The Issue After the hearing had concluded, the Petitioner filed a Notice of Voluntary Dismissal in DOAH Case No. 12-2627. Accordingly, the remaining issues for consideration are whether the allegations of the Administrative Complaint filed in DOAH Case No. 12-2748 are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2012). At all times material to this case, the Respondent was a restaurant operating at 288 Windward Passage, Clearwater, Florida 33767. The Food Code identifies proper food storage temperatures for potentially-hazardous food products. The storage of such products at improper temperatures can result in bacterial contamination of the product and can cause serious illness in humans who consume contaminated products. Violations of food temperature regulations that present an immediate threat to public safety are deemed to be "critical" violations of the Food Code. At the hearing, Mr. Suarez acknowledged that the Respondent had been disciplined by the Petitioner for food temperatures in excess of those permitted by relevant Food Code regulations and that he had paid an administrative fine pursuant to a previous Final Order. On May 9, 2012, Christine Craig, a trained sanitation safety specialist employed by the Petitioner, performed a "callback" inspection at the Respondent. The violations referenced herein were identified by Ms. Craig as critical. The relevant portion of the Food Code requires that certain products be stored at temperatures of 41 degrees Fahrenheit or less. Previous inspections at the Respondent revealed that holding temperatures of some food products stored in a reach-in cooler and in a two-door glass upright cooler did not comply with the Food Code requirements. The purpose of the May 9, 2012, callback inspection was to determine whether food temperature violations indentified in the previous routine inspections had been resolved. During the callback inspection, Ms. Craig found that ham, chicken broth, and cream cheese were being held in the referenced coolers at temperatures in excess of 41 degrees Fahrenheit, which were critical violations of the Food Code. The Respondent did not dispute Ms. Craig's testimony or the results of her inspection.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $750 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012. COPIES FURNISHED: Mark Anthony Suarez Island Way Cafe 288 Windward Passage Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in the case are whether the allegations set forth in an Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Town and Country Skate World (Respondent) are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes (2011). At all times material to this case, the Respondent was a restaurant operating at 7510 Paula Drive, Tampa, Florida, 33615, and holding food service license number 3203942. On May 6, 2010, Rich Decker (Mr. Decker), employed by the Petitioner as a senior sanitation and safety specialist, performed a routine inspection (May 6 inspection) of the Respondent and observed conditions that violated certain provisions of the Food Code. Food Code violations are classified as "critical" or "non-critical." A critical violation of the Food Code is one that poses a significant threat to the public health, safety, or welfare and is a risk factor for food-borne illness. A non- critical violation of the Food Code is one that does not meet the definition of a critical violation. At the conclusion of the May 6 inspection, Mr. Decker noted the observed violations in an inspection report. A manager for the Respondent was present during the inspection. The manager signed the inspection report and received a copy of the report at that time. According to the inspection report, a follow-up "callback" inspection was scheduled to occur on July 6, 2010, prior to which critical violations were to have been corrected. On July 21, 2010, Kathy Dorsey (Ms. Dorsey), employed by the Petitioner as a senior sanitation and safety specialist, performed the callback inspection (July 21 callback inspection) and observed some of the same Food Code violations noted on the May 6 inspection report. At the conclusion of the July 21 callback inspection, Ms. Dorsey noted the observed violations in an inspection report. An employee of the Respondent present at the time of the inspection signed and received a copy of the callback inspection report. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. Pursuant to state regulations, the Respondent was required to have designated a certified food protection manager responsible for the operation of food service. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the designated food protection manager's certification had expired and that the Respondent was operating without a properly-certified food protection manager. This was a critical violation of the Food Code, because the lack of a properly-certified food protection manager presents a significant threat to the public health, safety, or welfare through the transmission of food-borne illness by improper food preparation. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that no thermometer to ascertain the temperature of food products was present, a critical violation. Foods held at improper temperatures are susceptible to development of bacterial contamination and are a risk factor for transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent, which utilized a chemical system for sanitation of dishes and utensils, had no chemical test kit provided at the location of the sanitation sink. The test kit is required to ascertain whether the composition of the disinfection liquid is appropriate and capable of sanitizing the items. This was a critical violation because improperly sanitized dishes and utensils pose a significant threat to the public health, safety, or welfare through the transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the gaskets located at the reach-in food refrigeration unit were soiled, a critical violation because the situation presents an opportunity for bacterial contamination of food products and transmission of food-borne illness. Sinks used for preparation of food products are not to be used for hand washing, and, accordingly, the Food Code prohibits having hand-washing aids at a food prep sink. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent had hand-washing materials located at a food-prep sink. This was a critical violation because dual use of sinks provides an opportunity for bacterial contamination of food or utensils and transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent's gas tanks (helium and/or carbon dioxide) were not properly secured, which was a non-critical violation of state regulations cited herein. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that ceiling tiles in the kitchen were water-stained, indicating the presence of an unidentified leak above the ceiling tiles, and other tiles were missing. These were non-critical violations of state regulations cited herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against the Respondent in the amount of $1,550. DONE AND ENTERED this 28th day of November, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Alan Blizard Town and Country Skate World 7510 Paula Drive Tampa, Florida 33615 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in these consolidated cases are stated in the counts set forth in the Administrative Complaint for each case: Whether Falcon Catering Service No. 7 (hereinafter "Falcon 7") and Falcon Catering Service No. 8 (hereinafter "Falcon 8") failed to maintain the proper protection and temperature requirements for food sold from their mobile site in violation of the federal Food and Drug Administration Food Code ("Food Code"). In the Prehearing Stipulation filed in this matter, each Respondent generally admitted to the violations in the Administrative Complaints, but suggested that mitigating factors should absolve them of the charges or greatly reduce any administrative fine imposed.
Findings Of Fact The Division is responsible for monitoring all licensed food establishments in the state. It is the Division's duty to ensure that all such establishments comply with the standards set forth in relevant statutes and rules. Respondents Falcon 7 and Falcon 8 are licensed mobile food dispensing vehicles. Falcon 7 has license No. MFD5852560, which was initially issued on April 23, 2005; Falcon 8 has license No. MFD5852642, which was issued on October 19, 2005. Each of the Respondents serves meals and snacks to, inter alia, laborers at construction sites. On or about March 13, 2009, the Division conducted a food service inspection on Falcon 7. At that time, the food truck was located at 4880 Distribution Court, Orlando, Florida. One of the Food Code violations found by the inspector was Item 53b. That citation meant there was no validation of employee training on the truck. A follow-up inspection was deemed to be required. On April 10, 2009, a follow-up inspection was conducted by the Division. At that time, Item 53b was cited as a repeat offense. Also, Item 8a was cited. Item 8a refers to protection of food from contaminants and keeping food at an acceptable temperature. Notes by the inspector indicate that a further violation of Item 8a occurred because customers were allowed to serve themselves directly from food containers, and there was no fan in operation during the serving of food. On May 28, 2009, another inspection of Falcon 7 was conducted. At that time, the food truck was located at 12720 South Orange Blossom Trail, Orlando, Florida. Item 8a was again cited as a deficiency. The inspector's notes indicate that food was not properly protected from contamination and that customers were being served "buffet style" from the back of the truck. The inspector noted that this was a repeat violation. A follow-up or "call-back" inspection was conducted on December 3, 2009, at which time the temperature in Orlando was unusually cold. The food truck was at the same address on Orange Blossom Trail as noted in the prior inspection. Falcon 7 was again found to have been serving food buffet style from the back of the food truck. An Item 8a violation was again noted by the inspector. Another inspection of Falcon 7 was conducted on January 19, 2010, another very cold day in Orlando. At that time, the food truck was located at the same site as the last two inspections. The inspector cited the food truck for an Item 8a violation again, stating that the food was not being protected from contaminants. Dust was flying up on the back of the truck to exposed food items. An inspection of Falcon 8 was conducted on August 25, 2009, while the truck was located at 4880 Distribution Court, Orlando, Florida. An Item 8a violation was noted by the inspector, who found that displayed food was not properly protected from contaminants. The food truck was located under an Interstate 4 overpass and was open to flying debris. The inspector noted that customers were being served buffet style and that there was no protection of food from contamination by the customers. A follow-up inspection for Falcon 8 was conducted on August 27, 2009, at 9:12 a.m., while the food truck was located at the same site. Another Item 8a violation was cited at that time. The violation notes indicate essentially the same situation that had been cited in the initial inspection two days earlier. Less than one hour after the follow-up inspection, another inspection was conducted on Falcon 8 at the same location as the prior two inspections. There were no Item 8a citations issued during this inspection, but the food truck was found to have no water available for hand washing. The food truck employee was using a hand sanitizer to clean her hands. Respondents do not dispute the facts set forth above. However, Respondents provided mitigating facts for consideration in the assessment of any penalty that might be imposed. Those mitigating factors are as follows: The food trucks were serving an inordinately large number of workers during the dates of the inspections. The City of Orlando was constructing its new basketball arena, and there were numerous laborers involved in the project. In order to serve the workers, it was necessary for the food trucks to put their food out on tables, rather than ladle the food directly from the food warmers in the food truck. In fact, the shelves in the food trucks are so narrow that dipping food out of the warmers would be impossible. Due to the cold weather in Orlando during this time, it was impossible to keep the food at acceptable temperature levels for very long. The large number of workers washing their hands at the food trucks caused the trucks to run out of water much more quickly than normal. When the water ran out, the employees took care to sanitize their hands as well as possible. Ms. Falcon testified that the inspector's testimony concerning use of tables to serve food was erroneous. However, Sabrina Falcon was not present during the inspections, and her contradictory testimony is not reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500.00 against Falcon Catering Service, No. 7, in DOAH Case No. 10-10925; and a fine of $750.00 against Falcon Catering Service, No. 8, in DOAH Case No. 10-10930. All fines should be paid within 30 days of the entry of the Final Order by the Division. DONE AND ENTERED this 10th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2011. COPIES FURNISHED: 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 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Sabrina Falcon Falcon Catering Service 642 Mendoza Drive Orlando, Florida 32825 Megan Demartini, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations alleged in the subject Administrative Complaints, and, if so, the penalties that should be imposed.
Findings Of Fact Chapter 500, Florida Statutes, is the Florida Food Safety Act. Petitioner is the agency of the State of Florida that is responsible for the administration and enforcement of Chapter 500. Section 500.032(1) provides as follows: [Petitioner] is charged with the administration and enforcement of this chapter in order to prevent fraud, harm, adulteration, misbranding, or false advertising in the preparation, manufacture, or sale of articles of food. It is further charged to enforce the provisions of this chapter relating to the production, manufacture, transportation, and sale of food, as well as articles entering into, and intended for use as ingredients in the preparation of food. Section 500.02(1) authorizes Petitioner to establish by rule conditions for the manufacturing, processing, packing, holding, or preparation of food and the selling of food at wholesale or retail. Pursuant to that authority, Petitioner has adopted by Florida Administrative Code Rule 5K-4.002(4), pertinent parts of the "2001 Food Code" and the "Supplement to the 2001 Food Code," published by the U.S. Public Health Service of the U.S. Department of Health and Human Services (the Food Code). The violations alleged by Petitioner in both administrative complaints, if proven, would constitute violations of the Food Code and, consequently, violations of chapter 500. At the times relevant to this proceeding, Respondent operated a convenience store located in Miami, Florida, that sold mostly pre-packaged food products at retail, but also provided ancillary food service (the facility). The facility had a retail sales area, a backroom storage area, a walk-in cooler, and an ice machine. The food service operation included a hot case unit that prepared pre-cooked ready-to-eat food products in individual portions for consumption and drinks such as milk, juice, sodas, and beer. Violations of the Food Code can be categorized as "critical" or "non-critical". As compared to a non-critical violation, a critical violation typically involves unsanitary conditions that are more likely to cause physical harm to a consumer or someone handling a product. June 22, 2010 Inspection Jorge Ojeda, a sanitation and safety specialist employed by Petitioner, performed a routine inspection of the facility on June 22, 2010. Mr. Ojeda's inspection revealed numerous food safety violations, including violations that are deemed critical violations. The following are the critical violations found by Mr. Ojeda on June 22, 2010: Rodent droppings were present in the walk-in cooler and retail area; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils or equipment in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other non-critical violations included general disrepair of the facility, holes in walls, standing water, mold on the ice machine, and failure to maintain equipment. During the June 22, 2010, inspection, Mr. Ojeda issued a Stop Sale Order for the meat patties in the hot case unit until the product was reheated to the minimum temperature. After the temperature was raised to an approved level, Mr. Ojeda lifted the Stop Sale Order for the meat patties. Mr. Ojeda also issued a Stop Sale Order for products in the walk-in cooler and in the ice machine until the walk-in cooler and the ice machine were cleaned and sanitized. As noted above, rodent droppings were found in the walk-in cooler. Mr. Ojeda testified that he found mold inside the ice machine. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. August 2, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on August 2, 2010. The inspection revealed numerous food safety violations, some of which are repeat violations. The following are the critical violations found by Mr. Ojeda on August 2, 2010: There was evidence of rodent droppings and live roaches in the facility; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other violations included general disrepair of the facility, holes in walls, and failure to maintain equipment and fixtures. Administrative Complaint for Case No. 10-9186 Following the August 2, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-9186. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $3,700.00 for the violations found during the inspections on June 22 and August 2. August 18, 2010 Inspection Mr. Ojeda conducted an inspection of the facility on August 18, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents in the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. There was mold present on the ice machine. Equipment and utensils were not properly sanitized. Items for sale in the retail area were not marked for individual sale. There was no established employee health policy. Food label was missing or incomplete. Juice drinks were not labeled for individual sale. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Mr. Ojeda issued a Stop Use Order for the ice machine because he found mold inside the unit. Mr. Ojeda also issued a Stop Sale Order for the hot holding unit because the unit and associated utensils were not properly sanitized. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. September 9, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on September 9, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents throughout the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. Grade A milk and milk products were being sold or used beyond the expiration date on the container. Items for sale in the retail area were not marked for individual sale and were missing labels. F. There was no established employee health policy. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for the expired milk offered for sale in the retail area. The product, which expired the day before the inspection, was released to be returned to the distributor. Mr. Ojeda also issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Administrative Complaint for Case No. 10-10095 Following the September 9, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-10095. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $1,550.00 for the violations found during the inspections on August 18 and September 9. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-9186. The testimony of Dr. Fruin established that an administrative fine in the amount of $3,700.00 is reasonable for those violations. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-10095. The testimony of Dr. Fruin established that an administrative fine in the amount of $1,500.00 is reasonable for those violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order that finds Respondent guilty of the violations alleged in Case No 10-9186 and imposes an administrative fine against Respondent in the amount of $3,700.00 for those violations. It is further recommended that the final order find Respondent guilty of the violations alleged in Case No 10-10095 and impose an administrative fine against Respondent in the amount of $1,500.00 for those violations. DONE AND ENTERED this 17th day of February, 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 17th day of February, 2011. COPIES FURNISHED: Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putman Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Steven Lamar Hall, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 Hamid Lakhani Super Stop Six Avenue, Inc., d/b/a Super Stop 15150 Northeast 6th Avenue North Miami Beach, Florida 33162
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.
The Issue The issue in this case is whether on March 23, 2012, July 31, 2012, and October 10, 2012, 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 Administrative Complaint, and if so, 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. LOLAQ is a limited liability company (LLC) which was licensed to operate a permanent public food service establishment in the State of Florida at all times relevant to this proceeding. It does business as Maggie Qi at 28 West Bayshore Drive on St. George Island, Florida. Mr. James Kourkoulis, sole owner and managing member of LOLAQ, operates the restaurant. Mr. Paul Smith has been employed by the Division for about five years. He is a sanitation and safety specialist with the Division. Prior to his employment with the Division he was employed in the restaurant industry for approximately 30 years. He has had training in sanitation and inspection, including formal initial training, on-the-job training, and monthly in- house training. He is also a certified food manager. He performs between 600 and 1000 inspections each year. On March 23, 2012, Mr. Smith conducted a food service inspection on Maggie Qi. Mr. Smith prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using his personal data assistant (PDA) to record the violations that he observed during the inspection. Ms. Kathyrn McPherson signed the report to acknowledge receipt on behalf of Maggie Qi. When Mr. Smith completed the report, he printed a copy for the restaurant and discussed each violation with Ms. McPherson. He advised Ms. McPherson that all violations needed to be corrected by the next unannounced inspection. During the March inspection, Mr. Smith observed that Maggie Qi had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that beef had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line, and recorded this on his report. The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015. During the March inspection, Mr. Smith also observed a buildup of slime in the interior of the ice machine, and noted this on his report. The Division has determined that failure to keep food contact surfaces of equipment and utensils clean poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR- 5022-015. Mr. Smith also made note in his March report that there was no conspicuously located thermometer in the large cooling unit on the cooks’ line. At hearing he explained that there was a thermometer in the unit, but that it was in a difficult place to access in the back of one of the drawers, and so was not properly located. The Division has determined that failure to have thermometers conspicuously placed poses a significant threat to the public health, safety, or welfare because of the relationship between temperature and bacteria growth, and has identified this as a critical violation on DBPR Form HR-5022- 015. On July 31, 2012, Mr. Smith conducted another routine inspection of Maggie Qi. Mr. Smith again prepared an inspection report on DBPR Form HR 5022-015, using his PDA to record the violations that he observed. During the July inspection, Mr. Smith observed that Maggie Qi again had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that shrimp, beef, and fish had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line. Mr. Smith noted that there was gumbo, a ready–to-eat food, which had been prepared for more than 24 hours and was improperly date-marked. The Division has determined that failure to properly label and date-mark potentially hazardous food prepared on-site and held more than 24 hours poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022- 015. Mr. Smith also observed that the thermometer in the large cooling unit on the cooks’ line was still located in the back of the drawer and had not been placed in a conspicuous location since the March inspection. During the July inspection, Mr. Smith also noted that the large cooling unit at the cooks’ line was incapable of maintaining potentially hazardous food at prescribed temperatures. All of the food, including beef, shrimp, and fish, was at a temperature of 50 degrees Fahrenheit. At hearing, Mr. Smith testified that he touched the compressor and found it too hot to keep his hand on it, which, in his experience, indicated that the unit was not working properly. The Division has determined that failure to have adequate facilities to maintain food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022- 015. As Mr. Smith noted, Maggie Qi had another walk-in cooler which would have had enough room to hold the food, but it was not near to the cooks’ line. He testified that attempting to use the walk-in cooler in lieu of the malfunctioning unit would have been “extremely inconvenient” and “next to impossible.” This testimony was unrefuted. With the large cooling unit not working properly, Maggie Qi lacked adequate cold-holding capacity at the cooks’ line, and did not have cooling equipment sufficient in number or capacity to meet the cooling demands of its operations. Mr. Smith noted that the buildup of slime in the interior of the ice machine was still there. He further noted that the interior of the oyster reach-in cooler was soiled with an accumulation of food residue, and that there was encrusted material on the can opener. Finally, Mr. Smith observed that a hose bibb located on the wall near the sink (not the sink faucet) was missing a vacuum breaker. He testified that a hose was connected to the hose bibb, and that water from this connection was used to spray down the floor. Mr. Kourkoulis stated at hearing that the vacuum breaker had been removed and was sitting on the sink in the immediate vicinity of the hose bibb. He did not know who took it off. The Division has determined that a plumbing system not designed to prevent backflow of solid, liquid, or gas contaminants into the water supply system poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022- 015. Mr. Smith recorded all of these violations in his July inspection report. His report advised Maggie Qi of a call back date of October 1, 2012. Mr. Kourkoulis signed this report to acknowledge receipt on behalf of the restaurant. On October 10, 2012, Mr. Smith returned to perform a call back inspection of Maggie Qi. He prepared a Call Back Inspection Report, DBPR Form HR 5022-005, using his PDA to record the violations that he observed. The name Tanya Shiver appears on this October report acknowledging receipt on behalf of Maggie Qi. During the October inspection, Mr. Smith observed that the vacuum breaker was still missing from the hose bibb; the buildup of slime in the interior of the ice machine and the encrusted material on the can opener were still there; the interior of the oyster reach-in cooler was still soiled with an accumulation of food residue; the large cooling unit at the cook line still did not have its thermometer conspicuously placed and was still not maintaining proper temperatures for potentially hazardous food; shrimp, fish, and beef were again at a temperature of 50 degrees Fahrenheit; and gumbo that had been prepared more than 24 hours was again without proper date marking. These violations were recorded on the report. Mr. Smith is a trained professional and his testimony is credited. He testified that on the morning of each inspection he checked the accuracy of his thermometer in ice water, as he had been trained, and that his thermometer was accurate. Reports prepared at the time of the inspections corroborate Mr. Smith’s testimony as to all charged violations. The Division served an Administrative Complaint against Maggie Qi for the above violations on or about October 28, 2012. On March 23, 2012, July 31, 2012, and October 10, 2012, Maggie Qi had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit. On July 31, 2012, and October 10, 2012, Maggie Qi had refrigerated gumbo, a ready-to-eat, potentially hazardous food, which had been prepared and held for more than 24 hours and was not marked to indicate the date by which it needed to be consumed, sold, or discarded. On March 23, 2012, July 31, 2012, and October 10, 2012, the large cooling unit at the cooks’ line in Maggie Qi did not have its thermometer permanently affixed in a location that would allow easy viewing of its temperature display. On July 31, 2012, and October 10, 2012, the equipment for cooling food at Maggie Qi was not sufficient in number or capacity to maintain all food at proper temperatures. On March 23, 2012, July 31, 2012, and October 10, 2012, equipment food-contact surfaces and utensils at Maggie Qi were not clean to sight and touch. On all three dates there was a buildup of slime on the interior of the ice machine. On July 31, 2012, and October 10, 2012, the interior of the oyster reach-in cooler had an accumulation of food residue and there was crusted material on the can opener. On July 31, 2012, and October 10, 2012, Maggie Qi’s plumbing system had not been installed to preclude backflow of contaminants into the water supply system from a hose bibb near the sink. The hose bibb had a hose attached, but did not have a vacuum breaker. No evidence was introduced to indicate that Respondent had any previous 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 finding LOLAQ, LLC, doing business as Maggie Qi, in violation of six critical violations, and imposing a fine of $2,250, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 6th day of May, 2013, 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 May, 2013.
The Issue Whether the allegations set forth as count one in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Bistro on Park Avenue (Respondent) are correct, and if so, what penalty should be assessed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a public restaurant located at 348 North Park Avenue, Suite 5, Winter Park, Florida 32789. On December 14, 2012, Dennis Watson, a trained and experienced sanitation and safety specialist employed by the Petitioner, performed a routine inspection of the Respondent, during which Mr. Watson observed various violations of the Food Code. At the conclusion of the routine inspection, Mr. Watson prepared a written report documenting the Food Code violations that he had observed. Before leaving the premises, Mr. Watson discussed his observations with Mr. Boesch and provided him with a copy of the inspection report. According to the inspection report, the violations were to have been corrected by 8:00 a.m., on February 15, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Food Code violations identified during the routine inspection had been resolved. The callback inspection occurred on February 19, 2013. Some of the Food Code violations observed during the routine inspection were again observed during the callback inspection. Between the routine inspection and the callback inspection, the Petitioner amended its rules and began to apply an updated version of the Food Code. In relevant part, both versions of the Food Code identify proper food storage temperatures applicable to potentially hazardous food products. The storage of such products at improper temperatures can result in bacterial or pathogenic contamination of the product and can cause serious illness in humans who consume the contaminated products. Both versions of the Food Code require that certain cold food products be stored at temperatures of 41°F or less. At the time of the routine inspection, the applicable Food Code identified violations of the referenced food temperature standard as "critical" violations. By the time of the callback inspection, the updated Food Code being utilized by the Petitioner identified violations of the food temperature standard as "high priority" violations. According to the report of the routine inspection, Mr. Watson observed that both crème brulee and tiramisu were being held at 44 degrees. According to the report of the callback inspection, Mr. Watson observed that crème brulee was being held at 46 degrees and that butter was being held at 47 degrees. At the time of both inspections, the cited items were stored in a glass door cooler. At the hearing, Mr. Boesch asserted that the temperatures measured by Mr. Watson were not accurate. Mr. Boesch produced the thermometer he used at his restaurant and argued that the thickness of the cited food products was insufficient to permit an accurate determination of their temperatures with his thermometer. Mr. Watson testified that the construction of the thermometer used to measure food temperatures during inspections was superior to that of the thermometer being used by Mr. Boesch. Mr. Watson testified that his thermometer was capable of accurately determining the temperature of food products during the inspection and that he routinely calibrated the thermometer to make certain that it was performing properly. Mr. Watson's testimony and the measurements obtained through his thermometer have been accepted and are credited.
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 $250 against the Respondent, and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 4th day of September, 2013, 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 4th day of September, 2013.
The Issue The issues to be resolved in this proceeding concern whether Respondent committed the violations alleged in the Administrative Complaint dated April 9, 2010, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, Canton Rose Chinese Restaurant ("Canton Rose"), located at 4038 S.W. 67th Avenue, Miami, Florida 33155, holding Food Service license number 2321953. Jorge Gandolff ("Inspector Gandolff") is employed by the Department as a Senior Sanitation Safety Specialist. Inspector Gandolff has worked for the Department for approximately eleven years. Prior to working for the Department, Inspector Gandolff worked for the Department of Agriculture as a food safety inspector for a year and-a-half and as a restaurant general manager for Kentucky Fried Chicken for five years. He is a Certified Food Manager and continues to receive continuing education training. Inspector Gandolff performs approximately eight hundred inspections a year. On September 15, 2009, Inspector Gandolff performed a food service inspection at Canton Rose. During the inspection, Gandolff prepared and signed an inspection report setting forth the violations he spotted during his inspection. During the September inspection, Inspector Gandolff observed and specifically decided that the hot food was not at the proper temperature and that the rice was not being cooled in a proper manner. Inspector Gandolff specifically noted both as violations being out of compliance and stated in the inspection report: * * * Violation(s) * * * 03D-01-1: Observed food being cooled by nonapproved method * * * 03B-03-1 Potentially hazardous food not held at 135 degrees Fahrenheit or above Cooked chicken 92 degrees on prep table * * * Inspector Gandolff prepared the inspection report on- site at Canton Rose electronically on a Personal Data Assistant. Respondent's manager signed the report. It warned "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." On March 8, 2010, Inspector Gandolff returned to Canton Rose and performed the follow-up food service inspection. He determined that two repeat critical violations remained uncorrected from the September 15, 2010, inspection. A critical violation if left uncorrected can lead to food contamination, illnesses, or a health threat to the person who eats the food. It also is a violation that poses an immediate danger to the public health and safety. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. During the March inspection, Inspector Gandolff prepared an Inspection Report setting forth the findings from the re-inspection and recommended that an Administrative Complaint be filed. The first uncorrected violation for which Respondent was cited was Food Code Rule 03D-01-1--"Observed food being cooled by nonapproved method Repeat Violation." On both the September and March inspections, Canton Rose had just prepared the rice before the inspector arrived and was in the process of cooling it down. Neither the September nor March inspections took over one and-a-half hours to complete. Respondent used its same daily methodology for cooking and cooling rice during both inspections which included: cooking the rice for about 20 minutes; steaming it for about 20 minutes until it is completely cooked; opening the lid and using a long fork to mix and separate the rice to cool it down; dividing the rice into four large plastic container shallow pans; air-cooling the rice in the shallow pans for about 30 minutes so that the moisture in the rice would be reduced and become cool to the touch; and manually breaking up the rice by hand by an employee wearing gloves, which continues to cool the rice. After each grain of rice is separated by hand, the rice is cooler. After following the process the rice is cooled to 70 degrees Fahrenheit within two hours. Respondent was also cited for a violation of Food Code Rule 03B-03-1--"Potentially hazardous food not held at 135 degrees Fahrenheit or above cooked rice 112 degrees and cooked eggs at 117 degrees. Repeat violation." While inspecting, Inspector Gandolff observed both cooked rice at 112 degrees Fahrenheit and cooked eggs at 117 degrees Fahrenheit. The rice's temperature of 112 degrees Fahrenheit, allegedly was 23 degrees under its proper storage temperature of 135 degrees, and the eggs at a temperature of 117 degrees Fahrenheit, allegedly was 18 degrees under its proper temperature of 135 degrees. Both the rice and eggs were in the process of being cooled down through Canton Rose’s methodology. In general, the temperature of food must be maintained according to the type of food and whether it is in the process of being prepared, including cooling down. Temperature maintenance is considered important since food that is not held at the proper temperature can grow bacteria. Such bacterial growth can cause illness and is a public health threat. For that reason, food, which is out of temperature, is considered a critical violation of the Food Code, which is incorporated in Florida Law. Respondent owns Canton Rose. The restaurant has been open for four years. Respondent cooks about six pots of rice a day and usually it is all sold daily before it is completely cooled down and put it in the cooler. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed.
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 that finds Respondent not guilty as charged in Counts I and II of the Administrative Complaint. DONE AND ENTERED this 26th day of September 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 26th day of September, 2011. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Guo Xun Zhoz 4038 Southwest 67th Avenue Miami, Florida 33155 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in the case are whether the allegations 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 (2004). The Respondent is a restaurant located at 1560 North State Road 436, Winter Park, Florida, holding Permanent Food Service license number 5809302. Kaliopi Chrissanthidid owns and operates the restaurant. On September 15, 2004, Jim Thomason, a Senior Sanitation and Safety Specialist representing the Petitioner, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations identified by Mr. Thomason were noted in a written Food Service Inspection Report, a copy of which was provided to the person in charge of the restaurant on the date of the inspection. Mr. Thomason's inspection revealed both critical and non-critical code violations. Critical food safety code violations are those which pose serious public health risk due to potential contamination and subsequent transmission of food- borne illness. Violations that do not pose a serious health risk to the public are identified as non-critical. On September 15, 2004, Mr. Thomason identified several critical violations related to food storage equipment, including a reach-in cooler and a "make line" cooler that were incapable of maintaining proper temperatures. Additionally, Mr. Thomason observed chicken and calimari being improperly thawed in a bucket of water. Mr. Thomason also observed a cook handling ready-to-eat salad materials with his bare hands. Food storage coolers must be capable of maintaining a temperature of 41 degrees or below to prevent contamination. The Respondent's reach-in cooler and make line cooler were incapable of maintaining proper temperatures. Mr. Thomason determined that pre-cooked lamb was being held at 60 degrees, precooked beef was held at 58 degrees, lasagna was held at 58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees. Mr. Thomason estimated that the food items had been maintained at an improper temperature for well in excess of four hours. Improper storage temperatures increase the potential for contamination and transmission of food-borne illness to the public. Due to the issues with the food storage equipment, a Stop Sale Order was issued on September 15, 2004, directing the Respondent to remove the pre-cooked lamb and beef, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration. On September 15, Mr. Thomason identified non-critical violations including: missing hand-washing signs; an open trash receptacle in the women's restroom; a torn screen and missing automatic closing device in a backdoor; the lack of a posted license; the lack of a certified food manager; and the lack of documentation related to employee food safety training. According to the inspection report, a re-inspection was scheduled for September 16, 2004. On September 20, 2004, Mr. Thomason re-inspected the Respondent. Although many of the items cited in the September 15 inspection report had been corrected, the faulty food storage equipment had not been repaired and was still not capable of maintaining proper food storage temperatures. Mr. Thomason determined that pre-cooked lamb was being held at 60 degrees, meat pies were being held at 57 degrees, lasagna was held at 58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees. Mr. Thomason issued another Stop Sale Order, directing that the Respondent remove the precooked lamb, meat pies, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration. Mr. Thomason also referred the critical food storage violations to his supervisors with the recommendation that an Administrative Complaint be filed against the Respondent. On October 18, 2004, Mr. Thomason re-inspected the Respondent at which point, according to the Callback Inspection Report, the food storage and refrigeration violations had been corrected. The only item remaining for repair was the automatic closing device on the backdoor. At the hearing, the Respondent testified that the restaurant had been closed during the month of August, and that no food had been stored during that time. During August 2004, Hurricane Charley came through Central Florida. The Respondent asserted that the restaurant equipment was damaged during the storm, and that the Respondent was unaware of the damage until several weeks after the restaurant reopened. The Respondent testified that repairs to refrigeration equipment were made, but that the coolant was quickly leaking out. Eventually all of the refrigerated food storage equipment was replaced.
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 $1,000 against the Respondent, and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Kaliopi Chrissanthidid Greek Flame Taverna 1560 North State Road 436 Winter Park, Florida 32792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
