The Issue The issue in this case is whether on April 19, 2010, and July 27, 2010, Respondent was in compliance with food safety requirements set forth in administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation (Division), and if not, what penalty is appropriate.
Findings Of Fact The Division is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. Julianne Browning has been employed as a senior inspector with the Division for six or seven years. It is part of her responsibility to inspect food service establishments for safety and sanitation. She conducts approximately 850 inspections each year. Respondent is licensed as a public food establishment operating as The Green Mango at 7625 West Newberry Road, Gainesville Florida. On April 19, 2010, Ms. Browning conducted a food service inspection on Respondent. Ms. Browning prepared and signed an inspection report setting forth the violations that she observed during the inspection. During her April inspection, Ms. Browning observed an employee engage in food preparation, handle clean equipment or utensils, or touch unwrapped single service items, without washing hands. Ms. Browning identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. The failure of a food service employee to wash their hands constitutes a significant threat to the public health, safety, and welfare. Inspector Browning also observed in April potentially hazardous cold food held at temperatures greater than 41 degrees Fahrenheit. Specifically, she observed potatoes at 68 degrees, batter at 70 degrees, rice at 85 degrees, soup at 55 degrees, turnovers at 90 degrees, and butter at 90 degrees. Ms. Browning made notes of these observations in her report. She identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. Potatoes, batter, rice, soup, and turnovers are potentially hazardous foods and Respondent failed to maintain them at a temperature of 41 degrees Fahrenheit or less. This failure constituted a significant threat to the public health, safety, and welfare. On July 27, 2010, Ms. Browning conducted another food service inspection on Respondent. Again she prepared and signed an inspection report setting forth the violations that she observed during the inspection. During the July inspection, Ms. Browning again observed an employee engage in food preparation, handle clean equipment or utensils, or touch unwrapped single service items, without washing hands. She observed that an employee did not wash his hands before putting on gloves to prepare food. Ms. Browning identified this as a critical violation on DBPR Form HR-5022- 015, the Food Service Inspection Report. It is necessary for employees preparing food to wash their hands even if they are going to be wearing gloves because the gloves could have a tear, or a pin hole, or be otherwise compromised. The failure to wash hands constituted a significant threat to the public health, safety, and welfare. During the July inspection, Ms. Browning observed what she described as clarified butter, which here will be referred to as ghee, on the counter with a temperature of 80 degrees. Inspector Browning also again observed potentially hazardous cold food held at temperatures greater than 41 degrees Fahrenheit. In this instance she observed cream at 47 degrees, tofu at 45 degrees, milk at 45 degrees, potatoes at 45 degrees, yoghurt at 45 degrees, and cooked vegetables at 55 degrees. Ms. Browning identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. Cream, tofu, milk, potatoes, yoghurt, and cooked vegetables are potentially hazardous foods and Respondent failed to maintain them at a temperature of 41 degrees Fahrenheit or less. Potentially hazardous food must be kept at 41 degrees Fahrenheit or below because when the temperature rises above that temperature, bacteria begin to grow at a much faster rate. A person consuming the food can then contract a food-borne illness. The failure to maintain these temperatures constituted a significant threat to the public health, safety, and welfare. Ms. Pandey, witness for Respondent, is an experienced cook. She worked for many years at a Hare Krishna Temple in Alachua County. She is knowledgeable in the preparation and use of ghee. Ms. Pandey testified that ghee is a form of clarified butter that has been used for a great many years in India, and is still used in significant amounts there, precisely because of the widespread lack of refrigeration. Ghee does not spoil as fast as butter or milk or yoghurt. Ms. Pandey testified that ghee is not perishable and that it is therefore not dangerous when at room temperature. She further testified that refrigeration in fact makes it very difficult to use ghee, because it becomes hard and loses its flavor. It was not clear from the evidence presented that ghee is a potentially hazardous food or that failure to keep it at a temperature of 41 degrees Fahrenheit or less constituted a significant threat to the public health, safety, or welfare. The testimony and admitted reports of Inspector Browning as to the failure of Respondent's employee to wash his hands were clear and the reports were recorded at the time of the observation. Ms. Pandey offered no evidence to the contrary. Her unsworn assertion during argument that her husband was not preparing food, but only put on protective gloves because he was aware of the inspection and was scared was not credible, even if it had been offered as testimony. The testimony and admitted reports of Inspector Browning as to the temperature of the foods was clear and was recorded at the time of the observation. Ms. Pandey offered no evidence to the contrary. Her unsworn assertion during argument that the refrigerator holding the food was not being used in the restaurant but was only for storage of personal items was not credible, even if it had been offered as testimony. Petitioner issued an Administrative Complaint against Respondent for the above violations on August 2, 2010. Respondent has had two previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. In the first Stipulation and Consent Order, signed by Anuradha Pandey on January 10, 2010, and entered on January 15, 2010, Respondent agreed to pay a fine of $1550.00, but did not admit nor deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the second Stipulation and Consent Order, signed by Anuradha Pandey on June 2, 2010, and entered on June 10, 2010, Respondent agreed to pay a fine of $2,000.00, but again did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. The June 10, 2010 Stipulation and Consent Order was in settlement of an administrative complaint issued on May 10, 2010, alleging violations of the Food Code revealed in an April 19, 2010 inspection, one of the same inspections for which evidence was submitted in this case.
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 imposing a total fine of $1500.00 against The Green Mango for the two critical violations occurring on July 27, 2010, to be paid within 30 calendar days of the filing of the Final Order with the Agency Clerk. DONE AND ENTERED this 23rd day of January, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2012.
The Issue Whether Respondent violated food safety standards established by section 509.032, Florida Statutes, and the implementing rules as charged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact Parties At all times material hereto, Richie Cheesesteak was owned and operated by Richard Fascenda, as a licensed permanent public food-service establishment located at 6191 Deltona Boulevard, Spring Hill, Florida. Mr. Fascenda holds License No. 3700896 to operate Richie Cheesesteak.1/ Mr. Fascenda is the owner/operator of Richie Cheesesteak, as well as the only cook. The Division is responsible for monitoring and inspecting licensed food-service establishments to ensure that they comply with the standards set forth in relevant statutes and rules, and the Food Code. Initial Inspection On April 16, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food-service inspection of Richie Cheesesteak. On the date of the inspection, Mr. Roff had been employed by the Division for approximately three months and was still under probation. Mr. Roff had no experience in the food- service industry prior to his employment with the Division. Mr. Roff received training from the Division in the laws relating to food service, and has become certified as a food manager. The Division additionally provides monthly in-house training which Mr. Roff has attended. During his probationary period, Mr. Roff accompanied his senior inspector on food-service establishment inspections, observing how the inspector conducted inspections, identified violations, and provided corrective actions. As part of his training, Mr. Roff was also “shadowed” by his senior inspector as Mr. Roff conducted inspections. On the date of the final hearing, Mr. Roff had conducted approximately 600 restaurant inspections. Cited Violations License and Certification On April 16, 2013, Mr. Roff prepared an Inspection Report noting a total of 13 alleged violations of the standards set forth in applicable statutes, administrative rules, and the Food Code. Respondent was cited for an expired license, a high priority violation which was remedied on-site during the inspection. Among the other violations Mr. Roff noted in his Inspection Report was Respondent?s failure to produce proof of a food manager certificate. Section 509.039 provides for a Food Manager Certification Program to ensure all managers of food-service establishments have a demonstrated knowledge of basic food protection practices. The statute further requires that “[a]ll public food-service establishments must provide the division with proof of food-service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment.” Id. In 2008, Respondent was an assistant manager for Boyz- N-Burgers, operated by McClain Sonic?s, and was certified as a food manager at that time. On the date of inspection, Respondent could not produce a copy of his certificate and explained that the certificate would be on file with his former corporate employer. A food manager certificate expires five years after certification. A violation of section 509.039 is designated by the Division as an intermediate priority violation. Reach-in Cooler Gasket Among the violations Mr. Roff noted was that the gasket on the reach-in cooler was both torn and soiled. Food Code Rule 4-501.11(B) provides, “Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturer?s specifications.” A torn or otherwise damaged cooler gasket can cause cross-contamination of food and prevent the storage of foods at the required temperature. Respondent?s reach-in cooler is at least 30 years old. Respondent did not testify that the gasket had ever been replaced, although he did state that it has been “siliconed over” on several occasions. Respondent admitted at final hearing that the reach-in cooler gasket was torn in one place. Respondent denied that the gasket was soiled, explaining that there might have been some food spilled on it during lunch and the inspection was conducted right after lunch. Respondent insisted that he wipes down the gasket every day. Violation of rule 4-501.11(B) is designated by the Division as a basic violation. Storage of Utensils Among the other violations observed by Mr. Roff was a knife stored between two pieces of kitchen equipment. Food Code Rule 3-304.12 provides, in pertinent part, as follows: During pauses in FOOD preparation or dispensing, FOOD preparation and dispensing UTENSILS shall be stored: * * * (C) On a clean portion of the FOOD preparation table or cooking EQUIPMENT only if the in-use UTENSIL and the FOOD-CONTACT surface of the FOOD preparation table or cooking EQUIPMENT are cleaned and SANITIZED at a frequency specified under subsections 4-602.11 and 4-702.11. * * * (F) In a container of water if the water is maintained at a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) and the container is cleaned at a frequency specified under subparagraph 4-602.11(D)(7). Respondent admitted that a knife was stored in the crack between two pieces of kitchen equipment when Mr. Roff made his initial inspection. Violation of rule 3-304.12 is designated by the Division as a basic violation. Improperly Marked Containers Mr. Roff also observed “cookline bottles” stored in squeeze bottles which were not labeled as to their contents. Food Code Rule 3-302.12 reads as follows: Except for containers holding FOOD that can be readily and unmistakably recognized such as dry pasta, working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD. Respondent keeps two bottles on the cookline, one for oil and one for vinegar. Respondent is the only cook. Respondent testified that he has the bottles marked “oil” and “vinegar” with black marker. He introduced a photograph of the bottles marked as such, but the photograph was taken subsequent to the callback inspection and is not accepted as evidence of the condition of the bottles on the day in question. Mr. Fascenda testified that during the inspection, he showed the bottles to Mr. Roff and pointed out the hand-labeling, but admitted that Mr. Roff could not see the wording because it rubs off easily. Mr. Roff testified he did not recall seeing any labeling on the bottles. Violation of rule 3-302.12 is designated by the Division as a basic violation. Mr. Roff walked through the violations with Respondent, who signed the Inspection Report on April 16, 2013. The Inspection Report noted that a follow-up inspection was required and that the violations must be corrected by June 16, 2013. Callback Inspection On June 17, 2013, Mr. Roff performed a callback inspection at Richie Cheesesteak. Mr. Roff observed that seven of the violations noted in the April 16, 2013, Inspection Report had been corrected. However, the violations detailed above –- gasket on reach-in cooler torn and soiled; knife stored between kitchen equipment; cookline bottles unlabeled; and no proof of food manager training –- were not corrected. Mr. Roff prepared a Callback Inspection Report, which was signed by Respondent. The Callback Inspection Report recommended filing an Administrative Complaint. Petitioner introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code. Owner?s Response Certification Respondent maintained it would be impossible to produce his food manager certificate because it was retained by his employer in 2008. Respondent was clearly frustrated with Mr. Roff?s unwillingness to accept the explanation given at the first inspection and was indignant at being fined for lack of food manager certification following the callback inspection. Respondent?s explanation that he was previously certified but that the certificate was retained by his former employer is not a defense. The statute clearly requires production of the food manager certificate when the Division inspects the manager?s food-service establishment. Following the callback inspection, Respondent obtained a Food Manager Certificate, which was introduced at final hearing. Reach-in Cooler Gasket Respondent argued that if the gasket was not functioning, the reach-in cooler would not be maintaining the appropriate temperature, which it was when tested upon inspection. Respondent?s argument is not a defense. Keeping food at the proper temperature is only one of the aims of the rule. The other is to prevent cross-contamination of food in the cooler with substances on the gasket, whether they are foods spilled thereon or bacteria growing in a torn gasket. Respondent further argues that cross-contamination is not an issue since he is the sole operator and cook. Cross- contamination of foods in the reach-in cooler is not a function of how many different employees use the cooler, but rather the condition in which it is kept. Respondent testified that, since the callback inspection, he “siliconed over” the gasket to seal it and improve its appearance. He produced before and after photographs of the gasket at final hearing. Neither picture is evidence of the condition of the gasket upon inspection,since they were taken approximately two weeks before the hearing. If anything, the “before” picture tends to support the Division?s case that the gasket was torn and soiled upon inspection. Storage of Utensils Respondent admitted that a knife was stored between two pieces of kitchen equipment on the date of the first inspection. But, he maintained that was an accident and he does not regularly store knives that way. Improperly Marked Containers Respondent first argued that his oil and vinegar bottles were labeled, although in marker, and he should not be held in violation. The evidence shows that the labels were unrecognizable when the inspections occurred. Respondent next argued that the following facts should be taken into consideration when determining whether he violated the rule. First, there are only two bottles –- oil and vinegar. Accidental mixing of their contents would not create a health hazard or threat. Second, Respondent is the only cook, so mixing the contents is unlikely. Third, the cookline is separated from the cleaning area. Thus the likelihood of mixing the contents of the cookline bottles with bleach or another cleaning product is minimal. While Respondent?s arguments are no defense, they may be considered mitigating factors.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent Richie Cheesesteak violated section 509.039 and Food Code Rules 3-302.12, 3-304.12, 4- 501.11, and 4-601.11, as alleged in the Administrative Complaint; and Imposing an administrative penalty against Respondent Richie Cheesesteak in the amount of $800, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2013.
The Issue The issue is whether Respondent is guilty of various violations of Florida statutes and rules in the operation of his restaurant and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds license control number 46-04280R, which is in effect from December 1, 1999, through December 1, 2000. The license authorizes Respondent to operate a restaurant known as Speedy Two Shop at 2957 Martin L. King Boulevard in Fort Myers. Petitioner has previously disciplined Respondent. By Stipulation and Consent Order filed May 22, 1997, the parties agreed that Respondent would pay an administrative fine of $1100 and correct all violations by April 30, 1997. The Stipulation and Consent Order incorporates the findings of inspections on February 25 and March 7, 1997. These inspections uncovered seven violations, including missing hood filters over the cooking surface, heavy grease accumulations on the inside and outside of the hood, a fire extinguisher bearing an expired tag (May 1995), and operation without a license. In Petitioner's District 7, which includes Fort Myers, the licensing year for restaurants runs from December 1 to December 1. Respondent's relevant licensing history includes annual licenses for the periods ending December 1, 1997; December 1, 1998; and December 1, 1999. However, Respondent has operated his restaurant for substantial periods without a license. Respondent renewed his license ending in 1997 after four months of operating without a license, his license ending in 1998 after 17 months of operating without a license, his license ending in 1999 after six and one- half months of operating without a license, and his license ending in 2000 after one and one-half months of operating without a license. For each of these late renewals, Respondent paid a $100 delinquent fee. Petitioner conducts periodic inspections of restaurants. These inspections cover a broad range of health and safety conditions. Certain violations, as marked on the inspection forms, "are of critical concern and must be corrected immediately." This recommended order refers to such violations as "Critical Violations." On January 22, 1998, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered seven Critical Violations. Two Critical Violations involved Respondent's compliance with licensing and training requirements. Respondent was operating the restaurant without a license, and no employee had a food manager's card, which evidences the successful completion of coursework and a test in managing a restaurant. The report warns that if Respondent did not renew his license before February 1, 1998, Petitioner would impose a fine and possibly revoke his license. The report requires Respondent to ensure that an employee obtains a food manager's card by March 3, 1998. Two Critical Violations involved Respondent's noncompliance with fire safety requirements. The fire extinguisher and built-in fire suppression system both bore outdated tags. The former tag expired in April 1997, and the latter tag expired in May 1997. The remaining three Critical Violations were that the restaurant lacked a filter in his hood over the stove, ceramic tiles over the three-compartment sink, and sanitizing solution in the bucket that was supposed to contain sanitizing solution. Respondent's employee explained that the hood filters were being cleaned, but apparently offered no explanation for the other two Critical Violations. Despite the specific warnings concerning the licensing and training violations, the January 1998 inspection report requires only that Respondent correct the violations by the next routine inspection. On March 26, 1998, Petitioner's inspector conducted an reinspection of Respondent's restaurant. The inspection uncovered the same Critical Violations, except for the sanitizing solution. The report states that Respondent must come to Petitioner's office in the next seven days to renew his license. On April 2, 1998, Petitioner served upon Respondent an Administrative Complaint alleging that, on January 1, 1998, Respondent was operating without a license. Neither this nor any subsequent charging document cites any of the other six Critical Violations found in the January 22, 1998, inspection as bases for discipline, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On June 30, 2000--over two years after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to the Division of Administrative Hearings (DOAH) for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2694. On April 29, 1998, Petitioner's inspector conducted another reinspection. Upon identifying himself to Respondent's employee, the employee denied the inspector access to the premises and told him to return at 2:00 PM. The inspector replied that the reinspection would take only five minutes and that he could not return at 2:00 PM, but the employee continued to deny the inspector entry. On May 12, 1998, Petitioner's inspector conducted another reinspection and found the same seven Critical Violations present during the January 1998 inspection. New Critical Violations were the presence of one "small mouse and roaches" under the three-compartment sink and the presence of cooked sausage patties and links with an internal temperature too low to prevent the proliferation of bacteria. As for the food manager's card, Respondent told the inspector that he had left it at home. The report warns that Respondent must correct the violations by May 18, 2000, 8:00 AM. On September 29, 1998, Petitioner served upon Respondent a Notice to Show Cause alleging the violations found during the inspections of March 26, April 29, and May 12, 1998. On June 30, 2000--one year and nine months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2697. On July 31, 1998, Petitioner's inspector conducted another reinspection and found five of the same Critical Violations: operating without a license, no employee with a food manager's card, fire suppression system bearing an outdated tag, ceramic tile missing over the three-compartment sink, and heavy grease accumulation on the hood filters, which had been reinstalled. Petitioner never cited these five Critical Violations in any charging document, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On October 2, 1998, Petitioner's inspector conducted an inspection and found four of the original Critical Violations: no license, no employee with a food manager's card, no current tag on the fire suppression system, and no ceramic tile over the sink. Although the fire extinguisher was presumably current, it was improperly placed on the floor. Other Critical Violations included the storage of sausage at the improperly warm temperature of 51 degrees, the absence of a thermometer in the home-style refrigerator, the presence of rodent feces on the floor, the absence of working emergency lights, the absence of a catch pan in the hood system, a broken self-closer on the side door, a clogged hand sink, an extension cord serving a toaster, and the evident expansion of the restaurant without an approved plan. The report gives Respondent until October 9, 1998, at 11:00 AM to correct the violations. On October 12, 1998, Petitioner's inspector conducted a reinspection and found all of the Critical Violations cited in the preceding paragraph still uncorrected. On October 20, 1998, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of October 2 and 12, 1998. On June 30, 2000--one year and eight months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2695. For some reason, Petitioner neither prosecuted the pending charges nor conducted repeated inspections for several months after October 1998 inspections and Administrative Complaint. The next inspection of Respondent's restaurant took place on April 30, 1999. Despite the six and one-half months that Petitioner effectively gave Respondent to correct the numerous Critical Violations cited in the October 12, 1998, inspection, Respondent continued to violate many of the same provisions for which he had been cited throughout nearly all of 1998. The inspection report discloses that, again, Respondent was operating without a license. The report notes that he lacked a license for the licensing years ending in 1998 and 1999. One of Petitioner's inspectors testified that Respondent had been making progress on the licensing issue. However, the implication that Respondent was unable to pay the $190 licensing fee (usually accompanied by a $100 delinquent fee) is quietly rebutted by the notation, also in the April 30, 1999, report, that Respondent had completed the expansion project--still, without the required plan review. Again, no employee at the restaurant had a food manager's card. Again, the fire suppression system was in violation--this time because the indicator revealed that it needed to be recharged. Again, the hood filters were missing above the cooking surface. Again, the hand sink was inoperative- -this time, it was not only clogged, but it also lacked hot water. Again, emergency lighting was inoperative. Again, the ceramic tile was missing over the three-compartment sink. Again, food was maintained too warm in the refrigerator--this time, chicken was at 69 degrees. A new Critical Violation was the exposure of live electrical lines and insulation. The April 1999 inspection report gives Respondent until May 14, 1999, at 11:00 AM to correct the violations. On May 14, 1999, Petitioner's inspector conducted a reinspection and found that Respondent still had not obtained a license for the licensing year ending in 1999, still lacked an employee with a food manager's card, still had not obtained approval of its expansion plan, still lacked ceramic tile over the three-compartment sink, still had a clogged hand sink without hot water, still lacked working emergency lights, still tolerated exposed electrical line and insulation, and still lacked hood filters above the cooking surface. On June 2, 1999, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of April 20 and May 14, 1999. On June 30, 2000--one year and one month after issuing the Administrative Complaint-- Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2696. Over a period of 16 months, Petitioner conducted eight inspections of Respondent's restaurant. On what would have been a ninth inspection, one of Respondent's employees denied access to the inspector. On each of these eight inspections, Respondent was operating without a license, lacked an employee with a food manager's card, and lacked ceramic tile over the three- compartment sink. On seven of these eight inspections, the fire suppression system was expired or discharged, and the hood filter was missing or excessive grease had accumulated on the filter or the liner. On three of these eight inspections, the fire extinguisher was outdated, and, on a fourth inspection, it was improperly stored on the floor. On three of these eight inspections, sausage or chicken was at improper temperatures--the 86 degrees at which sausage was served on one occasion was only 17 degrees warmer than the 69 degrees at which chicken was stored on another occasion. On three of these eight inspections, the hand sink was unusable because it was clogged or lacked hot water, the emergency lights did not work, and restaurant expansion was taking place or had taken place without review or approval of the plans. On two of these eight inspections, the inspector saw signs of rodents in the kitchen--one time actually seeing a small mouse. On two of these eight inspections, exposed electrical lines and insulation were present in the kitchen. Petitioner has proved by clear and convincing evidence that Respondent committed all of the cited violations. Uncorrected violations over 16 months amount to more than a failure to take advantage of the numerous opportunities that Petitioner gave Respondent to bring his restaurant into compliance. These uncorrected violations constitute a refusal to comply with the basic requirements ensuring the health and safety of the public. The penalty must weigh, among other things, Respondent's blatant disregard of fundamental requirements in licensing, training, and fire and food safety; Petitioner's demonstrated lack of diligence in enforcing Respondent's compliance with these requirements; and the peril posed by these failures upon the public health and safety.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order revoking Respondent's license. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 October, 2000. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurant Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gail Hoge, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angelo E. Ruth 2774 Blake Street Fort Myers, Florida 33916
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated June 27, 2011, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 1620035. At all times material hereto, the Restaurant was located at 1145 South Federal Highway, Fort Lauderdale, Florida 33316. A critical violation in food service is considered to be a violation of the Food Code that, if not corrected, will most likely cause and is directly related to food-borne illness, food contamination, or environmental hazards. A non-critical violation in food service is considered to be a violation that is less likely to cause and will not directly contribute to food-borne illness or food contamination. On October 27, 2010, Lynden Lewis, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Lewis found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Lewis prepared a food inspection report, setting forth the alleged violations and that the violations were required to be corrected by the next unannounced inspection. The inspection report was signed by Inspector Lewis and a representative of the Restaurant. Inspector Lewis made the representative aware of the alleged violations and that the violations were required to be corrected by the next unannounced inspection, and he provided the representative with a copy of the inspection report. On June 16, 2011, Inspector Lewis and Begum Khatoon, an inspector with the Department, conducted an unannounced routine inspection of the Restaurant. Among other things, three critical violations were not corrected from the routine inspection of October 27, 2010. During the unannounced inspection, Inspector Khatoon prepared a food inspection report, setting forth, among other things, the alleged critical violations. The unannounced inspection report was signed by Inspector Khatoon and a representative of the Restaurant, and Inspector Khatoon provided the representative with a copy of the inspection report. Inspector Khatoon made the representative aware of the alleged violations and that an administrative complaint would be recommended. The most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was raw animal food was stored over ready-to-eat food--raw eggs were being stored over yogurt--in the reach-in cooler. This violation is critical because the ready-to-eat food (yogurt) has already been cooked and gone through the process of pathogenic destruction and will not go through that process again; whereas, the raw animal food (eggs) has not been cooked and not gone through the process of pathogenic destruction. Cross-contamination could occur from the raw animal food by dripping onto or touching of the ready-to-eat food, and any pathogens present on the ready-to-eat food, as a result of the cross-contamination, would pass-on to consumers when the ready-to-eat food is served. Mr. Rocchio's testimony that eggs are stored on the bottom of the refrigerator (reach-in cooler) is found to be credible; however, most importantly, the evidence fails to show that, on the day of the inspection, eggs were stored on the bottom of the refrigerator. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was the hand wash sink in the kitchen was not accessible for employee use at all times. A garbage can was placed in front of the hand wash sink in the kitchen, making the sink inaccessible to employees at all times to wash their hands. Even though Mr. Rochhio testified, and his testimony is found to be credible, that the garbage can was "not a large garbage can," the evidence fails to show, most importantly, that the garbage can did not cause the hand wash sink to be inaccessible to the employees at all times. This violation is a critical violation because the hands of employees become contaminated as employees work and, if the handwash sink is not accessible, the employees will be discouraged from washing their hands. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was handwashing cleanser was lacking at the hand washing lavatory in the kitchen. This violation is a critical violation because hands are a vehicle of contamination, and the use of soap by employees, when washing their hands, removes bacteria and viruses that can contaminate the employees' hands.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Valentinos Cucina Italiana violated section 509, Florida Statutes, through a violation of Food Code Rules 3-302.11(A)(1), 5-205.11(A), and 6-301.11; and Imposing an administrative fine in the amount of $750.00 against Valentinos Cucina Italiana. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 25th day of July, 2012.
The Issue The issues in DOAH Case No. 10-1704 are whether Respondent, Stacked Subs (Respondent), committed the violations alleged in the Administrative Complaint dated November 5, 2008, and, if so, what penalty should be imposed. Similarly, the issues in DOAH Case No. 10-2445 are whether Respondent committed the violations alleged in the Administrative Complaint dated June 24, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2009). At all times material to the allegations of these cases, Respondent operated as a public food service establishment subject to Petitioner’s jurisdiction. In his capacity as an inspector for Petitioner, Alfonso Rullan visited Respondent’s place of business (2054 State Road 436, Winter Park, Florida) on December 19, 2007. During the inspection, Mr. Rullan noted several food service violations that he memorialized in an inspection report provided to, and signed by, Mr. Nevarez. The violations, more fully described in Petitioner's Exhibit 2, required correction. It was contemplated that Respondent would correct the violations of the Food Code such that on second inspection the violations would no longer be found. Since the inspection revealed “critical” violations, it was incumbent on Respondent to timely correct the violations noted in the inspection report. “Critical” violations are violations that, if left uncorrected, can contribute to food contamination, food-borne illness, or adversely affect public health. Thus, “critical violations” must be timely corrected, as they are a present concern. Violations that could lead to critical violations are denoted as “non-critical.” These “non- critical” violations must also be corrected, but they do not constitute a present threat to the public On March 12, 2008, Inspector Will Goris returned to Respondent’s place of business and completed a second inspection report, denoting critical violations uncorrected from the prior inspection and itemizing the concerns that required correction. Mr. Nevarez signed the report. This report, Petitioner’s Exhibit 3, chronicled ten violations of the Food Code. Subsequently, Petitioner issued an Administrative Complaint (DOAH Case No. 10-1704), outlining the uncorrected and critical violations Respondent had failed to timely address. Respondent timely contested the complaint and sought an administrative hearing in connection with the allegations. Between December 2007 and March 12, 2008, Respondent failed to correct the following violations: Cheese in the reach-in cooler at the front counter was 51 degrees; Employees reported to work and handled food without first washing hands; The prep table was adjacent to the fryers and under the hood was encrusted and greasy; and Single service cups were stored on the floor by the register. Of the foregoing violations, the failure of employees to wash their hands prior to handling food was the most critical violation. This violation was noted by both inspectors. On January 26, 2009, Inspector Goris conducted a routine inspection of Respondent’s premises. On this date, minor violations of the Food Code were again noted, but Mr. Nevarez was given a “met inspection standards” review for this visit. Nevertheless, Petitioner expected Respondent to correct the non-critical violations in a timely manner. On June 17, 2009, when Inspector Goris presented at the restaurant, violations were discovered that led to the second Administrative Complaint, DOAH Case No. 10-2445. Two of the violations were deemed repeat violations, and two were critical violations directly related to public safety; to wit: the soda disperser had slime on it, and proof of employee food- handler training was not available. Respondent timely challenged the Administrative Complaint in DOAH Case No. 10-2445. As to all alleged violations, Respondent was provided adequate notice of the allegations and was provided sufficient time to correct deficiencies. Respondent maintains that inspectors should be trained in abuse of power as their inspections can be discretionary and arbitrary. For example, Respondent claimed that the sleeve of cups on the floor by the cash register had merely fallen there when the inspector cited the violation. Respondent’s claim of abuse of power was unsupported by factual evidence. Moreover, the inspections performed by both inspectors documented objective criteria unrelated to opinion or subjective review. For example, dirty, greasy, or encrusted food surfaces were documented. The failure of employees to wash their hands was documented. The inadequate or incorrect temperature of containers of food was documented. These are not subjective items, but were disclosed to Respondent during and at the time of inspection. It is determined that the inspectors’ testimony was credible and persuasive as to the violations cited. The "Food Code," as it is used in this record, refers to paragraph 1-201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C-1.001. The Food Code is also available through the U.S. Food and Drug Administration Internet website.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against Respondent in the amount of $1,750.00 for the violations listed in DOAH Case No. 10-1704 and $1,000.00 for the violations identified in DOAH Case No. 10-2445. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper guidelines are adopted and implemented at the restaurant. DONE AND ENTERED this 5th day of October, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida Carlos Nevarez Stacked Subs 32399 2054 State Road 436 Winter Park, Florida 32792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated June 19, 2007, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Respondent, Demills Family Restaurant (hereinafter referred to as "Demills Family Restaurant" or "establishment"), a public food establishment, is licensed and regulated by the Division. The establishment's license number is 2200535. Demills Family Restaurant is located at 6501 Park Boulevard, Pinellas Park, Florida 33781. Larry Burke is employed by the Department as a senior sanitation and safety specialist. Upon being employed with the Department, Mr. Burke was trained in laws and rules for both food service and public lodging establishments. Mr. Burke is certified as a food manager and attends continuing education on a monthly basis. As part of his job responsibilities, Mr. Burke conducts approximately 1000 inspections a year, many of which include inspections of public food establishments. On April 26, 2007, Mr. Burke conducted a routine unannounced inspection of the Demills Family Restaurant. During the inspection, Mr. Burke observed several violations at the establishment which were critical violations that were required to be corrected within 24 hours. Mr. Burke set forth his findings in a Food Service Inspection Report on the day of the inspection and provided a copy of the report to Debra Nunez, one of the owners of the establishment. A violation of the Food Code or other applicable law or rule, which is more likely than other violations to contribute to food contamination, illness, or environmental health hazards, is considered a critical violation. In the April 26, 2007, Food Service Inspection Report, Mr. Burke specified that certain critical violations had to be corrected within 24 hours. However, there were other critical violations observed on April 26, 2007, for which the owners of the establishment were given a warning and an additional 30 days to correct the violations. On April 27, 2007, Mr. Burke conducted a call-back inspection at the Demills Family Restaurant to determine if the critical violations he had observed the previous day had been corrected. During the "call back" inspection, Mr. Burke observed that all the critical violations found during the April 26, 2007, which were required to be corrected within 24 hours, had been corrected within that time period. Also, some of the non-critical violations observed on April 26, 2007, had been corrected when the "call-back" inspection was conducted. (The violations cited in the April 26, 2007, routine inspection and that were corrected during the call-back inspection the following day are not at issue in this proceeding.) During the April 27, 2007, call-back inspection, Mr. Burke prepared a Callback Inspection Report on which he noted violations first observed during the routine inspection conducted on April 26, 2007, but which had not been corrected on April 27, 2007. In accordance with applicable guidelines, Mr. Burke issued a warning to the establishment's owners and gave them 30 days or until May 27, 2007, to correct the uncorrected violations observed on April 27, 2007. This warning appeared on the April 27, 2007, Callback Inspection Report which was given to Mrs. Nunez. On May 31, 2007, Mr. Burke performed a second call-back inspection at Demills Family Restaurant. During this call-back inspection, Mr. Burke observed and cited the violations previously cited on the April 27, 2007, Call-Back Inspection Report that had not been corrected. These violations are discussed below. Violation No. 02-13, one of the uncorrected violations, involved the establishment's failure to provide a consumer advisory on raw/undercooked meat. This violation was based on information provided by personnel in the kitchen that hamburgers in the establishment are "cooked to order." In light of this policy, there are some customers who will likely order hamburgers that are undercooked. In those instances, pathogens may not be eliminated from the meat. Thus, establishments, such as Respondent, are required to inform customers of the significantly increased risk of eating such meat. After the May 31, 2007, call-back inspection and prior to this proceeding, the owners of the establishment posted signs throughout the dining room area which warned customers about the risks of consuming raw or undercooked foods (i.e., meats, poultry, seafood, shellfish or eggs). Violation No. 02-13 is a critical violation, but not one that is required to be corrected within 24 hours. Rather, this was a critical violation because it was a repeat violation after it was not corrected within the 30-day call-back period. Violation No. 32-15-1, one of the uncorrected violations, involved Respondent's failure to have hand-wash signs at the sinks designated for use by employees. The display of hand-washing signs at these sinks is important because it reminds employees to wash their hands, which helps prevent the transmission of food-borne disease by employees. This was a critical violation because it was a repeat violation and one which was not corrected within the 30-day call-back period. Mr. Nunez does not dispute that at the time of the May 31, 2007, call-back inspection, there were no hand-wash signs. However, since that time, he has placed signs that notify employees to wash their hands. These signs are placed at all hand-wash sinks used by employees, including the one in the cooks' kitchen and in the waitresses' station, and are clearly visible to the employees. The establishment also has hand-wash signs at all sinks in the establishment, including those used by customers. Violation No. 37-14-1, an uncorrected violation, was based on part of the ceiling in the establishment being in disrepair. Specifically, the section of the ceiling that was in disrepair was above a food storage area which contained "open food product." This offense is not classified as a critical violation under the Food and Drug Administration or under Florida law. Mr. Nunez does not dispute that part of the ceiling in the establishment was in disrepair at the time of the May 31, 2007, call-back inspection and the previous April 2007 inspections. Although Mr. Nunez was aware of the problem, he had to rely on the landlord of the building in which the establishment was located to repair the roof. The problems with the roof contributed to the ceiling being in disrepair. Finally, after about four years of asking the landlord to repair the roof, after the May 31, 2007, call-back inspection, the landlord had the roof repaired. The roof repairs are still not complete. However, based on the roof repairs that were completed by early to mid September 2007, Mr. Nunez was able to repair the section of the ceiling at issue in this proceeding. These ceiling repairs were completed by or near the middle of September 2007. Violation No. 37-14-1, an uncorrected violation, was based on Mr. Burke observing that the establishment's exit sign in the dining room was not properly illuminated. The requirement for exit signs to be illuminated is a safety issue. This was a critical violation because it was a repeat violation and one that was not corrected within the 30-day call-back period. Mr. and Mrs. Nunez do not dispute that at the time of the call-back inspection of May 31, 2007, the exit sign was not illuminated. The problem was caused by a problem with a wire in the sign. The person who does electrical work in the establishment had been out-of-town for several weeks and was unavailable to repair the exit sign. However, about three days after the May 31, 2007, call-back inspection, after the repair person returned, he repaired the exit sign; since then, it is properly illuminated. Violation No. 47-16-1, an uncorrected violation, was based on Mr. Burke observing an uncovered electrical box. The box needed to be covered to protect the breaker and to protect the employees and anyone else who had access to the box. This uncorrected violation was a critical violation at the time of the May 31, 2007, call-back inspection. Mrs. Nunez does not dispute that there was an electrical box that was uncovered on May 31, 2007. However, Mrs. Nunez testified that during the initial walk-through in April 2007, Mr. Burke showed her the uncovered electrical box that was located above the walk-in freezer. At that time, the cover was off the electrical box and the wires were exposed. Mrs. Nunez thought that the electrical box above the walk-in freezer was the only electrical box that was cited as a violation after the April 27, 2007, call-back inspection. Based on that understanding, that violation was corrected. However, during the May 31, 2007, call-back inspection, Mr. Burke showed Mrs. Nunez another electrical box in the establishment that was in violation of applicable provisions. Until that time Mrs. Nunez had not been told, and was not aware, that the second electrical box constituted a violation. This mistake on her part was likely caused by the fact that the structure of the second electrical box was completely different from that of the electrical box over the walk-in freezer. The electrical box over the walk-in freezer had wires which were exposed when the box was not covered. On the other hand, the second electrical box resembles a fuse box and did not have any exposed wires. Violation No. 28-02-1 involved the reuse of single- service articles. This violation is based on Mr. Burke observing Respondent's employees reusing plastic food containers, such as the ones sour cream and cottage cheese are in when delivered to the establishment. Such plastic containers should not be used once the food is exhausted. The reason is that the plastic in such containers is not "food service grade for sanitation purposes." Violation No. 28-02-1 is a non- critical violation. The owners of the establishment do not contest Violation No. 28-02-1, related to the reuse of single-service articles. Mrs. Nunez testified that she purchased containers that could be reused and instructed appropriate staff to use those containers. After being given those instructions, the employees told Mrs. Nunez that they were no longer reusing containers for single-service articles although they were doing so. However, as a result of the violation cited during the May 31, 2007, call-back inspection, Mrs. Nunez is committed to checking to ensure that employees are not reusing the plastic containers for single-service articles. Violation No. 61-13-1 is based on Mr. Burke observing that no Heimlich sign was posted in the establishment. The purpose of the Heimlich sign is to provide information in the event a customer in the restaurant is choking. This is a non- critical violation because it makes customers aware in the event of a choking situation. In July 2007, Mr. Nunez left his job as a project engineer to become involved in the day-to-day operations of the Demills Family Restaurant after he realized there were problems at the restaurant that required his attention. Among the issues Mr. Nunez had to initially deal with were the violations cited in the May 31, 2007, Call-Back Inspection Report. Throughout the initial inspection and the call-back inspections, the owners have cooperated with Mr. Burke and corrected most of the violations for which the establishment was cited. Mr. Burke has not conducted an inspection of the Demills Family Restaurant since the May 31, 2007, call-back inspection. However, since that time, all the violations which are the subject of this proceeding have been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Demills Family Restaurant, violated Food Code Rules 3-603.11, 4-502.13(a) and 6-301.14; Florida Administrative Code Rules 61C-1.004(2)(C), 61C-1.004(6) and 61C-1.004(10); and NFPA Rule 70.300.31. Imposing a total administrative fine of $2,800 for the foregoing violations. Requiring Respondent (through its employees and/or owners) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2007.
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 (2006). At all times material to this case, the Respondent was a restaurant located at 7551 West Waters Avenue, Tampa, Florida 33615, holding Food Service license number 3903935. On July 11, 2006, Richard Decker, a senior inspector representing the Petitioner, performed a routine inspection of the Respondent that resulted in emergency closure of the restaurant due to a roach infestation problem. The inspection report stated that the deadline for correcting the roach problem was July 12, 2006, and the matter was apparently resolved in a timely manner. Mr. Decker found additional violations of applicable Food Code regulations on July 11, 2006, which were cited in a written Food Service Inspection Report, a copy of which was provided to restaurant owner Anthony Della Monica on the date of the inspection. Mr. Decker's inspection identified critical and non- critical violations. Critical Food Code violations pose serious public health risk due to potential transmission of food-borne illness. Critical life safety violations such as blocked exits increase the risk of public injury. Violations that do not pose a direct and imminent public health risk are identified as non- critical. Other than as set forth herein, the violations cited during the July inspections were to have been corrected by the time of Mr. Decker's August 15, 2006, re-inspection. Many of the previously cited violations had not been corrected at that time. The August 15, 2006, re-inspection report was received by Mr. Della Monica on the date of the inspection. Mr. Decker again re-inspected the restaurant on October 20, 2006. Several violations previously cited in July remained uncorrected at that time. The October 20, 2006, re- inspection report was received by Head Chef Kurt Clasen on the date of the inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a certified food manager on the premises and for lacking of proof that employees had received food safety training. Such training was intended to reduce the potential for transmission of food-borne illness. These violations were deemed critical. Although Mr. Decker established an extended deadline of October 11, 2006, to correct the certified food manager and employee training violations, they remained uncorrected by the October 20, 2006, re-inspection. During the July inspection, Mr. Decker cited the Respondent for lacking a hand sink in the dishwashing area and noted that a hand sink at the rear of the kitchen was being used for food preparation. The requirements related to hand sinks were intended to reduce the potential for transmission of food- borne illness. The violations of the requirements were deemed critical. The Respondent still lacked a hand sink in the dishwashing area at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for using extension cords on a non-temporary basis to power equipment in the kitchen. The Respondent's improper electrical cord use was a fire hazard and was deemed a critical violation. By law, extension cords can only be used on a temporary basis. The cited extension cords remained in use by the Respondent at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for removing food products from original packaging and storing them in unlabeled containers, a critical violation that increased the risk of confusing food products with non- edible products such as cleaning chemicals. The violation remained uncorrected at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for lacking a chemical testing kit used to ascertain that the dishwasher sanitization function was operating properly. Lack of proper sanitation increased the potential for transmission of food-borne illness. The violation, deemed critical, was not corrected by the time of either re-inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a visible thermometer in a pizza- holding unit. The inability to monitor food-holding temperatures increased the potential for transmission of food- borne illness and was a critical violation. The violation was uncorrected at the time of the August re-inspection as it should have been, but it had been remedied by the October re- inspection. During the July inspection, Mr. Decker cited the Respondent for the lack of light bulb shields in a food service area, which increased the risk that food could be contaminated by glass in the event of light bulb breakage. This was deemed a non-critical violation and remained uncorrected at the time of either re-inspection.
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 $3,800 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 11th day of May, 2007, 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 11th day of May, 2007. COPIES FURNISHED: Anthony Della Monica Mama D's Pasta & Grille 1819 Audubon Street Clearwater, Florida 33764 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 30530 South Dixie Highway, Homestead, Florida, and holding food service license number 2330285. On July 6, 2009, and November 3, 2009, Respondent was inspected by sanitation and safety specialists employed by the Division. During both visits, inspectors noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Brown and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of November 3, 2009, the following deficiencies subsisted at Respondent Galindo Cafe: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) food was stored on the floor, raw food was stored over cooked food, and uncovered food was present in a holding unit, in violation of Food Code Rules 3- 305.11(A)(3), 3-302.11(A)(1)(b), and 3-302.11(A)(4), respectively2; (3) a cutting board that was grooved, pitted, and no longer cleanable was observed, in violation of Food Code Rule 4-501.12; (4) unclean, wet wiping clothes were observed, in violation of Food Code Rule 3-304.14(B)(2); (5) a buildup of soiled material on racks in the walk-in cooler was present, in violation of Food Code Rule 4-601.11(A); and (6) a wall soiled with accumulated grease was observed, in violation of Florida Administrative Code Rule 61C-1.004(6). The deficiencies relating to the improper storage of food, the build-up of soiled material, and the lack of proper food labeling are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The three remaining deficiencies (a grooved and pitted cutting board, unclean wiping clothes, and the accumulation of grease on a wall), while not categorized as a critical violations, are serious nonetheless because they can lead to the contamination of food.
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: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1800, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 25th day of January, 2011, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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, 2011.
