The Issue The issue in this case is whether the Respondent, Rosarios II Italian Restaurant (Respondent), committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2008). At all times material to the allegations of this case, the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (See Petitioner’s Exhibit 1). The Respondent's license number is 1617840. In his capacity as an inspector and as a sanitation and safety supervisor for the Petitioner, Sean Grofvenor visited the Respondent’s place of business (12691 West Sunrise Boulevard, Sunrise, Florida) on November 13, 2007. On that date, the violations, more fully described in the inspection report of that date, (Petitioner's Exhibit 2) warranted the closure or emergency order of suspension of license for the establishment. The Respondent was made aware of the violations and the Petitioner announced that it would come back in 24 hours to reassess the closure. The closure was deemed appropriate to protect the public. The 24-hour call-back inspection was provided to reassess the "critical" problems depicted in the inspection report. The November 13, 2007, inspection report described the following "critical" violations: Live and dead roaches present at the establishment; Ready-to-eat food prepared on site and held more than 24 hours without proper date and time tagging; A hand-wash sink lacked proper drying provisions by the dish machine; Uncovered food was discovered in a holding unit, the dry storage area, and in a walk-in cooler; and Soiled gaskets at numerous stations within the food preparation areas. After the 24-hour call-back inspection was completed, the Respondent was allowed to reopen but was advised that a second follow up inspection would be performed. The Respondent was given until January 14, 2008, to correct all of the violations previously identified and described in the inspection report of November 13, 2007. Robert Becker is a sanitation and safety specialist employed by the Department. He accompanied Mr. Grofvenor on the November 13, 2007, inspection of the Respondent's establishment and assisted in the compilation of the violations noted in the first inspection report. Inspector Becker performed a call-back inspection of the Respondent's establishment on January 17, 2008. This final call-back inspection report (Petitioner's Exhibit 3) described the violations that remained uncorrected. The Department uses the terms "critical" and "non- critical" to describe violations of the "Food Code." The "Food Code" as it is used in this record, refers to paragraph 1- 201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C- The Food Code is also available through the U. S. Food and Drug Administration Internet website. "Critical" violations of the Food Code are conditions that, if not corrected, could lead to food contamination, food borne illness, or environmental degradation. A "non-critical" violation relates to a preventative measure or practice to keep the environmental conditions of food preparation and service in proper order. If not corrected, a "non-critical" violation has the potential to become a "critical" situation. When Inspector Becker returned to the Respondent's establishment on January 17, 2008, the critical violations described in paragraph 4 were not fully corrected. For example, Inspector Becker observed roach activity within the kitchen of the Respondent's establishment. Roach activity is considered a critical violation as roaches are a direct contributor to the contamination of food and the spread of bacteria and disease. Inspector Becker documented the number and location for each roach discovered at the site. Additionally, Inspector Becker observed unmarked ready-to-eat food that was not appropriately tagged. Date marking ready-to-eat food is necessary to prevent spoilage and the growth of bacteria. Foods may only be held at designated temperatures and within certain conditions for a limited time period. If left unmarked, it is impossible to discern whether the guidelines have been met. Third, Inspector Becker found the hand wash sink lacked proper drying provisions. Although a repeat violation from the previous inspection, the Respondent corrected this violation on site. The fourth critical violation related to uncovered food in holding situations. Food must be properly covered to prevent exposure to contamination. Whether in a walk-in cooler or other station, food must be covered. Sauces and pasta are considered "food." The final critical violation was soiled gaskets on several kitchen appliances or preparation surfaces. Cooler gaskets at the prep reach-in cooler, cooler gaskets at the pizza station, and gaskets near a fryer were dirty or soiled. When gaskets are soiled the mere opening and closing of the device can spread filth and expose food to contaminants. Gaskets must be kept clean and free of all potential contaminants. In addition to the foregoing, there were several non- critical violations of a preventative nature that the Respondent failed to correct. These violations could easily be corrected and did not pose an immediate threat to the public. For example, a restaurant employee without hair restraint is easily corrected. In testifying for the Respondent, Mr. Pierre Louis maintained that while the inspection report of November 13, 2007, was correct, he had since made the corrections necessary to bring the restaurant into compliance. Those corrections were not, however, completed before January 17, 2008. Mr. Pierre Louis described difficulty finding replacement gaskets for the equipment. The inference being that the gaskets could not be cleaned but had to be replaced. Mr. Pierre Louis did not advise the Department of the difficulty in making the replacements until the time of hearing. The Respondent was given over 60 days within which to make the necessary corrections. The Respondent did not correct the roach problem between November 13, 2007, and January 17, 2008, despite its representation that it had hired an extermination company to address the problem. Roach presence is a critical violation that cannot go unattended or inadequately treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against the Respondent in the amount of $3,500.00. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper sanitary measures are adopted at the restaurant. DONE AND ENTERED this 26th day of September, 2008, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2008. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cheri-ann Granston Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ernst Pierre Louis Rosarios II Italian Restaurant 12691 West Sunrise Boulevard Sunrise, Florida 33323
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Humphrey's On 33rd, a bar/restaurant (with a "full kitchen") located in Fort Lauderdale, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-18150-R) authorizing it to operate Humphrey's On 33rd as a public food service establishment. Edward Humphrey is the majority owner of Respondent. On December 29, 2004, Michele Schneider, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of Humphrey's On 33rd. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): Respondent, upon request, was unable to produce evidence of "food handlers' training for employees by a certified food manager"; there were paper products and other potentially combustible items "on top of and around" a gas- powered hot water heater (which had an "open flame at the bottom"); there was no indication that violations (of the standards of the National Fire Protection Association) previously-noted by a "certified fire inspector" during an inspection of the hood range in the kitchen (which had an ansel fire suppression system) had been corrected; the service tag on the fire extinguisher in the establishment did not indicate the year the extinguisher was last serviced; and there was grease, garbage, and other debris in the "can wash area" outside the establishment, "right behind the back door." Before leaving the establishment, Ms. Schneider advised Mr. Humphrey that these Conditions were violations for which Respondent could be disciplined by Petitioner if not corrected by February 1, 2005. Ms. Schneider conducted a "callback" inspection of the premises of Humphrey's On 33rd on February 1, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed. At neither the time of the December 29, 2004, routine inspection, nor the time of the February 1, 2005, "callback" inspection, was food being served at Humphrey's On 33rd. Respondent had "closed the kitchen down" in or around September of 2004. It was not until approximately six months later, after the December 29, 2004, and February 1, 2005, inspections, that Respondent started serving food again at the establishment. At no time during this six-month period that it stopped serving food did Respondent relinquish its license authorizing it to operate Humphrey's On 33rd as a public food service establishment. Its license remained in effect throughout this period.
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 Alleged Violation Nos. 1 through 5 and disciplining Respondent therefor by imposing a fine in the total amount of $250.00 and requiring Respondent's majority owner to attend, at his own expense, an "educational program sponsored by the Hospitality Education Program." DONE AND ENTERED this 20th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of December, 2005.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against it, and, if so, the appropriate penalty to be imposed, if any.
Findings Of Fact At all times material hereto, Respondent, Perpulys Sport Bar and Restaurant, has been licensed as a public food service establishment by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent is located in Homestead, Florida. Michael Brown, one of Petitioner's inspectors, has extensive experience and education in the food service industry. On July 19, 2006, he inspected Respondent's premises and found a number of violations of public food service establishment rules. He noted these on his inspection report and gave a copy of the report to Respondent. The report noted that the violations must be corrected by August 20, 2006. On August 21, 2006, Brown returned to Respondent's premises to conduct his "callback" inspection. Four critical item violations remained uncorrected, and he noted them in his report. After he had completed his report, one of Respondent's employees placed a thermometer in the cold holding unit which had lacked one during Brown's inspection. However, the exit signs were still not properly illuminated. Exit signs in a food service establishment are required to be clearly illuminated so that patrons will know where to exit the premises if a fire or other emergency should occur. Improperly illuminated exit signs are a critical item violation. Respondent's employees were still touching ready-to-eat food with their bare hands even though the establishment did not have in place an alternative operating procedure approved by Petitioner. Since touching ready-to-eat food with bare hands can lead to serious illness of the business' patrons, this is also a critical item violation. During that same call-back inspection, raw animal food was stored over ready-to-eat food, specifically, raw steak was stored over cooked shrimp. Since such storage can lead to cross-contamination, which can lead to serious illness of the business' patrons, this is also a critical item violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of three critical item violations, imposing a fine of $1,500 to be paid within 30 days, and requiring Respondent to attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 17th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 17th day of May, 2007. COPIES FURNISHED: William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Soco Salgado Perpulys Sports Bar & Restaurant 113 South Homestead Boulevard Homestead, Florida 33030
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact Petitioner is the State agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 16850 Collins Avenue, Golden Beach, Florida, and holding food service license number 2326334. On February 26, 2008, and April 29, 2008, Respondent was inspected by Ricardo Unold, a Senior Sanitation and Safety Specialist with the Division. During both visits, Mr. Unold noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Unold and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that as of April 29, 2008, the following deficiencies subsisted at Respondent New San Telmo: (1) In-use utensils stored in standing water less than 135 degrees Fahrenheit, in violation of Food Code2 Rule 3- 304.12(F); (2) The public bathroom was not equipped with a tight-fitting, self-closing door, in violation of Food Code Rule 6-202.14 and Florida Administrative Code Rule 61C-1.004(2)(b); (3) An unlabeled spray bottle, in violation of Food Code Rule 7- 102.11; and (4) No proof of required employee training, in violation of Section 509.049, Florida Statutes. The deficiencies relating to the lack of proof of employee training, the unlabeled spray bottle, and the bathroom door are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The final deficiency (storing in-use utensils in water less than 135 degrees Fahrenheit), while not categorized as a critical violation, is serious nonetheless because it directly relates to food preparation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1400, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 30th day of August, 2010, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2010.
