The Issue The issue in this case is whether the Respondent, Flamers, committed the violation alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2007). At all times material to the allegations of this case, the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (see Petitioner’s Exhibit A). In his capacity as a sanitation and safety specialist for the Petitioner, Mr. Morales visited the Respondent’s place of business located at 801 North Congress Avenue, Boynton Beach, Florida, on two occasions. Mr. Morales has extensive training and education in food service related matters and has performed numerous inspections for the Petitioner. He is familiar with all relevant food service law and rules pertaining to the inspection of licensed food service establishments. First, on May 11, 2007, Mr. Morales visited the Respondent’s place of business and noted several Food Service Inspection violations. These violations were documented (Petitioner’s Exhibit B) and a copy of the inspection report was provided to Mr. Yo. Mr. Yo owns the restuarant and was present during this first inspection. The violation pertinent to this case is more fully described below (see "callback" inspection results). At the time of the first inspection, Mr. Morales warned that a “call back” inspection would be performed and issued the Respondent with a warning regarding the violations noted on the inspection form. The “call back” inspection was provided to afford the Respondent with time to correct the deficiencies noted in the first inspection and to assure that the deficiencies were timely corrected. On June 14, 2007, Mr. Morales returned to the Respondent’s place of business to perform the “call back” inspection. The “call back” inspection report (Petitioner’s Exhibit C) noted two violations had not been corrected. Only one of these violations remains at issue. Specifically, Mr. Morales found that the food containers that stored food overnight were not clearly marked and dated. This is not an approved method of storing food. Mr. Yo was not present during this "call back" inspection. Michael Evancich was present during the "call back." Mr. Evanich identified himself to Mr. Morales as the Respondent's "manager." Mr. Evancich signed the Food Service Inspection Report that detailed the violation. Mr. Morales noted that potentially hazardous food was prepared and held in containers for more than 24 hours without being clearly marked to indicate the date or day by which the food would be consumed, sold, or discarded. See Food Code Rule 3-501.17(A). Food containers with hot dogs, chicken breasts, and burgers were not dated and were stored overnight inside a cooler. According to Mr. Morales this is a critical violation. Undated and out-dated food can grow bacteria leading to a potential health hazard. The purpose of the labeling assures that potentially hazardous products are not sold to the public or consumed. Although he was not present during the "call back" inspection, Mr. Yo maintained that the Respondent has a policy to assure that food products are marked and stored in an approved manner.
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 in the amount of $500.00. S DONE AND ENTERED this 24th day of January, 2008, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2008. COPIES FURNISHED: William Veach, Director Division of Hotels and Restuarants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Yo 6205 Floridian Circle Lake Worth, Florida 33463
The Issue The issues in this case are whether Respondent violated provisions of Chapter 509, Florida Statutes (2007),1 and/or rules promulgated thereto, and, if so, whether a penalty should be imposed.
Findings Of Fact The Restaurant is a licensed eating establishment located in Orange Park, Florida. It is owned by Jimmy Leung and has been issued License No. 2001000. Respondent is the state agency responsible for, inter alia, inspecting restaurants to ensure safe operation and cleanliness for public health. On December 4, 2006, the Division conducted a routine inspection of the Restaurant. The inspection was conducted by Janet D'Antonio, a sanitation and safety specialist who had worked for the Division for approximately 22 years. D'Antonio received six months of training when she first started work at the Division, including Fire and Safety training, Laws and Rules training, and food certification training. D'Antonio is a certified food manager, a designation which is updated every five years. D'Antonio's training is standardized by the federal Food and Drug Administration; so, she is reviewed on a periodic basis. She undergoes continuing education and attends monthly meetings to review new standards. During the December 4, 2006, inspection, D'Antonio found two repeat critical violations3: (1) food temperatures were higher than the 41-degree maximum limitation; and (2) the food storage unit failed to maintain a temperature of 40 degrees or less. There were also some violations which were not, as of that time, repeat or critical violations. One of those violations was that the dish machine sanitizer was not at proper concentration levels. It was not operating sufficiently to kill germs. On July 23, 2007, D'Antonio again conducted a routine inspection of the Restaurant. During this inspection, there were two additional critical violations noted: (1) the dish machine sanitizer was not operating at the proper concentration strength for sanitation (a repeat violation); and (2) certain food products were not properly identified. Specifically, crab sticks (which are made from a white fish) were improperly labeled as crab. There is no dispute that the walk-in cooler used to store food products was not maintaining food at the required temperature levels during the December 2006 inspection. At the time of the July 2007 inspection, the machine was working properly. The latter inspection occurred around 1:00 p.m., and, due to lots of traffic in and out of the cooler at that hour, the temperature inside was higher than prescribed by rule. Respondent's testimony in that regard is credible. Likewise, since the dish machine had not been functioning properly at a prior inspection, Respondent purchased a new machine to correct that situation. The new machine was in place at the time of the July 2007 inspection. Nonetheless, Petitioner again noted that the sanitizer was not at the proper levels. The failure of the new dish machine sanitizer to maintain the proper level of sanitizer concentration was not caused by the machine itself, but was related to the solution being used. That is, the Restaurant had purchased sanitizer solution from a vendor, but the solution was outdated and had lost its effectiveness. Therefore, once the solution was placed in the dish machine sanitizer, it did not perform as expected. New sanitizer solution was ordered to replace the defective product. The Restaurant listed a crab sushi roll on its menu when, in fact, the item contained both crab and crab stick. Crab stick is a product made out of white fish; it is not actually crab. Misrepresentation of food content is a potential hazard for customers with particular allergies. Upon notification by D'Antonio concerning the misrepresentation, the Restaurant changed its menu the next day to reflect the proper food content. The Restaurant was not given correction dates for the four cited violations because, as critical violations and/or repeat violations, there is no prescribed period for making corrections. As of the date of final hearing, each of the cited deficiencies had been effectively eliminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order imposing a fine of $500.00, payable by Respondent within 30 days of the final order. DONE AND ENTERED this 13th day of February, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 13th day of February, 2008.
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 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 Whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalties should be imposed.
Findings Of Fact Petitioner is the agency charged with the licensing and regulation of public food service establishments, pursuant to the provisions of Chapter 509, Florida Statutes. Respondent is a restaurant holding food service license number 6500911. Respondent is owned by Barbque Ventures, Inc. Daniel Fulton is employed by the Department as a Sanitation and Safety Specialist. In that capacity, he conducts inspections of food service and lodging establishments for compliance with Chapter 509, Florida Statutes; the Food Code; and the relevant Florida Administrative Code Rules. Mr. Fulton is a certified food manager. Critical violations are violations of the relevant rules and statutes that are more likely to contribute to a food-borne illness, an environmental hazard, or to food contamination. Non-critical violations are those violations that are less likely to contribute to a food-borne illness, an environmental hazard, or to food contamination. On March 21, 2007, Mr. Fulton inspected the premises of Bono's Barbeque Sports Bar at 1001 A1A Beach Boulevard, in St. Augustine, Florida. During the inspection, Mr. Fulton prepared a Food Service Inspection Report setting forth the findings from his inspection. The Food Service Inspection Report was provided to and signed for by Debra Barnes, who was listed as manager for the restaurant. During the March 21, 2007, inspection, Mr. Fulton recorded a number of violations of the Food Code. Only four of them are relevant to the charges in the Administrative Complaint. Mr. Fulton observed that foods in the walk-in cooler were not labeled and dated. This is considered a critical violation because food that has been cooked is allowed only a certain number of hours to cool to 41 degrees. If previously prepared food is not marked, it cannot be determined whether it has met the schedule for cooling. Failure to mark and date previously-prepared food is considered a critical violation. The failure to label and date food was noted in the March 21 inspection report at the top of the third page, stating: 02-06-1: Observed combined ready-to-eat potentially hazardous food held more than 24 hours not date marked according to earliest date of opening/preparation. However, Mr. Fulton did not testify that the meat in question had been held over 24 hours. He testified only that it was placed in the walk-in cooler 18 hours before. Mr. Fulton also observed that the food in the walk-in cooler was between 44 and 46 degrees. According to Mr. Fulton, this is considered a critical violation because bacteria will grow above 41 degrees, and the longer the food is above 41 degrees, the more the bacteria will grow. The violation was noted on page three of the March 21 inspection report as "03A-07-1: Observed potentially hazardous food cold held at greater than 41 degrees Fahrenheit." The walk-in cooler was replaced after the call-back inspection and three repairs. Mr. Fulton observed uncovered food in the walk-in cooler. Walk-in coolers are not considered to be food-contact surfaces, and in order to protect the food, it needs to be off the floor and covered at all times. Failure to cover the food in the walk-in cooler is considered a critical violation. This violation was recorded in the inspection report as "08A-29-1: Observed uncovered food in holding unit/dry storage area. TEA Corrected on Site." Finally, Mr. Fulton observed two sinks that had no hand towels available for handwashing. Without proper handwashing, employees' hands are "virtually bacteria spreaders." Failure to provide hand towels at hand sinks hampers the employees' hand washing efforts, and is considered a critical violation. The violation was listed on the inspection report as "32-16-1: Hand wash sink lacking proper hand drying provisions. TWO SINKS." On May 1, 2007, Mr. Fulton returned to Bono's Barbeque for a call-back inspection. At that time he completed a Call Back Inspection Report, which was signed by Debra Barnes as the manager. The Call Back Inspection Report contains the following: The following items(s) have been recommended for Administrative Complaint: Violation 32-16-1 Hand wash sink lacking proper hand drying provisions. TWO SINKS. Violation 08A-29-1 Observation uncovered food in holding unit/dry storage area. WIC Violation 03A-07-1 Observed potentially hazardous food cold held at greater than 41 degrees /Fahrenheit. EVERYTHING IN WIC IS AT 44 TO 46 F. Violation 02-06-1 Observed combined ready-to-eat potentially hazardous food held more than 24 hours not date marked according to earliest date of opening/preparation. BBQ COOKED AND COOLED ON 04/30/07 IN WIC. The Food Inspection Report, the Call-Back Inspection Report, the Administrative Complaint and the copies of relevant rules provided at hearing all reference provisions of the Food Code. However, none of these documents indicate what version of the Food Code is being referenced.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing all charges against Respondent. DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 21st day of December, 2007.
The Issue The issues are whether Respondent is guilty of certain violations of the Food Code, and if so, what penalty should be imposed.
Findings Of Fact At all times material here, Respondent was licensed and regulated by Petitioner. Respondent operated under License No. 20-00805-R, in a leased facility in Green Coves Springs, Florida. On December 26, 2003, Daniel Fulton, Petitioner's Senior Sanitation and Safety Specialist, performed a routine inspection of Respondent's premises. During the inspection, Mr. Fulton prepared a Food Service Inspection Report (FSIR) setting forth his findings. Mr. Fulton gave Respondent's manager a copy of the report and explained each finding as a citation/violation. On January 27, 2004, Mr. Fulton re-inspected Respondent's premises. During the re-inspection, Mr. Fulton prepared a Callback Inspection Report, setting forth his findings. Based on his observations, Mr. Fulton listed citations on the Callback Inspection Report that had not been corrected after the December 2003 inspection. According to the Callback Inspection Report, the gas equipment in Respondent's pit area still did not have a fire suppression system over it. Typically, this would constitute a critical violation. However, during the hearing, Respondent provided evidence that the Clay County Fire Inspector considered the current configuration of the hood exhaust system to be acceptable to the Clay County Department of Public Safety. Petitioner's Proposed Recommended Order indicates that it has withdrawn the allegation that Respondent violated the National Fire Protection Act of 1996. On January 27, 2004, Mr. Fulton observed that an outside cooker was not properly enclosed, creating a critical violation. The walls that enclosed Respondent's cooker were not at least four feet high. The area was not properly screened between the existing walls and the roof. In fact, the roof did not cover part of the area where the cooker was located. On January 27, 2004, Mr. Fulton observed that a faucet or hose bib did not have a back-flow prevention device. The lack of a back-flow prevention device created a critical violation. On January 27, 2004, Mr. Fulton observed that there was a black substance on the interior of an ice machine's lid. The December 2003 FSIR did not list this citation as a critical concern that must be corrected immediately. However, Mr. Fulton provided persuasive testimony that ice is consumable and that any foreign black substance in the interior of an ice machine constituted a critical violation. During the December 2003 inspection, Mr. Fulton cited Respondent for not having adequate sneeze protection over the soup pot on the buffet bar. Simply placing a lid on the crock pot was not sufficient to provide that protection when customers removed the lid. After the December 2003 inspection, Respondent decided to adjust the height of the crock pot to provide more sneeze protection. In making the adjustments, Respondent was careful not to let the soup become inaccessible for children and disabled customers in wheelchairs. On January 27, 2004, Mr. Fulton observed that the crock pot containing soup at the buffet bar continued to have inadequate sneeze protection for a person of average height, approximately five feet and six inches. The sneeze protection over the crock pot was not properly adjusted until Mr. Fulton conducted a third inspection in October 2004. The lack of adequate sneeze protection did not constitute a critical violation. On January 27, 2004, Mr. Fulton observed that the inside light of a reach-in cooler was not operational. Respondent ordered the replacement light after the December 2003 inspection, but had not received it at the time of the callback inspection in January 2004. This was not a critical violation. Respondent was aware of all of the above-referenced violations after the December 2003 inspection. Respondent had not corrected them at the time of the January 2004 inspection. In June 2004, Elizabeth Tillman, one of Respondent's owners took over Respondent's day-to-day management. By the time that Mr. Fulton inspected the premises in October 2004, all violations had been corrected except for violations that required building construction by a new owner of the leased premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative penalty in the amount of $1,000.00. DONE AND ENTERED this 9th day of March, 20005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Grant Gibson, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Elizabeth and Ronald Tillman 505 North Orange Avenue Green Cove Springs, Florida 32043 Geoff Luebkemann, Director Department of Business and Professional Regulation Division of Hotel and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
