The Issue The issue in this case is whether on July 14, 2011, and October 13, 2011, Respondent was in compliance with 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. Ms. Jessica Gabbard has been employed as a Sanitation and Safety Specialist with the Division for two years. She previously worked for the Department of Agriculture in the Bureau of Animal Disease Control for about eight years. She has had training, including monthly in-house training and field training in food inspection. She conducts between 600 and 800 inspections of food service establishments for safety and sanitation each year. Ms. Judy Hentges is a Senior Sanitation and Safety Specialist with the Division, where she has been employed for 12 years. She also has had training in food inspection, and conducts between 800 and 1000 inspections of food service establishments each year. Respondent is licensed as a permanent public food- service establishment operating as the Hong Yip Chinese Restaurant at 905 Southwest Main Boulevard, Lake City, Florida. As the hearing began, it became apparent that the owner of Respondent, Mr. Dong Jia Qi, who speaks very little English, was not present. Representing the restaurant was Mr. He Dong, manager of the restaurant, and son of the owner. Mr. Dong was present during the inspections that are the subject of this proceeding, interacted with Petitioner's agents on those occasions, and signed the inspection reports. Under all of the circumstances, including the fact that Mr. Dong demonstrated both knowledge of the applicable statutes and rules and the ability to capably and responsibly represent Respondent, Mr. Dong was accepted as both a Qualified Representative and as a witness. On July 14, 2011, Inspector Hentges conducted a food service inspection on Respondent. Inspector Hentges prepared an inspection report on her Personal Data Assistant (PDA) setting forth the violations that she observed during the inspection. During her July inspection, Ms. Hentges observed that Respondent was using dry, powdered food products that had been removed from their original containers and that the products' substitute working containers were not labeled with their common names. Storage of dry, powdered food products in unmarked working containers can cause mistakes in preparation that can be serious to consumers due to product allergies. The Division has determined such storage in working containers poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on the DBPR Form HR-5022-015, Food Service Inspection Report. Ms. Hentges observed during the July inspection that Respondent was storing rice and onions in uncovered containers in the walk-in cooler. DBPR Form HR-5022-015, Food Service Inspection Report, indicates that this is a critical violation. Uncovered containers can lead to food contamination by particles, by debris, and by microbes, and the Division of Hotels and Restaurants has determined that this constitutes a significant threat to the public health, safety and welfare. During the July inspection, Ms. Hentges observed a rice scoop on the buffet which was stored in standing water that was less than 135 degrees Fahrenheit, and noted this on the report. During the July inspection, Ms. Hentges also observed that a wet cloth used for wiping food spills from equipment surfaces was sitting on the counter and was not stored between uses in a chemical sanitizing solution, and noted this in her report. Wet wiping cloths can be breeding grounds for pathogens that can transfer to food. On October 13, 2011, Ms. Gabbard conducted a callback inspection on Respondent. She prepared a handwritten report on DBPR Form HR 5022-015 setting forth violations that she observed. Ms. Gabbard testified that she observed powdered food products at the cooking preparation line that had been removed from their original containers and placed in working containers not marked with their common names. She recorded this information in her report. Mr. Dong testified that he had corrected the labeling problem on the "big bucket" that stored the sugar, cornstarch, salt, and flours that had been written up in the July inspection. Mr. Dong testified that on the callback inspection the problem was written-up because of different products found in another area, on top of the reach-in cooler, in a see-through container containing peanuts, sesame seed, cashew nuts, and another Chinese product that is a dried root. Ms. Gabbard testified in cross-examination that she did not remember any nuts. Her report indicates "all powdered food products." The report further indicates this violation was "at cookline prepline." Ms. Gabbard's testimony is credited. The unlabeled products Ms. Gabbard observed and noted in her violations report were powdered products at the cookline that could easily be confused, not foods that could be easily and unmistakably recognized, such as peanuts, cashews, and sesame seeds on top of the reach-in cooler. Ms. Gabbard observed uncovered rice and onions in the walk-in cooler. She recorded this in her report. Mr. Dong provided no contradictory testimony at hearing. Respondent did testify that that the film he used to cover the rice and onions did not stick on the aluminum containers used to store the food. Ms. Gabbard observed a rice scoop at the buffet that was being kept in standing water which was less than 135 degrees Fahrenheit, noting this fact in her report. She took the temperature of the water and recorded that it was 45 degrees Fahrenheit. Mr. Dong testified that that they always keep ice in the water to keep it below 41 degrees Fahrenheit. He testified that the water had just been changed so that the ice may have just melted, though he thought ice was still present. He acknowledged that the water was 45 degrees Fahrenheit as measured with the thermometer. Mr. Dong's testimony that he recently put ice in the container is credible, and the temperature of the water would have been room temperature if this had not been done. The water in which the rice scoop at the buffet line was being stored was 45 degrees Fahrenheit. Ms. Gabbard also observed wet wiping cloths that were not being stored in sanitizing solution between uses, but were located in multiple locations on the counter. She recorded this in her report at the time of the inspection. Mr. Dong admitted the violation at the time of the July inspection. He testified that at the time of the callback inspection in October he was using one cloth and the rest were not in use, but had been cleaned and were hanging on the table to dry. In response, Ms. Gabbard testified that there were multiple cloths around the restaurant laying on the counter. Her testimony was corroborated by her inspection report, prepared at the time of the inspection, which noted, "[o]bserved wet wiping cloth not stored in sanitizing solution between uses. Repeat violation. Located in multiple locations on counter." Mr. Dong's testimony on this violation was less credible than Inspector Gabbard's, and her testimony is credited. The wet wiping cloths had not been cleaned, but had been used, and were not being stored between uses in a chemical sanitizer. Petitioner issued an Administrative Complaint against Respondent for the above violations on October 24, 2011. Additional evidence introduced at hearing showed that Respondent has had five 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 Mr. Dong on October 20, 2009, and filed on December 3, 2009, Respondent agreed to pay a fine of $500.00, 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 Mr. Dong on January 8, 2010, and entered on March 2, 2010, Respondent agreed to pay a fine of $650.00, but again did not admit or deny the allegations of fact contained in the Administrative Complaint, some of which would have constituted critical violations. In the third Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted critical violations. In the fourth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted a critical violation. In the fifth Stipulation and Consent Order, signed by Mr. Dong on an unknown date, and entered on May 31, 2011, Respondent agreed to a suspension of the Division of Hotels and Restaurants license for one day. Respondent did not admit or deny the allegations of fact contained in the Administrative Complaint, which would have constituted 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: Dismissing Counts 2 and 6 of the Administrative Complaint and Finding the Hong Yip Chinese Restaurant in violation of two critical and two non-critical violations and suspending its license for three consecutive days beginning the first Monday after 40 days from the date the final order becomes effective. DONE AND ENTERED this 6th day of November, 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 6th day of November, 2012.
The Issue The issues in this case concern whether challenged portions of Proposed Rule 61C-4.023(4)(b) either separately or together constitute an “invalid exercise of delegated legislative authority” on the grounds that the agency has exceeded its grant of rulemaking authority; the proposed rule enlarges, modifies, or contravenes the specific provisions of law implemented; or both.
Findings Of Fact The parties' Joint Prehearing Stipulation and the evidence presented at final hearing established the facts that follow. The Division is the state agency charged with inspecting and regulating licensed “public food service establishments” (which are commonly known as restaurants). See generally Section 509.032, Florida Statutes. In the early 1990s, the legislature enacted Section 509.039, Florida Statutes, which directed the Division to adopt, by rule, food safety protection standards for the training and certification of all food service managers responsible for the storage, preparation, display, or serving of foods to the public in licensed establishments. This legislation required the Division to establish a testing and certification program, to be administered by private or public entities. Id. In 1996, the Legislature went a step further, instructing the Division to adopt minimum food safety protection standards for the training of all food service employees: 509.049 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 establishments regulated under this chapter. These standards shall not include an examination. 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. See Chapter 96-384, Section 4, Laws of Florida. In 2000, the legislature substantially revised Section 509.049, Florida Statutes, mandating that the Division establish, by rule, a food safety training certification program for food service employees, to be administered by a private provider under a public contract that the Division was directed to let pursuant to competitive proposals. See Chapter 2000-191, Section 1, Laws of Florida. At the same time, the revised law provided that licensed establishments could apply to the Division for approval of their existing food safety training programs——approval which, if granted, would allow such programs to be used in place of the program administered by the Division’s contracted provider. Id. Pursuant to a competitive procurement, the Division selected the Intervenor Association to be its contracted provider for the “official” employee food safety training certification program. Petitioner Food Safety is a provider that offers a food safety training program that the Division has approved for use. Food Safety distributes its training program both by directly administering the program to restaurant employees through on- site, personal instruction, and by selling its program for others to administer.1 In 2001, the legislature again revised Section 509.049, Florida Statutes, adding provisions that pertained to the approval of food safety training programs, allowed some regulation of providers of such programs, and authorized the Division to adopt certain rules. See Chapter 2001-257, Section 1, Laws of Florida. In particular, two new subsections, (4) and (6), were added to Section 509.049, as follows: (4) Approval of a program is subject to the provider's continued compliance with the division's minimum program standards. The division may conduct random audits of approved programs to determine compliance and may audit any program if it has reason to believe a program is not in compliance with this section. The division may revoke a program's approval if it finds a program is not in compliance with this section or the rules adopted under this section. * * * The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require: The use of application forms, which may require, but need not be limited to, the identification of training components of the program and an applicant affidavit attesting to the accuracy of the information provided in the application; Providers to maintain information concerning establishments where they provide training pursuant to this section; Specific subject matter related to food safety for use in training program components; and The licensee to be responsible for providing proof of employee training, and the division may request production of such proof upon inspection of the establishment. Initiating the rulemaking process that led to this challenge, the Division caused a Notice of Proposed Rule Development to be published in the March 23, 2001, edition of the Florida Administrative Weekly. This Notice included the preliminary text of Proposed Rule 61C-4.023(4), which stated in relevant part: Approved program providers must maintain a record of each food service employee certified, including the following: the name of the certified food service employee, the employing food service establishment, the name of the training administrator, the training date, and the certification expiration date. These records shall be transmitted to the division on a monthly basis, either in hard copy or in an electronic format approved by the division. After conducting a workshop on the draft rule on May 24, 2001, the Division caused a Notice of Proposed Rule to be published in the August 17, 2001 edition of the Florida Administrative Weekly. The August 17, 2001, version of the proposed rule stated, in pertinent part: (b) Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program which, upon examination, is found to have failed to keep this required information or to have knowingly participated in falsifying any training record. On September 20, 2001, Food Safety filed its Petition, objecting to provisions in the proposed rule which would impose record-keeping requirements on providers that do “not directly administer training” and which would require the Division to revoke its approval of an authorized program in certain circumstances. After this rule challenge commenced, the Division amended the final sentence of Proposed Rule 61C-4.023(4)(b). The proposed rule assumed its current form in the October 26, 2001, edition of the Florida Administrative Weekly. Proposed Rule 61C-4.023(4)(b) (the “Proposed Rule”), as challenged, provides as follows: Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program where, upon examination, the program provider is found to have failed to keep this required information or to have knowingly participated in falsifying any training record. Petitioner protests the third and fourth sentences of the Proposed Rule, which are underlined above, alleging that the subject provisions either exceed the Division’s rulemaking authority; enlarge, modify, or contravene the specific provisions of law implemented; or both.
The Issue The issue presented is whether Respondent is guilty of the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed, if any.
Findings Of Fact Respondent is a bakery, primarily selling bagels. Respondent bakes, packages, and sells bagels and other baked products wholesale and retail. In addition, it sells ready-to- eat food in individual portions for consumption on or off the premises, including eggs, bacon, sausage, salads, and soups. It also cuts, packages, and sells meats. Respondent also operates a delivery service and a catering business and is open to the public 24 hours a day, seven days a week. Respondent is regulated by the Department and is routinely inspected by the Department three times a year. Ronald Gagnon is employed by the Department's Bureau of Food and Meat Inspection as a sanitary and safety specialist. He performed a routine inspection of the Respondent's premises on May 26, 2006. Gretchen Rhodes is the sanitation and safety specialist who had been assigned to perform routine inspections of the Respondent, but she was behind schedule in her duties and was covering for her supervisor, Rodney Banks, who was on vacation. Gagnon agreed to perform the inspection of Respondent to assist Rhodes. He had never been on Respondent's premises to inspect it prior to the May 26, 2006, inspection, but he had inspected other bakeries before he inspected Respondent. Gagnon had been employed by the Department as a sanitation and safety specialist since August 2005. After he was hired, he received six months of on-the-job training accompanying other inspectors on inspections before performing an inspection by himself. He also received one week of training by the Department regarding the different statutes and rules relating to food safety. He also underwent standardization that included performing eight inspections of food establishments under the observation of a federal Food and Drug Administration inspector to ensure that he was performing inspections competently. Prior to inspecting Respondent, Gagnon had been performing inspections by himself for approximately five months. According to his estimate, he had performed approximately 300 inspections by then. Of those, only six to eight percent of the inspections he performed had been assigned a "poor" rating, which rating required a re-inspection. Upon entering Respondent's business at about 8:30 a.m., Gagnon told the cashier he was there to inspect the premises and then gave that information to Patricia Marshall, the employee who was in charge at the time. Marshall asked Gagnon to wait for an owner to arrive before he did his inspection, but he advised her that he could perform his inspection as long as there was someone in charge at the business. He invited her to accompany him, but she was busy and did not accompany him during his inspection of the back room and related areas. Shortly after Gagnon's arrival, Marshall telephoned Denise Jimenez, a manager and the wife of one of the owners, and advised her that an inspector was performing an inspection. Mrs. Jimenez did not arrive at the business until after Gagnon had completed his inspection and was preparing his written report. When Gagnon completed his inspection of the back room and related areas, he returned to inspect the retail area where Marshall was working. Although she was with him for some parts of the inspection, she was busy and did not observe him during all of his inspection of the retail area. They did have several conversations, however, regarding specific violations which he noticed. One of those conversations involved the temperature- recording device in the cooling case in the retail area. Gagnon noticed that the measuring device was in the coldest part of the case by the condenser coils; however, to properly measure the temperature of the food in the case, the device should be located in the warmest part of the cooler. Gagnon explained this problem to Marshall, and Marshall subsequently pulled out the wire of the device so that it was no longer working. Another conversation involved the soup that was in the ready-to-eat serving area. The soup was in a stainless steel container called a Bay Marie and had been lowered into a crock pot with a heating element. The container had approximately a quart of soup in it. When Gagnon measured the temperature of the soup, it was at 118 degrees Fahrenheit and not at 135 degrees, the temperature required to prevent the growth of harmful bacteria. At hearing, Gagnon testified that Marshall told him she was going to throw that soup away and make new soup for lunch. Marshall testified, however, that she had made the soup for lunch and it was not yet fully heated. The small amount of soup makes Gagnon's recollection more credible than Marshall's. At any rate, Gagnon told her to throw away the soup, and she did. Gagnon made handwritten notes to record his findings as he performed his inspection. He used the equipment he brought with him as he proceeded. He brought a thermal couple, a digital food thermometer with a probe that could be inserted into food to measure the internal temperature. He had an infrared thermometer to measure surface temperatures. He used these two devices to measure the temperature of food to determine whether it was hot enough or cold enough. If the infrared thermometer showed that the surface temperature was too low or too high, he used the probe thermometer to measure the internal temperature of the food. He also had a flashlight to look into dark areas and test strips to measure the concentration of sanitizer used to clean dishes and cooking utensils to determine whether it was too low or too high. He had alcohol swabs to cleanse the measuring device on the probe thermometer between uses on different foods. Lastly, he had his computer and printer to prepare his report and provide a copy to the business being inspected. After Gagnon concluded his inspection, he prepared a Food Safety Inspection Report while still on Respondent's premises. The numbers on the left margin of those documents represent different classifications of food safety violations. By virtue of his training, Gagnon was familiar with the different classifications and would press the number for the class of violations most closely resembling what he had observed. From the available options, he would then select the description most closely fitting what he observed. This description would be printed in lower case letters. Using bold print following that description, Gagnon wrote what he had actually observed. The computer was programmed to print an asterisk beside certain violations which had been determined by the Department to pose a more serious threat to food safety. These violations are referred to as "critical violations." Since Mrs. Jimenez arrived at the business after Gagnon finished his report, he went through his report with her verbally. She then accompanied him through the premises, starting in the back area. He pointed out to her each item which he had marked as a violation. She remained silent through most of his concerns, not offering any explanations that he might consider in finalizing his report, except for one. She explained to him that the mixer was black on the inside because the cook had been mixing pumpernickel dough which contains coloring that is black. When Gagnon and Mrs. Jimenez went into the retail area, a discussion and then argument ensued regarding the broken temperature-measuring device in the cooling case. Mrs. Jimenez insisted that Gagnon had ordered Marshall to move it, which broke the device; Gagnon denied ordering Marshall to do so. Mrs. Jimenez became quite angry and demanded that Gagnon pay to repair the cooler. She began demanding that Gagnon prove who he was, and he handed her a copy of his inspection report with his name on it and advised her that there was a telephone number for the Department on it if she wanted to call to complain. He then left the business and the confrontation. Gagnon's inspection report cited numerous violations ranging from minor to serious. Eleven of the violations were critical violations as follows: washed utensils were not properly washed; there was a live roach in the proofer box; single-serve gloves were being used more than once for tasks where glove changes were necessary; food employees were not regularly washing their hands; bacon and sausage were held at room temperature, and the soup was at 118 degrees; salads and deli meats were held at above the required temperature; eggs, ham, and cheeses in the walk-in cooler were above the required temperature; desserts were in a case with ice underneath and were, therefore, above the required temperature; eggs in the reach-in cooler and cheese in the cold case were above the required temperature; equipment was not maintaining required temperatures; and there were no dates marked on the ham. Due to the number of critical violations and the number of other violations, Gagnon gave Respondent a rating of "poor," which rating required a re-inspection two weeks later to ascertain if the violations had been corrected. Both Mr. and Mrs. Jimenez called the Department that same day complaining about Gagnon and demanding that the Department immediately send a different inspector to re-inspect the business. They were both advised that the business would be re-inspected in two weeks. Yet, Mr. Jimenez instructed his employees to change nothing so they could prove Gagnon was wrong when the next inspector came. In other words, Jimenez made the decision to not correct the violations noted in Gagnon's report. In the Food Safety Inspection Supplemental Report Gagnon completed after he had left the business, he memorialized that the key lime desserts, bacon, sausage, and soup were destroyed. As to other violations, such as eggs being held at too high a temperature, he released those products for sale after they were properly refrigerated. No competent evidence was offered as to any bias on the part of Gagnon against the business or its employees. The evidence is uncontroverted that he had finished his report before the confrontation over the wire in the cooler began. When he left the business to avoid continuing the confrontation, he left a copy of his report, and no changes are alleged to have been made to his report thereafter. Gretchen Rhodes performed the follow-up inspection on June 7, 2006. She was accompanied by her supervisor, Rodney Banks, due to the reported confrontation on May 26 between Gagnon and Respondent's employees. They observed some of the same violations found by Gagnon on May 26. There were four critical violations found: (1) a food employee in the in-store deli area failed to change single-use gloves and failed to wash his or her hands after the gloves were contaminated; (2) there was no health-risks advisory posted in the in-store deli part of the business although eggs were cooked to order there; (3) salads in the in-store deli cooler were at higher than the required temperature; and (4) heavy rodent droppings were seen in the service closet (utility room) near the ovens. As on May 26, there was no certified food manager present although there were four or more employees present. As on May 26, Rhodes observed furnishings and equipment that were dirty. As to the rodent droppings, John Jimenez, as Respondent's 50 percent owner and Respondent's representative at the final hearing, admitted that the business had a rodent problem and had had that problem since February 2006 when it was discovered. Although attempts had been made to eradicate the rodents, they were still present and the business was still cooking and serving food to the public. On June 7 there were maintenance and cleaning tools stored in the food processing area, including a generator and tires for motor vehicles, thereby creating an area of clutter in which rodents could hide. Rhodes assigned Respondent a rating of "poor" based upon the violations she found, particularly, the presence of rodents. She gave a copy of her Food Safety Inspection Report and of her Food Safety Inspection Supplemental Report to Mrs. Jimenez, who signed that she received them. Rodney Banks, a sanitation and safety supervisor since 1992, accompanied Rhodes on the June 7 inspection. He agreed with her observations and with the violations noted in her report and supplemental report which he reviewed at the conclusion of the inspection. In addition to supervising Gretchen Rhodes, he also supervises Ronald Gagnon and Cynthia Koza. In fact, he had hired Gagnon and has never received a complaint about Gagnon from any of the businesses Gagnon has inspected, except for Respondent's. Cynthia Koza, a sanitation and safety specialist, accompanied Rhodes when Rhodes returned to Respondent's premises on July 5, 2006, for a follow-up inspection. It was normal procedure to have two inspectors for the follow-up inspection if a food establishment had two "poor" ratings in a row. She agreed with Rhodes' observations during the inspection and with the contents of Rhodes' Food Safety Inspection Report and Food Safety Inspection Supplemental Report. The inspectors did not inspect the retail area of Respondent's premises on that date because there were a lot of customers in that area. They did, however, inspect the back area and once again found rodent droppings not only in the service closet but also behind a butcher block table top leaning against the wall by the walk-in cooler. They noticed that the back door of the business was standing open at the time of the inspection and was neither self-closing nor tight-fitting. This observation matched that of Gagnon on May 26 that the back door had gaps with huge openings, thereby allowing rodents and insects to enter the food processing area. The inspectors also noticed that there were chew holes in ceiling tiles near the electric conduit pipes, some ceiling tiles were missing, and there was a hole in the wall in the finishing room. Based upon Rhodes' training and experience, she recognized the chew holes as rodent chew marks. There were also black grease marks around the hole where a rodent's fur brushed against the wall as it squeezed through the hole. As on May 29 and June 7, there was no certified food manager on the premises on July 5 although there were eight employees present at the time. Rhodes again noted in her report the continued presence of clutter and the dirty equipment. Foods in the walk- in cooler still were not maintained at the required low temperature. Rhodes again gave the business a rating of "poor." She gave copies of her Food Safety Inspection Report and Food Safety Inspection Supplemental Report to Mrs. Jimenez. Dr. John Fruin is the Chief of the Bureau of Food and Meat Inspection, Division of Food Safety, of the Department. He reviewed the Food Safety Inspection Reports dated May 26, June 7, and July 5, 2006, and agreed that the proper rating for Respondent was "poor" for each of those reports based upon the number of violations, the number of critical violations, and the presence of rodents. He testified that the three "poor" ratings with repeat violations require that a fine be imposed upon Respondent for the violations observed during each inspection. On May 26 there were six critical violations but some of them were committed more than one time, meriting a fine of $1,375. On June 7 there were fewer critical and non-critical violations, meriting a fine of $950. On July 5 there were still fewer violations, meriting a fine of $300. The total fine recommended by Dr. Fruin, therefore, is $2,625.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violations alleged in the Administrative Complaint and requiring Respondent to pay to the Department an administrative fine in the amount of $2,625 by a date certain. DONE AND ENTERED this 12th day of January, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th of January, 2007. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 John Jimenez TJ Baking, LLC 7562 West Commercial Boulevard Lauderhill, Florida 33319
