The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated May 23, 2011, and if so, whether disciplinary action should be taken against Respondent.
Findings Of Fact The Department is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is a Florida corporation named Stugotz, Inc., doing business as Joey's On Beach. The corporation is wholly owned by Joseph Di Meglio. Respondent holds a public food establishment license issued by the Department. Respondent's business address is 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. Inspector Smith has been employed by the Department as a Sanitation and Safety Specialist for approximately five years. She has received training in laws and rules regarding public food service and lodging, is a certified food manager, and performs approximately 1,000 inspections each year for the Department. Formerly, Inspector Smith was a restaurant manager for 15 years. On March 2, 2011, Inspector Smith performed a food service inspection of Joey's On Beach located at 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. During the inspection, Inspector Smith prepared and signed an inspection report on her electronic personal data assistant setting forth violations she allegedly encountered during the inspection. Ann Marie Di Meglio, the wife of the owner of Joey's On Beach, was present during the inspection and signed the report on the electronic device. According to the inspection report, the March 2, 2011 inspection of Joey's On Beach occurred at 11:11 a.m. Joey's On Beach opens at 11:00 a.m. The inspection occurred during active food preparation. Inspector Smith made the Respondent aware that all violations noted during the inspection needed to be corrected by May 2, 2011. All of the pages of the three-page March 2, 2011, inspection report are prefaced with the heading "FOOD SERVICE INSPECTION REPORT LEGAL NOTICE" with the warning that "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." The third page of the March 2nd report set forth alleged violations as follows: Warning(s) 12A-09-1: Observed food employee wearing jewelry other than a plain ring on their hands/arms while preparing food. 22-25-1: Observed buildup of soiled material on mixer head. 08A-28-11: Observed bag if [sic] bread crumbs on foor [sic] in walkin cooler. 08A-29-1: Observed sauce and bread crumbs uncoverd [sic] in walkin cooler. 02-22-1: Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked. Sausage 08A-23-1: Observed shell eggs over sausage in walkin cooler 08A-28-1: Observed jug of oil stored on the floor. 53B-08-1: No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. 32-16-1: Hand wash sink lacking proper hand drying provisions. Corrected on site. 09-04-1: Observed bare hand contact of ready-to-eat food by employees and establishment has no approved Alternative Operating Procedure in effect. Corrected On Site. On May 3, 2011, Inspector Smith performed a callback inspection of Joey's On Beach. According to the report, the inspection was performed at 10:18 a.m. Respondent had not yet opened for business and the callback inspection was conducted during active food preparation. During the callback inspection, Inspector Smith did not discuss specifics of the case with the owner, Joseph Di Meglio, because, according to Inspector Smith, inspectors are "not allowed to discuss the case at an inspection." Inspector Smith prepared and signed a two-page report for the May 3rd callback inspection on her electronic personal data assistant indicating that some of the violations noted on the March 2, 2011, inspection report had not been corrected. Mr. Di Meglio signed the May 3, 2011, inspection report. Both pages of the May 3 inspection report had the same "Legal Notice" as the earlier report, stating "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." Alleged uncorrected violations recommended for an administrative complaint were noted on the May 3 inspection report as follows: The following item(s) have been recommended for Administrative Complaint: Violation 53B-08-1 No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. At callback no training provided for Ann Marie. Violation 22-25-1 Observed buildup of soiled material on mixer head. Violation 08A-29-1 Observed sauce and breadcrumbs uncovered in walkin cooler Violation 08A-28-1 Observed bag if [sic] breadcrumbs on floor in walkin cooler Violation 02-22-1 Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked, sausage, and at callback sausage and meat balls not date marked in walkin cooler The Administrative Complaint in this case charged Respondent with the same five alleged violations recommended in the May 3rd callback inspection report, in the following order (Counts 1 through 5): (1) Observed ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked in walk-in cooler [referencing 02-22-1, and citing 3-501.17(A), Food Code]; (2) Observed bag of bread crumbs on floor in walk-in cooler [referencing 08A-28-1, and citing 3-305.11, Food Code]; (3) Observed sauce and break [sic] crumbs uncovered in walk-in cooler [referencing 08A-29-1, and citing 3-302.11A)(4), Food Code]; (4) Observed build up of soiled material on mixer head [referencing 22-25-1, and citing 4-601.11(A), Food Code]; and (5) Observed no proof of required training provided, at call back no training provided for Ann Marie [referencing 53B-08-1, and citing 509.049, Florida Statutes]. At the final hearing, the Department announced that Count 5 of the Administrative Complaint, alleging a lack of training in violation of section 509.049, Florida Statutes, had been dropped because Mr. Di Meglio had established to the Department's satisfaction that Respondent's employees were properly trained. The Department presented some evidence in support of the remaining allegations. As discussed below, however, the Department only met its burden of persuasion as to Count 2 alleging that breadcrumbs were improperly stored in an open container on the floor of the walk-in cooler. As to Count 1 of the Administrative Complaint, at the final hearing, Inspector Smith referred to both inspection reports and observed that the reports indicated that Respondent had failed to properly date mark ready-to-eat potentially hazardous food (sausage and meatballs) held on site for more than 24 hours in the walk-in cooler. She explained that such failure was a critical violation because food must be date- marked to indicate the day it was prepared, and the day that it expires. She further explained that potential hazardous foods, such as precooked sausage and meatballs, are only good for seven days from the date prepared. Respondent's witness, Ann Marie Di Meglio, works at the restaurant and was there when the first inspection took place. Her husband, Mr. Di Meglio, was not. According to Ms. Di Meglio, it is Respondent's procedure to date-mark the containers in the walk-in cooler. She further testified that at the time of the inspection, there was active preparation, and it is hard to keep things covered during active preparation. Mr. Di Meglio, through his testimony, further explained that they date-marked the covers of the sausage and other prepared foods in the cooler, but remove the lids to gain access to the food during active preparation. He testified that there were labels on the lids of the sausage and meatball containers at the time of the inspections, but that the lids had been set aside because of preparation. Inspector Smith suggested that she would have cited the sausage and meatball containers for being open, but could not recall whether they were open or not. She did not see the labels on the lids. There were no photographs or specific descriptions of the containers or observations by Inspector Smith. During the final hearing, when asked whether there were dates on the lids of the containers, Inspector Smith testified, "I can't answer that because I'm not there. I didn't write anything about it being uncovered." Based upon the explanations provided by the Di Meglios, the timing of the inspections, the lack of specific recollection by Inspector Smith, and considering that the Department has the burden of persuasion, it is found that the Department did not prove that Respondent failed to properly date its containers of potentially hazardous foods as alleged in Count 1 of the Administrative Complaint. As to Count 2, Inspector Smith stated in both the March 2 and May 3, 2011, inspection reports that she observed an open bag of breadcrumbs stored on the floor in Respondent's walk-in cooler. Storage of breadcrumbs on the floor in an open container is a critical violation because when food is stored on the floor, it can become contaminated by exposure to wastewater or germs from walking back and forth outside to the bathroom. While perhaps an open container could be explained by the fact that there was active food preparation, no excuse or explanation was offered as why an open bag of breadcrumbs was found on the floor during both inspections. Respondent's witnesses did not otherwise address the improper storage of breadcrumbs on the floor as alleged in Count 2 of the Administrative Complaint. As to Count 3 relating to the open containers of breadcrumbs and sauce, it is found that Respondent's explanation of active food preparation was reasonable given the timing of the inspections. In other words, the Department failed to prove that Respondent was storing foods in open containers because it is found that the containers were only opened temporarily during active food preparation.3/ As to Count 4, relating to an alleged dirty mixer head, the inspection reports for both the March 2 and May 3, 2011, inspections indicate there was a "buildup of soiled material on mixer head." While Ms. Di Meglio testified that she did not know if there was something on the mixer head at the time of the inspections, she testified that the mixer is cleaned every day, and that the material on the mixer head, if any, was not old. Rather, she explained, she had used the mixer around 10:00 a.m. the very morning of the first inspection to make dough and cut cheese. Ms. Di Meglio further explained that Respondent's mixer is very old and has some discoloration. And, while admitting that there may have been some dust or flour on the mixer from recent use, both she and her husband denied that there was any soil on the mixer or the mixer head. Inspector Smith's testimony regarding the state of the mixer, and the brief descriptions in the inspection reports referring to "soiled material" on the mixer head, without more, provided less than clear and convincing evidence of a violation. While Inspector Smith testified that she would not cite the equipment as being dirty if it was soiled with everyday use dirt, she was unable to definitively recall her observations. When questioned about the mixer head at the final hearing, Inspector Smith observed: I just noted that it was extremely2/ soiled when I was there at the initial inspection and at the callback. Not the top, but the mixer head being - - that goes over the unit, from what I can remember. When further asked to explain the difference between "soiled" and "dusty," Inspector Smith testified: It was all food debris with - - I mean, I just remember it just being soiled. It was over a year ago. I can't describe in detail what was on it. I would not cite it unless it was old food debris, or it was mold-like substance maybe with a combination. I don't cite everyday dirt. Considering Inspector Smith's less than specific recall, Respondent's explanation, and the Department's lack of specific details or photographs contrary to the testimony of Respondent's employees, it is found that the Department failed to prove the violation alleged in Count 4 of the Administrative Complaint. While the inspection reports were accepted into evidence as corroborative hearsay, it is found that, under the facts and circumstances, they are documents prepared in anticipation of litigation.4/ Specifically, the reports contain warnings and requirements of compliance, with specific mention of the fact that failure to comply may "initiate a complaint." Moreover, the evidence showed that the investigator could not discuss the allegations with Respondent's owner because inspectors are "not allowed to discuss the case at an inspection." Even if the inspection reports were not merely hearsay, their lack of detail when compared to the recollections of Respondent's employees regarding operations and the state of affairs during the inspections, was insufficient to meet the Department's burden of persuasion necessary to prove Counts 1, 3, and 4 of the Administrative Complaint. Count 2 of the Administrative Complaint alleging improper storage of bread crumbs on the floor, however, was uncontroverted, and the Department proved by clear and convincing evidence that Respondent's improper storage of bread crumbs was a critical violation.5/
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department enter a final order which dismisses Counts 1, 3, 4, and 5 and confirms Count 2 of the Administrative Complaint, and imposes an administrative penalty in the amount of $250 for Respondent's critical violation of Rule 3-305.11, relating to improper storage of breadcrumbs discovered during the inspections conducted on March 2 and May 3, 2011. DONE AND ENTERED this 13th day of July, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 13th day of July, 2012.
The Issue Whether Respondent committed the violations alleged in the subject Administrative Complaints, and, if so, the penalties that should be imposed.
Findings Of Fact Chapter 500, Florida Statutes, is the Florida Food Safety Act. Petitioner is the agency of the State of Florida that is responsible for the administration and enforcement of Chapter 500. Section 500.032(1) provides as follows: [Petitioner] is charged with the administration and enforcement of this chapter in order to prevent fraud, harm, adulteration, misbranding, or false advertising in the preparation, manufacture, or sale of articles of food. It is further charged to enforce the provisions of this chapter relating to the production, manufacture, transportation, and sale of food, as well as articles entering into, and intended for use as ingredients in the preparation of food. Section 500.02(1) authorizes Petitioner to establish by rule conditions for the manufacturing, processing, packing, holding, or preparation of food and the selling of food at wholesale or retail. Pursuant to that authority, Petitioner has adopted by Florida Administrative Code Rule 5K-4.002(4), pertinent parts of the "2001 Food Code" and the "Supplement to the 2001 Food Code," published by the U.S. Public Health Service of the U.S. Department of Health and Human Services (the Food Code). The violations alleged by Petitioner in both administrative complaints, if proven, would constitute violations of the Food Code and, consequently, violations of chapter 500. At the times relevant to this proceeding, Respondent operated a convenience store located in Miami, Florida, that sold mostly pre-packaged food products at retail, but also provided ancillary food service (the facility). The facility had a retail sales area, a backroom storage area, a walk-in cooler, and an ice machine. The food service operation included a hot case unit that prepared pre-cooked ready-to-eat food products in individual portions for consumption and drinks such as milk, juice, sodas, and beer. Violations of the Food Code can be categorized as "critical" or "non-critical". As compared to a non-critical violation, a critical violation typically involves unsanitary conditions that are more likely to cause physical harm to a consumer or someone handling a product. June 22, 2010 Inspection Jorge Ojeda, a sanitation and safety specialist employed by Petitioner, performed a routine inspection of the facility on June 22, 2010. Mr. Ojeda's inspection revealed numerous food safety violations, including violations that are deemed critical violations. The following are the critical violations found by Mr. Ojeda on June 22, 2010: Rodent droppings were present in the walk-in cooler and retail area; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils or equipment in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other non-critical violations included general disrepair of the facility, holes in walls, standing water, mold on the ice machine, and failure to maintain equipment. During the June 22, 2010, inspection, Mr. Ojeda issued a Stop Sale Order for the meat patties in the hot case unit until the product was reheated to the minimum temperature. After the temperature was raised to an approved level, Mr. Ojeda lifted the Stop Sale Order for the meat patties. Mr. Ojeda also issued a Stop Sale Order for products in the walk-in cooler and in the ice machine until the walk-in cooler and the ice machine were cleaned and sanitized. As noted above, rodent droppings were found in the walk-in cooler. Mr. Ojeda testified that he found mold inside the ice machine. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. August 2, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on August 2, 2010. The inspection revealed numerous food safety violations, some of which are repeat violations. The following are the critical violations found by Mr. Ojeda on August 2, 2010: There was evidence of rodent droppings and live roaches in the facility; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other violations included general disrepair of the facility, holes in walls, and failure to maintain equipment and fixtures. Administrative Complaint for Case No. 10-9186 Following the August 2, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-9186. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $3,700.00 for the violations found during the inspections on June 22 and August 2. August 18, 2010 Inspection Mr. Ojeda conducted an inspection of the facility on August 18, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents in the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. There was mold present on the ice machine. Equipment and utensils were not properly sanitized. Items for sale in the retail area were not marked for individual sale. There was no established employee health policy. Food label was missing or incomplete. Juice drinks were not labeled for individual sale. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Mr. Ojeda issued a Stop Use Order for the ice machine because he found mold inside the unit. Mr. Ojeda also issued a Stop Sale Order for the hot holding unit because the unit and associated utensils were not properly sanitized. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. September 9, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on September 9, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents throughout the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. Grade A milk and milk products were being sold or used beyond the expiration date on the container. Items for sale in the retail area were not marked for individual sale and were missing labels. F. There was no established employee health policy. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for the expired milk offered for sale in the retail area. The product, which expired the day before the inspection, was released to be returned to the distributor. Mr. Ojeda also issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Administrative Complaint for Case No. 10-10095 Following the September 9, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-10095. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $1,550.00 for the violations found during the inspections on August 18 and September 9. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-9186. The testimony of Dr. Fruin established that an administrative fine in the amount of $3,700.00 is reasonable for those violations. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-10095. The testimony of Dr. Fruin established that an administrative fine in the amount of $1,500.00 is reasonable for those violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order that finds Respondent guilty of the violations alleged in Case No 10-9186 and imposes an administrative fine against Respondent in the amount of $3,700.00 for those violations. It is further recommended that the final order find Respondent guilty of the violations alleged in Case No 10-10095 and impose an administrative fine against Respondent in the amount of $1,500.00 for those violations. DONE AND ENTERED this 17th day of February, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2011. COPIES FURNISHED: Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putman Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Steven Lamar Hall, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 Hamid Lakhani Super Stop Six Avenue, Inc., d/b/a Super Stop 15150 Northeast 6th Avenue North Miami Beach, Florida 33162
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated March 8, 2010, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact The Division is the state agency charged with regulating the operation of public lodging establishments and public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is a restaurant operated under License Number 5807590 at 5731 South Orange Blossom Trail, Orlando, Florida 32839. El Valle Restaurant, Inc., is the owner of the restaurant. PE 1. Petitioner's employees inspected Respondent's premises on March 19, August 6, September 24, and December 3, 2009, and February 16, 2010. During these inspections, numerous violations were seen and incorporated into separate Food Service Inspection Reports for each of these dates. Several follow-up inspections were conducted during these times and noted violations had not been corrected, which ultimately led to the filing of the Administrative Complaint. PE 1-6; T 33-34. Petitioner's witnesses characterized several violations as "critical violations" such as inadequate hand washing; the use of unclean cutting boards; hot water turned off at the only kitchen hand sink; undated potentially hazardous ready–to-eat– food held over 24 hours; improper drainage of raw sewage; the three compartment sink not used in the correct order (wash, rinse, and sanitize) and no hot water used at the mop sink; and a lack of a chemical test-strip kit available to verify the concentration of chemicals at the manual ware washing area. See, e.g., T 16-19, 34-44, 47-48. Critical violations are those that will significantly contribute to food contamination, illness, or health hazards. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(a) for a definition of "critical violation." Other non-critical violations included the lack of a plan review submitted and approved for renovations that were in progress and the unavailability of a choking sign. See, e.g., T 44-50. Non-critical violations are those that are not as likely to significantly contribute to those hazards mentioned above. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(b) for a definition of "non-critical violation." Petitioner's Composite Exhibit 7 includes a certified copy of a Final Order on Waiver entered by the Division on June 27, 2008. T 50. This order resolved the allegations in an Administrative Complaint filed against Respondent on April 8, 2008, alleging violations of provisions of chapter 509, Florida Statutes. This order indicates that Respondent did not respond to this Administrative Complaint. Petitioner assessed Respondent an administrative penalty of $1,000, and Respondent was also required to attend a workshop sponsored by the Hospitality Education Program. This order was offered into evidence solely for the purpose of consideration of an increased penalty pursuant to Rule 61C-1.005(7)(a) if the underlying charges were proven. T 50. The allegations in the Administrative Complaint, as found herein, were proven by clear and convincing evidence.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order, which confirms the violations found and imposes on El Valle Restaurant an administrative fine in the amount of $3,500. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 May, 2011.
The Issue The issues are whether Respondent's dishmachine chlorine sanitizer was not at proper minimum strength, in violation of Food Code Rule 4-501.114(A); whether vacuum breakers were missing from hose bibs at the mop sink, in violation of Food Code Rule 5-203.14; and whether kitchen ceiling light fixtures hosted an accumulation of dead insects, in violation of Food Code Rule 6-501.112. If any of these violations are proved, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent operated a restaurant located at 1261 South Powerline Road in Pompano Beach, Florida, as a public food service establishment under Permanent Food Service license SEA1620854, profession 2010. On March 17, 2015, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered several violations. The violations included a dishmachine chlorine sanitizer that tested at zero parts per million, which is below proper minimum strength; a missing vacuum breaker at the hose bibb at the mop sink in the rear; and an accumulation of dead insects in the kitchen ceiling light fixtures. The first two violations are "high priority," and the third violation is "basic." The inspector gave Respondent until May 20, 2015, to correct these violations. On May 20, 2015, Petitioner's inspector conducted a followup inspection of Respondent's restaurant. The inspection uncovered several violations, including the three violations cited in the preceding paragraph. The inspector issued warnings for these three uncorrected violations, but gave Respondent an extension of time until July 21, 2015, to correct these violations. On July 21, 2015, Petitioner's inspector conducted a second followup inspection of Respondent's restaurant. The inspection uncovered three violations, which were the three violations cited in the preceding paragraphs. There were now two hose bibbs lacking vacuum breakers. The failure to maintain the proper strength of chlorine in the dishmachine sanitizer jeopardizes the process by which used items are cleaned and sanitized, so as to be free of pathogens, germs, and viruses. The failure to maintain a vacuum breaker, which creates an air gap in a water line, raises the possibility that dirty water will backflow into, and thus contaminate, a potable water line. The failure to remove the dead insects from the kitchen ceiling fixture poses a risk of attracting additional insects. In the 24 months preceding the issuance of the Administrative Complaint, Respondent had been the subject of one disciplinary order. By Stipulation and Consent Order filed October 21, 2014, Respondent agreed to pay an administrative fine of $840 to settle allegations of several Food Code violations, which Respondent neither admitted nor denied.
Recommendation It is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of the three violations set forth above and imposing a fine of $1875. DONE AND ENTERED this 8th day of February, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2016. COPIES FURNISHED: Blanca Balcazar Latin Bohemia Grill 1261 South Powerline Road Pompano Beach, Florida 33069 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 (eServed) Marc A. Drexler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 (eServed) Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
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
Findings Of Fact At all times relevant hereto, respondent, Charles L. Harriss, was the owner and operator of a food service establishment known as Mister Donut located at 5567 Golden Gate Parkway, Naples, Florida. Respondent holds license control number 21-1041-R issued by petitioner, Department of Business Regulation, Division of Hotels and Restaurants (Division), and is subject to that agency's regulatory jurisdiction. Mister Donut is a retail bakery outlet that sells donuts, coffee and other similar items. On the afternoon of July 9, 1986, a Collier County environmental health specialist conducted a routine inspection of respondent's establishment to determine if prescribed health and safety standards were being maintained. The inspection was made in the presence of an employee of respondent. The specialist found respondent to have violated various food service rules promulgated by the Department of Health and Rehabilitative Services in twenty- five respects. All but two, which respondent has conceded are correct, are in dispute. After an informal conference failed to resolve the matter, this proceeding ensued. The Donut Shop is one of three retail bakery outlets owned by Harriss. Besides the store in question, he operates a second outlet in Naples and one in Miami. There is no baking or cooking done on the premises of the establishment, although some "finishing" of products (such as adding sugar or filling) occurs. Donuts are delivered to the establishment from Harriss' other Naples store at 5:30 a.m. each morning, and from noon to 3:00 p.m. on an as-needed basis. The finishing of the product generally takes place shortly after it is delivered. There are three work shifts for employees: 6:00 a.m. -- 12:00 noon; 12:00 -- 6:00 p.m.; and 6:00 p.m. to 10:00 p.m. The floors are to be mopped and the area cleaned at the end of each shift. The busiest time of the day is between 7:00 and 9:00 a.m. The store is located in a shopping center. Although the specialist's qualifications to conduct a competent inspection were challenged by Harriss during the witness' testimony, it is found he has the experience, education and training necessary to adequately perform his job. In conjunction with his inspection, the specialist filled out a food service inspection report identifying each violation detected. This report has been received into evidence as petitioner's exhibit number 2. In addition, the specialist categorized violations as either being major or minor. When the inspection was made, the specialist was accompanied by a food services coordinator who also made her own inspection as a cross- check on the specialist's work. Her report has been received into evidence as petitioner's exhibit number 5. The violations are identified on the report by number. For ease in discussing the numerous violations, reference to the number on the report will be made in the findings hereinafter. Violation 02 -- Drawers containing food components (candy toppings) were not labeled as required by Rule 10D- 13.24(9), Florida Administrative Code. The drawers were also soiled with food particles. Violation 03 -- Food (soup) was not being maintained at proper temperature (140 degrees) as required by Rule 10D-13.24(2), Florida Administrative Code. Violation 04 -- Although petitioner charged Harriss with having no "indicating thermometer" on the food warmer, it was established that the warmer had low, medium and high settings. This constitutes substantial compliance with Rule 10D-13.24(2), Florida Administrative Code. Violation 05 -- Harriss has been cited with violating Rule 10D- 13.24(8), Florida Administrative Code, for failure to have conspicuous thermometers in or on his refrigerator and the food warmer. However, the more persuasive evidence is that a thermometer was hung on the top left side of the refrigerator while the food warmer had low, medium and high settings. This satisfies the foregoing rule. Violation 08 -- During the course of the inspection, donuts and rolls were found in uncovered or non- encased display areas. This is contrary to Rule 10D-13.24(1), Florida Administrative Code, which requires that such food be in a glassed case or otherwise covered in some manner. Violation 09 -- An employee was observed scooping ice into a cup without an ice scoop. This resulted in the employee's hand coming into contact with the ice in violation of Rule 10D-13.24(8), Florida Administrative Code. Violation 10 -- In conjunction with the prior violation, no ice scoop was seen or used. Rule 10D-13.24(10), Florida Administrative Code, requires that food be served in a manner that will minimize contamination. Violation 12 -- The specialist observed respondent's employee with food particles and sugar on her hands. Rule 10D-13.25(3), Florida Administrative Code, requires that employees wash their hands as often as necessary to remove soil and contamination. Violation 13 -- Employees are required to wear hair nets or hair spray to keep hair from getting into food. Although no hair net was worn by the employee, the employee used an effective hair restraint (hair spray) so as to comply with the rule. Violation 14 -- As noted earlier, a proper utensil for serving ice was not being used or displayed. This is in contravention of Rule 10D-13.24(8), Florida Administrative Code. Violation 15 -- It was established that non-food contact surfaces were covered with frosting and powdered sugar. Rule 10D-13.26(4)(1), Florida Administrative Code, requires that such surfaces be cleaned at such intervals as is necessary to keep them in a clean and sanitary condition. Violation 17 -- Chemical test kits are required by Rule 10D- 13.26(5)(a)2.d., Florida Administrative Code, for the purpose of accurately measuring solutions used for sanitization purposes. Although a kit was not seen by the specialist, there was such a testing kit on the first shelf near the three compartment sink on respondent's premises. Violation 20 -- The specialist could not recall the nature of this violation. Violation 21 -- According to Rule 10D-13.26(4)(d), Florida Administrative Code, soiled cloths and sponges must be stored in a sanitizing solution between uses. The specialist found several soiled cloths in a sink. However, since these were just temporarily placed in the sink for rinsing before being placed in a linen bag for laundry service, no violation occurred. Violation 22 -- The drawer containing candy topping was not clean. Rule 10D-13.26(4)(a), Florida Administrative Code, requires that food contact surfaces be cleaned at least once a day. Since the inspection occurred in the afternoon, and prior to the end of the day, it was not shown that respondent failed to clean this area that day. Violation 23 -- The interior of non-food contact areas such as cabinets, shelves, refrigerator and sides of equipment were observed to have food particles on them, and were not clean. This was in violation of Rule 10D- 13.26(4)(a), Florida Administrative Code, which requires that non-food contact surfaces of equipment be cleaned, and kept in a sanitary condition. Violation 24 -- Various utensils in drawers were not clean. Rule 10D- 13.26(4)(a), Florida Administrative Code, requires that all kitchenware be thoroughly cleaned and sanitized after each use. Violation 25 -- The specialist found respondent storing food (toppings) in single service articles (paper cups). However, the applicable rule (10D-13.26(4)(b), Florida Administrative Code) simply provides that such articles be used "only once". There was no indication that these articles were used more than one time, and consequently no violation of the rule occurred. Violation 31 -- It was established that a three compartment sink was not readily accessible since a trash can blocked access to the sink, and dirty linens were in the sink itself. No pertinent rule was cited by petitioner as governing the accessibility of sinks. Violation 32 -- No hand soap was found in any sink. This controverted the requirements of Rule 10D-13.27(6), Florida Administrative Code, which requires that each establishment be provided with hand cleansing soap. Violation 33 -- The specialist observed the trash can in front of the sink to be uncovered. This was a violation of Rule 10D-13.27(7), Florida Administrative Code, which requires such receptacles to be kept covered with tight fitting lids. Violation 34 -- There is a dumpster directly behind respondent's store which was found to be unclosed, and with overflow trash on the ground. However, this dumpster is shared by other shopping center tenants, and is the responsibility of the center rather than respondent. Violation 35 -- The specialist detected ants in the food preparation area. Although respondent has a monthly pest control service, the presence of such insects violated Rule 10D-13.27(8), Florida Administrative Code, which requires effective control measures against rodents, flies, roaches and other vermin. Violation 36 -- The floors in the food preparation area were observed to be littered with food particles. This is in contravention of Rule 10D- 13.28(1), Florida Administrative Code, which requires that floor surfaces in rooms where food is prepared to be "clean". Violation 37 -- The walls in the food preparation area were "splattered" with food and toppings. In addition, certain equipment attached to the walls had toppings, frosting and glazing covering them. This was in violation of Rule 10D- 13.29(2), Florida Administrative Code, which requires such walls and equipment to be kept clean. Violations 38 and 41 -- Respondent has not disputed these violations, and it is found that these violations occurred. Violation 42 -- The specialist found the outside area of the premises to be littered with cigarette butts, paper and other debris. However, this is a common problem throughout the entire shopping center, and fault cannot be attributed to respondent for this condition. Violation 44 -- As previously noted in violation 21, soiled linens were observed in a sink. However, they were placed there only temporarily for rinsing before being stored in a linen bag. Therefore, there was no rule violation. Violation 45 -- The fire extinguisher on respondent's premises did not have a current inspection tag. While this may violate some regulation, the rule relied upon by the specialist (10D-13.28(2), Florida Administrative Code) is not applicable. Violation 46 -- An exit light was observed to have been burned out. Again, the same rule relied upon by the specialist is inapplicable. Violation 47 -- It was alleged that respondent used extension cords in the food preparation area. However, the specialist could not recall which appliance used such a cord. Respondent's testimony that no such cords were used is more persuasive, and it is found that no extension cords were used by Harriss. Violation 53 -- When the inspection was made, there was no employee on the premises with a valid food management certification. Such a certification is required by Rule 10D-13.25(2), Florida Administrative Code. After the inspection was completed, the specialist reviewed the inspection report with one of respondents employees. It was the specialist's opinion that the above cited violations rendered the establishment unsafe for the public. A second inspection was simultaneously conducted by a food service coordinator. Her findings tend to corroborate the same violations noted by the specialist. Reference to her specific findings is accordingly not necessary. Aside from his own testimony, Respondent presented the testimony of the employee who was present when the inspection occurred, and his local manager. Except where noted above, they did not credibly contradict the testimony of the two inspectors. At the same time, Harriss pointed out that by the very nature of the donut business, it is impossible to keep crumbs and other food particles off the floor and other areas. He has been in the business for twenty-three years, and has no prior violations. He contended the specialist was "nit-picking", and that most of the violations are minor in nature. He also asserted that he has made all reasonable efforts to correct the problems.
Recommendation Based on the foregoing findings of fact and conclusions of law , it is RECOMMENDED: That respondent be found guilty of the eighteen violations cited in conclusion of law number 2, and that he pay a $1000 civil fine within thirty days after the date of Final Order. All other charges should be dismissed. DONE AND ORDERED this 15th day of December, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.
