07-004197 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Bono`s Barbecue Sports Bar Status: Closed Recommended Order on Friday, December 21, 2007.

Summary: The Department did not demonstrate that Respondent violated Rule 61C-4.010 via violations of the Federal Food Code because it did not prove what version of the Food Code was in effect at the time of the charged conduct.

Case No. 07-4197

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) ) ) ) ) ) ) ) ) ) ) ) )

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND RECOMMENDED ORDER

RESTAURANTS,

Petitioner,

vs.

BONO'S BARBECUE SPORTS BAR,

Respondent.

On November 14, 2007, a final hearing was held in

St. Augustine, Florida. The case was considered by Lisa Shearer

Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Dave Brennan, District Manager

Bono's Barbeque Sports Bar

1001 A1A Beach Boulevard

Saint Augustine Beach, Florida 32203

STATEMENT OF THE ISSUE

Whether Respondent has committed the violations alleged in

the Administrative Complaint and if so, what penalties should be

imposed.

PRELIMINARY STATEMENT

On May 25, 2007, the Department of Business and Professional

Regulation (Department) filed an Administrative Complaint against

Respondent, asserting violations of Chapter 509, Florida

Statutes, and the administrative rules related to food service

violations. On June 14, 2007, Respondent disputed the

allegations in the Administrative Complaint and requested an

evidentiary hearing pursuant to Section 120.57(1), Florida

Statutes. On September 18, 2007, the case was forwarded by the

Department to the Division of Administrative Hearings for the

assignment of an administrative law judge.

The case was duly noticed for hearing and proceeded as

scheduled. The Department presented the testimony of one witness

and Petitioner's Exhibits A through C were admitted into

evidence. Official recognition was taken of the Florida

Administrative Code Rules and Florida Statutes relevant to this

proceeding. Respondent presented the testimony of one witness

and Respondent's Exhibit numbered 1 was admitted. The transcript

of the proceedings was filed with the Division November 28, 2007,

and the parties were accorded until December 10, 2007, to file

their proposed recommended orders. While the Department timely

filed its Proposed Recommended Order, no such submission was

received from the Respondent. The Department's Proposed

Recommended Order has been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency charged with the licensing and

regulation of public food service establishments, pursuant to the

provisions of Chapter 509, Florida Statutes.

2. Respondent is a restaurant holding food service license

number 6500911. Respondent is owned by Barbque Ventures, Inc.

3. Daniel Fulton is employed by the Department as a

Sanitation and Safety Specialist. In that capacity, he conducts

inspections of food service and lodging establishments for

compliance with Chapter 509, Florida Statutes; the Food Code; and

the relevant Florida Administrative Code Rules. Mr. Fulton is a

certified food manager.

4. Critical violations are violations of the relevant rules

and statutes that are more likely to contribute to a food-borne

illness, an environmental hazard, or to food contamination.

5. Non-critical violations are those violations that are

less likely to contribute to a food-borne illness, an

environmental hazard, or to food contamination.

6. On March 21, 2007, Mr. Fulton inspected the premises of

Bono's Barbeque Sports Bar at 1001 A1A Beach Boulevard, in

St. Augustine, Florida. During the inspection, Mr. Fulton

prepared a Food Service Inspection Report setting forth the

findings from his inspection. The Food Service Inspection Report

was provided to and signed for by Debra Barnes, who was listed as

manager for the restaurant.

7. During the March 21, 2007, inspection, Mr. Fulton

recorded a number of violations of the Food Code. Only four of

them are relevant to the charges in the Administrative Complaint.

8. Mr. Fulton observed that foods in the walk-in cooler

were not labeled and dated. This is considered a critical

violation because food that has been cooked is allowed only a

certain number of hours to cool to 41 degrees. If previously

prepared food is not marked, it cannot be determined whether it

has met the schedule for cooling. Failure to mark and date

previously-prepared food is considered a critical violation. The

failure to label and date food was noted in the March 21

inspection report at the top of the third page, stating:

02-06-1: Observed combined ready-to-eat

potentially hazardous food held more than

24 hours not date marked according to

earliest date of opening/preparation.

However, Mr. Fulton did not testify that the meat in question had

been held over 24 hours. He testified only that it was placed in

the walk-in cooler 18 hours before.

9. Mr. Fulton also observed that the food in the walk-in

cooler was between 44 and 46 degrees. According to Mr. Fulton,

this is considered a critical violation because bacteria will

grow above 41 degrees, and the longer the food is above 41

degrees, the more the bacteria will grow. The violation was

noted on page three of the March 21 inspection report as

"03A-07-1: Observed potentially hazardous food cold held at

greater than 41 degrees Fahrenheit."

10. The walk-in cooler was replaced after the call-back

inspection and three repairs.

11. Mr. Fulton observed uncovered food in the walk-in

cooler. Walk-in coolers are not considered to be food-contact

surfaces, and in order to protect the food, it needs to be off

the floor and covered at all times. Failure to cover the food in

the walk-in cooler is considered a critical violation. This

violation was recorded in the inspection report as "08A-29-1:

Observed uncovered food in holding unit/dry storage area. TEA

Corrected on Site."

12. Finally, Mr. Fulton observed two sinks that had no hand

towels available for handwashing. Without proper handwashing,

employees' hands are "virtually bacteria spreaders." Failure to

provide hand towels at hand sinks hampers the employees' hand

washing efforts, and is considered a critical violation. The

violation was listed on the inspection report as "32-16-1: Hand

wash sink lacking proper hand drying provisions. TWO SINKS."

13. On May 1, 2007, Mr. Fulton returned to Bono's Barbeque

for a call-back inspection. At that time he completed a Call

Back Inspection Report, which was signed by Debra Barnes as the

manager. The Call Back Inspection Report contains the following:

The following items(s) have been recommended

for Administrative Complaint:

Violation 32-16-1

Hand wash sink lacking proper hand drying

provisions. TWO SINKS.

Violation 08A-29-1

Observation uncovered food in holding

unit/dry storage area. WIC

Violation 03A-07-1

Observed potentially hazardous food cold held

at greater than 41 degrees /Fahrenheit.

EVERYTHING IN WIC IS AT 44 TO 46 F.

Violation 02-06-1

Observed combined ready-to-eat potentially

hazardous food held more than 24 hours not

date marked according to earliest date of

opening/preparation. BBQ COOKED AND COOLED

ON 04/30/07 IN WIC.

14. The Food Inspection Report, the Call-Back Inspection

Report, the Administrative Complaint and the copies of relevant

rules provided at hearing all reference provisions of the Food

Code. However, none of these documents indicate what version of

the Food Code is being referenced.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

16. The Division of Hotels and Restaurants within the

Department of Business and Professional Regulation is charged

with the licensing and regulation of public lodging

establishments and public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

17. Any public food establishment that has violated the

provisions of Chapter 509 or the rules authorized by Chapter 509

is subject to fines of up to $1,000.00 per offense; mandatory

attendance at an educational program sponsored by the Hospitality

Program; suspension, revocation or refusal of a license. In

order to impose any such penalties, the Department must

demonstrate the allegations against Respondent by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

18. In order to discipline a food service establishment,

the offenses must be specifically alleged in the Administrative

Complaintevisani v. Department of Health , 908 So. 2d 1108

(Fla. 1st DCA 2005); Delk v. Department of Professional

Regulation , 595 So. 2d 966 (Fla. 5th DCA 1992).

19. A "public food service establishment" is defined in

Section 509.013(5)(a), Florida Statutes, as follows:

'Public food service establishment' means any

building, vehicle, place, or structure where

food is prepared, served, or sold for

immediate consumption or in the vicinity of

the premises; called for or taken out by

customers; or prepared prior to being

delivered to another location for

consumption.

20. Respondent is a food service establishment as defined

by Section 509.013(5)(a), Florida Statutes.

21. Each public food service establishment must have a

license in order to operate. § 509.241, Fla. Stat.

22. Florida Administrative Code Rule 61C-4.010 provides in

pertinent part:

(1) Food Supplies and Food Protection --

except as specifically provided in this rule,

public food service establishments shall be

subject to the provisions of Chapter 3, Food

Code, herein adopted by reference.

* * *

(6) Physical facilities - except as

specifically provided in these rules, the

physical facilities at public food service

establishments shall be subject to the

provisions of Chapter 6, Food Code, herein

adopted by reference. . . .

23. Rule 61C-4.010 was last amended February 27, 2005. As

is apparent from the quote above, the Rule does not indicate

which version of the Food Code is incorporated by reference.

24. At hearing, the Respondent pointed to an exemption to

Rule 3-501.16(A)(2)(b) of the Food Code in the version provided

at hearing regarding the purchase of refrigeration equipment.

Essentially, in the copy provided at hearing, Rule 3-501.16(A)

states:

Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified in ¶ (B) of this

section, potentially hazardous food shall be

maintained:

(1) At 60°C (140°F) or above, . . .; or

(2) At a temperature specified in the

following:

(a) 5°C (41°F) or less; or

(b) 7°C (45°F) or between 5°C (41°F) and

7°C (45°) in existing refrigeration equipment

that is not capable of maintaining the food

at 5°C (41°F) or less if: (i) the equipment

is in place and in use in the food

establishment, and (ii) 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. (Emphasis supplied.)

25. The Department responded to Respondent's argument in

its Proposed Recommended Order, stating:

11. On the date of the hearing, Respondent

stated that Rule 3-501.16(a) created an

exemption that would allow establishments to

waive the temperature requirements if the

equipment was already purchased. Further,

Respondent stated that it was his

understanding that establishments would have

five (5) years from the date of adoption of

the Code to replace the equipment. However,

the Food Code is updated every four (4)

years. The Food and Drug Administration

("FDA") collaborates with the Conference for

Food Protection, the Centers for Disease

Control and Prevention (CDC), and the U.S.

Department of Agriculture (USDA) to update

the Food Code. The FDA issued a 2005

Supplement to reflect the current science and

emerging food safety issues, and imminent

health hazards related to food safety. This

Supplement updates the 2005 Food Code to

address several recommendations made by the

2006 Conference for Food Protection (CFP)

with which the FDA, Centers for Disease

Control and Prevention (CDC) and United

States Department of Agriculture concur.

Therefore, the current rule removed

subparagraphs (A)(2)(a) and (b) that

referenced 5°C (41°F) and 7°C (45°F) cold

holding and deleted the reference to

upgrading refrigeration equipment within 5

years of adoption; Revised subparagraph

(A)(2) to specify a cold holding temperature

of 41°F or less (CFP Issue 2006-I-33).

Therefore, the argument proposed by

Respondent is irrelevant.

26. Respondent's argument and the Department's response

require a determination of when the Department adopted the Food

Code and whether the equipment at issue was purchased within five

years of adoption. As will be discussed more fully below, the

answers to those questions bring into question whether any of the

charges against Respondent can be sustained.

27. The Food Code is a reference document for regulatory

agencies that ensure food safety in food service establishments,

retail food stores, and various other institutions and entities

involved in food delivery and sale. It is expressly not a

federal regulation, but is a collaborative effort of the Food and

Drug Administration (FDA), the Centers for Disease Control and

Prevention (CDC) of the United States Department of Health and

Human Services (HHS) and the Food Safety and Inspection Service

of the United States Department of Agriculture. See Joint

Introduction and Preface, 2005 Food Code.

28. As stated by the Department, the Food Code is updated

every four years, with supplements sometimes occurring in

between. Id.

29. While the Food Code may be updated by the federal

government on a regular basis, newer versions of the Food Code

are not included in Florida's regulatory framework unless

specifically adopted by the Department. Section 120.54(1)(i),

Florida Statutes, provides:

(i)1. A rule may incorporate material by

reference but only as the material exists on

the date the rule is adopted. For purposes

of the rule, changes in the material are not

effective unless the rule is amended to

incorporate the changes. A rule may not be

amended by reference only. Amendments must

set out the amended rule in full in the same

manner as required by the State Constitution

for laws. The Department of State may

prescribe by rule requirements for

incorporating materials by reference pursuant

to this paragraph.

30. The Department of State has adopted the following rule

to implement Section 120.54(1)(i):

(1) Any ordinance, standard, specification

or similar material may be incorporated by

reference in a rule adopted pursuant to

Section 120.54, F.S. and Rule 1S-1.002,

subject to the following conditions:

(a) The material shall be generally

available to affected persons.

(b) The material shall be published by a

government agency or a generally recognized

professional organization.

(2) The agency incorporating material by

reference shall file with the Department of

State a correct and complete copy of the

referenced material with an attached

certification page which shall state a

description of the referenced material and

specify the rule to which the referenced

material relates. . . .

* * *

(3) Any amendments to material incorporated

by reference must be promulgated under the

rulemaking provisions of Section 120.54,

F.S., in order for the amended portions to be

valid.

Fla. Admin. Code R. 1S-1.005.

31. The most recent amendment to Rule 61C-4.010, effective

February 27, 2005, does not adopt the 2005 version of the Food

Code. Instead, it deletes certain exemptions contained in the

2001 Food Code. Indeed, an examination of the rule amendments

as far back as 1996 indicates that the version of the Food Code

is never referenced, and no amendment of Rule 61C-4.010 since

1996 has adopted a later edition of the Food Code as released by

the federal government. 1/

32. Moreover, while the 1996 amendment to Rule 61C-4.010

purports to adopt the Food Code and incorporate it by reference,

the Notice of Proposed Rule does not indicate where a copy of

the Food Code may be obtained.

33. This history of Rule 61C-4.010 is relevant to this case

because Respondent may only be penalized for violating Food Code

provisions that are actually adopted pursuant to the procedures

outlined in Section 120.54, Florida Statutes. The Department's

Proposed Recommended Order implies that the 2005 version, or

even the 2006 Supplement, is operable. However, inasmuch as the

Department has never adopted either version, it cannot rely on

them to impose penalties on Respondent.

34. All of the violations in the Administrative Complaint

reference violations of the Food Code. Because the Department

has not specified what version of the Code is being used in this

prosecution, the charges against Respondent cannot be sustained.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing all charges against

Respondent.

DONE AND ENTERED this 21st day of December, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 21st day of December, 2007.

ENDNOTE

1/ It may be that the Department intended to adopt more current

versions of the Food Code. On at least three occasions, the

summary accompanying proposed rules indicated that adoption of the

appropriate version of the Food Code was being accomplished

"concurrently" or by separate notice. See , for example, 31 Fla.

Admin. Weekly 21 (Jan. 7, 2005)(amends Rule 61C-4.010(1)(h) and

(i); Purpose and Effect states that it is "concurrent with the

proposed adoption of part of the 2001 . . . FDA Food Code into the

sanitation and safety rules in Title 61C, Florida Administrative

Code, the purpose of this proposed rule modification is to

eliminate previous rule exemptions to the FDA Food Code.")

Similar language is used in reference to the deletion of

exemptions relative to the 1999 Food Code. See 26 Fla. Law Weekly

4404 (September 22, 2000). The summary to the Notice of Proposed

Rule in 23 Fla. Law Weekly 6334 indicates "the 1997 Food Code is

being adopted simultaneously in a separate rule promulgation."

However, no such separate notice of rulemaking could be found.

See also 24 Fla. Law Weekly 2507, which indicates that the

Department had adopted the 1997 Food Code on January 1, 1998.

Regardless, at no time has the Department adopted either the 2005

Food Code or any supplement to it.

COPIES FURNISHED:

Jessica Leigh, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ronald N. Horcher

Bono's Barbecue Sports Bar

1001 A1A Beach Boulevard

St. Augustine Beach, Florida 32203

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

William 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.