The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint dated August 28, 2007, and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all times material hereto, Sonic was a public food establishment, licensed and regulated by the Division. Sonic's license number is 6215607. Sonic's address is 3698 Tampa Road, Oldsmar, Florida 34677. Lori Kennedy is employed by the Division as a sanitation and safety specialist and has been so employed for three and a half years. Ms. Kennedy has a bachelor's degree in biology from Florida State University, a master's degree in public health from the University of South Florida, and a graduate certificate in infection control from Florida State University. At the time Ms. Kennedy was employed by the Division, she was a certified food manager and a special fire safety inspector. As part of her current position, Ms. Kennedy attends monthly continuing education courses. During her employment with the Division, Ms. Kennedy inspects between 950 and 1000 public food service establishments and lodging establishments each year. On May 31, 2007, Ms. Kennedy inspected the premises of Sonic. During the inspection, Ms. Kennedy observed numerous violations. Of these violations, only two were critical violations that were required to be corrected within 24 hours. Ms. Kennedy set forth her findings and listed all the violations on the Food Service Inspection Report on the day of the inspection. That same day Ms. Kennedy provided a copy of the report to Michelle Snyder, the general manager of the establishment. The Food Service Inspection Report notified Ms. Snyder that a callback inspection would be conducted the following day, June 1, 2007. In the May 31, 2007, Food Service Inspection Report, Ms. Kennedy specified that there were two critical violations, both of which had to be corrected within 24 hours. The first critical violation was that there were insects/rodents present in the establishment. The second critical violation was that the establishment's employees were directly touching ready-to- eat foods with their bare hands, without having the written alternative operating procedure checklist. A violation of the Food Code is deemed a critical violation when such violation, if left unattended or uncorrected, will contribute to a food-borne illness or endanger life safety. A non-critical violation is one which may not directly contribute to the promotion of a food-borne illness. However, a non-critical violation which is not addressed can lead to a critical violation. On June 1, 2007, Ms. Kennedy conducted a call-back inspection at Sonic to determine if the two critical violations she had observed the previous day had been corrected. During the "call back" inspection, Ms. Kennedy observed that the two critical violations cited on the May 31, 2007, Food Service Inspection Report had been corrected. The first critical violation was corrected in that Ms. Kennedy did not observe any roaches at the establishment. The second critical violation was corrected by the employees using gloves for preparing ready-to- eat foods. After Ms. Kennedy completed the call back inspection on June 1, 2007, Ms. Kennedy prepared a Callback Inspection Report and gave a copy of that report to Ms. Snyder. On the June 1, 2007, Callback Inspection Report, Ms. Kennedy appropriately noted that the two critical violations had been corrected. The June 1, 2007, Callback Inspection Report also listed violations for which Sonic had been cited on May 31, 2007, but which were not deemed to be critical violations. Thus, those violations were not required to be corrected within 24 hours. According to the June 1, 2007, Callback Inspection Report, the time for Sonic to correct the non-critical violations was extended for 30 days, or until about July 1, 2007. On July 2, 2007, Ms. Kennedy re-inspected the Sonic premises. During this re-inspection, Ms. Kennedy again listed 13 violations, initially cited in the May 31, 2007, Food Service Inspection Report, that still had not been corrected. However, after the July 2, 2007, re-inspection, Sonic was given an additional 30 days, or until August 2, 2007, to correct the violations. This additional 30-day extension was based on new Division guidelines. Ms. Kennedy gave Sonic the additional time to correct the non-critical violations after she was informed by the Division district manager of the new Division guidelines implemented on July 1, 2007. According to those guidelines, the call-back period for the uncorrected non-critical violations for which Sonic was cited was extended from 30 days to 60 days. On August 16, 2007, Ms. Kennedy again inspected Sonic's premises. This inspection was conducted to verify compliance with the previously cited non-critical violations and those for which Sonic was given 60 days to correct. On the day of the inspection, Ms. Kennedy completed a Food Service Inspection Report, including a page titled, "Comment Sheet" (hereinafter referred to as the "August 16, 2007, Food Service Inspection Report") on which she noted her observations and findings. During the August 16, 2007, "callback," Ms. Kennedy verified that four of the previously cited 13 non-critical violations had not been corrected and that the remaining previously uncorrected non-critical violations were in compliance. Also, Ms. Kennedy verified and reported one additional violation---one which had been cited on the May 31, 2007, Food Service Inspection Report, but was corrected within the required 24-hour time period. The four previously cited violations that were not in compliance on August 16, 2007, were based on the following observations made by Ms. Kennedy and described in paragraphs 17 through 20. During the August 16, 2007, inspection, Ms. Kennedy observed that the floor behind the slush machine was covered with standing water. This is not a critical violation. However, it was cited because standing water on the floor has the potential to attract roaches and to breed flies. Further, such standing water promotes the growth of mildew and mold, neither of which is sanitary in a food service establishment. The second previously cited, but uncorrected violation Ms. Kennedy observed on August 16, 2007, was that condensate in the walk-in cooler was dripping on food boxes. This is not a critical violation. However, it was cited because the condensate, which possibly contained chemicals, insulation, and lubricants, could have impacted food storage. The third previously cited, but uncorrected violation that Ms. Kennedy observed on August 16, 2007, was the buildup of grease under the table by a warming drawer, a non-food contact surface. This was not a critical violation. However, the grease on this non-food contact surface and the wheel under the table of the warming drawer, provide food and harborage for the roaches. The fourth previously cited, but uncorrected violation that Ms. Kennedy observed on August 16, 2007, was the buildup of grease on the wheels of cooking equipment. This is a non- critical violation. It was cited because the grease on the wheels of cooking equipment provides food and harborage for roaches. In fact, on the day of this inspection, Ms. Kennedy observed roaches on the wheels of this cooking equipment. In addition to the foregoing uncorrected non-critical violations Ms. Kennedy observed on August 16, 2007, she observed and verified one previously corrected critical violation. Specifically, Ms. Kennedy observed live roaches in the establishment---two on the wheel of the prep table, one by the wire rack, and one by the dry storage area. This is a critical violation because roaches act as mechanical vectors that can transport bacteria and other pathogens on their limbs. As a result when they contact food, they could possible contaminate it with those pathogens. There is no indication that the Division has inspected the Sonic establishment since August 16, 2007. Moreover, Respondent presented no evidence or testimony at hearing. Thus, it is unknown whether the violations cited on August 16, 2007, have been corrected.
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 that Respondent, Sonic, violated Food Code Rules 4-204.120, 6-501.111, and 6-501.12(A), and 4-601.11(C). Imposing a total administrative fine of $2,500.00. Requiring Respondent (through its employees and/or owners) to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of February, 2008. COPIES FURNISHED: Jessica Leigh, Esquire Sherria Williams Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Michelle Snyder, General Manager Sonic 3698 Tampa Road Oldsmar, Florida 34677 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, the Restaurant was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 2331004. At all times material hereto, the Restaurant was located at 2298 Northwest 36th Street, Miami, Florida 33142. A critical violation in food service is considered to be a violation that is directly related to a food-borne illness risk and could cause the threat of health and sanitation issues; or any violation that, if left uncorrected, could lead to food being contaminated and may cause a food-borne illness or cause someone to become sick or harmed. On March 17, 2009, Mohammad Khan, a senior sanitation safety specialist with the Department, conducted an inspection of the Restaurant. Another inspector with the Department, Maurice Chi, a sanitation safety supervisor, arrived at the Restaurant after Mr. Khan and accompanied Mr. Khan during the inspection. During the inspection, among other things, Mr. Khan and Mr. Chi found a violation, which they considered to be a critical violation. Further, during the inspection, Mr. Khan prepared a food inspection report, setting forth the alleged critical violation. The inspection report was signed by Mr. Khan, Mr. Chi, and Eva Alvarado, the manager of the Restaurant. Mr. Khan made Ms. Alvarado aware of the alleged critical violation, in addition to other violations, and provided her with a copy of the inspection report. The inspection on March 17, 2009, involved a possible immediate closure of the Restaurant due to the alleged critical violation. The alleged critical violation on March 17, 2009, was 35A-04-1:2 “Observed rodent activity as evidenced by rodent droppings found found [sic] 70 plus fresh rodent droppings in kitchen behind chext [sic] type freezer.” Mr. Khan moved the freezer, observed the area behind it, and observed approximately 70 fresh rodent droppings. Mr. Chi also observed the fresh rodent droppings. Mr. Khan and Mr. Chi considered this alleged violation to be a critical violation because the fresh rodent droppings are directly related to food-borne illness in that rodents carry a lot of germs and diseases and they could contaminate food and preparation areas, causing significant health issues for anyone eating in the Restaurant. Their testimony is found to be credible and clear and convincing. The Restaurant was closed on March 17, 2009, as a result of the critical violation being found. The next day, March 18, 2009, the Restaurant was re- inspected. The critical violation had been corrected, and the Restaurant was allowed to re-open. Ms. Alvarado testified, among other things, that the Restaurant had fumigation performed every 15 days. Her testimony does not negate what was found during the inspection on March 17, 2009, and the critical violation found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Restaurant El Hondureno II violated Food Code Rule 6-501.111. Imposing an administrative fine in the amount of $1,000.00 against Restaurant El Hondureno II. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 31st day of December, 2009.
The Issue At issue in this proceeding is whether Respondent's public food establishment license should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: At all times relevant to this proceeding, Respondent, Thai Café, operated a public food service establishment, located at 4200 Tamiami Trail, Unit 14, Port Charlotte, Florida 33952-9233. Respondent's license, number 18-01285-R, expired on December 1, 1999, and was not renewed until March 22, 2000. Lisa Marie Wofford was, at all times relevant to this proceeding, a sanitation and safety specialist for the Division of Hotels and Restaurants, acting primarily as a restaurant inspector. On January 10, 2000, Ms. Wofford inspected Respondent's restaurant, which was open and operating. She found several violations of food service rules that she enumerated on a food service inspection report. The report warned Respondent that it had 10 days, until January 20, 2000, to correct the violations. Ms. Wofford entered a question mark on the report beside the license expiration date, because she could not at that time confirm when Respondent's license would expire. On January 20, 2000, Ms. Wofford conducted a "call back" inspection of Respondent's restaurant, which was open and operating. She found violations of food service rules, which she enumerated on a call back/reinspection report. Ms. Wofford testified that she could not recall whether she looked for Respondent's license on this call back inspection. On March 7, 2000, Ms. Wofford conducted a routine food service inspection of Respondent's restaurant, which was open and operating. She found Respondent in violation of food service rules and found that Respondent failed to display a current license. She enumerated these violations on a food service inspection report. Ms. Wofford noted on this report that Respondent was operating its restaurant without a license. Ms. Wofford testified that during the inspection, the owner told her that he had "mailed the license fee already, yesterday." At all times relevant to this proceeding, Karlin Dorothy Kahl was a management review specialist and compliance coordinator for the Division of Hotels and Restaurants, District 6, and was a custodian of the records maintained at the district office in Fort Myers. Ms. Kahl testified that the Division's records reflected that Respondent's license expired on December 1, 1999. The records also reflected that the license fee was not received by the Department until March 22, 2000, well after Ms. Wofford's inspections of January 10, January 20, and March 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent shall pay an administrative fine of $1,000, to be reduced to $500 if paid within 10 days of the date the final order is entered in this proceeding. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001. COPIES FURNISHED: Thai Café 3135 Cortez Road Fort Myers, Florida 33901 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in Counts 2 and 3 of the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Pacheco's Restaurant (Restaurant) is an eating establishment (with seating) located in Indiantown, Florida. Rosendo Pacheco, the Restaurant's owner, holds a license issued by Petitioner (license number SEA5301629) authorizing him to operate the Restaurant as a public food service establishment. On May 15, 2012, Michael Petrow, an inspector with Petitioner, conducted a "routine" inspection of the premises of the Restaurant. During the inspection, proof of required food service manager certification and employee food service training was requested by Mr. Petrow, but not produced by Mr. Pacheco. During previous inspections of the Restaurant-- conducted on April 13, June 15, and December 20, 2011--Mr. Pacheco had also failed, upon Mr. Petrow's request, to produce proof of required food service manager certification and employee food service training. For these past failures to produce proof of required food service manager certification and employee food service training (occurring on April 13, June 15, and December 20, 2011), Mr. Pacheco has already been sanctioned by Petitioner (in the form of a fine of $800 imposed by the Final Order on Waiver issued in Petitioner's case number 2011038246 on October 27, 2011, and a fine of $1,600 imposed by the Final Order on Waiver issued in Petitioner's case number 1012003526 on April 2, 2012).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of having committed, on May 15, 2012, the violations alleged in Counts 2 and 3 of the Administrative Complaint and disciplining Respondent therefor by imposing an administrative fine in the total amount of $2,000 ($1,000 for each violation). DONE AND ENTERED this 16th day of April, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 April, 2013.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Humphrey's On 33rd, a bar/restaurant (with a "full kitchen") located in Fort Lauderdale, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a license issued by Petitioner (license number 16-18150-R) authorizing it to operate Humphrey's On 33rd as a public food service establishment. Edward Humphrey is the majority owner of Respondent. On December 29, 2004, Michele Schneider, a Sanitation and Safety Specialist with Petitioner, conducted a routine inspection of the premises of Humphrey's On 33rd. Her inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): Respondent, upon request, was unable to produce evidence of "food handlers' training for employees by a certified food manager"; there were paper products and other potentially combustible items "on top of and around" a gas- powered hot water heater (which had an "open flame at the bottom"); there was no indication that violations (of the standards of the National Fire Protection Association) previously-noted by a "certified fire inspector" during an inspection of the hood range in the kitchen (which had an ansel fire suppression system) had been corrected; the service tag on the fire extinguisher in the establishment did not indicate the year the extinguisher was last serviced; and there was grease, garbage, and other debris in the "can wash area" outside the establishment, "right behind the back door." Before leaving the establishment, Ms. Schneider advised Mr. Humphrey that these Conditions were violations for which Respondent could be disciplined by Petitioner if not corrected by February 1, 2005. Ms. Schneider conducted a "callback" inspection of the premises of Humphrey's On 33rd on February 1, 2005, which revealed that each of the Conditions described in Finding of Fact 4 still existed. At neither the time of the December 29, 2004, routine inspection, nor the time of the February 1, 2005, "callback" inspection, was food being served at Humphrey's On 33rd. Respondent had "closed the kitchen down" in or around September of 2004. It was not until approximately six months later, after the December 29, 2004, and February 1, 2005, inspections, that Respondent started serving food again at the establishment. At no time during this six-month period that it stopped serving food did Respondent relinquish its license authorizing it to operate Humphrey's On 33rd as a public food service establishment. Its license remained in effect throughout this period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed Alleged Violation Nos. 1 through 5 and disciplining Respondent therefor by imposing a fine in the total amount of $250.00 and requiring Respondent's majority owner to attend, at his own expense, an "educational program sponsored by the Hospitality Education Program." DONE AND ENTERED this 20th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of December, 2005.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 29, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See section 509.032(1), Florida Statutes. Carvel is a food service establishment licensed and regulated by the Department and located at 3148 Coral Way, Miami, Florida 33145. On July 22, 2009, Jorge Gandolff, a senior inspector of public food service establishments employed by the Division, inspected the premises of Carvel. As an inspector for the Division, Mr. Gandolff was required to complete a Food Service Inspection Report, DBPR Form HR 5022-016 and -015 ("Form HR 5022-016 and -15"), for each public food service establishment that he inspected. During the inspection of Carvel, Mr. Gandolff noted that Carvel was not in compliance with a number of the items listed on the Form HR 5022-016 and -15 inspection report. Mr. Gandolff noted that, among other things, he "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on floor"; "observed food container not properly labeled." It was Mr. Gandolff's practice, and the usual practice of Division inspectors, to complete the Form HR 5022-016 and -15 inspection report and record the violations he observed at a public food service establishment on a personal digital computer. At the end of the inspection, it was his practice to obtain the signature of the person in charge on the Form HR 5022-016 and -15 inspection report, print a copy of the report, and review the violations that had been noted with the person in charge. Mr. Gandolff followed his usual practice in completing the inspection of Carvel on July 22, 2009. He prepared a Form HR 5022-016 and -15 Food Service Inspection Report setting forth his findings and noted on the report that Carvel "MET INSPECTION STANDARDS during this visit" and that "ANY VIOLATIONS noted herein must be corrected by the NEXT UNANNOUNCED INSPECTION." (Emphasis in original.) Zoila Fernandez, an employee of Carvel, signed the inspection form, and Mr. Gandolff went over the inspection findings with her. Mr. Gandolff inspected the premises of Carvel for the second time on November 24, 2009. In addition to several other violations, Mr. Gandolff noted on the Form HR 5022-016 and -15 inspection report that he again "observed soiled reach-in freezer gaskets"; "observed buildup of soiled material on mixer head"; "observed buildup of slime in the interior of ice machine"; observed that "covered waste receptacle not provided in women's bathroom"; "observed food stored on walk-in cooler floor Cardboard boxes of chocolate chip"; "observed food container not properly labeled ice cream containers not labeled stored inside self service freezer in customer area." These six items were considered repeat violations; that is, these items were found to be out of compliance with the Food Code at the July 22, 2009, inspection. In addition, these six items were marked with an asterisk on the Form HR 5022-016 and - 15 inspection report, which designated them as "critical" violations. Mr. Gandolff recommended that these items be included as violations in an Administrative Complaint. Mr. Gandolff also noted on the Form HR 5022-016 and -15 inspection report that the "Inspector determined violations require further review, but are not an immediate threat to the public." Zoila Reyes, an employee of Carvel who was on the premises during the November 24, 2009, inspection signed the inspection report. She was not able to accompany Mr. Gandolff during the entire inspection because the store was busy, but Mr. Gandolff went over the inspection report with her. Ms. Shah was not present during either of the inspections. It is her practice to come into the store early and prepare the store to open. Her preparations include cleaning the premises and the equipment. Mr. Gandolff found three items during both the July 22, 2009, and November 24, 2009, inspections that he wrote up as a single violation of the Food Code and that he considered the most serious violation of the Food Code. The first item was the build-up of food on the mixer head that was not just the normal amount of build-up that occurs during a workday but was old, dry, and crusted. Mr. Gandolff considered this a serious condition because this piece of equipment came in direct contact with food and could contaminate it. The second item was the slime build-up inside the interior of the ice machine, which Mr. Gandolff considered a serious condition because the ice came into direct contact with the interior of the ice machine and could be contaminated by the slime. The third item was the soiled gaskets on the reach-in freezer that was a black residue probably resulting from the buildup of old product. Mr. Gandolff considered this a serious condition because the freezer gaskets are very close to the product in the freezer, and the product could be contaminated if it came into contact with the gaskets. The violation Mr. Gandolff considered the next most serious violation of the Food Code found during both the July 22, 2009, and November 24, 2009, inspections was a cardboard box containing chocolate chips stored directly on the floor of the walk-in cooler because the food product inside the box could be contaminated by water or any other residue on the floor of the cooler, especially if, as here, the food product is stored in a cardboard box that could absorb water from the cooler floor. In addition, Mr. Gandolff considered the absence of labels on containers of ice cream stored in a freezer accessible to customers to be a serious violation of the Food Code because a customer must be able to look at the label on the food product and know the ingredients in the product and the date the product was prepared so the customer can make a determination if the product is safe for them to eat. Mr. Gandolff also considered the uncovered trash receptacle in the women's bathroom a serious violation of the Food Code because such receptacles must be covered to avoid exposure of women's sanitary napkins. These violations are all critical violations because they pose a significant danger to the public health and because they are identified as critical violations on the inspection report forms Mr. Gandolff completed on July 22, 2009, and November 24, 2009, recording his observations of the Carvel premises. Ms. Shah has owned the Carvel store for approximately 14 years, and, during that time, the store has not been cited for any violations as a result of inspections by the Division. The Carvel store owned by Ms. Shah is very small and, because of the poor economic conditions of recent years, Ms. Shah makes very little money at the store and is barely able to keep the business open. Summary The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that there were five repeat violations of the Food Code on the premises of Carvel during the November 24, 2009, inspection. Ms. Shah failed to present sufficient evidence to establish that the violations observed by Mr. Gandolff were not present. First, her explanation of the missing cover on the waste receptacle in the women's bathroom, that the receptacle had just been emptied and that the cover was sitting on the floor beside the receptacle, could have explained the missing cover during the first inspection, but the same explanation would have presented too much of a coincidence to be a persuasive explanation for the missing cover at the second inspection. Second, Ms. Shah's categorical denial that any equipment on the store's premises was soiled or otherwise not perfectly clean, her testimony that she cleans everything in the store every morning; that the equipment is cleaned continually during the day; and that all supplies are stored properly in the walk-in cooler and her testimony is not sufficient to refute the specific observations noted by Mr. Gandolff on the inspection reports. Finally, Ms. Shah's testimony that all pre-packed ice cream available for purchase in the store's self-service freezer is packed in containers with labels provided by Carvel, Inc. In the absence of information regarding the content of the labels provided by Carvel, Inc., Ms. Shah's testimony does not refute the Mr. Gandolff's contention that the containers of ice cream did not have labels disclosing the date the ice cream was packed into the containers and the ingredients in the ice cream.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order. Finding Carvel Ice Cream Bakery guilty of having violated Florida Administrative Code Rule 61C-4.010(1)(c) and Food Code Rules 3-305.11; 3-602.11(A); 4-602.11(C) and (D); and 5-501.17; and Imposing an administrative fine in the amount of $525.00. DONE AND ENTERED this 14th day of June, 2011, in Tallahassee, Leon County, Florida. S Patricia M. Hart 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 14th day of June, 2011.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was a restaurant subject to Petitioner's regulation. That regulation required Petitioner to comply with all relevant provisions set forth in Florida Statutes, Florida Administrative Code, and the Food Code. Petitioner's license number is 1614578. Respondent's restaurant is located at 5001 North University Drive, Lauderhill, Florida (the subject premises). At the times relevant to this proceeding, Ana Rosa Castro was the manager of the restaurant. Two inspections of the subject premises are relevant to this proceeding. The first inspection was a routine inspection on December 15, 2009 (the routine inspection). Michele Schneider conducted the routine inspection. A callback inspection was conducted on February 24, 2010 (the callback inspection). Terrence Diehl and Tatiana Joy conducted the callback inspection. Ms. Schneider and Mr. Diehl are experienced and properly trained to conduct inspections of food service facilities to ensure compliance with applicable regulations. For both inspections, an inspector prepared a report on a personal data assistant, printed the report at the establishment, and provided a copy of the report to the person in charge prior to leaving the establishment. The inspectors discussed the report with Ms. Castro and explained the reasons the violations were cited. The routine inspection report and the callback inspection report were admitted into evidence as Petitioner's exhibits 2 and 3, respectively. Ms. Schneider's report noted multiple violations, including the four violations that are issue in this proceeding. Ms. Schneider's report contained a warning that required Respondent to correct each cited violation on or before February 20, 2010, at 8:00 a.m. Ms. Schneider and Ms. Castro signed the routine inspection report. Mr. Diehl and Ms. Joy performed the callback inspection on February 24, 2010. Ms. Joy, working under Mr. Diehl's supervision,2 prepared the callback inspection report setting forth the findings she and Mr. Diehl made. Ms. Joy and Mr. Diehl reviewed the findings with Ms. Castro and explained to her the reasons for the violations identified in the report. Ms. Joy, Mr. Diehl, and Ms. Castro signed the callback inspection report. The four violations at issue in this proceeding had not been corrected following the routine inspection. Violations of the Food Code are classified as either critical or non-critical. Critical violations are violations that are likely to result in a food-borne illness or an environmental health hazard. Non-critical are violations of the Food Code that have not been classified as critical, and are less likely to contribute to a food-borne illness or an environmental health hazard. Each of the four alleged violations in this proceeding is designated a critical violation.3 Food Code Rule 3-501.16(A) requires that except in circumstances inapplicable to this proceeding, food shall be maintained at or below 41 degrees Fahrenheit. On December 15, 2009, and on February 24, 2010, the cook-line reach-in cooler was not maintaining potentially hazardous food at or below 41 degrees Fahrenheit. This is a critical violation because foods that are maintained above 41 degrees become a potential danger for the growth of bacteria that could harm a consumer of the food. Food Code Rule 6-301.14 requires a food establishment to have a sign or poster at a sink used by food service employees notifying the employees to wash their hands. There was no such signage posted during the routine inspection or the callback inspection. This is a critical violation because employee hand-washing is a basic requirement for good hygienic practices, and the sign reminds employees of the requirement that they wash their hands before returning to work. Food Code Rule 7-102.11 requires that "working containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies shall be clearly and individually indentified with the common name of the material." The routine inspection noted the following as a violation: "[o]bserved unlabeled spray bottle dishroom [sic]." On the callback inspection, Mr. Diehl observed several unlabeled bottles that had liquids in them. There was no evidence as to what type liquids were in the spray bottles. Specifically, there was no evidence that the unlabeled spray bottles had to be labeled because they were "containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies." Pursuant to section 509.049(5), Respondent was required provide training of its employees and was required to provide proof of such training to an inspector. On December 15, 2009, Ms. Castro could not provide proof to Ms. Schneider that her employees had been trained. On February 24, 2010, Ms. Castro could not provide proof to Ms. Joy and Mr. Diehl that her employees had been trained. The testimony of Mr. Diehl established that this failure is a critical violation because untrained employees may not be aware of the importance of proper hygiene and proper food handling, which can result in contaminated food and the exposure of the consumer to food-borne illness. On June 16, 2009, Petitioner filed an Administrative Complaint against Respondent in case number 2009032247. That Administrative Complaint contained five alleged violations of the Food Code, at least one of which was a critical violation. The alleged violations were resolved by the entry of a Stipulation and Consent Order filed July 21, 2009. By that action, Respondent agreed to pay an administrative fine in the amount of $1,200.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violation alleged in paragraph 3 of the Administrative Complaint. It is further RECOMMENDED that the final order find Respondent guilty of the violations alleged in paragraphs 1, 2, and 4 of the Administrative Complaint. It is further RECOMMENDED that Administrative Fines be imposed against Respondent in the amount of $600.00 for each of the three violations, for a total fine of $1,800.00. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of June, 2011.
The Issue The issue in this case is whether on October 23, 2013, and May 6, 2014, Respondent was out of compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, as alleged in the Amended Administrative Complaint, and if so, what penalty is appropriate.
Findings Of Fact The Division is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules. At all times material to this case, Respondent was licensed as a public food service establishment, operating a restaurant located at 1658 North Federal Highway, Boca Raton, and holding license number 6020868. Ms. Tara Palmer has been employed by the Division for almost five years. She is presently a Senior Sanitation and Safety Specialist with the Division. Prior to her employment with the Division she was employed in the food industry for approximately 20 years. She has had training in sanitation and inspection, standardized training regarding the Food Code, on- the-job training, and continual monthly education. She performs approximately 1000 inspections yearly. On October 23, 2013, Ms. Palmer conducted a food service inspection on Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on October 23, 2013, Respondent's Roma and Alfredo sauces had been prepared the previous day, placed in tightly covered 22 quart gallon containers, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the sauces were 52°F. Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3-501.15. The improper cooling method deficiency was deemed a violation that required further review; however, same was not an immediate threat to the public. Respondent was notified that the observed violation must be corrected by December 24, 2013. On January 8, 2014, Ms. Palmer performed a "call-back" inspection. On that date, the improper cooling deficiency observed on October 23, 2014, had been corrected. On May 6, 2014, Ms. Palmer conducted a food service inspection of Respondent. Ms. Palmer prepared a Food Service Inspection Report, DBPR Form HR 5022-015. The violations observed during the inspection were recorded on the report. Respondent's manager, or individual in charge, followed Ms. Palmer throughout the inspection, and signed the report to acknowledge receipt on behalf of Respondent. Through the testimony of Ms. Palmer and the exhibits introduced into evidence during the final hearing, the Division established that, on May 6, 2014, Respondent's spicy and Pomodoro sauces had been prepared the previous day, placed in a tightly covered 22-quart gallon container, and cooled overnight in a walk-in cooler. Due to this methodology, at the time of inspection, the spicy sauce was 48°F at the start of the inspection and 47.5°F at the end of the inspection. The Pomodoro sauce was found to be 48°F at the start of the inspection and 47.3°F at the end of inspection. Again, Respondent was cited with a deficiency for improper cooling methods, in violation of Food Code Rule 3- 501.15. No evidence was introduced to indicate that Respondent had any previous violations. No evidence was introduced to refute the above-noted deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Italio East Boca, LLC, d/b/a Italio, in violation of two intermediate violations, and imposing a fine of $400, to be paid within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2014.
The Issue The 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 4743 North Ocean Drive, Sea Ranch Lakes, Florida, and holding food service license number 1621866. On June 18, 2012, and August 20, 2012, Respondent was inspected by Jens Rammelmeier, a senior sanitation and safety specialist employed by the Division. During both visits, Mr. Rammelmeier noticed multiple items that were not in compliance with the laws which govern the facilities and operations of licensed restaurants. Through the testimony of Mr. Rammelmeier and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that, as of August 20, 2012, the following deficiencies subsisted at Respondent Carina's Stone Fired Pizza-Gelato: (1) ready-to-eat, potentially hazardous food was held for more than 24 hours with no date marking, in violation of Food Code Rule 3-501.17(B); (2) an employee made bare-hand contact with ready-to-eat foods without a written alternative operating procedure in effect, contrary to Food Code Rule 3-301.11(B); (3) a food handler came into contact with soiled equipment and thereafter engaged in food preparation without washing his hands, in violation of Food Code Rule 2-301.14; (4) an employee engaged in food preparation without wearing a hair restraint, contrary to Food Code Rule 2- 402.11; (5) an accumulation of dead roaches was observed under several kitchen counters and a dishwasher, in violation of Food Code Rule 6-501.112; and (6) no proof of required employee training, contrary to section 509.049. Each of the foregoing deficiencies, with the exception of the violation relating to the hair restraint, 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: (a) finding Respondent guilty in accordance with the foregoing Recommended Order; and (b) ordering Respondent to pay an administrative penalty in the amount of $1100, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 13th day of May, 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 May, 2013.
