The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was a restaurant subject to Petitioner's regulation. That regulation required Petitioner to comply with all relevant provisions set forth in Florida Statutes, Florida Administrative Code, and the Food Code. Petitioner's license number is 1614578. Respondent's restaurant is located at 5001 North University Drive, Lauderhill, Florida (the subject premises). At the times relevant to this proceeding, Ana Rosa Castro was the manager of the restaurant. Two inspections of the subject premises are relevant to this proceeding. The first inspection was a routine inspection on December 15, 2009 (the routine inspection). Michele Schneider conducted the routine inspection. A callback inspection was conducted on February 24, 2010 (the callback inspection). Terrence Diehl and Tatiana Joy conducted the callback inspection. Ms. Schneider and Mr. Diehl are experienced and properly trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. For both inspections, an inspector prepared a report on a personal data assistant, printed the report at the establishment, and provided a copy of the report to the person in charge prior to leaving the establishment. The inspectors discussed the report with Ms. Castro and explained the reasons the violations were cited. The routine inspection report and the callback inspection report were admitted into evidence as Petitioner's exhibits 2 and 3, respectively. Ms. Schneider's report noted multiple violations, including the four violations that are issue in this proceeding. Ms. Schneider's report contained a warning that required Respondent to correct each cited violation on or before February 20, 2010, at 8:00 a.m. Ms. Schneider and Ms. Castro signed the routine inspection report. Mr. Diehl and Ms. Joy performed the callback inspection on February 24, 2010. Ms. Joy, working under Mr. Diehl's supervision,2 prepared the callback inspection report setting forth the findings she and Mr. Diehl made. Ms. Joy and Mr. Diehl reviewed the findings with Ms. Castro and explained to her the reasons for the violations identified in the report. Ms. Joy, Mr. Diehl, and Ms. Castro signed the callback inspection report. The four violations at issue in this proceeding had not been corrected following the routine inspection. Violations of the Food Code are classified as either critical or non-critical. Critical violations are violations that are likely to result in a food-borne illness or an environmental health hazard. Non-critical are violations of the Food Code that have not been classified as critical, and are less likely to contribute to a food-borne illness or an environmental health hazard. Each of the four alleged violations in this proceeding is designated a critical violation.3 Food Code Rule 3-501.16(A) requires that except in circumstances inapplicable to this proceeding, food shall be maintained at or below 41 degrees Fahrenheit. On December 15, 2009, and on February 24, 2010, the cook-line reach-in cooler was not maintaining potentially hazardous food at or below 41 degrees Fahrenheit. This is a critical violation because foods that are maintained above 41 degrees become a potential danger for the growth of bacteria that could harm a consumer of the food. Food Code Rule 6-301.14 requires a food establishment to have a sign or poster at a sink used by food service employees notifying the employees to wash their hands. There was no such signage posted during the routine inspection or the callback inspection. This is a critical violation because employee hand-washing is a basic requirement for good hygienic practices, and the sign reminds employees of the requirement that they wash their hands before returning to work. Food Code Rule 7-102.11 requires that "working containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies shall be clearly and individually indentified with the common name of the material." The routine inspection noted the following as a violation: "[o]bserved unlabeled spray bottle dishroom [sic]." On the callback inspection, Mr. Diehl observed several unlabeled bottles that had liquids in them. There was no evidence as to what type liquids were in the spray bottles. Specifically, there was no evidence that the unlabeled spray bottles had to be labeled because they were "containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies." Pursuant to section 509.049(5), Respondent was required provide training of its employees and was required to provide proof of such training to an inspector. On December 15, 2009, Ms. Castro could not provide proof to Ms. Schneider that her employees had been trained. On February 24, 2010, Ms. Castro could not provide proof to Ms. Joy and Mr. Diehl that her employees had been trained. The testimony of Mr. Diehl established that this failure is a critical violation because untrained employees may not be aware of the importance of proper hygiene and proper food handling, which can result in contaminated food and the exposure of the consumer to food-borne illness. On June 16, 2009, Petitioner filed an Administrative Complaint against Respondent in case number 2009032247. That Administrative Complaint contained five alleged violations of the Food Code, at least one of which was a critical violation. The alleged violations were resolved by the entry of a Stipulation and Consent Order filed July 21, 2009. By that action, Respondent agreed to pay an administrative fine in the amount of $1,200.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violation alleged in paragraph 3 of the Administrative Complaint. It is further RECOMMENDED that the final order find Respondent guilty of the violations alleged in paragraphs 1, 2, and 4 of the Administrative Complaint. It is further RECOMMENDED that Administrative Fines be imposed against Respondent in the amount of $600.00 for each of the three violations, for a total fine of $1,800.00. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2011.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2003). The Respondent is a restaurant located at 7658 Park Boulevard in Pinellas Park, Florida, holding Permanent Food Service license number 6210970. The Respondent is co-owned by Jeff Donato and Travis McHenry. On July 28, 2003, an employee of the Petitioner performed a routine inspection of the Respondent and found numerous violations of applicable Food Code regulations. The violations were noted in a four-page written report. The inspector provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for August 28, 2003. On August 29, 2003, the Petitioner’s employee re-inspected the Respondent and determined that although many of the violations had been remedied, some of the violations remained uncorrected. The continuing violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection. On September 26, 2003, the Petitioner filed an Administrative Complaint against the Respondent, alleging the various continuing and uncorrected violations identified during the inspections. During the inspections on July 28 and August 29, 2003, there were no disposable hand towels located at the hand sink in the kitchen area, and no other hand-drying system was present. Food Code Rule 6-301.12 requires that each hand-washing lavatory or group of adjacent lavatories be provided with individual disposable towels, a continuous towel system that supplies a user with a clean towel, or a heated-air hand-drying device. During the inspections on July 28 and August 29, 2003, the hand sink located in the dishwashing room was covered with plastic wrap and not available for use by employees. Food Code Rules 6-401.10 and 6-401.11 require that hand-washing facilities be located so as to permit convenient use by employees in food preparation, food dispensing and ware-washing areas. The violations related to hand washing and drying were described by the Petitioner's inspector as "critical," because proper hand washing and drying is required to prevent "cross- contamination of bacteria and viruses." During the inspections on July 28 and August 29, 2003, there were no shields on light bulbs in the walk-in cooler and freezer. Food Code Rule 6-202.11 requires that light bulbs be shielded, coated, or otherwise shatter-resistant in areas where there is exposed food, clean equipment, utensils and linens, or unwrapped "single-service and single-use articles." During the inspections on July 28 and August 29, 2003, there was a visible build-up of grease on ceiling tiles located near food fryers. Food grease provides fuel for fire and poses a fire hazard. Florida Administrative Code Rule 61C-1.004(6) requires that all building structural components, attachments, and fixtures shall be kept in good repair, clean, and free of obstructions. During the inspections on July 28 and August 29, 2003, the inspector observed a dish-room exit light that was without signage. Exit signs must be maintained for public and employee safety. Florida Administrative Code Rule 61C-1.004(10) requires that adequate means of exit from the facility must be provided, and all exits must be clearly marked with approved illuminated exit signs. During the inspections on July 28 and August 29, 2003, the inspector noted that there was no backflow prevention device on the hose bib in the kitchen area and dish-room. Food Code Rule 5-402.11 requires prevention of backflow between sewage systems and food-related equipment, and requires installation of a device to prevent the flow of waste materials into a potable water supply.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $2,400 against the Respondent. DONE AND ENTERED this 28th day of July, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2004. COPIES FURNISHED: Travis McHenry Jeff Donato 7658 Park Boulevard Pinellas Park, Florida 33781 Tonya Chavis, Esquire Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed the various violations charged in the Administrative Complaint, related to purported violation of various food service establishment sanitation and safety requirements under authority provided by Subsection 509.032.(1)(2), Florida Statutes; Section 509.261, Florida Statutes (2003), Florida Administrative Code Rule 61C-1.004, and Chapters 4 and 5 of the "Food Code" (adopted in Florida Administrative Code Rule 61C-1.004, by reference.)
Findings Of Fact The Division is an Agency of the State of Florida charged, in pertinent part, with regulating the operation of food service establishments in accordance with Chapter 509, Florida Statutes (2003), and Florida Administrative Code Rule 61C-1.004, et seq. Included within that area of regulation is the inspection of food service establishments, such as restaurants, to ensure that various food sanitation and safety requirements are complied with and to assess fines and penalties for violation of relevant rules related to food sanitation and safety. The Respondent at all times pertinent hereto has been a licensed restaurant under the Division's food service establishment jurisdiction, holding license number 56-01170-R. The Respondent's last known address is 99 Eglin Parkway, No. 42, Fort Walton Beach, Florida 32548. The Division inspector conducted an inspection of the Respondent's food service premises on April 25, 2003. Steven Kurz was the Division's inspector who carried out the initial inspection of the Respondent's premises on that date. Mr. Kurz noted approximately 18 deficiencies in terms of the Respondent's food service operation on that occasion. Thereafter, a follow-up second inspection was conducted on April 28, 2003. That second inspection was conducted by Mr. Phil Perez, Senior Sanitation and Safety Specialist of the Division. Inspector Perez believed that seven of the original noted 18 deficiencies found on the first inspection of April 25, 2003, still existed on April 28, 2003. He thus opined that there was (1) a dirty towel hanging on a rack over a three- compartment sink; (2) a dirty floor mixer/dough machine; (3) a dirty ice chute; (4) an unprotected or opened tooth pick container, accessible to the public; (5) a kitchen hand sink without hot water being connected thereto; (6) the exterior door of a walk-in refrigerator or cooler was dirty; (7) the "exit" sign for the restaurant was not illuminated; and (8) a cardboard box or boxes were stored over a gas hot water heater. Because of the deficiencies Mr. Perez found on the second follow-up inspection, the Division ultimately issued the subject Administrative Complaint on August 2, 2003. It alleges the remaining deficiencies as violations of Chapter 509, Florida Statutes, and the Administrative Rules promulgated thereunder. The Respondent disputed the allegations of the compliant and timely requested a formal proceeding. The Respondent concedes that a dirty towel was hanging near the sink in the back of the restaurant, as found upon the second inspection; however, he established that the towel was not used for wiping food surfaces or non-food equipment surfaces, but rather was used during the performance of maintenance on a piece of equipment. The Division has conceded, in accordance with this showing, that this was not a violation and has dismissed this portion of the complaint. Although the inspector found the dough machine and dough mixer to be un-cleaned at the time he inspected it, the Respondent showed that he inspected the machines during the lunch hour when they were busy using the machines. The Respondent established that the machines are cleaned thoroughly each day, but they obviously could not be cleaned while they were in active use mixing dough during lunch hour food preparation, or while they were about to be used. This explanation by the Respondent, which is accepted as credible versus the inspector's brief observation of the condition of the machines, shows that this violation did not occur. The machine is kept in a clean condition every day, except when it is actively used for mixing dough, which was the case in the instant situation. The Respondent has also been charged with having dirt or grime on the door of the walk-in cooler on the occasion of both inspections. Mr. Perez observed a discoloration on the door. The Respondent's testimony, which is accepted as credible, shows that the discoloration was in reality oxidation or some discoloration caused by the age of the aluminum metal with which the door is covered. It was not demonstrated that the discoloration was due to dirt, grime, or an unsanitary condition on the door and this violation has not been established. Respondent conceded that the exit sign light bulbs were burned out at the time of both inspections and were inoperative. He also admits to the sink in question not being in working order in terms of hot water being connected at the time of the inspections. The Respondent was however at the time of hearing currently repairing the sink. The Respondent also concedes that the tooth pick dispenser was broken and open, caused by customers reaching inside for tooth picks. He concedes that this was a violation, but had repaired the matter after it was brought to his attention. The Petitioner established that the soda machine ice chute was dirty on both the April 25 and April 28, 2003, inspections. This violation has clearly been established. It has also been established that the Respondent maintained storage of one or more cardboard boxes on top or above the heat- producing gas hot water heater, rendering the boxes as flammable hazards. The Respondent testified generally, and in mitigation, to the effect that the inspection occurred during a busy lunch hour and that it is impossible to keep all items cleaned while actively working in a restaurant during a lunch hour serving customers. The Respondent also established that the restaurant does use a check list for daily cleaning operations. The Respondent showed that, at the time of the second inspection, the Respondent was in the process of repairing the deficient items or conditions, inasmuch as the second inspection was only approximately three days after the initial inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the above- named agency assessing an administrative penalty in the amount of $1,000.00, payable in the manner prescribed in the final order entered herein. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of July 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Susan Wilkinson, Esquire Drew Winter, Esquire Department of Business and and Professional Regulation 940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jeff B. Moyer Godfathers Pizza 99 Eglin Parkway, No. 42 Fort Walton Beach, Florida 32548 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Geoff Luebkemann, Director Division of Hotel and Restaurants Department of Business and Professional Regulation Division of Hotel And Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-2022
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated October 20, 2008, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Respondent was a public food establishment, licensed and regulated by the Division. Respondent's license number is 5810388. Respondent's address is 2595 South Hiawassee Road, Orlando, Florida 32835. Norma Gordon is employed by the Division as a sanitation and safety specialist and has worked in that position for four years. Ms. Gordon's job responsibilities include inspecting public food establishments that are regulated by the Division. To effectively carry out job responsibilities, Ms. Gordon had been trained in the areas of Food and Drug standardization, as well as the laws and rules related to the Food Code. Moreover, Ms. Gordon has successfully completed certified manager training. As part of her job, Ms. Gordon participates in monthly continuing education. During her employment with the Division, Ms. Gordon conducts about 1,000 inspections annually. On July 22, 2008, Ms. Gordon conducted a routine inspection of the premises of China No. 1. During the inspection, Ms. Gordon observed about 15 violations, eight of which were deemed to be critical violations. Ms. Gordon set forth her findings and listed all the violations on a Food Service Inspection Report on the day of the inspection. That same day, Ms. Gordon provided a copy of the report to Frank Liu, food manager for Respondent. The Food Service Inspection Report notified Mr. Liu that a call back inspection would be conducted on September 22, 2008, to determine if the violations had been corrected. Mr. Liu signed the Food Service Inspection Report on July 22, 2008, acknowledging that he received a copy of the Inspection Report. On September 23, 2008, Ms. Gordon conducted a call back inspection of China No. 1. During that call back inspection, Ms. Gordon observed several violations that were reported on the Food Service Inspection Report issued on July 22, 2008, but that had not yet been corrected. Ms. Gordon recorded the uncorrected violations that she observed and verified during the September 23, 2008, callback inspection on a Call Back Inspection Report form. That Call Back Inspection Report was completed on September 23, 2008, and signed by Mr. Liu. The uncorrected violations observed and verified on September 23, 2008, are set forth below in paragraphs 9 through 13. The first uncorrected violation was that raw animal foods were not properly separated from each other in the holding unit. Ms. Gordon observed raw chicken stored above the raw beef and vegetables in the upright reach-in freezer. This was a critical violation because food must be protected from cross-contamination. For example, the raw chicken has salmonella, which requires that it be cooked at a certain temperature. Cross-contamination may occur when raw meat products are not separated from each other and/or are stored next to vegetables, because the meats and vegetables have different cooking temperatures. The second uncorrected violation was that Respondent did not have a thermometer available to measure the temperature of the food products. This is a critical violation because such a device is necessary to ensure that foods are prepared and maintained at appropriate temperatures. The third uncorrected violation was that the bathroom door in the establishment was being left open at times other than during the cleaning or maintenance of the facility. This is deemed to be a critical violation. The fourth uncorrected violation was that the restroom was in disrepair. Respondent's establishment had only one toilet. That one toilet had no handle or mechanical device that could be used to flush the toilet. Instead, there was a string tied to the toilet and the handicap bar in the stall. Somehow this mechanism was "rigged" so that in order to flush the toilet, a person had to pull the string that was tied to the handicap bar in the stall. The fifth uncorrected violation was based on the medium build-up of grease on the hood filters above the cooking area. This is a non-critical violation, but can become a critical violation if the equipment is not maintained and cleaned. If the equipment in the cooking area is not kept clean, dust, debris and other residue will accumulate and may fall in the cooking area and/or in the food being cooked. Respondent presented no evidence to establish that the violations described above were corrected on September 23, 2008. Moreover, Mr. Liu did not dispute the evidence presented. His testimony was that most of the violations were corrected in December 2008, which was after the call back inspection. Critical violations are violations that can contribute to food contamination, illness, environmental degradation and/or environmental hazard. Non-critical violations are those which, initially, do not pose an immediate threat. However, if such violations remain uncorrected, they may turn into critical violations. On or about March 21, 2008, the Division issued an Administrative Complaint against Petitioner alleging violations of Chapter 509, Florida Statutes, and/or rules promulgated thereto. The charges set out in that Administrative Complaint were based on inspections conducted on September 27, 2007, and February 27, 2008. No hearing was held in the matter. Rather, the matter was resolved in April 2008, pursuant to a Stipulation and Consent Order executed by the Division and Respondent. Pursuant to that Stipulation, Respondent agreed to pay a $2,300.00 fine and have its manager and employee attend the Hospitality Education Program.
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, China No. 1, violated Food Code Rules 3-302.11(A)(2), 4-302.12, 4-601.11(C) and 6-202.14; and Florida Administrative Code Rule 61C-1.004(2)(a) and (b); Imposing a total administrative fine of $5,000.00 against Respondent. The total administrative fine shall be paid to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 days of the agency entering its final order in this case; and Requiring Respondent (through its employees, owners, and/or managers) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 30th day of June, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2009.
The Issue Whether or not on April 27, 1987 the Respondent violated specific rules as alleged in its Notice to Show Cause dated May 27, 1987. BACKGROUND AND PROCEDURE At the commencement of formal hearing, Louis F. Petrillo sought to represent Respondent corporation as its qualified representative. Petitioner initially opposed this representation but subsequently withdrew its motion to disqualify. A resolution of the Respondent corporation, under its seal, authorizing Louis F. Petrillo to represent the corporation at formal hearing had previously been filed with the Division of Administrative Hearings. Upon the record, the undersigned inquired of the Respondent's president, Louis A. Petrillo, who acknowledged, under oath, that the resolution was authentic and that it was his desire, as the corporate president and the officer requesting formal hearing, that his father, Louis F. Petrillo, represent the corporation. 1/ Upon examination, the undersigned found Louis F. Petrillo to be a qualified representative to act for Respondent pursuant to Rules 22I-6.008 and 28-5.1055, Florida Administrative Code. Petitioner had admitted three exhibits and presented the oral testimony of Norman Hayes and David Petty. Respondent's motion to dismiss for failure to prove the allegations of the Notice to Show Cause made prior to Petitioner's completing its case in chief was denied without prejudice. The motion was not renewed. Official recognition was taken of a certified copy of Respondent's 1987 Annual Report. Petitioner requested that judicial notice be taken of Rules 7C-4.0001; 10D- 13.026(2) and (3); 10D-13.026(1)(m) and (5); 10D-13.027(4) ; 10D-13.027(5) ; 10D-13.027(8) ; 10D-13.028(2) ; 10D- 13.028(3) and 10D-13.028(4), Florida Administrative Code, and Respondent opposed the request. Petitioner was permitted to file copies of the aforesaid rules with a speaking motion for official recognition within five days of the conclusion of formal hearing, and same was filed. Thereafter, Respondent never filed any formal opposition thereto, and upon consideration that these are matters for which official recognition is mandated, official recognition has been granted. However, it is axiomatic that only those statutes and rules in effect on April 27, 1987 and charged in the May 27, 1987 Notice to Show Cause, may be prosecuted against or applied to Respondent in this present license disciplinary proceeding. Respondent offered no documentary evidence, but Messrs. Louis A. Petrillo and Louis F. Petrillo each testified orally. No transcript was provided. Petitioner filed proposed findings of fact and conclusions of law, the findings of fact of which have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), Florida Statutes. Respondent filed no post-hearing proposals.
Findings Of Fact The Notice to Show Cause, dated May 27, 1987, charges the following offenses existed on April 27, 1987: Violation of Florida Statutes, Section 509.032(1)(2) and (3). In particular, the following violations will be described and reference to the statutes, rules or regulation as follows: Florida Administrative Code - F.A.C. A. Violation of 10D-13.26(2)(3) , F.A.C. Failure to provide proper non-food contact surface. Repair loose door to deep fat fryer. B. Violation of 10D-13.26(1)(m)(5) F.A.C. Failure to provide chemical test kit. Violation of 10D-13.27(4) F.A.C. Failure to provide properly installed and main- tained plumbing. Reinstall kitchen lavatory. Violation of 10D-13.27(5) F.A.C. Failure to provide convenient, accessible, ade- quate toilet and handwashing facilities. Violation of 10D-13.27(5)(b) F.A.C. Failure to maintain and/or equipment [sic] restroom with proper handwashing and drying equipment. Violation of 10D-13.27(8) F.A.C. Failure to protect outer openings. Violation of 10D-13.28(2) F.A.C. Failure to provide properly maintained walls and attached equipment. Violaiton [sic] of 10D-13.28(3) F.A.C. Failure to provide proper shielding for kitchen ceiling lights. Violation of 10D-13.28(4) F.A.C. Failure to vent rooms and/or equipment required. The rules defining these offenses were all renumbered in August, 1987 and some rules were further amended. However, the rules as charged in the charging document and as in effect on the material date, April 27, 1987, govern this proceeding. Respondent, Petrillo Enterprises, Inc. d/b/a Chicken Unlimited (hereinafter Chicken Unlimited), license 23-186220, was licensed at all times material as a public food establishment at 6757 Bird Road, Miami, Florida, and remained licensed as of the date of formal hearing, although it had ceased operation before the date of hearing. On April 22, 1987, Chicken Unlimited was operating as a public food service establishment and David Petty, an Environmental Health Supervisor for the Dade County Department of Public Health, made out a food service inspection report reflecting Respondent's noncompliance with 16 sanitary regulations of Petitioner. He ranked each as a "minor" violation. Mr. Petty was not asked at hearing if he observed these violations on that day, but on the basis of his testimony concerning certain violations corrected while he was still present on April 22, 1987 and other violations observed again by him upon his revisit to the public food establishment on April 27, 1987, I infer that he actually observed the conditions cited in the April 22, 1987 inspection report, which conditions Petty considered to be code violations. On April 27, 1987, Chicken Unlimited was operating as a public food service establishment and Mr. Petty conducted a reinspection to determine whether the violations not corrected on April 22 had now been corrected. During the reinspection, Mr. Petty observed 10 of the prior conditions which had not been corrected. These were as follows: A loose door on the deep fat fryer had not been repaired. The kitchen lavatory needed to be reinstalled. The rear kitchen door had not been sealed to prevent the entrance of vermin; missing wall tiles had not been replaced in the kitchen; proper shielding had not been installed for the kitchen ceiling lights; sanitizing test papers had not been procured; and a current manager certification in food management was not displayed or produced by personnel on the premises. (The failure of certification was noted in the reinspection report but never charged in the Notice to Show Cause against this Respondent.) In Petty's opinion, Chicken Unlimited also had failed to provide convenient, accessible and adequate toilet and handwashing facilities on both inspection dates. The ventilator fan in the men's restroom was not working. Petty personally observed that the fan was not working and that a broken sink was in the restroom under a counter on the reinspection date. When challenged on cross-examination regarding his qualifications to determine whether the fan was working, since he is not an electrical engineer, Mr. Petty replied that "if you turn the fan on at the switch and the blades don't rotate, something is wrong." His observation was made from inside the men's room looking up into the fan. Mr. Louis A. Petrillo, president and manager, was not present on the premises while Mr. Petty was there either on April 22 or 27, 1987. Respondent did not refute any of Mr. Petty's testimony. Louis A. Petrillo testified that copies of the statutes and rules applicable to Chicken Unlimited were not provided to him by Petitioner at the time his license was issued and that his own employee who received copies of the inspection report on April 22, 1987 and of the reinspection report on April 27, 1987 failed to transmit them to him. He maintained that for these reasons, he was unable to maintain the Chicken Unlimited premises according to the applicable rules and was also unable to timely correct the violations once they were cited.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent corporation guilty of the following eight violations as charged in paragraphs A (one violation), B (one violation), C, D, F, G, H, and I, constituting eight violations, respectively, 10D-13.26(2), 10D-13.26(5), 10D-13.27(4), 10D- 13.27(5), 10D-13.27(8), and 10D-13.28(2), (3) and (4), and fining Respondent $100 per offense for a total of $800. DONE AND ENTERED this 1st day of June, 1988, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 1st day of June, 1988.
The Issue The issues are whether Respondent's dishmachine chlorine sanitizer was not at proper minimum strength, in violation of Food Code Rule 4-501.114(A); whether vacuum breakers were missing from hose bibs at the mop sink, in violation of Food Code Rule 5-203.14; and whether kitchen ceiling light fixtures hosted an accumulation of dead insects, in violation of Food Code Rule 6-501.112. If any of these violations are proved, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent operated a restaurant located at 1261 South Powerline Road in Pompano Beach, Florida, as a public food service establishment under Permanent Food Service license SEA1620854, profession 2010. On March 17, 2015, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered several violations. The violations included a dishmachine chlorine sanitizer that tested at zero parts per million, which is below proper minimum strength; a missing vacuum breaker at the hose bibb at the mop sink in the rear; and an accumulation of dead insects in the kitchen ceiling light fixtures. The first two violations are "high priority," and the third violation is "basic." The inspector gave Respondent until May 20, 2015, to correct these violations. On May 20, 2015, Petitioner's inspector conducted a followup inspection of Respondent's restaurant. The inspection uncovered several violations, including the three violations cited in the preceding paragraph. The inspector issued warnings for these three uncorrected violations, but gave Respondent an extension of time until July 21, 2015, to correct these violations. On July 21, 2015, Petitioner's inspector conducted a second followup inspection of Respondent's restaurant. The inspection uncovered three violations, which were the three violations cited in the preceding paragraphs. There were now two hose bibbs lacking vacuum breakers. The failure to maintain the proper strength of chlorine in the dishmachine sanitizer jeopardizes the process by which used items are cleaned and sanitized, so as to be free of pathogens, germs, and viruses. The failure to maintain a vacuum breaker, which creates an air gap in a water line, raises the possibility that dirty water will backflow into, and thus contaminate, a potable water line. The failure to remove the dead insects from the kitchen ceiling fixture poses a risk of attracting additional insects. In the 24 months preceding the issuance of the Administrative Complaint, Respondent had been the subject of one disciplinary order. By Stipulation and Consent Order filed October 21, 2014, Respondent agreed to pay an administrative fine of $840 to settle allegations of several Food Code violations, which Respondent neither admitted nor denied.
Recommendation It is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of the three violations set forth above and imposing a fine of $1875. DONE AND ENTERED this 8th day of February, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 8th day of February, 2016. COPIES FURNISHED: Blanca Balcazar Latin Bohemia Grill 1261 South Powerline Road Pompano Beach, Florida 33069 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 (eServed) Marc A. Drexler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 (eServed) Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
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.
