The Issue Whether Respondent committed the violations alleged in the Administrative Complaints dated August 14 and December 21, 2009, and if so, what is the appropriate penalty?
Findings Of Fact The Department is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. China Wok is the name of an eating establishment located at 3540 U.S. Highway 17, Suite 127, Green Cove Springs, Florida. China Wok is a sole proprietorship owned by Bao Jin Chen, who holds a public food establishment license issued by the Department. Janet D'Antonio has been employed by the Department as a Sanitation and Safety Specialist for approximately 25 years. She has received training in laws and rules regarding public food service and lodging, is a certified food manager, and performs approximately 1,000 inspections each year for the Department. Brandon Doherty is employed by the Department as a Senior Sanitation and Safety Specialist, and has been working for the Department in that capacity for about six months. He previously worked for two years as a Sanitation and Safety Specialist for the Department, and, prior to that, was a manager for three years at a Jacksonville restaurant named Johnny's Delicatessen and Grill. Inspector Doherty receives regular on- the-job training, is a certified food manager, and performs approximately 1,000 inspections a year for the Department. Dan Fulton has been employed by the Department as a Senior Sanitation and Safety Specialist for 12 years, and as a Sanitation and Safety Specialist for 13 years. Before his employment with the Department, Inspector Fulton owned a restaurant in Ohio for four years. He has received training in the laws and rules governing public lodging and food services, continues to receive in-house training, and performs approximately 600 inspections for the Department each year. DOAH Case No. 10-4135 On February 24, 2009, Inspector D'Antonio performed a food service inspection of China Wok. During the inspection, Inspector D'Antonio prepared and signed an inspection report. The inspection report was prepared in an electronic format on a touch-screen electronic device. The electronic version of the inspection report was signed on the electronic device by Fang Ye, who, according to the testimony of Inspector D'Antonio, is the manager of China Wok. At the final hearing, Inspector D'Antonio testified that the temperature of two containers of chicken wings and a container of pork in the kitchen were out of compliance with the Food Code. According to Inspector D'Antonio, the temperatures of the wings in the kitchen containers were 76 degrees Fahrenheit and 85 degrees Fahrenheit, respectively, and the temperature of the pork was 75 degrees Fahrenheit. A copy of the inspection report prepared that day by Inspector D'Antonio was consistent with Inspector D'Antonio's testimony regarding the temperature of the wings and pork in the kitchen, and was accepted into evidence as corroborative hearsay. While Respondent did not dispute the temperature of the wings and pork that were observed in the kitchen that day, he explained that they had been prepared earlier that morning and were cooling down. Inspector D'Antonio admitted that prepared food was allowed a two-hour cool-down period from 135 degrees Fahrenheit to 70 degrees Fahrenheit prior to being refrigerated. She further testified, however, that she had been told by Fang Ye that the subject wings and pork had been prepared the day before. Fang Ye, however, was not called as a witness and there was no evidence presented showing that Fang Ye was authorized to speak for, or on behalf of, Respondent. Contrary to the uncorroborated hearsay of Inspector D’Antonio's recollection of what Fang Ye said, at the final hearing, Respondent insisted that food at China Wok is always prepared fresh and that the subject wings and pork were prepared the morning of the inspection. In addition, there is nothing in the inspection report indicating that the wings and pork in the kitchen were prepared the day before. As there is no competent evidence disputing Respondent's claim regarding the time the wings and pork were cooked, Respondent's testimony is credited and it is found that the subject wings and pork had been prepared earlier on the day of the inspection and were within the two-hour cool-down period at the time of the inspection. Inspector D'Antonio further testified that she found food in the walk-in cooler (also referred to as a prep cooler or sandwich bar) that was kept at potentially hazardous temperatures above 41 degrees Fahrenheit. She could not recall, however, what type of food it was and failed to make note of the food types or their temperatures in her inspection report. Therefore, it is not found that Respondent had food in the prep cooler at potentially hazardous temperatures on February 24, 2009. Inspector D'Antonio did not testify about any other violations found during her inspection of China Wok on February 24, 2009. Therefore, the Department failed to prove any of the violations allegedly found during the inspection conducted on February 24, 2009. On June 19, 2009, the Department performed another food service inspection of China Wok. The inspection was performed by Inspector Doherty. During the inspection, Inspector Doherty prepared and signed an inspection report prepared in an electronic format on a touch-screen electronic device setting forth violations he observed during the inspection. Respondent signed the inspection report on the date it was prepared by signing the touch-screen device. According to Inspector Doherty, during his inspection, food at China Wok was held in the prep cooler at temperatures greater than 41 degrees Fahrenheit, including beef at 49 degrees, shrimp and chicken at 50 degrees, and pork at 51 degrees Fahrenheit. Inspector Doherty's inspection report, although hearsay, corroborates his testimony regarding the violations. Respondent tried to explain the reported temperatures by suggesting that the food was cooling down. Inspector Doherty was quite sure in his testimony that the food was not cooling down from earlier preparation because it was raw food. Respondent, in his testimony, tried to further explain the reported higher temperatures in the prep cooler by suggesting that the inspection, which was conducted at approximately 11:30 a.m., was conducted during the restaurant's busiest time, and that the food warmed up because the prep cooler was opened a lot during that time. In fact, during the inspection, Respondent asked Inspector Doherty to come back later and take the temperatures again, but Inspector Doherty never did. Respondent did not, however, dispute the higher temperatures that Inspector Doherty found during his inspection of China Wok on June 19, 2009, and it is found that the temperatures recalled and reported by Inspector Doherty for the raw food in the prep cooler were accurate. Critical violations are those violations that, if not corrected, are most likely to contribute to food-borne illness, cross-contamination, and other environmental hazards. Cf. Fla. Admin. Code R. 61C-1005(5)(a). Non-critical violations are those that are not directly related to food-borne illness. Cf. Fla. Admin. Code R. 61C-1005(5)(a). Food that is not held within the proper temperature range is classified as a critical violation because it is the number one cause of food-borne illness. The reported food held at temperatures greater than 41 degrees Fahrenheit found in the prep cooler during the June 19, 2009, inspection of China Wok constitutes a violation by Respondent of the Food Code and a critical violation. DOAH Case No. 10-4140 On November 18, 2009, Inspectors D'Antonio and Fulton performed another food service inspection of China Wok. Inspector D'Antonio prepared an inspection report based upon a digital recording made by Inspector Fulton at the time of the inspection. According to Inspector Fulton and the inspection report, the November 18, 2009, inspection revealed food in Respondent's walk-in cooler at temperatures greater than 41 degrees Fahrenheit, including ribs, pork, shrimp, poultry and milk that were observed at a temperature of 46 degrees Fahrenheit. In addition, according to Inspector Fulton's testimony and corroborating inspection report regarding the November 18, 2009, inspection of China Wok, there was prepared food in the kitchen found at temperatures less than 70 degrees Fahrenheit, including garlic in oil at 63 degrees Fahrenheit, fried chicken dumplings at 52 degrees Fahrenheit, and poultry at 44 degrees Fahrenheit. According to Inspector Fulton, those foods had not been prepared within six hours of the temperature readings. Inspector Fulton also noted prepared rice found in a rice cooker with a temperature of 70 degrees Fahrenheit. Respondent disputes the contents of the inspection report from the November 18, 2009, and refused to sign the report. At the hearing, Respondent first contended that the inspectors did not take temperatures during the November 18, 2009, inspection. In contradiction to that assertion, Respondent then testified that he asked the inspectors to re- check the temperatures the day of the inspection. Respondent also recalled checking the temperature with his own thermometer, but that the inspectors ignored the temperature readings he obtained. Both Inspector Fulton and Inspector D'Antonio recalled that temperatures were actually taken. During the final hearing, Inspector D'Antonio recalled that Respondent had tried to use his own thermometer but that it was not accurate. Considering Respondent's inconsistent testimony on the issue of whether temperatures were taken, and the combined testimony of Inspector Fulton and Inspector D'Antonio, and the corroborating inspection report, it is found that the reported temperatures were taken of the food during the November 18, 2009, inspection, and that the temperatures reported by Inspector Fulton are accurate. The food held at 46 degrees Fahrenheit in the walk-in cooler and the prepared food found in the kitchen discovered during the November 18, 2009, inspection of China Wok were potentially hazardous foods because they were held at temperatures different than allowed by the Food Code. Therefore, Respondent violated the Food Code, and, because foods out of permissible temperature ranges are some of the most likely sources of food-borne illnesses, Respondent's violation constitutes a critical violation. Another violation noted by Inspector Fulton during his testimony and in the inspection report from the November 18, 2009, inspection was misrepresentation of food or food product. According to Inspector Fulton’s testimony and the report submitted, the term "crab meat" was on the menu for rangoon, but no crab meat was used. Misrepresentation of food or food product is also classified as a critical violation. Such misrepresentation is listed as a critical violation because many people have food allergies and can become ill if they ingest food that is not properly identified. Although acknowledging that the term "crab meat" was on the menu and that the crab used in the rangoon was imitation crab, Respondent testified that he was not given a chance to correct the misrepresentation violation. In contrast, Inspector Fulton explained in his testimony that the Department requires its inspectors to immediately cite misrepresentation in order to protect customers with food allergies, and that no chance to correct misrepresentation of food is given prior to issuing a citation for the violation. Respondent further testified that there was a large sign inside the restaurant indicating that imitation crab meat is used. On cross-examination, however, Respondent could not recall whether he pointed out the sign to Inspector Fulton. Mr. Chen corrected the menu after he was cited for misrepresentation. Based on the testimony and corroborating inspection report, it is found that, although Respondent has since corrected the menu and put up a sign informing patrons that China Wok uses imitation crab meat, at the time of the November 18, 2009, inspection, Respondent was knowingly and willfully misrepresenting imitation crab meat as "crab meat" on China Wok's menu. That violation constitutes a critical violation.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department enter a final order, which confirms the violations found during the inspections of China Wok conducted on June 19 and November 18, 2009, and imposes an administrative penalty in the amount of $375.00 for the violations discovered during the inspection conducted June 19, 2009, and $875.00 for the violations discovered during the November 18, 2009. DONE AND ENTERED this 22nd day of December, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 22nd day of December, 2010.
The Issue Whether the allegations of the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Casa Mexicana Restaurant, Inc., d/b/a Casa Mexicana Restaurant, Inc. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2015).1/ At all times material to this case, the Respondent was operating as a licensed food service establishment located at 7730 Palm River Road, Suite 300, Tampa, Florida 33619. The Respondent is owned and operated by Antelma Cruz and Carlos Osoino, who were present at the hearing. On March 1, 2016, Ashley Herrmann, a sanitation and safety specialist employed by the Petitioner, performed an unannounced routine inspection of the Respondent, during which she observed various violations of the Code. The material violations in this case were related to the Respondent’s walk-in cooler. At the conclusion of the inspection, Ms. Herrmann prepared a written Food Service Inspection Report (Inspection Report) documenting the Code violations she had observed during her inspection. Before leaving the Respondent, Ms. Herrmann provided a copy of the Inspection Report to Antelma Cruz. The Inspection Report stated as follows: Inspector determined violations require further review, but are not an immediate threat to the public. WARNING: Violations in the operation of your establishment must be corrected by March 2, 2016 at 8:00:00 AM EST. According to the Inspection Report, a “callback” inspection was scheduled to occur “on or after” March 2, 2016. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On March 2, 2016, Ms. Herrmann returned to the Respondent’s location to conduct the callback inspection. At that time, Ms. Herrmann determined that some of the Code violations observed during the routine inspection had not been corrected. At the conclusion of the callback inspection, Ms. Herrmann prepared a written Callback Report documenting the uncorrected Code violations. Before leaving the premises, Ms. Herrmann provided a copy of the Callback Report to Antelma Cruz. The Callback Report stated as follows: Inspector determined violations require further review, but are not an immediate threat to the public. Time Extended. According to the Callback Report, a second callback inspection was scheduled to occur “on or after” March 3, 2016. On March 3, 2016, Ms. Herrmann returned to the Respondent’s location to conduct the second callback inspection. At that time, Ms. Herrmann determined that some of the Code violations observed during the routine inspection and the first callback inspection were still not corrected. At the conclusion of the second callback inspection, Ms. Herrmann prepared another written Callback Report documenting the uncorrected Code violations, wherein Ms. Herrmann recommended that administrative charges be filed against the Respondent for the uncorrected violations. Before leaving the premises, Ms. Herrmann provided a copy of the Callback Report to an employee identified as Ana Gonzalez, an employee of the Respondent. The Callback Report stated as follows: Inspector determined violations require further review, but are not an immediate threat to the public. ADMINISTRATIVE COMPLAINT recommended. The Code classifies violations as either “high priority,” “intermediate” or “basic,” essentially reflecting the level of threat to public health posed by non-compliance with Code requirements. A high priority violation is one that poses a direct or significant threat of causing food-borne illness to a person who consumes the product. In relevant part, Code Section 3-501.16(A)(2) requires that potentially hazardous food must be maintained at 41 degrees Fahrenheit or less, except during preparation, cooking, or cooling. The violations cited herein are high-priority violations because the failure to maintain the product at or below the required temperatures can result in bacteria growth that can cause food-borne illness in persons who consume the product. At the time of the routine inspection on March 1, 2016, Ms. Herrmann observed the following violations of food temperature requirements: Cheese-46 degrees; Raw chicken-46 degrees; Cooked peppers and onions-45 degrees; and Salsa-45 degrees. At the time of the first callback inspection on March 2, 2016, Ms. Herrmann observed the following violations of food temperature requirements: Cheese-48 degrees; Raw beef-46 degrees; Pico de gallo-48 degrees; Cooked beef-51 degrees; and Milk-43 degrees. At the time of the second callback inspection on March 3, 2016, Ms. Herrmann observed the following violations of food temperature requirements: Cheese-45 degrees; Pico de gallo-46 degrees; Salsa-45 degrees; Cooked potatoes-46 degrees; Raw beef-45 degrees; and Raw chicken-48 degrees. The Respondent does not dispute the food temperature violations alleged by the Petitioner. The Respondent has been the subject of four previous disciplinary actions. On May 19, 2014, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to sanitation deficiencies. In June 2014, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of $600. On October 8, 2014, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to food temperature control. In December 2014, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of $400. On August 11, 2015, the Petitioner issued an Order of Emergency Suspension of License and Closure for various code violations, including food temperature control, which “constituted a severe and immediate threat to public safety and welfare.” On August 12, 2015, the Petitioner issued an Order Vacating the Order of Emergency Suspension of License and Closure, stating that the threat had been resolved and the Respondent was permitted to reopen. On August 17, 2015, the Petitioner filed an Administrative Complaint against the Respondent alleging various high-priority violations of the Code related to pest infestation. In November 2015, the case was settled by agreement of the parties with the Respondent neither admitting nor denying the allegations of the Administrative Complaint. According to the Stipulation and Consent Order, the Respondent paid a fine of $800. At the hearing, Mr. Osoino testified on behalf of the Respondent about the difficulty the Respondent experienced in having the walk-in cooler repaired. According to Mr. Osoino, it took several attempts over the course of approximately a week to identify and repair the refrigeration malfunction that was the basis for the temperature control violations. Mr. Osoino also testified that penalizing the Respondent by closing the restaurant again would present an extreme hardship for his small business and its employees.
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 $1,250 against the Respondent. Additionally, the final order should require that the Respondent be required to successfully complete a remedial food safety training course within a time to be determined by the Petitioner. DONE AND ENTERED this 9th day of August, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2016.
The Issue The issue in this matter is whether Respondent was out of compliance with the food safety requirements of chapter 509, Florida Statutes (2015),1/ and the implementing administrative rules of the Department of Business and Professional Regulation, Division of Hotels and Restaurants; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Division is the state agency responsible for regulating the operation of public food service establishments in Florida pursuant to chapter 509. Respondent is a licensed public food service establishment in Florida and holds license no. 46-05722. Respondent operates a restaurant under the name of El Riconcito Mexicano located at 1454 Lee Boulevard, Lehigh Acres, Florida 33963. As a licensed public food service establishment, Respondent is subject to the Division's regulatory jurisdiction. Respondent must comply with the requirements of chapter 509 and its implementing rules. Respondent is subject to inspection by the Division. Jonathan Johnson ("Inspector Johnson") is employed by the Division as a Senior Sanitation Safety Specialist. Inspector Johnson has worked for the Division for approximately five years, serving approximately three years as a Senior Inspector and two years as an Inspector. Prior to working for the Division, Inspector Johnson worked in the food industry for two years. Upon gaining employment in the Division, Inspector Johnson was standardized on the federal Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Johnson is also a Certified Food Manager. Inspector Johnson receives continuing education training on a monthly basis. Inspector Johnson performs more than 1,000 inspections each year. Craig Brown ("Inspector Brown") is employed with the Division as a Sanitation Safety Specialist. Inspector Brown has worked for the Division for approximately two years. Upon gaining employment in the Division, Inspector Brown was standardized on the Food Code and trained on the laws and rules pertaining to public food service establishments and public lodging establishments. Inspector Brown is also a Certified Food Manager. Inspector Brown receives continuing education training on a monthly basis. Inspector Brown performs approximately 700 inspections each year. On February 3, 2015, Inspector Johnson conducted a food service inspection on Respondent. In a reach-in cooler in Respondent's kitchen, Inspector Johnson identified several food items which he found to be improperly stored. Specifically, measuring the temperature of the food items with a thermometer, Inspector Johnson observed chicken at 63ºF, lettuce at 48ºF, beans at 50ºF, beef stew at 49ºF, rice at 49ºF, and beef at 51ºF. An employee for Respondent informed Inspector Johnson that these foods had been stored in the reach-in cooler from the previous night and were not cooked, cooled, or prepared. During his February 3, 2015, inspection, Inspector Johnson prepared a Food Service Inspection Report. Inspector Johnson recorded the violations he observed on his report. Inspector Johnson informed Respondent that the violations needed to be corrected by February 4, 2015. Norma Arias signed Inspector Johnson's report acknowledging receipt on behalf of Respondent. On February 6, 2015, Inspector Brown performed a callback inspection on Respondent. The purpose of Inspector Brown's inspection was to follow-up on the previous inspection conducted by Inspector Johnson. During his callback inspection, Inspector Brown also measured the temperature of food items in the reach-in cooler in Respondent's kitchen. Inspector Brown observed shrimp, rice, potatoes, cut tomatoes, soup, chicken, and some sauces at 48ºF to 51ºF. According to Respondent's Manager, these foods were not being prepared, cooked, or cooled. Following his inspection, Inspector Brown prepared an inspection report indicating that Respondent had not corrected one of the violations Inspector Johnson had noted on his February 3, 2015, inspection report. This violation concerned the food Respondent stored in the reach-in cooler at a temperature greater than 41ºF. During inspections, Division Inspectors measure food temperatures by inserting a thermometer into the middle of a food item, waiting for the temperature reading to stabilize, and then recording the final temperature reading. Inspectors Johnson and Brown calibrate their thermometers at least once per week. Calibration is performed by filling a cup with ice, pouring water into the cup, and then inserting the thermometer into the water. The thermometer should read 32ºF. Based on the observations of Inspectors Johnson and Brown, the Division cited Respondent with a violation of rule 3-501.16(A)(2), Food Code. According to the Food Code, except during preparation, cooking, or cooling, potentially hazardous food shall be maintained at a temperature of 41ºF or less. See rule 3-501.16(A)(2)(a), Food Code. The Food Code classifies Respondent's violations as a priority item.3/ The Division has designated violations of priority items as "high priority violations." Potentially hazardous foods held in the danger zone, which is above 41ºF and under 135ºF, allows for the rapid growth of bacteria and can lead to foodborne illness. Respondent has two prior disciplinary Final Orders filed with the Agency Clerk for the Department of Business and Professional Regulations within the 24 months preceding the Administrative Complaint in this matter. The Final Order in case no. 2014011419 was filed on April 7, 2014, and the Final Order in case no. 2014050972 was filed on January 20, 2015. Based on the evidence and testimony presented during the final hearing, the Division demonstrated, by clear and convincing evidence, that on February 6, 2015, Respondent maintained potentially hazardous food at greater than 41ºF. Therefore, the Division met its burden to prove that Respondent failed to comply with the applicable food safety requirements of the Food Code and implementing administrative rules of the Division.
Recommendation Based on the foregoing 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 Respondent, Mexican Food El Rinconcito Mexicano, LLC, d/b/a El Riconcito Mexicano, in violation of chapter 509 and its implementing rules. It is further RECOMMENDED that Respondent should pay an administrative penalty in the amount of $1,000 for the high priority violation identified above, due and payable to the Division within 30 calendar days of the date the final order is filed with the Agency Clerk. DONE AND ENTERED this 28th day of July, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 28th day of July, 2015.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint dated June 4, 2012, and, if so, what disciplinary action should be taken against Respondent?
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (DBPR), 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, Matthews, located at 2107 Hendricks Avenue, Jacksonville, Florida 32207, holding Food Service license number 2612238. Emily Pudoff is employed by DBPR as a Sanitation and Safety Specialist in DBPR's Jacksonville office. Inspector Pudoff has worked for DBPR for approximately two-and-a-half years. Prior to working for DBPR, Inspector Pudoff was a server at Ruby Tuesday. Upon gaining employment with DBPR, Inspector Pudoff was standardized on the Food Code and trained on the laws and rules pertaining to public food and lodging establishments. Inspector Pudoff is also a Certified Food Manager and has been trained on Hazard Analysis and Critical Control Points. Inspector Pudoff performs approximately eight hundred inspections a year. Petitioner's second witness, Iliana Espinosa-Beckert, is also employed by DBPR as a Sanitation and Safety Specialist in the Jacksonville office. Inspector Espinosa-Beckert has worked for DBPR for approximately five years. Upon gaining employment with DBPR, Inspector Espinosa-Beckert was standardized on the Food Code and trained in the laws and rules pertaining to public food and lodging establishments. Inspector Espinosa-Beckert is also a Certified Food Manager and has been trained on Hazard Analysis and Critical Control Points. Inspector Espinosa-Beckert performs approximately six hundred inspections a year. Critical violations are violations that are more likely to contribute to contamination or an illness or an environmental health hazard. Non-critical violations are less likely to contribute to contamination or illness or an environmental health hazard. On June 28, 2011, Inspector Pudoff performed a "standardization inspection"2/ of Respondent, Matthews restaurant. During the inspection of Matthews, which lasted three hours and 55 minutes, Inspector Pudoff prepared and signed an inspection report setting forth the violations she observed during the inspection. Relevant to the issue to be determined in this proceeding, Inspector Pudoff observed potentially hazardous food cold not held at 41 degrees Fahrenheit or below. Specifically, Inspector Pudoff observed Italian ham at 53 degrees Fahrenheit,3/ and soft cheese4/ at 53 degrees Fahrenheit in a reach-in cooler. At the conclusion of the June 28, 2011, visit, Inspector Pudoff informed Respondent about the violations she had observed. Respondent's representative signed the inspection report, acknowledging receipt of the report. Also, at this time, Inspector Pudoff made the Respondent aware that all violations noted during the inspection needed to be corrected by August 29, 2011. On May 18, 2012, Inspector Espinosa-Beckert performed a routine food service inspection of Matthews. During this inspection, Inspector Espinosa-Beckert prepared and signed an inspection report indicating that some of the violations noted on the June 28, 2011, inspection report had not been corrected. Specifically, two cold food items were found to be at temperatures in excess of 41 degrees Fahrenheit. Those items were cooked onions and tomatoes at 47 degrees Fahrenheit in the prep area, and cheese at 50 degrees Fahrenheit in the prep area. At the conclusion of the May 18, 2012, inspection, Inspector Espinosa-Beckert notified Respondent of the repeat violations. The report indicated that Inspector Espinosa- Beckert was recommending that an administrative complaint be filed against Matthews based on a repeat temperature violation. Respondent's representative signed the inspection report, thereby acknowledging receipt of, but not the accuracy of, the report. Marshall Brown is the manager of Matthews, and was present during the second inspection. Manager Brown testified that Inspector Espinosa-Beckert incorrectly identified the onions and tomatoes as being cooked, when they were actually uncooked. Mr. Brown credibly testified: I confirmed that the onions and tomatoes were uncooked, but as you stated earlier, they were in a marination process with olive oil, fresh herbs and vinegar. So like you said, it looked like they were cooked, but it does —- it’s deceiving because when, you know, they’re soaking in those, they tend to break down and look like they’re cooked. But it’s an uncooked, room-temperature or cold salad that goes on top of a fish preparation. Uncooked vegetables are non-potentially hazardous and do not need to be cold held at 41 degrees Fahrenheit or below, while cooked vegetables are potentially hazardous and must be cold held at 41 degrees Fahrenheit or below. In this instance, the more credible testimony established that the onions and tomatoes were uncooked, and therefore did not need to be held at 41 degrees Fahrenheit or below. The second food alleged to have been out of compliance during the second inspection was a soft cheese, identified at hearing as Mozzarella, located in the food preparation area. Inspector Espinosa-Beckert reported the temperature of the approximately two-inch thick piece of cheese to be 50 degrees Fahrenheit. However, Manager Brown testified that he and the restaurant's chef personally checked the temperature of the cheese 10 to 15 minutes after Inspector Espinosa-Beckert, and they recorded the temperature at 40 degrees. Although additional ice had been added adjacent to the pan in which the cheese was located, Manager Brown testified that based upon his more than 20 years’ experience in the restaurant business it would have taken at least an hour to drop the temperature of the cheese by 10 degrees had the cheese actually been at 50 degrees as reported by Inspector Espinosa-Beckert. This testimony was unrebutted by Petitioner. Matthews is extremely diligent in complying with food temperature standards, and has systems in place to ensure that those standards are met. For example, the restaurant's coolers are equipped with “instant-read” thermometers. The cooler temperatures are monitored daily and those temperatures are recorded on a daily log. Preventive maintenance is performed on the coolers monthly to ensure their proper functioning. The facts adduced at hearing do not clearly and convincingly establish that the temperatures of the two food items cited in the May 18, 2012, inspection were out of compliance with Rule 3-501.16(A), Food Code.
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 that finds Respondent not guilty as charged in the Administrative Complaint. DONE AND ENTERED this 31st day of January, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 31st day of January, 2013.
