The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
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 issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2013.
The Issue The issues in this case are whether Respondent violated Florida Administrative Code Rule 61C-1.004(2)(b) and the following provisions of the Food Code: 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.11, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of public food service establishments, pursuant to section 20.165 and chapter 509, Florida Statutes. The Restaurant is and has been at all times material to this proceeding licensed by the Department, license number 58- 11330. The Restaurant is owned by Shea Lowe (Mr. Lowe) and is located in Eatonville, Florida. On April 14, 2010, Dennis Watson (Mr. Watson), an inspector for the Department, made a routine inspection of the Restaurant. Mr. Watson found that the temperature of the pancake batter that was being used on the cook line was 67 degrees, Fahrenheit (F.); the temperature of the sausage on the cook line was 64 Degrees, F.; eggs were being held on the cook line for more than 30 minutes at a temperature greater than 45 degrees, F.; the gaskets/seals on a cold holding unit were in poor repair; lights in the food storage area were missing proper covers; the vacuum breaker was missing at the hose bibb outside the back door; and the door to the men's restroom was not tight- fitting and self-closing. The Restaurant was given a warning for the violations found during the April 14, 2010, inspection. The Restaurant was given until June 14, 2010, to correct the violations. On June 15, 2010, Mr. Watson returned to the Restaurant for a call-back inspection. Mr. Watson found the following violations: the gaskets/seals on the cold holding unit were in poor repair; the vacuum breaker was missing at the hose bibb outside at the back door; the pancake batter and sausage were being held on the cook line for more than 30 minutes at temperatures greater than 41 degrees, F.; raw eggs in the shell were held on the cook line for more 30 minutes at room temperature; food in the glass door coolers were held at temperatures between 49 and 53 degrees, F.; the lights over the food storage rack/kitchen were missing the proper covers; and the door to the men's restroom was not tight-fitting and self- closing. The failure to maintain the food in the coolers at 41 degrees, F.; the failure to maintain raw, shell eggs at a temperature of 45 degrees, F.; the failure to keep the pancake batter and sausage on the cook line at the proper temperature; the failure to install a vacuum breaker on the hose bib outside the back door; and the failure to have a self-closing door for the men's restroom are critical violations. Rule 61C- 1.005(5)(a) defines "critical violation" as a violation which poses a significant threat to the public health, safety, or welfare and which is identified as a food-borne illness risk factor or a public health intervention. Mr. Lowe acknowledged that the coolers were not working properly and has since replaced the coolers. He bought a self- closing latch for the restroom door, but the door will not self- close because the door frame does not fit the door, and he cannot afford to repair the door. He now keeps the eggs in the cooler until time to cook them. He has purchased some covers for the lights, but he did not know if they were in place when the inspections took place. The failure to have a self-closing door in the men's restroom and the failure to maintain the gaskets on the cooler door are non-critical violations. Both inspection reports were signed by persons other than Mr. Lowe. Mr. Lowe was not present for either inspection. The Restaurant has been previously disciplined by a Final Order entered on December 2, 2008, based on Stipulation and Consent Order entered into by the parties.
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, finding that Lowe's Good Eaton Restaurant violated rule 61C- 1.004(2)(B) and Food Code Rules 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.114-50; and imposing an administrative fine of $500 for each of the three critical violations and $250 for each of the two non-critical violations for a total administrative fine of $2,000. DONE AND ENTERED this 14th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2011.
The Issue Whether Respondent violated food safety standards established by section 509.032, Florida Statutes, and the implementing rules as charged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact Parties At all times material hereto, Richie Cheesesteak was owned and operated by Richard Fascenda, as a licensed permanent public food-service establishment located at 6191 Deltona Boulevard, Spring Hill, Florida. Mr. Fascenda holds License No. 3700896 to operate Richie Cheesesteak.1/ Mr. Fascenda is the owner/operator of Richie Cheesesteak, as well as the only cook. The Division is responsible for monitoring and inspecting licensed food-service establishments to ensure that they comply with the standards set forth in relevant statutes and rules, and the Food Code. Initial Inspection On April 16, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food-service inspection of Richie Cheesesteak. On the date of the inspection, Mr. Roff had been employed by the Division for approximately three months and was still under probation. Mr. Roff had no experience in the food- service industry prior to his employment with the Division. Mr. Roff received training from the Division in the laws relating to food service, and has become certified as a food manager. The Division additionally provides monthly in-house training which Mr. Roff has attended. During his probationary period, Mr. Roff accompanied his senior inspector on food-service establishment inspections, observing how the inspector conducted inspections, identified violations, and provided corrective actions. As part of his training, Mr. Roff was also “shadowed” by his senior inspector as Mr. Roff conducted inspections. On the date of the final hearing, Mr. Roff had conducted approximately 600 restaurant inspections. Cited Violations License and Certification On April 16, 2013, Mr. Roff prepared an Inspection Report noting a total of 13 alleged violations of the standards set forth in applicable statutes, administrative rules, and the Food Code. Respondent was cited for an expired license, a high priority violation which was remedied on-site during the inspection. Among the other violations Mr. Roff noted in his Inspection Report was Respondent?s failure to produce proof of a food manager certificate. Section 509.039 provides for a Food Manager Certification Program to ensure all managers of food-service establishments have a demonstrated knowledge of basic food protection practices. The statute further requires that “[a]ll public food-service establishments must provide the division with proof of food-service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment.” Id. In 2008, Respondent was an assistant manager for Boyz- N-Burgers, operated by McClain Sonic?s, and was certified as a food manager at that time. On the date of inspection, Respondent could not produce a copy of his certificate and explained that the certificate would be on file with his former corporate employer. A food manager certificate expires five years after certification. A violation of section 509.039 is designated by the Division as an intermediate priority violation. Reach-in Cooler Gasket Among the violations Mr. Roff noted was that the gasket on the reach-in cooler was both torn and soiled. Food Code Rule 4-501.11(B) provides, “Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturer?s specifications.” A torn or otherwise damaged cooler gasket can cause cross-contamination of food and prevent the storage of foods at the required temperature. Respondent?s reach-in cooler is at least 30 years old. Respondent did not testify that the gasket had ever been replaced, although he did state that it has been “siliconed over” on several occasions. Respondent admitted at final hearing that the reach-in cooler gasket was torn in one place. Respondent denied that the gasket was soiled, explaining that there might have been some food spilled on it during lunch and the inspection was conducted right after lunch. Respondent insisted that he wipes down the gasket every day. Violation of rule 4-501.11(B) is designated by the Division as a basic violation. Storage of Utensils Among the other violations observed by Mr. Roff was a knife stored between two pieces of kitchen equipment. Food Code Rule 3-304.12 provides, in pertinent part, as follows: During pauses in FOOD preparation or dispensing, FOOD preparation and dispensing UTENSILS shall be stored: * * * (C) On a clean portion of the FOOD preparation table or cooking EQUIPMENT only if the in-use UTENSIL and the FOOD-CONTACT surface of the FOOD preparation table or cooking EQUIPMENT are cleaned and SANITIZED at a frequency specified under subsections 4-602.11 and 4-702.11. * * * (F) In a container of water if the water is maintained at a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) and the container is cleaned at a frequency specified under subparagraph 4-602.11(D)(7). Respondent admitted that a knife was stored in the crack between two pieces of kitchen equipment when Mr. Roff made his initial inspection. Violation of rule 3-304.12 is designated by the Division as a basic violation. Improperly Marked Containers Mr. Roff also observed “cookline bottles” stored in squeeze bottles which were not labeled as to their contents. Food Code Rule 3-302.12 reads as follows: Except for containers holding FOOD that can be readily and unmistakably recognized such as dry pasta, working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD. Respondent keeps two bottles on the cookline, one for oil and one for vinegar. Respondent is the only cook. Respondent testified that he has the bottles marked “oil” and “vinegar” with black marker. He introduced a photograph of the bottles marked as such, but the photograph was taken subsequent to the callback inspection and is not accepted as evidence of the condition of the bottles on the day in question. Mr. Fascenda testified that during the inspection, he showed the bottles to Mr. Roff and pointed out the hand-labeling, but admitted that Mr. Roff could not see the wording because it rubs off easily. Mr. Roff testified he did not recall seeing any labeling on the bottles. Violation of rule 3-302.12 is designated by the Division as a basic violation. Mr. Roff walked through the violations with Respondent, who signed the Inspection Report on April 16, 2013. The Inspection Report noted that a follow-up inspection was required and that the violations must be corrected by June 16, 2013. Callback Inspection On June 17, 2013, Mr. Roff performed a callback inspection at Richie Cheesesteak. Mr. Roff observed that seven of the violations noted in the April 16, 2013, Inspection Report had been corrected. However, the violations detailed above –- gasket on reach-in cooler torn and soiled; knife stored between kitchen equipment; cookline bottles unlabeled; and no proof of food manager training –- were not corrected. Mr. Roff prepared a Callback Inspection Report, which was signed by Respondent. The Callback Inspection Report recommended filing an Administrative Complaint. Petitioner introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code. Owner?s Response Certification Respondent maintained it would be impossible to produce his food manager certificate because it was retained by his employer in 2008. Respondent was clearly frustrated with Mr. Roff?s unwillingness to accept the explanation given at the first inspection and was indignant at being fined for lack of food manager certification following the callback inspection. Respondent?s explanation that he was previously certified but that the certificate was retained by his former employer is not a defense. The statute clearly requires production of the food manager certificate when the Division inspects the manager?s food-service establishment. Following the callback inspection, Respondent obtained a Food Manager Certificate, which was introduced at final hearing. Reach-in Cooler Gasket Respondent argued that if the gasket was not functioning, the reach-in cooler would not be maintaining the appropriate temperature, which it was when tested upon inspection. Respondent?s argument is not a defense. Keeping food at the proper temperature is only one of the aims of the rule. The other is to prevent cross-contamination of food in the cooler with substances on the gasket, whether they are foods spilled thereon or bacteria growing in a torn gasket. Respondent further argues that cross-contamination is not an issue since he is the sole operator and cook. Cross- contamination of foods in the reach-in cooler is not a function of how many different employees use the cooler, but rather the condition in which it is kept. Respondent testified that, since the callback inspection, he “siliconed over” the gasket to seal it and improve its appearance. He produced before and after photographs of the gasket at final hearing. Neither picture is evidence of the condition of the gasket upon inspection,since they were taken approximately two weeks before the hearing. If anything, the “before” picture tends to support the Division?s case that the gasket was torn and soiled upon inspection. Storage of Utensils Respondent admitted that a knife was stored between two pieces of kitchen equipment on the date of the first inspection. But, he maintained that was an accident and he does not regularly store knives that way. Improperly Marked Containers Respondent first argued that his oil and vinegar bottles were labeled, although in marker, and he should not be held in violation. The evidence shows that the labels were unrecognizable when the inspections occurred. Respondent next argued that the following facts should be taken into consideration when determining whether he violated the rule. First, there are only two bottles –- oil and vinegar. Accidental mixing of their contents would not create a health hazard or threat. Second, Respondent is the only cook, so mixing the contents is unlikely. Third, the cookline is separated from the cleaning area. Thus the likelihood of mixing the contents of the cookline bottles with bleach or another cleaning product is minimal. While Respondent?s arguments are no defense, they may be considered mitigating factors.
Recommendation Based upon the 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 Richie Cheesesteak violated section 509.039 and Food Code Rules 3-302.12, 3-304.12, 4- 501.11, and 4-601.11, as alleged in the Administrative Complaint; and Imposing an administrative penalty against Respondent Richie Cheesesteak in the amount of $800, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 16th day of December, 2013.
Findings Of Fact At all times relevant hereto, respondent, Charles L. Harriss, was the owner and operator of a food service establishment known as Mister Donut located at 5567 Golden Gate Parkway, Naples, Florida. Respondent holds license control number 21-1041-R issued by petitioner, Department of Business Regulation, Division of Hotels and Restaurants (Division), and is subject to that agency's regulatory jurisdiction. Mister Donut is a retail bakery outlet that sells donuts, coffee and other similar items. On the afternoon of July 9, 1986, a Collier County environmental health specialist conducted a routine inspection of respondent's establishment to determine if prescribed health and safety standards were being maintained. The inspection was made in the presence of an employee of respondent. The specialist found respondent to have violated various food service rules promulgated by the Department of Health and Rehabilitative Services in twenty- five respects. All but two, which respondent has conceded are correct, are in dispute. After an informal conference failed to resolve the matter, this proceeding ensued. The Donut Shop is one of three retail bakery outlets owned by Harriss. Besides the store in question, he operates a second outlet in Naples and one in Miami. There is no baking or cooking done on the premises of the establishment, although some "finishing" of products (such as adding sugar or filling) occurs. Donuts are delivered to the establishment from Harriss' other Naples store at 5:30 a.m. each morning, and from noon to 3:00 p.m. on an as-needed basis. The finishing of the product generally takes place shortly after it is delivered. There are three work shifts for employees: 6:00 a.m. -- 12:00 noon; 12:00 -- 6:00 p.m.; and 6:00 p.m. to 10:00 p.m. The floors are to be mopped and the area cleaned at the end of each shift. The busiest time of the day is between 7:00 and 9:00 a.m. The store is located in a shopping center. Although the specialist's qualifications to conduct a competent inspection were challenged by Harriss during the witness' testimony, it is found he has the experience, education and training necessary to adequately perform his job. In conjunction with his inspection, the specialist filled out a food service inspection report identifying each violation detected. This report has been received into evidence as petitioner's exhibit number 2. In addition, the specialist categorized violations as either being major or minor. When the inspection was made, the specialist was accompanied by a food services coordinator who also made her own inspection as a cross- check on the specialist's work. Her report has been received into evidence as petitioner's exhibit number 5. The violations are identified on the report by number. For ease in discussing the numerous violations, reference to the number on the report will be made in the findings hereinafter. Violation 02 -- Drawers containing food components (candy toppings) were not labeled as required by Rule 10D- 13.24(9), Florida Administrative Code. The drawers were also soiled with food particles. Violation 03 -- Food (soup) was not being maintained at proper temperature (140 degrees) as required by Rule 10D-13.24(2), Florida Administrative Code. Violation 04 -- Although petitioner charged Harriss with having no "indicating thermometer" on the food warmer, it was established that the warmer had low, medium and high settings. This constitutes substantial compliance with Rule 10D-13.24(2), Florida Administrative Code. Violation 05 -- Harriss has been cited with violating Rule 10D- 13.24(8), Florida Administrative Code, for failure to have conspicuous thermometers in or on his refrigerator and the food warmer. However, the more persuasive evidence is that a thermometer was hung on the top left side of the refrigerator while the food warmer had low, medium and high settings. This satisfies the foregoing rule. Violation 08 -- During the course of the inspection, donuts and rolls were found in uncovered or non- encased display areas. This is contrary to Rule 10D-13.24(1), Florida Administrative Code, which requires that such food be in a glassed case or otherwise covered in some manner. Violation 09 -- An employee was observed scooping ice into a cup without an ice scoop. This resulted in the employee's hand coming into contact with the ice in violation of Rule 10D-13.24(8), Florida Administrative Code. Violation 10 -- In conjunction with the prior violation, no ice scoop was seen or used. Rule 10D-13.24(10), Florida Administrative Code, requires that food be served in a manner that will minimize contamination. Violation 12 -- The specialist observed respondent's employee with food particles and sugar on her hands. Rule 10D-13.25(3), Florida Administrative Code, requires that employees wash their hands as often as necessary to remove soil and contamination. Violation 13 -- Employees are required to wear hair nets or hair spray to keep hair from getting into food. Although no hair net was worn by the employee, the employee used an effective hair restraint (hair spray) so as to comply with the rule. Violation 14 -- As noted earlier, a proper utensil for serving ice was not being used or displayed. This is in contravention of Rule 10D-13.24(8), Florida Administrative Code. Violation 15 -- It was established that non-food contact surfaces were covered with frosting and powdered sugar. Rule 10D-13.26(4)(1), Florida Administrative Code, requires that such surfaces be cleaned at such intervals as is necessary to keep them in a clean and sanitary condition. Violation 17 -- Chemical test kits are required by Rule 10D- 13.26(5)(a)2.d., Florida Administrative Code, for the purpose of accurately measuring solutions used for sanitization purposes. Although a kit was not seen by the specialist, there was such a testing kit on the first shelf near the three compartment sink on respondent's premises. Violation 20 -- The specialist could not recall the nature of this violation. Violation 21 -- According to Rule 10D-13.26(4)(d), Florida Administrative Code, soiled cloths and sponges must be stored in a sanitizing solution between uses. The specialist found several soiled cloths in a sink. However, since these were just temporarily placed in the sink for rinsing before being placed in a linen bag for laundry service, no violation occurred. Violation 22 -- The drawer containing candy topping was not clean. Rule 10D-13.26(4)(a), Florida Administrative Code, requires that food contact surfaces be cleaned at least once a day. Since the inspection occurred in the afternoon, and prior to the end of the day, it was not shown that respondent failed to clean this area that day. Violation 23 -- The interior of non-food contact areas such as cabinets, shelves, refrigerator and sides of equipment were observed to have food particles on them, and were not clean. This was in violation of Rule 10D- 13.26(4)(a), Florida Administrative Code, which requires that non-food contact surfaces of equipment be cleaned, and kept in a sanitary condition. Violation 24 -- Various utensils in drawers were not clean. Rule 10D- 13.26(4)(a), Florida Administrative Code, requires that all kitchenware be thoroughly cleaned and sanitized after each use. Violation 25 -- The specialist found respondent storing food (toppings) in single service articles (paper cups). However, the applicable rule (10D-13.26(4)(b), Florida Administrative Code) simply provides that such articles be used "only once". There was no indication that these articles were used more than one time, and consequently no violation of the rule occurred. Violation 31 -- It was established that a three compartment sink was not readily accessible since a trash can blocked access to the sink, and dirty linens were in the sink itself. No pertinent rule was cited by petitioner as governing the accessibility of sinks. Violation 32 -- No hand soap was found in any sink. This controverted the requirements of Rule 10D-13.27(6), Florida Administrative Code, which requires that each establishment be provided with hand cleansing soap. Violation 33 -- The specialist observed the trash can in front of the sink to be uncovered. This was a violation of Rule 10D-13.27(7), Florida Administrative Code, which requires such receptacles to be kept covered with tight fitting lids. Violation 34 -- There is a dumpster directly behind respondent's store which was found to be unclosed, and with overflow trash on the ground. However, this dumpster is shared by other shopping center tenants, and is the responsibility of the center rather than respondent. Violation 35 -- The specialist detected ants in the food preparation area. Although respondent has a monthly pest control service, the presence of such insects violated Rule 10D-13.27(8), Florida Administrative Code, which requires effective control measures against rodents, flies, roaches and other vermin. Violation 36 -- The floors in the food preparation area were observed to be littered with food particles. This is in contravention of Rule 10D- 13.28(1), Florida Administrative Code, which requires that floor surfaces in rooms where food is prepared to be "clean". Violation 37 -- The walls in the food preparation area were "splattered" with food and toppings. In addition, certain equipment attached to the walls had toppings, frosting and glazing covering them. This was in violation of Rule 10D- 13.29(2), Florida Administrative Code, which requires such walls and equipment to be kept clean. Violations 38 and 41 -- Respondent has not disputed these violations, and it is found that these violations occurred. Violation 42 -- The specialist found the outside area of the premises to be littered with cigarette butts, paper and other debris. However, this is a common problem throughout the entire shopping center, and fault cannot be attributed to respondent for this condition. Violation 44 -- As previously noted in violation 21, soiled linens were observed in a sink. However, they were placed there only temporarily for rinsing before being stored in a linen bag. Therefore, there was no rule violation. Violation 45 -- The fire extinguisher on respondent's premises did not have a current inspection tag. While this may violate some regulation, the rule relied upon by the specialist (10D-13.28(2), Florida Administrative Code) is not applicable. Violation 46 -- An exit light was observed to have been burned out. Again, the same rule relied upon by the specialist is inapplicable. Violation 47 -- It was alleged that respondent used extension cords in the food preparation area. However, the specialist could not recall which appliance used such a cord. Respondent's testimony that no such cords were used is more persuasive, and it is found that no extension cords were used by Harriss. Violation 53 -- When the inspection was made, there was no employee on the premises with a valid food management certification. Such a certification is required by Rule 10D-13.25(2), Florida Administrative Code. After the inspection was completed, the specialist reviewed the inspection report with one of respondents employees. It was the specialist's opinion that the above cited violations rendered the establishment unsafe for the public. A second inspection was simultaneously conducted by a food service coordinator. Her findings tend to corroborate the same violations noted by the specialist. Reference to her specific findings is accordingly not necessary. Aside from his own testimony, Respondent presented the testimony of the employee who was present when the inspection occurred, and his local manager. Except where noted above, they did not credibly contradict the testimony of the two inspectors. At the same time, Harriss pointed out that by the very nature of the donut business, it is impossible to keep crumbs and other food particles off the floor and other areas. He has been in the business for twenty-three years, and has no prior violations. He contended the specialist was "nit-picking", and that most of the violations are minor in nature. He also asserted that he has made all reasonable efforts to correct the problems.
Recommendation Based on the foregoing findings of fact and conclusions of law , it is RECOMMENDED: That respondent be found guilty of the eighteen violations cited in conclusion of law number 2, and that he pay a $1000 civil fine within thirty days after the date of Final Order. All other charges should be dismissed. DONE AND ORDERED this 15th day of December, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.
The Issue The issue in this case is whether on October 23, 2013, and May 6, 2014, Respondent was out of 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, as alleged in the Amended Administrative Complaint, and if so, 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. At all times material to this case, Respondent was licensed as a public food service establishment, operating a restaurant located at 1658 North Federal Highway, Boca Raton, and holding license number 6020868. Ms. Tara Palmer has been employed by the Division for almost five years. She is presently a Senior Sanitation and Safety Specialist with the Division. Prior to her employment with the Division she was employed in the food industry for approximately 20 years. She has had training in sanitation and inspection, standardized training regarding the Food Code, on- the-job training, and continual monthly education. She performs approximately 1000 inspections yearly. On October 23, 2013, Ms. Palmer conducted a food service inspection on Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on October 23, 2013, Respondent's Roma and Alfredo sauces had been prepared the previous day, placed in tightly covered 22 quart gallon containers, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the sauces were 52°F. Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3-501.15. The improper cooling method deficiency was deemed a violation that required further review; however, same was not an immediate threat to the public. Respondent was notified that the observed violation must be corrected by December 24, 2013. On January 8, 2014, Ms. Palmer performed a "call-back" inspection. On that date, the improper cooling deficiency observed on October 23, 2014, had been corrected. On May 6, 2014, Ms. Palmer conducted a food service inspection of Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on May 6, 2014, Respondent's spicy and Pomodoro sauces had been prepared the previous day, placed in a tightly covered 22-quart gallon container, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the spicy sauce was 48°F at the start of the inspection and 47.5°F at the end of the inspection. The Pomodoro sauce was found to be 48°F at the start of the inspection and 47.3°F at the end of inspection. Again, Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3- 501.15. No evidence was introduced to indicate that Respondent had any previous violations. No evidence was introduced to refute the above-noted deficiencies.
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 Italio East Boca, LLC, d/b/a Italio, in violation of two intermediate violations, and imposing a fine of $400, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 October, 2014.
