The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact Petitioner is the State agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 16850 Collins Avenue, Golden Beach, Florida, and holding food service license number 2326334. On February 26, 2008, and April 29, 2008, Respondent was inspected by Ricardo Unold, a Senior Sanitation and Safety Specialist with the Division. During both visits, Mr. Unold noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Unold and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that as of April 29, 2008, the following deficiencies subsisted at Respondent New San Telmo: (1) In-use utensils stored in standing water less than 135 degrees Fahrenheit, in violation of Food Code2 Rule 3- 304.12(F); (2) The public bathroom was not equipped with a tight-fitting, self-closing door, in violation of Food Code Rule 6-202.14 and Florida Administrative Code Rule 61C-1.004(2)(b); (3) An unlabeled spray bottle, in violation of Food Code Rule 7- 102.11; and (4) No proof of required employee training, in violation of Section 509.049, Florida Statutes. The deficiencies relating to the lack of proof of employee training, the unlabeled spray bottle, and the bathroom door are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The final deficiency (storing in-use utensils in water less than 135 degrees Fahrenheit), while not categorized as a critical violation, is serious nonetheless because it directly relates to food preparation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1400, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 30th day of August, 2010, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2010.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated June 27, 2011, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 1620035. At all times material hereto, the Restaurant was located at 1145 South Federal Highway, Fort Lauderdale, Florida 33316. A critical violation in food service is considered to be a violation of the Food Code that, if not corrected, will most likely cause and is directly related to food-borne illness, food contamination, or environmental hazards. A non-critical violation in food service is considered to be a violation that is less likely to cause and will not directly contribute to food-borne illness or food contamination. On October 27, 2010, Lynden Lewis, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Lewis found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Lewis prepared a food inspection report, setting forth the alleged violations and that the violations were required to be corrected by the next unannounced inspection. The inspection report was signed by Inspector Lewis and a representative of the Restaurant. Inspector Lewis made the representative aware of the alleged violations and that the violations were required to be corrected by the next unannounced inspection, and he provided the representative with a copy of the inspection report. On June 16, 2011, Inspector Lewis and Begum Khatoon, an inspector with the Department, conducted an unannounced routine inspection of the Restaurant. Among other things, three critical violations were not corrected from the routine inspection of October 27, 2010. During the unannounced inspection, Inspector Khatoon prepared a food inspection report, setting forth, among other things, the alleged critical violations. The unannounced inspection report was signed by Inspector Khatoon and a representative of the Restaurant, and Inspector Khatoon provided the representative with a copy of the inspection report. Inspector Khatoon made the representative aware of the alleged violations and that an administrative complaint would be recommended. The most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was raw animal food was stored over ready-to-eat food--raw eggs were being stored over yogurt--in the reach-in cooler. This violation is critical because the ready-to-eat food (yogurt) has already been cooked and gone through the process of pathogenic destruction and will not go through that process again; whereas, the raw animal food (eggs) has not been cooked and not gone through the process of pathogenic destruction. Cross-contamination could occur from the raw animal food by dripping onto or touching of the ready-to-eat food, and any pathogens present on the ready-to-eat food, as a result of the cross-contamination, would pass-on to consumers when the ready-to-eat food is served. Mr. Rocchio's testimony that eggs are stored on the bottom of the refrigerator (reach-in cooler) is found to be credible; however, most importantly, the evidence fails to show that, on the day of the inspection, eggs were stored on the bottom of the refrigerator. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was the hand wash sink in the kitchen was not accessible for employee use at all times. A garbage can was placed in front of the hand wash sink in the kitchen, making the sink inaccessible to employees at all times to wash their hands. Even though Mr. Rochhio testified, and his testimony is found to be credible, that the garbage can was "not a large garbage can," the evidence fails to show, most importantly, that the garbage can did not cause the hand wash sink to be inaccessible to the employees at all times. This violation is a critical violation because the hands of employees become contaminated as employees work and, if the handwash sink is not accessible, the employees will be discouraged from washing their hands. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was handwashing cleanser was lacking at the hand washing lavatory in the kitchen. This violation is a critical violation because hands are a vehicle of contamination, and the use of soap by employees, when washing their hands, removes bacteria and viruses that can contaminate the employees' hands.
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 Valentinos Cucina Italiana violated section 509, Florida Statutes, through a violation of Food Code Rules 3-302.11(A)(1), 5-205.11(A), and 6-301.11; and Imposing an administrative fine in the amount of $750.00 against Valentinos Cucina Italiana. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012.
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 The issues are whether Respondent offered for sale adulterated or misbranded food in violation of Subsections 500.04(1) and (2) and 500.10(1)(f), Florida Statutes (2007),1 and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating food establishments in the state. Respondent operates a business that sells mostly pre-packaged food products at retail but also provides ancillary food service. The food service operation is a “deli” that prepares ready-to-eat food products in individual portions for consumption on the premises, including sandwiches, coffee, and ice cream. A sanitation and safety specialist (Specialist) for Petitioner performed a routine inspection of the business on February 28, 2008. Numerous food safety violations existed. Ice held for sale had not been tested for safety. An open mayonnaise container was stored at room temperature. Meat used for the preparation of sandwiches was not documented as to how long it had been open. No test strips were available for the chlorine sanitizer. Ready-to-eat food items in the freezer were not labeled with the preparation date. Fish was not labeled with the product name, ingredients, and distributor. Batteries and soap were stored above food items on retail shelves. The Specialist removed the ice machine until the required test for fecal coliforms was performed; the results of which subsequently proved to be negative. The Specialist required Respondent to label all packaged food items with the product name, ingredients, weight, and distributor. The Specialist informed Respondent that she had assigned a poor rating to the premises and would return for a re-inspection, which the Specialist performed on March 17, 2008. Open meat in the deli area remained unmarked as to how long it had been open. A cooker contained rice at 77 degrees rather than the required 135 degrees. Cooked food items in the refrigerator behind the meat cooler remained undated and unlabeled. Food items in the freezer continued to be unlabeled with the product name, ingredients, weight, and distributor. Eggs, milk, and yogurt were stored in a retail cooler at 50 degrees rather than the required 41 degrees. Insect spray and liquid air fresheners were stored above single service paper towels. The Specialist notified Respondent that she rated the premises as poor and would return for another re-inspection, which the Specialist performed on March 31, 2008. Respondent had corrected the previous violations by March 31, 2008. The Specialist returned on April 1, 2008, with her supervisor. Mustard was stored in the deli at 80 degrees rather than the required 41 degrees. Open foods and meat in the self- service coolers in the deli were not documented as to how long they had been open. Food was being stored in the refrigerator behind the meat cases at 61 degrees rather than the required 41 degrees. Food items stored in the refrigerator in the back of the premises were not documented as to how long they had been open, and meat products stored in the self-service area were not labeled. Frozen food in the top of a refrigerator was thawed. A can of gasoline was stored in the mop sink. Petitioner proposes a fine of $3,100.00. A fine of $3,100.00 is reasonable under the circumstances. Petitioner has not promulgated a rule prescribing aggravating and mitigating circumstances for an administrative fine. However, Petitioner presented relevant expert testimony that was credible and persuasive. Respondent committed numerous and egregious food safety violations. A significant number of the violations were critical violations and presented a significant risk to food safety and public health. Respondent prepared, produced, and packed or held food in a manner that exposed the food to contamination and that presented other unwholesome conditions that are injurious to health. The record includes no evidence of actual harm to the public. Respondent has no prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in the Administrative Complaint and imposing a fine of $3,100.00. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 22nd day of December, 2008.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004). The Respondent is a restaurant located at 1560 North State Road 436, Winter Park, Florida, holding Permanent Food Service license number 5809302. Kaliopi Chrissanthidid owns and operates the restaurant. On September 15, 2004, Jim Thomason, a Senior Sanitation and Safety Specialist representing the Petitioner, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations identified by Mr. Thomason were noted in a written Food Service Inspection Report, a copy of which was provided to the person in charge of the restaurant on the date of the inspection. Mr. Thomason's inspection revealed both critical and non-critical code violations. Critical food safety code violations are those which pose serious public health risk due to potential contamination and subsequent transmission of food- borne illness. Violations that do not pose a serious health risk to the public are identified as non-critical. On September 15, 2004, Mr. Thomason identified several critical violations related to food storage equipment, including a reach-in cooler and a "make line" cooler that were incapable of maintaining proper temperatures. Additionally, Mr. Thomason observed chicken and calimari being improperly thawed in a bucket of water. Mr. Thomason also observed a cook handling ready-to-eat salad materials with his bare hands. Food storage coolers must be capable of maintaining a temperature of 41 degrees or below to prevent contamination. The Respondent's reach-in cooler and make line cooler were incapable of maintaining proper temperatures. Mr. Thomason determined that pre-cooked lamb was being held at 60 degrees, precooked beef was held at 58 degrees, lasagna was held at 58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees. Mr. Thomason estimated that the food items had been maintained at an improper temperature for well in excess of four hours. Improper storage temperatures increase the potential for contamination and transmission of food-borne illness to the public. Due to the issues with the food storage equipment, a Stop Sale Order was issued on September 15, 2004, directing the Respondent to remove the pre-cooked lamb and beef, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration. On September 15, Mr. Thomason identified non-critical violations including: missing hand-washing signs; an open trash receptacle in the women's restroom; a torn screen and missing automatic closing device in a backdoor; the lack of a posted license; the lack of a certified food manager; and the lack of documentation related to employee food safety training. According to the inspection report, a re-inspection was scheduled for September 16, 2004. On September 20, 2004, Mr. Thomason re-inspected the Respondent. Although many of the items cited in the September 15 inspection report had been corrected, the faulty food storage equipment had not been repaired and was still not capable of maintaining proper food storage temperatures. Mr. Thomason determined that pre-cooked lamb was being held at 60 degrees, meat pies were being held at 57 degrees, lasagna was held at 58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees. Mr. Thomason issued another Stop Sale Order, directing that the Respondent remove the precooked lamb, meat pies, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration. Mr. Thomason also referred the critical food storage violations to his supervisors with the recommendation that an Administrative Complaint be filed against the Respondent. On October 18, 2004, Mr. Thomason re-inspected the Respondent at which point, according to the Callback Inspection Report, the food storage and refrigeration violations had been corrected. The only item remaining for repair was the automatic closing device on the backdoor. At the hearing, the Respondent testified that the restaurant had been closed during the month of August, and that no food had been stored during that time. During August 2004, Hurricane Charley came through Central Florida. The Respondent asserted that the restaurant equipment was damaged during the storm, and that the Respondent was unaware of the damage until several weeks after the restaurant reopened. The Respondent testified that repairs to refrigeration equipment were made, but that the coolant was quickly leaking out. Eventually all of the refrigerated food storage equipment was replaced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 against the Respondent, and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Kaliopi Chrissanthidid Greek Flame Taverna 1560 North State Road 436 Winter Park, Florida 32792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 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 Respondent violated food safety standards established by section 509.032, Florida Statutes, and the implementing rules as charged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact Parties At all times material hereto, Richie Cheesesteak was owned and operated by Richard Fascenda, as a licensed permanent public food-service establishment located at 6191 Deltona Boulevard, Spring Hill, Florida. Mr. Fascenda holds License No. 3700896 to operate Richie Cheesesteak.1/ Mr. Fascenda is the owner/operator of Richie Cheesesteak, as well as the only cook. The Division is responsible for monitoring and inspecting licensed food-service establishments to ensure that they comply with the standards set forth in relevant statutes and rules, and the Food Code. Initial Inspection On April 16, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food-service inspection of Richie Cheesesteak. On the date of the inspection, Mr. Roff had been employed by the Division for approximately three months and was still under probation. Mr. Roff had no experience in the food- service industry prior to his employment with the Division. Mr. Roff received training from the Division in the laws relating to food service, and has become certified as a food manager. The Division additionally provides monthly in-house training which Mr. Roff has attended. During his probationary period, Mr. Roff accompanied his senior inspector on food-service establishment inspections, observing how the inspector conducted inspections, identified violations, and provided corrective actions. As part of his training, Mr. Roff was also “shadowed” by his senior inspector as Mr. Roff conducted inspections. On the date of the final hearing, Mr. Roff had conducted approximately 600 restaurant inspections. Cited Violations License and Certification On April 16, 2013, Mr. Roff prepared an Inspection Report noting a total of 13 alleged violations of the standards set forth in applicable statutes, administrative rules, and the Food Code. Respondent was cited for an expired license, a high priority violation which was remedied on-site during the inspection. Among the other violations Mr. Roff noted in his Inspection Report was Respondent?s failure to produce proof of a food manager certificate. Section 509.039 provides for a Food Manager Certification Program to ensure all managers of food-service establishments have a demonstrated knowledge of basic food protection practices. The statute further requires that “[a]ll public food-service establishments must provide the division with proof of food-service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment.” Id. In 2008, Respondent was an assistant manager for Boyz- N-Burgers, operated by McClain Sonic?s, and was certified as a food manager at that time. On the date of inspection, Respondent could not produce a copy of his certificate and explained that the certificate would be on file with his former corporate employer. A food manager certificate expires five years after certification. A violation of section 509.039 is designated by the Division as an intermediate priority violation. Reach-in Cooler Gasket Among the violations Mr. Roff noted was that the gasket on the reach-in cooler was both torn and soiled. Food Code Rule 4-501.11(B) provides, “Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturer?s specifications.” A torn or otherwise damaged cooler gasket can cause cross-contamination of food and prevent the storage of foods at the required temperature. Respondent?s reach-in cooler is at least 30 years old. Respondent did not testify that the gasket had ever been replaced, although he did state that it has been “siliconed over” on several occasions. Respondent admitted at final hearing that the reach-in cooler gasket was torn in one place. Respondent denied that the gasket was soiled, explaining that there might have been some food spilled on it during lunch and the inspection was conducted right after lunch. Respondent insisted that he wipes down the gasket every day. Violation of rule 4-501.11(B) is designated by the Division as a basic violation. Storage of Utensils Among the other violations observed by Mr. Roff was a knife stored between two pieces of kitchen equipment. Food Code Rule 3-304.12 provides, in pertinent part, as follows: During pauses in FOOD preparation or dispensing, FOOD preparation and dispensing UTENSILS shall be stored: * * * (C) On a clean portion of the FOOD preparation table or cooking EQUIPMENT only if the in-use UTENSIL and the FOOD-CONTACT surface of the FOOD preparation table or cooking EQUIPMENT are cleaned and SANITIZED at a frequency specified under subsections 4-602.11 and 4-702.11. * * * (F) In a container of water if the water is maintained at a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) and the container is cleaned at a frequency specified under subparagraph 4-602.11(D)(7). Respondent admitted that a knife was stored in the crack between two pieces of kitchen equipment when Mr. Roff made his initial inspection. Violation of rule 3-304.12 is designated by the Division as a basic violation. Improperly Marked Containers Mr. Roff also observed “cookline bottles” stored in squeeze bottles which were not labeled as to their contents. Food Code Rule 3-302.12 reads as follows: Except for containers holding FOOD that can be readily and unmistakably recognized such as dry pasta, working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD. Respondent keeps two bottles on the cookline, one for oil and one for vinegar. Respondent is the only cook. Respondent testified that he has the bottles marked “oil” and “vinegar” with black marker. He introduced a photograph of the bottles marked as such, but the photograph was taken subsequent to the callback inspection and is not accepted as evidence of the condition of the bottles on the day in question. Mr. Fascenda testified that during the inspection, he showed the bottles to Mr. Roff and pointed out the hand-labeling, but admitted that Mr. Roff could not see the wording because it rubs off easily. Mr. Roff testified he did not recall seeing any labeling on the bottles. Violation of rule 3-302.12 is designated by the Division as a basic violation. Mr. Roff walked through the violations with Respondent, who signed the Inspection Report on April 16, 2013. The Inspection Report noted that a follow-up inspection was required and that the violations must be corrected by June 16, 2013. Callback Inspection On June 17, 2013, Mr. Roff performed a callback inspection at Richie Cheesesteak. Mr. Roff observed that seven of the violations noted in the April 16, 2013, Inspection Report had been corrected. However, the violations detailed above –- gasket on reach-in cooler torn and soiled; knife stored between kitchen equipment; cookline bottles unlabeled; and no proof of food manager training –- were not corrected. Mr. Roff prepared a Callback Inspection Report, which was signed by Respondent. The Callback Inspection Report recommended filing an Administrative Complaint. Petitioner introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code. Owner?s Response Certification Respondent maintained it would be impossible to produce his food manager certificate because it was retained by his employer in 2008. Respondent was clearly frustrated with Mr. Roff?s unwillingness to accept the explanation given at the first inspection and was indignant at being fined for lack of food manager certification following the callback inspection. Respondent?s explanation that he was previously certified but that the certificate was retained by his former employer is not a defense. The statute clearly requires production of the food manager certificate when the Division inspects the manager?s food-service establishment. Following the callback inspection, Respondent obtained a Food Manager Certificate, which was introduced at final hearing. Reach-in Cooler Gasket Respondent argued that if the gasket was not functioning, the reach-in cooler would not be maintaining the appropriate temperature, which it was when tested upon inspection. Respondent?s argument is not a defense. Keeping food at the proper temperature is only one of the aims of the rule. The other is to prevent cross-contamination of food in the cooler with substances on the gasket, whether they are foods spilled thereon or bacteria growing in a torn gasket. Respondent further argues that cross-contamination is not an issue since he is the sole operator and cook. Cross- contamination of foods in the reach-in cooler is not a function of how many different employees use the cooler, but rather the condition in which it is kept. Respondent testified that, since the callback inspection, he “siliconed over” the gasket to seal it and improve its appearance. He produced before and after photographs of the gasket at final hearing. Neither picture is evidence of the condition of the gasket upon inspection,since they were taken approximately two weeks before the hearing. If anything, the “before” picture tends to support the Division?s case that the gasket was torn and soiled upon inspection. Storage of Utensils Respondent admitted that a knife was stored between two pieces of kitchen equipment on the date of the first inspection. But, he maintained that was an accident and he does not regularly store knives that way. Improperly Marked Containers Respondent first argued that his oil and vinegar bottles were labeled, although in marker, and he should not be held in violation. The evidence shows that the labels were unrecognizable when the inspections occurred. Respondent next argued that the following facts should be taken into consideration when determining whether he violated the rule. First, there are only two bottles –- oil and vinegar. Accidental mixing of their contents would not create a health hazard or threat. Second, Respondent is the only cook, so mixing the contents is unlikely. Third, the cookline is separated from the cleaning area. Thus the likelihood of mixing the contents of the cookline bottles with bleach or another cleaning product is minimal. While Respondent?s arguments are no defense, they may be considered mitigating factors.
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 Richie Cheesesteak violated section 509.039 and Food Code Rules 3-302.12, 3-304.12, 4- 501.11, and 4-601.11, as alleged in the Administrative Complaint; and Imposing an administrative penalty against Respondent Richie Cheesesteak in the amount of $800, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2013.
The Issue The issue in this case is whether on October 23, 2013, and May 6, 2014, Respondent was out of 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, as alleged in the Amended Administrative Complaint, and if so, what penalty is appropriate.
Findings Of Fact The 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. At all times material to this case, Respondent was licensed as a public food service establishment, operating a restaurant located at 1658 North Federal Highway, Boca Raton, and holding license number 6020868. Ms. Tara Palmer has been employed by the Division for almost five years. She is presently a Senior Sanitation and Safety Specialist with the Division. Prior to her employment with the Division she was employed in the food industry for approximately 20 years. She has had training in sanitation and inspection, standardized training regarding the Food Code, on- the-job training, and continual monthly education. She performs approximately 1000 inspections yearly. On October 23, 2013, Ms. Palmer conducted a food service inspection on Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on October 23, 2013, Respondent's Roma and Alfredo sauces had been prepared the previous day, placed in tightly covered 22 quart gallon containers, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the sauces were 52°F. Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3-501.15. The improper cooling method deficiency was deemed a violation that required further review; however, same was not an immediate threat to the public. Respondent was notified that the observed violation must be corrected by December 24, 2013. On January 8, 2014, Ms. Palmer performed a "call-back" inspection. On that date, the improper cooling deficiency observed on October 23, 2014, had been corrected. On May 6, 2014, Ms. Palmer conducted a food service inspection of Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on May 6, 2014, Respondent's spicy and Pomodoro sauces had been prepared the previous day, placed in a tightly covered 22-quart gallon container, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the spicy sauce was 48°F at the start of the inspection and 47.5°F at the end of the inspection. The Pomodoro sauce was found to be 48°F at the start of the inspection and 47.3°F at the end of inspection. Again, Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3- 501.15. No evidence was introduced to indicate that Respondent had any previous violations. No evidence was introduced to refute the above-noted deficiencies.
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 Italio East Boca, LLC, d/b/a Italio, in violation of two intermediate violations, and imposing a fine of $400, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of October, 2014.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Humphrey's On 33rd, a bar/restaurant (with a "full kitchen") located in Fort Lauderdale, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-18150-R) authorizing it to operate Humphrey's On 33rd as a public food service establishment. Edward Humphrey is the majority owner of Respondent. On December 29, 2004, Michele Schneider, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of Humphrey's On 33rd. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): Respondent, upon request, was unable to produce evidence of "food handlers' training for employees by a certified food manager"; there were paper products and other potentially combustible items "on top of and around" a gas- powered hot water heater (which had an "open flame at the bottom"); there was no indication that violations (of the standards of the National Fire Protection Association) previously-noted by a "certified fire inspector" during an inspection of the hood range in the kitchen (which had an ansel fire suppression system) had been corrected; the service tag on the fire extinguisher in the establishment did not indicate the year the extinguisher was last serviced; and there was grease, garbage, and other debris in the "can wash area" outside the establishment, "right behind the back door." Before leaving the establishment, Ms. Schneider advised Mr. Humphrey that these Conditions were violations for which Respondent could be disciplined by Petitioner if not corrected by February 1, 2005. Ms. Schneider conducted a "callback" inspection of the premises of Humphrey's On 33rd on February 1, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed. At neither the time of the December 29, 2004, routine inspection, nor the time of the February 1, 2005, "callback" inspection, was food being served at Humphrey's On 33rd. Respondent had "closed the kitchen down" in or around September of 2004. It was not until approximately six months later, after the December 29, 2004, and February 1, 2005, inspections, that Respondent started serving food again at the establishment. At no time during this six-month period that it stopped serving food did Respondent relinquish its license authorizing it to operate Humphrey's On 33rd as a public food service establishment. Its license remained in effect throughout this period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed Alleged Violation Nos. 1 through 5 and disciplining Respondent therefor by imposing a fine in the total amount of $250.00 and requiring Respondent's majority owner to attend, at his own expense, an "educational program sponsored by the Hospitality Education Program." DONE AND ENTERED this 20th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2005.
