The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1620257. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 9045 Pines Boulevard, Pembroke Pines, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Walter Denis was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Denis’ job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Following the receipt of a complaint from a customer, Mr. Denis inspected the subject location on June 22, 2005. Prior to the inspection on June 22, 2005, the subject location had been cited by Petitioner for failure to comply with hand-washing procedures set forth in Section 2-301.14 of the Food Code. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. Petitioner established by clear and convincing evidence that a cashier employed by Petitioner handed clean plates to customers after handling money but without washing his hands. The manner in which the cashier handled the clean plates and the fact that he did not wash his hands after handling money violated Section 2-301.14 of the Food Code, which is a critical violation. Respondent’s manager established that the cashier’s handling of the food plates was contrary to Respondent’s policies and the training given by Respondent to its employees.
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 the violation alleged in the Administrative Complaint and imposing against Respondent a fine in the amount of $500.00. DONE AND ENTERED this 2nd day of February, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
The Issue The ultimate issue for determination is whether the Respondent committed the violations alleged in the Notice to Show Cause, issued on February 6, 1990, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was doing business at 26712 Southwest 144th Avenue, Naranja, Dade County, Florida, 33032-7404 as Village Diner. The Village Diner was operated under restaurant license number 23- 16870R. Mr. Steven Hoffman, Environmental Health Specialist Supervisor, Dade County Public Health Department ("DCPHD"), is an expert in food hygiene, safety, and fire safety. Mr. Hoffman's qualifications include certification by the Federal Drug Administration as a food inspector and certification by the State of Florida in fire safety and as a food hygiene coordinator. Mr. Hoffman has been employed by the DCPHD in various capacities for approximately 13 years. Mr. Hoffman's employment duties on January 12, 1990, included performing inspections of food service establishments in response to complaints received by the DCPHD. In response to a complaint, Mr. Hoffman conducted an inspection of the Village Diner on January 12, 1990. Mr. Hoffman found conditions comprising 18 alleged rule violations, of which eight are classified by Petitioner as major violations. Potato salad, cole slaw, and corned beef was improperly refrigerated at 60 degrees. 2/ Such food must be refrigerated at 45 degrees in order to avoid growth of dangerous bacteria that can lead to food poisoning. Food was stored on the floor of the walk-in refrigeration box and was not covered. Uncovered food left on the floor is susceptible to contamination by other substances dripping into the uncovered food and by other bacteria. Food utensils were stored in dirty water. Food prepared or served with utensils stored in dirty water may be cross-contaminated with bacteria from food or filth in the dirty water. Bulk containers used to store flour were dirty and needed to be replaced. Food contact surfaces were not clean, including stove grills, fryers, and the interior of refrigerators. The reach-in box contained dried, hardened splashes of meat. Wilted lettuce and other food debris had accumulated on the bottom of the reach-in box over a substantial period. Non-food contact surfaces were not clean, including walls and storage shelves. Walls were covered with accumulated grease and smoke. These conditions increased the probability of cross-contamination from bacteria and attracted vermin. The premises were infested with roaches and mice. Live roaches and droppings from mice were observed in and around the premises. Mouse urine was observed with a black light. Paper in open cans had been nibbled by mice. Roaches cause cross-contamination of food by picking up bacteria on their legs and carrying it to other foods. Mice contaminate food by urinating on it and by transporting fleas and ticks from one food to another. The floor under the cooking equipment was dirty. Walls were encrusted with old grease and dirt. Such conditions attract vermin. Toxic items were not stored properly. Boric acid powder was spread on top of pipes directly above a food service steam table. Respondent used the boric acid powder to control mice and other vermin. Boric acid is poisonous when ingested and is moderately toxic by skin and subcutaneous contact. Pressurized CO-2 tanks were placed beside a stove in the kitchen. An extension cord was improperly used in the kitchen. Lights in the kitchen were not shielded to prevent glass from falling into food in the event that a light bulb either was inadvertently broken or burst during operation. A pit in the rear of the premises contained white, congealed grease and emitted a foul odor. A trench had been designed to direct grease away from the premises and into the pit. The grease pit attracted vermin and contaminated ground water approximately eight feet below the surface. A faucet outside the premises was not equipped with a "backflow preventer". The absence of a "backflow preventer" permits contamination of the city water system from the premises in the event of negative pressure in the city water system. Not all of the garbage cans in the rear of the premises had plastic liners. Trash and debris was collected outside the back door of the premises. Trash and unused equipment was stored in the rear of the premises and in the storage room. The collection of litter and equipment attracts vermin by providing food sources and hiding places. Mr. Hoffman issued a Food Inspection Report at the conclusion of his inspection on January 12, 1990. Respondent was given until January 17, 1990, to correct the major violations noted in Mr. Hoffman's Food Inspection Report, and was advised that a Notice to Show Cause would be issued. The premises were re-inspected by Mr. Hoffman on January 18, 1990, and a Call Back/Re-Inspection Report was issued. Respondent corrected all of the alleged rule violations found on January 12, 1990, except two. Respondent was instructed to provide proper light shields over food surfaces and to clean sides of grills, fryers, and the tops of refrigeration units. A Notice to Show Cause was issued on February 6, 1990, citing the 18 rule violations found to have existed during the inspection conducted by Mr. Hoffman on January 12, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a fine be imposed against Respondent in an amount not to exceed $1,150. In the event that Respondent is unable to pay the fine imposed, it is further recommended that Respondent's license be suspended for a period not to exceed 20 days. RECOMMENDED in Tallahassee, Leon County, Florida, this 21st day of March, 1991. Daniel Manry Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against it, and, if so, the appropriate penalty to be imposed, if any.
Findings Of Fact At all times material hereto, Respondent, Perpulys Sport Bar and Restaurant, has been licensed as a public food service establishment by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants. Respondent is located in Homestead, Florida. Michael Brown, one of Petitioner's inspectors, has extensive experience and education in the food service industry. On July 19, 2006, he inspected Respondent's premises and found a number of violations of public food service establishment rules. He noted these on his inspection report and gave a copy of the report to Respondent. The report noted that the violations must be corrected by August 20, 2006. On August 21, 2006, Brown returned to Respondent's premises to conduct his "callback" inspection. Four critical item violations remained uncorrected, and he noted them in his report. After he had completed his report, one of Respondent's employees placed a thermometer in the cold holding unit which had lacked one during Brown's inspection. However, the exit signs were still not properly illuminated. Exit signs in a food service establishment are required to be clearly illuminated so that patrons will know where to exit the premises if a fire or other emergency should occur. Improperly illuminated exit signs are a critical item violation. Respondent's employees were still touching ready-to-eat food with their bare hands even though the establishment did not have in place an alternative operating procedure approved by Petitioner. Since touching ready-to-eat food with bare hands can lead to serious illness of the business' patrons, this is also a critical item violation. During that same call-back inspection, raw animal food was stored over ready-to-eat food, specifically, raw steak was stored over cooked shrimp. Since such storage can lead to cross-contamination, which can lead to serious illness of the business' patrons, this is also a critical item violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of three critical item violations, imposing a fine of $1,500 to be paid within 30 days, and requiring Respondent to attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 17th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 17th day of May, 2007. COPIES FURNISHED: William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Soco Salgado Perpulys Sports Bar & Restaurant 113 South Homestead Boulevard Homestead, Florida 33030
The Issue The issue in this case is whether the Respondent, Rosarios II Italian Restaurant (Respondent), committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2008). At all times material to the allegations of this case, the Respondent operated as a public food service establishment subject to the Petitioner’s jurisdiction (See Petitioner’s Exhibit 1). The Respondent's license number is 1617840. In his capacity as an inspector and as a sanitation and safety supervisor for the Petitioner, Sean Grofvenor visited the Respondent’s place of business (12691 West Sunrise Boulevard, Sunrise, Florida) on November 13, 2007. On that date, the violations, more fully described in the inspection report of that date, (Petitioner's Exhibit 2) warranted the closure or emergency order of suspension of license for the establishment. The Respondent was made aware of the violations and the Petitioner announced that it would come back in 24 hours to reassess the closure. The closure was deemed appropriate to protect the public. The 24-hour call-back inspection was provided to reassess the "critical" problems depicted in the inspection report. The November 13, 2007, inspection report described the following "critical" violations: Live and dead roaches present at the establishment; Ready-to-eat food prepared on site and held more than 24 hours without proper date and time tagging; A hand-wash sink lacked proper drying provisions by the dish machine; Uncovered food was discovered in a holding unit, the dry storage area, and in a walk-in cooler; and Soiled gaskets at numerous stations within the food preparation areas. After the 24-hour call-back inspection was completed, the Respondent was allowed to reopen but was advised that a second follow up inspection would be performed. The Respondent was given until January 14, 2008, to correct all of the violations previously identified and described in the inspection report of November 13, 2007. Robert Becker is a sanitation and safety specialist employed by the Department. He accompanied Mr. Grofvenor on the November 13, 2007, inspection of the Respondent's establishment and assisted in the compilation of the violations noted in the first inspection report. Inspector Becker performed a call-back inspection of the Respondent's establishment on January 17, 2008. This final call-back inspection report (Petitioner's Exhibit 3) described the violations that remained uncorrected. The Department uses the terms "critical" and "non- critical" to describe violations of the "Food Code." The "Food Code" as it is used in this record, refers to paragraph 1- 201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C- The Food Code is also available through the U. S. Food and Drug Administration Internet website. "Critical" violations of the Food Code are conditions that, if not corrected, could lead to food contamination, food borne illness, or environmental degradation. A "non-critical" violation relates to a preventative measure or practice to keep the environmental conditions of food preparation and service in proper order. If not corrected, a "non-critical" violation has the potential to become a "critical" situation. When Inspector Becker returned to the Respondent's establishment on January 17, 2008, the critical violations described in paragraph 4 were not fully corrected. For example, Inspector Becker observed roach activity within the kitchen of the Respondent's establishment. Roach activity is considered a critical violation as roaches are a direct contributor to the contamination of food and the spread of bacteria and disease. Inspector Becker documented the number and location for each roach discovered at the site. Additionally, Inspector Becker observed unmarked ready-to-eat food that was not appropriately tagged. Date marking ready-to-eat food is necessary to prevent spoilage and the growth of bacteria. Foods may only be held at designated temperatures and within certain conditions for a limited time period. If left unmarked, it is impossible to discern whether the guidelines have been met. Third, Inspector Becker found the hand wash sink lacked proper drying provisions. Although a repeat violation from the previous inspection, the Respondent corrected this violation on site. The fourth critical violation related to uncovered food in holding situations. Food must be properly covered to prevent exposure to contamination. Whether in a walk-in cooler or other station, food must be covered. Sauces and pasta are considered "food." The final critical violation was soiled gaskets on several kitchen appliances or preparation surfaces. Cooler gaskets at the prep reach-in cooler, cooler gaskets at the pizza station, and gaskets near a fryer were dirty or soiled. When gaskets are soiled the mere opening and closing of the device can spread filth and expose food to contaminants. Gaskets must be kept clean and free of all potential contaminants. In addition to the foregoing, there were several non- critical violations of a preventative nature that the Respondent failed to correct. These violations could easily be corrected and did not pose an immediate threat to the public. For example, a restaurant employee without hair restraint is easily corrected. In testifying for the Respondent, Mr. Pierre Louis maintained that while the inspection report of November 13, 2007, was correct, he had since made the corrections necessary to bring the restaurant into compliance. Those corrections were not, however, completed before January 17, 2008. Mr. Pierre Louis described difficulty finding replacement gaskets for the equipment. The inference being that the gaskets could not be cleaned but had to be replaced. Mr. Pierre Louis did not advise the Department of the difficulty in making the replacements until the time of hearing. The Respondent was given over 60 days within which to make the necessary corrections. The Respondent did not correct the roach problem between November 13, 2007, and January 17, 2008, despite its representation that it had hired an extermination company to address the problem. Roach presence is a critical violation that cannot go unattended or inadequately treated.
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 $3,500.00. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper sanitary measures are adopted at the restaurant. DONE AND ENTERED this 26th day of September, 2008, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 26th day of September, 2008. COPIES FURNISHED: Ned Luczynski, 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 Cheri-ann Granston Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ernst Pierre Louis Rosarios II Italian Restaurant 12691 West Sunrise Boulevard Sunrise, Florida 33323
The Issue The issues in DOAH Case No. 10-1704 are whether Respondent, Stacked Subs (Respondent), committed the violations alleged in the Administrative Complaint dated November 5, 2008, and, if so, what penalty should be imposed. Similarly, the issues in DOAH Case No. 10-2445 are whether Respondent committed the violations alleged in the Administrative Complaint dated June 24, 2009, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating hotels and restaurants within the State of Florida regarding health and safety codes. See § 509.032, Fla. Stat. (2009). At all times material to the allegations of these cases, Respondent operated as a public food service establishment subject to Petitioner’s jurisdiction. In his capacity as an inspector for Petitioner, Alfonso Rullan visited Respondent’s place of business (2054 State Road 436, Winter Park, Florida) on December 19, 2007. During the inspection, Mr. Rullan noted several food service violations that he memorialized in an inspection report provided to, and signed by, Mr. Nevarez. The violations, more fully described in Petitioner's Exhibit 2, required correction. It was contemplated that Respondent would correct the violations of the Food Code such that on second inspection the violations would no longer be found. Since the inspection revealed “critical” violations, it was incumbent on Respondent to timely correct the violations noted in the inspection report. “Critical” violations are violations that, if left uncorrected, can contribute to food contamination, food-borne illness, or adversely affect public health. Thus, “critical violations” must be timely corrected, as they are a present concern. Violations that could lead to critical violations are denoted as “non-critical.” These “non- critical” violations must also be corrected, but they do not constitute a present threat to the public On March 12, 2008, Inspector Will Goris returned to Respondent’s place of business and completed a second inspection report, denoting critical violations uncorrected from the prior inspection and itemizing the concerns that required correction. Mr. Nevarez signed the report. This report, Petitioner’s Exhibit 3, chronicled ten violations of the Food Code. Subsequently, Petitioner issued an Administrative Complaint (DOAH Case No. 10-1704), outlining the uncorrected and critical violations Respondent had failed to timely address. Respondent timely contested the complaint and sought an administrative hearing in connection with the allegations. Between December 2007 and March 12, 2008, Respondent failed to correct the following violations: Cheese in the reach-in cooler at the front counter was 51 degrees; Employees reported to work and handled food without first washing hands; The prep table was adjacent to the fryers and under the hood was encrusted and greasy; and Single service cups were stored on the floor by the register. Of the foregoing violations, the failure of employees to wash their hands prior to handling food was the most critical violation. This violation was noted by both inspectors. On January 26, 2009, Inspector Goris conducted a routine inspection of Respondent’s premises. On this date, minor violations of the Food Code were again noted, but Mr. Nevarez was given a “met inspection standards” review for this visit. Nevertheless, Petitioner expected Respondent to correct the non-critical violations in a timely manner. On June 17, 2009, when Inspector Goris presented at the restaurant, violations were discovered that led to the second Administrative Complaint, DOAH Case No. 10-2445. Two of the violations were deemed repeat violations, and two were critical violations directly related to public safety; to wit: the soda disperser had slime on it, and proof of employee food- handler training was not available. Respondent timely challenged the Administrative Complaint in DOAH Case No. 10-2445. As to all alleged violations, Respondent was provided adequate notice of the allegations and was provided sufficient time to correct deficiencies. Respondent maintains that inspectors should be trained in abuse of power as their inspections can be discretionary and arbitrary. For example, Respondent claimed that the sleeve of cups on the floor by the cash register had merely fallen there when the inspector cited the violation. Respondent’s claim of abuse of power was unsupported by factual evidence. Moreover, the inspections performed by both inspectors documented objective criteria unrelated to opinion or subjective review. For example, dirty, greasy, or encrusted food surfaces were documented. The failure of employees to wash their hands was documented. The inadequate or incorrect temperature of containers of food was documented. These are not subjective items, but were disclosed to Respondent during and at the time of inspection. It is determined that the inspectors’ testimony was credible and persuasive as to the violations cited. The "Food Code," as it is used in this record, refers to paragraph 1-201.10(B), Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, and Chapter 7 of the Food Code, 2001 Recommendations of the United States Public Health Service/Food and Drug Administration including Annex 3: Public Health Reasons/Administrative Guidelines; Annex 5: HACCP Guidelines of the Food Code; the 2001 Food Code Errata Sheet (August 23, 2002); and Supplement to the 2001 FDA Food Code (August 29, 2003). The Food Code has been adopted by the Department by rule. See Fla. Admin. Code R. 61C-1.001. The Food Code is also available through the U.S. Food and Drug Administration Internet website.
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 Respondent in the amount of $1,750.00 for the violations listed in DOAH Case No. 10-1704 and $1,000.00 for the violations identified in DOAH Case No. 10-2445. The Respondent should also be required to attend training for a better understanding of the requirements of the Food Code to assure that proper guidelines are adopted and implemented at the restaurant. DONE AND ENTERED this 5th day of October, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 5th day of October, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida Carlos Nevarez Stacked Subs 32399 2054 State Road 436 Winter Park, Florida 32792 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 The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated June 27, 2011, 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 1620035. At all times material hereto, the Restaurant was located at 1145 South Federal Highway, Fort Lauderdale, Florida 33316. A critical violation in food service is considered to be a violation of the Food Code that, if not corrected, will most likely cause and is directly related to food-borne illness, food contamination, or environmental hazards. A non-critical violation in food service is considered to be a violation that is less likely to cause and will not directly contribute to food-borne illness or food contamination. On October 27, 2010, Lynden Lewis, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Lewis found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Lewis prepared a food inspection report, setting forth the alleged violations and that the violations were required to be corrected by the next unannounced inspection. The inspection report was signed by Inspector Lewis and a representative of the Restaurant. Inspector Lewis made the representative aware of the alleged violations and that the violations were required to be corrected by the next unannounced inspection, and he provided the representative with a copy of the inspection report. On June 16, 2011, Inspector Lewis and Begum Khatoon, an inspector with the Department, conducted an unannounced routine inspection of the Restaurant. Among other things, three critical violations were not corrected from the routine inspection of October 27, 2010. During the unannounced inspection, Inspector Khatoon prepared a food inspection report, setting forth, among other things, the alleged critical violations. The unannounced inspection report was signed by Inspector Khatoon and a representative of the Restaurant, and Inspector Khatoon provided the representative with a copy of the inspection report. Inspector Khatoon made the representative aware of the alleged violations and that an administrative complaint would be recommended. The most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was raw animal food was stored over ready-to-eat food--raw eggs were being stored over yogurt--in the reach-in cooler. This violation is critical because the ready-to-eat food (yogurt) has already been cooked and gone through the process of pathogenic destruction and will not go through that process again; whereas, the raw animal food (eggs) has not been cooked and not gone through the process of pathogenic destruction. Cross-contamination could occur from the raw animal food by dripping onto or touching of the ready-to-eat food, and any pathogens present on the ready-to-eat food, as a result of the cross-contamination, would pass-on to consumers when the ready-to-eat food is served. Mr. Rocchio's testimony that eggs are stored on the bottom of the refrigerator (reach-in cooler) is found to be credible; however, most importantly, the evidence fails to show that, on the day of the inspection, eggs were stored on the bottom of the refrigerator. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was the hand wash sink in the kitchen was not accessible for employee use at all times. A garbage can was placed in front of the hand wash sink in the kitchen, making the sink inaccessible to employees at all times to wash their hands. Even though Mr. Rochhio testified, and his testimony is found to be credible, that the garbage can was "not a large garbage can," the evidence fails to show, most importantly, that the garbage can did not cause the hand wash sink to be inaccessible to the employees at all times. This violation is a critical violation because the hands of employees become contaminated as employees work and, if the handwash sink is not accessible, the employees will be discouraged from washing their hands. The next most serious alleged critical violation, which had been found on October 27, 2010, and was not corrected by June 16, 2011, was handwashing cleanser was lacking at the hand washing lavatory in the kitchen. This violation is a critical violation because hands are a vehicle of contamination, and the use of soap by employees, when washing their hands, removes bacteria and viruses that can contaminate the employees' hands.
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 Valentinos Cucina Italiana violated section 509, Florida Statutes, through a violation of Food Code Rules 3-302.11(A)(1), 5-205.11(A), and 6-301.11; and Imposing an administrative fine in the amount of $750.00 against Valentinos Cucina Italiana. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 25th day of July, 2012.
The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact No Name Pub holds a Permanent Food Service license 5400281, for operation of a public food establishment on Watson Boulevard, Big Pine Key, Florida. On April 16, 2009, at 11:58 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. The inspector cited the following violations, among others: 1) failure to provide the required consumer advisory for food that is raw, undercooked, or not otherwise processed to eliminate pathogens; 2) use of working food containers without label as to contents; 3) failure to provide hot water at employee hand wash sink; and 4) failure to provide handwashing cleanser at handwashing lavatory. At the time of this inspection, Respondent corrected the first, third, and fourth violations in the presence of the inspector. On December 7, 2009, the inspector performed another routine inspection of the public food establishment. Among other things, the inspector observed the recurrence or continuation of the four violations described in the preceding paragraph. The four violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause foodborne illness. Respondent's testimony, even if credited, does not rebut the violations with the exception of the first violation-- the lack of a consumer advisory. Twice, a trained inspector could not find such a warning. The testimony offered by Petitioner is credited over that offered by Respondent.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the four violations identified above and imposing an administrative fine of $1600 on Respondent. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 26th day of July, 2011. COPIES FURNISHED: William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Douglas P. Leps No Name Pub Post Office Box 430818 Big Pine Key, Florida 33043
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint dated December 2, 2009, 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 2323257. At all times material hereto, the Restaurant was located at 762 Northwest 183rd Street, Miami Gardens, Florida 33169. A critical violation in food service is considered to be a violation that, if not corrected, is directly related to food-borne illness, food contamination, or health risk. A non-critical violation in food service is considered to be a violation that, if not corrected, can become a critical violation. On August 14, 2009, Daniel Unold, an inspector with the Department, conducted a routine inspection of the Restaurant. During the inspection, Inspector Unold found violations, which were considered to be critical and non- critical violations. Further, during the inspection, Inspector Unold prepared a food inspection report, setting forth the alleged violations and the date for the callback inspection, which was October 14, 2009. The inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations and that the violations had to be corrected by the callback date of October 14, 2009, and he provided the representative with a copy of the inspection report. On October 19, 2009, Inspector Unold performed the callback inspection. Among other things, four critical violations were not corrected from the routine inspection of August 14, 2009. During the callback inspection, Inspector Unold prepared a food callback inspection report, setting forth, among other things, the alleged critical violations. The callback inspection report was signed by Inspector Unold and a representative of the Restaurant. Inspector Unold made the representative aware of the alleged violations. The most serious alleged critical violation, which had been found on August 14, 2009, and was not corrected by October 19, 2009, was no certified food manager for the Restaurant. This violation is critical because it is necessary for the person operating a food service establishment to be knowledgeable regarding food contamination, hygiene, cloth contamination, and food-related diseases. That person is a certified food manager, and the certification process requires class training and a test. The next most serious alleged critical violation not corrected by October 19, 2009, was no proof of required employee training. This violation is a critical violation because it is necessary for every food service employee to have basic knowledge regarding hand washing and food contamination. The next most serious alleged critical violation not corrected by October 19, 2009, was the hand wash sink lacking the proper hand drying provisions. This violation is a critical violation because hand drying is an important part of the hand washing procedure, and, if not performed correctly, it is as if hand washing had not occurred at all. The next most serious alleged critical violation not corrected by October 19, 2009, was the Restaurant operating without a current Hotel and Restaurant license. The new owner of the Restaurant, Elise Benabe, had not completed a change of ownership application. This violation is a critical violation because the State of Florida requires all public food service establishments to be licensed.
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 Five Star Haitian Restaurant violated Florida Administrative Code 61C-4.023(1), Section 509.049, Florida Statutes (2009), Food Code Rule 6-301.12, and Section 509.241(2), Florida Statutes (2009); and Imposing an administrative fine in the amount of $1,875.00 against Five Star Haitian Restaurant. DONE AND ENTERED this 6th day of December, 2010, in Tallahassee, Leon County, Florida. S 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 6th day of December, 2010. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Louise Wilhite-St Laurent, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elise Benabe Five Star Haitian Restaurant 762 Northwest 183rd Street Miami Gardens, Florida 33169 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Louise Wilhite-St Laurent Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-220
The Issue Whether Respondent committed the following acts alleged in the Administrative Complaint, dated August 22, 2006, and, if so, what penalty should be imposed: A violation of Food Code, Rule 2-301.14, on April 11, 2006, and July 19, 2006, by employees failing to properly clean their hands before engaging in food preparation. A violation of the Florida Administrative Code Rule 61C-1.004(6), on April 11 and July 19, 2006, by failing to repair a water leak in the restaurant's storeroom. A violation of the Food Code, Rule 6-202.11, on April 11 and July 19, 2006, by failing to provide protective shielding around light bulbs in the restaurant's storeroom and in one food preparation area.
Findings Of Fact Petitioner is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes. Respondent is a public food service establishment that operates in the State of Florida, under Petitioner's license number 4602269, at 1245 West Homestead Road, Lehigh Acres, Florida 33936-6003. Darlene Tregunno is the owner/operator of McDonald's No. 6303. She owns the restaurant through her corporation, Arch Restaurants, Inc. Fields is employed by Petitioner as the Deputy District Manager of the Fort Myers District. She has been working in this position for approximately three years and has been working for the Petitioner for more than 16 years. On April 11, 2006, at 8:30 a.m., Fields visited McDonald's No. 6303, operating at 1245 West Homestead Road, Lehigh Acres, Florida 33936, for the purpose of performing a routine food service inspection. Fields noted numerous violations on an Inspection Report prepared that day. It included the observation that one employee was observed coughing into his or her hand and then putting a glove on without washing first. Fields provided the on-duty manager with a copy of the report and notified Respondent that a call-back inspection would be conducted. On July 19, 2007, at 9:16 a.m., Fields conducted a call-back inspection at McDonald's No. 6303. At the time of the call-back inspection, Fields observed an employee changing gloves without washing his or her hands. This, along with the prior incident where an employee coughed into his or her hand and put on gloves without washing first, is considered a critical violation of the Food Code by Petitioner. Critical violations are violations that cause an imminent threat to a customer or an employee of a food service establishment. At the time of the call-back inspection, six ceiling tiles were missing and in disrepair in the storeroom, and water was dripping from the ceiling onto the floor. In addition, at the time of the call-back inspection, light shields were missing in the store and in one food preparation area. Respondent was cited for violations to the Food Code under Rules 2-301.14 and 6-202.11, and for a violation of Florida Administrative Code Rule 61C-1.004(6). Respondent does not deny any of the allegations. However, Respondent trains new employees in food safety. Respondent promotes a policy whereby all employees are told to wash their hands hourly and after performing activities that could otherwise lead to food contamination. Respondent attempted to hire a contractor to repair the leak in the storeroom and to replace the missing and damage ceiling tiles. However, due to storm damage in the area, a contractor was not hired until September, 2006. Respondent tried to hire a contractor sooner, but could not find anyone who would make the repairs in a timely manner. Also, Respondent was unable to make the repairs herself. The repair work was completed in September of 2006, and is currently in good repair. The missing light shields were replaced after the time of the call-back inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: The Department of Business and Professional Regulations, Division of Hotels and Restaurants enter a final order, as follows: Respondent be found guilty of violating, one count each, Rules 2-301.14 and 6-202.11, Food Code, and Florida Administrative Code Rule 61C-1.004(6); Respondent be assessed an administrative fine in the amount of $300 for each of the violations, for a total of $900; and Respondent be directed to attend an education program sponsored by the Hospitality Education Program. DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 15th day of June, 2007.
