The Issue At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated October 2, 2012, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant located at 12326 University Mall Court, Tampa, Florida, 33612, holding Permanent Food Service license no. NOS3915662. On September 25, 2012, Douglas Peterson, an experienced sanitation and safety specialist with the Division, performed a routine inspection of Respondent. Mr. Peterson has been employed by the Division for six years and has conducted approximately 1,000 inspections per year. He inspected Subway in the early afternoon, accompanied by one of Respondent's employees, not identified, but described as a young man who was working the counter. Mr. Peterson utilized a personal data assistant to record his findings in an inspection report that he prepared while conducting the inspection. During the inspection, Mr. Peterson observed a number of live roaches in three different areas and recorded his observations in the inspection report. Mr. Peterson counted ten live roaches under the three-compartment sink between the wall and the sink; there were three live roaches in an old reach-in cooler next to the walk-in cooler; and there were four more live roaches under and behind the ice machine. In addition, Mr. Peterson observed dead roaches by the old reach-in cooler next to the walk-in cooler. Mr. Peterson pulled out the reach-in cooler and found more dead roaches in the compressor compartment. Mr. Peterson's testimony regarding the roach activity he observed was credible and unrebutted. A critical violation of the Food Code is a violation that is likely to contribute to food contamination, illness, and other environmental health hazards. The observed presence of 17 live roaches at multiple locations in Respondent's establishment was a "critical violation" of the Food Code, because roaches are capable of transmitting disease to humans by contaminating food and cross-contaminating food contact surfaces. Respondent pointed out that none of the live roaches were observed directly on food contact surfaces. However, the fact that the live roaches were found in dark areas of refuge (in, under, or behind equipment and sinks) in mid-afternoon, while the restaurant was open, does not mean the danger of contamination can be minimized. To the contrary, the presence of a large number of live roaches in multiple areas--including areas near where food is stored and prepared and where dishes are washed--is a significant contamination threat. Due to the large number of live roaches observed in multiple locations, Mr. Peterson determined that the critical violation was significant enough that it required immediate attention, and his inspection report recommended that restaurant operations stop temporarily until the roach infestation was alleviated. Based on Mr. Peterson's report, the Division entered an emergency order of suspension, and Subway was temporarily closed to correct the violation, with a follow-up inspection the next morning. Julian Paz, the store manager, was not present during the inspection, but he arrived after Mr. Peterson had sent his inspection report to the Division for a determination regarding whether an emergency suspension order would be issued. Mr. Peterson discussed the inspection report's findings with Mr. Paz, and Mr. Paz signed the inspection report on behalf of Respondent. At hearing, Mr. Paz described the steps taken by Subway in an attempt to control the presence of roaches. He testified that someone from Orkin comes the first Thursday of every month to perform a routine inspection and pest control service. The mall in which Subway is located also has monthly pest control service. In addition, the Subway restaurant undergoes a Subway corporate inspection at a random time every month. Mr. Paz also described the steps taken by Subway employees, including cleaning the store three or four times a day, sweeping and mopping, and cleaning the surfaces. When there are deliveries, either he or his assistant inspects the boxes for signs of rodent or pest activity. Mr. Paz testified that he thought that both Orkin and the Subway corporate inspector had conducted inspections as recently as the day before Mr. Peterson's inspection. The Division presented no evidence of prior disciplinary action against Respondent.
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 determining that Respondent violated rule 6-501.111 of the Food Code and imposing a fine of $500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 10th day of May, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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, 2013.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint, dated January 25, 2016; and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant doing business as Hook Fish and Chicken, located at 1830 North Myrtle Avenue, Jacksonville, Florida 32209, holding Permanent Food Service license number 2614999. Linda C. Sutherland is employed by the Division as a senior sanitation safety specialist. Inspector Sutherland has worked for the Division for approximately four years, serving approximately 13 months as a senior inspector and three years as an inspector. She had worked in the food industry for about 30 years before joining the Division. Inspector Sutherland has received training on the U.S. Food and Drug Administration’s Food Code (“Food Code”), as adopted by reference in Florida Administrative Code Rule 61C-1.001, and training on the Florida laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Sutherland is also a certified food manager and performs more than 1,000 inspections each year. On January 20, 2016, Inspector Sutherland performed an unannounced routine food service inspection of Respondent’s premises. Inspector Sutherland prepared and signed an inspection report setting forth the violations she observed during her inspection. She provided a copy of the inspection report to Ahmed Muhamed, the manager on duty. The inspection report notified Respondent that the violations must be corrected by January 21, 2016. During the January 20, 2016, inspection, Inspector Sutherland observed approximately twenty-three (23) dead roaches throughout Respondent’s establishment, seventeen (17) live roaches on a wall above Respondent’s water heater and three- compartment sink in the kitchen area, and three (3) live roaches near a pipe at the bottom of the water heater. Because numerous live roaches were seen on the premises, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency Order was issued on January 20, 2016, the same date as the inspection. On January 21, 2016, Inspector Sutherland performed two separate callback inspections of Respondent’s premises, one commencing at 11:07 a.m. and one commencing at 3:39 p.m. During both callback inspections, Inspector Sutherland prepared and signed inspection reports indicating that the violations noted during the previous day’s inspection had not been corrected. During the first callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches in the kitchen area near the water heater and approximately twelve (12) live roaches on a wall near the three-compartment sink in back of the kitchen area. During the second callback inspection on January 21, 2016, Inspector Sutherland observed four (4) dead roaches near the water heater, one (1) live roach on the wall behind the three-compartment sink, and one (1) live roach on the floor of Respondent’s back storage area. Inspector Sutherland notified Respondent about the violations found during both callback inspections on January 21, 2016, and informed Respondent that the violations must be corrected by January 22, 2016. The manager on duty, Ahmed Mohamed, signed for both of Inspector Sutherland’s reports on January 21, 2016, acknowledging receipt on behalf of Respondent. On January 22, 2016, Inspector Sutherland performed an additional callback inspection of Respondent’s premises. During the inspection, Inspector Sutherland noted that some, but not all, of the violations noted on the January 20, 2016, and January 21, 2016, inspection reports had been corrected. Inspector Sutherland observed one live roach on the shelf in the back prep area and three live roaches in the left door of Respondent’s three-door cooler. Rule 61C-1.001 defines “basic item” as “[a]n item defined in the Food Code as a Core Item.” Food Code Rule 1- 201.10(B) defines “core item” as “a provision in this Code that is not designated as a priority item or a priority foundation item.” “Priority” and “priority foundation” items are identified in the Food Code by way of a superscript; therefore, any provision of the Food Code that does not have a superscript is a “core item.” The first violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of numerous dead roaches throughout Respondent’s premises during the January 20 and 21, 2016, inspections. Food Code Rule 6- 501.112 defines this as a core item, which makes it a “basic item” for purposes of discipline by the Division. The second violation alleged in the Administrative Complaint is based on Inspector Sutherland’s observations of live roaches throughout Respondent’s premises during the January 20, 21, and 22, 2016, inspections. The pervasive presence of live vermin was a violation significant enough to require an Order of Emergency Suspension of License and Closure. Section 509.221(7) requires the operator of a licensed food service establishment to take “effective measures” to protect against the entrance and breeding of vermin. Respondent was issued a prior Order of Emergency Suspension of License and Closure during the 12 months preceding the Administrative Complaint at issue in this proceeding. The Order of Emergency Suspension of License and Closure in Division case number 2015-032315 was filed against Respondent on July 30, 2015. Live and dead roaches were found on the premises in the inspections that led to this Order of Emergency Suspension of License and Closure. Respondent also had a prior disciplinary final order for operating without a license entered within the 24 months preceding the Administrative Complaint at issue in this proceeding. The final order in Division case number 2015-032598 was filed on December 21, 2015. The final order noted that live roaches were observed during the initial inspection and on a callback inspection the following day.
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 a fine of $1,500.00, payable under terms and conditions deemed appropriate, and a two-day suspension of Petitioner’s license. DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2016.
