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
The Issue Whether Respondent operated a public food-service establishment without a valid license and, if so, the appropriate sanctions.
Findings Of Fact At all times material hereto, Respondent operated a mobile food-dispensing vehicle in Jacksonville, Florida. Respondent held License No. 2651331. A mobile food-dispensing vehicle is a “public food service establishment” as that term is defined in section 509.013, Florida Statutes. On January 9, 2012, Michael Byrd conducted an inspection of Respondent?s mobile food-dispensing vehicle at its commissary location at 2356 West Beaver Street, Jacksonville, Florida. During the inspection, Mr. Byrd noted that Respondent?s license, which was displayed as required, had expired on June 1, 2011. Mr. Byrd entered the violation of the Petitioner?s licensing requirement on an Inspection Report, which report was thereupon signed by Oswald Higgs on behalf of Respondent. The report established March 10, 2012, as the date for a callback inspection, by which time the violation was to be corrected. On April 20, 2012, Mr. Byrd performed the call back inspection. Respondent failed to produce a current license for the mobile food-dispensing vehicle. Petitioner proved, by clear and convincing evidence, that Respondent was operating a public food-service establishment on an expired license as alleged in the Administrative Complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Ozamori Mobile Kitchen, violated section 509.241(1), Florida Statutes, and Florida Administrative Code Rule 61C-1.002(6); and Imposing an administrative penalty against Respondent, Ozamori Mobile Kitchen, in the amount of $500, payable to Petitioner within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of January, 2013. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Oswald Higgs Ozamori Mobile Kitchen 2560 Automobile Drive Jacksonville, Florida 32209 Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
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 located in Tallahassee, Florida, with a business address of 710 West Orange Avenue. Respondent was issued license number 2014 by the Division as a mobile food dispensing vehicle. Critical violations are those violations that, if not corrected, could contribute to food-borne illness, environmental health hazards, or contamination of food. Edward Bouza is employed by the Division as a plans examiner. Before becoming a plans examiner, he worked for the Division as a Sanitation and Safety Specialist inspector. Mr. Bouza has received three to four months of in-field training regarding public food service and inspections. During the time he was a Sanitation and Safety Specialist, he continued to receive continuing education training on a monthly basis. He performed approximately 800 to 1,000 inspections each year. Cynthia Ross is employed by the Division as a supervisor. She supervises nine inspectors. Prior to becoming a supervisor, Ms. Ross worked as a Sanitation and Safety Specialist for two years. Prior to working at the Division, Ms. Ross worked as a general manager of a Ruby Tuesday restaurant for 15 years, as a general manager of a fine dining establishment for three years, and as an owner/operator of a full-service restaurant for seven years. She received training on the Food Code and was trained in the laws and rules pertaining to public food service and lodging establishments. In her former capacity as a Sanitation and Safety Specialist, she received continuing education training on a monthly basis and performed approximately 1,000 inspections a year. On April 1, 2011, Mr. Bouza and Ms. Ross conducted a routine food service inspection of Respondent's premises. They observed Respondent operating without any water at its hand sink, its three-compartment sink, and without hot water at its hand sink. These are critical violations because without hot and cold running water, Respondent could not perform basic cleaning functions in its establishment, could not properly wash its equipment, or allow its employees to wash their hands. During the inspection, Mr. Bouza and Ms. Ross prepared, signed, and issued an inspection report setting forth the violations they observed. Anthony Rivers, Respondent's owner, was present and signed the inspection report indicating receipt. An immediate Administrative Complaint and an Emergency Closure Order were issued based on the violations documented on the April 1, 2011 inspection report.
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 $500 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 9th day of May, 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 9th day of May, 2012. COPIES FURNISHED: Marc A. Drexler, Esquire Sarah Morgan, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Anthony Rivers Bangin Barbeque 4031 Bishop Road Tallahassee, Florida 32305 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner. Respondent's last known address is 2838 South U.S. Highway 1, Fort Pierce, Florida. Case No. 02-2160 Petitioner's inspector inspected Respondent on July 13, 2001. Several deficiencies were noted by the inspector. One deficiency of critical concern was that Respondent's employees had failed to complete their food service training. Because of this critical deficiency, Respondent was given a 30-day warning to have the training completed. Over 30 days later, on August 26, 2001, Petitioner's inspector returned for a re-inspection. Three deficiencies were not corrected and remained: Respondent had failed to complete the food service training for its employees; Respondent failed to provide hand towels and soap at the hand wash sink; and Respondent failed to have a light shield at the grill cook area. Respondent, through its owner, does not contend that the deficiencies were not present but provides mitigating circumstances. As to the food service training for employees, the books for the training had been ordered but had not been received at the time of the re-inspection. Additionally, Respondent is closed for the first two weeks in August of each year for vacation and the employees are away. Moreover, the employees completed their training on September 15, 2001. Respondent requested a re-inspection, which was performed by one of Petitioner's supervisors. Respondent had complied with all requirements and no deficiencies were found. Case No. 02-2161 Petitioner's same inspector inspected Respondent on January 31, 2002. Several deficiencies, including critical deficiencies, were noted by the inspector. Seven days later, on February 7, 2002, the inspector returned for a re-inspection due to the critical deficiencies being noted. Nine deficiencies were not corrected and remained: the slicer blade area had an accumulation of old food debris; the shelf in the dry food storage area was rusted; extension cords were being used in the kitchen near the slicer; the rear door was not sealed properly at the bottom and side of the door; there was no backflow prevention device on the spigot below the dish machine; unapproved containers were being reused at the dishwash area; the absence of test strips to test the concentration of the sanitized solution; the dish machine was not sanitizing utensils; and the plate temperature was below 160 degrees. The critical deficiencies were the dish machine was not sanitizing utensils and the plate temperature was below 160 degrees. Respondent, through its owner, does not contend that the deficiencies were not present but provides mitigating circumstances. As to the critical deficiency of the dish machine not sanitizing utensils, Respondent was unable to get the dish machine repaired in one week. As to the food slicer having an accumulation of old food debris, Respondent's employees are instructed to clean the slicer at the end of each shift. However, at the time of the initial inspection on January 31, 2002, and the re-inspection on February 7, 2002, the slicer contained an accumulation of old food debris. As to the shelf in the dry food storage area being rusted, Respondent was unable to get the rusted area painted in one week. Respondent continued to operate between the inspections and re-inspections performed in 2001 and 2002. For 25 years, Respondent's owner has been in the restaurant business in Saint Lucie County (three years as a manager and 22 years as an owner) without an administrative fine. Further, Respondent has no history of disciplinary action being taken against it by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Out of Bounds Steak N Grill committed the violations in Case Nos. 02-2160 and 02-2161. Imposing an administrative fine of $500.00 payable within 45 days of the filing of the final order. Requiring the owner of Out of Bounds Steak N Grill, Mr. Henry L. Brandenburg, to attend a Hospitality Education Program class within 60 days of the filing of the final order and to provide proof of such attendance to the Division of Hotels and Restaurants. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2002. COPIES FURNISHED: Henry Lance Brandenburg Out of Bounds Steak N Grill 2838 South U.S. Highway 1 Fort Pierce, Florida 34982 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is an eating establishment located in Bell, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license number 3100051 issued by the Division. Julianne Browning is an inspector employed by the Division. Ms. Browning has a bachelor's degree from Florida State University in hotel and restaurant administration. She has been employed by the Department of Business and Professional Regulation since 1990. Prior to that time, she worked for approximately 10 years in the field of public lodging and food service. She also has received training in laws and rules regarding public food service and lodging, as well as fire safety. On October 23, 2002, Ms. Browning conducted an inspection of Respondent's premises. Rita Martin was not on the premises at the time of the October 23, 2002 inspection. Christina Martin, Rita Martin's sister-in-law who also works at Respondent's establishment, signed for the inspection report. Ms. Browning subsequently discussed the investigation findings and report with Rita Martin. During the October 23, 2002 inspection, Ms. Browning observed flies in the kitchen. Having flies in the kitchen is a critical violation because flies carry germs and bacteria, posing a direct threat to the public's health. Ms. Browning also found that there was no proof that employees who had worked at Respondent's establishment for 60 days or more had received food training. This is a critical violation because employees need to be trained in the correct way to handle food and the required temperatures for food. Ms. Browning also observed tuna salad in the refrigerator at 45 degrees, which is considered an unsafe temperature. The inspection took place at 2:30 p.m. but Ms. Browning determined that the tuna salad was prepared at 9:00 a.m. Food kept out of temperature for more than four hours are potentially hazardous because the food begins to grow bacteria if left out of refrigeration for too long. Ms. Browning also observed coleslaw, tuna salad, and crab salad that were not date-marked. These types of prepared foods can only be held for seven days or they become potentially hazardous food. These foods need to be date- marked so one knows when they were made to then determine when the foods should be thrown away. Ms. Browning observed that the hood filters had a severe grease buildup. A severe grease buildup in the hood filter is an indication that the flue has a grease buildup, which is a fire hazard. Ms. Browning observed a black substance on the interior of the ice machine. She was uncertain as to what the black substance was but believed it to be mildew. Mildew is hazardous near food because it has spores which could fall into the ice. Ms. Browning observed recyclables not stored in a waste handling unit that is inaccessible to insects or rodents. She observed boxes kept either on the ground or in an open trailer. This is a hazard because all garbage, whether recyclables or other garbage, has to be in a container that protects against the entrance of rodents or flies, which could potentially come into the restaurant. Ms. Browning observed a light shield missing from the light in the dry storage area. This is potentially hazardous because if the light bulb broke, the glass could shatter with the potential of getting onto the food in the storage area. Ms. Browning observed that the fire suppression report for the hood over the cooking equipment was not available for review. Such reports are made when the fire extinguishing company comes to service the fire suppression system. The report is the only way a Division inspector can tell if there are any deficiencies that need to be corrected with the fire suppression system. Ms. Browning observed bulk rice with a handle-free bowl for dispensing. This is hazardous because it allows for bare hand contact with the food. Rita Martin offered mitigating circumstances regarding some of the deficiencies noted by Ms. Browning. Regarding the allegation of flies in the kitchen, the Martins built a screened-in porch to keep flies from coming into the restaurant. Further, they put fly machines at the front and back doors and a blower at the back door. According to Ms. Martin, it is rare for flies to get into the restaurant. When flies get into the restaurant, "we get rid of them" and that she "cannot remember the last time I saw a live fly in my restaurant, period." Regarding the allegation of lack of proof of employee training, only one employee had worked there more than 60 days at the time of the inspection. Ms. Martin did not post that employee's card because the employee did not want her social security number posted. Eventually, Ms. Martin "whitened out" the social security number to post it. In any event, the employee's card was not available at the time of the inspection as required. Regarding the allegation that prepared foods were out of temperature and not properly date-marked, she responded: We try to put our salads or whatever we're making in large containers so that they will cool quickly. The foods that were made that day were made--one of the foods were made at 9:00 a.m., which was the coleslaw and crab. The tuna was made at 2:00. That was one of the ones that was--I think it was the tuna that was out of temperature. It had not been made--think it was less than an hour old. Her assertion in this regard is accepted as credible. Regarding the allegation that the hood filters had a grease buildup, Ms. Martin acknowledged that the hoods needed cleaning and were cleaned approximately one month after the inspection. Ms. Martin denied the existence of any black buildup on he interior of the ice machine. She looked in the ice machine shortly after the inspection and did not see any black buildup. According to Ms. Martin, there is a lime build-up because of lime in their water, and it is brownish in color. Her assertion in this regard is accepted as credible. Regarding the allegation of recyclables not stored in a closed unit that is inaccessible to rodents or insects, Ms. Martin explained that only clean boxes are put in a trailer, garbage is put elsewhere. Ms. Martin denied the allegation that a light shield was missing from the light in the dry storage area. The light shield had just been replaced prior to the inspection and is transparent and difficult to see. The storage area is narrow and it is difficult to see in there. Her assertions in this regard are accepted as credible. Regarding the allegation that there was no fire suppression report, Ms. Martin asserted that Ms. Browning had not made it clear in the past as to what was required to be posted and available. Whether Ms. Browning verbally reminded Ms. Martin about this requirement or not, the report was not available as required. Regarding the allegation that a bowl was used to dispense bulk rice, Ms. Martin explained that the rice was in dry, not ready-to-eat, form and that everyone knows to use a scoop. However, she acknowledged that she was not there for the inspection and could not say for certain that there was not a bowl in the rice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order which confirms the violations found, dismisses the violations not found, imposes an administrative penalty in the amount of $1,000, and requires Respondent to attend a Hospitality Education Program. DONE AND ENTERED this 27th day of June, 2003, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 27th day of June, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Rita S. Martin Post Office Box 145 Bell, Florida 32619 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
