10-000907 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Jazzy Dog Cafe Status: Closed Recommended Order on Monday, July 12, 2010.

Summary: Critical food code violations require a penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-0907

)

JAZZY DOG CAFE, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 28, 2010, an administrative hearing in this case

was held by video teleconference in Orlando and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vanya Y. Atanasova,

Qualified Representative

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Debbie Arent, pro se

Jazzy Dog Cafe

1311 Sligh Boulevard

Orlando, Florida 32806

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 21, 2009, the

Department of Business and Professional Regulation, Division of

Hotels and Restaurants (Petitioner), alleged that the Jazzy Dog

Cafe (Respondent), a restaurant owned and operated by Debbie

Arent, was determined, after inspection, to be in violation of

specified food safety regulations. The Respondent disputed the

allegations and requested a formal administrative hearing. On

February 19, 2010, the Petitioner forwarded the dispute to the

Division of Administrative Hearings, which scheduled and

conducted the formal hearing.

At the hearing, the Petitioner presented the testimony of

one witness and had Exhibits 1 through 4 admitted into evidence.

Ms. Arent testified on behalf of the Respondent and presented

the testimony of one additional witness.

The Transcript of the hearing was filed on June 10, 2010.

The Petitioner filed a Proposed Recommended Order on June 22,

2010.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with

regulation of hotels and restaurants pursuant to Chapter 509,

Florida Statutes (2009).

2. At all times material to this case, the Respondent was

a restaurant operating at 1311 Sligh Boulevard, Orlando, Florida

32806, and holding food service license number 5811824.

3. On June 12, 2009, Andrea Piel, a trained sanitation

safety specialist employed by the Petitioner, performed a

routine inspection of the Respondent.

4. During the June 12, 2009, inspection, Ms. Piel observed

two general types of food code violations that she deemed to be

"critical": a failure to maintain proper food temperatures; and

a failure to identify the dates upon which certain prepared or

processed food products were presented for sale.

5. Critical food code violations are those that, if

uncorrected, present an immediate threat to public safety.

6. During the June 12, 2009, inspection, Ms. Piel observed

that a "maketable" reach-in cooler was unable to maintain proper

temperature and that potentially hazardous cold foods were being

held in the cooler at temperatures greater than 41 degrees.

7. The failure to maintain proper food temperatures can

result in rapid bacterial contamination sufficient to cause

serious illness in persons consuming improperly stored food.

8. During the June 12, 2009, inspection, Ms. Piel notified

Debbie Arent of the problem with the cooler, and Ms. Arent

transferred the food product held from the malfunctioning cooler

to one that was maintaining proper temperature.

9. During the same inspection, Ms. Piel observed that food

products being offered for sale lacked date markings important

to determining the shelf life of the products.

10. Prepared and packaged foods have a shelf life of seven

days when maintained at proper temperatures. Such foods must be

date-marked to permit determination of the shelf life of the

product.

11. The failure to identify the date upon which packaged

or prepared food products are made available for sale can result

in food being offered for sale beyond proper shelf life.

Consumption of food beyond the shelf life, even if stored at

proper temperatures, can increase the risk of food-borne illness

in persons consuming the food.

12. During the June 12, 2009, inspection, Ms. Piel

observed potentially hazardous ready-to-eat food products

(specifically, potatoes) that had been prepared on site and that

were not properly date-marked.

13. Ms. Piel also observed packaged processed foods

including cheese, deli meats, and hot dogs, opened and presented

for sale, that were not properly date-marked.

14. Ms. Piel performed a callback inspection on June 16,

2009, at which time she determined that the critical

deficiencies observed on June 12, 2009, had been cured or that

additional time was required for correction. At the time of the

callback inspection, no food was present in the malfunctioning

cooler, and Ms. Arent had scheduled a service call to address

the problem.

15. On October 6, 2009, Ms. Piel performed a routine

inspection, at which time she observed several critical food

code violations that were the same as those cited in the

June 12, 2009, inspection report.

16. During the October 6, 2009, inspection, Ms. Piel

observed that once again, the "maketable" reach-in cooler was

not maintaining proper temperature and that potentially

hazardous cold foods were being held in the cooler at

temperatures greater than 41 degrees.

17. At the hearing, Ms. Arent testified that the reason

the foods held in the cooler were not at proper temperature on

October 6, 2009, was because Ms. Piel opened the cooler doors

and left them opened for upwards of ten minutes, which,

Ms. Arent suggested, allowed the food in the cooler to warm.

18. Ms. Arent's testimony was not credible on this point

and has been rejected. Ms. Arent offered no rationale as to why

Ms. Piel would want to raise the food temperature readings for

the food products stored in the cooler.

19. During the October 6, 2009, inspection, Ms. Piel

observed cheeses and prepared cheese sauce, sausage, beans, deli

meats, hot dogs, and potatoes that were available for sale and

not properly date marked.

20. Ms. Arent testified that no prepared or packaged foods

were generally retained for sale after the date upon which the

products were prepared or opened.

21. Ms. Arent indicated that packaged processed foods were

opened in quantities that would be sold on the date in question

and that foods that remained from catering work were generally

not offered for sale to customers of the restaurant.

22. Ms. Arent asserted that it would be "ridiculous" to

label the packages with the open date.

23. Ms. Arent testified at the hearing that "99 percent"

of prepared foods observed by Ms. Piel were made on the morning

of the inspection. The apparent assertion that essentially no

food is carried from one day to the next lacked credibility,

given the types of processed foods (cheeses, deli meats, hot

dogs) that were not date-marked.

24. Ms. Arent was present in the establishment during the

inspections referenced herein. At the time of each inspection,

Ms. Piel produced a written report of her findings and provided

a copy of the report to Ms. Arent.

CONCLUSIONS OF LAW

25. 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. (2009).

26. The Petitioner is the state agency charged with the

regulation of food service establishments in the State of

Florida. See Ch. 509, Fla. Stat. (2009). The Petitioner has

adopted by incorporation the various provisions of the Food Code

referenced herein. Fla. Admin. Code R. 61C-4.010(1).

27. The Administrative Complaint alleged violations of the

food code provisions cited herein. The Petitioner has the

burden of proving by clear and convincing evidence the

allegations set forth in the Administrative Complaint against

the Respondent. Department of Banking and Finance v. Osborne

Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). The burden has been

met.

28. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 3-501.17(B), which provides

as follows:

Except as specified in ¶¶ (D) - (F) of this

section, refrigerated, ready-to-eat,

potentially hazardous food (time/temperature

control for safety 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 (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 food safety.

29. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 3-501.17(A), which provides

as follows:

Except when packaging food using a reduced

oxygen packaging method as specified under §

3-502.12, and except as specified in ¶¶ (D)

and (E) of this section, refrigerated,

ready-to-eat, potentially hazardous food

(time/temperature control for safety food)

prepared and held in a food establishment

for more than 24 hours shall be clearly

marked 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 below. The

day of preparation shall be counted as

Day 1.

(1) 5°C (41°F) or less for a maximum of

7 days; or

(2) 7°C (45°F) or between 5°C (41°F) and

7°C (45°F) for a maximum of 4 days in

existing refrigeration equipment that is not

capable of maintaining the food at 5°C

(41°F) or less if:

(a) The equipment is in place and in use in

the food establishment, and

(b) 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 5°C (41°F)

or less.

30. The evidence established that the Respondent failed to

clearly mark food products as required by the aforementioned

provisions of the Food Code. Ms. Arent's assertion that no food

products were held for more than 24 hours lacked credibility and

has been rejected.

31. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 3-501.16(A), which provides

in relevant part as follows:

(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 under ¶ (B)

of this section, potentially hazardous food

(time/temperature control for safety food)

shall be maintained:

* * *

(2) At a temperature specified in the

following:

(a) 5°C (41°F) or less

32. The evidence established that the Respondent failed to

maintain storage of potentially hazardous foods at a temperature

of 41 degrees or less as required by the aforementioned

provision of the Food Code.

33. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 4-301.11, which provides as

follows:

4-301.11 Cooling, Heating, and Holding

Capacities.

EQUIPMENT for cooling and heating FOOD, and

holding cold and hot FOOD, shall be

sufficient in number and capacity to provide

FOOD temperatures as specified under

Chapter 3.

34. The evidence failed to establish that the Respondent

did not have sufficient equipment in number and capacity to

maintain the required food temperatures. The evidence

established that, when Ms. Arent was advised that food

temperatures were not being maintained, the affected food

products were moved to other coolers.

35. Subsection 509.261(1), Florida Statutes (2009),

provides that each offense is punishable by a fine not to exceed

$1,000 per offense. In addition, offenses may be disciplined by

mandatory attendance at an educational program sponsored by the

Hospitality Education Program, or by suspension, revocation, or

refusal of a license.

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 imposing a fine of $500 against the Jazzy Dog

Cafe and requiring that Debbie Arent complete an appropriate

educational program related to the violations identified herein.

DONE AND ENTERED this 12th day of July, 2010, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of July, 2010.

COPIES FURNISHED :

Debbie Arent

Jazzy Dog Cafe

1311 Sligh Boulevard

Orlando, Florida 32806

Vanya Y. Atanasova

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.