02-004828 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Captain Hugh`s Seafood Status: Closed Recommended Order on Friday, June 27, 2003.

Summary: Petitioner showed violation of food service rules. Recommend administrative fine and education class.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4828

)

CAPTAIN HUGH'S SEAFO OD, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on February 25,

2003, by Barbara J. Staros, assigned Admi nistrative Law Judge

of the Division of Administrative Hearings, in Gainesville,

Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 1015

For Respondent: Rita S. Martin, pro se

Post Office Box 145

Bell, Florida 32619

STATEMENT OF THE ISSUE

Whether Petitioner committed the violations set forth in

the Administrative Complaint and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaura nts, filed an

Administrative Complaint alleging that Respondent had violated

the laws regulating the operation of public food

establishments. The Administrative Complaint charged

Respondent with 10 violations of the provisions of Chapter

509, Florida Stat utes, or the applicable rules governing the

operation of public food establishments.

Respondent disputed the allegations in the Administrative

Complaint and petitioned for a formal administrative hearing.

The case was referred to the Division of Admini strative

Hearings on or about December 17, 2002. A formal hearing was

set for February 25, 2003 in Gainesville, Florida.

At hearing, Petitioner presented testimony of one

witness, Julianne Browning. Official recognition was

requested of pertinent provisi ons of the United States

Department of Agriculture's Food Code and Rules 61C - 1.004 and

61C - 4.023, Florida Administrative Code. The request was

granted. Petitioner's Exhibits numbered 1 - 4 were admitted

into evidence. Respondent presented the testimony of Rita S.

Martin, an owner of Captain Hugh's Seafood. Respondent's

Exhibit numbered one was admitted into evidence.

A Transcript consisting of one volume was filed on

May 30, 2003. On June 6, 2003, Petitioner timely filed a

Proposed Recommended O rder which has been considered in the

preparation of this Recommended Order. Respondent has not

filed any post - hearing submission.

FINDINGS OF FACT

1. Petitioner, the Department of Business and

Professional Regulation, Division of Hotels and Restaurants

(Division), is a state agency charged with the duty and

responsibility of regulating the operation of hotel and

restaurant establishments pursuant to Section 20.165 and

Chapter 509, Florida Statutes.

2. Respondent is an eating establishment located in

Bel l, Florida. At all times material to the allegations of

the Administrative Complaint, Respondent held license number

3100051 issued by the Division.

3. Julianne Browning is an inspector employed by the

Division. Ms. Browning has a bachelor's degree fr om Florida

State University in hotel and restaurant administration. She

has been employed by the Department of Business and

Professional Regulation since 1990. Prior to that time, she

worked for approximately 10 years in the field of public

lodging and f ood service. She also has received training in

laws and rules regarding public food service and lodging, as

well as fire safety.

4. On October 23, 2002, Ms. Browning conducted an

inspection of Respondent's premises. Rita Martin was not on

the premises a t the time of the October 23, 2002 inspection.

Christina Martin, Rita Martin's sister - in - law who also works

at Respondent's establishment, signed for the inspection

report. Ms. Browning subsequently discussed the investigation

findings and report with Ri ta Martin.

5. During the October 23, 2002 inspection, Ms. Browning

observed flies in the kitchen. Having flies in the kitchen is

a critical violation because flies carry germs and bacteria,

posing a direct threat to the public's health.

6. Ms. Browni ng also found that there was no proof that

employees who had worked at Respondent's establishment for

60 days or more had received food training. This is a

critical violation because employees need to be trained in the

correct way to handle food and the r equired temperatures for

food.

7. Ms. Browning also observed tuna salad in the

refrigerator at 45 degrees, which is considered an unsafe

temperature. The inspection took place at 2:30 p.m. but

Ms. Browning determined that the tuna salad was prepared at

9 :00 a.m. Food kept out of temperature for more than four

hours are potentially hazardous because the food begins to

grow bacteria if left out of refrigeration for too long.

8. Ms. Browning also observed coleslaw, tuna salad, and

crab salad that were not date - marked. These types of prepared

foods can only be held for seven days or they become

potentially hazardous food. These foods need to be date -

marked so one knows when they were made to then determine when

the foods should be thrown away.

9. Ms. Brow ning observed that the hood filters had a

severe grease buildup. A severe grease buildup in the hood

filter is an indication that the flue has a grease buildup,

which is a fire hazard.

10. Ms. Browning observed a black substance on the

interior of the ic e machine. She was uncertain as to what the

black substance was but believed it to be mildew. Mildew is

hazardous near food because it has spores which could fall

into the ice.

11. Ms. Browning observed recyclables not stored in a

waste handling unit th at is inaccessible to insects or

rodents. She observed boxes kept either on the ground or in

an open trailer. This is a hazard because all garbage,

whether recyclables or other garbage, has to be in a container

that protects against the entrance of roden ts or flies, which

could potentially come into the restaurant.

12. Ms. Browning observed a light shield missing from

the light in the dry storage area. This is potentially

hazardous because if the light bulb broke, the glass could

shatter with the potent ial of getting onto the food in the

storage area.

13. Ms. Browning observed that the fire suppression

report for the hood over the cooking equipment was not

available for review. Such reports are made when the fire

extinguishing company comes to servic e the fire suppression

system. The report is the only way a Division inspector can

tell if there are any deficiencies that need to be corrected

with the fire suppression system.

14. Ms. Browning observed bulk rice with a handle - free

bowl for dispensing. This is hazardous because it allows for

bare hand contact with the food.

15. Rita Martin offered mitigating circumstances

regarding some of the deficiencies noted by Ms. Browning.

16. Regarding the allegation of flies in the kitchen,

the Martins built a screened - in porch to keep flies from

coming into the restaurant. Further, they put fly machines at

the front and back doors and a blower at the back door.

According to Ms. Martin, it is rare for flies to get into the

restaurant. When flies get into t he restaurant, "we get rid

of them" and that she "cannot remember the last time I saw a

live fly in my restaurant, period."

17. Regarding the allegation of lack of proof of

employee training, only one employee had worked there more

than 60 days at the tim e of the inspection. Ms. Martin did

not post that employee's card because the employee did not

want her social security number posted. Eventually, Ms.

Martin "whitened out" the social security number to post it.

In any event, the employee's card was not available at the

time of the inspection as required.

18. Regarding the allegation that prepared foods were

out of temperature and not properly date - marked, she

responded:

We try to put our salads or whatever we're

making in large containers so that they

will cool quickly. The foods that were

made that day were made -- one of the foods

were made at 9:00 a.m., which was the

coleslaw and crab. The tuna was made at

2:00. That was one of the ones that was -- I

think it was the tuna that was out of

temperature. It had not been made -- think

it was less than an hour old.

Her assertion in this regard is accepted as credible.

19. Regarding the allegation that the hood filters had a

grease buildup, Ms. Martin acknowledged that the hoods needed

cleaning and were cle aned approximately one month after the

inspection.

20. Ms. Martin denied the existence of any black buildup

on he interior of the ice machine. She looked in the ice

machine shortly after the inspection and did not see any black

buildup. According to Ms. Martin, there is a lime build - up

because of lime in their water, and it is brownish in color.

Her assertion in this regard is accepted as credible.

21. Regarding the allegation of recyclables not stored

in a closed unit that is inaccessible to rodents o r insects,

Ms. Martin explained that only clean boxes are put in a

trailer, garbage is put elsewhere.

22. Ms. Martin denied the allegation that a light shield

was missing from the light in the dry storage area. The light

shield had just been replaced pri or to the inspection and is

transparent and difficult to see. The storage area is narrow

and it is difficult to see in there. Her assertions in this

regard are accepted as credible.

23. Regarding the allegation that there was no fire

suppression report , Ms. Martin asserted that Ms. Browning had

not made it clear in the past as to what was required to be

posted and available. Whether Ms. Browning verbally reminded

Ms. Martin about this requirement or not, the report was not

available as required.

24. R egarding the allegation that a bowl was used to

dispense bulk rice, Ms. Martin explained that the rice was in

dry, not ready - to - eat, form and that everyone knows to use a

scoop. However, she acknowledged that she was not there for

the inspection and could not say for certain that there was

not a bowl in the rice.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case,

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

26 . The Division is the state agency charged with

regulating public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

27. Pursuant to Section 509.261(1), Florida Statutes,

the Division may impose penalties for viol ations of Chapter

509, Florida Statutes, including an administrative fine of no

more than $1,000 for each separate offense, attendance at

personal expense at an educational program sponsored by the

Hospitality Education Program, and the suspension or

revoc ation of Respondent's license.

28. Because the Division seeks the imposition of an

administrative penalty, which is a penal sanction, the

Division has the burden of proving by clear and convincing

evidence the specific allegations in the Administrative

C omplaint. See , e.g. , Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

29. Through the Administrative Complaint, Respondent is

alleged to have violated United States Department of

Agriculture Food Code 6 - 202.11, whic h reads in pertinent part:

(A) Except as specified in ¶ (B) of this

section, light bulbs shall be shielded,

coated, or otherwise shatter - resistant in

areas where there is exposed food ; clean

equipment , utensils , and linens ; or

unwrapped single - service and single - use

articles .

(B) Shielded, coated, or otherwise

shatter - resistant bulbs need not be used in

areas used only for storing FOOD in

unopened packages, if :

(1) The integrity of the packages can not

be affected by broken glass falling onto

them; a nd

(2) The packages are capable of being

cleaned of debris from broken bulbs before

the packages are opened .

(C) An infrared or other heat lamp shall

be protected against breakage by a shield

surrounding and extending beyond the bulb

so that only the face of the bulb is

exposed. (Emphasis in original)

This violation has not been established. The record is

insufficient to establish that food in the storage area was in

opened packages. Further, Respondent's defense that the bulb

cover was brand new a nd in place is deemed to be credible.

30. Through the Administrative Complaint, Respondent is

alleged to have violated Rule 61C - 1.004, Florida

Administrative Code, which reads in pertinent part:

The following general requirements and

standards shall be m et by all public

lodging and public food service

establishments:

* * *

(5) All fire safety, protection and

prevention equipment must be installed,

approved, maintained and used in accordance

with Chapter 509, F.S., and the National

Fire Protection Association Life Safety

Code Chapter 101, as adopted by the

Division of State Fire Marshal in Chapter

4A - 3, F.A.C.

(6) All building structural components,

attachments and fixtures shall be kept in

good repair, . . . .

The Division has met its burden in establishing that this

violation occurred.

31. Through the Administrative Complaint, Respondent is

alleged to have violated Rule 61C - 4.023, Florida

Administrative Code, which reads in pertinent part:

(4) 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 with the Food Code and

techniques to prevent cross conta mination.

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 in a food

service establishment. . . .

The Division has met its burden in establishing that this

violation occurred.

32. Through the Administrative Complaint, Respondent is

alleged to have violated United States Department of

Agriculture Food Code 3 - 501.17, which reads in pertinent part:

on - premises preparati on

prepare and hold cold

(A) Except as specified in ¶ (E) of this

section, refrigerated, ready - to - eat,

potentially hazardous food prepared and

held refrigerated for more than 24 hours in

a food establishment shall be clearly

marked at the time of preparat ion to

indicate the date by which the food shall

be consumed which is, including the day of

preparation:

(1) 7 calendar days or less from the day

that the food is prepared, if the food is

maintained at 5ºC (41ºF) or less; or

(2) 4 calendar days or less from the day

the food is prepared, if the food is

maintained at 7ºC (45ºF) or less as

specified under ¶ 3 - 501.16(C).

The Division has met its burden in proving that this violation

occurred.

33. Through the Administrative Complaint, Respondent is

allege d to have violated United States Department of

Agriculture Food Code 3 - 501.16, which reads in pertinent part:

(A) Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified under § 3 -

501.19, potentially hazardous food shall be

maintained:

(B) At 5ºC (41ºF) or less, except as

specified in ¶ (C) of this section and

§§ 3 - 501.17, 3 - 501.18, and 4 - 204.111.

The Division has not met its burden of proving that this

violation occurred. The tuna salad was made shortly before

the inspection, without sufficient time for it to cool to the

required 41 degrees Fahrenheit.

34. Through the Administrative Complaint, Respondent is

alleged to have violated United States Department of

Agriculture Food Code 3 - 301.11, which reads in pertinent part:

(C) Food employees shall minimize bare

hand and arm contact with exposed food that

is not in a ready - to - eat form.

The Division has met its burden of proving that this violation

occurred.

35. Through the Administrative Complaint, Respondent is

alleged to have violated United States Department of

Agriculture Food Code 4 - 601.11, which reads in pertinent part:

(A) Equipment food - contact surfaces and

utensils shall be clean to sight and touch.

The Division has not met its burden of proving that this

violation occurred. Ms. Martin's assertion that the dark

substance on the interior of the ice machine is lime buildup

is accepted as credible.

36. Through the Administrative Complaint, Respondent is

alleged to have violated United States Department of

Agriculture Food Code 5 - 501.110, which reads in pertinent

part:

Refuse, recyclables, and returnables shall

be stored in receptacles or waste handling

units so that they are inaccessible to

insects and rodents.

The Division has met its burden of proving that this violation

occurred.

37. Through the Administrative Complaint, Respondent is

alleged to have violated United States Department of

Agriculture Food Code 6 - 501.111, which reads in pertinent

part:

The presence of insects, r odents, and other

pests shall be controlled to minimize their

presence on the premises by:

(A) Routinely inspecting incoming

shipments of FOOD and supplies;

(B) Routinely inspecting the premises for

evidence of pests;

(C) Using methods, if pests a re found,

such as trapping devices or other means of

pest control as specified under §§ 7 -

202.12, 7 - 206.12, and 7 - 206.13; and

(D) Eliminating harborage conditions.

The Division has not met its burden of proving that this

violation has occurred. Re spondent established that trapping

devices and other means of pest control are used to minimize

the presence of flies.

38. In its Proposed Recommended Order, the Department

recommends the imposition of a $3,300.00 fine and requires

Respondent to provide pr oof to the Division of attendance at a

Hospitality Education Program. However, while the Division

presented evidence that it had issued previous inspection

reports to Respondent regarding some of the violations in the

Administrative Complaint, this past e xperience was not alleged

in the Administrative Complaint. Further, the inspection on

October 23, 2002, was not a "call - back" inspection. That is,

it did not give Respondent a time certain in which to correct

deficiencies. Accordingly, an administrative penalty in the

amount of $1,000 is appropriate here, in addition to requiring

that Respondent attend a Hospitality Education Program.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

T hat the Division enter a final order which confirms the

violations found, dismisses the violations not found, imposes

an administrative penalty in the amount of $1,000, and

requires Respondent to attend a Hospitality Education Program.

DONE AND ENTERED t his 27th day of June, 2003, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Divis ion 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 Clerk of the

Division of Administrative Hearings

this 27th day of June, 200 3.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388 - 1015

Rita S. Martin

Post Office Box 145

Bell, Florida 32619

Geoff Luebkemann, Director

Divis ion of Hotels and Restaurants

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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.