08-002653 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Carvel Ice Cream Bakery Status: Closed Recommended Order on Thursday, November 13, 2008.

Summary: Respondent`s failure to correct violations of food code warrant imposition of administrative penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-2653

)

CARVEL ICE CREAM BAKERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

August 20, 2008, by video teleconference at sites in Miami and

Tallahassee, Florida, before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings, pursuant to

the authority set forth in Sections 120.569 and 120.57(1),

Florida Statutes (2008).

APPEARANCES

For Petitioner: John Truitt, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Pervez Akhter,

Carvel Ice Cream Bakery

8565 Southwest 24th Street

Miami, Florida 33155-2335

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether Respondent committed the various acts alleged in the

Administrative Complaint in violation of the "food code," as

more particularly cited below, and if so, what, if any, penalty

is warranted.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Hotels and Restaurants (Division), alleged in an

Administrative Complaint dated April 8, 2008, that Respondent

violated various standards governing public food service

establishments. Respondent disputed the allegations and

requested an evidentiary hearing pursuant to Section 120.57(1),

Florida Statutes, through an Election of Rights form.

On June 4, 2008, the case was referred to the Division of

Administrative Hearings and assigned to the undersigned. The

case was noticed for hearing on June 17, 2008. The hearing was

conducted on August 20, 2008 as scheduled.

At hearing, Petitioner presented the testimony of Maurice

Chi, Jorge Gandolff, and Daniel Sterling. Petitioner's Exhibits

one through five were admitted into evidence. Respondent

testified on his own behalf. Respondent offered no exhibits

into evidence.

The proceeding was recorded and transcribed. The

Transcript of the final hearing was filed with the Division of

Administrative Hearings on October 16, 2008. Petitioner filed a

timely Proposed Recommended Order, which has been considered in

the preparation of this Recommended Order. Respondent did not

submit a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulation

of hotels and restaurants pursuant to Chapter 509, Florida

Statutes.

2. At all times material to this case, Respondent was a

restaurant, Carvel Ice Cream Bakery, located at 8565 Southwest

24 Street, Miami, Florida, holding Food Service license number

2323930.

3. On April 24, 2007, Sanitation and Safety Specialist Chi

performed a food service inspection of the Respondent. During

the inspection, Mr. Chi observed the handwashing cleanser

lacking at the handwashing lavatory at the hand sink at the back

prep area, handwash sink lacking proper hard drying provisions

at hand sink at the back prep area, handwashing cleanser lacking

at handwashing lavatory at restrooms, handwash sink lacking

proper hard drying provisions in restrooms, and a toxic/spray

item stored by food and food containers.

4. Mr. Chi prepared and signed an inspection report

detailing his findings during the inspection.

5. On November 9, 2007, Senior Sanitation and Safety

Specialist Gandolff returned to Carvel Ice Cream Bakery. After

his inspection, Gandolff prepared a inspection report. The

November 9, 2007, Legal Notice Food Service Inspection Report

read in pertinent part:

* * *

Violation(s)

* * *

32-16-1: Hand wash sink lacking proper hand

drying provisions. Repeat Violation

32-17-1: Handwashing cleanser lacking at

handwashing lavatory. Repeat Violation

* * *

41A-08-1: Observed toxic item stored by

food prep equipment. Repeat violation.

* * *

6. A critical violation if left uncorrected can lead to

food contamination, illnesses or a health threat to the person

that eats the food. It also is a violation that poses an

immediate danger to the public health and safety.

7. A non-critical violation is a violation that does not

pose an immediate danger to the public, but needs to be

addressed because if left uncorrected, it can become a critical

violation.

8. Each of the aforementioned violations from the

November 9, 2007, inspection are critical violations. The

handwashing drying and cleanser violation are critical because,

if a food service employee goes to the bathroom or coughs on

their hands or doesn't have the ability to clean or dry their

hands with proper sanitizers and drying provisions, the employee

could transmit their germs to the food they are preparing,

and/or such germs can be transferred to the customers consuming

the food who could get sick.

9. The toxic chemicals violation is a critical violation

because the chemicals can get into the food being prepared or

food contact surfaces and cause customers who consume the

contaminated food to become ill.

10. March 18, 2008, Sanitation and Safety Specialist

Sterling performed the follow-up inspection and determined that

two critical violations remained uncorrected from the

November 9, 2007 inspection. During the inspection Sterling

prepared a Call Back/Re-Inspection Report setting forth the

findings from the re-inspection and recommending that an

administrative complaint be filed.

11. The first uncorrected violation for which Respondent

was cited was Food Code Rule 6-301.12--"hand wash sink lacking

proper hand drying provisions. Back handsink (prep areas)

Repeat violation and handwash cleanser lacking at handwashing

lavatory. Back handsink (Prep areas) Repeat violation."

12. Respondent was also cited for a violation of Food Code

Rule 7-201.11--"observed item stored in food preparation

area/ammonia base product located on top of PREP COUNTER (Blue

colored) and (another dark green liquid not labeled inside a

bottle of Windex)Repeat violation."

13. Respondent has been in the restaurant business almost

thirty-five years. Respondent has never had a customer sick

from Carvel Ice Cream Bakery. Respondent admitted that on the

inspection dates that soap was missing out of the bathrooms and

there were not napkins on the sink because the ice cream cake

maker uses a sanitary rag instead of napkins. However, napkins

were available to the cake maker not on the sink. Moreover,

since the last inspection on March 28, 2008, Respondent has

placed napkins on the sink.

14. Respondent testified credibly that the toxic liquid

was Windex and it comes in a gallon size that he puts in a

smaller bottle. Respondent's procedure is to keep the Windex

under the sink. However, Respondent has young teenagers working

at the restaurant and that if the Windex was out during the

inspections, the young workers had left it there carelessly

while cleaning up.

15. Respondent challenged the Administrative Complaint and

requested a hearing. No dispute exists that the request for

hearing was timely filed.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

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

Florida Statutes (2008).

17. Petitioner has jurisdiction over the operation of

public lodging establishments and public food service

establishments, pursuant to Section 20.165 and Chapter 509,

Florida Statutes. 1

18. The Division is authorized to take disciplinary action

against the holder of such a license for operating in violation

of Chapter 509, Florida Statutes, or the rules implementing that

chapter. Such disciplinary action may include suspension or

revocation of the license, imposition of an administrative fine

not to exceed $1,000.00 for each separate offense, and mandatory

attendance, at personal expense, at an educational program

sponsored by the Hospitality Education Program. § 509.261, Fla.

Stat.

19. Here, the Division seeks to discipline Respondent's

license and/or to impose an administrative fine. Accordingly,

the Division has the burden of proving the allegations charged

in the Administrative Complaint against the Respondent by clear

and convincing evidence. Department of Banking and Finance

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996).

20. A licensee is charged with knowing the practice act

that governs his/her license. Wallen v. Florida department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990).

21. The Administrative Complaint alleged that on April 24,

2007, November 9, 2007, and March 18, 2008, Respondent violated

Food Code Rules 6-301.12 and 7-201.11.

22. Food Code Rule 6-301.12 states in pertinent part:

Hand Drying Provision. Each handwashing

lavatory or group of adjacent lavatories

shall be provided with: (A) Individual,

disposable towels; (B) A continuous towel

system that supplies the user with a clean

towel; or (C) A heated-air hand drying

device.

23. Food Code Rule 7-201.11 states:

Separation. Poisonous or toxic materials

shall be stored so they cannot contaminate

food, equipment, utensils, linens, and

single-service and single-use articles by:

(A) Separating the poisonous or toxic

materials by spacing or partitioning;' and

(B) Locating the poisonous or toxic

materials in an area that is not above food,

equipment, utensils, linens, and single-

service or single-use articles. This

paragraph does not apply to equipment and

utensil cleaners and sanitizers that are

stored in warewashing areas for availability

and convenience if the materials are stored

to prevent contamination of food, equipment,

utensils, linens, and single-service and

single-use articles.

24. The Division met its burden of establishing by clear

and convincing evidence that Respondent was in violation of Food

Code Rules 6-301.12 and 7-201.11, as alleged in the

Administrative Complaint. The record is clear that Respondent

did not provide proper hand drying provisions in the food

preparation area or proper handwashing cleanser at the

handwashing lavatory in the food preparation area during the

inspections of April 24, 2007, November 9, 2007, and March 18,

2008. Additionally, in this matter, the evidence demonstrates

that a toxic item was stored in the food preparation areas on

April 24, 2007, November 9, 2007, and March 18, 2008.

25. The Division proposed a total administrative fine of

$2,000.00. As part of the Department's penalty recommendation,

the Department did not interject Respondent's previous

disciplinary action. Thus, the undersigned is not considering

it.

26. The undersigned recognizes that Food Code 6-301.12 is

a critical violation. However, Section 509.261, Florida

Statutes, provides that fines shall not exceed $1000 per

offense. In this instance, $1000 is deemed to be excessive and

the undersigned feels that $500 is more appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation, Division of Hotels and Restaurants

enter a final order:

1. Finding that Carvel Ice Cream Bakery violated Food Code

Rules 6-301.12 and 7-201.11;

2. Imposing an administrative fine of $1,500.00, payable

to the Division of Hotels and Restaurants, 1940 North Monroe

Street, Tallahassee, Florida 32399-1011; and

3. Imposing mandatory attendance, at Respondent’s expense,

at an educational program sponsored by the Hospitality Education

Program.

DONE AND ENTERED this 13th day of November, 2008, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of November, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references are to the 2007

Florida Statutes since there are no material changes between the

2007 and 2008 statutes referenced.

COPIES FURNISHED :

Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

John Juitt, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Pervez Akhter

Carvel Ice Cream Bakery

8565 Southwest 24th Street

Miami, Florida 33155-2335

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.