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 issue in this case is whether on July 14, 2011, and October 13, 2011, Respondent was in compliance with 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. Ms. Jessica Gabbard has been employed as a Sanitation and Safety Specialist with the Division for two years. She previously worked for the Department of Agriculture in the Bureau of Animal Disease Control for about eight years. She has had training, including monthly in-house training and field training in food inspection. She conducts between 600 and 800 inspections of food service establishments for safety and sanitation each year. Ms. Judy Hentges is a Senior Sanitation and Safety Specialist with the Division, where she has been employed for 12 years. She also has had training in food inspection, and conducts between 800 and 1000 inspections of food service establishments each year. Respondent is licensed as a permanent public food- service establishment operating as the Hong Yip Chinese Restaurant at 905 Southwest Main Boulevard, Lake City, Florida. As the hearing began, it became apparent that the owner of Respondent, Mr. Dong Jia Qi, who speaks very little English, was not present. Representing the restaurant was Mr. He Dong, manager of the restaurant, and son of the owner. Mr. Dong was present during the inspections that are the subject of this proceeding, interacted with Petitioner's agents on those occasions, and signed the inspection reports. Under all of the circumstances, including the fact that Mr. Dong demonstrated both knowledge of the applicable statutes and rules and the ability to capably and responsibly represent Respondent, Mr. Dong was accepted as both a Qualified Representative and as a witness. On July 14, 2011, Inspector Hentges conducted a food service inspection on Respondent. Inspector Hentges prepared an inspection report on her Personal Data Assistant (PDA) setting forth the violations that she observed during the inspection. During her July inspection, Ms. Hentges observed that Respondent was using dry, powdered food products that had been removed from their original containers and that the products' substitute working containers were not labeled with their common names. Storage of dry, powdered food products in unmarked working containers can cause mistakes in preparation that can be serious to consumers due to product allergies. The Division has determined such storage in working containers poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on the DBPR Form HR-5022-015, Food Service Inspection Report. Ms. Hentges observed during the July inspection that Respondent was storing rice and onions in uncovered containers in the walk-in cooler. DBPR Form HR-5022-015, Food Service Inspection Report, indicates that this is a critical violation. Uncovered containers can lead to food contamination by particles, by debris, and by microbes, and the Division of Hotels and Restaurants has determined that this constitutes a significant threat to the public health, safety and welfare. During the July inspection, Ms. Hentges observed a rice scoop on the buffet which was stored in standing water that was less than 135 degrees Fahrenheit, and noted this on the report. During the July inspection, Ms. Hentges also observed that a wet cloth used for wiping food spills from equipment surfaces was sitting on the counter and was not stored between uses in a chemical sanitizing solution, and noted this in her report. Wet wiping cloths can be breeding grounds for pathogens that can transfer to food. On October 13, 2011, Ms. Gabbard conducted a callback inspection on Respondent. She prepared a handwritten report on DBPR Form HR 5022-015 setting forth violations that she observed. Ms. Gabbard testified that she observed powdered food products at the cooking preparation line that had been removed from their original containers and placed in working containers not marked with their common names. She recorded this information in her report. Mr. Dong testified that he had corrected the labeling problem on the "big bucket" that stored the sugar, cornstarch, salt, and flours that had been written up in the July inspection. Mr. Dong testified that on the callback inspection the problem was written-up because of different products found in another area, on top of the reach-in cooler, in a see-through container containing peanuts, sesame seed, cashew nuts, and another Chinese product that is a dried root. Ms. Gabbard testified in cross-examination that she did not remember any nuts. Her report indicates "all powdered food products." The report further indicates this violation was "at cookline prepline." Ms. Gabbard's testimony is credited. The unlabeled products Ms. Gabbard observed and noted in her violations report were powdered products at the cookline that could easily be confused, not foods that could be easily and unmistakably recognized, such as peanuts, cashews, and sesame seeds on top of the reach-in cooler. Ms. Gabbard observed uncovered rice and onions in the walk-in cooler. She recorded this in her report. Mr. Dong provided no contradictory testimony at hearing. Respondent did testify that that the film he used to cover the rice and onions did not stick on the aluminum containers used to store the food. Ms. Gabbard observed a rice scoop at the buffet that was being kept in standing water which was less than 135 degrees Fahrenheit, noting this fact in her report. She took the temperature of the water and recorded that it was 45 degrees Fahrenheit. Mr. Dong testified that that they always keep ice in the water to keep it below 41 degrees Fahrenheit. He testified that the water had just been changed so that the ice may have just melted, though he thought ice was still present. He acknowledged that the water was 45 degrees Fahrenheit as measured with the thermometer. Mr. Dong's testimony that he recently put ice in the container is credible, and the temperature of the water would have been room temperature if this had not been done. The water in which the rice scoop at the buffet line was being stored was 45 degrees Fahrenheit. Ms. Gabbard also observed wet wiping cloths that were not being stored in sanitizing solution between uses, but were located in multiple locations on the counter. She recorded this in her report at the time of the inspection. Mr. Dong admitted the violation at the time of the July inspection. He testified that at the time of the callback inspection in October he was using one cloth and the rest were not in use, but had been cleaned and were hanging on the table to dry. In response, Ms. Gabbard testified that there were multiple cloths around the restaurant laying on the counter. Her testimony was corroborated by her inspection report, prepared at the time of the inspection, which noted, "[o]bserved wet wiping cloth not stored in sanitizing solution between uses. Repeat violation. Located in multiple locations on counter." Mr. Dong's testimony on this violation was less credible than Inspector Gabbard's, and her testimony is credited. The wet wiping cloths had not been cleaned, but had been used, and were not being stored between uses in a chemical sanitizer. Petitioner issued an Administrative Complaint against Respondent for the above violations on October 24, 2011. Additional evidence introduced at hearing showed that Respondent has had five 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 Mr. Dong on October 20, 2009, and filed on December 3, 2009, Respondent agreed to pay a fine of $500.00, 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 Mr. Dong on January 8, 2010, and entered on March 2, 2010, Respondent agreed to pay a fine of $650.00, but again did not admit or deny the allegations of fact contained in the Administrative Complaint, some of which would have constituted critical violations. In the third Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the fourth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted a critical violation. In the fifth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations.
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: Dismissing Counts 2 and 6 of the Administrative Complaint and Finding the Hong Yip Chinese Restaurant in violation of two critical and two non-critical violations and suspending its license for three consecutive days beginning the first Monday after 40 days from the date the final order becomes effective. DONE AND ENTERED this 6th day of November, 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 6th day of November, 2012.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated June 27, 2011, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 1620035. At all times material hereto, the Restaurant was located at 1145 South Federal Highway, Fort Lauderdale, Florida 33316. A critical violation in food service is considered to be a violation of the Food Code that, if not corrected, will most likely cause and is directly related to food-borne illness, food contamination, or environmental hazards. A non-critical violation in food service is considered to be a violation that is less likely to cause and will not directly contribute to food-borne illness or food contamination. On October 27, 2010, Lynden Lewis, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Lewis found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Lewis prepared a food inspection report, setting forth the alleged violations and that the violations were required to be corrected by the next unannounced inspection. The inspection report was signed by Inspector Lewis and a representative of the Restaurant. Inspector Lewis made the representative aware of the alleged violations and that the violations were required to be corrected by the next unannounced inspection, and he provided the representative with a copy of the inspection report. On June 16, 2011, Inspector Lewis and Begum Khatoon, an inspector with the Department, conducted an unannounced routine inspection of the Restaurant. Among other things, three critical violations were not corrected from the routine inspection of October 27, 2010. During the unannounced inspection, Inspector Khatoon prepared a food inspection report, setting forth, among other things, the alleged critical violations. The unannounced inspection report was signed by Inspector Khatoon and a representative of the Restaurant, and Inspector Khatoon provided the representative with a copy of the inspection report. Inspector Khatoon made the representative aware of the alleged violations and that an administrative complaint would be recommended. The most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was raw animal food was stored over ready-to-eat food--raw eggs were being stored over yogurt--in the reach-in cooler. This violation is critical because the ready-to-eat food (yogurt) has already been cooked and gone through the process of pathogenic destruction and will not go through that process again; whereas, the raw animal food (eggs) has not been cooked and not gone through the process of pathogenic destruction. Cross-contamination could occur from the raw animal food by dripping onto or touching of the ready-to-eat food, and any pathogens present on the ready-to-eat food, as a result of the cross-contamination, would pass-on to consumers when the ready-to-eat food is served. Mr. Rocchio's testimony that eggs are stored on the bottom of the refrigerator (reach-in cooler) is found to be credible; however, most importantly, the evidence fails to show that, on the day of the inspection, eggs were stored on the bottom of the refrigerator. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was the hand wash sink in the kitchen was not accessible for employee use at all times. A garbage can was placed in front of the hand wash sink in the kitchen, making the sink inaccessible to employees at all times to wash their hands. Even though Mr. Rochhio testified, and his testimony is found to be credible, that the garbage can was "not a large garbage can," the evidence fails to show, most importantly, that the garbage can did not cause the hand wash sink to be inaccessible to the employees at all times. This violation is a critical violation because the hands of employees become contaminated as employees work and, if the handwash sink is not accessible, the employees will be discouraged from washing their hands. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was handwashing cleanser was lacking at the hand washing lavatory in the kitchen. This violation is a critical violation because hands are a vehicle of contamination, and the use of soap by employees, when washing their hands, removes bacteria and viruses that can contaminate the employees' hands.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Valentinos Cucina Italiana violated section 509, Florida Statutes, through a violation of Food Code Rules 3-302.11(A)(1), 5-205.11(A), and 6-301.11; and Imposing an administrative fine in the amount of $750.00 against Valentinos Cucina Italiana. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012.
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 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 to be resolved in this proceeding are whether Respondent committed the violations alleged in the Administrative Complaint dated August 31, 2012, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, El Ceviche Del Rey, located at 9947 Southwest 142 Avenue, Miami, Florida 33186, holding food service license number 2324027. Critical violations are those violations that are more likely to result in food-borne illness if not corrected. Non- critical violations are those violations that, if not corrected, are less likely to contribute to food-borne illness. Gladys Diaz ("Inspector Diaz") is employed by the Department as a Sanitation Safety Specialist. Inspector Diaz has worked for the Department for approximately one and one-half years. Prior to working for the Department, Inspector Diaz managed a McDonalds franchise for 18 years. Upon gaining employment with the Department, Inspector Diaz received training in laws and rules pertaining to the public food service and public lodging establishments. She is a Certified Food Manager and continues to receive monthly training in the area of food management. On August 29, 2012, Inspector Diaz performed a routine food service inspection at El Ceviche Del Rey. During the inspection, Inspector Diaz observed El Ceviche Del Rey opened for business but operating with no running water. Inspector Diaz prepared and signed an inspection report setting forth the violation she encountered during her inspection. Inspector Diaz prepared the inspection report on- site at El Ceviche Del Rey. The inspection report was signed by Inspector Diaz and a representative of the El Ceviche Del Rey. Inspector Diaz specifically noted the violation as being out of compliance and stated, "At the time of the inspection, there was no water at establishment." The Division determined that operating a food service establishment without water was a critical violation because an establishment cannot clean utensils and employees cannot wash their hands without water. Unclean utensils and dirty hands can lead to contamination of food. The Division closed the restaurant with an Emergency Order of suspension of license for the critical violation. On or about August 31, 2012, the Division issued an Administrative Complaint against El Ceviche Del Rey for operating a food service establishment with no water at the establishment in violation of Food Code Rule 5-103.12. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed. Additional evidence introduced at hearing showed that El Ceviche Del Rey received previous discipline by Final Order in case 2011-040929, entered on December 7, 2011.
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 El Ceviche Del Rey violated section 509, Florida Statutes, through a violation of Food Code Rule 5- 103.12; and Imposing an administrative fine in the amount of $1000.00 against El Ceviche Del Rey, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the agency clerk. DONE AND ENTERED this 11th day of April 2013, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 April, 2013. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Alberto Villalobos El Ceviche Del Rey 9947 Southwest 142nd Avenue Miami, Florida 33186 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 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated December 2, 2009, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2323257. At all times material hereto, the Restaurant was located at 762 Northwest 183rd Street, Miami Gardens, Florida 33169. A critical violation in food service is considered to be a violation that, if not corrected, is directly related to food-borne illness, food contamination, or health risk. A non-critical violation in food service is considered to be a violation that, if not corrected, can become a critical violation. On August 14, 2009, Daniel Unold, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Unold found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Unold prepared a food inspection report, setting forth the alleged violations and the date for the callback inspection, which was October 14, 2009. The inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations and that the violations had to be corrected by the callback date of October 14, 2009, and he provided the representative with a copy of the inspection report. On October 19, 2009, Inspector Unold performed the callback inspection. Among other things, four critical violations were not corrected from the routine inspection of August 14, 2009. During the callback inspection, Inspector Unold prepared a food callback inspection report, setting forth, among other things, the alleged critical violations. The callback inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations. The most serious alleged critical violation, which had been found on August 14, 2009, and was not corrected by October 19, 2009, was no certified food manager for the Restaurant. This violation is critical because it is necessary for the person operating a food service establishment to be knowledgeable regarding food contamination, hygiene, cloth contamination, and food-related diseases. That person is a certified food manager, and the certification process requires class training and a test. The next most serious alleged critical violation not corrected by October 19, 2009, was no proof of required employee training. This violation is a critical violation because it is necessary for every food service employee to have basic knowledge regarding hand washing and food contamination. The next most serious alleged critical violation not corrected by October 19, 2009, was the hand wash sink lacking the proper hand drying provisions. This violation is a critical violation because hand drying is an important part of the hand washing procedure, and, if not performed correctly, it is as if hand washing had not occurred at all. The next most serious alleged critical violation not corrected by October 19, 2009, was the Restaurant operating without a current Hotel and Restaurant license. The new owner of the Restaurant, Elise Benabe, had not completed a change of ownership application. This violation is a critical violation because the State of Florida requires all public food service establishments to be licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Five Star Haitian Restaurant violated Florida Administrative Code 61C-4.023(1), Section 509.049, Florida Statutes (2009), Food Code Rule 6-301.12, and Section 509.241(2), Florida Statutes (2009); and Imposing an administrative fine in the amount of $1,875.00 against Five Star Haitian Restaurant. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Louise Wilhite-St Laurent, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elise Benabe Five Star Haitian Restaurant 762 Northwest 183rd Street Miami Gardens, Florida 33169 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Louise Wilhite-St Laurent Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-220
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated May 23, 2011, and if so, whether disciplinary action should be taken against Respondent.
Findings Of Fact The Department is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is a Florida corporation named Stugotz, Inc., doing business as Joey's On Beach. The corporation is wholly owned by Joseph Di Meglio. Respondent holds a public food establishment license issued by the Department. Respondent's business address is 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. Inspector Smith has been employed by the Department as a Sanitation and Safety Specialist for approximately five years. She has received training in laws and rules regarding public food service and lodging, is a certified food manager, and performs approximately 1,000 inspections each year for the Department. Formerly, Inspector Smith was a restaurant manager for 15 years. On March 2, 2011, Inspector Smith performed a food service inspection of Joey's On Beach located at 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. During the inspection, Inspector Smith prepared and signed an inspection report on her electronic personal data assistant setting forth violations she allegedly encountered during the inspection. Ann Marie Di Meglio, the wife of the owner of Joey's On Beach, was present during the inspection and signed the report on the electronic device. According to the inspection report, the March 2, 2011 inspection of Joey's On Beach occurred at 11:11 a.m. Joey's On Beach opens at 11:00 a.m. The inspection occurred during active food preparation. Inspector Smith made the Respondent aware that all violations noted during the inspection needed to be corrected by May 2, 2011. All of the pages of the three-page March 2, 2011, inspection report are prefaced with the heading "FOOD SERVICE INSPECTION REPORT LEGAL NOTICE" with the warning that "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." The third page of the March 2nd report set forth alleged violations as follows: Warning(s) 12A-09-1: Observed food employee wearing jewelry other than a plain ring on their hands/arms while preparing food. 22-25-1: Observed buildup of soiled material on mixer head. 08A-28-11: Observed bag if [sic] bread crumbs on foor [sic] in walkin cooler. 08A-29-1: Observed sauce and bread crumbs uncoverd [sic] in walkin cooler. 02-22-1: Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked. Sausage 08A-23-1: Observed shell eggs over sausage in walkin cooler 08A-28-1: Observed jug of oil stored on the floor. 53B-08-1: No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. 32-16-1: Hand wash sink lacking proper hand drying provisions. Corrected on site. 09-04-1: Observed bare hand contact of ready-to-eat food by employees and establishment has no approved Alternative Operating Procedure in effect. Corrected On Site. On May 3, 2011, Inspector Smith performed a callback inspection of Joey's On Beach. According to the report, the inspection was performed at 10:18 a.m. Respondent had not yet opened for business and the callback inspection was conducted during active food preparation. During the callback inspection, Inspector Smith did not discuss specifics of the case with the owner, Joseph Di Meglio, because, according to Inspector Smith, inspectors are "not allowed to discuss the case at an inspection." Inspector Smith prepared and signed a two-page report for the May 3rd callback inspection on her electronic personal data assistant indicating that some of the violations noted on the March 2, 2011, inspection report had not been corrected. Mr. Di Meglio signed the May 3, 2011, inspection report. Both pages of the May 3 inspection report had the same "Legal Notice" as the earlier report, stating "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." Alleged uncorrected violations recommended for an administrative complaint were noted on the May 3 inspection report as follows: The following item(s) have been recommended for Administrative Complaint: Violation 53B-08-1 No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. At callback no training provided for Ann Marie. Violation 22-25-1 Observed buildup of soiled material on mixer head. Violation 08A-29-1 Observed sauce and breadcrumbs uncovered in walkin cooler Violation 08A-28-1 Observed bag if [sic] breadcrumbs on floor in walkin cooler Violation 02-22-1 Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked, sausage, and at callback sausage and meat balls not date marked in walkin cooler The Administrative Complaint in this case charged Respondent with the same five alleged violations recommended in the May 3rd callback inspection report, in the following order (Counts 1 through 5): (1) Observed ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked in walk-in cooler [referencing 02-22-1, and citing 3-501.17(A), Food Code]; (2) Observed bag of bread crumbs on floor in walk-in cooler [referencing 08A-28-1, and citing 3-305.11, Food Code]; (3) Observed sauce and break [sic] crumbs uncovered in walk-in cooler [referencing 08A-29-1, and citing 3-302.11A)(4), Food Code]; (4) Observed build up of soiled material on mixer head [referencing 22-25-1, and citing 4-601.11(A), Food Code]; and (5) Observed no proof of required training provided, at call back no training provided for Ann Marie [referencing 53B-08-1, and citing 509.049, Florida Statutes]. At the final hearing, the Department announced that Count 5 of the Administrative Complaint, alleging a lack of training in violation of section 509.049, Florida Statutes, had been dropped because Mr. Di Meglio had established to the Department's satisfaction that Respondent's employees were properly trained. The Department presented some evidence in support of the remaining allegations. As discussed below, however, the Department only met its burden of persuasion as to Count 2 alleging that breadcrumbs were improperly stored in an open container on the floor of the walk-in cooler. As to Count 1 of the Administrative Complaint, at the final hearing, Inspector Smith referred to both inspection reports and observed that the reports indicated that Respondent had failed to properly date mark ready-to-eat potentially hazardous food (sausage and meatballs) held on site for more than 24 hours in the walk-in cooler. She explained that such failure was a critical violation because food must be date- marked to indicate the day it was prepared, and the day that it expires. She further explained that potential hazardous foods, such as precooked sausage and meatballs, are only good for seven days from the date prepared. Respondent's witness, Ann Marie Di Meglio, works at the restaurant and was there when the first inspection took place. Her husband, Mr. Di Meglio, was not. According to Ms. Di Meglio, it is Respondent's procedure to date-mark the containers in the walk-in cooler. She further testified that at the time of the inspection, there was active preparation, and it is hard to keep things covered during active preparation. Mr. Di Meglio, through his testimony, further explained that they date-marked the covers of the sausage and other prepared foods in the cooler, but remove the lids to gain access to the food during active preparation. He testified that there were labels on the lids of the sausage and meatball containers at the time of the inspections, but that the lids had been set aside because of preparation. Inspector Smith suggested that she would have cited the sausage and meatball containers for being open, but could not recall whether they were open or not. She did not see the labels on the lids. There were no photographs or specific descriptions of the containers or observations by Inspector Smith. During the final hearing, when asked whether there were dates on the lids of the containers, Inspector Smith testified, "I can't answer that because I'm not there. I didn't write anything about it being uncovered." Based upon the explanations provided by the Di Meglios, the timing of the inspections, the lack of specific recollection by Inspector Smith, and considering that the Department has the burden of persuasion, it is found that the Department did not prove that Respondent failed to properly date its containers of potentially hazardous foods as alleged in Count 1 of the Administrative Complaint. As to Count 2, Inspector Smith stated in both the March 2 and May 3, 2011, inspection reports that she observed an open bag of breadcrumbs stored on the floor in Respondent's walk-in cooler. Storage of breadcrumbs on the floor in an open container is a critical violation because when food is stored on the floor, it can become contaminated by exposure to wastewater or germs from walking back and forth outside to the bathroom. While perhaps an open container could be explained by the fact that there was active food preparation, no excuse or explanation was offered as why an open bag of breadcrumbs was found on the floor during both inspections. Respondent's witnesses did not otherwise address the improper storage of breadcrumbs on the floor as alleged in Count 2 of the Administrative Complaint. As to Count 3 relating to the open containers of breadcrumbs and sauce, it is found that Respondent's explanation of active food preparation was reasonable given the timing of the inspections. In other words, the Department failed to prove that Respondent was storing foods in open containers because it is found that the containers were only opened temporarily during active food preparation.3/ As to Count 4, relating to an alleged dirty mixer head, the inspection reports for both the March 2 and May 3, 2011, inspections indicate there was a "buildup of soiled material on mixer head." While Ms. Di Meglio testified that she did not know if there was something on the mixer head at the time of the inspections, she testified that the mixer is cleaned every day, and that the material on the mixer head, if any, was not old. Rather, she explained, she had used the mixer around 10:00 a.m. the very morning of the first inspection to make dough and cut cheese. Ms. Di Meglio further explained that Respondent's mixer is very old and has some discoloration. And, while admitting that there may have been some dust or flour on the mixer from recent use, both she and her husband denied that there was any soil on the mixer or the mixer head. Inspector Smith's testimony regarding the state of the mixer, and the brief descriptions in the inspection reports referring to "soiled material" on the mixer head, without more, provided less than clear and convincing evidence of a violation. While Inspector Smith testified that she would not cite the equipment as being dirty if it was soiled with everyday use dirt, she was unable to definitively recall her observations. When questioned about the mixer head at the final hearing, Inspector Smith observed: I just noted that it was extremely2/ soiled when I was there at the initial inspection and at the callback. Not the top, but the mixer head being - - that goes over the unit, from what I can remember. When further asked to explain the difference between "soiled" and "dusty," Inspector Smith testified: It was all food debris with - - I mean, I just remember it just being soiled. It was over a year ago. I can't describe in detail what was on it. I would not cite it unless it was old food debris, or it was mold-like substance maybe with a combination. I don't cite everyday dirt. Considering Inspector Smith's less than specific recall, Respondent's explanation, and the Department's lack of specific details or photographs contrary to the testimony of Respondent's employees, it is found that the Department failed to prove the violation alleged in Count 4 of the Administrative Complaint. While the inspection reports were accepted into evidence as corroborative hearsay, it is found that, under the facts and circumstances, they are documents prepared in anticipation of litigation.4/ Specifically, the reports contain warnings and requirements of compliance, with specific mention of the fact that failure to comply may "initiate a complaint." Moreover, the evidence showed that the investigator could not discuss the allegations with Respondent's owner because inspectors are "not allowed to discuss the case at an inspection." Even if the inspection reports were not merely hearsay, their lack of detail when compared to the recollections of Respondent's employees regarding operations and the state of affairs during the inspections, was insufficient to meet the Department's burden of persuasion necessary to prove Counts 1, 3, and 4 of the Administrative Complaint. Count 2 of the Administrative Complaint alleging improper storage of bread crumbs on the floor, however, was uncontroverted, and the Department proved by clear and convincing evidence that Respondent's improper storage of bread crumbs was a critical violation.5/
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department enter a final order which dismisses Counts 1, 3, 4, and 5 and confirms Count 2 of the Administrative Complaint, and imposes an administrative penalty in the amount of $250 for Respondent's critical violation of Rule 3-305.11, relating to improper storage of breadcrumbs discovered during the inspections conducted on March 2 and May 3, 2011. DONE AND ENTERED this 13th day of July, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 July, 2012.
