08-002658 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Szechuan Panda Status: Closed Recommended Order on Wednesday, November 19, 2008.

Summary: A discussion of the Food Code as adopted by reference. Only allegations both adequately pled and proven can be held against Respondent. Recommend that the license be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-2658

)

SZECHUAN PANDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on August 5, 2008, in Gainesville, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Yu Zeng Kang, pro se

Szechuan Panda

3830 Southwest 13th Street

Gainesville, Florida 32608

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint dated April 25, 2008, and, if so, what

disciplinary action should be taken against Respondent.

PRELIMINARY STATEMENT

On April 25, 2008, Petitioner filed an Administrative

Complaint, DBPR No. 2008-024115, against Respondent, alleging

violations of Chapter 509, Florida Statutes, and the rules

promulgated thereunder. The charges are stated with specificity

in the Conclusions of Law.

Respondent timely requested a disputed-fact hearing, and

the cause was referred to the Division of Administrative

Hearings on or about June 4, 2008.

Respondent's principal, Yu Zeng Kang, appeared at the final

hearing and requested that Nan Su, whom he had brought with him,

be utilized as interpreter. Mr. Kang and Mr. Su were each

examined in accord with Section 90.606, Florida Statutes. The

undersigned having been satisfied by their answers under oath

that translation was necessary because Mr. Kang could not

understand or express himself in the English language, and the

undersigned being further satisfied that Mr. Su was qualified

and competent by education, training, and experience to provide

such a translation, but was not biased for or against Mr. Kang,

and Petitioner having stipulated to the qualifications of Mr. Su

and to the process of translation, Mr. Su was sworn to make an

accurate translation.

Upon Petitioner’s request, official recognition was taken

of Section 509.032(6), Florida Statutes (2007), and of Florida

Administrative Code Rules 61C-1.004(6) and 61C-1.004(9)(d), as

presented. However, in light of the recent case of Dept. of

Business and Professional Regulation, Division of Hotels and

Restaurants v. Bono’s Barbecue Sports Bar , DOAH Case No. 07-4197

(RO: December 21, 2007), and Petitioner’s representation that

several rules had recently been amended to deal with notice

issues raised in that case, Petitioner was required to provide a

"hard copy" of the Food Code it deemed applicable to this case

within 10 days of the hearing. Petitioner timely complied by

filing a copy of the Food Code, 2001, Chapters 1-7, Annex 3 and

Annex 5, Summary of Changes, Errata Sheet, and Supplement , and

notice of websites where references might be found. Respondent

raised no objection to this process or to the final document

filed.

At hearing, Daniel Fulton, Senior Sanitation and Safety

Specialist, testified on behalf of Petitioner, and Petitioner

had 10 exhibits admitted in evidence. Petitioner's Exhibits 7-

10 (certified Orders) were conditionally admitted, for use only

in the event one or more charges in the Administrative Complaint

were proven on their own merit, and then only for purposes of

mitigation or aggravation of penalty. Respondent presented the

oral testimony of Yu Zeng Kang and had no exhibits admitted in

evidence.

A Transcript was filed on August 21, 2008.

Petitioner timely-filed, on September 2, and Respondent

timely-filed on August 22, 2008, Proposed Recommended Orders,

each of which has been considered in preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was licensed

as a public food service establishment in the State of Florida

by the Petitioner Department of Business and Professional

Regulation, Division of Hotels and Restaurants.

2. Respondent's business address is "Szechuan Panda,"

3830 Southwest 13th Street, Gainesville, Florida 32608.

3. Critical violations are violations that, if not

corrected, can have a direct impact on cross-contamination and

food-borne illness. This, in turn, causes an immediate threat

to public health. Non-critical violations are violations that,

if not corrected, can have an impact on the creation of critical

violations.

4. On December 19, 2007, Inspector Daniel Fulton performed

a Complaint Food Service Inspection at Szechuan Panda. During

that inspection, Inspector Fulton prepared and signed an

inspection report setting forth violations he encountered during

the inspection. From the time it was prepared until the date of

the hearing, the inspection report has not been altered.

5. On December 19, 2007, Mr. Fulton observed live roaches

in Szechuan Panda in both the food preparation and food service

areas. Inspector Fulton cited this as a critical violation

because live roaches carry many diseases. Those diseases can be

spread when the roaches crawl over clean or unclean food

preparation equipment in their search for food and accordingly

contaminate food preparation surfaces.

6. On December 19, 2007, food was being stored at Szechuan

Panda directly on the floor. When the terminology "directly on

the floor" is used, it includes any food that could be

contaminated by ordinary mopping. That is, food stored in a

container which is not impervious to water, such as a cardboard

container, or a plastic container which does not have a top and

the sides of which are so low that mopping might contaminate its

contents.

7. On December 19, 2007, improper utensils were being used

to scoop out food from food containers. According to

Mr. Fulton, this is a critical violation because without the

usage of a proper utensil with a handle, cross-contamination can

occur when the food product touches an employee’s hand.

8. On December 19, 2007, the carbon dioxide/helium tanks

in Szechuan Panda were not adequately secured. According to

Mr. Fulton, this is a violation because if the tanks become

unsecured all of the pressure inside can cause the tanks to

shoot off uncontrollably in an elliptical or variable pattern so

as to damage anyone or anything with which they come in contact.

9. On December 19, 2007, grease was built-up on non-food

contact surfaces. Mr. Fulton cited this as a violation because

such debris is enticing for consumption by any present rodents

and/or roaches. Rodents and roaches carry diseases that can

lead to cross contamination.

10. On March 5, 2008, Mr. Fulton prepared a Complaint

Inspection Report at Szechuan Panda in which some of the

previously noted violations had not been corrected. From the

time it was prepared until the date of hearing the report was

not altered.

11. On March 5, 2008, Mr. Fulton again observed live

roaches in Szechuan Panda, in both the food preparation and food

service areas. He cited this as a critical violation for the

reasons previously stated.

12. On March 5, 2008, dead roaches were observed

throughout the business. Mr. Fulton cited this as a critical

violation because live roaches will eat the carcasses of dead

roaches, causing further cross-contamination, and because the

presence of dead roaches also shows a general lack of

cleanliness and due care.

13. On March 5, 2008, cold foods were held at a

temperature greater than 41 degrees Fahrenheit. According to

Mr. Fulton, this is a critical violation because bacteria grows

quicker, the closer food is held to 98 degrees Fahrenheit. Also

on March 5, 2008, hot foods were held at a temperature less than

135 degrees Fahrenheit. Mr. Fulton classified this as a

critical violation because any bacteria present on the food will

grow, once the temperature drops below 135 degrees Fahrenheit.

14. On March 5, 2008, foods in both the dining area and

food storage areas at Szechuan Panda were not properly covered.

This was classified as a critical violation because cross-

contamination can occur by way of any bacteria present being

easily transferable to the exposed food.

15. On March 5, 2008, food also was being stored directly

on the floor as previously described.

16. On March 5, 2008, improper utensils were again being

used to scoop out food from food containers. Mr. Fulton

considered this a critical violation for the reasons previously

stated.

17. On March 5, 2008, food contact services were encrusted

with grease, and soil deposits were present in food containers.

Mr. Fulton listed this as a critical violation because an

unidentified slime growing within a food container poses a

health risk that can possibly cross-contaminate other foods.

18. On March 5, 2008, in-use utensils for non-potentially

hazardous foods were not being stored in a clean, protective

place. Mr. Fulton considered this a violation because any

harmful debris present on the unit being used for storage can

become stuck on the utensil.

19. On March 5, 2008, the carbon dioxide helium tanks

still were not adequately secured. This was listed as a

violation for the reasons previously stated.

20. On March 5, 2008, grease was built up on non-food

contact surfaces. This was listed as a violation for the

reasons previously stated.

21. On March 5, 2008, a black substance was present on the

wall around the dish-washing area. This was listed as a

violation because the substance observed appeared mold-like,

thus showing a lack of cleanliness.

22. On March 6, 2008, Inspector Fulton prepared a call-

back inspection report at Szechuan Panda noting that some of the

violations remained uncorrected. From the time it was prepared

until the date of the hearing, the call-back report has not been

altered.

23. On March 6, 2008, cold foods were held at a

temperature greater than 41 degrees Fahrenheit. This was noted

as a critical violation for the reasons previously stated.

24. On March 6, 2008, hot foods were held at a temperature

less than 135 degrees Fahrenheit. This was noted as a critical

violation for the reasons previously stated.

25. On March 6, 2008, foods in both the dining area and

food storage area of Szechuan Panda were not properly covered,

and this was listed as a critical violation for the reasons

previously stated.

26. On March 6, 2008, a black substance was present on the

wall around the dish-washing area. This was listed as a

violation for the reasons previously stated.

27. On March 24, 2008, Mr. Fulton prepared a complaint

inspection report at Szechuan Panda in which some of the

violations still were not corrected. From the time it was

prepared until the date of the hearing, the report has not been

altered.

28. On March 24, 2008, dead roaches were observed

throughout the business. This was listed as a critical

violation for the reasons previously stated. Although some dead

roaches may be evidence of attempts to exterminate all of a

roach infestation as testified-to by Respondent, the presence of

dead roaches also shows a general lack of cleanliness and due

care.

29. On March 24, 2008, cold foods were held at a

temperature greater than 41 degrees Fahrenheit. This was listed

as a critical violation for the reasons previously stated.

30. On March 24, 2008, hot foods were held at a

temperature less than 135 degrees Fahrenheit. This was listed

as a critical violation for the reasons previously stated.

31. On March 24, 2008, foods in both the dining area and

food storage area of Szechuan Panda were not properly covered.

This was listed as a critical violation for the reasons

previously stated.

32. On March 24, 2008, food was still being stored

directly on the floor.

33. On March 24, 2008, improper utensils were being used

to scoop out food from food containers, This was listed as a

critical violation for the reasons previously stated.

34. On March 24, 2008, food contact surfaces were

encrusted with grease, and soil deposits were present in food

containers. This was listed as a critical violation for the

reasons previously stated.

35. On March 24, 2008, in-use utensils for non-potentially

hazardous foods were not being stored in a clean, protective

place. This was listed as a violation for the reasons

previously stated.

36. On March 30, 2008, Mr. Fulton prepared a call-back

inspection report at Szechuan Panda in which some of the

previous violations were not corrected. From the time it was

prepared until the date of the hearing the call-back report has

not been altered.

37. On March 30, 2008, cold foods were held at a

temperature greater than 41 degrees Fahrenheit. This was listed

as a critical violation for the reasons previously stated.

38. On March 30, 2008, hot foods were held at a

temperature less than 135 degrees Fahrenheit. This was listed

as a critical violation for the reasons previously stated.

39. On March 30, 2008, foods in both the dining area and

food storage areas were not properly covered. This was listed

as a critical violation for the reasons previously stated.

40. On March 30, 2008, food contact surfaces were

encrusted with grease, and soil deposits were present in food

containers. This was listed as a critical violation for the

reasons previously stated.

41. As to most violations described by Mr. Fulton,

Respondent Kang only protested that Chinese cooking was not

conducive to meeting the regulations. He also apparently was

not present when each of the foregoing inspections was made, so

his testimony as to why certain foods were above or below the

permissible temperatures; were stored on the floor; or otherwise

met standards is not persuasive.

42. Mr. Kang's testimony with regard to his quest for

reputable and effective exterminators and his contracts with

successive exterminators is credible. The area being largely

clear of roaches after he hired a new exterminator is also

noted. However, even giving Respondent all due credit for

correcting certain inspection violations by call-back or

subsequent inspection dates, his testimony as a whole does not

evoke confidence in the cleanliness of the licensed

establishment. Particularly, Mr. Kang’s defenses that "live

roaches came with purchased goods or were quickly killed" by the

pest control company, and that dead roaches are swept out at the

end of each day but there are more roaches when the restaurant

opens the following morning, do not help his situation much.

Most troubling is that Mr. Kang described a procedure whereby,

although the restaurant is cleaned at the conclusion of each

serving day, dead roaches are not swept out the following

morning but are allowed to remain where they lie until the

restaurant is cleaned entirely at the end of the second work

day.

43. Likewise, Mr. Kang's testimony also indicates his lack

of understanding of the Department's requirements for

maintaining "safe" food temperatures. Mr. Fulton explained that

most buffets use time and temperature for public health control,

but he further testified that, per the regulations he goes by, a

restaurateur may keep foods "out of temperature" only up to four

hours, and to legitimately do so, pursuant to the Food Code , the

restaurateur must write a statement explaining the precautions

he has taken, and further state therein that if his food “out of

temperature” is not sold within a four-hour period, it will be

discarded. Then, with the foregoing statement displayed, that

restaurateur must maintain a record with his foregoing posted

declaration, on which he keeps track of each time food is taken

"off temperature," and each time food is put "on temperature."

Respondent posts no such declaration or record.

44. Mr. Kang’s assertion that some of his prior inspection

troubles were caused by disgruntled former employees has been

considered, as has been his living in another city far from the

location of his restaurant, so as to care for his disabled wife.

However, his wife’s acute care situation occurred four or five

years ago and none of his employee problems seem to be current.

In any case, none of these concerns excuse a licensee from

meeting the applicable statutory and rule requirements.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2008).

46. Petitioner Agency has jurisdiction over the operation

of public lodging establishments and public food services

establishments pursuant to Section 20.165, Florida Statutes

(2007). It is the Agency charged with licensure and inspection

of public food establishments in the State of Florida.

47. Section 509.261(1), Florida Statutes (2007), provides

that any public lodging establishment or public food

establishment that is operated or operating in violation of

Chapter 509, or the rules promulgated thereunder, is subject to

fines not to exceed $1,000.00 dollars per offense; mandatory

attendance at an educational program sponsored by the

Hospitality Education Program; and the suspension, revocation or

refusal of a license.

48. Petitioner Agency has the burden of proving by clear

and convincing evidence the allegations against Respondent.

Department of Banking and Finance Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996). In addition, the disciplinary action may only be

based on the offenses specifically alleged in the Administrative

Complaint. See Sternberg v. Department of Professional

Regulation, Board of Medical Examiners , 465 So. 2d 1324, 1325

(Fla. 1st DCA 1985); Kenny v. Department of State , 501 So. 2d

129, 133 (Fla. 5th DCA 1987); and Hunter v. Department of

Professional Regulation , 458 So. 2d 842, 844 (Fla. 2nd DCA

1984).

49. Petitioner elected not to proceed on one violation

charged in the Administrative Complaint, so that charge has not

been considered and is not discussed herein.

50. Despite an unrelated amendment effective February 24,

2008, at all times material (that is, on the date of each

inspection/violation), the date of the charges (the date of the

Administrative Complaint), and on the date of hearing, Florida

Administrative Code Rule 61C-1.004, provided, in pertinent part:

61C-1.004 General Sanitation and Safety

Requirements . The following general

requirements and standards shall be met by

all public lodging and public food service

establishments:

* * *

(6) All building structural components,

attachments and fixtures shall be kept in

good repair, clean and free of obstructions.

* * *

(9) Fire safety equipment.

(d) Carbon dioxide and helium tanks shall

be adequately secured so as to preclude any

danger to supply.

51. Respondent was charged in the Administrative Complaint

with the black wall slime or debris situation for December 19,

2007, and March 5, 2008. The clear and convincing evidence only

shows that the wall disfigurement was present in the dishwashing

area on March 5, 2008, and on March 6, 2008. Accordingly,

Respondent can only be found in violation of 61C-1.004(6), on

the single date which was both alleged and proven: March 5,

2008, and it is found and concluded that Respondent was in

violation of Rule 61C-1.004(6) on that single date.

52. Petitioner also proved by clear and convincing

evidence that Respondent violated Rule 61C-1.004(9)(d), because

of the state of the carbon dioxide/helium tanks on December 19,

2007, and March 5, 2008.

53. With regard to the remaining charges, brought under

Rule 61C-1.001, and “the Food Code ”, care has been taken to

determine whether or not the Agency is, via the present case,

embroiled in the same conundrum as it faced in Bono’s Barbeque

Sports Bar, supra. 1/

54. At all times material to the present case, Rule 61C-

1.001, which is charged in the instant Administrative Complaint,

provided, in pertinent part, as follows:

61C-1.001 Definitions .

Except when otherwise defined in this rule,

the definitions provided in paragraph 1-

201.10(B) Food Code, Recommendations of the

United States Public Health Service/Food and

Drug Administration , the 2001 Food Code

Errata Sheet (August 23, 2002), and

Supplement to the 2001 FDA Food Code (August

29, 2003), herein adopted by reference,

shall apply to Chapters 61C-1, 61C-3 and

61C-4, F.A.C. In addition, the following

definitions apply to Chapters 61C, 61C-3,

and 61C-4, F.A.C.:

* * *

(14) Food Code – Food Code, 2001

Recommendations of the United States Public

Health Service/Food and Drug Administration

including Annex 3: Public Health

Reasons/Administrative Guidelines and 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). (Italics in the

original.) 2/

55. The pertinent rules in the version of the Food Code

referenced in, and applicable to, this Administrative Complaint,

together with any applicable Annexes, Supplement, and Errata

Sheet changes, are stated in Conclusion of Law 58, infra. ,

except that any capitalization, spacing, or underlining

patterns, peculiar to those documents, which make no substantive

change or material difference, have not been used, and the

symbols used in the original have been spelled-out.

56. The following rules are the only Food Code rules

Petitioner Agency’s Proposed Recommended Order has asserted were

proven.

57. The dates alleged within the Administrative Complaint

are also provided within Conclusion of Law 58, for each portion

of the Food Code cited. 3/

58. The Food Code rules as described in Conclusions of Law

55-57 are:

Rule 6-501.111, Food Code , charged in the

Administrative Complaint for December 19,

2007, and March 5, 2008, states in pertinent

part:

Controlling pests. The presence of insects,

rodents, and other pests shall be controlled

to minimize their presence on the premises

by: (A) Routinely inspecting incoming

shipments of food and supplies; (B)

Routinely inspecting the premises for

evidence of pests; (C) Using methods, if

pests are found, such as trapping devices or

other means of pest control as specified

under Sections 7-202.12, 7-206.12, and 7-

206.13; and (D) Eliminating harborage

conditions.

Rule 6-501.112, Food Code , charged in the

Administrative Complaint for December 19,

2007, March 5, 2008, and March 24, 2008,

states in pertinent part:

Removing dead or trapped birds, insects,

rodents, and other pests. Dead or trapped

birds, insects, rodents, and other pests

shall be removed from control devices and

the premises at a frequency that prevents

their accumulation, decomposition, or the

attraction of pests.

Rule 3-501.16(A), and (A)(1) Food Code ,

charged in the Administrative Complaint as

"repeat violations," states in pertinent

part, as amended by the August 29, 2003,

Supplement:

(A) Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified in Section 3-

501.19, and except as specified in Paragraph

(B) of this section, potentially hazardous

food shall be maintained: (1) At 57 degrees

Centigrade (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 54 degrees

Centigrade (130 degrees Fahrenheit) or

above; or (2) At a temperature specified in

the following: (a) 5 degrees Centigrade (41

degrees Fahrenheit) or less; or (b) 7

degrees Centigrade (45 degrees Fahrenheit)

or between 5 degrees Centigrade (41 degrees

Fahrenheit) 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 the

Code, the equipment is upgraded or replaced

to maintain food at a temperature of 5

degrees Centigrade (41 degrees Fahrenheit)

or less.

Rule 3-302.11(A)(4), Food Code , charged in

the Administrative Complaint as a repeat

violation, states in pertinent part:

(A) Food shall be protected from cross

contamination by: (4) Except as specified in

Paragraph (B) of this section, storing the

food in packages, covered containers, or

wrappings;

Rule 3-305.11, Food Code , charged in the

Administrative Complaint for December 19,

2007, March 5, 2008, and March 24, 2008,

states in pertinent part:

Food Storage. (A) Except as specified in

Paragraphs (B) and (C) of this section, food

shall be protected from contamination by

storing the food: (1) In a clean, dry

location; (2) Where it is not exposed to

splash, dust, or other contamination; and

(3) at least 15 cm (6 inches) above the

floor. (B) Food in packages and working

containers may be stored less than 6 inches

above the floor on case lot handling

equipment as specified under Section 4-

204.122. (C) Pressurized beverage

containers, cased food in waterproof

containers such as bottles or cans, and milk

containers in plastic crates may be stored

on a floor that is clean and not exposed to

floor moisture.

Rule 3-301.11(B), Food Code , charged in the

Administrative Compliant for December 19,

2007, March 5, 2008, and March 24, 2008,

states in pertinent part:

(B) Except when washing fruits and

vegetables as specified under Section 3-

302.15 or when as specified in paragraph C

of this section, food employees may not

contact exposed, ready-to-eat food with

their bare hands and shall use suitable

utensils such as deli tissue, spatulas,

tongs, single-use gloves, or dispensing

equipment.

Rule 4-601.11(A), Food Code , charged in the

Administrative Complaint for December 19,

2007, and March 5, 2008, states in pertinent

part:

Equipment food-contact surfaces and utensils

shall be clean to sight and touch.

Rule 3-304.12(E), Food Code , charged in the

Administrative Complaint for December 19,

2007, March 5, 2008, and March 24, 2008,

states in pertinent part:

In-use utensils, between-use storage.

During pauses in food preparation or

dispensing, food preparation and dispensing

utensils shall be stored: (E) In a clean,

protected location if the utensils, such as

ice scoops, are used only with a food that

is not potentially hazardous;

Rule 4-601.11(C), Food Code , charged in the

Administrative Complaint for December 19,

2007, and March 5, 2008, states in pertinent

part:

(C) Nonfood-contact surfaces of equipment

shall be kept free of an accumulation of

dust, dirt, food residue, and other debris.

59. Pleading in the Administrative Complaint of a

violation of Food Code Rules 3-501.16(A) and 3-501.16(A)(1) was

faulty because it referred only to “repeat violations.” Proof

of a violation of Food Code Rules 3-501.16(A) and 3-

501.16(A)(1), also was faulty, mostly due to the hot

temperatures permitted for hot foods having been changed by the

2003 Food Code Supplement, but also due to the absence of any

specific allegation in the Administrative Complaint concerning a

rule related to cold temperature requirements.

60. Otherwise, the foregoing Food Code rules, as quoted

above and as charged in the Administrative Complaint, were

proven clearly and convincingly as to violations of 3-305.11

(food on the floor, etc.) for December 19, 2007, March 5, 2008,

and March 24, 2008; as to violation 3-301.11(B) (improper use of

bowl and touching with hands) on December 19, 2007, March 5,

2008, and March 24, 2008; as to violation 3-304.12(E) (in-use

utensil for non-potentially hazardous food not stored in clean,

protected location) on March 5, 2008, and March 24, 2008; as to

violation 4-601.11(A) (build-up of grease on food contact

surfaces) on March 5, 2008; as to violation 4-601.11(C) (build-

up of grease on non-food contact surfaces) for December 19,

2007, and March 5, 2008; as to violation 6-501.112 (dead pests-

roaches) on March 5, 2008, and March 24, 2008; as to violation

6-501.111 (live pests-roach activity) on December 19, 2007, and

March 5, 2008. Also to reiterate, one violation of 61C-1.004(6)

was clearly and convincingly proven for March 5, 2008 ( see

Conclusions of Law 50-51), and two violations of 61C-1.004(9)(d)

were clearly and convincingly proven for December 19, 2007, and

March 5, 2008 ( see Conclusions of Law 50 and 52.) Furthermore,

all the foregoing violations alleged as critical violations and

concluded to be proven by clear and convincing evidence were

also proven by clear and convincing evidence to be critical

violations.

61. Petitioner did not prove some violations which were

alleged in the Administrative Complaint and proved some

violations which were not alleged in the Administrative

Complaint. None of these violations may be held against

Respondent. 4/

62. On the other hand, the prior Administrative Orders

have been reviewed, solely for determination of penalty, and

their having been considered, it is recommended that the penalty

of license revocation requested by Petitioner Agency be imposed.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that a final order be entered revoking

Respondent’s Hotels and Restaurant license, effective the first

Monday, after 30 days from the date the final order is filed

with the Agency Clerk of the Department of Business and

Professional Regulation, Division of Hotels and Restaurants.

DONE AND ENTERED this 19th day of November, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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 19th day of November, 2008.

ENDNOTES

1/ Bono’s result, that the charges therein were not

sustainable, devolved upon the failure of Florida Administrative

Code Rule 61C-4.010, to state which version of the Food Code was

incorporated by reference therein, and the failure of the Notice

of Proposed Rule Amendment applicable to the February 27, 2005,

version of Rule 61C-4.010, to specify where one could locate the

version of the Food Code being incorporated in that proposed

rule. In reaching the conclusion that the charges against

Bono’s were unsustainable because one could not determine which

Food Code version had been incorporated by reference into the

rule or where the correct adopted Food Code version could be

found by the public, the Bono’s ALJ also had to assess the

situation in terms of Section 120.54(1)(i)1., Florida Statutes,

and Florida Administrative Code Rule 1S-1.005, for all times

material to that particular case. Florida Administrative Code

Rule 61C-4.010 is not involved in the present case.

2/ Florida Administrative Code Rule 61C-1.001, as quoted,

existed from February 27, 2005, until August 12, 2008. In other

words, it was in effect on each of the restaurant inspections

herein of December 19, 2007, March 5, 2008, March 6, 2008, March

24, 2008, and March 30, 2008. It read the same on each of those

inspection dates and until July 1, 2008, when 2008-104 and 2008-

149, Laws of Florida , amended Section 120.54(1)(i), Florida

Statutes, concerning rule amendment procedures, and it read the

same on the August 5, 2008, date of hearing in the instant case.

Incidentally, despite the July 1, 2008, statutory modifications,

Florida Administrative Code Rule 1S-1.005, has not been amended

since Bono’s .

Unlike the situation in Bono’s , The Notice of Proposed Rule

Amendment for the February 27, 2005, through August 12, 2008,

version of Florida Administrative Code Rule 61C-1.001, which is

the rule specifying which Food Code is to be used in the instant

case, was published in 31 Florida Law Weekly 1 (January 7,

2005), and that Notice of Proposed Rule Amendment gave notice of

where a copy of the Food Code referenced in the rule could be

found. Therefore, the present case does not present in the same

form as did Bono's .

It is also noted that, although the title on the cover of the

material provided in hard copy by Petitioner herein (“the green

book”) does not reflect the dates of the Errata Sheet or

Supplement to the Food Code , as recited in Rule 61C-1.001, (see

Conclusion of Law 54), these materials are, in fact, included

inside the cover of the hard copy provided by Petitioner.

3/ The Administrative Complaint herein attempts to incorporate

by reference every observation made by Mr. Fulton and noted on

the attached inspection reports, which may bear different dates,

different/additional allegations, or other rule numbers, above

and beyond those listed by date in the body of the

Administrative Complaint itself. Likewise, for three charges,

the Administrative Complaint simply states “repeated violation”,

giving no dates at all, unless one assumes "repeated violations"

means every date cited anywhere in the Administrative Complaint.

These two methods of pleading do not clearly apprise any reader

of “incorporated” charges, against which Respondent must defend

on specific dates. Accordingly, these “incorporated” charges

are not considered properly plead. ( See Conclusions of Law 59

and 61.)

4/ See Findings of Fact 50-52, Conclusions of Law 57-60, and

n.3.

COPIES FURNISHED:

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Yu Zeng Kang

Szechuan Panda

3830 Southwest 13th Street

Gainesville, Florida 32608

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

William L. Veach, Director

Department of Business and

Professional Regulation

Division of Hotels and Restaurants

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.