16-001170 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Tillie's Twistee Treat, Inc., D/B/A Tillie's Twistee Treat Status: Closed Recommended Order on Friday, May 20, 2016.

Summary: Ice cream temps exceeded food code maximums and posed threat of food-borne illness to consumers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND

RESTAURANTS,

Petitioner,

vs. Case No. 16 - 1170

TILLIE'S TWISTEE TREAT, INC.,

d/b/a TILLIE'S TWISTEE TREAT,

Respondent.

__________ _____________________/

RECOMMENDED ORDER

On May 4, 2016, an administrative hearing in this case was

held by video teleconference in Orlando and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divi sion of Administrative Hearings.

APPEARANCES

For Petitioner: Charles LaRay Dewrell, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the

Amended Administrative Complaint filed by the Department of

Business and Professional Regulation, Divisi on of Hotels and

Restaurants (Petitioner), against TillieÓs Twistee Treat, Inc.,

d/b/a TillieÓs Twistee Treat (Respondent) are correct, and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated February 25, 20 16, the

Petitioner cited the Respondent, a food service establishment in

Orlando, Florida, for allegedly violating certain Food Code

(Code) regulations identified therein.

The Respondent filed an Election of Rights form disputing

the allegations and requ esting that a formal hearing be

conducted. On March 2, 2016, the Petitioner forwarded the

dispute to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

one wit ness and had Exhibits 1 through 3 admitted into evidence.

The Respondent presented no witnesses or exhibits.

The T ranscript of the hearing was filed on May 9, 2016.

On May 10, 2016, Kathy Collins, the apparent operator of

the Respondent, filed a lette r wherein she explained that she

failed to attend the hearing because she ente red an incorrect

hearing date on her calendar. Ms. Collins stated that she went

to the hearing location on May 5, 2016, where she learned that

the hearing had been conducted a d ay earlier. Ms. Collins did

not request that the hearing be reconvened, but stated that she

had never been previously cited by the Respondent and further

stated , ÐI strongly feel that this citation was unjustified.Ñ

On May 16, 2016, the Petitioner file d a Proposed

Recommended Order that has been conside red in the preparation of

this recommended o rder.

FINDING S OF FACT

1. The Petitioner is the state agency charged with

regulat ion of restaurants pursuant to c hapter 509, Florida

Statutes.

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

operating as a licensed food service establishment located at

16801 East Colonial Drive, Orlando, Florida , 32820. The

Respondent sells an ice cream product.

3. On December 2, 2015, Maelyn Arroyo, a Sanitat ion and

Safety Specialist employed by the Petitioner, performed an

unannounced routine inspection of the Respondent, during which

she observed various violations of the Code.

4. At the conclusion of the inspection, Ms. Arroyo

prepared a written report d ocumenting the Code violations she

had observed.

5. Before leaving the premises, Ms. Arroyo provided a copy

of the inspection report to Kathy Collins, identified on the

report as the manager of the Respondent.

6. According to the inspection report, t he cited code

violations were to be corrected by 8:00 a.m. on December 9,

2015, at which time a ÐcallbackÑ inspection was scheduled to

occur.

7. The purpose of the callback inspection was to determine

whether the Code violations identified during the ro utine

inspection had been corrected.

8. On December 9, 2015, Ms. Arroyo returned to the

RespondentÓs location to conduct the callback inspection. At

that time, Ms. Arroyo observed that many, but not all, of the

Code violations observed during the routi ne inspection had been

corrected.

9. At the conclusion of the callback inspection,

Ms. Arroyo prepared a written report documenting the uncorrected

Code violations.

10. Before leaving the premises, Ms. Arroyo provided a

copy of the inspection report to an employee identified as

Amanda Sanchez, who was present at the time of the inspection.

11. Ms. Arroyo also recommended that administrative

charges be filed against the Respondent for the uncorrected

violations.

12. The Code classifies violation s as either Ðhigh

priority,Ñ Ðintermediate , Ñ or Ðbasic,Ñ essentially reflecting

the level of threat to public health posed by a deficiency.

13. A high priority violation is one that poses a direct

or significant threat of causing food borne illness to a person

who consumes the product.

14. The violations cited herein are high priority

violations because the failure to maintain the product at or

below the required temperatures can result in bacteria growth

that can cause food borne illness in persons w ho consume the

product. The RespondentÓs ice cream product can be potentially

hazardous if not maintained at the required temperature prior to

service.

15. In relevant part, Code Section 3 - 501.16(A)(2) requires

that potentially hazardous food must be m aintained at 41 degrees

Fahrenheit or less, except during preparation, cooking, or

cooling.

16. At the time of the routine inspection on December 2,

2015, Ms. Arroyo determined that the temperature of chocolate

ice cream mix held in the front line ice c ream machine was 54

degrees, and that the temperature of vanilla ice cream mix held

in the front line ice cream machine was 51 degrees.

17. Other flavors of ice cream mix tested by Ms. Arroyo

apparently met temperature requirements.

18. At the time o f the callback inspection on December 9,

2015, Ms. Arroyo determined that the temperature of chocolate

ice cream mix held in the front line ice cream machine was 50

degrees, and that the temperature of vanilla ice cream mix held

in the front line ice crea m machine was 43 degrees. Ms. Arroyo

also determined that the strawberry ice cream mix was 42

degrees.

19. Ms. Arroyo testified that she calibrates her

thermometer on a daily basis prior to beginning her assigned

inspections.

20. Ms. Arroyo testifie d that on December 9, 2015, she

tested the calibration of the thermometer used by the Respondent

to maintain the appropriate food temperatures and discovered

that the RespondentÓs thermometer was not properly calibrated.

21. A properly calibrated thermo meter should provide a

temperature reading of 32 degrees when subjected to an ice water

calibration test.

22. According to Ms. Arroyo, when she performed an ice

water calibration test on the RespondentÓs thermometer, the

thermometer indicated that the t emperature of the water was 28

degrees. Accordingly, the RespondentÓs thermometer was

indicating that the product being tested was four degrees lower

than the actual temperature of the product.

CONCLUSIONS OF LAW

23. The Division of Administrative Hear ings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2015). 1/

24. The Petitioner is the state agency charged with the

regulation of food service establishments in the State of

Florida. See Florida Statutes c hapter 509. The Petitioner has

adopted by incorporation the various provisions of the Code

specifically identified in the Administrative Complaint and

referenced herein. See Florida Administrative Code R ule

61C - 1.001.

25. The P etitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Dep Ó t of

Banking and Fin . v. Osborne Stern and Co . , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 51 0 So. 2d 292 (Fla. 1987). In

this case, the burden has been met.

26. The evidence establishes that on December 2 and

December 9, 2015, the Respondent offered an ice cream product

for sale to the public that failed to meet the temperature

requirements r eferenced herein.

27. The Petitioner has adopted disciplinary guidelines

applicable to this case at Florida Administrative Code Rule

61C - 1.005. Pursuant to r ule 61C - 1.005(5)(a), a high priority

violation means Ða vi olation of a high priority item. . .

determined by the division to pose a direct or significant

threat to the public health, safety, or welfare. . .Ñ R ule

61C - 1.005(6)(c) identifies an administrative fine of $250 to

$500 as the appropriate penalty for the first offense of a high

priority v iolation.

28. The evidence established that the thermometer being

used by the Respondent was not properly calibrated. There is no

evidence that the Respondent was unaware of the applicable

temperature requirements or that the Respondent failed to

routi nely test the product being held for sale. It is presumed

that the RespondentÓs faulty thermometer was the sole cause of

the non - compliance with the temperature requirement.

Accordingly, the recommended penalty set forth below is the

minimum penalty avai lable within the suggested guidelines.

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 im posing a fine of $250 against the

Respondent.

DONE AND ENTERED this 20th day of May , 2016 , 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 Administrative Hearings

this 20th day of May , 2016 .

ENDNOTE

1/ All statutory r eferences are to Florida Statutes (2015).

COPIES FURNISHED:

Charles LaRay Dewrell, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Kathy Collins

Tillie's Twistee Trea t

16801 East Colonial Drive

Orlando, Florida 32820

Rick Akin, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

D epartment of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommend ed Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.