11-003435 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Lowe's Good Eaton Restaurant Status: Closed Recommended Order on Wednesday, December 14, 2011.

Summary: Restaurant maintained food at inappropriate temperatures.

Case No. 11-3435

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, RECOMMENDED ORDER )

DIVISION OF HOTELS AND )

RESTAURANTS, )

Petitioner, )

)

vs. )

)

LOWE'S GOOD EATON RESTAURANT, )

)

Respondent. )

)

)

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

on November 7, 2011, in Orlando, Florida, before Susan Belyeu

Kirkland, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Shea Lowe, pro se

Lowe's Good Eaton Restaurant

429 East Kennedy Boulevard

Eatonville, Florida 32751

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Florida Administrative Code Rule 61C-1.004(2)(b) and the

following provisions of the Food Code: 3-202.11, 3-501.16(A),

4-501.11, 5-203.14, 6-202.14, and 6-202.11, and, if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

On July 20, 2010, Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants

(Department), filed an Administrative Complaint against Lowe's

Good Eaton Restaurant (Restaurant), alleging that the Restaurant

violated rule 61C-1.004(2)(b) and the following provisions of

the Food Code: 3-202.11, 3-501.16(A), 4-501.11, 5-203.14,

6-202.14, and 6-202.11. The Restaurant requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on November 28, 2011.

At the final hearing, official recognition was taken of

section 509.032(6), Florida Statutes (2009); 1/ rules 61C-

1.001(14), 61C-1.004(2)(b), and 61C-1.005; and Food Code

Rules 3-202.11, 3-501.16(A), 4-501.11, 5-203.14, 6-202.14, and

6-202.11.

The Department called Dennis Watson as its witness at the

final hearing. Petitioner's Exhibits 1 through 4 were admitted

in evidence. Shea Lowe testified in behalf of the Restaurant.

The Restaurant did not submit any exhibits.

The one-volume Transcript was filed on November 28, 2011.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. The Department

filed Petitioner's Proposed Recommended Order on December 7,

2011. As of the date of this Recommended Order, the Restaurant

has not filed any post-hearing submittal.

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating the operation of public food service establishments,

pursuant to section 20.165 and chapter 509, Florida Statutes.

2. The Restaurant is and has been at all times material to

this proceeding licensed by the Department, license number 58-

11330. The Restaurant is owned by Shea Lowe (Mr. Lowe) and is

located in Eatonville, Florida.

3. On April 14, 2010, Dennis Watson (Mr. Watson), an

inspector for the Department, made a routine inspection of the

Restaurant. Mr. Watson found that the temperature of the

pancake batter that was being used on the cook line was

67 degrees, Fahrenheit (F.); the temperature of the sausage on

the cook line was 64 Degrees, F.; eggs were being held on the

cook line for more than 30 minutes at a temperature greater than

45 degrees, F.; the gaskets/seals on a cold holding unit were in

poor repair; lights in the food storage area were missing proper

covers; the vacuum breaker was missing at the hose bibb outside

the back door; and the door to the men's restroom was not tight-

fitting and self-closing.

4. The Restaurant was given a warning for the violations

found during the April 14, 2010, inspection. The Restaurant was

given until June 14, 2010, to correct the violations.

5. On June 15, 2010, Mr. Watson returned to the Restaurant

for a call-back inspection. Mr. Watson found the following

violations: the gaskets/seals on the cold holding unit were in

poor repair; the vacuum breaker was missing at the hose bibb

outside at the back door; the pancake batter and sausage were

being held on the cook line for more than 30 minutes at

temperatures greater than 41 degrees, F.; raw eggs in the shell

were held on the cook line for more 30 minutes at room

temperature; food in the glass door coolers were held at

temperatures between 49 and 53 degrees, F.; the lights over the

food storage rack/kitchen were missing the proper covers; and

the door to the men's restroom was not tight-fitting and self-

closing.

6. The failure to maintain the food in the coolers at

41 degrees, F.; the failure to maintain raw, shell eggs at a

temperature of 45 degrees, F.; the failure to keep the pancake

batter and sausage on the cook line at the proper temperature;

the failure to install a vacuum breaker on the hose bib outside

the back door; and the failure to have a self-closing door for

the men's restroom are critical violations. Rule 61C-

1.005(5)(a) defines "critical violation" as a violation which

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

welfare and which is identified as a food-borne illness risk

factor or a public health intervention.

7. Mr. Lowe acknowledged that the coolers were not working

properly and has since replaced the coolers. He bought a self-

closing latch for the restroom door, but the door will not self-

close because the door frame does not fit the door, and he

cannot afford to repair the door. He now keeps the eggs in the

cooler until time to cook them. He has purchased some covers

for the lights, but he did not know if they were in place when

the inspections took place. The failure to have a self-closing

door in the men's restroom and the failure to maintain the

gaskets on the cooler door are non-critical violations.

8. Both inspection reports were signed by persons other

than Mr. Lowe. Mr. Lowe was not present for either inspection.

9. The Restaurant has been previously disciplined by a

Final Order entered on December 2, 2008, based on Stipulation

and Consent Order entered into by the parties.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 & 120.57, Fla. Stat. (2011).

11. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &

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

12. The Department has alleged several violations of the

Food Code. Rule 61C-1.001(14) defines "Food Code" as follows:

[P]aragraph 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 5: HACCP Guidelines of the

Food 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.

13. The Department has alleged that the Restaurant has

violated Food Code Rules 3-202.11, 3-501.16(A), 4-501.11,

5-203.14, 6-202.14, and 6-202.11. Food Code Rule 3-202.11

provides:

(A) Except as specified in paragraph (B) of

this section, refrigerated potentially

hazardous food shall be at a temperature of

41 degrees Fahrenheit or below when

received.

(B) If a temperature other than 41 degrees

Fahrenheit for a potentially hazardous food

is specified in law governing its

distribution, such as laws governing milk

and molluscan shellfish, the food may be

received at the specified temperature.

(C) Raw shell eggs shall be received in

refrigerated equipment that maintains an

ambient temperature of 45 degrees Fahrenheit

or less.

(D) Potentially hazardous food that is

cooked to a temperature and for a time

specified under sections 3-401.11 - 3.401.12

and received hot shall be a temperature of

135 degrees Fahrenheit or above.

(E) A food that is labeled frozen and

shipped frozen by a food processing plant

shall be received frozen.

(F) Upon receipt, potentially hazardous

food shall be free of evidence of

temperature and abuse.

14. Food Code Rule 3-501.16(A) provides:

Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified under Section 3-

501.19, and except as specified in paragraph

(B) of this Section, potentially hazardous

food shall be maintained:

(1) At 135 degrees Fahrenheit or above,

except that roasts cooked to a temperature

and for a time specified in paragraph 3-

401.11(B) or reheated as specified in

paragraph 3-403.11(E) may be held at a

temperature of 130 degrees Fahrenheit or

above; or

(2) At a temperature specified in the

following:

(A) 41 degrees Fahrenheit or less.

15. The Department has established by clear and convincing

evidence that the Restaurant has violated Food Code Rules 3-

202.11 and 3-501.16(A) by holding pancake batter and sausage on

the cook line for more than 30 minutes at temperatures greater

than 41 degrees, F.; holding raw eggs in the shell on the cook

line for more 30 minutes at room temperature; holding food in the

glass door coolers at temperatures between 49 and 53 degrees, F.

16. The Department has alleged that the Restaurant has

violated Food Code Rule 4-501.11, which provides:

Good repair and proper adjustment.

(A) Equipment shall be maintained in a

state of repair and condition that meets the

requirements specified in parts 4-1 and 4-2.

(B) Equipment components such as doors,

seals, hinges, fasteners, and kick plates

shall be kept intact, tight and adjusted in

accordance with manufacturers'

specifications.

17. The Department has established by clear and convincing

evidence that the Restaurant has violated Food Code Rule 4-

501.11. The gasket on the door of the cooler was not in good

repair.

18. The Department has alleged that the Restaurant has

violated Food Code Rule 5-203.14, which provides:

Backflow prevention devices, when required.

A plumbing system shall be installed to

preclude backflow of a solid, liquid, or gas

contaminant into the water supply system at

each point of use at the food establishment,

including a hose bibb if a hose is attached

or on a hose bibb if a hose is not attached

and backflow prevention is required by law,

by:

(A) Providing an air gap as specified under

section 5-202.13; or

(B) Installing an approved backflow

prevention device as specified under section

5-202.14.

19. The Department has established that the Restaurant was

in violation of Food Code Rule 5-203.14. The vacuum breaker was

missing on the hose bibb outside the back door of the

Restaurant.

20. Food Code Rule 6-202.14 provides:

Except where a toilet room is located

outside a FOOD ESTABLISHMENT and does not

open directly into the FOOD ESTABLISHEMENT

such as a toilet room that is provided by

the management of a shopping mall, a toilet

room located on the PREMISES shall be

completely enclosed and provided with a

tight-fitting and self-closing door.

21. Rule 61C-1.004(2)(B) provides:

Public bathrooms shall be completely

enclosed and shall have tight-fitting, self-

closing doors, or in public lodging

establishments or bathrooms located outside

a public food service establishment, have

entrances and exits constructed in such a

manner as to ensure privacy of occupants.

Such doors shall not be left open except

during cleaning or maintenance except that

this requirement does not apply to a toilet

room that is located outside a food

establishment and does not open directly

into the food establishment such as a toilet

that is provided by the management of a

shopping mall.

22. The Department has established that the Restaurant was

in violation of rule 61C-1.002(2)(b) and Food Code Rule 6-

202.14. The door to the men's restroom was not self-closing.

23. The Department has alleged that the Restaurant has

violated Food Code Rule 6-202.11, which provides:

Light Bulbs, protective shielding.

(A) Except as specified in paragraph (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 cannot be

affected by broken glass falling onto them;

and

(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.

24. The Department has established that the Restaurant

violated Food Code Rule 6-202.11. The lights over the food

storage rack in the kitchen were missing the proper covers.

25. Rule 61C-1.005(5)(d) defines a "second offense" as

follows:

a violation of any law subject to penalty

under Chapter 509, F.S., after one

disciplinary Final Order involving the same

licensee has been filed with the Agency

Clerk within the 24 months preceding the

date the current administrative complaint is

issued, even if the current violation is not

the same as the previous violation.

26. The violations established in this proceeding are

second offenses. Rule 61C-1.005(6)(a) provides that discipline

for a second-offense, non-critical violation is an

administrative fine of $250 to $500. Rule 61C-1.005(6)(b)

provides that discipline for a second-offense, critical

violation is an administrative fine of $500 to $1,000. The

Department has established three critical violations and two

non-critical violations.

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,

finding that Lowe's Good Eaton Restaurant violated rule 61C-

1.004(2)(B) and Food Code Rules 3-202.11, 3-501.16(A), 4-501.11,

5-203.14, 6-202.14, and 6-202.114-50; and imposing an

administrative fine of $500 for each of the three critical

violations and $250 for each of the two non-critical violations

for a total administrative fine of $2,000.

DONE AND ENTERED this 14th day of December, 2011, in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 2011.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Shea Lowe

Lowe's Good Eaton Restaurant

429 East Kennedy Boulevard

Eatonville, Florida 32751

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 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.