The Issue The issue is whether Respondent is guilty of various violations of Florida statutes and rules in the operation of his restaurant and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds license control number 46-04280R, which is in effect from December 1, 1999, through December 1, 2000. The license authorizes Respondent to operate a restaurant known as Speedy Two Shop at 2957 Martin L. King Boulevard in Fort Myers. Petitioner has previously disciplined Respondent. By Stipulation and Consent Order filed May 22, 1997, the parties agreed that Respondent would pay an administrative fine of $1100 and correct all violations by April 30, 1997. The Stipulation and Consent Order incorporates the findings of inspections on February 25 and March 7, 1997. These inspections uncovered seven violations, including missing hood filters over the cooking surface, heavy grease accumulations on the inside and outside of the hood, a fire extinguisher bearing an expired tag (May 1995), and operation without a license. In Petitioner's District 7, which includes Fort Myers, the licensing year for restaurants runs from December 1 to December 1. Respondent's relevant licensing history includes annual licenses for the periods ending December 1, 1997; December 1, 1998; and December 1, 1999. However, Respondent has operated his restaurant for substantial periods without a license. Respondent renewed his license ending in 1997 after four months of operating without a license, his license ending in 1998 after 17 months of operating without a license, his license ending in 1999 after six and one- half months of operating without a license, and his license ending in 2000 after one and one-half months of operating without a license. For each of these late renewals, Respondent paid a $100 delinquent fee. Petitioner conducts periodic inspections of restaurants. These inspections cover a broad range of health and safety conditions. Certain violations, as marked on the inspection forms, "are of critical concern and must be corrected immediately." This recommended order refers to such violations as "Critical Violations." On January 22, 1998, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered seven Critical Violations. Two Critical Violations involved Respondent's compliance with licensing and training requirements. Respondent was operating the restaurant without a license, and no employee had a food manager's card, which evidences the successful completion of coursework and a test in managing a restaurant. The report warns that if Respondent did not renew his license before February 1, 1998, Petitioner would impose a fine and possibly revoke his license. The report requires Respondent to ensure that an employee obtains a food manager's card by March 3, 1998. Two Critical Violations involved Respondent's noncompliance with fire safety requirements. The fire extinguisher and built-in fire suppression system both bore outdated tags. The former tag expired in April 1997, and the latter tag expired in May 1997. The remaining three Critical Violations were that the restaurant lacked a filter in his hood over the stove, ceramic tiles over the three-compartment sink, and sanitizing solution in the bucket that was supposed to contain sanitizing solution. Respondent's employee explained that the hood filters were being cleaned, but apparently offered no explanation for the other two Critical Violations. Despite the specific warnings concerning the licensing and training violations, the January 1998 inspection report requires only that Respondent correct the violations by the next routine inspection. On March 26, 1998, Petitioner's inspector conducted an reinspection of Respondent's restaurant. The inspection uncovered the same Critical Violations, except for the sanitizing solution. The report states that Respondent must come to Petitioner's office in the next seven days to renew his license. On April 2, 1998, Petitioner served upon Respondent an Administrative Complaint alleging that, on January 1, 1998, Respondent was operating without a license. Neither this nor any subsequent charging document cites any of the other six Critical Violations found in the January 22, 1998, inspection as bases for discipline, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On June 30, 2000--over two years after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to the Division of Administrative Hearings (DOAH) for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2694. On April 29, 1998, Petitioner's inspector conducted another reinspection. Upon identifying himself to Respondent's employee, the employee denied the inspector access to the premises and told him to return at 2:00 PM. The inspector replied that the reinspection would take only five minutes and that he could not return at 2:00 PM, but the employee continued to deny the inspector entry. On May 12, 1998, Petitioner's inspector conducted another reinspection and found the same seven Critical Violations present during the January 1998 inspection. New Critical Violations were the presence of one "small mouse and roaches" under the three-compartment sink and the presence of cooked sausage patties and links with an internal temperature too low to prevent the proliferation of bacteria. As for the food manager's card, Respondent told the inspector that he had left it at home. The report warns that Respondent must correct the violations by May 18, 2000, 8:00 AM. On September 29, 1998, Petitioner served upon Respondent a Notice to Show Cause alleging the violations found during the inspections of March 26, April 29, and May 12, 1998. On June 30, 2000--one year and nine months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2697. On July 31, 1998, Petitioner's inspector conducted another reinspection and found five of the same Critical Violations: operating without a license, no employee with a food manager's card, fire suppression system bearing an outdated tag, ceramic tile missing over the three-compartment sink, and heavy grease accumulation on the hood filters, which had been reinstalled. Petitioner never cited these five Critical Violations in any charging document, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On October 2, 1998, Petitioner's inspector conducted an inspection and found four of the original Critical Violations: no license, no employee with a food manager's card, no current tag on the fire suppression system, and no ceramic tile over the sink. Although the fire extinguisher was presumably current, it was improperly placed on the floor. Other Critical Violations included the storage of sausage at the improperly warm temperature of 51 degrees, the absence of a thermometer in the home-style refrigerator, the presence of rodent feces on the floor, the absence of working emergency lights, the absence of a catch pan in the hood system, a broken self-closer on the side door, a clogged hand sink, an extension cord serving a toaster, and the evident expansion of the restaurant without an approved plan. The report gives Respondent until October 9, 1998, at 11:00 AM to correct the violations. On October 12, 1998, Petitioner's inspector conducted a reinspection and found all of the Critical Violations cited in the preceding paragraph still uncorrected. On October 20, 1998, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of October 2 and 12, 1998. On June 30, 2000--one year and eight months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2695. For some reason, Petitioner neither prosecuted the pending charges nor conducted repeated inspections for several months after October 1998 inspections and Administrative Complaint. The next inspection of Respondent's restaurant took place on April 30, 1999. Despite the six and one-half months that Petitioner effectively gave Respondent to correct the numerous Critical Violations cited in the October 12, 1998, inspection, Respondent continued to violate many of the same provisions for which he had been cited throughout nearly all of 1998. The inspection report discloses that, again, Respondent was operating without a license. The report notes that he lacked a license for the licensing years ending in 1998 and 1999. One of Petitioner's inspectors testified that Respondent had been making progress on the licensing issue. However, the implication that Respondent was unable to pay the $190 licensing fee (usually accompanied by a $100 delinquent fee) is quietly rebutted by the notation, also in the April 30, 1999, report, that Respondent had completed the expansion project--still, without the required plan review. Again, no employee at the restaurant had a food manager's card. Again, the fire suppression system was in violation--this time because the indicator revealed that it needed to be recharged. Again, the hood filters were missing above the cooking surface. Again, the hand sink was inoperative- -this time, it was not only clogged, but it also lacked hot water. Again, emergency lighting was inoperative. Again, the ceramic tile was missing over the three-compartment sink. Again, food was maintained too warm in the refrigerator--this time, chicken was at 69 degrees. A new Critical Violation was the exposure of live electrical lines and insulation. The April 1999 inspection report gives Respondent until May 14, 1999, at 11:00 AM to correct the violations. On May 14, 1999, Petitioner's inspector conducted a reinspection and found that Respondent still had not obtained a license for the licensing year ending in 1999, still lacked an employee with a food manager's card, still had not obtained approval of its expansion plan, still lacked ceramic tile over the three-compartment sink, still had a clogged hand sink without hot water, still lacked working emergency lights, still tolerated exposed electrical line and insulation, and still lacked hood filters above the cooking surface. On June 2, 1999, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of April 20 and May 14, 1999. On June 30, 2000--one year and one month after issuing the Administrative Complaint-- Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2696. Over a period of 16 months, Petitioner conducted eight inspections of Respondent's restaurant. On what would have been a ninth inspection, one of Respondent's employees denied access to the inspector. On each of these eight inspections, Respondent was operating without a license, lacked an employee with a food manager's card, and lacked ceramic tile over the three- compartment sink. On seven of these eight inspections, the fire suppression system was expired or discharged, and the hood filter was missing or excessive grease had accumulated on the filter or the liner. On three of these eight inspections, the fire extinguisher was outdated, and, on a fourth inspection, it was improperly stored on the floor. On three of these eight inspections, sausage or chicken was at improper temperatures--the 86 degrees at which sausage was served on one occasion was only 17 degrees warmer than the 69 degrees at which chicken was stored on another occasion. On three of these eight inspections, the hand sink was unusable because it was clogged or lacked hot water, the emergency lights did not work, and restaurant expansion was taking place or had taken place without review or approval of the plans. On two of these eight inspections, the inspector saw signs of rodents in the kitchen--one time actually seeing a small mouse. On two of these eight inspections, exposed electrical lines and insulation were present in the kitchen. Petitioner has proved by clear and convincing evidence that Respondent committed all of the cited violations. Uncorrected violations over 16 months amount to more than a failure to take advantage of the numerous opportunities that Petitioner gave Respondent to bring his restaurant into compliance. These uncorrected violations constitute a refusal to comply with the basic requirements ensuring the health and safety of the public. The penalty must weigh, among other things, Respondent's blatant disregard of fundamental requirements in licensing, training, and fire and food safety; Petitioner's demonstrated lack of diligence in enforcing Respondent's compliance with these requirements; and the peril posed by these failures upon the public health and safety.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order revoking Respondent's license. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2000. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurant Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gail Hoge, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angelo E. Ruth 2774 Blake Street Fort Myers, Florida 33916
The Issue Whether Chef Creole Seafood, Inc., d/b/a Chef Creole (Respondent), committed the offenses alleged in the Administrative Complaint dated August 5, 2014, and if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Chef Creole Seafood, Inc., d/b/a Chef Creole (Respondent), was a restaurant subject to the regulation of the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner). Respondent’s license number is 2330245. Respondent is required to comply with all relevant provisions set forth in chapter 509, Florida Statutes; Florida Administrative Code Chapter 61C; and the Food Code. Respondent has multiple locations. Respondent’s address at issue in this proceeding is 200 Northwest 54th Street, Miami, Florida 33127 (the subject premises). At all times relevant to this proceeding, Wilkinson Sejour was Respondent’s owner and president. Sharon Bures is employed by Petitioner as a sanitation and safety specialist. Ms. Bures is properly trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. Ms. Bures performed approximately 720 inspections during the fiscal year that preceded the formal hearing. On April 21, 2014, beginning at 3:57 p.m., Ms. Bures performed a routine inspection of the subject premises. As part of the inspection, Ms. Bures prepared a Food Service Inspection Report (Petitioner’s Exhibit 2) setting forth her findings. Ms. Bures prepared this report utilizing an electronic device while at the subject premises. Ms. Bures reviewed her findings with Mr. Sejour, the person in charge of the subject premises, and discussed with Mr. Sejour the deficiencies identified on Petitioner’s Exhibit 2. Mr. Sejour signed Petitioner’s Exhibit 2. Petitioner’s Exhibit 2 reflects that the subject premises was required to correct the noted deficiencies, and advised that a callback inspection would be conducted on or after June 21, 2014. Petitioner’s Exhibit 2 identified each of the alleged violations at issue in this proceeding. Ms. Bures performed the callback inspection of the subject premises on June 23, 2014, beginning at approximately 2:55 p.m. Ms. Bures prepared a callback Report (Petitioner’s Exhibit 3) setting forth her findings. Ms. Bures reviewed her findings with Mr. Sejour and explained to him the reasons for the deficiencies identified by Petitioner’s Exhibit 3. Ms. Bures’ findings included deficiencies that had been noted in the inspection on April 21, 2014, but had not been corrected. The uncorrected deficiencies found during the callback inspection include the five alleged violations at issue in this proceeding. Petitioner has classified two of the alleged violations as “basic,” two as “intermediate,” and one as “high priority.” A “basic item” is, pursuant to rule 61C-1.001(5), an item defined in the Food Code as a “Core Item.” Rule 61C- 1.005(5)(c) defines a basic violation as follows: (c) “Basic violation” means a violation of a basic item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to general sanitation, operational controls, standard operating procedures, facilities or structures, equipment design, or general maintenance and not meeting the definition of high priority violation or intermediate violation and is not otherwise identified in subsection (6) of this rule. An “intermediate item” is, pursuant to rule 61C- 1.001(19), an item defined in the Food Code as a “Priority Foundation Item.” Rule 61C-1.005(5)(b) defines an intermediate violation as follows: (b) “Intermediate violation” means a violation of an intermediate item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to specific actions, equipment or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of this rule. A “high priority item” is, pursuant to rule 61C- 1.001(17), an item defined in the Food Code as a “Priority Item.” Rule 61C-1.005(5)(a) defines a high priority violation as follows: (a) “High priority violation” means a violation of a high priority item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., determined by the division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of this rule. On both inspection dates, Ms. Bures observed a large tub of seasoning, peppers and hot peppers stored on the kitchen floor. Except for circumstances not applicable to this proceeding, Food Code rule 3-305.11(A)(3) requires that food shall be protected from contamination by storing the food at least 15 cm (6 inches) above the floor. Petitioner proved by the requisite evidentiary standard that Respondent violated the cited rule.2/ The testimony of Ms. Bures established that this violation is properly classified as a basic violation. On both inspection dates, Ms. Bures observed water dripping onto buckets containing raw poultry in a walk-in cooler. Sheets of plastic were used as lids to cover the buckets. On both inspection dates, water was dripping on the plastic “lids.” Food Code rule 3-305.12(G) prohibits the storage of food under a leaking water line. Petitioner proved by the requisite evidentiary standard that Respondent violated the cited rule.3/ The testimony of Ms. Bures established that this violation is properly classified as a basic violation. On both inspection dates, Ms. Bures observed an employee handle peppers and onions after having handled raw poultry without changing gloves. Food Code rule 1-201.10 defines ready-to-eat food as food that is edible without additional preparation to achieve food safety. Peppers and onions are ready-to-eat food. Raw poultry is not ready-to-eat food. Food Code rule 3-304.15 prohibits the use of single-use gloves for the working with ready-to-eat food after having worked with raw poultry. Petitioner proved by the requisite evidentiary standard that Respondent violated Food Code rule 3-304.15. The testimony of Ms. Bures established that this violation is properly classified as a high priority violation due to the danger of contaminating ready-to-eat food.4/ On both inspection dates, Ms. Bures observed that Mr. Sejour’s food protection manager’s certificate had expired. Mr. Sejour’s certificate had been issued March 10, 2009, and was valid through March 10, 2014. On both inspection dates, there were six or more employees working at the subject premises. Petitioner proved that on both inspection dates, Respondent violated rule 61C- 4.023(1) by failing to have a duly-licensed food protection manager on duty while six or more employees were working. The testimony of Ms. Bures established that this violation is properly classified as an intermediate violation because of the need for a certified food protection manager with up-to-date knowledge of the rules and regulations dealing with food-borne illnesses and other risk factors to be present to prevent mistakes and to instruct employees as to proper food temperatures, proper hygiene, and methods of prevention of food- borne illnesses. By “Final Order on Waiver” entered by Petitioner on May 7, 2013, Petitioner disciplined Respondent for certain violations in an unrelated proceeding for having violated rule 61C-4.023(1) by failing to have a duly-certified food protection manager on duty while six or more employees were working. By “Final Order on Waiver” entered by Petitioner on April 30, 2014, Petitioner disciplined Respondent for certain violations in another unrelated proceeding for having violated rule 61C-4.023(1) by failing to have a duly-certified food protection manager on duty while six or more employees were working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is FURTHER RECOMMENDED that the final order find Chef Creole Seafood, Inc., d/b/a Chef Creole guilty of violating Food Code rule 3-305.11(A)(3) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $400.00 for that basic violation. It is FURTHER RECOMMENDED that the final order find Respondent guilty of violating Food Code rule 3-305.12(G) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $400.00 for that basic violation. It is FURTHER RECOMMENDED that the final order find Respondent guilty of violating Food Code rule 3-304.15(A) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $800.00 for that high priority violation. It is FURTHER RECOMMENDED that the final order find Respondent guilty of violating Florida Administrative Code Rule 61C-4.023(1) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $1,000.00 for that intermediate violation. The total of the recommended fines is $2,600.00. DONE AND ENTERED this 2nd day of February, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2015.
The Issue This issues in this proceeding are whether Respondent, in violation of Chapter 509, Florida Statutes (2004), committed acts alleged in the Administrative Complaint dated April 16, 2004, and, if so, what disciplinary action should be taken against the license held by Respondent.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made during the final hearing, and the entire record compiled herein, the following relevant and material facts are found: At all times material hereto, Respondent, Bacco's Restorante Italliano, a food service and eating establishment, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 6804773-R, type 2010, a Permanent Food Service license. Respondent's facility is located at 23 North Lemon Avenue, Sarasota, Florida. Andrea Posani testified that he was a "party of interest" in the proceeding because he had a financial interest in Bacco's Restorante Italliano, a food service and eating establishment, and he possessed authority to speak on behalf of (and represent) Respondent, Bacco's Restorante Italliano, licensee. Petitioner's witness, Daniel Erdman, deputy district manager (for three months) and senior sanitation safety specialist for the preceding five years (1999 through 2004) in Manatee and Sarasota counties, earned his Bachelor of Science degree from Florida State University with a major in hospitality administration. Mr. Erdman conducts more than 1,500 inspections annually. Mr. Erdman described a "critical violation" in the food business as violation of any of the Florida Statutes, the Florida Administrative Code rules, and the Food Code, that "has more of a potential for food borne ailments." Mr. Erdman has been Petitioner's inspector of Respondent's business for more than four years in both locations, first, on Main Street and, now, on Lemon Street, in Sarasota, Florida. Mr. Erdman, on March 1, 2004, inspected Respondent's business, noted violations on DBPR Form HR 5022-014 that was signed by Mr. Erdman and Claudia Zecchin-Moschini (Claudia Zecchin at the time of signing), and a copy was given to Ms. Zecchin-Moschini. Thereon was the "callback date/time that informs Respondent of both the time to correct noted violation(s) and the inspection return date. The Administrative Compliant alleged the following critical violations of Chapter 509, Florida Statutes (2003), Florida Administrative Code, and/or rules of the Division of Hotels and Restaurants noted during the March 1, 2004, inspection: 27-22 5-202.12 FC Handwashing Facility, Installation. (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least . . . (110 degrees Fahrenheit) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory. (C) A self-closing, slow-closing, or metering faucet shall provide a flow of water for at lease 15 seconds without the need to reactivate the faucet. (D) An automatic handwashing facility shall be installed in accordance with manufacturer's instructions. Observed no cold water provided at handsink (Bar) 2. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A handwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (B) in, or immediately adjacent to, toilet rooms. Observed missing handsink at dishwashing machine/cold prep area (removed) 3. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A hadwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (b) in, or immediately adjacent to, toilet rooms. Observed no handsink provided in prep area, bread station service area in dining room without a handwashing sink. Bread station was removed from dining room on 3.15.2004 on reinspection evidence of bread station observed on 4.02.04 4. 53B-01 509.049 FS Food Service Employee Training. The Division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishment regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the Division. Any food safety training program established and administered to food handler employees prior to the effective date of this act shall be submitted by the operator to the Division for its review and approval. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification pursuant to this section by January 1, 2001. Food service employees hired after November 1, 2000, must received certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years. Observed no proof or required employee training 11 employees over 60 days employed (Reihou, Terrence, Paolo) [Emphasis added] Mr. Erdman, on March 15, 2004, returned and inspected the facility, finding violations 27-22, 31-10, and 45-14. These violations were granted time extension for correction to April 2, 2004. Mr. Erdman returned on April 2, 2004, and inspected the facility, identifying seven violations (two 27-22s, three 31- 10s, and two 53B-01s). During this reinspection, Mr. Erdman entered, in the comment section of his inspection report "note plumber scheduled for sink installation, water to bar tomorrow. Employee food safety training booklets ordered [training not completed]. Bread baskets, plated [sic], bread warmer, crumbs etc. observed in dining area/no hand sink provided." This report was not a warning as were the prior inspection reports; this report recommended filing of an administrative complaint. Respondent's witness, Ms. Zecchin-Moschini, when asked by Respondent, could not recall circumstances pertaining to each alleged violation. Her answers, on both direct and cross examinations, consisted primarily of "I don't remember," on four separate occasions. "I don't remember" is the answer given when Ms. Zecchin-Moschini was asked about the location of the sink and the present location of the beer cooler. This witness acknowledged that she did not have food management training: Yes, I don't have the training for these people. They were being coming from another restaurant, working there for a couple years, and I didn't ask them if they have any. I never got it. The only one that was there was Paolo that he didn't have. Mr. Posani admitted having no personal knowledge of the sink location violation and having no personal knowledge regarding the food management training violations for three of his employees. The record was left open for ten days for post- hearing submission of documentation of training, and none was submitted at the entry of this Recommended Order. Mr. Posani offered no credible and material evidence that could be considered a legal challenge to violations itemized in the Administrative Complaint and established by Respondent's witness' unrefuted testimony and exhibits in evidence. Petitioner proved, by clear and convincing evidence, each specific allegation against Respondent contained in the Administrative Complaint filed in this cause. Petitioner's compliance with cited Florida Statutes and cited rules of the Florida Administrative Code permits the imposition of penalty against Respondent for violations hereinabove found.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Finding Respondent guilty of violating Subsection 509.049(5), Florida Statutes (2004), and Sections 5-202.12, 5-204.11, and 6-401.10 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3, and 61C-4; and Imposing an administrative penalty in the amount of $250.00 per violation for a total penalty amount of $1,000.00, due and payable to: 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 5th day of July, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Andrea Posani 23 North Lemon Avenue Sarasota, Florida 34236 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether the Respondent, Michelle's Café, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating public food service establishments operating within the State of Florida. See §§ 509.032 and 509.261, Florida Statutes (2007). At all times material to the allegations of this case the Respondent, Michele’s Café, was a licensed public food establishment governed by the provisions of Chapter 509, Florida Statutes (2006). The Respondent’s address of record is 299 East Broward Boulevard, Fort Lauderdale, Florida. On July 31, 2006, in his capacity as a trained inspector for the Petitioner, Mr. Torres visited the Respondent’s place of business in order to conduct an inspection. Mr. Torres performs between 800 to 1000 inspections per year of licensed food establishments to assure that such businesses are in compliance with all food service rules and regulations. At the time of the inspection, Jessica Sanchez, the manager on duty, represented the Respondent. The inspection report for July 31, 2006, identified several critical violations that needed to be corrected. Mr. Torres notified Mr. Villeda, as the owner and/or operator of the licensed entity, of the inspection results. Mr. Villeda later identified himself as the manager of the café. Critical violations are items that must be corrected because, if not corrected, they pose a threat for imminent food- borne illness, contamination, or environmental hazard. Non- critical violations are less serious but can also lead to a potential health hazard. As to each type of violation, the Petitioner expects the licensee to take appropriate action to correct the cited deficiency. Mr. Torres notified Mr. Villeda of the findings of his inspection of July 31, 2006, because he anticipated that the violations would be corrected in advance of a “call back” inspection. The “call back” inspection was performed on September 18, 2006. This inspection was also performed by Mr. Torres and disclosed the following uncorrected deficiencies (these had been identified to the Respondent in the July 31, 2006 inspection report): There was no thermometer to measure the temperature of food products. This is a critical violation. Food products must be stored and maintained at an acceptable temperature to prevent bacteria from growing. Without a thermometer there is no verifiable system to confirm that acceptable temperatures are being maintained. Additionally, to retain prepared food on-site for sale or use, the prepared food item must be labeled to detail the date of its initial preparation. Ready to eat food can be retained for a maximum of seven days. After that period, there is a presumption that the item may not be safely consumed. Consequently, all prepared food must be clearly labeled to assure it is disposed of at the appropriate time. Because the sale of out-of-date food presents a health hazard, the labeling requirement is considered critical. The failure to follow the guideline is, therefore, considered a critical violation. Sanitizing chemicals used in the cleansing of dishes or food service preparation equipment must be tested to assure a proper level is utilized. The sanitizing chemicals may be toxic, therefore too much can lead to the contamination of the food service item and too little may fail to sanitize and kill bacteria. Accordingly, when used in conjunction with a three-compartment sink or dish machine, a chemical testing kit allows the user to easily verify that the amount of sanitizing chemical is correct. The failure to have and use a test kit is considered a critical violation as the improper use of chemicals may pose a public health hazard. The Respondent did not have the chemical kit to measure the product being used at its location. Food dispensing equipment, such as soda machines, must be kept clean. A build-up of slime on the soda dispenser nozzle poses a threat as mold can form and be dispensed with the soda to the user’s beverage. As illness can result, this deficiency is also considered a critical violation. In this regard the Respondent's soda machine had a build-up of slime on its dispensing nozzle. Food containers must also be kept clean. The interior of Respondent’s reach-in cooler had accumulated a residue of food or soil. As this could contaminate food placed in the cooler, this deficiency is also considered critical. Similarly, food contact surfaces must also be kept smooth and easily cleanable. In this regard, the Respondent’s use of ripped or worn tin foil to cover a shelf was not appropriate. As to each of the deficiencies noted above, the Respondent failed or otherwise refused to timely correct the item. Mr. Villeda represented that the violations were corrected by the last week of September 2006. Implicit in that representation is the admission that such violations were not corrected by September 18, 2006, the date of the “call back” inspection. The Respondent does not have a mop sink. The Respondent’s representation that the owners of the building have a mop sink elsewhere (that is used for the licensed area) has been deemed plausible. If a building janitor uses a mop sink located elsewhere to clean up spills (as was represented), the absence of a mop sink within the licensed area does not demonstrate that no mop sink existed. In this regard the Respondent has been given the benefit of the doubt. The Respondent did not explain why the deficiencies were not corrected before the “call back” inspection. It is accepted that the corrections were later made and the Respondent has been given consideration of this effort in the penalty recommended in this case.
Recommendation Based upon 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, impose an administrative fine in the amount of $1000.00 against the Respondent, Michelle’s Café. S DONE AND ENTERED this 21st day of November, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 21st day of November, 2007. COPIES FURNISHED: Jesus Villeda Michelle's Cafe 13161 Northwest 11th Court Sunrise, Florida 33323 Joshua B. Moye, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether on January 26, August 27, and August 28, 2012, Respondent was in compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, and if not, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. St. Johns Seafood and Oyster Bar, Inc., (St. Johns) is a licensed permanent public food service establishment operating at 7546 Beach Boulevard in Jacksonville, Florida. Its license must be renewed annually. Ms. Iliana Espinosa-Beckert has been employed by the Division for about five and a half years. She is a sanitation and safety specialist with the Division. She has had training, including formal initial training, on-the-job training, and monthly in-house training, in sanitation and inspection. She is a certified food manager. On January 26, 2012, Inspector Espinosa-Beckert conducted a food service inspection of St. Johns. Inspector Espinosa-Beckert prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using her personal data assistant (PDA) to record the violations that she observed during the inspection. The manager of the restaurant, Mr. Robert Rukab, acknowledged receipt of the report on behalf of St. Johns. During the January inspection, Ms. Espinosa-Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that shrimp, fish, scallops, oysters, and clams had a temperature of 60 degrees Fahrenheit at the seafood reach-in cooler (seafood cooler), and recorded this on her report. The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015. Ms. Espinosa-Beckert also observed during the January inspection that the seafood cooler was incapable of maintaining potentially hazardous food at proper temperatures. She noted on her report that there was no thermometer installed inside the seafood cooler, but that her measurements indicated that all of the seafood was at a temperature of 60 degrees Fahrenheit. On August 27, 2012, Ms. Espinosa-Beckert conducted another inspection of St. Johns. She again prepared an inspection report on DBPR Form HR 5022-015 using her PDA to record the violations that she observed. Ms. Espinosa-Beckert made Mr. Rukab aware of the violations she found, but Mr. Rukab was upset and refused to acknowledge receipt of the report on behalf of St. Johns. During the August 27, 2012, inspection, Ms. Espinosa- Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that cheese, chicken, and pasta were at 49 degrees Fahrenheit in a reach-in cooler in a food preparation area near the cook line (prep-line cooler), and recorded this on her report, along with a notation that it was a repeat violation. Inspector Espinosa-Beckert testified that this was a true “cold-holding” violation. She stated that her measurements of the temperature of the food were taken after the food had gone through the cooling period that is allowed for food to reach the proper temperature. Ms. Espinosa-Beckert noted in her report that the prep-line cooler was incapable of maintaining potentially hazardous food at proper temperatures. She recorded that the ambient temperature in the prep-line cooler was 46 degrees Fahrenheit and that foods were at a temperature of 49 degrees Fahrenheit, noting that this was a repeat violation. During the August 27, 2012, inspection, Ms. Espinosa- Beckert also observed that St. Johns was operating without a current license, because its license had expired on June 1, 2012. She noted this in her report. Ms. Espinosa-Beckert also observed both live and dead roaches on the premises.1/ She scheduled a call-back inspection for the following day, August 28, 2012. Inspector Espinosa-Beckert prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on August 28, 2012, using her PDA to record the violations that she observed. Mr. Rukab apologized for his refusal to sign the previous day, and acknowledged receipt of the report on behalf of St. Johns. On August 28, 2012, Ms. Espinosa-Beckert observed that the prep-line cooler thermometer now read 35 degrees and that cheese was 39 degrees Fahrenheit and pasta was at 40 degrees, within approved temperature limits. She noted this on the first page of her report. The license had not been renewed since the previous day. The Division served an Administrative Complaint against St. Johns for the above violations on or about September 6, 2012. On both January 26 and August 27, 2012, St. Johns had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit. While evidence was presented that on different dates two individual coolers were incapable of maintaining potentially hazardous food at proper temperatures, there was also evidence that on these occasions there was additional adequately cooled space available which could have been utilized to meet the demands of St. Johns’ operations. At hearing, Ms. Espinosa- Beckert testified as follows: Q: Did he have any other cooler available where he could have moved the food? A: He had the –- yes, he did. He has the other, which is the seafood cooler, which I don’t think they put anything ready- to-eat in that one. But he has a two-door upright cooler also on the opposite side of this one I made a violation, and that was OK also. So he could have moved the food. The evidence did not show that on either January 26, 2012, or August 27, 2012, the cooling equipment available at St. Johns was insufficient in number or capacity to maintain all food at required temperatures. On August 27 and 28, 2012, St. Johns was operating without a license, as its old license had been expired for more than 60 days. Additional evidence introduced at hearing and considered solely for purposes of penalty calculation showed that St. Johns had two previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. The first of these was a Stipulation and Consent Order signed by Mr. Rukab on behalf of St. Johns on March 9, 2011, and filed on March 24, 2011, in Case No. 2011-02147. The Order was in settlement of an Administrative Complaint issued on February 23, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 27, 2010, November 23, 2010, November 24, 2010, and February 8, 2011. Some of the allegations would have constituted critical violations. The second of the previous disciplinary orders was a Final Order on Waiver filed on August 10, 2011. Respondent had been served an Administrative Complaint and Election of Rights on June 1, 2011, but had failed to respond by June 22, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 26, 2011, and May 3, 2011. The Final Order on Waiver imposed a fine of $4,400 for several violations, some of which were critical violations.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding St. Johns Seafood and Oyster Bar, Inc., has committed a critical violation and was operating with a license expired for more than 60 days, and imposing a fine of $1,500, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2013.
