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.


View Dockets  
Summary: Critical food code violations require a penalty.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF HOTELS AND )

21RESTAURANTS, )

23)

24Petitioner, )

26)

27vs. ) Case No. 10-0907

32)

33JAZZY DOG CAFE, )

37)

38Respondent. )

40)

41RECOMMENDED ORDER

43On April 28, 2010, an administrative hearing in this case

53was held by video teleconference in Orlando and Tallahassee,

62Florida, before William F. Quattlebaum, Administrative Law

69Judge, Division of Administrative Hearings.

74APPEARANCES

75For Petitioner: Vanya Y. Atanasova,

80Qualified Representative

82Charles F. Tunnicliff, Esquire

86Department of Business and

90Professional Regulation

92Northwood Centre

941940 North Monroe Street

98Tallahassee, Florida 32399-2202

101For Respondent: Debbie Arent, pro se

107Jazzy Dog Cafe

1101311 Sligh Boulevard

113Orlando, Florida 32806

116STATEMENT OF THE ISSUES

120The issues in the case are whether the allegations of the

131Administrative Complaint are correct, and, if so, what penalty

140should be imposed.

143PRELIMINARY STATEMENT

145By Administrative Complaint dated October 21, 2009, the

153Department of Business and Professional Regulation, Division of

161Hotels and Restaurants (Petitioner), alleged that the Jazzy Dog

170Cafe (Respondent), a restaurant owned and operated by Debbie

179Arent, was determined, after inspection, to be in violation of

189specified food safety regulations. The Respondent disputed the

197allegations and requested a formal administrative hearing. On

205February 19, 2010, the Petitioner forwarded the dispute to the

215Division of Administrative Hearings, which scheduled and

222conducted the formal hearing.

226At the hearing, the Petitioner presented the testimony of

235one witness and had Exhibits 1 through 4 admitted into evidence.

246Ms. Arent testified on behalf of the Respondent and presented

256the testimony of one additional witness.

262The Transcript of the hearing was filed on June 10, 2010.

273The Petitioner filed a Proposed Recommended Order on June 22,

2832010.

284FINDINGS OF FACT

2871. The Petitioner is the state agency charged with

296regulation of hotels and restaurants pursuant to Chapter 509,

305Florida Statutes (2009).

3082. At all times material to this case, the Respondent was

319a restaurant operating at 1311 Sligh Boulevard, Orlando, Florida

32832806, and holding food service license number 5811824.

3363. On June 12, 2009, Andrea Piel, a trained sanitation

346safety specialist employed by the Petitioner, performed a

354routine inspection of the Respondent.

3594. During the June 12, 2009, inspection, Ms. Piel observed

369two general types of food code violations that she deemed to be

"381critical": a failure to maintain proper food temperatures; and

391a failure to identify the dates upon which certain prepared or

402processed food products were presented for sale.

4095. Critical food code violations are those that, if

418uncorrected, present an immediate threat to public safety.

4266. During the June 12, 2009, inspection, Ms. Piel observed

436that a "maketable" reach-in cooler was unable to maintain proper

446temperature and that potentially hazardous cold foods were being

455held in the cooler at temperatures greater than 41 degrees.

4657. The failure to maintain proper food temperatures can

474result in rapid bacterial contamination sufficient to cause

482serious illness in persons consuming improperly stored food.

4908. During the June 12, 2009, inspection, Ms. Piel notified

500Debbie Arent of the problem with the cooler, and Ms. Arent

511transferred the food product held from the malfunctioning cooler

520to one that was maintaining proper temperature.

5279. During the same inspection, Ms. Piel observed that food

537products being offered for sale lacked date markings important

546to determining the shelf life of the products.

55410. Prepared and packaged foods have a shelf life of seven

565days when maintained at proper temperatures. Such foods must be

575date-marked to permit determination of the shelf life of the

585product.

58611. The failure to identify the date upon which packaged

596or prepared food products are made available for sale can result

607in food being offered for sale beyond proper shelf life.

617Consumption of food beyond the shelf life, even if stored at

628proper temperatures, can increase the risk of food-borne illness

637in persons consuming the food.

64212. During the June 12, 2009, inspection, Ms. Piel

651observed potentially hazardous ready-to-eat food products

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

667were not properly date-marked.

67113. Ms. Piel also observed packaged processed foods

679including cheese, deli meats, and hot dogs, opened and presented

689for sale, that were not properly date-marked.

69614. Ms. Piel performed a callback inspection on June 16,

7062009, at which time she determined that the critical

715deficiencies observed on June 12, 2009, had been cured or that

726additional time was required for correction. At the time of the

737callback inspection, no food was present in the malfunctioning

746cooler, and Ms. Arent had scheduled a service call to address

757the problem.

75915. On October 6, 2009, Ms. Piel performed a routine

769inspection, at which time she observed several critical food

778code violations that were the same as those cited in the

789June 12, 2009, inspection report.

79416. During the October 6, 2009, inspection, Ms. Piel

803observed that once again, the "maketable" reach-in cooler was

812not maintaining proper temperature and that potentially

819hazardous cold foods were being held in the cooler at

829temperatures greater than 41 degrees.

83417. At the hearing, Ms. Arent testified that the reason

844the foods held in the cooler were not at proper temperature on

856October 6, 2009, was because Ms. Piel opened the cooler doors

867and left them opened for upwards of ten minutes, which,

877Ms. Arent suggested, allowed the food in the cooler to warm.

88818. Ms. Arent's testimony was not credible on this point

898and has been rejected. Ms. Arent offered no rationale as to why

910Ms. Piel would want to raise the food temperature readings for

921the food products stored in the cooler.

92819. During the October 6, 2009, inspection, Ms. Piel

937observed cheeses and prepared cheese sauce, sausage, beans, deli

946meats, hot dogs, and potatoes that were available for sale and

957not properly date marked.

96120. Ms. Arent testified that no prepared or packaged foods

971were generally retained for sale after the date upon which the

982products were prepared or opened.

98721. Ms. Arent indicated that packaged processed foods were

996opened in quantities that would be sold on the date in question

1008and that foods that remained from catering work were generally

1018not offered for sale to customers of the restaurant.

102722. Ms. Arent asserted that it would be "ridiculous" to

1037label the packages with the open date.

104423. Ms. Arent testified at the hearing that "99 percent"

1054of prepared foods observed by Ms. Piel were made on the morning

1066of the inspection. The apparent assertion that essentially no

1075food is carried from one day to the next lacked credibility,

1086given the types of processed foods (cheeses, deli meats, hot

1096dogs) that were not date-marked.

110124. Ms. Arent was present in the establishment during the

1111inspections referenced herein. At the time of each inspection,

1120Ms. Piel produced a written report of her findings and provided

1131a copy of the report to Ms. Arent.

1139CONCLUSIONS OF LAW

114225. The Division of Administrative Hearings has

1149jurisdiction over the parties to and the subject matter of this

1160proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

116826. The Petitioner is the state agency charged with the

1178regulation of food service establishments in the State of

1187Florida. See Ch. 509, Fla. Stat. (2009). The Petitioner has

1197adopted by incorporation the various provisions of the Food Code

1207referenced herein. Fla. Admin. Code R. 61C-4.010(1).

121427. The Administrative Complaint alleged violations of the

1222food code provisions cited herein. The Petitioner has the

1231burden of proving by clear and convincing evidence the

1240allegations set forth in the Administrative Complaint against

1248the Respondent. Department of Banking and Finance v. Osborne

1257Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

1268Turlington , 510 So. 2d 292 (Fla. 1987). The burden has been

1279met.

128028. The Administrative Complaint charged the Respondent

1287with a violation of Food Code Rule 3-501.17(B), which provides

1297as follows:

1299Except as specified in ¶¶ (D) - (F) of this

1309section, refrigerated, ready-to-eat,

1312potentially hazardous food (time/temperature

1316control for safety food) prepared and

1322packaged by a food processing plant shall be

1330clearly marked, at the time the original

1337container is opened in a food establishment

1344and if the food is held for more than

135324 hours, to indicate the date or day by

1362which the food shall be consumed on the

1370premises, sold, or discarded, based on the

1377temperature and time combinations specified

1382in (A) of this section and:

1388(1) The day the original container is

1395opened in the food establishment shall be

1402counted as Day 1; and

1407(2) The day or date marked by the food

1416establishment may not exceed a

1421manufacturer’s use-by date if the

1426manufacturer determined the use-by date

1431based on food safety.

143529. The Administrative Complaint charged the Respondent

1442with a violation of Food Code Rule 3-501.17(A), which provides

1452as follows:

1454Except when packaging food using a reduced

1461oxygen packaging method as specified under §

14683-502.12, and except as specified in ¶¶ (D)

1476and (E) of this section, refrigerated,

1482ready-to-eat, potentially hazardous food

1486(time/temperature control for safety food)

1491prepared and held in a food establishment

1498for more than 24 hours shall be clearly

1506marked to indicate the date or day by which

1515the food shall be consumed on the premises,

1523sold, or discarded, based on the temperature

1530and time combinations specified below. The

1536day of preparation shall be counted as

1543Day 1.

1545(1) 5°C (41°F) or less for a maximum of

15547 days; or

1557(2) 7°C (45°F) or between 5°C (41°F) and

15657°C (45°F) for a maximum of 4 days in

1574existing refrigeration equipment that is not

1580capable of maintaining the food at 5°C

1587(41°F) or less if:

1591(a) The equipment is in place and in use in

1601the food establishment, and

1605(b) Within 5 years of the regulatory

1612authority's adoption of this Code, the

1618equipment is upgraded or replaced to

1624maintain food at a temperature of 5°C (41°F)

1632or less.

163430. The evidence established that the Respondent failed to

1643clearly mark food products as required by the aforementioned

1652provisions of the Food Code. Ms. Arent's assertion that no food

1663products were held for more than 24 hours lacked credibility and

1674has been rejected.

167731. The Administrative Complaint charged the Respondent

1684with a violation of Food Code Rule 3-501.16(A), which provides

1694in relevant part as follows:

1699(A) Except during preparation, cooking, or

1705cooling, or when time is used as the public

1714health control as specified under section 3-

1721501.19, and except as specified under ¶ (B)

1729of this section, potentially hazardous food

1735(time/temperature control for safety food)

1740shall be maintained:

1743* * *

1746(2) At a temperature specified in the

1753following:

1754(a) 5°C (41°F) or less

175932. The evidence established that the Respondent failed to

1768maintain storage of potentially hazardous foods at a temperature

1777of 41 degrees or less as required by the aforementioned

1787provision of the Food Code.

179233. The Administrative Complaint charged the Respondent

1799with a violation of Food Code Rule 4-301.11, which provides as

1810follows:

18114-301.11 Cooling, Heating, and Holding

1816Capacities.

1817EQUIPMENT for cooling and heating FOOD, and

1824holding cold and hot FOOD, shall be

1831sufficient in number and capacity to provide

1838FOOD temperatures as specified under

1843Chapter 3.

184534. The evidence failed to establish that the Respondent

1854did not have sufficient equipment in number and capacity to

1864maintain the required food temperatures. The evidence

1871established that, when Ms. Arent was advised that food

1880temperatures were not being maintained, the affected food

1888products were moved to other coolers.

189435. Subsection 509.261(1), Florida Statutes (2009),

1900provides that each offense is punishable by a fine not to exceed

1912$1,000 per offense. In addition, offenses may be disciplined by

1923mandatory attendance at an educational program sponsored by the

1932Hospitality Education Program, or by suspension, revocation, or

1940refusal of a license.

1944RECOMMENDATION

1945Based on the foregoing Findings of Fact and Conclusions of

1955Law, it is RECOMMENDED that the Department of Business and

1965Professional Regulation, Division of Hotels and Restaurants,

1972enter a final order imposing a fine of $500 against the Jazzy Dog

1985Cafe and requiring that Debbie Arent complete an appropriate

1994educational program related to the violations identified herein.

2002DONE AND ENTERED this 12th day of July, 2010, in

2012Tallahassee, Leon County, Florida.

2016S

2017WILLIAM F. QUATTLEBAUM

2020Administrative Law Judge

2023Division of Administrative Hearings

2027The DeSoto Building

20301230 Apalachee Parkway

2033Tallahassee, Florida 32399-3060

2036(850) 488-9675

2038Fax Filing (850) 921-6847

2042www.doah.state.fl.us

2043Filed with the Clerk of the

2049Division of Administrative Hearings

2053this 12th day of July, 2010.

2059COPIES FURNISHED :

2062Debbie Arent

2064Jazzy Dog Cafe

20671311 Sligh Boulevard

2070Orlando, Florida 32806

2073Vanya Y. Atanasova

2076Charles F. Tunnicliff, Esquire

2080Department of Business and

2084Professional Regulation

2086Northwood Centre

20881940 North Monroe Street

2092Tallahassee, Florida 32399-2202

2095Reginald Dixon, General Counsel

2099Department of Business and

2103Professional Regulation

2105Northwood Centre

21071940 North Monroe Street

2111Tallahassee, Florida 32399-0792

2114William L. Veach, Director

2118Division of Hotels and Restaurants

2123Department of Business and

2127Professional Regulation

2129Northwood Centre

21311940 North Monroe Street

2135Tallahassee, Florida 32399-0792

2138NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2144All parties have the right to submit written exceptions within

215415 days from the date of this Recommended Order. Any exceptions

2165to this Recommended Order should be filed with the agency that

2176will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/22/2010
Proceedings: (Agency) Final Order filed.
PDF:
Date: 09/21/2010
Proceedings: Agency Final Order
PDF:
Date: 07/12/2010
Proceedings: Recommended Order
PDF:
Date: 07/12/2010
Proceedings: Recommended Order (hearing held April 28, 2010). CASE CLOSED.
PDF:
Date: 07/12/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/22/2010
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 06/10/2010
Proceedings: Transcript filed.
Date: 04/28/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/27/2010
Proceedings: Letter to Judge Quattlebaum from D. Arent regarding exhibit 1 filed.
PDF:
Date: 04/26/2010
Proceedings: Order Accepting Qualified Representative.
PDF:
Date: 04/20/2010
Proceedings: Affidavit for Vanya Atanasova filed.
PDF:
Date: 04/20/2010
Proceedings: Petitioner's Motion to Accept Qualified Representative filed.
PDF:
Date: 04/14/2010
Proceedings: Notice of Transfer.
PDF:
Date: 04/12/2010
Proceedings: Petitioner's Exhibit List (exhibits not attached) filed.
PDF:
Date: 04/12/2010
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 03/09/2010
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 28, 2010; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 02/26/2010
Proceedings: Response to Initial Order filed.
PDF:
Date: 02/22/2010
Proceedings: Initial Order.
PDF:
Date: 02/19/2010
Proceedings: Election of Rights filed.
PDF:
Date: 02/19/2010
Proceedings: Administrative Complaint filed.
PDF:
Date: 02/19/2010
Proceedings: Agency referral filed.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
02/19/2010
Date Assignment:
04/14/2010
Last Docket Entry:
09/22/2010
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (3):

Related Florida Rule(s) (1):