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 Petitioner is the State agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 16850 Collins Avenue, Golden Beach, Florida, and holding food service license number 2326334. On February 26, 2008, and April 29, 2008, Respondent was inspected by Ricardo Unold, a Senior Sanitation and Safety Specialist with the Division. During both visits, Mr. Unold noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Unold and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that as of April 29, 2008, the following deficiencies subsisted at Respondent New San Telmo: (1) In-use utensils stored in standing water less than 135 degrees Fahrenheit, in violation of Food Code2 Rule 3- 304.12(F); (2) The public bathroom was not equipped with a tight-fitting, self-closing door, in violation of Food Code Rule 6-202.14 and Florida Administrative Code Rule 61C-1.004(2)(b); (3) An unlabeled spray bottle, in violation of Food Code Rule 7- 102.11; and (4) No proof of required employee training, in violation of Section 509.049, Florida Statutes. The deficiencies relating to the lack of proof of employee training, the unlabeled spray bottle, and the bathroom door are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The final deficiency (storing in-use utensils in water less than 135 degrees Fahrenheit), while not categorized as a critical violation, is serious nonetheless because it directly relates to food preparation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division 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 $1400, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 30th day of August, 2010, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2010.
The Issue Whether New Roseau Restaurant (New Roseau), a licensed restaurant, committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against New Roseau.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, New Roseau was licensed as a public food service establishment, with the following business address: 1180 Northwest 119th Street, Miami, Florida 33168. On April 10, 2013, and August 21, 2013, New Roseau was inspected by Dominique Adam, a sanitation and safety specialist with the Division. During both visits, Mr. Adam noticed items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Adam and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 21, 2013, the following deficiencies subsisted at New Roseau: (1) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes; (2) no proof of required state-approved employee training for its employees, in violation of section 509.049(5), Florida Statutes. Both of these deficiencies, pursuant to Florida Administrative Code Rule 61C-1.005, are characterized as intermediate violations. New Roseau is a third or subsequent offender due to the filing of two disciplinary Final Orders within twenty-four months preceding the Administrative Complaint in the present case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order finding New Roseau guilty of both counts in the Administrative Complaint, and ordering New Roseau to pay an administrative penalty in the amount of $1,600.00, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 28th day of April, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2014. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jean-Claude Duval New Roseau Restaurant 1313 North Federal Highway Hollywood, Florida 33020-7864 Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
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
The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact No Name Pub holds a Permanent Food Service license 5400281, for operation of a public food establishment on Watson Boulevard, Big Pine Key, Florida. On April 16, 2009, at 11:58 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. The inspector cited the following violations, among others: 1) failure to provide the required consumer advisory for food that is raw, undercooked, or not otherwise processed to eliminate pathogens; 2) use of working food containers without label as to contents; 3) failure to provide hot water at employee hand wash sink; and 4) failure to provide handwashing cleanser at handwashing lavatory. At the time of this inspection, Respondent corrected the first, third, and fourth violations in the presence of the inspector. On December 7, 2009, the inspector performed another routine inspection of the public food establishment. Among other things, the inspector observed the recurrence or continuation of the four violations described in the preceding paragraph. The four violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause foodborne illness. Respondent's testimony, even if credited, does not rebut the violations with the exception of the first violation-- the lack of a consumer advisory. Twice, a trained inspector could not find such a warning. The testimony offered by Petitioner is credited over that offered by Respondent.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the four violations identified above and imposing an administrative fine of $1600 on Respondent. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S 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 26th day of July, 2011. COPIES FURNISHED: William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Douglas P. Leps No Name Pub Post Office Box 430818 Big Pine Key, Florida 33043
The Issue The issue in this case is whether on April 5 and October 18, 2011, and on February 28, 2012, Respondent was in compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, and if not, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food-service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. Mr. Douglas Peterson has been employed as a Sanitation and Safety Specialist with the Division for five and one-half years. He previously worked in the restaurant industry for over 21 years, including eight years as a kitchen manager and five years as a restaurant assistant manager. He has had training, including monthly in-house training and field training, in food inspection. On average, he conducts about five safety and sanitation inspections of food-service establishments per day, and about 1000 inspections per year. China King is a licensed permanent public food-service establishment operating at 4941 East Busch Boulevard, Suite 120, in Tampa, Florida. The owner of China King, Mr. Chi Kin Chan, speaks very little English. Representing the restaurant was Mr. Chan’s daughter, Ms. Man Chan, who assists her father with the restaurant. Under all of the circumstances, including the facts that Ms. Chan helps operate the restaurant, demonstrated basic knowledge of applicable statutes and rules, and demonstrated her ability to capably and responsibly represent Respondent, Ms. Chan was accepted as a Qualified Representative. China King was inspected by Mr. Peterson on August 25, 2010, and October 26, 2010. The Administrative Complaint alleged violations based upon these inspections, and testimony and exhibits as to these violations were offered at hearing. However, an earlier Administrative Complaint relating to these inspections has already been settled, as discussed below. The Stipulation and Consent Order in the earlier case settled any violations based upon these inspections, and no purpose is served by delineating the details of those inspections here. On April 5, 2011, Inspector Peterson conducted another food service inspection on China King. Inspector Peterson prepared a Food Service Inspection Report, DBPR Form HR 5022- 015, using his Personal Data Assistant (PDA) to record the violations that he observed during the inspection. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the April inspection, Mr. Peterson observed that China King had ready-to-eat, potentially hazardous food prepared on-site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, and noted this on his report. The Division has determined that lack of proper date marking poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022-015. Mr. Peterson also observed during the April inspection that China King was storing food on the floor in the cooks’ line and in the preparation area, and noted this on his report. The Division has determined that storing food on the floor poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022-015. During the April inspection, Mr. Peterson observed the improper use of a plastic food container or other container with no handle being used to scoop or dispense food that was not ready-to-eat, and noted this on his report. The Division has determined that using containers without handles to scoop or dispense food fails to minimize food contact with bare hands, and poses a significant threat to the public health, safety, or welfare. The Division has identified this as a critical violation on DBPR Form HR-5022-015. On October 18, 2011, Mr. Peterson conducted another inspection of China King. Inspector Peterson again prepared an inspection report on DBPR Form HR 5022-015 using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the October inspection, Mr. Peterson again observed ready-to-eat, potentially hazardous food prepared on- site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, including egg rolls, cooked chicken, pork, and shrimp. He recorded this information in his report, along with a notation that it was a repeat violation. Mr. Peterson also observed food stored on the floor in the walk-in during his October inspection. He recorded this, noting that it was a repeat violation. During the October inspection, Mr. Peterson observed the improper use of a bowl or plastic food container without a handle as a scoop to dispense non ready-to-eat foods such as flour and starch, as well as ready-to-eat foods such as salt and sugar. He noted this in his report, along with a notation that this was corrected on-site. Mr. Peterson also observed an employee with no hair restraint during the October inspection. He noted this in his report along with the fact that it was corrected while he was on-site. On February 28, 2012, Mr. Peterson conducted a stipulation call-back inspection, as well as a full inspection of the China King. A stipulation call-back inspection is an inspection that is required as part of a stipulation which is conducted for the limited purpose of determining whether specific violations noted earlier have been corrected. Inspector Peterson prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on February 28, 2012, using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the reports on behalf of China King. On February 28, 2012, Mr. Peterson again observed that ready-to-eat, potentially hazardous food that had been prepared on-site and held more than 24 hours had not been date-marked. He noted this in his reports. Mr. Peterson again observed food stored on the floor in the walk-in and cooks’ line during his February inspection and made note of this in his reports. Mr. Peterson again observed a can without a handle being used to scoop rice on February, 28, 2012, as was noted in his reports. Mr. Peterson also observed an employee without a hair restraint during his February inspection, noting this in his reports. In response to questioning from Respondent at hearing, Inspector Peterson stated that he was familiar with the description of the inspection process set out on the Division of Hotels and Restaurants’ website. Inspector Peterson was aware that these procedures state that an inspector will invite the manager to accompany him on the inspection walk-through, and that the inspector will go over each item on the inspection report. Mr. Peterson testified that at each inspection he advised persons at the restaurant of the violations and the need to correct them. Mr. Chi Kin Chan, owner of China King, testified that Mr. Peterson did show his badge when he conducted the inspection on February 28, 2012, although he did not announce who he was. Mr. Chan testified that Mr. Peterson just went through the restaurant on his own and did not invite Mr. Chan or anyone else from the restaurant to accompany him on his inspection. Mr. Chan testified that Mr. Peterson then just went to the front of the restaurant and prepared his report without discussing any of the alleged violations with Mr. Chan or operators of the restaurant. Mr. Taoso Tevega is engaged to be married to Ms. Man Chan, and so is the prospective son-in-law of Mr. Chan. Mr. Tevega occasionally assists the Chan family with the restaurant, but does not receive any paycheck from China King. He works in the receiving department of Advance Auto Parts. Mr. Tevega was present at China King during the February 28, 2012, inspection. Mr. Tevega testified that on February 28, 2012, Inspector Peterson just showed up in the back of China King without identifying himself and that he did not ask anyone to accompany him as he went about the restaurant conducting his inspection. Mr. Tevega testified that Mr. Peterson did not discuss or explain the violations to anyone, but just had Ms. Chan sign the report. Mr. Peterson testified that he was in business casual attire, with his employee identification tag secured from a lanyard worn around his neck, and that he presented identification before beginning each inspection. Mr. Peterson identified himself by displaying his badge before and during the February 28, 2012, inspection, as testified to by Mr. Chan and Mr. Peterson. Mr. Peterson did not invite anyone to accompany him as he conducted the inspection on February 28, 2012, as Mr. Chan and Mr. Tevega testified. Mr. Peterson advised operators at the restaurant of the violations and the need to correct them, as he testified. The Division issued an Administrative Complaint against China King for the above violations on or about March 7, 2012. Additional evidence introduced at hearing showed that China King had a previous disciplinary Final Order entered within 24 months of the Administrative Complaint issued in this case. That Stipulation and Consent Order was signed by China King Manager Ko Chan on January 13, 2012, and was filed on January 24, 2012. In the Order, China King agreed to pay a fine of $900.00, but neither admitted nor denied the allegations of fact contained in the Administrative Complaint. Some of those allegations would have constituted critical violations. The January 24, 2012, Stipulation and Consent Order was in settlement of an Administrative Complaint issued on November 8, 2010. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on August 25, 2010, and October 26, 2010, two of the inspections for which testimony and documentary evidence was submitted in this case, but which are discussed here only for penalty purposes.
Recommendation Upon consideration of the above 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 China King in violation of three critical violations and one non-critical violation and imposing a fine of $2,625, to be paid within 30 calendar days of the filing of the Final Order with the Agency Clerk. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of December, 2012.
The Issue The issue in this case is whether the Respondent, Rosarios II Italian Restaurant (Respondent), committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2008). At all times material to the allegations of this case, the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (See Petitioner’s Exhibit 1). The Respondent's license number is 1617840. In his capacity as an inspector and as a sanitation and safety supervisor for the Petitioner, Sean Grofvenor visited the Respondent’s place of business (12691 West Sunrise Boulevard, Sunrise, Florida) on November 13, 2007. On that date, the violations, more fully described in the inspection report of that date, (Petitioner's Exhibit 2) warranted the closure or emergency order of suspension of license for the establishment. The Respondent was made aware of the violations and the Petitioner announced that it would come back in 24 hours to reassess the closure. The closure was deemed appropriate to protect the public. The 24-hour call-back inspection was provided to reassess the "critical" problems depicted in the inspection report. The November 13, 2007, inspection report described the following "critical" violations: Live and dead roaches present at the establishment; Ready-to-eat food prepared on site and held more than 24 hours without proper date and time tagging; A hand-wash sink lacked proper drying provisions by the dish machine; Uncovered food was discovered in a holding unit, the dry storage area, and in a walk-in cooler; and Soiled gaskets at numerous stations within the food preparation areas. After the 24-hour call-back inspection was completed, the Respondent was allowed to reopen but was advised that a second follow up inspection would be performed. The Respondent was given until January 14, 2008, to correct all of the violations previously identified and described in the inspection report of November 13, 2007. Robert Becker is a sanitation and safety specialist employed by the Department. He accompanied Mr. Grofvenor on the November 13, 2007, inspection of the Respondent's establishment and assisted in the compilation of the violations noted in the first inspection report. Inspector Becker performed a call-back inspection of the Respondent's establishment on January 17, 2008. This final call-back inspection report (Petitioner's Exhibit 3) described the violations that remained uncorrected. The Department uses the terms "critical" and "non- critical" to describe violations of the "Food Code." The "Food Code" as it is used in this record, refers to paragraph 1- 201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C- The Food Code is also available through the U. S. Food and Drug Administration Internet website. "Critical" violations of the Food Code are conditions that, if not corrected, could lead to food contamination, food borne illness, or environmental degradation. A "non-critical" violation relates to a preventative measure or practice to keep the environmental conditions of food preparation and service in proper order. If not corrected, a "non-critical" violation has the potential to become a "critical" situation. When Inspector Becker returned to the Respondent's establishment on January 17, 2008, the critical violations described in paragraph 4 were not fully corrected. For example, Inspector Becker observed roach activity within the kitchen of the Respondent's establishment. Roach activity is considered a critical violation as roaches are a direct contributor to the contamination of food and the spread of bacteria and disease. Inspector Becker documented the number and location for each roach discovered at the site. Additionally, Inspector Becker observed unmarked ready-to-eat food that was not appropriately tagged. Date marking ready-to-eat food is necessary to prevent spoilage and the growth of bacteria. Foods may only be held at designated temperatures and within certain conditions for a limited time period. If left unmarked, it is impossible to discern whether the guidelines have been met. Third, Inspector Becker found the hand wash sink lacked proper drying provisions. Although a repeat violation from the previous inspection, the Respondent corrected this violation on site. The fourth critical violation related to uncovered food in holding situations. Food must be properly covered to prevent exposure to contamination. Whether in a walk-in cooler or other station, food must be covered. Sauces and pasta are considered "food." The final critical violation was soiled gaskets on several kitchen appliances or preparation surfaces. Cooler gaskets at the prep reach-in cooler, cooler gaskets at the pizza station, and gaskets near a fryer were dirty or soiled. When gaskets are soiled the mere opening and closing of the device can spread filth and expose food to contaminants. Gaskets must be kept clean and free of all potential contaminants. In addition to the foregoing, there were several non- critical violations of a preventative nature that the Respondent failed to correct. These violations could easily be corrected and did not pose an immediate threat to the public. For example, a restaurant employee without hair restraint is easily corrected. In testifying for the Respondent, Mr. Pierre Louis maintained that while the inspection report of November 13, 2007, was correct, he had since made the corrections necessary to bring the restaurant into compliance. Those corrections were not, however, completed before January 17, 2008. Mr. Pierre Louis described difficulty finding replacement gaskets for the equipment. The inference being that the gaskets could not be cleaned but had to be replaced. Mr. Pierre Louis did not advise the Department of the difficulty in making the replacements until the time of hearing. The Respondent was given over 60 days within which to make the necessary corrections. The Respondent did not correct the roach problem between November 13, 2007, and January 17, 2008, despite its representation that it had hired an extermination company to address the problem. Roach presence is a critical violation that cannot go unattended or inadequately treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against the Respondent in the amount of $3,500.00. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper sanitary measures are adopted at the restaurant. DONE AND ENTERED this 26th day of September, 2008, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2008. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cheri-ann Granston Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ernst Pierre Louis Rosarios II Italian Restaurant 12691 West Sunrise Boulevard Sunrise, Florida 33323
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 29, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See section 509.032(1), Florida Statutes. Carvel is a food service establishment licensed and regulated by the Department and located at 3148 Coral Way, Miami, Florida 33145. On July 22, 2009, Jorge Gandolff, a senior inspector of public food service establishments employed by the Division, inspected the premises of Carvel. As an inspector for the Division, Mr. Gandolff was required to complete a Food Service Inspection Report, DBPR Form HR 5022-016 and -015 ("Form HR 5022-016 and -15"), for each public food service establishment that he inspected. During the inspection of Carvel, Mr. Gandolff noted that Carvel was not in compliance with a number of the items listed on the Form HR 5022-016 and -15 inspection report. Mr. Gandolff noted that, among other things, he "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on floor"; "observed food container not properly labeled." It was Mr. Gandolff's practice, and the usual practice of Division inspectors, to complete the Form HR 5022-016 and -15 inspection report and record the violations he observed at a public food service establishment on a personal digital computer. At the end of the inspection, it was his practice to obtain the signature of the person in charge on the Form HR 5022-016 and -15 inspection report, print a copy of the report, and review the violations that had been noted with the person in charge. Mr. Gandolff followed his usual practice in completing the inspection of Carvel on July 22, 2009. He prepared a Form HR 5022-016 and -15 Food Service Inspection Report setting forth his findings and noted on the report that Carvel "MET INSPECTION STANDARDS during this visit" and that "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." (Emphasis in original.) Zoila Fernandez, an employee of Carvel, signed the inspection form, and Mr. Gandolff went over the inspection findings with her. Mr. Gandolff inspected the premises of Carvel for the second time on November 24, 2009. In addition to several other violations, Mr. Gandolff noted on the Form HR 5022-016 and -15 inspection report that he again "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on walk-in cooler floor Cardboard boxes of chocolate chip"; "observed food container not properly labeled ice cream containers not labeled stored inside self service freezer in customer area." These six items were considered repeat violations; that is, these items were found to be out of compliance with the Food Code at the July 22, 2009, inspection. In addition, these six items were marked with an asterisk on the Form HR 5022-016 and - 15 inspection report, which designated them as "critical" violations. Mr. Gandolff recommended that these items be included as violations in an Administrative Complaint. Mr. Gandolff also noted on the Form HR 5022-016 and -15 inspection report that the "Inspector determined violations require further review, but are not an immediate threat to the public." Zoila Reyes, an employee of Carvel who was on the premises during the November 24, 2009, inspection signed the inspection report. She was not able to accompany Mr. Gandolff during the entire inspection because the store was busy, but Mr. Gandolff went over the inspection report with her. Ms. Shah was not present during either of the inspections. It is her practice to come into the store early and prepare the store to open. Her preparations include cleaning the premises and the equipment. Mr. Gandolff found three items during both the July 22, 2009, and November 24, 2009, inspections that he wrote up as a single violation of the Food Code and that he considered the most serious violation of the Food Code. The first item was the build-up of food on the mixer head that was not just the normal amount of build-up that occurs during a workday but was old, dry, and crusted. Mr. Gandolff considered this a serious condition because this piece of equipment came in direct contact with food and could contaminate it. The second item was the slime build-up inside the interior of the ice machine, which Mr. Gandolff considered a serious condition because the ice came into direct contact with the interior of the ice machine and could be contaminated by the slime. The third item was the soiled gaskets on the reach-in freezer that was a black residue probably resulting from the buildup of old product. Mr. Gandolff considered this a serious condition because the freezer gaskets are very close to the product in the freezer, and the product could be contaminated if it came into contact with the gaskets. The violation Mr. Gandolff considered the next most serious violation of the Food Code found during both the July 22, 2009, and November 24, 2009, inspections was a cardboard box containing chocolate chips stored directly on the floor of the walk-in cooler because the food product inside the box could be contaminated by water or any other residue on the floor of the cooler, especially if, as here, the food product is stored in a cardboard box that could absorb water from the cooler floor. In addition, Mr. Gandolff considered the absence of labels on containers of ice cream stored in a freezer accessible to customers to be a serious violation of the Food Code because a customer must be able to look at the label on the food product and know the ingredients in the product and the date the product was prepared so the customer can make a determination if the product is safe for them to eat. Mr. Gandolff also considered the uncovered trash receptacle in the women's bathroom a serious violation of the Food Code because such receptacles must be covered to avoid exposure of women's sanitary napkins. These violations are all critical violations because they pose a significant danger to the public health and because they are identified as critical violations on the inspection report forms Mr. Gandolff completed on July 22, 2009, and November 24, 2009, recording his observations of the Carvel premises. Ms. Shah has owned the Carvel store for approximately 14 years, and, during that time, the store has not been cited for any violations as a result of inspections by the Division. The Carvel store owned by Ms. Shah is very small and, because of the poor economic conditions of recent years, Ms. Shah makes very little money at the store and is barely able to keep the business open. Summary The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that there were five repeat violations of the Food Code on the premises of Carvel during the November 24, 2009, inspection. Ms. Shah failed to present sufficient evidence to establish that the violations observed by Mr. Gandolff were not present. First, her explanation of the missing cover on the waste receptacle in the women's bathroom, that the receptacle had just been emptied and that the cover was sitting on the floor beside the receptacle, could have explained the missing cover during the first inspection, but the same explanation would have presented too much of a coincidence to be a persuasive explanation for the missing cover at the second inspection. Second, Ms. Shah's categorical denial that any equipment on the store's premises was soiled or otherwise not perfectly clean, her testimony that she cleans everything in the store every morning; that the equipment is cleaned continually during the day; and that all supplies are stored properly in the walk-in cooler and her testimony is not sufficient to refute the specific observations noted by Mr. Gandolff on the inspection reports. Finally, Ms. Shah's testimony that all pre-packed ice cream available for purchase in the store's self-service freezer is packed in containers with labels provided by Carvel, Inc. In the absence of information regarding the content of the labels provided by Carvel, Inc., Ms. Shah's testimony does not refute the Mr. Gandolff's contention that the containers of ice cream did not have labels disclosing the date the ice cream was packed into the containers and the ingredients in the ice cream.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order. Finding Carvel Ice Cream Bakery guilty of having violated Florida Administrative Code Rule 61C-4.010(1)(c) and Food Code Rules 3-305.11; 3-602.11(A); 4-602.11(C) and (D); and 5-501.17; and Imposing an administrative fine in the amount of $525.00. DONE AND ENTERED this 14th day of June, 2011, in Tallahassee, Leon County, Florida. S Patricia M. Hart Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2011.
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated October 20, 2008, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Respondent was a public food establishment, licensed and regulated by the Division. Respondent's license number is 5810388. Respondent's address is 2595 South Hiawassee Road, Orlando, Florida 32835. Norma Gordon is employed by the Division as a sanitation and safety specialist and has worked in that position for four years. Ms. Gordon's job responsibilities include inspecting public food establishments that are regulated by the Division. To effectively carry out job responsibilities, Ms. Gordon had been trained in the areas of Food and Drug standardization, as well as the laws and rules related to the Food Code. Moreover, Ms. Gordon has successfully completed certified manager training. As part of her job, Ms. Gordon participates in monthly continuing education. During her employment with the Division, Ms. Gordon conducts about 1,000 inspections annually. On July 22, 2008, Ms. Gordon conducted a routine inspection of the premises of China No. 1. During the inspection, Ms. Gordon observed about 15 violations, eight of which were deemed to be critical violations. Ms. Gordon set forth her findings and listed all the violations on a Food Service Inspection Report on the day of the inspection. That same day, Ms. Gordon provided a copy of the report to Frank Liu, food manager for Respondent. The Food Service Inspection Report notified Mr. Liu that a call back inspection would be conducted on September 22, 2008, to determine if the violations had been corrected. Mr. Liu signed the Food Service Inspection Report on July 22, 2008, acknowledging that he received a copy of the Inspection Report. On September 23, 2008, Ms. Gordon conducted a call back inspection of China No. 1. During that call back inspection, Ms. Gordon observed several violations that were reported on the Food Service Inspection Report issued on July 22, 2008, but that had not yet been corrected. Ms. Gordon recorded the uncorrected violations that she observed and verified during the September 23, 2008, callback inspection on a Call Back Inspection Report form. That Call Back Inspection Report was completed on September 23, 2008, and signed by Mr. Liu. The uncorrected violations observed and verified on September 23, 2008, are set forth below in paragraphs 9 through 13. The first uncorrected violation was that raw animal foods were not properly separated from each other in the holding unit. Ms. Gordon observed raw chicken stored above the raw beef and vegetables in the upright reach-in freezer. This was a critical violation because food must be protected from cross-contamination. For example, the raw chicken has salmonella, which requires that it be cooked at a certain temperature. Cross-contamination may occur when raw meat products are not separated from each other and/or are stored next to vegetables, because the meats and vegetables have different cooking temperatures. The second uncorrected violation was that Respondent did not have a thermometer available to measure the temperature of the food products. This is a critical violation because such a device is necessary to ensure that foods are prepared and maintained at appropriate temperatures. The third uncorrected violation was that the bathroom door in the establishment was being left open at times other than during the cleaning or maintenance of the facility. This is deemed to be a critical violation. The fourth uncorrected violation was that the restroom was in disrepair. Respondent's establishment had only one toilet. That one toilet had no handle or mechanical device that could be used to flush the toilet. Instead, there was a string tied to the toilet and the handicap bar in the stall. Somehow this mechanism was "rigged" so that in order to flush the toilet, a person had to pull the string that was tied to the handicap bar in the stall. The fifth uncorrected violation was based on the medium build-up of grease on the hood filters above the cooking area. This is a non-critical violation, but can become a critical violation if the equipment is not maintained and cleaned. If the equipment in the cooking area is not kept clean, dust, debris and other residue will accumulate and may fall in the cooking area and/or in the food being cooked. Respondent presented no evidence to establish that the violations described above were corrected on September 23, 2008. Moreover, Mr. Liu did not dispute the evidence presented. His testimony was that most of the violations were corrected in December 2008, which was after the call back inspection. Critical violations are violations that can contribute to food contamination, illness, environmental degradation and/or environmental hazard. Non-critical violations are those which, initially, do not pose an immediate threat. However, if such violations remain uncorrected, they may turn into critical violations. On or about March 21, 2008, the Division issued an Administrative Complaint against Petitioner alleging violations of Chapter 509, Florida Statutes, and/or rules promulgated thereto. The charges set out in that Administrative Complaint were based on inspections conducted on September 27, 2007, and February 27, 2008. No hearing was held in the matter. Rather, the matter was resolved in April 2008, pursuant to a Stipulation and Consent Order executed by the Division and Respondent. Pursuant to that Stipulation, Respondent agreed to pay a $2,300.00 fine and have its manager and employee attend the Hospitality Education Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, China No. 1, violated Food Code Rules 3-302.11(A)(2), 4-302.12, 4-601.11(C) and 6-202.14; and Florida Administrative Code Rule 61C-1.004(2)(a) and (b); Imposing a total administrative fine of $5,000.00 against Respondent. The total administrative fine shall be paid to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 days of the agency entering its final order in this case; and Requiring Respondent (through its employees, owners, and/or managers) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 30th day of June, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2009.
The Issue The issue in this case is whether on April 19, 2010, and July 27, 2010, Respondent was in compliance with food safety requirements set forth in administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation (Division), and if not, what penalty is appropriate.
Findings Of Fact The Division is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. Julianne Browning has been employed as a senior inspector with the Division for six or seven years. It is part of her responsibility to inspect food service establishments for safety and sanitation. She conducts approximately 850 inspections each year. Respondent is licensed as a public food establishment operating as The Green Mango at 7625 West Newberry Road, Gainesville Florida. On April 19, 2010, Ms. Browning conducted a food service inspection on Respondent. Ms. Browning prepared and signed an inspection report setting forth the violations that she observed during the inspection. During her April inspection, Ms. Browning observed an employee engage in food preparation, handle clean equipment or utensils, or touch unwrapped single service items, without washing hands. Ms. Browning identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. The failure of a food service employee to wash their hands constitutes a significant threat to the public health, safety, and welfare. Inspector Browning also observed in April potentially hazardous cold food held at temperatures greater than 41 degrees Fahrenheit. Specifically, she observed potatoes at 68 degrees, batter at 70 degrees, rice at 85 degrees, soup at 55 degrees, turnovers at 90 degrees, and butter at 90 degrees. Ms. Browning made notes of these observations in her report. She identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. Potatoes, batter, rice, soup, and turnovers are potentially hazardous foods and Respondent failed to maintain them at a temperature of 41 degrees Fahrenheit or less. This failure constituted a significant threat to the public health, safety, and welfare. On July 27, 2010, Ms. Browning conducted another food service inspection on Respondent. Again she prepared and signed an inspection report setting forth the violations that she observed during the inspection. During the July inspection, Ms. Browning again observed an employee engage in food preparation, handle clean equipment or utensils, or touch unwrapped single service items, without washing hands. She observed that an employee did not wash his hands before putting on gloves to prepare food. Ms. Browning identified this as a critical violation on DBPR Form HR-5022- 015, the Food Service Inspection Report. It is necessary for employees preparing food to wash their hands even if they are going to be wearing gloves because the gloves could have a tear, or a pin hole, or be otherwise compromised. The failure to wash hands constituted a significant threat to the public health, safety, and welfare. During the July inspection, Ms. Browning observed what she described as clarified butter, which here will be referred to as ghee, on the counter with a temperature of 80 degrees. Inspector Browning also again observed potentially hazardous cold food held at temperatures greater than 41 degrees Fahrenheit. In this instance she observed cream at 47 degrees, tofu at 45 degrees, milk at 45 degrees, potatoes at 45 degrees, yoghurt at 45 degrees, and cooked vegetables at 55 degrees. Ms. Browning identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. Cream, tofu, milk, potatoes, yoghurt, and cooked vegetables are potentially hazardous foods and Respondent failed to maintain them at a temperature of 41 degrees Fahrenheit or less. Potentially hazardous food must be kept at 41 degrees Fahrenheit or below because when the temperature rises above that temperature, bacteria begin to grow at a much faster rate. A person consuming the food can then contract a food-borne illness. The failure to maintain these temperatures constituted a significant threat to the public health, safety, and welfare. Ms. Pandey, witness for Respondent, is an experienced cook. She worked for many years at a Hare Krishna Temple in Alachua County. She is knowledgeable in the preparation and use of ghee. Ms. Pandey testified that ghee is a form of clarified butter that has been used for a great many years in India, and is still used in significant amounts there, precisely because of the widespread lack of refrigeration. Ghee does not spoil as fast as butter or milk or yoghurt. Ms. Pandey testified that ghee is not perishable and that it is therefore not dangerous when at room temperature. She further testified that refrigeration in fact makes it very difficult to use ghee, because it becomes hard and loses its flavor. It was not clear from the evidence presented that ghee is a potentially hazardous food or that failure to keep it at a temperature of 41 degrees Fahrenheit or less constituted a significant threat to the public health, safety, or welfare. The testimony and admitted reports of Inspector Browning as to the failure of Respondent's employee to wash his hands were clear and the reports were recorded at the time of the observation. Ms. Pandey offered no evidence to the contrary. Her unsworn assertion during argument that her husband was not preparing food, but only put on protective gloves because he was aware of the inspection and was scared was not credible, even if it had been offered as testimony. The testimony and admitted reports of Inspector Browning as to the temperature of the foods was clear and was recorded at the time of the observation. Ms. Pandey offered no evidence to the contrary. Her unsworn assertion during argument that the refrigerator holding the food was not being used in the restaurant but was only for storage of personal items was not credible, even if it had been offered as testimony. Petitioner issued an Administrative Complaint against Respondent for the above violations on August 2, 2010. Respondent has had two previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. In the first Stipulation and Consent Order, signed by Anuradha Pandey on January 10, 2010, and entered on January 15, 2010, Respondent agreed to pay a fine of $1550.00, but did not admit nor deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the second Stipulation and Consent Order, signed by Anuradha Pandey on June 2, 2010, and entered on June 10, 2010, Respondent agreed to pay a fine of $2,000.00, but again did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. The June 10, 2010 Stipulation and Consent Order was in settlement of an administrative complaint issued on May 10, 2010, alleging violations of the Food Code revealed in an April 19, 2010 inspection, one of the same inspections for which evidence was submitted in this case.
Recommendation Upon consideration of the above 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 total fine of $1500.00 against The Green Mango for the two critical violations occurring on July 27, 2010, to be paid within 30 calendar days of the filing of the Final Order with the Agency Clerk. DONE AND ENTERED this 23rd day of January, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 January, 2012.
The Issue The issues in DOAH Case No. 10-1704 are whether Respondent, Stacked Subs (Respondent), committed the violations alleged in the Administrative Complaint dated November 5, 2008, and, if so, what penalty should be imposed. Similarly, the issues in DOAH Case No. 10-2445 are whether Respondent committed the violations alleged in the Administrative Complaint dated June 24, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2009). At all times material to the allegations of these cases, Respondent operated as a public food service establishment subject to Petitioner’s jurisdiction. In his capacity as an inspector for Petitioner, Alfonso Rullan visited Respondent’s place of business (2054 State Road 436, Winter Park, Florida) on December 19, 2007. During the inspection, Mr. Rullan noted several food service violations that he memorialized in an inspection report provided to, and signed by, Mr. Nevarez. The violations, more fully described in Petitioner's Exhibit 2, required correction. It was contemplated that Respondent would correct the violations of the Food Code such that on second inspection the violations would no longer be found. Since the inspection revealed “critical” violations, it was incumbent on Respondent to timely correct the violations noted in the inspection report. “Critical” violations are violations that, if left uncorrected, can contribute to food contamination, food-borne illness, or adversely affect public health. Thus, “critical violations” must be timely corrected, as they are a present concern. Violations that could lead to critical violations are denoted as “non-critical.” These “non- critical” violations must also be corrected, but they do not constitute a present threat to the public On March 12, 2008, Inspector Will Goris returned to Respondent’s place of business and completed a second inspection report, denoting critical violations uncorrected from the prior inspection and itemizing the concerns that required correction. Mr. Nevarez signed the report. This report, Petitioner’s Exhibit 3, chronicled ten violations of the Food Code. Subsequently, Petitioner issued an Administrative Complaint (DOAH Case No. 10-1704), outlining the uncorrected and critical violations Respondent had failed to timely address. Respondent timely contested the complaint and sought an administrative hearing in connection with the allegations. Between December 2007 and March 12, 2008, Respondent failed to correct the following violations: Cheese in the reach-in cooler at the front counter was 51 degrees; Employees reported to work and handled food without first washing hands; The prep table was adjacent to the fryers and under the hood was encrusted and greasy; and Single service cups were stored on the floor by the register. Of the foregoing violations, the failure of employees to wash their hands prior to handling food was the most critical violation. This violation was noted by both inspectors. On January 26, 2009, Inspector Goris conducted a routine inspection of Respondent’s premises. On this date, minor violations of the Food Code were again noted, but Mr. Nevarez was given a “met inspection standards” review for this visit. Nevertheless, Petitioner expected Respondent to correct the non-critical violations in a timely manner. On June 17, 2009, when Inspector Goris presented at the restaurant, violations were discovered that led to the second Administrative Complaint, DOAH Case No. 10-2445. Two of the violations were deemed repeat violations, and two were critical violations directly related to public safety; to wit: the soda disperser had slime on it, and proof of employee food- handler training was not available. Respondent timely challenged the Administrative Complaint in DOAH Case No. 10-2445. As to all alleged violations, Respondent was provided adequate notice of the allegations and was provided sufficient time to correct deficiencies. Respondent maintains that inspectors should be trained in abuse of power as their inspections can be discretionary and arbitrary. For example, Respondent claimed that the sleeve of cups on the floor by the cash register had merely fallen there when the inspector cited the violation. Respondent’s claim of abuse of power was unsupported by factual evidence. Moreover, the inspections performed by both inspectors documented objective criteria unrelated to opinion or subjective review. For example, dirty, greasy, or encrusted food surfaces were documented. The failure of employees to wash their hands was documented. The inadequate or incorrect temperature of containers of food was documented. These are not subjective items, but were disclosed to Respondent during and at the time of inspection. It is determined that the inspectors’ testimony was credible and persuasive as to the violations cited. The "Food Code," as it is used in this record, refers to paragraph 1-201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C-1.001. The Food Code is also available through the U.S. Food and Drug Administration Internet website.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against Respondent in the amount of $1,750.00 for the violations listed in DOAH Case No. 10-1704 and $1,000.00 for the violations identified in DOAH Case No. 10-2445. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper guidelines are adopted and implemented at the restaurant. DONE AND ENTERED this 5th day of October, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida Carlos Nevarez Stacked Subs 32399 2054 State Road 436 Winter Park, Florida 32792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
