The Issue The issue in this case is whether on April 5 and October 18, 2011, and on February 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. Mr. Douglas Peterson has been employed as a Sanitation and Safety Specialist with the Division for five and one-half years. He previously worked in the restaurant industry for over 21 years, including eight years as a kitchen manager and five years as a restaurant assistant manager. He has had training, including monthly in-house training and field training, in food inspection. On average, he conducts about five safety and sanitation inspections of food-service establishments per day, and about 1000 inspections per year. China King is a licensed permanent public food-service establishment operating at 4941 East Busch Boulevard, Suite 120, in Tampa, Florida. The owner of China King, Mr. Chi Kin Chan, speaks very little English. Representing the restaurant was Mr. Chan’s daughter, Ms. Man Chan, who assists her father with the restaurant. Under all of the circumstances, including the facts that Ms. Chan helps operate the restaurant, demonstrated basic knowledge of applicable statutes and rules, and demonstrated her ability to capably and responsibly represent Respondent, Ms. Chan was accepted as a Qualified Representative. China King was inspected by Mr. Peterson on August 25, 2010, and October 26, 2010. The Administrative Complaint alleged violations based upon these inspections, and testimony and exhibits as to these violations were offered at hearing. However, an earlier Administrative Complaint relating to these inspections has already been settled, as discussed below. The Stipulation and Consent Order in the earlier case settled any violations based upon these inspections, and no purpose is served by delineating the details of those inspections here. On April 5, 2011, Inspector Peterson conducted another food service inspection on China King. Inspector Peterson prepared a Food Service Inspection Report, DBPR Form HR 5022- 015, using his Personal Data Assistant (PDA) to record the violations that he observed during the inspection. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the April inspection, Mr. Peterson observed that China King had ready-to-eat, potentially hazardous food prepared on-site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, and noted this on his report. The Division has determined that lack of proper date marking poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022-015. Mr. Peterson also observed during the April inspection that China King was storing food on the floor in the cooks’ line and in the preparation area, and noted this on his report. The Division has determined that storing food on the floor poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022-015. During the April inspection, Mr. Peterson observed the improper use of a plastic food container or other container with no handle being used to scoop or dispense food that was not ready-to-eat, and noted this on his report. The Division has determined that using containers without handles to scoop or dispense food fails to minimize food contact with bare hands, and poses a significant threat to the public health, safety, or welfare. The Division has identified this as a critical violation on DBPR Form HR-5022-015. On October 18, 2011, Mr. Peterson conducted another inspection of China King. Inspector Peterson again prepared an inspection report on DBPR Form HR 5022-015 using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the October inspection, Mr. Peterson again observed ready-to-eat, potentially hazardous food prepared on- site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, including egg rolls, cooked chicken, pork, and shrimp. He recorded this information in his report, along with a notation that it was a repeat violation. Mr. Peterson also observed food stored on the floor in the walk-in during his October inspection. He recorded this, noting that it was a repeat violation. During the October inspection, Mr. Peterson observed the improper use of a bowl or plastic food container without a handle as a scoop to dispense non ready-to-eat foods such as flour and starch, as well as ready-to-eat foods such as salt and sugar. He noted this in his report, along with a notation that this was corrected on-site. Mr. Peterson also observed an employee with no hair restraint during the October inspection. He noted this in his report along with the fact that it was corrected while he was on-site. On February 28, 2012, Mr. Peterson conducted a stipulation call-back inspection, as well as a full inspection of the China King. A stipulation call-back inspection is an inspection that is required as part of a stipulation which is conducted for the limited purpose of determining whether specific violations noted earlier have been corrected. Inspector Peterson prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on February 28, 2012, using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the reports on behalf of China King. On February 28, 2012, Mr. Peterson again observed that ready-to-eat, potentially hazardous food that had been prepared on-site and held more than 24 hours had not been date-marked. He noted this in his reports. Mr. Peterson again observed food stored on the floor in the walk-in and cooks’ line during his February inspection and made note of this in his reports. Mr. Peterson again observed a can without a handle being used to scoop rice on February, 28, 2012, as was noted in his reports. Mr. Peterson also observed an employee without a hair restraint during his February inspection, noting this in his reports. In response to questioning from Respondent at hearing, Inspector Peterson stated that he was familiar with the description of the inspection process set out on the Division of Hotels and Restaurants’ website. Inspector Peterson was aware that these procedures state that an inspector will invite the manager to accompany him on the inspection walk-through, and that the inspector will go over each item on the inspection report. Mr. Peterson testified that at each inspection he advised persons at the restaurant of the violations and the need to correct them. Mr. Chi Kin Chan, owner of China King, testified that Mr. Peterson did show his badge when he conducted the inspection on February 28, 2012, although he did not announce who he was. Mr. Chan testified that Mr. Peterson just went through the restaurant on his own and did not invite Mr. Chan or anyone else from the restaurant to accompany him on his inspection. Mr. Chan testified that Mr. Peterson then just went to the front of the restaurant and prepared his report without discussing any of the alleged violations with Mr. Chan or operators of the restaurant. Mr. Taoso Tevega is engaged to be married to Ms. Man Chan, and so is the prospective son-in-law of Mr. Chan. Mr. Tevega occasionally assists the Chan family with the restaurant, but does not receive any paycheck from China King. He works in the receiving department of Advance Auto Parts. Mr. Tevega was present at China King during the February 28, 2012, inspection. Mr. Tevega testified that on February 28, 2012, Inspector Peterson just showed up in the back of China King without identifying himself and that he did not ask anyone to accompany him as he went about the restaurant conducting his inspection. Mr. Tevega testified that Mr. Peterson did not discuss or explain the violations to anyone, but just had Ms. Chan sign the report. Mr. Peterson testified that he was in business casual attire, with his employee identification tag secured from a lanyard worn around his neck, and that he presented identification before beginning each inspection. Mr. Peterson identified himself by displaying his badge before and during the February 28, 2012, inspection, as testified to by Mr. Chan and Mr. Peterson. Mr. Peterson did not invite anyone to accompany him as he conducted the inspection on February 28, 2012, as Mr. Chan and Mr. Tevega testified. Mr. Peterson advised operators at the restaurant of the violations and the need to correct them, as he testified. The Division issued an Administrative Complaint against China King for the above violations on or about March 7, 2012. Additional evidence introduced at hearing showed that China King had a previous disciplinary Final Order entered within 24 months of the Administrative Complaint issued in this case. That Stipulation and Consent Order was signed by China King Manager Ko Chan on January 13, 2012, and was filed on January 24, 2012. In the Order, China King agreed to pay a fine of $900.00, but neither admitted nor denied the allegations of fact contained in the Administrative Complaint. Some of those allegations would have constituted critical violations. The January 24, 2012, Stipulation and Consent Order was in settlement of an Administrative Complaint issued on November 8, 2010. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on August 25, 2010, and October 26, 2010, two of the inspections for which testimony and documentary evidence was submitted in this case, but which are discussed here only for penalty purposes.
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 China King in violation of three critical violations and one non-critical violation and imposing a fine of $2,625, to be paid within 30 calendar days of the filing of the Final Order with the Agency Clerk. DONE AND ENTERED this 11th day of December, 2012, 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 11th day of December, 2012.
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 3100 Northwest 17th Avenue, Miami, Florida, and holding food service license number 2328990. On May 19, 2010, and July 23, 2010, Respondent was inspected by Reginald Garcia, a sanitation and safety specialist employed by the Division. During both visits, Mr. Garcia 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. Garcia and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of July 23, 2010, the following deficiencies subsisted at Respondent Alma Caribe Café Restaurant: (1) potentially hazardous food held at a temperature greater than 41 degrees Fahrenheit, contrary to Food Code Rule 3-501.16(A); (2) potentially hazardous food not cooled from 135 to 41 degrees Fahrenheit within six hours, in violation of Food Code Rule 3-501.14(A); (3) holding equipment incapable of maintaining potentially hazardous food at proper temperatures, in violation of Food Code Rule 4-301.11; (4) raw food stored over cooked food, contrary to Food Code Rule 3- 302.11(A)(1); and (5) no proof of required employee training, in violation of section 509.049, Florida Statutes. Each of the foregoing deficiencies 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 $1250, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 20th day of December, 2011, 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 20th day of December, 2011.
The Issue The issue is whether Respondent is guilty of various violations of Florida statutes and rules in the operation of his restaurant and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds license control number 46-04280R, which is in effect from December 1, 1999, through December 1, 2000. The license authorizes Respondent to operate a restaurant known as Speedy Two Shop at 2957 Martin L. King Boulevard in Fort Myers. Petitioner has previously disciplined Respondent. By Stipulation and Consent Order filed May 22, 1997, the parties agreed that Respondent would pay an administrative fine of $1100 and correct all violations by April 30, 1997. The Stipulation and Consent Order incorporates the findings of inspections on February 25 and March 7, 1997. These inspections uncovered seven violations, including missing hood filters over the cooking surface, heavy grease accumulations on the inside and outside of the hood, a fire extinguisher bearing an expired tag (May 1995), and operation without a license. In Petitioner's District 7, which includes Fort Myers, the licensing year for restaurants runs from December 1 to December 1. Respondent's relevant licensing history includes annual licenses for the periods ending December 1, 1997; December 1, 1998; and December 1, 1999. However, Respondent has operated his restaurant for substantial periods without a license. Respondent renewed his license ending in 1997 after four months of operating without a license, his license ending in 1998 after 17 months of operating without a license, his license ending in 1999 after six and one- half months of operating without a license, and his license ending in 2000 after one and one-half months of operating without a license. For each of these late renewals, Respondent paid a $100 delinquent fee. Petitioner conducts periodic inspections of restaurants. These inspections cover a broad range of health and safety conditions. Certain violations, as marked on the inspection forms, "are of critical concern and must be corrected immediately." This recommended order refers to such violations as "Critical Violations." On January 22, 1998, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered seven Critical Violations. Two Critical Violations involved Respondent's compliance with licensing and training requirements. Respondent was operating the restaurant without a license, and no employee had a food manager's card, which evidences the successful completion of coursework and a test in managing a restaurant. The report warns that if Respondent did not renew his license before February 1, 1998, Petitioner would impose a fine and possibly revoke his license. The report requires Respondent to ensure that an employee obtains a food manager's card by March 3, 1998. Two Critical Violations involved Respondent's noncompliance with fire safety requirements. The fire extinguisher and built-in fire suppression system both bore outdated tags. The former tag expired in April 1997, and the latter tag expired in May 1997. The remaining three Critical Violations were that the restaurant lacked a filter in his hood over the stove, ceramic tiles over the three-compartment sink, and sanitizing solution in the bucket that was supposed to contain sanitizing solution. Respondent's employee explained that the hood filters were being cleaned, but apparently offered no explanation for the other two Critical Violations. Despite the specific warnings concerning the licensing and training violations, the January 1998 inspection report requires only that Respondent correct the violations by the next routine inspection. On March 26, 1998, Petitioner's inspector conducted an reinspection of Respondent's restaurant. The inspection uncovered the same Critical Violations, except for the sanitizing solution. The report states that Respondent must come to Petitioner's office in the next seven days to renew his license. On April 2, 1998, Petitioner served upon Respondent an Administrative Complaint alleging that, on January 1, 1998, Respondent was operating without a license. Neither this nor any subsequent charging document cites any of the other six Critical Violations found in the January 22, 1998, inspection as bases for discipline, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On June 30, 2000--over two years after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to the Division of Administrative Hearings (DOAH) for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2694. On April 29, 1998, Petitioner's inspector conducted another reinspection. Upon identifying himself to Respondent's employee, the employee denied the inspector access to the premises and told him to return at 2:00 PM. The inspector replied that the reinspection would take only five minutes and that he could not return at 2:00 PM, but the employee continued to deny the inspector entry. On May 12, 1998, Petitioner's inspector conducted another reinspection and found the same seven Critical Violations present during the January 1998 inspection. New Critical Violations were the presence of one "small mouse and roaches" under the three-compartment sink and the presence of cooked sausage patties and links with an internal temperature too low to prevent the proliferation of bacteria. As for the food manager's card, Respondent told the inspector that he had left it at home. The report warns that Respondent must correct the violations by May 18, 2000, 8:00 AM. On September 29, 1998, Petitioner served upon Respondent a Notice to Show Cause alleging the violations found during the inspections of March 26, April 29, and May 12, 1998. On June 30, 2000--one year and nine months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2697. On July 31, 1998, Petitioner's inspector conducted another reinspection and found five of the same Critical Violations: operating without a license, no employee with a food manager's card, fire suppression system bearing an outdated tag, ceramic tile missing over the three-compartment sink, and heavy grease accumulation on the hood filters, which had been reinstalled. Petitioner never cited these five Critical Violations in any charging document, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On October 2, 1998, Petitioner's inspector conducted an inspection and found four of the original Critical Violations: no license, no employee with a food manager's card, no current tag on the fire suppression system, and no ceramic tile over the sink. Although the fire extinguisher was presumably current, it was improperly placed on the floor. Other Critical Violations included the storage of sausage at the improperly warm temperature of 51 degrees, the absence of a thermometer in the home-style refrigerator, the presence of rodent feces on the floor, the absence of working emergency lights, the absence of a catch pan in the hood system, a broken self-closer on the side door, a clogged hand sink, an extension cord serving a toaster, and the evident expansion of the restaurant without an approved plan. The report gives Respondent until October 9, 1998, at 11:00 AM to correct the violations. On October 12, 1998, Petitioner's inspector conducted a reinspection and found all of the Critical Violations cited in the preceding paragraph still uncorrected. On October 20, 1998, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of October 2 and 12, 1998. On June 30, 2000--one year and eight months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2695. For some reason, Petitioner neither prosecuted the pending charges nor conducted repeated inspections for several months after October 1998 inspections and Administrative Complaint. The next inspection of Respondent's restaurant took place on April 30, 1999. Despite the six and one-half months that Petitioner effectively gave Respondent to correct the numerous Critical Violations cited in the October 12, 1998, inspection, Respondent continued to violate many of the same provisions for which he had been cited throughout nearly all of 1998. The inspection report discloses that, again, Respondent was operating without a license. The report notes that he lacked a license for the licensing years ending in 1998 and 1999. One of Petitioner's inspectors testified that Respondent had been making progress on the licensing issue. However, the implication that Respondent was unable to pay the $190 licensing fee (usually accompanied by a $100 delinquent fee) is quietly rebutted by the notation, also in the April 30, 1999, report, that Respondent had completed the expansion project--still, without the required plan review. Again, no employee at the restaurant had a food manager's card. Again, the fire suppression system was in violation--this time because the indicator revealed that it needed to be recharged. Again, the hood filters were missing above the cooking surface. Again, the hand sink was inoperative- -this time, it was not only clogged, but it also lacked hot water. Again, emergency lighting was inoperative. Again, the ceramic tile was missing over the three-compartment sink. Again, food was maintained too warm in the refrigerator--this time, chicken was at 69 degrees. A new Critical Violation was the exposure of live electrical lines and insulation. The April 1999 inspection report gives Respondent until May 14, 1999, at 11:00 AM to correct the violations. On May 14, 1999, Petitioner's inspector conducted a reinspection and found that Respondent still had not obtained a license for the licensing year ending in 1999, still lacked an employee with a food manager's card, still had not obtained approval of its expansion plan, still lacked ceramic tile over the three-compartment sink, still had a clogged hand sink without hot water, still lacked working emergency lights, still tolerated exposed electrical line and insulation, and still lacked hood filters above the cooking surface. On June 2, 1999, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of April 20 and May 14, 1999. On June 30, 2000--one year and one month after issuing the Administrative Complaint-- Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2696. Over a period of 16 months, Petitioner conducted eight inspections of Respondent's restaurant. On what would have been a ninth inspection, one of Respondent's employees denied access to the inspector. On each of these eight inspections, Respondent was operating without a license, lacked an employee with a food manager's card, and lacked ceramic tile over the three- compartment sink. On seven of these eight inspections, the fire suppression system was expired or discharged, and the hood filter was missing or excessive grease had accumulated on the filter or the liner. On three of these eight inspections, the fire extinguisher was outdated, and, on a fourth inspection, it was improperly stored on the floor. On three of these eight inspections, sausage or chicken was at improper temperatures--the 86 degrees at which sausage was served on one occasion was only 17 degrees warmer than the 69 degrees at which chicken was stored on another occasion. On three of these eight inspections, the hand sink was unusable because it was clogged or lacked hot water, the emergency lights did not work, and restaurant expansion was taking place or had taken place without review or approval of the plans. On two of these eight inspections, the inspector saw signs of rodents in the kitchen--one time actually seeing a small mouse. On two of these eight inspections, exposed electrical lines and insulation were present in the kitchen. Petitioner has proved by clear and convincing evidence that Respondent committed all of the cited violations. Uncorrected violations over 16 months amount to more than a failure to take advantage of the numerous opportunities that Petitioner gave Respondent to bring his restaurant into compliance. These uncorrected violations constitute a refusal to comply with the basic requirements ensuring the health and safety of the public. The penalty must weigh, among other things, Respondent's blatant disregard of fundamental requirements in licensing, training, and fire and food safety; Petitioner's demonstrated lack of diligence in enforcing Respondent's compliance with these requirements; and the peril posed by these failures upon the public health and safety.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order revoking Respondent's license. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2000. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurant Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gail Hoge, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angelo E. Ruth 2774 Blake Street Fort Myers, Florida 33916
The Issue Whether Respondent committed the violations alleged in the subject Administrative Complaints, and, if so, the penalties that should be imposed.
Findings Of Fact Chapter 500, Florida Statutes, is the Florida Food Safety Act. Petitioner is the agency of the State of Florida that is responsible for the administration and enforcement of Chapter 500. Section 500.032(1) provides as follows: [Petitioner] is charged with the administration and enforcement of this chapter in order to prevent fraud, harm, adulteration, misbranding, or false advertising in the preparation, manufacture, or sale of articles of food. It is further charged to enforce the provisions of this chapter relating to the production, manufacture, transportation, and sale of food, as well as articles entering into, and intended for use as ingredients in the preparation of food. Section 500.02(1) authorizes Petitioner to establish by rule conditions for the manufacturing, processing, packing, holding, or preparation of food and the selling of food at wholesale or retail. Pursuant to that authority, Petitioner has adopted by Florida Administrative Code Rule 5K-4.002(4), pertinent parts of the "2001 Food Code" and the "Supplement to the 2001 Food Code," published by the U.S. Public Health Service of the U.S. Department of Health and Human Services (the Food Code). The violations alleged by Petitioner in both administrative complaints, if proven, would constitute violations of the Food Code and, consequently, violations of chapter 500. At the times relevant to this proceeding, Respondent operated a convenience store located in Miami, Florida, that sold mostly pre-packaged food products at retail, but also provided ancillary food service (the facility). The facility had a retail sales area, a backroom storage area, a walk-in cooler, and an ice machine. The food service operation included a hot case unit that prepared pre-cooked ready-to-eat food products in individual portions for consumption and drinks such as milk, juice, sodas, and beer. Violations of the Food Code can be categorized as "critical" or "non-critical". As compared to a non-critical violation, a critical violation typically involves unsanitary conditions that are more likely to cause physical harm to a consumer or someone handling a product. June 22, 2010 Inspection Jorge Ojeda, a sanitation and safety specialist employed by Petitioner, performed a routine inspection of the facility on June 22, 2010. Mr. Ojeda's inspection revealed numerous food safety violations, including violations that are deemed critical violations. The following are the critical violations found by Mr. Ojeda on June 22, 2010: Rodent droppings were present in the walk-in cooler and retail area; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils or equipment in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other non-critical violations included general disrepair of the facility, holes in walls, standing water, mold on the ice machine, and failure to maintain equipment. During the June 22, 2010, inspection, Mr. Ojeda issued a Stop Sale Order for the meat patties in the hot case unit until the product was reheated to the minimum temperature. After the temperature was raised to an approved level, Mr. Ojeda lifted the Stop Sale Order for the meat patties. Mr. Ojeda also issued a Stop Sale Order for products in the walk-in cooler and in the ice machine until the walk-in cooler and the ice machine were cleaned and sanitized. As noted above, rodent droppings were found in the walk-in cooler. Mr. Ojeda testified that he found mold inside the ice machine. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. August 2, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on August 2, 2010. The inspection revealed numerous food safety violations, some of which are repeat violations. The following are the critical violations found by Mr. Ojeda on August 2, 2010: There was evidence of rodent droppings and live roaches in the facility; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other violations included general disrepair of the facility, holes in walls, and failure to maintain equipment and fixtures. Administrative Complaint for Case No. 10-9186 Following the August 2, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-9186. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $3,700.00 for the violations found during the inspections on June 22 and August 2. August 18, 2010 Inspection Mr. Ojeda conducted an inspection of the facility on August 18, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents in the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. There was mold present on the ice machine. Equipment and utensils were not properly sanitized. Items for sale in the retail area were not marked for individual sale. There was no established employee health policy. Food label was missing or incomplete. Juice drinks were not labeled for individual sale. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Mr. Ojeda issued a Stop Use Order for the ice machine because he found mold inside the unit. Mr. Ojeda also issued a Stop Sale Order for the hot holding unit because the unit and associated utensils were not properly sanitized. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. September 9, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on September 9, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents throughout the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. Grade A milk and milk products were being sold or used beyond the expiration date on the container. Items for sale in the retail area were not marked for individual sale and were missing labels. F. There was no established employee health policy. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for the expired milk offered for sale in the retail area. The product, which expired the day before the inspection, was released to be returned to the distributor. Mr. Ojeda also issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Administrative Complaint for Case No. 10-10095 Following the September 9, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-10095. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $1,550.00 for the violations found during the inspections on August 18 and September 9. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-9186. The testimony of Dr. Fruin established that an administrative fine in the amount of $3,700.00 is reasonable for those violations. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-10095. The testimony of Dr. Fruin established that an administrative fine in the amount of $1,500.00 is reasonable for those violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order that finds Respondent guilty of the violations alleged in Case No 10-9186 and imposes an administrative fine against Respondent in the amount of $3,700.00 for those violations. It is further recommended that the final order find Respondent guilty of the violations alleged in Case No 10-10095 and impose an administrative fine against Respondent in the amount of $1,500.00 for those violations. DONE AND ENTERED this 17th day of February, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 17th day of February, 2011. COPIES FURNISHED: Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putman Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Steven Lamar Hall, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 Hamid Lakhani Super Stop Six Avenue, Inc., d/b/a Super Stop 15150 Northeast 6th Avenue North Miami Beach, Florida 33162
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated December 2, 2009, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2323257. At all times material hereto, the Restaurant was located at 762 Northwest 183rd Street, Miami Gardens, Florida 33169. A critical violation in food service is considered to be a violation that, if not corrected, is directly related to food-borne illness, food contamination, or health risk. A non-critical violation in food service is considered to be a violation that, if not corrected, can become a critical violation. On August 14, 2009, Daniel Unold, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Unold found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Unold prepared a food inspection report, setting forth the alleged violations and the date for the callback inspection, which was October 14, 2009. The inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations and that the violations had to be corrected by the callback date of October 14, 2009, and he provided the representative with a copy of the inspection report. On October 19, 2009, Inspector Unold performed the callback inspection. Among other things, four critical violations were not corrected from the routine inspection of August 14, 2009. During the callback inspection, Inspector Unold prepared a food callback inspection report, setting forth, among other things, the alleged critical violations. The callback inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations. The most serious alleged critical violation, which had been found on August 14, 2009, and was not corrected by October 19, 2009, was no certified food manager for the Restaurant. This violation is critical because it is necessary for the person operating a food service establishment to be knowledgeable regarding food contamination, hygiene, cloth contamination, and food-related diseases. That person is a certified food manager, and the certification process requires class training and a test. The next most serious alleged critical violation not corrected by October 19, 2009, was no proof of required employee training. This violation is a critical violation because it is necessary for every food service employee to have basic knowledge regarding hand washing and food contamination. The next most serious alleged critical violation not corrected by October 19, 2009, was the hand wash sink lacking the proper hand drying provisions. This violation is a critical violation because hand drying is an important part of the hand washing procedure, and, if not performed correctly, it is as if hand washing had not occurred at all. The next most serious alleged critical violation not corrected by October 19, 2009, was the Restaurant operating without a current Hotel and Restaurant license. The new owner of the Restaurant, Elise Benabe, had not completed a change of ownership application. This violation is a critical violation because the State of Florida requires all public food service establishments to be licensed.
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 Five Star Haitian Restaurant violated Florida Administrative Code 61C-4.023(1), Section 509.049, Florida Statutes (2009), Food Code Rule 6-301.12, and Section 509.241(2), Florida Statutes (2009); and Imposing an administrative fine in the amount of $1,875.00 against Five Star Haitian Restaurant. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S 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 6th day of December, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Louise Wilhite-St Laurent, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elise Benabe Five Star Haitian Restaurant 762 Northwest 183rd Street Miami Gardens, Florida 33169 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Louise Wilhite-St Laurent Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-220
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Restaurant was a licensed public food service establishment located at 595 West Church Street, Suite L, Orlando, Florida. The Restaurant was first licensed in July 2006, and its food service license number is 5811488. Petitioner is the state agency charged with the regulation of hotels (public lodging establishments) and restaurants (public food service establishments) pursuant to chapter 509. Will Goris is a sanitation and safety specialist for Petitioner. Mr. Goris has worked for Petitioner for eight years. Prior to working for Petitioner, Mr. Goris worked for the U.S. Army for eight years as a food safety inspector. Mr. Goris received Petitioner's standardized training on the laws and rules governing public food service establishments.2/ Mr. Goris is a certified food manager and obtains monthly in-house training from Petitioner on his job duties. On February 22, 2011, Mr. Goris performed a routine inspection of the Restaurant starting at approximately 12:39 p.m. The Restaurant was fully operational at the time, as it was the lunch hour. Mr. Goris observed live roach activity (infestation) at the Restaurant in the following locations: under a mat by the three-compartment sink; on a peg board adjacent to a hand-sink; under a box of onions; inside a box of pasta; by the water heater; and by the wheels of the reach-in cooler. Mr. Goris also observed dead roaches in various locations at the Restaurant. Critical violations are those violations that, if uncorrected, are most likely to contribute to contamination, illness or environmental health hazards. Insects and other pests are capable of transmitting diseases to humans by contaminating the food or food contact surfaces, and this roach infestation was identified by Mr. Goris as a "critical" violation. Maria Radojkovic is the manager of the Restaurant. As Mr. Goris was conducting the inspection, he asked Ms. Radojkovic to observe the same roach activity he was observing. At the conclusion of the February 22, 2011, inspection, Mr. Goris recorded the observed violations in an inspection report which he printed out. Ms. Radojkovic signed the inspection report and received a copy of it at that time. There was no evidence to dispute the allegations. Ms. Radojkovic confirmed that the roaches "got brought in by deliveries and boxes." The Restaurant had at least two extermination companies to combat the roach infestation problem. When the first company was unsuccessful, Ms. Radojkovic hired a different company. However, it took several months for the second company to "get rid of" the roaches. Ms. Radojkovic expressed her understanding that the Restaurant needs to be clean, and she is aware of the various access points for roaches to enter it. Although she maintains it is impossible for any restaurant to be roach-free, Ms. Radojkovic maintains that it "just takes time to contain" them. None of the other putative violations mentioned in the inspection report (Petitioner's Exhibit 2) were addressed at final hearing and are therefore irrelevant to this proceeding. No evidence was introduced that a patron had become ill as a result of the infestation. On February 22, 2011, the Restaurant was served an Emergency Order of Suspension (ESO) following the inspection of that date. Although there was no testimony as to when the ESO was actually lifted, at the time of the hearing, the Restaurant was open for business. On February 28, 2010, a Final Order was issued involving the Restaurant regarding an Administrative Complaint that was issued on September 29, 2009. This Administrative Complaint was based on a June 16, 2009, inspection and a September 9, 2009, re-inspection. The issue therein was unrelated to the issue at hand.
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 which confirms the violation found and imposes an administrative fine in the amount of $1,000 due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of June, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 June, 2012.
The Issue Whether Respondent committed the following acts alleged in the Administrative Complaint, dated August 22, 2006, and, if so, what penalty should be imposed: A violation of Food Code, Rule 2-301.14, on April 11, 2006, and July 19, 2006, by employees failing to properly clean their hands before engaging in food preparation. A violation of the Florida Administrative Code Rule 61C-1.004(6), on April 11 and July 19, 2006, by failing to repair a water leak in the restaurant's storeroom. A violation of the Food Code, Rule 6-202.11, on April 11 and July 19, 2006, by failing to provide protective shielding around light bulbs in the restaurant's storeroom and in one food preparation area.
Findings Of Fact Petitioner is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes. Respondent is a public food service establishment that operates in the State of Florida, under Petitioner's license number 4602269, at 1245 West Homestead Road, Lehigh Acres, Florida 33936-6003. Darlene Tregunno is the owner/operator of McDonald's No. 6303. She owns the restaurant through her corporation, Arch Restaurants, Inc. Fields is employed by Petitioner as the Deputy District Manager of the Fort Myers District. She has been working in this position for approximately three years and has been working for the Petitioner for more than 16 years. On April 11, 2006, at 8:30 a.m., Fields visited McDonald's No. 6303, operating at 1245 West Homestead Road, Lehigh Acres, Florida 33936, for the purpose of performing a routine food service inspection. Fields noted numerous violations on an Inspection Report prepared that day. It included the observation that one employee was observed coughing into his or her hand and then putting a glove on without washing first. Fields provided the on-duty manager with a copy of the report and notified Respondent that a call-back inspection would be conducted. On July 19, 2007, at 9:16 a.m., Fields conducted a call-back inspection at McDonald's No. 6303. At the time of the call-back inspection, Fields observed an employee changing gloves without washing his or her hands. This, along with the prior incident where an employee coughed into his or her hand and put on gloves without washing first, is considered a critical violation of the Food Code by Petitioner. Critical violations are violations that cause an imminent threat to a customer or an employee of a food service establishment. At the time of the call-back inspection, six ceiling tiles were missing and in disrepair in the storeroom, and water was dripping from the ceiling onto the floor. In addition, at the time of the call-back inspection, light shields were missing in the store and in one food preparation area. Respondent was cited for violations to the Food Code under Rules 2-301.14 and 6-202.11, and for a violation of Florida Administrative Code Rule 61C-1.004(6). Respondent does not deny any of the allegations. However, Respondent trains new employees in food safety. Respondent promotes a policy whereby all employees are told to wash their hands hourly and after performing activities that could otherwise lead to food contamination. Respondent attempted to hire a contractor to repair the leak in the storeroom and to replace the missing and damage ceiling tiles. However, due to storm damage in the area, a contractor was not hired until September, 2006. Respondent tried to hire a contractor sooner, but could not find anyone who would make the repairs in a timely manner. Also, Respondent was unable to make the repairs herself. The repair work was completed in September of 2006, and is currently in good repair. The missing light shields were replaced after the time of the call-back inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: The Department of Business and Professional Regulations, Division of Hotels and Restaurants enter a final order, as follows: Respondent be found guilty of violating, one count each, Rules 2-301.14 and 6-202.11, Food Code, and Florida Administrative Code Rule 61C-1.004(6); Respondent be assessed an administrative fine in the amount of $300 for each of the violations, for a total of $900; and Respondent be directed to attend an education program sponsored by the Hospitality Education Program. DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 June, 2007.
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 (2006). At all times material to this case, the Respondent was a restaurant located at 7551 West Waters Avenue, Tampa, Florida 33615, holding Food Service license number 3903935. On July 11, 2006, Richard Decker, a senior inspector representing the Petitioner, performed a routine inspection of the Respondent that resulted in emergency closure of the restaurant due to a roach infestation problem. The inspection report stated that the deadline for correcting the roach problem was July 12, 2006, and the matter was apparently resolved in a timely manner. Mr. Decker found additional violations of applicable Food Code regulations on July 11, 2006, which were cited in a written Food Service Inspection Report, a copy of which was provided to restaurant owner Anthony Della Monica on the date of the inspection. Mr. Decker's inspection identified critical and non- critical violations. Critical Food Code violations pose serious public health risk due to potential transmission of food-borne illness. Critical life safety violations such as blocked exits increase the risk of public injury. Violations that do not pose a direct and imminent public health risk are identified as non- critical. Other than as set forth herein, the violations cited during the July inspections were to have been corrected by the time of Mr. Decker's August 15, 2006, re-inspection. Many of the previously cited violations had not been corrected at that time. The August 15, 2006, re-inspection report was received by Mr. Della Monica on the date of the inspection. Mr. Decker again re-inspected the restaurant on October 20, 2006. Several violations previously cited in July remained uncorrected at that time. The October 20, 2006, re- inspection report was received by Head Chef Kurt Clasen on the date of the inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a certified food manager on the premises and for lacking of proof that employees had received food safety training. Such training was intended to reduce the potential for transmission of food-borne illness. These violations were deemed critical. Although Mr. Decker established an extended deadline of October 11, 2006, to correct the certified food manager and employee training violations, they remained uncorrected by the October 20, 2006, re-inspection. During the July inspection, Mr. Decker cited the Respondent for lacking a hand sink in the dishwashing area and noted that a hand sink at the rear of the kitchen was being used for food preparation. The requirements related to hand sinks were intended to reduce the potential for transmission of food- borne illness. The violations of the requirements were deemed critical. The Respondent still lacked a hand sink in the dishwashing area at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for using extension cords on a non-temporary basis to power equipment in the kitchen. The Respondent's improper electrical cord use was a fire hazard and was deemed a critical violation. By law, extension cords can only be used on a temporary basis. The cited extension cords remained in use by the Respondent at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for removing food products from original packaging and storing them in unlabeled containers, a critical violation that increased the risk of confusing food products with non- edible products such as cleaning chemicals. The violation remained uncorrected at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for lacking a chemical testing kit used to ascertain that the dishwasher sanitization function was operating properly. Lack of proper sanitation increased the potential for transmission of food-borne illness. The violation, deemed critical, was not corrected by the time of either re-inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a visible thermometer in a pizza- holding unit. The inability to monitor food-holding temperatures increased the potential for transmission of food- borne illness and was a critical violation. The violation was uncorrected at the time of the August re-inspection as it should have been, but it had been remedied by the October re- inspection. During the July inspection, Mr. Decker cited the Respondent for the lack of light bulb shields in a food service area, which increased the risk that food could be contaminated by glass in the event of light bulb breakage. This was deemed a non-critical violation and remained uncorrected at the time of either re-inspection.
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 $3,800 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 11th day of May, 2007, 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 11th day of May, 2007. COPIES FURNISHED: Anthony Della Monica Mama D's Pasta & Grille 1819 Audubon Street Clearwater, Florida 33764 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Respondent is guilty of the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed, if any.
Findings Of Fact Respondent is a bakery, primarily selling bagels. Respondent bakes, packages, and sells bagels and other baked products wholesale and retail. In addition, it sells ready-to- eat food in individual portions for consumption on or off the premises, including eggs, bacon, sausage, salads, and soups. It also cuts, packages, and sells meats. Respondent also operates a delivery service and a catering business and is open to the public 24 hours a day, seven days a week. Respondent is regulated by the Department and is routinely inspected by the Department three times a year. Ronald Gagnon is employed by the Department's Bureau of Food and Meat Inspection as a sanitary and safety specialist. He performed a routine inspection of the Respondent's premises on May 26, 2006. Gretchen Rhodes is the sanitation and safety specialist who had been assigned to perform routine inspections of the Respondent, but she was behind schedule in her duties and was covering for her supervisor, Rodney Banks, who was on vacation. Gagnon agreed to perform the inspection of Respondent to assist Rhodes. He had never been on Respondent's premises to inspect it prior to the May 26, 2006, inspection, but he had inspected other bakeries before he inspected Respondent. Gagnon had been employed by the Department as a sanitation and safety specialist since August 2005. After he was hired, he received six months of on-the-job training accompanying other inspectors on inspections before performing an inspection by himself. He also received one week of training by the Department regarding the different statutes and rules relating to food safety. He also underwent standardization that included performing eight inspections of food establishments under the observation of a federal Food and Drug Administration inspector to ensure that he was performing inspections competently. Prior to inspecting Respondent, Gagnon had been performing inspections by himself for approximately five months. According to his estimate, he had performed approximately 300 inspections by then. Of those, only six to eight percent of the inspections he performed had been assigned a "poor" rating, which rating required a re-inspection. Upon entering Respondent's business at about 8:30 a.m., Gagnon told the cashier he was there to inspect the premises and then gave that information to Patricia Marshall, the employee who was in charge at the time. Marshall asked Gagnon to wait for an owner to arrive before he did his inspection, but he advised her that he could perform his inspection as long as there was someone in charge at the business. He invited her to accompany him, but she was busy and did not accompany him during his inspection of the back room and related areas. Shortly after Gagnon's arrival, Marshall telephoned Denise Jimenez, a manager and the wife of one of the owners, and advised her that an inspector was performing an inspection. Mrs. Jimenez did not arrive at the business until after Gagnon had completed his inspection and was preparing his written report. When Gagnon completed his inspection of the back room and related areas, he returned to inspect the retail area where Marshall was working. Although she was with him for some parts of the inspection, she was busy and did not observe him during all of his inspection of the retail area. They did have several conversations, however, regarding specific violations which he noticed. One of those conversations involved the temperature- recording device in the cooling case in the retail area. Gagnon noticed that the measuring device was in the coldest part of the case by the condenser coils; however, to properly measure the temperature of the food in the case, the device should be located in the warmest part of the cooler. Gagnon explained this problem to Marshall, and Marshall subsequently pulled out the wire of the device so that it was no longer working. Another conversation involved the soup that was in the ready-to-eat serving area. The soup was in a stainless steel container called a Bay Marie and had been lowered into a crock pot with a heating element. The container had approximately a quart of soup in it. When Gagnon measured the temperature of the soup, it was at 118 degrees Fahrenheit and not at 135 degrees, the temperature required to prevent the growth of harmful bacteria. At hearing, Gagnon testified that Marshall told him she was going to throw that soup away and make new soup for lunch. Marshall testified, however, that she had made the soup for lunch and it was not yet fully heated. The small amount of soup makes Gagnon's recollection more credible than Marshall's. At any rate, Gagnon told her to throw away the soup, and she did. Gagnon made handwritten notes to record his findings as he performed his inspection. He used the equipment he brought with him as he proceeded. He brought a thermal couple, a digital food thermometer with a probe that could be inserted into food to measure the internal temperature. He had an infrared thermometer to measure surface temperatures. He used these two devices to measure the temperature of food to determine whether it was hot enough or cold enough. If the infrared thermometer showed that the surface temperature was too low or too high, he used the probe thermometer to measure the internal temperature of the food. He also had a flashlight to look into dark areas and test strips to measure the concentration of sanitizer used to clean dishes and cooking utensils to determine whether it was too low or too high. He had alcohol swabs to cleanse the measuring device on the probe thermometer between uses on different foods. Lastly, he had his computer and printer to prepare his report and provide a copy to the business being inspected. After Gagnon concluded his inspection, he prepared a Food Safety Inspection Report while still on Respondent's premises. The numbers on the left margin of those documents represent different classifications of food safety violations. By virtue of his training, Gagnon was familiar with the different classifications and would press the number for the class of violations most closely resembling what he had observed. From the available options, he would then select the description most closely fitting what he observed. This description would be printed in lower case letters. Using bold print following that description, Gagnon wrote what he had actually observed. The computer was programmed to print an asterisk beside certain violations which had been determined by the Department to pose a more serious threat to food safety. These violations are referred to as "critical violations." Since Mrs. Jimenez arrived at the business after Gagnon finished his report, he went through his report with her verbally. She then accompanied him through the premises, starting in the back area. He pointed out to her each item which he had marked as a violation. She remained silent through most of his concerns, not offering any explanations that he might consider in finalizing his report, except for one. She explained to him that the mixer was black on the inside because the cook had been mixing pumpernickel dough which contains coloring that is black. When Gagnon and Mrs. Jimenez went into the retail area, a discussion and then argument ensued regarding the broken temperature-measuring device in the cooling case. Mrs. Jimenez insisted that Gagnon had ordered Marshall to move it, which broke the device; Gagnon denied ordering Marshall to do so. Mrs. Jimenez became quite angry and demanded that Gagnon pay to repair the cooler. She began demanding that Gagnon prove who he was, and he handed her a copy of his inspection report with his name on it and advised her that there was a telephone number for the Department on it if she wanted to call to complain. He then left the business and the confrontation. Gagnon's inspection report cited numerous violations ranging from minor to serious. Eleven of the violations were critical violations as follows: washed utensils were not properly washed; there was a live roach in the proofer box; single-serve gloves were being used more than once for tasks where glove changes were necessary; food employees were not regularly washing their hands; bacon and sausage were held at room temperature, and the soup was at 118 degrees; salads and deli meats were held at above the required temperature; eggs, ham, and cheeses in the walk-in cooler were above the required temperature; desserts were in a case with ice underneath and were, therefore, above the required temperature; eggs in the reach-in cooler and cheese in the cold case were above the required temperature; equipment was not maintaining required temperatures; and there were no dates marked on the ham. Due to the number of critical violations and the number of other violations, Gagnon gave Respondent a rating of "poor," which rating required a re-inspection two weeks later to ascertain if the violations had been corrected. Both Mr. and Mrs. Jimenez called the Department that same day complaining about Gagnon and demanding that the Department immediately send a different inspector to re-inspect the business. They were both advised that the business would be re-inspected in two weeks. Yet, Mr. Jimenez instructed his employees to change nothing so they could prove Gagnon was wrong when the next inspector came. In other words, Jimenez made the decision to not correct the violations noted in Gagnon's report. In the Food Safety Inspection Supplemental Report Gagnon completed after he had left the business, he memorialized that the key lime desserts, bacon, sausage, and soup were destroyed. As to other violations, such as eggs being held at too high a temperature, he released those products for sale after they were properly refrigerated. No competent evidence was offered as to any bias on the part of Gagnon against the business or its employees. The evidence is uncontroverted that he had finished his report before the confrontation over the wire in the cooler began. When he left the business to avoid continuing the confrontation, he left a copy of his report, and no changes are alleged to have been made to his report thereafter. Gretchen Rhodes performed the follow-up inspection on June 7, 2006. She was accompanied by her supervisor, Rodney Banks, due to the reported confrontation on May 26 between Gagnon and Respondent's employees. They observed some of the same violations found by Gagnon on May 26. There were four critical violations found: (1) a food employee in the in-store deli area failed to change single-use gloves and failed to wash his or her hands after the gloves were contaminated; (2) there was no health-risks advisory posted in the in-store deli part of the business although eggs were cooked to order there; (3) salads in the in-store deli cooler were at higher than the required temperature; and (4) heavy rodent droppings were seen in the service closet (utility room) near the ovens. As on May 26, there was no certified food manager present although there were four or more employees present. As on May 26, Rhodes observed furnishings and equipment that were dirty. As to the rodent droppings, John Jimenez, as Respondent's 50 percent owner and Respondent's representative at the final hearing, admitted that the business had a rodent problem and had had that problem since February 2006 when it was discovered. Although attempts had been made to eradicate the rodents, they were still present and the business was still cooking and serving food to the public. On June 7 there were maintenance and cleaning tools stored in the food processing area, including a generator and tires for motor vehicles, thereby creating an area of clutter in which rodents could hide. Rhodes assigned Respondent a rating of "poor" based upon the violations she found, particularly, the presence of rodents. She gave a copy of her Food Safety Inspection Report and of her Food Safety Inspection Supplemental Report to Mrs. Jimenez, who signed that she received them. Rodney Banks, a sanitation and safety supervisor since 1992, accompanied Rhodes on the June 7 inspection. He agreed with her observations and with the violations noted in her report and supplemental report which he reviewed at the conclusion of the inspection. In addition to supervising Gretchen Rhodes, he also supervises Ronald Gagnon and Cynthia Koza. In fact, he had hired Gagnon and has never received a complaint about Gagnon from any of the businesses Gagnon has inspected, except for Respondent's. Cynthia Koza, a sanitation and safety specialist, accompanied Rhodes when Rhodes returned to Respondent's premises on July 5, 2006, for a follow-up inspection. It was normal procedure to have two inspectors for the follow-up inspection if a food establishment had two "poor" ratings in a row. She agreed with Rhodes' observations during the inspection and with the contents of Rhodes' Food Safety Inspection Report and Food Safety Inspection Supplemental Report. The inspectors did not inspect the retail area of Respondent's premises on that date because there were a lot of customers in that area. They did, however, inspect the back area and once again found rodent droppings not only in the service closet but also behind a butcher block table top leaning against the wall by the walk-in cooler. They noticed that the back door of the business was standing open at the time of the inspection and was neither self-closing nor tight-fitting. This observation matched that of Gagnon on May 26 that the back door had gaps with huge openings, thereby allowing rodents and insects to enter the food processing area. The inspectors also noticed that there were chew holes in ceiling tiles near the electric conduit pipes, some ceiling tiles were missing, and there was a hole in the wall in the finishing room. Based upon Rhodes' training and experience, she recognized the chew holes as rodent chew marks. There were also black grease marks around the hole where a rodent's fur brushed against the wall as it squeezed through the hole. As on May 29 and June 7, there was no certified food manager on the premises on July 5 although there were eight employees present at the time. Rhodes again noted in her report the continued presence of clutter and the dirty equipment. Foods in the walk- in cooler still were not maintained at the required low temperature. Rhodes again gave the business a rating of "poor." She gave copies of her Food Safety Inspection Report and Food Safety Inspection Supplemental Report to Mrs. Jimenez. Dr. John Fruin is the Chief of the Bureau of Food and Meat Inspection, Division of Food Safety, of the Department. He reviewed the Food Safety Inspection Reports dated May 26, June 7, and July 5, 2006, and agreed that the proper rating for Respondent was "poor" for each of those reports based upon the number of violations, the number of critical violations, and the presence of rodents. He testified that the three "poor" ratings with repeat violations require that a fine be imposed upon Respondent for the violations observed during each inspection. On May 26 there were six critical violations but some of them were committed more than one time, meriting a fine of $1,375. On June 7 there were fewer critical and non-critical violations, meriting a fine of $950. On July 5 there were still fewer violations, meriting a fine of $300. The total fine recommended by Dr. Fruin, therefore, is $2,625.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint and requiring Respondent to pay to the Department an administrative fine in the amount of $2,625 by a date certain. DONE AND ENTERED this 12th day of January, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 12th of January, 2007. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 John Jimenez TJ Baking, LLC 7562 West Commercial Boulevard Lauderhill, Florida 33319
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 29, 2009, 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 Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See section 509.032(1), Florida Statutes. Carvel is a food service establishment licensed and regulated by the Department and located at 3148 Coral Way, Miami, Florida 33145. On July 22, 2009, Jorge Gandolff, a senior inspector of public food service establishments employed by the Division, inspected the premises of Carvel. As an inspector for the Division, Mr. Gandolff was required to complete a Food Service Inspection Report, DBPR Form HR 5022-016 and -015 ("Form HR 5022-016 and -15"), for each public food service establishment that he inspected. During the inspection of Carvel, Mr. Gandolff noted that Carvel was not in compliance with a number of the items listed on the Form HR 5022-016 and -15 inspection report. Mr. Gandolff noted that, among other things, he "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on floor"; "observed food container not properly labeled." It was Mr. Gandolff's practice, and the usual practice of Division inspectors, to complete the Form HR 5022-016 and -15 inspection report and record the violations he observed at a public food service establishment on a personal digital computer. At the end of the inspection, it was his practice to obtain the signature of the person in charge on the Form HR 5022-016 and -15 inspection report, print a copy of the report, and review the violations that had been noted with the person in charge. Mr. Gandolff followed his usual practice in completing the inspection of Carvel on July 22, 2009. He prepared a Form HR 5022-016 and -15 Food Service Inspection Report setting forth his findings and noted on the report that Carvel "MET INSPECTION STANDARDS during this visit" and that "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." (Emphasis in original.) Zoila Fernandez, an employee of Carvel, signed the inspection form, and Mr. Gandolff went over the inspection findings with her. Mr. Gandolff inspected the premises of Carvel for the second time on November 24, 2009. In addition to several other violations, Mr. Gandolff noted on the Form HR 5022-016 and -15 inspection report that he again "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on walk-in cooler floor Cardboard boxes of chocolate chip"; "observed food container not properly labeled ice cream containers not labeled stored inside self service freezer in customer area." These six items were considered repeat violations; that is, these items were found to be out of compliance with the Food Code at the July 22, 2009, inspection. In addition, these six items were marked with an asterisk on the Form HR 5022-016 and - 15 inspection report, which designated them as "critical" violations. Mr. Gandolff recommended that these items be included as violations in an Administrative Complaint. Mr. Gandolff also noted on the Form HR 5022-016 and -15 inspection report that the "Inspector determined violations require further review, but are not an immediate threat to the public." Zoila Reyes, an employee of Carvel who was on the premises during the November 24, 2009, inspection signed the inspection report. She was not able to accompany Mr. Gandolff during the entire inspection because the store was busy, but Mr. Gandolff went over the inspection report with her. Ms. Shah was not present during either of the inspections. It is her practice to come into the store early and prepare the store to open. Her preparations include cleaning the premises and the equipment. Mr. Gandolff found three items during both the July 22, 2009, and November 24, 2009, inspections that he wrote up as a single violation of the Food Code and that he considered the most serious violation of the Food Code. The first item was the build-up of food on the mixer head that was not just the normal amount of build-up that occurs during a workday but was old, dry, and crusted. Mr. Gandolff considered this a serious condition because this piece of equipment came in direct contact with food and could contaminate it. The second item was the slime build-up inside the interior of the ice machine, which Mr. Gandolff considered a serious condition because the ice came into direct contact with the interior of the ice machine and could be contaminated by the slime. The third item was the soiled gaskets on the reach-in freezer that was a black residue probably resulting from the buildup of old product. Mr. Gandolff considered this a serious condition because the freezer gaskets are very close to the product in the freezer, and the product could be contaminated if it came into contact with the gaskets. The violation Mr. Gandolff considered the next most serious violation of the Food Code found during both the July 22, 2009, and November 24, 2009, inspections was a cardboard box containing chocolate chips stored directly on the floor of the walk-in cooler because the food product inside the box could be contaminated by water or any other residue on the floor of the cooler, especially if, as here, the food product is stored in a cardboard box that could absorb water from the cooler floor. In addition, Mr. Gandolff considered the absence of labels on containers of ice cream stored in a freezer accessible to customers to be a serious violation of the Food Code because a customer must be able to look at the label on the food product and know the ingredients in the product and the date the product was prepared so the customer can make a determination if the product is safe for them to eat. Mr. Gandolff also considered the uncovered trash receptacle in the women's bathroom a serious violation of the Food Code because such receptacles must be covered to avoid exposure of women's sanitary napkins. These violations are all critical violations because they pose a significant danger to the public health and because they are identified as critical violations on the inspection report forms Mr. Gandolff completed on July 22, 2009, and November 24, 2009, recording his observations of the Carvel premises. Ms. Shah has owned the Carvel store for approximately 14 years, and, during that time, the store has not been cited for any violations as a result of inspections by the Division. The Carvel store owned by Ms. Shah is very small and, because of the poor economic conditions of recent years, Ms. Shah makes very little money at the store and is barely able to keep the business open. Summary The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that there were five repeat violations of the Food Code on the premises of Carvel during the November 24, 2009, inspection. Ms. Shah failed to present sufficient evidence to establish that the violations observed by Mr. Gandolff were not present. First, her explanation of the missing cover on the waste receptacle in the women's bathroom, that the receptacle had just been emptied and that the cover was sitting on the floor beside the receptacle, could have explained the missing cover during the first inspection, but the same explanation would have presented too much of a coincidence to be a persuasive explanation for the missing cover at the second inspection. Second, Ms. Shah's categorical denial that any equipment on the store's premises was soiled or otherwise not perfectly clean, her testimony that she cleans everything in the store every morning; that the equipment is cleaned continually during the day; and that all supplies are stored properly in the walk-in cooler and her testimony is not sufficient to refute the specific observations noted by Mr. Gandolff on the inspection reports. Finally, Ms. Shah's testimony that all pre-packed ice cream available for purchase in the store's self-service freezer is packed in containers with labels provided by Carvel, Inc. In the absence of information regarding the content of the labels provided by Carvel, Inc., Ms. Shah's testimony does not refute the Mr. Gandolff's contention that the containers of ice cream did not have labels disclosing the date the ice cream was packed into the containers and the ingredients in the ice cream.
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 Carvel Ice Cream Bakery guilty of having violated Florida Administrative Code Rule 61C-4.010(1)(c) and Food Code Rules 3-305.11; 3-602.11(A); 4-602.11(C) and (D); and 5-501.17; and Imposing an administrative fine in the amount of $525.00. DONE AND ENTERED this 14th day of June, 2011, in Tallahassee, Leon County, Florida. S 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 14th day of June, 2011.
