Notice of Variances and Waivers

Division of Hotels and Restaurants
61C-4.010: Sanitation and Safety Requirements
NOTICE IS HEREBY GIVEN that on April 16, 2010, the Florida Department of Business and Professional Regulation, Division of Hotels and Restaurants has issued an order.
The Department received an Emergency Variance on April 7, 2010, for Subparagraph 3-304.11, FDA Food Code, 3-305.11(A)(2), 2001 FDA Food Code, Paragraph 3-305.14, 2001 FDA Food Code, Subparagraph 4-301.12(A), 2001 FDA Food Code, Subparagraph 4-602.11(A)(5), 2001 FDA Food Code, Paragraph 6-202.15, 2001 FDA Food Code, Paragraph 6-202.16, 2001 FDA Food Code, subsections 61C-4.010(1), (5), (6) and 61C-4.161(1), Florida Administrative Code, from Joy Wallace Catering, Miami, FL. The above referenced F.A.C. addresses the requirement for proper handling, protection and dispensing of food and sanitization of food contact surfaces. They are requesting to dispense potentially hazardous foods from a smoker unit mounted on an open air trailer.
The initial request will post in Vol. 36, No. 17 on 4/30/10 and concludes that the Petitioner’s request for variance fails to meet the burden of demonstrating public health safeguards. The following are some of the public health reasons regarding the need to provide adequate warewashing facilities and food protection/enclosure structure (found in the Public Health Reasons/Administrative Guidelines of the 2001 FDA Food Code Annex 3):
Pathogens can be transferred to food from utensils that have been stored on surfaces which have not been cleaned and sanitized. Some pathogenic microorganisms survive outside the body for considerable periods of time. Food that comes into contact directly or indirectly with surfaces that are not clean and sanitized is liable to such contamination. The handles of utensils, even if manipulated with gloved hands, are particularly susceptible to contamination. Pathogens can also contaminate and/or grow in food that is not stored properly.
Food-contact surfaces and equipment used for potentially hazardous foods should be cleaned as needed throughout the day but must be cleaned no less than every 4 hours to prevent the growth of microorganisms on those surfaces.
The three-compartment sink requirement allows for proper execution of the 3-step manual warewashing procedure. If properly used, the three compartments reduce the chance of contaminating the sanitizing water and therefore diluting the strength and efficacy of the chemical sanitizer that may be used.
Sources of environmental contamination may include…air from an uncontrolled atmosphere such as may be encountered when preparing food in a building that is not constructed according to Food Code requirements.
Insects and rodents are vectors of disease-causing microorganisms which may be transmitted to humans by contamination of food and food-contact surfaces. The presence of insects and rodents is minimized by protecting outer openings to the food establishment.
Walls and roofs provide a barrier to protect the interior and foods from the weather, windblown dirt and debris, and flying insects.
There is a reasonable alternative to the requested variance. The petitioner owns and operates a licensed Mobile Food Dispensing Vehicle which if operated in conjunction with a screened, closed-system smoker unit would be in compliance with the above requirements. The petitioner has chosen not to pursue this alternative.
The hardship has been deliberately caused by the petitioner’s decision to not use the reasonable alternative of utilizing the currently licensed Mobile Food Dispensing Vehicle in conjunction with the smoker unit.
Therefore the Division concludes that this variance submission meets none of the statutory criteria for granting a variance.
Granting this variance in its current format would create an undesirable precedent upon which all types of mobile food dispensing units could claim a variance. Granting this variance would be inconsistent with the principles of public safety and sanitation articulated in Section 509.032(e)(1), F.S., for public food service establishments enforced by the Division. Based on the foregoing, the Division concludes that the Petitioner’s request for variance fails to meet the burden of demonstration that required safety and sanitation safeguards have otherwise been met.
A copy of the Order may be obtained by contacting:, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011.