The Issue Whether the allegations set forth as count one in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Bistro on Park Avenue (Respondent) are correct, and if so, what penalty should be assessed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a public restaurant located at 348 North Park Avenue, Suite 5, Winter Park, Florida 32789. On December 14, 2012, Dennis Watson, a trained and experienced sanitation and safety specialist employed by the Petitioner, performed a routine inspection of the Respondent, during which Mr. Watson observed various violations of the Food Code. At the conclusion of the routine inspection, Mr. Watson prepared a written report documenting the Food Code violations that he had observed. Before leaving the premises, Mr. Watson discussed his observations with Mr. Boesch and provided him with a copy of the inspection report. According to the inspection report, the violations were to have been corrected by 8:00 a.m., on February 15, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Food Code violations identified during the routine inspection had been resolved. The callback inspection occurred on February 19, 2013. Some of the Food Code violations observed during the routine inspection were again observed during the callback inspection. Between the routine inspection and the callback inspection, the Petitioner amended its rules and began to apply an updated version of the Food Code. In relevant part, both versions of the Food Code identify proper food storage temperatures applicable to potentially hazardous food products. The storage of such products at improper temperatures can result in bacterial or pathogenic contamination of the product and can cause serious illness in humans who consume the contaminated products. Both versions of the Food Code require that certain cold food products be stored at temperatures of 41°F or less. At the time of the routine inspection, the applicable Food Code identified violations of the referenced food temperature standard as "critical" violations. By the time of the callback inspection, the updated Food Code being utilized by the Petitioner identified violations of the food temperature standard as "high priority" violations. According to the report of the routine inspection, Mr. Watson observed that both crème brulee and tiramisu were being held at 44 degrees. According to the report of the callback inspection, Mr. Watson observed that crème brulee was being held at 46 degrees and that butter was being held at 47 degrees. At the time of both inspections, the cited items were stored in a glass door cooler. At the hearing, Mr. Boesch asserted that the temperatures measured by Mr. Watson were not accurate. Mr. Boesch produced the thermometer he used at his restaurant and argued that the thickness of the cited food products was insufficient to permit an accurate determination of their temperatures with his thermometer. Mr. Watson testified that the construction of the thermometer used to measure food temperatures during inspections was superior to that of the thermometer being used by Mr. Boesch. Mr. Watson testified that his thermometer was capable of accurately determining the temperature of food products during the inspection and that he routinely calibrated the thermometer to make certain that it was performing properly. Mr. Watson's testimony and the measurements obtained through his thermometer have been accepted and are credited.
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 $250 against the Respondent, and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 4th day of September, 2013, 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 4th day of September, 2013.
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 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 At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing an administrative fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2010.
The Issue The issues in the case are whether the alleged violations set forth in the Petitioner's Administrative Complaint occurred, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and witness testimony presented and the entire record of this proceeding, the following Findings of Fact are made: The Petitioner is a state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2004). The Respondent, Amici's Pizza, is a restaurant located at 1718 North Goldenrod Road in Orlando, Florida. The records of the Division indicate that the restaurant is also known as Amici's Italian Kitchen and Pizzeria. The Respondent holds License No. NOS5808584. James Thomason is a Senior Sanitary and Safety Specialist employed by the Division of Hotels and Restaurants. His duties include inspecting food service establishments and lodging facilities for compliance with applicable law. He conducts approximately 4000 inspections per year for the Division. On August 27, 2004, Mr. Thomason conducted a routine inspection of Amici's Pizza and issued an inspection report. In his report, Mr. Thomason noted several violations, among which are the two violations that are charged in the Petitioner's Administrative Complaint: cheese and sausage in the preparation area were above the maximum allowable temperature, and the pizza cooler was not maintaining food at sufficiently low temperatures. The August 27, 2004, inspection report indicated that the two violations were "critical violations," meaning they posed an immediate threat to the public. The public threat associated with food not being kept at a low temperature is the possible consumption of bacteria-contaminated food. Because Mr. Thomason found what he believed to be critical violations at Amici's Pizza, he indicated in his inspection report that the violations had to be corrected by August 30, 2004. A copy of the inspection report was given to the owner of Amici's Pizza, Dion Nunez, on August 27, 2004, at the conclusion of the inspection. Mr. Thomason discussed the violations that he had noted in the report with Mr. Nunez, and Mr. Nunez signed the report. Mr. Thomason conducted a "call back" inspection of Amici's Pizza on August 30, 2004, and noted in his inspection report for that date that the two critical violations identified above had not been corrected. The non-critical violations had been corrected. Mr. Thomason determined on his August 27, 2004, inspection that the temperature of cheese and sausage on the "make line" was 51 degrees Fahrenheit ("F") and 58 degrees F, respectively. As set forth more fully, below, the maximum temperature allowed for these foods was 41 degrees F. Mr. Nunez did not dispute Mr. Thomason's determination on August 27, 2004, that the temperature of the cheese and sausage on the make line exceeded allowable temperatures. In fact, Mr. Nunez responded by immediately disposing of the cheese and sausage. When Mr. Thomason made his call back inspection of Amici's Pizza on August 30, 2004, he found the temperature of the cheese and sausage on the make line was 50 degrees F and 62 degrees F, respectively. Mr. Nunez did not dispute Mr. Thomason's August 30, 2004, findings regarding food temperature. Mr. Nunez did not dispute Mr. Thomason's findings on August 27 and August 30, 2004, that the cooler at Amici's Pizza was not keeping the foods in the cooler at or below 41 degrees F. Mr. Nunez' stated that he tried to get an electrician to fix his cooler before the August 30, 2004, call back inspection, but was unable to get an electrician who could respond that soon. Mr. Nunez attributed this problem to the fact that August 27, 2004, was a Friday, giving him only the weekend to find an electrician, and also to the recent passage of a hurricane through the area. Amici's Pizza continued to serve customers during the time that the cooler remained un-repaired, but Mr. Nunez used ice in an attempt to lower the temperature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order that finds the Respondent violated Food Code Rules 3-501.16(A)(2) and 4-302.11, and imposes an administrative fine of $500. DONE AND ENTERED this 22nd day of September, 2005, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Dion Nunez Amici's Pizza 525 South Ronald Reagan Boulevard Orlando, Florida 32750 Dion Nunez 1718 North Goldenrod Road Orlando, Florida 32818 Tonya S. Chavis, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2003). The Respondent is a restaurant located at 7924 Ulmerton Road in Largo, Florida, holding Permanent Food Service License No. 6213580. Fadil Rexhepi owns and operates the restaurant. On April 25, 2003, an employee representing the Petitioner performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a written report. The inspector provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for May 30, 2003. On May 30, 2003, the Petitioner’s employee re-inspected the Respondent and determined that some of the violations remained uncorrected. The violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection. The owner of the restaurant was not present during either inspection. On August 28, 2003, the Petitioner filed an Administrative Complaint against the Respondent, alleging various continuing and uncorrected violations identified during the inspections. During the inspections on April 25, 2003, and May 30, 2003, food stored in reach-in units was not being maintained at an appropriate temperature of 41 degrees or below. The required storage temperature is intended to prevent development of toxic microorganisms that can result in food safety issues for persons consuming improperly stored food. On April 25, 2003, the inspector found that the temperature of meats, fish, poultry, meatloaf, and milk stored in the units ranged from 46 to 49 degrees. On May 30, 2003, the inspector found that the food temperatures in the same units ranged from 43 to 56 degrees. During the inspections on April 25, 2003, and May 30, 2003, two refrigeration units were not maintaining a proper temperature of 41 degrees or below. During the inspections on April 25, 2003, and May 30, 2003, the inspector noted that the thermal glass in a reach-in unit door was broken. The broken thermal glass results in inability to maintain proper temperatures. During the inspections on April 25, 2003, and May 30, 2003, the Respondent was unable to provide, at the request of the Petitioner's inspector, documentation that employees had completed food safety training. The purpose of food safety training is to permit employees to perform their duties in a manner consistent with the requirements of the Food Code. The Food Code regulation violations identified herein pose a direct threat to public safety.
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 $2,000 against the Respondent. DONE AND ENTERED this 16th day of July, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2004. COPIES FURNISHED: William M. McCalister, Qualified Representative Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Fadil Rexhepi 7924 Ulmerton Road Largo, Florida 33771 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether on June 23, 2014, Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant (Zorba's), was in compliance with food safety requirements set forth in administrative rules of Petitioner, Department of Business and Professional Regulation (Department), Division of Hotels and Restaurants, and, if not, what penalty is appropriate.
Findings Of Fact The Department is an agency of the State of Florida responsible for monitoring the operations of hotels and restaurants to ensure compliance with food safety and sanitation standards set forth in relevant statutes and rules. Zorba's is a licensed and regulated business under the jurisdiction of the Department's Division of Hotels and Restaurants. Zorba's business license number is 46-01794. Jonathan Johnson works for the Department as a senior sanitation and safety specialist. Mr. Johnson has worked for the Department for approximately four and one-half years. Before that, he worked for two years in restaurants. Mr. Johnson undergoes periodic training for his present position as an inspector. He is also a certified food manager. Mr. Johnson performs approximately 1,000 or more inspections for the Department annually. Mr. Johnson's training, experience, and demeanor make him a very credible witness. On May 6, 2014, at 5:09 p.m., Mr. Johnson inspected Zorba's restaurant. Mr. Johnson observed tomatoes, hummus, and cheese in the "reach-in" coolers behind the cook line at temperatures between 44ºF and 46ºF. Tomatoes, hummus, and cheese are "priority items," under the Food Code, making them "high priority items" under Florida Administrative Code 61C-1.001(17). § 3-501.16(A), Food Code. Under the Food Code, they must be held at a temperature below 41ºF. § 3-501.16(A), Food Code.2/ A "high priority violation" is a violation of the rules regulating a "high priority item" and is determined by the Department to pose a direct or significant threat to the public health. Fla. Admin. Code R. 61C-1.005(a). As a result of his inspection, Mr. Johnson prepared an inspection report setting forth his findings and issued Zorba's a warning. Mr. Johnson scheduled a callback inspection for May 7, 2014. Within 11 hours after receiving the inspection report, Zorba's employed a refrigeration repair company to inspect the restaurant's refrigeration equipment at a cost of $234.00. A service order, admitted as hearsay evidence, suggests the technician measured the ambient temperature of the walk-in cooler at 33ºF and the reach-in cooler at 38ºF. Since the document is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Mr. Johnson returned to Zorba's on May 7, 2014, at 8:00 a.m. The cheese, tomatoes, and deli meat in the reach-in coolers were at temperatures between 44ºF and 46ºF. The walk-in cooler contained soups and sauces at temperatures between 48ºF and 50ºF and chicken and butter at 44ºF. At the conclusion of the inspection, Mr. Johnson told Ms. Euse about the violations and, again, issued Zorba's a warning. At this time, Mr. Johnson told Ms. Euse that all violations documented during the inspection needed to be corrected by June 23, 2014. He noted the violations were not an immediate threat to the public. Zorba's acknowledged the violations on both reports dated May 6 and 7, 2014. As a result of a stipulation, the Department issued a Final Order on May 16, 2014, imposing a fine of $200.00 for these violations. Mr. Johnson performed a callback inspection, as contemplated by the Final Order, at Zorba's restaurant on June 23, 2014. The inspection revealed that the cheese, tomatoes, and deli meat held within the reach-in cooler were at temperatures between 44ºF and 46ºF. Mr. Johnson prepared a Callback Inspection Report, which was signed by a Zorba's representative. The Callback Inspection Report recommended filing an Administrative Complaint. After receiving the non-compliance violation report, Zorba's contacted a different refrigeration repair company to perform an additional inspection of the refrigeration equipment. A service order, admitted as hearsay evidence, suggested that a technician measured the temperature of the reach-in cooler at 38ºF on June 30, 2014. Since it is uncorroborated hearsay and the foundation for a business record was not proven, the service order cannot be the basis of factual finding as to the cooler's ambient temperature. § 120.57(1)(c), Fla. Stat. Ms. Euse replaced the restaurant's plastic storage containers with aluminum containers because the technician suggested it. The clear and convincing evidence proves that on June 23, 2014, Zorba held hazardous food at levels above the 41ºF standard required by section 3-501.16(A)(1) of the Food Code. Zorba's attempted to cooperate with the Department's inspection report by hiring refrigeration technicians to perform maintenance on and evaluate the subject coolers. Nonetheless, the Department presented evidence that Zorba's violated the Food Code on the day on which the inspection was conducted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a $500.00 fine upon Respondent, Zorba's Pizza Restaurant, Inc., d/b/a Zorba's Greek Restaurant, for violations of the Food Code requirements. DONE AND ENTERED this 3rd day of November, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2014.
