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 for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated December 2, 2009, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2323257. At all times material hereto, the Restaurant was located at 762 Northwest 183rd Street, Miami Gardens, Florida 33169. A critical violation in food service is considered to be a violation that, if not corrected, is directly related to food-borne illness, food contamination, or health risk. A non-critical violation in food service is considered to be a violation that, if not corrected, can become a critical violation. On August 14, 2009, Daniel Unold, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Unold found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Unold prepared a food inspection report, setting forth the alleged violations and the date for the callback inspection, which was October 14, 2009. The inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations and that the violations had to be corrected by the callback date of October 14, 2009, and he provided the representative with a copy of the inspection report. On October 19, 2009, Inspector Unold performed the callback inspection. Among other things, four critical violations were not corrected from the routine inspection of August 14, 2009. During the callback inspection, Inspector Unold prepared a food callback inspection report, setting forth, among other things, the alleged critical violations. The callback inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations. The most serious alleged critical violation, which had been found on August 14, 2009, and was not corrected by October 19, 2009, was no certified food manager for the Restaurant. This violation is critical because it is necessary for the person operating a food service establishment to be knowledgeable regarding food contamination, hygiene, cloth contamination, and food-related diseases. That person is a certified food manager, and the certification process requires class training and a test. The next most serious alleged critical violation not corrected by October 19, 2009, was no proof of required employee training. This violation is a critical violation because it is necessary for every food service employee to have basic knowledge regarding hand washing and food contamination. The next most serious alleged critical violation not corrected by October 19, 2009, was the hand wash sink lacking the proper hand drying provisions. This violation is a critical violation because hand drying is an important part of the hand washing procedure, and, if not performed correctly, it is as if hand washing had not occurred at all. The next most serious alleged critical violation not corrected by October 19, 2009, was the Restaurant operating without a current Hotel and Restaurant license. The new owner of the Restaurant, Elise Benabe, had not completed a change of ownership application. This violation is a critical violation because the State of Florida requires all public food service establishments to be licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Five Star Haitian Restaurant violated Florida Administrative Code 61C-4.023(1), Section 509.049, Florida Statutes (2009), Food Code Rule 6-301.12, and Section 509.241(2), Florida Statutes (2009); and Imposing an administrative fine in the amount of $1,875.00 against Five Star Haitian Restaurant. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Louise Wilhite-St Laurent, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elise Benabe Five Star Haitian Restaurant 762 Northwest 183rd Street Miami Gardens, Florida 33169 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Louise Wilhite-St Laurent Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-220
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 This issues in this proceeding are whether Respondent, in violation of Chapter 509, Florida Statutes (2004), committed acts alleged in the Administrative Complaint dated April 16, 2004, and, if so, what disciplinary action should be taken against the license held by Respondent.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made during the final hearing, and the entire record compiled herein, the following relevant and material facts are found: At all times material hereto, Respondent, Bacco's Restorante Italliano, a food service and eating establishment, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 6804773-R, type 2010, a Permanent Food Service license. Respondent's facility is located at 23 North Lemon Avenue, Sarasota, Florida. Andrea Posani testified that he was a "party of interest" in the proceeding because he had a financial interest in Bacco's Restorante Italliano, a food service and eating establishment, and he possessed authority to speak on behalf of (and represent) Respondent, Bacco's Restorante Italliano, licensee. Petitioner's witness, Daniel Erdman, deputy district manager (for three months) and senior sanitation safety specialist for the preceding five years (1999 through 2004) in Manatee and Sarasota counties, earned his Bachelor of Science degree from Florida State University with a major in hospitality administration. Mr. Erdman conducts more than 1,500 inspections annually. Mr. Erdman described a "critical violation" in the food business as violation of any of the Florida Statutes, the Florida Administrative Code rules, and the Food Code, that "has more of a potential for food borne ailments." Mr. Erdman has been Petitioner's inspector of Respondent's business for more than four years in both locations, first, on Main Street and, now, on Lemon Street, in Sarasota, Florida. Mr. Erdman, on March 1, 2004, inspected Respondent's business, noted violations on DBPR Form HR 5022-014 that was signed by Mr. Erdman and Claudia Zecchin-Moschini (Claudia Zecchin at the time of signing), and a copy was given to Ms. Zecchin-Moschini. Thereon was the "callback date/time that informs Respondent of both the time to correct noted violation(s) and the inspection return date. The Administrative Compliant alleged the following critical violations of Chapter 509, Florida Statutes (2003), Florida Administrative Code, and/or rules of the Division of Hotels and Restaurants noted during the March 1, 2004, inspection: 27-22 5-202.12 FC Handwashing Facility, Installation. (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least . . . (110 degrees Fahrenheit) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory. (C) A self-closing, slow-closing, or metering faucet shall provide a flow of water for at lease 15 seconds without the need to reactivate the faucet. (D) An automatic handwashing facility shall be installed in accordance with manufacturer's instructions. Observed no cold water provided at handsink (Bar) 2. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A handwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (B) in, or immediately adjacent to, toilet rooms. Observed missing handsink at dishwashing machine/cold prep area (removed) 3. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A hadwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (b) in, or immediately adjacent to, toilet rooms. Observed no handsink provided in prep area, bread station service area in dining room without a handwashing sink. Bread station was removed from dining room on 3.15.2004 on reinspection evidence of bread station observed on 4.02.04 4. 53B-01 509.049 FS Food Service Employee Training. The Division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishment regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the Division. Any food safety training program established and administered to food handler employees prior to the effective date of this act shall be submitted by the operator to the Division for its review and approval. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification pursuant to this section by January 1, 2001. Food service employees hired after November 1, 2000, must received certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years. Observed no proof or required employee training 11 employees over 60 days employed (Reihou, Terrence, Paolo) [Emphasis added] Mr. Erdman, on March 15, 2004, returned and inspected the facility, finding violations 27-22, 31-10, and 45-14. These violations were granted time extension for correction to April 2, 2004. Mr. Erdman returned on April 2, 2004, and inspected the facility, identifying seven violations (two 27-22s, three 31- 10s, and two 53B-01s). During this reinspection, Mr. Erdman entered, in the comment section of his inspection report "note plumber scheduled for sink installation, water to bar tomorrow. Employee food safety training booklets ordered [training not completed]. Bread baskets, plated [sic], bread warmer, crumbs etc. observed in dining area/no hand sink provided." This report was not a warning as were the prior inspection reports; this report recommended filing of an administrative complaint. Respondent's witness, Ms. Zecchin-Moschini, when asked by Respondent, could not recall circumstances pertaining to each alleged violation. Her answers, on both direct and cross examinations, consisted primarily of "I don't remember," on four separate occasions. "I don't remember" is the answer given when Ms. Zecchin-Moschini was asked about the location of the sink and the present location of the beer cooler. This witness acknowledged that she did not have food management training: Yes, I don't have the training for these people. They were being coming from another restaurant, working there for a couple years, and I didn't ask them if they have any. I never got it. The only one that was there was Paolo that he didn't have. Mr. Posani admitted having no personal knowledge of the sink location violation and having no personal knowledge regarding the food management training violations for three of his employees. The record was left open for ten days for post- hearing submission of documentation of training, and none was submitted at the entry of this Recommended Order. Mr. Posani offered no credible and material evidence that could be considered a legal challenge to violations itemized in the Administrative Complaint and established by Respondent's witness' unrefuted testimony and exhibits in evidence. Petitioner proved, by clear and convincing evidence, each specific allegation against Respondent contained in the Administrative Complaint filed in this cause. Petitioner's compliance with cited Florida Statutes and cited rules of the Florida Administrative Code permits the imposition of penalty against Respondent for violations hereinabove found.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Finding Respondent guilty of violating Subsection 509.049(5), Florida Statutes (2004), and Sections 5-202.12, 5-204.11, and 6-401.10 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3, and 61C-4; and Imposing an administrative penalty in the amount of $250.00 per violation for a total penalty amount of $1,000.00, due and payable to: Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 July, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Andrea Posani 23 North Lemon Avenue Sarasota, Florida 34236 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether on January 26, August 27, and August 28, 2012, Respondent was in compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, and if not, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. St. Johns Seafood and Oyster Bar, Inc., (St. Johns) is a licensed permanent public food service establishment operating at 7546 Beach Boulevard in Jacksonville, Florida. Its license must be renewed annually. Ms. Iliana Espinosa-Beckert has been employed by the Division for about five and a half years. She is a sanitation and safety specialist with the Division. She has had training, including formal initial training, on-the-job training, and monthly in-house training, in sanitation and inspection. She is a certified food manager. On January 26, 2012, Inspector Espinosa-Beckert conducted a food service inspection of St. Johns. Inspector Espinosa-Beckert prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using her personal data assistant (PDA) to record the violations that she observed during the inspection. The manager of the restaurant, Mr. Robert Rukab, acknowledged receipt of the report on behalf of St. Johns. During the January inspection, Ms. Espinosa-Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that shrimp, fish, scallops, oysters, and clams had a temperature of 60 degrees Fahrenheit at the seafood reach-in cooler (seafood cooler), and recorded this on her report. The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015. Ms. Espinosa-Beckert also observed during the January inspection that the seafood cooler was incapable of maintaining potentially hazardous food at proper temperatures. She noted on her report that there was no thermometer installed inside the seafood cooler, but that her measurements indicated that all of the seafood was at a temperature of 60 degrees Fahrenheit. On August 27, 2012, Ms. Espinosa-Beckert conducted another inspection of St. Johns. She again prepared an inspection report on DBPR Form HR 5022-015 using her PDA to record the violations that she observed. Ms. Espinosa-Beckert made Mr. Rukab aware of the violations she found, but Mr. Rukab was upset and refused to acknowledge receipt of the report on behalf of St. Johns. During the August 27, 2012, inspection, Ms. Espinosa- Beckert observed that St. Johns had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. She noted that cheese, chicken, and pasta were at 49 degrees Fahrenheit in a reach-in cooler in a food preparation area near the cook line (prep-line cooler), and recorded this on her report, along with a notation that it was a repeat violation. Inspector Espinosa-Beckert testified that this was a true “cold-holding” violation. She stated that her measurements of the temperature of the food were taken after the food had gone through the cooling period that is allowed for food to reach the proper temperature. Ms. Espinosa-Beckert noted in her report that the prep-line cooler was incapable of maintaining potentially hazardous food at proper temperatures. She recorded that the ambient temperature in the prep-line cooler was 46 degrees Fahrenheit and that foods were at a temperature of 49 degrees Fahrenheit, noting that this was a repeat violation. During the August 27, 2012, inspection, Ms. Espinosa- Beckert also observed that St. Johns was operating without a current license, because its license had expired on June 1, 2012. She noted this in her report. Ms. Espinosa-Beckert also observed both live and dead roaches on the premises.1/ She scheduled a call-back inspection for the following day, August 28, 2012. Inspector Espinosa-Beckert prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on August 28, 2012, using her PDA to record the violations that she observed. Mr. Rukab apologized for his refusal to sign the previous day, and acknowledged receipt of the report on behalf of St. Johns. On August 28, 2012, Ms. Espinosa-Beckert observed that the prep-line cooler thermometer now read 35 degrees and that cheese was 39 degrees Fahrenheit and pasta was at 40 degrees, within approved temperature limits. She noted this on the first page of her report. The license had not been renewed since the previous day. The Division served an Administrative Complaint against St. Johns for the above violations on or about September 6, 2012. On both January 26 and August 27, 2012, St. Johns had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit. While evidence was presented that on different dates two individual coolers were incapable of maintaining potentially hazardous food at proper temperatures, there was also evidence that on these occasions there was additional adequately cooled space available which could have been utilized to meet the demands of St. Johns’ operations. At hearing, Ms. Espinosa- Beckert testified as follows: Q: Did he have any other cooler available where he could have moved the food? A: He had the –- yes, he did. He has the other, which is the seafood cooler, which I don’t think they put anything ready- to-eat in that one. But he has a two-door upright cooler also on the opposite side of this one I made a violation, and that was OK also. So he could have moved the food. The evidence did not show that on either January 26, 2012, or August 27, 2012, the cooling equipment available at St. Johns was insufficient in number or capacity to maintain all food at required temperatures. On August 27 and 28, 2012, St. Johns was operating without a license, as its old license had been expired for more than 60 days. Additional evidence introduced at hearing and considered solely for purposes of penalty calculation showed that St. Johns had two previous disciplinary Final Orders entered within 24 months of the Administrative Complaint issued in this case. The first of these was a Stipulation and Consent Order signed by Mr. Rukab on behalf of St. Johns on March 9, 2011, and filed on March 24, 2011, in Case No. 2011-02147. The Order was in settlement of an Administrative Complaint issued on February 23, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 27, 2010, November 23, 2010, November 24, 2010, and February 8, 2011. Some of the allegations would have constituted critical violations. The second of the previous disciplinary orders was a Final Order on Waiver filed on August 10, 2011. Respondent had been served an Administrative Complaint and Election of Rights on June 1, 2011, but had failed to respond by June 22, 2011. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on April 26, 2011, and May 3, 2011. The Final Order on Waiver imposed a fine of $4,400 for several violations, some of which were critical violations.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding St. Johns Seafood and Oyster Bar, Inc., has committed a critical violation and was operating with a license expired for more than 60 days, and imposing a fine of $1,500, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 9th day of April, 2013, 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 9th day of April, 2013.
The Issue Whether New Roseau Restaurant (New Roseau), a licensed restaurant, committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against New Roseau.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, New Roseau was licensed as a public food service establishment, with the following business address: 1180 Northwest 119th Street, Miami, Florida 33168. On April 10, 2013, and August 21, 2013, New Roseau was inspected by Dominique Adam, a sanitation and safety specialist with the Division. During both visits, Mr. Adam noticed items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Adam and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 21, 2013, the following deficiencies subsisted at New Roseau: (1) no proof of at least one certified food manager, in violation of section 509.039, Florida Statutes; (2) no proof of required state-approved employee training for its employees, in violation of section 509.049(5), Florida Statutes. Both of these deficiencies, pursuant to Florida Administrative Code Rule 61C-1.005, are characterized as intermediate violations. New Roseau is a third or subsequent offender due to the filing of two disciplinary Final Orders within twenty-four months preceding the Administrative Complaint in the present case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order finding New Roseau guilty of both counts in the Administrative Complaint, and ordering New Roseau to pay an administrative penalty in the amount of $1,600.00, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 28th day of April, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2014. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jean-Claude Duval New Roseau Restaurant 1313 North Federal Highway Hollywood, Florida 33020-7864 Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2006). At all times material to this case, the Respondent was a restaurant located at 7551 West Waters Avenue, Tampa, Florida 33615, holding Food Service license number 3903935. On July 11, 2006, Richard Decker, a senior inspector representing the Petitioner, performed a routine inspection of the Respondent that resulted in emergency closure of the restaurant due to a roach infestation problem. The inspection report stated that the deadline for correcting the roach problem was July 12, 2006, and the matter was apparently resolved in a timely manner. Mr. Decker found additional violations of applicable Food Code regulations on July 11, 2006, which were cited in a written Food Service Inspection Report, a copy of which was provided to restaurant owner Anthony Della Monica on the date of the inspection. Mr. Decker's inspection identified critical and non- critical violations. Critical Food Code violations pose serious public health risk due to potential transmission of food-borne illness. Critical life safety violations such as blocked exits increase the risk of public injury. Violations that do not pose a direct and imminent public health risk are identified as non- critical. Other than as set forth herein, the violations cited during the July inspections were to have been corrected by the time of Mr. Decker's August 15, 2006, re-inspection. Many of the previously cited violations had not been corrected at that time. The August 15, 2006, re-inspection report was received by Mr. Della Monica on the date of the inspection. Mr. Decker again re-inspected the restaurant on October 20, 2006. Several violations previously cited in July remained uncorrected at that time. The October 20, 2006, re- inspection report was received by Head Chef Kurt Clasen on the date of the inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a certified food manager on the premises and for lacking of proof that employees had received food safety training. Such training was intended to reduce the potential for transmission of food-borne illness. These violations were deemed critical. Although Mr. Decker established an extended deadline of October 11, 2006, to correct the certified food manager and employee training violations, they remained uncorrected by the October 20, 2006, re-inspection. During the July inspection, Mr. Decker cited the Respondent for lacking a hand sink in the dishwashing area and noted that a hand sink at the rear of the kitchen was being used for food preparation. The requirements related to hand sinks were intended to reduce the potential for transmission of food- borne illness. The violations of the requirements were deemed critical. The Respondent still lacked a hand sink in the dishwashing area at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for using extension cords on a non-temporary basis to power equipment in the kitchen. The Respondent's improper electrical cord use was a fire hazard and was deemed a critical violation. By law, extension cords can only be used on a temporary basis. The cited extension cords remained in use by the Respondent at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for removing food products from original packaging and storing them in unlabeled containers, a critical violation that increased the risk of confusing food products with non- edible products such as cleaning chemicals. The violation remained uncorrected at the time of both re-inspections. During the July inspection, Mr. Decker cited the Respondent for lacking a chemical testing kit used to ascertain that the dishwasher sanitization function was operating properly. Lack of proper sanitation increased the potential for transmission of food-borne illness. The violation, deemed critical, was not corrected by the time of either re-inspection. During the July inspection, Mr. Decker cited the Respondent for failing to have a visible thermometer in a pizza- holding unit. The inability to monitor food-holding temperatures increased the potential for transmission of food- borne illness and was a critical violation. The violation was uncorrected at the time of the August re-inspection as it should have been, but it had been remedied by the October re- inspection. During the July inspection, Mr. Decker cited the Respondent for the lack of light bulb shields in a food service area, which increased the risk that food could be contaminated by glass in the event of light bulb breakage. This was deemed a non-critical violation and remained uncorrected at the time of either re-inspection.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $3,800 against the Respondent and requiring the Respondent to complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007. COPIES FURNISHED: Anthony Della Monica Mama D's Pasta & Grille 1819 Audubon Street Clearwater, Florida 33764 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact No Name Pub holds a Permanent Food Service license 5400281, for operation of a public food establishment on Watson Boulevard, Big Pine Key, Florida. On April 16, 2009, at 11:58 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. The inspector cited the following violations, among others: 1) failure to provide the required consumer advisory for food that is raw, undercooked, or not otherwise processed to eliminate pathogens; 2) use of working food containers without label as to contents; 3) failure to provide hot water at employee hand wash sink; and 4) failure to provide handwashing cleanser at handwashing lavatory. At the time of this inspection, Respondent corrected the first, third, and fourth violations in the presence of the inspector. On December 7, 2009, the inspector performed another routine inspection of the public food establishment. Among other things, the inspector observed the recurrence or continuation of the four violations described in the preceding paragraph. The four violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause foodborne illness. Respondent's testimony, even if credited, does not rebut the violations with the exception of the first violation-- the lack of a consumer advisory. Twice, a trained inspector could not find such a warning. The testimony offered by Petitioner is credited over that offered by Respondent.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the four violations identified above and imposing an administrative fine of $1600 on Respondent. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2011. COPIES FURNISHED: William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Douglas P. Leps No Name Pub Post Office Box 430818 Big Pine Key, Florida 33043
