02-004210 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Coffee Salom Tropical Status: Closed Recommended Order on Thursday, February 20, 2003.

Summary: Petitioner failed to have certified food service manager and failed to show proof of employee food handling training. Petitioner should be ordered to pay $1,000 administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4210

)

COFFEE SALOM TROPICAL, )

)

Respondent. )

__________________ _______________)

RECOMMENDED ORDER

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

on January 16, 2003, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly - designated Administrative Law J udge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Aracely Gonzalez, Treasurer

Coffee Salom Tropical

10630 Southwest 7th Terrace

Miami, Florida 33174

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Administrative Complaint dated May 31, 2002, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Com plaint dated May 31, 2002, the

Department of Business and Professional Regulation, Division of

Hotels and Restaurants ("Department"), charged that, on May 10,

2002, and May 20, 2002, the Coffee Salom Tropical was found to

be in violation of several statute s, rules, and regulations

governing public food service establishments in Florida. Coffee

Salom Tropical was charged with a violation of Section 4 - 302.13

of the 1999 Recommendations of the Public Health Service/Food

and Drug Administration ("Food Code"), 1 based on the allegation

that the inspector observed no chemical test kits available in

the establishment; a violation of Section 509.039, Florida

Statutes, and Rule 61C - 4.023(1), Florida Administrative Code,

based on the allegation that no certified food manager was in

the establishment; and a violation of Section 509.049, Florida

Statutes, based on the allegation that the inspector observed no

proof of employees' food - handling training.

The Respondent timely disputed the facts alleged in the

Administrativ e Complaint and requested an administrative

hearing. The Department forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. Pursuant to notice, a final hearing was conducted on

January 16, 2003.

At t he hearing, the Department presented the testimony of

Oscar Garcia, a sanitation and safety inspector employed by the

Department, and Petitioner's Exhibits 1 through 3 were offered

and received into evidence. The Respondent presented the

testimony of Arac ely Gonzalez, the Respondent's Treasurer. The

Respondent offered no exhibits into evidence. Pursuant to the

Petitioner's request, official recognition was taken of

Rule 61C - 4.023, Florida Administrative Code; Sections 509.039

and 509.049, Florida Statute s; and Section 4 - 302.13 of the Food

Code.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on February 6, 2003, and

the Petitioner timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order. The Respondent did not

file a post - hearing submission within the time specified at the

conclusion of the hearing.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

f inal hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency responsible for

inspecting and regulating public food service establishments in

Florida. See Section 509.032, Florida Statutes (2002).

2. The Coffee Salom Tropical is a food service

establishment licensed and regulated by the Department.

3. On May 10, 2002, Oscar Garcia, a sanitation and safety

specialist employed by the Department, inspected the premises of

Coffee Sal om Tropical.

4. During the inspection, Mr. Garcia noted that, among

other things, "no chemical test kit [was] observed"; no "food

management certification" was observed; and no validation was

provided to show that "training on food safety [was] provided t o

all employees." Mr. Garcia prepared a Food Service Inspection

Report setting forth his findings.

5. It is Mr. Garcia's practice to go over the contents of

the report with the manager of the food service establishment

and to allow the establishment time to correct any violations.

He normally re - inspects the establishment within two weeks to

30 days of the initial inspection, and, if he finds that

measures have been taken to correct the violations, he gives the

establishment an extension of time in which to complete the

corrections.

6. Mr. Garcia re - inspected Coffee Salom Tropical on

May 20, 2002, and found that the establishment had not corrected

three of the violations noted during the May 10, 2002,

inspection. First, the employee working at Coffee Sa lom

Tropical at the time of the inspection did not produce a test

kit to measure the amount of sanitizer in its three - compartment

sink and dishwasher; 2 too much sanitizer is toxic, and too little

sanitizer does not properly sanitize the dishes. Second, Co ffee

Salom Tropical did not employ a certified food manager. Third,

Coffee Salom Tropical did not provide proof that its employees

had received food safety training.

7. When Mr. Garcia returned to Coffee Salom Tropical in

June 2002, a chemical test kit w as available, the manager was in

the process of becoming certified, and proof of employee

training was provided.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2002).

9. In the Administrative Complaint, the Department seeks

to suspend or revoke Coffee Salom Tropical's license and/or to

impose an administrative fine. Accordingly, the Departmen t must

prove the allegations in the Administrative Complaint by clear

and convincing evidence. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlin gton ,

510 So. 2d 292 (Fla. 1987).

10. Section 509.039, Florida Statutes (2002), provides in

pertinent part:

It is the duty of the division to

adopt, by rule, food safety protection

standards for the training and certification

of all food service mana gers who are

responsible for the storage, preparation,

display, or serving of foods to the public

in establishments regulated under this

chapter. The standards adopted by the

division shall be consistent with the

Standards for Accreditation of Food

Protec tion Manager Certification Programs

adopted by the Conference for Food

Protection. These standards are to be

adopted by the division to ensure that, upon

successfully passing a test, approved by the

Conference for Food Protection, a manager of

a food serv ice establishment shall have

demonstrated a knowledge of basic food

protection practices. . . . All managers

employed by a food service establishment

must have passed an approved test and

received a certificate attesting thereto.

11. Rule 61C - 4.023(1), F lorida Administrative Code,

provides in pertinent part:

All managers who are responsible for

the storage, preparation, display, and

serving of foods to the public shall have

passed a certification test approved by the

division demonstrating a basic kn owledge of

food protection practices as adopted in this

chapter. Those managers who successfully

pass an approved certification examination

shall be issued a certificate by the

certifying organization, which is valid for

a period of five years from the da te of

issuance. 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

locatio n. A current list of certified food

protection managers shall be available upon

request in each establishment. . . .

12. Section 509.049, Florida Statutes (2002), provides in

pertinent part:

(1) The division shall adopt, by rule,

minimum food safety pr otection standards for

the training of all food service employees

who are responsible for the storage,

preparation, display, or serving of foods to

the public in establishments regulated under

this chapter. These standards shall not

include an examination , but shall provide

for a food safety training certificate

program for food service employees to be

administered by a private nonprofit provider

chosen by the division.

* * *

(5) It shall be the duty of the licensee of

the public food service establishm ent to

provide training in accordance with the

described rule to all employees under the

licensee's supervision or control. The

licensee may designate a certified food

service manager to perform this function as

an agent of the licensee. Food service

emp loyees must receive certification within

60 days after employment. Certification

pursuant to this section shall remain valid

for 3 years.

(6) The division may adopt rules pursuant

to ss. 120.536(1) and 120.54 necessary to

administer this section. The ru les may

require:

* * *

(d) The licensee to be responsible for

providing proof of employee training, and

the division may request production of such

proof upon inspection of the establishment.

13. Rule 61C - 4.023(4), Florida Administrative Code,

provide s:

Public Food Service Employee Training.

(a) All public food service employees must

receive training on professional hygiene and

foodborne disease prevention. Professional

hygiene includes personal cleanliness and

hygienic practices in accordance w ith the

Food Code and techniques to prevent cross

contamination. Foodborne disease prevention

training must include the types and causes

of foodborne illness, identification of

potentially hazardous food, and how to

control or eliminate harmful bacteria i n a

food service establishment.

(b) Public food service employees must

receive training which relates to their

assigned duties. Employees who prepare

foods must be knowledgeable about safe

methods of thawing, cooking, cooling,

handling, holding and stori ng foods.

Service personnel must be knowledgeable

about safe methods of serving food.

Employees who clean equipment and facilities

must be knowledgeable about proper cleaning

and sanitization methods. Employees

responsible for maintaining the premises

m ust be knowledgeable about proper vermin

control methods as specified in the Food

Code.

(c) Licensees who provide in - house employee

training shall make available on the

premises of the establishment, or in a theme

park or entertainment complex in a centra l

location, upon the division's request, the

curriculum and materials used to conduct

training. If training is obtained from an

outside provider, the licensee must provide,

upon the division's request, information

about the selected training program and

m ethods used to evaluate training outcomes.

Training outcomes include employees

correctly applying procedures and answering

questions relative to assigned duties.

Employees must perform their work duties

safely in a manner consistent with the

requirements of the Food Code.

14. Based on the findings of fact herein, the Department

has proven by clear and convincing evidence that Coffee Salom

Tropical violated Sections 509.039 and 509.049, Florida

Statutes, and Rule 61C - 4.023(1) and (4), Florida Administrat ive

Code, because Coffee Salom Tropical did not employ a certified

food protection manager at the time of the May 10, 2002, or

May 20, 2002, inspections and did not provide proof of employee

food safety training at the time of the May 10, 2002, or May 20,

2002, inspections.

15. Section 4 - 302.13 of the Food Code provides: "In

manual warewashing operations, a temperature measuring device

shall be provided and readily accessible for frequently

measuring the washing and sanitizing temperatures."

16. Based on the findings of fact herein, the Department

has failed to prove by clear and convincing evidence that Coffee

Salom Tropical violated Section 4 - 302.13 of the Food Code. The

notations on the Food Service Inspection Reports, the testimony

of Mr. Garcia, and the notice of violation in the Administrative

Complaint specify that Coffee Salom Tropical failed to have

available chemical test kits, which, according to Mr. Garcia,

are used to measure the amount of sanitizer used in manual

warewashing operations. The re was no evidence presented with

respect to the availability of a temperature - measuring device at

the Coffee Salom Tropical, and, therefore, no violation of

Section 4 - 302.13 of the Food Code has been proven. Conversely,

even though Coffee Salom Tropical admitted its employee could

not locate the chemical test kits at the time of the inspection,

the Department has failed to establish that this failure

violates any statute, rule, or regulation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Con clusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, enter a final order finding that Coffee

Salom Tropical violated Sections 509.039 and 509.049, Florida

Statutes (2002), and Rule 61C - 4.023(1) and (4), Florida

Ad ministrative Code, and imposing a fine in the amount of

$1,000.00.

DONE AND ENTERED this 20th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

PATRIC IA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cle rk of the

Division of Administrative Hearings

this 20th day of February, 2003.

ENDNOTES

1 Chapter 4 of the Food Code is incorporated by reference in

Rule 61C - 4.010(5), Florida Administrative Code, and is

applicable to all public food service establishments in Florida.

2 Ms. Gonzalez testified that a chemical test kit was on t he

premises at the time of the May 20, 2002, inspection but that

the person working at the time was unable to locate it.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

19 40 North Monroe Street

Tallahassee, Florida 32399 - 2202

Victor Cruz, President

Coffee Salom Tropical

10630 Southwest 7th Terrace

Miami, Florida 33174

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Geoff Luebkemann, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

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.