The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact Gigi's Restaurant, LLC, holds Permanent Food Service license 2331011, which authorizes the operation of a public food establishment at 3585 Northeast 207th Street in Aventura, Florida, and expires October 1, 2011. Respondent last renewed its license on September 21, 2010. On January 13, 2010, at 11:29 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. At the time, Respondent's license had expired. The inspector also observed, among other things, the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate-strength dishmachine sanitizer; not-sanitized- properly-after-cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three-compartment sink. The inspector notified Respondent that a reinspection would take place on March 13, 2010, at 11:30 a.m. On April 21, 2010, the inspector performed a reinspection of the public food establishment. At the time, Respondent still had not renewed its license. The inspector observed the recurrence or continuation of the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate- strength dishmachine sanitizer; not-sanitized-properly-after- cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three- compartment sink. The five remaining violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause food-borne illness.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the five violations identified above and revoking the public food establishment license of Respondent. DONE AND ENTERED this 8th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Arner Gigi Gigi’s Cafe 3585 Northeast 207 Street, No.C302 Miami, Florida 33180 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated July 26, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See § 509.032, Fla. Stat. The Coffee Salom Tropical is a food service establishment licensed and regulated by the Division. Jorge Gandolff, an inspector employed by the Division, inspected the premises of Coffee Salom Tropical on May 18, 2004, and prepared a Food Service Inspection Report setting forth his findings. He noted in the report that he had observed a number of violations of the Food Code during the May 18, 2004, inspection. Mr. Gandolff went over the results of the inspection with Pilar Cruz, an owner of Coffee Salom Tropical, and he informed her that he would conduct a re-inspection on June 18, 2004. Mr. Gandolff conducted the re-inspection of Coffee Salom Tropical on July 15, 2004, and completed a Callback Inspection Report in which he noted that Coffee Salom Tropical was in compliance with all except five of the violations noted in the Food Service Inspection Report dated May 18, 2004. The five uncorrected violations Mr. Gandolff observed during the July 15, 2004, re-inspection were (1) "potentially hazardous food thawed in an improper manner"; (2) "no chemical test kit provided when using chemical sanitizer at three compartment sinks"; (3) "plumbing improperly installed, coffee machine draining into handsink"; (4) "manager lacking proof of Food Manager Certification"; and (5) "employee training provided by unapproved provider, training provided by a non certified food manager." After the inspection on May 18, 2004, Aracely Gonzalez, the secretary of the corporation that owns Coffee Salom Tropical, and her brother attended classes required as a prerequisite for taking the test for food manager certification. Ms. Gonzalez contacted a private testing company and arranged to take the test on July 21, 2004. Ms. Gonzalez passed the test and was issued her food manager certification.
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 Coffee Salom Tropical violated Food Code Rule 4-302.14; Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) and (4), and imposing a fine in the amount of $2,500.00. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 February, 2005.
The Issue The issues in this case are whether Respondent has violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11, and, if so, what discipline should be imposed.
Findings Of Fact Mama B.’s is a restaurant located in Orlando, Florida. The Department is the state agency which is charged with the licensing and regulation of public food establishments in Florida pursuant to Section 20.165 and Chapter 509, Florida Statutes. On July 13, 2005, Andrea Piel, an inspector for the Department, went to Mama B.’s to perform a food service inspection. Ms. Piel found that the sandwich cooler located at Mama B.’s was not maintaining potentially hazardous food at 41 degrees Fahrenheit or below. Specifically, she found that the temperature of the ham, turkey, and seafood in the reach-in cooler was 47 degrees Fahrenheit. The temperature of the salami in the reach-in cooler was 50 degrees Fahrenheit, and the temperature of the pepperoni and pastrami stored in the reach-in cooler was 48 degrees Fahrenheit. The temperature of the cheese in the reach-in cooler was 42 degrees Fahrenheit. On the same inspection, Ms. Piel also found that hot foods were not being held at a temperature of at least 135 degrees Fahrenheit. She found the following on the front line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at 112 degrees Fahrenheit, and cooked onions at 130 degrees Fahrenheit. On her inspection on July 13, 2009, Ms. Piel also observed that Mama B.’s was not using proper cooling methods to cool hot food from 135 to 41 degrees Fahrenheit within six hours. Steak was being cooled in deep containers with tight fitting lids. Ms. Piel saw tomatoes being stored less than six inches above the floor. There was ready-to-eat cheese, which had been rewrapped and undated, stored in a cooler. On July 13, 2009, Mama B.’s was given a warning by Ms. Piel, and a call-back inspection was scheduled for July 14, 2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the call-back inspection. She again observed that tomatoes were being stored about an inch off the ground. There was food being stored in the sandwich cooler at temperatures above 41 degrees Fahrenheit. The cooler contained ham and salami at 48 degrees Fahrenheit; capicola and seafood at 50 degrees Fahrenheit; turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro meat at 45 degrees Fahrenheit. On July 15, 2009, Ms. Piel also saw steak and onions, which were being cooled in deep containers with tight fitting lids. She also saw hot pastrami being held at 125 degrees Fahrenheit. Ms. Piel testified that the pastrami being held was not for orders waiting to be filled. Ms. Piel did not explain how she knew that there were no other orders for pastrami sandwiches. Mr. Adamik, an owner of Mama B.’s who was present at the time of the July 15, 2009, inspection, testified that there were several orders for pastrami sandwiches, which were being filled at the time Ms. Piel observed the pastrami. According to Mr. Adamik, the rolls were already placed on the board awaiting the placement of the pastrami, but, because the preparation area was so small, it was impossible to completely prepare more than one pastrami sandwich at a time. Mr. Adamik’s testimony is credited. The pastrami, which Ms. Piel observed, was being used for immediate service in response to consumer orders. The cooler in which the food was being stored above 41 degrees Fahrenheit had been in operation at Mama B.’s since the late 1990’s. The machine cools from beneath and does not also cool from the top as newer models do. After the violations were noted on July 15, 2009, the old cooler was replaced. Mama B.’s had contacted a repairman after the July 13, 2009, inspection, but the cooler could not be repaired so as to make it cool foods at 41 degrees Fahrenheit or less. Mr. Adamik knew that the location of the tomatoes was a violation, but he did not correct it by the July 15, 2009, because he was busy trying to get the cooler repaired. Mr. Adamik had no explanation why the ready-to-eat food, which had been opened at Mama B.’s, did not have appropriate date marks. Violations of Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B) are considered to be critical violations by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the violation of Food Code Rule 3-305.11; imposing a fine of $300 for the violation of Food Code Rule 3-501.15; imposing a fine of $500 for the violation of Food Code Rule 3-501.16(A); and imposing a fine of $400 for a violation of Food Code Rule 3-501.17(B). DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 February, 2010.
The Issue The issue in this case is whether the Respondent, Flamers, committed the violation alleged and, if so, what penalty should be imposed.
Findings Of Fact The 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. (2007). At all times material to the allegations of this case, the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (see Petitioner’s Exhibit A). In his capacity as a sanitation and safety specialist for the Petitioner, Mr. Morales visited the Respondent’s place of business located at 801 North Congress Avenue, Boynton Beach, Florida, on two occasions. Mr. Morales has extensive training and education in food service related matters and has performed numerous inspections for the Petitioner. He is familiar with all relevant food service law and rules pertaining to the inspection of licensed food service establishments. First, on May 11, 2007, Mr. Morales visited the Respondent’s place of business and noted several Food Service Inspection violations. These violations were documented (Petitioner’s Exhibit B) and a copy of the inspection report was provided to Mr. Yo. Mr. Yo owns the restuarant and was present during this first inspection. The violation pertinent to this case is more fully described below (see "callback" inspection results). At the time of the first inspection, Mr. Morales warned that a “call back” inspection would be performed and issued the Respondent with a warning regarding the violations noted on the inspection form. The “call back” inspection was provided to afford the Respondent with time to correct the deficiencies noted in the first inspection and to assure that the deficiencies were timely corrected. On June 14, 2007, Mr. Morales returned to the Respondent’s place of business to perform the “call back” inspection. The “call back” inspection report (Petitioner’s Exhibit C) noted two violations had not been corrected. Only one of these violations remains at issue. Specifically, Mr. Morales found that the food containers that stored food overnight were not clearly marked and dated. This is not an approved method of storing food. Mr. Yo was not present during this "call back" inspection. Michael Evancich was present during the "call back." Mr. Evanich identified himself to Mr. Morales as the Respondent's "manager." Mr. Evancich signed the Food Service Inspection Report that detailed the violation. Mr. Morales noted that potentially hazardous food was prepared and held in containers for more than 24 hours without being clearly marked to indicate the date or day by which the food would be consumed, sold, or discarded. See Food Code Rule 3-501.17(A). Food containers with hot dogs, chicken breasts, and burgers were not dated and were stored overnight inside a cooler. According to Mr. Morales this is a critical violation. Undated and out-dated food can grow bacteria leading to a potential health hazard. The purpose of the labeling assures that potentially hazardous products are not sold to the public or consumed. Although he was not present during the "call back" inspection, Mr. Yo maintained that the Respondent has a policy to assure that food products are marked and stored in an approved manner.
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 in the amount of $500.00. S DONE AND ENTERED this 24th day of January, 2008, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 January, 2008. COPIES FURNISHED: William Veach, Director Division of Hotels and Restuarants 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 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Yo 6205 Floridian Circle Lake Worth, Florida 33463
The Issue The issues are whether Respondent is guilty of certain violations of the Food Code, and if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondent was licensed and regulated by Petitioner. Respondent operated under License No. 20-00805-R, in a leased facility in Green Coves Springs, Florida. On December 26, 2003, Daniel Fulton, Petitioner's Senior Sanitation and Safety Specialist, performed a routine inspection of Respondent's premises. During the inspection, Mr. Fulton prepared a Food Service Inspection Report (FSIR) setting forth his findings. Mr. Fulton gave Respondent's manager a copy of the report and explained each finding as a citation/violation. On January 27, 2004, Mr. Fulton re-inspected Respondent's premises. During the re-inspection, Mr. Fulton prepared a Callback Inspection Report, setting forth his findings. Based on his observations, Mr. Fulton listed citations on the Callback Inspection Report that had not been corrected after the December 2003 inspection. According to the Callback Inspection Report, the gas equipment in Respondent's pit area still did not have a fire suppression system over it. Typically, this would constitute a critical violation. However, during the hearing, Respondent provided evidence that the Clay County Fire Inspector considered the current configuration of the hood exhaust system to be acceptable to the Clay County Department of Public Safety. Petitioner's Proposed Recommended Order indicates that it has withdrawn the allegation that Respondent violated the National Fire Protection Act of 1996. On January 27, 2004, Mr. Fulton observed that an outside cooker was not properly enclosed, creating a critical violation. The walls that enclosed Respondent's cooker were not at least four feet high. The area was not properly screened between the existing walls and the roof. In fact, the roof did not cover part of the area where the cooker was located. On January 27, 2004, Mr. Fulton observed that a faucet or hose bib did not have a back-flow prevention device. The lack of a back-flow prevention device created a critical violation. On January 27, 2004, Mr. Fulton observed that there was a black substance on the interior of an ice machine's lid. The December 2003 FSIR did not list this citation as a critical concern that must be corrected immediately. However, Mr. Fulton provided persuasive testimony that ice is consumable and that any foreign black substance in the interior of an ice machine constituted a critical violation. During the December 2003 inspection, Mr. Fulton cited Respondent for not having adequate sneeze protection over the soup pot on the buffet bar. Simply placing a lid on the crock pot was not sufficient to provide that protection when customers removed the lid. After the December 2003 inspection, Respondent decided to adjust the height of the crock pot to provide more sneeze protection. In making the adjustments, Respondent was careful not to let the soup become inaccessible for children and disabled customers in wheelchairs. On January 27, 2004, Mr. Fulton observed that the crock pot containing soup at the buffet bar continued to have inadequate sneeze protection for a person of average height, approximately five feet and six inches. The sneeze protection over the crock pot was not properly adjusted until Mr. Fulton conducted a third inspection in October 2004. The lack of adequate sneeze protection did not constitute a critical violation. On January 27, 2004, Mr. Fulton observed that the inside light of a reach-in cooler was not operational. Respondent ordered the replacement light after the December 2003 inspection, but had not received it at the time of the callback inspection in January 2004. This was not a critical violation. Respondent was aware of all of the above-referenced violations after the December 2003 inspection. Respondent had not corrected them at the time of the January 2004 inspection. In June 2004, Elizabeth Tillman, one of Respondent's owners took over Respondent's day-to-day management. By the time that Mr. Fulton inspected the premises in October 2004, all violations had been corrected except for violations that required building construction by a new owner of the leased premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative penalty in the amount of $1,000.00. DONE AND ENTERED this 9th day of March, 20005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 9th day of March, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Grant Gibson, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Elizabeth and Ronald Tillman 505 North Orange Avenue Green Cove Springs, Florida 32043 Geoff Luebkemann, Director Department of Business and Professional Regulation Division of Hotel and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Lenin's, a licensed restaurant, committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against Lenin's.
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, Lenin's was licensed as a public food service establishment, with the following business address: 444 West Railroad Avenue, Suite 100, West Palm Beach, Florida 33401. On April 25, 2013, and June 28, 2013, Lenin's was inspected by Tamara Burton, a sanitation and safety specialist with the Division. During both visits, Ms. Burton noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Ms. Burton and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of June 28, 2013, the following deficiencies subsisted at Lenin's: (1) hot food, specifically beef empanadas, rice and beans, and rice, held below the required temperature, in violation of Food Code Rule 3.501.16(A)(1); (2) cold food, specifically butter, being held above the required temperature, in violation of Food Code Rule 3.501.16(A)(2); (3) an employee failing to wash his or her hands before putting on a new set of gloves to work with food, in violation of Food Code Rule 2-301.14(H); (4) raw beef stored over produce, in violation of Food Code Rule 3.302.11(A)(1); (5) a chlorine sanitizer not at the proper minimum strength, in violation of Food Code Rule 4-501.114(A); (6) an employee hand-wash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; (7) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes; no proof of required state approved employee training for its employees, in violation of section 509.049(5), Florida Statutes; food, specifically sugar, removed from the original container was not properly labeled as “sugar”, in violation of Food Code Rule 3-302.12; and (10) an employee not wearing a hair restraint, in violation of Food Code Rule 2-402.11. As numbered in the previous finding, and pursuant to Florida Administrative Code Rule 61C-1.005, violations 1-5 are characterized as high priority violations, violations 6-8 are characterized as intermediate violations, and violations 9-10 are characterized as basic violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Lenin's guilty of all counts as charged in the Administrative Complaint; dismissing Count Four of the Administrative Complaint; and ordering Lenin's to pay an administrative penalty in the amount of $3,300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 9th day of January, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 9th day of January, 2014. COPIES FURNISHED: Lenin Martin Lenin's 444 West Rail Road West Palm Beach, Florida 33401 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 Diann O. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
