The Issue Whether Respondent committed the following acts alleged in the Notice to Show Cause dated July 8, 1998, and if so, the penalty that should be imposed: Violation of the Food Code, Chapter 61C-1, Florida Administrative Code, by failing to maintain hot, potentially hazardous, foods at or above 140 degrees Fahrenheit (Fº) at all times on the steam table. Violation of the electrical code by failing to provide a spacer for missing circuit breakers in the electrical box near the waitress station. Violation of the Food Code by failing to provide and use a food thermometer to monitor food temperatures. Violation of the Food Code by failing to provide a properly designed bulk food product scoop with a handle for use in the kitchen.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes (1997). Respondent is a public food service establishment that operates in the State of Florida under the Division's License Control Number 03843-R. Derrick Fritts is a Sanitation and Safety Inspector employed by the Petitioner. On February 3, 1998, at approximately 3:55 p.m., Fritts visited the Seaport Restaurant food establishment located at 680 George J. King Boulevard, Port Canaveral, Florida 32920, for the purpose of performing a routine callback inspection. At the time of the inspection, the vegetable mix on the steam table was at a temperature of 116 degrees F. The baked potatoes were at 95 degrees F and the tomato sauce was at 111 degrees F. Dinners were being served from this steam table. Respondent's defense that the steam table are being broken down for diner and customers were not being served is not credible. At the time of the inspection, there was no thermometer that was readily accessible to the server at the steam table to monitor potentially hazardous foods to ensure that they are within the temperature range specified in the Food Code. At the time of the inspection, a large bulk supply of flour was being dispensed with a plastic cup rather than a scoop with a handle. There was insufficient evidence to prove that a fire code violation was present in the electrical circuit breaker box in the main dining room. The Petitioner performs inspections between the hours of 9:00 a.m. and 5:00 p.m., and occasionally after-hours, in order to better observe operating procedures. It is the Petitioner's policy to inspect food service establishments during operating hours. In the Petitioner's view, operating hours includes anytime anyone is working on the premises of a public food service establishment. Although Fritts arrived for the inspection relatively late in the day, the inspection still occurred within the 9-5 time frame. Representatives of Respondent were present for 80 percent of the inspection. Respondent was cited for violations of the 1997 Food Code under the following sections: 3-501.16(A), 4-302.12, and 3-301.11(C), C.F.R. Petitioner sent out an Industry Advisory on January 1, 1998, with the following information for licensees about the 1997 edition of the Food Code: Although the Code and Rule have been adopted, enforcement of these new provisions will not begin until April 1, 1998. Respondent received the above Industry Advisory and erroneously interpreted it to mean that none of the provisions of the 1997 Food Code would be enforced until April 1, 1998. The Food Code contains recommendations made by the United States Public Health Service Food and Drug Administration. Therefore, the Food Code is not mandatory and binding on licensees until it is adopted by the State of Florida. Chapter 61C-1.001, Florida Administrative Code, incorporates by reference the 1997 Food Code into the Florida Administrative Code, thereby adopting it. It then became binding on licensees as an official rule of Petitioner after January 1, 1998.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of the following charges and that the following penalties be imposed against Respondent: Food Code Rule 3-501.16(A), imposing an administrative fine in the amount of $500.00; Food Code Rule 4-302.12, imposing an administrative fine in the amount of $250.00; Food Code Rule 3-301.11(C), imposing an administrative fine in the amount of $250, and that Respondent attend, at personal expense, an educational program sponsored by the Hospitality Education Program. It is further. RECOMMENDED that Respondent be found not guilty of violation of Rule 61C-1.004(11), Florida Administrative Code. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of June, 1999. COPIES FURNISHED: Melvin T. Stith, Jr., Esquire Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Alan C.D. Scott, II, Esquire 101 Orange Street St. Augustine, Florida 32804 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated June 19, 2007, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Respondent, Demills Family Restaurant (hereinafter referred to as "Demills Family Restaurant" or "establishment"), a public food establishment, is licensed and regulated by the Division. The establishment's license number is 2200535. Demills Family Restaurant is located at 6501 Park Boulevard, Pinellas Park, Florida 33781. Larry Burke is employed by the Department as a senior sanitation and safety specialist. Upon being employed with the Department, Mr. Burke was trained in laws and rules for both food service and public lodging establishments. Mr. Burke is certified as a food manager and attends continuing education on a monthly basis. As part of his job responsibilities, Mr. Burke conducts approximately 1000 inspections a year, many of which include inspections of public food establishments. On April 26, 2007, Mr. Burke conducted a routine unannounced inspection of the Demills Family Restaurant. During the inspection, Mr. Burke observed several violations at the establishment which were critical violations that were required to be corrected within 24 hours. Mr. Burke set forth his findings in a Food Service Inspection Report on the day of the inspection and provided a copy of the report to Debra Nunez, one of the owners of the establishment. A violation of the Food Code or other applicable law or rule, which is more likely than other violations to contribute to food contamination, illness, or environmental health hazards, is considered a critical violation. In the April 26, 2007, Food Service Inspection Report, Mr. Burke specified that certain critical violations had to be corrected within 24 hours. However, there were other critical violations observed on April 26, 2007, for which the owners of the establishment were given a warning and an additional 30 days to correct the violations. On April 27, 2007, Mr. Burke conducted a call-back inspection at the Demills Family Restaurant to determine if the critical violations he had observed the previous day had been corrected. During the "call back" inspection, Mr. Burke observed that all the critical violations found during the April 26, 2007, which were required to be corrected within 24 hours, had been corrected within that time period. Also, some of the non-critical violations observed on April 26, 2007, had been corrected when the "call-back" inspection was conducted. (The violations cited in the April 26, 2007, routine inspection and that were corrected during the call-back inspection the following day are not at issue in this proceeding.) During the April 27, 2007, call-back inspection, Mr. Burke prepared a Callback Inspection Report on which he noted violations first observed during the routine inspection conducted on April 26, 2007, but which had not been corrected on April 27, 2007. In accordance with applicable guidelines, Mr. Burke issued a warning to the establishment's owners and gave them 30 days or until May 27, 2007, to correct the uncorrected violations observed on April 27, 2007. This warning appeared on the April 27, 2007, Callback Inspection Report which was given to Mrs. Nunez. On May 31, 2007, Mr. Burke performed a second call-back inspection at Demills Family Restaurant. During this call-back inspection, Mr. Burke observed and cited the violations previously cited on the April 27, 2007, Call-Back Inspection Report that had not been corrected. These violations are discussed below. Violation No. 02-13, one of the uncorrected violations, involved the establishment's failure to provide a consumer advisory on raw/undercooked meat. This violation was based on information provided by personnel in the kitchen that hamburgers in the establishment are "cooked to order." In light of this policy, there are some customers who will likely order hamburgers that are undercooked. In those instances, pathogens may not be eliminated from the meat. Thus, establishments, such as Respondent, are required to inform customers of the significantly increased risk of eating such meat. After the May 31, 2007, call-back inspection and prior to this proceeding, the owners of the establishment posted signs throughout the dining room area which warned customers about the risks of consuming raw or undercooked foods (i.e., meats, poultry, seafood, shellfish or eggs). Violation No. 02-13 is a critical violation, but not one that is required to be corrected within 24 hours. Rather, this was a critical violation because it was a repeat violation after it was not corrected within the 30-day call-back period. Violation No. 32-15-1, one of the uncorrected violations, involved Respondent's failure to have hand-wash signs at the sinks designated for use by employees. The display of hand-washing signs at these sinks is important because it reminds employees to wash their hands, which helps prevent the transmission of food-borne disease by employees. This was a critical violation because it was a repeat violation and one which was not corrected within the 30-day call-back period. Mr. Nunez does not dispute that at the time of the May 31, 2007, call-back inspection, there were no hand-wash signs. However, since that time, he has placed signs that notify employees to wash their hands. These signs are placed at all hand-wash sinks used by employees, including the one in the cooks' kitchen and in the waitresses' station, and are clearly visible to the employees. The establishment also has hand-wash signs at all sinks in the establishment, including those used by customers. Violation No. 37-14-1, an uncorrected violation, was based on part of the ceiling in the establishment being in disrepair. Specifically, the section of the ceiling that was in disrepair was above a food storage area which contained "open food product." This offense is not classified as a critical violation under the Food and Drug Administration or under Florida law. Mr. Nunez does not dispute that part of the ceiling in the establishment was in disrepair at the time of the May 31, 2007, call-back inspection and the previous April 2007 inspections. Although Mr. Nunez was aware of the problem, he had to rely on the landlord of the building in which the establishment was located to repair the roof. The problems with the roof contributed to the ceiling being in disrepair. Finally, after about four years of asking the landlord to repair the roof, after the May 31, 2007, call-back inspection, the landlord had the roof repaired. The roof repairs are still not complete. However, based on the roof repairs that were completed by early to mid September 2007, Mr. Nunez was able to repair the section of the ceiling at issue in this proceeding. These ceiling repairs were completed by or near the middle of September 2007. Violation No. 37-14-1, an uncorrected violation, was based on Mr. Burke observing that the establishment's exit sign in the dining room was not properly illuminated. The requirement for exit signs to be illuminated is a safety issue. This was a critical violation because it was a repeat violation and one that was not corrected within the 30-day call-back period. Mr. and Mrs. Nunez do not dispute that at the time of the call-back inspection of May 31, 2007, the exit sign was not illuminated. The problem was caused by a problem with a wire in the sign. The person who does electrical work in the establishment had been out-of-town for several weeks and was unavailable to repair the exit sign. However, about three days after the May 31, 2007, call-back inspection, after the repair person returned, he repaired the exit sign; since then, it is properly illuminated. Violation No. 47-16-1, an uncorrected violation, was based on Mr. Burke observing an uncovered electrical box. The box needed to be covered to protect the breaker and to protect the employees and anyone else who had access to the box. This uncorrected violation was a critical violation at the time of the May 31, 2007, call-back inspection. Mrs. Nunez does not dispute that there was an electrical box that was uncovered on May 31, 2007. However, Mrs. Nunez testified that during the initial walk-through in April 2007, Mr. Burke showed her the uncovered electrical box that was located above the walk-in freezer. At that time, the cover was off the electrical box and the wires were exposed. Mrs. Nunez thought that the electrical box above the walk-in freezer was the only electrical box that was cited as a violation after the April 27, 2007, call-back inspection. Based on that understanding, that violation was corrected. However, during the May 31, 2007, call-back inspection, Mr. Burke showed Mrs. Nunez another electrical box in the establishment that was in violation of applicable provisions. Until that time Mrs. Nunez had not been told, and was not aware, that the second electrical box constituted a violation. This mistake on her part was likely caused by the fact that the structure of the second electrical box was completely different from that of the electrical box over the walk-in freezer. The electrical box over the walk-in freezer had wires which were exposed when the box was not covered. On the other hand, the second electrical box resembles a fuse box and did not have any exposed wires. Violation No. 28-02-1 involved the reuse of single- service articles. This violation is based on Mr. Burke observing Respondent's employees reusing plastic food containers, such as the ones sour cream and cottage cheese are in when delivered to the establishment. Such plastic containers should not be used once the food is exhausted. The reason is that the plastic in such containers is not "food service grade for sanitation purposes." Violation No. 28-02-1 is a non- critical violation. The owners of the establishment do not contest Violation No. 28-02-1, related to the reuse of single-service articles. Mrs. Nunez testified that she purchased containers that could be reused and instructed appropriate staff to use those containers. After being given those instructions, the employees told Mrs. Nunez that they were no longer reusing containers for single-service articles although they were doing so. However, as a result of the violation cited during the May 31, 2007, call-back inspection, Mrs. Nunez is committed to checking to ensure that employees are not reusing the plastic containers for single-service articles. Violation No. 61-13-1 is based on Mr. Burke observing that no Heimlich sign was posted in the establishment. The purpose of the Heimlich sign is to provide information in the event a customer in the restaurant is choking. This is a non- critical violation because it makes customers aware in the event of a choking situation. In July 2007, Mr. Nunez left his job as a project engineer to become involved in the day-to-day operations of the Demills Family Restaurant after he realized there were problems at the restaurant that required his attention. Among the issues Mr. Nunez had to initially deal with were the violations cited in the May 31, 2007, Call-Back Inspection Report. Throughout the initial inspection and the call-back inspections, the owners have cooperated with Mr. Burke and corrected most of the violations for which the establishment was cited. Mr. Burke has not conducted an inspection of the Demills Family Restaurant since the May 31, 2007, call-back inspection. However, since that time, all the violations which are the subject of this proceeding have been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Demills Family Restaurant, violated Food Code Rules 3-603.11, 4-502.13(a) and 6-301.14; Florida Administrative Code Rules 61C-1.004(2)(C), 61C-1.004(6) and 61C-1.004(10); and NFPA Rule 70.300.31. Imposing a total administrative fine of $2,800 for the foregoing violations. Requiring Respondent (through its employees and/or owners) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2007.
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 3100 Northwest 17th Avenue, Miami, Florida, and holding food service license number 2328990. On May 19, 2010, and July 23, 2010, Respondent was inspected by Reginald Garcia, a sanitation and safety specialist employed by the Division. During both visits, Mr. Garcia noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Garcia and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of July 23, 2010, the following deficiencies subsisted at Respondent Alma Caribe Café Restaurant: (1) potentially hazardous food held at a temperature greater than 41 degrees Fahrenheit, contrary to Food Code Rule 3-501.16(A); (2) potentially hazardous food not cooled from 135 to 41 degrees Fahrenheit within six hours, in violation of Food Code Rule 3-501.14(A); (3) holding equipment incapable of maintaining potentially hazardous food at proper temperatures, in violation of Food Code Rule 4-301.11; (4) raw food stored over cooked food, contrary to Food Code Rule 3- 302.11(A)(1); and (5) no proof of required employee training, in violation of section 509.049, Florida Statutes. Each of the foregoing deficiencies is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1250, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 20th day of December, 2011, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2011.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Humphrey's On 33rd, a bar/restaurant (with a "full kitchen") located in Fort Lauderdale, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-18150-R) authorizing it to operate Humphrey's On 33rd as a public food service establishment. Edward Humphrey is the majority owner of Respondent. On December 29, 2004, Michele Schneider, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of Humphrey's On 33rd. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): Respondent, upon request, was unable to produce evidence of "food handlers' training for employees by a certified food manager"; there were paper products and other potentially combustible items "on top of and around" a gas- powered hot water heater (which had an "open flame at the bottom"); there was no indication that violations (of the standards of the National Fire Protection Association) previously-noted by a "certified fire inspector" during an inspection of the hood range in the kitchen (which had an ansel fire suppression system) had been corrected; the service tag on the fire extinguisher in the establishment did not indicate the year the extinguisher was last serviced; and there was grease, garbage, and other debris in the "can wash area" outside the establishment, "right behind the back door." Before leaving the establishment, Ms. Schneider advised Mr. Humphrey that these Conditions were violations for which Respondent could be disciplined by Petitioner if not corrected by February 1, 2005. Ms. Schneider conducted a "callback" inspection of the premises of Humphrey's On 33rd on February 1, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed. At neither the time of the December 29, 2004, routine inspection, nor the time of the February 1, 2005, "callback" inspection, was food being served at Humphrey's On 33rd. Respondent had "closed the kitchen down" in or around September of 2004. It was not until approximately six months later, after the December 29, 2004, and February 1, 2005, inspections, that Respondent started serving food again at the establishment. At no time during this six-month period that it stopped serving food did Respondent relinquish its license authorizing it to operate Humphrey's On 33rd as a public food service establishment. Its license remained in effect throughout this period.
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 Alleged Violation Nos. 1 through 5 and disciplining Respondent therefor by imposing a fine in the total amount of $250.00 and requiring Respondent's majority owner to attend, at his own expense, an "educational program sponsored by the Hospitality Education Program." DONE AND ENTERED this 20th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of December, 2005.
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several statutes and rules governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact Respondent Latin America Cafeteria, Inc. ("Cafeteria") is a licensed food service establishment. As such, Cafeteria is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants (the "Division"). On three occasions——February 11, 2005; February 15, 2005; and March 21, 2005——an inspector for the Division named Jorge Gandolff inspected a restaurant located at 2940 Coral Way in Miami, Florida, which establishment was operated by Cafeteria. During each visit, Mr. Gandolff noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. As of March 21, 2004, the following deficiencies subsisted: (1) Ready-to-eat, potentially hazardous food had been held more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(A)i; (2) The reach-in freezer door was not durable under normal use conditions, in violation of Food Code Rule 4-201.11; (3) The walk-in cooler door was in poor repair, in violation of Food Code Rule 4-501.11; (4) The gaskets in the walk-in door were in poor repair, also in violation of Food Code Rule 4-501.11; (5) There was no chemical test kit available for persons using chemical sanitizer at three compartment sinks, in violation of Food Code Rule 4-302.14; (6) There was a missing vacuum breaker on the hose bibb at the cookline, in violation of Food Code Rule 5-203.14; (7) Walls in the dishwashing area were soiled with accumulated debris, in violation of Florida Administrative Code Rule 61C-1.004(6); (8) Lights in the rear area of the kitchen lacked the proper shields, sleeve coatings, or covers in violation of Food Code Rule 6-202.11; and (9) Although four or more employees were engaged in food preparation, there was no currently certified food service manager on duty, in violation of Florida Administrative Code Rule 61C-4.023(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Cafeteria guilty in accordance with the foregoing Recommended Order; (b) ordering Cafeteria to pay an administrative penalty in the amount of $3,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days after the filing of the final order with the agency clerk; and (c) directing Cafeteria to send an appropriate principal to an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 2nd day of November, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2005.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
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 of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 20th day of September, 2010.
The Issue Whether New Roseau Restaurant (New Roseau), a licensed restaurant, committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against New Roseau.
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, New Roseau was licensed as a public food service establishment, with the following business address: 1180 Northwest 119th Street, Miami, Florida 33168. On April 10, 2013, and August 21, 2013, New Roseau was inspected by Dominique Adam, a sanitation and safety specialist with the Division. During both visits, Mr. Adam noticed items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Adam and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 21, 2013, the following deficiencies subsisted at New Roseau: (1) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes; (2) no proof of required state-approved employee training for its employees, in violation of section 509.049(5), Florida Statutes. Both of these deficiencies, pursuant to Florida Administrative Code Rule 61C-1.005, are characterized as intermediate violations. New Roseau is a third or subsequent offender due to the filing of two disciplinary Final Orders within twenty-four months preceding the Administrative Complaint in the present case.
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 New Roseau guilty of both counts in the Administrative Complaint, and ordering New Roseau to pay an administrative penalty in the amount of $1,600.00, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 28th day of April, 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 28th day of April, 2014. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jean-Claude Duval New Roseau Restaurant 1313 North Federal Highway Hollywood, Florida 33020-7864 Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
