The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint dated August 26, 2008, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes.1 At all times material to this case, Respondent was a restaurant located at 2911 West 39th Street, Orlando, Florida 32839, holding Permanent Food Service license number 5810777. On May 20, 2008, Andrea Piel, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. Ms. Piel prepared and signed an inspection report setting forth the violations she observed during her inspection. Ms. Piel provided a copy of the inspection report to Ahmet Engin, Respondent's principal owner. The inspection report notified Respondent that the violations must be corrected by July 20, 2008. On August 6, 2008, Ms. Piel performed a re-inspection of Respondent's premises and prepared a call-back inspection report. The call-back inspection report indicated that certain of the violations found during the May 20, 2008, inspection had not been corrected. During both inspections, Ms. Piel noted potentially hazardous food being held at an improper temperature. Pizza was being held on top of the pizza oven at a temperature of 126 degrees Fahrenheit. Ms. Piel testified that this is a critical violation because food that is hot-held must be held at a temperature of 135 degrees or higher in order to prevent the growth of harmful bacteria. During both inspections, Ms. Piel noted that Respondent was operating under an expired food manager certification. The food manager certification is required to ensure that the operator has an understanding of the proper food safety procedures. Ms. Piel testified that this is a critical violation because a food manager must be re-certified every five years. During both inspections, Ms. Piel noted that the interior of the reach-in cooler was soiled with an accumulation of food residue. Ms. Piel testified that this is a critical violation because cleanliness is required in order to eliminate the potential for the growth of bacteria on surfaces that come into contact with food. During both inspections, Ms. Piel noted that the carbon dioxide tanks were not adequately secured. Ms. Piel testified that this is a violation because a pressurized carbon dioxide tank could become a projectile should it fall and the regulator break off. During both inspections, Ms. Piel noted that the ceiling tile was missing over the refrigerator. Ms. Piel testified that this is a violation because secure floors, walls and ceilings are essential to keep dirt, dust, and vermin out of the kitchen area. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. The improper holding of hot-held food, the outdated certification, and food residue in the cooler were critical violations. The unsecured carbon dioxide tanks and the missing ceiling tile were non-critical violations. The Division presented no evidence of prior disciplinary action against Respondent.
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 a fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 17th day of February, 2009.
The Issue The issue is whether Respondent's public food service establishment license should be revoked or otherwise penalized based on the acts alleged in the Notice to Show Cause.
Findings Of Fact At all times material hereto, Respondent, Nero's Pizza by the Slice, Inc., doing business as Lisa Pizza, was licensed to operate and did operate a public food service establishment, license number 11-01618R, located at 6401 Newberry Road, Gainesville, Florida. Frank Regan is an Environmental Health Specialist for the Department of Health and Rehabilitative Services, acting primarily as an inspector of restaurants. On May 30, 1990, Inspector Regan inspected Respondent's establishment and found several violations of food service rules, all of which he marked on his food service inspection report of May 30, 1990. Among the violations noted by Inspector Regan were potentially hazardous foods being held at unsafe temperatures and the calzone holding unit being turned off (i.e., no facilities to maintain product temperature). Those violations are marked with an asterisk (*) on the food service inspection report, which means that they have been deemed to be areas of critical concern by the Department of Health and Rehabilitative Services. Inspector Regan also noted that there was no thermometer in the calzone holding unit and cited several other minor problems. During the May 30, 1990, inspection Inspector Regan found cheese and calzones held at unsafe temperatures. He issued a Stop Sale Notice and these items were destroyed with Respondent' s consent. During the May 30, 1990, inspection Inspector Regan placed Respondent on warning and gave notice that he would return on June 4, 1990, to determine if corrections had been made. When Inspector Regan returned to Respondent's establishment on June 4, 1990, he found that the minor problems had been corrected. However, he again cited Respondent for "potentially hazardous food held at unsafe temperatures, calzone holding unit used for storage of calzones turned off, thermometer not provided in calzone holding unit." These same critical violations existed on May 30, 1990. Inspector Regan again issued a Stop Sale Notice on June 4, 1990 and the items were destroyed. Among the ingredients of the calzones prepared for sale by Respondent are broccoli, ham, sausage, chicken, meatballs, mushrooms, and various cheeses, including ricotta, mozzarella, and parmesan. The temperatures at which Inspector Regan observed the calzones prepared by Respondent ranged from 92 to 98 degrees F. on May 30, 1990, and from 94 to 112 degrees F. on June 4, 1990. Petitioner and Respondent both presented expert witnesses who opined that these calzones are potentially hazardous food. Dr. Ronald Schmidt holds a Ph.D. in food science and nutrition. He is also a microbiologist. He is a professor with the University of Florida Department of Food Science and Human Nutrition and was qualified as an expert in food science and hygiene. Dr. Schmidt was of the opinion that these calzones "are in a form such that they could support rapid and progressive growth of microorganisms," that they are potentially hazardous food, and that any pathogens present in these calzones could grow and be harmful if the calzones were eaten. According to Dr. Schmidt, "the composition of calzones are such that they would provide ample nutrients to support the growth of food borne pathogens." Dr. Leslie Smoot was also accepted as a food science and microbiology expert. He is employed by ABC Research Corporation. He conducted the testing of the calzones and prepared a report of February 25, 1991, for Respondent. His report was introduced into evidence as Respondent's Exhibit 2. According to Dr. Smoot, "It has been recognized by the food science community that the presence of these food substrates [i.e., the ingredients found in the calzones at issue in this case] in prepared food would render it potentially hazardous." A food is not potentially hazardous if the pH level is 4.6 or below or the water activity value is .85 or less. The pH of Respondent's calzones, as indicated in Dr. Smoot's report, ranged from 5.0 to 5.8, and the water activity levels ranged from .96 to .97. According to Dr. Smoot, it is understood in the profession that foods above pH 4.6 or above water activity level .85 will allow growth of bacteria to occur. It was Dr. Smoot's opinion that the calzones that he tested from Respondent's establishment fill meet the definition of potentially hazardous foods, and that if bacteria from a cut on an employee's hand got into the food, it is "very possible" that it could have cause caused a food-borne illness. The calzones Dr. Smoot tested did not contain any toxic or infectious microorganisms, but these tests are not conclusive because the calzones tested were prepared with foreknowledge that they would be tested. Both Dr. Schmidt and Dr. Smoot testified that a means of making these calzone-type potentially hazardous foods as safe as possible for service to the public is to store them at temperatures of above 140 degrees F. or below 45 degrees F., as required by Rule 10D-13.024(2), Florida Administrative Code. These temperature ranges are established so as "to prevent the multiplication of disease causing organisms that may cause food- borne illness." It is the practice of Respondent to leave its calzones on the counter at room temperatures after prebaking, just as Regan had found them on May 30, 1990, and June 4, 1990. They are prebaked at 530 degrees to an internal temperature of 150-180 degrees. After storage at room temperature, they are recooked to an internal temperature of 165 degrees just prior to serving. DHRS has made only one exception to what is defined by rule to be potentially hazardous food. That one exception is for pizzas by the slice. This exception was allowed due to a national consensus among food protection professionals that the existing hazard from pizzas is minimal. The conditions justifying the exception do not exist in calzones.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be assessed an administrative fine in the amount of $3,000.00 ($500.00 for each of the three violations charged in the Notice of Show Cause, for each of the two dates on which they occurred), or, in the alternative, that Respo ndent's public food service established license number 11-01618R be suspended for a period of 30 days for its repeated violations of public food service establishment sanitary standards. DONE and ENTERED this 8th day of May, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-7182 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Business Regulation, Division of Hotels and Restaurants: Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-10(1-10); 13-24(11-22); 25(24); and 27(25). Proposed findings of fact 11 and 12 are unnecessary. Proposed finding of fact 26 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Nero's pizza by the Slice, Inc., d/b/a Lisa Pizza: Proposed findings of fact 1, 2, 8, 10, 11, and 12 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3, 7, and 14 are irrelevant. Proposed findings of fact 4-6, 9, 13, 15, and 16 are unsupported by the competent, substantial evidence. COPIES FURNISHED: Emily Moore Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Kenneth S. Davis Attorney at Law Post Office Box 5595 Gainesville, Florida 32602 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Barbara Palmer, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 ================================================================= AGENCY FINAL ORDERS ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANTS, Petitioner, vs. LICENSE NO. 11-01618R CASE NO. 05-91-03 NERO'S PIZZA BY THE SLICE, INC., DOAH CASE NO. 90-7182 d/b/a LISA PIZZA, Respondent. /
The Issue Whether the allegations set forth as count one in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Bistro on Park Avenue (Respondent) are correct, and if so, what penalty should be assessed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a public restaurant located at 348 North Park Avenue, Suite 5, Winter Park, Florida 32789. On December 14, 2012, Dennis Watson, a trained and experienced sanitation and safety specialist employed by the Petitioner, performed a routine inspection of the Respondent, during which Mr. Watson observed various violations of the Food Code. At the conclusion of the routine inspection, Mr. Watson prepared a written report documenting the Food Code violations that he had observed. Before leaving the premises, Mr. Watson discussed his observations with Mr. Boesch and provided him with a copy of the inspection report. According to the inspection report, the violations were to have been corrected by 8:00 a.m., on February 15, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Food Code violations identified during the routine inspection had been resolved. The callback inspection occurred on February 19, 2013. Some of the Food Code violations observed during the routine inspection were again observed during the callback inspection. Between the routine inspection and the callback inspection, the Petitioner amended its rules and began to apply an updated version of the Food Code. In relevant part, both versions of the Food Code identify proper food storage temperatures applicable to potentially hazardous food products. The storage of such products at improper temperatures can result in bacterial or pathogenic contamination of the product and can cause serious illness in humans who consume the contaminated products. Both versions of the Food Code require that certain cold food products be stored at temperatures of 41°F or less. At the time of the routine inspection, the applicable Food Code identified violations of the referenced food temperature standard as "critical" violations. By the time of the callback inspection, the updated Food Code being utilized by the Petitioner identified violations of the food temperature standard as "high priority" violations. According to the report of the routine inspection, Mr. Watson observed that both crème brulee and tiramisu were being held at 44 degrees. According to the report of the callback inspection, Mr. Watson observed that crème brulee was being held at 46 degrees and that butter was being held at 47 degrees. At the time of both inspections, the cited items were stored in a glass door cooler. At the hearing, Mr. Boesch asserted that the temperatures measured by Mr. Watson were not accurate. Mr. Boesch produced the thermometer he used at his restaurant and argued that the thickness of the cited food products was insufficient to permit an accurate determination of their temperatures with his thermometer. Mr. Watson testified that the construction of the thermometer used to measure food temperatures during inspections was superior to that of the thermometer being used by Mr. Boesch. Mr. Watson testified that his thermometer was capable of accurately determining the temperature of food products during the inspection and that he routinely calibrated the thermometer to make certain that it was performing properly. Mr. Watson's testimony and the measurements obtained through his thermometer have been accepted and are credited.
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 a fine of $250 against the Respondent, and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 4th day of September, 2013.
The Issue The issue is whether Respondent violated provisions of the Food Code and, if so, should be penalized for such violations. For the reasons set forth below, Respondent has committed violations for which he should be penalized.
Findings Of Fact At all times material to this matter, Respondent was licensed as a public food establishment in the State of Florida by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department). Respondent's business address is 963 North Suncoast Boulevard, Crystal River, Florida. Petitioner's witness, Jill Craig, is employed by the Department as a senior sanitation safety specialist at 1313 North Tampa Street, Tampa, Florida 33602. Inspector Craig has worked for the Department in her current capacity for five years. Prior to working for the Department, Inspector Craig worked as a food server, prep cook, managed a grocery store, and performed housing inspections for the Department of Health in Indiana. Upon coming to work at the Department, Inspector Craig was versed in the Food Code, trained on the laws and rules pertaining to public food and lodging establishments, trained in Hazardous Analysis and Critical Control Points (HACCP), and became a certified food manager. Inspector Craig continues to receive training on a monthly basis. She performs about 1,500 food service inspections a year. "Critical violations" are those that are likely to result in food-borne illness or environmental degradation. "Non-critical violations" are minor issues that are not classified as critical violations. Inspection reports are electronically prepared on a personal data assistant by the inspector. On October 26, 2009, Inspector Craig performed a routine food service inspection of Olive Tree Restaurant, Respondent's place of business. During the inspection, Inspector Craig prepared and signed an inspection report setting forth the violations she encountered during the inspection. On the date of that inspection, Inspector Craig notified Respondent about the violations. Respondent's representative, Manny Kokkolis, signed the inspection report. The inspector also informed Mr. Kokkolis that all of the violations would have to be corrected by December 28, 2009. On January 21, 2010, Inspector Craig performed a callback inspection of Olive Tree Restaurant. During the inspection, she prepared and signed an inspection report indicating that some of the violations had not been corrected. On the date of the callback inspection, Inspector Craig made Respondent aware of the violations that had not been corrected, and Respondent's representative, Caitlin Tellier, signed the inspection report. Based on the violations that had not been corrected, the inspector recommended an administrative complaint be issued against Respondent. The most serious violation observed during the October 26, 2009, and January 21, 2010, inspections was no certified food manager on duty with four or more employees engaged in food preparation. This is a critical violation because public food service establishments are required to have a certified food service manager on site when four or more employees are engaged in food preparation to oversee the employees and ensure compliance with the laws and rules relating to public food safety. Respondent admitted there was no certified food manager on duty when Inspector Craig made her two visits to Respondent's food service establishment. The next most serious violation observed during the two inspections was food stored on the floor in the dry storage area. This is a critical violation because packaged food must be stored at least six inches above the floor to prevent contamination by pathogens. Respondent testified that cases of food may have been placed on the ground after delivery and had not been there long. However, Food Code Rule 3-305.11 requires food to be protected from contamination at all times by storing the food at least six inches above the floor. The next most serious violations observed during the two inspections were accumulation of food residue on the reach-in freezer and soiled reach-in cooler and freezer gaskets. These are critical violations as well because pathogens on the food contact surface can contaminate the food product. Respondent testified that the refrigerator and gaskets acquire a build-up of mold, despite his efforts to keep them clean. He noted that the mold and residue was on the outside of the freezer and cooler. He also testified that following the callback visit by Inspector Craig, he had an additional two employees certified to handle food and supervise those who are handling food. The final three violations were all deemed non- critical by Inspector Craig. The first concerned the storage of bakery pan liners on the floor in the dry storage area. This is non-critical, but single serve articles can become contaminated before their intended use if exposed to pathogens like those found on the restaurant's floor. The second non-critical violation observed by Inspector Craig was the build-up of a mold-like substance on the surface of the mop sink. Although non-critical, the objective of cleaning is sanitization and that objective is not met when the mop sink is encrusted with mold. The final non-critical violation observed by Inspector Craig was that the floor and wall junctures were not coved.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty in the amount of $250 for the critical violation concerning Respondent's failure to have a certified food manager on duty; $250 for the critical violation of storing food on the floor in the dry storage area; $250 for the critical violation of food residue on the freezer and cooler gaskets; $150 for the non-critical violation of storing bakery pan liners on the floor in the dry storage area; $150 for the non-critical violation of allowing a mold-like build-up on the mop sink; and $150 for the non-critical violation of not having the floor and wall junctures coved. The total fine in the amount of $1,200 shall be paid to the Division of Hotels and Restaurants within 30 days of the entry of its final order. DONE AND ENTERED this 15th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Paul Parnos Olive Tree Restaurant 963 North Suncoast Boulevard Crystal River, Florida 34429 Megan Demartini Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issue in this case is whether on March 23, 2012, July 31, 2012, and October 10, 2012, 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 Administrative Complaint, and if so, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. LOLAQ is a limited liability company (LLC) which was licensed to operate a permanent public food service establishment in the State of Florida at all times relevant to this proceeding. It does business as Maggie Qi at 28 West Bayshore Drive on St. George Island, Florida. Mr. James Kourkoulis, sole owner and managing member of LOLAQ, operates the restaurant. Mr. Paul Smith has been employed by the Division for about five years. He is a sanitation and safety specialist with the Division. Prior to his employment with the Division he was employed in the restaurant industry for approximately 30 years. He has had training in sanitation and inspection, including formal initial training, on-the-job training, and monthly in- house training. He is also a certified food manager. He performs between 600 and 1000 inspections each year. On March 23, 2012, Mr. Smith conducted a food service inspection on Maggie Qi. Mr. Smith prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using his personal data assistant (PDA) to record the violations that he observed during the inspection. Ms. Kathyrn McPherson signed the report to acknowledge receipt on behalf of Maggie Qi. When Mr. Smith completed the report, he printed a copy for the restaurant and discussed each violation with Ms. McPherson. He advised Ms. McPherson that all violations needed to be corrected by the next unannounced inspection. During the March inspection, Mr. Smith observed that Maggie Qi had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that beef had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line, and recorded this on his report. The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015. During the March inspection, Mr. Smith also observed a buildup of slime in the interior of the ice machine, and noted this on his report. The Division has determined that failure to keep food contact surfaces of equipment and utensils clean poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR- 5022-015. Mr. Smith also made note in his March report that there was no conspicuously located thermometer in the large cooling unit on the cooks’ line. At hearing he explained that there was a thermometer in the unit, but that it was in a difficult place to access in the back of one of the drawers, and so was not properly located. The Division has determined that failure to have thermometers conspicuously placed poses a significant threat to the public health, safety, or welfare because of the relationship between temperature and bacteria growth, and has identified this as a critical violation on DBPR Form HR-5022- 015. On July 31, 2012, Mr. Smith conducted another routine inspection of Maggie Qi. Mr. Smith again prepared an inspection report on DBPR Form HR 5022-015, using his PDA to record the violations that he observed. During the July inspection, Mr. Smith observed that Maggie Qi again had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that shrimp, beef, and fish had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line. Mr. Smith noted that there was gumbo, a ready–to-eat food, which had been prepared for more than 24 hours and was improperly date-marked. The Division has determined that failure to properly label and date-mark potentially hazardous food prepared on-site and held more than 24 hours poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022- 015. Mr. Smith also observed that the thermometer in the large cooling unit on the cooks’ line was still located in the back of the drawer and had not been placed in a conspicuous location since the March inspection. During the July inspection, Mr. Smith also noted that the large cooling unit at the cooks’ line was incapable of maintaining potentially hazardous food at prescribed temperatures. All of the food, including beef, shrimp, and fish, was at a temperature of 50 degrees Fahrenheit. At hearing, Mr. Smith testified that he touched the compressor and found it too hot to keep his hand on it, which, in his experience, indicated that the unit was not working properly. The Division has determined that failure to have adequate facilities to maintain food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022- 015. As Mr. Smith noted, Maggie Qi had another walk-in cooler which would have had enough room to hold the food, but it was not near to the cooks’ line. He testified that attempting to use the walk-in cooler in lieu of the malfunctioning unit would have been “extremely inconvenient” and “next to impossible.” This testimony was unrefuted. With the large cooling unit not working properly, Maggie Qi lacked adequate cold-holding capacity at the cooks’ line, and did not have cooling equipment sufficient in number or capacity to meet the cooling demands of its operations. Mr. Smith noted that the buildup of slime in the interior of the ice machine was still there. He further noted that the interior of the oyster reach-in cooler was soiled with an accumulation of food residue, and that there was encrusted material on the can opener. Finally, Mr. Smith observed that a hose bibb located on the wall near the sink (not the sink faucet) was missing a vacuum breaker. He testified that a hose was connected to the hose bibb, and that water from this connection was used to spray down the floor. Mr. Kourkoulis stated at hearing that the vacuum breaker had been removed and was sitting on the sink in the immediate vicinity of the hose bibb. He did not know who took it off. The Division has determined that a plumbing system not designed to prevent backflow of solid, liquid, or gas contaminants into the water supply system poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022- 015. Mr. Smith recorded all of these violations in his July inspection report. His report advised Maggie Qi of a call back date of October 1, 2012. Mr. Kourkoulis signed this report to acknowledge receipt on behalf of the restaurant. On October 10, 2012, Mr. Smith returned to perform a call back inspection of Maggie Qi. He prepared a Call Back Inspection Report, DBPR Form HR 5022-005, using his PDA to record the violations that he observed. The name Tanya Shiver appears on this October report acknowledging receipt on behalf of Maggie Qi. During the October inspection, Mr. Smith observed that the vacuum breaker was still missing from the hose bibb; the buildup of slime in the interior of the ice machine and the encrusted material on the can opener were still there; the interior of the oyster reach-in cooler was still soiled with an accumulation of food residue; the large cooling unit at the cook line still did not have its thermometer conspicuously placed and was still not maintaining proper temperatures for potentially hazardous food; shrimp, fish, and beef were again at a temperature of 50 degrees Fahrenheit; and gumbo that had been prepared more than 24 hours was again without proper date marking. These violations were recorded on the report. Mr. Smith is a trained professional and his testimony is credited. He testified that on the morning of each inspection he checked the accuracy of his thermometer in ice water, as he had been trained, and that his thermometer was accurate. Reports prepared at the time of the inspections corroborate Mr. Smith’s testimony as to all charged violations. The Division served an Administrative Complaint against Maggie Qi for the above violations on or about October 28, 2012. On March 23, 2012, July 31, 2012, and October 10, 2012, Maggie Qi had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit. On July 31, 2012, and October 10, 2012, Maggie Qi had refrigerated gumbo, a ready-to-eat, potentially hazardous food, which had been prepared and held for more than 24 hours and was not marked to indicate the date by which it needed to be consumed, sold, or discarded. On March 23, 2012, July 31, 2012, and October 10, 2012, the large cooling unit at the cooks’ line in Maggie Qi did not have its thermometer permanently affixed in a location that would allow easy viewing of its temperature display. On July 31, 2012, and October 10, 2012, the equipment for cooling food at Maggie Qi was not sufficient in number or capacity to maintain all food at proper temperatures. On March 23, 2012, July 31, 2012, and October 10, 2012, equipment food-contact surfaces and utensils at Maggie Qi were not clean to sight and touch. On all three dates there was a buildup of slime on the interior of the ice machine. On July 31, 2012, and October 10, 2012, the interior of the oyster reach-in cooler had an accumulation of food residue and there was crusted material on the can opener. On July 31, 2012, and October 10, 2012, Maggie Qi’s plumbing system had not been installed to preclude backflow of contaminants into the water supply system from a hose bibb near the sink. The hose bibb had a hose attached, but did not have a vacuum breaker. No evidence was introduced to indicate that Respondent had any previous violations.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding LOLAQ, LLC, doing business as Maggie Qi, in violation of six critical violations, and imposing a fine of $2,250, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013.
The Issue Whether Respondent committed the following acts alleged in the Notice to Show Cause dated July 8, 1998, and if so, the penalty that should be imposed: Violation of the Food Code, Chapter 61C-1, Florida Administrative Code, by failing to maintain hot, potentially hazardous, foods at or above 140 degrees Fahrenheit (Fº) at all times on the steam table. Violation of the electrical code by failing to provide a spacer for missing circuit breakers in the electrical box near the waitress station. Violation of the Food Code by failing to provide and use a food thermometer to monitor food temperatures. Violation of the Food Code by failing to provide a properly designed bulk food product scoop with a handle for use in the kitchen.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes (1997). Respondent is a public food service establishment that operates in the State of Florida under the Division's License Control Number 03843-R. Derrick Fritts is a Sanitation and Safety Inspector employed by the Petitioner. On February 3, 1998, at approximately 3:55 p.m., Fritts visited the Seaport Restaurant food establishment located at 680 George J. King Boulevard, Port Canaveral, Florida 32920, for the purpose of performing a routine callback inspection. At the time of the inspection, the vegetable mix on the steam table was at a temperature of 116 degrees F. The baked potatoes were at 95 degrees F and the tomato sauce was at 111 degrees F. Dinners were being served from this steam table. Respondent's defense that the steam table are being broken down for diner and customers were not being served is not credible. At the time of the inspection, there was no thermometer that was readily accessible to the server at the steam table to monitor potentially hazardous foods to ensure that they are within the temperature range specified in the Food Code. At the time of the inspection, a large bulk supply of flour was being dispensed with a plastic cup rather than a scoop with a handle. There was insufficient evidence to prove that a fire code violation was present in the electrical circuit breaker box in the main dining room. The Petitioner performs inspections between the hours of 9:00 a.m. and 5:00 p.m., and occasionally after-hours, in order to better observe operating procedures. It is the Petitioner's policy to inspect food service establishments during operating hours. In the Petitioner's view, operating hours includes anytime anyone is working on the premises of a public food service establishment. Although Fritts arrived for the inspection relatively late in the day, the inspection still occurred within the 9-5 time frame. Representatives of Respondent were present for 80 percent of the inspection. Respondent was cited for violations of the 1997 Food Code under the following sections: 3-501.16(A), 4-302.12, and 3-301.11(C), C.F.R. Petitioner sent out an Industry Advisory on January 1, 1998, with the following information for licensees about the 1997 edition of the Food Code: Although the Code and Rule have been adopted, enforcement of these new provisions will not begin until April 1, 1998. Respondent received the above Industry Advisory and erroneously interpreted it to mean that none of the provisions of the 1997 Food Code would be enforced until April 1, 1998. The Food Code contains recommendations made by the United States Public Health Service Food and Drug Administration. Therefore, the Food Code is not mandatory and binding on licensees until it is adopted by the State of Florida. Chapter 61C-1.001, Florida Administrative Code, incorporates by reference the 1997 Food Code into the Florida Administrative Code, thereby adopting it. It then became binding on licensees as an official rule of Petitioner after January 1, 1998.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of the following charges and that the following penalties be imposed against Respondent: Food Code Rule 3-501.16(A), imposing an administrative fine in the amount of $500.00; Food Code Rule 4-302.12, imposing an administrative fine in the amount of $250.00; Food Code Rule 3-301.11(C), imposing an administrative fine in the amount of $250, and that Respondent attend, at personal expense, an educational program sponsored by the Hospitality Education Program. It is further. RECOMMENDED that Respondent be found not guilty of violation of Rule 61C-1.004(11), Florida Administrative Code. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of June, 1999. COPIES FURNISHED: Melvin T. Stith, Jr., Esquire Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Alan C.D. Scott, II, Esquire 101 Orange Street St. Augustine, Florida 32804 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre 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 30530 South Dixie Highway, Homestead, Florida, and holding food service license number 2330285. On July 6, 2009, and November 3, 2009, Respondent was inspected by sanitation and safety specialists employed by the Division. During both visits, inspectors 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. Brown and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of November 3, 2009, the following deficiencies subsisted at Respondent Galindo Cafe: (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) food was stored on the floor, raw food was stored over cooked food, and uncovered food was present in a holding unit, in violation of Food Code Rules 3- 305.11(A)(3), 3-302.11(A)(1)(b), and 3-302.11(A)(4), respectively2; (3) a cutting board that was grooved, pitted, and no longer cleanable was observed, in violation of Food Code Rule 4-501.12; (4) unclean, wet wiping clothes were observed, in violation of Food Code Rule 3-304.14(B)(2); (5) a buildup of soiled material on racks in the walk-in cooler was present, in violation of Food Code Rule 4-601.11(A); and (6) a wall soiled with accumulated grease was observed, in violation of Florida Administrative Code Rule 61C-1.004(6). The deficiencies relating to the improper storage of food, the build-up of soiled material, and the lack of proper food labeling 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 three remaining deficiencies (a grooved and pitted cutting board, unclean wiping clothes, and the accumulation of grease on a wall), while not categorized as a critical violations, are serious nonetheless because they can lead to the contamination of food.
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 $1800, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 25th day of January, 2011, 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 25th day of January, 2011.
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 The issue in this case is whether on June 23, 2014, Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant (Zorba's), was in compliance with food safety requirements set forth in administrative rules of Petitioner, Department of Business and Professional Regulation (Department), Division of Hotels and Restaurants, and, if not, what penalty is appropriate.
Findings Of Fact The Department is an agency of the State of Florida responsible for monitoring the operations of hotels and restaurants to ensure compliance with food safety and sanitation standards set forth in relevant statutes and rules. Zorba's is a licensed and regulated business under the jurisdiction of the Department's Division of Hotels and Restaurants. Zorba's business license number is 46-01794. Jonathan Johnson works for the Department as a senior sanitation and safety specialist. Mr. Johnson has worked for the Department for approximately four and one-half years. Before that, he worked for two years in restaurants. Mr. Johnson undergoes periodic training for his present position as an inspector. He is also a certified food manager. Mr. Johnson performs approximately 1,000 or more inspections for the Department annually. Mr. Johnson's training, experience, and demeanor make him a very credible witness. On May 6, 2014, at 5:09 p.m., Mr. Johnson inspected Zorba's restaurant. Mr. Johnson observed tomatoes, hummus, and cheese in the "reach-in" coolers behind the cook line at temperatures between 44ºF and 46ºF. Tomatoes, hummus, and cheese are "priority items," under the Food Code, making them "high priority items" under Florida Administrative Code 61C-1.001(17). § 3-501.16(A), Food Code. Under the Food Code, they must be held at a temperature below 41ºF. § 3-501.16(A), Food Code.2/ A "high priority violation" is a violation of the rules regulating a "high priority item" and is determined by the Department to pose a direct or significant threat to the public health. Fla. Admin. Code R. 61C-1.005(a). As a result of his inspection, Mr. Johnson prepared an inspection report setting forth his findings and issued Zorba's a warning. Mr. Johnson scheduled a callback inspection for May 7, 2014. Within 11 hours after receiving the inspection report, Zorba's employed a refrigeration repair company to inspect the restaurant's refrigeration equipment at a cost of $234.00. A service order, admitted as hearsay evidence, suggests the technician measured the ambient temperature of the walk-in cooler at 33ºF and the reach-in cooler at 38ºF. Since the document is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Mr. Johnson returned to Zorba's on May 7, 2014, at 8:00 a.m. The cheese, tomatoes, and deli meat in the reach-in coolers were at temperatures between 44ºF and 46ºF. The walk-in cooler contained soups and sauces at temperatures between 48ºF and 50ºF and chicken and butter at 44ºF. At the conclusion of the inspection, Mr. Johnson told Ms. Euse about the violations and, again, issued Zorba's a warning. At this time, Mr. Johnson told Ms. Euse that all violations documented during the inspection needed to be corrected by June 23, 2014. He noted the violations were not an immediate threat to the public. Zorba's acknowledged the violations on both reports dated May 6 and 7, 2014. As a result of a stipulation, the Department issued a Final Order on May 16, 2014, imposing a fine of $200.00 for these violations. Mr. Johnson performed a callback inspection, as contemplated by the Final Order, at Zorba's restaurant on June 23, 2014. The inspection revealed that the cheese, tomatoes, and deli meat held within the reach-in cooler were at temperatures between 44ºF and 46ºF. Mr. Johnson prepared a Callback Inspection Report, which was signed by a Zorba's representative. The Callback Inspection Report recommended filing an Administrative Complaint. After receiving the non-compliance violation report, Zorba's contacted a different refrigeration repair company to perform an additional inspection of the refrigeration equipment. A service order, admitted as hearsay evidence, suggested that a technician measured the temperature of the reach-in cooler at 38ºF on June 30, 2014. Since it is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Ms. Euse replaced the restaurant's plastic storage containers with aluminum containers because the technician suggested it. The clear and convincing evidence proves that on June 23, 2014, Zorba held hazardous food at levels above the 41ºF standard required by section 3-501.16(A)(1) of the Food Code. Zorba's attempted to cooperate with the Department's inspection report by hiring refrigeration technicians to perform maintenance on and evaluate the subject coolers. Nonetheless, the Department presented evidence that Zorba's violated the Food Code on the day on which the inspection was conducted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a $500.00 fine upon Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant, for violations of the Food Code requirements. DONE AND ENTERED this 3rd day of November, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 3rd day of November, 2014.
