The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2013.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated June 27, 2011, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 1620035. At all times material hereto, the Restaurant was located at 1145 South Federal Highway, Fort Lauderdale, Florida 33316. A critical violation in food service is considered to be a violation of the Food Code that, if not corrected, will most likely cause and is directly related to food-borne illness, food contamination, or environmental hazards. A non-critical violation in food service is considered to be a violation that is less likely to cause and will not directly contribute to food-borne illness or food contamination. On October 27, 2010, Lynden Lewis, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Lewis found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Lewis prepared a food inspection report, setting forth the alleged violations and that the violations were required to be corrected by the next unannounced inspection. The inspection report was signed by Inspector Lewis and a representative of the Restaurant. Inspector Lewis made the representative aware of the alleged violations and that the violations were required to be corrected by the next unannounced inspection, and he provided the representative with a copy of the inspection report. On June 16, 2011, Inspector Lewis and Begum Khatoon, an inspector with the Department, conducted an unannounced routine inspection of the Restaurant. Among other things, three critical violations were not corrected from the routine inspection of October 27, 2010. During the unannounced inspection, Inspector Khatoon prepared a food inspection report, setting forth, among other things, the alleged critical violations. The unannounced inspection report was signed by Inspector Khatoon and a representative of the Restaurant, and Inspector Khatoon provided the representative with a copy of the inspection report. Inspector Khatoon made the representative aware of the alleged violations and that an administrative complaint would be recommended. The most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was raw animal food was stored over ready-to-eat food--raw eggs were being stored over yogurt--in the reach-in cooler. This violation is critical because the ready-to-eat food (yogurt) has already been cooked and gone through the process of pathogenic destruction and will not go through that process again; whereas, the raw animal food (eggs) has not been cooked and not gone through the process of pathogenic destruction. Cross-contamination could occur from the raw animal food by dripping onto or touching of the ready-to-eat food, and any pathogens present on the ready-to-eat food, as a result of the cross-contamination, would pass-on to consumers when the ready-to-eat food is served. Mr. Rocchio's testimony that eggs are stored on the bottom of the refrigerator (reach-in cooler) is found to be credible; however, most importantly, the evidence fails to show that, on the day of the inspection, eggs were stored on the bottom of the refrigerator. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was the hand wash sink in the kitchen was not accessible for employee use at all times. A garbage can was placed in front of the hand wash sink in the kitchen, making the sink inaccessible to employees at all times to wash their hands. Even though Mr. Rochhio testified, and his testimony is found to be credible, that the garbage can was "not a large garbage can," the evidence fails to show, most importantly, that the garbage can did not cause the hand wash sink to be inaccessible to the employees at all times. This violation is a critical violation because the hands of employees become contaminated as employees work and, if the handwash sink is not accessible, the employees will be discouraged from washing their hands. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was handwashing cleanser was lacking at the hand washing lavatory in the kitchen. This violation is a critical violation because hands are a vehicle of contamination, and the use of soap by employees, when washing their hands, removes bacteria and viruses that can contaminate the employees' hands.
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 that Valentinos Cucina Italiana violated section 509, Florida Statutes, through a violation of Food Code Rules 3-302.11(A)(1), 5-205.11(A), and 6-301.11; and Imposing an administrative fine in the amount of $750.00 against Valentinos Cucina Italiana. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 25th day of July, 2012.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated May 23, 2011, and if so, whether disciplinary action should be taken against Respondent.
Findings Of Fact The Department 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 a Florida corporation named Stugotz, Inc., doing business as Joey's On Beach. The corporation is wholly owned by Joseph Di Meglio. Respondent holds a public food establishment license issued by the Department. Respondent's business address is 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. Inspector Smith has been employed by the Department as a Sanitation and Safety Specialist for approximately five years. She has received training in laws and rules regarding public food service and lodging, is a certified food manager, and performs approximately 1,000 inspections each year for the Department. Formerly, Inspector Smith was a restaurant manager for 15 years. On March 2, 2011, Inspector Smith performed a food service inspection of Joey's On Beach located at 2521 Thomas Drive, Unit A, Panama City Beach, Florida 32408. During the inspection, Inspector Smith prepared and signed an inspection report on her electronic personal data assistant setting forth violations she allegedly encountered during the inspection. Ann Marie Di Meglio, the wife of the owner of Joey's On Beach, was present during the inspection and signed the report on the electronic device. According to the inspection report, the March 2, 2011 inspection of Joey's On Beach occurred at 11:11 a.m. Joey's On Beach opens at 11:00 a.m. The inspection occurred during active food preparation. Inspector Smith made the Respondent aware that all violations noted during the inspection needed to be corrected by May 2, 2011. All of the pages of the three-page March 2, 2011, inspection report are prefaced with the heading "FOOD SERVICE INSPECTION REPORT LEGAL NOTICE" with the warning that "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." The third page of the March 2nd report set forth alleged violations as follows: Warning(s) 12A-09-1: Observed food employee wearing jewelry other than a plain ring on their hands/arms while preparing food. 22-25-1: Observed buildup of soiled material on mixer head. 08A-28-11: Observed bag if [sic] bread crumbs on foor [sic] in walkin cooler. 08A-29-1: Observed sauce and bread crumbs uncoverd [sic] in walkin cooler. 02-22-1: Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked. Sausage 08A-23-1: Observed shell eggs over sausage in walkin cooler 08A-28-1: Observed jug of oil stored on the floor. 53B-08-1: No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. 32-16-1: Hand wash sink lacking proper hand drying provisions. Corrected on site. 09-04-1: Observed bare hand contact of ready-to-eat food by employees and establishment has no approved Alternative Operating Procedure in effect. Corrected On Site. On May 3, 2011, Inspector Smith performed a callback inspection of Joey's On Beach. According to the report, the inspection was performed at 10:18 a.m. Respondent had not yet opened for business and the callback inspection was conducted during active food preparation. During the callback inspection, Inspector Smith did not discuss specifics of the case with the owner, Joseph Di Meglio, because, according to Inspector Smith, inspectors are "not allowed to discuss the case at an inspection." Inspector Smith prepared and signed a two-page report for the May 3rd callback inspection on her electronic personal data assistant indicating that some of the violations noted on the March 2, 2011, inspection report had not been corrected. Mr. Di Meglio signed the May 3, 2011, inspection report. Both pages of the May 3 inspection report had the same "Legal Notice" as the earlier report, stating "Failure to comply with this Notice may initiate an administrative complaint that may result in suspension or revocation of your license and fines." Alleged uncorrected violations recommended for an administrative complaint were noted on the May 3 inspection report as follows: The following item(s) have been recommended for Administrative Complaint: Violation 53B-08-1 No proof of required employee training provided. All public food service establishments must provide the division with proof of employee training upon request, including, but not limited to, at the time of any division inspection of the establishment. This violation must be corrected by: 5/2/11. At callback no training provided for Ann Marie. Violation 22-25-1 Observed buildup of soiled material on mixer head. Violation 08A-29-1 Observed sauce and breadcrumbs uncovered in walkin cooler Violation 08A-28-1 Observed bag if [sic] breadcrumbs on floor in walkin cooler Violation 02-22-1 Ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked, sausage, and at callback sausage and meat balls not date marked in walkin cooler The Administrative Complaint in this case charged Respondent with the same five alleged violations recommended in the May 3rd callback inspection report, in the following order (Counts 1 through 5): (1) Observed ready-to-eat, potentially hazardous food prepared on site and held more than 24 hours with not properly date marked in walk-in cooler [referencing 02-22-1, and citing 3-501.17(A), Food Code]; (2) Observed bag of bread crumbs on floor in walk-in cooler [referencing 08A-28-1, and citing 3-305.11, Food Code]; (3) Observed sauce and break [sic] crumbs uncovered in walk-in cooler [referencing 08A-29-1, and citing 3-302.11A)(4), Food Code]; (4) Observed build up of soiled material on mixer head [referencing 22-25-1, and citing 4-601.11(A), Food Code]; and (5) Observed no proof of required training provided, at call back no training provided for Ann Marie [referencing 53B-08-1, and citing 509.049, Florida Statutes]. At the final hearing, the Department announced that Count 5 of the Administrative Complaint, alleging a lack of training in violation of section 509.049, Florida Statutes, had been dropped because Mr. Di Meglio had established to the Department's satisfaction that Respondent's employees were properly trained. The Department presented some evidence in support of the remaining allegations. As discussed below, however, the Department only met its burden of persuasion as to Count 2 alleging that breadcrumbs were improperly stored in an open container on the floor of the walk-in cooler. As to Count 1 of the Administrative Complaint, at the final hearing, Inspector Smith referred to both inspection reports and observed that the reports indicated that Respondent had failed to properly date mark ready-to-eat potentially hazardous food (sausage and meatballs) held on site for more than 24 hours in the walk-in cooler. She explained that such failure was a critical violation because food must be date- marked to indicate the day it was prepared, and the day that it expires. She further explained that potential hazardous foods, such as precooked sausage and meatballs, are only good for seven days from the date prepared. Respondent's witness, Ann Marie Di Meglio, works at the restaurant and was there when the first inspection took place. Her husband, Mr. Di Meglio, was not. According to Ms. Di Meglio, it is Respondent's procedure to date-mark the containers in the walk-in cooler. She further testified that at the time of the inspection, there was active preparation, and it is hard to keep things covered during active preparation. Mr. Di Meglio, through his testimony, further explained that they date-marked the covers of the sausage and other prepared foods in the cooler, but remove the lids to gain access to the food during active preparation. He testified that there were labels on the lids of the sausage and meatball containers at the time of the inspections, but that the lids had been set aside because of preparation. Inspector Smith suggested that she would have cited the sausage and meatball containers for being open, but could not recall whether they were open or not. She did not see the labels on the lids. There were no photographs or specific descriptions of the containers or observations by Inspector Smith. During the final hearing, when asked whether there were dates on the lids of the containers, Inspector Smith testified, "I can't answer that because I'm not there. I didn't write anything about it being uncovered." Based upon the explanations provided by the Di Meglios, the timing of the inspections, the lack of specific recollection by Inspector Smith, and considering that the Department has the burden of persuasion, it is found that the Department did not prove that Respondent failed to properly date its containers of potentially hazardous foods as alleged in Count 1 of the Administrative Complaint. As to Count 2, Inspector Smith stated in both the March 2 and May 3, 2011, inspection reports that she observed an open bag of breadcrumbs stored on the floor in Respondent's walk-in cooler. Storage of breadcrumbs on the floor in an open container is a critical violation because when food is stored on the floor, it can become contaminated by exposure to wastewater or germs from walking back and forth outside to the bathroom. While perhaps an open container could be explained by the fact that there was active food preparation, no excuse or explanation was offered as why an open bag of breadcrumbs was found on the floor during both inspections. Respondent's witnesses did not otherwise address the improper storage of breadcrumbs on the floor as alleged in Count 2 of the Administrative Complaint. As to Count 3 relating to the open containers of breadcrumbs and sauce, it is found that Respondent's explanation of active food preparation was reasonable given the timing of the inspections. In other words, the Department failed to prove that Respondent was storing foods in open containers because it is found that the containers were only opened temporarily during active food preparation.3/ As to Count 4, relating to an alleged dirty mixer head, the inspection reports for both the March 2 and May 3, 2011, inspections indicate there was a "buildup of soiled material on mixer head." While Ms. Di Meglio testified that she did not know if there was something on the mixer head at the time of the inspections, she testified that the mixer is cleaned every day, and that the material on the mixer head, if any, was not old. Rather, she explained, she had used the mixer around 10:00 a.m. the very morning of the first inspection to make dough and cut cheese. Ms. Di Meglio further explained that Respondent's mixer is very old and has some discoloration. And, while admitting that there may have been some dust or flour on the mixer from recent use, both she and her husband denied that there was any soil on the mixer or the mixer head. Inspector Smith's testimony regarding the state of the mixer, and the brief descriptions in the inspection reports referring to "soiled material" on the mixer head, without more, provided less than clear and convincing evidence of a violation. While Inspector Smith testified that she would not cite the equipment as being dirty if it was soiled with everyday use dirt, she was unable to definitively recall her observations. When questioned about the mixer head at the final hearing, Inspector Smith observed: I just noted that it was extremely2/ soiled when I was there at the initial inspection and at the callback. Not the top, but the mixer head being - - that goes over the unit, from what I can remember. When further asked to explain the difference between "soiled" and "dusty," Inspector Smith testified: It was all food debris with - - I mean, I just remember it just being soiled. It was over a year ago. I can't describe in detail what was on it. I would not cite it unless it was old food debris, or it was mold-like substance maybe with a combination. I don't cite everyday dirt. Considering Inspector Smith's less than specific recall, Respondent's explanation, and the Department's lack of specific details or photographs contrary to the testimony of Respondent's employees, it is found that the Department failed to prove the violation alleged in Count 4 of the Administrative Complaint. While the inspection reports were accepted into evidence as corroborative hearsay, it is found that, under the facts and circumstances, they are documents prepared in anticipation of litigation.4/ Specifically, the reports contain warnings and requirements of compliance, with specific mention of the fact that failure to comply may "initiate a complaint." Moreover, the evidence showed that the investigator could not discuss the allegations with Respondent's owner because inspectors are "not allowed to discuss the case at an inspection." Even if the inspection reports were not merely hearsay, their lack of detail when compared to the recollections of Respondent's employees regarding operations and the state of affairs during the inspections, was insufficient to meet the Department's burden of persuasion necessary to prove Counts 1, 3, and 4 of the Administrative Complaint. Count 2 of the Administrative Complaint alleging improper storage of bread crumbs on the floor, however, was uncontroverted, and the Department proved by clear and convincing evidence that Respondent's improper storage of bread crumbs was a critical violation.5/
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department enter a final order which dismisses Counts 1, 3, 4, and 5 and confirms Count 2 of the Administrative Complaint, and imposes an administrative penalty in the amount of $250 for Respondent's critical violation of Rule 3-305.11, relating to improper storage of breadcrumbs discovered during the inspections conducted on March 2 and May 3, 2011. DONE AND ENTERED this 13th day of July, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 13th day of July, 2012.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 3100 Northwest 17th Avenue, Miami, Florida, and holding food service license number 2328990. On May 19, 2010, and July 23, 2010, Respondent was inspected by Reginald Garcia, a sanitation and safety specialist employed by the Division. During both visits, Mr. Garcia noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Garcia and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of July 23, 2010, the following deficiencies subsisted at Respondent Alma Caribe Café Restaurant: (1) potentially hazardous food held at a temperature greater than 41 degrees Fahrenheit, contrary to Food Code Rule 3-501.16(A); (2) potentially hazardous food not cooled from 135 to 41 degrees Fahrenheit within six hours, in violation of Food Code Rule 3-501.14(A); (3) holding equipment incapable of maintaining potentially hazardous food at proper temperatures, in violation of Food Code Rule 4-301.11; (4) raw food stored over cooked food, contrary to Food Code Rule 3- 302.11(A)(1); and (5) no proof of required employee training, in violation of section 509.049, Florida Statutes. Each of the foregoing deficiencies is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1250, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 20th day of December, 2011, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2011.
The Issue Whether or not on April 27, 1987 the Respondent violated specific rules as alleged in its Notice to Show Cause dated May 27, 1987. BACKGROUND AND PROCEDURE At the commencement of formal hearing, Louis F. Petrillo sought to represent Respondent corporation as its qualified representative. Petitioner initially opposed this representation but subsequently withdrew its motion to disqualify. A resolution of the Respondent corporation, under its seal, authorizing Louis F. Petrillo to represent the corporation at formal hearing had previously been filed with the Division of Administrative Hearings. Upon the record, the undersigned inquired of the Respondent's president, Louis A. Petrillo, who acknowledged, under oath, that the resolution was authentic and that it was his desire, as the corporate president and the officer requesting formal hearing, that his father, Louis F. Petrillo, represent the corporation. 1/ Upon examination, the undersigned found Louis F. Petrillo to be a qualified representative to act for Respondent pursuant to Rules 22I-6.008 and 28-5.1055, Florida Administrative Code. Petitioner had admitted three exhibits and presented the oral testimony of Norman Hayes and David Petty. Respondent's motion to dismiss for failure to prove the allegations of the Notice to Show Cause made prior to Petitioner's completing its case in chief was denied without prejudice. The motion was not renewed. Official recognition was taken of a certified copy of Respondent's 1987 Annual Report. Petitioner requested that judicial notice be taken of Rules 7C-4.0001; 10D- 13.026(2) and (3); 10D-13.026(1)(m) and (5); 10D-13.027(4) ; 10D-13.027(5) ; 10D-13.027(8) ; 10D-13.028(2) ; 10D- 13.028(3) and 10D-13.028(4), Florida Administrative Code, and Respondent opposed the request. Petitioner was permitted to file copies of the aforesaid rules with a speaking motion for official recognition within five days of the conclusion of formal hearing, and same was filed. Thereafter, Respondent never filed any formal opposition thereto, and upon consideration that these are matters for which official recognition is mandated, official recognition has been granted. However, it is axiomatic that only those statutes and rules in effect on April 27, 1987 and charged in the May 27, 1987 Notice to Show Cause, may be prosecuted against or applied to Respondent in this present license disciplinary proceeding. Respondent offered no documentary evidence, but Messrs. Louis A. Petrillo and Louis F. Petrillo each testified orally. No transcript was provided. Petitioner filed proposed findings of fact and conclusions of law, the findings of fact of which have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), Florida Statutes. Respondent filed no post-hearing proposals.
Findings Of Fact The Notice to Show Cause, dated May 27, 1987, charges the following offenses existed on April 27, 1987: Violation of Florida Statutes, Section 509.032(1)(2) and (3). In particular, the following violations will be described and reference to the statutes, rules or regulation as follows: Florida Administrative Code - F.A.C. A. Violation of 10D-13.26(2)(3) , F.A.C. Failure to provide proper non-food contact surface. Repair loose door to deep fat fryer. B. Violation of 10D-13.26(1)(m)(5) F.A.C. Failure to provide chemical test kit. Violation of 10D-13.27(4) F.A.C. Failure to provide properly installed and main- tained plumbing. Reinstall kitchen lavatory. Violation of 10D-13.27(5) F.A.C. Failure to provide convenient, accessible, ade- quate toilet and handwashing facilities. Violation of 10D-13.27(5)(b) F.A.C. Failure to maintain and/or equipment [sic] restroom with proper handwashing and drying equipment. Violation of 10D-13.27(8) F.A.C. Failure to protect outer openings. Violation of 10D-13.28(2) F.A.C. Failure to provide properly maintained walls and attached equipment. Violaiton [sic] of 10D-13.28(3) F.A.C. Failure to provide proper shielding for kitchen ceiling lights. Violation of 10D-13.28(4) F.A.C. Failure to vent rooms and/or equipment required. The rules defining these offenses were all renumbered in August, 1987 and some rules were further amended. However, the rules as charged in the charging document and as in effect on the material date, April 27, 1987, govern this proceeding. Respondent, Petrillo Enterprises, Inc. d/b/a Chicken Unlimited (hereinafter Chicken Unlimited), license 23-186220, was licensed at all times material as a public food establishment at 6757 Bird Road, Miami, Florida, and remained licensed as of the date of formal hearing, although it had ceased operation before the date of hearing. On April 22, 1987, Chicken Unlimited was operating as a public food service establishment and David Petty, an Environmental Health Supervisor for the Dade County Department of Public Health, made out a food service inspection report reflecting Respondent's noncompliance with 16 sanitary regulations of Petitioner. He ranked each as a "minor" violation. Mr. Petty was not asked at hearing if he observed these violations on that day, but on the basis of his testimony concerning certain violations corrected while he was still present on April 22, 1987 and other violations observed again by him upon his revisit to the public food establishment on April 27, 1987, I infer that he actually observed the conditions cited in the April 22, 1987 inspection report, which conditions Petty considered to be code violations. On April 27, 1987, Chicken Unlimited was operating as a public food service establishment and Mr. Petty conducted a reinspection to determine whether the violations not corrected on April 22 had now been corrected. During the reinspection, Mr. Petty observed 10 of the prior conditions which had not been corrected. These were as follows: A loose door on the deep fat fryer had not been repaired. The kitchen lavatory needed to be reinstalled. The rear kitchen door had not been sealed to prevent the entrance of vermin; missing wall tiles had not been replaced in the kitchen; proper shielding had not been installed for the kitchen ceiling lights; sanitizing test papers had not been procured; and a current manager certification in food management was not displayed or produced by personnel on the premises. (The failure of certification was noted in the reinspection report but never charged in the Notice to Show Cause against this Respondent.) In Petty's opinion, Chicken Unlimited also had failed to provide convenient, accessible and adequate toilet and handwashing facilities on both inspection dates. The ventilator fan in the men's restroom was not working. Petty personally observed that the fan was not working and that a broken sink was in the restroom under a counter on the reinspection date. When challenged on cross-examination regarding his qualifications to determine whether the fan was working, since he is not an electrical engineer, Mr. Petty replied that "if you turn the fan on at the switch and the blades don't rotate, something is wrong." His observation was made from inside the men's room looking up into the fan. Mr. Louis A. Petrillo, president and manager, was not present on the premises while Mr. Petty was there either on April 22 or 27, 1987. Respondent did not refute any of Mr. Petty's testimony. Louis A. Petrillo testified that copies of the statutes and rules applicable to Chicken Unlimited were not provided to him by Petitioner at the time his license was issued and that his own employee who received copies of the inspection report on April 22, 1987 and of the reinspection report on April 27, 1987 failed to transmit them to him. He maintained that for these reasons, he was unable to maintain the Chicken Unlimited premises according to the applicable rules and was also unable to timely correct the violations once they were cited.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent corporation guilty of the following eight violations as charged in paragraphs A (one violation), B (one violation), C, D, F, G, H, and I, constituting eight violations, respectively, 10D-13.26(2), 10D-13.26(5), 10D-13.27(4), 10D- 13.27(5), 10D-13.27(8), and 10D-13.28(2), (3) and (4), and fining Respondent $100 per offense for a total of $800. DONE AND ENTERED this 1st day of June, 1988, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1988.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing an administrative fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2010.
The Issue The issues 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 (2006). At all times material to this case, the Respondent was a restaurant located at 7551 West Waters Avenue, Tampa, Florida 33615, holding Food Service license number 3903935. On July 11, 2006, Richard Decker, a senior inspector representing the Petitioner, performed a routine inspection of the Respondent that resulted in emergency closure of the restaurant due to a roach infestation problem. The inspection report stated that the deadline for correcting the roach problem was July 12, 2006, and the matter was apparently resolved in a timely manner. Mr. Decker found additional violations of applicable Food Code regulations on July 11, 2006, which were cited in a written Food Service Inspection Report, a copy of which was provided to restaurant owner Anthony Della Monica on the date of the inspection. Mr. Decker's inspection identified critical and non- critical violations. Critical Food Code violations pose serious public health risk due to potential transmission of food-borne illness. Critical life safety violations such as blocked exits increase the risk of public injury. Violations that do not pose a direct and imminent public health risk are identified as non- critical. Other than as set forth herein, the violations cited during the July inspections were to have been corrected by the time of Mr. Decker's August 15, 2006, re-inspection. Many of the previously cited violations had not been corrected at that time. The August 15, 2006, re-inspection report was received by Mr. Della Monica on the date of the inspection. Mr. Decker again re-inspected the restaurant on October 20, 2006. Several violations previously cited in July remained uncorrected at that time. The October 20, 2006, re- inspection report was received by Head Chef Kurt Clasen on the date of the inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a certified food manager on the premises and for lacking of proof that employees had received food safety training. Such training was intended to reduce the potential for transmission of food-borne illness. These violations were deemed critical. Although Mr. Decker established an extended deadline of October 11, 2006, to correct the certified food manager and employee training violations, they remained uncorrected by the October 20, 2006, re-inspection. During the July inspection, Mr. Decker cited the Respondent for lacking a hand sink in the dishwashing area and noted that a hand sink at the rear of the kitchen was being used for food preparation. The requirements related to hand sinks were intended to reduce the potential for transmission of food- borne illness. The violations of the requirements were deemed critical. The Respondent still lacked a hand sink in the dishwashing area at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for using extension cords on a non-temporary basis to power equipment in the kitchen. The Respondent's improper electrical cord use was a fire hazard and was deemed a critical violation. By law, extension cords can only be used on a temporary basis. The cited extension cords remained in use by the Respondent at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for removing food products from original packaging and storing them in unlabeled containers, a critical violation that increased the risk of confusing food products with non- edible products such as cleaning chemicals. The violation remained uncorrected at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for lacking a chemical testing kit used to ascertain that the dishwasher sanitization function was operating properly. Lack of proper sanitation increased the potential for transmission of food-borne illness. The violation, deemed critical, was not corrected by the time of either re-inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a visible thermometer in a pizza- holding unit. The inability to monitor food-holding temperatures increased the potential for transmission of food- borne illness and was a critical violation. The violation was uncorrected at the time of the August re-inspection as it should have been, but it had been remedied by the October re- inspection. During the July inspection, Mr. Decker cited the Respondent for the lack of light bulb shields in a food service area, which increased the risk that food could be contaminated by glass in the event of light bulb breakage. This was deemed a non-critical violation and remained uncorrected at the time of either re-inspection.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $3,800 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 11th day of May, 2007, 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 11th day of May, 2007. COPIES FURNISHED: Anthony Della Monica Mama D's Pasta & Grille 1819 Audubon Street Clearwater, Florida 33764 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the subject Administrative Complaints, and, if so, the penalties that should be imposed.
Findings Of Fact Chapter 500, Florida Statutes, is the Florida Food Safety Act. Petitioner is the agency of the State of Florida that is responsible for the administration and enforcement of Chapter 500. Section 500.032(1) provides as follows: [Petitioner] is charged with the administration and enforcement of this chapter in order to prevent fraud, harm, adulteration, misbranding, or false advertising in the preparation, manufacture, or sale of articles of food. It is further charged to enforce the provisions of this chapter relating to the production, manufacture, transportation, and sale of food, as well as articles entering into, and intended for use as ingredients in the preparation of food. Section 500.02(1) authorizes Petitioner to establish by rule conditions for the manufacturing, processing, packing, holding, or preparation of food and the selling of food at wholesale or retail. Pursuant to that authority, Petitioner has adopted by Florida Administrative Code Rule 5K-4.002(4), pertinent parts of the "2001 Food Code" and the "Supplement to the 2001 Food Code," published by the U.S. Public Health Service of the U.S. Department of Health and Human Services (the Food Code). The violations alleged by Petitioner in both administrative complaints, if proven, would constitute violations of the Food Code and, consequently, violations of chapter 500. At the times relevant to this proceeding, Respondent operated a convenience store located in Miami, Florida, that sold mostly pre-packaged food products at retail, but also provided ancillary food service (the facility). The facility had a retail sales area, a backroom storage area, a walk-in cooler, and an ice machine. The food service operation included a hot case unit that prepared pre-cooked ready-to-eat food products in individual portions for consumption and drinks such as milk, juice, sodas, and beer. Violations of the Food Code can be categorized as "critical" or "non-critical". As compared to a non-critical violation, a critical violation typically involves unsanitary conditions that are more likely to cause physical harm to a consumer or someone handling a product. June 22, 2010 Inspection Jorge Ojeda, a sanitation and safety specialist employed by Petitioner, performed a routine inspection of the facility on June 22, 2010. Mr. Ojeda's inspection revealed numerous food safety violations, including violations that are deemed critical violations. The following are the critical violations found by Mr. Ojeda on June 22, 2010: Rodent droppings were present in the walk-in cooler and retail area; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils or equipment in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other non-critical violations included general disrepair of the facility, holes in walls, standing water, mold on the ice machine, and failure to maintain equipment. During the June 22, 2010, inspection, Mr. Ojeda issued a Stop Sale Order for the meat patties in the hot case unit until the product was reheated to the minimum temperature. After the temperature was raised to an approved level, Mr. Ojeda lifted the Stop Sale Order for the meat patties. Mr. Ojeda also issued a Stop Sale Order for products in the walk-in cooler and in the ice machine until the walk-in cooler and the ice machine were cleaned and sanitized. As noted above, rodent droppings were found in the walk-in cooler. Mr. Ojeda testified that he found mold inside the ice machine. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. August 2, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on August 2, 2010. The inspection revealed numerous food safety violations, some of which are repeat violations. The following are the critical violations found by Mr. Ojeda on August 2, 2010: There was evidence of rodent droppings and live roaches in the facility; Ice found in bags in the retail area had not been tested for safety. An ice bag in the retail area was missing a food label. There was evidence of smoking in the retail and backroom areas. There was no established employee health policy; A food employee was observed washing utensils in a hand-wash sink. Meat patties in the heat case were kept below the minimum approved temperature. Other violations included general disrepair of the facility, holes in walls, and failure to maintain equipment and fixtures. Administrative Complaint for Case No. 10-9186 Following the August 2, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-9186. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $3,700.00 for the violations found during the inspections on June 22 and August 2. August 18, 2010 Inspection Mr. Ojeda conducted an inspection of the facility on August 18, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents in the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. There was mold present on the ice machine. Equipment and utensils were not properly sanitized. Items for sale in the retail area were not marked for individual sale. There was no established employee health policy. Food label was missing or incomplete. Juice drinks were not labeled for individual sale. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Mr. Ojeda issued a Stop Use Order for the ice machine because he found mold inside the unit. Mr. Ojeda also issued a Stop Sale Order for the hot holding unit because the unit and associated utensils were not properly sanitized. Mr. Ojeda assigned Respondent a "poor" rating and advised that he would return for a follow-up inspection. September 9, 2010 Inspection Mr. Ojeda conducted a follow-up inspection of the facility on September 9, 2010. During that inspection Mr. Ojeda found numerous food safety violations. The following are the critical violations found by Mr. Ojeda on August 18, 2010: There was evidence of the presence of insects and rodents throughout the store. There was evidence of smoking in the retail and back room areas where food is processed or prepared, where clean equipment or utensils are stored, or were food is uncovered or exposed. Grade A milk and milk products were being sold or used beyond the expiration date on the container. Items for sale in the retail area were not marked for individual sale and were missing labels. F. There was no established employee health policy. Other violations included general disrepair of the facility, holes in walls, standing water, and failure to maintain equipment and fixtures. Mr. Ojeda issued a Stop Sale Order for the expired milk offered for sale in the retail area. The product, which expired the day before the inspection, was released to be returned to the distributor. Mr. Ojeda also issued a Stop Sale Order for all food items in the store due to evidence of rodents and rodent droppings throughout the store. Administrative Complaint for Case No. 10-10095 Following the September 9, 2010, inspection, Petitioner prepared an administrative complaint that underpins DOAH Case No. 10-10095. Petitioner seeks to impose an administrative fine against Respondent in the total amount of $1,550.00 for the violations found during the inspections on August 18 and September 9. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-9186. The testimony of Dr. Fruin established that an administrative fine in the amount of $3,700.00 is reasonable for those violations. Petitioner proved by clear and convincing evidence that Respondent committed the violations alleged in Case No. 10-10095. The testimony of Dr. Fruin established that an administrative fine in the amount of $1,500.00 is reasonable for those violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order that finds Respondent guilty of the violations alleged in Case No 10-9186 and imposes an administrative fine against Respondent in the amount of $3,700.00 for those violations. It is further recommended that the final order find Respondent guilty of the violations alleged in Case No 10-10095 and impose an administrative fine against Respondent in the amount of $1,500.00 for those violations. DONE AND ENTERED this 17th day of February, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2011. COPIES FURNISHED: Lorena Holley, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Adam Putman Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Steven Lamar Hall, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 Hamid Lakhani Super Stop Six Avenue, Inc., d/b/a Super Stop 15150 Northeast 6th Avenue North Miami Beach, Florida 33162
The Issue The ultimate issue for determination is whether the Respondent committed the violations alleged in the Notice to Show Cause, issued on February 6, 1990, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was doing business at 26712 Southwest 144th Avenue, Naranja, Dade County, Florida, 33032-7404 as Village Diner. The Village Diner was operated under restaurant license number 23- 16870R. Mr. Steven Hoffman, Environmental Health Specialist Supervisor, Dade County Public Health Department ("DCPHD"), is an expert in food hygiene, safety, and fire safety. Mr. Hoffman's qualifications include certification by the Federal Drug Administration as a food inspector and certification by the State of Florida in fire safety and as a food hygiene coordinator. Mr. Hoffman has been employed by the DCPHD in various capacities for approximately 13 years. Mr. Hoffman's employment duties on January 12, 1990, included performing inspections of food service establishments in response to complaints received by the DCPHD. In response to a complaint, Mr. Hoffman conducted an inspection of the Village Diner on January 12, 1990. Mr. Hoffman found conditions comprising 18 alleged rule violations, of which eight are classified by Petitioner as major violations. Potato salad, cole slaw, and corned beef was improperly refrigerated at 60 degrees. 2/ Such food must be refrigerated at 45 degrees in order to avoid growth of dangerous bacteria that can lead to food poisoning. Food was stored on the floor of the walk-in refrigeration box and was not covered. Uncovered food left on the floor is susceptible to contamination by other substances dripping into the uncovered food and by other bacteria. Food utensils were stored in dirty water. Food prepared or served with utensils stored in dirty water may be cross-contaminated with bacteria from food or filth in the dirty water. Bulk containers used to store flour were dirty and needed to be replaced. Food contact surfaces were not clean, including stove grills, fryers, and the interior of refrigerators. The reach-in box contained dried, hardened splashes of meat. Wilted lettuce and other food debris had accumulated on the bottom of the reach-in box over a substantial period. Non-food contact surfaces were not clean, including walls and storage shelves. Walls were covered with accumulated grease and smoke. These conditions increased the probability of cross-contamination from bacteria and attracted vermin. The premises were infested with roaches and mice. Live roaches and droppings from mice were observed in and around the premises. Mouse urine was observed with a black light. Paper in open cans had been nibbled by mice. Roaches cause cross-contamination of food by picking up bacteria on their legs and carrying it to other foods. Mice contaminate food by urinating on it and by transporting fleas and ticks from one food to another. The floor under the cooking equipment was dirty. Walls were encrusted with old grease and dirt. Such conditions attract vermin. Toxic items were not stored properly. Boric acid powder was spread on top of pipes directly above a food service steam table. Respondent used the boric acid powder to control mice and other vermin. Boric acid is poisonous when ingested and is moderately toxic by skin and subcutaneous contact. Pressurized CO-2 tanks were placed beside a stove in the kitchen. An extension cord was improperly used in the kitchen. Lights in the kitchen were not shielded to prevent glass from falling into food in the event that a light bulb either was inadvertently broken or burst during operation. A pit in the rear of the premises contained white, congealed grease and emitted a foul odor. A trench had been designed to direct grease away from the premises and into the pit. The grease pit attracted vermin and contaminated ground water approximately eight feet below the surface. A faucet outside the premises was not equipped with a "backflow preventer". The absence of a "backflow preventer" permits contamination of the city water system from the premises in the event of negative pressure in the city water system. Not all of the garbage cans in the rear of the premises had plastic liners. Trash and debris was collected outside the back door of the premises. Trash and unused equipment was stored in the rear of the premises and in the storage room. The collection of litter and equipment attracts vermin by providing food sources and hiding places. Mr. Hoffman issued a Food Inspection Report at the conclusion of his inspection on January 12, 1990. Respondent was given until January 17, 1990, to correct the major violations noted in Mr. Hoffman's Food Inspection Report, and was advised that a Notice to Show Cause would be issued. The premises were re-inspected by Mr. Hoffman on January 18, 1990, and a Call Back/Re-Inspection Report was issued. Respondent corrected all of the alleged rule violations found on January 12, 1990, except two. Respondent was instructed to provide proper light shields over food surfaces and to clean sides of grills, fryers, and the tops of refrigeration units. A Notice to Show Cause was issued on February 6, 1990, citing the 18 rule violations found to have existed during the inspection conducted by Mr. Hoffman on January 12, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a fine be imposed against Respondent in an amount not to exceed $1,150. In the event that Respondent is unable to pay the fine imposed, it is further recommended that Respondent's license be suspended for a period not to exceed 20 days. RECOMMENDED in Tallahassee, Leon County, Florida, this 21st day of March, 1991. Daniel Manry 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 21st day of March, 1991.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license number 1621408. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits, Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than 135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/ The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
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 Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2013.
