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 violations alleged in Counts 2 and 3 of the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Pacheco's Restaurant (Restaurant) is an eating establishment (with seating) located in Indiantown, Florida. Rosendo Pacheco, the Restaurant's owner, holds a license issued by Petitioner (license number SEA5301629) authorizing him to operate the Restaurant as a public food service establishment. On May 15, 2012, Michael Petrow, an inspector with Petitioner, conducted a "routine" inspection of the premises of the Restaurant. During the inspection, proof of required food service manager certification and employee food service training was requested by Mr. Petrow, but not produced by Mr. Pacheco. During previous inspections of the Restaurant-- conducted on April 13, June 15, and December 20, 2011--Mr. Pacheco had also failed, upon Mr. Petrow's request, to produce proof of required food service manager certification and employee food service training. For these past failures to produce proof of required food service manager certification and employee food service training (occurring on April 13, June 15, and December 20, 2011), Mr. Pacheco has already been sanctioned by Petitioner (in the form of a fine of $800 imposed by the Final Order on Waiver issued in Petitioner's case number 2011038246 on October 27, 2011, and a fine of $1,600 imposed by the Final Order on Waiver issued in Petitioner's case number 1012003526 on April 2, 2012).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of having committed, on May 15, 2012, the violations alleged in Counts 2 and 3 of the Administrative Complaint and disciplining Respondent therefor by imposing an administrative fine in the total amount of $2,000 ($1,000 for each violation). DONE AND ENTERED this 16th day of April, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2013.
The Issue The issue is whether Respondent is guilty of violating various provisions of law in operating a restaurant and, if so, what penalty should be imposed.
Findings Of Fact Respondent is licensed to operate a restaurant at 4820 Davis Boulevard in Naples, Florida. Respondent’s license number is 21-01272R, and the license expired on December 1, 2000. On February 25, 2000, Petitioner’s inspector conducted an inspection of the restaurant in response to a complaint and found ten violations. The inspector found a damaged door seal on the two- door prep cooler, an unclean ventilator hood, two missing filters from the hood, a torn screen door at the rear entrance to the kitchen, missing ceiling tiles, mold and fungus behind the ice maker, debris around the dumpster pad, no inspection tag on the fire extinguisher, and no employee present with a current food manager’s certificate despite the presence of at least four other employees. The inspection form notes that the following violations are critical and must be corrected immediately: the torn screen door, missing inspection tag, and no employee on duty with a current food manager’s certificate. On March 31, 2000, the inspector conducted a reinspection and found seven violations. The inspector found the damaged door seal on the two- door prep cooler, two missing filters from the hood, a torn screen door at the rear entrance to the kitchen, missing ceiling tiles, debris around the dumpster pad, no inspection tag on the fire extinguisher, and no employee on duty with a current food manager’s certificate despite the presence of at least four other employees. As to the critical violations, the screen door is to prevent disease-carrying pests from entering the kitchen. The fire extinguisher and trained manager also protect the health and safety of the customers and employees. As to the noncritical violations, the door seal assures that the cooler continues to maintain the stored food below a certain temperature in order to protect the customers from unhealthy food. The hood filters, which are installed over cooking surfaces, trap grease; if allowed to collect in the ventilation system, grease poses a fire hazard. Missing ceiling tiles could allow foreign material from the structure fall into the food. Debris around the dumpster pad may attract pests. On August 26, 1999, the inspector conducted an inspection of the restaurant and found 19 violations. Although the Administrative Complaint does not allege any violations arising out of any inspection after March 31, 1999, these ongoing conditions are relevant in setting the penalty for the violations that are the subject of this case. The inspector found uncooked lasagna and pizza pork sausage maintained at excessively warm temperatures in two coolers and cooked sausage and meatballs maintained at an excessively cool temperature in one cooler, a broken thermometer in one cooler and no thermometers in two coolers, a damaged door to the lower convection oven, an unsanitized dishwashing machine, no sanitizing bucket, an unclean food container and cooking line, no paper towels or soap at the kitchen hand sink, no employees trained in hygiene, missing ceiling tiles, unshielded lights over the pizza prep area, a burned-out light in the hood system, no barrier between the fryer and six-burner stove, and no employee on duty with a current food manager’s certificate despite the presence of at least four other employees. As to the critical violations not previously discussed, maintaining cooked and uncooked food at the proper temperatures is essential to the safety of the customers. Ensuring that employees have received training in hygiene is also important to the safety of the customers. As for the seven violations that are the subject of this case, Respondent had failed to correct three of them, even six months after the initial inspection. Two of these uncorrected violations are critical: the damaged door seal and absence of at least one employee with a current food manager’s certificate. The damaged door seal was allowing the temperature of uncooked food in the two-door cooler to rise to unsafe levels. The third uncorrected violation, which was the missing ceiling tiles, was not critical. On August 27, 2000, the inspector conducted a reinspection and found that Respondent had corrected the violations concerning the thermometers, cleaned the food container and cooking line, added paper towels and soap at the kitchen hand sink, replaced the missing ceiling tiles, shielded the light over the pizza prep area, and installed a barrier between the fryer and stove. At the reinspection, two employees with current food manager’s certificates were on duty, and an employee informed the inspector that Respondent had ordered the door seal for the two-door cooler. On September 10, 2000, the inspector conducted a second reinspection and found that Respondent had still not repaired the seal to the two-door cooler, which was still not maintaining uncooked food at safe temperatures. The inspector found that the dishwashing machine was still not sanitizing and, as cited in the first two inspections, a filter was missing from the hood. Respondent had corrected the violation for one of the two previously cited coolers, so it was maintaining food at safe temperatures. Thus, over the seven months covered by inspections in this case, Respondent never repaired the door seal and again removed a hood filter, after replacing it after the first two inspections. By Stipulation and Consent filed August 6, 1997, Respondent agreed to pay an administrative fine of $500 for an uncorrected violation involving the failure to maintain a hood fire-suppression system for the cooking grill. This violation was cited and re-cited during inspections on January 27, February 20, March 10, April 10, and May 19, 1997. By Default Final Order filed October 19, 1999, Petitioner imposed an administrative fine of $450 and required enrollment in a hospitality education program for four violations: an unshielded light over the pizza prep area, a discharged fire extinguisher, a fire extinguisher without an inspection tag, and the use of an electrical extension cord. These violations were cited and re-cited on February 5 and 18, 1998.
Recommendation It is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of the seven violations that are the subject of this case and imposing an administrative fine of $4800. DONE AND ENTERED this 5th day of January, 2001, 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 5th day of January, 2001. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony’s Italian Ristorante, Inc. Anthony’s Italian Ristorante 4820 Davis Boulevard Naples, Florida 33942-5306
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated June 19, 2007, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Respondent, Demills Family Restaurant (hereinafter referred to as "Demills Family Restaurant" or "establishment"), a public food establishment, is licensed and regulated by the Division. The establishment's license number is 2200535. Demills Family Restaurant is located at 6501 Park Boulevard, Pinellas Park, Florida 33781. Larry Burke is employed by the Department as a senior sanitation and safety specialist. Upon being employed with the Department, Mr. Burke was trained in laws and rules for both food service and public lodging establishments. Mr. Burke is certified as a food manager and attends continuing education on a monthly basis. As part of his job responsibilities, Mr. Burke conducts approximately 1000 inspections a year, many of which include inspections of public food establishments. On April 26, 2007, Mr. Burke conducted a routine unannounced inspection of the Demills Family Restaurant. During the inspection, Mr. Burke observed several violations at the establishment which were critical violations that were required to be corrected within 24 hours. Mr. Burke set forth his findings in a Food Service Inspection Report on the day of the inspection and provided a copy of the report to Debra Nunez, one of the owners of the establishment. A violation of the Food Code or other applicable law or rule, which is more likely than other violations to contribute to food contamination, illness, or environmental health hazards, is considered a critical violation. In the April 26, 2007, Food Service Inspection Report, Mr. Burke specified that certain critical violations had to be corrected within 24 hours. However, there were other critical violations observed on April 26, 2007, for which the owners of the establishment were given a warning and an additional 30 days to correct the violations. On April 27, 2007, Mr. Burke conducted a call-back inspection at the Demills Family Restaurant to determine if the critical violations he had observed the previous day had been corrected. During the "call back" inspection, Mr. Burke observed that all the critical violations found during the April 26, 2007, which were required to be corrected within 24 hours, had been corrected within that time period. Also, some of the non-critical violations observed on April 26, 2007, had been corrected when the "call-back" inspection was conducted. (The violations cited in the April 26, 2007, routine inspection and that were corrected during the call-back inspection the following day are not at issue in this proceeding.) During the April 27, 2007, call-back inspection, Mr. Burke prepared a Callback Inspection Report on which he noted violations first observed during the routine inspection conducted on April 26, 2007, but which had not been corrected on April 27, 2007. In accordance with applicable guidelines, Mr. Burke issued a warning to the establishment's owners and gave them 30 days or until May 27, 2007, to correct the uncorrected violations observed on April 27, 2007. This warning appeared on the April 27, 2007, Callback Inspection Report which was given to Mrs. Nunez. On May 31, 2007, Mr. Burke performed a second call-back inspection at Demills Family Restaurant. During this call-back inspection, Mr. Burke observed and cited the violations previously cited on the April 27, 2007, Call-Back Inspection Report that had not been corrected. These violations are discussed below. Violation No. 02-13, one of the uncorrected violations, involved the establishment's failure to provide a consumer advisory on raw/undercooked meat. This violation was based on information provided by personnel in the kitchen that hamburgers in the establishment are "cooked to order." In light of this policy, there are some customers who will likely order hamburgers that are undercooked. In those instances, pathogens may not be eliminated from the meat. Thus, establishments, such as Respondent, are required to inform customers of the significantly increased risk of eating such meat. After the May 31, 2007, call-back inspection and prior to this proceeding, the owners of the establishment posted signs throughout the dining room area which warned customers about the risks of consuming raw or undercooked foods (i.e., meats, poultry, seafood, shellfish or eggs). Violation No. 02-13 is a critical violation, but not one that is required to be corrected within 24 hours. Rather, this was a critical violation because it was a repeat violation after it was not corrected within the 30-day call-back period. Violation No. 32-15-1, one of the uncorrected violations, involved Respondent's failure to have hand-wash signs at the sinks designated for use by employees. The display of hand-washing signs at these sinks is important because it reminds employees to wash their hands, which helps prevent the transmission of food-borne disease by employees. This was a critical violation because it was a repeat violation and one which was not corrected within the 30-day call-back period. Mr. Nunez does not dispute that at the time of the May 31, 2007, call-back inspection, there were no hand-wash signs. However, since that time, he has placed signs that notify employees to wash their hands. These signs are placed at all hand-wash sinks used by employees, including the one in the cooks' kitchen and in the waitresses' station, and are clearly visible to the employees. The establishment also has hand-wash signs at all sinks in the establishment, including those used by customers. Violation No. 37-14-1, an uncorrected violation, was based on part of the ceiling in the establishment being in disrepair. Specifically, the section of the ceiling that was in disrepair was above a food storage area which contained "open food product." This offense is not classified as a critical violation under the Food and Drug Administration or under Florida law. Mr. Nunez does not dispute that part of the ceiling in the establishment was in disrepair at the time of the May 31, 2007, call-back inspection and the previous April 2007 inspections. Although Mr. Nunez was aware of the problem, he had to rely on the landlord of the building in which the establishment was located to repair the roof. The problems with the roof contributed to the ceiling being in disrepair. Finally, after about four years of asking the landlord to repair the roof, after the May 31, 2007, call-back inspection, the landlord had the roof repaired. The roof repairs are still not complete. However, based on the roof repairs that were completed by early to mid September 2007, Mr. Nunez was able to repair the section of the ceiling at issue in this proceeding. These ceiling repairs were completed by or near the middle of September 2007. Violation No. 37-14-1, an uncorrected violation, was based on Mr. Burke observing that the establishment's exit sign in the dining room was not properly illuminated. The requirement for exit signs to be illuminated is a safety issue. This was a critical violation because it was a repeat violation and one that was not corrected within the 30-day call-back period. Mr. and Mrs. Nunez do not dispute that at the time of the call-back inspection of May 31, 2007, the exit sign was not illuminated. The problem was caused by a problem with a wire in the sign. The person who does electrical work in the establishment had been out-of-town for several weeks and was unavailable to repair the exit sign. However, about three days after the May 31, 2007, call-back inspection, after the repair person returned, he repaired the exit sign; since then, it is properly illuminated. Violation No. 47-16-1, an uncorrected violation, was based on Mr. Burke observing an uncovered electrical box. The box needed to be covered to protect the breaker and to protect the employees and anyone else who had access to the box. This uncorrected violation was a critical violation at the time of the May 31, 2007, call-back inspection. Mrs. Nunez does not dispute that there was an electrical box that was uncovered on May 31, 2007. However, Mrs. Nunez testified that during the initial walk-through in April 2007, Mr. Burke showed her the uncovered electrical box that was located above the walk-in freezer. At that time, the cover was off the electrical box and the wires were exposed. Mrs. Nunez thought that the electrical box above the walk-in freezer was the only electrical box that was cited as a violation after the April 27, 2007, call-back inspection. Based on that understanding, that violation was corrected. However, during the May 31, 2007, call-back inspection, Mr. Burke showed Mrs. Nunez another electrical box in the establishment that was in violation of applicable provisions. Until that time Mrs. Nunez had not been told, and was not aware, that the second electrical box constituted a violation. This mistake on her part was likely caused by the fact that the structure of the second electrical box was completely different from that of the electrical box over the walk-in freezer. The electrical box over the walk-in freezer had wires which were exposed when the box was not covered. On the other hand, the second electrical box resembles a fuse box and did not have any exposed wires. Violation No. 28-02-1 involved the reuse of single- service articles. This violation is based on Mr. Burke observing Respondent's employees reusing plastic food containers, such as the ones sour cream and cottage cheese are in when delivered to the establishment. Such plastic containers should not be used once the food is exhausted. The reason is that the plastic in such containers is not "food service grade for sanitation purposes." Violation No. 28-02-1 is a non- critical violation. The owners of the establishment do not contest Violation No. 28-02-1, related to the reuse of single-service articles. Mrs. Nunez testified that she purchased containers that could be reused and instructed appropriate staff to use those containers. After being given those instructions, the employees told Mrs. Nunez that they were no longer reusing containers for single-service articles although they were doing so. However, as a result of the violation cited during the May 31, 2007, call-back inspection, Mrs. Nunez is committed to checking to ensure that employees are not reusing the plastic containers for single-service articles. Violation No. 61-13-1 is based on Mr. Burke observing that no Heimlich sign was posted in the establishment. The purpose of the Heimlich sign is to provide information in the event a customer in the restaurant is choking. This is a non- critical violation because it makes customers aware in the event of a choking situation. In July 2007, Mr. Nunez left his job as a project engineer to become involved in the day-to-day operations of the Demills Family Restaurant after he realized there were problems at the restaurant that required his attention. Among the issues Mr. Nunez had to initially deal with were the violations cited in the May 31, 2007, Call-Back Inspection Report. Throughout the initial inspection and the call-back inspections, the owners have cooperated with Mr. Burke and corrected most of the violations for which the establishment was cited. Mr. Burke has not conducted an inspection of the Demills Family Restaurant since the May 31, 2007, call-back inspection. However, since that time, all the violations which are the subject of this proceeding have been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Demills Family Restaurant, violated Food Code Rules 3-603.11, 4-502.13(a) and 6-301.14; Florida Administrative Code Rules 61C-1.004(2)(C), 61C-1.004(6) and 61C-1.004(10); and NFPA Rule 70.300.31. Imposing a total administrative fine of $2,800 for the foregoing violations. Requiring Respondent (through its employees and/or owners) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2007.
The Issue The issue in this case is whether on July 14, 2011, and October 13, 2011, Respondent was in compliance with 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. Ms. Jessica Gabbard has been employed as a Sanitation and Safety Specialist with the Division for two years. She previously worked for the Department of Agriculture in the Bureau of Animal Disease Control for about eight years. She has had training, including monthly in-house training and field training in food inspection. She conducts between 600 and 800 inspections of food service establishments for safety and sanitation each year. Ms. Judy Hentges is a Senior Sanitation and Safety Specialist with the Division, where she has been employed for 12 years. She also has had training in food inspection, and conducts between 800 and 1000 inspections of food service establishments each year. Respondent is licensed as a permanent public food- service establishment operating as the Hong Yip Chinese Restaurant at 905 Southwest Main Boulevard, Lake City, Florida. As the hearing began, it became apparent that the owner of Respondent, Mr. Dong Jia Qi, who speaks very little English, was not present. Representing the restaurant was Mr. He Dong, manager of the restaurant, and son of the owner. Mr. Dong was present during the inspections that are the subject of this proceeding, interacted with Petitioner's agents on those occasions, and signed the inspection reports. Under all of the circumstances, including the fact that Mr. Dong demonstrated both knowledge of the applicable statutes and rules and the ability to capably and responsibly represent Respondent, Mr. Dong was accepted as both a Qualified Representative and as a witness. On July 14, 2011, Inspector Hentges conducted a food service inspection on Respondent. Inspector Hentges prepared an inspection report on her Personal Data Assistant (PDA) setting forth the violations that she observed during the inspection. During her July inspection, Ms. Hentges observed that Respondent was using dry, powdered food products that had been removed from their original containers and that the products' substitute working containers were not labeled with their common names. Storage of dry, powdered food products in unmarked working containers can cause mistakes in preparation that can be serious to consumers due to product allergies. The Division has determined such storage in working containers poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on the DBPR Form HR-5022-015, Food Service Inspection Report. Ms. Hentges observed during the July inspection that Respondent was storing rice and onions in uncovered containers in the walk-in cooler. DBPR Form HR-5022-015, Food Service Inspection Report, indicates that this is a critical violation. Uncovered containers can lead to food contamination by particles, by debris, and by microbes, and the Division of Hotels and Restaurants has determined that this constitutes a significant threat to the public health, safety and welfare. During the July inspection, Ms. Hentges observed a rice scoop on the buffet which was stored in standing water that was less than 135 degrees Fahrenheit, and noted this on the report. During the July inspection, Ms. Hentges also observed that a wet cloth used for wiping food spills from equipment surfaces was sitting on the counter and was not stored between uses in a chemical sanitizing solution, and noted this in her report. Wet wiping cloths can be breeding grounds for pathogens that can transfer to food. On October 13, 2011, Ms. Gabbard conducted a callback inspection on Respondent. She prepared a handwritten report on DBPR Form HR 5022-015 setting forth violations that she observed. Ms. Gabbard testified that she observed powdered food products at the cooking preparation line that had been removed from their original containers and placed in working containers not marked with their common names. She recorded this information in her report. Mr. Dong testified that he had corrected the labeling problem on the "big bucket" that stored the sugar, cornstarch, salt, and flours that had been written up in the July inspection. Mr. Dong testified that on the callback inspection the problem was written-up because of different products found in another area, on top of the reach-in cooler, in a see-through container containing peanuts, sesame seed, cashew nuts, and another Chinese product that is a dried root. Ms. Gabbard testified in cross-examination that she did not remember any nuts. Her report indicates "all powdered food products." The report further indicates this violation was "at cookline prepline." Ms. Gabbard's testimony is credited. The unlabeled products Ms. Gabbard observed and noted in her violations report were powdered products at the cookline that could easily be confused, not foods that could be easily and unmistakably recognized, such as peanuts, cashews, and sesame seeds on top of the reach-in cooler. Ms. Gabbard observed uncovered rice and onions in the walk-in cooler. She recorded this in her report. Mr. Dong provided no contradictory testimony at hearing. Respondent did testify that that the film he used to cover the rice and onions did not stick on the aluminum containers used to store the food. Ms. Gabbard observed a rice scoop at the buffet that was being kept in standing water which was less than 135 degrees Fahrenheit, noting this fact in her report. She took the temperature of the water and recorded that it was 45 degrees Fahrenheit. Mr. Dong testified that that they always keep ice in the water to keep it below 41 degrees Fahrenheit. He testified that the water had just been changed so that the ice may have just melted, though he thought ice was still present. He acknowledged that the water was 45 degrees Fahrenheit as measured with the thermometer. Mr. Dong's testimony that he recently put ice in the container is credible, and the temperature of the water would have been room temperature if this had not been done. The water in which the rice scoop at the buffet line was being stored was 45 degrees Fahrenheit. Ms. Gabbard also observed wet wiping cloths that were not being stored in sanitizing solution between uses, but were located in multiple locations on the counter. She recorded this in her report at the time of the inspection. Mr. Dong admitted the violation at the time of the July inspection. He testified that at the time of the callback inspection in October he was using one cloth and the rest were not in use, but had been cleaned and were hanging on the table to dry. In response, Ms. Gabbard testified that there were multiple cloths around the restaurant laying on the counter. Her testimony was corroborated by her inspection report, prepared at the time of the inspection, which noted, "[o]bserved wet wiping cloth not stored in sanitizing solution between uses. Repeat violation. Located in multiple locations on counter." Mr. Dong's testimony on this violation was less credible than Inspector Gabbard's, and her testimony is credited. The wet wiping cloths had not been cleaned, but had been used, and were not being stored between uses in a chemical sanitizer. Petitioner issued an Administrative Complaint against Respondent for the above violations on October 24, 2011. Additional evidence introduced at hearing showed that Respondent has had five previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. In the first Stipulation and Consent Order, signed by Mr. Dong on October 20, 2009, and filed on December 3, 2009, Respondent agreed to pay a fine of $500.00, but did not admit nor deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the second Stipulation and Consent Order, signed by Mr. Dong on January 8, 2010, and entered on March 2, 2010, Respondent agreed to pay a fine of $650.00, but again did not admit or deny the allegations of fact contained in the Administrative Complaint, some of which would have constituted critical violations. In the third Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the fourth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted a critical violation. In the fifth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a Final Order: Dismissing Counts 2 and 6 of the Administrative Complaint and Finding the Hong Yip Chinese Restaurant in violation of two critical and two non-critical violations and suspending its license for three consecutive days beginning the first Monday after 40 days from the date the final order becomes effective. DONE AND ENTERED this 6th day of November, 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 6th day of November, 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 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license number 1621408. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits, Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than 135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/ The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2013.
The Issue The issues in this case are whether Respondent has violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11, and, if so, what discipline should be imposed.
Findings Of Fact Mama B.’s is a restaurant located in Orlando, Florida. The Department is the state agency which is charged with the licensing and regulation of public food establishments in Florida pursuant to Section 20.165 and Chapter 509, Florida Statutes. On July 13, 2005, Andrea Piel, an inspector for the Department, went to Mama B.’s to perform a food service inspection. Ms. Piel found that the sandwich cooler located at Mama B.’s was not maintaining potentially hazardous food at 41 degrees Fahrenheit or below. Specifically, she found that the temperature of the ham, turkey, and seafood in the reach-in cooler was 47 degrees Fahrenheit. The temperature of the salami in the reach-in cooler was 50 degrees Fahrenheit, and the temperature of the pepperoni and pastrami stored in the reach-in cooler was 48 degrees Fahrenheit. The temperature of the cheese in the reach-in cooler was 42 degrees Fahrenheit. On the same inspection, Ms. Piel also found that hot foods were not being held at a temperature of at least 135 degrees Fahrenheit. She found the following on the front line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at 112 degrees Fahrenheit, and cooked onions at 130 degrees Fahrenheit. On her inspection on July 13, 2009, Ms. Piel also observed that Mama B.’s was not using proper cooling methods to cool hot food from 135 to 41 degrees Fahrenheit within six hours. Steak was being cooled in deep containers with tight fitting lids. Ms. Piel saw tomatoes being stored less than six inches above the floor. There was ready-to-eat cheese, which had been rewrapped and undated, stored in a cooler. On July 13, 2009, Mama B.’s was given a warning by Ms. Piel, and a call-back inspection was scheduled for July 14, 2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the call-back inspection. She again observed that tomatoes were being stored about an inch off the ground. There was food being stored in the sandwich cooler at temperatures above 41 degrees Fahrenheit. The cooler contained ham and salami at 48 degrees Fahrenheit; capicola and seafood at 50 degrees Fahrenheit; turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro meat at 45 degrees Fahrenheit. On July 15, 2009, Ms. Piel also saw steak and onions, which were being cooled in deep containers with tight fitting lids. She also saw hot pastrami being held at 125 degrees Fahrenheit. Ms. Piel testified that the pastrami being held was not for orders waiting to be filled. Ms. Piel did not explain how she knew that there were no other orders for pastrami sandwiches. Mr. Adamik, an owner of Mama B.’s who was present at the time of the July 15, 2009, inspection, testified that there were several orders for pastrami sandwiches, which were being filled at the time Ms. Piel observed the pastrami. According to Mr. Adamik, the rolls were already placed on the board awaiting the placement of the pastrami, but, because the preparation area was so small, it was impossible to completely prepare more than one pastrami sandwich at a time. Mr. Adamik’s testimony is credited. The pastrami, which Ms. Piel observed, was being used for immediate service in response to consumer orders. The cooler in which the food was being stored above 41 degrees Fahrenheit had been in operation at Mama B.’s since the late 1990’s. The machine cools from beneath and does not also cool from the top as newer models do. After the violations were noted on July 15, 2009, the old cooler was replaced. Mama B.’s had contacted a repairman after the July 13, 2009, inspection, but the cooler could not be repaired so as to make it cool foods at 41 degrees Fahrenheit or less. Mr. Adamik knew that the location of the tomatoes was a violation, but he did not correct it by the July 15, 2009, because he was busy trying to get the cooler repaired. Mr. Adamik had no explanation why the ready-to-eat food, which had been opened at Mama B.’s, did not have appropriate date marks. Violations of Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B) are considered to be critical violations by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the violation of Food Code Rule 3-305.11; imposing a fine of $300 for the violation of Food Code Rule 3-501.15; imposing a fine of $500 for the violation of Food Code Rule 3-501.16(A); and imposing a fine of $400 for a violation of Food Code Rule 3-501.17(B). DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2010.
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 30530 South Dixie Highway, Homestead, Florida, and holding food service license number 2330285. On July 6, 2009, and November 3, 2009, Respondent was inspected by sanitation and safety specialists employed by the Division. During both visits, inspectors 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. Brown and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of November 3, 2009, the following deficiencies subsisted at Respondent Galindo Cafe: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) food was stored on the floor, raw food was stored over cooked food, and uncovered food was present in a holding unit, in violation of Food Code Rules 3- 305.11(A)(3), 3-302.11(A)(1)(b), and 3-302.11(A)(4), respectively2; (3) a cutting board that was grooved, pitted, and no longer cleanable was observed, in violation of Food Code Rule 4-501.12; (4) unclean, wet wiping clothes were observed, in violation of Food Code Rule 3-304.14(B)(2); (5) a buildup of soiled material on racks in the walk-in cooler was present, in violation of Food Code Rule 4-601.11(A); and (6) a wall soiled with accumulated grease was observed, in violation of Florida Administrative Code Rule 61C-1.004(6). The deficiencies relating to the improper storage of food, the build-up of soiled material, and the lack of proper food labeling are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The three remaining deficiencies (a grooved and pitted cutting board, unclean wiping clothes, and the accumulation of grease on a wall), while not categorized as a critical violations, are serious nonetheless because they can lead to the contamination of food.
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 $1800, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 25th day of January, 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 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 January, 2011.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2003). The Respondent is a restaurant located at 7924 Ulmerton Road in Largo, Florida, holding Permanent Food Service License No. 6213580. Fadil Rexhepi owns and operates the restaurant. On April 25, 2003, an employee representing the Petitioner performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a written report. The inspector provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for May 30, 2003. On May 30, 2003, the Petitioner’s employee re-inspected the Respondent and determined that some of the violations remained uncorrected. The violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection. The owner of the restaurant was not present during either inspection. On August 28, 2003, the Petitioner filed an Administrative Complaint against the Respondent, alleging various continuing and uncorrected violations identified during the inspections. During the inspections on April 25, 2003, and May 30, 2003, food stored in reach-in units was not being maintained at an appropriate temperature of 41 degrees or below. The required storage temperature is intended to prevent development of toxic microorganisms that can result in food safety issues for persons consuming improperly stored food. On April 25, 2003, the inspector found that the temperature of meats, fish, poultry, meatloaf, and milk stored in the units ranged from 46 to 49 degrees. On May 30, 2003, the inspector found that the food temperatures in the same units ranged from 43 to 56 degrees. During the inspections on April 25, 2003, and May 30, 2003, two refrigeration units were not maintaining a proper temperature of 41 degrees or below. During the inspections on April 25, 2003, and May 30, 2003, the inspector noted that the thermal glass in a reach-in unit door was broken. The broken thermal glass results in inability to maintain proper temperatures. During the inspections on April 25, 2003, and May 30, 2003, the Respondent was unable to provide, at the request of the Petitioner's inspector, documentation that employees had completed food safety training. The purpose of food safety training is to permit employees to perform their duties in a manner consistent with the requirements of the Food Code. The Food Code regulation violations identified herein pose a direct threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order imposing a fine of $2,000 against the Respondent. DONE AND ENTERED this 16th day of July, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2004. COPIES FURNISHED: William M. McCalister, Qualified Representative Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Fadil Rexhepi 7924 Ulmerton Road Largo, Florida 33771 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
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.
