The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1618782. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 7401 West Commercial Boulevard, Tamarac, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Sean Grosvenor and Larry Torres were experienced and appropriately trained investigators employed by Petitioner as Sanitation and Safety Specialists. Their job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. On July 7, 2005, Mr. Grosvenor led an inspection of the subject restaurant. Based on that inspection, Mr. Grosvenor prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on July 7, Mr. Grosvenor discussed his findings with the associate manager of the restaurant. Mr. Grosvenor ordered that two of the violations be corrected immediately. He ordered the restaurant to correct the remaining violations by no later than August 7, 2005. On July 8, 2005, Mr. Grosvenor conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the two violations he had ordered corrected immediately had been corrected. One of the two violations that were to be corrected immediately had been corrected and is not at issue in this proceeding. The other violation had not been corrected and is the subject of the Paragraph 1 violation. PARAGRAPH 1 The Food Code requires that food be maintained at a temperature of 41° F. or less. On July 8, 2005, Mr. Grosvenor found the following: cottage cheese located on the buffet table was at a temperature of 48° F., raw hamburger patties located in a cooler were at a temperature of 47° F., and potato salad located in a cooler was at a temperature of 47° F. Mr. Afsarmanesh, the restaurant’s manager, testified that the hamburger patties had been freshly ground and that the potato salad had been freshly made. He testified that these items were brought to a temperature above 41° F. during the preparation process, that they had been placed in coolers to cool down shortly before the inspection, and that they were above 41° F. when Mr. Grosvenor conducted his inspection because they had not had sufficient time to cool down. While his testimony explained Mr. Grosvenor’s findings as to the hamburger patties and the potato salad, Mr. Afsarmanesh had no explanation as to why the cottage cheese was above 41° F. Petitioner established by clear and convincing evidence that Respondent violated Section 3.501.16(B) of the Food Code as alleged in paragraph 1 by proving that Respondent failed to maintain cottage cheese on the buffet line at or below the required minimum temperature. The violations alleged in paragraphs 2-6 were based on Mr. Torres’s follow-up inspection on August 8, 2005. That follow-up inspection was conducted during a power failure which left the restaurant without electricity. Mr. Afsarmanesh requested that the follow-up inspection be rescheduled because of the power outage, but Mr. Torres decided to go forward with the inspection using flashlights. Mr. Torres testified that the absence of electricity had no bearing on his inspection. Based on the violations found, the undersigned finds that Respondent was not prejudiced by Mr. Torres proceeding with the inspection. PARAGRAPH 2 The initial inspection cited Respondent for storing uncovered lettuce, onions, and peppers in a cooler. On August 8, 2005, Mr. Torres observed that lettuce, onions, and peppers were stored uncovered in a cooler. That conduct violated Section 3-302.11(A)(4) of the Food Code. Mr. Afsarmanesh testified that his staff rushed to put these items in the cooler when the electricity went out and that they did not have sufficient time or light to cover them. The exigent circumstances created by the power outage do not excuse the violation observed by Mr. Torres, but those circumstances can be considered in mitigation when determining the penalty to be imposed. Petitioner established by clear and convincing evidence that Respondent violated Section 3-302.11(A)(4) of the Food Code as alleged in paragraph 2. PARAGRAPH 3 Paragraph 3 alleged that Respondent violated Section 3- 304.14(B) of the Food Code by failing to have chlorine sanitizer in a cleaning bucket at minimum strength. On August 8, 2005, Mr. Torres determined that the chlorine sanitizer in a cleaning bucket was below minimum strength. Petitioner established by clear and convincing evidence that Respondent violated Section 3-304.14(B) of the Food Code as alleged in paragraph 3. PARAGRAPH 4 Paragraph 4 alleged that Respondent violated Section 5- 205.11(B) of the Food Code by using a hand-washing sink for purposes other than washing hands. The inspection report does not detail what other use was being made of the hand-washing sink and Mr. Torres could not recall what he had observed to cause him to cite that as a violation. Petitioner failed to establish by clear and convincing evidence the alleged violation of paragraph 4. PARAGRAPH 5 Paragraph 5 alleged that Respondent violated Section 6-202.15 of the Food Code by failing to properly seal an exterior door. On August 8, 2005, Mr. Torres observed that an exterior door to Respondent’s facility was not properly sealed and, consequently, would not prevent the intrusion of pests. Petitioner established by clear and convincing evidence that Respondent violated Section 6-202.15 of the Food Code as alleged in paragraph 5. PARAGRAPH 6 Paragraph 6 alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(7), by failing to keep an electrical room clean and free of debris by storing items in the electric room. On August 8, 2005, Mr. Torres observed that Respondent had stored items in an electric room. Petitioner established by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C-1.004(7), as alleged in paragraph 6. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. The paragraph 3 violation is a non-critical violation. The remaining violations found are critical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1, 2, 3, 5, and 6 and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $100.00 for the paragraph 2 violation; $100.00 for the paragraph 3 violation; $500.00 for the paragraph 5 violation; and $500.00 for the paragraph 6 violation. In addition, the final order should require a manager responsible for the subject restaurant to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program. DONE AND ENTERED this 2nd day of February, 2006, 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 SUNCOM 278-9675 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, 2006.
The Issue Whether New Roseau Restaurant (New Roseau), a licensed restaurant, committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against New Roseau.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, New Roseau was licensed as a public food service establishment, with the following business address: 1180 Northwest 119th Street, Miami, Florida 33168. On April 10, 2013, and August 21, 2013, New Roseau was inspected by Dominique Adam, a sanitation and safety specialist with the Division. During both visits, Mr. Adam noticed items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Adam and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 21, 2013, the following deficiencies subsisted at New Roseau: (1) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes; (2) no proof of required state-approved employee training for its employees, in violation of section 509.049(5), Florida Statutes. Both of these deficiencies, pursuant to Florida Administrative Code Rule 61C-1.005, are characterized as intermediate violations. New Roseau is a third or subsequent offender due to the filing of two disciplinary Final Orders within twenty-four months preceding the Administrative Complaint in the present case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order finding New Roseau guilty of both counts in the Administrative Complaint, and ordering New Roseau to pay an administrative penalty in the amount of $1,600.00, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 28th day of April, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 April, 2014. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jean-Claude Duval New Roseau Restaurant 1313 North Federal Highway Hollywood, Florida 33020-7864 Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint dated September 4, 2002, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the operation of food service establishments pursuant to Chapter 509, Florida Statutes. Respondent has at all times material to this case been licensed by the State and subject to Petitioner's jurisdiction by virtue of its operation of Tony's Pizza, a restaurant located in West Palm Beach, Florida. On July 24, 2002, and again on August 30, 2002, an inspector for Petitioner inspected Respondent's premises. All but two of the violations noted at the first inspection were corrected by the time of the second inspection. The deficiencies noted at the second inspection each relate to requirements for specialized training for employees and managers involved in assuring the safety of the food served in the establishment. Specifically those violations, which form the basis of the Administrative Complaint, are failure to have present on the premises a certified professional food manager and failure to have available proof that employees had been trained in food sanitation and safety procedures. Shpetin Abouramani (Abouramani) owns Tony's Pizza, which he opened in the year 2000 after two decades in the restaurant business in Palm Beach County. English is not Abouramani's native language. His ability to communicate in English is sufficient to run Tony's Pizza, but he is unable to understand the nuances and subtleties of the language sufficiently to deal with matters which require a vocabulary he does not use daily. Abouramani's difficulty in understanding the hearing participants and in making himself understood was sufficient to justify granting a request for an interpreter, had such a request been made. When Abouramani obtained an occupational license for Tony's Pizza, he believed that he had fulfilled all legal requirements for operating the restaurant. Otherwise, he reasoned, why would he have been granted a license? The answer is that state law affords restaurant owners 60 and 90 days, respectively, from the date a restaurant opens, to obtain the required employee safety training and food manager training. Tony's Pizza was inspected at least three times after it opened, with no mention made until July 2002 of the violations which give rise to this proceeding. Taking into account Abouramani's limited proficiency in English, and his demeanor while testifying, the undersigned credits his testimony that he did not comprehend the legal duty placed upon him to obtain food safety training for himself and his employees. Abouramani's misunderstanding was reasonable under the circumstances of this case. Abouramani is not a scofflaw. The record reflects that he has been diligent in attending to regulatory requirements, promptly correcting violations brought to his attention. There is no evidence of prior disciplinary history, nor of any actual injury to public safety. By the time Abouramani came to understand that it would be necessary to take time away from work to receive food manager training, he was understaffed and felt pressured not to take even a day off from the restaurant, which has yet to recover from a post-September 11 downturn in business. He asked inspectors to give him a little more time to obtain the necessary certifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, if it has not already done so, furnish proof that all employees and food service managers have received state-mandated training not later than 15 days from the date of the final order. If Respondent fails to do so, a fine of $600.00 should be imposed, payable within 30 calendar days of the date the final order is filed with the agency clerk Respondent shall also attend a Hospitality Education Program class within 60 days of the date the final order is filed with the agency clerk, if Respondent fails to comply with the terms of paragraph 1 of this Recommendation. DONE AND ENTERED this 14th day of May, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of May, 2003. COPIES FURNISHED: Shpetin Abouramani Tony's Pizza Ristorante 1363 North Military Trail West Palm Beach, Florida 33409 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The administrative complaint, as limited by the abandonment of certain charges at the final hearing, raises four issues about the operation of the respondent's business. These include whether at the time of inspections on August 11 and September 3, 1986, the respondent was a food service establishment which had on its premises food which was not from an approved source; whether it failed to provide dishwashing facilities; whether it failed to provide hot and cold running water under pressure; and whether it failed to provide adequate toilet facilities.
Findings Of Fact France To You Coconut Grove, Inc., operates at 3199 Commodore Plaza, Miami, Florida, in the area known as Coconut Grove. At that location the corporation sells magazines, newspapers, post cards, greeting cards, cigarettes and, at one end of the store, has freezers containing food for sale. The entire facility is comprised of about 900 square feet, and has a single restroom. There is no space for a second restroom. The existing restroom is generally not made available to the public because to reach it, it is necessary to go through a storeroom containing the facility's merchandise. Non-employees therefore are not permitted to use the restroom. Prior to August, 1986, patrons could purchase food in sealed microwaveable packages from the freezer. It would then be heated and made available to the customer on paper plates with plastic, single-use utensils to be consumed outside the premises on a deck containing tables and chairs which France To You had made available. As the result of an article which appeared in the Miami Herald in early August, 1986, which indicated that gourmet food was sold at France To You, the health department sent an inspector, Mr. Hoffman, to the establishment. Hoffman saw people eating on the deck outside France To You. He met with the manager of the facility, Mr. Taylor. Mr. Taylor became distressed when the health department asserted that France To You fell under its jurisdiction. Mr. Hoffman asked Mr. Taylor to come to the health department offices for a planned review. Mr. Taylor did so and after initially meeting with a planned review officer, Mr. Taylor demanded to see someone more senior. During the meeting Mr. Taylor explained he planned to heat for patrons food purchased at France To You, which would be consumed on the deck outside. It was arranged that the administrator of the Dade County Public Health Department, Mr. Livingstone, would come to the Taylor establishment, which is something the administrator ordinarily leaves to regular inspectors. On August 11, 1986, Mr. Livingstone came to France To You with Mr. Ros, the Assistant Director, and Mr. Diaz of the State Department of Business Regulation, Division of Hotels and Restaurants. At that meeting Mr. Livingstone found that the freezers contained prepackaged food, which people were eating on the deck outside the establishment. There was also a Mr. Coffee machine on the premises, but it was used only for employees, not to sell coffee to customers. When Mr. Livingstone attempted to explain the requirement of the sanitation code to Mr. Taylor, Mr. Taylor became abusive and the conversation ended. There were no dishwashing facilities or three- compartment sink at France To You on August 11, 1986, and no hot water in the restroom or hot and cold water under pressure in the food preparation area, i.e. the area where the food was heated and transferred to paper plates for consumption. The prepackaged containers of food came from another France To You store on Mills Drive near the Town and Country Mall in south Dade County. That store has a market license which permits it to sell food, but it does not hold a processing license; the Mills Drive facility has not been approved by the Dade County Health Department to process food that would be packaged for sale at another location. It would have been possible for the food portions sold in Coconut Grove to have been prepared by a food processing plant inspected and approved by the Department of Agriculture or the Food and Drug Administration. There was no evidence presented that the food processing plant which was the source of the food portions at France To You was unapproved by the Department of Agriculture or the Food and Drug Administration. The premises were then reinspected by Mr. Hoffman of the Dade County Department of Public Health, and the supervisor for the area, Mr. Petty, on September 3, 1986. That inspection revealed that food was still being prepared and served on the deck outside where people consumed it. There were no dishwashing facilities or three compartment sink to wash and sanitize any food service equipment. Hot and cold running water under pressure was not available where the food was prepared, which is required to minimize the possibility of hand- to-mouth contamination of food. There was not a second restroom available for patrons. While the inspection report and the testimony of Mr. Hoffman would indicate there were some other violations found that day, such as smoking in the food preparation area and the absence of a thermometer in the freezer cases, those matters are not charged in the administrative complaint and therefore not relevant in this proceeding. A reinspection, following up on that done by Mr. Hoffman and Mr. Petty on September 3, 1986, was performed by Mr.Louis Ron of the Dade County Public Health Department on September 9, 1986. Mr. Ron was accompanied again by Mr. Petty. At the time of the reinspection the violations which had been filed by Mr. Hoffman had not been corrected, i.e. there was still no three-compartment sink, there was only one restroom, and there was no hot water in the handwashing sink in the food preparation area. Mr. Ron inspected the premises again on January 16, 1987. At that time Mr. Ron observed microwave ovens which were dirty and had not been cleaned, that there was no facility for sanitizing utensils being used by the establishment, in that there was no dipper well for the ice cream service operation which then had been installed on the deck, but there was a handwashing sink for that ice cream service. While a three- compartment sink had been installed, there was no running water yet connected to it. Finally, another inspection of the premises took place by Mr. Hoffman on April 2, 1987. At that time, the food service operation had expanded to include grills and stoves installed on the deck for the preparation of food items such as hamburgers, hotdogs, chili, eggs and bacon, as well as ice cream being served at the deck. Photographs of these food service activities taken by Mr. Hoffman were admitted into evidence. There may be other food service establishments in the general Coconut Grove area which do not provide two public restrooms, such as the Subway Sandwich Shop.
Recommendation It is recommended that a Final Order be entered finding the facility to have violated Rules 10D-13.027(1) and 10D-13.027(5), Florida Administrative Code, and imposing an administrative fine of Four Thousand Five Hundred ($4,500) Dollars, pursuant to Section 381.112, Florida Statutes (1985). DONE AND ORDERED this 17th day of December, 1987, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4500M The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: France To You is a food service establishment as covered in the conclusions of law. Covered in finding of facts. Sentence 1 rejected because there is inadequate proof concerning whether the food source was approved by governmental entities other than the Dade County Health Department. Sentences 2 and 3 covered in findings of fact 2 and 7. Covered in finding of fact 4. Covered in findings of fact 5, 6 and 7. Rejected as unnecessary. Covered in finding of fact 4, except as to the coffee service, which is covered in finding of fact 6. Rejected due to the inadequate evidence concerning the licensure status of the food processor. Covered in findings of fact 10 and 11. Rejected as unnecessary, and because there is inadequate proof that the respondent sold any coffee to patrons. Covered in finding of fact 14. Covered in finding of fact 12. Covered in finding of fact 13. Covered in finding of fact 3. Covered in finding of fact 14, but relates only to assessment of penalty not to a violation. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Not adopted because Mr. Taylor's testimony concerning the availability of restrooms at other establishments is not relevant to determining whether the operation of France To You is one which requires two restrooms. Covered in finding of `fact 2. Covered in finding of fact 2. Rejected as unnecessary. Covered in finding of fact 13. Rulings on Respondent's Proposed Findings: Covered in findings of fact 5 through 7. That no inspector actually saw food being prepared, as opposed to food being consumed by patrons of France To You, is not significant. The evidence supports the inference that France To You was serving food. Rejected because inspectors observed patrons eating food at the establishment in August and September of 1986. Generally adopted in finding of fact 6. Although there is inadequate proof that the source of the food sold had received FDA approval, that is not the issue presented. To impose sanctions, the Department of Health and Rehabilitative Services had to prove that the source of the food had not received FDA approval, which it failed to prove. The burden of this finding is adopted in finding of fact 6. Rejected for the reasons given in ruling on proposal 1. Covered in finding of fact 9. Rejected because the inspection performed on January 16 indicated that there was no running water connected to the three-compartment sink. To the extent that the finding includes a proposal that there was a handwash sink with hot water is covered in finding of fact 13. Rejected because the evidence gives rise to the inference, which the Hearing Officer makes, that food was being served prior to January 1, 1987. Rejected as inconsistent with the testimony of the health department inspectors which has been credited. No findings have been made with respect to advertisements because it is unnecessary to do so. Omitted. Rejected because the type of licensure which France To You Food Service Corporation had for the facility on Mills Drive was not a license to process food to be sold elsewhere. Rejected as irrelevant. Whether other establishments may be violating the law does not excuse any violations by France To You. COPIES FURNISHED: Morton Laitner, Esquire Department of Health and Rehabilitative Services 1350 North West. 14th Street Miami, Florida 33125 Michael A. Vandetty, Esquire DIENER & SHAPIRO, P.A. 1790 West 49th Street Suite 312 Hialeah, Florida 33012 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the issues herein, HRS had jurisdiction over Respondent, which lawfully operates Hillhaven Convalescent Center, a nursing home facility in Sarasota, Florida. At all times pertinent hereto, the patient census at Hillhaven Convalescent Center exceeded 61. During the period July 13 through 15, 1982, an inspector employed by HRS conducted a survey of Respondent's facility. Among several deficiencies found, all of but one of which were corrected, was one indicating that the duties of the individual hired by Respondent as food services supervisor regularly included food preparation. The individual in question spent 24 hours of a 40 hour workweek as a full time cook. This deficiency was noted on the inspection report and brought to the attention of the provider's representative. A follow-up inspection of the facility was conducted by HRS representatives on February 15 through 17, 1983, at which time it was noted that the prior noticed deficiency had not been corrected. Though the number of hours the food services supervisor cooked had been reduced to 16 per 40 hour workweek, inspectors concluded this was still unsatisfactory and again cited the facility in the report for this as well as other deficiencies in the social services area. In a follow-up inspection on April 7, 1983, the inspector again found that the dietary services supervisor was acting as a cook for 16 or more hours per week. This deficiency was in addition to the continuing social services deficiencies which Respondent admits also continued. Hardy C. Kinney, a nutrition specialist with HRS and one of the individuals involved in the development of the agency's rules regarding food service which are allegedly violated here, indicated that as long as approximately six years ago, a committee was formulated within HRS to develop rules in the area of institutional food services such as here. The committee's concerns were to insure that the food service supervisor be a well trained individual whose job would be to consider the therapeutic nutritional needs of the patients--not to prepare and serve food. It was the feeling of the committee members, garnered from observations of other facilities where the supervisor does both, that when the food service supervisor is cooking and serving, he or she does not have the time to devote to proper patient care. There is a close relationship between food and diet and the welfare of the patient. When a patient is admitted to the facility, the physician writes that patient's nutritional orders. There is some variance permitted for taste and texture changes in the diet to make the food more interesting to the patient. Experience has shown that when the food is more interesting and attractive, the patient takes it better and thereby benefits from eating. As a result, the supervisor needs to talk with patients to determine the patients' preferences as to what foods they like and how they like it cooked. He or she also needs to spend the available work time working out strategies to meet the nutritional needs of the patients and supervising the procuring, receiving and storing of food. In short, the intent of the committee was to minimize the number of distractions the supervisor had to deal with as a nutritionist so as to promote proper patient food care. Mr. Kinney indicated the idea of the committee which developed the rule in question was not to block totally the participation of the supervisor from food preparation in emergency situations. However, it was most definitely the intent of the rule drafters that the food preparation and service was not to be even a minuscule portion of the supervisor's duties, except for emergencies. According to Mr. Kinney, even if a food services supervisor works one hour per week in a nonemergency situation, if this requirement is written into the job description, or is accomplished as a routine task on a recurring basis, the agency considers it a primary duty which is prohibited by the rule in question. It is pertinent to note here that in the instant case, the inspectors were not in any way contending that the rule violation resulted in a diminishment of patient care. To the contrary, Mr. Mitchell, the then incumbent food services supervisor, had, in general, done all that was required. He was not able to accomplish it all in the normal work time, however. His work schedule during the period December 10, 1982, to February 24, 1983, was as follows: Dec. 10-16: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Dec. 17-23: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Dec. 24-30: 16 hrs. cook; 16 hrs. off; 16 hrs. supervise = 50 percent cook Dec. 31-Jan. 6: 16 hrs. cook; 24 hrs. off; 16 hrs. supervise = 50 percent cook Jan. 7-13: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Jan. 26-27: 8 hrs. cook; 8 hrs. supervise = 50 percent cook Jan. 28-Feb. 3: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Feb. 4-10: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook Feb. 11-17: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Feb. 18-24: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook From the above, it can readily be seen that during the period in question, prior to and just subsequent to the first inspection, the food services supervisor spent between 50 and 66 percent of his time in food preparation and service.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Respondent be fined $100 for the violation alleged in the administrative complaint dated April 22, 1983, and $100 each for the violations alleged in Paragraphs (3)(b), (c) and (d) in the administrative complaint dated June 16, 1983, for a total of $400. RECOMMENDED this 3rd day of November, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1983. COPIES FURNISHED: Robert P. Daniti, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 406 Tallahassee, Florida 32301 Stephen H. Durant, Esquire 3000 Independent Square Jacksonville, Florida 32202 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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. At all times material to this case, the Respondent was a restaurant holding Food Service license number 5807127 and operating at 1900 Summit Tower Boulevard, Orlando, Florida 32810. On June 5, 2006, Gayle Braska, a sanitation and safety inspector employed by the Petitioner, performed a routine inspection of the Respondent at which time there were at least four employees engaged in food preparation. Ms. Braska determined that there was no certified food manager present on the premises at the time of the inspection and cited the deficiency in an inspection report. The report was provided to the Respondent at the time of the inspection as acknowledged by the signature of Restaurant Manager Brigitte Graffuis. The report indicated that correction of the cited deficiency, as well as others not relevant to this proceeding, was required by the time of the "next unannounced inspection" of the establishment. On October 5, 2006, another inspection of the establishment was conducted, this time by Petitioner's Inspector Cecilia Chiu, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent had no certified food manager present on the premises. The deficiency was again cited in an inspection report, which was provided to the Respondent at the time of the inspection as acknowledged by the signature of Ms. Graffuis. The report indicated that a callback inspection would occur on November 5, 2006, by which time the Respondent was required to correct the cited deficiency, as well as others not relevant to this proceeding. On November 7, 2006, a callback inspection of the establishment was conducted by Ms. Chiu, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent still had no certified food manager present on the premises. The deficiency was cited in the callback inspection report which was provided to the Respondent at the time of the inspection as acknowledged again by Ms. Graffuis. The report stated that correction of various deficiencies was required by the time of the "next unannounced inspection" of the establishment, but specifically stated that correction of the food manager certification deficiency was required by January 5, 2007, and that documentation of certification could be faxed to the Petitioner's offices before that date. The Petitioner received no documentation of compliance with the food certification requirements by fax or by any other means of delivery. On April 9, 2007, Ms. Chiu conducted another inspection of the establishment, at which time there were at least four employees engaged in food preparation. According to Ms. Chiu's inspection report, the Respondent still had no certified food manager present on the premises. The deficiency was cited in the inspection report, which was provided to the Respondent at the time of the inspection as acknowledged by Restaurant Manager Anne Boughey. On May 2, 2007, the Petitioner issued an Administrative Complaint against the Respondent for noncompliance with the certification requirement. Respondent's Exhibit A is a certificate stating that Ms. Graffuis had passed the "Food Protection Manager Certification Examination" on June 13, 2001, and was certified for a five-year period, expiring on June 13, 2006. The first inspection at which the Petitioner cited the Respondent for noncompliance with the certification requirement occurred on June 5, 2006, approximately one week before Ms. Graffuis' certification expired. The evidence establishes that the Respondent failed to provide evidence of certification to any of the Petitioner's inspectors at the time of the inspections. No documentation of food manager certification was provided by the Respondent to the Petitioner until the hearing conducted on September 6, 2007. There is no evidence that Ms. Graffuis advised Ms. Braska that she was apparently certified at the time of the June 5 inspection. There is no evidence that there was any certified food manager present in the restaurant at the time of any inspection occurring after June 13, 2006.
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 $500 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 7th day of December, 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 7th day of December, 2007. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Jose A. Blanco, Certified Legal Intern Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Hasselberger Natures Table Cafe 1900 Summit Tower Boulevard, Suite 190 Orlando, Florida 32810 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William 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 At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330047. Respondent’s license authorizes Respondent to operate a public food service establishment known as La Segunda Bodegita del Medio at 833 Southwest 29th Avenue, Unit 3, Miami, Florida 33135 (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Pedro Ynigo was an experienced and appropriately trained investigator employed by Petitioner as a Senior Sanitation and Safety Specialist. Mr. Ynigo’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Mr. Ynigo performed two routine inspections of Respondent’s establishment during the times material to this proceeding. The initial inspection was on December 6, 2004. The follow-up inspection was on January 11, 2005. The initial inspection listed a series of violations and gave Respondent until January 6, 2005,3 to correct each deficiency. The follow-up inspection determined that the following deficiencies, which had been cited in the initial inspection, had not been corrected. Each violation is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non-critical violation is one that does not rise to the level of a critical violation. Petitioner established that on January 11, 2005, Respondent was guilty of three critical violations and three non-critical violations. The three critical violations were as follows: Respondent’s food manager did not have a food management certificate. At the times of the inspections, Respondent’s food managers were Ormundo and Claudia Roque. Neither Mr. or Mrs. Roque had received a food management certificate. The failure of Respondent’s food managers to have his or her food management certificate constituted a violation of Section 509.039, Florida Statutes, and Florida Administrative Code Rule 61C- 4.023(1) as alleged in Paragraph 5 of Petitioner’s Administrative Complaint. Respondent could not provide proof that its employees had undergone training. This inability to produce proof of employee training constituted a violation of Section 509.049, Florida Statutes, as alleged in Paragraph 6 of Petitioner’s Administrative Complaint. Respondent’s facility had no hot water in the toilet room hand sink. The lack of hot water in the toilet room sink constituted a violation of Section 5- 202.12 of the Food Code, as alleged by Paragraph 1, of Petitioner’s Administrative Complaint. The three non-critical violations were as follows: There was no backflow preventer on the hose bibb over the mop sink. The failure to have the required backflow preventer constituted a violation of Section 5-203.14 of the Food Code as alleged by Paragraph 2 of Petitioner’s Administrative Code. The mechanical ventilation in the toilet room was not functioning. The absence of required ventilation in the toilet room constituted a violation of Florida Administrative Code 6-304.11, as alleged in Paragraph 3 of Petitioner’s Administrative Complaint. Respondent had constructed an additional seating area in its facility without submitting plans for the additional seating to Petitioner for its review. The failure to submit the plans constituted a violation of Florida Administrative Code 61C-1.002(5)(B) as alleged in Paragraph 4 of Petitioner’s Administrative Complaint.
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 the violations alleged in paragraphs 1 through 6; disciplining Respondent for those violations by imposing a fine in the total amount of $2,600.00; and requiring Respondent's majority owner to attend, at his or her own expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 9th day of January, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2006.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
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 the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, 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 SUNCOM 278-9675 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, 2006.
