The Issue After the hearing had concluded, the Petitioner filed a Notice of Voluntary Dismissal in DOAH Case No. 12-2627. Accordingly, the remaining issues for consideration are whether the allegations of the Administrative Complaint filed in DOAH Case No. 12-2748 are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2012). At all times material to this case, the Respondent was a restaurant operating at 288 Windward Passage, Clearwater, Florida 33767. The Food Code identifies proper food storage temperatures for potentially-hazardous food products. The storage of such products at improper temperatures can result in bacterial contamination of the product and can cause serious illness in humans who consume contaminated products. Violations of food temperature regulations that present an immediate threat to public safety are deemed to be "critical" violations of the Food Code. At the hearing, Mr. Suarez acknowledged that the Respondent had been disciplined by the Petitioner for food temperatures in excess of those permitted by relevant Food Code regulations and that he had paid an administrative fine pursuant to a previous Final Order. On May 9, 2012, Christine Craig, a trained sanitation safety specialist employed by the Petitioner, performed a "callback" inspection at the Respondent. The violations referenced herein were identified by Ms. Craig as critical. The relevant portion of the Food Code requires that certain products be stored at temperatures of 41 degrees Fahrenheit or less. Previous inspections at the Respondent revealed that holding temperatures of some food products stored in a reach-in cooler and in a two-door glass upright cooler did not comply with the Food Code requirements. The purpose of the May 9, 2012, callback inspection was to determine whether food temperature violations indentified in the previous routine inspections had been resolved. During the callback inspection, Ms. Craig found that ham, chicken broth, and cream cheese were being held in the referenced coolers at temperatures in excess of 41 degrees Fahrenheit, which were critical violations of the Food Code. The Respondent did not dispute Ms. Craig's testimony or the results of her inspection.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $750 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 27th day of November, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012. COPIES FURNISHED: Mark Anthony Suarez Island Way Cafe 288 Windward Passage Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, 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 issue is whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Harrison’s is licensed by the Division as a permanent food service establishment. Harrison’s license number is 6213138. Laura Kennedy, a sanitation and safety inspector for the Division, conducted a routine inspection of Harrison’s on March 16, 2005. Based upon her inspection, Ms. Kennedy documented 28 areas in which Harrison’s was in violation of the statutes and rules governing restaurant operations. One of the violations, No. 35A-01, was based upon Ms. Kennedy’s observation of ten dead roaches in Harrison’s dry storage area. She required Harrison’s to correct that violation within 24 hours. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on March 17, 2005, to determine whether the roaches had been cleaned up, which they had been. Ms. Kennedy gave Harrison’s 30 days to correct the remainder of the violations that she documented during her inspection on March 16, 2005. Ms. Kennedy conducted a “call-back” inspection of Harrison’s on April 19, 2005, to determine whether the other violations had been corrected. During the inspection, Ms. Kennedy noted that some of the violations had been corrected, but that others had not been corrected. Five of the uncorrected violations were “critical” violations because, according to Ms. Kennedy, they posed an immediate threat to the public health. Three of the uncorrected violations were “non-critical” because, according to Ms. Kennedy, they posed a risk to the public health but not an immediate threat. The critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 45-17, 45-10, 45-30, 46-11, and 8A-04. Violation No. 45-17 was based upon Ms. Kennedy’s observation that the tag on the fire suppression system on the hood over the cooking area was out of date. The tag is supposed to be updated every six months, but the tag observed by Ms. Kennedy at Harrison’s was dated July 2003. Violation No. 45-10 was based upon Ms. Kennedy’s observation that the portable fire extinguishers were out of date. Fire extinguisher tags are supposed to be updated every year, but the tags on the extinguishers at Harrison’s reflected that two of them had not been inspected since December 2002 and another had not been inspected since July 2003. Violation No. 45-30 was based upon Ms. Kennedy’s observation that Harrison’s did not have the required inspection report for the fire suppression system for the hood over the cooking area. The purpose of requiring a current tag and inspection report on the hood fire suppression system and current tags on the portable fire extinguishers is to ensure that those devices are in good working order in the event of a fire. As a result, the out-of-date tags are considered to be critical violations. Violation No. 46-11 was based upon Ms. Kennedy’s observation that the emergency exit signs over Harrison’s side doors and the back door were not illuminated. This is a critical violation because the purpose of the illuminated signs is to guide restaurant patrons to an exit in the event of an emergency. Violation No. 8A-04 was based upon Ms. Kennedy’s observation of uncovered food in the walk-in cooler. This is a critical violation because uncovered food is subject to contamination. The non-critical violations that had not been corrected at the time of Ms. Kennedy’s “call-back” inspection on April 19, 2005, were Nos. 32-14, 22-02, and 23-01. Violation No. 32-14 was based upon Ms. Kennedy’s observation that there was no hand-washing soap at a sink in the kitchen. The absence of soap did not pose an immediate threat to the public health, but it is required so that employees involved in the preparation of food can wash their hands for their own hygiene and for the protection of the restaurant’s patrons. Violation No. 22-02 was based upon Ms. Kennedy’s observation of built-up of grease in the oven. Violation No. 23-01 was based on Ms. Kennedy's observation of built-up of grease on the sides of equipment in the cooking area. The built-up grease did not pose an immediate threat to the public safety, but cleanliness in the cooking area is important so as not to attract vermin and to prevent contamination of the food being cooked. Ms. Kennedy documented the violations described above on the Food Service Inspection Reports that she prepared at the time of her inspections. Copies of the reports were provided to Harrison’s at the end of each inspection, as reflected by the signature of Rafma Balla on each report. Mr. Balla is identified on the reports as Harrison’s manager/owner. The record does not reflect whether the violations described above have been corrected by Harrison’s since Ms. Kennedy’s last inspection on April 19, 2005. Harrison’s was provided due notice of the date, time, and location of the final hearing, but no appearance was made on its behalf at the hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division issue a final order that: Imposes an administrative fine of $2,600 on Harrison’s for Violation Nos. 45-17, 45-10, 45-30, 46-11, 8A-04, and 32-14, payable on terms prescribed by the Division in the final order; and Requires Harrison’s to correct the critical violations related to the portable fire extinguishers, hood fire suppression system, and exit signs within 15 days of the date of the final order, and to provide proof thereof to the Division; and Requires Harrison's owner and/or manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 28th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2005.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
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 of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2010.
The Issue Whether Respondent violated food safety standards established by section 509.032, Florida Statutes, and the implementing rules as charged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact Parties At all times material hereto, Richie Cheesesteak was owned and operated by Richard Fascenda, as a licensed permanent public food-service establishment located at 6191 Deltona Boulevard, Spring Hill, Florida. Mr. Fascenda holds License No. 3700896 to operate Richie Cheesesteak.1/ Mr. Fascenda is the owner/operator of Richie Cheesesteak, as well as the only cook. The Division is responsible for monitoring and inspecting licensed food-service establishments to ensure that they comply with the standards set forth in relevant statutes and rules, and the Food Code. Initial Inspection On April 16, 2013, Nick Roff, Sanitation and Safety Specialist for the Division, conducted a food-service inspection of Richie Cheesesteak. On the date of the inspection, Mr. Roff had been employed by the Division for approximately three months and was still under probation. Mr. Roff had no experience in the food- service industry prior to his employment with the Division. Mr. Roff received training from the Division in the laws relating to food service, and has become certified as a food manager. The Division additionally provides monthly in-house training which Mr. Roff has attended. During his probationary period, Mr. Roff accompanied his senior inspector on food-service establishment inspections, observing how the inspector conducted inspections, identified violations, and provided corrective actions. As part of his training, Mr. Roff was also “shadowed” by his senior inspector as Mr. Roff conducted inspections. On the date of the final hearing, Mr. Roff had conducted approximately 600 restaurant inspections. Cited Violations License and Certification On April 16, 2013, Mr. Roff prepared an Inspection Report noting a total of 13 alleged violations of the standards set forth in applicable statutes, administrative rules, and the Food Code. Respondent was cited for an expired license, a high priority violation which was remedied on-site during the inspection. Among the other violations Mr. Roff noted in his Inspection Report was Respondent?s failure to produce proof of a food manager certificate. Section 509.039 provides for a Food Manager Certification Program to ensure all managers of food-service establishments have a demonstrated knowledge of basic food protection practices. The statute further requires that “[a]ll public food-service establishments must provide the division with proof of food-service manager certification upon request, including, but not limited to, at the time of any division inspection of the establishment.” Id. In 2008, Respondent was an assistant manager for Boyz- N-Burgers, operated by McClain Sonic?s, and was certified as a food manager at that time. On the date of inspection, Respondent could not produce a copy of his certificate and explained that the certificate would be on file with his former corporate employer. A food manager certificate expires five years after certification. A violation of section 509.039 is designated by the Division as an intermediate priority violation. Reach-in Cooler Gasket Among the violations Mr. Roff noted was that the gasket on the reach-in cooler was both torn and soiled. Food Code Rule 4-501.11(B) provides, “Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturer?s specifications.” A torn or otherwise damaged cooler gasket can cause cross-contamination of food and prevent the storage of foods at the required temperature. Respondent?s reach-in cooler is at least 30 years old. Respondent did not testify that the gasket had ever been replaced, although he did state that it has been “siliconed over” on several occasions. Respondent admitted at final hearing that the reach-in cooler gasket was torn in one place. Respondent denied that the gasket was soiled, explaining that there might have been some food spilled on it during lunch and the inspection was conducted right after lunch. Respondent insisted that he wipes down the gasket every day. Violation of rule 4-501.11(B) is designated by the Division as a basic violation. Storage of Utensils Among the other violations observed by Mr. Roff was a knife stored between two pieces of kitchen equipment. Food Code Rule 3-304.12 provides, in pertinent part, as follows: During pauses in FOOD preparation or dispensing, FOOD preparation and dispensing UTENSILS shall be stored: * * * (C) On a clean portion of the FOOD preparation table or cooking EQUIPMENT only if the in-use UTENSIL and the FOOD-CONTACT surface of the FOOD preparation table or cooking EQUIPMENT are cleaned and SANITIZED at a frequency specified under subsections 4-602.11 and 4-702.11. * * * (F) In a container of water if the water is maintained at a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) and the container is cleaned at a frequency specified under subparagraph 4-602.11(D)(7). Respondent admitted that a knife was stored in the crack between two pieces of kitchen equipment when Mr. Roff made his initial inspection. Violation of rule 3-304.12 is designated by the Division as a basic violation. Improperly Marked Containers Mr. Roff also observed “cookline bottles” stored in squeeze bottles which were not labeled as to their contents. Food Code Rule 3-302.12 reads as follows: Except for containers holding FOOD that can be readily and unmistakably recognized such as dry pasta, working containers holding FOOD or FOOD ingredients that are removed from their original packages for use in the FOOD ESTABLISHMENT, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the FOOD. Respondent keeps two bottles on the cookline, one for oil and one for vinegar. Respondent is the only cook. Respondent testified that he has the bottles marked “oil” and “vinegar” with black marker. He introduced a photograph of the bottles marked as such, but the photograph was taken subsequent to the callback inspection and is not accepted as evidence of the condition of the bottles on the day in question. Mr. Fascenda testified that during the inspection, he showed the bottles to Mr. Roff and pointed out the hand-labeling, but admitted that Mr. Roff could not see the wording because it rubs off easily. Mr. Roff testified he did not recall seeing any labeling on the bottles. Violation of rule 3-302.12 is designated by the Division as a basic violation. Mr. Roff walked through the violations with Respondent, who signed the Inspection Report on April 16, 2013. The Inspection Report noted that a follow-up inspection was required and that the violations must be corrected by June 16, 2013. Callback Inspection On June 17, 2013, Mr. Roff performed a callback inspection at Richie Cheesesteak. Mr. Roff observed that seven of the violations noted in the April 16, 2013, Inspection Report had been corrected. However, the violations detailed above –- gasket on reach-in cooler torn and soiled; knife stored between kitchen equipment; cookline bottles unlabeled; and no proof of food manager training –- were not corrected. Mr. Roff prepared a Callback Inspection Report, which was signed by Respondent. The Callback Inspection Report recommended filing an Administrative Complaint. Petitioner introduced no evidence of prior violations by Respondent of the applicable statutes, administrative rules, or the Food Code. Owner?s Response Certification Respondent maintained it would be impossible to produce his food manager certificate because it was retained by his employer in 2008. Respondent was clearly frustrated with Mr. Roff?s unwillingness to accept the explanation given at the first inspection and was indignant at being fined for lack of food manager certification following the callback inspection. Respondent?s explanation that he was previously certified but that the certificate was retained by his former employer is not a defense. The statute clearly requires production of the food manager certificate when the Division inspects the manager?s food-service establishment. Following the callback inspection, Respondent obtained a Food Manager Certificate, which was introduced at final hearing. Reach-in Cooler Gasket Respondent argued that if the gasket was not functioning, the reach-in cooler would not be maintaining the appropriate temperature, which it was when tested upon inspection. Respondent?s argument is not a defense. Keeping food at the proper temperature is only one of the aims of the rule. The other is to prevent cross-contamination of food in the cooler with substances on the gasket, whether they are foods spilled thereon or bacteria growing in a torn gasket. Respondent further argues that cross-contamination is not an issue since he is the sole operator and cook. Cross- contamination of foods in the reach-in cooler is not a function of how many different employees use the cooler, but rather the condition in which it is kept. Respondent testified that, since the callback inspection, he “siliconed over” the gasket to seal it and improve its appearance. He produced before and after photographs of the gasket at final hearing. Neither picture is evidence of the condition of the gasket upon inspection,since they were taken approximately two weeks before the hearing. If anything, the “before” picture tends to support the Division?s case that the gasket was torn and soiled upon inspection. Storage of Utensils Respondent admitted that a knife was stored between two pieces of kitchen equipment on the date of the first inspection. But, he maintained that was an accident and he does not regularly store knives that way. Improperly Marked Containers Respondent first argued that his oil and vinegar bottles were labeled, although in marker, and he should not be held in violation. The evidence shows that the labels were unrecognizable when the inspections occurred. Respondent next argued that the following facts should be taken into consideration when determining whether he violated the rule. First, there are only two bottles –- oil and vinegar. Accidental mixing of their contents would not create a health hazard or threat. Second, Respondent is the only cook, so mixing the contents is unlikely. Third, the cookline is separated from the cleaning area. Thus the likelihood of mixing the contents of the cookline bottles with bleach or another cleaning product is minimal. While Respondent?s arguments are no defense, they may be considered mitigating factors.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent Richie Cheesesteak violated section 509.039 and Food Code Rules 3-302.12, 3-304.12, 4- 501.11, and 4-601.11, as alleged in the Administrative Complaint; and Imposing an administrative penalty against Respondent Richie Cheesesteak in the amount of $800, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2013.
The Issue The issues in the case are whether the alleged violations set forth in the Petitioner's Administrative Complaint occurred, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and witness testimony presented and the entire record of this proceeding, the following Findings of Fact are made: The Petitioner is a state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004). The Respondent, Amici's Pizza, is a restaurant located at 1718 North Goldenrod Road in Orlando, Florida. The records of the Division indicate that the restaurant is also known as Amici's Italian Kitchen and Pizzeria. The Respondent holds License No. NOS5808584. James Thomason is a Senior Sanitary and Safety Specialist employed by the Division of Hotels and Restaurants. His duties include inspecting food service establishments and lodging facilities for compliance with applicable law. He conducts approximately 4000 inspections per year for the Division. On August 27, 2004, Mr. Thomason conducted a routine inspection of Amici's Pizza and issued an inspection report. In his report, Mr. Thomason noted several violations, among which are the two violations that are charged in the Petitioner's Administrative Complaint: cheese and sausage in the preparation area were above the maximum allowable temperature, and the pizza cooler was not maintaining food at sufficiently low temperatures. The August 27, 2004, inspection report indicated that the two violations were "critical violations," meaning they posed an immediate threat to the public. The public threat associated with food not being kept at a low temperature is the possible consumption of bacteria-contaminated food. Because Mr. Thomason found what he believed to be critical violations at Amici's Pizza, he indicated in his inspection report that the violations had to be corrected by August 30, 2004. A copy of the inspection report was given to the owner of Amici's Pizza, Dion Nunez, on August 27, 2004, at the conclusion of the inspection. Mr. Thomason discussed the violations that he had noted in the report with Mr. Nunez, and Mr. Nunez signed the report. Mr. Thomason conducted a "call back" inspection of Amici's Pizza on August 30, 2004, and noted in his inspection report for that date that the two critical violations identified above had not been corrected. The non-critical violations had been corrected. Mr. Thomason determined on his August 27, 2004, inspection that the temperature of cheese and sausage on the "make line" was 51 degrees Fahrenheit ("F") and 58 degrees F, respectively. As set forth more fully, below, the maximum temperature allowed for these foods was 41 degrees F. Mr. Nunez did not dispute Mr. Thomason's determination on August 27, 2004, that the temperature of the cheese and sausage on the make line exceeded allowable temperatures. In fact, Mr. Nunez responded by immediately disposing of the cheese and sausage. When Mr. Thomason made his call back inspection of Amici's Pizza on August 30, 2004, he found the temperature of the cheese and sausage on the make line was 50 degrees F and 62 degrees F, respectively. Mr. Nunez did not dispute Mr. Thomason's August 30, 2004, findings regarding food temperature. Mr. Nunez did not dispute Mr. Thomason's findings on August 27 and August 30, 2004, that the cooler at Amici's Pizza was not keeping the foods in the cooler at or below 41 degrees F. Mr. Nunez' stated that he tried to get an electrician to fix his cooler before the August 30, 2004, call back inspection, but was unable to get an electrician who could respond that soon. Mr. Nunez attributed this problem to the fact that August 27, 2004, was a Friday, giving him only the weekend to find an electrician, and also to the recent passage of a hurricane through the area. Amici's Pizza continued to serve customers during the time that the cooler remained un-repaired, but Mr. Nunez used ice in an attempt to lower the temperature.
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 that finds the Respondent violated Food Code Rules 3-501.16(A)(2) and 4-302.11, and imposes an administrative fine of $500. DONE AND ENTERED this 22nd day of September, 2005, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 22nd day of September, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Dion Nunez Amici's Pizza 525 South Ronald Reagan Boulevard Orlando, Florida 32750 Dion Nunez 1718 North Goldenrod Road Orlando, Florida 32818 Tonya S. Chavis, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether on October 23, 2013, and May 6, 2014, Respondent was out of 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, as alleged in the Amended Administrative Complaint, and if so, what penalty is appropriate.
Findings Of Fact The Division is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. At all times material to this case, Respondent was licensed as a public food service establishment, operating a restaurant located at 1658 North Federal Highway, Boca Raton, and holding license number 6020868. Ms. Tara Palmer has been employed by the Division for almost five years. She is presently a Senior Sanitation and Safety Specialist with the Division. Prior to her employment with the Division she was employed in the food industry for approximately 20 years. She has had training in sanitation and inspection, standardized training regarding the Food Code, on- the-job training, and continual monthly education. She performs approximately 1000 inspections yearly. On October 23, 2013, Ms. Palmer conducted a food service inspection on Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on October 23, 2013, Respondent's Roma and Alfredo sauces had been prepared the previous day, placed in tightly covered 22 quart gallon containers, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the sauces were 52°F. Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3-501.15. The improper cooling method deficiency was deemed a violation that required further review; however, same was not an immediate threat to the public. Respondent was notified that the observed violation must be corrected by December 24, 2013. On January 8, 2014, Ms. Palmer performed a "call-back" inspection. On that date, the improper cooling deficiency observed on October 23, 2014, had been corrected. On May 6, 2014, Ms. Palmer conducted a food service inspection of Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on May 6, 2014, Respondent's spicy and Pomodoro sauces had been prepared the previous day, placed in a tightly covered 22-quart gallon container, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the spicy sauce was 48°F at the start of the inspection and 47.5°F at the end of the inspection. The Pomodoro sauce was found to be 48°F at the start of the inspection and 47.3°F at the end of inspection. Again, Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3- 501.15. No evidence was introduced to indicate that Respondent had any previous violations. No evidence was introduced to refute the above-noted deficiencies.
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 Italio East Boca, LLC, d/b/a Italio, in violation of two intermediate violations, and imposing a fine of $400, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of October, 2014.
The Issue The issue in this case is whether on June 23, 2014, Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant (Zorba's), was in compliance with food safety requirements set forth in administrative rules of Petitioner, Department of Business and Professional Regulation (Department), Division of Hotels and Restaurants, and, if not, what penalty is appropriate.
Findings Of Fact The Department is an agency of the State of Florida responsible for monitoring the operations of hotels and restaurants to ensure compliance with food safety and sanitation standards set forth in relevant statutes and rules. Zorba's is a licensed and regulated business under the jurisdiction of the Department's Division of Hotels and Restaurants. Zorba's business license number is 46-01794. Jonathan Johnson works for the Department as a senior sanitation and safety specialist. Mr. Johnson has worked for the Department for approximately four and one-half years. Before that, he worked for two years in restaurants. Mr. Johnson undergoes periodic training for his present position as an inspector. He is also a certified food manager. Mr. Johnson performs approximately 1,000 or more inspections for the Department annually. Mr. Johnson's training, experience, and demeanor make him a very credible witness. On May 6, 2014, at 5:09 p.m., Mr. Johnson inspected Zorba's restaurant. Mr. Johnson observed tomatoes, hummus, and cheese in the "reach-in" coolers behind the cook line at temperatures between 44ºF and 46ºF. Tomatoes, hummus, and cheese are "priority items," under the Food Code, making them "high priority items" under Florida Administrative Code 61C-1.001(17). § 3-501.16(A), Food Code. Under the Food Code, they must be held at a temperature below 41ºF. § 3-501.16(A), Food Code.2/ A "high priority violation" is a violation of the rules regulating a "high priority item" and is determined by the Department to pose a direct or significant threat to the public health. Fla. Admin. Code R. 61C-1.005(a). As a result of his inspection, Mr. Johnson prepared an inspection report setting forth his findings and issued Zorba's a warning. Mr. Johnson scheduled a callback inspection for May 7, 2014. Within 11 hours after receiving the inspection report, Zorba's employed a refrigeration repair company to inspect the restaurant's refrigeration equipment at a cost of $234.00. A service order, admitted as hearsay evidence, suggests the technician measured the ambient temperature of the walk-in cooler at 33ºF and the reach-in cooler at 38ºF. Since the document is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Mr. Johnson returned to Zorba's on May 7, 2014, at 8:00 a.m. The cheese, tomatoes, and deli meat in the reach-in coolers were at temperatures between 44ºF and 46ºF. The walk-in cooler contained soups and sauces at temperatures between 48ºF and 50ºF and chicken and butter at 44ºF. At the conclusion of the inspection, Mr. Johnson told Ms. Euse about the violations and, again, issued Zorba's a warning. At this time, Mr. Johnson told Ms. Euse that all violations documented during the inspection needed to be corrected by June 23, 2014. He noted the violations were not an immediate threat to the public. Zorba's acknowledged the violations on both reports dated May 6 and 7, 2014. As a result of a stipulation, the Department issued a Final Order on May 16, 2014, imposing a fine of $200.00 for these violations. Mr. Johnson performed a callback inspection, as contemplated by the Final Order, at Zorba's restaurant on June 23, 2014. The inspection revealed that the cheese, tomatoes, and deli meat held within the reach-in cooler were at temperatures between 44ºF and 46ºF. Mr. Johnson prepared a Callback Inspection Report, which was signed by a Zorba's representative. The Callback Inspection Report recommended filing an Administrative Complaint. After receiving the non-compliance violation report, Zorba's contacted a different refrigeration repair company to perform an additional inspection of the refrigeration equipment. A service order, admitted as hearsay evidence, suggested that a technician measured the temperature of the reach-in cooler at 38ºF on June 30, 2014. Since it is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Ms. Euse replaced the restaurant's plastic storage containers with aluminum containers because the technician suggested it. The clear and convincing evidence proves that on June 23, 2014, Zorba held hazardous food at levels above the 41ºF standard required by section 3-501.16(A)(1) of the Food Code. Zorba's attempted to cooperate with the Department's inspection report by hiring refrigeration technicians to perform maintenance on and evaluate the subject coolers. Nonetheless, the Department presented evidence that Zorba's violated the Food Code on the day on which the inspection was conducted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a $500.00 fine upon Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant, for violations of the Food Code requirements. DONE AND ENTERED this 3rd day of November, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 3rd day of November, 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 At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaint dated August 26, 2008, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes.1 At all times material to this case, Respondent was a restaurant located at 2911 West 39th Street, Orlando, Florida 32839, holding Permanent Food Service license number 5810777. On May 20, 2008, Andrea Piel, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. Ms. Piel prepared and signed an inspection report setting forth the violations she observed during her inspection. Ms. Piel provided a copy of the inspection report to Ahmet Engin, Respondent's principal owner. The inspection report notified Respondent that the violations must be corrected by July 20, 2008. On August 6, 2008, Ms. Piel performed a re-inspection of Respondent's premises and prepared a call-back inspection report. The call-back inspection report indicated that certain of the violations found during the May 20, 2008, inspection had not been corrected. During both inspections, Ms. Piel noted potentially hazardous food being held at an improper temperature. Pizza was being held on top of the pizza oven at a temperature of 126 degrees Fahrenheit. Ms. Piel testified that this is a critical violation because food that is hot-held must be held at a temperature of 135 degrees or higher in order to prevent the growth of harmful bacteria. During both inspections, Ms. Piel noted that Respondent was operating under an expired food manager certification. The food manager certification is required to ensure that the operator has an understanding of the proper food safety procedures. Ms. Piel testified that this is a critical violation because a food manager must be re-certified every five years. During both inspections, Ms. Piel noted that the interior of the reach-in cooler was soiled with an accumulation of food residue. Ms. Piel testified that this is a critical violation because cleanliness is required in order to eliminate the potential for the growth of bacteria on surfaces that come into contact with food. During both inspections, Ms. Piel noted that the carbon dioxide tanks were not adequately secured. Ms. Piel testified that this is a violation because a pressurized carbon dioxide tank could become a projectile should it fall and the regulator break off. During both inspections, Ms. Piel noted that the ceiling tile was missing over the refrigerator. Ms. Piel testified that this is a violation because secure floors, walls and ceilings are essential to keep dirt, dust, and vermin out of the kitchen area. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. The improper holding of hot-held food, the outdated certification, and food residue in the cooler were critical violations. The unsecured carbon dioxide tanks and the missing ceiling tile were non-critical violations. The Division presented no evidence of prior disciplinary action against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing a fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2009.
The Issue The issues in the case are whether the allegations set forth in an Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Pita's Restaurant (Respondent) 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 (2010).1/ At all times material to this case, the Respondent was a restaurant operating at 8412 West Hillsborough Avenue, Tampa, Florida 33615, and holding food service license number 3912285. On October 28, 2009, Rich Decker (Mr. Decker), employed by the Petitioner as a sanitation & safety specialist, performed a routine inspection of the Respondent and observed conditions that violated certain provisions of the Food Code. Food Code violations are classified as "critical" or "non-critical." A critical violation of the Food Code is one that poses a significant threat to the public health, safety, or welfare and is a risk factor for food-borne illness. A non- critical violation of the Food Code is one that does not meet the definition of a critical violation. At the conclusion of the October 28, 2009, inspection, Mr. Decker noted the observed violations in an inspection report. The owner of the Respondent signed the report and received a copy at the time of the inspection. Mr. Decker advised the owner that a follow-up "callback" inspection was scheduled to occur on December 28, 2009, and that the violations needed to be corrected by that date. The callback inspection did not occur on December 28, 2009. Mr. Decker performed the callback inspection on January 5, 2010, and observed some of the same Food Code violations noted on the October 28, 2009, inspection report. At the conclusion of the January 5, 2010, inspection, Mr. Decker again noted the observed violations in an inspection report. The manager of the Respondent signed the report and received a copy at the time of the inspection. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed raw eggs being stored above prepared, ready-to-eat pita bread. This violation was deemed to be critical because raw food stored above ready-to-eat food can lead to bacterial contamination of the ready-to-eat food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed unidentified medicine being stored in a refrigeration unit along with food supplies. This violation was deemed to be critical, because the medicine could have contaminated the food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed prepared, ready-to-eat, and potentially-hazardous food being stored without having been date-marked to identify the last date upon which the food could be consumed. Prepared food has a limited shelf life during which it may be safely consumed. The failure to date-mark prepared food was a critical violation, because such failure may result in the consumption of unsafe food. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed that there was no consumer advisory warning related to consumption of raw or undercooked foods posted on the premises. The Food Code requires the posting of such a notice, and the failure to comply is deemed a critical violation, because consumption of certain raw or undercooked foods poses a health risk to some consumers. During the October 28, 2009, inspection and again during the January 5, 2010, callback inspection, Mr. Decker observed an employee engaged in food preparation without wearing a hair net. Although food can be contaminated by human hair, this violation was deemed to be non-critical, because no immediate threat to human health was presented by the violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $1,350 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 20th day of May, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2011.
