The Issue Whether Respondent committed the violations alleged in the administrative complaints dated July 8, 2015, and September 30, 2015; and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: The Division is the state agency charged with regulating public lodging and public food service establishments pursuant to chapter 509. At all times material hereto, Respondent was licensed as a public food service establishment in the state of Florida by the Division. Pet. Ex. 1. The Division's first witness, Inspector Audain, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Audain has worked for the Division for approximately ten years as an inspector. Prior to working for the Division, Audain worked in the food industry as a managing partner at a restaurant in New York. Upon gaining employment in the Division, Audain was trained on the Food Code and the laws and rules pertaining to public food service establishments and public lodging establishments. Audain is also a certified food manager. Audain receives continuing education and training on a monthly basis. Audain performs more than 700 inspections each year. The Division's second witness, Inspector Howard, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Howard has worked for the Division for approximately one and one- half years. Prior to working for the Division, Howard worked in the food industry as an executive chef at a Hilton Hotel in Tampa, a chef at a W Hotel in South Beach, and a chef at Los Hotel in South Beach. Upon gaining employment in the Division, Howard was trained on the Food Code and on the laws and rules pertaining to public food service establishments and public lodging establishments. Howard is also a certified food manager. Howard receives continuing education and training on a monthly basis. Howard performs approximately 800 inspections each year. "Basic Item" means an item defined in the Food Code as a Core Item. Fla. Admin. Code R. 61C-1.001(5) (January 1, 2013). "Basic violation" means a violation of a basic item, as defined in Florida Administrative Code Rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to general sanitation and does not meet the definition of high priority violation or intermediate violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "Intermediate violation" means a violation of an intermediate item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to specific actions, equipment, or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "High priority violation" means a violation of a high priority item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, determined by the Division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of rule 61C-1.005. DBPR Case No. 2015-029646 On July 1, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report setting forth the violation she encountered during the inspection. Pet. Ex. 2. On July 1, 2015, Audain notified Respondent of the cited violation. Ricardo Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 2. During the inspection on July 1, 2015, Audain observed roach activity present as evidenced by eight live roaches found crawling on the floor in the food service area, three live roaches crawling on the fryer in the kitchen, three live roaches found by the water heater in the kitchen, two live roaches found between the hose from the water heater and the wall, two live roaches found underneath the kitchen prep table, at least six live roaches found in the air conditioner closet, one live roach crawling on the wall next to the refrigerator, five live roaches crawling on the reach-in cooler by the door to the front service area, and one live roach crawling on the wall in the front service area of the establishment. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. Pet. Ex. 2. As a result of these observations, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency order was issued on the same date as the inspection, July 1, 2015. Pet. Ex. 7. DBPR Case No. 2015-042510 On July 16, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During this inspection, Audain prepared and signed an inspection report setting forth the violations she encountered during the inspection. Pet. Ex. 3. On July 16, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by July 17, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 3. On July 17, 2015, Howard performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Howard prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, inspection report had not been corrected. Pet. Ex. 4. On July 17, 2015, Howard notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 1, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 4. On September 2, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, and July 17, 2015, inspection reports had not been corrected. Pet. Ex. 5. On September 2, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 3, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 5. On September 3, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015; July 17, 2015; and September 2, 2015, inspection reports had not been corrected. Pet. Ex. 6. The first violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. Audain observed employees engaging in food preparation without proper hair restraints. This is a violation because hair can be both a direct and indirect vehicle for contamination. Food employees may contaminate their hands when they touch their hair. Proper use of a hair restraint keeps dislodged hair from ending up in the food and may also deter employees from touching their hair. The Food Code defines the governing requirement for the first violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3, 5-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 367; Fla. Admin. Code R. 61C-1.005(5)(c). The second violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed equipment in poor repair as evidenced by a freezer chest door having filament (insulation) exposed. This is a violation because failure to properly maintain equipment could lead to violations of the associated requirements of the Food Code that place the health of the public at risk. Refrigeration units in disrepair may no longer be capable of properly cooling or holding potentially hazardous (time/temperature control for safety) foods at safe temperatures. The Food Code defines the governing requirement for the second violation as a Core Item. The Division has designated Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 460; Fla. Admin. Code R. 61C-1.005(5)(c). The third violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. During the July 16, 2015, inspection, Audain observed roach activity present as evidenced by four live roaches found nestled in crevices by the air conditioner in the kitchen and one live roach crawling on the floor in front of the reach-in cooler between the kitchen and front service area. During the September 2, 2015, inspection, Audain observed one live roach crawling on the kitchen floor. Audain also observed one dead roach in the dining room freezer and one dead roach near the kitchen door during her inspection on September 3, 2015. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. The Division properly designated this violation as a high priority violation. Pet. Ex. 3, 5-6; Fla. Admin. Code R. 61C-1.005(5)(a). The fourth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed outer openings to the establishment not protected as evidenced by a rear door which was not self-closing. This is a violation because the presence of insects and rodents (which may transmit bacteria and disease to food) is minimized by protecting and securing outer door openings to the food establishment. The Food Code defines the governing requirement for the fourth violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, pp. 485-486; Fla. Admin. Code R. 61C-1.005(5)(c). The fifth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the manager's food manager certification upon request. This is a violation because managers are required to pass an approved food manager certification course and test which ensures managers have a higher level of knowledge regarding sanitation and food handling, preparation, and storage. Lack of the required knowledge can result in breakdowns in these processes. The Division has designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). The sixth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the employees’ required state-approved employee training. This is a violation because employees of restaurants are required to have basic food safety training, which imparts knowledge of basic food handling skills, including proper glove use, procedures for food temperatures and hot/cold holding, cooking temperature requirements, and basic sanitation measures, such as personal hygiene and hand-washing. Lack of this knowledge can result in a breakdown in these processes, possibly leading to food-borne illness or unsanitary conditions. The Division properly designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). Respondent had one Emergency Order of Suspension of License and Closure filed with the agency clerk by the Division within the 12 months preceding the date the current administrative complaints were issued. The Emergency Order of Suspension of License and Closure was filed on July 7, 2015. Pet. Ex. 7.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, ordering Latchman's Seafood Market and Grill, Inc., d/b/a Latchman's Seafood Market and Grill, Inc., to pay an administrative penalty in the amount of $500.00 for the violation listed above in DBPR Case No. 2015-029646 and an administrative penalty in the amount of $1,650.00 in DBPR Case No. 2015-042510, for a total administrative penalty of $2,150.00, plus any applicable and authorized investigative expenses or costs, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date of the final order. DONE AND ENTERED this 5th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2016.
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.
The Issue The issues are whether Respondent is guilty of certain violations of the Food Code, and if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondent was licensed and regulated by Petitioner. Respondent operated under License No. 20-00805-R, in a leased facility in Green Coves Springs, Florida. On December 26, 2003, Daniel Fulton, Petitioner's Senior Sanitation and Safety Specialist, performed a routine inspection of Respondent's premises. During the inspection, Mr. Fulton prepared a Food Service Inspection Report (FSIR) setting forth his findings. Mr. Fulton gave Respondent's manager a copy of the report and explained each finding as a citation/violation. On January 27, 2004, Mr. Fulton re-inspected Respondent's premises. During the re-inspection, Mr. Fulton prepared a Callback Inspection Report, setting forth his findings. Based on his observations, Mr. Fulton listed citations on the Callback Inspection Report that had not been corrected after the December 2003 inspection. According to the Callback Inspection Report, the gas equipment in Respondent's pit area still did not have a fire suppression system over it. Typically, this would constitute a critical violation. However, during the hearing, Respondent provided evidence that the Clay County Fire Inspector considered the current configuration of the hood exhaust system to be acceptable to the Clay County Department of Public Safety. Petitioner's Proposed Recommended Order indicates that it has withdrawn the allegation that Respondent violated the National Fire Protection Act of 1996. On January 27, 2004, Mr. Fulton observed that an outside cooker was not properly enclosed, creating a critical violation. The walls that enclosed Respondent's cooker were not at least four feet high. The area was not properly screened between the existing walls and the roof. In fact, the roof did not cover part of the area where the cooker was located. On January 27, 2004, Mr. Fulton observed that a faucet or hose bib did not have a back-flow prevention device. The lack of a back-flow prevention device created a critical violation. On January 27, 2004, Mr. Fulton observed that there was a black substance on the interior of an ice machine's lid. The December 2003 FSIR did not list this citation as a critical concern that must be corrected immediately. However, Mr. Fulton provided persuasive testimony that ice is consumable and that any foreign black substance in the interior of an ice machine constituted a critical violation. During the December 2003 inspection, Mr. Fulton cited Respondent for not having adequate sneeze protection over the soup pot on the buffet bar. Simply placing a lid on the crock pot was not sufficient to provide that protection when customers removed the lid. After the December 2003 inspection, Respondent decided to adjust the height of the crock pot to provide more sneeze protection. In making the adjustments, Respondent was careful not to let the soup become inaccessible for children and disabled customers in wheelchairs. On January 27, 2004, Mr. Fulton observed that the crock pot containing soup at the buffet bar continued to have inadequate sneeze protection for a person of average height, approximately five feet and six inches. The sneeze protection over the crock pot was not properly adjusted until Mr. Fulton conducted a third inspection in October 2004. The lack of adequate sneeze protection did not constitute a critical violation. On January 27, 2004, Mr. Fulton observed that the inside light of a reach-in cooler was not operational. Respondent ordered the replacement light after the December 2003 inspection, but had not received it at the time of the callback inspection in January 2004. This was not a critical violation. Respondent was aware of all of the above-referenced violations after the December 2003 inspection. Respondent had not corrected them at the time of the January 2004 inspection. In June 2004, Elizabeth Tillman, one of Respondent's owners took over Respondent's day-to-day management. By the time that Mr. Fulton inspected the premises in October 2004, all violations had been corrected except for violations that required building construction by a new owner of the leased premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative penalty in the amount of $1,000.00. DONE AND ENTERED this 9th day of March, 20005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Grant Gibson, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Elizabeth and Ronald Tillman 505 North Orange Avenue Green Cove Springs, Florida 32043 Geoff Luebkemann, Director Department of Business and Professional Regulation Division of Hotel and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Restaurant was a licensed public food service establishment located at 9472 South Orange Blossom Trail, Orlando, Florida. The Restaurant was first licensed in January 2006, and its food service license number is 5811536. Petitioner is the state agency charged with the regulation of hotels (public lodging establishments) and restaurants (public food service establishments) pursuant to chapter 509. Sandra Hopper is a sanitation and safety specialist for Petitioner. Ms. Hopper has worked for Petitioner for one and one-half years. Prior to working for Petitioner, Ms. Hopper worked in the hospitality industry for over 20 years in various positions. Additionally, she was an instructor at a hospitality school. Ms. Hopper received Petitioner's standardized training on the laws and rules governing public food service establishments.4/ Ms. Hopper is a certified food manager and obtains monthly in-house training from Petitioner on her job duties. Through the testimony of Ms. Hopper and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that as of April 14, 2011, the following critical deficiencies existed at the Restaurant: (1) food was stored on the floor (raw chicken, flour, onions, and beverages) contrary to Rule 3-305.11, FC; food was left uncovered in the holding unit (gelatin or jello was left uncovered) contrary to Rule 3-302.11(A)(4), FC; every handwashing sink was blocked from usage (the employees could not wash their hands at the handwashing sinks) contrary to Rule 5-205.11(A), FC; (4) there were no handwashing signs posted at each sink contrary to Rule 6-301.14, FC; and (5) food that was removed from its original containers was not properly identified by their common names in other containers contrary to Rule 3- 302.12, FC. Critical violations are those violations that, if uncorrected, are most likely to contribute to contamination, illness or environmental health hazards, and present an immediate threat to public safety. Also, through the testimony of Ms. Hopper and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that, as of April 14, 2011, the following non-critical deficiencies existed at the Restaurant: (1) equipment was in poor repair contrary to Rules 4-501.11, 4-501.12, and 4-101.11, FC; (2) old food was stuck to clean dishware and utensils contrary to Rule 4-603.12, FC; (3) non-food contact surfaces were soiled contrary to Rule 4- 601.11(C), FC; (4) clean equipment was improperly stored contrary to Rules 4-903.11(B) and 4-903.12(A), FC; (5) building and fixtures were in poor repair contrary to rule 61C-1.004(6); and (6) carbon dioxide/helium tanks were not adequately secured contrary to rule 61C-1.004(7). None of the other putative violations mentioned in the inspection or re-inspection reports (Petitioner's Exhibits 2 and 3) were addressed at final hearing. Therefore, those are irrelevant to this proceeding. On September 21, 2010, a Final Order (based on a Stipulation and Consent Order) was issued to the Restaurant regarding a May 28, 2008, Administrative Complaint. This Administrative Complaint was based on Restaurant inspections that were conducted on September 5, 2007; February 19, 2008; February 21, 2008; and April 25, 2008. Some of the issues therein are repeat violations. On September 21, 2010, a Final Order on Waiver was issued to the Restaurant regarding a June 10, 2010, Administrative Complaint. This Administrative Complaint was based on Restaurant inspections that were conducted on December 3, 2009; March 16, 2010; and June 4, 2008. The issues therein are not the same violations found in the current issues.
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 the Restaurant guilty of violating five critical and six non-critical Food Code or rule standards and imposing a suspension of the Restaurant's license for four consecutive days. The suspension shall begin on the fortieth day after the final order is filed with Petitioner's agency clerk. DONE AND ENTERED this 23rd day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 23rd day of August, 2012.
