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 issues to be resolved in this proceeding concern whether the Respondent committed the various acts alleged in the Administrative Complaint in violation of the "food code," as more particularly cited below, and if so, what, if any, 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 was a restaurant located at 4611 University Drive, Coral Springs, Florida, holding Food Service license number 1614898. On January 22, 2007, Deborah Audain, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. During the inspection, Ms. Audain observed five large roaches in the prep area, three roaches in the hot-holding area, 14 in the kitchen by the stove, three crawling on seasonings on the kitchen shelf, one crawling on the kitchen floor, and one in the bathroom hallway. Ms. Audain prepared and signed an inspection report detailing her findings during the inspection. In addition to the roach infestation, 25 violations of applicable Food Code regulations were also found on January 22, 2007, which were cited in a Food Service Inspection Report (Inspection Report). Ms. Audain went over the report, which was on a hand held machine, with Mr. Platzer. He could not read it since it was not a paper report. As per Department procedure when a roach infestation is found, Ms. Audain faxed the inspection report to the Tallahassee office for review. The review resulted in emergency closure of the restaurant due to the roach infestation problem, which created a public health threat. Ms. Audain notified the Respondent that someone would return the following day for a re-inspection and then again at a later date for a callback inspection. On January 23, 2007, Sanitation and Safety Specialists Sean Grosvernor and Terrence Diehl returned to Old Vienna Restaurant as scheduled. Respondent had resolved and corrected the roach problem and the restaurant's license was reinstated. Mr. Grosvernor and Mr. Diehl gave Respondent a written Food Service Inspection Report, a copy of which was signed at the restaurant by co-owner Sherry Platzer. The January 23, 2007, Legal Notice Food Service Inspection Report read in pertinent part: * * * 2 dead roaches on shelf in kitchen (employee removed) Approved to reopen per Kendall Burkett *All other violations must be corrected by 2/23/07. On March 7, 2007, Ms. Audain and Mr. Diehl re-inspected Old Vienna Restaurant and determined that four of the violations remained uncorrected. During the inspection Mr. Grosvernor and Mr. Diehl prepared a Call Back/Re-Inspection Report, (Re- Inspection Report) setting forth the findings from the re- inspection and recommending that an administrative complaint be filed. According to the March 7, 2007, Re-Inspection Report, during the call-back inspection, 22 of the 26 originally cited violations from the January 22, 2007 inspection had been corrected since the initial inspection. The other violations had not been corrected. The first uncorrected violation for which Respondent was cited was Food Code Rule 4-501.114(a)--not maintaining chlorine sanitizer in the final rinse of the dishwashing machine, a critical violation. Respondent contacted Cheney Brothers to service the dishwashing machine and fix it when informed that the machine didn't have the proper level of chlorine on January 22, 2007. The company reported to the restaurant, worked on the dishwashing machine, and informed the owners that it was working because it tested properly. The owners didn't know why the correct level of chlorine did not register when the operator checked it twice upon inspection. Respondent was also cited for a violation of Food Code Rule 3.302.11 (A)(1)--having an improper vertical separation of raw animal foods and ready-to-eat foods since the restaurant’s raw eggs in the walk-in-cooler were stored on the top shelf over ready-to-eat foods, a critical violation. The eggs were stored on the top shelf with an aluminum sheet pan underneath.1 Respondent had been storing the eggs the same way for seventeen years. After receiving the March 7, 2007, inspection, Respondent moved the eggs to the bottom shelf. Respondent was also cited a second time for a violation of Food Code Rule 3-302.11(A)(1)--the inspectors observed boxes of perishable food on the floor in the walk-in- cooler, a critical violation. The boxes contained fries and meat that had been dropped for delivery by Cheney Brothers. Respondent was not storing the food on the floor but was in the middle of the restaurant's food delivery process when the boxes were observed on the floor. Respondent's procedures for delivery included Cheney Brothers dropping off food daily. The perishable food is delivered in boxes and placed in the walk-in-cooler by Cheney Brothers to keep cold until Respondent put it away. The food is typically unpacked and put away within an hour after delivery. The Department also cited Respondent for the fourth uncorrected violation, Food Code Rule 2-402.11--due to the food handler in the kitchen prepping foods without a proper hair restraint, a non-critical violation. 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. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed. No evidence of prior disciplinary action being taken against Respondent by the Department was presented.
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: Dismissing two counts of Food Code Rule 3-302.11. Finding that Old Vienna Restaurant violated Food Code Rules 2-402.11, 4-501.114(A), and 6-501.111. Imposing an administrative fine of $900.00, payable under terms and conditions deemed appropriate. Imposing mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 14th day of January, 2008, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2008.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against it, and, if so, the appropriate penalty to be imposed, if any.
Findings Of Fact At all times material hereto, Respondent, Perpulys Sport Bar and Restaurant, has been licensed as a public food service establishment by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent is located in Homestead, Florida. Michael Brown, one of Petitioner's inspectors, has extensive experience and education in the food service industry. On July 19, 2006, he inspected Respondent's premises and found a number of violations of public food service establishment rules. He noted these on his inspection report and gave a copy of the report to Respondent. The report noted that the violations must be corrected by August 20, 2006. On August 21, 2006, Brown returned to Respondent's premises to conduct his "callback" inspection. Four critical item violations remained uncorrected, and he noted them in his report. After he had completed his report, one of Respondent's employees placed a thermometer in the cold holding unit which had lacked one during Brown's inspection. However, the exit signs were still not properly illuminated. Exit signs in a food service establishment are required to be clearly illuminated so that patrons will know where to exit the premises if a fire or other emergency should occur. Improperly illuminated exit signs are a critical item violation. Respondent's employees were still touching ready-to-eat food with their bare hands even though the establishment did not have in place an alternative operating procedure approved by Petitioner. Since touching ready-to-eat food with bare hands can lead to serious illness of the business' patrons, this is also a critical item violation. During that same call-back inspection, raw animal food was stored over ready-to-eat food, specifically, raw steak was stored over cooked shrimp. Since such storage can lead to cross-contamination, which can lead to serious illness of the business' patrons, this is also a critical item violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of three critical item violations, imposing a fine of $1,500 to be paid within 30 days, and requiring Respondent to attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 17th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 17th day of May, 2007. COPIES FURNISHED: William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Soco Salgado Perpulys Sports Bar & Restaurant 113 South Homestead Boulevard Homestead, Florida 33030
The Issue At issue in this proceeding is whether Respondent's public food establishment license should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: At all times relevant to this proceeding, Respondent, Thai Café, operated a public food service establishment, located at 4200 Tamiami Trail, Unit 14, Port Charlotte, Florida 33952-9233. Respondent's license, number 18-01285-R, expired on December 1, 1999, and was not renewed until March 22, 2000. Lisa Marie Wofford was, at all times relevant to this proceeding, a sanitation and safety specialist for the Division of Hotels and Restaurants, acting primarily as a restaurant inspector. On January 10, 2000, Ms. Wofford inspected Respondent's restaurant, which was open and operating. She found several violations of food service rules that she enumerated on a food service inspection report. The report warned Respondent that it had 10 days, until January 20, 2000, to correct the violations. Ms. Wofford entered a question mark on the report beside the license expiration date, because she could not at that time confirm when Respondent's license would expire. On January 20, 2000, Ms. Wofford conducted a "call back" inspection of Respondent's restaurant, which was open and operating. She found violations of food service rules, which she enumerated on a call back/reinspection report. Ms. Wofford testified that she could not recall whether she looked for Respondent's license on this call back inspection. On March 7, 2000, Ms. Wofford conducted a routine food service inspection of Respondent's restaurant, which was open and operating. She found Respondent in violation of food service rules and found that Respondent failed to display a current license. She enumerated these violations on a food service inspection report. Ms. Wofford noted on this report that Respondent was operating its restaurant without a license. Ms. Wofford testified that during the inspection, the owner told her that he had "mailed the license fee already, yesterday." At all times relevant to this proceeding, Karlin Dorothy Kahl was a management review specialist and compliance coordinator for the Division of Hotels and Restaurants, District 6, and was a custodian of the records maintained at the district office in Fort Myers. Ms. Kahl testified that the Division's records reflected that Respondent's license expired on December 1, 1999. The records also reflected that the license fee was not received by the Department until March 22, 2000, well after Ms. Wofford's inspections of January 10, January 20, and March 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent shall pay an administrative fine of $1,000, to be reduced to $500 if paid within 10 days of the date the final order is entered in this proceeding. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001. COPIES FURNISHED: Thai Café 3135 Cortez Road Fort Myers, Florida 33901 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in these consolidated cases are stated in the counts set forth in the Administrative Complaint for each case: Whether Falcon Catering Service No. 7 (hereinafter "Falcon 7") and Falcon Catering Service No. 8 (hereinafter "Falcon 8") failed to maintain the proper protection and temperature requirements for food sold from their mobile site in violation of the federal Food and Drug Administration Food Code ("Food Code"). In the Prehearing Stipulation filed in this matter, each Respondent generally admitted to the violations in the Administrative Complaints, but suggested that mitigating factors should absolve them of the charges or greatly reduce any administrative fine imposed.
Findings Of Fact The Division is responsible for monitoring all licensed food establishments in the state. It is the Division's duty to ensure that all such establishments comply with the standards set forth in relevant statutes and rules. Respondents Falcon 7 and Falcon 8 are licensed mobile food dispensing vehicles. Falcon 7 has license No. MFD5852560, which was initially issued on April 23, 2005; Falcon 8 has license No. MFD5852642, which was issued on October 19, 2005. Each of the Respondents serves meals and snacks to, inter alia, laborers at construction sites. On or about March 13, 2009, the Division conducted a food service inspection on Falcon 7. At that time, the food truck was located at 4880 Distribution Court, Orlando, Florida. One of the Food Code violations found by the inspector was Item 53b. That citation meant there was no validation of employee training on the truck. A follow-up inspection was deemed to be required. On April 10, 2009, a follow-up inspection was conducted by the Division. At that time, Item 53b was cited as a repeat offense. Also, Item 8a was cited. Item 8a refers to protection of food from contaminants and keeping food at an acceptable temperature. Notes by the inspector indicate that a further violation of Item 8a occurred because customers were allowed to serve themselves directly from food containers, and there was no fan in operation during the serving of food. On May 28, 2009, another inspection of Falcon 7 was conducted. At that time, the food truck was located at 12720 South Orange Blossom Trail, Orlando, Florida. Item 8a was again cited as a deficiency. The inspector's notes indicate that food was not properly protected from contamination and that customers were being served "buffet style" from the back of the truck. The inspector noted that this was a repeat violation. A follow-up or "call-back" inspection was conducted on December 3, 2009, at which time the temperature in Orlando was unusually cold. The food truck was at the same address on Orange Blossom Trail as noted in the prior inspection. Falcon 7 was again found to have been serving food buffet style from the back of the food truck. An Item 8a violation was again noted by the inspector. Another inspection of Falcon 7 was conducted on January 19, 2010, another very cold day in Orlando. At that time, the food truck was located at the same site as the last two inspections. The inspector cited the food truck for an Item 8a violation again, stating that the food was not being protected from contaminants. Dust was flying up on the back of the truck to exposed food items. An inspection of Falcon 8 was conducted on August 25, 2009, while the truck was located at 4880 Distribution Court, Orlando, Florida. An Item 8a violation was noted by the inspector, who found that displayed food was not properly protected from contaminants. The food truck was located under an Interstate 4 overpass and was open to flying debris. The inspector noted that customers were being served buffet style and that there was no protection of food from contamination by the customers. A follow-up inspection for Falcon 8 was conducted on August 27, 2009, at 9:12 a.m., while the food truck was located at the same site. Another Item 8a violation was cited at that time. The violation notes indicate essentially the same situation that had been cited in the initial inspection two days earlier. Less than one hour after the follow-up inspection, another inspection was conducted on Falcon 8 at the same location as the prior two inspections. There were no Item 8a citations issued during this inspection, but the food truck was found to have no water available for hand washing. The food truck employee was using a hand sanitizer to clean her hands. Respondents do not dispute the facts set forth above. However, Respondents provided mitigating facts for consideration in the assessment of any penalty that might be imposed. Those mitigating factors are as follows: The food trucks were serving an inordinately large number of workers during the dates of the inspections. The City of Orlando was constructing its new basketball arena, and there were numerous laborers involved in the project. In order to serve the workers, it was necessary for the food trucks to put their food out on tables, rather than ladle the food directly from the food warmers in the food truck. In fact, the shelves in the food trucks are so narrow that dipping food out of the warmers would be impossible. Due to the cold weather in Orlando during this time, it was impossible to keep the food at acceptable temperature levels for very long. The large number of workers washing their hands at the food trucks caused the trucks to run out of water much more quickly than normal. When the water ran out, the employees took care to sanitize their hands as well as possible. Ms. Falcon testified that the inspector's testimony concerning use of tables to serve food was erroneous. However, Sabrina Falcon was not present during the inspections, and her contradictory testimony is not reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500.00 against Falcon Catering Service, No. 7, in DOAH Case No. 10-10925; and a fine of $750.00 against Falcon Catering Service, No. 8, in DOAH Case No. 10-10930. All fines should be paid within 30 days of the entry of the Final Order by the Division. DONE AND ENTERED this 10th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2011. COPIES FURNISHED: 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 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Sabrina Falcon Falcon Catering Service 642 Mendoza Drive Orlando, Florida 32825 Megan Demartini, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
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 in this case is whether the Respondent, Rosarios II Italian Restaurant (Respondent), committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2008). At all times material to the allegations of this case, the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (See Petitioner’s Exhibit 1). The Respondent's license number is 1617840. In his capacity as an inspector and as a sanitation and safety supervisor for the Petitioner, Sean Grofvenor visited the Respondent’s place of business (12691 West Sunrise Boulevard, Sunrise, Florida) on November 13, 2007. On that date, the violations, more fully described in the inspection report of that date, (Petitioner's Exhibit 2) warranted the closure or emergency order of suspension of license for the establishment. The Respondent was made aware of the violations and the Petitioner announced that it would come back in 24 hours to reassess the closure. The closure was deemed appropriate to protect the public. The 24-hour call-back inspection was provided to reassess the "critical" problems depicted in the inspection report. The November 13, 2007, inspection report described the following "critical" violations: Live and dead roaches present at the establishment; Ready-to-eat food prepared on site and held more than 24 hours without proper date and time tagging; A hand-wash sink lacked proper drying provisions by the dish machine; Uncovered food was discovered in a holding unit, the dry storage area, and in a walk-in cooler; and Soiled gaskets at numerous stations within the food preparation areas. After the 24-hour call-back inspection was completed, the Respondent was allowed to reopen but was advised that a second follow up inspection would be performed. The Respondent was given until January 14, 2008, to correct all of the violations previously identified and described in the inspection report of November 13, 2007. Robert Becker is a sanitation and safety specialist employed by the Department. He accompanied Mr. Grofvenor on the November 13, 2007, inspection of the Respondent's establishment and assisted in the compilation of the violations noted in the first inspection report. Inspector Becker performed a call-back inspection of the Respondent's establishment on January 17, 2008. This final call-back inspection report (Petitioner's Exhibit 3) described the violations that remained uncorrected. The Department uses the terms "critical" and "non- critical" to describe violations of the "Food Code." The "Food Code" as it is used in this record, refers to paragraph 1- 201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C- The Food Code is also available through the U. S. Food and Drug Administration Internet website. "Critical" violations of the Food Code are conditions that, if not corrected, could lead to food contamination, food borne illness, or environmental degradation. A "non-critical" violation relates to a preventative measure or practice to keep the environmental conditions of food preparation and service in proper order. If not corrected, a "non-critical" violation has the potential to become a "critical" situation. When Inspector Becker returned to the Respondent's establishment on January 17, 2008, the critical violations described in paragraph 4 were not fully corrected. For example, Inspector Becker observed roach activity within the kitchen of the Respondent's establishment. Roach activity is considered a critical violation as roaches are a direct contributor to the contamination of food and the spread of bacteria and disease. Inspector Becker documented the number and location for each roach discovered at the site. Additionally, Inspector Becker observed unmarked ready-to-eat food that was not appropriately tagged. Date marking ready-to-eat food is necessary to prevent spoilage and the growth of bacteria. Foods may only be held at designated temperatures and within certain conditions for a limited time period. If left unmarked, it is impossible to discern whether the guidelines have been met. Third, Inspector Becker found the hand wash sink lacked proper drying provisions. Although a repeat violation from the previous inspection, the Respondent corrected this violation on site. The fourth critical violation related to uncovered food in holding situations. Food must be properly covered to prevent exposure to contamination. Whether in a walk-in cooler or other station, food must be covered. Sauces and pasta are considered "food." The final critical violation was soiled gaskets on several kitchen appliances or preparation surfaces. Cooler gaskets at the prep reach-in cooler, cooler gaskets at the pizza station, and gaskets near a fryer were dirty or soiled. When gaskets are soiled the mere opening and closing of the device can spread filth and expose food to contaminants. Gaskets must be kept clean and free of all potential contaminants. In addition to the foregoing, there were several non- critical violations of a preventative nature that the Respondent failed to correct. These violations could easily be corrected and did not pose an immediate threat to the public. For example, a restaurant employee without hair restraint is easily corrected. In testifying for the Respondent, Mr. Pierre Louis maintained that while the inspection report of November 13, 2007, was correct, he had since made the corrections necessary to bring the restaurant into compliance. Those corrections were not, however, completed before January 17, 2008. Mr. Pierre Louis described difficulty finding replacement gaskets for the equipment. The inference being that the gaskets could not be cleaned but had to be replaced. Mr. Pierre Louis did not advise the Department of the difficulty in making the replacements until the time of hearing. The Respondent was given over 60 days within which to make the necessary corrections. The Respondent did not correct the roach problem between November 13, 2007, and January 17, 2008, despite its representation that it had hired an extermination company to address the problem. Roach presence is a critical violation that cannot go unattended or inadequately treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against the Respondent in the amount of $3,500.00. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper sanitary measures are adopted at the restaurant. DONE AND ENTERED this 26th day of September, 2008, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2008. COPIES FURNISHED: Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cheri-ann Granston Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ernst Pierre Louis Rosarios II Italian Restaurant 12691 West Sunrise Boulevard Sunrise, Florida 33323
