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
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.
The Issue Whether or not on April 27, 1987 the Respondent violated specific rules as alleged in its Notice to Show Cause dated May 27, 1987. BACKGROUND AND PROCEDURE At the commencement of formal hearing, Louis F. Petrillo sought to represent Respondent corporation as its qualified representative. Petitioner initially opposed this representation but subsequently withdrew its motion to disqualify. A resolution of the Respondent corporation, under its seal, authorizing Louis F. Petrillo to represent the corporation at formal hearing had previously been filed with the Division of Administrative Hearings. Upon the record, the undersigned inquired of the Respondent's president, Louis A. Petrillo, who acknowledged, under oath, that the resolution was authentic and that it was his desire, as the corporate president and the officer requesting formal hearing, that his father, Louis F. Petrillo, represent the corporation. 1/ Upon examination, the undersigned found Louis F. Petrillo to be a qualified representative to act for Respondent pursuant to Rules 22I-6.008 and 28-5.1055, Florida Administrative Code. Petitioner had admitted three exhibits and presented the oral testimony of Norman Hayes and David Petty. Respondent's motion to dismiss for failure to prove the allegations of the Notice to Show Cause made prior to Petitioner's completing its case in chief was denied without prejudice. The motion was not renewed. Official recognition was taken of a certified copy of Respondent's 1987 Annual Report. Petitioner requested that judicial notice be taken of Rules 7C-4.0001; 10D- 13.026(2) and (3); 10D-13.026(1)(m) and (5); 10D-13.027(4) ; 10D-13.027(5) ; 10D-13.027(8) ; 10D-13.028(2) ; 10D- 13.028(3) and 10D-13.028(4), Florida Administrative Code, and Respondent opposed the request. Petitioner was permitted to file copies of the aforesaid rules with a speaking motion for official recognition within five days of the conclusion of formal hearing, and same was filed. Thereafter, Respondent never filed any formal opposition thereto, and upon consideration that these are matters for which official recognition is mandated, official recognition has been granted. However, it is axiomatic that only those statutes and rules in effect on April 27, 1987 and charged in the May 27, 1987 Notice to Show Cause, may be prosecuted against or applied to Respondent in this present license disciplinary proceeding. Respondent offered no documentary evidence, but Messrs. Louis A. Petrillo and Louis F. Petrillo each testified orally. No transcript was provided. Petitioner filed proposed findings of fact and conclusions of law, the findings of fact of which have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), Florida Statutes. Respondent filed no post-hearing proposals.
Findings Of Fact The Notice to Show Cause, dated May 27, 1987, charges the following offenses existed on April 27, 1987: Violation of Florida Statutes, Section 509.032(1)(2) and (3). In particular, the following violations will be described and reference to the statutes, rules or regulation as follows: Florida Administrative Code - F.A.C. A. Violation of 10D-13.26(2)(3) , F.A.C. Failure to provide proper non-food contact surface. Repair loose door to deep fat fryer. B. Violation of 10D-13.26(1)(m)(5) F.A.C. Failure to provide chemical test kit. Violation of 10D-13.27(4) F.A.C. Failure to provide properly installed and main- tained plumbing. Reinstall kitchen lavatory. Violation of 10D-13.27(5) F.A.C. Failure to provide convenient, accessible, ade- quate toilet and handwashing facilities. Violation of 10D-13.27(5)(b) F.A.C. Failure to maintain and/or equipment [sic] restroom with proper handwashing and drying equipment. Violation of 10D-13.27(8) F.A.C. Failure to protect outer openings. Violation of 10D-13.28(2) F.A.C. Failure to provide properly maintained walls and attached equipment. Violaiton [sic] of 10D-13.28(3) F.A.C. Failure to provide proper shielding for kitchen ceiling lights. Violation of 10D-13.28(4) F.A.C. Failure to vent rooms and/or equipment required. The rules defining these offenses were all renumbered in August, 1987 and some rules were further amended. However, the rules as charged in the charging document and as in effect on the material date, April 27, 1987, govern this proceeding. Respondent, Petrillo Enterprises, Inc. d/b/a Chicken Unlimited (hereinafter Chicken Unlimited), license 23-186220, was licensed at all times material as a public food establishment at 6757 Bird Road, Miami, Florida, and remained licensed as of the date of formal hearing, although it had ceased operation before the date of hearing. On April 22, 1987, Chicken Unlimited was operating as a public food service establishment and David Petty, an Environmental Health Supervisor for the Dade County Department of Public Health, made out a food service inspection report reflecting Respondent's noncompliance with 16 sanitary regulations of Petitioner. He ranked each as a "minor" violation. Mr. Petty was not asked at hearing if he observed these violations on that day, but on the basis of his testimony concerning certain violations corrected while he was still present on April 22, 1987 and other violations observed again by him upon his revisit to the public food establishment on April 27, 1987, I infer that he actually observed the conditions cited in the April 22, 1987 inspection report, which conditions Petty considered to be code violations. On April 27, 1987, Chicken Unlimited was operating as a public food service establishment and Mr. Petty conducted a reinspection to determine whether the violations not corrected on April 22 had now been corrected. During the reinspection, Mr. Petty observed 10 of the prior conditions which had not been corrected. These were as follows: A loose door on the deep fat fryer had not been repaired. The kitchen lavatory needed to be reinstalled. The rear kitchen door had not been sealed to prevent the entrance of vermin; missing wall tiles had not been replaced in the kitchen; proper shielding had not been installed for the kitchen ceiling lights; sanitizing test papers had not been procured; and a current manager certification in food management was not displayed or produced by personnel on the premises. (The failure of certification was noted in the reinspection report but never charged in the Notice to Show Cause against this Respondent.) In Petty's opinion, Chicken Unlimited also had failed to provide convenient, accessible and adequate toilet and handwashing facilities on both inspection dates. The ventilator fan in the men's restroom was not working. Petty personally observed that the fan was not working and that a broken sink was in the restroom under a counter on the reinspection date. When challenged on cross-examination regarding his qualifications to determine whether the fan was working, since he is not an electrical engineer, Mr. Petty replied that "if you turn the fan on at the switch and the blades don't rotate, something is wrong." His observation was made from inside the men's room looking up into the fan. Mr. Louis A. Petrillo, president and manager, was not present on the premises while Mr. Petty was there either on April 22 or 27, 1987. Respondent did not refute any of Mr. Petty's testimony. Louis A. Petrillo testified that copies of the statutes and rules applicable to Chicken Unlimited were not provided to him by Petitioner at the time his license was issued and that his own employee who received copies of the inspection report on April 22, 1987 and of the reinspection report on April 27, 1987 failed to transmit them to him. He maintained that for these reasons, he was unable to maintain the Chicken Unlimited premises according to the applicable rules and was also unable to timely correct the violations once they were cited.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent corporation guilty of the following eight violations as charged in paragraphs A (one violation), B (one violation), C, D, F, G, H, and I, constituting eight violations, respectively, 10D-13.26(2), 10D-13.26(5), 10D-13.27(4), 10D- 13.27(5), 10D-13.27(8), and 10D-13.28(2), (3) and (4), and fining Respondent $100 per offense for a total of $800. DONE AND ENTERED this 1st day of June, 1988, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1988.
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 The issue is whether Respondent is guilty of the violation described in the Administrative Complaint, and if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509. By rule, it has incorporated by reference the regulations in the federal Food Code. These regulations apply to all public food service establishments. See Fla. Admin. Code R. 61C-1.001(14). Respondent operates a public restaurant (using its corporate name) located at 12318 University Mall Court, Tampa, Florida, and is subject to Petitioner's regulatory jurisdiction. It holds license number NOS3917320 (Permanent Food Service). Rule 61C-1.005(5)(a)-(c) classifies violations of the Food Code as either "high priority," "intermediate," or "basic," essentially reflecting the level of threat to public health posed by the deficiency. A high priority violation is one that poses a direct or significant threat to public health. Id. This type of violation is at issue in this case. Around 12:24 p.m. on June 11, 2014, Ashley Herrmann, a trained and experienced sanitation and safety specialist employed by Petitioner, performed a routine inspection of Respondent's restaurant, during which Ms. Herrmann observed various violations of the Food Code, including a "high priority" violation. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food must be maintained at a temperature of 41° Fahrenheit or less.2 See rule 3-501.16(A)(2)(a), Food Code. A violation of this regulation is classified a high priority violation because food maintained above that temperature is a major contributor to foodborne illnesses. Ms. Herrmann observed several potentially hazardous food items in the walk-in cooler, including (a) raw meat/ poultry, (b) cooked fruits/vegetables, and (c) cheese/milk/ creamer/other dairy products, that were maintained at a temperature greater than 41° Fahrenheit. See Ex. 2. At the conclusion of her inspection, Ms. Herrmann prepared a written report documenting the Food Code violations observed by her. A copy of the inspection report was given to Javari Moore, an employee who was present at that time, and the violations were explained to him. Also, he was told that the violations must be corrected by 10:30 a.m. the following day, June 12, 2014, and that a call-back inspection would be performed at that time to verify that the violations had been corrected. Around 10:30 a.m. on June 12, 2014, Ms. Herrmann performed a call-back inspection of Respondent's premises. While some violations had been corrected, she observed that the high priority Food Code violations observed during the routine inspection on June 11, 2014, had not been corrected. See Ex. 3. Before leaving, Ms. Herrmann provided a copy of the inspection report to Mr. Moore and discussed the violations with him. The findings contained in the inspection reports were used in the preparation of an Administrative Complaint issued against Respondent. Other than stating that no food had been taken out of the walk-in cooler that morning, Mr. Moore gave no further explanation for the high priority violation.3 There is no evidence that Respondent has been found guilty of a prior offense of this nature.
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 that Respondent is guilty of one high priority violation, and imposing a fine of $250.00. Such fine shall be due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 21st day of October, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of October, 2014.
The Issue The issues in the case are whether the allegations set forth in an Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Pita's Restaurant (Respondent) are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes (2010).1/ At all times material to this case, the Respondent was a restaurant operating at 8412 West Hillsborough Avenue, Tampa, Florida 33615, and holding food service license number 3912285. On October 28, 2009, Rich Decker (Mr. Decker), employed by the Petitioner as a sanitation & safety specialist, performed a routine inspection of the Respondent and observed conditions that violated certain provisions of the Food Code. Food Code violations are classified as "critical" or "non-critical." A critical violation of the Food Code is one that poses a significant threat to the public health, safety, or welfare and is a risk factor for food-borne illness. A non- critical violation of the Food Code is one that does not meet the definition of a critical violation. At the conclusion of the October 28, 2009, inspection, Mr. Decker noted the observed violations in an inspection report. The owner of the Respondent signed the report and received a copy at the time of the inspection. Mr. Decker advised the owner that a follow-up "callback" inspection was scheduled to occur on December 28, 2009, and that the violations needed to be corrected by that date. The callback inspection did not occur on December 28, 2009. Mr. Decker performed the callback inspection on January 5, 2010, and observed some of the same Food Code violations noted on the October 28, 2009, inspection report. At the conclusion of the January 5, 2010, inspection, Mr. Decker again noted the observed violations in an inspection report. The manager of the Respondent signed the report and received a copy at the time of the inspection. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed raw eggs being stored above prepared, ready-to-eat pita bread. This violation was deemed to be critical because raw food stored above ready-to-eat food can lead to bacterial contamination of the ready-to-eat food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed unidentified medicine being stored in a refrigeration unit along with food supplies. This violation was deemed to be critical, because the medicine could have contaminated the food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed prepared, ready-to-eat, and potentially-hazardous food being stored without having been date-marked to identify the last date upon which the food could be consumed. Prepared food has a limited shelf life during which it may be safely consumed. The failure to date-mark prepared food was a critical violation, because such failure may result in the consumption of unsafe food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed that there was no consumer advisory warning related to consumption of raw or undercooked foods posted on the premises. The Food Code requires the posting of such a notice, and the failure to comply is deemed a critical violation, because consumption of certain raw or undercooked foods poses a health risk to some consumers. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed an employee engaged in food preparation without wearing a hair net. Although food can be contaminated by human hair, this violation was deemed to be non-critical, because no immediate threat to human health was presented by the violation.
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 a fine of $1,350 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 20th day of May, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2011.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated December 2, 2009, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2323257. At all times material hereto, the Restaurant was located at 762 Northwest 183rd Street, Miami Gardens, Florida 33169. A critical violation in food service is considered to be a violation that, if not corrected, is directly related to food-borne illness, food contamination, or health risk. A non-critical violation in food service is considered to be a violation that, if not corrected, can become a critical violation. On August 14, 2009, Daniel Unold, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Unold found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Unold prepared a food inspection report, setting forth the alleged violations and the date for the callback inspection, which was October 14, 2009. The inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations and that the violations had to be corrected by the callback date of October 14, 2009, and he provided the representative with a copy of the inspection report. On October 19, 2009, Inspector Unold performed the callback inspection. Among other things, four critical violations were not corrected from the routine inspection of August 14, 2009. During the callback inspection, Inspector Unold prepared a food callback inspection report, setting forth, among other things, the alleged critical violations. The callback inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations. The most serious alleged critical violation, which had been found on August 14, 2009, and was not corrected by October 19, 2009, was no certified food manager for the Restaurant. This violation is critical because it is necessary for the person operating a food service establishment to be knowledgeable regarding food contamination, hygiene, cloth contamination, and food-related diseases. That person is a certified food manager, and the certification process requires class training and a test. The next most serious alleged critical violation not corrected by October 19, 2009, was no proof of required employee training. This violation is a critical violation because it is necessary for every food service employee to have basic knowledge regarding hand washing and food contamination. The next most serious alleged critical violation not corrected by October 19, 2009, was the hand wash sink lacking the proper hand drying provisions. This violation is a critical violation because hand drying is an important part of the hand washing procedure, and, if not performed correctly, it is as if hand washing had not occurred at all. The next most serious alleged critical violation not corrected by October 19, 2009, was the Restaurant operating without a current Hotel and Restaurant license. The new owner of the Restaurant, Elise Benabe, had not completed a change of ownership application. This violation is a critical violation because the State of Florida requires all public food service establishments to be licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Five Star Haitian Restaurant violated Florida Administrative Code 61C-4.023(1), Section 509.049, Florida Statutes (2009), Food Code Rule 6-301.12, and Section 509.241(2), Florida Statutes (2009); and Imposing an administrative fine in the amount of $1,875.00 against Five Star Haitian Restaurant. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Louise Wilhite-St Laurent, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elise Benabe Five Star Haitian Restaurant 762 Northwest 183rd Street Miami Gardens, Florida 33169 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Louise Wilhite-St Laurent Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-220
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 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier 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. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, 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 $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 2013, 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 13th day of May, 2013.
