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
Findings Of Fact At all times relevant hereto, respondent, Charles L. Harriss, was the owner and operator of a food service establishment known as Mister Donut located at 5567 Golden Gate Parkway, Naples, Florida. Respondent holds license control number 21-1041-R issued by petitioner, Department of Business Regulation, Division of Hotels and Restaurants (Division), and is subject to that agency's regulatory jurisdiction. Mister Donut is a retail bakery outlet that sells donuts, coffee and other similar items. On the afternoon of July 9, 1986, a Collier County environmental health specialist conducted a routine inspection of respondent's establishment to determine if prescribed health and safety standards were being maintained. The inspection was made in the presence of an employee of respondent. The specialist found respondent to have violated various food service rules promulgated by the Department of Health and Rehabilitative Services in twenty- five respects. All but two, which respondent has conceded are correct, are in dispute. After an informal conference failed to resolve the matter, this proceeding ensued. The Donut Shop is one of three retail bakery outlets owned by Harriss. Besides the store in question, he operates a second outlet in Naples and one in Miami. There is no baking or cooking done on the premises of the establishment, although some "finishing" of products (such as adding sugar or filling) occurs. Donuts are delivered to the establishment from Harriss' other Naples store at 5:30 a.m. each morning, and from noon to 3:00 p.m. on an as-needed basis. The finishing of the product generally takes place shortly after it is delivered. There are three work shifts for employees: 6:00 a.m. -- 12:00 noon; 12:00 -- 6:00 p.m.; and 6:00 p.m. to 10:00 p.m. The floors are to be mopped and the area cleaned at the end of each shift. The busiest time of the day is between 7:00 and 9:00 a.m. The store is located in a shopping center. Although the specialist's qualifications to conduct a competent inspection were challenged by Harriss during the witness' testimony, it is found he has the experience, education and training necessary to adequately perform his job. In conjunction with his inspection, the specialist filled out a food service inspection report identifying each violation detected. This report has been received into evidence as petitioner's exhibit number 2. In addition, the specialist categorized violations as either being major or minor. When the inspection was made, the specialist was accompanied by a food services coordinator who also made her own inspection as a cross- check on the specialist's work. Her report has been received into evidence as petitioner's exhibit number 5. The violations are identified on the report by number. For ease in discussing the numerous violations, reference to the number on the report will be made in the findings hereinafter. Violation 02 -- Drawers containing food components (candy toppings) were not labeled as required by Rule 10D- 13.24(9), Florida Administrative Code. The drawers were also soiled with food particles. Violation 03 -- Food (soup) was not being maintained at proper temperature (140 degrees) as required by Rule 10D-13.24(2), Florida Administrative Code. Violation 04 -- Although petitioner charged Harriss with having no "indicating thermometer" on the food warmer, it was established that the warmer had low, medium and high settings. This constitutes substantial compliance with Rule 10D-13.24(2), Florida Administrative Code. Violation 05 -- Harriss has been cited with violating Rule 10D- 13.24(8), Florida Administrative Code, for failure to have conspicuous thermometers in or on his refrigerator and the food warmer. However, the more persuasive evidence is that a thermometer was hung on the top left side of the refrigerator while the food warmer had low, medium and high settings. This satisfies the foregoing rule. Violation 08 -- During the course of the inspection, donuts and rolls were found in uncovered or non- encased display areas. This is contrary to Rule 10D-13.24(1), Florida Administrative Code, which requires that such food be in a glassed case or otherwise covered in some manner. Violation 09 -- An employee was observed scooping ice into a cup without an ice scoop. This resulted in the employee's hand coming into contact with the ice in violation of Rule 10D-13.24(8), Florida Administrative Code. Violation 10 -- In conjunction with the prior violation, no ice scoop was seen or used. Rule 10D-13.24(10), Florida Administrative Code, requires that food be served in a manner that will minimize contamination. Violation 12 -- The specialist observed respondent's employee with food particles and sugar on her hands. Rule 10D-13.25(3), Florida Administrative Code, requires that employees wash their hands as often as necessary to remove soil and contamination. Violation 13 -- Employees are required to wear hair nets or hair spray to keep hair from getting into food. Although no hair net was worn by the employee, the employee used an effective hair restraint (hair spray) so as to comply with the rule. Violation 14 -- As noted earlier, a proper utensil for serving ice was not being used or displayed. This is in contravention of Rule 10D-13.24(8), Florida Administrative Code. Violation 15 -- It was established that non-food contact surfaces were covered with frosting and powdered sugar. Rule 10D-13.26(4)(1), Florida Administrative Code, requires that such surfaces be cleaned at such intervals as is necessary to keep them in a clean and sanitary condition. Violation 17 -- Chemical test kits are required by Rule 10D- 13.26(5)(a)2.d., Florida Administrative Code, for the purpose of accurately measuring solutions used for sanitization purposes. Although a kit was not seen by the specialist, there was such a testing kit on the first shelf near the three compartment sink on respondent's premises. Violation 20 -- The specialist could not recall the nature of this violation. Violation 21 -- According to Rule 10D-13.26(4)(d), Florida Administrative Code, soiled cloths and sponges must be stored in a sanitizing solution between uses. The specialist found several soiled cloths in a sink. However, since these were just temporarily placed in the sink for rinsing before being placed in a linen bag for laundry service, no violation occurred. Violation 22 -- The drawer containing candy topping was not clean. Rule 10D-13.26(4)(a), Florida Administrative Code, requires that food contact surfaces be cleaned at least once a day. Since the inspection occurred in the afternoon, and prior to the end of the day, it was not shown that respondent failed to clean this area that day. Violation 23 -- The interior of non-food contact areas such as cabinets, shelves, refrigerator and sides of equipment were observed to have food particles on them, and were not clean. This was in violation of Rule 10D- 13.26(4)(a), Florida Administrative Code, which requires that non-food contact surfaces of equipment be cleaned, and kept in a sanitary condition. Violation 24 -- Various utensils in drawers were not clean. Rule 10D- 13.26(4)(a), Florida Administrative Code, requires that all kitchenware be thoroughly cleaned and sanitized after each use. Violation 25 -- The specialist found respondent storing food (toppings) in single service articles (paper cups). However, the applicable rule (10D-13.26(4)(b), Florida Administrative Code) simply provides that such articles be used "only once". There was no indication that these articles were used more than one time, and consequently no violation of the rule occurred. Violation 31 -- It was established that a three compartment sink was not readily accessible since a trash can blocked access to the sink, and dirty linens were in the sink itself. No pertinent rule was cited by petitioner as governing the accessibility of sinks. Violation 32 -- No hand soap was found in any sink. This controverted the requirements of Rule 10D-13.27(6), Florida Administrative Code, which requires that each establishment be provided with hand cleansing soap. Violation 33 -- The specialist observed the trash can in front of the sink to be uncovered. This was a violation of Rule 10D-13.27(7), Florida Administrative Code, which requires such receptacles to be kept covered with tight fitting lids. Violation 34 -- There is a dumpster directly behind respondent's store which was found to be unclosed, and with overflow trash on the ground. However, this dumpster is shared by other shopping center tenants, and is the responsibility of the center rather than respondent. Violation 35 -- The specialist detected ants in the food preparation area. Although respondent has a monthly pest control service, the presence of such insects violated Rule 10D-13.27(8), Florida Administrative Code, which requires effective control measures against rodents, flies, roaches and other vermin. Violation 36 -- The floors in the food preparation area were observed to be littered with food particles. This is in contravention of Rule 10D- 13.28(1), Florida Administrative Code, which requires that floor surfaces in rooms where food is prepared to be "clean". Violation 37 -- The walls in the food preparation area were "splattered" with food and toppings. In addition, certain equipment attached to the walls had toppings, frosting and glazing covering them. This was in violation of Rule 10D- 13.29(2), Florida Administrative Code, which requires such walls and equipment to be kept clean. Violations 38 and 41 -- Respondent has not disputed these violations, and it is found that these violations occurred. Violation 42 -- The specialist found the outside area of the premises to be littered with cigarette butts, paper and other debris. However, this is a common problem throughout the entire shopping center, and fault cannot be attributed to respondent for this condition. Violation 44 -- As previously noted in violation 21, soiled linens were observed in a sink. However, they were placed there only temporarily for rinsing before being stored in a linen bag. Therefore, there was no rule violation. Violation 45 -- The fire extinguisher on respondent's premises did not have a current inspection tag. While this may violate some regulation, the rule relied upon by the specialist (10D-13.28(2), Florida Administrative Code) is not applicable. Violation 46 -- An exit light was observed to have been burned out. Again, the same rule relied upon by the specialist is inapplicable. Violation 47 -- It was alleged that respondent used extension cords in the food preparation area. However, the specialist could not recall which appliance used such a cord. Respondent's testimony that no such cords were used is more persuasive, and it is found that no extension cords were used by Harriss. Violation 53 -- When the inspection was made, there was no employee on the premises with a valid food management certification. Such a certification is required by Rule 10D-13.25(2), Florida Administrative Code. After the inspection was completed, the specialist reviewed the inspection report with one of respondents employees. It was the specialist's opinion that the above cited violations rendered the establishment unsafe for the public. A second inspection was simultaneously conducted by a food service coordinator. Her findings tend to corroborate the same violations noted by the specialist. Reference to her specific findings is accordingly not necessary. Aside from his own testimony, Respondent presented the testimony of the employee who was present when the inspection occurred, and his local manager. Except where noted above, they did not credibly contradict the testimony of the two inspectors. At the same time, Harriss pointed out that by the very nature of the donut business, it is impossible to keep crumbs and other food particles off the floor and other areas. He has been in the business for twenty-three years, and has no prior violations. He contended the specialist was "nit-picking", and that most of the violations are minor in nature. He also asserted that he has made all reasonable efforts to correct the problems.
Recommendation Based on the foregoing findings of fact and conclusions of law , it is RECOMMENDED: That respondent be found guilty of the eighteen violations cited in conclusion of law number 2, and that he pay a $1000 civil fine within thirty days after the date of Final Order. All other charges should be dismissed. DONE AND ORDERED this 15th day of December, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. At all times material to the allegations of the Administrative Complaint, Respondent was not licensed, nor has ever been licensed, by the Division. Julianne Browning is a senior sanitation and safety specialist employed by the Division and has worked for the Division as an inspector for over 15 years. Ms. Browning has a bachelor's degree in hotel and restaurant management. She also has work experience in the hotel and restaurant industry and received training in laws and rules regarding public food service and lodging, as well as fire safety and hazard analysis. On May 19, 2006, Ms. Browning saw Respondent operating a barbeque unit in front of a gas station located Cross City, Florida. The type of barbeque unit was a long, black cylindrical unit on a trailer designed to pull behind a vehicle. She stopped, made an inspection, and issued an inspection report. She reviewed the report with Mr. Walker at the time she issued it. During the March 19, 2006 inspection, Ms. Browning observed several violations. The primary violation is that Mr. Walker was operating his barbeque unit without a license. In addition to finding that Mr. Walker was operating a food service establishment without a license, Ms. Browning found the following violations: certain foods were not kept at their required temperatures; certain foods had been prepared at Respondent's home; the barbeque grill was portable with no floor, walls, or ceiling; there were no hand-washing facilities; there was no facility to wash, rinse, and sanitize utensils; there was no portable fire extinguisher; and Respondent had not submitted a plan review prior to operation. Neither Respondent, Mr. Walker, nor his wife, contested what was found by Ms. Browning. However, they explained that they were simply attempting to sell barbeque as a fundraiser to send their daughter on a trip to Washington, D.C. Had he known that a license was required, Mr. Walker would not have undertaken this method of fundraising. Neither Mr. nor Mrs. Walker was attempting to operate a business. Mr. and Mrs. Walker's testimony in this regard is accepted as credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order which confirms the violations found and imposes an administrative penalty in the amount of $100, to be paid within 30 days of the issuance of the Agency's Final Order. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 25th day of January, 2007. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Jennifer L. Condon, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Larry Walker Post Office Box 1811 Cross City, Florida 32628 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
