The Issue The issue is whether Respondent violated Section 509.049, Florida Statutes,1/ by using an unapproved food safety training program.
Findings Of Fact Parties The Division is the state agency responsible for licensing and regulating food service establishments pursuant to Part I of Chapter 509, Florida Statutes. Respondent is the owner and operator of a licensed food service establishment located in Tallahassee. FRLA is a trade association that represents the interests of the hospitality and tourism industry in Florida. FRLA’s Interest in this Disciplinary Proceeding One of FRLA’s primary purposes is to educate its members and to promote their compliance with Florida laws. FRLA was involved in the lobbying efforts that led to the passage of Section 509.049, Florida Statutes, which requires all food service employees to undergo food safety training. FRLA owns and administers a food safety training program known as SafeStaff. The SafeStaff program is the food safety training program contracted by the Division pursuant to Section 509.049(2), Florida Statutes. The SafeStaff program has been the state-contracted program since October 2000. As a result of its designation as the state-contracted food safety training program, the SafeStaff program is the only training program -- other than “grandfathered” programs approved under Section 509.049(3), Florida Statutes -- that can be used to train food service employees in Florida. FRLA is authorized to charge a “per employee fee to cover the contracted price for the program.” It was stipulated that the use of an unapproved program to train food service employees adversely impacts FRLA because those employees would likely have otherwise had to use the state-contracted SafeStaff program and pay the per-employee fee to FRLA. Respondent’s Approved Food Service Training Program (1) Submittal, Approval, and Subsequent Non-Use On June 30, 2000, Respondent submitted to the Division for approval a food safety training program that was provided to it by the Florida Restaurant Association (FRA), which is the predecessor to FRLA.2/ Respondent submitted the FRA-provided program pursuant to Section 509.049, Florida Statutes (2000), which stated in pertinent part: Any food service training program established and administered prior to July 1, 2000 shall be submitted by the operator to the division for its review and approval. If the food safety training program is approved by the division, nothing in this section shall preclude any other operator of a food service establishment from also utilizing the approved program or require the employees of any operator to receive training or pay a fee to the division’s contracted provider. The program submitted by Respondent was called SafeStaff, just like FRLA’s current program. The program consisted of the ServSafe program prepared by the National Restaurant Association Educational Foundation along with sections on food-borne illnesses and vermin control that were required by Florida law but were not addressed in the ServSafe program. The program submitted by Respondent was established prior to July 1, 2000, and was administered to Respondent’s food service employees on June 29 and 30, 2000. The Division approved the program submitted by Respondent in a letter dated December 1, 2000. The letter stated in pertinent part: The Division of Hotels and Restaurants has reviewed the food safety program submitted pursuant to Section 509.049, Florida Statutes, and has determined that it is in substantial compliance with the standards and criteria adopted by the Division for food safety training. This program is therefore approved for utilization by any public food service establishment for the required training of its food handler employees, subject to the following conditions: * * * 4. The food safety training curriculum areas may not be deleted or reduced, but must continue to meet or exceed the food safety training standards established by the Division, as amended from time to time. (Emphasis supplied). Thus, as of December 1, 2000, the program submitted by Respondent was considered an approved, or “grandfathered,” program that could be used to train food service employees in lieu of the state-contracted program. In 2004, the Legislature amended Section 509.049, Florida Statutes, to require providers of approved food safety training programs to submit certain information to the Division when the program is used to train employees of other food service establishments. This reporting requirement does not apply when the provider uses its approved program to train its own employees. The 2004 amendments to Section 509.049, Florida Statutes, also established a deadline for submitting food service training programs for approval as a grandfathered program. Specifically, subsection (3) of the statute was amended to require the program to be “submitted by the operator or the third-party provider to the division for its review and approval on or before September 1, 2004.” The Division assigned a unique “Provider ID Number” to each approved food safety training program to be used by the provider when reporting the required training information to the Division. Respondent’s approved program –- the FRA-provided SafeStaff/ServSafe program submitted by Respondent on June 30, 2000, and approved by the Division on December 1, 2000 -- was assigned Provider ID Number 7148473. Respondent never used its approved training program to train its own employees. Instead, it purchased the training programs from FRA and FRLA or it hired employees who had already undergone training at a culinary school. Respondent never used its approved training program (or any other training program) to train employees of other food service establishments, as more fully discussed in Part C(4), below. (2) Sale of the Program to FAMOS In May or June 2008, Respondent was approached by Rick Wallace, the president of FAMOS, about purchasing Respondent’s approved training program. Respondent’s owner, Eric Favier, did not know that Respondent even had an approved program when he was first approached by Mr. Wallace. Indeed, Mr. Favier credibly testified that after the program was approved, it was “put into a drawer” and forgotten about. Mr. Favier relied upon Mr. Wallace’s representations that Respondent had an approved program, and he agreed to sell the program to FAMOS because Respondent was not using, and had no use for, the program. On July 1, 2008, Respondent and FAMOS executed a document titled “Sale Agreement for Licensure of Florida Approved Food Safety Program” (hereafter “the Sale Agreement”) pursuant to which Respondent agreed to sell “the entire license rights and ownership of [its] Florida approved employee food safety training program” to FAMOS. The Sale Agreement required Respondent to “release all ownership and licensing rights of [the] Program commencing at the signing of this agreement.” The agreement further provided that “payment of 10% of the Gross Profit[3/] shall constitute she complete sale of the food safety training program.” The Sale Agreement included a confidentiality provision that precluded the parties from disclosing any of the terms of the agreement. The confidentiality provision was removed through an “Addendum to Sale Agreement” dated October 27, 2008. Respondent has not yet received any money from FAMOS for the sale of the program. However, Mr. Favier testified that he expects to receive money in the future once FAMOS starts earning a profit from the sale of the program. There is no statute, rule, or Division policy that precludes the owner of an approved program from selling the program. Nor is there any statute, rule, or Division policy precluding the purchaser of the program from using the program to train employees of any food service establishment. Respondent was not involved in any way with the use of the program after it was sold to FAMOS. Indeed, on this point, Mr. Favier credibly testified “when I sold the program to Mr. Wallace, I sold it, so I have no idea what he did with it.” It was not until October 28, 2008 (the day after the confidentiality provision was removed from the sale agreement), that the Division was first informed that Respondent’s approved program had been sold to FAMOS. And, it was not until December 12, 2008 (several weeks after the filing of the Administrative Complaint and several days after the filing of Respondent’s petition for hearing4/), that the Division was first provided a copy of the Sale Agreement. The Division has not formally recognized the change of ownership of the program through, for example, an amended license or Provider ID Number issued to FAMOS, and no clear request for such agency action has been made by Respondent or FAMOS. Thus, even though as discussed below, the contact information for the Respondent’s approved program is that of FAMOS, the Division still considers Respondent to be the licensee of record for the program. (3) “Branding” of the Program as TrainSafe On September 24, 2008, Mr. Wallace sent an e-mail to the Division stating: We are in the process of promoting Chez Pierre’s approved food safety program which has been named TrainSafe. How can we add to the Chez Pierre approved list line the name of the program? (Emphasis supplied). Mr. Wallace did not inform the Division that FAMOS had purchased Respondent’s approved training program, nor did he request that Provider ID Number 7148743 be transferred from Respondent to FAMOS. The Division staff advised Mr. Wallace that the request must come from Respondent on its letterhead because Respondent was the license holder for the program. On or about October 13, 2008, the Division received a letter from Mr. Favier on Respondent’s letterhead. The letter was handwritten by Mr. Favier, but the substance of the letter was provided to him by Mr. Wallace. Mr. Favier’s letter stated in pertinent part: Chez Pierre’s proprietary approved food safety program has been branded as TrainSafe® and is being marketed to the restaurant industry in Florida. (Emphasis supplied). Please add the Trainsafe® name to Chez Pierre’s name on the approved food safety list. Please replace Karen Cooley with Rick Wallace as the provider contact . . . . Mr. Favier did not inform the Division that Respondent had sold its approved training program to FAMOS, nor did he request that Provider ID Number 7178743 be transferred from Respondent to FAMOS. The record does not clearly establish why Mr. Wallace and/or Mr. Favier did not inform the Division of the sale of Respondent’s approved program to FAMOS. However, the inclusion of the confidentiality provision in the Sale Agreement suggests a specific intent to keep the facts concerning the sale from third-parties, including the Division. On October 16, 2008, the Division updated its list of approved food safety training programs to change the designation of Respondent’s approved program from “Chez Pierre” to “Chez Pierre/TrainSafe” and to change the contact information for the program to that of FAMOS. The Division made this change without reviewing any documents associated with the TrainSafe program because it had no reason to believe at the time that the “branding” of Respondent’s program as TrainSafe was anything more than a renaming of the program. Indeed, that is all that it was represented to be by Mr. Wallace and Mr. Favier in their communications with the Division. On November 12, 2008, FRLA filed a petition challenging the addition of the TrainSafe name to the Division’s list of approved food safety training programs. FAMOS was permitted to intervene in that case, DOAH Case No. 08-5839, based upon the allegation that it was the owner of Respondent’s approved food safety training program. On or about December 1, 2008, while the case was still pending at DOAH, the Division removed the TrainSafe name from the list of approved food safety training programs. The Division did not change the contact information for the program on the list back to Respondent’s address.5/ The contact information remained that of FAMOS, and, as result, any communications from the Division relating to the program would have gone to FAMOS, not Respondent. On December 11, 2008, the attorney for Respondent and FAMOS sent a letter to the Division formally withdrawing Mr. Favier’s request that the TrainSafe name be added to Respondent’s name on the Division’s list of approved food safety training programs. Thereafter, on December 17, 2008, the file in DOAH Case No. 08-5839 was closed as moot. The Order Closing File stated in pertinent part: The proposed agency action that [FRLA] sought to influence through its Petition for Administrative Hearing was [the Division]’s approval of Chez Pierre’s request to add the TrainSafe name to its name on [the Division]’s approved food safety training provider list. The request that resulted in that proposed agency action has been withdrawn, which, as acknowledged by [FRLA] it its response to the motion, “has the effect of negating [the Division]’s proposed agency action granting Chez Pierre’s request.” There is no additional relief that can be granted to [FRLA] in this proceeding and, therefore, this case is moot. (4) Use of the Program’s Provider Number by FAMOS The first instance of Provider ID Number 7148473 -- the number assigned to Respondent’s approved food safety training program -- being used to train food service employees was on October 11, 2008, which is more than three months after the Sale Agreement was executed by Respondent, but prior to the addition of the TrainSafe name to the Division’s list of approved food safety training programs. Provider ID Number 7148473 was reported to the Division as the “provider” of the training for a total of 166 food service employees at 26 different establishments between October 11, 2008, and January 29, 2009. The name of the program reported for each of the 38 employees trained between October 11 and November 18, 2008, was “TrainSafe.” The names of the programs reported for the 26 employees trained between November 21 and 24, 2008, were “TrainSafe” (11 employees) and “Chez Pierre” (15 employees). The name of the program reported for each of the 102 employees trained after November 24, 2008, was “Chez Pierre.” The training of these food service employees was provided by, or pursuant to training programs sold to the establishments by, FAMOS. There is no credible evidence that Respondent was involved in any way in the training of these food service employees. The TrainSafe Program as an “Approved Program” The TrainSafe program purports to be “a revision of the approved food safety program listed as Chez Pierre on the approval list with the state . . . . State Provider No. 7148473.” The TrainSafe program meets the minimum standards established in the Food Code. There is no statute, rule, or Division policy that limits the revisions to the style, content or presentation of an approved program so long as the program continues to meet the minimum standards established in the Food Code. Nevertheless, the Division staff determined that the TrainSafe program is not merely a revision of Respondent’s approved food service training program, but rather an entirely different program than the program submitted by Respondent and approved by the Division in 2000. This determination was based primarily upon the differences in language, layout, and format between the two programs. When asked to explain the dividing line between a permissible revision/update to an approved program and an impermissible conversion to a different program, Division witness Richard Akin6/ logically testified: What I would typically look at as a revision is when the food code is updated. To give you an example, hot water was originally defined as 110 degrees, it has been subsequently redefined as 100 degrees, so that would be a revision to meet the food code. There’s also -- at one point hot food was supposed to be held at 140 degrees, it’s now held at 135, so that revision would need to be into any approved training program. THE COURT: What about the reformatting component? What -- where is the dividing line between permissible reformatting and impermissible, using my words, impermissible changing of programs? THE WITNESS: The Division doesn’t really have a policy on that. We would just look at the statute, and there’s nothing that’s stated in there. This testimony is consistent with the December 1, 2000, letter approving the FRA-provided program submitted by Respondent. The letter implicitly recognizes a distinction between the specific program –- “this program” – that was determined to meet the requirements for grandfathering and the program’s “curriculum areas” that must be updated to reflect the periodic changes in the minimum standards in the Food Code. Even a cursory review of the TrainSafe program (Joint Exhibit 12) and the program submitted by Respondent and approved by the Division in 2000 (Joint Exhibit 1) support the Division staff’s determination. The only similarities between the programs are the subjects covered. The wording, layout, format, order of presentation, test questions, theme, pictures, and diagrams used in the programs are entirely different. Every food safety training program must meet the minimum standards established by the current edition of the Food Code, so the fact that the TrainSafe program addresses the same subjects as did Respondent’s approved program is not determinative as to whether it is the same program. The TrainSafe program, as such, was not in existence prior to July 1, 2000. The TrainSafe program, as such, was not administered to food service employees prior to July 1, 2000, nor was it submitted to and approved by the Division prior to September 1, 2004, as required for grandfathering under Section 509.049(3), Florida Statutes. The conversion of Respondent’s grandfathered food safety training program into the TrainSafe program had the effect of transforming Respondent’s approved program into an unapproved program because the program, in its current form (i.e., as TrainSafe), no longer meets the requirements of Section 509.049(3), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 15th day of April, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2009.
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.
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 Whether Respondent violated food safety standards established by section 509.032, Florida Statutes, and the implementing rules as charged in the Administrative Complaint and, if so, the appropriate sanctions.
Findings Of Fact At all times material hereto, Respondent operated a licensed permanent public food service establishment known as The Patio, located at 626 North Dixie Freeway, New Smyrna Beach, Florida. Respondent holds License No. SEA7403397. The Division is responsible for monitoring and inspecting licensed food service establishments to ensure that they comply with the standards set forth in relevant statutes and rules, and the Food Code. On May 8, 2012, Renee Pichardo, a Sanitation and Safety Specialist for the Division, who was accompanied by Kim Pleicones, a Senior Sanitation and Safety Specialist for the Division, conducted a food service inspection of Respondent?s food service establishment. Both inspectors have received training in sanitation and inspection procedures, and are sufficiently competent and experienced to perform the duties described herein. Among items subject to the inspection was the temperature at which foods were being held in Respondent?s coolers. Ms. Pleicones used a thermapen thermometer to determine whether foods were being held at temperatures that met safety standards under the Food Code. A thermapen thermometer is a probe that is inserted into foods to take internal temperatures. After the probe is inserted, a reading of the temperature is digitally displayed. After measurements were taken of various foods kept in Respondent?s coolers, Ms. Pleicones showed the thermometer to Ms. Pichardo, who entered the displayed information on her personal data assistant (PDA) Food Service Inspection Report form. Ms. Pichardo observed that Respondent had potentially hazardous cold food held at greater than the Food Code required 41 degrees Fahrenheit in the “cook-line” cooler. She noted that half-and-half was being held at 51 degrees Fahrenheit, crab salad was being held at 50 degrees Fahrenheit, melon was being held at 47 degrees Fahrenheit, and pasta was being held at 46 degrees Fahrenheit. The Food Service Inspection Report prepared for the May 8, 2012, inspection indicated that the food in the “cook- line” cooler was “[m]oved to another cooler.” As a result of her temperature measurements, Ms. Pichardo determined that the “cook-line” cooler was not capable of maintaining cold foods at their proper temperature. Ms. Pichardo entered the violations regarding food temperatures and cooling equipment, along with several others that are not material to this proceeding, on the Food Service Inspection Report. Respondent?s owner, Don Midland, was not at the establishment during the May 8, 2012, inspection. The report was therefore reviewed and signed by Eric Simpson, Respondent?s manager. The report established July 8, 2012, as the date for a call-back inspection, by which time the violations were to be corrected. On July 10, 2012, Ms. Pichardo and Ms. Pleicones performed the call-back inspection. Mr. Midland was in attendance at the call-back inspection. Using the same procedures used on May 8, 2012 for measuring food temperatures, Ms. Pichardo observed that Respondent continued to have potentially hazardous cold food held at greater than 41 degrees Fahrenheit in the “cook-line” cooler. She noted that heavy cream was being held at 52 degrees Fahrenheit, cheese was being held at 50 degrees Fahrenheit, chicken was being held at 50 degrees Fahrenheit, crab mix was being held at 58 degrees Fahrenheit, and melon was being held at 50-51 degrees Fahrenheit. As a result of her temperature measurements, Ms. Pichardo determined that the “cook-line” cooler was still not capable of maintaining cold foods at their proper temperature. Ms. Pichardo prepared a Call-Back Inspection Report using her PDA to record the food temperature and cooling equipment violations that she observed. Mr. Midland signed the report acknowledging receipt. The Division has determined that the failure to maintain cold food at proper temperatures during storage, display or service, poses a significant threat to the public health, safety, or welfare due to the greater likelihood that it will produce food-borne illnesses by contamination or health hazards. The Division has therefore identified such failure as a critical violation. That determination is reasonable and is accepted. The Division has determined that the failure of cooling equipment to operate so as to maintain cold foods at their proper temperature to pose a significant threat to the public health, safety, or welfare. The Division has therefore identified such failure as a critical violation. Mr. Midland described the “cook-line” cooler at issue1/ as being open at the top, and located close to the stoves. It is used for cooking and salad supplies, and is replenished from food supplies kept in other coolers as needed. Mr. Midland indicated that cold foods kept in the cooler are “never in the danger zone longer than . . . two hours.” Respondent?s establishment has at least three major coolers located in the kitchen area, including a reach-in cooler on the cook-line itself, and a large cooler and several chest freezers in an outdoor shed. The reach-in cooler on the cook- line is used to hold cold foods, and to replenish the “cook- line” cooler as its stock is used in preparation of meals. The food kept in the other coolers met the temperature standards established by the Food Code. Mr. Midland expressed his disagreement with the manner in which the temperatures were being taken during the July 10, 2012, inspection. He indicated that he complained to Ms. Pleicones that she was not inserting the thermapen probe deep enough into the “stuffing” to accurately gauge the temperature. Ms. Pleicones testified that a shallow depth may be appropriate because the purpose of the inspection is to “get the surface temperature besides the total internal temperature.” She further stated that the thermapen probe has “dimples” that establish the depth to which the probe is to be inserted, and that she inserted the thermapen probe to the “dimples.” She measured the foods in all of the coolers at Respondent?s establishment the same way. Only food in the “cook-line” cooler was found to be above the 41 degree Fahrenheit temperature required by the Food Code. Mr. Midland stated his belief that the Division?s thermapen thermometer was not correctly calibrated. Ms. Pleicones testified that the thermapen thermometer is calibrated weekly to ensure accuracy. The fact that only the “cook-line” cooler showed exceedances of the food temperature standard, with the food kept in the establishment?s other coolers found to have met the standard, and the consistency of the temperatures measured during the May 8, 2012 and July 10, 2012, inspections is persuasive evidence that the thermapen thermometer accurately measured the food temperatures in the various coolers. Mr. Midland is a well-trained and experienced chef. He has been the sole owner of The Patio for approximately 20 years. His record of compliance with the Food Code is good, there being no evidence of any previous violations at The Patio. In his post-hearing submittal, Respondent made certain characterizations regarding the testimony of witnesses in this proceeding. Those characterizations are not accepted.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order: Finding that Respondent, Patio (The), violated section 509.032(2)(d), and section 3-501.16 of the Food Code, adopted by Florida Administrative Code Rule 61C-1.001(13), as alleged in count 1 of the Administrative Complaint; Finding that Respondent, Patio (The), did not violate section 509.032(2)(d), and section 4-301.11 of the Food Code, as alleged in count 2 of the Administrative Complaint; Applying a mitigating factor based on the 20-year length of time that Respondent has been in operation without incident; and Imposing an administrative penalty against Respondent, Patio (The), in the amount of $200, payable to the Division within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 12th day of April, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2013.
