10-010496 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Pita's Restaurant Status: Closed Recommended Order on Friday, May 20, 2011.

Summary: Food Code violations warrant penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10496

)

PITA'S RESTAURANT , )

)

Respondent . )

)

RECOMMENDED ORDER

On April 6, 2011, an administrative hearing in this case

was held by video tele conference in Tampa and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Megan Demartini, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: (No appearance)

STATEMENT OF THE ISSUE S

The issue s in the case are whether the allegations set

forth in an Administrative Complaint filed by the Department of

Business and Professional Regulation, Division of Hotels and

Restaurants (Petitioner) , against Pita's Restaurant (Respondent)

are correct, and , if so, what penalty should be imposed.

PRELIMINA RY STATEMENT

By Administrative Complaint dated January 12, 2010, the

Petitioner alleged that the Respondent was in violation of

certain food safety regulations at the time of inspections

conducted by an employee of the Petitioner. The Respondent

disputed the allegations and requested a formal administrative

hearing. On December 7, 2010, the Petitioner forwarded the

dispute to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner presented th e testimony of

one witness and had Exhibits 1 through 3 admitted into evidence.

Although the manager of the Respondent attended the hearing, the

Respondent was not represented by legal counsel or a qualified

representative and presented no witnesses or ex hibits .

The T ranscript of the hearing (incorrectly identifying the

hearing date as February 14, 2011) was filed on April 20, 2011.

The Petitioner filed a Proposed Recommended Order on April 29,

2011.

FINDINGS OF FACT

1. The Petitioner is the state agenc y charged with

regulation of hotels and restaurants pursuant to c hapter 509,

Florida Statutes (2010) . 1/

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

a restaurant operating at 8412 West Hillsborough Avenue, Tampa,

Florida 33615, and holding fo od service license number 3912285 .

3. On October 28, 2009, Rich Decker (Mr. Decker) , employed

by the Petitioner as a s anitation & s afety s pecialist, performed

a routine inspection of the Respondent and observed conditions

that violated certain provisio ns of the Food Code.

4. Food Code violations are classified as "critical" or

"non - critical." A critical violation of the Food Code is one

that poses a significant threat to the public health, safety, or

welfare and is a risk factor for food - borne illness. A non -

critical violation of the Food Code is one that does not meet

the definition of a critical v iolation.

5. At the conclusion of the October 28 , 2009, inspection,

Mr. Decker noted the observed violations in an inspection

report. The owner of the Respo ndent signed the report and

received a copy at the time of the inspection. Mr. Decker

advised the owner that a follow - up "callback" inspection was

scheduled to occur on December 28, 2009, and that the violations

needed to be corrected by that date.

6. Th e callback inspection did n ot occur on December 28,

2009.

7. Mr. Decker performed the callback inspection on

January 5, 2010, and observed some of the same Food Code

violations noted on the October 28 , 2009, inspection report.

8. At the conclusion of the January 5 , 2010, inspection,

Mr. Decker again noted the observed violations in an inspection

report. The manager of the Respondent signed the report and

received a copy at the time of the inspection. The Petitioner

subsequently filed the Administrati ve Complain t at issue in this

proceeding.

9. During the October 28 , 2009, inspection and again

during the January 5 , 2010, callback inspection, Mr. Decker

observed raw eggs being stored above prepared, ready - to - eat pita

bread. This violation was deemed t o be critical because raw

food stored above ready - to - eat food can lead to bacterial

contamina tion of the ready - to - eat food.

10. During the October 28 , 2009, inspection and again

during the January 5 , 2010, callback inspection, Mr. Decker

observed unidenti fied medicine being stored in a refrigeration

unit along with food supplies. This violation was deemed to be

critical , because the medicine could have contaminate d the food.

11. During the October 28 , 2009, inspection and again

during the January 5 , 2010 , callback inspection, Mr. Decker

observed prepared, ready - to - eat, and potentially - hazardous food

being stored without having been date - marked to identify the

last date upon which the food could be consumed. Prepared food

has a limited shelf life during w hich it may be safely consumed.

The failure to date - mark prepared food was a critical violation ,

because such failure may result in t he consumption of unsafe

food.

12. During the October 28 , 2009, inspection and again

during the January 5 , 2010, callback inspection, Mr. Decker

observed that there was no consumer advisory warning related to

consumption of raw or undercooked foods posted on the premises.

The Food Code requires the posting of such a notice, and the

failure to comply is deemed a cri tical violation , because

consumption of certain raw or undercooked foods poses a health

risk to some consumers.

13. During the October 28 , 2009, inspection and again

during the January 5 , 2010, callback inspection, Mr. Decker

observed an employee engaged in food preparation without wearing

a hair net. Although food can be contaminated by human hair,

this violation was deemed to be non - critical , because no

immediate threat to human health w as presented by the violation.

CONCLUSIONS OF LAW

14. The Divisio n of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat .

15. The Petitioner is the state agency charged with the

regulation of food service establishments in the State of

Florida. See Ch. 509, Fla . Stat .

16. Florida Administrative Code Rule 61C - 1.001(14)

provides the following definition:

Food Code - Î This term as used in Chapters

61C - 1, 61C - 3, and 61C - 4, F.A.C., means

paragraph 1 - 201.10(B), Chapter 2, Chapter 3,

Chapter 4, Chapter 5, Chapter 6, and Chapter

7 of the Food Code, 2001 Recommendations of

the United States Public Health Service/Food

and Drug Administration including Annex 3:

Public Health Reasons/Administrative

Guidelines; Annex 5: HACCP Guidelines of

the Fo od Code; the 2001 Food Code Errata

Sheet (August 23, 2002); and Supplement to

the 2001 FDA Food Code (August 29, 2003),

herein adopted by reference. A copy of the

Food Code, as adopted by the division, is

available on the divisionÓs Internet website

www.M yFloridaLicense.com/dbpr/hr. A copy of

the entire Food Code is available on the

U.S. Food and Drug Administration Internet

website. Printed copies of the entire Food

Code are available through the National

Technical Information Service, 5285 Port

Royal R oad, Springfield, VA 22161.

17. The Administrative Complaint alleged violations of the

Food Code provisions cited herein. The Petitioner has the

burden of proving by clear and convincing evidence the

allegations set forth in the Administrative Complaint against

the Respondent. Dep ' t of Banking & Fin . v. Osborne Stern & Co . ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 19 87). The burden has been met.

18. Rule 61C - 1.005(5) provides, in relevant part, as

follows:

Definitions.

( a) ÐCritical violationÑ means a violation

determined by the division to pose a

significant threat to the public health,

safety, or welfare and which is identified

as a food borne illness risk factor, a

public health intervention, or critical in

DBPR Form HR - 5022 - 014 Lodging Inspection

Report or DBPR Form HR - 5022 - 015 Food Service

Inspection Report, incorporated by reference

in subsection 61C - 1.002(8), F.A.C., and not

otherwise identified in this rule.

(b) ÐNon - critical violationÑ means a

violation not mee ting the definition of

critical violation and not otherwise

identified in this rule.

19. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 3 - 302.11(A)( 1), which

provides as follows:

3 - 302.11 Packaged and Unpackaged Food - -

Separati on, Packaging, and Segregation.

(A) Food shall be protected from cross

contamination by:

(1) Separating raw animal foods during

storage, preparation, holding, and display

from:

(a) Raw ready - to - eat food including other

raw animal food such as fish for sushi or

molluscan shellfish, or other raw ready - to -

eat food such as vegetables, and

(b) Cooked ready - to - eat food [.]

20. The evidence established that on October 28, 2009 , and

Janu ary 5, 2010, the Respondent violated the referenced Food

Code provision by locating raw food over prepared, ready - to - eat

food, a critical violation.

21. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 7 - 207.11, which provides as

follows:

7 - 207.11 Restriction and Storage.

(A) Only those medicines that are necessary

for the health of Employees shall be allowed

in a food establishment. This section does

not apply to medicines that are stored or

displayed for retail s ale.

(B) Medicines that are in a food

establishment for the Employees' use shall

be labeled as specified under § 7 - 101.11 and

located to prevent the contamination of

food, equipment, utensils, linens, and

single - service and single - use articles.

22. Th e evidence established that on October 28, 2009 , and

January 5, 2010, the Respondent violated the referenced Food

Code provision by storing medication in a food cooler that also

contained food s upplies, a critical violation.

23. The Administrative Complai nt charged the Respondent

with a violation of Food Code Rule 3 - 501.17(A), which provides

as follows:

3 - 501.17 Ready - to - Eat, Potentially

Hazardous Food, Date Marking.

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

section, refrigerated, ready - to - eat,

potenti ally hazardous food prepared and held

in a food establishment for more than 24

hours shall be clearly marked to indicate

the date or day by which the food shall be

consumed on the premises, sold, or

discarded, based on the temperature and time

combinations specified below:

(1) 5°C (41°F) or less for a maximum

of 7 days; or

(2) 7°C (45°F) or between 5°C (41°F)

and 7°C (45°F) for a maximum of 4 days in

existing refrigeration equipment that is not

capable of maintaining the food at 5°C

(41°F) or less if:

(a) The equipment is in place and in use in

the food establishment, and

(b) Within 5 years of the regulatory

authority's adoption of this code, the

equipment is upgraded or replaced to

maintain food at a temperature of 5°C (41°F)

or less.

The day of preparation shall be counted as

Day 1.

24. The evidence established that on October 28, 2009 , and

January 5, 2010, the Respondent violated the referenced Food

Code provision by storing potentially - hazardous food without

clearly marking the stored food wi th the last date for human

cons umption, a critical violation.

25. The Administrative Complaint charged the Respondent

with a violation of Food Code Rule 3 - 603.11, which provides as

follows:

3 - 603.11 Consumption of Animal Foods that

are Raw, Undercooked, or Not Otherwise

Processed to Eliminate Pathogens.*

Except as specified in ¶ 3 - 401.11(C) and

Subparagraph 3 - 401.11(D)(3) and under ¶ 3 -

801.11(D), if an animal food such as beef,

eggs, fish, lamb, milk, pork, poultry, or

shellfish that is raw, undercooked, or not

otherwise processed to eliminate pathogens

is offered in a ready - to - eat form as a deli,

menu, vended, or other item; or as a raw

ingredient in another ready - to - eat food, the

permit holder shall inform consumers by

brochures, deli case or menu advis ories,

label statements, table tents, placards, or

other effective written means of the

significantly increased risk associated with

certain especially vulnerable consumers

eating such foods in raw or undercooked

form.

26. The evidence established that o n October 28, 2009 , and

January 5, 2010, the Respondent violated the referenced Food

Code provision by failing to post the required disclosure

info rmation, a critical violation.

27. The Administrative Complaint charged the Respondent

with a violation of F ood Code Rule 2 - 402.11, which provides as

follows:

Hair Restraints

2 - 402.11 Effectiveness.

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

section, food employees shall wear hair

restraints such as hats, hair coverings or

nets, beard restraints, and clothing t hat

covers body hair, that are designed and worn

to effectively keep their hair from

contacting exposed food; clean equipment,

utensils, and linens; and unwrapped single -

service and single - use articles.

(B) This section does not apply to food

employees such as counter staff who only

serve beverages and wrapped or packaged

foods, hostesses, and wait staff if they

present a minimal risk of contaminating

exposed food; clean equipment, utensils, and

linens; and unwrapped single - service and

single - use articles.

28. The evidence established that on October 28, 2009 , and

January 5, 2010, the Respondent violated the referenced Food

Code provision by failing to require that all appropriate

employees w ear hairn ets, a non - critical violation.

29. Section 509.261 provides , in relevant part , as

follows:

Revocation or suspension of licenses; fines;

procedure. Ï -

(1) Any public lodging establishment or

public food service establishment that has

operated or is operating i n violation of

this chapter or the rules of the division,

operating without a license, or operating

with a suspended or revoked license may be

subject by the division to:

(a) Fines not to exceed $1,000 per offense;

(b) Mandatory attendance, at personal

expense, at an educational program sponsored

by the Hospitality Education Program; and

(c) The suspension, revocation, or refusal

of a license issued pursuant to this

chapter.

(2) For the purposes of this sect ion, the

division may regard as a separate offense

each day or portion of a day on which an

establishment is operated in violation of a

Ðcritical law or rule,Ñ as that term is

defined by rule.

30. Rule 61C - 1.005(6) provides, in relevant part, as

follow s:

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 - Î Administrative fine of $150

to $300.

* * *

(b) Critical violation. Fines may be

imposed for each day or portion of a da y

that the violation exists, beginning on the

date of the initial inspection and

continuing until the violation is corrected.

1. 1st offense - Î Administrative fine of $250

to $500.

31. This case involves four critical violations and one

non - critical viol ation, all observed on two separate dates.

According to the cited rule, the total standard penalty for the

violations for each date ranges from $1,150 to $2,300.

Application of the referenced statute would limit the maximum

penalty to $2,000, based on th e two days upon which critical

Food Code violations were observed during the inspections of the

Respondent. The Petitioner's Proposed Recommended Order se eks a

total penalty of $1,350.

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 f inal o rder imposing a fine of $1,350 against the

Respondent and requ iring that the Respondent complete an

appropriate educational program related to th e violations

identified herein.

DONE AND ENTERED this 20th day of May , 2011 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admi nistrative Hearings

this 20th day of May , 2011 .

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2010), unless otherwise stated.

COPIES FURNISHED :

Megan Demartini

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Rabih Kh ayat

Pita's Restaurant

8412 West Hillsborough Avenue

Tampa, Florida 33615

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

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

NOTICE OF RIGHT TO SUBMIT EXCE PTIONS

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.