The Issue Whether the Respondent, Michelle's Café, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating public food service establishments operating within the State of Florida. See §§ 509.032 and 509.261, Florida Statutes (2007). At all times material to the allegations of this case the Respondent, Michele’s Café, was a licensed public food establishment governed by the provisions of Chapter 509, Florida Statutes (2006). The Respondent’s address of record is 299 East Broward Boulevard, Fort Lauderdale, Florida. On July 31, 2006, in his capacity as a trained inspector for the Petitioner, Mr. Torres visited the Respondent’s place of business in order to conduct an inspection. Mr. Torres performs between 800 to 1000 inspections per year of licensed food establishments to assure that such businesses are in compliance with all food service rules and regulations. At the time of the inspection, Jessica Sanchez, the manager on duty, represented the Respondent. The inspection report for July 31, 2006, identified several critical violations that needed to be corrected. Mr. Torres notified Mr. Villeda, as the owner and/or operator of the licensed entity, of the inspection results. Mr. Villeda later identified himself as the manager of the café. Critical violations are items that must be corrected because, if not corrected, they pose a threat for imminent food- borne illness, contamination, or environmental hazard. Non- critical violations are less serious but can also lead to a potential health hazard. As to each type of violation, the Petitioner expects the licensee to take appropriate action to correct the cited deficiency. Mr. Torres notified Mr. Villeda of the findings of his inspection of July 31, 2006, because he anticipated that the violations would be corrected in advance of a “call back” inspection. The “call back” inspection was performed on September 18, 2006. This inspection was also performed by Mr. Torres and disclosed the following uncorrected deficiencies (these had been identified to the Respondent in the July 31, 2006 inspection report): There was no thermometer to measure the temperature of food products. This is a critical violation. Food products must be stored and maintained at an acceptable temperature to prevent bacteria from growing. Without a thermometer there is no verifiable system to confirm that acceptable temperatures are being maintained. Additionally, to retain prepared food on-site for sale or use, the prepared food item must be labeled to detail the date of its initial preparation. Ready to eat food can be retained for a maximum of seven days. After that period, there is a presumption that the item may not be safely consumed. Consequently, all prepared food must be clearly labeled to assure it is disposed of at the appropriate time. Because the sale of out-of-date food presents a health hazard, the labeling requirement is considered critical. The failure to follow the guideline is, therefore, considered a critical violation. Sanitizing chemicals used in the cleansing of dishes or food service preparation equipment must be tested to assure a proper level is utilized. The sanitizing chemicals may be toxic, therefore too much can lead to the contamination of the food service item and too little may fail to sanitize and kill bacteria. Accordingly, when used in conjunction with a three-compartment sink or dish machine, a chemical testing kit allows the user to easily verify that the amount of sanitizing chemical is correct. The failure to have and use a test kit is considered a critical violation as the improper use of chemicals may pose a public health hazard. The Respondent did not have the chemical kit to measure the product being used at its location. Food dispensing equipment, such as soda machines, must be kept clean. A build-up of slime on the soda dispenser nozzle poses a threat as mold can form and be dispensed with the soda to the user’s beverage. As illness can result, this deficiency is also considered a critical violation. In this regard the Respondent's soda machine had a build-up of slime on its dispensing nozzle. Food containers must also be kept clean. The interior of Respondent’s reach-in cooler had accumulated a residue of food or soil. As this could contaminate food placed in the cooler, this deficiency is also considered critical. Similarly, food contact surfaces must also be kept smooth and easily cleanable. In this regard, the Respondent’s use of ripped or worn tin foil to cover a shelf was not appropriate. As to each of the deficiencies noted above, the Respondent failed or otherwise refused to timely correct the item. Mr. Villeda represented that the violations were corrected by the last week of September 2006. Implicit in that representation is the admission that such violations were not corrected by September 18, 2006, the date of the “call back” inspection. The Respondent does not have a mop sink. The Respondent’s representation that the owners of the building have a mop sink elsewhere (that is used for the licensed area) has been deemed plausible. If a building janitor uses a mop sink located elsewhere to clean up spills (as was represented), the absence of a mop sink within the licensed area does not demonstrate that no mop sink existed. In this regard the Respondent has been given the benefit of the doubt. The Respondent did not explain why the deficiencies were not corrected before the “call back” inspection. It is accepted that the corrections were later made and the Respondent has been given consideration of this effort in the penalty recommended in this case.
Recommendation Based upon 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, impose an administrative fine in the amount of $1000.00 against the Respondent, Michelle’s Café. S DONE AND ENTERED this 21st day of November, 2007, in Tallahassee, Leon County, Florida. 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 21st day of November, 2007. COPIES FURNISHED: Jesus Villeda Michelle's Cafe 13161 Northwest 11th Court Sunrise, Florida 33323 Joshua B. Moye, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monore Street Tallahassee, Florida 32399-0792
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 to be resolved in this proceeding are whether Respondent committed the violations alleged in the Administrative Complaint dated August 31, 2012, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant, El Ceviche Del Rey, located at 9947 Southwest 142 Avenue, Miami, Florida 33186, holding food service license number 2324027. Critical violations are those violations that are more likely to result in food-borne illness if not corrected. Non- critical violations are those violations that, if not corrected, are less likely to contribute to food-borne illness. Gladys Diaz ("Inspector Diaz") is employed by the Department as a Sanitation Safety Specialist. Inspector Diaz has worked for the Department for approximately one and one-half years. Prior to working for the Department, Inspector Diaz managed a McDonalds franchise for 18 years. Upon gaining employment with the Department, Inspector Diaz received training in laws and rules pertaining to the public food service and public lodging establishments. She is a Certified Food Manager and continues to receive monthly training in the area of food management. On August 29, 2012, Inspector Diaz performed a routine food service inspection at El Ceviche Del Rey. During the inspection, Inspector Diaz observed El Ceviche Del Rey opened for business but operating with no running water. Inspector Diaz prepared and signed an inspection report setting forth the violation she encountered during her inspection. Inspector Diaz prepared the inspection report on- site at El Ceviche Del Rey. The inspection report was signed by Inspector Diaz and a representative of the El Ceviche Del Rey. Inspector Diaz specifically noted the violation as being out of compliance and stated, "At the time of the inspection, there was no water at establishment." The Division determined that operating a food service establishment without water was a critical violation because an establishment cannot clean utensils and employees cannot wash their hands without water. Unclean utensils and dirty hands can lead to contamination of food. The Division closed the restaurant with an Emergency Order of suspension of license for the critical violation. On or about August 31, 2012, the Division issued an Administrative Complaint against El Ceviche Del Rey for operating a food service establishment with no water at the establishment in violation of Food Code Rule 5-103.12. Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed. Additional evidence introduced at hearing showed that El Ceviche Del Rey received previous discipline by Final Order in case 2011-040929, entered on December 7, 2011.
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 El Ceviche Del Rey violated section 509, Florida Statutes, through a violation of Food Code Rule 5- 103.12; and Imposing an administrative fine in the amount of $1000.00 against El Ceviche Del Rey, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the agency clerk. DONE AND ENTERED this 11th day of April 2013, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 11th day of April, 2013. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399-2202 Alberto Villalobos El Ceviche Del Rey 9947 Southwest 142nd Avenue Miami, Florida 33186 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 J. Layne Smith, 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 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.
