The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is an eating establishment located in Ocala, Florida. Respondent was issued a license as a public food establishment by the Division. Critical violations are those violations that, if not corrected, are most likely to contribute to food-borne illness, cross-contamination, and other environmental hazards. Non-critical violations are those that are not directly related to food-borne illness, but if they continue, are likely to lead to the development of a critical violation. Benjamin J. Bryant is a Sanitation and Safety Specialist employed by the Division. He has been employed in that capacity by the Division for approximately 12 years, and has 26 years of experience as a restaurant manager. He also has received training in laws and rules regarding public food service and lodging. Mr. Bryant performs between 750 to 800 inspections annually. On September 23, 2008, Mr. Bryant performed a routine food service inspection of New York Deli and Bakery. During the inspection, Mr. Bryant prepared and signed an inspection report setting forth several violations he observed during the inspection. On September 23, 2008, Mr. Bryant notified Respondent about the violations and further advised that the violations must be corrected by the next inspection. On May 8, 2009, Mr. Bryant performed another food service inspection of New York Deli and Bakery. During the inspection, Mr. Bryant prepared and signed an inspection report setting forth violations he observed during the inspection. On May 8, 2009, Mr. Bryant notified Respondent about the violations and recommended the issuance of an administrative complaint. During the September 23, 2008, and May 8, 2009, inspections, the most serious violation observed was potentially hazardous foods held at temperatures greater than 41 degrees Fahrenheit. This included roast beef, ham, salami and cheese located in a display cooler at between 57-64 degrees Fahrenheit. This is a critical violation, because potentially hazardous food stored at improper temperatures can lead to food-borne illness. The next most serious violation observed during those inspections was the absence of a food manager certification. This is a critical violation, because the State of Florida requires a certified food manager in the restaurant in order to instruct and observe employees and thereby avoid other violations from occurring. On December 8, 2008, Petitioner and Respondent entered into a "Stipulation and Consent Order" relating to the alleged violations stemming from the September 23, 2008, inspection (and the follow-up inspection held the next day, September 24, 2008). (Petitioner's Exhibit 4) Among the "Stipulated Facts" was the statement that "Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaint. . .". Respondent agreed to pay a fine of $250.00, submit to a post-settlement inspection, and attend a Hospitality Education Program workshop. Also included in the stipulation was the statement that "[E]xecution of this Stipulation will not preclude additional proceedings by the Department for acts or omissions not addressed in the Administrative Complaint attached as Exhibit "A" herein." (emphasis supplied) The stipulated settlement was adopted by Final Order of the Division dated December 24, 2008, and constituted "appropriate settlement of this matter." There is no evidence in this record that Respondent did not comply with the terms of the settlement agreement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Division enter a final order which confirms the violations found during the May 8, 2009, inspection, and impose an administrative penalty in the amount of $1,000.00, to be paid within 30 days of the issuance of the Agency's Final Order. It is further recommended that Petitioner require Ramiro Escobar to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 18th day of August, 2010, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 18th day of August, 2010.
The Issue Should Respondent's public food establishment license be revoked or otherwise penalized upon proof of violations as charged in the February 21, 2000, Administrative Complaint?
Findings Of Fact At all times material, Respondent, A. J. Sports, Inc., d/b/a A.J. Sports, was licensed to operate and did operate a public food service establishment, license number 47-02726-R, located at 1800 West Tennessee Street, Tallahassee, Florida 32304. At all times material, Alex Kerr was an employee of Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants, acting primarily as an inspector of restaurants. At all times material, Peter Newman was an employee of Petitioner as its Sanitation and Safety Administrator, the supervisor of its inspectors of restaurants, and the custodian of records in the district in which Respondent's food establishment is located. On December 9, 1999, Inspector Kerr inspected Respondent's establishment and observed several violations of food service rules, all of which he marked on his food service inspection report of December 9, 1999. On January 7, 2000, Inspector Kerr performed a Call-Back Inspection. At that time, some items had been brought into compliance, but Mr. Kerr observed that Respondent was still in non-compliance for the violations listed in paragraphs 6 through 9 of his December 9, 1999, inspection report, as follows: The Hood Fire Suppression System had last been serviced in January 1999. The Hood Fire Suppression System should have been inspected in July 1999. A spray nozzle at the three-compartment sink was hanging over the waterline, where the sprayer could become contaminated, thereby contaminating food or drinks. Plastic beverage containers (single use items) were stored on the floor in the upstairs bar, a dry storeroom. Single use items are taken directly from their carton and are used without further washing. They can become contaminated if the floor or the box in which they are stored becomes water-logged. Inspector Kerr observed that there was exposed raw wood on top of the beverage shelf in the upstairs bar area. Previously, on August 23, 1999, Peter Newman had performed an inspection of Respondent's establishment. At that time, he also had found that the Fire Suppression System had not been timely serviced.2 Later, on March 20, 2000 and March 23, 2000, Call-Back Inspections were performed by Edwardo Padillo, another inspector under Mr. Newman's supervision. Inspector Padillo found that the Fire Suppression System still had not been serviced as of those dates.3 On April 5, 2000, Inspector Padillo found that the Fire Suppression System had finally been serviced and inspected sometime after March 23, 2000.4
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent in violation of the enumerated statutes and rules and ordering Respondent to pay a single fine in the total amount of $2,000.00. DONE AND ENTERED this 5th day of September, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of September, 2000.
The Issue The issues are whether Respondents are guilty of violating Chapter 509, Florida Statutes, and Rule 61C, Florida Administrative Code, governing operation of a public food service establishment, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the operation of public food service establishments. At all times relevant here, Respondents were licensed to operate Mike's Munchies, a public food service establishment with seating capacity for 38 customers. Respondents operate Mike's Munchies under License Control No. 13-04489R. On August 26-28 and November 18, 1998, Petitioner's inspector visited Respondents' place of business. During these inspections, the inspector observed and documented numerous violations of the Food Code and/or Rule 61C, Florida Administrative Code. The August 26-28 and November 18, 1998, inspections resulted in the issuance of the Administrative Complaint in DOAH Case No. 01-2008. The Administrative Complaint charged Respondent's with violating five provisions of the Food Code and four provisions of the Florida Administrative Code. During the hearing, Petitioner presented clear and convincing evidence that Respondents were guilty of the following violations: (a) The hot dogs in the make table were at 53.2° Fahrenheit; (b) There was no certified food manager; The interior of the upright freezers and freezer compartment of the kitchen refrigerator were dirty; (d) The shelves behind the counter were dirty; (e) The walls, ceiling, floors and equipment were dirty; (f) The interior of the outside storage building was filled with junk and debris; (g) The shelves and storage areas throughout the establishment were cluttered with litter, debris, and non-food service related items; and (h) Two carbon dioxide tanks in the kitchen hallway were unsecured. During the inspections on August 26-28 and November 18, 1998, the inspector observed a dog in the establishment. The dog was not a prohibited animal because it was a "support animal" for Respondents' disabled son. On March 30, 2000, Petitioner's inspector visited Respondent's establishment. During this visit, the inspector observed numerous violations of the Food Code and/or Rule 61C, Florida Administrative Code. The inspector also noted that Mike's Munchies was below the minimum standards of a Florida food service establishment and had been below those standards for several prior inspections. At the conclusion of the March 30, 2000, inspection, the inspector gave Respondents a food service inspection report. The report stated that Respondents had failed to comply with previous inspections, and as a result thereof, Petitioner might issue a notice to show cause why Petitioner should not assess sanctions against Respondents' license. The March 30, 2000, inspection resulted in the issuance of the Administrative Complaint in DOAH Case No. 01-2006. The Administrative Complaint charged Respondents with violating five provisions of the Food Code and two provisions of the Florida Administrative Code. During the hearing, Petitioner presented clear and convincing evidence that Respondents were guilty of the following violations: (a) The interior of the upright freezer and the upright refrigerator was dirty and moldy; (b) The shelf under the counter was dirty, littered with paper, dirty clothing and junk; (c) The floors of the dishwashing room and the kitchen were dirty; (d) The grounds around the rear of the building were littered with debris; and (e) The shelves, worktable and corridor outside the walk-in cooler were dirty and littered with junk. On March 30, 2000, the dog inside the establishment was not a prohibited animal because it was a "support animal" for Respondents' disabled son. Additionally, the outside mop sink was not without the required water pressure because it had an inside turn-on value that provided water pressure to the sink on an as needed basis. On June 14, 2000, Petitioner's inspector performed a routine inspection at Respondents' place of business. During this visit, the inspector observed numerous violations of the Food Code and/or Rule 61C, Florida Administrative Code. On the June 14, 2000, food service inspection report, the inspector recommended that Petitioner issue an emergency order based upon a severe and immediate threat to the public. The June 14, 2000, inspection resulted in the issuance of the Administrative Complaint in DOAH Case No. 01-2007. The Administrative Complaint charged Respondents with violating one provision of the Food Code. During the hearing, Petitioner proved by clear and convincing evidence that all surfaces in Respondents' establishment were dirty to sight and touch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order imposing administrative fines in the amount of $1,200 in DOAH Case No. 01-2006; $500 in DOAH Case No. 01-2007; and $8,000 in DOAH Case No. 01-2008, and suspending Respondents' license until they begin making monthly payments on said fines in a minimum amount as determined by Petitioner. DONE AND ENTERED this 7th day of September, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2001. COPIES FURNISHED: Charles McMahan Sandra McMahan 5324 Thomas Drive Panama City, Florida 32408 Claudia J. Pamperin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2002 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether the Respondent, Rosarios II Italian Restaurant (Respondent), committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2008). At all times material to the allegations of this case, the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (See Petitioner’s Exhibit 1). The Respondent's license number is 1617840. In his capacity as an inspector and as a sanitation and safety supervisor for the Petitioner, Sean Grofvenor visited the Respondent’s place of business (12691 West Sunrise Boulevard, Sunrise, Florida) on November 13, 2007. On that date, the violations, more fully described in the inspection report of that date, (Petitioner's Exhibit 2) warranted the closure or emergency order of suspension of license for the establishment. The Respondent was made aware of the violations and the Petitioner announced that it would come back in 24 hours to reassess the closure. The closure was deemed appropriate to protect the public. The 24-hour call-back inspection was provided to reassess the "critical" problems depicted in the inspection report. The November 13, 2007, inspection report described the following "critical" violations: Live and dead roaches present at the establishment; Ready-to-eat food prepared on site and held more than 24 hours without proper date and time tagging; A hand-wash sink lacked proper drying provisions by the dish machine; Uncovered food was discovered in a holding unit, the dry storage area, and in a walk-in cooler; and Soiled gaskets at numerous stations within the food preparation areas. After the 24-hour call-back inspection was completed, the Respondent was allowed to reopen but was advised that a second follow up inspection would be performed. The Respondent was given until January 14, 2008, to correct all of the violations previously identified and described in the inspection report of November 13, 2007. Robert Becker is a sanitation and safety specialist employed by the Department. He accompanied Mr. Grofvenor on the November 13, 2007, inspection of the Respondent's establishment and assisted in the compilation of the violations noted in the first inspection report. Inspector Becker performed a call-back inspection of the Respondent's establishment on January 17, 2008. This final call-back inspection report (Petitioner's Exhibit 3) described the violations that remained uncorrected. The Department uses the terms "critical" and "non- critical" to describe violations of the "Food Code." The "Food Code" as it is used in this record, refers to paragraph 1- 201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C- The Food Code is also available through the U. S. Food and Drug Administration Internet website. "Critical" violations of the Food Code are conditions that, if not corrected, could lead to food contamination, food borne illness, or environmental degradation. A "non-critical" violation relates to a preventative measure or practice to keep the environmental conditions of food preparation and service in proper order. If not corrected, a "non-critical" violation has the potential to become a "critical" situation. When Inspector Becker returned to the Respondent's establishment on January 17, 2008, the critical violations described in paragraph 4 were not fully corrected. For example, Inspector Becker observed roach activity within the kitchen of the Respondent's establishment. Roach activity is considered a critical violation as roaches are a direct contributor to the contamination of food and the spread of bacteria and disease. Inspector Becker documented the number and location for each roach discovered at the site. Additionally, Inspector Becker observed unmarked ready-to-eat food that was not appropriately tagged. Date marking ready-to-eat food is necessary to prevent spoilage and the growth of bacteria. Foods may only be held at designated temperatures and within certain conditions for a limited time period. If left unmarked, it is impossible to discern whether the guidelines have been met. Third, Inspector Becker found the hand wash sink lacked proper drying provisions. Although a repeat violation from the previous inspection, the Respondent corrected this violation on site. The fourth critical violation related to uncovered food in holding situations. Food must be properly covered to prevent exposure to contamination. Whether in a walk-in cooler or other station, food must be covered. Sauces and pasta are considered "food." The final critical violation was soiled gaskets on several kitchen appliances or preparation surfaces. Cooler gaskets at the prep reach-in cooler, cooler gaskets at the pizza station, and gaskets near a fryer were dirty or soiled. When gaskets are soiled the mere opening and closing of the device can spread filth and expose food to contaminants. Gaskets must be kept clean and free of all potential contaminants. In addition to the foregoing, there were several non- critical violations of a preventative nature that the Respondent failed to correct. These violations could easily be corrected and did not pose an immediate threat to the public. For example, a restaurant employee without hair restraint is easily corrected. In testifying for the Respondent, Mr. Pierre Louis maintained that while the inspection report of November 13, 2007, was correct, he had since made the corrections necessary to bring the restaurant into compliance. Those corrections were not, however, completed before January 17, 2008. Mr. Pierre Louis described difficulty finding replacement gaskets for the equipment. The inference being that the gaskets could not be cleaned but had to be replaced. Mr. Pierre Louis did not advise the Department of the difficulty in making the replacements until the time of hearing. The Respondent was given over 60 days within which to make the necessary corrections. The Respondent did not correct the roach problem between November 13, 2007, and January 17, 2008, despite its representation that it had hired an extermination company to address the problem. Roach presence is a critical violation that cannot go unattended or inadequately treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against the Respondent in the amount of $3,500.00. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper sanitary measures are adopted at the restaurant. DONE AND ENTERED this 26th day of September, 2008, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2008. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cheri-ann Granston Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ernst Pierre Louis Rosarios II Italian Restaurant 12691 West Sunrise Boulevard Sunrise, Florida 33323
The Issue Whether the Respondent, Michelle's Café, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating public food service establishments operating within the State of Florida. See §§ 509.032 and 509.261, Florida Statutes (2007). At all times material to the allegations of this case the Respondent, Michele’s Café, was a licensed public food establishment governed by the provisions of Chapter 509, Florida Statutes (2006). The Respondent’s address of record is 299 East Broward Boulevard, Fort Lauderdale, Florida. On July 31, 2006, in his capacity as a trained inspector for the Petitioner, Mr. Torres visited the Respondent’s place of business in order to conduct an inspection. Mr. Torres performs between 800 to 1000 inspections per year of licensed food establishments to assure that such businesses are in compliance with all food service rules and regulations. At the time of the inspection, Jessica Sanchez, the manager on duty, represented the Respondent. The inspection report for July 31, 2006, identified several critical violations that needed to be corrected. Mr. Torres notified Mr. Villeda, as the owner and/or operator of the licensed entity, of the inspection results. Mr. Villeda later identified himself as the manager of the café. Critical violations are items that must be corrected because, if not corrected, they pose a threat for imminent food- borne illness, contamination, or environmental hazard. Non- critical violations are less serious but can also lead to a potential health hazard. As to each type of violation, the Petitioner expects the licensee to take appropriate action to correct the cited deficiency. Mr. Torres notified Mr. Villeda of the findings of his inspection of July 31, 2006, because he anticipated that the violations would be corrected in advance of a “call back” inspection. The “call back” inspection was performed on September 18, 2006. This inspection was also performed by Mr. Torres and disclosed the following uncorrected deficiencies (these had been identified to the Respondent in the July 31, 2006 inspection report): There was no thermometer to measure the temperature of food products. This is a critical violation. Food products must be stored and maintained at an acceptable temperature to prevent bacteria from growing. Without a thermometer there is no verifiable system to confirm that acceptable temperatures are being maintained. Additionally, to retain prepared food on-site for sale or use, the prepared food item must be labeled to detail the date of its initial preparation. Ready to eat food can be retained for a maximum of seven days. After that period, there is a presumption that the item may not be safely consumed. Consequently, all prepared food must be clearly labeled to assure it is disposed of at the appropriate time. Because the sale of out-of-date food presents a health hazard, the labeling requirement is considered critical. The failure to follow the guideline is, therefore, considered a critical violation. Sanitizing chemicals used in the cleansing of dishes or food service preparation equipment must be tested to assure a proper level is utilized. The sanitizing chemicals may be toxic, therefore too much can lead to the contamination of the food service item and too little may fail to sanitize and kill bacteria. Accordingly, when used in conjunction with a three-compartment sink or dish machine, a chemical testing kit allows the user to easily verify that the amount of sanitizing chemical is correct. The failure to have and use a test kit is considered a critical violation as the improper use of chemicals may pose a public health hazard. The Respondent did not have the chemical kit to measure the product being used at its location. Food dispensing equipment, such as soda machines, must be kept clean. A build-up of slime on the soda dispenser nozzle poses a threat as mold can form and be dispensed with the soda to the user’s beverage. As illness can result, this deficiency is also considered a critical violation. In this regard the Respondent's soda machine had a build-up of slime on its dispensing nozzle. Food containers must also be kept clean. The interior of Respondent’s reach-in cooler had accumulated a residue of food or soil. As this could contaminate food placed in the cooler, this deficiency is also considered critical. Similarly, food contact surfaces must also be kept smooth and easily cleanable. In this regard, the Respondent’s use of ripped or worn tin foil to cover a shelf was not appropriate. As to each of the deficiencies noted above, the Respondent failed or otherwise refused to timely correct the item. Mr. Villeda represented that the violations were corrected by the last week of September 2006. Implicit in that representation is the admission that such violations were not corrected by September 18, 2006, the date of the “call back” inspection. The Respondent does not have a mop sink. The Respondent’s representation that the owners of the building have a mop sink elsewhere (that is used for the licensed area) has been deemed plausible. If a building janitor uses a mop sink located elsewhere to clean up spills (as was represented), the absence of a mop sink within the licensed area does not demonstrate that no mop sink existed. In this regard the Respondent has been given the benefit of the doubt. The Respondent did not explain why the deficiencies were not corrected before the “call back” inspection. It is accepted that the corrections were later made and the Respondent has been given consideration of this effort in the penalty recommended in this case.
Recommendation Based upon 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, impose an administrative fine in the amount of $1000.00 against the Respondent, Michelle’s Café. S DONE AND ENTERED this 21st day of November, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2007. COPIES FURNISHED: Jesus Villeda Michelle's Cafe 13161 Northwest 11th Court Sunrise, Florida 33323 Joshua B. Moye, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792
