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 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 Town and Country Skate World (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 (2011). At all times material to this case, the Respondent was a restaurant operating at 7510 Paula Drive, Tampa, Florida, 33615, and holding food service license number 3203942. On May 6, 2010, Rich Decker (Mr. Decker), employed by the Petitioner as a senior sanitation and safety specialist, performed a routine inspection (May 6 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 May 6 inspection, Mr. Decker noted the observed violations in an inspection report. A manager for the Respondent was present during the inspection. The manager signed the inspection report and received a copy of the report at that time. According to the inspection report, a follow-up "callback" inspection was scheduled to occur on July 6, 2010, prior to which critical violations were to have been corrected. On July 21, 2010, Kathy Dorsey (Ms. Dorsey), employed by the Petitioner as a senior sanitation and safety specialist, performed the callback inspection (July 21 callback inspection) and observed some of the same Food Code violations noted on the May 6 inspection report. At the conclusion of the July 21 callback inspection, Ms. Dorsey noted the observed violations in an inspection report. An employee of the Respondent present at the time of the inspection signed and received a copy of the callback inspection report. The Petitioner subsequently filed the Administrative Complaint at issue in this proceeding. Pursuant to state regulations, the Respondent was required to have designated a certified food protection manager responsible for the operation of food service. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the designated food protection manager's certification had expired and that the Respondent was operating without a properly-certified food protection manager. This was a critical violation of the Food Code, because the lack of a properly-certified food protection manager presents a significant threat to the public health, safety, or welfare through the transmission of food-borne illness by improper food preparation. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that no thermometer to ascertain the temperature of food products was present, a critical violation. Foods held at improper temperatures are susceptible to development of bacterial contamination and are a risk factor for transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent, which utilized a chemical system for sanitation of dishes and utensils, had no chemical test kit provided at the location of the sanitation sink. The test kit is required to ascertain whether the composition of the disinfection liquid is appropriate and capable of sanitizing the items. This was a critical violation because improperly sanitized dishes and utensils pose a significant threat to the public health, safety, or welfare through the transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the gaskets located at the reach-in food refrigeration unit were soiled, a critical violation because the situation presents an opportunity for bacterial contamination of food products and transmission of food-borne illness. Sinks used for preparation of food products are not to be used for hand washing, and, accordingly, the Food Code prohibits having hand-washing aids at a food prep sink. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent had hand-washing materials located at a food-prep sink. This was a critical violation because dual use of sinks provides an opportunity for bacterial contamination of food or utensils and transmission of food-borne illness. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that the Respondent's gas tanks (helium and/or carbon dioxide) were not properly secured, which was a non-critical violation of state regulations cited herein. During the May 6 inspection and again during the July 21 callback inspection, the Petitioner's inspectors noted that ceiling tiles in the kitchen were water-stained, indicating the presence of an unidentified leak above the ceiling tiles, and other tiles were missing. These were non-critical violations of state regulations cited herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing an administrative fine against the Respondent in the amount of $1,550. DONE AND ENTERED this 28th day of November, 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 28th day of November, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Alan Blizard Town and Country Skate World 7510 Paula Drive Tampa, Florida 33615 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 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 sanctions.
Findings Of Fact At all times material hereto, Respondent operated a licensed permanent public food service establishment known as The Patio, located at 626 North Dixie Freeway, New Smyrna Beach, Florida. Respondent holds License No. SEA7403397. 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. On May 8, 2012, Renee Pichardo, a Sanitation and Safety Specialist for the Division, who was accompanied by Kim Pleicones, a Senior Sanitation and Safety Specialist for the Division, conducted a food service inspection of Respondent?s food service establishment. Both inspectors have received training in sanitation and inspection procedures, and are sufficiently competent and experienced to perform the duties described herein. Among items subject to the inspection was the temperature at which foods were being held in Respondent?s coolers. Ms. Pleicones used a thermapen thermometer to determine whether foods were being held at temperatures that met safety standards under the Food Code. A thermapen thermometer is a probe that is inserted into foods to take internal temperatures. After the probe is inserted, a reading of the temperature is digitally displayed. After measurements were taken of various foods kept in Respondent?s coolers, Ms. Pleicones showed the thermometer to Ms. Pichardo, who entered the displayed information on her personal data assistant (PDA) Food Service Inspection Report form. Ms. Pichardo observed that Respondent had potentially hazardous cold food held at greater than the Food Code required 41 degrees Fahrenheit in the “cook-line” cooler. She noted that half-and-half was being held at 51 degrees Fahrenheit, crab salad was being held at 50 degrees Fahrenheit, melon was being held at 47 degrees Fahrenheit, and pasta was being held at 46 degrees Fahrenheit. The Food Service Inspection Report prepared for the May 8, 2012, inspection indicated that the food in the “cook- line” cooler was “[m]oved to another cooler.” As a result of her temperature measurements, Ms. Pichardo determined that the “cook-line” cooler was not capable of maintaining cold foods at their proper temperature. Ms. Pichardo entered the violations regarding food temperatures and cooling equipment, along with several others that are not material to this proceeding, on the Food Service Inspection Report. Respondent?s owner, Don Midland, was not at the establishment during the May 8, 2012, inspection. The report was therefore reviewed and signed by Eric Simpson, Respondent?s manager. The report established July 8, 2012, as the date for a call-back inspection, by which time the violations were to be corrected. On July 10, 2012, Ms. Pichardo and Ms. Pleicones performed the call-back inspection. Mr. Midland was in attendance at the call-back inspection. Using the same procedures used on May 8, 2012 for measuring food temperatures, Ms. Pichardo observed that Respondent continued to have potentially hazardous cold food held at greater than 41 degrees Fahrenheit in the “cook-line” cooler. She noted that heavy cream was being held at 52 degrees Fahrenheit, cheese was being held at 50 degrees Fahrenheit, chicken was being held at 50 degrees Fahrenheit, crab mix was being held at 58 degrees Fahrenheit, and melon was being held at 50-51 degrees Fahrenheit. As a result of her temperature measurements, Ms. Pichardo determined that the “cook-line” cooler was still not capable of maintaining cold foods at their proper temperature. Ms. Pichardo prepared a Call-Back Inspection Report using her PDA to record the food temperature and cooling equipment violations that she observed. Mr. Midland signed the report acknowledging receipt. The Division has determined that the failure to maintain cold food at proper temperatures during storage, display or service, poses a significant threat to the public health, safety, or welfare due to the greater likelihood that it will produce food-borne illnesses by contamination or health hazards. The Division has therefore identified such failure as a critical violation. That determination is reasonable and is accepted. The Division has determined that the failure of cooling equipment to operate so as to maintain cold foods at their proper temperature to pose a significant threat to the public health, safety, or welfare. The Division has therefore identified such failure as a critical violation. Mr. Midland described the “cook-line” cooler at issue1/ as being open at the top, and located close to the stoves. It is used for cooking and salad supplies, and is replenished from food supplies kept in other coolers as needed. Mr. Midland indicated that cold foods kept in the cooler are “never in the danger zone longer than . . . two hours.” Respondent?s establishment has at least three major coolers located in the kitchen area, including a reach-in cooler on the cook-line itself, and a large cooler and several chest freezers in an outdoor shed. The reach-in cooler on the cook- line is used to hold cold foods, and to replenish the “cook- line” cooler as its stock is used in preparation of meals. The food kept in the other coolers met the temperature standards established by the Food Code. Mr. Midland expressed his disagreement with the manner in which the temperatures were being taken during the July 10, 2012, inspection. He indicated that he complained to Ms. Pleicones that she was not inserting the thermapen probe deep enough into the “stuffing” to accurately gauge the temperature. Ms. Pleicones testified that a shallow depth may be appropriate because the purpose of the inspection is to “get the surface temperature besides the total internal temperature.” She further stated that the thermapen probe has “dimples” that establish the depth to which the probe is to be inserted, and that she inserted the thermapen probe to the “dimples.” She measured the foods in all of the coolers at Respondent?s establishment the same way. Only food in the “cook-line” cooler was found to be above the 41 degree Fahrenheit temperature required by the Food Code. Mr. Midland stated his belief that the Division?s thermapen thermometer was not correctly calibrated. Ms. Pleicones testified that the thermapen thermometer is calibrated weekly to ensure accuracy. The fact that only the “cook-line” cooler showed exceedances of the food temperature standard, with the food kept in the establishment?s other coolers found to have met the standard, and the consistency of the temperatures measured during the May 8, 2012 and July 10, 2012, inspections is persuasive evidence that the thermapen thermometer accurately measured the food temperatures in the various coolers. Mr. Midland is a well-trained and experienced chef. He has been the sole owner of The Patio for approximately 20 years. His record of compliance with the Food Code is good, there being no evidence of any previous violations at The Patio. In his post-hearing submittal, Respondent made certain characterizations regarding the testimony of witnesses in this proceeding. Those characterizations are not accepted.
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, Patio (The), violated section 509.032(2)(d), and section 3-501.16 of the Food Code, adopted by Florida Administrative Code Rule 61C-1.001(13), as alleged in count 1 of the Administrative Complaint; Finding that Respondent, Patio (The), did not violate section 509.032(2)(d), and section 4-301.11 of the Food Code, as alleged in count 2 of the Administrative Complaint; Applying a mitigating factor based on the 20-year length of time that Respondent has been in operation without incident; and Imposing an administrative penalty against Respondent, Patio (The), in the amount of $200, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 12th day of April, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2013.
The Issue The issues in this case are whether Respondent violated Florida Administrative Code Rule 61C-1.004(2)(b) and the following provisions of the Food Code: 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.11, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of public food service establishments, pursuant to section 20.165 and chapter 509, Florida Statutes. The Restaurant is and has been at all times material to this proceeding licensed by the Department, license number 58- 11330. The Restaurant is owned by Shea Lowe (Mr. Lowe) and is located in Eatonville, Florida. On April 14, 2010, Dennis Watson (Mr. Watson), an inspector for the Department, made a routine inspection of the Restaurant. Mr. Watson found that the temperature of the pancake batter that was being used on the cook line was 67 degrees, Fahrenheit (F.); the temperature of the sausage on the cook line was 64 Degrees, F.; eggs were being held on the cook line for more than 30 minutes at a temperature greater than 45 degrees, F.; the gaskets/seals on a cold holding unit were in poor repair; lights in the food storage area were missing proper covers; the vacuum breaker was missing at the hose bibb outside the back door; and the door to the men's restroom was not tight- fitting and self-closing. The Restaurant was given a warning for the violations found during the April 14, 2010, inspection. The Restaurant was given until June 14, 2010, to correct the violations. On June 15, 2010, Mr. Watson returned to the Restaurant for a call-back inspection. Mr. Watson found the following violations: the gaskets/seals on the cold holding unit were in poor repair; the vacuum breaker was missing at the hose bibb outside at the back door; the pancake batter and sausage were being held on the cook line for more than 30 minutes at temperatures greater than 41 degrees, F.; raw eggs in the shell were held on the cook line for more 30 minutes at room temperature; food in the glass door coolers were held at temperatures between 49 and 53 degrees, F.; the lights over the food storage rack/kitchen were missing the proper covers; and the door to the men's restroom was not tight-fitting and self- closing. The failure to maintain the food in the coolers at 41 degrees, F.; the failure to maintain raw, shell eggs at a temperature of 45 degrees, F.; the failure to keep the pancake batter and sausage on the cook line at the proper temperature; the failure to install a vacuum breaker on the hose bib outside the back door; and the failure to have a self-closing door for the men's restroom are critical violations. Rule 61C- 1.005(5)(a) defines "critical violation" as a violation which poses a significant threat to the public health, safety, or welfare and which is identified as a food-borne illness risk factor or a public health intervention. Mr. Lowe acknowledged that the coolers were not working properly and has since replaced the coolers. He bought a self- closing latch for the restroom door, but the door will not self- close because the door frame does not fit the door, and he cannot afford to repair the door. He now keeps the eggs in the cooler until time to cook them. He has purchased some covers for the lights, but he did not know if they were in place when the inspections took place. The failure to have a self-closing door in the men's restroom and the failure to maintain the gaskets on the cooler door are non-critical violations. Both inspection reports were signed by persons other than Mr. Lowe. Mr. Lowe was not present for either inspection. The Restaurant has been previously disciplined by a Final Order entered on December 2, 2008, based on Stipulation and Consent Order entered into by the parties.
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, finding that Lowe's Good Eaton Restaurant violated rule 61C- 1.004(2)(B) and Food Code Rules 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and 6-202.114-50; and imposing an administrative fine of $500 for each of the three critical violations and $250 for each of the two non-critical violations for a total administrative fine of $2,000. DONE AND ENTERED this 14th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 14th day of December, 2011.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2009). At all times material to this case, the Respondent was a restaurant operating at 1311 Sligh Boulevard, Orlando, Florida 32806, and holding food service license number 5811824. On June 12, 2009, Andrea Piel, a trained sanitation safety specialist employed by the Petitioner, performed a routine inspection of the Respondent. During the June 12, 2009, inspection, Ms. Piel observed two general types of food code violations that she deemed to be "critical": a failure to maintain proper food temperatures; and a failure to identify the dates upon which certain prepared or processed food products were presented for sale. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. During the June 12, 2009, inspection, Ms. Piel observed that a "maketable" reach-in cooler was unable to maintain proper temperature and that potentially hazardous cold foods were being held in the cooler at temperatures greater than 41 degrees. The failure to maintain proper food temperatures can result in rapid bacterial contamination sufficient to cause serious illness in persons consuming improperly stored food. During the June 12, 2009, inspection, Ms. Piel notified Debbie Arent of the problem with the cooler, and Ms. Arent transferred the food product held from the malfunctioning cooler to one that was maintaining proper temperature. During the same inspection, Ms. Piel observed that food products being offered for sale lacked date markings important to determining the shelf life of the products. Prepared and packaged foods have a shelf life of seven days when maintained at proper temperatures. Such foods must be date-marked to permit determination of the shelf life of the product. The failure to identify the date upon which packaged or prepared food products are made available for sale can result in food being offered for sale beyond proper shelf life. Consumption of food beyond the shelf life, even if stored at proper temperatures, can increase the risk of food-borne illness in persons consuming the food. During the June 12, 2009, inspection, Ms. Piel observed potentially hazardous ready-to-eat food products (specifically, potatoes) that had been prepared on site and that were not properly date-marked. Ms. Piel also observed packaged processed foods including cheese, deli meats, and hot dogs, opened and presented for sale, that were not properly date-marked. Ms. Piel performed a callback inspection on June 16, 2009, at which time she determined that the critical deficiencies observed on June 12, 2009, had been cured or that additional time was required for correction. At the time of the callback inspection, no food was present in the malfunctioning cooler, and Ms. Arent had scheduled a service call to address the problem. On October 6, 2009, Ms. Piel performed a routine inspection, at which time she observed several critical food code violations that were the same as those cited in the June 12, 2009, inspection report. During the October 6, 2009, inspection, Ms. Piel observed that once again, the "maketable" reach-in cooler was not maintaining proper temperature and that potentially hazardous cold foods were being held in the cooler at temperatures greater than 41 degrees. At the hearing, Ms. Arent testified that the reason the foods held in the cooler were not at proper temperature on October 6, 2009, was because Ms. Piel opened the cooler doors and left them opened for upwards of ten minutes, which, Ms. Arent suggested, allowed the food in the cooler to warm. Ms. Arent's testimony was not credible on this point and has been rejected. Ms. Arent offered no rationale as to why Ms. Piel would want to raise the food temperature readings for the food products stored in the cooler. During the October 6, 2009, inspection, Ms. Piel observed cheeses and prepared cheese sauce, sausage, beans, deli meats, hot dogs, and potatoes that were available for sale and not properly date marked. Ms. Arent testified that no prepared or packaged foods were generally retained for sale after the date upon which the products were prepared or opened. Ms. Arent indicated that packaged processed foods were opened in quantities that would be sold on the date in question and that foods that remained from catering work were generally not offered for sale to customers of the restaurant. Ms. Arent asserted that it would be "ridiculous" to label the packages with the open date. Ms. Arent testified at the hearing that "99 percent" of prepared foods observed by Ms. Piel were made on the morning of the inspection. The apparent assertion that essentially no food is carried from one day to the next lacked credibility, given the types of processed foods (cheeses, deli meats, hot dogs) that were not date-marked. Ms. Arent was present in the establishment during the inspections referenced herein. At the time of each inspection, Ms. Piel produced a written report of her findings and provided a copy of the report to Ms. Arent.
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 $500 against the Jazzy Dog Cafe and requiring that Debbie Arent complete an appropriate educational program related to the violations identified herein. DONE AND ENTERED this 12th day of July, 2010, 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 12th day of July, 2010. COPIES FURNISHED: Debbie Arent Jazzy Dog Cafe 1311 Sligh Boulevard Orlando, Florida 32806 Vanya Y. Atanasova Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the allegations of the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Casa Mexicana Restaurant, Inc., d/b/a Casa Mexicana Restaurant, Inc. (Respondent), 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 (2015).1/ At all times material to this case, the Respondent was operating as a licensed food service establishment located at 7730 Palm River Road, Suite 300, Tampa, Florida 33619. The Respondent is owned and operated by Antelma Cruz and Carlos Osoino, who were present at the hearing. On March 1, 2016, Ashley Herrmann, a sanitation and safety specialist employed by the Petitioner, performed an unannounced routine inspection of the Respondent, during which she observed various violations of the Code. The material violations in this case were related to the Respondent’s walk-in cooler. At the conclusion of the inspection, Ms. Herrmann prepared a written Food Service Inspection Report (Inspection Report) documenting the Code violations she had observed during her inspection. Before leaving the Respondent, Ms. Herrmann provided a copy of the Inspection Report to Antelma Cruz. The Inspection Report stated as follows: Inspector determined violations require further review, but are not an immediate threat to the public. WARNING: Violations in the operation of your establishment must be corrected by March 2, 2016 at 8:00:00 AM EST. According to the Inspection Report, a “callback” inspection was scheduled to occur “on or after” March 2, 2016. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On March 2, 2016, Ms. Herrmann returned to the Respondent’s location to conduct the callback inspection. At that time, Ms. Herrmann determined that some of the Code violations observed during the routine inspection had not been corrected. At the conclusion of the callback inspection, Ms. Herrmann prepared a written Callback Report documenting the uncorrected Code violations. Before leaving the premises, Ms. Herrmann provided a copy of the Callback Report to Antelma Cruz. The Callback Report stated as follows: Inspector determined violations require further review, but are not an immediate threat to the public. Time Extended. According to the Callback Report, a second callback inspection was scheduled to occur “on or after” March 3, 2016. On March 3, 2016, Ms. Herrmann returned to the Respondent’s location to conduct the second callback inspection. At that time, Ms. Herrmann determined that some of the Code violations observed during the routine inspection and the first callback inspection were still not corrected. At the conclusion of the second callback inspection, Ms. Herrmann prepared another written Callback Report documenting the uncorrected Code violations, wherein Ms. Herrmann recommended that administrative charges be filed against the Respondent for the uncorrected violations. Before leaving the premises, Ms. Herrmann provided a copy of the Callback Report to an employee identified as Ana Gonzalez, an employee of the Respondent. The Callback Report stated as follows: Inspector determined violations require further review, but are not an immediate threat to the public. ADMINISTRATIVE COMPLAINT recommended. The Code classifies violations as either “high priority,” “intermediate” or “basic,” essentially reflecting the level of threat to public health posed by non-compliance with Code requirements. A high priority violation is one that poses a direct or significant threat of causing food-borne illness to a person who consumes the product. In relevant part, Code Section 3-501.16(A)(2) requires that potentially hazardous food must be maintained at 41 degrees Fahrenheit or less, except during preparation, cooking, or cooling. The violations cited herein are high-priority violations because the failure to maintain the product at or below the required temperatures can result in bacteria growth that can cause food-borne illness in persons who consume the product. At the time of the routine inspection on March 1, 2016, Ms. Herrmann observed the following violations of food temperature requirements: Cheese-46 degrees; Raw chicken-46 degrees; Cooked peppers and onions-45 degrees; and Salsa-45 degrees. At the time of the first callback inspection on March 2, 2016, Ms. Herrmann observed the following violations of food temperature requirements: Cheese-48 degrees; Raw beef-46 degrees; Pico de gallo-48 degrees; Cooked beef-51 degrees; and Milk-43 degrees. At the time of the second callback inspection on March 3, 2016, Ms. Herrmann observed the following violations of food temperature requirements: Cheese-45 degrees; Pico de gallo-46 degrees; Salsa-45 degrees; Cooked potatoes-46 degrees; Raw beef-45 degrees; and Raw chicken-48 degrees. The Respondent does not dispute the food temperature violations alleged by the Petitioner. The Respondent has been the subject of four previous disciplinary actions. On May 19, 2014, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to sanitation deficiencies. In June 2014, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of $600. On October 8, 2014, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to food temperature control. In December 2014, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of $400. On August 11, 2015, the Petitioner issued an Order of Emergency Suspension of License and Closure for various code violations, including food temperature control, which “constituted a severe and immediate threat to public safety and welfare.” On August 12, 2015, the Petitioner issued an Order Vacating the Order of Emergency Suspension of License and Closure, stating that the threat had been resolved and the Respondent was permitted to reopen. On August 17, 2015, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to pest infestation. In November 2015, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of $800. At the hearing, Mr. Osoino testified on behalf of the Respondent about the difficulty the Respondent experienced in having the walk-in cooler repaired. According to Mr. Osoino, it took several attempts over the course of approximately a week to identify and repair the refrigeration malfunction that was the basis for the temperature control violations. Mr. Osoino also testified that penalizing the Respondent by closing the restaurant again would present an extreme hardship for his small business and its employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $1,250 against the Respondent. Additionally, the final order should require that the Respondent be required to successfully complete a remedial food safety training course within a time to be determined by the Petitioner. DONE AND ENTERED this 9th day of August, 2016, 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 9th day of August, 2016.
