09-006496 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Mama B's Status: Closed Recommended Order on Tuesday, February 16, 2010.

Summary: Food establishment was not maintaining food at proper temperatures.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 09-6496

)

MAMA B.’S, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on, January 14, 2010, by video teleconference in Tallahassee and

Orlando, Florida, before Susan B. Harrell, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Chris Adamik, pro se

Mama B.’s

692 North Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent has

violated Food Code Rules 3-501.17(B), 3-501.16(A), 3-501.15,

and 3-305.11, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On July 31, 2009, Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants

(Department), filed an Administrative Complaint against

Respondent, Mama B.’s, alleging that Mama B.’s had violated Food

Code Rules 3-501.17(B), 3-501.16(A), 3-501.15, and 3-305.11,

which are incorporated by reference in Florida Administrative

Code Rule 61C-1.001(14). Mama B.’s requested an administrative

hearing, and the case was forwarded to the Division of

Administrative Hearings on November 23, 2009.

At the final hearing, Andrea Piel testified on behalf of

the Department. Petitioner’s Exhibits 1 through 3 were

admitted in evidence. Official recognition was taken of

Subsection 509.032(6), Florida Statutes (2009) 1 ; Florida

Administrative Code Rule 61C-1.001(14); and Food Code

Rules 3-305.11, 3-501.15, 3-501.16(A), and 3-501.17(B).

At the final hearing, Chris Adamik, an owner of Mama B.’s,

testified on behalf of Mama B.’s. Respondent’s Composite

Exhibit 1 was admitted in evidence.

The Transcript was filed on February 1, 2010. The parties

agreed to submit their proposed recommended orders within ten

days of the filing of the Transcript. Petitioner filed

Petitioner’s Proposed Recommended Order on February 11, 2010.

As of the date of this Recommended Order, Respondent had not

filed a proposed recommended order.

FINDINGS OF FACT

1. Mama B.’s is a restaurant located in Orlando, Florida.

The Department is the state agency which is charged with the

licensing and regulation of public food establishments in

Florida pursuant to Section 20.165 and Chapter 509, Florida

Statutes.

2. On July 13, 2005, Andrea Piel, an inspector for the

Department, went to Mama B.’s to perform a food service

inspection. Ms. Piel found that the sandwich cooler located at

Mama B.’s was not maintaining potentially hazardous food at

41 degrees Fahrenheit or below. Specifically, she found that

the temperature of the ham, turkey, and seafood in the reach-in

cooler was 47 degrees Fahrenheit. The temperature of the salami

in the reach-in cooler was 50 degrees Fahrenheit, and the

temperature of the pepperoni and pastrami stored in the reach-in

cooler was 48 degrees Fahrenheit. The temperature of the cheese

in the reach-in cooler was 42 degrees Fahrenheit.

3. On the same inspection, Ms. Piel also found that hot

foods were not being held at a temperature of at least

135 degrees Fahrenheit. She found the following on the front

line: cooked mushrooms at 115 degrees Fahrenheit, pastrami at

112 degrees Fahrenheit, and cooked onions at 130 degrees

Fahrenheit.

4. On her inspection on July 13, 2009, Ms. Piel also

observed that Mama B.’s was not using proper cooling methods to

cool hot food from 135 to 41 degrees Fahrenheit within six

hours. Steak was being cooled in deep containers with tight

fitting lids. Ms. Piel saw tomatoes being stored less than six

inches above the floor. There was ready-to-eat cheese, which

had been rewrapped and undated, stored in a cooler.

5. On July 13, 2009, Mama B.’s was given a warning by

Ms. Piel, and a call-back inspection was scheduled for July 14,

2009. Ms. Piel went back to Mama B.’s on July 15, 2009, for the

call-back inspection. She again observed that tomatoes were

being stored about an inch off the ground. There was food being

stored in the sandwich cooler at temperatures above 41 degrees

Fahrenheit. The cooler contained ham and salami at 48 degrees

Fahrenheit; capicola and seafood at 50 degrees Fahrenheit;

turkey, cheese, and egg salad at 46 degrees Fahrenheit; and gyro

meat at 45 degrees Fahrenheit.

6. On July 15, 2009, Ms. Piel also saw steak and onions,

which were being cooled in deep containers with tight fitting

lids. She also saw hot pastrami being held at 125 degrees

Fahrenheit. Ms. Piel testified that the pastrami being held was

not for orders waiting to be filled. Ms. Piel did not explain

how she knew that there were no other orders for pastrami

sandwiches.

7. Mr. Adamik, an owner of Mama B.’s who was present at

the time of the July 15, 2009, inspection, testified that there

were several orders for pastrami sandwiches, which were being

filled at the time Ms. Piel observed the pastrami. According to

Mr. Adamik, the rolls were already placed on the board awaiting

the placement of the pastrami, but, because the preparation area

was so small, it was impossible to completely prepare more than

one pastrami sandwich at a time. Mr. Adamik’s testimony is

credited. The pastrami, which Ms. Piel observed, was being used

for immediate service in response to consumer orders.

8. The cooler in which the food was being stored above

41 degrees Fahrenheit had been in operation at Mama B.’s since

the late 1990’s. The machine cools from beneath and does not

also cool from the top as newer models do. After the violations

were noted on July 15, 2009, the old cooler was replaced.

Mama B.’s had contacted a repairman after the July 13, 2009,

inspection, but the cooler could not be repaired so as to make

it cool foods at 41 degrees Fahrenheit or less.

9. Mr. Adamik knew that the location of the tomatoes was a

violation, but he did not correct it by the July 15, 2009,

because he was busy trying to get the cooler repaired.

Mr. Adamik had no explanation why the ready-to-eat food, which

had been opened at Mama B.’s, did not have appropriate date

marks.

10. Violations of Food Code Rules 3-305.11, 3-501.15,

3-501.16(A), and 3-501.17(B) are considered to be critical

violations by the Department.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

12. Petitioner has the burden to establish the allegations

in the Administrative Complaint by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996).

13. Subsection 509.032, Florida Statutes, provides that

the Division of Hotels and Restaurants (Division) shall adopt

such rules as are necessary to carry out the provisions of

Chapter 509, Florida Statutes. The Division has adopted Florida

Administrative Code Rule 61C-1.001(14), which provides:

(14) Food Code-–This term as used in

Chapters 61C-1, 61C-3, and 61C-4, F.A.C.,

means paragraph 1-201.10(B), Chapter 2,

Chapter 3, Chapter 4, Chapter 5, Chapter 6,

and Chapter 7 of the Food Code, 2001

Recommendations of the United States Public

Health Service/Food and Drug Administration

including Annex 3: Public Health

Reasons/Administrative Guidelines ; Annex 5:

HACCP Guidelines of the Food Code; the 2001

Food Code Errata Sheet (August 23, 2002);

and Supplement to the 2001 FDA Food Code

(August 29, 2003), herein adopted by

reference. A copy of the Food Code,

as adopted by the division, is available

on the division’s Internet website

www.MyFloridaLicense.com/dbpr/hr. A copy of

the entire Food Code is available on the

U.S. Food and Drug Administration Internet

website. Printed copies of the entire Food

Code are available through the National

Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

14. The Department has alleged in the Administrative

Complaint that Mama B.’s violated Food Code Rules 3-501.17(B),

3-501.16(A), 3-501.15, and 3-305.11. Food Code Rule 3-305.11

provides:

Food Storage. (A) Except as specified in

paragraphs (B) and (C) of this section, food

shall be protected from contamination by

storing the food: (1) In a clean, dry

location; (2) Where it is not exposed to

splash, dust, or other contamination; and

(3) At least 6 inches above the floor.

(B) Food in packages and working containers

may be stored less than 6 inches above the

floor on case lot handling equipment as

specified under Section 4-204.122.

(C) Pressurized beverage containers, cased

food in waterproof containers such as

bottles or cans, and milk containers in

plastic crates may be stored on a floor that

is clean and not exposed to floor moisture.

15. The Department has established by clear and convincing

evidence that Mama B.’s violated Food Code Rule 3-301.11 by

storing tomatoes less than six inches from the ground.

16. Food Code Rule 3-501.15 provides:

Cooling methods. (A) Cooling shall be

accomplished with the time and temperature

criteria specified under Section 3-501.14 by

using one or more of the following methods

based on the type of food being cooled:

(1) Placing the food in shallow pans;

(2) Separating the food into smaller or

thinner portions; (3) Using rapid cooling

equipment; (4) Stirring the food in a

container placed in an ice water bath;

(5) Using containers that facilitate heat

transfer; (6) Adding ice as an ingredient;

or (7) Other effective methods. (B) When

placed in cooling or cold holding equipment,

food containers in which food is being

cooled shall be: (1) Loosely covered, or

uncovered if protected from overhead

contamination as specified under

subparagraphs 3-305.11(A)(2), during the

cooling period to facilitate heat transfer

from the surface of the food.

17. The Department has established by clear and convincing

evidence that cooked steak and onions were being cooled in deep

containers containing tight fitting lids, in violation of Food

Code Rule 3-501.15, which provides that approved cooling methods

may include placing the food in shallow containers, loosely

covering the food, or leaving the food uncovered if the food was

protected from contamination from above.

18. Food Code Rule 3-501.16(A) provides:

(A) Except during preparation, cooking,

or cooling, or when time is used as the

public health control as specified under

Section 3-501.19, and except as specified in

paragraph (B) of this section, potentially

hazardous food shall be maintained: (1) At

135 degrees Fahrenheit or above, except that

roasts cooked to a temperature and for a

time specified in paragraph 3-401.11(B) or

reheated as specified in paragraph 3-

403.11(E) may be held at a temperature of

130 degrees Fahrenheit or above; or (2) At a

temperature specified in the following:

(A) 41 degrees Fahrenheit or less.

19. The Department has established by clear and convincing

evidence that Mama B.’s stored food in a cooler at temperatures

above 41 degrees Fahrenheit. Mama B.’s argues that because the

cooler was old that it fell within the exception in Food Code

Rule 3-501.16(A)(2)(b), which provides that food may be

maintained at between 41 and 45 degrees Fahrenheit or less if

“the equipment is in place and in use in the Food Establishment”

and “within 5 years of the regulatory authority’s adoption of

this Code, the equipment is upgraded or replaced to maintain

food at a temperature of . . . 41ºF.”

20. The version of Florida Administrative Code

Rule 61C-1.001, which is at issue in this proceeding, was first

adopted and became effective on February 27, 2005. Thus,

Mama B.’s had until February 27, 2010, to replace any cooling

equipment which could not maintain food at 41 degrees

Fahrenheit. However, Mama B.’s was still required to maintain

the temperature of the cool foods between 41 degrees and

45 degrees Fahrenheit prior to February 27, 2010. The cooling

equipment that is at issue meets the exception contained in Food

Code Rule 3-501.16.

21. Food Code Rule 4-203.12 provides that measuring

devices of ambient air and water must be accurate within

±3 degrees Fahrenheit of the use range. Thus, Mama B.’s argues

that as long as the cold food is within 3 degrees Fahrenheit of

45 degrees Fahrenheit that the food is being maintained in

accordance with the Food Code. This argument is misplaced

because it was not the temperature of the air that was being

measured but the temperature of the food that was being

measured. Food Code Rule 4-203.11 requires that a measurement

device which is used to measure food in Fahrenheit degrees must

be accurate within ±2 degrees. The temperatures of the ham,

salami, capicola, and seafood were above 47 degrees Fahrenheit

at the inspection on July 15, 2009, and the Department has

established by clear and convincing evidence that Mama B.’s

violated Food Code Rule 3-501.16(A)(2)(b).

22. Food Code Rule 3-403.10 provides: “Cooked and

refrigerated food that is prepared for immediate service in

response to an individual consumer order, such as a roast beef

sandwich au jus, may be served at any temperature.” The

pastrami had been heated in response to several orders which

were being filled. Thus, the pastrami was not being held for

future orders. Mama B.’s was not in violation of Food Code

Rule 3-501.16 as it relates to the hot pastrami.

23. Food Code Rule 3-501.17(B) provides:

Except as provided in paragraphs (D) and (E)

of this section, refrigerated, ready-to-eat,

potentially hazardous food prepared and

packaged by a food processing plant shall be

clearly marked, at the time the original

container is opened in a food establishment

and if the food is held for more than

24 hours, to indicate the date or day by

which the food shall be consumed on the

premises, sold, or discarded, based on the

temperature and time combinations specified

in paragraph (A) of this section; and

(1) The day the original container is opened

in the food establishment shall be counted

as day 1; and (2) The day or date marked by

the food establishment may not exceed a

manufacturer’s use-by date if the

manufacturer determined the use-by date

based on safety.

24. The Department has established by clear and convincing

evidence that Mama B.’s violated Food Code Rule 3-501.17(B) by

storing cheese, which had been opened and rewrapped, without

properly marking the day or date by which the food must be

consumed, sold or discarded.

25. Florida Administrative Code Rule 61C-1.005(5)(a)

provides:

(a) “Critical violation” means a violation

determined by the division to pose a

significant threat to the public health,

safety, or welfare and which is identified

as a food borne illness risk factor, a

public health intervention, or critical in

DBPR Form HR-5022-014 Lodging Inspection

Report or DBPR Form HR-5022-015 Food Service

Inspection Report, incorporated by reference

in subsection 61C-1.002(8), F.A.C., and not

otherwise identified in this rule.

26. The violations which the Department has established by

clear and convincing evidence are critical violations. Florida

Administrative Code Rule 61C-1.005(6)(b) provides that an

administrative fine for a first offense critical violation

ranges from $250 to $500 per day for which the violation remains

uncorrected. No evidence was presented to show the exact date

the violations were corrected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Mama B.’s violated Food Code Rules 3-305.11, 3-501.15,

3-501.16(A), and 3-501.17(B); imposing a fine of $250 for the

violation of Food Code Rule 3-305.11; imposing a fine of $300

for the violation of Food Code Rule 3-501.15; imposing a fine of

$500 for the violation of Food Code Rule 3-501.16(A); and

imposing a fine of $400 for a violation of Food Code

Rule 3-501.17(B).

DONE AND ENTERED this 16th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Chris Adamik

Mama B.’s

692 North Orange Avenue

Orlando, Florida 32801

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.