The Issue The issues are as follows: (a) whether Respondent violated Chapter 509, Florida Statutes, and specific provisions of the Food Code, 2001, Recommendations of the United States Public Health Service/Food and Drug Administration (Food Code), adopted by reference in Florida Administrative Code Rule 61C-1.001(14); and, if so, (b) what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the operation of public food service establishments pursuant to Chapter 509, Florida Statutes (2010). Respondent is, and has been at all times material hereto, licensed by or subject to Petitioner's jurisdiction. Respondent has been licensed at least since October 2007. Respondent's business address is 4860 Northwest 38th Avenue, Suite C, Gainesville, Florida. "Critical violations" are violations of the Food Code that pose a significant threat to the public health, safety, or welfare, and which are identified as food-borne illness risk factors that require public health intervention. "Non-critical violations" are any other type of violation prohibited by statute or rule. After inspections on December 19, 2007, August 4, 2008, and August 6, 2008, Petitioner issued an Administrative Complaint dated September 16, 2008, in Petitioner's Case No. 2008051321 against Respondent. The complaint alleged the following violations: (a) 03A-07-1, potentially hazardous food held at greater than 41 degrees Fahrenheit; (b) 30-02-1, mop sink's vacuum breaker missing at hose bibb; (c) 36-13-1, grease accumulated under cooking equipment; (d) 37-05-1, observed walls soiled with accumulated food debris; (e) 52-01-1, misrepresentation of food or food product by advertising crab on sushi menu but using imitation crab; and (e) 53B-08-1, no proof of required employee training. On October 6, 2008, Respondent signed a Stipulation and Consent Order, agreeing to pay a fine in the amount of $1,550. in Petitioner's Case No. 2008051321. Petitioner issued a Final Order in that case on October 22, 2008. The record does not indicate whether Respondent ever paid the administrative fine. Daniel Fulton is Petitioner's Senior Inspector. Mr. Fulton performed inspections of Respondent's business on January 22, 2009, April 3, 2009, August 12, 2009, and August 17, 2009. These inspections resulted in the issuance of the Administrative Complaint at issue in DOAH Case No. 10-2427. Julianne Browning is Petitioner's Senior Sanitation and Safety Specialist. Ms. Browning performed inspections of Respondent's business on February 15, 2010 and April 19, 2010. These inspections resulted in the issuance of the Administrative Complaint at issue in DOAH Case No. 10-3294. On January 22, 2009, Mr. Fulton performed an unscheduled inspection of Respondent's restaurant. During the inspection, Mr. Fulton observed the following critical violations: (a) 03A-07-1, potentially hazardous cold food held at greater than 41 degrees Fahrenheit, including but not limited to, noodles on cook line at 51 degrees Fahrenheit; (b) 31-09-1, hand sink in preparation area not accessible for employee use at all times; (c) 35A-03-1 and 35A-05-1, dead and live roaches on premises in several locations; (d) 06-04-1, thawing potentially hazardous foods improperly because water was not running; (e) 22-20-1, food contact surfaces not sanitized because interior of ice maker not kept clean; and (f) 30-02-1, plumbing not properly installed and/or maintained because vacuum breaker missing on hose bibb at front hand sink. During the January 22, 2009, inspection, Mr. Fulton observed the following non-critical violations: (a) 14-37-1, cutting board grooved/pitted and no longer cleanable; (b) 10-07- 1, in-use utensils, such as a spoon, stored in standing water at less than 135 degrees Fahrenheit; and (c) 24-05-1, clean utensils were not properly stored because spoons in the customer area were facing food side up and there were unprotected plates in the sushi area. After the January 22, 2009, inspection, and a callback inspection on April 3, 2009, Petitioner issued an Administrative Complaint dated May 19, 2009, in Petitioner's Case No. 2009026581 against Respondent. The complaint alleged the following critical violations: (a) 03A-07-1, potentially hazardous cold food held at greater than 41 degrees Fahrenheit; (b) 12A-12-1, employee working with raw food then with ready-to- eat food without washing hands or changing both gloves; (c) 12A- 13-1, employee handled soiled equipment or utensils then prepared food, handled clean equipment or utensils, or touched unwrapped single-service items without washing hands or changing gloves; (d) 21-12-1, wet wiping cloth not stored in sanitizing solution between uses; and (e) 32-15-1, no hand-washing sign at hand sink used by food employees. On August 1, 2009, Respondent signed a Stipulation and Consent Order, agreeing to pay a fine in the amount of $1,750. in Petitioner's Case No. 2009026581. Petitioner issued a Final Order in that case on July 1, 2009. The record does not indicate whether Respondent ever paid the administrative fine. On August 12, 2009, Petitioner's staff made a routine inspection of Respondent's restaurant. During the inspection, Petitioner's staff observed the following critical violations: (a) 03A-07-1, cold food not at proper temperature during storage, display, or service, including but not limited to tofu on the cook line at 75 degrees Fahrenheit; (b) 31-09-1, hand- washing sink not accessible for employee use at all times; (c) 35A-03-1, dead roaches on premises; (d) 06-04-1, potentially hazardous foods improperly thawed at room temperature, including beef, pork, fish, and hamburger; (e) 22-20-1, food contact surfaces not clean and sanitized due to buildup of slime in the interior of the icemaker; and (f) 30-02-1, vacuum breaker missing at hose bibb. During the August 12, 2009, inspection, Mr. Fulton observed the following non-critical violations: (a) 14-37-1, cutting board grooved/pitted and no longer cleanable; (b) 10-07- 1, in-use utensil stored in standing water less than 135 degrees Fahrenheit; and (c) 24-05-1, clean glasses, cups, utensils, pots and pans not stored inverted or in a protected manner. On August 17, 2009, Mr. Fulton performed a callback inspection of Respondent's restaurant. During the inspection, Mr. Fulton observed the following critical violations: (a) 31- 09-1, hand-washing sink not accessible for employee use at all times; (b) 35A-03-1 and 35A-05-1, live and dead roaches on the premises; (c) 06-04-1, potentially hazardous food thawed at room temperature; (d) 22-20-1, food contact surfaces not clean and sanitized due to buildup of slime in the interior of the icemaker; and (e) 30-02-1, vacuum breaker missing at hose bibb. During the August 17, 2009, inspection, Mr. Fulton observed the following non-critical violations: (a) 14-37-1, cutting board grooved/pitted and no longer cleanable; (b) 10-07- 1, in-use utensil stored in standing water less than 135 degrees Fahrenheit; and (c) 24-05-1, clean glasses, cups, utensils, pots and pans not stored inverted or in a protected manner. On February 15, 2010, Ms. Browning performed a routine inspection of Respondent's restaurant. During the inspection, Ms. Browning observed the following critical violations: (a) 03A-07-1, cold food held at greater than 41 degrees Fahrenheit during storage, display, or service, including seafood broth, rice, chicken curry in reach-in cooler, chicken in top of reach-in cooler, fish eggs on counter, cream cheese in sushi case, and fish tempura in sushi area; (b) 08A-26-1, food not properly protected during storage based on observation of raw animal food stored over ready-to-eat foods, such as raw eggs over soup and raw beef over cooked shrimp; (c) 12A-13-1, employee handled soiled equipment or utensils then engaged in food preparation, handled clean equipment or utensils, or touched unwrapped single-service items without washing hands or changing gloves; (d) 01B-24-1, ready-to-eat potentially hazardous food, such as eggroll mix with pork, not consumed/sold within seven days after opening/preparation; (e) 12B-03-1, employee drinking from an open beverage container in a food preparation or other restricted area while rolling silverware; (f) 08B-04-1, using paper as a food contact surface by storing bread crumbs on greasy brown paper; (g) 22-20-1, build-up of slime in the interior of the ice machine; (h) 30-02-1, vacuum breaker missing at hose bibb; (i) 05-09-1, no conspicuous thermometer in holding units such as sushi case and two reach-in freezers; (j) 09-05-1, improper use of bowl/plastic container or other container with no handle to dispense food such as rice that is not ready-to-eat; (k) 27-16-1, hot water not provided at mop sink because shut off; and (l) 52-01-1, misrepresentation of identity of food or food product because advertising crab delight in sushi bowl and salad platter but using imitation crab instead. During the February 15, 2010, inspection, Ms. Browning observed the following non-critical violations: (a) 21-11-1, wiping-cloth sanitizing solution not at proper strength and not provided at sushi bar; (b) 14-32-1, using wood that is not hard and close-grained, such as bamboo sushi mats, as a food contact surface; (c) 18-04-1, old labels stuck to food containers after cleaning; (d) 26-02-1, improper re-use of single-service articles such as reusing plastic wrap to cover sushi mats; and (e) 23-05-1, residue build-up on towel dispenser at cook-line hand sink. On April 10, 2010, Ms. Browning performed a callback inspection at Respondent's restaurant. During the inspection, Petitioner's staff observed the following critical violations: (a) 03A-07-1, potentially hazardous food held at greater than 41 degrees Fahrenheit, including seafood broth, rice, chicken curry in reach-in cooler, chicken in top of reach-in cooler, fish eggs on counter, fish tempura in sushi area, and conch, salmon, tuna, and cream cheese all in sushi case; (b) 08A-26-1, raw animal food stored over ready-to-eat food, such as eggs over soup; (c) 12A-13-1, employee handling soiled equipment or utensils then preparing food, handling clean equipment or utensils, or touching unwrapped single-service items, without washing hands or changing gloves; (d) 01-B-24-1, potentially hazardous food not consumed/sold within seven days after opening/preparation; (e) 12B-03-1, employee drinking from an open beverage container in a food preparation or other restricted area while rolling silverware; (f) 08B-04-1, paper used as a food-contact surface, such as bread crumbs stored on greasy brown paper; (g) 22-20-1, buildup of slime in the interior of the ice machine; (h) 30-02-1 vacuum breaker missing at hose bibb in mop sink; (i) 05-09-1, no conspicuous thermometer in holding units, such as two reach-in freezers; (j) 09-05-1, improper use of bowl/plastic food container or other container with no handle used to dispense food that is not ready-to-eat, such as rice; (k) 27-16-1, no hot water at mop sink because shut off; and (l) 52-01-1, misrepresentation of food identity, such as advertising crab delight in sushi bowl and salad platter but using imitation crab. During the inspection on April 10, 2010, Ms. Browning observed the following non-critical violations: (a) 21-11-1, wiping-cloth chlorine sanitizing solution not at proper minimum strength and none at the sushi bar; (b) 14-32-1, improperly using wood that is not hard or close-grained as a food-contact surface, such as bamboo sushi mats; (c) 18-04-1, old labels stuck to food containers after cleaning; (d) 26-02-1, re-use of single-service articles, such as using plastic wrap over and over on sushi mats; and (e) 23-05-1, residue build-up on nonfood-contact surfaces, as found on towel dispenser at hand sink on cook line. During the above-referenced inspections, Petitioner's staff repeatedly observed the same critical and non-critical violations of the Food Code at Respondent's restaurant. Even if Respondent was able to correct some of the violations while Petitioner's staff was on the premises, Respondent made no effort to ensure that the violations did not re-occur before the next inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order suspending Respondent's license for six consecutive days as a penalty in DOAH Case No. 10-2427 and for ten consecutive days as a penalty in DOAH Case No. 10-3294. DONE AND ENTERED this 14th day of October, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Hung Nguyen Taste of Saigon II 4860 Northwest 39th Avenue, Suite C Gainesville, Florida 32606 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 29, 2009, 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 section 509.032(1), Florida Statutes. Carvel is a food service establishment licensed and regulated by the Department and located at 3148 Coral Way, Miami, Florida 33145. On July 22, 2009, Jorge Gandolff, a senior inspector of public food service establishments employed by the Division, inspected the premises of Carvel. As an inspector for the Division, Mr. Gandolff was required to complete a Food Service Inspection Report, DBPR Form HR 5022-016 and -015 ("Form HR 5022-016 and -15"), for each public food service establishment that he inspected. During the inspection of Carvel, Mr. Gandolff noted that Carvel was not in compliance with a number of the items listed on the Form HR 5022-016 and -15 inspection report. Mr. Gandolff noted that, among other things, he "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on floor"; "observed food container not properly labeled." It was Mr. Gandolff's practice, and the usual practice of Division inspectors, to complete the Form HR 5022-016 and -15 inspection report and record the violations he observed at a public food service establishment on a personal digital computer. At the end of the inspection, it was his practice to obtain the signature of the person in charge on the Form HR 5022-016 and -15 inspection report, print a copy of the report, and review the violations that had been noted with the person in charge. Mr. Gandolff followed his usual practice in completing the inspection of Carvel on July 22, 2009. He prepared a Form HR 5022-016 and -15 Food Service Inspection Report setting forth his findings and noted on the report that Carvel "MET INSPECTION STANDARDS during this visit" and that "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." (Emphasis in original.) Zoila Fernandez, an employee of Carvel, signed the inspection form, and Mr. Gandolff went over the inspection findings with her. Mr. Gandolff inspected the premises of Carvel for the second time on November 24, 2009. In addition to several other violations, Mr. Gandolff noted on the Form HR 5022-016 and -15 inspection report that he again "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on walk-in cooler floor Cardboard boxes of chocolate chip"; "observed food container not properly labeled ice cream containers not labeled stored inside self service freezer in customer area." These six items were considered repeat violations; that is, these items were found to be out of compliance with the Food Code at the July 22, 2009, inspection. In addition, these six items were marked with an asterisk on the Form HR 5022-016 and - 15 inspection report, which designated them as "critical" violations. Mr. Gandolff recommended that these items be included as violations in an Administrative Complaint. Mr. Gandolff also noted on the Form HR 5022-016 and -15 inspection report that the "Inspector determined violations require further review, but are not an immediate threat to the public." Zoila Reyes, an employee of Carvel who was on the premises during the November 24, 2009, inspection signed the inspection report. She was not able to accompany Mr. Gandolff during the entire inspection because the store was busy, but Mr. Gandolff went over the inspection report with her. Ms. Shah was not present during either of the inspections. It is her practice to come into the store early and prepare the store to open. Her preparations include cleaning the premises and the equipment. Mr. Gandolff found three items during both the July 22, 2009, and November 24, 2009, inspections that he wrote up as a single violation of the Food Code and that he considered the most serious violation of the Food Code. The first item was the build-up of food on the mixer head that was not just the normal amount of build-up that occurs during a workday but was old, dry, and crusted. Mr. Gandolff considered this a serious condition because this piece of equipment came in direct contact with food and could contaminate it. The second item was the slime build-up inside the interior of the ice machine, which Mr. Gandolff considered a serious condition because the ice came into direct contact with the interior of the ice machine and could be contaminated by the slime. The third item was the soiled gaskets on the reach-in freezer that was a black residue probably resulting from the buildup of old product. Mr. Gandolff considered this a serious condition because the freezer gaskets are very close to the product in the freezer, and the product could be contaminated if it came into contact with the gaskets. The violation Mr. Gandolff considered the next most serious violation of the Food Code found during both the July 22, 2009, and November 24, 2009, inspections was a cardboard box containing chocolate chips stored directly on the floor of the walk-in cooler because the food product inside the box could be contaminated by water or any other residue on the floor of the cooler, especially if, as here, the food product is stored in a cardboard box that could absorb water from the cooler floor. In addition, Mr. Gandolff considered the absence of labels on containers of ice cream stored in a freezer accessible to customers to be a serious violation of the Food Code because a customer must be able to look at the label on the food product and know the ingredients in the product and the date the product was prepared so the customer can make a determination if the product is safe for them to eat. Mr. Gandolff also considered the uncovered trash receptacle in the women's bathroom a serious violation of the Food Code because such receptacles must be covered to avoid exposure of women's sanitary napkins. These violations are all critical violations because they pose a significant danger to the public health and because they are identified as critical violations on the inspection report forms Mr. Gandolff completed on July 22, 2009, and November 24, 2009, recording his observations of the Carvel premises. Ms. Shah has owned the Carvel store for approximately 14 years, and, during that time, the store has not been cited for any violations as a result of inspections by the Division. The Carvel store owned by Ms. Shah is very small and, because of the poor economic conditions of recent years, Ms. Shah makes very little money at the store and is barely able to keep the business open. Summary The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that there were five repeat violations of the Food Code on the premises of Carvel during the November 24, 2009, inspection. Ms. Shah failed to present sufficient evidence to establish that the violations observed by Mr. Gandolff were not present. First, her explanation of the missing cover on the waste receptacle in the women's bathroom, that the receptacle had just been emptied and that the cover was sitting on the floor beside the receptacle, could have explained the missing cover during the first inspection, but the same explanation would have presented too much of a coincidence to be a persuasive explanation for the missing cover at the second inspection. Second, Ms. Shah's categorical denial that any equipment on the store's premises was soiled or otherwise not perfectly clean, her testimony that she cleans everything in the store every morning; that the equipment is cleaned continually during the day; and that all supplies are stored properly in the walk-in cooler and her testimony is not sufficient to refute the specific observations noted by Mr. Gandolff on the inspection reports. Finally, Ms. Shah's testimony that all pre-packed ice cream available for purchase in the store's self-service freezer is packed in containers with labels provided by Carvel, Inc. In the absence of information regarding the content of the labels provided by Carvel, Inc., Ms. Shah's testimony does not refute the Mr. Gandolff's contention that the containers of ice cream did not have labels disclosing the date the ice cream was packed into the containers and the ingredients in the ice cream.
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 Carvel Ice Cream Bakery guilty of having violated Florida Administrative Code Rule 61C-4.010(1)(c) and Food Code Rules 3-305.11; 3-602.11(A); 4-602.11(C) and (D); and 5-501.17; and Imposing an administrative fine in the amount of $525.00. DONE AND ENTERED this 14th day of June, 2011, in Tallahassee, Leon County, Florida. S Patricia M. Hart 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 14th day of June, 2011.
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 Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
