10-010495 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Olive Tree Restaurant Status: Closed Recommended Order on Friday, July 15, 2011.

Summary: Respondent committed three critical violations and three non-critical violations of the Food Code. A fine in the amount of $1,200 is warranted.

Case No. 10-10495

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, RECOMMENDED ORDER )

DIVISION OF HOTELS AND )

RESTAURANTS, )

Petitioner, )

)

vs. )

)

OLIVE TREE RESTAURANT, )

)

Respondent. )

)

)

A telephonic final hearing was held in this matter before

Robert S. Cohen, Administrative Law Judge with the Division of

Administrative Hearings (DOAH), on February 11, 2011.

APPEARANCES

For Petitioner: Megan Demartini, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Paul Parnos, pro se

Olive Tree Restaurant

963 North Suncoast Boulevard

Crystal River, Florida 34429

STATEMENT OF THE ISSUE

The issue is whether Respondent violated provisions of the

Food Code and, if so, should be penalized for such violations.

For the reasons set forth below, Respondent has committed

violations for which he should be penalized.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent on January 26, 2010, alleging a violation of

chapter 509, Florida Statutes, and related rules. Respondent

timely disputed the allegations contained in the Administrative

Complaint and requested a hearing before DOAH involving disputed

issues of material fact.

At the hearing, Petitioner presented the testimony of Jill

Craig and offered three exhibits, which were accepted into

evidence. Official recognition was taken of section 509.032(6),

Florida Statutes; Florida Administrative Code Rules 61C-

1.001(14), 61C-1.005, and 61C-4.023(1); Food Code Rules 3-

and (D), and 6-201.13. Respondent testified on his own behalf

and offered no exhibits.

A one-volume Transcript was filed on April 15, 2011.

Respondent filed his Proposed Recommended Order on February 22,

2011, and after an unopposed motion to extend time, Petitioner

filed its Proposed Recommended Order on April 28, 2011.

References to statutes are to Florida Statutes (2010)

unless otherwise noted.

FINDINGS OF FACT

1. 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).

2. Respondent's business address is 963 North Suncoast

Boulevard, Crystal River, Florida.

3. Petitioner's witness, Jill Craig, is employed by the

Department as a senior sanitation safety specialist at

1313 North Tampa Street, Tampa, Florida 33602. Inspector Craig

has worked for the Department in her current capacity for five

years. Prior to working for the Department, Inspector Craig

worked as a food server, prep cook, managed a grocery store, and

performed housing inspections for the Department of Health in

Indiana. Upon coming to work at the Department, Inspector Craig

was versed in the Food Code, trained on the laws and rules

pertaining to public food and lodging establishments, trained in

Hazardous Analysis and Critical Control Points (HACCP), and

became a certified food manager. Inspector Craig continues to

receive training on a monthly basis. She performs about 1,500

food service inspections a year.

4. "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.

5. Inspection reports are electronically prepared on a

personal data assistant by the inspector.

6. On October 26, 2009, Inspector Craig performed a

routine food service inspection of Olive Tree Restaurant,

Respondent's place of business. During the inspection,

Inspector Craig prepared and signed an inspection report setting

forth the violations she encountered during the inspection.

7. On the date of that inspection, Inspector Craig

notified Respondent about the violations. Respondent's

representative, Manny Kokkolis, signed the inspection report.

The inspector also informed Mr. Kokkolis that all of the

violations would have to be corrected by December 28, 2009.

8. On January 21, 2010, Inspector Craig performed a

callback inspection of Olive Tree Restaurant. During the

inspection, she prepared and signed an inspection report

indicating that some of the violations had not been corrected.

9. On the date of the callback inspection, Inspector Craig

made Respondent aware of the violations that had not been

corrected, and Respondent's representative, Caitlin Tellier,

signed the inspection report. Based on the violations that had

not been corrected, the inspector recommended an administrative

complaint be issued against Respondent.

10. The most serious violation observed during the

October 26, 2009, and January 21, 2010, inspections was no

certified food manager on duty with four or more employees

engaged in food preparation. This is a critical violation

because public food service establishments are required to have

a certified food service manager on site when four or more

employees are engaged in food preparation to oversee the

employees and ensure compliance with the laws and rules relating

to public food safety.

11. Respondent admitted there was no certified food

manager on duty when Inspector Craig made her two visits to

Respondent's food service establishment.

12. The next most serious violation observed during the

two inspections was food stored on the floor in the dry storage

area. This is a critical violation because packaged food must

be stored at least six inches above the floor to prevent

contamination by pathogens.

13. Respondent testified that cases of food may have been

placed on the ground after delivery and had not been there long.

However, Food Code Rule 3-305.11 requires food to be protected

from contamination at all times by storing the food at least six

inches above the floor.

14. The next most serious violations observed during the

two inspections were accumulation of food residue on the

reach-in freezer and soiled reach-in cooler and freezer gaskets.

These are critical violations as well because pathogens on the

food contact surface can contaminate the food product.

15. Respondent testified that the refrigerator and gaskets

acquire a build-up of mold, despite his efforts to keep them

clean. He noted that the mold and residue was on the outside of

the freezer and cooler. He also testified that following the

callback visit by Inspector Craig, he had an additional two

employees certified to handle food and supervise those who are

handling food.

16. The final three violations were all deemed non-

critical by Inspector Craig. The first concerned the storage of

bakery pan liners on the floor in the dry storage area. This is

non-critical, but single serve articles can become contaminated

before their intended use if exposed to pathogens like those

found on the restaurant's floor.

17. The second non-critical violation observed by

Inspector Craig was the build-up of a mold-like substance on the

surface of the mop sink. Although non-critical, the objective

of cleaning is sanitization and that objective is not met when

the mop sink is encrusted with mold.

18. The final non-critical violation observed by Inspector

Craig was that the floor and wall junctures were not coved.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

20. The Division of Hotels and Restaurants (Division) has

jurisdiction over the operation of public lodging establishments

and food service establishments pursuant to section 20.165 and

chapter 509.

21. Section 509.261(1) provides that any public lodging

establishment or public food service establishment that has

operated or is operating in violation of chapter 509, or the

rules promulgated thereunder, is subject to fines not to exceed

$1,000 per offense, and the suspension, revocation, or refusal

of a license.

22. The Administrative Complaint alleged violations of the

food code provisions cited herein. Petitioner has the burden of

proving by clear and convincing evidence the allegations set

forth in the Administrative Complaint against Respondent. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). The

burden has been met.

23. In addition, the disciplinary action may only be based

upon the offenses specifically alleged in the administrative

complaint. See Sternberg v. Dep't of Prof'l Reg., Bd. of Med.

Exam'rs , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v.

Dep't of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter

v. Dep't of Prof'l Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

24. Section 509.032(6) provides that the Division shall

adopt such rules as are necessary to carry out the provisions of

this chapter.

25. Florida Administrative Code Rule 61C-1.005(6) states:

Standard penalties. This section specifies

the penalties routinely imposed against

licensees and applies to all violations of

law subject to a penalty under Chapter 509,

F.S. Any violation requiring an emergency

suspension or closure, as authorized by

Chapter 509, F.S., shall be assessed at the

highest allowable fine amount.

(a) Non-critical violation.

1. 1st offense – Administrative fine of

$150 to $300.

2. 2nd offense – Administrative fine of

$250 to $500.

3. 3rd and any subsequent offense –

Administrative fine of $350 to $1000,

license suspension, or both.

(b) Critical violation. Fines may be

imposed for each day or portion of a day

that the violation exists, beginning on the

date of the initial inspection and

continuing until the violation is corrected.

1. 1st offense – Administrative fine of

$250 to $500.

2. 2nd offense – Administrative fine of

$500 to $1,000.

3. 3rd and any subsequent offense –

Administrative fine of $750 to $1,000,

license suspension, or both.

(c) Misrepresenting food or food product.

Fines may be imposed for each day or portion

of a day that the violation exists,

beginning on the date of the initial

inspection and continuing until the

violation is corrected.

1. 1st offense – Administrative fine of

$500 or license suspension.

2. 2nd offense – Administrative fine of

$1,000, license suspension, or both.

3. 3rd and any subsequent offense –

Administrative fine of $1,000, license

suspension, or license revocation or any

combination thereof.

26. Food Code Rule 3-305.11 states, in pertinent part:

Food Storage.

(A) Except as specified in ¶¶ (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 15 cm (6 inches) above the

floor.

27. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 3-305.11 because

Respondent stored food on the ground.

28. Food Code Rule 4-601.11(A) states, in pertinent part:

"EQUIPMENT FOOD-CONTACT SURFACES and UTENSILS shall be clean to

sight and touch."

29. Food Code Rule 4-602.11(C) and (D) states, in

pertinent part:

(C) Except as specified in ¶ (D) of this

section, if used with POTENTIALLY HAZARDOUS

FOOD, EQUIPMENT FOOD-CONTACT SURFACES and

UTENSILS shall be cleaned throughout the day

at least every 4 hours.

(D) Surfaces of UTENSILS and EQUIPMENT

contacting POTENTIALLY HAZARDOUS FOOD may be

cleaned less frequently than every 4 hours

if:

(1) In storage, containers of POTENTIALLY

HAZARDOUS FOOD and their contents are

maintained at temperatures specified under

Chapter 3 and the containers are cleaned

when they are empty;

(2) UTENSILS and EQUIPMENT are used to

prepare FOOD in a refrigerated room or area

that is maintained at one of the

temperatures on the following chart and:

(a) The UTENSILS and EQUIPMENT are cleaned

at the frequency in the following chart that

corresponds to the temperature:

* * *

(3) Containers in serving situations such

as salad bars, delis, and cafeteria lines

hold ready-to-eat POTENTIALLY HAZARDOUS FOOD

that is maintained at the temperatures

specified under Chapter 3, are

intermittently combined with additional

supplies of the same FOOD that is at the

required temperature, and the containers are

cleaned at least every 24 hours;

(4) TEMPERATURE MEASURING DEVICES are

maintained in contact with FOOD, such as

when left in a container of deli FOOD or in

a roast, held at temperatures specified

under Chapter 3

;

(5) EQUIPMENT is used for storage of

PACKAGED or UNPACKAGED FOODS such as a

reach-in refrigerator and the EQUIPMENT is

cleaned at a frequency necessary to preclude

accumulation of soil residues;

(6) The cleaning schedule is APPROVED based

on consideration of:

(a) Characteristics of the EQUIPMENT and

its use,

(b) The type of FOOD involved,

(c) The amount of FOOD residue

accumulation, and

(d) The temperature at which the FOOD is

maintained during the operation and the

potential for the rapid and progressive

multiplication of pathogenic or toxigenic

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microorganisms that are capable of causing

foodborne disease; or

(7) In-use UTENSILS are intermittently

stored in a container of water in which the

water is maintained at 60ºC (140ºF) or more

and the UTENSILS and container are cleaned

at least every 24 hours or at a frequency

necessary to preclude accumulation of soil

residues.

30. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 4-601.11(A) because an

accumulation of food residue was on the interior of the reach-in

freezer in Respondent's establishment. Petitioner also proved

by clear and convincing evidence that Respondent violated Food

Code Rule 4-602.11(C) and (D) because gaskets on the reach-in

cooler and freezer were soiled.

31. Food Code Rule 4-601.11(C) states in pertinent part:

"NonFOOD-CONTACT SURFACES of EQUIPMENT shall be kept free of an

accumulation of dust, dirt, FOOD residue, and other debris."

32. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 4-601.11(C) because a

build-up of mold-like substance was observed on the surface of

the mop sink in Respondent's establishment.

33. Food Code Rule 4-903.11(C) and (D) states in pertinent

part:

Equipment, Utensils, Linens, and Single-

Service and Single-Use Articles.

(C) SINGLE-SERVICE and SINGLE-USE ARTICLES

shall be stored as specified under ¶ (A) of

this section and shall be kept in the

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original protective package or stored by

using other means that afford protection

from contamination until used.

(D) Items that are kept in closed packages

may be stored less than 15 cm (6 inches)

above the floor on dollies, pallets, racks,

and skids that are designed as specified

under § 4-204.122 .

34. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 4-903.11(C) and (D)

because Respondent stored single-use bakery pan liners on the

floor in the dry storage area.

35. Food Code Rule 6-201.13 states in pertinent part:

Floor and Wall Junctures, Coved, and

Enclosed or Sealed.

(A) In FOOD ESTABLISHMENTS in which

cleaning methods other than water flushing

are used for cleaning floors, the floor and

wall junctures shall be coved and closed to

no larger than 1 mm (one thirty-second

inch).

(B) The floors in FOOD ESTABLISHMENTS in

which water flush cleaning methods are used

shall be provided with drains and be graded

to drain, and the floor and wall junctures

shall be covered and SEALED.

36. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 6-201.13 because the

floor and wall junctures were not coved in the dish room of

Respondent's establishment.

37. Florida Administrative Code Rule 61C-4.023(1) states,

in pertinent part:

All managers who are responsible for the

storage, preparation, display, and serving

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of foods to the public shall have passed a

certification test approved by the division

demonstrating a basic knowledge of food

protection practices as adopted by the

division. . . . Each licensed establishment

shall have a minimum of one certified food

protection manager responsible for all

periods of operation. The operator shall

designate in writing the certified food

protection manager or managers for each

location. A current list of certified food

protection managers shall be available upon

request in each establishment. When four or

more employees, at one time, are engaged in

the storage, preparation or serving of food

in a licensed establishment, there shall be

at least one certified food protection

manager present at all times when said

activities are taking place. The certified

food protection manager or managers need not

be present in the establishment during those

periods of operation when there are three or

fewer employees engaged in the storage,

preparation, or serving of foods.

38. Petitioner proved by clear and convincing evidence

that Respondent violated rule 61C-4.023(1), because four or more

employees were engaged in food preparation without a certified

food manager present in Respondent's establishment.

39. Petitioner did not present evidence that the

violations committed by Respondent were anything other than

first offenses. Petitioner recommended a total penalty of

$1,200, which represents the minimum penalty authorized under

rule 61C-1.005(6).

40. Mr. Parnos, Respondent's owner, mitigated the penalty

for not having a certified food service manager on site at the

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time of the inspections by having two additional employees

certified subsequent to the second inspection.

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 $250 for the critical violation

concerning Respondent's failure to have a certified food manager

on duty; $250 for the critical violation of storing food on the

floor in the dry storage area; $250 for the critical violation

of food residue on the freezer and cooler gaskets; $150 for the

non-critical violation of storing bakery pan liners on the floor

in the dry storage area; $150 for the non-critical violation of

allowing a mold-like build-up on the mop sink; and $150 for the

non-critical violation of not having the floor and wall

junctures coved. The total fine in the amount of $1,200 shall

be paid to the Division of Hotels and Restaurants within 30 days

of the entry of its final order.

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DONE AND ENTERED this 15th day of July, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July, 2011.

COPIES FURNISHED

:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Paul Parnos

Olive Tree Restaurant

963 North Suncoast Boulevard

Crystal River, Florida 34429

Megan Demartini

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

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.

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