The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2005). The Respondent is a restaurant located at 2311 West Hillsborough Avenue, in Tampa, Florida, holding Permanent Food Service license number 3910762. Jesus Gonzalez is identified on the license as the owner of the Respondent. On October 4, 2005, Catherine Lombard, employed by the Petitioner as a safety and sanitation specialist, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a written report. Ms. Lombard provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for November 4, 2005. On November 7, 2005, Ms. Lombard re-inspected the Respondent and determined that some of the violations identified during the inspection on October 4, 2005, remained uncorrected. The violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection. On November 29, 2005, the Petitioner filed an Administrative Complaint against the Respondent, alleging various continuing and uncorrected violations identified during the inspections. Violations that pose an immediate threat to public health and safety are identified as critical. Violations that do not pose an immediate threat are identified as non-critical. During the inspections on October 4, 2005, and on November 7, 2005, the ventilation hood's fire suppression system tag had expired according to the date on the tag, and there was no current hood system report. These violations were identified as critical because failure of the fire suppression system located above the cooking equipment could result in an uncontrolled fire with loss of life and property. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed uncooked food being thawed in a bucket of standing water at room temperature. On October 4, 2005, the food in the water was fish. On November 7, 2005, the food in the water was sausage. This violation was identified as critical because thawing food in room-temperature standing water can permit growth of food-borne bacteria and result in severe illness for persons consuming improperly thawed food. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that food refrigeration units lacked conspicuously located thermometers. This violation was identified as critical because the lack of conspicuously located thermometers makes it more likely that an inadequately operating refrigeration unit will go unnoticed, thereby increasing the risk of food-borne illness related to improper food storage. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed an uncovered electrical panel box located in the kitchen. This violation was identified as critical because of the obvious risk to kitchen workers presented by "live" electrical wiring located in proximity to wet kitchen floors. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that a vacuum breaker was missing at a hose bib. This violation was identified as critical because, absent a properly installed vacuum break device, contaminated water in a hose may enter into the potable water supply and be consumed by the public potentially resulting in illness. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard identified several non-critical violations, including the failure to place wet table wiping cloths into a sanitizing solution; a lack of hand-drying provisions in the restroom; damage to the wall behind the food preparation line, which made adequate cleaning of the wall difficult; failure to store utensils in a clean and protected location; and failure to hang a wet mop so as to permit the mop to dry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $3,600 against the Respondent and requiring the Respondent to attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 6th day of July, 2006, 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 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 July, 2006. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jesus Gonzalez Tainos Cafe 2311 West Hillsborough Avenue Tampa, Florida 33603 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, 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. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. 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. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
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 of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, 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 20th day of September, 2010.
The Issue The issues to be resolved in this proceeding concern whether Respondent committed the violations alleged in the Administrative Complaint dated April 9, 2010, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, Canton Rose Chinese Restaurant ("Canton Rose"), located at 4038 S.W. 67th Avenue, Miami, Florida 33155, holding Food Service license number 2321953. Jorge Gandolff ("Inspector Gandolff") is employed by the Department as a Senior Sanitation Safety Specialist. Inspector Gandolff has worked for the Department for approximately eleven years. Prior to working for the Department, Inspector Gandolff worked for the Department of Agriculture as a food safety inspector for a year and-a-half and as a restaurant general manager for Kentucky Fried Chicken for five years. He is a Certified Food Manager and continues to receive continuing education training. Inspector Gandolff performs approximately eight hundred inspections a year. On September 15, 2009, Inspector Gandolff performed a food service inspection at Canton Rose. During the inspection, Gandolff prepared and signed an inspection report setting forth the violations he spotted during his inspection. During the September inspection, Inspector Gandolff observed and specifically decided that the hot food was not at the proper temperature and that the rice was not being cooled in a proper manner. Inspector Gandolff specifically noted both as violations being out of compliance and stated in the inspection report: * * * Violation(s) * * * 03D-01-1: Observed food being cooled by nonapproved method * * * 03B-03-1 Potentially hazardous food not held at 135 degrees Fahrenheit or above Cooked chicken 92 degrees on prep table * * * Inspector Gandolff prepared the inspection report on- site at Canton Rose electronically on a Personal Data Assistant. Respondent's manager signed the report. It warned "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." On March 8, 2010, Inspector Gandolff returned to Canton Rose and performed the follow-up food service inspection. He determined that two repeat critical violations remained uncorrected from the September 15, 2010, inspection. A critical violation if left uncorrected can lead to food contamination, illnesses, or a health threat to the person who eats the food. It also is a violation that poses an immediate danger to the public health and safety. 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. During the March inspection, Inspector Gandolff prepared an Inspection Report setting forth the findings from the re-inspection and recommended that an Administrative Complaint be filed. The first uncorrected violation for which Respondent was cited was Food Code Rule 03D-01-1--"Observed food being cooled by nonapproved method Repeat Violation." On both the September and March inspections, Canton Rose had just prepared the rice before the inspector arrived and was in the process of cooling it down. Neither the September nor March inspections took over one and-a-half hours to complete. Respondent used its same daily methodology for cooking and cooling rice during both inspections which included: cooking the rice for about 20 minutes; steaming it for about 20 minutes until it is completely cooked; opening the lid and using a long fork to mix and separate the rice to cool it down; dividing the rice into four large plastic container shallow pans; air-cooling the rice in the shallow pans for about 30 minutes so that the moisture in the rice would be reduced and become cool to the touch; and manually breaking up the rice by hand by an employee wearing gloves, which continues to cool the rice. After each grain of rice is separated by hand, the rice is cooler. After following the process the rice is cooled to 70 degrees Fahrenheit within two hours. Respondent was also cited for a violation of Food Code Rule 03B-03-1--"Potentially hazardous food not held at 135 degrees Fahrenheit or above cooked rice 112 degrees and cooked eggs at 117 degrees. Repeat violation." While inspecting, Inspector Gandolff observed both cooked rice at 112 degrees Fahrenheit and cooked eggs at 117 degrees Fahrenheit. The rice's temperature of 112 degrees Fahrenheit, allegedly was 23 degrees under its proper storage temperature of 135 degrees, and the eggs at a temperature of 117 degrees Fahrenheit, allegedly was 18 degrees under its proper temperature of 135 degrees. Both the rice and eggs were in the process of being cooled down through Canton Rose’s methodology. In general, the temperature of food must be maintained according to the type of food and whether it is in the process of being prepared, including cooling down. Temperature maintenance is considered important since food that is not held at the proper temperature can grow bacteria. Such bacterial growth can cause illness and is a public health threat. For that reason, food, which is out of temperature, is considered a critical violation of the Food Code, which is incorporated in Florida Law. Respondent owns Canton Rose. The restaurant has been open for four years. Respondent cooks about six pots of rice a day and usually it is all sold daily before it is completely cooled down and put it in the cooler. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed.
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 that finds Respondent not guilty as charged in Counts I and II of the Administrative Complaint. DONE AND ENTERED this 26th day of September 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2011. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Guo Xun Zhoz 4038 Southwest 67th Avenue Miami, Florida 33155 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in the case are whether the allegations set forth in an Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Pita's Restaurant (Respondent) are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes (2010).1/ At all times material to this case, the Respondent was a restaurant operating at 8412 West Hillsborough Avenue, Tampa, Florida 33615, and holding food service license number 3912285. On October 28, 2009, Rich Decker (Mr. Decker), employed by the Petitioner as a sanitation & safety specialist, performed a routine inspection of the Respondent and observed conditions that violated certain provisions of the Food Code. Food Code violations are classified as "critical" or "non-critical." A critical violation of the Food Code is one that poses a significant threat to the public health, safety, or welfare and is a risk factor for food-borne illness. A non- critical violation of the Food Code is one that does not meet the definition of a critical violation. At the conclusion of the October 28, 2009, inspection, Mr. Decker noted the observed violations in an inspection report. The owner of the Respondent signed the report and received a copy at the time of the inspection. Mr. Decker advised the owner that a follow-up "callback" inspection was scheduled to occur on December 28, 2009, and that the violations needed to be corrected by that date. The callback inspection did not occur on December 28, 2009. Mr. Decker performed the callback inspection on January 5, 2010, and observed some of the same Food Code violations noted on the October 28, 2009, inspection report. At the conclusion of the January 5, 2010, inspection, Mr. Decker again noted the observed violations in an inspection report. The manager of the Respondent signed the report and received a copy at the time of the inspection. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed raw eggs being stored above prepared, ready-to-eat pita bread. This violation was deemed to be critical because raw food stored above ready-to-eat food can lead to bacterial contamination of the ready-to-eat food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed unidentified medicine being stored in a refrigeration unit along with food supplies. This violation was deemed to be critical, because the medicine could have contaminated the food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed prepared, ready-to-eat, and potentially-hazardous food being stored without having been date-marked to identify the last date upon which the food could be consumed. Prepared food has a limited shelf life during which it may be safely consumed. The failure to date-mark prepared food was a critical violation, because such failure may result in the consumption of unsafe food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed that there was no consumer advisory warning related to consumption of raw or undercooked foods posted on the premises. The Food Code requires the posting of such a notice, and the failure to comply is deemed a critical violation, because consumption of certain raw or undercooked foods poses a health risk to some consumers. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed an employee engaged in food preparation without wearing a hair net. Although food can be contaminated by human hair, this violation was deemed to be non-critical, because no immediate threat to human health was presented by the violation.
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 $1,350 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 20th day of May, 2011, 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 20th day of May, 2011.
The Issue The issues in DOAH Case No. 10-1704 are whether Respondent, Stacked Subs (Respondent), committed the violations alleged in the Administrative Complaint dated November 5, 2008, and, if so, what penalty should be imposed. Similarly, the issues in DOAH Case No. 10-2445 are whether Respondent committed the violations alleged in the Administrative Complaint dated June 24, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2009). At all times material to the allegations of these cases, Respondent operated as a public food service establishment subject to Petitioner’s jurisdiction. In his capacity as an inspector for Petitioner, Alfonso Rullan visited Respondent’s place of business (2054 State Road 436, Winter Park, Florida) on December 19, 2007. During the inspection, Mr. Rullan noted several food service violations that he memorialized in an inspection report provided to, and signed by, Mr. Nevarez. The violations, more fully described in Petitioner's Exhibit 2, required correction. It was contemplated that Respondent would correct the violations of the Food Code such that on second inspection the violations would no longer be found. Since the inspection revealed “critical” violations, it was incumbent on Respondent to timely correct the violations noted in the inspection report. “Critical” violations are violations that, if left uncorrected, can contribute to food contamination, food-borne illness, or adversely affect public health. Thus, “critical violations” must be timely corrected, as they are a present concern. Violations that could lead to critical violations are denoted as “non-critical.” These “non- critical” violations must also be corrected, but they do not constitute a present threat to the public On March 12, 2008, Inspector Will Goris returned to Respondent’s place of business and completed a second inspection report, denoting critical violations uncorrected from the prior inspection and itemizing the concerns that required correction. Mr. Nevarez signed the report. This report, Petitioner’s Exhibit 3, chronicled ten violations of the Food Code. Subsequently, Petitioner issued an Administrative Complaint (DOAH Case No. 10-1704), outlining the uncorrected and critical violations Respondent had failed to timely address. Respondent timely contested the complaint and sought an administrative hearing in connection with the allegations. Between December 2007 and March 12, 2008, Respondent failed to correct the following violations: Cheese in the reach-in cooler at the front counter was 51 degrees; Employees reported to work and handled food without first washing hands; The prep table was adjacent to the fryers and under the hood was encrusted and greasy; and Single service cups were stored on the floor by the register. Of the foregoing violations, the failure of employees to wash their hands prior to handling food was the most critical violation. This violation was noted by both inspectors. On January 26, 2009, Inspector Goris conducted a routine inspection of Respondent’s premises. On this date, minor violations of the Food Code were again noted, but Mr. Nevarez was given a “met inspection standards” review for this visit. Nevertheless, Petitioner expected Respondent to correct the non-critical violations in a timely manner. On June 17, 2009, when Inspector Goris presented at the restaurant, violations were discovered that led to the second Administrative Complaint, DOAH Case No. 10-2445. Two of the violations were deemed repeat violations, and two were critical violations directly related to public safety; to wit: the soda disperser had slime on it, and proof of employee food- handler training was not available. Respondent timely challenged the Administrative Complaint in DOAH Case No. 10-2445. As to all alleged violations, Respondent was provided adequate notice of the allegations and was provided sufficient time to correct deficiencies. Respondent maintains that inspectors should be trained in abuse of power as their inspections can be discretionary and arbitrary. For example, Respondent claimed that the sleeve of cups on the floor by the cash register had merely fallen there when the inspector cited the violation. Respondent’s claim of abuse of power was unsupported by factual evidence. Moreover, the inspections performed by both inspectors documented objective criteria unrelated to opinion or subjective review. For example, dirty, greasy, or encrusted food surfaces were documented. The failure of employees to wash their hands was documented. The inadequate or incorrect temperature of containers of food was documented. These are not subjective items, but were disclosed to Respondent during and at the time of inspection. It is determined that the inspectors’ testimony was credible and persuasive as to the violations cited. The "Food Code," as it is used in this record, refers to paragraph 1-201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C-1.001. The Food Code is also available through the U.S. Food and Drug Administration Internet website.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against Respondent in the amount of $1,750.00 for the violations listed in DOAH Case No. 10-1704 and $1,000.00 for the violations identified in DOAH Case No. 10-2445. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper guidelines are adopted and implemented at the restaurant. DONE AND ENTERED this 5th day of October, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida Carlos Nevarez Stacked Subs 32399 2054 State Road 436 Winter Park, Florida 32792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this matter is whether Respondent was out of compliance with the food safety requirements of chapter 509, Florida Statutes (2015),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509. Respondent is a licensed public food service establishment in Florida and holds license no. 46-05722. Respondent operates a restaurant under the name of El Riconcito Mexicano located at 1454 Lee Boulevard, Lehigh Acres, Florida 33963. As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division. Jonathan Johnson ("Inspector Johnson") is employed by the Division as a Senior Sanitation Safety Specialist. Inspector Johnson has worked for the Division for approximately five years, serving approximately three years as a Senior Inspector and two years as an Inspector. Prior to working for the Division, Inspector Johnson worked in the food industry for two years. Upon gaining employment in the Division, Inspector Johnson was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Johnson is also a Certified Food Manager. Inspector Johnson receives continuing education training on a monthly basis. Inspector Johnson performs more than 1,000 inspections each year. Craig Brown ("Inspector Brown") is employed with the Division as a Sanitation Safety Specialist. Inspector Brown has worked for the Division for approximately two years. Upon gaining employment in the Division, Inspector Brown was standardized on the Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Brown is also a Certified Food Manager. Inspector Brown receives continuing education training on a monthly basis. Inspector Brown performs approximately 700 inspections each year. On February 3, 2015, Inspector Johnson conducted a food service inspection on Respondent. In a reach-in cooler in Respondent's kitchen, Inspector Johnson identified several food items which he found to be improperly stored. Specifically, measuring the temperature of the food items with a thermometer, Inspector Johnson observed chicken at 63ºF, lettuce at 48ºF, beans at 50ºF, beef stew at 49ºF, rice at 49ºF, and beef at 51ºF. An employee for Respondent informed Inspector Johnson that these foods had been stored in the reach-in cooler from the previous night and were not cooked, cooled, or prepared. During his February 3, 2015, inspection, Inspector Johnson prepared a Food Service Inspection Report. Inspector Johnson recorded the violations he observed on his report. Inspector Johnson informed Respondent that the violations needed to be corrected by February 4, 2015. Norma Arias signed Inspector Johnson's report acknowledging receipt on behalf of Respondent. On February 6, 2015, Inspector Brown performed a callback inspection on Respondent. The purpose of Inspector Brown's inspection was to follow-up on the previous inspection conducted by Inspector Johnson. During his callback inspection, Inspector Brown also measured the temperature of food items in the reach-in cooler in Respondent's kitchen. Inspector Brown observed shrimp, rice, potatoes, cut tomatoes, soup, chicken, and some sauces at 48ºF to 51ºF. According to Respondent's Manager, these foods were not being prepared, cooked, or cooled. Following his inspection, Inspector Brown prepared an inspection report indicating that Respondent had not corrected one of the violations Inspector Johnson had noted on his February 3, 2015, inspection report. This violation concerned the food Respondent stored in the reach-in cooler at a temperature greater than 41ºF. During inspections, Division Inspectors measure food temperatures by inserting a thermometer into the middle of a food item, waiting for the temperature reading to stabilize, and then recording the final temperature reading. Inspectors Johnson and Brown calibrate their thermometers at least once per week. Calibration is performed by filling a cup with ice, pouring water into the cup, and then inserting the thermometer into the water. The thermometer should read 32ºF. Based on the observations of Inspectors Johnson and Brown, the Division cited Respondent with a violation of rule 3-501.16(A)(2), Food Code. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food shall be maintained at a temperature of 41ºF or less. See rule 3-501.16(A)(2)(a), Food Code. The Food Code classifies Respondent's violations as a priority item.3/ The Division has designated violations of priority items as "high priority violations." Potentially hazardous foods held in the danger zone, which is above 41ºF and under 135ºF, allows for the rapid growth of bacteria and can lead to foodborne illness. Respondent has two prior disciplinary Final Orders filed with the Agency Clerk for the Department of Business and Professional Regulations within the 24 months preceding the Administrative Complaint in this matter. The Final Order in case no. 2014011419 was filed on April 7, 2014, and the Final Order in case no. 2014050972 was filed on January 20, 2015. Based on the evidence and testimony presented during the final hearing, the Division demonstrated, by clear and convincing evidence, that on February 6, 2015, Respondent maintained potentially hazardous food at greater than 41ºF. Therefore, the Division met its burden to prove that Respondent failed to comply with the applicable food safety requirements of the Food Code and implementing administrative rules of the Division.
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 finding Respondent, Mexican Food El Rinconcito Mexicano, LLC, d/b/a El Riconcito Mexicano, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $1,000 for the high priority violation identified above, due and payable to the Division within 30 calendar days of the date the final order is filed with the Agency Clerk. DONE AND ENTERED this 28th day of July, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 28th day of July, 2015.
The Issue The issue in this case is whether Respondent violated provisions of the Food Code, and, if so, what penalties should be imposed.
Findings Of Fact At all times relevant hereto, Respondent was licensed as a public food establishment in the State of Florida by the Division. Respondent held license no. 1505960 in the name of China No. 1 (the "Restaurant"), located at 3014 West New Haven Avenue, Melbourne, Florida 32904. The Division is the state agency responsible for the licensing and regulation of public food service establishments pursuant to chapter 509, Florida Statutes (2011).1/ Ms. Schoenly is employed by the Division as a sanitation and safety inspector. In that capacity, she conducts inspections of food service and lodging establishments for compliance with the provisions of chapter 509 and the Food Code. Prior to becoming an inspector for the Division, Ms. Schoenly worked for 17 years with McDonald's restaurants, including two years as a crew person and 15 years in management. Upon taking a position with the Division, Ms. Schoenly received training in the laws and rules utilized for food and lodging inspections. She continues to receive education in this area on a monthly basis. When Ms. Schoenly conducts an inspection of a restaurant, she looks for both critical and non-critical violations. Critical violations are those that will likely lead to food-borne contamination and food-borne illness. A non-critical violation is less likely to lead to food-borne illness or contamination. Ms. Schoenly performs in excess of 700 inspections per year as part of her job. On April 18, 2011, Ms. Schoenly performed a routine inspection of the Restaurant. Routine inspections are performed on a regular basis by the Division. Routine inspections are done without prior notice to the operator or owner of the restaurant to be inspected. During the routine inspection, which commenced at approximately 1:45 p.m., Ms. Schoenly found a number of violations, including two critical violations and several non-critical violations. The Restaurant was provided notice of the violations and was allowed to correct some of them while Mr. Schoenly was still present. Upon completion of the inspection, Mr. Schoenly gave Mr. Ni a copy of the Food Inspection Report she had filled out. The report specified all areas of non-compliance and indicated that a follow-up or call-back inspection would be performed on June 15, 2011, at 8:00 a.m. Unlike the routine inspections, restaurants are given prior notice concerning call-back inspections. On June 15, 2012, Ms. Schoenly, accompanied by Edwin Weimer, another inspector, returned for the call-back inspection. They arrived during the lunch hour, at 12:31 p.m., rather than 8:00 a.m., as set forth on the initial Food Inspection Report. The Restaurant was not open at 8:00 a.m., thus, necessitating a later visit than originally scheduled. During the call-back inspection, Ms. Schoenly found that a number of the violations from the prior visit had been corrected. However, there were still three critical and three non-critical violations extant. The critical violations were: 03A-07-1 A corn starch and water mixture was stored at a temperature of 81º (it had been at 68º during the initial inspection). 08A-28-1 Noodles were stored on the floor in boxes in a dry storage area. 08A-29-1 Egg rolls and broccoli were stored in uncovered containers. 22-22-1 A can opener was badly soiled. The non-critical violations found during the call-back inspection were: 23-07-1 Soiled gaskets in the reach-in cooler; food debris on and under the shelving; and, a heavy grease build-up under the refrigeration unit. 14-47-1 Cutting boards were grooved and pitted. 15-35-1 Heavily soiled cardboard on shelves. As a result of Ms. Schoenly's findings, an Administrative Complaint was issued against the Restaurant. Mr. Ni, owner of the Restaurant, disputes the findings made by Ms. Schoenly and Mr. Weimer. 03A-07-1 (Food Code Rule 3-501.16(A)) Ms. Schoenly found the corn starch mixture to be at unacceptable temperatures. Food should be stored at 41º or lower or 135º or higher. Once food is removed from its controlled temperature environment, it can be stored at room temperature for up to four hours. However, in order for a restaurant to keep food outside its storage area, there must be a written time record posted on the wall clearly delineating how long the food had been outside the temperature-controlled environment. During the initial inspection by Ms. Schoenly, there was no time/temperature control form on the wall at the Restaurant. Ms. Schoenly explained the form to Mr. Ni so he could use it in the future. The Restaurant did have a time/temperature control form posted during the call-back inspection. Mr. Weimer testified that the form was not complete because there was no signature on it. However, Mr. Ni said his signature was on the second page of the report. Mr. Weimer said he did not take the form down off the wall to see if there was a signature on the second page. Ms. Schoenly and Mr. Weimer testified they could not tell how long the food had been out of its protected environment. However, inasmuch as the Restaurant opens at 11:00 a.m., and the inspection was conducted at 12:45 p.m., it is doubtful the corn starch mixture had been out for more than four hours. The Division did not prove by clear and convincing evidence that the Restaurant had violated this standard. 08A-28-1 (Food Code Rule 3-305.11) Ms. Schoenly found dry noodles being stored on the floor of a dry storage area in the Restaurant. The noodles were stored in what Ms. Schoenly described as "a box." The box was not open to the best of her recollection, but she could not specifically remember.2/ Mr. Ni said the noodles were stored in five-gallon buckets that had originally held Kikkoman soy sauce. The soy sauce buckets are waterproof and had lids on them. The buckets were sitting on the floor of the dry storage area, but they were protected from cross-contamination. It is impossible to ascertain from the contradictory evidence whether the noodles were stored in such a fashion as to allow for cross-contamination from other sources. Thus, the Division did not meet its evidentiary burden as to this critical standard. 08A-29-1 (Food Code Rule 3-305.11) Ms. Schoenly found egg rolls and washed broccoli stored in the walk-in cooler without being covered. The egg rolls were in wire baskets, and the broccoli was in a plastic food container called a Cambro, a plastic box. She saw that as a possible means of cross-contamination with other foods or items stored nearby, because "anything can drip on the food." Mr. Ni said the egg rolls were stored in wire baskets on the top shelf in the walk-in cooler so that nothing else would drip on them. The egg rolls were available to re-stock the buffet line during the lunch rush. The broccoli was stored in the case in which it had been delivered to the Restaurant. It is not clear from the evidence exactly where in the walk-in cooler the broccoli was being stored at the time of the inspection. The Division met its burden of proof as to the existence of uncovered egg rolls. However, any potential violation is mitigated by the fact the egg rolls were stored on the top shelf and were being actively removed from the cooler as part of the lunch-time operations. The evidence is not conclusive as to how the broccoli was stored, but Ms. Schoenly's recollection, supported by her notes, indicates it was not stored properly. Mr. Ni did not provide substantive rebuttal to that fact. 22-22-1 (Food Code Rule 4-101.11) The can opener being used by the Restaurant was heavily soiled, thus, creating a hazard for possible food contamination. Mr. Ni said the can opener is old, but that even after he cleaned it, the can opener still looked dirty. The Division met its burden of proof as to this critical standard. 23-07-1 (Food Code Rule 4-101.111) Ms. Schoenly found three potential violations under this portion of the Food Code: Soiled gaskets in the reach-in cooler; food debris on or under the shelving; and heavy grease buildup under the refrigeration unit. She could not remember at what part of the inspection process she saw these violations. Mr. Ni said the gaskets had been cleaned with soapy water and bleach, but because they are old, they do not appear clean. The Division met its burden of proof as to the non-critical standards concerning food debris and heavy grease, but not as to the soiled gaskets. 14-37-1 (Food Code Rule 4-501.12) There was a cutting board used in the Restaurant that was heavily pitted with long, deep grooves in it. Ms. Schoenly found the cutting board to be unacceptable, because it could not be cleaned or sanitized adequately after each use due to the depth of the grooves. Mr. Ni sanded the cutting board between the initial inspection and the call-back inspection to alleviate the problem. At the time of the call-back, Ms. Schoenly found the cutting board to still be in an unacceptable condition. The Division met its burden of proof as to this non-critical standard. 15-35-1 (Food Code Rule 4-101.111) During the initial inspection and again at the call-back, Ms. Schoenly found heavily soiled cardboard on the shelving used for storing items in the Restaurant. The cardboard was an allowable means of covering the shelves, but it would need to be discarded once it became soiled. Mr. Ni said the cardboard was soiled because it had been used that day, but that it was to be discarded that very day. His testimony in that regard is not credible. The Division met its burden of proof as to this non-critical standard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, finding Respondent, No. 1 China, guilty of violating one critical and four non-critical Food Code standards. A fine of $650.00 shall be paid by No. 1 China within 30 days of entry of the final order in this matter. DONE AND ENTERED this 17th day of July, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2012.
