The Issue The issues in these consolidated cases are stated in the counts set forth in the Administrative Complaint for each case: Whether Falcon Catering Service No. 7 (hereinafter "Falcon 7") and Falcon Catering Service No. 8 (hereinafter "Falcon 8") failed to maintain the proper protection and temperature requirements for food sold from their mobile site in violation of the federal Food and Drug Administration Food Code ("Food Code"). In the Prehearing Stipulation filed in this matter, each Respondent generally admitted to the violations in the Administrative Complaints, but suggested that mitigating factors should absolve them of the charges or greatly reduce any administrative fine imposed.
Findings Of Fact The Division is responsible for monitoring all licensed food establishments in the state. It is the Division's duty to ensure that all such establishments comply with the standards set forth in relevant statutes and rules. Respondents Falcon 7 and Falcon 8 are licensed mobile food dispensing vehicles. Falcon 7 has license No. MFD5852560, which was initially issued on April 23, 2005; Falcon 8 has license No. MFD5852642, which was issued on October 19, 2005. Each of the Respondents serves meals and snacks to, inter alia, laborers at construction sites. On or about March 13, 2009, the Division conducted a food service inspection on Falcon 7. At that time, the food truck was located at 4880 Distribution Court, Orlando, Florida. One of the Food Code violations found by the inspector was Item 53b. That citation meant there was no validation of employee training on the truck. A follow-up inspection was deemed to be required. On April 10, 2009, a follow-up inspection was conducted by the Division. At that time, Item 53b was cited as a repeat offense. Also, Item 8a was cited. Item 8a refers to protection of food from contaminants and keeping food at an acceptable temperature. Notes by the inspector indicate that a further violation of Item 8a occurred because customers were allowed to serve themselves directly from food containers, and there was no fan in operation during the serving of food. On May 28, 2009, another inspection of Falcon 7 was conducted. At that time, the food truck was located at 12720 South Orange Blossom Trail, Orlando, Florida. Item 8a was again cited as a deficiency. The inspector's notes indicate that food was not properly protected from contamination and that customers were being served "buffet style" from the back of the truck. The inspector noted that this was a repeat violation. A follow-up or "call-back" inspection was conducted on December 3, 2009, at which time the temperature in Orlando was unusually cold. The food truck was at the same address on Orange Blossom Trail as noted in the prior inspection. Falcon 7 was again found to have been serving food buffet style from the back of the food truck. An Item 8a violation was again noted by the inspector. Another inspection of Falcon 7 was conducted on January 19, 2010, another very cold day in Orlando. At that time, the food truck was located at the same site as the last two inspections. The inspector cited the food truck for an Item 8a violation again, stating that the food was not being protected from contaminants. Dust was flying up on the back of the truck to exposed food items. An inspection of Falcon 8 was conducted on August 25, 2009, while the truck was located at 4880 Distribution Court, Orlando, Florida. An Item 8a violation was noted by the inspector, who found that displayed food was not properly protected from contaminants. The food truck was located under an Interstate 4 overpass and was open to flying debris. The inspector noted that customers were being served buffet style and that there was no protection of food from contamination by the customers. A follow-up inspection for Falcon 8 was conducted on August 27, 2009, at 9:12 a.m., while the food truck was located at the same site. Another Item 8a violation was cited at that time. The violation notes indicate essentially the same situation that had been cited in the initial inspection two days earlier. Less than one hour after the follow-up inspection, another inspection was conducted on Falcon 8 at the same location as the prior two inspections. There were no Item 8a citations issued during this inspection, but the food truck was found to have no water available for hand washing. The food truck employee was using a hand sanitizer to clean her hands. Respondents do not dispute the facts set forth above. However, Respondents provided mitigating facts for consideration in the assessment of any penalty that might be imposed. Those mitigating factors are as follows: The food trucks were serving an inordinately large number of workers during the dates of the inspections. The City of Orlando was constructing its new basketball arena, and there were numerous laborers involved in the project. In order to serve the workers, it was necessary for the food trucks to put their food out on tables, rather than ladle the food directly from the food warmers in the food truck. In fact, the shelves in the food trucks are so narrow that dipping food out of the warmers would be impossible. Due to the cold weather in Orlando during this time, it was impossible to keep the food at acceptable temperature levels for very long. The large number of workers washing their hands at the food trucks caused the trucks to run out of water much more quickly than normal. When the water ran out, the employees took care to sanitize their hands as well as possible. Ms. Falcon testified that the inspector's testimony concerning use of tables to serve food was erroneous. However, Sabrina Falcon was not present during the inspections, and her contradictory testimony is not reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500.00 against Falcon Catering Service, No. 7, in DOAH Case No. 10-10925; and a fine of $750.00 against Falcon Catering Service, No. 8, in DOAH Case No. 10-10930. All fines should be paid within 30 days of the entry of the Final Order by the Division. DONE AND ENTERED this 10th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of May, 2011. COPIES FURNISHED: 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 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Sabrina Falcon Falcon Catering Service 642 Mendoza Drive Orlando, Florida 32825 Megan Demartini, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
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 3100 Northwest 17th Avenue, Miami, Florida, and holding food service license number 2328990. On May 19, 2010, and July 23, 2010, Respondent was inspected by Reginald Garcia, a sanitation and safety specialist employed by the Division. During both visits, Mr. Garcia 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. Garcia and the exhibits introduced into evidence during the final hearing, the Division presented clear and convincing evidence that as of July 23, 2010, the following deficiencies subsisted at Respondent Alma Caribe Café Restaurant: (1) potentially hazardous food held at a temperature greater than 41 degrees Fahrenheit, contrary to Food Code Rule 3-501.16(A); (2) potentially hazardous food not cooled from 135 to 41 degrees Fahrenheit within six hours, in violation of Food Code Rule 3-501.14(A); (3) holding equipment incapable of maintaining potentially hazardous food at proper temperatures, in violation of Food Code Rule 4-301.11; (4) raw food stored over cooked food, contrary to Food Code Rule 3- 302.11(A)(1); and (5) no proof of required employee training, in violation of section 509.049, Florida Statutes. Each of the foregoing deficiencies 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 $1250, to be paid within 30 days after the filing of the final order with the agency clerk. DONE AND ENTERED this 20th day of December, 2011, 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 20th day of December, 2011.
