10-002672 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Hot Wok Status: Closed Recommended Order on Friday, August 27, 2010.

Summary: The Department proved the violations set forth in the Administrative Complaint. Recommend four-day suspension of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS )

AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 10-2672

)

HOT WOK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on July 16, 2010, by

Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, via video teleconferencing

with sites in Gainesville and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1015

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the violations set forth in the Administrative Complaint and, if so, what is the appropriate disciplinary action that should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Hotels and Restaurants, filed an

Administrative Complaint alleging violations of the provisions

of Chapter 509, Florida Statutes, or the applicable rules

governing the operation of public food establishments.

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 May 17, 2010. A formal hearing was set for July 16,

2010. The hearing took place as scheduled.

At the commencement of the hearing, Petitioner’s counsel

entered his appearance, but no appearance was made on behalf of

Respondent. The hearing was recessed for approximately 20

minutes to give a representative of Respondent an opportunity to

appear, but no appearance was made on behalf of Respondent. The

undersigned noted on the record that the Notice of Hearing was

mailed to the address provided by Petitioner on its transmittal

letter, which matched the address provided by Respondent on the

Election of Rights.

At hearing, Petitioner presented testimony of one witness,

Judy Hentges. Petitioner's Exhibits numbered 1, 2, 4 and 5 were

admitted into evidence. Exhibits 4 and 5 were admitted only for

consideration of mitigation or aggravation of penalty and proof

of prior violation. Official Recognition was requested of

Sections 509.032(6) and 509.292(1) Florida Statutes, Florida

Administrative Code Rules 61C-1.001(14) and 61C-1.005, and

pertinent portions of the United States Food and Drug

Administration’s Food Code (Food Code). The request was

granted.

A Transcript consisting of one volume was filed on

July 30, 2010. Petitioner timely filed a Proposed Recommended

Order, which has been considered in the preparation of this

Recommended Order. Respondent did not file a post-hearing

submission. References to Florida Statutes are to the 2009

version, unless otherwise indicated.

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

Gainesville, Florida. Respondent was issued license number

1102902 as a public food establishment by the Division.

3. Critical violations are those violations that pose a

significant threat to the health, safety, and welfare of the

public. Non-critical violations are any other violation that

are not deemed critical.

4. Judy Hentges has been employed by the Division for

approximately 12 and one-half years as a sanitation and safety

specialist. She also has a food manager's certification.

Ms. Hentges has received training in laws and rules regarding

public food service and lodging, and continues to receive

continuing education training on a monthly basis. Ms. Hentges

performs approximately 800 to 1,000 inspections annually.

5. On August 11, 2009, Ms. Hentges conducted a routine

inspection of Respondent's premises and issued an inspection

report while on the premises. Kitty Lu, manager of the

restaurant, was present and signed the inspection report, as did

Ms. Hentges.

6. Ms. Hentges informed the manager about the violations

she found, which were noted on the inspection report, and

explained that the violations must be corrected by the following

day.

7. During the August 11, 2009, inspection, Ms. Hentges

observed food that was not held at 135 degrees Fahrenheit or

above.

8. When food is held "out of temperature," bacteria rises

at a rapid rate which can initiate a food-borne illness. This

is a critical violation because temperature violations are one

of the leading causes of food-borne illnesses and present an

immediate health threat to the public. Respondent had

previously been cited for this particular violation during

inspections that took place on February 11, 2009; February 12,

2009; and April 16, 2009.

9. During her inspection on August 11, 2009, Ms. Hentges

also observed that imitation scallops were being used, whereas

the menu did not indicate that the scallops were imitation.

This constitutes misrepresentation of a food product.

Respondent previously had been cited for this particular

violation on October 20, 2008; October 21, 2008; February 11,

2009; February 12, 2009; and April 16, 2009.

CONCLUSIONS OF LAW

10. 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. (2010).

11. The Division is the state agency charged with

regulating public food service establishments pursuant to

Section 20.165 and Chapter 509, Florida Statutes.

12. Pursuant to Section 509.261(1), Florida Statutes

(2009), 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.

13. Because the Division seeks suspension of Respondent's

license, 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).

14. Paragraph 1-201.10(B) and Chapters 2, 3, 4, 5, 6 and 7

of the United States Food and Drug Administration’s Food Code

(Food Code) have been incorporated by reference into the

Department's rules governing public food establishments. Fla.

Admin. Code R. 61C-1.001(14).

15. Through the Administrative Complaint, Respondent is

alleged to have violated the following provision of the Food

Code, which reads in pertinent part:

3-501.16(A)(1) Except during preparation,

cooking, or cooling, or when time is used as

the public health control as specified under

Section 3-501.19, and except as specified in

paragraph (B) of this Section, potentially

hazardous food shall be maintained:

(1) At 135 degrees Fahrenheit or above. . . .

16. Through the Administrative Complaint, Respondent is

alleged to have violated Section 509.292(1), Florida Statutes

(2009), which reads as follows:

Misrepresenting food or food product.-

(1) An operator may not knowingly and

willfully misrepresent the identity of any

food or food product to any of the patrons

of such establishment. The identity of food

or a food product is misrepresented if:

(a) The description of the food or food

product is false or misleading in any

particular;

(b) The food or food product is served,

sold, or distributed under the name of

another food or food product; or

(c) The food or food product purports to be

or is represented as a food or food product

that does not conform to a definition of

identity and standard of quality if such

definition of identity and standard of

quality has been established by custom and

usage.

17. The Division met its burden of proving that Respondent

violated Section 3-501.16(A)(1), Food Code, by failing to

maintain food at 135 degrees Fahrenheit or above, as observed by

Ms. Hentges in the kitchen during the inspection of August 11,

2009.

18. The Division met its burden of proving that Respondent

violated Section 509.292(1), Florida Statutes, because the

identity of a food product, imitation scallops, was

misrepresented during the inspection of August 11, 2009.

19. In its Proposed Recommended Order, the Division

proposes the imposition of a four-day suspension. Florida

Administrative Code Rule 61C-1.005(6) sets forth the penalty

guidelines to be imposed against licensees for violations of the

applicable statutes and rules. Subsection (b) 3. provides that

when a third or subsequent offense of a critical violation

occurs, the appropriate penalty is an administrative fine of

$750 to $1,000, license suspension, or both. Subsection (c) 3.

of the rule sets forth a penalty range of an administrative fine

of $1,000, license suspension, or license revocation, or any

combination thereof, for the third or subsequent offense of

misrepresentation of a food or food product.

20. The Division met its burden of proof regarding the

allegations contained in the Administrative Complaint. Further,

the undersigned reviewed the Final Orders previously entered

against Respondent regarding the same violations. Accordingly,

the proposed license suspension of four days is reasonable and

consistent with the above-referenced rule penalty guidelines.

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, and suspends Respondent's hotel and restaurant

license for four days, effective the first Monday after 40 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 27th day of August, 2010, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of August, 2010.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32388-1015

Hot Wok

c/o H. L.

3006 Northwest 13th Street

Gainesville, Florida 32609

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, 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.