The Issue The issues in DOAH Case No. 10-1704 are whether Respondent, Stacked Subs (Respondent), committed the violations alleged in the Administrative Complaint dated November 5, 2008, and, if so, what penalty should be imposed. Similarly, the issues in DOAH Case No. 10-2445 are whether Respondent committed the violations alleged in the Administrative Complaint dated June 24, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2009). At all times material to the allegations of these cases, Respondent operated as a public food service establishment subject to Petitioner’s jurisdiction. In his capacity as an inspector for Petitioner, Alfonso Rullan visited Respondent’s place of business (2054 State Road 436, Winter Park, Florida) on December 19, 2007. During the inspection, Mr. Rullan noted several food service violations that he memorialized in an inspection report provided to, and signed by, Mr. Nevarez. The violations, more fully described in Petitioner's Exhibit 2, required correction. It was contemplated that Respondent would correct the violations of the Food Code such that on second inspection the violations would no longer be found. Since the inspection revealed “critical” violations, it was incumbent on Respondent to timely correct the violations noted in the inspection report. “Critical” violations are violations that, if left uncorrected, can contribute to food contamination, food-borne illness, or adversely affect public health. Thus, “critical violations” must be timely corrected, as they are a present concern. Violations that could lead to critical violations are denoted as “non-critical.” These “non- critical” violations must also be corrected, but they do not constitute a present threat to the public On March 12, 2008, Inspector Will Goris returned to Respondent’s place of business and completed a second inspection report, denoting critical violations uncorrected from the prior inspection and itemizing the concerns that required correction. Mr. Nevarez signed the report. This report, Petitioner’s Exhibit 3, chronicled ten violations of the Food Code. Subsequently, Petitioner issued an Administrative Complaint (DOAH Case No. 10-1704), outlining the uncorrected and critical violations Respondent had failed to timely address. Respondent timely contested the complaint and sought an administrative hearing in connection with the allegations. Between December 2007 and March 12, 2008, Respondent failed to correct the following violations: Cheese in the reach-in cooler at the front counter was 51 degrees; Employees reported to work and handled food without first washing hands; The prep table was adjacent to the fryers and under the hood was encrusted and greasy; and Single service cups were stored on the floor by the register. Of the foregoing violations, the failure of employees to wash their hands prior to handling food was the most critical violation. This violation was noted by both inspectors. On January 26, 2009, Inspector Goris conducted a routine inspection of Respondent’s premises. On this date, minor violations of the Food Code were again noted, but Mr. Nevarez was given a “met inspection standards” review for this visit. Nevertheless, Petitioner expected Respondent to correct the non-critical violations in a timely manner. On June 17, 2009, when Inspector Goris presented at the restaurant, violations were discovered that led to the second Administrative Complaint, DOAH Case No. 10-2445. Two of the violations were deemed repeat violations, and two were critical violations directly related to public safety; to wit: the soda disperser had slime on it, and proof of employee food- handler training was not available. Respondent timely challenged the Administrative Complaint in DOAH Case No. 10-2445. As to all alleged violations, Respondent was provided adequate notice of the allegations and was provided sufficient time to correct deficiencies. Respondent maintains that inspectors should be trained in abuse of power as their inspections can be discretionary and arbitrary. For example, Respondent claimed that the sleeve of cups on the floor by the cash register had merely fallen there when the inspector cited the violation. Respondent’s claim of abuse of power was unsupported by factual evidence. Moreover, the inspections performed by both inspectors documented objective criteria unrelated to opinion or subjective review. For example, dirty, greasy, or encrusted food surfaces were documented. The failure of employees to wash their hands was documented. The inadequate or incorrect temperature of containers of food was documented. These are not subjective items, but were disclosed to Respondent during and at the time of inspection. It is determined that the inspectors’ testimony was credible and persuasive as to the violations cited. The "Food Code," as it is used in this record, refers to paragraph 1-201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C-1.001. The Food Code is also available through the U.S. Food and Drug Administration Internet website.
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 Respondent in the amount of $1,750.00 for the violations listed in DOAH Case No. 10-1704 and $1,000.00 for the violations identified in DOAH Case No. 10-2445. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper guidelines are adopted and implemented at the restaurant. DONE AND ENTERED this 5th day of October, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 5th day of October, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida Carlos Nevarez Stacked Subs 32399 2054 State Road 436 Winter Park, Florida 32792 Reginald Dixon, 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 this case are whether Respondent violated Florida Administrative Code Rule 61C-1.004(2)(b) and the following provisions of the Food Code: 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.11, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of public food service establishments, pursuant to section 20.165 and chapter 509, Florida Statutes. The Restaurant is and has been at all times material to this proceeding licensed by the Department, license number 58- 11330. The Restaurant is owned by Shea Lowe (Mr. Lowe) and is located in Eatonville, Florida. On April 14, 2010, Dennis Watson (Mr. Watson), an inspector for the Department, made a routine inspection of the Restaurant. Mr. Watson found that the temperature of the pancake batter that was being used on the cook line was 67 degrees, Fahrenheit (F.); the temperature of the sausage on the cook line was 64 Degrees, F.; eggs were being held on the cook line for more than 30 minutes at a temperature greater than 45 degrees, F.; the gaskets/seals on a cold holding unit were in poor repair; lights in the food storage area were missing proper covers; the vacuum breaker was missing at the hose bibb outside the back door; and the door to the men's restroom was not tight- fitting and self-closing. The Restaurant was given a warning for the violations found during the April 14, 2010, inspection. The Restaurant was given until June 14, 2010, to correct the violations. On June 15, 2010, Mr. Watson returned to the Restaurant for a call-back inspection. Mr. Watson found the following violations: the gaskets/seals on the cold holding unit were in poor repair; the vacuum breaker was missing at the hose bibb outside at the back door; the pancake batter and sausage were being held on the cook line for more than 30 minutes at temperatures greater than 41 degrees, F.; raw eggs in the shell were held on the cook line for more 30 minutes at room temperature; food in the glass door coolers were held at temperatures between 49 and 53 degrees, F.; the lights over the food storage rack/kitchen were missing the proper covers; and the door to the men's restroom was not tight-fitting and self- closing. The failure to maintain the food in the coolers at 41 degrees, F.; the failure to maintain raw, shell eggs at a temperature of 45 degrees, F.; the failure to keep the pancake batter and sausage on the cook line at the proper temperature; the failure to install a vacuum breaker on the hose bib outside the back door; and the failure to have a self-closing door for the men's restroom are critical violations. Rule 61C- 1.005(5)(a) defines "critical violation" as a violation which poses a significant threat to the public health, safety, or welfare and which is identified as a food-borne illness risk factor or a public health intervention. Mr. Lowe acknowledged that the coolers were not working properly and has since replaced the coolers. He bought a self- closing latch for the restroom door, but the door will not self- close because the door frame does not fit the door, and he cannot afford to repair the door. He now keeps the eggs in the cooler until time to cook them. He has purchased some covers for the lights, but he did not know if they were in place when the inspections took place. The failure to have a self-closing door in the men's restroom and the failure to maintain the gaskets on the cooler door are non-critical violations. Both inspection reports were signed by persons other than Mr. Lowe. Mr. Lowe was not present for either inspection. The Restaurant has been previously disciplined by a Final Order entered on December 2, 2008, based on Stipulation and Consent Order entered into by the parties.
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, finding that Lowe's Good Eaton Restaurant violated rule 61C- 1.004(2)(B) and Food Code Rules 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.114-50; and imposing an administrative fine of $500 for each of the three critical violations and $250 for each of the two non-critical violations for a total administrative fine of $2,000. DONE AND ENTERED this 14th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 14th day of December, 2011.
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several statutes and rules 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 Respondent Latin America Cafeteria, Inc. ("Cafeteria") is a licensed food service establishment. As such, Cafeteria is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"). On three occasions——February 11, 2005; February 15, 2005; and March 21, 2005——an inspector for the Division named Jorge Gandolff inspected a restaurant located at 2940 Coral Way in Miami, Florida, which establishment was operated by Cafeteria. During each visit, Mr. Gandolff noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. As of March 21, 2004, the following deficiencies subsisted: (1) Ready-to-eat, potentially hazardous food had been held more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(A)i; (2) The reach-in freezer door was not durable under normal use conditions, in violation of Food Code Rule 4-201.11; (3) The walk-in cooler door was in poor repair, in violation of Food Code Rule 4-501.11; (4) The gaskets in the walk-in door were in poor repair, also in violation of Food Code Rule 4-501.11; (5) There was no chemical test kit available for persons using chemical sanitizer at three compartment sinks, in violation of Food Code Rule 4-302.14; (6) There was a missing vacuum breaker on the hose bibb at the cookline, in violation of Food Code Rule 5-203.14; (7) Walls in the dishwashing area were soiled with accumulated debris, in violation of Florida Administrative Code Rule 61C-1.004(6); (8) Lights in the rear area of the kitchen lacked the proper shields, sleeve coatings, or covers in violation of Food Code Rule 6-202.11; and (9) Although four or more employees were engaged in food preparation, there was no currently certified food service manager on duty, in violation of Florida Administrative Code Rule 61C-4.023(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Cafeteria guilty in accordance with the foregoing Recommended Order; (b) ordering Cafeteria to pay an administrative penalty in the amount of $3,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days after the filing of the final order with the agency clerk; and (c) directing Cafeteria to send an appropriate principal to an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 2nd day of November, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2005.
The Issue The issues in this case are whether Respondent has violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11, and, if so, what discipline should be imposed.
Findings Of Fact Mama B.’s is a restaurant located in Orlando, Florida. The Department is the state agency which is charged with the licensing and regulation of public food establishments in Florida pursuant to Section 20.165 and Chapter 509, Florida Statutes. On July 13, 2005, Andrea Piel, an inspector for the Department, went to Mama B.’s to perform a food service inspection. Ms. Piel found that the sandwich cooler located at Mama B.’s was not maintaining potentially hazardous food at 41 degrees Fahrenheit or below. Specifically, she found that the temperature of the ham, turkey, and seafood in the reach-in cooler was 47 degrees Fahrenheit. The temperature of the salami in the reach-in cooler was 50 degrees Fahrenheit, and the temperature of the pepperoni and pastrami stored in the reach-in cooler was 48 degrees Fahrenheit. The temperature of the cheese in the reach-in cooler was 42 degrees Fahrenheit. On the same inspection, Ms. Piel also found that hot foods were not being held at a temperature of at least 135 degrees Fahrenheit. She found the following on the front line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at 112 degrees Fahrenheit, and cooked onions at 130 degrees Fahrenheit. On her inspection on July 13, 2009, Ms. Piel also observed that Mama B.’s was not using proper cooling methods to cool hot food from 135 to 41 degrees Fahrenheit within six hours. Steak was being cooled in deep containers with tight fitting lids. Ms. Piel saw tomatoes being stored less than six inches above the floor. There was ready-to-eat cheese, which had been rewrapped and undated, stored in a cooler. On July 13, 2009, Mama B.’s was given a warning by Ms. Piel, and a call-back inspection was scheduled for July 14, 2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the call-back inspection. She again observed that tomatoes were being stored about an inch off the ground. There was food being stored in the sandwich cooler at temperatures above 41 degrees Fahrenheit. The cooler contained ham and salami at 48 degrees Fahrenheit; capicola and seafood at 50 degrees Fahrenheit; turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro meat at 45 degrees Fahrenheit. On July 15, 2009, Ms. Piel also saw steak and onions, which were being cooled in deep containers with tight fitting lids. She also saw hot pastrami being held at 125 degrees Fahrenheit. Ms. Piel testified that the pastrami being held was not for orders waiting to be filled. Ms. Piel did not explain how she knew that there were no other orders for pastrami sandwiches. Mr. Adamik, an owner of Mama B.’s who was present at the time of the July 15, 2009, inspection, testified that there were several orders for pastrami sandwiches, which were being filled at the time Ms. Piel observed the pastrami. According to Mr. Adamik, the rolls were already placed on the board awaiting the placement of the pastrami, but, because the preparation area was so small, it was impossible to completely prepare more than one pastrami sandwich at a time. Mr. Adamik’s testimony is credited. The pastrami, which Ms. Piel observed, was being used for immediate service in response to consumer orders. The cooler in which the food was being stored above 41 degrees Fahrenheit had been in operation at Mama B.’s since the late 1990’s. The machine cools from beneath and does not also cool from the top as newer models do. After the violations were noted on July 15, 2009, the old cooler was replaced. Mama B.’s had contacted a repairman after the July 13, 2009, inspection, but the cooler could not be repaired so as to make it cool foods at 41 degrees Fahrenheit or less. Mr. Adamik knew that the location of the tomatoes was a violation, but he did not correct it by the July 15, 2009, because he was busy trying to get the cooler repaired. Mr. Adamik had no explanation why the ready-to-eat food, which had been opened at Mama B.’s, did not have appropriate date marks. Violations of Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B) are considered to be critical violations by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the violation of Food Code Rule 3-305.11; imposing a fine of $300 for the violation of Food Code Rule 3-501.15; imposing a fine of $500 for the violation of Food Code Rule 3-501.16(A); and imposing a fine of $400 for a violation of Food Code Rule 3-501.17(B). DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2010.
The Issue The issue in this case is whether on October 23, 2013, and May 6, 2014, Respondent was out of compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, as alleged in the Amended Administrative Complaint, and if so, what penalty is appropriate.
Findings Of Fact The Division is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. At all times material to this case, Respondent was licensed as a public food service establishment, operating a restaurant located at 1658 North Federal Highway, Boca Raton, and holding license number 6020868. Ms. Tara Palmer has been employed by the Division for almost five years. She is presently a Senior Sanitation and Safety Specialist with the Division. Prior to her employment with the Division she was employed in the food industry for approximately 20 years. She has had training in sanitation and inspection, standardized training regarding the Food Code, on- the-job training, and continual monthly education. She performs approximately 1000 inspections yearly. On October 23, 2013, Ms. Palmer conducted a food service inspection on Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on October 23, 2013, Respondent's Roma and Alfredo sauces had been prepared the previous day, placed in tightly covered 22 quart gallon containers, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the sauces were 52°F. Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3-501.15. The improper cooling method deficiency was deemed a violation that required further review; however, same was not an immediate threat to the public. Respondent was notified that the observed violation must be corrected by December 24, 2013. On January 8, 2014, Ms. Palmer performed a "call-back" inspection. On that date, the improper cooling deficiency observed on October 23, 2014, had been corrected. On May 6, 2014, Ms. Palmer conducted a food service inspection of Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on May 6, 2014, Respondent's spicy and Pomodoro sauces had been prepared the previous day, placed in a tightly covered 22-quart gallon container, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the spicy sauce was 48°F at the start of the inspection and 47.5°F at the end of the inspection. The Pomodoro sauce was found to be 48°F at the start of the inspection and 47.3°F at the end of inspection. Again, Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3- 501.15. No evidence was introduced to indicate that Respondent had any previous violations. No evidence was introduced to refute the above-noted deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Italio East Boca, LLC, d/b/a Italio, in violation of two intermediate violations, and imposing a fine of $400, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2014.
The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Harrison’s is licensed by the Division as a permanent food service establishment. Harrison’s license number is 6213138. Laura Kennedy, a sanitation and safety inspector for the Division, conducted a routine inspection of Harrison’s on March 16, 2005. Based upon her inspection, Ms. Kennedy documented 28 areas in which Harrison’s was in violation of the statutes and rules governing restaurant operations. One of the violations, No. 35A-01, was based upon Ms. Kennedy’s observation of ten dead roaches in Harrison’s dry storage area. She required Harrison’s to correct that violation within 24 hours. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on March 17, 2005, to determine whether the roaches had been cleaned up, which they had been. Ms. Kennedy gave Harrison’s 30 days to correct the remainder of the violations that she documented during her inspection on March 16, 2005. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on April 19, 2005, to determine whether the other violations had been corrected. During the inspection, Ms. Kennedy noted that some of the violations had been corrected, but that others had not been corrected. Five of the uncorrected violations were “critical” violations because, according to Ms. Kennedy, they posed an immediate threat to the public health. Three of the uncorrected violations were “non-critical” because, according to Ms. Kennedy, they posed a risk to the public health but not an immediate threat. The critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 45-17, 45-10, 45-30, 46-11, and 8A-04. Violation No. 45-17 was based upon Ms. Kennedy’s observation that the tag on the fire suppression system on the hood over the cooking area was out of date. The tag is supposed to be updated every six months, but the tag observed by Ms. Kennedy at Harrison’s was dated July 2003. Violation No. 45-10 was based upon Ms. Kennedy’s observation that the portable fire extinguishers were out of date. Fire extinguisher tags are supposed to be updated every year, but the tags on the extinguishers at Harrison’s reflected that two of them had not been inspected since December 2002 and another had not been inspected since July 2003. Violation No. 45-30 was based upon Ms. Kennedy’s observation that Harrison’s did not have the required inspection report for the fire suppression system for the hood over the cooking area. The purpose of requiring a current tag and inspection report on the hood fire suppression system and current tags on the portable fire extinguishers is to ensure that those devices are in good working order in the event of a fire. As a result, the out-of-date tags are considered to be critical violations. Violation No. 46-11 was based upon Ms. Kennedy’s observation that the emergency exit signs over Harrison’s side doors and the back door were not illuminated. This is a critical violation because the purpose of the illuminated signs is to guide restaurant patrons to an exit in the event of an emergency. Violation No. 8A-04 was based upon Ms. Kennedy’s observation of uncovered food in the walk-in cooler. This is a critical violation because uncovered food is subject to contamination. The non-critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 32-14, 22-02, and 23-01. Violation No. 32-14 was based upon Ms. Kennedy’s observation that there was no hand-washing soap at a sink in the kitchen. The absence of soap did not pose an immediate threat to the public health, but it is required so that employees involved in the preparation of food can wash their hands for their own hygiene and for the protection of the restaurant’s patrons. Violation No. 22-02 was based upon Ms. Kennedy’s observation of built-up of grease in the oven. Violation No. 23-01 was based on Ms. Kennedy's observation of built-up of grease on the sides of equipment in the cooking area. The built-up grease did not pose an immediate threat to the public safety, but cleanliness in the cooking area is important so as not to attract vermin and to prevent contamination of the food being cooked. Ms. Kennedy documented the violations described above on the Food Service Inspection Reports that she prepared at the time of her inspections. Copies of the reports were provided to Harrison’s at the end of each inspection, as reflected by the signature of Rafma Balla on each report. Mr. Balla is identified on the reports as Harrison’s manager/owner. The record does not reflect whether the violations described above have been corrected by Harrison’s since Ms. Kennedy’s last inspection on April 19, 2005. Harrison’s was provided due notice of the date, time, and location of the final hearing, but no appearance was made on its behalf at the hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order that: Imposes an administrative fine of $2,600 on Harrison’s for Violation Nos. 45-17, 45-10, 45-30, 46-11, 8A-04, and 32-14, payable on terms prescribed by the Division in the final order; and Requires Harrison’s to correct the critical violations related to the portable fire extinguishers, hood fire suppression system, and exit signs within 15 days of the date of the final order, and to provide proof thereof to the Division; and Requires Harrison's owner and/or manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 28th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 28th day of October, 2005.
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 Pita's Restaurant (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 (2010).1/ At all times material to this case, the Respondent was a restaurant operating at 8412 West Hillsborough Avenue, Tampa, Florida 33615, and holding food service license number 3912285. On October 28, 2009, Rich Decker (Mr. Decker), employed by the Petitioner as a sanitation & safety specialist, performed a routine 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 October 28, 2009, inspection, Mr. Decker noted the observed violations in an inspection report. The owner of the Respondent signed the report and received a copy at the time of the inspection. Mr. Decker advised the owner that a follow-up "callback" inspection was scheduled to occur on December 28, 2009, and that the violations needed to be corrected by that date. The callback inspection did not occur on December 28, 2009. Mr. Decker performed the callback inspection on January 5, 2010, and observed some of the same Food Code violations noted on the October 28, 2009, inspection report. At the conclusion of the January 5, 2010, inspection, Mr. Decker again noted the observed violations in an inspection report. The manager of the Respondent signed the report and received a copy at the time of the inspection. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed raw eggs being stored above prepared, ready-to-eat pita bread. This violation was deemed to be critical because raw food stored above ready-to-eat food can lead to bacterial contamination of the ready-to-eat food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed unidentified medicine being stored in a refrigeration unit along with food supplies. This violation was deemed to be critical, because the medicine could have contaminated the food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed prepared, ready-to-eat, and potentially-hazardous food being stored without having been date-marked to identify the last date upon which the food could be consumed. Prepared food has a limited shelf life during which it may be safely consumed. The failure to date-mark prepared food was a critical violation, because such failure may result in the consumption of unsafe food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed that there was no consumer advisory warning related to consumption of raw or undercooked foods posted on the premises. The Food Code requires the posting of such a notice, and the failure to comply is deemed a critical violation, because consumption of certain raw or undercooked foods poses a health risk to some consumers. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed an employee engaged in food preparation without wearing a hair net. Although food can be contaminated by human hair, this violation was deemed to be non-critical, because no immediate threat to human health was presented by the violation.
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 $1,350 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 20th day of May, 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 20th day of May, 2011.
The Issue The issue in this case is whether on July 14, 2011, and October 13, 2011, Respondent was in compliance with food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, and if not, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. Ms. Jessica Gabbard has been employed as a Sanitation and Safety Specialist with the Division for two years. She previously worked for the Department of Agriculture in the Bureau of Animal Disease Control for about eight years. She has had training, including monthly in-house training and field training in food inspection. She conducts between 600 and 800 inspections of food service establishments for safety and sanitation each year. Ms. Judy Hentges is a Senior Sanitation and Safety Specialist with the Division, where she has been employed for 12 years. She also has had training in food inspection, and conducts between 800 and 1000 inspections of food service establishments each year. Respondent is licensed as a permanent public food- service establishment operating as the Hong Yip Chinese Restaurant at 905 Southwest Main Boulevard, Lake City, Florida. As the hearing began, it became apparent that the owner of Respondent, Mr. Dong Jia Qi, who speaks very little English, was not present. Representing the restaurant was Mr. He Dong, manager of the restaurant, and son of the owner. Mr. Dong was present during the inspections that are the subject of this proceeding, interacted with Petitioner's agents on those occasions, and signed the inspection reports. Under all of the circumstances, including the fact that Mr. Dong demonstrated both knowledge of the applicable statutes and rules and the ability to capably and responsibly represent Respondent, Mr. Dong was accepted as both a Qualified Representative and as a witness. On July 14, 2011, Inspector Hentges conducted a food service inspection on Respondent. Inspector Hentges prepared an inspection report on her Personal Data Assistant (PDA) setting forth the violations that she observed during the inspection. During her July inspection, Ms. Hentges observed that Respondent was using dry, powdered food products that had been removed from their original containers and that the products' substitute working containers were not labeled with their common names. Storage of dry, powdered food products in unmarked working containers can cause mistakes in preparation that can be serious to consumers due to product allergies. The Division has determined such storage in working containers poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on the DBPR Form HR-5022-015, Food Service Inspection Report. Ms. Hentges observed during the July inspection that Respondent was storing rice and onions in uncovered containers in the walk-in cooler. DBPR Form HR-5022-015, Food Service Inspection Report, indicates that this is a critical violation. Uncovered containers can lead to food contamination by particles, by debris, and by microbes, and the Division of Hotels and Restaurants has determined that this constitutes a significant threat to the public health, safety and welfare. During the July inspection, Ms. Hentges observed a rice scoop on the buffet which was stored in standing water that was less than 135 degrees Fahrenheit, and noted this on the report. During the July inspection, Ms. Hentges also observed that a wet cloth used for wiping food spills from equipment surfaces was sitting on the counter and was not stored between uses in a chemical sanitizing solution, and noted this in her report. Wet wiping cloths can be breeding grounds for pathogens that can transfer to food. On October 13, 2011, Ms. Gabbard conducted a callback inspection on Respondent. She prepared a handwritten report on DBPR Form HR 5022-015 setting forth violations that she observed. Ms. Gabbard testified that she observed powdered food products at the cooking preparation line that had been removed from their original containers and placed in working containers not marked with their common names. She recorded this information in her report. Mr. Dong testified that he had corrected the labeling problem on the "big bucket" that stored the sugar, cornstarch, salt, and flours that had been written up in the July inspection. Mr. Dong testified that on the callback inspection the problem was written-up because of different products found in another area, on top of the reach-in cooler, in a see-through container containing peanuts, sesame seed, cashew nuts, and another Chinese product that is a dried root. Ms. Gabbard testified in cross-examination that she did not remember any nuts. Her report indicates "all powdered food products." The report further indicates this violation was "at cookline prepline." Ms. Gabbard's testimony is credited. The unlabeled products Ms. Gabbard observed and noted in her violations report were powdered products at the cookline that could easily be confused, not foods that could be easily and unmistakably recognized, such as peanuts, cashews, and sesame seeds on top of the reach-in cooler. Ms. Gabbard observed uncovered rice and onions in the walk-in cooler. She recorded this in her report. Mr. Dong provided no contradictory testimony at hearing. Respondent did testify that that the film he used to cover the rice and onions did not stick on the aluminum containers used to store the food. Ms. Gabbard observed a rice scoop at the buffet that was being kept in standing water which was less than 135 degrees Fahrenheit, noting this fact in her report. She took the temperature of the water and recorded that it was 45 degrees Fahrenheit. Mr. Dong testified that that they always keep ice in the water to keep it below 41 degrees Fahrenheit. He testified that the water had just been changed so that the ice may have just melted, though he thought ice was still present. He acknowledged that the water was 45 degrees Fahrenheit as measured with the thermometer. Mr. Dong's testimony that he recently put ice in the container is credible, and the temperature of the water would have been room temperature if this had not been done. The water in which the rice scoop at the buffet line was being stored was 45 degrees Fahrenheit. Ms. Gabbard also observed wet wiping cloths that were not being stored in sanitizing solution between uses, but were located in multiple locations on the counter. She recorded this in her report at the time of the inspection. Mr. Dong admitted the violation at the time of the July inspection. He testified that at the time of the callback inspection in October he was using one cloth and the rest were not in use, but had been cleaned and were hanging on the table to dry. In response, Ms. Gabbard testified that there were multiple cloths around the restaurant laying on the counter. Her testimony was corroborated by her inspection report, prepared at the time of the inspection, which noted, "[o]bserved wet wiping cloth not stored in sanitizing solution between uses. Repeat violation. Located in multiple locations on counter." Mr. Dong's testimony on this violation was less credible than Inspector Gabbard's, and her testimony is credited. The wet wiping cloths had not been cleaned, but had been used, and were not being stored between uses in a chemical sanitizer. Petitioner issued an Administrative Complaint against Respondent for the above violations on October 24, 2011. Additional evidence introduced at hearing showed that Respondent has had five previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. In the first Stipulation and Consent Order, signed by Mr. Dong on October 20, 2009, and filed on December 3, 2009, Respondent agreed to pay a fine of $500.00, but did not admit nor deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the second Stipulation and Consent Order, signed by Mr. Dong on January 8, 2010, and entered on March 2, 2010, Respondent agreed to pay a fine of $650.00, but again did not admit or deny the allegations of fact contained in the Administrative Complaint, some of which would have constituted critical violations. In the third Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the fourth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted a critical violation. In the fifth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a Final Order: Dismissing Counts 2 and 6 of the Administrative Complaint and Finding the Hong Yip Chinese Restaurant in violation of two critical and two non-critical violations and suspending its license for three consecutive days beginning the first Monday after 40 days from the date the final order becomes effective. DONE AND ENTERED this 6th day of November, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2012.
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.
The Issue The issue in this case is whether on June 23, 2014, Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant (Zorba's), was in compliance with food safety requirements set forth in administrative rules of Petitioner, Department of Business and Professional Regulation (Department), Division of Hotels and Restaurants, and, if not, what penalty is appropriate.
Findings Of Fact The Department is an agency of the State of Florida responsible for monitoring the operations of hotels and restaurants to ensure compliance with food safety and sanitation standards set forth in relevant statutes and rules. Zorba's is a licensed and regulated business under the jurisdiction of the Department's Division of Hotels and Restaurants. Zorba's business license number is 46-01794. Jonathan Johnson works for the Department as a senior sanitation and safety specialist. Mr. Johnson has worked for the Department for approximately four and one-half years. Before that, he worked for two years in restaurants. Mr. Johnson undergoes periodic training for his present position as an inspector. He is also a certified food manager. Mr. Johnson performs approximately 1,000 or more inspections for the Department annually. Mr. Johnson's training, experience, and demeanor make him a very credible witness. On May 6, 2014, at 5:09 p.m., Mr. Johnson inspected Zorba's restaurant. Mr. Johnson observed tomatoes, hummus, and cheese in the "reach-in" coolers behind the cook line at temperatures between 44ºF and 46ºF. Tomatoes, hummus, and cheese are "priority items," under the Food Code, making them "high priority items" under Florida Administrative Code 61C-1.001(17). § 3-501.16(A), Food Code. Under the Food Code, they must be held at a temperature below 41ºF. § 3-501.16(A), Food Code.2/ A "high priority violation" is a violation of the rules regulating a "high priority item" and is determined by the Department to pose a direct or significant threat to the public health. Fla. Admin. Code R. 61C-1.005(a). As a result of his inspection, Mr. Johnson prepared an inspection report setting forth his findings and issued Zorba's a warning. Mr. Johnson scheduled a callback inspection for May 7, 2014. Within 11 hours after receiving the inspection report, Zorba's employed a refrigeration repair company to inspect the restaurant's refrigeration equipment at a cost of $234.00. A service order, admitted as hearsay evidence, suggests the technician measured the ambient temperature of the walk-in cooler at 33ºF and the reach-in cooler at 38ºF. Since the document is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Mr. Johnson returned to Zorba's on May 7, 2014, at 8:00 a.m. The cheese, tomatoes, and deli meat in the reach-in coolers were at temperatures between 44ºF and 46ºF. The walk-in cooler contained soups and sauces at temperatures between 48ºF and 50ºF and chicken and butter at 44ºF. At the conclusion of the inspection, Mr. Johnson told Ms. Euse about the violations and, again, issued Zorba's a warning. At this time, Mr. Johnson told Ms. Euse that all violations documented during the inspection needed to be corrected by June 23, 2014. He noted the violations were not an immediate threat to the public. Zorba's acknowledged the violations on both reports dated May 6 and 7, 2014. As a result of a stipulation, the Department issued a Final Order on May 16, 2014, imposing a fine of $200.00 for these violations. Mr. Johnson performed a callback inspection, as contemplated by the Final Order, at Zorba's restaurant on June 23, 2014. The inspection revealed that the cheese, tomatoes, and deli meat held within the reach-in cooler were at temperatures between 44ºF and 46ºF. Mr. Johnson prepared a Callback Inspection Report, which was signed by a Zorba's representative. The Callback Inspection Report recommended filing an Administrative Complaint. After receiving the non-compliance violation report, Zorba's contacted a different refrigeration repair company to perform an additional inspection of the refrigeration equipment. A service order, admitted as hearsay evidence, suggested that a technician measured the temperature of the reach-in cooler at 38ºF on June 30, 2014. Since it is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Ms. Euse replaced the restaurant's plastic storage containers with aluminum containers because the technician suggested it. The clear and convincing evidence proves that on June 23, 2014, Zorba held hazardous food at levels above the 41ºF standard required by section 3-501.16(A)(1) of the Food Code. Zorba's attempted to cooperate with the Department's inspection report by hiring refrigeration technicians to perform maintenance on and evaluate the subject coolers. Nonetheless, the Department presented evidence that Zorba's violated the Food Code on the day on which the inspection was conducted.
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 imposing a $500.00 fine upon Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant, for violations of the Food Code requirements. DONE AND ENTERED this 3rd day of November, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 3rd day of November, 2014.
