The Issue The issue in this case is whether Respondent violated provisions of the Food Code, and, if so, what penalties should be imposed.
Findings Of Fact At all times relevant hereto, Respondent was licensed as a public food establishment in the State of Florida by the Division. Respondent held license no. 1505960 in the name of China No. 1 (the "Restaurant"), located at 3014 West New Haven Avenue, Melbourne, Florida 32904. The Division is the state agency responsible for the licensing and regulation of public food service establishments pursuant to chapter 509, Florida Statutes (2011).1/ Ms. Schoenly is employed by the Division as a sanitation and safety inspector. In that capacity, she conducts inspections of food service and lodging establishments for compliance with the provisions of chapter 509 and the Food Code. Prior to becoming an inspector for the Division, Ms. Schoenly worked for 17 years with McDonald's restaurants, including two years as a crew person and 15 years in management. Upon taking a position with the Division, Ms. Schoenly received training in the laws and rules utilized for food and lodging inspections. She continues to receive education in this area on a monthly basis. When Ms. Schoenly conducts an inspection of a restaurant, she looks for both critical and non-critical violations. Critical violations are those that will likely lead to food-borne contamination and food-borne illness. A non-critical violation is less likely to lead to food-borne illness or contamination. Ms. Schoenly performs in excess of 700 inspections per year as part of her job. On April 18, 2011, Ms. Schoenly performed a routine inspection of the Restaurant. Routine inspections are performed on a regular basis by the Division. Routine inspections are done without prior notice to the operator or owner of the restaurant to be inspected. During the routine inspection, which commenced at approximately 1:45 p.m., Ms. Schoenly found a number of violations, including two critical violations and several non-critical violations. The Restaurant was provided notice of the violations and was allowed to correct some of them while Mr. Schoenly was still present. Upon completion of the inspection, Mr. Schoenly gave Mr. Ni a copy of the Food Inspection Report she had filled out. The report specified all areas of non-compliance and indicated that a follow-up or call-back inspection would be performed on June 15, 2011, at 8:00 a.m. Unlike the routine inspections, restaurants are given prior notice concerning call-back inspections. On June 15, 2012, Ms. Schoenly, accompanied by Edwin Weimer, another inspector, returned for the call-back inspection. They arrived during the lunch hour, at 12:31 p.m., rather than 8:00 a.m., as set forth on the initial Food Inspection Report. The Restaurant was not open at 8:00 a.m., thus, necessitating a later visit than originally scheduled. During the call-back inspection, Ms. Schoenly found that a number of the violations from the prior visit had been corrected. However, there were still three critical and three non-critical violations extant. The critical violations were: 03A-07-1 A corn starch and water mixture was stored at a temperature of 81º (it had been at 68º during the initial inspection). 08A-28-1 Noodles were stored on the floor in boxes in a dry storage area. 08A-29-1 Egg rolls and broccoli were stored in uncovered containers. 22-22-1 A can opener was badly soiled. The non-critical violations found during the call-back inspection were: 23-07-1 Soiled gaskets in the reach-in cooler; food debris on and under the shelving; and, a heavy grease build-up under the refrigeration unit. 14-47-1 Cutting boards were grooved and pitted. 15-35-1 Heavily soiled cardboard on shelves. As a result of Ms. Schoenly's findings, an Administrative Complaint was issued against the Restaurant. Mr. Ni, owner of the Restaurant, disputes the findings made by Ms. Schoenly and Mr. Weimer. 03A-07-1 (Food Code Rule 3-501.16(A)) Ms. Schoenly found the corn starch mixture to be at unacceptable temperatures. Food should be stored at 41º or lower or 135º or higher. Once food is removed from its controlled temperature environment, it can be stored at room temperature for up to four hours. However, in order for a restaurant to keep food outside its storage area, there must be a written time record posted on the wall clearly delineating how long the food had been outside the temperature-controlled environment. During the initial inspection by Ms. Schoenly, there was no time/temperature control form on the wall at the Restaurant. Ms. Schoenly explained the form to Mr. Ni so he could use it in the future. The Restaurant did have a time/temperature control form posted during the call-back inspection. Mr. Weimer testified that the form was not complete because there was no signature on it. However, Mr. Ni said his signature was on the second page of the report. Mr. Weimer said he did not take the form down off the wall to see if there was a signature on the second page. Ms. Schoenly and Mr. Weimer testified they could not tell how long the food had been out of its protected environment. However, inasmuch as the Restaurant opens at 11:00 a.m., and the inspection was conducted at 12:45 p.m., it is doubtful the corn starch mixture had been out for more than four hours. The Division did not prove by clear and convincing evidence that the Restaurant had violated this standard. 08A-28-1 (Food Code Rule 3-305.11) Ms. Schoenly found dry noodles being stored on the floor of a dry storage area in the Restaurant. The noodles were stored in what Ms. Schoenly described as "a box." The box was not open to the best of her recollection, but she could not specifically remember.2/ Mr. Ni said the noodles were stored in five-gallon buckets that had originally held Kikkoman soy sauce. The soy sauce buckets are waterproof and had lids on them. The buckets were sitting on the floor of the dry storage area, but they were protected from cross-contamination. It is impossible to ascertain from the contradictory evidence whether the noodles were stored in such a fashion as to allow for cross-contamination from other sources. Thus, the Division did not meet its evidentiary burden as to this critical standard. 08A-29-1 (Food Code Rule 3-305.11) Ms. Schoenly found egg rolls and washed broccoli stored in the walk-in cooler without being covered. The egg rolls were in wire baskets, and the broccoli was in a plastic food container called a Cambro, a plastic box. She saw that as a possible means of cross-contamination with other foods or items stored nearby, because "anything can drip on the food." Mr. Ni said the egg rolls were stored in wire baskets on the top shelf in the walk-in cooler so that nothing else would drip on them. The egg rolls were available to re-stock the buffet line during the lunch rush. The broccoli was stored in the case in which it had been delivered to the Restaurant. It is not clear from the evidence exactly where in the walk-in cooler the broccoli was being stored at the time of the inspection. The Division met its burden of proof as to the existence of uncovered egg rolls. However, any potential violation is mitigated by the fact the egg rolls were stored on the top shelf and were being actively removed from the cooler as part of the lunch-time operations. The evidence is not conclusive as to how the broccoli was stored, but Ms. Schoenly's recollection, supported by her notes, indicates it was not stored properly. Mr. Ni did not provide substantive rebuttal to that fact. 22-22-1 (Food Code Rule 4-101.11) The can opener being used by the Restaurant was heavily soiled, thus, creating a hazard for possible food contamination. Mr. Ni said the can opener is old, but that even after he cleaned it, the can opener still looked dirty. The Division met its burden of proof as to this critical standard. 23-07-1 (Food Code Rule 4-101.111) Ms. Schoenly found three potential violations under this portion of the Food Code: Soiled gaskets in the reach-in cooler; food debris on or under the shelving; and heavy grease buildup under the refrigeration unit. She could not remember at what part of the inspection process she saw these violations. Mr. Ni said the gaskets had been cleaned with soapy water and bleach, but because they are old, they do not appear clean. The Division met its burden of proof as to the non-critical standards concerning food debris and heavy grease, but not as to the soiled gaskets. 14-37-1 (Food Code Rule 4-501.12) There was a cutting board used in the Restaurant that was heavily pitted with long, deep grooves in it. Ms. Schoenly found the cutting board to be unacceptable, because it could not be cleaned or sanitized adequately after each use due to the depth of the grooves. Mr. Ni sanded the cutting board between the initial inspection and the call-back inspection to alleviate the problem. At the time of the call-back, Ms. Schoenly found the cutting board to still be in an unacceptable condition. The Division met its burden of proof as to this non-critical standard. 15-35-1 (Food Code Rule 4-101.111) During the initial inspection and again at the call-back, Ms. Schoenly found heavily soiled cardboard on the shelving used for storing items in the Restaurant. The cardboard was an allowable means of covering the shelves, but it would need to be discarded once it became soiled. Mr. Ni said the cardboard was soiled because it had been used that day, but that it was to be discarded that very day. His testimony in that regard is not credible. The Division met its burden of proof as to this non-critical standard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, finding Respondent, No. 1 China, guilty of violating one critical and four non-critical Food Code standards. A fine of $650.00 shall be paid by No. 1 China within 30 days of entry of the final order in this matter. DONE AND ENTERED this 17th day of July, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 17th day of July, 2012.
Findings Of Fact At all times material hereto, the Respondent has been licensed as an ACLF by the Petitioner. During an inspection of Respondent's facility by Loveda Perry, public health nutritionist, on October 29, 1986, Perry observed a large, industrial size can opener which was used during food preparation. The can opener was dirty, and the gears and blade of the opener were filled with food and metal shavings. Perry considered the food to be old since it appeared that the food had built up and caked on the opener. On a revisit to the facility on November 12, 1986, Perry found that the can opener was clean. During an inspection of Respondent's facility on November 9, 1987, Perry again found the can opener was dirty, with built up food deposits and metal shavings on the blade and gears. There was also a build up of old food on the base of the can opener. On a revisit to the facility on March 21, 1988, Perry found that the can opener was clean. Metal shavings and a food build up on a can opener is likely to lead to the build up of bacteria, and can lead to food borne illnesses. According to Respondent's Administrator, it was the policy of the facility to clean the can opener once a week during the time these inspections took place. At the current time, however, employees are instructed to clean the can opener three to five times a day. In order to meet the minimum standards established by the Petitioner for ACLFs, can openers have to be cleaned after each use.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order imposing an administrative penalty against the ACLF license of Respondent in the amount of 325.00. DONE AND ENTERED this 29th day of December, 1988, in Tallahassee, Florida. DONALD D. CONN 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 29th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4755 Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Rulings on the Respondent's Proposed Findings of Fact: The Respondent filed a letter which summarizes testimony resented at hearing. The letter does not present specific proposed rindings of fact, but is generally contrary to Findings of Fact 2 through 5. COPIES FURNISHED: Edward Haman, Esquire Office of Licensure and Certification 7827 North Dale Mabry Tampa, Florida 33614 Delema Rogers, Administrator The Verandah 4301 31st Street South St. Petersburg, Florida 3371 Sam Power, Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact Petitioners operate an adult congregate living facility, meeting the definition set forth in Part II of Chapter 400, Florida Statutes, for such a facility. The facility is known as "Florida Happiness" and is located at 174 N.W. Second Avenue, Homestead, Florida. On February 22, 1988, Respondent notified Petitioners that their application for increased capacity and application for license renewal were denied due to multiple and repeated violations of minimum standards governing the operation of such facilities. Certain violations with regard to Petitioners' facility were discovered during the course of inspections conducted by Respondent's employees in January, April and August of 1987. Some of the violations found in January, 1987, were related to food service requirements and were uncorrected by Petitioners at the time of subsequent visits by Respondent employees in April and August of that year. The noted deficiencies were determined by Respondent to have been corrected as the result of another survey conducted on October 23, 1987, but Respondent's subsequent inspections conducted on January 11, 15 and 19, 1988, revealed some of those violations were again in existence. Among the violations found were: Facility income and expense records were not available for review. Also, resident contracts did not contain a refund policy addressing disposition of resident prepayments in the event of transfer of ownership of Petitioners' facility, closing of the facility or discharge of a resident. Petitioners did not provide evidence demonstrating that food service personnel received orientation, training or supervision in regard to their duties, or that such duties were performed in a safe and sanitary manner. Evidence also was not provided that the food service personnel participated in required in service education or possessed requisite knowledge of food and dietary requirements. With regard to therapeutic diets, no evidence existed that documentation of meal patterns, including types and amounts to be served, were properly filed, or that diets were served as ordered. Petitioners did not demonstrate that regular diets were planned or served to meet the nutritional needs of residents in accordance with current recommended dietary allowances. Existing menus did not depict realistic portion amounts or document availability of basic food groups. Menus presented did not show that the food served supplied sufficient calories or quantities. There was no documentation that dietary allowances were met by offering a variety of foods adapted to the food habits, preferences and physical abilities of residents. Petitioners made no showing that substitute foods with comparable nutritive value were planned and offered to residents who refused the normal fare. Menus were not dated and planned one week in advance. The required one week's supply of emergency food and water was not maintained at the facility. The fire alarm system was found to be inoperative and laundry rooms did not have self closing doors. Live roaches were found on kitchen shelves, thermometers in the refrigeration facilities of the kitchen were not functioning correctly, generally refrigeration facilities were soiled and roach infestations were evident. Pots and pans evidenced poor sanitation in that particles of foreign matter were found adhered to many of the containers. Written schedules for cleaning of dietary equipment were not in evidence or supplied to Respondent inspectors. Repeated food service sanitary code violations were corroborated by a Dade County Health Department inspector who found consistent problems with roaches, cleanliness and refrigeration thermometer equipment malfunctions at Petitioners' facility from later 1986 through the beginning of 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' application for increased capacity and relicensure. DONE AND ENTERED this 27th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 27th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1880 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. 3.-5. Rejected, not supported by the greater weight of the evidence. RESPONDENT'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. Addressed in finding 3. Addressed in finding 4. Addressed in finding 3. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services North Tower, Room 526 401 North West Second Avenue Miami, Florida 33128 S. Skip Taylor, Esquire 239 North East 20th Street Miami, Florida 33137 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact During the applicable time period, the Respondents held a valid Division license for L'Orient Express Restaurant, license number 39-0587R, located at 4815 West Laurel Street, Tampa, Hillsborough County, Florida 33607- 4507. This license will expire on February 1, 1989. On December 19, 1988, the premises of the restaurant were inspected by Kristine Turnbull, an Environmental Health Specialist. Ms. Turnbull is employed by the Hillsborough County Health Unit, which is part of the Department of Health and Rehabilitative Services. During the inspection, Ms. Turnbull tested egg rolls, pork, and shrimp within the restaurant in order to determine whether these foods were being kept at the proper temperatures which would prevent such foods from becoming contaminated. The tests performed by Ms. Turnbull revealed that these foods were being kept at temperatures of 60 degrees F., 50 degrees F., and 50 degrees F., respectively. Ms. Turnbull observed ten to fifteen roaches run out of the dishwashing machine during the inspection. The Respondents have made an effort to prevent roach infestation by employing Doug Boyer's Pest Control, Inc. The premises are sprayed for roaches by the company on a monthly basis. In between these scheduled visits, Mr. Le sprays for roaches after the restaurant is closed at night. Ms. Turnbull observed fresh rat droppings in the restaurants storeroom during the inspection. Beds and blankets were found within the premises by Ms. Turnbull. However, the platform which the inspector believed was a bed, was actually a makeshift stage used for live band performances. This stage was wrapped in colorful cloths for decorative purposes. On the date of the inspection, the dishwashing machine was not working properly. Insufficient amounts of chlorine were dispensed into the water which was supposed to clean and sanitize the dishes, glassware, and eating utensils. Once the Respondents learned of the problem, the machine was promptly repaired and restored to working order. Floors, walls, and ceilings were found to be poorly maintained and in need of extensive cleaning. Ms. Turnbull found the stove, the stove hood, the fryer, and the wok covered with a thick grease film which appeared to have been built up over an extended period of time. This equipment, along with the slicer and knives used in food preparation, were in need of extensive cleaning. Old food was encrusted in areas of the slicer and knives where such build up could occur. The conditions observed by the inspector are contrary to the sanitary practices set forth in Chapter 10D-13, Florida Administrative Code. All food service establishments in Florida are required to adhere to these sanitary practices. The rules were promulgated by the Department of Health and Rehabilitative Services pursuant to Chapter 381, Florida Statutes. Based upon the rule violations discovered during the inspection, L'Orient Express Restaurant was condemned by Donald Kwalick, Director of the Hillsborough County Health Unit, on December 20, 1988. On December 20, 1988, the Director of the Hillsborough County Health Unit sent a memorandum to the Director of the Division. The memorandum informed the Director that L'Orient Express Restaurant had been closed. Restaurant conditions which caused the director of the county health unit to close the restaurant were described in the memorandum. The Director of the Division issued a Notice to Show Cause why the licensed issued by the Division should not be suspended or revoked, based upon the condemnation of the restaurant, and the conditions described within the memorandum. Three prior consent orders have been issued by the Petitioner against the Respondents for sanitary code violations at L'Orient Express Restaurant within a ten month period.
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated June 19, 2007, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Respondent, Demills Family Restaurant (hereinafter referred to as "Demills Family Restaurant" or "establishment"), a public food establishment, is licensed and regulated by the Division. The establishment's license number is 2200535. Demills Family Restaurant is located at 6501 Park Boulevard, Pinellas Park, Florida 33781. Larry Burke is employed by the Department as a senior sanitation and safety specialist. Upon being employed with the Department, Mr. Burke was trained in laws and rules for both food service and public lodging establishments. Mr. Burke is certified as a food manager and attends continuing education on a monthly basis. As part of his job responsibilities, Mr. Burke conducts approximately 1000 inspections a year, many of which include inspections of public food establishments. On April 26, 2007, Mr. Burke conducted a routine unannounced inspection of the Demills Family Restaurant. During the inspection, Mr. Burke observed several violations at the establishment which were critical violations that were required to be corrected within 24 hours. Mr. Burke set forth his findings in a Food Service Inspection Report on the day of the inspection and provided a copy of the report to Debra Nunez, one of the owners of the establishment. A violation of the Food Code or other applicable law or rule, which is more likely than other violations to contribute to food contamination, illness, or environmental health hazards, is considered a critical violation. In the April 26, 2007, Food Service Inspection Report, Mr. Burke specified that certain critical violations had to be corrected within 24 hours. However, there were other critical violations observed on April 26, 2007, for which the owners of the establishment were given a warning and an additional 30 days to correct the violations. On April 27, 2007, Mr. Burke conducted a call-back inspection at the Demills Family Restaurant to determine if the critical violations he had observed the previous day had been corrected. During the "call back" inspection, Mr. Burke observed that all the critical violations found during the April 26, 2007, which were required to be corrected within 24 hours, had been corrected within that time period. Also, some of the non-critical violations observed on April 26, 2007, had been corrected when the "call-back" inspection was conducted. (The violations cited in the April 26, 2007, routine inspection and that were corrected during the call-back inspection the following day are not at issue in this proceeding.) During the April 27, 2007, call-back inspection, Mr. Burke prepared a Callback Inspection Report on which he noted violations first observed during the routine inspection conducted on April 26, 2007, but which had not been corrected on April 27, 2007. In accordance with applicable guidelines, Mr. Burke issued a warning to the establishment's owners and gave them 30 days or until May 27, 2007, to correct the uncorrected violations observed on April 27, 2007. This warning appeared on the April 27, 2007, Callback Inspection Report which was given to Mrs. Nunez. On May 31, 2007, Mr. Burke performed a second call-back inspection at Demills Family Restaurant. During this call-back inspection, Mr. Burke observed and cited the violations previously cited on the April 27, 2007, Call-Back Inspection Report that had not been corrected. These violations are discussed below. Violation No. 02-13, one of the uncorrected violations, involved the establishment's failure to provide a consumer advisory on raw/undercooked meat. This violation was based on information provided by personnel in the kitchen that hamburgers in the establishment are "cooked to order." In light of this policy, there are some customers who will likely order hamburgers that are undercooked. In those instances, pathogens may not be eliminated from the meat. Thus, establishments, such as Respondent, are required to inform customers of the significantly increased risk of eating such meat. After the May 31, 2007, call-back inspection and prior to this proceeding, the owners of the establishment posted signs throughout the dining room area which warned customers about the risks of consuming raw or undercooked foods (i.e., meats, poultry, seafood, shellfish or eggs). Violation No. 02-13 is a critical violation, but not one that is required to be corrected within 24 hours. Rather, this was a critical violation because it was a repeat violation after it was not corrected within the 30-day call-back period. Violation No. 32-15-1, one of the uncorrected violations, involved Respondent's failure to have hand-wash signs at the sinks designated for use by employees. The display of hand-washing signs at these sinks is important because it reminds employees to wash their hands, which helps prevent the transmission of food-borne disease by employees. This was a critical violation because it was a repeat violation and one which was not corrected within the 30-day call-back period. Mr. Nunez does not dispute that at the time of the May 31, 2007, call-back inspection, there were no hand-wash signs. However, since that time, he has placed signs that notify employees to wash their hands. These signs are placed at all hand-wash sinks used by employees, including the one in the cooks' kitchen and in the waitresses' station, and are clearly visible to the employees. The establishment also has hand-wash signs at all sinks in the establishment, including those used by customers. Violation No. 37-14-1, an uncorrected violation, was based on part of the ceiling in the establishment being in disrepair. Specifically, the section of the ceiling that was in disrepair was above a food storage area which contained "open food product." This offense is not classified as a critical violation under the Food and Drug Administration or under Florida law. Mr. Nunez does not dispute that part of the ceiling in the establishment was in disrepair at the time of the May 31, 2007, call-back inspection and the previous April 2007 inspections. Although Mr. Nunez was aware of the problem, he had to rely on the landlord of the building in which the establishment was located to repair the roof. The problems with the roof contributed to the ceiling being in disrepair. Finally, after about four years of asking the landlord to repair the roof, after the May 31, 2007, call-back inspection, the landlord had the roof repaired. The roof repairs are still not complete. However, based on the roof repairs that were completed by early to mid September 2007, Mr. Nunez was able to repair the section of the ceiling at issue in this proceeding. These ceiling repairs were completed by or near the middle of September 2007. Violation No. 37-14-1, an uncorrected violation, was based on Mr. Burke observing that the establishment's exit sign in the dining room was not properly illuminated. The requirement for exit signs to be illuminated is a safety issue. This was a critical violation because it was a repeat violation and one that was not corrected within the 30-day call-back period. Mr. and Mrs. Nunez do not dispute that at the time of the call-back inspection of May 31, 2007, the exit sign was not illuminated. The problem was caused by a problem with a wire in the sign. The person who does electrical work in the establishment had been out-of-town for several weeks and was unavailable to repair the exit sign. However, about three days after the May 31, 2007, call-back inspection, after the repair person returned, he repaired the exit sign; since then, it is properly illuminated. Violation No. 47-16-1, an uncorrected violation, was based on Mr. Burke observing an uncovered electrical box. The box needed to be covered to protect the breaker and to protect the employees and anyone else who had access to the box. This uncorrected violation was a critical violation at the time of the May 31, 2007, call-back inspection. Mrs. Nunez does not dispute that there was an electrical box that was uncovered on May 31, 2007. However, Mrs. Nunez testified that during the initial walk-through in April 2007, Mr. Burke showed her the uncovered electrical box that was located above the walk-in freezer. At that time, the cover was off the electrical box and the wires were exposed. Mrs. Nunez thought that the electrical box above the walk-in freezer was the only electrical box that was cited as a violation after the April 27, 2007, call-back inspection. Based on that understanding, that violation was corrected. However, during the May 31, 2007, call-back inspection, Mr. Burke showed Mrs. Nunez another electrical box in the establishment that was in violation of applicable provisions. Until that time Mrs. Nunez had not been told, and was not aware, that the second electrical box constituted a violation. This mistake on her part was likely caused by the fact that the structure of the second electrical box was completely different from that of the electrical box over the walk-in freezer. The electrical box over the walk-in freezer had wires which were exposed when the box was not covered. On the other hand, the second electrical box resembles a fuse box and did not have any exposed wires. Violation No. 28-02-1 involved the reuse of single- service articles. This violation is based on Mr. Burke observing Respondent's employees reusing plastic food containers, such as the ones sour cream and cottage cheese are in when delivered to the establishment. Such plastic containers should not be used once the food is exhausted. The reason is that the plastic in such containers is not "food service grade for sanitation purposes." Violation No. 28-02-1 is a non- critical violation. The owners of the establishment do not contest Violation No. 28-02-1, related to the reuse of single-service articles. Mrs. Nunez testified that she purchased containers that could be reused and instructed appropriate staff to use those containers. After being given those instructions, the employees told Mrs. Nunez that they were no longer reusing containers for single-service articles although they were doing so. However, as a result of the violation cited during the May 31, 2007, call-back inspection, Mrs. Nunez is committed to checking to ensure that employees are not reusing the plastic containers for single-service articles. Violation No. 61-13-1 is based on Mr. Burke observing that no Heimlich sign was posted in the establishment. The purpose of the Heimlich sign is to provide information in the event a customer in the restaurant is choking. This is a non- critical violation because it makes customers aware in the event of a choking situation. In July 2007, Mr. Nunez left his job as a project engineer to become involved in the day-to-day operations of the Demills Family Restaurant after he realized there were problems at the restaurant that required his attention. Among the issues Mr. Nunez had to initially deal with were the violations cited in the May 31, 2007, Call-Back Inspection Report. Throughout the initial inspection and the call-back inspections, the owners have cooperated with Mr. Burke and corrected most of the violations for which the establishment was cited. Mr. Burke has not conducted an inspection of the Demills Family Restaurant since the May 31, 2007, call-back inspection. However, since that time, all the violations which are the subject of this proceeding have been corrected.
Recommendation Based on the foregoing 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, Demills Family Restaurant, violated Food Code Rules 3-603.11, 4-502.13(a) and 6-301.14; Florida Administrative Code Rules 61C-1.004(2)(C), 61C-1.004(6) and 61C-1.004(10); and NFPA Rule 70.300.31. Imposing a total administrative fine of $2,800 for the foregoing violations. Requiring Respondent (through its employees and/or owners) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2007.
