The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes (2005). The Respondent is a restaurant located at 2311 West Hillsborough Avenue, in Tampa, Florida, holding Permanent Food Service license number 3910762. Jesus Gonzalez is identified on the license as the owner of the Respondent. On October 4, 2005, Catherine Lombard, employed by the Petitioner as a safety and sanitation specialist, performed a routine inspection of the Respondent and found violations of applicable Food Code regulations. The violations were noted in a written report. Ms. Lombard provided a copy of the report identifying the violations to the person in charge of the restaurant on the date of the inspection, and scheduled a re-inspection for November 4, 2005. On November 7, 2005, Ms. Lombard re-inspected the Respondent and determined that some of the violations identified during the inspection on October 4, 2005, remained uncorrected. The violations were noted in a written report, a copy of which was provided to the person in charge of the restaurant on the date of the re-inspection. On November 29, 2005, the Petitioner filed an Administrative Complaint against the Respondent, alleging various continuing and uncorrected violations identified during the inspections. Violations that pose an immediate threat to public health and safety are identified as critical. Violations that do not pose an immediate threat are identified as non-critical. During the inspections on October 4, 2005, and on November 7, 2005, the ventilation hood's fire suppression system tag had expired according to the date on the tag, and there was no current hood system report. These violations were identified as critical because failure of the fire suppression system located above the cooking equipment could result in an uncontrolled fire with loss of life and property. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed uncooked food being thawed in a bucket of standing water at room temperature. On October 4, 2005, the food in the water was fish. On November 7, 2005, the food in the water was sausage. This violation was identified as critical because thawing food in room-temperature standing water can permit growth of food-borne bacteria and result in severe illness for persons consuming improperly thawed food. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that food refrigeration units lacked conspicuously located thermometers. This violation was identified as critical because the lack of conspicuously located thermometers makes it more likely that an inadequately operating refrigeration unit will go unnoticed, thereby increasing the risk of food-borne illness related to improper food storage. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed an uncovered electrical panel box located in the kitchen. This violation was identified as critical because of the obvious risk to kitchen workers presented by "live" electrical wiring located in proximity to wet kitchen floors. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard observed that a vacuum breaker was missing at a hose bib. This violation was identified as critical because, absent a properly installed vacuum break device, contaminated water in a hose may enter into the potable water supply and be consumed by the public potentially resulting in illness. During the inspections on October 4, 2005, and on November 7, 2005, Ms. Lombard identified several non-critical violations, including the failure to place wet table wiping cloths into a sanitizing solution; a lack of hand-drying provisions in the restroom; damage to the wall behind the food preparation line, which made adequate cleaning of the wall difficult; failure to store utensils in a clean and protected location; and failure to hang a wet mop so as to permit the mop to dry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order imposing a fine of $3,600 against the Respondent and requiring the Respondent to attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 6th day of July, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2006. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Jesus Gonzalez Tainos Cafe 2311 West Hillsborough Avenue Tampa, Florida 33603 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent is guilty of various violations of Florida statutes and rules in the operation of his restaurant and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds license control number 46-04280R, which is in effect from December 1, 1999, through December 1, 2000. The license authorizes Respondent to operate a restaurant known as Speedy Two Shop at 2957 Martin L. King Boulevard in Fort Myers. Petitioner has previously disciplined Respondent. By Stipulation and Consent Order filed May 22, 1997, the parties agreed that Respondent would pay an administrative fine of $1100 and correct all violations by April 30, 1997. The Stipulation and Consent Order incorporates the findings of inspections on February 25 and March 7, 1997. These inspections uncovered seven violations, including missing hood filters over the cooking surface, heavy grease accumulations on the inside and outside of the hood, a fire extinguisher bearing an expired tag (May 1995), and operation without a license. In Petitioner's District 7, which includes Fort Myers, the licensing year for restaurants runs from December 1 to December 1. Respondent's relevant licensing history includes annual licenses for the periods ending December 1, 1997; December 1, 1998; and December 1, 1999. However, Respondent has operated his restaurant for substantial periods without a license. Respondent renewed his license ending in 1997 after four months of operating without a license, his license ending in 1998 after 17 months of operating without a license, his license ending in 1999 after six and one- half months of operating without a license, and his license ending in 2000 after one and one-half months of operating without a license. For each of these late renewals, Respondent paid a $100 delinquent fee. Petitioner conducts periodic inspections of restaurants. These inspections cover a broad range of health and safety conditions. Certain violations, as marked on the inspection forms, "are of critical concern and must be corrected immediately." This recommended order refers to such violations as "Critical Violations." On January 22, 1998, Petitioner's inspector conducted an inspection of Respondent's restaurant. The inspection uncovered seven Critical Violations. Two Critical Violations involved Respondent's compliance with licensing and training requirements. Respondent was operating the restaurant without a license, and no employee had a food manager's card, which evidences the successful completion of coursework and a test in managing a restaurant. The report warns that if Respondent did not renew his license before February 1, 1998, Petitioner would impose a fine and possibly revoke his license. The report requires Respondent to ensure that an employee obtains a food manager's card by March 3, 1998. Two Critical Violations involved Respondent's noncompliance with fire safety requirements. The fire extinguisher and built-in fire suppression system both bore outdated tags. The former tag expired in April 1997, and the latter tag expired in May 1997. The remaining three Critical Violations were that the restaurant lacked a filter in his hood over the stove, ceramic tiles over the three-compartment sink, and sanitizing solution in the bucket that was supposed to contain sanitizing solution. Respondent's employee explained that the hood filters were being cleaned, but apparently offered no explanation for the other two Critical Violations. Despite the specific warnings concerning the licensing and training violations, the January 1998 inspection report requires only that Respondent correct the violations by the next routine inspection. On March 26, 1998, Petitioner's inspector conducted an reinspection of Respondent's restaurant. The inspection uncovered the same Critical Violations, except for the sanitizing solution. The report states that Respondent must come to Petitioner's office in the next seven days to renew his license. On April 2, 1998, Petitioner served upon Respondent an Administrative Complaint alleging that, on January 1, 1998, Respondent was operating without a license. Neither this nor any subsequent charging document cites any of the other six Critical Violations found in the January 22, 1998, inspection as bases for discipline, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On June 30, 2000--over two years after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to the Division of Administrative Hearings (DOAH) for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2694. On April 29, 1998, Petitioner's inspector conducted another reinspection. Upon identifying himself to Respondent's employee, the employee denied the inspector access to the premises and told him to return at 2:00 PM. The inspector replied that the reinspection would take only five minutes and that he could not return at 2:00 PM, but the employee continued to deny the inspector entry. On May 12, 1998, Petitioner's inspector conducted another reinspection and found the same seven Critical Violations present during the January 1998 inspection. New Critical Violations were the presence of one "small mouse and roaches" under the three-compartment sink and the presence of cooked sausage patties and links with an internal temperature too low to prevent the proliferation of bacteria. As for the food manager's card, Respondent told the inspector that he had left it at home. The report warns that Respondent must correct the violations by May 18, 2000, 8:00 AM. On September 29, 1998, Petitioner served upon Respondent a Notice to Show Cause alleging the violations found during the inspections of March 26, April 29, and May 12, 1998. On June 30, 2000--one year and nine months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2697. On July 31, 1998, Petitioner's inspector conducted another reinspection and found five of the same Critical Violations: operating without a license, no employee with a food manager's card, fire suppression system bearing an outdated tag, ceramic tile missing over the three-compartment sink, and heavy grease accumulation on the hood filters, which had been reinstalled. Petitioner never cited these five Critical Violations in any charging document, so this recommended order treats these other violations as background, rather than as independent grounds for discipline. On October 2, 1998, Petitioner's inspector conducted an inspection and found four of the original Critical Violations: no license, no employee with a food manager's card, no current tag on the fire suppression system, and no ceramic tile over the sink. Although the fire extinguisher was presumably current, it was improperly placed on the floor. Other Critical Violations included the storage of sausage at the improperly warm temperature of 51 degrees, the absence of a thermometer in the home-style refrigerator, the presence of rodent feces on the floor, the absence of working emergency lights, the absence of a catch pan in the hood system, a broken self-closer on the side door, a clogged hand sink, an extension cord serving a toaster, and the evident expansion of the restaurant without an approved plan. The report gives Respondent until October 9, 1998, at 11:00 AM to correct the violations. On October 12, 1998, Petitioner's inspector conducted a reinspection and found all of the Critical Violations cited in the preceding paragraph still uncorrected. On October 20, 1998, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of October 2 and 12, 1998. On June 30, 2000--one year and eight months after issuing the Administrative Complaint--Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2695. For some reason, Petitioner neither prosecuted the pending charges nor conducted repeated inspections for several months after October 1998 inspections and Administrative Complaint. The next inspection of Respondent's restaurant took place on April 30, 1999. Despite the six and one-half months that Petitioner effectively gave Respondent to correct the numerous Critical Violations cited in the October 12, 1998, inspection, Respondent continued to violate many of the same provisions for which he had been cited throughout nearly all of 1998. The inspection report discloses that, again, Respondent was operating without a license. The report notes that he lacked a license for the licensing years ending in 1998 and 1999. One of Petitioner's inspectors testified that Respondent had been making progress on the licensing issue. However, the implication that Respondent was unable to pay the $190 licensing fee (usually accompanied by a $100 delinquent fee) is quietly rebutted by the notation, also in the April 30, 1999, report, that Respondent had completed the expansion project--still, without the required plan review. Again, no employee at the restaurant had a food manager's card. Again, the fire suppression system was in violation--this time because the indicator revealed that it needed to be recharged. Again, the hood filters were missing above the cooking surface. Again, the hand sink was inoperative- -this time, it was not only clogged, but it also lacked hot water. Again, emergency lighting was inoperative. Again, the ceramic tile was missing over the three-compartment sink. Again, food was maintained too warm in the refrigerator--this time, chicken was at 69 degrees. A new Critical Violation was the exposure of live electrical lines and insulation. The April 1999 inspection report gives Respondent until May 14, 1999, at 11:00 AM to correct the violations. On May 14, 1999, Petitioner's inspector conducted a reinspection and found that Respondent still had not obtained a license for the licensing year ending in 1999, still lacked an employee with a food manager's card, still had not obtained approval of its expansion plan, still lacked ceramic tile over the three-compartment sink, still had a clogged hand sink without hot water, still lacked working emergency lights, still tolerated exposed electrical line and insulation, and still lacked hood filters above the cooking surface. On June 2, 1999, Petitioner served upon Respondent an Administrative Complaint alleging the violations found during the inspections of April 20 and May 14, 1999. On June 30, 2000--one year and one month after issuing the Administrative Complaint-- Petitioner transmitted the Administrative Complaint to DOAH for the purpose of conducting a formal hearing, and DOAH assigned this case DOAH Case number 00-2696. Over a period of 16 months, Petitioner conducted eight inspections of Respondent's restaurant. On what would have been a ninth inspection, one of Respondent's employees denied access to the inspector. On each of these eight inspections, Respondent was operating without a license, lacked an employee with a food manager's card, and lacked ceramic tile over the three- compartment sink. On seven of these eight inspections, the fire suppression system was expired or discharged, and the hood filter was missing or excessive grease had accumulated on the filter or the liner. On three of these eight inspections, the fire extinguisher was outdated, and, on a fourth inspection, it was improperly stored on the floor. On three of these eight inspections, sausage or chicken was at improper temperatures--the 86 degrees at which sausage was served on one occasion was only 17 degrees warmer than the 69 degrees at which chicken was stored on another occasion. On three of these eight inspections, the hand sink was unusable because it was clogged or lacked hot water, the emergency lights did not work, and restaurant expansion was taking place or had taken place without review or approval of the plans. On two of these eight inspections, the inspector saw signs of rodents in the kitchen--one time actually seeing a small mouse. On two of these eight inspections, exposed electrical lines and insulation were present in the kitchen. Petitioner has proved by clear and convincing evidence that Respondent committed all of the cited violations. Uncorrected violations over 16 months amount to more than a failure to take advantage of the numerous opportunities that Petitioner gave Respondent to bring his restaurant into compliance. These uncorrected violations constitute a refusal to comply with the basic requirements ensuring the health and safety of the public. The penalty must weigh, among other things, Respondent's blatant disregard of fundamental requirements in licensing, training, and fire and food safety; Petitioner's demonstrated lack of diligence in enforcing Respondent's compliance with these requirements; and the peril posed by these failures upon the public health and safety.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order revoking Respondent's license. DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida. 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 25th day of October, 2000. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurant Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gail Hoge, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angelo E. Ruth 2774 Blake Street Fort Myers, Florida 33916
The Issue The issues in this case concern whether challenged portions of Proposed Rule 61C-4.023(4)(b) either separately or together constitute an “invalid exercise of delegated legislative authority” on the grounds that the agency has exceeded its grant of rulemaking authority; the proposed rule enlarges, modifies, or contravenes the specific provisions of law implemented; or both.
Findings Of Fact The parties' Joint Prehearing Stipulation and the evidence presented at final hearing established the facts that follow. The Division is the state agency charged with inspecting and regulating licensed “public food service establishments” (which are commonly known as restaurants). See generally Section 509.032, Florida Statutes. In the early 1990s, the legislature enacted Section 509.039, Florida Statutes, which directed the Division to adopt, by rule, food safety protection standards for the training and certification of all food service managers responsible for the storage, preparation, display, or serving of foods to the public in licensed establishments. This legislation required the Division to establish a testing and certification program, to be administered by private or public entities. Id. In 1996, the Legislature went a step further, instructing the Division to adopt minimum food safety protection standards for the training of all food service employees: 509.049 Food service employee training.– The division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishments regulated under this chapter. These standards shall not include an examination. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. See Chapter 96-384, Section 4, Laws of Florida. In 2000, the legislature substantially revised Section 509.049, Florida Statutes, mandating that the Division establish, by rule, a food safety training certification program for food service employees, to be administered by a private provider under a public contract that the Division was directed to let pursuant to competitive proposals. See Chapter 2000-191, Section 1, Laws of Florida. At the same time, the revised law provided that licensed establishments could apply to the Division for approval of their existing food safety training programs——approval which, if granted, would allow such programs to be used in place of the program administered by the Division’s contracted provider. Id. Pursuant to a competitive procurement, the Division selected the Intervenor Association to be its contracted provider for the “official” employee food safety training certification program. Petitioner Food Safety is a provider that offers a food safety training program that the Division has approved for use. Food Safety distributes its training program both by directly administering the program to restaurant employees through on- site, personal instruction, and by selling its program for others to administer.1 In 2001, the legislature again revised Section 509.049, Florida Statutes, adding provisions that pertained to the approval of food safety training programs, allowed some regulation of providers of such programs, and authorized the Division to adopt certain rules. See Chapter 2001-257, Section 1, Laws of Florida. In particular, two new subsections, (4) and (6), were added to Section 509.049, as follows: (4) Approval of a program is subject to the provider's continued compliance with the division's minimum program standards. The division may conduct random audits of approved programs to determine compliance and may audit any program if it has reason to believe a program is not in compliance with this section. The division may revoke a program's approval if it finds a program is not in compliance with this section or the rules adopted under this section. * * * The division may adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to administer this section. The rules may require: The use of application forms, which may require, but need not be limited to, the identification of training components of the program and an applicant affidavit attesting to the accuracy of the information provided in the application; Providers to maintain information concerning establishments where they provide training pursuant to this section; Specific subject matter related to food safety for use in training program components; and The licensee to be responsible for providing proof of employee training, and the division may request production of such proof upon inspection of the establishment. Initiating the rulemaking process that led to this challenge, the Division caused a Notice of Proposed Rule Development to be published in the March 23, 2001, edition of the Florida Administrative Weekly. This Notice included the preliminary text of Proposed Rule 61C-4.023(4), which stated in relevant part: Approved program providers must maintain a record of each food service employee certified, including the following: the name of the certified food service employee, the employing food service establishment, the name of the training administrator, the training date, and the certification expiration date. These records shall be transmitted to the division on a monthly basis, either in hard copy or in an electronic format approved by the division. After conducting a workshop on the draft rule on May 24, 2001, the Division caused a Notice of Proposed Rule to be published in the August 17, 2001 edition of the Florida Administrative Weekly. The August 17, 2001, version of the proposed rule stated, in pertinent part: (b) Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program which, upon examination, is found to have failed to keep this required information or to have knowingly participated in falsifying any training record. On September 20, 2001, Food Safety filed its Petition, objecting to provisions in the proposed rule which would impose record-keeping requirements on providers that do “not directly administer training” and which would require the Division to revoke its approval of an authorized program in certain circumstances. After this rule challenge commenced, the Division amended the final sentence of Proposed Rule 61C-4.023(4)(b). The proposed rule assumed its current form in the October 26, 2001, edition of the Florida Administrative Weekly. Proposed Rule 61C-4.023(4)(b) (the “Proposed Rule”), as challenged, provides as follows: Approved program providers must maintain training information for a period of at least three years from the date training is provided. If the program provider directly administers training to a food service employee, this information must include the name of the trained food service employee, the name of establishments where training has been provided, the date of training, and the specific course that was used for the training. If the program provider furnishes program materials but does not directly administer training to a food service employee, this information must include the name of establishments where program materials have been provided, the date these materials were provided, and the specific course which was provided. The division shall revoke its approval of any program where, upon examination, the program provider is found to have failed to keep this required information or to have knowingly participated in falsifying any training record. Petitioner protests the third and fourth sentences of the Proposed Rule, which are underlined above, alleging that the subject provisions either exceed the Division’s rulemaking authority; enlarge, modify, or contravene the specific provisions of law implemented; or both.
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 Gigi's Restaurant, LLC, holds Permanent Food Service license 2331011, which authorizes the operation of a public food establishment at 3585 Northeast 207th Street in Aventura, Florida, and expires October 1, 2011. Respondent last renewed its license on September 21, 2010. On January 13, 2010, at 11:29 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. At the time, Respondent's license had expired. The inspector also observed, among other things, the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate-strength dishmachine sanitizer; not-sanitized- properly-after-cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three-compartment sink. The inspector notified Respondent that a reinspection would take place on March 13, 2010, at 11:30 a.m. On April 21, 2010, the inspector performed a reinspection of the public food establishment. At the time, Respondent still had not renewed its license. The inspector observed the recurrence or continuation of the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate- strength dishmachine sanitizer; not-sanitized-properly-after- cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three- compartment sink. The five remaining violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause food-borne illness.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the five violations identified above and revoking the public food establishment license of Respondent. DONE AND ENTERED this 8th 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 8th day of July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Arner Gigi Gigi’s Cafe 3585 Northeast 207 Street, No.C302 Miami, Florida 33180 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated July 26, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for inspecting and regulating public food service establishments in Florida. See § 509.032, Fla. Stat. The Coffee Salom Tropical is a food service establishment licensed and regulated by the Division. Jorge Gandolff, an inspector employed by the Division, inspected the premises of Coffee Salom Tropical on May 18, 2004, and prepared a Food Service Inspection Report setting forth his findings. He noted in the report that he had observed a number of violations of the Food Code during the May 18, 2004, inspection. Mr. Gandolff went over the results of the inspection with Pilar Cruz, an owner of Coffee Salom Tropical, and he informed her that he would conduct a re-inspection on June 18, 2004. Mr. Gandolff conducted the re-inspection of Coffee Salom Tropical on July 15, 2004, and completed a Callback Inspection Report in which he noted that Coffee Salom Tropical was in compliance with all except five of the violations noted in the Food Service Inspection Report dated May 18, 2004. The five uncorrected violations Mr. Gandolff observed during the July 15, 2004, re-inspection were (1) "potentially hazardous food thawed in an improper manner"; (2) "no chemical test kit provided when using chemical sanitizer at three compartment sinks"; (3) "plumbing improperly installed, coffee machine draining into handsink"; (4) "manager lacking proof of Food Manager Certification"; and (5) "employee training provided by unapproved provider, training provided by a non certified food manager." After the inspection on May 18, 2004, Aracely Gonzalez, the secretary of the corporation that owns Coffee Salom Tropical, and her brother attended classes required as a prerequisite for taking the test for food manager certification. Ms. Gonzalez contacted a private testing company and arranged to take the test on July 21, 2004. Ms. Gonzalez passed the test and was issued her food manager certification.
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 Coffee Salom Tropical violated Food Code Rule 4-302.14; Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) and (4), and imposing a fine in the amount of $2,500.00. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 25th day of February, 2005.
The Issue The issue in this case is whether on April 5 and October 18, 2011, and on February 28, 2012, Respondent was in 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, and if not, what penalty is appropriate.
Findings Of Fact The Division of Hotels and Restaurants (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. Mr. Douglas Peterson has been employed as a Sanitation and Safety Specialist with the Division for five and one-half years. He previously worked in the restaurant industry for over 21 years, including eight years as a kitchen manager and five years as a restaurant assistant manager. He has had training, including monthly in-house training and field training, in food inspection. On average, he conducts about five safety and sanitation inspections of food-service establishments per day, and about 1000 inspections per year. China King is a licensed permanent public food-service establishment operating at 4941 East Busch Boulevard, Suite 120, in Tampa, Florida. The owner of China King, Mr. Chi Kin Chan, speaks very little English. Representing the restaurant was Mr. Chan’s daughter, Ms. Man Chan, who assists her father with the restaurant. Under all of the circumstances, including the facts that Ms. Chan helps operate the restaurant, demonstrated basic knowledge of applicable statutes and rules, and demonstrated her ability to capably and responsibly represent Respondent, Ms. Chan was accepted as a Qualified Representative. China King was inspected by Mr. Peterson on August 25, 2010, and October 26, 2010. The Administrative Complaint alleged violations based upon these inspections, and testimony and exhibits as to these violations were offered at hearing. However, an earlier Administrative Complaint relating to these inspections has already been settled, as discussed below. The Stipulation and Consent Order in the earlier case settled any violations based upon these inspections, and no purpose is served by delineating the details of those inspections here. On April 5, 2011, Inspector Peterson conducted another food service inspection on China King. Inspector Peterson prepared a Food Service Inspection Report, DBPR Form HR 5022- 015, using his Personal Data Assistant (PDA) to record the violations that he observed during the inspection. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the April inspection, Mr. Peterson observed that China King had ready-to-eat, potentially hazardous food prepared on-site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, and noted this on his report. The Division has determined that lack of proper date marking poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022-015. Mr. Peterson also observed during the April inspection that China King was storing food on the floor in the cooks’ line and in the preparation area, and noted this on his report. The Division has determined that storing food on the floor poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022-015. During the April inspection, Mr. Peterson observed the improper use of a plastic food container or other container with no handle being used to scoop or dispense food that was not ready-to-eat, and noted this on his report. The Division has determined that using containers without handles to scoop or dispense food fails to minimize food contact with bare hands, and poses a significant threat to the public health, safety, or welfare. The Division has identified this as a critical violation on DBPR Form HR-5022-015. On October 18, 2011, Mr. Peterson conducted another inspection of China King. Inspector Peterson again prepared an inspection report on DBPR Form HR 5022-015 using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the report on behalf of China King. During the October inspection, Mr. Peterson again observed ready-to-eat, potentially hazardous food prepared on- site and held more than 24 hours that had not been properly date-marked in the walk-in cooler, including egg rolls, cooked chicken, pork, and shrimp. He recorded this information in his report, along with a notation that it was a repeat violation. Mr. Peterson also observed food stored on the floor in the walk-in during his October inspection. He recorded this, noting that it was a repeat violation. During the October inspection, Mr. Peterson observed the improper use of a bowl or plastic food container without a handle as a scoop to dispense non ready-to-eat foods such as flour and starch, as well as ready-to-eat foods such as salt and sugar. He noted this in his report, along with a notation that this was corrected on-site. Mr. Peterson also observed an employee with no hair restraint during the October inspection. He noted this in his report along with the fact that it was corrected while he was on-site. On February 28, 2012, Mr. Peterson conducted a stipulation call-back inspection, as well as a full inspection of the China King. A stipulation call-back inspection is an inspection that is required as part of a stipulation which is conducted for the limited purpose of determining whether specific violations noted earlier have been corrected. Inspector Peterson prepared a Call Back Inspection Report, DBPR Form HR 5022-005, as well as DBPR Form HR 5022-015 on February 28, 2012, using his PDA to record the violations that he observed. An operator of the restaurant acknowledged receipt of the reports on behalf of China King. On February 28, 2012, Mr. Peterson again observed that ready-to-eat, potentially hazardous food that had been prepared on-site and held more than 24 hours had not been date-marked. He noted this in his reports. Mr. Peterson again observed food stored on the floor in the walk-in and cooks’ line during his February inspection and made note of this in his reports. Mr. Peterson again observed a can without a handle being used to scoop rice on February, 28, 2012, as was noted in his reports. Mr. Peterson also observed an employee without a hair restraint during his February inspection, noting this in his reports. In response to questioning from Respondent at hearing, Inspector Peterson stated that he was familiar with the description of the inspection process set out on the Division of Hotels and Restaurants’ website. Inspector Peterson was aware that these procedures state that an inspector will invite the manager to accompany him on the inspection walk-through, and that the inspector will go over each item on the inspection report. Mr. Peterson testified that at each inspection he advised persons at the restaurant of the violations and the need to correct them. Mr. Chi Kin Chan, owner of China King, testified that Mr. Peterson did show his badge when he conducted the inspection on February 28, 2012, although he did not announce who he was. Mr. Chan testified that Mr. Peterson just went through the restaurant on his own and did not invite Mr. Chan or anyone else from the restaurant to accompany him on his inspection. Mr. Chan testified that Mr. Peterson then just went to the front of the restaurant and prepared his report without discussing any of the alleged violations with Mr. Chan or operators of the restaurant. Mr. Taoso Tevega is engaged to be married to Ms. Man Chan, and so is the prospective son-in-law of Mr. Chan. Mr. Tevega occasionally assists the Chan family with the restaurant, but does not receive any paycheck from China King. He works in the receiving department of Advance Auto Parts. Mr. Tevega was present at China King during the February 28, 2012, inspection. Mr. Tevega testified that on February 28, 2012, Inspector Peterson just showed up in the back of China King without identifying himself and that he did not ask anyone to accompany him as he went about the restaurant conducting his inspection. Mr. Tevega testified that Mr. Peterson did not discuss or explain the violations to anyone, but just had Ms. Chan sign the report. Mr. Peterson testified that he was in business casual attire, with his employee identification tag secured from a lanyard worn around his neck, and that he presented identification before beginning each inspection. Mr. Peterson identified himself by displaying his badge before and during the February 28, 2012, inspection, as testified to by Mr. Chan and Mr. Peterson. Mr. Peterson did not invite anyone to accompany him as he conducted the inspection on February 28, 2012, as Mr. Chan and Mr. Tevega testified. Mr. Peterson advised operators at the restaurant of the violations and the need to correct them, as he testified. The Division issued an Administrative Complaint against China King for the above violations on or about March 7, 2012. Additional evidence introduced at hearing showed that China King had a previous disciplinary Final Order entered within 24 months of the Administrative Complaint issued in this case. That Stipulation and Consent Order was signed by China King Manager Ko Chan on January 13, 2012, and was filed on January 24, 2012. In the Order, China King agreed to pay a fine of $900.00, but neither admitted nor denied the allegations of fact contained in the Administrative Complaint. Some of those allegations would have constituted critical violations. The January 24, 2012, Stipulation and Consent Order was in settlement of an Administrative Complaint issued on November 8, 2010. That Administrative Complaint alleged violations of the Food Code based upon inspections conducted on August 25, 2010, and October 26, 2010, two of the inspections for which testimony and documentary evidence was submitted in this case, but which are discussed here only for penalty purposes.
Recommendation Upon consideration of the above 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 China King in violation of three critical violations and one non-critical violation and imposing a fine of $2,625, to be paid within 30 calendar days of the filing of the Final Order with the Agency Clerk. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 December, 2012.
