The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated April 25, 2008, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact At all times material hereto, Respondent was licensed as a public food service establishment in the State of Florida by the Petitioner Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent's business address is "Szechuan Panda," 3830 Southwest 13th Street, Gainesville, Florida 32608. Critical violations are violations that, if not corrected, can have a direct impact on cross-contamination and food-borne illness. This, in turn, causes an immediate threat to public health. Non-critical violations are violations that, if not corrected, can have an impact on the creation of critical violations. On December 19, 2007, Inspector Daniel Fulton performed a Complaint Food Service Inspection at Szechuan Panda. During that inspection, Inspector Fulton prepared and signed an inspection report setting forth violations he encountered during the inspection. From the time it was prepared until the date of the hearing, the inspection report has not been altered. On December 19, 2007, Mr. Fulton observed live roaches in Szechuan Panda in both the food preparation and food service areas. Inspector Fulton cited this as a critical violation because live roaches carry many diseases. Those diseases can be spread when the roaches crawl over clean or unclean food preparation equipment in their search for food and accordingly contaminate food preparation surfaces. On December 19, 2007, food was being stored at Szechuan Panda directly on the floor. When the terminology "directly on the floor" is used, it includes any food that could be contaminated by ordinary mopping. That is, food stored in a container which is not impervious to water, such as a cardboard container, or a plastic container which does not have a top and the sides of which are so low that mopping might contaminate its contents. On December 19, 2007, improper utensils were being used to scoop out food from food containers. According to Mr. Fulton, this is a critical violation because without the usage of a proper utensil with a handle, cross-contamination can occur when the food product touches an employee’s hand. On December 19, 2007, the carbon dioxide/helium tanks in Szechuan Panda were not adequately secured. According to Mr. Fulton, this is a violation because if the tanks become unsecured all of the pressure inside can cause the tanks to shoot off uncontrollably in an elliptical or variable pattern so as to damage anyone or anything with which they come in contact. On December 19, 2007, grease was built-up on non-food contact surfaces. Mr. Fulton cited this as a violation because such debris is enticing for consumption by any present rodents and/or roaches. Rodents and roaches carry diseases that can lead to cross contamination. On March 5, 2008, Mr. Fulton prepared a Complaint Inspection Report at Szechuan Panda in which some of the previously noted violations had not been corrected. From the time it was prepared until the date of hearing the report was not altered. On March 5, 2008, Mr. Fulton again observed live roaches in Szechuan Panda, in both the food preparation and food service areas. He cited this as a critical violation for the reasons previously stated. On March 5, 2008, dead roaches were observed throughout the business. Mr. Fulton cited this as a critical violation because live roaches will eat the carcasses of dead roaches, causing further cross-contamination, and because the presence of dead roaches also shows a general lack of cleanliness and due care. On March 5, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. According to Mr. Fulton, this is a critical violation because bacteria grows quicker, the closer food is held to 98 degrees Fahrenheit. Also on March 5, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. Mr. Fulton classified this as a critical violation because any bacteria present on the food will grow, once the temperature drops below 135 degrees Fahrenheit. On March 5, 2008, foods in both the dining area and food storage areas at Szechuan Panda were not properly covered. This was classified as a critical violation because cross- contamination can occur by way of any bacteria present being easily transferable to the exposed food. On March 5, 2008, food also was being stored directly on the floor as previously described. On March 5, 2008, improper utensils were again being used to scoop out food from food containers. Mr. Fulton considered this a critical violation for the reasons previously stated. On March 5, 2008, food contact services were encrusted with grease, and soil deposits were present in food containers. Mr. Fulton listed this as a critical violation because an unidentified slime growing within a food container poses a health risk that can possibly cross-contaminate other foods. On March 5, 2008, in-use utensils for non-potentially hazardous foods were not being stored in a clean, protective place. Mr. Fulton considered this a violation because any harmful debris present on the unit being used for storage can become stuck on the utensil. On March 5, 2008, the carbon dioxide helium tanks still were not adequately secured. This was listed as a violation for the reasons previously stated. On March 5, 2008, grease was built up on non-food contact surfaces. This was listed as a violation for the reasons previously stated. On March 5, 2008, a black substance was present on the wall around the dish-washing area. This was listed as a violation because the substance observed appeared mold-like, thus showing a lack of cleanliness. On March 6, 2008, Inspector Fulton prepared a call- back inspection report at Szechuan Panda noting that some of the violations remained uncorrected. From the time it was prepared until the date of the hearing, the call-back report has not been altered. On March 6, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was noted as a critical violation for the reasons previously stated. On March 6, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was noted as a critical violation for the reasons previously stated. On March 6, 2008, foods in both the dining area and food storage area of Szechuan Panda were not properly covered, and this was listed as a critical violation for the reasons previously stated. On March 6, 2008, a black substance was present on the wall around the dish-washing area. This was listed as a violation for the reasons previously stated. On March 24, 2008, Mr. Fulton prepared a complaint inspection report at Szechuan Panda in which some of the violations still were not corrected. From the time it was prepared until the date of the hearing, the report has not been altered. On March 24, 2008, dead roaches were observed throughout the business. This was listed as a critical violation for the reasons previously stated. Although some dead roaches may be evidence of attempts to exterminate all of a roach infestation as testified-to by Respondent, the presence of dead roaches also shows a general lack of cleanliness and due care. On March 24, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, foods in both the dining area and food storage area of Szechuan Panda were not properly covered. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, food was still being stored directly on the floor. On March 24, 2008, improper utensils were being used to scoop out food from food containers, This was listed as a critical violation for the reasons previously stated. On March 24, 2008, food contact surfaces were encrusted with grease, and soil deposits were present in food containers. This was listed as a critical violation for the reasons previously stated. On March 24, 2008, in-use utensils for non-potentially hazardous foods were not being stored in a clean, protective place. This was listed as a violation for the reasons previously stated. On March 30, 2008, Mr. Fulton prepared a call-back inspection report at Szechuan Panda in which some of the previous violations were not corrected. From the time it was prepared until the date of the hearing the call-back report has not been altered. On March 30, 2008, cold foods were held at a temperature greater than 41 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, hot foods were held at a temperature less than 135 degrees Fahrenheit. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, foods in both the dining area and food storage areas were not properly covered. This was listed as a critical violation for the reasons previously stated. On March 30, 2008, food contact surfaces were encrusted with grease, and soil deposits were present in food containers. This was listed as a critical violation for the reasons previously stated. As to most violations described by Mr. Fulton, Respondent Kang only protested that Chinese cooking was not conducive to meeting the regulations. He also apparently was not present when each of the foregoing inspections was made, so his testimony as to why certain foods were above or below the permissible temperatures; were stored on the floor; or otherwise met standards is not persuasive. Mr. Kang's testimony with regard to his quest for reputable and effective exterminators and his contracts with successive exterminators is credible. The area being largely clear of roaches after he hired a new exterminator is also noted. However, even giving Respondent all due credit for correcting certain inspection violations by call-back or subsequent inspection dates, his testimony as a whole does not evoke confidence in the cleanliness of the licensed establishment. Particularly, Mr. Kang’s defenses that "live roaches came with purchased goods or were quickly killed" by the pest control company, and that dead roaches are swept out at the end of each day but there are more roaches when the restaurant opens the following morning, do not help his situation much. Most troubling is that Mr. Kang described a procedure whereby, although the restaurant is cleaned at the conclusion of each serving day, dead roaches are not swept out the following morning but are allowed to remain where they lie until the restaurant is cleaned entirely at the end of the second work day. Likewise, Mr. Kang's testimony also indicates his lack of understanding of the Department's requirements for maintaining "safe" food temperatures. Mr. Fulton explained that most buffets use time and temperature for public health control, but he further testified that, per the regulations he goes by, a restaurateur may keep foods "out of temperature" only up to four hours, and to legitimately do so, pursuant to the Food Code, the restaurateur must write a statement explaining the precautions he has taken, and further state therein that if his food “out of temperature” is not sold within a four-hour period, it will be discarded. Then, with the foregoing statement displayed, that restaurateur must maintain a record with his foregoing posted declaration, on which he keeps track of each time food is taken "off temperature," and each time food is put "on temperature." Respondent posts no such declaration or record. Mr. Kang’s assertion that some of his prior inspection troubles were caused by disgruntled former employees has been considered, as has been his living in another city far from the location of his restaurant, so as to care for his disabled wife. However, his wife’s acute care situation occurred four or five years ago and none of his employee problems seem to be current. In any case, none of these concerns excuse a licensee from meeting the applicable statutory and rule requirements.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking Respondent’s Hotels and Restaurant license, effective the first Monday, after 30 days from the date the final order is filed with the Agency Clerk of the Department of Business and Professional Regulation, Division of Hotels and Restaurants. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 19th day of November, 2008.
The Issue The issue in this matter is whether Respondent was out of compliance with the food safety requirements of chapter 509, Florida Statutes (2015),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509. Respondent is a licensed public food service establishment in Florida and holds license no. 46-05722. Respondent operates a restaurant under the name of El Riconcito Mexicano located at 1454 Lee Boulevard, Lehigh Acres, Florida 33963. As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division. Jonathan Johnson ("Inspector Johnson") is employed by the Division as a Senior Sanitation Safety Specialist. Inspector Johnson has worked for the Division for approximately five years, serving approximately three years as a Senior Inspector and two years as an Inspector. Prior to working for the Division, Inspector Johnson worked in the food industry for two years. Upon gaining employment in the Division, Inspector Johnson was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Johnson is also a Certified Food Manager. Inspector Johnson receives continuing education training on a monthly basis. Inspector Johnson performs more than 1,000 inspections each year. Craig Brown ("Inspector Brown") is employed with the Division as a Sanitation Safety Specialist. Inspector Brown has worked for the Division for approximately two years. Upon gaining employment in the Division, Inspector Brown was standardized on the Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Brown is also a Certified Food Manager. Inspector Brown receives continuing education training on a monthly basis. Inspector Brown performs approximately 700 inspections each year. On February 3, 2015, Inspector Johnson conducted a food service inspection on Respondent. In a reach-in cooler in Respondent's kitchen, Inspector Johnson identified several food items which he found to be improperly stored. Specifically, measuring the temperature of the food items with a thermometer, Inspector Johnson observed chicken at 63ºF, lettuce at 48ºF, beans at 50ºF, beef stew at 49ºF, rice at 49ºF, and beef at 51ºF. An employee for Respondent informed Inspector Johnson that these foods had been stored in the reach-in cooler from the previous night and were not cooked, cooled, or prepared. During his February 3, 2015, inspection, Inspector Johnson prepared a Food Service Inspection Report. Inspector Johnson recorded the violations he observed on his report. Inspector Johnson informed Respondent that the violations needed to be corrected by February 4, 2015. Norma Arias signed Inspector Johnson's report acknowledging receipt on behalf of Respondent. On February 6, 2015, Inspector Brown performed a callback inspection on Respondent. The purpose of Inspector Brown's inspection was to follow-up on the previous inspection conducted by Inspector Johnson. During his callback inspection, Inspector Brown also measured the temperature of food items in the reach-in cooler in Respondent's kitchen. Inspector Brown observed shrimp, rice, potatoes, cut tomatoes, soup, chicken, and some sauces at 48ºF to 51ºF. According to Respondent's Manager, these foods were not being prepared, cooked, or cooled. Following his inspection, Inspector Brown prepared an inspection report indicating that Respondent had not corrected one of the violations Inspector Johnson had noted on his February 3, 2015, inspection report. This violation concerned the food Respondent stored in the reach-in cooler at a temperature greater than 41ºF. During inspections, Division Inspectors measure food temperatures by inserting a thermometer into the middle of a food item, waiting for the temperature reading to stabilize, and then recording the final temperature reading. Inspectors Johnson and Brown calibrate their thermometers at least once per week. Calibration is performed by filling a cup with ice, pouring water into the cup, and then inserting the thermometer into the water. The thermometer should read 32ºF. Based on the observations of Inspectors Johnson and Brown, the Division cited Respondent with a violation of rule 3-501.16(A)(2), Food Code. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food shall be maintained at a temperature of 41ºF or less. See rule 3-501.16(A)(2)(a), Food Code. The Food Code classifies Respondent's violations as a priority item.3/ The Division has designated violations of priority items as "high priority violations." Potentially hazardous foods held in the danger zone, which is above 41ºF and under 135ºF, allows for the rapid growth of bacteria and can lead to foodborne illness. Respondent has two prior disciplinary Final Orders filed with the Agency Clerk for the Department of Business and Professional Regulations within the 24 months preceding the Administrative Complaint in this matter. The Final Order in case no. 2014011419 was filed on April 7, 2014, and the Final Order in case no. 2014050972 was filed on January 20, 2015. Based on the evidence and testimony presented during the final hearing, the Division demonstrated, by clear and convincing evidence, that on February 6, 2015, Respondent maintained potentially hazardous food at greater than 41ºF. Therefore, the Division met its burden to prove that Respondent failed to comply with the applicable food safety requirements of the Food Code and implementing administrative rules of the Division.
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 finding Respondent, Mexican Food El Rinconcito Mexicano, LLC, d/b/a El Riconcito Mexicano, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $1,000 for the high priority violation identified above, due and payable to the Division within 30 calendar days of the date the final order is filed with the Agency Clerk. DONE AND ENTERED this 28th day of July, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 July, 2015.
The Issue The issues in this case are whether Respondent has violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11, and, if so, what discipline should be imposed.
Findings Of Fact Mama B.’s is a restaurant located in Orlando, Florida. The Department is the state agency which is charged with the licensing and regulation of public food establishments in Florida pursuant to Section 20.165 and Chapter 509, Florida Statutes. On July 13, 2005, Andrea Piel, an inspector for the Department, went to Mama B.’s to perform a food service inspection. Ms. Piel found that the sandwich cooler located at Mama B.’s was not maintaining potentially hazardous food at 41 degrees Fahrenheit or below. Specifically, she found that the temperature of the ham, turkey, and seafood in the reach-in cooler was 47 degrees Fahrenheit. The temperature of the salami in the reach-in cooler was 50 degrees Fahrenheit, and the temperature of the pepperoni and pastrami stored in the reach-in cooler was 48 degrees Fahrenheit. The temperature of the cheese in the reach-in cooler was 42 degrees Fahrenheit. On the same inspection, Ms. Piel also found that hot foods were not being held at a temperature of at least 135 degrees Fahrenheit. She found the following on the front line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at 112 degrees Fahrenheit, and cooked onions at 130 degrees Fahrenheit. On her inspection on July 13, 2009, Ms. Piel also observed that Mama B.’s was not using proper cooling methods to cool hot food from 135 to 41 degrees Fahrenheit within six hours. Steak was being cooled in deep containers with tight fitting lids. Ms. Piel saw tomatoes being stored less than six inches above the floor. There was ready-to-eat cheese, which had been rewrapped and undated, stored in a cooler. On July 13, 2009, Mama B.’s was given a warning by Ms. Piel, and a call-back inspection was scheduled for July 14, 2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the call-back inspection. She again observed that tomatoes were being stored about an inch off the ground. There was food being stored in the sandwich cooler at temperatures above 41 degrees Fahrenheit. The cooler contained ham and salami at 48 degrees Fahrenheit; capicola and seafood at 50 degrees Fahrenheit; turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro meat at 45 degrees Fahrenheit. On July 15, 2009, Ms. Piel also saw steak and onions, which were being cooled in deep containers with tight fitting lids. She also saw hot pastrami being held at 125 degrees Fahrenheit. Ms. Piel testified that the pastrami being held was not for orders waiting to be filled. Ms. Piel did not explain how she knew that there were no other orders for pastrami sandwiches. Mr. Adamik, an owner of Mama B.’s who was present at the time of the July 15, 2009, inspection, testified that there were several orders for pastrami sandwiches, which were being filled at the time Ms. Piel observed the pastrami. According to Mr. Adamik, the rolls were already placed on the board awaiting the placement of the pastrami, but, because the preparation area was so small, it was impossible to completely prepare more than one pastrami sandwich at a time. Mr. Adamik’s testimony is credited. The pastrami, which Ms. Piel observed, was being used for immediate service in response to consumer orders. The cooler in which the food was being stored above 41 degrees Fahrenheit had been in operation at Mama B.’s since the late 1990’s. The machine cools from beneath and does not also cool from the top as newer models do. After the violations were noted on July 15, 2009, the old cooler was replaced. Mama B.’s had contacted a repairman after the July 13, 2009, inspection, but the cooler could not be repaired so as to make it cool foods at 41 degrees Fahrenheit or less. Mr. Adamik knew that the location of the tomatoes was a violation, but he did not correct it by the July 15, 2009, because he was busy trying to get the cooler repaired. Mr. Adamik had no explanation why the ready-to-eat food, which had been opened at Mama B.’s, did not have appropriate date marks. Violations of Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B) are considered to be critical violations by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the violation of Food Code Rule 3-305.11; imposing a fine of $300 for the violation of Food Code Rule 3-501.15; imposing a fine of $500 for the violation of Food Code Rule 3-501.16(A); and imposing a fine of $400 for a violation of Food Code Rule 3-501.17(B). DONE AND ENTERED this 16th day of February, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 February, 2010.
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 The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, a licensed restaurant, violated several rules and a statutory provision governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact The Division is the State agency charged with regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant operating at 3582 West Broward Boulevard, Fort Lauderdale, Florida, and holding food service license number 1621408. On October 17, 2012, and December 17, 2012, Respondent was inspected by Maor Avizohar, a sanitation and safety specialist employed by the Division. During both visits, Mr. Avizohar noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Avizohar and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of December 17, 2012, the following deficiencies subsisted at Respondent's facility: (1) an employee handwash station incapable of providing water at a temperature of at least 100 degrees Fahrenheit, in violation of Food Code Rule 5-202.12; and (2) the storage of in-use utensils in standing water less than 135 degrees Fahrenheit, contrary to Food Code Rule 3-304.12(F).3/ The deficiency relating to the lack of hot water at the handwash station is considered a critical violation by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants enter a final order: finding Respondent guilty of Counts One and Two, as charged in the Administrative Complaint; dismissing Count Three of the Administrative Complaint; and ordering Respondent to pay an administrative penalty in the amount of $300, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2013.
The Issue The issue in this case is whether on March 23, 2012, July 31, 2012, and October 10, 2012, 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 Administrative Complaint, and if so, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. LOLAQ is a limited liability company (LLC) which was licensed to operate a permanent public food service establishment in the State of Florida at all times relevant to this proceeding. It does business as Maggie Qi at 28 West Bayshore Drive on St. George Island, Florida. Mr. James Kourkoulis, sole owner and managing member of LOLAQ, operates the restaurant. Mr. Paul Smith has been employed by the Division for about five years. He is a sanitation and safety specialist with the Division. Prior to his employment with the Division he was employed in the restaurant industry for approximately 30 years. He has had training in sanitation and inspection, including formal initial training, on-the-job training, and monthly in- house training. He is also a certified food manager. He performs between 600 and 1000 inspections each year. On March 23, 2012, Mr. Smith conducted a food service inspection on Maggie Qi. Mr. Smith prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using his personal data assistant (PDA) to record the violations that he observed during the inspection. Ms. Kathyrn McPherson signed the report to acknowledge receipt on behalf of Maggie Qi. When Mr. Smith completed the report, he printed a copy for the restaurant and discussed each violation with Ms. McPherson. He advised Ms. McPherson that all violations needed to be corrected by the next unannounced inspection. During the March inspection, Mr. Smith observed that Maggie Qi had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that beef had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line, and recorded this on his report. The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015. During the March inspection, Mr. Smith also observed a buildup of slime in the interior of the ice machine, and noted this on his report. The Division has determined that failure to keep food contact surfaces of equipment and utensils clean poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR- 5022-015. Mr. Smith also made note in his March report that there was no conspicuously located thermometer in the large cooling unit on the cooks’ line. At hearing he explained that there was a thermometer in the unit, but that it was in a difficult place to access in the back of one of the drawers, and so was not properly located. The Division has determined that failure to have thermometers conspicuously placed poses a significant threat to the public health, safety, or welfare because of the relationship between temperature and bacteria growth, and has identified this as a critical violation on DBPR Form HR-5022- 015. On July 31, 2012, Mr. Smith conducted another routine inspection of Maggie Qi. Mr. Smith again prepared an inspection report on DBPR Form HR 5022-015, using his PDA to record the violations that he observed. During the July inspection, Mr. Smith observed that Maggie Qi again had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that shrimp, beef, and fish had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line. Mr. Smith noted that there was gumbo, a ready–to-eat food, which had been prepared for more than 24 hours and was improperly date-marked. The Division has determined that failure to properly label and date-mark potentially hazardous food prepared on-site and held more than 24 hours poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022- 015. Mr. Smith also observed that the thermometer in the large cooling unit on the cooks’ line was still located in the back of the drawer and had not been placed in a conspicuous location since the March inspection. During the July inspection, Mr. Smith also noted that the large cooling unit at the cooks’ line was incapable of maintaining potentially hazardous food at prescribed temperatures. All of the food, including beef, shrimp, and fish, was at a temperature of 50 degrees Fahrenheit. At hearing, Mr. Smith testified that he touched the compressor and found it too hot to keep his hand on it, which, in his experience, indicated that the unit was not working properly. The Division has determined that failure to have adequate facilities to maintain food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022- 015. As Mr. Smith noted, Maggie Qi had another walk-in cooler which would have had enough room to hold the food, but it was not near to the cooks’ line. He testified that attempting to use the walk-in cooler in lieu of the malfunctioning unit would have been “extremely inconvenient” and “next to impossible.” This testimony was unrefuted. With the large cooling unit not working properly, Maggie Qi lacked adequate cold-holding capacity at the cooks’ line, and did not have cooling equipment sufficient in number or capacity to meet the cooling demands of its operations. Mr. Smith noted that the buildup of slime in the interior of the ice machine was still there. He further noted that the interior of the oyster reach-in cooler was soiled with an accumulation of food residue, and that there was encrusted material on the can opener. Finally, Mr. Smith observed that a hose bibb located on the wall near the sink (not the sink faucet) was missing a vacuum breaker. He testified that a hose was connected to the hose bibb, and that water from this connection was used to spray down the floor. Mr. Kourkoulis stated at hearing that the vacuum breaker had been removed and was sitting on the sink in the immediate vicinity of the hose bibb. He did not know who took it off. The Division has determined that a plumbing system not designed to prevent backflow of solid, liquid, or gas contaminants into the water supply system poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022- 015. Mr. Smith recorded all of these violations in his July inspection report. His report advised Maggie Qi of a call back date of October 1, 2012. Mr. Kourkoulis signed this report to acknowledge receipt on behalf of the restaurant. On October 10, 2012, Mr. Smith returned to perform a call back inspection of Maggie Qi. He prepared a Call Back Inspection Report, DBPR Form HR 5022-005, using his PDA to record the violations that he observed. The name Tanya Shiver appears on this October report acknowledging receipt on behalf of Maggie Qi. During the October inspection, Mr. Smith observed that the vacuum breaker was still missing from the hose bibb; the buildup of slime in the interior of the ice machine and the encrusted material on the can opener were still there; the interior of the oyster reach-in cooler was still soiled with an accumulation of food residue; the large cooling unit at the cook line still did not have its thermometer conspicuously placed and was still not maintaining proper temperatures for potentially hazardous food; shrimp, fish, and beef were again at a temperature of 50 degrees Fahrenheit; and gumbo that had been prepared more than 24 hours was again without proper date marking. These violations were recorded on the report. Mr. Smith is a trained professional and his testimony is credited. He testified that on the morning of each inspection he checked the accuracy of his thermometer in ice water, as he had been trained, and that his thermometer was accurate. Reports prepared at the time of the inspections corroborate Mr. Smith’s testimony as to all charged violations. The Division served an Administrative Complaint against Maggie Qi for the above violations on or about October 28, 2012. On March 23, 2012, July 31, 2012, and October 10, 2012, Maggie Qi had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit. On July 31, 2012, and October 10, 2012, Maggie Qi had refrigerated gumbo, a ready-to-eat, potentially hazardous food, which had been prepared and held for more than 24 hours and was not marked to indicate the date by which it needed to be consumed, sold, or discarded. On March 23, 2012, July 31, 2012, and October 10, 2012, the large cooling unit at the cooks’ line in Maggie Qi did not have its thermometer permanently affixed in a location that would allow easy viewing of its temperature display. On July 31, 2012, and October 10, 2012, the equipment for cooling food at Maggie Qi was not sufficient in number or capacity to maintain all food at proper temperatures. On March 23, 2012, July 31, 2012, and October 10, 2012, equipment food-contact surfaces and utensils at Maggie Qi were not clean to sight and touch. On all three dates there was a buildup of slime on the interior of the ice machine. On July 31, 2012, and October 10, 2012, the interior of the oyster reach-in cooler had an accumulation of food residue and there was crusted material on the can opener. On July 31, 2012, and October 10, 2012, Maggie Qi’s plumbing system had not been installed to preclude backflow of contaminants into the water supply system from a hose bibb near the sink. The hose bibb had a hose attached, but did not have a vacuum breaker. No evidence was introduced to indicate that Respondent had any previous violations.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding LOLAQ, LLC, doing business as Maggie Qi, in violation of six critical violations, and imposing a fine of $2,250, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013.
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 was a restaurant operating at 16850 Collins Avenue, Golden Beach, Florida, and holding food service license number 2326334. On February 26, 2008, and April 29, 2008, Respondent was inspected by Ricardo Unold, a Senior Sanitation and Safety Specialist with the Division. During both visits, Mr. Unold noticed several items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Unold and the exhibits introduced into evidence during the final hearing, Petitioner presented clear and convincing evidence that as of April 29, 2008, the following deficiencies subsisted at Respondent New San Telmo: (1) In-use utensils stored in standing water less than 135 degrees Fahrenheit, in violation of Food Code2 Rule 3- 304.12(F); (2) The public bathroom was not equipped with a tight-fitting, self-closing door, in violation of Food Code Rule 6-202.14 and Florida Administrative Code Rule 61C-1.004(2)(b); (3) An unlabeled spray bottle, in violation of Food Code Rule 7- 102.11; and (4) No proof of required employee training, in violation of Section 509.049, Florida Statutes. The deficiencies relating to the lack of proof of employee training, the unlabeled spray bottle, and the bathroom door are all considered critical violations by the Division. Critical food code violations are those that, if uncorrected, present an immediate threat to public safety. The final deficiency (storing in-use utensils in water less than 135 degrees Fahrenheit), while not categorized as a critical violation, is serious nonetheless because it directly relates to food preparation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1400, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 30th day of August, 2010, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2010.
