The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is the state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is an eating establishment located in Alachua, Florida. At all times material hereto, Respondent was licensed as a public food establishment by the Division. Critical violations are those violations that are more likely to result in food-borne illness if not corrected. Non- critical violations are those violations that, if not corrected, are less likely to contribute to food-borne illness. Judy Hentges has been employed by the Division for approximately 14 years and is a Senior Sanitation and Safety Specialist. Prior to working for the Division, she worked as a manager for McDonald's for over 18 years. Ms. Hentges has received training in laws and rules regarding public food service and lodging, and continues to receive continuing education training on a monthly basis in this area. She is a Certified Food Manager and performs approximately 1,000 inspections annually. Julianne Browning is employed by the Department as a Senior Sanitation and Safety Specialist. Ms. Browning has worked as an inspector for approximately 23 years. Prior to working with the Department, Ms. Browning worked as a server, a hostess, a bartender, a manager, an assistant manager of a hotel, and as a bar manager. Ms. Browning performed these functions while employed by Yellowstone National Park, Walt Disney World, Royal Caribbean Cruise Line, a Tallahassee hotel, and various restaurants. Upon gaining employment with the Department, Ms. Browning received training in the laws and rules pertaining to public food and lodging establishments. On November 15, 2010, Ms. Hentges and another inspector, Ms. Gabbard, performed a routine inspection of Respondent's premises. During the inspection, Ms. Hentges prepared, signed, and issued an inspection report setting forth the violations she observed. The inspection reports are electronically prepared on a Personal Data Assistant by the inspector. Respondent's owner, Stella (Burgetto) Caiozzo, was present and signed the inspection report indicating receipt. Ms. Hentges informed the owner about the violations found, noted the violations on the inspection report, and notified Respondent that the violations must be corrected by November 16, 2010. On November 17, 2010, Ms. Hentges performed a callback inspection of Respondent. During that inspection, she prepared and signed a callback inspection report, which was signed and received by Respondent's owner. At that time, Ms. Hentges made Respondent aware that all violations noted during the inspection needed to be corrected. On March 7, 2011, Ms. Browning performed a routine inspection and a callback inspection of Respondent's premises. She prepared reports of these inspections setting forth the violations found and notified Respondent of these violations. Ms. Browning also made Respondent aware that all violations noted on the routine inspection needed to be corrected by May 8, 2011. On May 10, 2011, Ms. Browning performed a callback inspection of Respondent's premises during which she prepared and signed an inspection report indicating that some of the violations noted on the March 7, 2011, inspection had not been corrected. Respondent's manager signed for the report. Following the May 10, 2011 inspection, Ms. Browning recommended that the Division issue an Administrative Complaint. On November 15, 2010, and again on March 7, 2011, the inspectors observed food (sausages) being cooled by a non- approved method. Ms. Browning described seeing pans of sausages stacked on top of each other covered with foil, with the temperature of the pans at 93 to 96 degrees Fahrenheit. This is a critical violation because if food is not cooled from 135 degrees Fahrenheit to 41 degrees Fahrenheit within 6 hours, harmful pathogens or toxins can begin to grow in the food. On November 15, 2010, and again on March 7, 2011, the inspectors observed potentially hazardous (cold) food held at greater than 41 degrees. Ms. Browning described observing chicken stock on the counter at 70 degrees; observing meatballs at 54 degrees, ham at 55 degrees, sausages at 52 degrees, mozzarella at 48 degrees, and beef at 45 degrees on the pizza table; and observing tuna salad at 57 degrees, pasta salad at 58 degrees, egg salad at 57 degrees, potato salad at 56 degrees, boiled eggs at 66 degrees, eggplant salad at 56 degrees and melon at 59 degrees on the salad bar. This is classified as a critical violation.1/ On March 7, 2011, and again on May 10, 2011, Ms. Browning observed potentially hazardous foods (hot) not held at 135 degrees Fahrenheit or above. She described finding two pans of chicken on the stove at 121 to 122 degrees and buffet pizzas held at 90 to 128 degrees Fahrenheit. This is classified as a critical violation.2/ On March 23, 2010, a representative of Respondent completed DBPR Form HR 5022-090 entitled "Time as a Public Health Control Written Procedures" for using time control only (in lieu of temperature) to hold potentially hazardous foods. The time limit referenced on the form for the life of foods held utilizing time only as a public health control is 4 hours. The form indicates that the food establishment will use a dry eraser board for the pizza display case and pizza cooler. The form also indicates that the "buffet is from 11 a.m. until 3 p.m.," and that "all items will be discarded when the buffet closes at 3 p.m." Ms. Caiozzo testified that in March 2011, the restaurant used time in lieu of temperature at all places where food was out or being stored. Ms. Caiozzo was out of the country during the May 2011, inspection. However, she testified credibly that there is a sign at the buffet area showing the time the food gets put out (11 a.m.) and when it comes off the buffet (3:00 p.m.) and that the sign has been there in the same spot since the restaurant opened. She further testified that the sign has been there all the time for two years. Ms. Browning, however, testified that during the March inspection, she observed that at 2:00 p.m., the time on the pizzas was changed from 10:00 a.m. to 11:00 a.m. This is reflected on her March 7, 2011 and May 10, 2011, inspection reports as follows: "Observed potentially hazardous food held using time as a public health control with a time marking that exceeds the 4 hour limit. Pizzas at front counter. Time on pizzas was changed from 10am to 11am at 2pm. Food may not be served." Ms. Browning further testified that there was not a sign at the salad bar. While Ms. Caiozzo's testimony was credible, she was not present for the May 10, 2011, inspection. Further, Ms. Browning's observations regarding the change of times during her inspection are persuasive, especially in light of her noting this at the time she observed it. On November 15 and 17, 2010, and again on March 7 and May 10, 2011, the inspectors observed processed ready-to-eat, potentially hazardous food (deli meat) held for more than 24 hours without having been properly date-marked after opening. This is a critical violation because the bacteria, listeria monocytogenes, is known to grow at temperatures greater than 41 degrees Fahrenheit, particularly in deli meat. On March 7 and again on May 10, 2011, Ms. Browning observed potentially hazardous food (fish) thawed in standing water. This is a critical violation because the freezing process does not destroy all of the pathogens present on the food. According to Ms. Browning, freezing food does not destroy all pathogens, and thawing fish in standing water gives the pathogens or toxins the opportunity to start growing again. The appropriate way to thaw the food is under cold, running water, as part of the cooking process, or in the microwave. On March 7 and again on May 10, 2011, Ms. Browning observed that the hand wash sink was not accessible for employees at all times because there was a large container of water in the cook line hand sink. This is a critical violation because a lack of proper hand washing is the most common way for foodborne illnesses to be transmitted. According to Ms. Browning, when hand wash sinks are unavailable or are not accessible at all times, employees are less likely to wash their hands. On March 7 and again on May 10, 2011, Ms. Browning observed displayed food (lemons) not properly protected from contamination. This is a critical violation due to the risk that someone with a transmissible disease or sickness could sneeze or cough on the exposed food items, contaminating them and potentially spreading illness. On March 7 and May 10, 2011, Ms. Browning observed boxes of food stored on the floor of both the walk-in freezer (cooked eggplant) and the walk-in cooler (potatoes). This is a critical violation because the floors have already been contaminated, and the boxes become contaminated when they come into contact with the floor. When the contaminated boxes are then opened, the food inside is exposed and may also become contaminated. On March 7 and again on May 10, 2011, Ms. Browning observed no currently Certified Food Manager on duty while four or more employees were engaged in food preparation. This is a critical violation because when four or more employees are present, there is usually a higher volume of food being prepared. A Certified Food Manager needs to be there to answer questions and to direct employees.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Division enter a final order which confirms the violations found, and imposes an administrative fine in the amount of $4,000 due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the Final Order is filed with the Agency Clerk. DONE AND ENTERED this 10th day of July, 2012, in Tallahassee, Leon County, Florida. S Barbara J. Staros 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 10th day of July, 2012.
The Issue The issue in Case No. 01-3068 is whether the licensure status of Petitioner, Plaza West, should have been changed from standard to conditional, effective May 15, 2002. The issue in Case No. 01-4490 is whether Respondent, Plaza West, committed the violations alleged in the Amended Administrative Complaint dated October 23, 2001, and, if so, what penalty should be imposed.
Findings Of Fact The Agency is the state agency responsible for licensing and regulating nursing homes in Florida under Part II, Chapter 400, Florida Statutes. Plaza West is a nursing home licensed by and subject to regulation by the Agency pursuant to Part II, Chapter 400, Florida Statutes. The nursing home is located at 12 American Eagle Boulevard, Sun City, Florida. The Agency conducted an annual re-certification survey of Plaza West on May 15-18, 2001, to ensure the facility's compliance with applicable state and federal regulations. The results of the survey are reported on a form identified as "HCFA-2567," commonly known as a "Form 2567" ("survey form"). The survey form identifies each alleged deficiency by reference to a tag number ("Tag"). Each Tag of the survey form includes a narrative description of the alleged deficiency and cites the relevant rule or regulation violated thereby. There are two Tags at issue in this proceeding, Tag F371 and Tag F362. Tag F371 references 42 C.F.R. 483.35(h)(2), which requires that facilities "store, prepare, distribute, and serve food under sanitary conditions." The Agency alleges that Plaza West improperly stored leftover food and potentially hazardous foods and, thereby, placed residents in the facility, who were fed by mouth, in jeopardy. Tag F362 references 42 C.F.R 483.35(b), and requires that facilities "employ sufficient support personnel competent to carry out the functions of the dietary service." The Agency stipulated that at the time of the survey, facility staff had received in-service training in the area of safe food practices, but alleges that the staff failed to implement those practices. Subsection 400.23(8), Florida Statutes, requires the Agency to assign a "class" rating to the deficiencies alleged in the survey form. The Agency assigned a Class I rating to the deficiencies alleged in Tags F371 and F362. A Class I rating is authorized in Section 400.23(8)(a), Florida Statutes (2001), for any deficiency that the Agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in the facility. When the Agency alleges a Class I deficiency in the survey form, Subsection 400.23(7), Florida Statutes, requires the Agency to change the rating of the facility's license to conditional. Accordingly, after the Agency assigned Tags F371 and F362 as Class I deficiencies, it was required to change the licensure rating of Plaza West from standard to conditional, effective May 15, 2001. The Tag F371 was based on observations by the Agency surveyor assigned to observe the main kitchen and two pantry areas at Plaza West on May 15, 2001, during the May 2001 re- certification survey. Plaza West has a main kitchen and a serving pantry on both the first floor and the second floor. Food is prepared in the main kitchen and taken to the pantries, where it is served to the residents. On the morning of May 15, 2001, Ms. Suzanne Knapp (surveyor or Agency surveyor), conducted an initial tour of the main kitchen and the second floor pantry. Later that day, the surveyor conducted an in-depth review of the main kitchen and the first and second floor pantry areas. During the initial tour of the first floor pantry on May 15, 2001, at about 9:50 a.m., the Agency surveyor observed that the paper towel dispenser at the hand wash sink was empty. The Food Code, which is applicable to nursing homes, requires that the facility have a method for dietary staff to dry their hands on a single service item. Paper towels meet that description. At the time the surveyor made the observation described in paragraph 13, there were paper towels underneath the hand wash sink in a drawer for use by facility staff when the top dispenser was empty. However, after observing the empty paper towel dispenser, the surveyor did not advise facility staff of her observation or inquire of staff as to the availability of another method for staff to dry their hands at the hand wash sink. Because the surveyor never raised this as a concern during the initial tour or any other time during the survey, staff never informed her of the second source of paper towels. During the initial tour of the main kitchen, at about 10:00 a.m., the Agency surveyor made the following observations: there were no paper towels at the one of two hand wash sinks, the ice scoop holder attached to the outside of the ice machine was dirty; 3) there was dust on the vents on the upper outside part of the ice machine; 4) the third compartment of a three-compartment sink used to "process" (wash, rinse, and sanitize) pots and pans contained water with a sanitizing solution that was at 100 ppm of sanitizing solution rather than at the manufacturer's required concentration of 200 ppm; 5) some cutting boards were in a storage rack that was on a dirty shelf; 6) the hand wash sink next to the food preparation sink did not have a barrier between the two sinks. None of these items, standing alone, would rise to the level of a Class I deficiency. At the time of the initial tour, the ice scoop holder, which was attached to the outside of the ice machine, was dirty. When this was observed by the surveyor, there was no ice scoop or similar device in the holder. While the ice machine was operable and full of ice, there is no indication of what the ice was used for and how it was retrieved from the machine. With regard to the dust on the vent on the upper part of the ice machine, the surveyor was concerned that some of the dust particles could fall into the ice or on food. The surveyor was concerned that the sanitizing solution in the third compartment of the sink in the main kitchen was not strong enough to adequately reduce the bacteria on the pots and pans. The concern of the surveyor was reasonable, if there was an indication that the weaker solution had been used to sanitize items. However, there is no indication that pots and pans were being washed at the time surveyor determined that the strength of the solution was not the proper strength. Moreover, there is no indication that items were about to be sanitized in the solution or had been sanitized in the solution and, if so, what the strength of the solution was at that time. The surveyor observed that there was no barrier between the hand wash sink and the food preparation sink. The surveyor believed that the absence of such a barrier could cause cross contamination if the hand-washing splash got on food items being prepared in the food preparation sink. While this is a possibility, there is no indication that either the food preparation sink or the hand sink was being used during the observation. Thus, the concern regarding cross-contamination is merely speculative. Additionally, this configuration, with the hand wash sink next to the food preparation sink, had been approved during the planning and/or construction phase, by the Agency's Plans and Construction Division. Finally, this identical configuration was in place during the survey immediately prior to the May 2001 survey and was not cited as a deficiency. During the initial tour, at about 10:10 a.m., the surveyor went to the second floor food service pantry, where she observed cooked scrambled eggs, called boil-in-the-bag eggs, on the counter top. The eggs were in the thick plastic bag, which was about half full of eggs, and wrapped in Saran Wrap. About three cooked sausage links and a few slices of cooked bacon, separately wrapped in Saran Wrap, were also on the counter. The eggs, sausage, and bacon were away from any heat or cooling source. Mr. Barry Bolay, the Certified Dietary Manager for the facility, accompanied the surveyor to the second floor pantry and was with her when she observed the cooked scrambled eggs, the bacon, and the sausage on the counter. At that time, Mr. Bolay told the surveyor that the facility did not keep leftover cooked scrambled boil-in-the-bag eggs and that the eggs, bacon, and sausage were to be thrown away. However, Mr. Bolay explained that the food would be taken to the main kitchen and disposed of there. During the survey, the surveyor was provided with a copy of the facility’s policy regarding “Refrigerated Leftover Storage.” The policy provided the following: “Leftover foods will not be saved and re-used for human consumption if there is any doubt of wholesome quality. A leftover is a product that has been on the service line one time.” The policy prohibits the facility from re-using food that "has been exposed in serving carts or at residents' tables" and sets forth guidelines regarding the length of time specified foods should be in the refrigerated. The refrigerated leftover storage policy lists foods which may be stored for a maximum of seven days, a maximum of three days, and those foods which may not be saved. Cooked eggs are specifically included in the list of foods that are "not to be saved." Consistent with this policy, cooked scrambled boil- in-the-bag eggs that are not served at the meal for which they are prepared are discarded, whether or not they have been on the service-line or the residents' tables. On May 15, 2001, at approximately 2:10 p.m., the surveyor conducted an in-depth review of the main kitchen. First, the surveyor interviewed facility staff to determine if the facility had a system in place to calibrate its food probe thermometers. After being advised that the facility did have such a system, the surveyor asked Mr. Bolay or other staff to bring her two probe thermometers that are regularly used to take the temperatures of food in the kitchen. Upon being provided with two thermometers, the surveyor inserted the thermometers into a carton of milk that had been taken from the milk cooler. There was a difference of 13 degrees in the temperatures registered by the two thermometers. The surveyor then asked Mr. Bolay to calibrate the thermometers. In response to the surveyor's directive Mr. Bolay put water and ice in a cup for the purpose of calibrating the thermometers. The surveyor's opinion was that Mr. Bolay put too much water and not enough ice in the cup when he was preparing to calibrate the thermometers and that this would not allow a freezing point environment necessary to calibrate the thermometers. Based on the opinion expressed to him by the surveyor, Mr. Bolay retrieved another cup and packed it with ice, added a small amount of water, and then inserted the two probe thermometers. After Mr. Bolay followed the surveyor's instructions, the thermometers still were not calibrated correctly and in order to calibrate them, "adjustments had to be made to the thermometers." Once the probe thermometers were adjusted, the temperature of the milk was taken again and the temperature of the milk was determined to be at a safe level. It is important to calibrate thermometers that are used in facilities in order to check the temperature of foods and ensure that they are kept at a safe temperature. In this case, when the two probe thermometers regularly used by the staff were provided to the surveyor, they were not calibrated. However, once the thermometers were calibrated, it was determined that the milk, which was being stored in the milk cooler, was at a safe temperature. While in the main kitchen for the in-depth review, the Agency surveyor observed three bags of cooked scrambled boil-in- the-bag eggs in the reach-in refrigerator. The bags were stacked on top of each other and each bag was partially filled with cooked scrambled boil-in-the-bags eggs and wrapped in Saran Wrap. None of the bags were labeled or dated, but one of the bags appeared to be identical to the one that the surveyor had seen that morning in the second floor pantry. Also, in the reach-in refrigerator were three cooked sausage links wrapped in Saran Wrap that appeared identical to the sausage that was in the second floor pantry at about 10:10 a.m. that same day. The surveyor asked Mr. Bolay why the eggs were in the reach-in refrigerator after he had stated, that morning that the eggs would be discarded. In responding to the surveyor, Mr. Bolay did not deny that one of the bags of cooked eggs and the three links of cooked sausage were the same ones that were observed in the second floor pantry at about 10:10 a.m. that morning. However, Mr. Bolay was surprised that the cooked boil- in-the-bag eggs were in the refrigerator and told the surveyor that he did not know why the eggs had not been discarded, who put the eggs and sausage in the refrigerator, or why they were put there. Mr. Bolay reiterated to the surveyor his earlier statement that this occurrence was against facility policy and also indicated that employees who are known to violate this policy are disciplined. Even after the survey, Mr. Bolay investigated the matter and still was unable to determine who put the cooked boil-in-the-bag eggs and cooked sausage links in the reach-in refrigerator and why they were put there. The credible testimony of Mr. Bolay was that leftover cooked boil-in-the-bag eggs are never served to residents at the facility because the policy prohibits these eggs from being saved, Mr. Bolay also indicated that, even in absence of such a policy, cooked boil-in-the-bag eggs would not be served because they can not be reheated in a manner to make them palatable. The cooked scrambled boil-in-the-bag eggs were to be discarded and, thus, there was no need for the bags to be labeled. Moreover, it was the facility's policy to discard any food items which were unlabeled and undated, unless the time that they were placed in the refrigerator could be verified. In this case, the three bags of cooked boil-in-the-bag eggs and the three cooked sausage links were not labeled and the time that they were placed in the refrigerator could not be verified. Therefore, pursuant to the facility's policy and/or procedures regarding unlabeled foods, the eggs and sausage would have been discarded and not served to residents. Eggs are categorized by the Food Code as a potentially hazardous food. They are protein and possess a high moisture level, which can support the rapid progressive growth of bacteria. However, because the boil-in-the-bag eggs are a pasteurized product, the level of potential hazard was within federally approved standards. Accordingly, if cooked boil-in- the-bag eggs were cooled within the applicable guidelines, they would not necessarily harbor food-borne illnesses. It would be more likely that contamination by another source would make them hazardous and there was no evidence that the eggs were so contaminated. The safe temperature for potentially hazardous foods, such as eggs, to be stored is 41 degrees F. The Food Code allows cooling down of hazardous foods from 140 degrees F. to 70 degrees F. in two hours and to 41 degrees or less within six hours. To determine if foods are cooled within the applicable federal guidelines, there must be a system of labeling to determine if that level is being met. The temperatures of the bags of cooked eggs in the reach-in refrigerator were taken with calibrated thermometers at about 2:40 p.m. The three bags of eggs were tempted at 48 degrees F., 50 degrees F., and 66 degrees F. The surveyor believed that these were not safe temperatures for the eggs, which were a potentially hazardous food. The three plastic bags containing cooked scrambled boil-in-the-bag eggs, wrapped in Saran Wrap, were not labeled and no determination was made as to when the eggs were cooked, whether they ever reached 170 degrees F. and when they were placed in the refrigerator. Immediately after Mr. Bolay or other staff took the temperature of the cooked boil-in-the-bag eggs as directed by the surveyor, he discarded the three bags of eggs. This action was consistent with the facility's policy that leftover eggs were "not to be saved." As part of his job as certified dietary manager, Mr. Bolay inspects the main kitchen several times a day, including the reach-in-refrigerator. Based on this practice and his knowledge of the facility's policy that cooked eggs are not to be saved, if he had seen the eggs in the reach-in refrigerator, he would have discarded them or had staff to do so. Facility staff are trained to discard unlabeled food or, if unsure, to bring it to the attention of the certified dietary manager, the supervisor, or chef. With regard to unlabeled foods, the credible testimony of Mr. Bolay is that employees are trained that, "[i]f in doubt, throw it out." Based on the evidence presented, it is not known whether the boil-in-the-bag eggs in the reach-in refrigerator were safe to eat. Without information as to when the eggs were cooked, whether they ever reached the appropriate temperature, and when the cooling process began, no determination can be made as to whether the eggs were cooling down properly under the applicable federal guidelines. During the in-depth review of the main kitchen, on May 15, 2001, at about 2:40 p.m., the surveyor observed two or three pans, covered with foil, in the reach in refrigerator. In the pans were corn beef hash and pre-cooked link sausage. On May 15, 2001, at or about 12:45 p.m., the prep cook removed the corn beef hash from the can, placed it in a pan for the following morning's breakfast, and stored it in the reach-in refrigerator. The corn beef hash had not been heated prior to being put in the reach-in refrigerator and was not to be heated until the next day. On May 15, 2001, at 12:45 p.m., the prep cook removed the pre-cooked link sausage from the freezer, placed the pre- cooked sausage in a pan, and put it in the reach-in refrigerator. The pre-cooked link sausage was not heated that day, but was to be heated and served for breakfast the following day. The procedure described in paragraphs 42 and 43 reflect and followed the normal "prep procedure" or routine utilized at Plaza West. The pans with the corn beef hash and the pre-cooked link sausage were not dated or labeled, but it was possible to verify when those food items were put in the pan and the refrigerator, and who put them there. Moreover, there is no requirement that "prep foods" be labeled. The canned corn beef hash and pre-cooked link sausage are not hazardous foods. The corn beef is a canned processed food and the sausage links were pre-cooked and came frozen from the supplier. Because these foods are in "a ready-to-eat condition," they do not come within the meaning of potentially hazardous foods as it relates to achieving a suitable cooking temperature and/or the cooling process described in paragraph 33. During the in-depth review of the main kitchen at about 2:40 p.m., on May 15, 2001, the surveyor observed raw, uncracked eggs in a large plastic "cylinder-type container" in the reach-in refrigerator. At the time of this observation, the surveyor believed that the reach-in refrigerator was not maintaining food at 41 degrees as required by the Food Code. Despite this concern, the Agency surveyor did not take or direct staff to take the temperature of the eggs. At the time of the survey, the refrigerator units, including the reach-in refrigerator and the walk-in refrigerator or cooler, were fully operational and functional and at the proper temperature. Although the reach-in refrigerator was working properly at the time of the survey, the Agency surveyor believed otherwise. Based on the mistaken belief that the reach-in refrigerator was not working properly, on May 15, 2001, at approximately 3:00 p.m., the surveyor told faculty staff to remove and/or discard "the potentially hazardous food stored in the reach-in refrigerator and not to store potentially hazardous food in this unit until it was assured that the food could be maintained at the safe temperature of 41 degrees F or less." From a safety perspective, labeling is not a concern with storage of raw eggs. The only concern with uncooked eggs is that the eggs be stored or held at the proper temperature, 40-45 degrees F. Storing raw eggs at temperatures within that range limits the growth of salmonella within those eggs. The surveyor did not specify the foods in the reach-in refrigerator that she deemed to be "potentially hazardous." Immediately after the surveyor instructed facility staff to remove and/or discard the "potentially hazardous food," the staff started to remove food from the reach-in refrigerator. The surveyor continued the in-depth review of the main kitchen. A few minutes after the surveyor first observed the large plastic bin containing the raw, uncracked eggs in the reach-in refrigerator, she saw them in the walk-in cooler stored on a shelf. There was a misunderstanding between the surveyor and facility staff regarding the removal of "potentially hazardous foods" from the reach-in refrigerator. By her instructions, noted in paragraph 52, the surveyor intended for the staff to discard the "potentially hazardous foods," including the uncracked raw eggs that were in the reach-in refrigerator. Facility staff who were charged with complying with the surveyor's instructions understood these instructions to require only that the "potentially hazardous food," be removed from the reach-in refrigerator. Facility staff apparently understood that the surveyor's directive regarding removal of potentially hazardous foods was based on the surveyor's belief that the reach-in refrigerator was not functioning properly and was not cooling foods to 41 degrees F. or less. Based on this understanding or interpretation of the directive, facility staff removed the raw uncooked eggs from the reach-in refrigerator and placed them in the walk-refrigerator or cooler. Although the temperature of the raw, uncracked eggs was never taken, the eggs were stored in refrigerator units that were fully operational and functional and at the proper temperature. Therefore, it is reasonable to assume that the raw eggs were at the temperature required for storage of raw eggs. The Agency's presumption to the contrary is rejected, in light of the fact that refrigerator units were fully operational, functional, and at the proper temperature. The pre-cooked link sausage and the corn beef hash were not hazardous foods and the method utilized for storage of these foods was appropriate. There were no food-borne illnesses in the facility at the time of the survey. The reach-in refrigerator is in the main kitchen and is used primarily for storing food prepared for the next meals and was working properly at the time of the survey. During the survey, there was a personal beverage cup in the food preparation area of the main kitchen. This violates the Food Code, which prohibits staff from having personal beverages in the facility's food zones, but this deficiency, standing alone, would not constitute a Class I deficiency. Leaving or having a personal beverage in the food preparation area also violated the policy of Plaza West. After the cup was observed by the surveyor and the facility dietary supervisor, Maritza Cedona, who was accompanying the surveyor at this time, Ms. Cedona, immediately removed the cup from the area. No food was being prepared at the time or in the area where the cup was observed. During the in-depth review of the main kitchen the surveyor observed two bins in which glass dessert dishes and/or coffee cups were stored. On the bottom interior surface of one of the bins were broken pieces of glass, apparently from one or more of the dishes stored in the bin. On the bottom interior surface of the other bin were loose coffee grounds. This violates the requirement that surfaces used to store equipment should be kept free of foreign matter or dust particles, and that such surfaces should be washed, rinsed, and sanitized. This violation, standing alone, would not constitute a Class I deficiency. During the in-depth review of the main kitchen, at about 2:15 p.m., a cook was observed slicing onions with a slicer. A few minutes later, the surveyor observed that the cook had completed that task and there was a piece of plastic or a plastic bag on top of the slicer. When a piece of plastic is over a piece of kitchen equipment, it typically means that the equipment has been cleaned and is ready for use. In this case, the plastic was not covering the slicer, but was placed across the top of it. The surveyor believed that the placement of the plastic on the slicer was an indication that it had been washed. In fact, the slicer had not been washed. The cook had only wiped the slicer with a towel. The slicer had to be disassembled before it could be washed, rinsed, and sanitized. Because the cook could not disassemble the slicer, this job was done by the chef and/or the dietary supervisor. The slicer had not been disassembled and cleaned immediately after it was used because the dietary supervisor, who would have cleaned it that day, was with the surveyor during that time. When the surveyor concluded that the slicer had not been washed, and apparently assumed it would not be washed, only fifteen minutes had passed since she had observed the cook slicing onions. Based on the facility's practice, there is no indication that the slicer would not have been disassembled and washed in a timely fashion and prior to its being used again. During the in-depth review of the main kitchen, the surveyor observed dirty pots and pans stacked on top of each other, on a rack that was suppose to be used for clean pots and pans. The surveyor observed that at one of the two hand wash sinks in the main kitchen, the soap dispenser was empty. However, there was a dispenser with sanitizing solution at the sink. The sanitizer is an acceptable substitute for soap and an appropriate "stop gap until employees could get soap." In the facility's main kitchen, there was a large bulk container that had a bag of flour stored inside. The bottom interior surface of the container was heavily caked with flour and other debris, which likely were pieces of the bag which contained the flour. This deficiency standing alone, would not constitute a Class I deficiency. It is routine in the food service area that foods be labeled and dated. Based on this "routine"," the Agency's survey report noted that the surveyor's observation that "[m]any covered food items stored in the walk-in cooler [in the main kitchen] were without dates and a label of contents." Neither this recorded observation nor other evidence or testimony at hearing, detail, describe, or otherwise specifically identify the items referred to on the survey form. Absent such information and a reference to applicable Food Code provisions or other regulations requiring labeling, it is unclear what the items were and whether there is a requirement that they be labeled. On May 15, 2001, the surveyor conducted a noon meal observation at the first floor pantry. During the noon meal, when there was no more ground chicken, the certified dietary manager removed two pieces of whole chicken from a serving pan and sent it to the main kitchen to be ground. When facility staff returned with the ground chicken, the container with the ground chicken was placed across the top of the steam table and not into the steam table well. Prior to serving the ground chicken to residents, the ground chicken was put on individual plates, heated in the microwave, and then served to the residents. The temperature of the ground chicken was not taken before it was served to the residents. The Food Code requires that when food is reheated, if it is not at a safe temperature of 140 degrees F. or above, it is required to be at 165 degrees F. Because the temperature of the ground chicken was not taken after being removed from the microwave, the temperature of the ground chicken could not be determined. The surveyor observed the activities described in paragraph 68, including the ground chicken being served to residents. However, the surveyor did not advise facility staff that the chicken should not be served to the residents. If, in fact, the Agency believed that the ground chicken posed a threat of transmitting a food borne illness to the residents who were going to be eating it, the Agency surveyor likely would have advised the facility to not serve the chicken to the residents. With regard to Tag F362, the Agency alleges that although the dietary staff at the facility was trained in proper food storage and preparation, the staff failed to implement the training. Under Tag F362, the Agency alleges that the facility violated 42 C.F.R. 483.35(b), by failing to employ sufficient support personnel competent to carry out the functions of the dietary service. According to the survey report, this deficiency or violation was evidenced during the survey by "improper storage of potentially hazardous foods, and improper use of the reach-in refrigerator (prep cooler), located on the cook's line." The Agency alleged that the staff failed to implement and adhere to their in-service training on safe food practices and that their failure to do so "threatened residents with food borne illness." No evidence was presented to support these allegations. The Agency based the Tag F362 deficiency on the facility's alleged improper storage of potentially hazardous food and improper use of the reach-in refrigerator. Initially, the allegations under Tag F362 were that the staff had not received in-service training on safe food practices, and that the staff had failed to implement the practices. Subsequently, in accordance with the stipulation of the parties, the alleged deficiency under Tag F362 was modified to charge only that the facility staff failed to implement the in-service training they had received on safe food service practices. The statement of deficiencies and findings under Tag F362 references Tag F371 and the federal regulation cited under the latter tag. Therefore, the Agency's findings under Tag F371, related to the storage of food, also apply to and will be considered in addressing the Tag F362 deficiency. Both Tags F362 and F371 were designated as Class I deficiencies based on the Agency's determination that as a result of the alleged violations, "immediate jeopardy was identified for all residents who ate food by mouth with the threat of the spread of food borne illness." However, on May 15, 2001, the first day of the survey, after the facility discarded the allegedly potentially hazardous food, the "immediate jeopardy" was relieved, the scope/severity was reduced to "F," and the state classification of the deficiencies was reduced from Class I to Class III.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order revising the May 2001 survey report to delete and/or modify the deficiencies described under Tag F371 and Tag F362 that are not supported by the record; rescinding the conditional licensure rating, effective May 15, 2001, to the extent the change in licensure status was based on Tag F362 and Tag F 371; and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. 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 18th day of June, 2002. COPIES FURNISHED: Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout, & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
