The Issue The issue is whether Respondent is guilty of various violations of Florida statutes and rules in the operation of his restaurant and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds license control number 46-04280R, which is in effect from December 1, 1999, through December 1, 2000. The license authorizes Respondent to operate a restaurant known as Speedy Two Shop at 2957 Martin L. King Boulevard in Fort Myers. Petitioner has previously disciplined Respondent. By Stipulation and Consent Order filed May 22, 1997, the parties agreed that Respondent would pay an administrative fine of $1100 and correct all violations by April 30, 1997. The Stipulation and Consent Order incorporates the findings of inspections on February 25 and March 7, 1997. These inspections uncovered seven violations, including missing hood filters over the cooking surface, heavy grease accumulations on the inside and outside of the hood, a fire extinguisher bearing an expired tag (May 1995), and operation without a license. In Petitioner's District 7, which includes Fort Myers, the licensing year for restaurants runs from December 1 to December 1. Respondent's relevant licensing history includes annual licenses for the periods ending December 1, 1997; December 1, 1998; and December 1, 1999. However, Respondent has operated his restaurant for substantial periods without a license. Respondent renewed his license ending in 1997 after four months of operating without a license, his license ending in 1998 after 17 months of operating without a license, his license ending in 1999 after six and one- half months of operating without a license, and his license ending in 2000 after one and one-half months of operating without a license. For each of these late renewals, Respondent paid a $100 delinquent fee. Petitioner conducts periodic inspections of restaurants. These inspections cover a broad range of health and safety conditions. Certain violations, as marked on the inspection forms, "are of critical concern and must be corrected immediately." This recommended order refers to such violations as "Critical Violations." On January 22, 1998, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered seven Critical Violations. Two Critical Violations involved Respondent's compliance with licensing and training requirements. Respondent was operating the restaurant without a license, and no employee had a food manager's card, which evidences the successful completion of coursework and a test in managing a restaurant. The report warns that if Respondent did not renew his license before February 1, 1998, Petitioner would impose a fine and possibly revoke his license. The report requires Respondent to ensure that an employee obtains a food manager's card by March 3, 1998. Two Critical Violations involved Respondent's noncompliance with fire safety requirements. The fire extinguisher and built-in fire suppression system both bore outdated tags. The former tag expired in April 1997, and the latter tag expired in May 1997. The remaining three Critical Violations were that the restaurant lacked a filter in his hood over the stove, ceramic tiles over the three-compartment sink, and sanitizing solution in the bucket that was supposed to contain sanitizing solution. Respondent's employee explained that the hood filters were being cleaned, but apparently offered no explanation for the other two Critical Violations. Despite the specific warnings concerning the licensing and training violations, the January 1998 inspection report requires only that Respondent correct the violations by the next routine inspection. On March 26, 1998, Petitioner's inspector conducted an reinspection of Respondent's restaurant. The inspection uncovered the same Critical Violations, except for the sanitizing solution. The report states that Respondent must come to Petitioner's office in the next seven days to renew his license. On April 2, 1998, Petitioner served upon Respondent an Administrative Complaint alleging that, on January 1, 1998, Respondent was operating without a license. Neither this nor any subsequent charging document cites any of the other six Critical Violations found in the January 22, 1998, inspection as bases for discipline, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On June 30, 2000--over two years after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to the Division of Administrative Hearings (DOAH) for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2694. On April 29, 1998, Petitioner's inspector conducted another reinspection. Upon identifying himself to Respondent's employee, the employee denied the inspector access to the premises and told him to return at 2:00 PM. The inspector replied that the reinspection would take only five minutes and that he could not return at 2:00 PM, but the employee continued to deny the inspector entry. On May 12, 1998, Petitioner's inspector conducted another reinspection and found the same seven Critical Violations present during the January 1998 inspection. New Critical Violations were the presence of one "small mouse and roaches" under the three-compartment sink and the presence of cooked sausage patties and links with an internal temperature too low to prevent the proliferation of bacteria. As for the food manager's card, Respondent told the inspector that he had left it at home. The report warns that Respondent must correct the violations by May 18, 2000, 8:00 AM. On September 29, 1998, Petitioner served upon Respondent a Notice to Show Cause alleging the violations found during the inspections of March 26, April 29, and May 12, 1998. On June 30, 2000--one year and nine months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2697. On July 31, 1998, Petitioner's inspector conducted another reinspection and found five of the same Critical Violations: operating without a license, no employee with a food manager's card, fire suppression system bearing an outdated tag, ceramic tile missing over the three-compartment sink, and heavy grease accumulation on the hood filters, which had been reinstalled. Petitioner never cited these five Critical Violations in any charging document, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On October 2, 1998, Petitioner's inspector conducted an inspection and found four of the original Critical Violations: no license, no employee with a food manager's card, no current tag on the fire suppression system, and no ceramic tile over the sink. Although the fire extinguisher was presumably current, it was improperly placed on the floor. Other Critical Violations included the storage of sausage at the improperly warm temperature of 51 degrees, the absence of a thermometer in the home-style refrigerator, the presence of rodent feces on the floor, the absence of working emergency lights, the absence of a catch pan in the hood system, a broken self-closer on the side door, a clogged hand sink, an extension cord serving a toaster, and the evident expansion of the restaurant without an approved plan. The report gives Respondent until October 9, 1998, at 11:00 AM to correct the violations. On October 12, 1998, Petitioner's inspector conducted a reinspection and found all of the Critical Violations cited in the preceding paragraph still uncorrected. On October 20, 1998, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of October 2 and 12, 1998. On June 30, 2000--one year and eight months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2695. For some reason, Petitioner neither prosecuted the pending charges nor conducted repeated inspections for several months after October 1998 inspections and Administrative Complaint. The next inspection of Respondent's restaurant took place on April 30, 1999. Despite the six and one-half months that Petitioner effectively gave Respondent to correct the numerous Critical Violations cited in the October 12, 1998, inspection, Respondent continued to violate many of the same provisions for which he had been cited throughout nearly all of 1998. The inspection report discloses that, again, Respondent was operating without a license. The report notes that he lacked a license for the licensing years ending in 1998 and 1999. One of Petitioner's inspectors testified that Respondent had been making progress on the licensing issue. However, the implication that Respondent was unable to pay the $190 licensing fee (usually accompanied by a $100 delinquent fee) is quietly rebutted by the notation, also in the April 30, 1999, report, that Respondent had completed the expansion project--still, without the required plan review. Again, no employee at the restaurant had a food manager's card. Again, the fire suppression system was in violation--this time because the indicator revealed that it needed to be recharged. Again, the hood filters were missing above the cooking surface. Again, the hand sink was inoperative- -this time, it was not only clogged, but it also lacked hot water. Again, emergency lighting was inoperative. Again, the ceramic tile was missing over the three-compartment sink. Again, food was maintained too warm in the refrigerator--this time, chicken was at 69 degrees. A new Critical Violation was the exposure of live electrical lines and insulation. The April 1999 inspection report gives Respondent until May 14, 1999, at 11:00 AM to correct the violations. On May 14, 1999, Petitioner's inspector conducted a reinspection and found that Respondent still had not obtained a license for the licensing year ending in 1999, still lacked an employee with a food manager's card, still had not obtained approval of its expansion plan, still lacked ceramic tile over the three-compartment sink, still had a clogged hand sink without hot water, still lacked working emergency lights, still tolerated exposed electrical line and insulation, and still lacked hood filters above the cooking surface. On June 2, 1999, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of April 20 and May 14, 1999. On June 30, 2000--one year and one month after issuing the Administrative Complaint-- Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2696. Over a period of 16 months, Petitioner conducted eight inspections of Respondent's restaurant. On what would have been a ninth inspection, one of Respondent's employees denied access to the inspector. On each of these eight inspections, Respondent was operating without a license, lacked an employee with a food manager's card, and lacked ceramic tile over the three- compartment sink. On seven of these eight inspections, the fire suppression system was expired or discharged, and the hood filter was missing or excessive grease had accumulated on the filter or the liner. On three of these eight inspections, the fire extinguisher was outdated, and, on a fourth inspection, it was improperly stored on the floor. On three of these eight inspections, sausage or chicken was at improper temperatures--the 86 degrees at which sausage was served on one occasion was only 17 degrees warmer than the 69 degrees at which chicken was stored on another occasion. On three of these eight inspections, the hand sink was unusable because it was clogged or lacked hot water, the emergency lights did not work, and restaurant expansion was taking place or had taken place without review or approval of the plans. On two of these eight inspections, the inspector saw signs of rodents in the kitchen--one time actually seeing a small mouse. On two of these eight inspections, exposed electrical lines and insulation were present in the kitchen. Petitioner has proved by clear and convincing evidence that Respondent committed all of the cited violations. Uncorrected violations over 16 months amount to more than a failure to take advantage of the numerous opportunities that Petitioner gave Respondent to bring his restaurant into compliance. These uncorrected violations constitute a refusal to comply with the basic requirements ensuring the health and safety of the public. The penalty must weigh, among other things, Respondent's blatant disregard of fundamental requirements in licensing, training, and fire and food safety; Petitioner's demonstrated lack of diligence in enforcing Respondent's compliance with these requirements; and the peril posed by these failures upon the public health and safety.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order revoking Respondent's license. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2000. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurant Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gail Hoge, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angelo E. Ruth 2774 Blake Street Fort Myers, Florida 33916
Findings Of Fact The Petitioner, Thriftway of Indiantown, is a retail food store located at 15488 Southwest Warfield Boulevard, Indiantown, Florida. It has a mailing address of Post Office Box 188, Indiantown, Florida 34956. The Department of Agriculture and Consumer Services is charged with the administration and enforcement of Chapter 500, Florida Statutes, along with rules promulgated thereunder relating to food safety and the selling of food to the consuming public. Department food safety inspectors conducted food safety inspections at Thriftway of Indiantown's place of business on the following dates during 1995: April 4 and 19, May 4 and 18, and June 1 and 15. On each of the five inspections from April 4 through June 1, the Thriftway of Indiantown received an overall rating of "poor." These ratings resulted from the fact that on each of these five occasions the inspector observed unsanitary conditions that constituted violations of applicable statutory and rule provisions. On each of the five inspections from April 4 through June 1, most of the violations were not critical violations. Only two critical violations were noted during the subject five inspections. One critical violation was the presence of rodent droppings. The other critical violation was the presence of live roaches. Rodent droppings were observed on all five of the subject inspections. Live roaches were observed on four of the five subject inspections. The last inspection of the Thriftway of Indiantown was on June 15, 1995. On that date there were no rodent droppings, no roaches, and no other critical violations. On June 15, 1995, there were only two minor problems, which were promptly corrected, and the store received an overall rating of "fair." During the period from the "poor" rating on April 4, 1995, until the "fair" rating on June 15, 1995, the manager and owners of Thriftway of Indiantown made diligent and industrious efforts to correct all of the violations noted on all of the inspection reports from April 4, 1995, through June 15, 1995. They made continuous progress towards correcting all of the non- critical violations, but in spite of their best efforts over several weeks they were unable to resolve the rodent and roach problems until early June. During April and May of 1995 the manager and owners of Thriftway of Indiantown did everything they could think of to resolve the rodent and roach problem. They called their pest control service and had extra pest control treatments applied. They searched in vain for rodent nests. They moved stock and cleaned everywhere they thought there might be rodents. They set out mouse traps and glue strips. When the existing pest control service appeared to be unable to solve the rodent and roach problems, the manager and owners of Thriftway of Indiantown began looking for another pest control service. After contacting and negotiating with several pest control companies, on May 31, 1995, the owners of Thriftway of Indiantown signed a contract with a new pest control company. The new pest control company was apparently successful, because when the store was inspected on June 15, 1995, the inspector did not see any rodent droppings or any roaches. On the dates of the five inspections from April 4, 1995, through June 1, 1995, Thriftway of Indiantown held food items in an unsanitary environment and offered such food for sale to the consuming public.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 4th day of April 1996 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1996.
The Issue The issues in this matter are whether Respondent was out of compliance with the food safety requirements of chapter 509, Florida Statutes (2016),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509. Respondent is a licensed public food service establishment in Florida and holds License No. 3915849. Respondent operates a restaurant under the name of Los Gorditos No. 2 located at 6110 Causeway Boulevard, Tampa, Florida. Respondent is a family-owned and operated business. The restaurant opened in November 2014. As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division. Ashley Herrmann (“Inspector Herrmann”) is employed by the Division as a Sanitation Safety Specialist. Inspector Herrmann has worked for the Division for approximately two and a half years as an inspector. Upon gaining employment in the Division, Inspector Herrmann was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. She is also a certified food manager and receives continuing education training on a monthly basis. Inspector Herrmann performs approximately 1,000 inspections each year. On November 5, 2015, Inspector Herrmann performed a routine, unannounced food service inspection on Respondent’s restaurant. During the inspection, Inspector Herrmann prepared a Food Service Inspection Report. In her report, Inspector Herrmann recorded her observations of potential violations. Inspector Herrmann noted approximately 39 conditions for which Respondent had failed to comply with applicable rules or statutes. Jaharia Perez signed the Food Service Inspection Report acknowledging receipt on Respondent’s behalf. Inspector Herrmann informed Respondent that it needed to correct the violations by November 12, 2015. On November 13, 2015, Inspector Herrmann performed a callback inspection on Respondent to follow up on her initial inspection. During this inspection, Inspector Herrmann prepared a Callback Report. Inspector Herrmann found that Respondent had corrected 14 of the violations she identified during her November 5, 2015, inspection. However, Respondent had not addressed the 25 other violations. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by December 5, 2015. Mariella Mendoza signed the Callback Report acknowledging receipt on behalf of Respondent. On December 8, 2015, Inspector Herrmann performed a second callback inspection on Respondent to follow up on the November 13, 2015, inspection. During this inspection, Inspector Herrmann prepared a second Callback Report. She noted that Respondent had corrected five more violations recorded in her November 5, 2015, and November 13, 2015, inspections. However, 20 violations still existed. Inspector Herrmann informed Respondent that the remaining violations needed to be fixed by January 5, 2016. Jaharia Perez signed the Callback Report acknowledging receipt on Respondent’s behalf. On January 5, 2016, Inspector Herrmann performed a third callback inspection on Respondent. During this inspection, Inspector Herrmann prepared a third Callback Report. On this report, Inspector Herrmann noted that Respondent had fixed at least one more violation identified during her November 5, 2015, November 13, 2015, and December 8, 2015, inspections. However, a number of violations remained uncorrected. Based on Inspector Hermann’s January 5, 2016, Callback Report, the Division cited Respondent with thirteen violations. These violations included: First Violation: Inspector Hermann observed a cutting board with cut marks which made the cutting board no longer cleanable in violation of rule 4-501.12, Food Code (2009).3/ Cutting boards that have cut marks collect food debris which enables bacteria to accumulate leading to food borne illness. The Food Code defines the governing requirement for this violation as a “core item.” The Division designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent, at the final hearing, expressed that it has obtained a new cutting board. Second Violation: Inspector Herrmann observed non-food grade containers being used for food storage in violation of rule 4-101.11, Food Code. Non-food grade containers can contain chemicals that can leak into food products. The Food Code defines the governing requirement for this violation as a priority item.4/ The Division has designated violations of priority items as “high priority violations.” See Fla. Admin. Code R. 61C-1.005(5)(a). Respondent claimed that it ordered and now uses approved food grade containers. Third Violation: Inspector Herrmann observed a build-up of dust, food debris, and grease on hood filters in violation of rule 4- 601.11(C), Food Code. Debris can potentially fall from hood filters or shelving into food items or accumulate on non-food contact surfaces and transfer to clean containers placing the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that in December 2015, it hired a custodial company to clean grease, debris, and soil in its facility every three months. Fourth Violation: Inspector Herrmann observed that Respondent seated more patrons than its septic system permit authorized in violation of rule 5-403.11, Food Code. Respondent’s establishment was approved for 19 seats, but Inspector Herrmann observed the establishment operating with approximately 48 seats on November 5, 2015, November 13, 2015, and December 8, 2015. On January 5, 2016, Respondent operated with approximately 25 seats. Serving more patrons than the septic system can accommodate can result in a failed septic system that can create a sanitary nuisance. The Food Code defines the governing requirement for this violation as a priority item. The Division has designated violations of priority items as “high priority violations. See Fla. Admin. Code R. 61C-1.005(5)(a). Respondent testified that, following the January inspection, it has reduced its seating to approximately 20 seats. Respondent has also initiated a plan to connect to the city water and sewer. This arrangement will allow the restaurant to expand its seating without violating its septic system capacity. Respondent hopes to connect to city water by Christmas 2016. Fifth Violation: a. Inspector Herrmann observed the presence of standing water around the floor drain, which was draining slowly near the cook line and fryers, in violation of rule 5-205.15, Food Code. Standing water in floor drains can potentially back up into the establishment and create a sanitary nuisance or potentially attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Sixth Violation: Inspector Herrmann observed an outside dumpster sitting directly on the ground without a barrier or non-absorbent surface between the dumpster and the ground in violation of rule 5- 501.11, Food Code. Dumpsters without proper pads allow food waste and chemicals to leak into the ground and attract vermin. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that it is working with Hillsborough County to redesign the area where the dumpster is located to include a concrete space for the dumpster that complies with regulations. The permits have not yet been approved, but Respondent is working towards them. Seventh Violation: Inspector Hermann observed several broken wall tiles under the three compartment sink and damaged cove molding on the front cook line in violation of rule 6-501.11, Food Code. Damage to wall or cove molding can lead to the accumulation of food debris and the growth of bacteria, putting the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent asserted that it repaired all the wall tiles in December 2015. Eighth Violation: Inspector Herrmann observed soil on Respondent’s floor near or along the baseboards in violation of rule 6-501.12(A), Food Code. Bacteria and dirt on the floor can come into contact with food contact surfaces placing the public’s health at risk. The Food Code defines the governing requirement for this violation as a “core item.” The Division has designated violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Similar to its reaction to the Fourth Violation, Respondent hired a custodial company to clean grease, debris, and soil in its facility every three months. Ninth Violation: a. Inspector Hermann observed that lights above a food preparation table were missing a proper light shield or cover in violation of rule 6-202.11, Food Code. Light covers and shields protect food items and preparation surfaces from shattered glass. The Food Code defines the governing requirement for this violation as a “core item.” The Division designates violations of core items as “basic violations.” See Fla. Admin. Code R. 61C-1.005(5)(c). Tenth Violation: Inspector Herrmann observed carbon dioxide/helium tanks that were not adequately secured in violation of Florida Administrative Code Rule 61C-1.004(7)(a). Unsecured tanks might topple over and, if breached, can become a missile-like object and a danger to the public’s safety. The Division designated this violation as a “basic violation.” See Fla. Admin. Code R. 61C-1.005(5)(c). Respondent explained that the tanks are owned by the owner of the building where the restaurant is located and were present when Respondent opened its business. Further, Respondent understands that the tanks are empty. Therefore, the tanks do not pose a danger if the top valve gets knocked off. Eleventh Violation: Inspector Herrmann observed that Respondent had recently constructed a bar inside the restaurant. Respondent did not submit a plan for the bar to the Division for approval in violation of rule 61C-1.002(5)(c)1. Inspector Herrmann contacted the Division’s Plan Review Office and confirmed that Respondent had not submitted a properly prepared facility plan and specification for review. The Division must approve remodeled or newly constructed public food service establishments to ensure compliance with sanitation and safety requirements. The Division designated this violation as an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent explained that it requested and received approval from the Hillsborough County Fire Department to construct the bar. However, Respondent was not aware that it also needed to submit a plan review to the Division. Consequently, it did not seek approval from the Division. Twelfth Violation: Inspector Herrmann observed Respondent operating with four or more employees engaging in food preparation and/or handling without a certified food protection manager on duty in violation of Florida Administrative Code Rule 61C-4.023(1). At least one certified food protection manager must be present at all times when four or more employees are engaged in the storage, preparation, or serving of food to ensure the establishment is operating with acceptable sanitary practices. The Division designated this violation an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent expressed that it always operates under the supervision of certified food protection managers and believes that a food manager was present during the times of the inspections. Respondent offered that the inspections were accomplished in a short timespan (20 minutes). This short time period, combined with the fact that Spanish is the primary language of many of Respondent’s employees, may have led to a misunderstanding over whether a certified food manager was present during the inspections. At the final hearing, Respondent testified and produced evidence that Respondent currently employs approximately nine certified food managers. Respondent further represented that the two individuals who signed the inspection reports on Respondent’s behalf were also certified food protection managers. Thirteenth Violation: a. Respondent failed to provide Inspector Herrmann with proof of its employees' required state-approved employee training upon request in violation of section 509.049(5). Employees of public food service establishments are required to have basic food safety training which imparts knowledge of basic food handling skills. Lack of this knowledge can result in a breakdown of the food handling process, possibly leading to food borne illness or unsanitary conditions. The Division designated this violation as an “intermediate violation.” See Fla. Admin. Code R. 61C-1.005(5)(b). Respondent has one prior disciplinary Final Order filed with the Agency Clerk for the Department of Business and Professional Regulation within the 24 months preceding the administrative complaint in this matter. The Final Order in Case No. 2015-014633 was filed on October 6, 2015. Based on the evidence and testimony presented at the final hearing, the Division demonstrated, by clear and convincing evidence, that Respondent was out of compliance with applicable food safety requirements of the Food Code, Florida Statutes, and the implementing administrative rules of the Division. The Division established that on or about November 5, 2015, November 13, 2015, December 8, 2015, and January 5, 2016, Respondent committed the following violations listed above: the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and thirteenth violations. The Division did not establish, by clear and convincing evidence, the tenth and twelfth violations.
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 Respondent, Benitel Eddie Joel Perez, d/b/a Los Gorditos No. 2, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $3,500 for the violations identified above, due and payable to the Division within thirty (30) calendar days of the date the final order is filed with the Agency Clerk. DONE AND ENTERED this 29th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of June, 2016.
The Issue This is a license discipline case in which the Petitioner seeks to impose an administrative fine on the basis of allegations in an Administrative Complaint in which the Respondent is charged with having violated the Florida Food Safety Act, Chapter 500, Florida Statutes.
Findings Of Fact 1. The Department of Agriculture and Consumer Services (Department) is the state agency charged with the responsibility for enforcement of the Florida Food Safety Act, Chapter 500, Florida Statutes. 2. At all times material to this case, the Respondent, Laste International, Inc, d/b/a Laste Supermarket, was the owner and operator of a retail food service establishment located at 1721 North Andrews Square, Fort Lauderdale, Florida. At all times material to this case, the Respondent has held a food service permit for the establishment. 3. On January 8, 2001, a Department representative inspected the Respondent's premises described above. At the time of the inspection, there were numerous conditions on the Respondent's premises that were violations of the Florida Food Safety Act. Among the violations observed on January 8, 2001, were the following critical deficiencies: ~ Failure to discard unsafe, adulterated or contaminated food. - Food on premises from an unknown and/or unapproved source. - Equipment or utensils that were not properly sanitized. - Failure to have hot and cold running water under pressure for warewashing sinks. - Failure to have hot and cold running water under pressure at handsink. - Failure to control the presence of insects. - Failure to control the presence of rodents. 4. As a result of the several critical deficiencies and numerous other deficiencies, the Respondent's establishment was given an overall rating of "poor," and the Respondent was advised that the premises would be reinspected two weeks later. The Respondent was also notified of several specific violations which required the removal of several specified items of food from the Respondent's establishment because the food items were adulterated or were from unapproved sources. In the food retail area of the Respondent's establishment there were insect droppings, rodent droppings, and rodent urine. Some bags of rice were adulterated by rodent excrement. Some cans of food were dented and rusted and unfit for human consumption. 5. As of the date of the inspection on January 8, 2001, the Respondent's establishment had a long history of unsatisfactory conditions. During the period of slightly more than three years from November 20, 1997 to January 8, 2001, the Respondent's establishment was inspected a total of 13 times by Department inspectors. During that entire period the Respondent's establishment was never rated as "good," and was rated as "fair" following only two inspections. On all of the other inspections prior to January 8, 2001, the Respondent's establishment was rated as "poor." This long history of unsatisfactory conditions was one of the considerations that led to the Department 's decision to impose an administrative fine when the Respondent had another "poor" inspection report as a result of the inspection conducted on January 8, 2001. 6. The Respondent's establishment was reinspected on January 25, 2001. On that date, for the first time in over three years, the Respondent's establishment received an inspection rating of "good." 7. The Department seeks to impose an administrative fine in the amount of $5,000.00. The fine the Department seeks to impose in this case is consistent with the administrative fines the Department has imposed on other permit-holders who had similar histories of unsatisfactory conditions in retail food service establishments.
Conclusions John McCarthy, Esquire Department of Agriculture and Consumer Services Mayo Building, Fourth Floor 407 South Calhoun Street Tallahassee, Florida 32399-0800 Yves Corneille Laste International, Inc. 1721 North Andrews Square Fort Lauderdale, Florida 33311-4862
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order in this case imposing an administrative fine in the total amount of $5,000.00. gt | DONE AND ENTERED this |} day of July, 2001, in Tallahassee, Leon County, Florida. — ~~ L : MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this LX day of July, 2001. COPIES FURNISHED: John McCarthy, Esquire Department of Agriculture and Consumer Services Mayo Building, Fourth Floor 407 South Calhoun Street Tallahassee, Florida 32399-0800 Yves Corneille Laste International, Inc. 1721 North Andrews Square Fort Lauderdale, Florida 33311-4862 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Respondent violated section 500.147(1), Florida Statutes (2020),1 when it refused entry to Petitioner's inspectors unless the inspectors agreed 1 Unless stated otherwise, all references to statutes and administrative rules are to the 2020 versions that were in effect during the conduct at issue. Childers v. Dep't of Envtl. Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997). to Respondent's "no camera" policy; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating food establishments pursuant to chapter 500, Florida Statutes (the Food Safety Act), and Florida Administrative Code Chapter 5K-4. At all times relevant, Tampa Maid was permitted as a food establishment (Food Permit No. 28143) by the Department.4 Tampa Maid operates a shrimp and shellfish processing plant at 1600 Kathleen Road in Lakeland, Florida (Facility). As a seafood processor, Tampa Maid is subject to the jurisdiction of the federal Food and Drug Administration (FDA), and specifically to seafood Hazard Analysis Critical Control Points (HACCP) inspections. The Department contracts with the FDA to perform various types of inspections including HACCP inspections. The Department's FDA contract contemplates that (1) Department inspectors will collect information and 3 An official word index to the Transcript was submitted on March 31, 2021. 4 Section 500.03(p) defines "Food establishment" as "factory, food outlet, or other facility manufacturing, processing, packing, holding, or preparing food or selling food at wholesale or retail." evidence, (2) evidence can be in the form of photographs, and (3) evidence collected is not subject to public records requests, but rather must be kept confidential. 5 It states: All information collected during the performance of this contract shall be considered as confidential commercial information, including the Establishment Inspection Report (EIR), FDA 483, or equivalent forms, evidence collected, and all other supporting documentation. Evidence and supporting documentation may include supplier, receiving, and distribution records, photographs, complaint records, laboratory results, and other documents collected during the performance of the contract. The Contractor shall notify the Division Technical Advisor within three (3) business days after receipt of a public records request for information obtained during the performance of the contract is received. The Contractor is not authorized to release confidential commercial information. (emphasis added). The Department trains staff to conduct various types of inspections of food establishments. The Department also issues inspectors equipment to be used to perform their duties. This includes tools such as a flashlight, probe thermometer, test strips for sanitizers, and mobile phones. The Department- issued phones have a camera to take photographs during an inspection. The Department has developed the Manufactured Food Inspection Protocol (Protocol) which contains the following instructions for inspectors: 6.5 Refusal of Inspection Notify a manager immediately if you are denied entry to any part of the establishment including being restricted from taking photographs of violative conditions, collecting samples, or if the 5 Chapter 500 is to be interpreted to be consistent with the FDA's rules and regulations. See § 500.09(3), Fla. Stat. Additionally, the Department has adopted federal regulations and other standards. Fla. Admin. Code R. 5K-4.002. Article 5.3.4 of the FDA's Investigation Operations Manual (2021) provides further instructions and guidance to inspectors of documenting conditions using photographs during inspections. See FDA website at: https://www.fda.gov/media/113432/download (last visited April 6, 2021). establishment management or person in charge refuses to provide access to required food records; this may constitute a refusal of inspection. * * * 7.1 FIMS Review [Before an inspection] review recent inspection reports … for attached files, documents, photographs, etc. * * * 8.1.1. Signing of Non-FDACS Documents Circumstances may arise in which a food establishment requests the [inspector] to sign documents during the inspection. Listed below are specific guidelines for these circumstances. Contact a manager f you encounter a situation not listed. 8.1.2 Proprietary Documents Florida Statute Chapter 500.147 authorizes the Department to have access to any food establishment … for the purposes of inspecting such establishment … to determine whether this chapter or any rule adopted under this chapter is being violated. Documents including, but not limited to, waivers, nondisclosure, confidentiality agreements may include language that inhibits our authority to conduct the inspection. If you are asked to sign these types of documents inform the person in charge that you are not authorized to sign the documents. If they persist and /or deny you entry, contact a manager as this may constitute a refusal of inspection. * * * 8.1.4 Sign-In and Sign-Out Rosters All FADCS employees are authorized to sign-in and sign-out at food establishments, so far as they sign- in document does not include language that would impede the inspection. * * * 13. Inspection Techniques and Evidence Development Collect adequate evidence and documentation in accordance with FDACS procedures to support inspectional observations such as those listed below: * * * 13.2 Photographs Photographs serve as supporting evidence when documenting violative practices or conditions. Photographs should be related to conditions contributing to adulteration of the finished product. Excessive amounts of photographs are not necessary to support your documentation. Ensure photographs clearly represent the conditions observed. These photographs must be uploaded to the FIMS inspection visit. As explained by Inspectors Frank Kilgore and Bhisham Ojha it is "not uncommon" for inspectors to take photographs during an inspection for various reasons. The most obvious reason is to document violative conditions. An example given at the hearing was of an inspector using a camera to take photographs of rodent droppings (which are presumably a health and safety violation in a food establishment) to show they existed inside a particular facility. Another reason an inspector would take photographs would be to establish whether the product is interstate commerce. An inspector could take a photograph of the packing materials on the box in a food establishment to later determine whether it had been shipped from out of state. Inspectors can also document through photographs whether a facility is operating beyond the scope of its permit or license. For example, an entity may be permitted to operate as a warehouse, but during the inspection it may be discovered that the entity is also repacking seafood or spices. A photograph of the unlicensed activity can be included in the inspection report to establish the improper activity. Finally, photographs are helpful for follow-up inspections to establish whether a violation still exists. For example, a piece of equipment may be broken or dirty in violation of safety regulations during an inspection. On the follow-up inspection, a comparison can be made to a photograph taken during the original visit to establish if it has been repaired or cleaned. Inspectors are trained to take photographs during an inspection and how they can be used. As stated in the Protocol and supported by the testimony of the inspectors, an inspector must have a need for taking a picture, such as a suspected violation, and cannot take pictures for no reason. In addition to instructing inspectors on how to use photographs, the Protocol advises inspectors on what types of documents they can sign as long as there are no restrictions on their ability to conduct the inspection. Although they are allowed to sign a "Sign-In/Sign-Out" sheet, they are not to sign "waivers, nondisclosure, confidentiality agreements may include language that inhibits our authority to conduct the inspection." If faced with these documents, they are to refuse to sign them; if denied entry by the entity being inspected, the inspector is instructed to contact the Department. March 9, 2020 On March 9, 2020, Mr. Kilgore and Mr. Ojha visited Tampa Maid's facility to conduct an HAACP and FDA contract inspection. Mr. Kilgore was the lead inspector and was training Mr. Ojha. Upon arrival, the inspectors were asked to sign a COVID protocol acknowledgment or questionnaire. When the inspectors refused to sign the document, Tampa Maid accepted their verbal answers to the COVID questions. Then, as a prerequisite to entering the part of the Facility the inspectors were to inspect, Rod Stokes, Tampa Maid's Director of Food Safety and Quality Assurance, asked the inspectors to sign a ledger titled "Visitors Register," located at a desk in the office of the Facility. The Visitors Register was located on a desk next to a large placard which stated, "FOOD DEFENSE. PLEASE SIGN IN." Next to the Visitors Register and underneath the placard was a document titled, "Visitor's Information" and is copied below: The "Visitor Information" sheet included a list of 14 items typed in "ALL CAPS" including instructions (such as "sign in," "be careful of moving equipment," "do not touch the equipment," and "report any intestinal illness") and prohibitions (for jewelry, gum, food, tobacco, open-toed shoes, and weapons). The item at issue is located in the middle of the list: "8. No Cameras Allowed." At the very bottom of this document, after being instructed to "enjoy your visit," in a smaller font and not capitalized, was a conclusion that, by signing the visitor's log (presumably the same as the "Visitor's Register") a visitor was agreeing to follow the 14 listed statements. Both inspectors had visited the Facility on previous occasions and both had signed the Visitors Register. Mr. Ojha claimed he did not recall the "no camera" instruction listed as number eight on the Visitor Information sheet and did not agree to it, nor did he follow the instructions. Rather, he kept the Department-issued phone, which had the camera, in his back pocket during the inspection. Mr. Kilgore remembered previously signing the Visitors Register, but he did not notice the Visitor Information language. He explained that the Visitor Information sheet was not attached to the Visitors Register. If he had noticed the language, he would not have signed the ledger. He also claimed that he always kept the Department issued phone with him during inspections. When the Department inspectors refused to perform the inspection without their cameras on March 9, 2020, Mr. Stokes would not allow them to proceed. Mr. Stokes did not believe the inspectors had the authority to use a camera during the inspection, and he demanded that the inspectors or the Department give him the legal basis for the Department's authority to bring cameras into a facility. Although there was a discussion between Mr. Stokes and Department staff, nothing was provided to Mr. Stokes to change his mind. Ultimately, Mr. Kilgore informed Mr. Stokes that they would not conduct the inspection without their phones and that prohibiting them from entering the Facility with cameras could result in a refusal of inspection. Mr. Stokes continued to refuse to let the inspectors proceed into the Facility with their Department-issued phones. No inspection took place on March 9, 2020, and there is no evidence the Tampa Maid Facility has been inspected since that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered as follows: Finding that Tampa Maid denied the Department free access to its facility in violation of section 500.147, Florida Statutes, as alleged in the Administrative Complaint, when it refused to let inspectors enter with cameras. Requiring Tampa Maid to pay an administrative fine in the amount of $1,000. Suspending Tampa Maid's Food Permit (Food Permit No. 28143) until such time that access to the food establishment is freely given to the Department. DONE AND ENTERED this 12th day of April, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2021. COPIES FURNISHED: Allan J. Charles, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399 Magdalena Ozarowski, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399 Honorable Nicole "Nikki" Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Daniel J. Fleming, Esquire Johnson Pope Bokor Ruppel & Burns, LLP Suite 3100 401 East Jackson Street Tampa, Florida 33602 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
