign was not illuminated when Ms. Manulis returned to the establishment on September 4, 2001. In addition, one of Respondent's employees, Mahmudul Haque, had attempted to become a certified food service manager, but he had been unable to pass the certification test prior to September 4, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in Counts 1 through 4 of the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the amount of $2,500.00, which may be paid in one lump sum or in monthly installments of no less than $250, and suspending Respondent's license for a period of up to 12 months if it fails to pay the fine as required. DONE AND ENTERED this 28th day of February, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of February, 2002.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated May 31, 2002, and, if so, the penalty that 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 is the state agency responsible for inspecting and regulating public food service establishments in Florida. See Section 509.032, Florida Statutes (2002). The Coffee Salom Tropical is a food service establishment licensed and regulated by the Department. On May 10, 2002, Oscar Garcia, a sanitation and safety specialist employed by the Department, inspected the premises of Coffee Salom Tropical. During the inspection, Mr. Garcia noted that, among other things, "no chemical test kit [was] observed"; no "food management certification" was observed; and no validation was provided to show that "training on food safety [was] provided to all employees." Mr. Garcia prepared a Food Service Inspection Report setting forth his findings. It is Mr. Garcia's practice to go over the contents of the report with the manager of the food service establishment and to allow the establishment time to correct any violations. He normally re-inspects the establishment within two weeks to 30 days of the initial inspection, and, if he finds that measures have been taken to correct the violations, he gives the establishment an extension of time in which to complete the corrections. Mr. Garcia re-inspected Coffee Salom Tropical on May 20, 2002, and found that the establishment had not corrected three of the violations noted during the May 10, 2002, inspection. First, the employee working at Coffee Salom Tropical at the time of the inspection did not produce a test kit to measure the amount of sanitizer in its three-compartment sink and dishwasher;2 too much sanitizer is toxic, and too little sanitizer does not properly sanitize the dishes. Second, Coffee Salom Tropical did not employ a certified food manager. Third, Coffee Salom Tropical did not provide proof that its employees had received food safety training. When Mr. Garcia returned to Coffee Salom Tropical in June 2002, a chemical test kit was available, the manager was in the process of becoming certified, and proof of employee training was provided.
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 finding that Coffee Salom Tropical violated Sections 509.039 and 509.049, Florida Statutes (2002), and Rule 61C-4.023(1) and (4), Florida Administrative Code, and imposing a fine in the amount of $1,000.00. DONE AND ENTERED this 20th day of February, 2003, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2003.
The Issue Whether the Petitioner's application for licensure by endorsement as a Dietitian/Nutritionist should be granted or denied for the reasons stated in the Notice of Intent to Deny dated April 15, 2008.
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 Council, which serves under the supervision of the Board of Medicine, is the entity responsible for certifying persons for licensure by endorsement as a dietitian/nutritionist. § 468.509, Fla. Stat. (2008)1; Fla. Admin. Code R. 64B8-40.003(1)(a). On or about January 16, 2008, the Council received Ms. Alonso's application for licensure by endorsement as a dietitian/nutritionist pursuant to Section 468.513, Florida Statutes. At the time of her application, Ms. Alonso was a certified nutritionist in the State of Washington, having been issued license number NU00001939 on April 11, 2007. Ms. Alonso is not licensed in the State of Washington as a certified dietitian, nor has she taken a state or national examination for licensure as a dietitian or as a nutritionist. In 1994, Ms. Alonso earned a Bachelor's of Science degree from Cornell University in biochemistry, and, in 2000, she earned a Master's of Science degree from the University of Texas, School of Public Health, in nutrition and immunology. Prior to moving to Florida in early 2008, Ms. Alonso worked as a nutritionist in Washington State. Prior to receiving her certification as a nutritionist in Washington State, she worked as a nutritionist in several clinics under the supervision of medical and naturopathic doctors for approximately four years. During this time, she performed nutritional assessments and developed nutritional programs for the clinics' patients and provided nutritional support for the doctors working in the clinics. Ms. Alonso was licensed pursuant to Section 18.138.030, Revised Code of Washington, which sets forth the requirements for certification as a dietitian and as a nutritionist in the State of Washington. Section 18.138.030, Revised Code of Washington, provides in pertinent part: An applicant applying for certification as a certified dietitian or certified nutritionist shall file a written application on a form or forms provided by the secretary setting forth under affidavit such information as the secretary may require, and proof that the candidate has met qualifications set forth below in subsection (2) or (3) of this section. Any person seeking certification as a "certified dietitian" shall meet the following qualifications: Be eighteen years of age or older; Has satisfactorily completed a major course of study in human nutrition, foods and nutrition, dietetics, or food systems management, and has received a baccalaureate or higher degree from a college or university accredited by the Western association of schools and colleges or a similar accreditation agency or colleges and universities approved by the secretary in rule; Demonstrates evidence of having successfully completed a planned continuous preprofessional experience in dietetic practice of not less than nine hundred hours under the supervision of a certified dietitian or a registered dietitian or demonstrates completion of a coordinated undergraduate program in dietetics, both of which meet the training criteria established by the secretary; Has satisfactorily completed an examination for dietitians administered by a public or private agency or institution recognized by the secretary as qualified to administer the examination; and Has satisfactorily completed courses of continuing education as currently established by the secretary. * * * Any person seeking certification as a "certified nutritionist" shall meet the following qualifications: Possess the qualifications required to be a certified dietitian; or Has received a master's degree or doctorate degree in one of the following subject areas: Human nutrition, nutrition education, foods and nutrition, or public health nutrition from a college or university accredited by the Western association of schools and colleges or a similar accrediting agency or colleges and universities approved by the secretary in rule. The State of Washington has two certifications, one for dietitians and one for nutritionists. Pursuant to Section 18.139.030(4), Revised Code of Washington, a person qualifies to be licensed as a "certified nutritionist" if the person either meets the requirements for certification as a dietitian or has received a master's degree in the enumerated areas of study. Section 468.509, Florida Statutes, provides: Any person desiring to be licensed as a dietitian/nutritionist shall apply to the agency [for Health Care Administration] to take the licensure examination. The agency shall examine any applicant who the board certifies has completed the application form and remitted the application and examination fees specified in s. 468.508 and who: 1. Possesses a baccalaureate or postbaccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study, from a school or program accredited, at the time of the applicant's graduation, by the appropriate accrediting agency recognized by the Commission on Recognition of Postsecondary Accreditation and the United States Department of Education; and 2. Has completed a preprofessional experience component of not less than 900 hours or has education or experience determined to be equivalent by the board; or 1. Has an academic degree, from a foreign country, . . . * * * The board shall waive the examination requirement for an applicant who presents evidence satisfactory to the board that the applicant is a registered dietitian. The agency shall license as a dietitian/nutritionist any applicant who has remitted the initial licensure fee and has passed the examination in accordance with this section. In contrast to Washington State, Florida has only one certification for dietitians and nutritionists. Pursuant to Section 468.509, Florida Statutes, a person qualifies to be licensed as a "dietitian/nutritionist" if the person either meets the requirements for certification set forth in Section 468.509(2), Florida Statutes, or is a registered dietitian. The requirements for licensure as a dietitian in Washington State are substantially equivalent to the requirements for certification as a dietitian/nutritionist in Florida. The requirements for certification as a nutritionist in Washington State are not, however, substantially equivalent to the requirements for licensure as a dietitian/nutritionist in Florida, because a person in Washington State can be certified as a nutritionist without meeting the requirements for certification as a dietitian if the person has an advanced academic degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Larisa Alonso failed to satisfy the requirements of Section 468.513(2), Florida Statutes, and denying her application for licensure by endorsement as a dietitian/nutritionist. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 19th day of December, 2008.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, David James Pesek (Respondent) was licensed in the State of Florida as a nutrition counselor, having been issued license number NC 0000199 on February 21, 1990. Respondent’s last known address is 375 Paradise Lane, Waynesville, North Carolina 28786. At all times material hereto, Respondent was the owner of the Center for Effective Living (Center) in Deerfield Beach, Florida. On June 11, 1992, Patient A. S. presented to the Center for treatment of an eating disorder. Patient A. S. was overeating and wanted to lose weight. Patient A. S. was examined by Dr. Schocoff, M.D. that same day. Dr. Schocoff performed a brief physical examination of Patient A. S. Dr. Schocoff’s medical impression was that Patient A. S. suffered from a food addiction, food allergy, and aerophagia. At no time did Dr. Schocoff diagnose Patient A. S. as suffering from fatigue, hypercholesterolemia, or abnormal liver function. At no other time did Dr. Schocoff evaluate Patient A. S. At no other time was Dr. Schocoff involved in any way in the treatment of Patient A. S. Dr. Schocoff was employed by Respondent and the Center. Dr. Schocoff’s duties were to obtain patient history and perform physical examinations only. At no time did Dr. Schocoff give any opinion as to a patient’s health or perform any treatment of a patient or supervise patient treatment. On July 29, 1992, lab work was performed on Patient A. S., as ordered by Dr. Schocoff. The lab work consisted of blood and urine chemistry tests. The results of the tests did not indicate a need for nutritional supplements. Patient A. S. was referred to Respondent for a supervised nutritional and dietary program. On September 1, 1992, Patient A. S. presented to Respondent for the supervised program. After reviewing the blood test results, Respondent informed Patient A. S. that his liver was breaking down and that something had to be done for his liver problem immediately. Respondent had diagnosed Patient A. S. with suffering from a liver disorder. Patient A. S.’ medical records indicate that, among other things, the levels of three substances were tested by the blood test: two liver enzymes (GGT and SGPT) and cholesterol. The blood test results indicated that the levels of all three substances were elevated; however, increased levels of GGT, SGPT, and cholesterol are not conclusive indices of liver disorder. A nutrition counselor is not qualified to make a diagnosis of a liver disorder. It is below the acceptable standards of practice2 as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose a liver disorder. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately diagnosing Patient A. S. with a liver disorder. Respondent did not refer Patient A. S. to a physician for his suspected liver disorder. Instead, Respondent prescribed treatment for the disorder in the form of nutrients and dietary supplements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to refer a patient to a physician for diagnosis and treatment of a suspected liver disorder. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately attempting to treat Patient A. S. for a liver disorder. Eventually, Respondent suggested iridology analysis to Patient A. S. On October 28, 1992, Respondent performed iridology analysis on Patient A. S. Iridology is not an accepted diagnostic procedure by the Board of Medicine and Nutrition Council. Respondent treated and undertook treatment of a human ailment by means other than dietetics and nutrition practice. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to use forms of treatment and diagnosis which are not accepted. On October 28, 1992, Respondent also ordered testing of Patient A. S.’ nutrient mineral levels. The testing of Patient A. S.’ nutrient mineral levels was performed by Analytical Research Labs, Inc., on November 5, 1992. The test results were inconclusive, since they failed to reflect specific units based on amount/volume in which each mineral was measured, and no determination of nutritional recommendations could be effectively made, or, stated differently, the results did not support a need for nutritional supplements. Notwithstanding, Respondent ordered and sold to Patient A. S. multiple nutritional supplements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose and undertake to treat nutrient mineral deficiencies from inconclusive test results. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by diagnosing Patient A. S. with nutrient mineral deficiency from inconclusive test results. On November 13, 1992, as ordered by Respondent, food sensitivity testing was performed on Patient A. S. at Immuno Laboratories, Inc. The results of the test included foods that Patient A. S. should and should not eat, and Immuno Laboratories provided a diet for Patient A. S. Respondent’s assessment of the lab work performed by Analytical Research Labs and Immuno Laboratories was insufficient to determine the appropriateness of the diet provided for Patient A. S. Furthermore, Respondent failed to develop a personalized, specific diet plan for Patient A. S., which included a target weight and caloric intake requirements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to develop a personalized diet plan which includes a target weight and caloric intake requirements. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by allowing someone other than himself to develop a diet for Patient A. S. and by failing to develop a personalized diet plan for Patient A. S., which included a target weight and caloric intake requirements. During Respondent’s treatment of Patient A. S., Respondent advised him that his addictive behavior was caused by nutrient imbalances. This advice from Respondent was false. During the first two months under Respondent’s care and treatment for an overeating disorder and to lose weight, Patient A. S. gained 17 pounds. During the three-month period from June to September 1992, Patient A. S. gained a total of 25 pounds. For the period from September 1, 1992 through February 22, 1993, Respondent submitted insurance claims for the services and treatment that he provided to Patient A. S., utilizing the medical diagnoses determined by Respondent. Moreover, Respondent filed the claims under the name of the Center's physician, Dr. Schocoff, with a signature purporting to be that of Dr. Schocoff. However, Dr. Schocoff was not aware that his name appeared on the claim forms; and neither did he sign the claim forms nor authorize Respondent to use or sign his name on the claim forms. Claims paid by the insurance company were paid to the Center, which was wholly owned by Respondent. An inference is made and a finding of fact is made that Respondent knowingly used Dr. Schocoff's name and signature on the claim forms without Dr. Schocoff's knowledge and authorization. Moreover, due to this finding of fact, it is further found that Respondent knew that he was fraudulently submitting claims to an insurance company for the payment of services provided by himself, not by a physician. By submitting claims for services provided to Patient A. S. under the name of the Center's physician, Dr. Schocoff, Respondent committed an act of fraud or deceit in the practice of dietetics and nutrition.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license as a nutrition counselor. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 15th day of January, 1999.
Findings Of Fact Petitioner is licensed to operate the Front Porch Manor, an adult congregate living facility (ACLF) located at 157-9th Avenue in St. Petersburg, Florida. As part of its regulation of ACLF's, Respondent conducts routine inspections of ACLFs to ascertain that they are providing for the health, safety and welfare of its residents, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities and to insure that needed economic, social, mental health, health and leisure services are made available to its residents. In keeping with such purposes, Respondent conducted surveys of Petitioner's ACLF on July 21, 1987, January 19 and 22, 1988; April 29, 1988 and August 9, 1988. During Respondent's survey of Petitioner's ACLF on July 21, 1987, several deficiencies were noted and were again found to exist during follow up surveys of January 19 and 22, 1988. These deficiencies included Petitioner's failure to insure that resident files contained physician orders and meal patterns for therapeutic diets and that therapeutic diets were prepared and served as ordered by the physician. During the first survey, Petitioner also failed to assure and document the nutritional adequacy of regular menus in that two servings from the milk or milk equivalent, four servings from the fruit and vegetable group and two servings from the fruit group were offered consistently on a daily basis. Petitioner also failed to maintain an up-to-date and approved diet manual as a standard reference in planning of regular and therapeutic diets; failed to maintain at all times a one week supply of non-perishable food based on the number of weekly meals the facility had contracted to serve and failed to assure that food service standards were met as evidenced by the fact that milk for drinking purposes was not being served from the original container or from a bulk dispenser and the ventilation hood, filter and extinguishing pipes in the kitchen were dirty and needed a thorough cleaning. Petitioner also failed to maintain a written work schedule for all employees. Petitioner was allowed through August 21, 1987 to correct the deficiencies and failed to do so. Respondent made follow-up visits and the deficiencies were not corrected as required by August 21, 1987. The next survey visit was made by Respondent on January 19, 1988 and at that time, the above cited items were all corrected by Petitioner during follow up visits on April 29 and August 9, 1988 with the exception that one resident's file did not have a doctor's order or a therapeutic diet and the diet manual was not available to review the meal pattern for a liberal diabetic diet. This item was however, partially corrected during the final follow-up visit on August 9, 1988. The uncorrected portion dealt with the Respondent's citation for the incompleteness of a resident's file and that matter was satisfactorily explained by Petitioner during the hearing. During the survey on January 19, 1988 Respondent observed that Petitioner's ventilation hood, filter and extinguishing pipes and the vinyl tablecloths in the dining room were clean although there was a noticeable accumulation of dust in the ACLF on August 9, 1988. Petitioner's ACLF was newly licensed at the time of Respondent's visit during the first survey of July 21, 1987. Petitioner was not fully knowledgeable of Respondent's staffing guidelines and therefore made several mistakes in posting the work schedule of its staff. In this regard, one of Petitioner's staff quit during the week of the March 28, 1988 survey and that disgruntled employee contacted Respondent to advise that there was inadequate staff at Petitioner's facility pursuant to Respondent's rules and regulations. Mrs. Knight had a heart attack and her husband attempted to cover both facilities during her absence. There were no disruption of meals and care and the residents were properly cared for during this period. Upon Ms. Knight's return to work from her recuperation, she endeavored to, and in fact complied with, the posting requirements respecting the scheduling of staff. Respecting Respondent's claim that Petitioner failed to maintain a therapeutic diet for one of its diabetic patients, a review of that patient's physician order indicates that her attending physician classified her diet as "liberal" on health assessment which he defined as a normal regular diet with the exception that the patient should not have sugared desserts, jelly, candy, and foods cooked in sugar syrup except for the treatment of suspected low blood sugar. The attending physician noted that that patient had been receiving the proper meals and no change in her diet was indicated. Petitioner does not serve any of the items listed in the exception. Petitioner attempted to comply with Respondent's directive that milk be served in either one-half pint containers or in large original containers. This attempt proved to be cumbersome when Petitioner used a large container. When Petitioner tried using a five gallon jug with a tap, the milk would often dry and clog the drain or it would squirt on the floor leaving a residue of milk creating a potential health hazard. Despite Petitioner's attempt to comply with this regulation, it appears that Respondent later withdrew the regulation and is no longer enforcing it. Petitioner's ACLF is situated on a dusty street, approximately two blocks from the beach where cars often pass at a high rate of speed. This creates a dusty condition in the ACLF although Petitioner endeavors to maintain the premises in a clean and sanitary manner at all times. Petitioner's husband regularly removes the screen from the ventilating hood and hoses it down with a pressure hose. He spends a great deal of time cleaning the hood based on his lifelong fear of creating a fire hazard. Finally, Respondent's staff admitted that Petitioner was cooperative throughout the surveys and eventually corrected all of the deficiencies that were cited.
Recommendation Based on the foregoing findings of fact and conclusion of law it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine in the amount of $1,000.00, payable to Respondent within thirty (30) days of the date of its final order. 1/ DONE and ENTERED this 27th day of September, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 27th day of September, 1990.
The Issue The issues in this case are whether Respondent violated provisions of Chapter 509, Florida Statutes (2007),1 and/or rules promulgated thereto, and, if so, whether a penalty should be imposed.
Findings Of Fact The Restaurant is a licensed eating establishment located in Orange Park, Florida. It is owned by Jimmy Leung and has been issued License No. 2001000. Respondent is the state agency responsible for, inter alia, inspecting restaurants to ensure safe operation and cleanliness for public health. On December 4, 2006, the Division conducted a routine inspection of the Restaurant. The inspection was conducted by Janet D'Antonio, a sanitation and safety specialist who had worked for the Division for approximately 22 years. D'Antonio received six months of training when she first started work at the Division, including Fire and Safety training, Laws and Rules training, and food certification training. D'Antonio is a certified food manager, a designation which is updated every five years. D'Antonio's training is standardized by the federal Food and Drug Administration; so, she is reviewed on a periodic basis. She undergoes continuing education and attends monthly meetings to review new standards. During the December 4, 2006, inspection, D'Antonio found two repeat critical violations3: (1) food temperatures were higher than the 41-degree maximum limitation; and (2) the food storage unit failed to maintain a temperature of 40 degrees or less. There were also some violations which were not, as of that time, repeat or critical violations. One of those violations was that the dish machine sanitizer was not at proper concentration levels. It was not operating sufficiently to kill germs. On July 23, 2007, D'Antonio again conducted a routine inspection of the Restaurant. During this inspection, there were two additional critical violations noted: (1) the dish machine sanitizer was not operating at the proper concentration strength for sanitation (a repeat violation); and (2) certain food products were not properly identified. Specifically, crab sticks (which are made from a white fish) were improperly labeled as crab. There is no dispute that the walk-in cooler used to store food products was not maintaining food at the required temperature levels during the December 2006 inspection. At the time of the July 2007 inspection, the machine was working properly. The latter inspection occurred around 1:00 p.m., and, due to lots of traffic in and out of the cooler at that hour, the temperature inside was higher than prescribed by rule. Respondent's testimony in that regard is credible. Likewise, since the dish machine had not been functioning properly at a prior inspection, Respondent purchased a new machine to correct that situation. The new machine was in place at the time of the July 2007 inspection. Nonetheless, Petitioner again noted that the sanitizer was not at the proper levels. The failure of the new dish machine sanitizer to maintain the proper level of sanitizer concentration was not caused by the machine itself, but was related to the solution being used. That is, the Restaurant had purchased sanitizer solution from a vendor, but the solution was outdated and had lost its effectiveness. Therefore, once the solution was placed in the dish machine sanitizer, it did not perform as expected. New sanitizer solution was ordered to replace the defective product. The Restaurant listed a crab sushi roll on its menu when, in fact, the item contained both crab and crab stick. Crab stick is a product made out of white fish; it is not actually crab. Misrepresentation of food content is a potential hazard for customers with particular allergies. Upon notification by D'Antonio concerning the misrepresentation, the Restaurant changed its menu the next day to reflect the proper food content. The Restaurant was not given correction dates for the four cited violations because, as critical violations and/or repeat violations, there is no prescribed period for making corrections. As of the date of final hearing, each of the cited deficiencies had been effectively eliminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order imposing a fine of $500.00, payable by Respondent within 30 days of the final order. DONE AND ENTERED this 13th day of February, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 13th day of February, 2008.
