The Issue The issue is whether Respondent violated provisions of the Food Code and, if so, should be penalized for such violations. For the reasons set forth below, Respondent has committed violations for which he should be penalized.
Findings Of Fact At all times material to this matter, Respondent was licensed as a public food establishment in the State of Florida by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department). Respondent's business address is 963 North Suncoast Boulevard, Crystal River, Florida. Petitioner's witness, Jill Craig, is employed by the Department as a senior sanitation safety specialist at 1313 North Tampa Street, Tampa, Florida 33602. Inspector Craig has worked for the Department in her current capacity for five years. Prior to working for the Department, Inspector Craig worked as a food server, prep cook, managed a grocery store, and performed housing inspections for the Department of Health in Indiana. Upon coming to work at the Department, Inspector Craig was versed in the Food Code, trained on the laws and rules pertaining to public food and lodging establishments, trained in Hazardous Analysis and Critical Control Points (HACCP), and became a certified food manager. Inspector Craig continues to receive training on a monthly basis. She performs about 1,500 food service inspections a year. "Critical violations" are those that are likely to result in food-borne illness or environmental degradation. "Non-critical violations" are minor issues that are not classified as critical violations. Inspection reports are electronically prepared on a personal data assistant by the inspector. On October 26, 2009, Inspector Craig performed a routine food service inspection of Olive Tree Restaurant, Respondent's place of business. During the inspection, Inspector Craig prepared and signed an inspection report setting forth the violations she encountered during the inspection. On the date of that inspection, Inspector Craig notified Respondent about the violations. Respondent's representative, Manny Kokkolis, signed the inspection report. The inspector also informed Mr. Kokkolis that all of the violations would have to be corrected by December 28, 2009. On January 21, 2010, Inspector Craig performed a callback inspection of Olive Tree Restaurant. During the inspection, she prepared and signed an inspection report indicating that some of the violations had not been corrected. On the date of the callback inspection, Inspector Craig made Respondent aware of the violations that had not been corrected, and Respondent's representative, Caitlin Tellier, signed the inspection report. Based on the violations that had not been corrected, the inspector recommended an administrative complaint be issued against Respondent. The most serious violation observed during the October 26, 2009, and January 21, 2010, inspections was no certified food manager on duty with four or more employees engaged in food preparation. This is a critical violation because public food service establishments are required to have a certified food service manager on site when four or more employees are engaged in food preparation to oversee the employees and ensure compliance with the laws and rules relating to public food safety. Respondent admitted there was no certified food manager on duty when Inspector Craig made her two visits to Respondent's food service establishment. The next most serious violation observed during the two inspections was food stored on the floor in the dry storage area. This is a critical violation because packaged food must be stored at least six inches above the floor to prevent contamination by pathogens. Respondent testified that cases of food may have been placed on the ground after delivery and had not been there long. However, Food Code Rule 3-305.11 requires food to be protected from contamination at all times by storing the food at least six inches above the floor. The next most serious violations observed during the two inspections were accumulation of food residue on the reach-in freezer and soiled reach-in cooler and freezer gaskets. These are critical violations as well because pathogens on the food contact surface can contaminate the food product. Respondent testified that the refrigerator and gaskets acquire a build-up of mold, despite his efforts to keep them clean. He noted that the mold and residue was on the outside of the freezer and cooler. He also testified that following the callback visit by Inspector Craig, he had an additional two employees certified to handle food and supervise those who are handling food. The final three violations were all deemed non- critical by Inspector Craig. The first concerned the storage of bakery pan liners on the floor in the dry storage area. This is non-critical, but single serve articles can become contaminated before their intended use if exposed to pathogens like those found on the restaurant's floor. The second non-critical violation observed by Inspector Craig was the build-up of a mold-like substance on the surface of the mop sink. Although non-critical, the objective of cleaning is sanitization and that objective is not met when the mop sink is encrusted with mold. The final non-critical violation observed by Inspector Craig was that the floor and wall junctures were not coved.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty in the amount of $250 for the critical violation concerning Respondent's failure to have a certified food manager on duty; $250 for the critical violation of storing food on the floor in the dry storage area; $250 for the critical violation of food residue on the freezer and cooler gaskets; $150 for the non-critical violation of storing bakery pan liners on the floor in the dry storage area; $150 for the non-critical violation of allowing a mold-like build-up on the mop sink; and $150 for the non-critical violation of not having the floor and wall junctures coved. The total fine in the amount of $1,200 shall be paid to the Division of Hotels and Restaurants within 30 days of the entry of its final order. DONE AND ENTERED this 15th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Paul Parnos Olive Tree Restaurant 963 North Suncoast Boulevard Crystal River, Florida 34429 Megan Demartini Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Restaurant was a licensed public food service establishment located at 595 West Church Street, Suite L, Orlando, Florida. The Restaurant was first licensed in July 2006, and its food service license number is 5811488. Petitioner is the state agency charged with the regulation of hotels (public lodging establishments) and restaurants (public food service establishments) pursuant to chapter 509. Will Goris is a sanitation and safety specialist for Petitioner. Mr. Goris has worked for Petitioner for eight years. Prior to working for Petitioner, Mr. Goris worked for the U.S. Army for eight years as a food safety inspector. Mr. Goris received Petitioner's standardized training on the laws and rules governing public food service establishments.2/ Mr. Goris is a certified food manager and obtains monthly in-house training from Petitioner on his job duties. On February 22, 2011, Mr. Goris performed a routine inspection of the Restaurant starting at approximately 12:39 p.m. The Restaurant was fully operational at the time, as it was the lunch hour. Mr. Goris observed live roach activity (infestation) at the Restaurant in the following locations: under a mat by the three-compartment sink; on a peg board adjacent to a hand-sink; under a box of onions; inside a box of pasta; by the water heater; and by the wheels of the reach-in cooler. Mr. Goris also observed dead roaches in various locations at the Restaurant. Critical violations are those violations that, if uncorrected, are most likely to contribute to contamination, illness or environmental health hazards. Insects and other pests are capable of transmitting diseases to humans by contaminating the food or food contact surfaces, and this roach infestation was identified by Mr. Goris as a "critical" violation. Maria Radojkovic is the manager of the Restaurant. As Mr. Goris was conducting the inspection, he asked Ms. Radojkovic to observe the same roach activity he was observing. At the conclusion of the February 22, 2011, inspection, Mr. Goris recorded the observed violations in an inspection report which he printed out. Ms. Radojkovic signed the inspection report and received a copy of it at that time. There was no evidence to dispute the allegations. Ms. Radojkovic confirmed that the roaches "got brought in by deliveries and boxes." The Restaurant had at least two extermination companies to combat the roach infestation problem. When the first company was unsuccessful, Ms. Radojkovic hired a different company. However, it took several months for the second company to "get rid of" the roaches. Ms. Radojkovic expressed her understanding that the Restaurant needs to be clean, and she is aware of the various access points for roaches to enter it. Although she maintains it is impossible for any restaurant to be roach-free, Ms. Radojkovic maintains that it "just takes time to contain" them. None of the other putative violations mentioned in the inspection report (Petitioner's Exhibit 2) were addressed at final hearing and are therefore irrelevant to this proceeding. No evidence was introduced that a patron had become ill as a result of the infestation. On February 22, 2011, the Restaurant was served an Emergency Order of Suspension (ESO) following the inspection of that date. Although there was no testimony as to when the ESO was actually lifted, at the time of the hearing, the Restaurant was open for business. On February 28, 2010, a Final Order was issued involving the Restaurant regarding an Administrative Complaint that was issued on September 29, 2009. This Administrative Complaint was based on a June 16, 2009, inspection and a September 9, 2009, re-inspection. The issue therein was unrelated to the issue at hand.
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 which confirms the violation found and imposes an administrative fine in the amount of $1,000 due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of June, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 June, 2012.
The Issue The issue in this case is whether on April 19, 2010, and July 27, 2010, Respondent was in compliance with food safety requirements set forth in administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation (Division), and if not, 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. Julianne Browning has been employed as a senior inspector with the Division for six or seven years. It is part of her responsibility to inspect food service establishments for safety and sanitation. She conducts approximately 850 inspections each year. Respondent is licensed as a public food establishment operating as The Green Mango at 7625 West Newberry Road, Gainesville Florida. On April 19, 2010, Ms. Browning conducted a food service inspection on Respondent. Ms. Browning prepared and signed an inspection report setting forth the violations that she observed during the inspection. During her April inspection, Ms. Browning observed an employee engage in food preparation, handle clean equipment or utensils, or touch unwrapped single service items, without washing hands. Ms. Browning identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. The failure of a food service employee to wash their hands constitutes a significant threat to the public health, safety, and welfare. Inspector Browning also observed in April potentially hazardous cold food held at temperatures greater than 41 degrees Fahrenheit. Specifically, she observed potatoes at 68 degrees, batter at 70 degrees, rice at 85 degrees, soup at 55 degrees, turnovers at 90 degrees, and butter at 90 degrees. Ms. Browning made notes of these observations in her report. She identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. Potatoes, batter, rice, soup, and turnovers are potentially hazardous foods and Respondent failed to maintain them at a temperature of 41 degrees Fahrenheit or less. This failure constituted a significant threat to the public health, safety, and welfare. On July 27, 2010, Ms. Browning conducted another food service inspection on Respondent. Again she prepared and signed an inspection report setting forth the violations that she observed during the inspection. During the July inspection, Ms. Browning again observed an employee engage in food preparation, handle clean equipment or utensils, or touch unwrapped single service items, without washing hands. She observed that an employee did not wash his hands before putting on gloves to prepare food. Ms. Browning identified this as a critical violation on DBPR Form HR-5022- 015, the Food Service Inspection Report. It is necessary for employees preparing food to wash their hands even if they are going to be wearing gloves because the gloves could have a tear, or a pin hole, or be otherwise compromised. The failure to wash hands constituted a significant threat to the public health, safety, and welfare. During the July inspection, Ms. Browning observed what she described as clarified butter, which here will be referred to as ghee, on the counter with a temperature of 80 degrees. Inspector Browning also again observed potentially hazardous cold food held at temperatures greater than 41 degrees Fahrenheit. In this instance she observed cream at 47 degrees, tofu at 45 degrees, milk at 45 degrees, potatoes at 45 degrees, yoghurt at 45 degrees, and cooked vegetables at 55 degrees. Ms. Browning identified this as a critical violation on DBPR Form HR-5022-015, the Food Service Inspection Report. Cream, tofu, milk, potatoes, yoghurt, and cooked vegetables are potentially hazardous foods and Respondent failed to maintain them at a temperature of 41 degrees Fahrenheit or less. Potentially hazardous food must be kept at 41 degrees Fahrenheit or below because when the temperature rises above that temperature, bacteria begin to grow at a much faster rate. A person consuming the food can then contract a food-borne illness. The failure to maintain these temperatures constituted a significant threat to the public health, safety, and welfare. Ms. Pandey, witness for Respondent, is an experienced cook. She worked for many years at a Hare Krishna Temple in Alachua County. She is knowledgeable in the preparation and use of ghee. Ms. Pandey testified that ghee is a form of clarified butter that has been used for a great many years in India, and is still used in significant amounts there, precisely because of the widespread lack of refrigeration. Ghee does not spoil as fast as butter or milk or yoghurt. Ms. Pandey testified that ghee is not perishable and that it is therefore not dangerous when at room temperature. She further testified that refrigeration in fact makes it very difficult to use ghee, because it becomes hard and loses its flavor. It was not clear from the evidence presented that ghee is a potentially hazardous food or that failure to keep it at a temperature of 41 degrees Fahrenheit or less constituted a significant threat to the public health, safety, or welfare. The testimony and admitted reports of Inspector Browning as to the failure of Respondent's employee to wash his hands were clear and the reports were recorded at the time of the observation. Ms. Pandey offered no evidence to the contrary. Her unsworn assertion during argument that her husband was not preparing food, but only put on protective gloves because he was aware of the inspection and was scared was not credible, even if it had been offered as testimony. The testimony and admitted reports of Inspector Browning as to the temperature of the foods was clear and was recorded at the time of the observation. Ms. Pandey offered no evidence to the contrary. Her unsworn assertion during argument that the refrigerator holding the food was not being used in the restaurant but was only for storage of personal items was not credible, even if it had been offered as testimony. Petitioner issued an Administrative Complaint against Respondent for the above violations on August 2, 2010. Respondent has had two previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. In the first Stipulation and Consent Order, signed by Anuradha Pandey on January 10, 2010, and entered on January 15, 2010, Respondent agreed to pay a fine of $1550.00, but did not admit nor deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the second Stipulation and Consent Order, signed by Anuradha Pandey on June 2, 2010, and entered on June 10, 2010, Respondent agreed to pay a fine of $2,000.00, but again did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. The June 10, 2010 Stipulation and Consent Order was in settlement of an administrative complaint issued on May 10, 2010, alleging violations of the Food Code revealed in an April 19, 2010 inspection, one of the same inspections for which evidence was submitted in this case.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a Final Order imposing a total fine of $1500.00 against The Green Mango for the two critical violations occurring on July 27, 2010, to be paid within 30 calendar days of the filing of the Final Order with the Agency Clerk. DONE AND ENTERED this 23rd day of January, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2012.
The Issue The issue in this case is whether Respondent violated provisions of the Food Code, and, if so, what penalties should be imposed.
Findings Of Fact At all times relevant hereto, Respondent was licensed as a public food establishment in the State of Florida by the Division. Respondent held license no. 1505960 in the name of China No. 1 (the "Restaurant"), located at 3014 West New Haven Avenue, Melbourne, Florida 32904. The Division is the state agency responsible for the licensing and regulation of public food service establishments pursuant to chapter 509, Florida Statutes (2011).1/ Ms. Schoenly is employed by the Division as a sanitation and safety inspector. In that capacity, she conducts inspections of food service and lodging establishments for compliance with the provisions of chapter 509 and the Food Code. Prior to becoming an inspector for the Division, Ms. Schoenly worked for 17 years with McDonald's restaurants, including two years as a crew person and 15 years in management. Upon taking a position with the Division, Ms. Schoenly received training in the laws and rules utilized for food and lodging inspections. She continues to receive education in this area on a monthly basis. When Ms. Schoenly conducts an inspection of a restaurant, she looks for both critical and non-critical violations. Critical violations are those that will likely lead to food-borne contamination and food-borne illness. A non-critical violation is less likely to lead to food-borne illness or contamination. Ms. Schoenly performs in excess of 700 inspections per year as part of her job. On April 18, 2011, Ms. Schoenly performed a routine inspection of the Restaurant. Routine inspections are performed on a regular basis by the Division. Routine inspections are done without prior notice to the operator or owner of the restaurant to be inspected. During the routine inspection, which commenced at approximately 1:45 p.m., Ms. Schoenly found a number of violations, including two critical violations and several non-critical violations. The Restaurant was provided notice of the violations and was allowed to correct some of them while Mr. Schoenly was still present. Upon completion of the inspection, Mr. Schoenly gave Mr. Ni a copy of the Food Inspection Report she had filled out. The report specified all areas of non-compliance and indicated that a follow-up or call-back inspection would be performed on June 15, 2011, at 8:00 a.m. Unlike the routine inspections, restaurants are given prior notice concerning call-back inspections. On June 15, 2012, Ms. Schoenly, accompanied by Edwin Weimer, another inspector, returned for the call-back inspection. They arrived during the lunch hour, at 12:31 p.m., rather than 8:00 a.m., as set forth on the initial Food Inspection Report. The Restaurant was not open at 8:00 a.m., thus, necessitating a later visit than originally scheduled. During the call-back inspection, Ms. Schoenly found that a number of the violations from the prior visit had been corrected. However, there were still three critical and three non-critical violations extant. The critical violations were: 03A-07-1 A corn starch and water mixture was stored at a temperature of 81º (it had been at 68º during the initial inspection). 08A-28-1 Noodles were stored on the floor in boxes in a dry storage area. 08A-29-1 Egg rolls and broccoli were stored in uncovered containers. 22-22-1 A can opener was badly soiled. The non-critical violations found during the call-back inspection were: 23-07-1 Soiled gaskets in the reach-in cooler; food debris on and under the shelving; and, a heavy grease build-up under the refrigeration unit. 14-47-1 Cutting boards were grooved and pitted. 15-35-1 Heavily soiled cardboard on shelves. As a result of Ms. Schoenly's findings, an Administrative Complaint was issued against the Restaurant. Mr. Ni, owner of the Restaurant, disputes the findings made by Ms. Schoenly and Mr. Weimer. 03A-07-1 (Food Code Rule 3-501.16(A)) Ms. Schoenly found the corn starch mixture to be at unacceptable temperatures. Food should be stored at 41º or lower or 135º or higher. Once food is removed from its controlled temperature environment, it can be stored at room temperature for up to four hours. However, in order for a restaurant to keep food outside its storage area, there must be a written time record posted on the wall clearly delineating how long the food had been outside the temperature-controlled environment. During the initial inspection by Ms. Schoenly, there was no time/temperature control form on the wall at the Restaurant. Ms. Schoenly explained the form to Mr. Ni so he could use it in the future. The Restaurant did have a time/temperature control form posted during the call-back inspection. Mr. Weimer testified that the form was not complete because there was no signature on it. However, Mr. Ni said his signature was on the second page of the report. Mr. Weimer said he did not take the form down off the wall to see if there was a signature on the second page. Ms. Schoenly and Mr. Weimer testified they could not tell how long the food had been out of its protected environment. However, inasmuch as the Restaurant opens at 11:00 a.m., and the inspection was conducted at 12:45 p.m., it is doubtful the corn starch mixture had been out for more than four hours. The Division did not prove by clear and convincing evidence that the Restaurant had violated this standard. 08A-28-1 (Food Code Rule 3-305.11) Ms. Schoenly found dry noodles being stored on the floor of a dry storage area in the Restaurant. The noodles were stored in what Ms. Schoenly described as "a box." The box was not open to the best of her recollection, but she could not specifically remember.2/ Mr. Ni said the noodles were stored in five-gallon buckets that had originally held Kikkoman soy sauce. The soy sauce buckets are waterproof and had lids on them. The buckets were sitting on the floor of the dry storage area, but they were protected from cross-contamination. It is impossible to ascertain from the contradictory evidence whether the noodles were stored in such a fashion as to allow for cross-contamination from other sources. Thus, the Division did not meet its evidentiary burden as to this critical standard. 08A-29-1 (Food Code Rule 3-305.11) Ms. Schoenly found egg rolls and washed broccoli stored in the walk-in cooler without being covered. The egg rolls were in wire baskets, and the broccoli was in a plastic food container called a Cambro, a plastic box. She saw that as a possible means of cross-contamination with other foods or items stored nearby, because "anything can drip on the food." Mr. Ni said the egg rolls were stored in wire baskets on the top shelf in the walk-in cooler so that nothing else would drip on them. The egg rolls were available to re-stock the buffet line during the lunch rush. The broccoli was stored in the case in which it had been delivered to the Restaurant. It is not clear from the evidence exactly where in the walk-in cooler the broccoli was being stored at the time of the inspection. The Division met its burden of proof as to the existence of uncovered egg rolls. However, any potential violation is mitigated by the fact the egg rolls were stored on the top shelf and were being actively removed from the cooler as part of the lunch-time operations. The evidence is not conclusive as to how the broccoli was stored, but Ms. Schoenly's recollection, supported by her notes, indicates it was not stored properly. Mr. Ni did not provide substantive rebuttal to that fact. 22-22-1 (Food Code Rule 4-101.11) The can opener being used by the Restaurant was heavily soiled, thus, creating a hazard for possible food contamination. Mr. Ni said the can opener is old, but that even after he cleaned it, the can opener still looked dirty. The Division met its burden of proof as to this critical standard. 23-07-1 (Food Code Rule 4-101.111) Ms. Schoenly found three potential violations under this portion of the Food Code: Soiled gaskets in the reach-in cooler; food debris on or under the shelving; and heavy grease buildup under the refrigeration unit. She could not remember at what part of the inspection process she saw these violations. Mr. Ni said the gaskets had been cleaned with soapy water and bleach, but because they are old, they do not appear clean. The Division met its burden of proof as to the non-critical standards concerning food debris and heavy grease, but not as to the soiled gaskets. 14-37-1 (Food Code Rule 4-501.12) There was a cutting board used in the Restaurant that was heavily pitted with long, deep grooves in it. Ms. Schoenly found the cutting board to be unacceptable, because it could not be cleaned or sanitized adequately after each use due to the depth of the grooves. Mr. Ni sanded the cutting board between the initial inspection and the call-back inspection to alleviate the problem. At the time of the call-back, Ms. Schoenly found the cutting board to still be in an unacceptable condition. The Division met its burden of proof as to this non-critical standard. 15-35-1 (Food Code Rule 4-101.111) During the initial inspection and again at the call-back, Ms. Schoenly found heavily soiled cardboard on the shelving used for storing items in the Restaurant. The cardboard was an allowable means of covering the shelves, but it would need to be discarded once it became soiled. Mr. Ni said the cardboard was soiled because it had been used that day, but that it was to be discarded that very day. His testimony in that regard is not credible. The Division met its burden of proof as to this non-critical standard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, finding Respondent, No. 1 China, guilty of violating one critical and four non-critical Food Code standards. A fine of $650.00 shall be paid by No. 1 China within 30 days of entry of the final order in this matter. DONE AND ENTERED this 17th day of July, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2012.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 29, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See section 509.032(1), Florida Statutes. Carvel is a food service establishment licensed and regulated by the Department and located at 3148 Coral Way, Miami, Florida 33145. On July 22, 2009, Jorge Gandolff, a senior inspector of public food service establishments employed by the Division, inspected the premises of Carvel. As an inspector for the Division, Mr. Gandolff was required to complete a Food Service Inspection Report, DBPR Form HR 5022-016 and -015 ("Form HR 5022-016 and -15"), for each public food service establishment that he inspected. During the inspection of Carvel, Mr. Gandolff noted that Carvel was not in compliance with a number of the items listed on the Form HR 5022-016 and -15 inspection report. Mr. Gandolff noted that, among other things, he "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on floor"; "observed food container not properly labeled." It was Mr. Gandolff's practice, and the usual practice of Division inspectors, to complete the Form HR 5022-016 and -15 inspection report and record the violations he observed at a public food service establishment on a personal digital computer. At the end of the inspection, it was his practice to obtain the signature of the person in charge on the Form HR 5022-016 and -15 inspection report, print a copy of the report, and review the violations that had been noted with the person in charge. Mr. Gandolff followed his usual practice in completing the inspection of Carvel on July 22, 2009. He prepared a Form HR 5022-016 and -15 Food Service Inspection Report setting forth his findings and noted on the report that Carvel "MET INSPECTION STANDARDS during this visit" and that "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." (Emphasis in original.) Zoila Fernandez, an employee of Carvel, signed the inspection form, and Mr. Gandolff went over the inspection findings with her. Mr. Gandolff inspected the premises of Carvel for the second time on November 24, 2009. In addition to several other violations, Mr. Gandolff noted on the Form HR 5022-016 and -15 inspection report that he again "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on walk-in cooler floor Cardboard boxes of chocolate chip"; "observed food container not properly labeled ice cream containers not labeled stored inside self service freezer in customer area." These six items were considered repeat violations; that is, these items were found to be out of compliance with the Food Code at the July 22, 2009, inspection. In addition, these six items were marked with an asterisk on the Form HR 5022-016 and - 15 inspection report, which designated them as "critical" violations. Mr. Gandolff recommended that these items be included as violations in an Administrative Complaint. Mr. Gandolff also noted on the Form HR 5022-016 and -15 inspection report that the "Inspector determined violations require further review, but are not an immediate threat to the public." Zoila Reyes, an employee of Carvel who was on the premises during the November 24, 2009, inspection signed the inspection report. She was not able to accompany Mr. Gandolff during the entire inspection because the store was busy, but Mr. Gandolff went over the inspection report with her. Ms. Shah was not present during either of the inspections. It is her practice to come into the store early and prepare the store to open. Her preparations include cleaning the premises and the equipment. Mr. Gandolff found three items during both the July 22, 2009, and November 24, 2009, inspections that he wrote up as a single violation of the Food Code and that he considered the most serious violation of the Food Code. The first item was the build-up of food on the mixer head that was not just the normal amount of build-up that occurs during a workday but was old, dry, and crusted. Mr. Gandolff considered this a serious condition because this piece of equipment came in direct contact with food and could contaminate it. The second item was the slime build-up inside the interior of the ice machine, which Mr. Gandolff considered a serious condition because the ice came into direct contact with the interior of the ice machine and could be contaminated by the slime. The third item was the soiled gaskets on the reach-in freezer that was a black residue probably resulting from the buildup of old product. Mr. Gandolff considered this a serious condition because the freezer gaskets are very close to the product in the freezer, and the product could be contaminated if it came into contact with the gaskets. The violation Mr. Gandolff considered the next most serious violation of the Food Code found during both the July 22, 2009, and November 24, 2009, inspections was a cardboard box containing chocolate chips stored directly on the floor of the walk-in cooler because the food product inside the box could be contaminated by water or any other residue on the floor of the cooler, especially if, as here, the food product is stored in a cardboard box that could absorb water from the cooler floor. In addition, Mr. Gandolff considered the absence of labels on containers of ice cream stored in a freezer accessible to customers to be a serious violation of the Food Code because a customer must be able to look at the label on the food product and know the ingredients in the product and the date the product was prepared so the customer can make a determination if the product is safe for them to eat. Mr. Gandolff also considered the uncovered trash receptacle in the women's bathroom a serious violation of the Food Code because such receptacles must be covered to avoid exposure of women's sanitary napkins. These violations are all critical violations because they pose a significant danger to the public health and because they are identified as critical violations on the inspection report forms Mr. Gandolff completed on July 22, 2009, and November 24, 2009, recording his observations of the Carvel premises. Ms. Shah has owned the Carvel store for approximately 14 years, and, during that time, the store has not been cited for any violations as a result of inspections by the Division. The Carvel store owned by Ms. Shah is very small and, because of the poor economic conditions of recent years, Ms. Shah makes very little money at the store and is barely able to keep the business open. Summary The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that there were five repeat violations of the Food Code on the premises of Carvel during the November 24, 2009, inspection. Ms. Shah failed to present sufficient evidence to establish that the violations observed by Mr. Gandolff were not present. First, her explanation of the missing cover on the waste receptacle in the women's bathroom, that the receptacle had just been emptied and that the cover was sitting on the floor beside the receptacle, could have explained the missing cover during the first inspection, but the same explanation would have presented too much of a coincidence to be a persuasive explanation for the missing cover at the second inspection. Second, Ms. Shah's categorical denial that any equipment on the store's premises was soiled or otherwise not perfectly clean, her testimony that she cleans everything in the store every morning; that the equipment is cleaned continually during the day; and that all supplies are stored properly in the walk-in cooler and her testimony is not sufficient to refute the specific observations noted by Mr. Gandolff on the inspection reports. Finally, Ms. Shah's testimony that all pre-packed ice cream available for purchase in the store's self-service freezer is packed in containers with labels provided by Carvel, Inc. In the absence of information regarding the content of the labels provided by Carvel, Inc., Ms. Shah's testimony does not refute the Mr. Gandolff's contention that the containers of ice cream did not have labels disclosing the date the ice cream was packed into the containers and the ingredients in the ice cream.
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 Carvel Ice Cream Bakery guilty of having violated Florida Administrative Code Rule 61C-4.010(1)(c) and Food Code Rules 3-305.11; 3-602.11(A); 4-602.11(C) and (D); and 5-501.17; and Imposing an administrative fine in the amount of $525.00. DONE AND ENTERED this 14th day of June, 2011, in Tallahassee, Leon County, Florida. S Patricia M. Hart 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 June, 2011.
The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Harrison’s is licensed by the Division as a permanent food service establishment. Harrison’s license number is 6213138. Laura Kennedy, a sanitation and safety inspector for the Division, conducted a routine inspection of Harrison’s on March 16, 2005. Based upon her inspection, Ms. Kennedy documented 28 areas in which Harrison’s was in violation of the statutes and rules governing restaurant operations. One of the violations, No. 35A-01, was based upon Ms. Kennedy’s observation of ten dead roaches in Harrison’s dry storage area. She required Harrison’s to correct that violation within 24 hours. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on March 17, 2005, to determine whether the roaches had been cleaned up, which they had been. Ms. Kennedy gave Harrison’s 30 days to correct the remainder of the violations that she documented during her inspection on March 16, 2005. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on April 19, 2005, to determine whether the other violations had been corrected. During the inspection, Ms. Kennedy noted that some of the violations had been corrected, but that others had not been corrected. Five of the uncorrected violations were “critical” violations because, according to Ms. Kennedy, they posed an immediate threat to the public health. Three of the uncorrected violations were “non-critical” because, according to Ms. Kennedy, they posed a risk to the public health but not an immediate threat. The critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 45-17, 45-10, 45-30, 46-11, and 8A-04. Violation No. 45-17 was based upon Ms. Kennedy’s observation that the tag on the fire suppression system on the hood over the cooking area was out of date. The tag is supposed to be updated every six months, but the tag observed by Ms. Kennedy at Harrison’s was dated July 2003. Violation No. 45-10 was based upon Ms. Kennedy’s observation that the portable fire extinguishers were out of date. Fire extinguisher tags are supposed to be updated every year, but the tags on the extinguishers at Harrison’s reflected that two of them had not been inspected since December 2002 and another had not been inspected since July 2003. Violation No. 45-30 was based upon Ms. Kennedy’s observation that Harrison’s did not have the required inspection report for the fire suppression system for the hood over the cooking area. The purpose of requiring a current tag and inspection report on the hood fire suppression system and current tags on the portable fire extinguishers is to ensure that those devices are in good working order in the event of a fire. As a result, the out-of-date tags are considered to be critical violations. Violation No. 46-11 was based upon Ms. Kennedy’s observation that the emergency exit signs over Harrison’s side doors and the back door were not illuminated. This is a critical violation because the purpose of the illuminated signs is to guide restaurant patrons to an exit in the event of an emergency. Violation No. 8A-04 was based upon Ms. Kennedy’s observation of uncovered food in the walk-in cooler. This is a critical violation because uncovered food is subject to contamination. The non-critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 32-14, 22-02, and 23-01. Violation No. 32-14 was based upon Ms. Kennedy’s observation that there was no hand-washing soap at a sink in the kitchen. The absence of soap did not pose an immediate threat to the public health, but it is required so that employees involved in the preparation of food can wash their hands for their own hygiene and for the protection of the restaurant’s patrons. Violation No. 22-02 was based upon Ms. Kennedy’s observation of built-up of grease in the oven. Violation No. 23-01 was based on Ms. Kennedy's observation of built-up of grease on the sides of equipment in the cooking area. The built-up grease did not pose an immediate threat to the public safety, but cleanliness in the cooking area is important so as not to attract vermin and to prevent contamination of the food being cooked. Ms. Kennedy documented the violations described above on the Food Service Inspection Reports that she prepared at the time of her inspections. Copies of the reports were provided to Harrison’s at the end of each inspection, as reflected by the signature of Rafma Balla on each report. Mr. Balla is identified on the reports as Harrison’s manager/owner. The record does not reflect whether the violations described above have been corrected by Harrison’s since Ms. Kennedy’s last inspection on April 19, 2005. Harrison’s was provided due notice of the date, time, and location of the final hearing, but no appearance was made on its behalf at the hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order that: Imposes an administrative fine of $2,600 on Harrison’s for Violation Nos. 45-17, 45-10, 45-30, 46-11, 8A-04, and 32-14, payable on terms prescribed by the Division in the final order; and Requires Harrison’s to correct the critical violations related to the portable fire extinguishers, hood fire suppression system, and exit signs within 15 days of the date of the final order, and to provide proof thereof to the Division; and Requires Harrison's owner and/or manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 28th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 28th day of October, 2005.
The Issue The issues in this case are whether Respondent has violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11, and, if so, what discipline should be imposed.
Findings Of Fact Mama B.’s is a restaurant located in Orlando, Florida. The Department is the state agency which is charged with the licensing and regulation of public food establishments in Florida pursuant to Section 20.165 and Chapter 509, Florida Statutes. On July 13, 2005, Andrea Piel, an inspector for the Department, went to Mama B.’s to perform a food service inspection. Ms. Piel found that the sandwich cooler located at Mama B.’s was not maintaining potentially hazardous food at 41 degrees Fahrenheit or below. Specifically, she found that the temperature of the ham, turkey, and seafood in the reach-in cooler was 47 degrees Fahrenheit. The temperature of the salami in the reach-in cooler was 50 degrees Fahrenheit, and the temperature of the pepperoni and pastrami stored in the reach-in cooler was 48 degrees Fahrenheit. The temperature of the cheese in the reach-in cooler was 42 degrees Fahrenheit. On the same inspection, Ms. Piel also found that hot foods were not being held at a temperature of at least 135 degrees Fahrenheit. She found the following on the front line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at 112 degrees Fahrenheit, and cooked onions at 130 degrees Fahrenheit. On her inspection on July 13, 2009, Ms. Piel also observed that Mama B.’s was not using proper cooling methods to cool hot food from 135 to 41 degrees Fahrenheit within six hours. Steak was being cooled in deep containers with tight fitting lids. Ms. Piel saw tomatoes being stored less than six inches above the floor. There was ready-to-eat cheese, which had been rewrapped and undated, stored in a cooler. On July 13, 2009, Mama B.’s was given a warning by Ms. Piel, and a call-back inspection was scheduled for July 14, 2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the call-back inspection. She again observed that tomatoes were being stored about an inch off the ground. There was food being stored in the sandwich cooler at temperatures above 41 degrees Fahrenheit. The cooler contained ham and salami at 48 degrees Fahrenheit; capicola and seafood at 50 degrees Fahrenheit; turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro meat at 45 degrees Fahrenheit. On July 15, 2009, Ms. Piel also saw steak and onions, which were being cooled in deep containers with tight fitting lids. She also saw hot pastrami being held at 125 degrees Fahrenheit. Ms. Piel testified that the pastrami being held was not for orders waiting to be filled. Ms. Piel did not explain how she knew that there were no other orders for pastrami sandwiches. Mr. Adamik, an owner of Mama B.’s who was present at the time of the July 15, 2009, inspection, testified that there were several orders for pastrami sandwiches, which were being filled at the time Ms. Piel observed the pastrami. According to Mr. Adamik, the rolls were already placed on the board awaiting the placement of the pastrami, but, because the preparation area was so small, it was impossible to completely prepare more than one pastrami sandwich at a time. Mr. Adamik’s testimony is credited. The pastrami, which Ms. Piel observed, was being used for immediate service in response to consumer orders. The cooler in which the food was being stored above 41 degrees Fahrenheit had been in operation at Mama B.’s since the late 1990’s. The machine cools from beneath and does not also cool from the top as newer models do. After the violations were noted on July 15, 2009, the old cooler was replaced. Mama B.’s had contacted a repairman after the July 13, 2009, inspection, but the cooler could not be repaired so as to make it cool foods at 41 degrees Fahrenheit or less. Mr. Adamik knew that the location of the tomatoes was a violation, but he did not correct it by the July 15, 2009, because he was busy trying to get the cooler repaired. Mr. Adamik had no explanation why the ready-to-eat food, which had been opened at Mama B.’s, did not have appropriate date marks. Violations of Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B) are considered to be critical violations by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the violation of Food Code Rule 3-305.11; imposing a fine of $300 for the violation of Food Code Rule 3-501.15; imposing a fine of $500 for the violation of Food Code Rule 3-501.16(A); and imposing a fine of $400 for a violation of Food Code Rule 3-501.17(B). DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 16th day of February, 2010.
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 Whether Chef Creole Seafood, Inc., d/b/a Chef Creole (Respondent), committed the offenses alleged in the Administrative Complaint dated August 5, 2014, and if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Chef Creole Seafood, Inc., d/b/a Chef Creole (Respondent), was a restaurant subject to the regulation of the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner). Respondent’s license number is 2330245. Respondent is required to comply with all relevant provisions set forth in chapter 509, Florida Statutes; Florida Administrative Code Chapter 61C; and the Food Code. Respondent has multiple locations. Respondent’s address at issue in this proceeding is 200 Northwest 54th Street, Miami, Florida 33127 (the subject premises). At all times relevant to this proceeding, Wilkinson Sejour was Respondent’s owner and president. Sharon Bures is employed by Petitioner as a sanitation and safety specialist. Ms. Bures is properly trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. Ms. Bures performed approximately 720 inspections during the fiscal year that preceded the formal hearing. On April 21, 2014, beginning at 3:57 p.m., Ms. Bures performed a routine inspection of the subject premises. As part of the inspection, Ms. Bures prepared a Food Service Inspection Report (Petitioner’s Exhibit 2) setting forth her findings. Ms. Bures prepared this report utilizing an electronic device while at the subject premises. Ms. Bures reviewed her findings with Mr. Sejour, the person in charge of the subject premises, and discussed with Mr. Sejour the deficiencies identified on Petitioner’s Exhibit 2. Mr. Sejour signed Petitioner’s Exhibit 2. Petitioner’s Exhibit 2 reflects that the subject premises was required to correct the noted deficiencies, and advised that a callback inspection would be conducted on or after June 21, 2014. Petitioner’s Exhibit 2 identified each of the alleged violations at issue in this proceeding. Ms. Bures performed the callback inspection of the subject premises on June 23, 2014, beginning at approximately 2:55 p.m. Ms. Bures prepared a callback Report (Petitioner’s Exhibit 3) setting forth her findings. Ms. Bures reviewed her findings with Mr. Sejour and explained to him the reasons for the deficiencies identified by Petitioner’s Exhibit 3. Ms. Bures’ findings included deficiencies that had been noted in the inspection on April 21, 2014, but had not been corrected. The uncorrected deficiencies found during the callback inspection include the five alleged violations at issue in this proceeding. Petitioner has classified two of the alleged violations as “basic,” two as “intermediate,” and one as “high priority.” A “basic item” is, pursuant to rule 61C-1.001(5), an item defined in the Food Code as a “Core Item.” Rule 61C- 1.005(5)(c) defines a basic violation as follows: (c) “Basic violation” means a violation of a basic item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to general sanitation, operational controls, standard operating procedures, facilities or structures, equipment design, or general maintenance and not meeting the definition of high priority violation or intermediate violation and is not otherwise identified in subsection (6) of this rule. An “intermediate item” is, pursuant to rule 61C- 1.001(19), an item defined in the Food Code as a “Priority Foundation Item.” Rule 61C-1.005(5)(b) defines an intermediate violation as follows: (b) “Intermediate violation” means a violation of an intermediate item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., which relates to specific actions, equipment or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of this rule. A “high priority item” is, pursuant to rule 61C- 1.001(17), an item defined in the Food Code as a “Priority Item.” Rule 61C-1.005(5)(a) defines a high priority violation as follows: (a) “High priority violation” means a violation of a high priority item, as defined in Rule 61C-1.001, F.A.C., or a violation of Chapter 509, F.S., or Chapter 61C, F.A.C., determined by the division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of this rule. On both inspection dates, Ms. Bures observed a large tub of seasoning, peppers and hot peppers stored on the kitchen floor. Except for circumstances not applicable to this proceeding, Food Code rule 3-305.11(A)(3) requires that food shall be protected from contamination by storing the food at least 15 cm (6 inches) above the floor. Petitioner proved by the requisite evidentiary standard that Respondent violated the cited rule.2/ The testimony of Ms. Bures established that this violation is properly classified as a basic violation. On both inspection dates, Ms. Bures observed water dripping onto buckets containing raw poultry in a walk-in cooler. Sheets of plastic were used as lids to cover the buckets. On both inspection dates, water was dripping on the plastic “lids.” Food Code rule 3-305.12(G) prohibits the storage of food under a leaking water line. Petitioner proved by the requisite evidentiary standard that Respondent violated the cited rule.3/ The testimony of Ms. Bures established that this violation is properly classified as a basic violation. On both inspection dates, Ms. Bures observed an employee handle peppers and onions after having handled raw poultry without changing gloves. Food Code rule 1-201.10 defines ready-to-eat food as food that is edible without additional preparation to achieve food safety. Peppers and onions are ready-to-eat food. Raw poultry is not ready-to-eat food. Food Code rule 3-304.15 prohibits the use of single-use gloves for the working with ready-to-eat food after having worked with raw poultry. Petitioner proved by the requisite evidentiary standard that Respondent violated Food Code rule 3-304.15. The testimony of Ms. Bures established that this violation is properly classified as a high priority violation due to the danger of contaminating ready-to-eat food.4/ On both inspection dates, Ms. Bures observed that Mr. Sejour’s food protection manager’s certificate had expired. Mr. Sejour’s certificate had been issued March 10, 2009, and was valid through March 10, 2014. On both inspection dates, there were six or more employees working at the subject premises. Petitioner proved that on both inspection dates, Respondent violated rule 61C- 4.023(1) by failing to have a duly-licensed food protection manager on duty while six or more employees were working. The testimony of Ms. Bures established that this violation is properly classified as an intermediate violation because of the need for a certified food protection manager with up-to-date knowledge of the rules and regulations dealing with food-borne illnesses and other risk factors to be present to prevent mistakes and to instruct employees as to proper food temperatures, proper hygiene, and methods of prevention of food- borne illnesses. By “Final Order on Waiver” entered by Petitioner on May 7, 2013, Petitioner disciplined Respondent for certain violations in an unrelated proceeding for having violated rule 61C-4.023(1) by failing to have a duly-certified food protection manager on duty while six or more employees were working. By “Final Order on Waiver” entered by Petitioner on April 30, 2014, Petitioner disciplined Respondent for certain violations in another unrelated proceeding for having violated rule 61C-4.023(1) by failing to have a duly-certified food protection manager on duty while six or more employees were working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is FURTHER RECOMMENDED that the final order find Chef Creole Seafood, Inc., d/b/a Chef Creole guilty of violating Food Code rule 3-305.11(A)(3) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $400.00 for that basic violation. It is FURTHER RECOMMENDED that the final order find Respondent guilty of violating Food Code rule 3-305.12(G) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $400.00 for that basic violation. It is FURTHER RECOMMENDED that the final order find Respondent guilty of violating Food Code rule 3-304.15(A) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $800.00 for that high priority violation. It is FURTHER RECOMMENDED that the final order find Respondent guilty of violating Florida Administrative Code Rule 61C-4.023(1) as alleged in the Administrative Complaint and impose an administrative fine in the amount of $1,000.00 for that intermediate violation. The total of the recommended fines is $2,600.00. DONE AND ENTERED this 2nd day of February, 2015, 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 2nd day of February, 2015.
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated June 19, 2007, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Respondent, Demills Family Restaurant (hereinafter referred to as "Demills Family Restaurant" or "establishment"), a public food establishment, is licensed and regulated by the Division. The establishment's license number is 2200535. Demills Family Restaurant is located at 6501 Park Boulevard, Pinellas Park, Florida 33781. Larry Burke is employed by the Department as a senior sanitation and safety specialist. Upon being employed with the Department, Mr. Burke was trained in laws and rules for both food service and public lodging establishments. Mr. Burke is certified as a food manager and attends continuing education on a monthly basis. As part of his job responsibilities, Mr. Burke conducts approximately 1000 inspections a year, many of which include inspections of public food establishments. On April 26, 2007, Mr. Burke conducted a routine unannounced inspection of the Demills Family Restaurant. During the inspection, Mr. Burke observed several violations at the establishment which were critical violations that were required to be corrected within 24 hours. Mr. Burke set forth his findings in a Food Service Inspection Report on the day of the inspection and provided a copy of the report to Debra Nunez, one of the owners of the establishment. A violation of the Food Code or other applicable law or rule, which is more likely than other violations to contribute to food contamination, illness, or environmental health hazards, is considered a critical violation. In the April 26, 2007, Food Service Inspection Report, Mr. Burke specified that certain critical violations had to be corrected within 24 hours. However, there were other critical violations observed on April 26, 2007, for which the owners of the establishment were given a warning and an additional 30 days to correct the violations. On April 27, 2007, Mr. Burke conducted a call-back inspection at the Demills Family Restaurant to determine if the critical violations he had observed the previous day had been corrected. During the "call back" inspection, Mr. Burke observed that all the critical violations found during the April 26, 2007, which were required to be corrected within 24 hours, had been corrected within that time period. Also, some of the non-critical violations observed on April 26, 2007, had been corrected when the "call-back" inspection was conducted. (The violations cited in the April 26, 2007, routine inspection and that were corrected during the call-back inspection the following day are not at issue in this proceeding.) During the April 27, 2007, call-back inspection, Mr. Burke prepared a Callback Inspection Report on which he noted violations first observed during the routine inspection conducted on April 26, 2007, but which had not been corrected on April 27, 2007. In accordance with applicable guidelines, Mr. Burke issued a warning to the establishment's owners and gave them 30 days or until May 27, 2007, to correct the uncorrected violations observed on April 27, 2007. This warning appeared on the April 27, 2007, Callback Inspection Report which was given to Mrs. Nunez. On May 31, 2007, Mr. Burke performed a second call-back inspection at Demills Family Restaurant. During this call-back inspection, Mr. Burke observed and cited the violations previously cited on the April 27, 2007, Call-Back Inspection Report that had not been corrected. These violations are discussed below. Violation No. 02-13, one of the uncorrected violations, involved the establishment's failure to provide a consumer advisory on raw/undercooked meat. This violation was based on information provided by personnel in the kitchen that hamburgers in the establishment are "cooked to order." In light of this policy, there are some customers who will likely order hamburgers that are undercooked. In those instances, pathogens may not be eliminated from the meat. Thus, establishments, such as Respondent, are required to inform customers of the significantly increased risk of eating such meat. After the May 31, 2007, call-back inspection and prior to this proceeding, the owners of the establishment posted signs throughout the dining room area which warned customers about the risks of consuming raw or undercooked foods (i.e., meats, poultry, seafood, shellfish or eggs). Violation No. 02-13 is a critical violation, but not one that is required to be corrected within 24 hours. Rather, this was a critical violation because it was a repeat violation after it was not corrected within the 30-day call-back period. Violation No. 32-15-1, one of the uncorrected violations, involved Respondent's failure to have hand-wash signs at the sinks designated for use by employees. The display of hand-washing signs at these sinks is important because it reminds employees to wash their hands, which helps prevent the transmission of food-borne disease by employees. This was a critical violation because it was a repeat violation and one which was not corrected within the 30-day call-back period. Mr. Nunez does not dispute that at the time of the May 31, 2007, call-back inspection, there were no hand-wash signs. However, since that time, he has placed signs that notify employees to wash their hands. These signs are placed at all hand-wash sinks used by employees, including the one in the cooks' kitchen and in the waitresses' station, and are clearly visible to the employees. The establishment also has hand-wash signs at all sinks in the establishment, including those used by customers. Violation No. 37-14-1, an uncorrected violation, was based on part of the ceiling in the establishment being in disrepair. Specifically, the section of the ceiling that was in disrepair was above a food storage area which contained "open food product." This offense is not classified as a critical violation under the Food and Drug Administration or under Florida law. Mr. Nunez does not dispute that part of the ceiling in the establishment was in disrepair at the time of the May 31, 2007, call-back inspection and the previous April 2007 inspections. Although Mr. Nunez was aware of the problem, he had to rely on the landlord of the building in which the establishment was located to repair the roof. The problems with the roof contributed to the ceiling being in disrepair. Finally, after about four years of asking the landlord to repair the roof, after the May 31, 2007, call-back inspection, the landlord had the roof repaired. The roof repairs are still not complete. However, based on the roof repairs that were completed by early to mid September 2007, Mr. Nunez was able to repair the section of the ceiling at issue in this proceeding. These ceiling repairs were completed by or near the middle of September 2007. Violation No. 37-14-1, an uncorrected violation, was based on Mr. Burke observing that the establishment's exit sign in the dining room was not properly illuminated. The requirement for exit signs to be illuminated is a safety issue. This was a critical violation because it was a repeat violation and one that was not corrected within the 30-day call-back period. Mr. and Mrs. Nunez do not dispute that at the time of the call-back inspection of May 31, 2007, the exit sign was not illuminated. The problem was caused by a problem with a wire in the sign. The person who does electrical work in the establishment had been out-of-town for several weeks and was unavailable to repair the exit sign. However, about three days after the May 31, 2007, call-back inspection, after the repair person returned, he repaired the exit sign; since then, it is properly illuminated. Violation No. 47-16-1, an uncorrected violation, was based on Mr. Burke observing an uncovered electrical box. The box needed to be covered to protect the breaker and to protect the employees and anyone else who had access to the box. This uncorrected violation was a critical violation at the time of the May 31, 2007, call-back inspection. Mrs. Nunez does not dispute that there was an electrical box that was uncovered on May 31, 2007. However, Mrs. Nunez testified that during the initial walk-through in April 2007, Mr. Burke showed her the uncovered electrical box that was located above the walk-in freezer. At that time, the cover was off the electrical box and the wires were exposed. Mrs. Nunez thought that the electrical box above the walk-in freezer was the only electrical box that was cited as a violation after the April 27, 2007, call-back inspection. Based on that understanding, that violation was corrected. However, during the May 31, 2007, call-back inspection, Mr. Burke showed Mrs. Nunez another electrical box in the establishment that was in violation of applicable provisions. Until that time Mrs. Nunez had not been told, and was not aware, that the second electrical box constituted a violation. This mistake on her part was likely caused by the fact that the structure of the second electrical box was completely different from that of the electrical box over the walk-in freezer. The electrical box over the walk-in freezer had wires which were exposed when the box was not covered. On the other hand, the second electrical box resembles a fuse box and did not have any exposed wires. Violation No. 28-02-1 involved the reuse of single- service articles. This violation is based on Mr. Burke observing Respondent's employees reusing plastic food containers, such as the ones sour cream and cottage cheese are in when delivered to the establishment. Such plastic containers should not be used once the food is exhausted. The reason is that the plastic in such containers is not "food service grade for sanitation purposes." Violation No. 28-02-1 is a non- critical violation. The owners of the establishment do not contest Violation No. 28-02-1, related to the reuse of single-service articles. Mrs. Nunez testified that she purchased containers that could be reused and instructed appropriate staff to use those containers. After being given those instructions, the employees told Mrs. Nunez that they were no longer reusing containers for single-service articles although they were doing so. However, as a result of the violation cited during the May 31, 2007, call-back inspection, Mrs. Nunez is committed to checking to ensure that employees are not reusing the plastic containers for single-service articles. Violation No. 61-13-1 is based on Mr. Burke observing that no Heimlich sign was posted in the establishment. The purpose of the Heimlich sign is to provide information in the event a customer in the restaurant is choking. This is a non- critical violation because it makes customers aware in the event of a choking situation. In July 2007, Mr. Nunez left his job as a project engineer to become involved in the day-to-day operations of the Demills Family Restaurant after he realized there were problems at the restaurant that required his attention. Among the issues Mr. Nunez had to initially deal with were the violations cited in the May 31, 2007, Call-Back Inspection Report. Throughout the initial inspection and the call-back inspections, the owners have cooperated with Mr. Burke and corrected most of the violations for which the establishment was cited. Mr. Burke has not conducted an inspection of the Demills Family Restaurant since the May 31, 2007, call-back inspection. However, since that time, all the violations which are the subject of this proceeding have been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Demills Family Restaurant, violated Food Code Rules 3-603.11, 4-502.13(a) and 6-301.14; Florida Administrative Code Rules 61C-1.004(2)(C), 61C-1.004(6) and 61C-1.004(10); and NFPA Rule 70.300.31. Imposing a total administrative fine of $2,800 for the foregoing violations. Requiring Respondent (through its employees and/or owners) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2007.
