04-003915 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Rich`s Bbq Status: Closed Recommended Order on Wednesday, March 9, 2005.

Summary: Respondent is subject to an administrative fine for violations of the Food Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3915

)

RICH'S BBQ, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 21,

2005, in Green Cove Springs, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Grant Gibson, Qualified

Representative

Department of Business and

Professional Regulation

1 940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

For Respondent: Elizabeth and Ronald Tillman, pro se

505 North Orange Avenue

Green Cove Springs, Florida 32043

STATE MENT OF THE ISSUES

The issues are whether Respondent is guilty of certain

violations of the Food Code, and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On or about March 1, 2004, Petitioner Department of

Business and Professional Regula tion (Petitioner) filed an

Administrative Complaint against Respondent Rich's BBQ

(Respondent). The Administrative Complaint charged Respondent

with violations of Chapter 509, Florida Statutes (2003), and the

rules promulgated thereto, governing Responden t's operation.

Specifically, the Administrative Complaint alleged that

Respondent had violated five provisions of the Food Code, 1999

Recommendations of the United States Public Health Service/Food

and Drug Administration (Food Code), and one provision of the

National Fire Protection Act of 1996.

On March 12, 2004, Respondent requested an administrative

hearing to challenge the charges against it. On November 1,

2004, Petitioner referred the request to the Division of

Administrative Hearing.

In a Notice Hearing dated November 16, 2004, the

undersigned scheduled the hearing for January 21, 2005.

During the hearing, Petitioner presented the testimony of

Daniel Fulton, Petitioner's Senior Sanitation and Safety

Specialist. Petitioner offered three ex hibits that were

accepted as evidence.

Respondent's owners, Elizabeth and Ronald Tillman testified

on Respondent's behalf. Respondent offered two exhibits that

were accepted as evidence.

The Transcript was filed on February 9, 2005. Petitioner

fil ed a Proposed Recommended Order on February 18, 2005. As of

the date that this Recommended Order was issued, Respondent had

not filed proposed findings of fact and conclusions of law.

All references hereinafter shall be to Florida Statutes

(2004) unless otherwise specified.

FINDINGS OF FACT

1. At all times material here, Respondent was licensed and

regulated by Petitioner. Respondent operated under License No.

20 - 00805 - R, in a leased facility in Green Coves Springs,

Florida.

2. On December 26, 2003, Daniel Fulton, Petitioner's

Senior Sanitation and Safety Specialist, performed a routine

inspection of Respondent's premises. During the inspection,

Mr. Fulton prepared a Food Service Inspection Report (FSIR)

setting forth his findings. Mr. Fulton gave Respondent's

manager a copy of the report and explained each finding as a

citation/violation.

3. On January 27, 2004, Mr. Fulton re - inspected

Respondent's premises. During the re - inspection, Mr. Fulton

prepared a Callback Inspection Report, setting fort h his

findings. Based on his observations, Mr. Fulton listed

citations on the Callback Inspection Report that had not been

corrected after the December 2003 inspection.

4. According to the Callback Inspection Report, the gas

equipment in Respondent's p it area still did not have a fire

suppression system over it. Typically, this would constitute a

critical violation. However, during the hearing, Respondent

provided evidence that the Clay County Fire Inspector considered

the current configuration of the hood exhaust system to be

acceptable to the Clay County Department of Public Safety.

Petitioner's Proposed Recommended Order indicates that it has

withdrawn the allegation that Respondent violated the National

Fire Protection Act of 1996.

5. On Januar y 27, 2004, Mr. Fulton observed that an

outside cooker was not properly enclosed, creating a critical

violation. The walls that enclosed Respondent's cooker were not

at least four feet high. The area was not properly screened

between the existing walls a nd the roof. In fact, the roof did

not cover part of the area where the cooker was located.

6. On January 27, 2004, Mr. Fulton observed that a faucet

or hose bib did not have a back - flow prevention device. The

lack of a back - flow prevention device cre ated a critical

violation.

7. On January 27, 2004, Mr. Fulton observed that there was

a black substance on the interior of an ice machine's lid. The

December 2003 FSIR did not list this citation as a critical

concern that must be corrected immediately. However, Mr. Fulton

provided persuasive testimony that ice is consumable and that

any foreign black substance in the interior of an ice machine

constituted a critical violation.

8. During the December 2003 inspection, Mr. Fulton cited

Respondent for n ot having adequate sneeze protection over the

soup pot on the buffet bar. Simply placing a lid on the crock

pot was not sufficient to provide that protection when customers

removed the lid.

9. After the December 2003 inspection, Respondent decided

to a djust the height of the crock pot to provide more sneeze

protection. In making the adjustments, Respondent was careful

not to let the soup become inaccessible for children and

disabled customers in wheelchairs.

10. On January 27, 2004, Mr. Fulton obser ved that the

crock pot containing soup at the buffet bar continued to have

inadequate sneeze protection for a person of average height,

approximately five feet and six inches. The sneeze protection

over the crock pot was not properly adjusted until Mr. Fu lton

conducted a third inspection in October 2004. The lack of

adequate sneeze protection did not constitute a critical

violation.

11. On January 27, 2004, Mr. Fulton observed that the

inside light of a reach - in cooler was not operational.

Respondent ordered the replacement light after the December 2003

inspection, but had not received it at the time of the callback

inspection in January 2004. This was not a critical violation.

12. Respondent was aware of all of the above - referenced

violations afte r the December 2003 inspection. Respondent had

not corrected them at the time of the January 2004 inspection.

13. In June 2004, Elizabeth Tillman, one of Respondent's

owners took over Respondent's day - to - day management. By the

time that Mr. Fulton ins pected the premises in October 2004, all

violations had been corrected except for violations that

required building construction by a new owner of the leased

premises.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

15. Petitioner has the burden of proving by clear and

convincing evidence that Respondent has violated Chapter 509,

Florida Statutes, as alleged in the Administrative Complaint,

and is therefore subject to an administrative fine. See Dept.

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932(Fla.

1996). Petitioner has met its burden in every respect.

16. In setting forth Petitioner's duties, Section 509.032,

Florida Statutes, states as follows in relevant part:

(1) GENERAL. -- The division shall carry

out all of the provisions of this chapter

and all other applicable l aws and rules

relating to the inspection or regulation of

. . . public food service establishments for

the purpose of safeguarding the public

health, safety, and welfare. . . .

(2) INSPECTION OF PREMISES. --

(a) The division has res ponsibility

and jurisdiction for all inspections

required by this chapter. The division has

responsibility for quality assurance. Each

licensed establishment shall be inspected at

least biannually . . . and shall be

inspected at such other times as the

d ivision determines is necessary to ensure

the public's health, safety, and welfare. .

. .

* * *

(d) The division shall adopt and

enforce sanitation rules consistent with law

to ensure the protection of the public from

food - borne illness in those es tablishments

licensed under this chapter. These rules

shall provide the standards and requirements

for obtaining, storing, preparing,

processing, serving, or displaying food in

public food service establishments,

approving public food service establishmen t

facility plans, conducting necessary public

food service establishment inspections for

compliance with sanitation regulations . . .

and for other such responsibilities deemed

necessary by the division. . . .

* * *

(3) SANITARY STANDARDS; EMERGE NCIES;

TEMPORARY FOOD SERVICE EVENTS. -- The division

shall: (a) Prescribe sanitary standards

which shall be enforced in public food

service establishments. . . .

* * *

(6) RULEMAKING AUTHORITY. -- The

division shall adopt such rules as are

necessary to carry out the provisions of

this chapter.

17. Petitioner has adopted rules that incorporate certain

provisions of the Food Code, 2001 Recommendations of the United

States Public Health Service/Food and Drug Administration, the

2001 Food Code Errata Sheet (August 23,2002), and Supplement to

the 2001 FDA Food Code (August 29, 2003 (Food Code). See Fla.

Admin. Code Rules 61C - 1.001, 61C - 1.004(1), 61C - 4.010(1), 61C -

4.010(5), and 61C - 4.010(6).

18. Florida Administrative Code Rule 61C - 4.010(1)

incorpora tes Food Code Rule 3 - 306.11, which states as follows in

pertinent part:

Except for nuts in the shell and whole,

raw fruits and vegetables that are intended

for hulling, peeling, or washing by the

consumer before consumption, food on display

shall be protected from contamination by the

use of packaging; counter, service line, or

salad bar food guards; display cases; or

other effective means.

Respondent violated this provision of the Food Code by failing

to provide adequate sneeze protection for the soup pot.

19. Florida Administrative Code Rule 61C - 4.010(5)

incorporates Food Code Rule 4 - 601.11(b), which states as follows

in pertinent part:

The food - contact surfaces, of cooking

equipment and pans shall be kept free of

encrusted grease depos its and other soil

accumulations.

Respondent violated this provision of the Food Code by failing

to keep the interior of the ice machine clean and free of any

foreign black substance.

20. Florida Administrative Code Rule 61C - 1.004(1)

incorporates Food Code Rule 5 - 202.14, which states as follows in

relevant part:

A backflow or backsiphonage - prevention

device installed on a water supply system

shall meet American Society of Sanitary

Engineering (A.S.S.E.) standards for

construction, installation, m aintenance,

inspection, and testing for that specific

application and type of device.

Respondent violated this provision of the Food Code by not

having a back - flow prevention device attached to the faucet or

hose bib.

21. Florida Administrative Code Rule 61C - 4.010(6)

incorporates Food Code Rule 6 - 202.15, which states as follows in

relevant part:

(a) Except as specified in

[paragraphs] (b), (c) and (e) and under

[paragraph] (d) of this section, outer

openings of a food establishment shall be

pr otected against the entry of insects and

rodents by:

(1) Filling or closing holes and other

gaps along floors, walls, and ceilings;

(2) Closed, tight - fitting windows; and

(3) Solid, self - closing, tight - fitting

doors.

Respondent violat ed this provision of the Food Code by failing

to properly enclose an outside cooker.

22. Florida Administrative Code Rule 61C - 4.010(6)

incorporates Food Code Rule 6 - 303.11(b), which provides a

follows in pertinent part:

(b) At least 220 lux (20 foot

candles):

* * *

(2) Inside equipment such as reach - in

and under - counter refrigerators.

Respondent violated this provision of the Food Code by failing

to have the appropriate light in a reach - in cooler.

23. Pursuant to Section 509.261(1)(a), Florida Statutes,

any public food establishment that has operated or is operating

in violation of Chapter 509, Florida Statutes, or the applicable

rules, is subject to fines not to exceed $1,000.00 per offense.

In this case, clear and convincing evidence indicates that

Respondent was guilty of violating four provisions of the Food

Code in January 2004.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order requiring Responden t to

pay an administrative penalty in the amount of $1,000.00.

DONE AND ENTERED this 9th day of March, 20005, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative He arings

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 9th day of March, 2005.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Grant Gibson, Qualified

Representative

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399 - 2202

Elizabeth and Ronald Tillman

505 Nort h Orange Avenue

Green Cove Springs, Florida 32043

Geoff Luebkemann, Director

Department of Business and

Professional Regulation

Division of Hotel and Restaurants

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

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.