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 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 The issue is whether Respondent is guilty of the violation described in the Administrative Complaint, and if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509. By rule, it has incorporated by reference the regulations in the federal Food Code. These regulations apply to all public food service establishments. See Fla. Admin. Code R. 61C-1.001(14). Respondent operates a public restaurant (using its corporate name) located at 12318 University Mall Court, Tampa, Florida, and is subject to Petitioner's regulatory jurisdiction. It holds license number NOS3917320 (Permanent Food Service). Rule 61C-1.005(5)(a)-(c) classifies violations of the Food Code as either "high priority," "intermediate," or "basic," essentially reflecting the level of threat to public health posed by the deficiency. A high priority violation is one that poses a direct or significant threat to public health. Id. This type of violation is at issue in this case. Around 12:24 p.m. on June 11, 2014, Ashley Herrmann, a trained and experienced sanitation and safety specialist employed by Petitioner, performed a routine inspection of Respondent's restaurant, during which Ms. Herrmann observed various violations of the Food Code, including a "high priority" violation. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food must be maintained at a temperature of 41° Fahrenheit or less.2 See rule 3-501.16(A)(2)(a), Food Code. A violation of this regulation is classified a high priority violation because food maintained above that temperature is a major contributor to foodborne illnesses. Ms. Herrmann observed several potentially hazardous food items in the walk-in cooler, including (a) raw meat/ poultry, (b) cooked fruits/vegetables, and (c) cheese/milk/ creamer/other dairy products, that were maintained at a temperature greater than 41° Fahrenheit. See Ex. 2. At the conclusion of her inspection, Ms. Herrmann prepared a written report documenting the Food Code violations observed by her. A copy of the inspection report was given to Javari Moore, an employee who was present at that time, and the violations were explained to him. Also, he was told that the violations must be corrected by 10:30 a.m. the following day, June 12, 2014, and that a call-back inspection would be performed at that time to verify that the violations had been corrected. Around 10:30 a.m. on June 12, 2014, Ms. Herrmann performed a call-back inspection of Respondent's premises. While some violations had been corrected, she observed that the high priority Food Code violations observed during the routine inspection on June 11, 2014, had not been corrected. See Ex. 3. Before leaving, Ms. Herrmann provided a copy of the inspection report to Mr. Moore and discussed the violations with him. The findings contained in the inspection reports were used in the preparation of an Administrative Complaint issued against Respondent. Other than stating that no food had been taken out of the walk-in cooler that morning, Mr. Moore gave no further explanation for the high priority violation.3 There is no evidence that Respondent has been found guilty of a prior offense of this nature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order finding that Respondent is guilty of one high priority violation, and imposing a fine of $250.00. Such fine shall be due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 21st day of October, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of October, 2014.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
The Issue Whether the Respondent should be fined for violation of Section 509.261, Florida Statutes?
Findings Of Fact The Division is the state agency charged with regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. The Respondent has at all times material hereto has been subject to the Division of Hotels and Restaurants' (Division) jurisdiction. The Respondent's last known business address is 1995 North Orange Street, Mount Dora, Florida 32757. On June 22, 2002, Henry Christwell, a Division inspector, observed the Respondent operating an outdoor, roadside food vending facility in the vicinity of US Highway 441 in Lake County, Florida. The operation consisted of a tent with a smoker partially under the tent. Christwell inspected the Respondent's premises, and noted that the Respondent was operating without a license; did not have proper hand-washing facilities; and did not have the smoker enclosed. Based on those deficiencies, Christwell issued a Administrative Determination and Order of Closure for the Mobile Food Vendor on that same day, and the Respondent immediately closed the facility, but not before Christwell purchased some ribs from the Respondent. An Administrative Complaint was issued on July 16, 2002, alleging the Respondent's violation of Chapter 509, Florida Statutes, for operating without a license; not having hand-washing facilities; and not having the smoker enclosed. The Respondent elected to dispute the factual allegations of the Administrative Complaint, and timely requested a hearing in accordance with Section 120.57, Florida Statutes. The factual allegations were: Operating without a license. No hand washing facilities available. The smoker was in operation without an enclosure so food was unprotected from possible contamination. At hearing, the Respondent did not controvert the allegations; however, he maintained that there is confusion over when such a facility must be licensed. For example, a local bait shop in the area in which the Respondent was operating does not have its smoker enclosed. Mr. Christwell advised that, because the bait shop sells soft drinks and snack foods, it is not regulated by the Department although it sells food to the public. The Respondent, who is the minister of a local African Methodist Episcopal Church, pointed out that had he been operating on the church's premises, he would have also been exempt. Mr. Christwell agreed that he would not be subject to regulation on the church's premises. The Respondent stated his intent was not to break the law, and he did not believe that he was required to obtain a license. Everyone agreed that on August 6, 2002, the Respondent became licensed for operation as a mobile food vendor. The Respondent also claims he had coolers filled with water in order that he could wash his hands. The fact that the alleged sanitary violations existed did not prevent Mr. Christwell from purchasing ribs from the Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order finding that the Respondent violated the statutes as alleged and ordering him to pay an administrative penalty in the amount of $100.00 due and payable to the Division of Hotels within 30 calendar days of the date of this Order. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 24th day of June, 2003. COPIES FURNISHED: Michael E. Kennedy Mike's Tasty BBQ 1995 North Orange Street Mount Dora, Florida 32757 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
