08-002662 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Green Garden Chinese Restaurant Status: Closed Recommended Order on Friday, December 12, 2008.

Summary: Petitioner proved several violations of the Food Code. Recommend administrative penalty and attendance at hospitality education program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 08-2662

)

GREEN GARDEN CHINESE ) )

RESTAURANT, )

)

Respondent. )

RECOMMENDED ORDER

A hearing was held pursuant to notice, on September 11,

2008, by Barbara J. Staros, assigned Administrative Law Judge of

the Division of Administrative Hearings, in Tavares, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1015

For Respondent: Gui Rong Lui, pro se

Green Garden Chinese Restaurant

1796 East Highway 50

Clermont, Florida 34711

STATEMENT OF THE ISSUE

Whether Respondent committed the violations set forth in the

Administrative Complaint and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants, filed an

Administrative Complaint alleging that Respondent had violated

the laws regulating the operation of public food establishments.

The Administrative Complaint charged Respondent with 12 counts

alleging violations of the provisions of Chapter 509, Florida

Statutes, or the applicable rules governing the operation of

public food establishments. At hearing, Petitioner withdrew

counts 9, 10, and 11 of the Administrative Complaint.

Consequently, the nine remaining charges were the subject of the

hearing.

Respondent disputed the allegations in the Administrative

Complaint and petitioned for a formal administrative hearing.

The case was referred to the Division of Administrative Hearings

on or about June 5, 2008. A formal hearing was set for

September 11, 2008. The hearing took place as scheduled.

At hearing, Petitioner presented testimony of two witnesses,

Henry Cristwell and Alex Chiu. Petitioner's Exhibits numbered

one through three were admitted into evidence. Official

recognition was requested of Section 509.032(6), Florida

Statutes, Florida Administrative Code Rule 61C-1.004(6), and

pertinent portions of the United States Food and Drug

Respondent offered the testimony of Gui Liu, owner of Respondent.

Respondent did not offer any exhibits into evidence.

A Transcript consisting of one volume was filed on

October 31, 2008. Petitioner timely filed a Proposed Recommended

Order, and Respondent timely filed a post-hearing submission,

which have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner, the Department of Business and Professional

Regulation, Division of Hotels and Restaurants (Division), is a

state agency charged with the duty and responsibility of

regulating the operation of hotel and restaurant establishments

pursuant to Section 20.165 and Chapter 509, Florida Statutes.

2. Respondent is an eating establishment located in

Clermont, Florida. At all times material to the allegations of

the Administrative Complaint, Respondent held license number

4502023 issued by the Division.

3. Critical violations are those violations that, if not

corrected, are most likely to contribute to food-bourne illness,

cross-contamination, and other environmental hazards.

4. Non-critical violations are those that are not directly

related to food-bourne illness, but if they remain in non-

compliance, are likely to lead to the development of a critical

violation.

5. Henry Cristwell is a sanitation and safety specialist

employed by the Division. Mr. Cristwell has a bachelor's degree

in biology with minors in chemistry, mathematics, and physics.

He has been employed by the Division for approximately eight

years. He also has received training in laws and rules regarding

public food service and lodging. Mr. Cristwell performs

approximately 960 inspections annually.

6. On September 4, 2007, Mr. Cristwell conducted an

inspection of Respondent's premises and issued an inspection

report while on the premises. Gui Rong Lui, owner of the

restaurant, signed for the inspection report.

7. During the September 4, 2007 inspection, Mr. Cristwell

observed 14 violations and issued a warning that the violations

must be corrected by November 4, 2007.

8. Alex Chiu is a senior Sanitation and Safety Specialist

employed by the Division. Prior to working with the Division,

Mr. Chiu was a food manager and owned his own business in Palm

Beach County, Florida. He is a certified food manager and has

received training in the Food and Drug Administration Food Safety

Program. He also receives continuing education training on a

monthly basis. Mr. Chiu performs approximately 900 inspections

annually.

9. Mr. Chiu conducted a call-back inspection on December 5,

2007, during which he observed that several of the violations

noted by Mr. Cristwell on September 4, 2007, had not been

corrected. During the re-inspection, Mr. Chiu prepared a call-

back inspection report setting forth his findings from the

inspection, and provided it to an employee of the restaurant.

10. The call-back inspection report contained the following

regarding a violation he considered not corrected, " A bulk

container of flour was not labeled." He considers this a

critical violation because restaurants may have different kinds

of cleaning products and food products. There is a danger that

someone would use a product without knowing what it is, and

mistakenly use the wrong product for the task he or she is

performing.

11. Mr. Chiu also observed that there were no hand washing

signs provided at the hand sinks used by food employees. This is

a critical violation because hand washing is the most important

way to prevent food-bourne illness.

12. During the call-back inspection, Mr. Chiu also observed

knives being stored in the crevice between equipment at the back

kitchen prep table of the restaurant. This is not a critical

violation, but the space between equipment may contain a lot of

bacteria as a result of food reside. Thus, when a clean knife or

other utensil is placed there, cross-contamination may occur.

13. During the call-back inspection, Mr. Chiu observed a

ladle stored in standing water at room temperature. This is not

a critical violation. However, when utensils are used in food,

they often have food residue on them that may enable bacteria to

develop or multiply rapidly if they are not kept in water at

temperatures below 41 or above 135 degrees. Temperatures between

41 and 135 degrees are referred to as the "danger zone."

14. During the call-back inspection, Mr. Chiu observed a

cutting board that was "grooved, pitted, and no longer

cleanable." While not a critical violation, the grooved and

pitted areas of a cutting board trap bacteria and food residue

which cannot be cleaned properly.

15. During the call-back inspection, Mr. Chiu observed that

the light in the walk-in cooler was missing the proper shield or

cover. While not a critical violation, there is a danger that if

an unshielded bulb were to break, fragments of the broken bulb

could fall into food items stored in the walk-in cooler.

16. During the call-back inspection, Mr. Chiu observed that

the hood and hood filters were heavily soiled with accumulated

grease. While not a critical violation, grease build-up on a

hood above cooking equipment could fall into open food items

below during the cooking process.

17. During the call-back inspection, Mr. Chiu observed that

the hood filters were in disrepair. While not a critical

violation, hood filters in disrepair are no longer able to trap

grease during cooking. This creates gaps or openings for the

grease to escape into the atmosphere.

18. During the call-back inspection, Mr. Chiu observed

aluminum foil and cardboard being used as liners on equipment.

While not a critical violation, aluminum foil and cardboard are

not approved equipment as they cannot be easily cleaned and do

not stay intact.

19. During the call-back inspection, Mr. Chiu observed that

there was no Heimlich Maneuver sign posted. While not a critical

violation, employees of a restaurant need to be able to know how

to perform the Heimlich Maneuver in the event there is a choking

victim in the restaurant.

20. The above described violations observed by Mr. Chiu

were initially observed by Mr. Cristwell at the September 4,

2007, inspection. Thus, these violations had not been corrected

at the time of the call-back inspection.

21. Gui Rong Liu owns the restaurant that is the Respondent

in this case. She maintains that Mr. Chiu did not spend enough

time at her restaurant during the call-back inspection to make

these determinations. She bases this assertion on reports from

her employees, who did not testify, that Mr. Chiu spent less than

20 minutes in her restaurant. Mr. Chiu maintains that he spent

about 30 minutes on the call-back inspection.

22. Regardless of whether Mr. Chiu spent 20 or 30 minutes

on the re-inspection, he is an experienced inspector who had the

information from the initial inspection and, therefore, was

specifically looking to see if the violations had been corrected.

His testimony regarding his observations of items still in non-

compliance is deemed credible and accepted.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569, 120.57(1), and 120.60(5), Fla. Stat.

24. The Division is the state agency charged with

regulating public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

25. Pursuant to Section 509.261(1), Florida Statutes, the

Division may impose penalties for violations of Chapter 509,

Florida Statutes, including an administrative fine of no more

than $1,000 for each separate offense, attendance at personal

expense at an educational program sponsored by the Hospitality

Education Program, and the suspension or revocation of

Respondent's license.

26. Because the Division seeks the imposition of an

administrative penalty, which is a penal sanction, the Division

has the burden of proving by clear and convincing evidence the

specific allegations in the Administrative Complaint. See , e.g. ,

Department of Banking and Finance v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996).

27. Chapters 3, 4, and 6 of the United States Food and Drug

Administration’s Food Code (Food Code) have been incorporated by

reference into the rules governing public food establishments.

Fla. Admin. Code R. 61C-4.010.

28. Through the Administrative Complaint, Respondent is

alleged to have violated the following provisions of the Food

Code, which read in pertinent part:

3-302.12 Food Storage Containers Identified

With Common Name of Food. Working containers

holding food or food ingredients that are

removed from their original packages for use

in the food establishment, such as cooking

oils, flour, herbs, potato flakes, salt,

spices, and sugar shall be identified with

the common name of the food except that

containers holding food that can be readily

and unmistakably recognized such as dry pasta

need not be identified.

3-304.12 In-Use Utensils, Between-Use

Storage. During pauses in food preparation

or dispensing, food preparation and

dispensing utensils shall be stored:

(F) In a container of water if the water is

maintained at a temperature of at least 60

[degrees] C (140 [degrees] F) and the

container is cleaned at a [specified

frequency].

4-101.111 Non-food contact surfaces. Non-

food contact surfaces of equipment that are

exposed to splash, spillage, or other food

soiling or that require frequent cleaning

shall be constructed of a corrosion-

resistant, nonabsorbent, and smooth material.

4-501.11 Good Repair and Proper Adjustment.

(A) Equipment shall be maintained in a state

of repair and condition that meets the

requirements specified under 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 manufacturer’s

specifications.

4-501.12 Cutting Surfaces. Surfaces such as

cutting blocks and boards that are subject to

scratching and scoring shall be resurfaced if

they can no longer be effectively cleaned and

sanitized, or discarded if they are not

capable of being resurfaced.

4-903.11 Equipment, Utensils, Linens, and

Single-Service and Single-Use Articles.

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

this section, cleaned equipment and utensils,

laundered liners, and single-service and

single-use articles shall be stored: (1) In a

clean, dry location; (2) Where they are not

exposed to splash, dust, or other

contamination; and (3) At least 6 inches

above the floor.

(B) Clean equipment and utensils shall be

stored as specified under paragraph (A) of

this section and shall be stored: (1) In a

self-draining position that allows air

drying; and (2) Covered or inverted.

6-202.11 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. . . .

6-301.14 Hand Washing Signage.

A sign or poster that notifies food employees

to wash their hands shall be posted at all

hand washing lavatories used by food

employees and shall be clearly visible to

food employees.

29. Through the Administrative Complaint, Respondent is

alleged to have violated Florida Administrative Code Rule 61C-

1.004(6), which reads as follows:

General Sanitation and Safety Requirements.

All building structural components,

attachments and fixtures shall be kept in

good repair, clean and free of obstructions.

30. Through the Administrative Complaint, Respondent is

alleged to have violated Section 509.213(1), Florida Statutes,

which requires every food service establishment to post, in a

conspicuous place accessible to employees, a sign which

illustrates and describes the Heimlich Maneuver procedure.

31. The Division met its burden of proof that Respondent

violated section 3-302.12, Food Code, by failing to properly

label a bulk container of flour.

32. The Division did not meet its burden of proof that

Respondent violated section 3-304.12(F), Food Code, by storing an

in-use ladle in water at an improper temperature, as no evidence

was presented that the temperature of the water was tested.

33. The Division met its burden of proof that Respondent

violated section 4-101.111, Food Code, by using aluminum foil and

cardboard as liners on equipment.

34. The Division met its burden of proof that Respondent

violated section 4-501.11(A) and (B), Food Code, by having hood

filters that were in disrepair.

35. The Division met its burden of proof that Respondent

violated section 4-501.12, Food Code, by having a cutting board

that was grooved and pitted.

36. The Division met its burden of proof that Respondent

violated section 4-903.11 by storing knives in crevices prone to

bacteria and other contaminants.

37. The Division met its burden of proof that Respondent

violated section 6-202.11, Food Code, by failing to place a

shield or cover over the light bulb in the walk-in cooler.

38. The Division met its burden of proof that Respondent

violated section 6-301.14, Food Code, by failing to post hand-

washing signs at the hand sinks used by food employees.

39. The Division met its burden of proof that Respondent

violated Florida Administrative Code Rule 61C-1.004(6), by having

hood and hood filters that were heavily soiled with accumulated

grease.

40. The Division met its burden of proof that Respondent

violated Section 509.213(1), Florida Statutes, by failing to post

a Heimlich Maneuver sign in the Restaurant.

41. In its Proposed Recommended Order, the Division

recommends the imposition of a $2,500.00 administrative penalty

and attendance at an educational program offered by the

Hospitality Education Program. The Division met its burden of

proof regarding two critical violations and nine non-critical

violations. Accordingly, an administrative penalty in the amount

of $2,500.00 is reasonable and appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Division enter a final order which confirms the

violations found, dismisses the violations not found, imposes an

administrative penalty in the amount of $2,500.00, to be paid

within 30 days of the issuance of the Agency's Final Order, and

requiring that Respondent attend an educational program offered

by the Hospitality Education Program.

DONE AND ENTERED this 12th day of December, 2008, in

Tallahassee, Leon County, Florida.

Barbara J. Staros

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 12th day of December, 2008.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388-1015

Gui Rong Liu

Green Garden Chinese Restaurant

1796 East Highway 50

Clermont, Florida 34711

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulations

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.