09-000618 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. China, No. 1
 Status: Closed
Recommended Order on Tuesday, June 30, 2009.


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Summary: Respondent failed to correct critical violations. Thus, the appropriate penalty is an administrative fine of $1,000.00 for each violation and completion of an education program.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF HOTELS AND )

21RESTAURANTS, )

23)

24Petitioner, )

26)

27vs. ) Case No. 09-0618

32)

33CHINA NO. 1, )

37)

38Respondent. )

40)

41RECOMMENDED ORDER

43Pursuant to notice, a hearing was held in this case on

54April 14, 2009, by video teleconference at sites in Tallahassee

64and Orlando, Florida, before Carolyn S. Holifield,

71Administrative Law Judge of the Division of Administrative

79Hearings.

80APPEARANCES

81For Petitioner: LeChea Parson, Esquire

86Charles Tunnicliff, Esquire

89Department of Business and

93Professional Regulation

951940 North Monroe Street, Suite 60

101Tallahassee, Florida 32399-2202

104For Respondent: Frank Liu, pro se

110China No. 1

1132595 South Hiawassee Road

117Orlando, Florida 34744

120STATEMENT OF THE ISSUES

124The issues are whether Respondent committed the acts

132alleged in the Administrative Complaint dated October 20, 2008,

141and, if so, what penalty should be imposed against Respondent's

151license.

152PRELIMINARY STATEMENT

154On or about October 20, 2008, Petitioner, the Department of

164Business and Professional Regulation, Division of Hotels and

172Restaurants ("Division"), filed an Administrative Complaint

180alleging that in July and September 2008, Respondent, China

189No. 1 ("Respondent"), violated standards governing public food

199service establishments. Specifically, the Administrative

204Complaint charged Respondent with violating Food Code Rules

2124-302.12, 3-302.11(A)(2), 4-601.11(C) and 6.202.14; Florida

218Administrative Code Rule 61C-1.004(2)(a) and (b); and Subsection

226509.292(1), Florida Statutes (2008). 1 Respondent disputed the

234allegations and timely requested an evidentiary hearing.

241The matter was referred to the Division of Administrative

250Hearings on February 4, 2009, for assignment of an

259Administrative Law Judge to conduct the hearing.

266At hearing, the Division presented the testimony of Norma

275Gordon, a sanitation and safety specialist with the Division.

284The Division's Exhibits 1 through 4 were admitted into evidence.

294Respondent presented the testimony of Frank Liu. Respondent

302offered no exhibits into evidence.

307Prior to the evidentiary part of the hearing, the Division

317advised Respondent and the undersigned that it was deleting

326Count 6 of the Administrative Complaint, which charged

334Respondent with violating Subsection 509.292(1), Florida

340Statutes, because that violation had been corrected. Also, at

349the request of the Division, the undersigned took official

358recognition of the above-referenced provisions, rules, and

365statutory provisions.

367The Transcript of the hearing was filed with the Division

377of Administrative Hearings on April 29, 2009. The Division

386timely filed its Proposed Recommended Order on May 11, 2009.

396Respondent did not file a proposed recommended order.

404FINDINGS OF FACT

4071. At all times material hereto, Respondent was a public

417food establishment, licensed and regulated by the Division.

425Respondent's license number is 5810388.

4302. Respondent's address is 2595 South Hiawassee Road,

438Orlando, Florida 32835.

4413. Norma Gordon is employed by the Division as a

451sanitation and safety specialist and has worked in that position

461for four years. Ms. Gordon's job responsibilities include

469inspecting public food establishments that are regulated by the

478Division. To effectively carry out job responsibilities,

485Ms. Gordon had been trained in the areas of Food and Drug

497standardization, as well as the laws and rules related to the

508Food Code. Moreover, Ms. Gordon has successfully completed

516certified manager training. As part of her job, Ms. Gordon

526participates in monthly continuing education. During her

533employment with the Division, Ms. Gordon conducts about 1,000

543inspections annually.

5454. On July 22, 2008, Ms. Gordon conducted a routine

555inspection of the premises of China No. 1. During the

565inspection, Ms. Gordon observed about 15 violations, eight of

574which were deemed to be critical violations.

5815. Ms. Gordon set forth her findings and listed all the

592violations on a Food Service Inspection Report on the day of the

604inspection. That same day, Ms. Gordon provided a copy of the

615report to Frank Liu, food manager for Respondent. The Food

625Service Inspection Report notified Mr. Liu that a call back

635inspection would be conducted on September 22, 2008, to

644determine if the violations had been corrected. Mr. Liu signed

654the Food Service Inspection Report on July 22, 2008,

663acknowledging that he received a copy of the Inspection Report.

6736. On September 23, 2008, Ms. Gordon conducted a call back

684inspection of China No. 1. During that call back inspection,

694Ms. Gordon observed several violations that were reported on the

704Food Service Inspection Report issued on July 22, 2008, but that

715had not yet been corrected.

7207. Ms. Gordon recorded the uncorrected violations that she

729observed and verified during the September 23, 2008, callback

738inspection on a Call Back Inspection Report form. That Call

748Back Inspection Report was completed on September 23, 2008, and

758signed by Mr. Liu.

7628. The uncorrected violations observed and verified on

770September 23, 2008, are set forth below in paragraphs 9

780through 13.

7829. The first uncorrected violation was that raw animal

791foods were not properly separated from each other in the holding

802unit. Ms. Gordon observed raw chicken stored above the raw beef

813and vegetables in the upright reach-in freezer. This was a

823critical violation because food must be protected from

831cross-contamination. For example, the raw chicken has

838salmonella, which requires that it be cooked at a certain

848temperature. Cross-contamination may occur when raw meat

855products are not separated from each other and/or are stored

865next to vegetables, because the meats and vegetables have

874different cooking temperatures.

87710. The second uncorrected violation was that Respondent

885did not have a thermometer available to measure the temperature

895of the food products. This is a critical violation because such

906a device is necessary to ensure that foods are prepared and

917maintained at appropriate temperatures.

92111. The third uncorrected violation was that the bathroom

930door in the establishment was being left open at times other

941than during the cleaning or maintenance of the facility. This

951is deemed to be a critical violation.

95812. The fourth uncorrected violation was that the restroom

967was in disrepair. Respondent's establishment had only one

975toilet. That one toilet had no handle or mechanical device that

986could be used to flush the toilet. Instead, there was a string

998tied to the toilet and the handicap bar in the stall. Somehow

1010this mechanism was "rigged" so that in order to flush the

1021toilet, a person had to pull the string that was tied to the

1034handicap bar in the stall.

103913. The fifth uncorrected violation was based on the

1048medium build-up of grease on the hood filters above the cooking

1059area. This is a non-critical violation, but can become a

1069critical violation if the equipment is not maintained and

1078cleaned. If the equipment in the cooking area is not kept

1089clean, dust, debris and other residue will accumulate and may

1099fall in the cooking area and/or in the food being cooked.

111014. Respondent presented no evidence to establish that the

1119violations described above were corrected on September 23, 2008.

1128Moreover, Mr. Liu did not dispute the evidence presented. His

1138testimony was that most of the violations were corrected in

1148December 2008, which was after the call back inspection.

115715. Critical violations are violations that can contribute

1165to food contamination, illness, environmental degradation and/or

1172environmental hazard.

117416. Non-critical violations are those which, initially, do

1182not pose an immediate threat. However, if such violations

1191remain uncorrected, they may turn into critical violations.

119917. On or about March 21, 2008, the Division issued an

1210Administrative Complaint against Petitioner alleging violations

1216of Chapter 509, Florida Statutes, and/or rules promulgated

1224thereto. The charges set out in that Administrative Complaint

1233were based on inspections conducted on September 27, 2007, and

1243February 27, 2008. No hearing was held in the matter. Rather,

1254the matter was resolved in April 2008, pursuant to a Stipulation

1265and Consent Order executed by the Division and Respondent.

1274Pursuant to that Stipulation, Respondent agreed to pay a

1283$2,300.00 fine and have its manager and employee attend the

1294Hospitality Education Program.

1297CONCLUSIONS OF LAW

130018. The Division of Administrative Hearings has

1307jurisdiction over the parties to and subject matter of this

1317proceeding pursuant to Section 120.569 and Subsection 120.57(1),

1325Florida Statutes. See also Fla. Admin. Code R. 61C-1.0021(4).

133419. The Division is the state agency responsible for

1343licensing and inspecting public food service establishments.

1350See §§ 509.032 and 509.241, Fla. Stat.

135720. A "public food service establishment" is defined in

1366Subsection 509.013(5)(a), Florida Statutes, as follows:

1372(5)(a) "Public food service establishment"

1377means any building, vehicle, place, or

1383structure, or any room or division in a

1391building, vehicle, place, or structure where

1397food is prepared, served, or sold for

1404immediate consumption on or in the vicinity

1411of the premises; called for or taken out by

1420customers; or prepared prior to being

1426delivered to another location for

1431consumption.

143221. Each "public food service establishment" must have a

1441license from the Division prior to commencement of operation.

1450§ 509.241, Fla. Stat.

145422. The Division is authorized to take disciplinary action

1463against the holder of such license for operating in violation of

1474Chapter 509, Florida Statutes, or the rules implementing that

1483chapter. Such disciplinary action may include suspension or

1491revocation of the license; imposition of an administrative fine

1500not to exceed $1,000.00 for each separate offense; and mandatory

1511attendance, at personal expense, at an educational program

1519sponsored by the Hospitality Education Program. § 509.261,

1527Fla. Stat.

152923. Here, the Division seeks to discipline Respondent's

1537license and/or to impose an administrative fine. Accordingly,

1545the Division has the burden to prove the allegations in the

1556Administrative Complaint by clear and convincing evidence.

1563See Dept. of Banking & Finance v. Osborne, Stern & Co. , 670

1575So. 2d 932 (Fla. 1996).

158024. Subsection 509.032(6), Florida Statutes, authorizes

1586the Division to adopt such rules that are necessary to carry out

1598the provision of that chapter.

160325. Pursuant to its rulemaking authority, the Division has

1612adopted rules governing public food service establishments

1619contained in Florida Administrative Code Rule Chapters 61C-1 and

162861C-4. The rules incorporate by reference portions of the Food

1638Code adopted by the U.S. Food and Drug Administration, including

1648those sections officially recognized at the final hearing.

1656See , e.g. , Fla. Admin. Code R. 61C-4.010(1), (5) and (6).

166626. The Administrative Complaint alleges that on

1673September 23, 2008, Respondent violated Food Code Rules

16813-302.11(A)(2), 4-302.12, 4-601.11(C), and 6-202.14; and Florida

1688Administrative Code Rule 61C-1.004(2)(a) and (b).

169427. Food Code Rule 3-302.11(A)(2) states in relevant part:

1703(A) Food shall be protected from cross

1710contamination by:

1712* * *

1715(2) Except when combined as ingredients,

1721separating types of raw animal foods from

1728each other such as beef, fish, lamb, pork,

1736and poultry during storage, preparation,

1741holding, and display by:

1745(a) Using separate equipment for each type,

1752or

1753(b) Arranging each type of food in

1760equipment so that cross contamination of one

1767type with another is prevented, and . . . .

177728. Food Code Rule 4-302.12 states in pertinent part:

1786(A) Food temperature measuring device shall

1792be provided and readily accessible for use

1799in ensuring attainment and maintenance of

1805food temperatures as specified under

1810Chapter 3.

181229. Food Code Rule 4-601.11(C) states in pertinent part:

1821(C) Nonfood-contact food surfaces of

1826equipment shall be kept free of an

1833accumulation of dust, dirt, food residue,

1839and other debris.

184230. Food Code Rule 6-202.14 and Florida Administrative

1850Code Rule 61C-1.004(2)(b) provide the requirements for the doors

1859of public bathrooms and public food service establishments,

1867respectively.

186831. Food Code Rule 6-202.14 states in pertinent part:

1877A toilet room located on the premises shall

1885be completely enclosed and provided with a

1892tight-fitting and self-closing door except

1897that this requirement does not apply to a

1905toilet room that is located outside a food

1913establishment and does not open directly

1919into the food establishment such as a toilet

1927room that is provided by the management of a

1936shopping mall.

193832. Florida Administrative Code Rule 61C-1.004(2)(b)

1944states:

1945(2) Public bathrooms.

1948* * *

1951(b) Public bathrooms shall be completely

1957enclosed and shall have tight-fitting, self

1963closing doors or, in public lodging

1969establishments or bathrooms located outside

1974a public food service establishment, have

1980entrances and exits constructed in such a

1987manner as to ensure privacy of occupants.

1994Such doors shall not be left open except

2002during cleaning or maintenance.

200633. Florida Administrative Code Rule 61C-1.004(2)(a)

2012states:

2013(2) Public bathrooms.

2016(a) Each public lodging and food service

2023establishment shall be provided with

2028adequate and conveniently located bathroom

2033facilities for its employees and guests in

2040accordance with provisions of these rules

2046and the plumbing authority having

2051jurisdiction. Public access to toilet

2056facilities shall not be permitted through

2062food preparation, storage, or warewashing

2067areas. Bathroom fixtures shall be of

2073readily cleanable sanitary design. Bathroom

2078facilities shall be kept clean, in good

2085repair and free from objectionable odors.

2091Bathrooms shall provide at least 20 foot

2098candles of light. The walls, ceilings and

2105floors of all bathroom shall be kept in good

2114condition.

211534. The Division met its burden of proof.

212335. The clear and convincing evidence established that

2131Respondent violated Food Code Rules 3-302.11(A)(2),

21374-302.12, 4-601.11(C) and 6-202.14; and Florida Administrative

2144Code Rule 61C-1.004(2)(a) and (b), as alleged in the

2153Administrative Complaint. 2

215636. The Division proposed an administrative fine of

2164$1,000.00 for each of the five violations or a total

2175administrative fine of $5,000.00. Moreover, the Division

2183proposed that Respondent's employees attend an educational

2190program sponsored by the Hospitality Education Program. The

2198proposed penalty is within the scope of those authorized by

2208Subsections 509.261(1)(a) and (b), Florida Statutes.

2214RECOMMENDATION

2215Based on the foregoing Findings of Fact and Conclusions of

2225Law, it is

2228RECOMMENDED that Petitioner, Department of Business and

2235Professional Regulation, Division of Hotels and Restaurants,

2242enter a final order:

22461. Finding that Respondent, China No. 1, violated Food

2255Code Rules 3-302.11(A)(2), 4-302.12, 4-601.11(C) and 6-202.14;

2262and Florida Administrative Code Rule 61C-1.004(2)(a) and (b);

22702. Imposing a total administrative fine of $5,000.00

2279against Respondent. The total administrative fine shall be paid

2288to the Division of Hotels and Restaurants, 1940 North Monroe

2298Street, Tallahassee, Florida 32399-1011, within 30 days of the

2307agency entering its final order in this case; and

23163. Requiring Respondent (through its employees, owners,

2323and/or managers) to attend, at personal expense, an educational

2332program sponsored by the Hospitality Education Program.

2339DONE AND ENTERED this 30th day of June, 2009, in

2349Tallahassee, Leon County, Florida.

2353S

2354CAROLYN S. HOLIFIELD

2357Administrative Law Judge

2360Division of Administrative Hearings

2364The DeSoto Building

23671230 Apalachee Parkway

2370Tallahassee, Florida 32399-3060

2373(850) 488-9675

2375Fax Filing (850) 921-6847

2379www.doah.state.fl.us

2380Filed with the Clerk of the

2386Division of Administrative Hearings

2390this 30th day of June, 2009.

2396ENDNOTES

23971/ All statutory references are to Florida Statutes (2008),

2406unless otherwise noted.

24092/ Both Food Code Rule 6-202.14 and Florida Administrative Code

2419Rule 61C-1.004(2)(b) address the problem with the bathroom door

2428on Respondent's premises (i.e. the door will not stay closed).

2438Thus, the violation of the foregoing provisions is treated as

2448only one violation.

2451COPIES FURNISHED :

2454William L. Veach, Director

2458Division of Hotels and Restaurants

2463Department of Business and

2467Professional Regulation

24691940 North Monroe Street

2473Tallahassee, Florida 32399-0792

2476Ned Luczynski, General Counsel

2480Department of Business and

2484Professional Regulation

24861940 North Monroe Street

2490Tallahassee, Florida 32399-0792

2493Frank Liu

2495China No. 1

24982595 South Hiawassee Road

2502Orlando, Florida 34744

2505Charles Tunnicliff, Esquire

2508LeChea Parson, Esquire

2511Department of Business and

2515Professional Regulation

25171940 North Monroe Street, Suite 60

2523Tallahassee, Florida 32399-2202

2526NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2532All parties have the right to submit written exceptions within

254215 days from the date of this Recommended Order. Any exceptions

2553to this Recommended Order should be filed with the agency that

2564will issue the Final Order in this case.

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PDF
Date
Proceedings
PDF:
Date: 06/30/2009
Proceedings: Recommended Order
PDF:
Date: 06/30/2009
Proceedings: Recommended Order (hearing held April 14, 2009). CASE CLOSED.
PDF:
Date: 06/30/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/11/2009
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 04/29/2009
Proceedings: Transcript filed.
Date: 04/14/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/08/2009
Proceedings: Notice of Transfer.
PDF:
Date: 04/08/2009
Proceedings: Petitioner`s Witness List filed.
PDF:
Date: 04/08/2009
Proceedings: Petitioner`s Exhibit List filed.
PDF:
Date: 02/17/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/17/2009
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 14, 2009; 9:30 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 02/16/2009
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 02/12/2009
Proceedings: (Respondent`s) Letter response to the Initial Order filed.
PDF:
Date: 02/04/2009
Proceedings: Initial Order.
PDF:
Date: 02/04/2009
Proceedings: Election of Rights filed.
PDF:
Date: 02/04/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 02/04/2009
Proceedings: Agency referral filed.

Case Information

Judge:
CAROLYN S. HOLIFIELD
Date Filed:
02/04/2009
Date Assignment:
04/07/2009
Last Docket Entry:
06/30/2009
Location:
Orlando, Florida
District:
Middle
Agency:
Department of Business and Professional Regulation
 

Counsels

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