The Issue The issue is whether Respondent is guilty of the violation described in the Administrative Complaint, and if so, what is the appropriate penalty.
Findings Of Fact Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509. By rule, it has incorporated by reference the regulations in the federal Food Code. These regulations apply to all public food service establishments. See Fla. Admin. Code R. 61C-1.001(14). Respondent operates a public restaurant (using its corporate name) located at 12318 University Mall Court, Tampa, Florida, and is subject to Petitioner's regulatory jurisdiction. It holds license number NOS3917320 (Permanent Food Service). Rule 61C-1.005(5)(a)-(c) classifies violations of the Food Code as either "high priority," "intermediate," or "basic," essentially reflecting the level of threat to public health posed by the deficiency. A high priority violation is one that poses a direct or significant threat to public health. Id. This type of violation is at issue in this case. Around 12:24 p.m. on June 11, 2014, Ashley Herrmann, a trained and experienced sanitation and safety specialist employed by Petitioner, performed a routine inspection of Respondent's restaurant, during which Ms. Herrmann observed various violations of the Food Code, including a "high priority" violation. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food must be maintained at a temperature of 41° Fahrenheit or less.2 See rule 3-501.16(A)(2)(a), Food Code. A violation of this regulation is classified a high priority violation because food maintained above that temperature is a major contributor to foodborne illnesses. Ms. Herrmann observed several potentially hazardous food items in the walk-in cooler, including (a) raw meat/ poultry, (b) cooked fruits/vegetables, and (c) cheese/milk/ creamer/other dairy products, that were maintained at a temperature greater than 41° Fahrenheit. See Ex. 2. At the conclusion of her inspection, Ms. Herrmann prepared a written report documenting the Food Code violations observed by her. A copy of the inspection report was given to Javari Moore, an employee who was present at that time, and the violations were explained to him. Also, he was told that the violations must be corrected by 10:30 a.m. the following day, June 12, 2014, and that a call-back inspection would be performed at that time to verify that the violations had been corrected. Around 10:30 a.m. on June 12, 2014, Ms. Herrmann performed a call-back inspection of Respondent's premises. While some violations had been corrected, she observed that the high priority Food Code violations observed during the routine inspection on June 11, 2014, had not been corrected. See Ex. 3. Before leaving, Ms. Herrmann provided a copy of the inspection report to Mr. Moore and discussed the violations with him. The findings contained in the inspection reports were used in the preparation of an Administrative Complaint issued against Respondent. Other than stating that no food had been taken out of the walk-in cooler that morning, Mr. Moore gave no further explanation for the high priority violation.3 There is no evidence that Respondent has been found guilty of a prior offense of this nature.
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 that Respondent is guilty of one high priority violation, and imposing a fine of $250.00. Such fine shall be due and payable to the 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 21st day of October, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of October, 2014.
The Issue Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate disciplinary action that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants, is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is an eating establishment located in Gainesville, Florida. Respondent was issued license number 1102924 as a public food establishment by the Division. Daniel Fulton is currently self-employed as a restaurant consultant. Previously, he was employed by the Division for 24 years, including as a Senior Sanitation Safety Specialist for 12 years. Prior to working for the Division, Mr. Fulton owned a restaurant for four years and worked as a manager in other restaurants for approximately four years. Mr. Fulton received training in laws and rules pertaining to public food and lodging establishments, received a food manager certification, and was standardized in Hazard Analysis and Critical Control Points. During his employment with the Division, Mr. Fulton received continuing education in the amount of 40 hours per year, and performed approximately 600 inspections per year. Critical violations are violations that, if not corrected, are more likely to cause food-borne illnesses. Non- critical violations are violations that are less likely to cause food-borne illnesses. On March 23, 2009, Mr. Fulton conducted a routine inspection of Respondent's premises. During the inspection, Mr. Fulton prepared and signed an inspection report using a Personal Data Assistant. The inspection report set forth those violations he observed during his inspection visit. During the inspection visit, Mr. Fulton made Respondent's owner, who signed the inspection report, aware of the violations and that they needed to be corrected by the following day. Mr. Fulton informed Respondent's owner that he would be conducting a callback inspection the following day. On March 24, 2009, Mr. Fulton performed a callback inspection at Respondent's premises. During this inspection, Mr. Fulton prepared and signed a callback inspection report indicating that two of the violations noted on the previous day had not been corrected. He notified Respondent that he was recommending that the Division issue an Administrative Complaint on the two violations that were not corrected, and that time extensions were given on two other violations.1/ Respondent's owner signed for the callback inspection report. On October 29, 2009, Mr. Fulton conducted another routine inspection at Respondent's premises. During the inspection, Mr. Fulton prepared and signed another inspection report. Respondent's owner signed for the report. One of the violations noted by Mr. Fulton in the two earlier-referenced inspections had not been corrected. Mr. Fulton notified Respondent of the violations and informed Respondent that the violations needed to be corrected by a callback date of December 30, 2009. On January 11, 2010, Mr. Fulton conducted another callback inspection at Respondent's premises. During this inspection, he prepared and signed an inspection report indicating that some of the violations noted on the October 29, 2009 inspection report had not been corrected. He notified Respondent of the violations observed and that he was recommending that an Administrative Complaint be issued for the violations he also observed during his previous inspections. Respondent's owner signed for the report. The most serious violation Mr. Fulton observed during each of his inspections of Respondent's premises was potentially hazardous cold food held at greater than 41 degrees Fahrenheit. Mr. Fulton observed numerous foods at temperatures greater than 41 degrees. This is a critical violation because bacteria grow on food at an increasingly faster rate as the food temperature rises from 41 degrees. The next most serious violation observed by Mr. Fulton during each of his inspections was "potentially hazardous food held under public health control without markings indicating the four-hour limit." Mr. Fulton observed that Respondent's whiteboard, which Respondent uses to track the time when food leaves temperature control, did not contain the times certain food had been made. Four hours is the maximum period that food is able to be safely held out of temperature. This is a critical violation because the longer foods are held out of the proper temperature, the greater the risk of bacterial growth. The next most serious violation observed by Mr. Fulton during the October 29, 2009 and January 11, 2010, inspections was that food preparation employees were not using hair restraints. This is a violation because food workers not wearing hair restraints have a tendency to contaminate their hands by touching their hair and scalp, which can cross- contaminate food that they touch with their hands. In 2008, two Final Orders were entered by the Division in cases in which in which fines were imposed for the violations alleged in two Administrative Complaints, as a result of settlement agreements between the parties.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Division enter a final order which confirms the violations found, and imposes an administrative fine in the amount of $2,400 due and payable to the 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 15th day of March, 2011, in Tallahassee, Leon County, Florida. S Barbara J. Staros 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 March, 2011.
The Issue The issues in DOAH Case No. 10-1704 are whether Respondent, Stacked Subs (Respondent), committed the violations alleged in the Administrative Complaint dated November 5, 2008, and, if so, what penalty should be imposed. Similarly, the issues in DOAH Case No. 10-2445 are whether Respondent committed the violations alleged in the Administrative Complaint dated June 24, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2009). At all times material to the allegations of these cases, Respondent operated as a public food service establishment subject to Petitioner’s jurisdiction. In his capacity as an inspector for Petitioner, Alfonso Rullan visited Respondent’s place of business (2054 State Road 436, Winter Park, Florida) on December 19, 2007. During the inspection, Mr. Rullan noted several food service violations that he memorialized in an inspection report provided to, and signed by, Mr. Nevarez. The violations, more fully described in Petitioner's Exhibit 2, required correction. It was contemplated that Respondent would correct the violations of the Food Code such that on second inspection the violations would no longer be found. Since the inspection revealed “critical” violations, it was incumbent on Respondent to timely correct the violations noted in the inspection report. “Critical” violations are violations that, if left uncorrected, can contribute to food contamination, food-borne illness, or adversely affect public health. Thus, “critical violations” must be timely corrected, as they are a present concern. Violations that could lead to critical violations are denoted as “non-critical.” These “non- critical” violations must also be corrected, but they do not constitute a present threat to the public On March 12, 2008, Inspector Will Goris returned to Respondent’s place of business and completed a second inspection report, denoting critical violations uncorrected from the prior inspection and itemizing the concerns that required correction. Mr. Nevarez signed the report. This report, Petitioner’s Exhibit 3, chronicled ten violations of the Food Code. Subsequently, Petitioner issued an Administrative Complaint (DOAH Case No. 10-1704), outlining the uncorrected and critical violations Respondent had failed to timely address. Respondent timely contested the complaint and sought an administrative hearing in connection with the allegations. Between December 2007 and March 12, 2008, Respondent failed to correct the following violations: Cheese in the reach-in cooler at the front counter was 51 degrees; Employees reported to work and handled food without first washing hands; The prep table was adjacent to the fryers and under the hood was encrusted and greasy; and Single service cups were stored on the floor by the register. Of the foregoing violations, the failure of employees to wash their hands prior to handling food was the most critical violation. This violation was noted by both inspectors. On January 26, 2009, Inspector Goris conducted a routine inspection of Respondent’s premises. On this date, minor violations of the Food Code were again noted, but Mr. Nevarez was given a “met inspection standards” review for this visit. Nevertheless, Petitioner expected Respondent to correct the non-critical violations in a timely manner. On June 17, 2009, when Inspector Goris presented at the restaurant, violations were discovered that led to the second Administrative Complaint, DOAH Case No. 10-2445. Two of the violations were deemed repeat violations, and two were critical violations directly related to public safety; to wit: the soda disperser had slime on it, and proof of employee food- handler training was not available. Respondent timely challenged the Administrative Complaint in DOAH Case No. 10-2445. As to all alleged violations, Respondent was provided adequate notice of the allegations and was provided sufficient time to correct deficiencies. Respondent maintains that inspectors should be trained in abuse of power as their inspections can be discretionary and arbitrary. For example, Respondent claimed that the sleeve of cups on the floor by the cash register had merely fallen there when the inspector cited the violation. Respondent’s claim of abuse of power was unsupported by factual evidence. Moreover, the inspections performed by both inspectors documented objective criteria unrelated to opinion or subjective review. For example, dirty, greasy, or encrusted food surfaces were documented. The failure of employees to wash their hands was documented. The inadequate or incorrect temperature of containers of food was documented. These are not subjective items, but were disclosed to Respondent during and at the time of inspection. It is determined that the inspectors’ testimony was credible and persuasive as to the violations cited. The "Food Code," as it is used in this record, refers to paragraph 1-201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C-1.001. The Food Code is also available through the U.S. Food and Drug Administration Internet website.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against Respondent in the amount of $1,750.00 for the violations listed in DOAH Case No. 10-1704 and $1,000.00 for the violations identified in DOAH Case No. 10-2445. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper guidelines are adopted and implemented at the restaurant. DONE AND ENTERED this 5th day of October, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida Carlos Nevarez Stacked Subs 32399 2054 State Road 436 Winter Park, Florida 32792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 30530 South Dixie Highway, Homestead, Florida, and holding food service license number 2330285. On July 6, 2009, and November 3, 2009, Respondent was inspected by sanitation and safety specialists employed by the Division. During both visits, inspectors noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Brown and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of November 3, 2009, the following deficiencies subsisted at Respondent Galindo Cafe: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) food was stored on the floor, raw food was stored over cooked food, and uncovered food was present in a holding unit, in violation of Food Code Rules 3- 305.11(A)(3), 3-302.11(A)(1)(b), and 3-302.11(A)(4), respectively2; (3) a cutting board that was grooved, pitted, and no longer cleanable was observed, in violation of Food Code Rule 4-501.12; (4) unclean, wet wiping clothes were observed, in violation of Food Code Rule 3-304.14(B)(2); (5) a buildup of soiled material on racks in the walk-in cooler was present, in violation of Food Code Rule 4-601.11(A); and (6) a wall soiled with accumulated grease was observed, in violation of Florida Administrative Code Rule 61C-1.004(6). The deficiencies relating to the improper storage of food, the build-up of soiled material, and the lack of proper food labeling are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The three remaining deficiencies (a grooved and pitted cutting board, unclean wiping clothes, and the accumulation of grease on a wall), while not categorized as a critical violations, are serious nonetheless because they can lead to the contamination of food.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1800, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 25th day of January, 2011, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2011.
