Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent, Tony's Prime Meats, Inc., (Tony's) is a Florida corporation which was dissolved for failure to file an annual report on August 13, 1993. The corporation is still doing business under the fictitious name of Scotti's Meats, Co., in Manatee County, Florida, at 510 7th Street East, Bradenton, Florida 34208-9020. At the time of the alleged violation, Respondent, Tony's Prime Meats, Inc. was an active and current Florida corporation. Respondent, Anthony Scotti, Jr., is a shareholder in, the registered agent for, and a corporate officer of, Tony's. Anthony Scotti, Jr. is shown on the corporate records as Anthony G. Scotti, and is a resident of Sarasota County, Florida. The Department is the agency of the State of Florida charged with the administration and enforcement of the provisions of Chapter 585, Florida Statutes. Respondents are engaged in the preparation of, and the offering for sale, animal products capable of use as human food and intended to be used as human food, pursuant to Chapter 585, Florida Statute. Tony's holds a Grant of Inspection, Number 335/P, pursuant to Section 585.74, Florida Statutes, from the Department. On June 2, 1993, meat inspection at Tony's had been withheld by Ernest Tipton, Meat Inspector with the Department, because of sanitary standards violations. At about 8:00 a.m. on June 4, 1993, Inspector Tipton visited Tony's to check on the facility. Arnie Lahtinen, an employee of Tony's who was in charge of the plant during the absence of Anthony Scotti, was present at the facility during Inspector Tipton's visit. During Inspector Tipton's visit, Lahtinen was performing plant improvement tasks in accordance with deficiencies noted when inspection had been withheld on June 2, 1993. Inspector Tipton did not observe the presence of any other employee in the establishment or observe any visible signs of meat processing occurring or observe any evidence that meat processing had been occurring prior to his visit. Inspector Tipton departed Tony's about 8:30 a.m. on June 4, 1993, but returned later in the morning around 10:00 a.m. to pick up some papers. Upon his return, Inspector Tipton observed a car parked at the facility which he identified as belonging to an employee of Tony's named Nick. However, there was no direct evidence that the car belonged to Nick or that Nick was present in the facility during the time in question on June 4, 1993. Inspector Tipton attempted to gain entry but found the facility locked. After ringing the doorbell and getting no response, Inspector Tipton then knocked on the back door but again, received no response. Since Lahtinen had been present in the facility during Inspector Tipton's earlier visit, he assumed Lahtinen was still in the facility, that meat processing was occurring in the facility, and that he was being denied access to the facility in violation of Chapter 585, Florida Statutes. Inspector Tipton determined that his best course of action was to contact his supervisor, Melody Cara. After contacting Ms. Cara, Inspector Tipton contacted the police on the advice of Ms. Cara. Upon her arrival at the facility, Ms. Cara made a similar attempt to gain entry by ringing the door bell and knocking on the door but there was no response. Anthony Scotti arrived at the facility shortly after Ms. Cara and the police officer, and immediately unlocked the facility to allow Ms. Cara, Inspector Tipton and the police officer entry into the facility. When Inspector Tipton, Ms. Cara, Scotti and the police officer entered the facility, one of them turned the lights on in the lobby area and just a short time later Ms. Cara turned the lights on in the processing room. As Scotti and Ms. Cara were entering the processing room, Lahtinen came out of the processing room. The record does not reflect whether Lahtinen heard the door bell ring or the knocking on the door on either occasion and, if he did, why he did not respond. Other than Lahtinen, no other employees were observed in the facility at this time. Upon entering the lobby area, the police officer found a knife and an apron upon which there was a substance that resembled blood. No analysis of the substance on the apron and knife was conducted and the material was never identified as blood. The tables and the floors in the processing room were wet as if they had been washed. However, there was no direct evidence that meat processing had been occurring before the entry. There is insufficient evidence to establish facts to show that Inspector Tipton or Ms. Cara were intentionally denied entry into Tony's facility, or that meat processing had been occurring in Tony's establishment during the time in question on June 4, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing both Count I and Count II of the Administrative Complaint. It is further recommended that the request for attorney's fees and costs be denied without prejudice to the Respondents filing a petition under Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. DONE AND ENTERED this 14th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7087 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5); 6(7); 7(7,8); 8(9); 9(10,11); and 10(12). Proposed finding of fact 11 is neither material nor relevant to this proceeding. Proposed findings of fact 4 - 8 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. Proposed findings of fact 7 and 8 indicate that the parties were denied access which is rejected as not supported by competent substantial evidence in the record. Proposed finding of fact 10 indicates a bloody knife and apron were found on the premises. While a knife and apron with a substance appearing to be blood was found, it was never established that the substance was blood. Respondents' Proposed Findings of Fact: The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5,6); 6(7); 7(7,9); 8(10); 9(10-12)); 11(10); 12(14)and 13(11). Proposed finding of fact 10 is neither material nor relevant to this proceeding. Proposed findings of fact 4,5,6,7 & 9 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Isadore F. Rommes, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Thomas M. Fitzgibbons, Esquire SouthTrust Bank Plaza 1800 Second Street, Suite 775 Sarasota, Florida 34236 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact In February of 1983, petitioner Fred D. Wallace began working for respondent as a meat inspector. Although other meat inspectors were assigned to federal facilities for training, he never was. Petitioner feels he was not sent for training because he was black and that his having a bachelor's degree in agriculture had nothing to do with it. He also testified that unfavorable evaluations were attributable to his being black. Except for petitioner's race, the evidence did not establish the race of respondent's employees.
The Issue The issue in this case concerns whether the Respondent violated Sections and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following: two pig carcasses, one cow head, singed cow feet, beef lungs, and goat tripe. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following: goat feet (hide on), goat intestines, goat tripe, and beef lungs. None of the products bore marks of inspection, nor were they marked as "Not for Sale." The goat feet and beef lungs were adulterated with ingesta and were generally dirty. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993; Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May 1994.
The Issue The issue is whether Respondent's failure to hire Petitioner constituted discrimination on the basis of religion, as provided by section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner graduated from the University of Rhode Island with a bachelor's degree in marketing management. He has had an unbroken employment history from 1980 to present. Respondent was employed as a sales representative of casual and sports shoes in south Florida from 1980 to early 1997. After owning and operating a sandwich shop with 60 seats in Boca Raton for six years, Petitioner resumed work as a sales representative of sports shoes for two years. From 2006 through 2009, Petitioner was employed as a marketer and sales representative for various retail lines unrelated to food. For four and one-half years, ending in late 2013, Petitioner was employed as a merchandiser of various Nestle ice- cream products to Publix, Winn-Dixie, Target, and Walmart outlets in West Palm Beach; one of these products was Haagen-Dazs ice cream, which is a natural food. In 2014, Petitioner owned and operated a salad restaurant with 20 seats in Delray Beach. From 2015 to present, for 20 hours weekly, Petitioner has served as a concierge at a private tennis club in Boca Raton. Also, for 2017 and the first half of 2018, for 20 hours weekly, Petitioner also was employed as a merchandiser of Nabisco cookies and crackers to Publix, Walmart, and Target outlets from West Palm Beach to Fort Lauderdale; none of these products is a natural food. Respondent is a distributor of natural foods to retail outlets. At all material times, Respondent employed at least 15 persons for each working day in at least 20 calendar weeks. In 2017, Petitioner submitted a job application to Respondent for a full-time job as a merchandiser with Respondent. A representative of Respondent contacted Petitioner and set up an appointment for a job interview on July 12, 2017, at a Hampton Inn in Coconut Creek. Keith Olsen, Respondent's manager of retail merchandising, conducted the interview. The interview started unremarkably, as Mr. Olsen described the job, which entailed considerable air travel. Petitioner mentioned that he lived between two major airports. Mr. Olsen then asked Petitioner if he lived in a Jewish community. Petitioner replied that he lived by the beach. Examining Petitioner's resume, Mr. Olsen then asked if Petitioner was Jewish. Petitioner confirmed that he is Jewish. Mr. Olsen said that Respondent, which distributes four or five Kosher food items, sold Kosher food in Boca Raton and Delray Beach, and Mr. Olsen was interested in whether Petitioner might be able to reinvigorate Respondent's lagging Kosher sales. Petitioner then recited his experience in the food industry, and Mr. Olsen said that Petitioner had "plenty" of relevant experience. After Mr. Olsen summarized the benefits, Petitioner noted that he might save them some money on health insurance because he had his own. Mr. Olsen asked if his insurance was the "Obamacare crap," and Petitioner did not reply. Sensing that his inquiry about Petitioner's religion had irritated Petitioner, Mr. Olsen tried to regain his footing by recalling that, as a child, he had delivered newspapers to "Jews, Catholics, and Christians," but this comment, itself awkward, did not dispel the unease created by Mr. Olsen's earlier question of whether Petitioner was Jewish. To his credit, Mr. Olsen testified candidly, countering two or three specific items of Petitioner's testimony with no more than tepid "I don't recall" answers. His candor supports his remaining testimony concerning the interview process, as set forth immediately below. Respondent received over 200 applications for this position. Mr. Olsen scheduled 11 interviews for July 12, but only eight applicants showed up for their interviews. Having conducted numerous interviews for Respondent, Mr. Olsen always assesses interviewees as to five attributes: customer service, communication skill, ability to read planograms (i.e., diagrams showing the strategic placement of products on shelves), product knowledge, and awareness of national trends. Among the eight interviewees, Richard Magnum demonstrated his superior qualifications as to these five attributes. Mr. Magnum had over 17 years' experience in customer service and merchandising and was "very direct" with his answers. Petitioner's customer service and communication skills placed him third among the eight interviewees as to these attributes. Mr. Magnum also demonstrated easy familiarity with planograms and ranked first among the interviewees as to knowledge of the family of products purveyed by Respondent; Petitioner and another interviewee were tied for second as to product knowledge. As for national trends, Mr. Magnum "seemed to know what's going on." "National trends" seems to have something to do with marketing and the fact that Respondent has over 90,000 SKUs, which evidently underscores the large number of products handled by Respondent. Following the completion of the interview process, Respondent offered the job to Mr. Magnum, who was still employed by Respondent at the time of the hearing. On these facts, Petitioner has failed to prove that his qualifications were at least equal to those of Mr. Magnum.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of November, 2018, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Daniel Askinas 1208 East Atlantic Avenue, Apartment A Delray Beach, Florida 33483 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Albertson's terminated petitioner's employment on account of his religion, or failed to make reasonable accommodation for petitioner's religious observance or practice?
Findings Of Fact When petitioner Roger Dale Andrews began work on October 4, 1984, at Albertson's Panama City store, one of "over 430" (T. 99) Albertson's operates, he already had 28 years' experience cutting meat. A devout Jehovah's Witness, he was an elder or lay minister, as well as "the school overseer" (T. 12) in the Bonifay, Florida congregation. Some months after petitioner Andrews left a job application, Mike Jerald, who managed the Panama City store, telephoned and asked him to come for an interview. In the course of this initial interview, Mr. Andrews told Mr. Jerald that, because of his religious obligations "at certain times [he] wouldn't be able to work but . . . would be able to give [notice] in . . . advance . . . ." (T. 8,58) After talking it over with Eddie Powell, the meat market manager, Mr. Jerald offered petitioner a job as a meat cutter. Mr. Powell is himself a religious man, (T. 128) although not a Jehovah's Witness. Welcoming Mr. Andrews to the meat department, he remarked, prophetically, "Even if I have to work myself on a day that you have to preach, I will." (T. 11) Mr. Powell assigned shifts to himself, to Larry Myrick, the assistant meat manager, to Joe Baker, to Randy Raybon, a divorced man from Dothan, Alabama, and to petitioner, meat cutters all, as well as to the less skilled "meat wrapper" and "deli worker." As "the only one in the store really permitted to get overtime . . . [Mr. Powell] schedule[d him]self with 40, 48 hours and t[ook] what's left and normally divide[d] it up among employees." (T. 141) When petitioner began, he worked 40 hours a week, but later on he was among the meat cutters who worked fewer hours some weeks. The last week he was employed at Albertson's Mr. Powell assigned him 37.5 hours. Sunday Services "When a Sunday shopper asks [between six o'clock in the morning and eight or nine o'clock in the evening] for a specific cut of meat [, . . .] Albertson's management expect[s the] . . . meat market to provide it," (T. 183) and insists that a meat cutter be on hand for the purpose. Meat cutters are assigned to two overlapping eight-hour shifts each day. The first begins at six o'clock in the morning and the second at noon. (T. 140) Mr. Powell did not work Sundays because "there's three days that you send orders and three days that you receive orders and none of these are on Sundays." (T. 134) In October of 1984, Albertson's paid meat cutters time and a half for working Sundays and holidays, except Christmas, when the store was closed. They also earned time and a half for working more than eight hours in one day or more than forty hours a week. At first, Mr. Andrews worked afternoons Fridays and Saturdays, the store's two busiest days, (T. 154) and Mondays, Tuesdays and Wednesdays. (T. 54) He also worked Thanksgiving, and five or six (T. 152) Sunday afternoons. (T. 55) Joe Baker began working at Albertson's Panama City store before petitioner did, and generally preferred working Sundays, because of the higher pay. Each time Mr. Andrews worked on Sunday, it was at Mr. Baker's request. Mr. Andrews always honored these requests. (T.55) By prior agreement with Mr. Powell, he began at one o'clock, instead of noon. Letting Mr. Andrews begin at one o'clock made it possible for him to attend church services in Bonifay, 45 minutes distant by car; and still allowed an overlap: the meat cutter on the morning shift did not leave until two o'clock. While grateful for this consideration, Mr. Andrews had never insisted on it. Mr. Powell testified that he did not schedule petitioner for Sunday mornings partly because "he went to church and I wanted to work with him as much as I could." (T. 152) But the issue never really arose, because Mr. Powell deferred to the wishes of the assistant manager, who shared Mr. Baker's fondness for the additional remuneration Sunday hours afforded, and invariably worked as the meat cutter on the Sunday morning shift. Mr. Andrews consistently expressed a willingness to work any Sunday he was not scheduled to speak. In fact, he asked for the opportunity. Mr. Powell quoted him as saying "Hey, let me work any Sundays you need me. I could use the money." (T. 157) On four or five occasions, Mr. Powell let Mr. Andrews take Saturdays off. On no Saturday did Mr. Powell require another employee to work in Mr. Andrews' stead. Once "he wanted off to help build a church and there was something . . . they had at the civic center he wanted to be off to attend." (T. 154) When Mr. Andrews wanted Saturdays off, whether for secular or for religious reasons, he asked permission weeks in advance. Originally, he also gave ample notice of Sunday speaking engagements, and Mr. Powell noted them in his calendar. Mr. Andrews "always let him know as soon as [he] found out that [he] had the talks," (T. 63) giving usually two to six weeks' notice, until Mr. Powell told him "ain't no sense to write them down because Joe is always working." (T. 33) Everybody involved got "lackadaisical about it." (T. 33) Messrs. Powell and Andrews learned of Albertson's intention to stop paying time and a half for Sunday work, and to offer instead a premium of a dollar an hour, in February of 1986. When Mr. Andrews said, "Don't expect me to start working every Sunday," (T. 159) Mr. Powell answered, "Don't worry about it. You're not going to work every Sunday. We'll start swapping it out." Dies Irae On the afternoon of Friday, February 28, 1986, Mr. Powell telephoned Mr. Andrews, who was off that day, to tell him he was scheduled to work on Sunday, March 2, 1986. In response, Mr. Andrews told him for the first time of his commitment to speak not only to the Jehovah's Witnesses in Bonifay at ten o'clock on the morning of March 2, but also to the congregation in Defuniak Springs at two o'clock that Sunday afternoon, for 45 minutes or an hour on each occasion. Mr. Andrews had made the commitment six to nine weeks (T. 80) beforehand to speak the first Sunday in March. He was to give no ordinary "outlined" (T. 87) talk, but one in a sequence of eight lectures based on a book entitled Creation Revolution. The Watchtower Bible and Tract Society in Brooklyn, New York, had specified that lectures based on the chapters assigned to petitioner be given on March 2, 1986, "in the various congregations of Jehovah's Witnesses, approximately 52,000 congregations earthwide." (T. 88-89) Mr. Powell had already told Mr. Raybon that he could have Sunday off to visit his children in Dothan, had already told Mr. Baker he could be off because he "said that he was going to have I believe something to do with his family," (T. 162) had already scheduled Mr. Myrick to work the Sunday morning shift, and had scheduled himself to work 46 hours the week ending March 6, 1986, on days other than Sunday. He asked Mr. Andrews to try to find a substitute. This proved impossible, although Mr. Andrews telephoned W. C. "Doc" Faison, the "talk coordinator," (T. 79) in an effort to find somebody else. Telephone calls he placed to other elders went unanswered. Because preparation entailed reading several chapters of Creation Revolution thoroughly, no other elder had time to prepare properly, in any case. Rescheduling the services was not a feasible option, because of the number of people involved. Mr. Andrews called Mr. Powell back. He told him he was unable to avoid his obligations to speak to both congregations, but offered to report for work at six o'clock on Sunday afternoon. (T. 167,182) Mr. Powell testified that, after petitioner called him back and reported he had not found a substitute to speak at the services scheduled on Sunday, I asked him to keep trying. That I needed him to be at work Sunday. And he replied to me, he said, "No. I've got to do this. There's no one else that can do it." I said, "Well, do I need to take this as your resignation?" And he said, "Yes." Q. [By Ms. Gray] Following your conversation with Mr. Andrews on Friday, February 28, 1986, what was Mr. Andrews' employment status? A. He was terminated. Q. He was terminated or he quit? A. He quit. (T. 167-8) On a form he filled out that day, Mr. Powell wrote "voluntary quit," Respondent's Exhibit No. 10, but this was a "resignation" in name only. On February 28, 1986, respondent discharged petitioner when he refused to agree to report for work when requested on Sunday, March 2, 1986. (T. 181) Petitioner refused in order to keep conflicting commitments to participate in religious observances. In general, in an emergency, Mr. Powell "would take the person that was either off that day or was off the last one that had been off, the most rested one, and that's the one [he] would pull in." (T. 144) On March 2, 1986, he worked the afternoon shift himself, earning time and a half because he also worked the hours he had scheduled for himself on the following Monday, Tuesday, Wednesday and Thursday. As meat market manager, his ordinary hourly wage exceeded the $8.91 (T. 36) petitioner was paid.
The Issue The issues are whether Respondent committed food service violations, and, if so, whether disciplinary action should be taken. For the reasons set forth below, Respondent did commit violations and should be subject to the fine described herein.
Findings Of Fact At all times material to this matter, Respondent was licensed as a public food establishment in the State of Florida by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Department). Respondent's business address is 8084 North Davis Highway, No. A1, Pensacola, Florida. Petitioner's witness, Inspector Crowley, is employed by the Department as a senior sanitation safety specialist in Panama City Beach, Florida. He has worked for the Department for 12 years and has prior experience in the United States Air Force for 26 years, during which he also preformed public health inspections at food and lodging facilities. Inspector Crowley engages in continuing education on a regular basis and performs approximately 800 inspections a year. "Critical violations" are those that are likely to result in food-borne illness or environmental degradation. "Non-critical violations" are minor issues that are not classified as critical violations. Inspection reports are electronically prepared on a Personal Data Assistant by the inspector. On July 14, 2009, Inspector Crowley performed a routine food service inspection of Respondent at its location on North Davis Highway in Pensacola. During the inspection, Inspector Crowley prepared and signed an inspection report setting forth the violations he encountered during the inspection. On that same date, Inspector Crowley notified Respondent about the violations. Respondent's owner signed the inspection report. Also, Inspector Crowley made the owner aware that each violation noted during the inspection must be corrected by the next unannounced inspection. On December 14, 2009, Inspector Crowley performed a routine food service inspection of Respondent. During the inspection, Inspector Crowley prepared and signed an inspection report indicating that some of the violations noted on the July 14, 2009, inspection report had not been corrected. On that date, Inspector Crowley notified Respondent of the violations and the fact that he was recommending an administrative complaint. Respondent's owner signed the inspection report. The most serious violation was observed at both the July 14 and December 14 inspections. Inspector Crowley observed the handwash sink being used for purposes other than handwashing. This is a critical violation because handwashing is the best way to prevent food-borne illness within a public food service establishment. Mr. Wong testified that during both inspections a brush used for cleaning the sink had been left inside the handwash sink. Inspector Crowley observed the next most serious violation during the December 14 inspection, misrepresentation of food products. Imitation crab was advertised as genuine crab meat, and escolar was advertised as white tuna. This constitutes a critical violation because patrons could unknowingly ingest foods causing an allergic reaction or illness. The misrepresentation of food items had been corrected at the time of hearing. Mr. Wong admitted that the escolar labeling had been incorrect, but that the crab labeling was only a handwritten note to the chefs in the area where they work both with soft-shelled crabs (real crab) and imitation crab used in sushi products. The patrons are not served imitation crab when the dish calls for real crab or real crab when the dish calls for imitation crab. Regardless of the corrective actions taken, the Department's policy is to immediately issue an administrative complaint when a misrepresentation violation is noted. The next most serious violation noted by Inspector Crowley occurred during both the July 14 and December 14 inspections. He observed the use of a grooved and pitted cutting board that was no longer cleanable. This constitutes a violation because dirt and food remain in the grooves even after the cutting board has been washed, allowing bacteria to grow, which can lead to future contamination of food products. Respondent was unable to remove the cutting board after the July 14 inspection because it was part of the counter where food preparation occurs. Mr. Wong testified that it is used only as a table since the July 14 inspection, not as a cutting board. He admitted that bacteria on the board could be transferred to the underside of food-bearing plates placed on it. The next most serious violation was observed by Inspector Crowley at both the July 14 and December 14 inspections. He observed a buildup of grease on the surface of equipment that does not come into contact with food. This constitutes a violation of cleanliness standards which can ultimately lead to food-borne illness. Inattention while cleaning led to the buildup of grease on equipment surfaces.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty in the amount of $500 for the critical violation concerning the mislabeling of the escolar; $500 for the critical violation of using the handwashing sink for purposes other than handwashing; $150 for the non-critical violation of continuing to use the grooved and pitted cutting board; and $150 for the non-critical violation of allowing grease to accumulate on non- food contact surfaces. The total fine in the amount of $1,300 shall be paid to the Division of Hotels and Restaurants within 30 days of the entry of its final order. DONE AND ENTERED this 18th day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of January, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Christopher Wong Teriyaki Cafe Sushi and Grill 8084 North Davis Highway, Suite A1 Pensacola, Florida 32514 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
