The Issue The issue in this case is whether on October 23, 2013, and May 6, 2014, 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 Amended Administrative Complaint, and if so, what penalty is appropriate.
Findings Of Fact The 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. At all times material to this case, Respondent was licensed as a public food service establishment, operating a restaurant located at 1658 North Federal Highway, Boca Raton, and holding license number 6020868. Ms. Tara Palmer has been employed by the Division for almost five years. She is presently a Senior Sanitation and Safety Specialist with the Division. Prior to her employment with the Division she was employed in the food industry for approximately 20 years. She has had training in sanitation and inspection, standardized training regarding the Food Code, on- the-job training, and continual monthly education. She performs approximately 1000 inspections yearly. On October 23, 2013, Ms. Palmer conducted a food service inspection on Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on October 23, 2013, Respondent's Roma and Alfredo sauces had been prepared the previous day, placed in tightly covered 22 quart gallon containers, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the sauces were 52°F. Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3-501.15. The improper cooling method deficiency was deemed a violation that required further review; however, same was not an immediate threat to the public. Respondent was notified that the observed violation must be corrected by December 24, 2013. On January 8, 2014, Ms. Palmer performed a "call-back" inspection. On that date, the improper cooling deficiency observed on October 23, 2014, had been corrected. On May 6, 2014, Ms. Palmer conducted a food service inspection of Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on May 6, 2014, Respondent's spicy and Pomodoro sauces had been prepared the previous day, placed in a tightly covered 22-quart gallon container, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the spicy sauce was 48°F at the start of the inspection and 47.5°F at the end of the inspection. The Pomodoro sauce was found to be 48°F at the start of the inspection and 47.3°F at the end of inspection. Again, Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3- 501.15. No evidence was introduced to indicate that Respondent had any previous violations. No evidence was introduced to refute the above-noted deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Italio East Boca, LLC, d/b/a Italio, in violation of two intermediate violations, and imposing a fine of $400, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of October, 2014.
The Issue The issue is whether Respondent is guilty of the violation described in the Administrative Complaint, and if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509. By rule, it has incorporated by reference the regulations in the federal Food Code. These regulations apply to all public food service establishments. See Fla. Admin. Code R. 61C-1.001(14). Respondent operates a public restaurant (using its corporate name) located at 12318 University Mall Court, Tampa, Florida, and is subject to Petitioner's regulatory jurisdiction. It holds license number NOS3917320 (Permanent Food Service). Rule 61C-1.005(5)(a)-(c) classifies violations of the Food Code as either "high priority," "intermediate," or "basic," essentially reflecting the level of threat to public health posed by the deficiency. A high priority violation is one that poses a direct or significant threat to public health. Id. This type of violation is at issue in this case. Around 12:24 p.m. on June 11, 2014, Ashley Herrmann, a trained and experienced sanitation and safety specialist employed by Petitioner, performed a routine inspection of Respondent's restaurant, during which Ms. Herrmann observed various violations of the Food Code, including a "high priority" violation. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food must be maintained at a temperature of 41° Fahrenheit or less.2 See rule 3-501.16(A)(2)(a), Food Code. A violation of this regulation is classified a high priority violation because food maintained above that temperature is a major contributor to foodborne illnesses. Ms. Herrmann observed several potentially hazardous food items in the walk-in cooler, including (a) raw meat/ poultry, (b) cooked fruits/vegetables, and (c) cheese/milk/ creamer/other dairy products, that were maintained at a temperature greater than 41° Fahrenheit. See Ex. 2. At the conclusion of her inspection, Ms. Herrmann prepared a written report documenting the Food Code violations observed by her. A copy of the inspection report was given to Javari Moore, an employee who was present at that time, and the violations were explained to him. Also, he was told that the violations must be corrected by 10:30 a.m. the following day, June 12, 2014, and that a call-back inspection would be performed at that time to verify that the violations had been corrected. Around 10:30 a.m. on June 12, 2014, Ms. Herrmann performed a call-back inspection of Respondent's premises. While some violations had been corrected, she observed that the high priority Food Code violations observed during the routine inspection on June 11, 2014, had not been corrected. See Ex. 3. Before leaving, Ms. Herrmann provided a copy of the inspection report to Mr. Moore and discussed the violations with him. The findings contained in the inspection reports were used in the preparation of an Administrative Complaint issued against Respondent. Other than stating that no food had been taken out of the walk-in cooler that morning, Mr. Moore gave no further explanation for the high priority violation.3 There is no evidence that Respondent has been found guilty of a prior offense of this nature.
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 finding that Respondent is guilty of one high priority violation, and imposing a fine of $250.00. Such fine shall be due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 21st day of October, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of October, 2014.
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
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 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 regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004). The Respondent is a restaurant located at 1560 North State Road 436, Winter Park, Florida, holding Permanent Food Service license number 5809302. Kaliopi Chrissanthidid owns and operates the restaurant. On September 15, 2004, Jim Thomason, a Senior Sanitation and Safety Specialist representing the Petitioner, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations identified by Mr. Thomason were noted in a written Food Service Inspection Report, a copy of which was provided to the person in charge of the restaurant on the date of the inspection. Mr. Thomason's inspection revealed both critical and non-critical code violations. Critical food safety code violations are those which pose serious public health risk due to potential contamination and subsequent transmission of food- borne illness. Violations that do not pose a serious health risk to the public are identified as non-critical. On September 15, 2004, Mr. Thomason identified several critical violations related to food storage equipment, including a reach-in cooler and a "make line" cooler that were incapable of maintaining proper temperatures. Additionally, Mr. Thomason observed chicken and calimari being improperly thawed in a bucket of water. Mr. Thomason also observed a cook handling ready-to-eat salad materials with his bare hands. Food storage coolers must be capable of maintaining a temperature of 41 degrees or below to prevent contamination. The Respondent's reach-in cooler and make line cooler were incapable of maintaining proper temperatures. Mr. Thomason determined that pre-cooked lamb was being held at 60 degrees, precooked beef was held at 58 degrees, lasagna was held at 58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees. Mr. Thomason estimated that the food items had been maintained at an improper temperature for well in excess of four hours. Improper storage temperatures increase the potential for contamination and transmission of food-borne illness to the public. Due to the issues with the food storage equipment, a Stop Sale Order was issued on September 15, 2004, directing the Respondent to remove the pre-cooked lamb and beef, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration. On September 15, Mr. Thomason identified non-critical violations including: missing hand-washing signs; an open trash receptacle in the women's restroom; a torn screen and missing automatic closing device in a backdoor; the lack of a posted license; the lack of a certified food manager; and the lack of documentation related to employee food safety training. According to the inspection report, a re-inspection was scheduled for September 16, 2004. On September 20, 2004, Mr. Thomason re-inspected the Respondent. Although many of the items cited in the September 15 inspection report had been corrected, the faulty food storage equipment had not been repaired and was still not capable of maintaining proper food storage temperatures. Mr. Thomason determined that pre-cooked lamb was being held at 60 degrees, meat pies were being held at 57 degrees, lasagna was held at 58 degrees, rice was held at 54 degrees, and feta cheese was being held at 86 degrees. Mr. Thomason issued another Stop Sale Order, directing that the Respondent remove the precooked lamb, meat pies, lasagna, rice, and feta cheese from sale. The Stop Sale Order stated that the items constituted an immediate danger to public safety or welfare due to improper refrigeration. Mr. Thomason also referred the critical food storage violations to his supervisors with the recommendation that an Administrative Complaint be filed against the Respondent. On October 18, 2004, Mr. Thomason re-inspected the Respondent at which point, according to the Callback Inspection Report, the food storage and refrigeration violations had been corrected. The only item remaining for repair was the automatic closing device on the backdoor. At the hearing, the Respondent testified that the restaurant had been closed during the month of August, and that no food had been stored during that time. During August 2004, Hurricane Charley came through Central Florida. The Respondent asserted that the restaurant equipment was damaged during the storm, and that the Respondent was unaware of the damage until several weeks after the restaurant reopened. The Respondent testified that repairs to refrigeration equipment were made, but that the coolant was quickly leaking out. Eventually all of the refrigerated food storage equipment was replaced.
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 $1,000 against the Respondent, and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 12th day of April, 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 12th day of April, 2006. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Kaliopi Chrissanthidid Greek Flame Taverna 1560 North State Road 436 Winter Park, Florida 32792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geoff Luebkemann, 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 case is whether on April 5 and October 18, 2011, and on February 28, 2012, Respondent was in 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, and if not, 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. Mr. Douglas Peterson has been employed as a Sanitation and Safety Specialist with the Division for five and one-half years. He previously worked in the restaurant industry for over 21 years, including eight years as a kitchen manager and five years as a restaurant assistant manager. He has had training, including monthly in-house training and field training, in food inspection. On average, he conducts about five safety and sanitation inspections of food-service establishments per day, and about 1000 inspections per year. China King is a licensed permanent public food-service establishment operating at 4941 East Busch Boulevard, Suite 120, in Tampa, Florida. The owner of China King, Mr. Chi Kin Chan, speaks very little English. Representing the restaurant was Mr. Chan’s daughter, Ms. Man Chan, who assists her father with the restaurant. Under all of the circumstances, including the facts that Ms. Chan helps operate the restaurant, demonstrated basic knowledge of applicable statutes and rules, and demonstrated her ability to capably and responsibly represent Respondent, Ms. Chan was accepted as a Qualified Representative. China King was inspected by Mr. Peterson on August 25, 2010, and October 26, 2010. The Administrative Complaint alleged violations based upon these inspections, and testimony and exhibits as to these violations were offered at hearing. However, an earlier Administrative Complaint relating to these inspections has already been settled, as discussed below. The Stipulation and Consent Order in the earlier case settled any violations based upon these inspections, and no purpose is served by delineating the details of those inspections here. On April 5, 2011, Inspector Peterson conducted another food service inspection on China King. Inspector Peterson 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. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the April inspection, Mr. Peterson observed that China King had ready-to-eat, potentially hazardous food prepared on-site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, and noted this on his report. The Division has determined that lack of proper date marking 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. Peterson also observed during the April inspection that China King was storing food on the floor in the cooks’ line and in the preparation area, and noted this on his report. The Division has determined that storing food on the floor 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. During the April inspection, Mr. Peterson observed the improper use of a plastic food container or other container with no handle being used to scoop or dispense food that was not ready-to-eat, and noted this on his report. The Division has determined that using containers without handles to scoop or dispense food fails to minimize food contact with bare hands, and poses a significant threat to the public health, safety, or welfare. The Division has identified this as a critical violation on DBPR Form HR-5022-015. On October 18, 2011, Mr. Peterson conducted another inspection of China King. Inspector Peterson again prepared an inspection report on DBPR Form HR 5022-015 using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the October inspection, Mr. Peterson again observed ready-to-eat, potentially hazardous food prepared on- site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, including egg rolls, cooked chicken, pork, and shrimp. He recorded this information in his report, along with a notation that it was a repeat violation. Mr. Peterson also observed food stored on the floor in the walk-in during his October inspection. He recorded this, noting that it was a repeat violation. During the October inspection, Mr. Peterson observed the improper use of a bowl or plastic food container without a handle as a scoop to dispense non ready-to-eat foods such as flour and starch, as well as ready-to-eat foods such as salt and sugar. He noted this in his report, along with a notation that this was corrected on-site. Mr. Peterson also observed an employee with no hair restraint during the October inspection. He noted this in his report along with the fact that it was corrected while he was on-site. On February 28, 2012, Mr. Peterson conducted a stipulation call-back inspection, as well as a full inspection of the China King. A stipulation call-back inspection is an inspection that is required as part of a stipulation which is conducted for the limited purpose of determining whether specific violations noted earlier have been corrected. Inspector Peterson prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on February 28, 2012, using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the reports on behalf of China King. On February 28, 2012, Mr. Peterson again observed that ready-to-eat, potentially hazardous food that had been prepared on-site and held more than 24 hours had not been date-marked. He noted this in his reports. Mr. Peterson again observed food stored on the floor in the walk-in and cooks’ line during his February inspection and made note of this in his reports. Mr. Peterson again observed a can without a handle being used to scoop rice on February, 28, 2012, as was noted in his reports. Mr. Peterson also observed an employee without a hair restraint during his February inspection, noting this in his reports. In response to questioning from Respondent at hearing, Inspector Peterson stated that he was familiar with the description of the inspection process set out on the Division of Hotels and Restaurants’ website. Inspector Peterson was aware that these procedures state that an inspector will invite the manager to accompany him on the inspection walk-through, and that the inspector will go over each item on the inspection report. Mr. Peterson testified that at each inspection he advised persons at the restaurant of the violations and the need to correct them. Mr. Chi Kin Chan, owner of China King, testified that Mr. Peterson did show his badge when he conducted the inspection on February 28, 2012, although he did not announce who he was. Mr. Chan testified that Mr. Peterson just went through the restaurant on his own and did not invite Mr. Chan or anyone else from the restaurant to accompany him on his inspection. Mr. Chan testified that Mr. Peterson then just went to the front of the restaurant and prepared his report without discussing any of the alleged violations with Mr. Chan or operators of the restaurant. Mr. Taoso Tevega is engaged to be married to Ms. Man Chan, and so is the prospective son-in-law of Mr. Chan. Mr. Tevega occasionally assists the Chan family with the restaurant, but does not receive any paycheck from China King. He works in the receiving department of Advance Auto Parts. Mr. Tevega was present at China King during the February 28, 2012, inspection. Mr. Tevega testified that on February 28, 2012, Inspector Peterson just showed up in the back of China King without identifying himself and that he did not ask anyone to accompany him as he went about the restaurant conducting his inspection. Mr. Tevega testified that Mr. Peterson did not discuss or explain the violations to anyone, but just had Ms. Chan sign the report. Mr. Peterson testified that he was in business casual attire, with his employee identification tag secured from a lanyard worn around his neck, and that he presented identification before beginning each inspection. Mr. Peterson identified himself by displaying his badge before and during the February 28, 2012, inspection, as testified to by Mr. Chan and Mr. Peterson. Mr. Peterson did not invite anyone to accompany him as he conducted the inspection on February 28, 2012, as Mr. Chan and Mr. Tevega testified. Mr. Peterson advised operators at the restaurant of the violations and the need to correct them, as he testified. The Division issued an Administrative Complaint against China King for the above violations on or about March 7, 2012. Additional evidence introduced at hearing showed that China King had a previous disciplinary Final Order entered within 24 months of the Administrative Complaint issued in this case. That Stipulation and Consent Order was signed by China King Manager Ko Chan on January 13, 2012, and was filed on January 24, 2012. In the Order, China King agreed to pay a fine of $900.00, but neither admitted nor denied the allegations of fact contained in the Administrative Complaint. Some of those allegations would have constituted critical violations. The January 24, 2012, Stipulation and Consent Order was in settlement of an Administrative Complaint issued on November 8, 2010. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on August 25, 2010, and October 26, 2010, two of the inspections for which testimony and documentary evidence was submitted in this case, but which are discussed here only for penalty purposes.
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 China King in violation of three critical violations and one non-critical violation and imposing a fine of $2,625, to be paid within 30 calendar days of the filing of the Final Order with the Agency Clerk. DONE AND ENTERED this 11th day of December, 2012, 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 11th day of December, 2012.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated April 25, 2008, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact At all times material hereto, Respondent was licensed as a public food service establishment in the State of Florida by the Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent's business address is "Szechuan Panda," 3830 Southwest 13th Street, Gainesville, Florida 32608. Critical violations are violations that, if not corrected, can have a direct impact on cross-contamination and food-borne illness. This, in turn, causes an immediate threat to public health. Non-critical violations are violations that, if not corrected, can have an impact on the creation of critical violations. On December 19, 2007, Inspector Daniel Fulton performed a Complaint Food Service Inspection at Szechuan Panda. During that inspection, Inspector Fulton prepared and signed an inspection report setting forth violations he encountered during the inspection. From the time it was prepared until the date of the hearing, the inspection report has not been altered. On December 19, 2007, Mr. Fulton observed live roaches in Szechuan Panda in both the food preparation and food service areas. Inspector Fulton cited this as a critical violation because live roaches carry many diseases. Those diseases can be spread when the roaches crawl over clean or unclean food preparation equipment in their search for food and accordingly contaminate food preparation surfaces. On December 19, 2007, food was being stored at Szechuan Panda directly on the floor. When the terminology "directly on the floor" is used, it includes any food that could be contaminated by ordinary mopping. That is, food stored in a container which is not impervious to water, such as a cardboard container, or a plastic container which does not have a top and the sides of which are so low that mopping might contaminate its contents. On December 19, 2007, improper utensils were being used to scoop out food from food containers. According to Mr. Fulton, this is a critical violation because without the usage of a proper utensil with a handle, cross-contamination can occur when the food product touches an employee’s hand. On December 19, 2007, the carbon dioxide/helium tanks in Szechuan Panda were not adequately secured. According to Mr. Fulton, this is a violation because if the tanks become unsecured all of the pressure inside can cause the tanks to shoot off uncontrollably in an elliptical or variable pattern so as to damage anyone or anything with which they come in contact. On December 19, 2007, grease was built-up on non-food contact surfaces. Mr. Fulton cited this as a violation because such debris is enticing for consumption by any present rodents and/or roaches. Rodents and roaches carry diseases that can lead to cross contamination. On March 5, 2008, Mr. Fulton prepared a Complaint Inspection Report at Szechuan Panda in which some of the previously noted violations had not been corrected. From the time it was prepared until the date of hearing the report was not altered. On March 5, 2008, Mr. Fulton again observed live roaches in Szechuan Panda, in both the food preparation and food service areas. He cited this as a critical violation for the reasons previously stated. On March 5, 2008, dead roaches were observed throughout the business. Mr. Fulton cited this as a critical violation because live roaches will eat the carcasses of dead roaches, causing further cross-contamination, and because the presence of dead roaches also shows a general lack of cleanliness and due care. On March 5, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. According to Mr. Fulton, this is a critical violation because bacteria grows quicker, the closer food is held to 98 degrees Fahrenheit. Also on March 5, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. Mr. Fulton classified this as a critical violation because any bacteria present on the food will grow, once the temperature drops below 135 degrees Fahrenheit. On March 5, 2008, foods in both the dining area and food storage areas at Szechuan Panda were not properly covered. This was classified as a critical violation because cross- contamination can occur by way of any bacteria present being easily transferable to the exposed food. On March 5, 2008, food also was being stored directly on the floor as previously described. On March 5, 2008, improper utensils were again being used to scoop out food from food containers. Mr. Fulton considered this a critical violation for the reasons previously stated. On March 5, 2008, food contact services were encrusted with grease, and soil deposits were present in food containers. Mr. Fulton listed this as a critical violation because an unidentified slime growing within a food container poses a health risk that can possibly cross-contaminate other foods. On March 5, 2008, in-use utensils for non-potentially hazardous foods were not being stored in a clean, protective place. Mr. Fulton considered this a violation because any harmful debris present on the unit being used for storage can become stuck on the utensil. On March 5, 2008, the carbon dioxide helium tanks still were not adequately secured. This was listed as a violation for the reasons previously stated. On March 5, 2008, grease was built up on non-food contact surfaces. This was listed as a violation for the reasons previously stated. On March 5, 2008, a black substance was present on the wall around the dish-washing area. This was listed as a violation because the substance observed appeared mold-like, thus showing a lack of cleanliness. On March 6, 2008, Inspector Fulton prepared a call- back inspection report at Szechuan Panda noting that some of the violations remained uncorrected. From the time it was prepared until the date of the hearing, the call-back report has not been altered. On March 6, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was noted as a critical violation for the reasons previously stated. On March 6, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was noted as a critical violation for the reasons previously stated. On March 6, 2008, foods in both the dining area and food storage area of Szechuan Panda were not properly covered, and this was listed as a critical violation for the reasons previously stated. On March 6, 2008, a black substance was present on the wall around the dish-washing area. This was listed as a violation for the reasons previously stated. On March 24, 2008, Mr. Fulton prepared a complaint inspection report at Szechuan Panda in which some of the violations still were not corrected. From the time it was prepared until the date of the hearing, the report has not been altered. On March 24, 2008, dead roaches were observed throughout the business. This was listed as a critical violation for the reasons previously stated. Although some dead roaches may be evidence of attempts to exterminate all of a roach infestation as testified-to by Respondent, the presence of dead roaches also shows a general lack of cleanliness and due care. On March 24, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, foods in both the dining area and food storage area of Szechuan Panda were not properly covered. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, food was still being stored directly on the floor. On March 24, 2008, improper utensils were being used to scoop out food from food containers, This was listed as a critical violation for the reasons previously stated. On March 24, 2008, food contact surfaces were encrusted with grease, and soil deposits were present in food containers. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, in-use utensils for non-potentially hazardous foods were not being stored in a clean, protective place. This was listed as a violation for the reasons previously stated. On March 30, 2008, Mr. Fulton prepared a call-back inspection report at Szechuan Panda in which some of the previous violations were not corrected. From the time it was prepared until the date of the hearing the call-back report has not been altered. On March 30, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, foods in both the dining area and food storage areas were not properly covered. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, food contact surfaces were encrusted with grease, and soil deposits were present in food containers. This was listed as a critical violation for the reasons previously stated. As to most violations described by Mr. Fulton, Respondent Kang only protested that Chinese cooking was not conducive to meeting the regulations. He also apparently was not present when each of the foregoing inspections was made, so his testimony as to why certain foods were above or below the permissible temperatures; were stored on the floor; or otherwise met standards is not persuasive. Mr. Kang's testimony with regard to his quest for reputable and effective exterminators and his contracts with successive exterminators is credible. The area being largely clear of roaches after he hired a new exterminator is also noted. However, even giving Respondent all due credit for correcting certain inspection violations by call-back or subsequent inspection dates, his testimony as a whole does not evoke confidence in the cleanliness of the licensed establishment. Particularly, Mr. Kang’s defenses that "live roaches came with purchased goods or were quickly killed" by the pest control company, and that dead roaches are swept out at the end of each day but there are more roaches when the restaurant opens the following morning, do not help his situation much. Most troubling is that Mr. Kang described a procedure whereby, although the restaurant is cleaned at the conclusion of each serving day, dead roaches are not swept out the following morning but are allowed to remain where they lie until the restaurant is cleaned entirely at the end of the second work day. Likewise, Mr. Kang's testimony also indicates his lack of understanding of the Department's requirements for maintaining "safe" food temperatures. Mr. Fulton explained that most buffets use time and temperature for public health control, but he further testified that, per the regulations he goes by, a restaurateur may keep foods "out of temperature" only up to four hours, and to legitimately do so, pursuant to the Food Code, the restaurateur must write a statement explaining the precautions he has taken, and further state therein that if his food “out of temperature” is not sold within a four-hour period, it will be discarded. Then, with the foregoing statement displayed, that restaurateur must maintain a record with his foregoing posted declaration, on which he keeps track of each time food is taken "off temperature," and each time food is put "on temperature." Respondent posts no such declaration or record. Mr. Kang’s assertion that some of his prior inspection troubles were caused by disgruntled former employees has been considered, as has been his living in another city far from the location of his restaurant, so as to care for his disabled wife. However, his wife’s acute care situation occurred four or five years ago and none of his employee problems seem to be current. In any case, none of these concerns excuse a licensee from meeting the applicable statutory and rule requirements.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking Respondent’s Hotels and Restaurant license, effective the first Monday, after 30 days from the date the final order is filed with the Agency Clerk of the Department of Business and Professional Regulation, Division of Hotels and Restaurants. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. S 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 19th day of November, 2008.
Findings Of Fact The Parties Petitioner, Richard J. Campbell, d/b/a Granny's Donut Shop, was, at all times material hereto, engaged in the business of manufacturing, processing, packing, holding or selling food at retail. Petitioner held food permit number 68877 issued by the Department of Agriculture and Consumer Services (Department), for the premises located at 306 Northeast Eight Street, Homestead, Florida. The Department is charged with the administration and enforcement of Chapter 500, Florida Statutes, including the rules promulgated thereunder, relating to food safety and the selling of food to the consuming public. The Violations Department food safety inspectors conducted food safety inspections at Granny's Donut Shop on December 12, 1994, December 27, 1994, and January 12, 1995. On each of the three inspections, Granny's Donut Shop received an overall rating of "poor." These ratings resulted from the fact that on each of the three inspections the inspector observed multiple unsanitary conditions that constituted violations of applicable statutory and rule provisions; however, most of the violations were not critical violations. The Department's initial inspection of December 9, 1994, resulted in an overall rating of "poor" based on a finding of 16 sanitary violations; however, only one violation, the presence of insect activity, was a critical violation. The Department reinspection of December 27, 1994, again resulted in an overall rating of "poor" based on a finding of 20 sanitary violations. Again, only one violation, the storage of toxic items (cleaning supplies) on a shelf with food products, was a critical item, and the previous critical violation had been corrected. While not critical, approximately seven of the violations noted on the first inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, some soiled linen was stored with food, and the coolers were dirty. The Department's reinspection of January 12, 1995, again resulted in an overall rating of "poor" based on a finding of 18 sanitary violations; however, only one violation, the storage of toxic items (cleaning supplies) above a three-compartment sink, was noted as a critical item, and the previous critical violation had been corrected. Again, while not critical, approximately seven of the violations noted on the previous inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, the wall over the handwashing sink had holes in it, and some soiled linen was stored on a work table. Finally, during the course of the January 12, 1995, inspection, the Department issued a stop use order for a mixer that was found "dirty with old product residue [and] build-up on both food [and] non-food contact surfaces," which it deemed an immediate serious danger to the public health. The Penalty At hearing, the Department offered proof that it is its policy to recommend an administrative fine against an establishment which has received two "poor" ratings in a row and on the third inspection does not achieve an improved rating of "fair" or "good." The Department further observed that under the provisions of Section 500.121(1), Florida Statutes, it is authorized to impose an administrative fine not excededing $5,000 against a food establishment that has violated Chapter 500, Florida Statutes; however, the Department did not offer any proof as to what penalties, if any, it had imposed in prior similar cases, and did not submit a proposed recommended order advocating the assessment of an administrative fine in any particular amount. Compared with the paucity of proof offered by the Department concerning an appropriate fine, petitioner offered proof, which is credited, that Granny's Donut Shop was a small, family owned business, that the demands of the business were taxing, that the business is now closed, and that the business took a severe financial toll on petitioner. While not excusing sanitary violations that could pose a threat to the consuming public, such factors, under the circumstances of this case, provide useful evidence in assessing a penalty that will deter others from similar violations, yet not be unduly harsh toward petitioner's violations. Considering such mitigating factors, as well as the nature of the violations established, an administrative fine in the amount of five hundred dollars ($500.00) is deemed appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding petitioner violated the provisions of Chapter 500, Florida Statutes, and imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 24th day of April 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1996.
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 Town and Country Skate World (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 (2011). At all times material to this case, the Respondent was a restaurant operating at 7510 Paula Drive, Tampa, Florida, 33615, and holding food service license number 3203942. On May 6, 2010, Rich Decker (Mr. Decker), employed by the Petitioner as a senior sanitation and safety specialist, performed a routine inspection (May 6 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 May 6 inspection, Mr. Decker noted the observed violations in an inspection report. A manager for the Respondent was present during the inspection. The manager signed the inspection report and received a copy of the report at that time. According to the inspection report, a follow-up "callback" inspection was scheduled to occur on July 6, 2010, prior to which critical violations were to have been corrected. On July 21, 2010, Kathy Dorsey (Ms. Dorsey), employed by the Petitioner as a senior sanitation and safety specialist, performed the callback inspection (July 21 callback inspection) and observed some of the same Food Code violations noted on the May 6 inspection report. At the conclusion of the July 21 callback inspection, Ms. Dorsey noted the observed violations in an inspection report. An employee of the Respondent present at the time of the inspection signed and received a copy of the callback inspection report. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. Pursuant to state regulations, the Respondent was required to have designated a certified food protection manager responsible for the operation of food service. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the designated food protection manager's certification had expired and that the Respondent was operating without a properly-certified food protection manager. This was a critical violation of the Food Code, because the lack of a properly-certified food protection manager presents a significant threat to the public health, safety, or welfare through the transmission of food-borne illness by improper food preparation. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that no thermometer to ascertain the temperature of food products was present, a critical violation. Foods held at improper temperatures are susceptible to development of bacterial contamination and are a risk factor for transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent, which utilized a chemical system for sanitation of dishes and utensils, had no chemical test kit provided at the location of the sanitation sink. The test kit is required to ascertain whether the composition of the disinfection liquid is appropriate and capable of sanitizing the items. This was a critical violation because improperly sanitized dishes and utensils pose a significant threat to the public health, safety, or welfare through the transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the gaskets located at the reach-in food refrigeration unit were soiled, a critical violation because the situation presents an opportunity for bacterial contamination of food products and transmission of food-borne illness. Sinks used for preparation of food products are not to be used for hand washing, and, accordingly, the Food Code prohibits having hand-washing aids at a food prep sink. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent had hand-washing materials located at a food-prep sink. This was a critical violation because dual use of sinks provides an opportunity for bacterial contamination of food or utensils and transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent's gas tanks (helium and/or carbon dioxide) were not properly secured, which was a non-critical violation of state regulations cited herein. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that ceiling tiles in the kitchen were water-stained, indicating the presence of an unidentified leak above the ceiling tiles, and other tiles were missing. These were non-critical violations of state regulations cited herein.
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 $1,550. DONE AND ENTERED this 28th day of November, 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 28th day of November, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Alan Blizard Town and Country Skate World 7510 Paula Drive Tampa, Florida 33615 Layne Smith, 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
