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 (2006). At all times material to this case, the Respondent was a restaurant located at 7551 West Waters Avenue, Tampa, Florida 33615, holding Food Service license number 3903935. On July 11, 2006, Richard Decker, a senior inspector representing the Petitioner, performed a routine inspection of the Respondent that resulted in emergency closure of the restaurant due to a roach infestation problem. The inspection report stated that the deadline for correcting the roach problem was July 12, 2006, and the matter was apparently resolved in a timely manner. Mr. Decker found additional violations of applicable Food Code regulations on July 11, 2006, which were cited in a written Food Service Inspection Report, a copy of which was provided to restaurant owner Anthony Della Monica on the date of the inspection. Mr. Decker's inspection identified critical and non- critical violations. Critical Food Code violations pose serious public health risk due to potential transmission of food-borne illness. Critical life safety violations such as blocked exits increase the risk of public injury. Violations that do not pose a direct and imminent public health risk are identified as non- critical. Other than as set forth herein, the violations cited during the July inspections were to have been corrected by the time of Mr. Decker's August 15, 2006, re-inspection. Many of the previously cited violations had not been corrected at that time. The August 15, 2006, re-inspection report was received by Mr. Della Monica on the date of the inspection. Mr. Decker again re-inspected the restaurant on October 20, 2006. Several violations previously cited in July remained uncorrected at that time. The October 20, 2006, re- inspection report was received by Head Chef Kurt Clasen on the date of the inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a certified food manager on the premises and for lacking of proof that employees had received food safety training. Such training was intended to reduce the potential for transmission of food-borne illness. These violations were deemed critical. Although Mr. Decker established an extended deadline of October 11, 2006, to correct the certified food manager and employee training violations, they remained uncorrected by the October 20, 2006, re-inspection. During the July inspection, Mr. Decker cited the Respondent for lacking a hand sink in the dishwashing area and noted that a hand sink at the rear of the kitchen was being used for food preparation. The requirements related to hand sinks were intended to reduce the potential for transmission of food- borne illness. The violations of the requirements were deemed critical. The Respondent still lacked a hand sink in the dishwashing area at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for using extension cords on a non-temporary basis to power equipment in the kitchen. The Respondent's improper electrical cord use was a fire hazard and was deemed a critical violation. By law, extension cords can only be used on a temporary basis. The cited extension cords remained in use by the Respondent at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for removing food products from original packaging and storing them in unlabeled containers, a critical violation that increased the risk of confusing food products with non- edible products such as cleaning chemicals. The violation remained uncorrected at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for lacking a chemical testing kit used to ascertain that the dishwasher sanitization function was operating properly. Lack of proper sanitation increased the potential for transmission of food-borne illness. The violation, deemed critical, was not corrected by the time of either re-inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a visible thermometer in a pizza- holding unit. The inability to monitor food-holding temperatures increased the potential for transmission of food- borne illness and was a critical violation. The violation was uncorrected at the time of the August re-inspection as it should have been, but it had been remedied by the October re- inspection. During the July inspection, Mr. Decker cited the Respondent for the lack of light bulb shields in a food service area, which increased the risk that food could be contaminated by glass in the event of light bulb breakage. This was deemed a non-critical violation and remained uncorrected at the time of either re-inspection.
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 $3,800 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 11th day of May, 2007, 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 11th day of May, 2007. COPIES FURNISHED: Anthony Della Monica Mama D's Pasta & Grille 1819 Audubon Street Clearwater, Florida 33764 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue After the hearing had concluded, the Petitioner filed a Notice of Voluntary Dismissal in DOAH Case No. 12-2627. Accordingly, the remaining issues for consideration are whether the allegations of the Administrative Complaint filed in DOAH Case No. 12-2748 are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2012). At all times material to this case, the Respondent was a restaurant operating at 288 Windward Passage, Clearwater, Florida 33767. The Food Code identifies proper food storage temperatures for potentially-hazardous food products. The storage of such products at improper temperatures can result in bacterial contamination of the product and can cause serious illness in humans who consume contaminated products. Violations of food temperature regulations that present an immediate threat to public safety are deemed to be "critical" violations of the Food Code. At the hearing, Mr. Suarez acknowledged that the Respondent had been disciplined by the Petitioner for food temperatures in excess of those permitted by relevant Food Code regulations and that he had paid an administrative fine pursuant to a previous Final Order. On May 9, 2012, Christine Craig, a trained sanitation safety specialist employed by the Petitioner, performed a "callback" inspection at the Respondent. The violations referenced herein were identified by Ms. Craig as critical. The relevant portion of the Food Code requires that certain products be stored at temperatures of 41 degrees Fahrenheit or less. Previous inspections at the Respondent revealed that holding temperatures of some food products stored in a reach-in cooler and in a two-door glass upright cooler did not comply with the Food Code requirements. The purpose of the May 9, 2012, callback inspection was to determine whether food temperature violations indentified in the previous routine inspections had been resolved. During the callback inspection, Ms. Craig found that ham, chicken broth, and cream cheese were being held in the referenced coolers at temperatures in excess of 41 degrees Fahrenheit, which were critical violations of the Food Code. The Respondent did not dispute Ms. Craig's testimony or the results of her inspection.
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 imposing a fine of $750 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 27th day of November, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012. COPIES FURNISHED: Mark Anthony Suarez Island Way Cafe 288 Windward Passage Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in the case are whether the allegations set forth in an Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Town and Country Skate World (Respondent) 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 (2011). At all times material to this case, the Respondent was a restaurant operating at 7510 Paula Drive, Tampa, Florida, 33615, and holding food service license number 3203942. On May 6, 2010, Rich Decker (Mr. Decker), employed by the Petitioner as a senior sanitation and safety specialist, performed a routine inspection (May 6 inspection) of the Respondent and observed conditions that violated certain provisions of the Food Code. Food Code violations are classified as "critical" or "non-critical." A critical violation of the Food Code is one that poses a significant threat to the public health, safety, or welfare and is a risk factor for food-borne illness. A non- critical violation of the Food Code is one that does not meet the definition of a critical violation. At the conclusion of the May 6 inspection, Mr. Decker noted the observed violations in an inspection report. A manager for the Respondent was present during the inspection. The manager signed the inspection report and received a copy of the report at that time. According to the inspection report, a follow-up "callback" inspection was scheduled to occur on July 6, 2010, prior to which critical violations were to have been corrected. On July 21, 2010, Kathy Dorsey (Ms. Dorsey), employed by the Petitioner as a senior sanitation and safety specialist, performed the callback inspection (July 21 callback inspection) and observed some of the same Food Code violations noted on the May 6 inspection report. At the conclusion of the July 21 callback inspection, Ms. Dorsey noted the observed violations in an inspection report. An employee of the Respondent present at the time of the inspection signed and received a copy of the callback inspection report. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. Pursuant to state regulations, the Respondent was required to have designated a certified food protection manager responsible for the operation of food service. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the designated food protection manager's certification had expired and that the Respondent was operating without a properly-certified food protection manager. This was a critical violation of the Food Code, because the lack of a properly-certified food protection manager presents a significant threat to the public health, safety, or welfare through the transmission of food-borne illness by improper food preparation. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that no thermometer to ascertain the temperature of food products was present, a critical violation. Foods held at improper temperatures are susceptible to development of bacterial contamination and are a risk factor for transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent, which utilized a chemical system for sanitation of dishes and utensils, had no chemical test kit provided at the location of the sanitation sink. The test kit is required to ascertain whether the composition of the disinfection liquid is appropriate and capable of sanitizing the items. This was a critical violation because improperly sanitized dishes and utensils pose a significant threat to the public health, safety, or welfare through the transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the gaskets located at the reach-in food refrigeration unit were soiled, a critical violation because the situation presents an opportunity for bacterial contamination of food products and transmission of food-borne illness. Sinks used for preparation of food products are not to be used for hand washing, and, accordingly, the Food Code prohibits having hand-washing aids at a food prep sink. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent had hand-washing materials located at a food-prep sink. This was a critical violation because dual use of sinks provides an opportunity for bacterial contamination of food or utensils and transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent's gas tanks (helium and/or carbon dioxide) were not properly secured, which was a non-critical violation of state regulations cited herein. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that ceiling tiles in the kitchen were water-stained, indicating the presence of an unidentified leak above the ceiling tiles, and other tiles were missing. These were non-critical violations of state regulations cited herein.
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 imposing an administrative fine against the Respondent in the amount of $1,550. DONE AND ENTERED this 28th day of November, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Alan Blizard Town and Country Skate World 7510 Paula Drive Tampa, Florida 33615 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2005). The Respondent is a restaurant located at 2311 West Hillsborough Avenue, in Tampa, Florida, holding Permanent Food Service license number 3910762. Jesus Gonzalez is identified on the license as the owner of the Respondent. On October 4, 2005, Catherine Lombard, employed by the Petitioner as a safety and sanitation specialist, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a written report. Ms. Lombard provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for November 4, 2005. On November 7, 2005, Ms. Lombard re-inspected the Respondent and determined that some of the violations identified during the inspection on October 4, 2005, remained uncorrected. The violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection. On November 29, 2005, the Petitioner filed an Administrative Complaint against the Respondent, alleging various continuing and uncorrected violations identified during the inspections. Violations that pose an immediate threat to public health and safety are identified as critical. Violations that do not pose an immediate threat are identified as non-critical. During the inspections on October 4, 2005, and on November 7, 2005, the ventilation hood's fire suppression system tag had expired according to the date on the tag, and there was no current hood system report. These violations were identified as critical because failure of the fire suppression system located above the cooking equipment could result in an uncontrolled fire with loss of life and property. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed uncooked food being thawed in a bucket of standing water at room temperature. On October 4, 2005, the food in the water was fish. On November 7, 2005, the food in the water was sausage. This violation was identified as critical because thawing food in room-temperature standing water can permit growth of food-borne bacteria and result in severe illness for persons consuming improperly thawed food. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that food refrigeration units lacked conspicuously located thermometers. This violation was identified as critical because the lack of conspicuously located thermometers makes it more likely that an inadequately operating refrigeration unit will go unnoticed, thereby increasing the risk of food-borne illness related to improper food storage. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed an uncovered electrical panel box located in the kitchen. This violation was identified as critical because of the obvious risk to kitchen workers presented by "live" electrical wiring located in proximity to wet kitchen floors. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that a vacuum breaker was missing at a hose bib. This violation was identified as critical because, absent a properly installed vacuum break device, contaminated water in a hose may enter into the potable water supply and be consumed by the public potentially resulting in illness. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard identified several non-critical violations, including the failure to place wet table wiping cloths into a sanitizing solution; a lack of hand-drying provisions in the restroom; damage to the wall behind the food preparation line, which made adequate cleaning of the wall difficult; failure to store utensils in a clean and protected location; and failure to hang a wet mop so as to permit the mop to dry.
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 $3,600 against the Respondent and requiring the Respondent to attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 6th day of July, 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 6th day of July, 2006. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jesus Gonzalez Tainos Cafe 2311 West Hillsborough Avenue Tampa, Florida 33603 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact The Parties Petitioner, Richard J. Campbell, d/b/a Granny's Donut Shop, was, at all times material hereto, engaged in the business of manufacturing, processing, packing, holding or selling food at retail. Petitioner held food permit number 68877 issued by the Department of Agriculture and Consumer Services (Department), for the premises located at 306 Northeast Eight Street, Homestead, Florida. The Department is charged with the administration and enforcement of Chapter 500, Florida Statutes, including the rules promulgated thereunder, relating to food safety and the selling of food to the consuming public. The Violations Department food safety inspectors conducted food safety inspections at Granny's Donut Shop on December 12, 1994, December 27, 1994, and January 12, 1995. On each of the three inspections, Granny's Donut Shop received an overall rating of "poor." These ratings resulted from the fact that on each of the three inspections the inspector observed multiple unsanitary conditions that constituted violations of applicable statutory and rule provisions; however, most of the violations were not critical violations. The Department's initial inspection of December 9, 1994, resulted in an overall rating of "poor" based on a finding of 16 sanitary violations; however, only one violation, the presence of insect activity, was a critical violation. The Department reinspection of December 27, 1994, again resulted in an overall rating of "poor" based on a finding of 20 sanitary violations. Again, only one violation, the storage of toxic items (cleaning supplies) on a shelf with food products, was a critical item, and the previous critical violation had been corrected. While not critical, approximately seven of the violations noted on the first inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, some soiled linen was stored with food, and the coolers were dirty. The Department's reinspection of January 12, 1995, again resulted in an overall rating of "poor" based on a finding of 18 sanitary violations; however, only one violation, the storage of toxic items (cleaning supplies) above a three-compartment sink, was noted as a critical item, and the previous critical violation had been corrected. Again, while not critical, approximately seven of the violations noted on the previous inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, the wall over the handwashing sink had holes in it, and some soiled linen was stored on a work table. Finally, during the course of the January 12, 1995, inspection, the Department issued a stop use order for a mixer that was found "dirty with old product residue [and] build-up on both food [and] non-food contact surfaces," which it deemed an immediate serious danger to the public health. The Penalty At hearing, the Department offered proof that it is its policy to recommend an administrative fine against an establishment which has received two "poor" ratings in a row and on the third inspection does not achieve an improved rating of "fair" or "good." The Department further observed that under the provisions of Section 500.121(1), Florida Statutes, it is authorized to impose an administrative fine not excededing $5,000 against a food establishment that has violated Chapter 500, Florida Statutes; however, the Department did not offer any proof as to what penalties, if any, it had imposed in prior similar cases, and did not submit a proposed recommended order advocating the assessment of an administrative fine in any particular amount. Compared with the paucity of proof offered by the Department concerning an appropriate fine, petitioner offered proof, which is credited, that Granny's Donut Shop was a small, family owned business, that the demands of the business were taxing, that the business is now closed, and that the business took a severe financial toll on petitioner. While not excusing sanitary violations that could pose a threat to the consuming public, such factors, under the circumstances of this case, provide useful evidence in assessing a penalty that will deter others from similar violations, yet not be unduly harsh toward petitioner's violations. Considering such mitigating factors, as well as the nature of the violations established, an administrative fine in the amount of five hundred dollars ($500.00) is deemed appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding petitioner violated the provisions of Chapter 500, Florida Statutes, and imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 24th day of April 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1996.
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 sanctions.
Findings Of Fact At all times material hereto, Dominos Pizza was owned and operated by Narverud Restaurant Systems, Inc., as a licensed permanent public food service establishment located at 13081 Spring Hill Drive, Spring Hill, Florida. Elizabeth Narverud is its vice president. Narverud Restaurant Systems, Inc., holds License No. 3700896.2/ 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. On March 26, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food service inspection of Dominos Pizza. 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 On March 26, 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. Among the violations Mr. Roff noted was the absence of a backflow preventer on the mop sink faucet. Mr. Roff observed that the mop sink faucet was threaded but no backflow preventer was installed. Food Code Rule 5-203.14 provides as follows: A PLUMBING SYSTEM shall be installed to preclude backflow of a solid, liquid, or gas contaminant into the water supply system at each point of use at the FOOD ESTABLISHMENT, including on a hose bibb if a hose is attached or on a hose bibb if a hose is not attached and backflow prevention is required by LAW, by: (A) Providing an air gap as specified under § 5-202.13; or (B) Installing an approved backflow prevention device as specified under § 5-202.14. Food Code Rule 5-202.13, entitled “Backflow Prevention, Air Gap,” provides as follows: An air gap between the water supply inlet and the flood level rim of the PLUMBING FIXTURE, EQUIPMENT, or nonFOOD EQUIPMENT shall be at least twice the diameter of the water supply inlet and may not be less than 25 mm (1 inch). A vacuum breaker or other backflow preventer prohibits backflow of water from the mop bucket, when being filled in the mop sink (or by hose attached to the mop sink faucet), into the water supply system in the event of a loss of water pressure, which creates a siphoning action. The Food Code provides an exception when the distance between the end of the faucet and the top of the rim of the sink is twice the diameter of the faucet but not less than one inch. Violation of rule 5-203.14 is designated by the Division as a high priority violation. Among other violations, Mr. Roff noted on the Inspection Report that the reach-in cooler gasket was torn or in disrepair. Mr. Roff did not testify specifically whether the gasket was torn, or otherwise in disrepair. He testified that he typically reaches in and spreads the gasket apart to inspect for tears. 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 and prevent the storage of foods at the required temperature. Mr. Roff did measure the temperature of the food in the reach-in cooler, but did not testify with certainty whether the temperature met the standard of 41 degrees or less. Mr. Roff did not note temperature of food stored in the reach-in cooler as a violation. Given the totality of the evidence, the undersigned finds that the food stored in the reach-in cooler met the temperature standard. Violation of rule 4-501.11(B) is designated by the Division as a basic violation. Among the other violations observed by Mr. Roff was that the utensil used to scoop corn meal from its bulk container was resting flat on top of the corn meal, where the handle came into contact with the corn meal. 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: * * * (B) in food that is not potentially hazardous (time/temperature control for safety food) with their handles above the top of the food within containers or equipment that can be closed, such as bins of sugar, flour, or cinnamon. At Dominos Pizza, corn meal is used in stretching the pizza dough. The corn meal is scooped from a bulk container onto the food preparation surface and spread by hand on the surface before stretching the dough. Violation of rule 3-304.12 is designated by the Division as a basic violation. Mr. Roff met with Ms. Narverud during the inspection on March 26, 2013, walked through each of the alleged violations with her, and gave her a copy of the Inspection Report, which she signed. The Inspection Report notes a callback inspection date of May 27, 2013. On May 30, 2013, Mr. Roff performed a callback inspection at Respondent?s food service establishment. Ms. Narverud was not present. Mr. Roff observed that eight of the violations noted in the March 26, 2013, Inspection Report had been corrected. However, the three violations detailed above –- no backflow preventer at the mop sink, gasket on reach-in cooler torn or in disrepair, and corn meal scoop not stored with handle above food –- were not corrected. Mr. Roff prepared a Callback Inspection Report, which was signed by Julio Diaz as Manager. 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 Ms. Narverud has worked as a food service manager for 25 years, has a food manager certification from the Division, and is a certified trainer for Dominos where she trains employees in sanitation requirements. Ms. Narverud is an advocate for food safety and training in order to protect the Dominos brand and reputation. Ms. Narverud testified that the gasket on the reach-in cooler was replaced approximately one year prior to the inspection. Ms. Narverud testified credibly that a gasket generally lasts three to five years. Ms. Narverud admitted that the gasket was stained with tomato sauce, but maintained it was not torn, soiled, or mildewed. Respondent introduced a photograph of the gasket in question, which appeared to be in good repair. However, the picture was taken two weeks before the hearing, so it is not accepted as evidence of the condition of the gasket at the time of inspection. Ms. Narverud contacted her plumber following the March inspection to request that a backflow preventer be installed at the mop sink faucet. The plumber informed her there was no backflow preventer device which would fit that particular faucet.3/ Further, Ms. Narverud maintained that the particular mop sink is exempt from the backflow preventer requirement because the air gap between the end of the faucet and the top of the mop sink was two inches or more, and no hose was attached to the faucet. Mr. Roff could not recall whether a hose was located within the vicinity of the sink during either the initial or callback inspection. There was no evidence of the distance between the end of the faucet and the flood level rim of the mop sink, other than Respondent?s testimony. Ms. Narverud planned to discuss the issue of the mop sink with Mr. Roff when he returned for the callback inspection. However, Mr. Roff returned on May 30, rather than May 27, the date noted in the March Inspection Report. Ms. Narverud was not present when the callback inspection was conducted. Having been cited in the Administrative Complaint for the lack of a backflow preventer, despite her plumber?s advice and her belief that no backflow preventer was required for the type of faucet installed, Ms. Narverud has subsequently had the entire faucet replaced and a backflow preventer installed. As to the issue of the scoop handle in the corn meal bin, Ms. Narverud disagrees that a violation occurred. Because the corn meal is spread by hand onto the food preparation surface after scooping, Ms. Narverud argues that it should be irrelevant whether the scoop handle touches the corn meal in the bin. Mr. Narverud?s argument, while understandable, is not compelling. But for the handle, employees might as well be scooping the corn meal directly from the bin with their hands. The handle is the carrier by which corn meal in the bin may become contaminated by any number of germs and viruses present on employees? hands. The citation may be picky, but it is nevertheless a violation.
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, Dominos Pizza, violated section 509.032(2)(d), and Food Code Rules 5-203.14. and 3- 304.12, adopted by Florida Administrative Code Rule 61C- 1.001(13), as alleged in the Administrative Complaint; Finding that Respondent, Dominos Pizza, did not violate section 509.032(2)(d), and Food Code Rule 4-501.11(B), as alleged in Administrative Complaint; Applying a mitigating factor based on the 12-year length of time that Respondent has been in operation without incident, her good-faith belief that a backflow preventer was not required for the mop sink, and her extraordinary efforts in correcting the violations; and Imposing an administrative penalty against Respondent, Dominos Pizza, in the amount of $200, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 12th 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 12th day of December, 2013.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated April 25, 2008, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact At all times material hereto, Respondent was licensed as a public food service establishment in the State of Florida by the Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent's business address is "Szechuan Panda," 3830 Southwest 13th Street, Gainesville, Florida 32608. Critical violations are violations that, if not corrected, can have a direct impact on cross-contamination and food-borne illness. This, in turn, causes an immediate threat to public health. Non-critical violations are violations that, if not corrected, can have an impact on the creation of critical violations. On December 19, 2007, Inspector Daniel Fulton performed a Complaint Food Service Inspection at Szechuan Panda. During that inspection, Inspector Fulton prepared and signed an inspection report setting forth violations he encountered during the inspection. From the time it was prepared until the date of the hearing, the inspection report has not been altered. On December 19, 2007, Mr. Fulton observed live roaches in Szechuan Panda in both the food preparation and food service areas. Inspector Fulton cited this as a critical violation because live roaches carry many diseases. Those diseases can be spread when the roaches crawl over clean or unclean food preparation equipment in their search for food and accordingly contaminate food preparation surfaces. On December 19, 2007, food was being stored at Szechuan Panda directly on the floor. When the terminology "directly on the floor" is used, it includes any food that could be contaminated by ordinary mopping. That is, food stored in a container which is not impervious to water, such as a cardboard container, or a plastic container which does not have a top and the sides of which are so low that mopping might contaminate its contents. On December 19, 2007, improper utensils were being used to scoop out food from food containers. According to Mr. Fulton, this is a critical violation because without the usage of a proper utensil with a handle, cross-contamination can occur when the food product touches an employee’s hand. On December 19, 2007, the carbon dioxide/helium tanks in Szechuan Panda were not adequately secured. According to Mr. Fulton, this is a violation because if the tanks become unsecured all of the pressure inside can cause the tanks to shoot off uncontrollably in an elliptical or variable pattern so as to damage anyone or anything with which they come in contact. On December 19, 2007, grease was built-up on non-food contact surfaces. Mr. Fulton cited this as a violation because such debris is enticing for consumption by any present rodents and/or roaches. Rodents and roaches carry diseases that can lead to cross contamination. On March 5, 2008, Mr. Fulton prepared a Complaint Inspection Report at Szechuan Panda in which some of the previously noted violations had not been corrected. From the time it was prepared until the date of hearing the report was not altered. On March 5, 2008, Mr. Fulton again observed live roaches in Szechuan Panda, in both the food preparation and food service areas. He cited this as a critical violation for the reasons previously stated. On March 5, 2008, dead roaches were observed throughout the business. Mr. Fulton cited this as a critical violation because live roaches will eat the carcasses of dead roaches, causing further cross-contamination, and because the presence of dead roaches also shows a general lack of cleanliness and due care. On March 5, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. According to Mr. Fulton, this is a critical violation because bacteria grows quicker, the closer food is held to 98 degrees Fahrenheit. Also on March 5, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. Mr. Fulton classified this as a critical violation because any bacteria present on the food will grow, once the temperature drops below 135 degrees Fahrenheit. On March 5, 2008, foods in both the dining area and food storage areas at Szechuan Panda were not properly covered. This was classified as a critical violation because cross- contamination can occur by way of any bacteria present being easily transferable to the exposed food. On March 5, 2008, food also was being stored directly on the floor as previously described. On March 5, 2008, improper utensils were again being used to scoop out food from food containers. Mr. Fulton considered this a critical violation for the reasons previously stated. On March 5, 2008, food contact services were encrusted with grease, and soil deposits were present in food containers. Mr. Fulton listed this as a critical violation because an unidentified slime growing within a food container poses a health risk that can possibly cross-contaminate other foods. On March 5, 2008, in-use utensils for non-potentially hazardous foods were not being stored in a clean, protective place. Mr. Fulton considered this a violation because any harmful debris present on the unit being used for storage can become stuck on the utensil. On March 5, 2008, the carbon dioxide helium tanks still were not adequately secured. This was listed as a violation for the reasons previously stated. On March 5, 2008, grease was built up on non-food contact surfaces. This was listed as a violation for the reasons previously stated. On March 5, 2008, a black substance was present on the wall around the dish-washing area. This was listed as a violation because the substance observed appeared mold-like, thus showing a lack of cleanliness. On March 6, 2008, Inspector Fulton prepared a call- back inspection report at Szechuan Panda noting that some of the violations remained uncorrected. From the time it was prepared until the date of the hearing, the call-back report has not been altered. On March 6, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was noted as a critical violation for the reasons previously stated. On March 6, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was noted as a critical violation for the reasons previously stated. On March 6, 2008, foods in both the dining area and food storage area of Szechuan Panda were not properly covered, and this was listed as a critical violation for the reasons previously stated. On March 6, 2008, a black substance was present on the wall around the dish-washing area. This was listed as a violation for the reasons previously stated. On March 24, 2008, Mr. Fulton prepared a complaint inspection report at Szechuan Panda in which some of the violations still were not corrected. From the time it was prepared until the date of the hearing, the report has not been altered. On March 24, 2008, dead roaches were observed throughout the business. This was listed as a critical violation for the reasons previously stated. Although some dead roaches may be evidence of attempts to exterminate all of a roach infestation as testified-to by Respondent, the presence of dead roaches also shows a general lack of cleanliness and due care. On March 24, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, foods in both the dining area and food storage area of Szechuan Panda were not properly covered. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, food was still being stored directly on the floor. On March 24, 2008, improper utensils were being used to scoop out food from food containers, This was listed as a critical violation for the reasons previously stated. On March 24, 2008, food contact surfaces were encrusted with grease, and soil deposits were present in food containers. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, in-use utensils for non-potentially hazardous foods were not being stored in a clean, protective place. This was listed as a violation for the reasons previously stated. On March 30, 2008, Mr. Fulton prepared a call-back inspection report at Szechuan Panda in which some of the previous violations were not corrected. From the time it was prepared until the date of the hearing the call-back report has not been altered. On March 30, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, foods in both the dining area and food storage areas were not properly covered. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, food contact surfaces were encrusted with grease, and soil deposits were present in food containers. This was listed as a critical violation for the reasons previously stated. As to most violations described by Mr. Fulton, Respondent Kang only protested that Chinese cooking was not conducive to meeting the regulations. He also apparently was not present when each of the foregoing inspections was made, so his testimony as to why certain foods were above or below the permissible temperatures; were stored on the floor; or otherwise met standards is not persuasive. Mr. Kang's testimony with regard to his quest for reputable and effective exterminators and his contracts with successive exterminators is credible. The area being largely clear of roaches after he hired a new exterminator is also noted. However, even giving Respondent all due credit for correcting certain inspection violations by call-back or subsequent inspection dates, his testimony as a whole does not evoke confidence in the cleanliness of the licensed establishment. Particularly, Mr. Kang’s defenses that "live roaches came with purchased goods or were quickly killed" by the pest control company, and that dead roaches are swept out at the end of each day but there are more roaches when the restaurant opens the following morning, do not help his situation much. Most troubling is that Mr. Kang described a procedure whereby, although the restaurant is cleaned at the conclusion of each serving day, dead roaches are not swept out the following morning but are allowed to remain where they lie until the restaurant is cleaned entirely at the end of the second work day. Likewise, Mr. Kang's testimony also indicates his lack of understanding of the Department's requirements for maintaining "safe" food temperatures. Mr. Fulton explained that most buffets use time and temperature for public health control, but he further testified that, per the regulations he goes by, a restaurateur may keep foods "out of temperature" only up to four hours, and to legitimately do so, pursuant to the Food Code, the restaurateur must write a statement explaining the precautions he has taken, and further state therein that if his food “out of temperature” is not sold within a four-hour period, it will be discarded. Then, with the foregoing statement displayed, that restaurateur must maintain a record with his foregoing posted declaration, on which he keeps track of each time food is taken "off temperature," and each time food is put "on temperature." Respondent posts no such declaration or record. Mr. Kang’s assertion that some of his prior inspection troubles were caused by disgruntled former employees has been considered, as has been his living in another city far from the location of his restaurant, so as to care for his disabled wife. However, his wife’s acute care situation occurred four or five years ago and none of his employee problems seem to be current. In any case, none of these concerns excuse a licensee from meeting the applicable statutory and rule requirements.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking Respondent’s Hotels and Restaurant license, effective the first Monday, after 30 days from the date the final order is filed with the Agency Clerk of the Department of Business and Professional Regulation, Division of Hotels and Restaurants. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 19th day of November, 2008.
