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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 09-0618

)

CHINA NO. 1, )

)

Respondent. )

)

RECOMMENDED ORDER

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

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

and Orlando, Florida, before Carolyn S. Holifield,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: LeChea Parson, Esquire

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Frank Liu, pro se

China No. 1

2595 South Hiawassee Road

Orlando, Florida 34744

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the acts

alleged in the Administrative Complaint dated October 20, 2008,

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

license.

PRELIMINARY STATEMENT

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

Business and Professional Regulation, Division of Hotels and

Restaurants ("Division"), filed an Administrative Complaint

alleging that in July and September 2008, Respondent, China

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

service establishments. Specifically, the Administrative

Complaint charged Respondent with violating Food Code Rules

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

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

509.292(1), Florida Statutes (2008). 1 Respondent disputed the

allegations and timely requested an evidentiary hearing.

The matter was referred to the Division of Administrative

Hearings on February 4, 2009, for assignment of an

Administrative Law Judge to conduct the hearing.

At hearing, the Division presented the testimony of Norma

Gordon, a sanitation and safety specialist with the Division.

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

Respondent presented the testimony of Frank Liu. Respondent

offered no exhibits into evidence.

Prior to the evidentiary part of the hearing, the Division

advised Respondent and the undersigned that it was deleting

Count 6 of the Administrative Complaint, which charged

Respondent with violating Subsection 509.292(1), Florida

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

the request of the Division, the undersigned took official

recognition of the above-referenced provisions, rules, and

statutory provisions.

The Transcript of the hearing was filed with the Division

of Administrative Hearings on April 29, 2009. The Division

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

Respondent did not file a proposed recommended order.

FINDINGS OF FACT

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

food establishment, licensed and regulated by the Division.

Respondent's license number is 5810388.

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

Orlando, Florida 32835.

3. Norma Gordon is employed by the Division as a

sanitation and safety specialist and has worked in that position

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

inspecting public food establishments that are regulated by the

Division. To effectively carry out job responsibilities,

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

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

Food Code. Moreover, Ms. Gordon has successfully completed

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

participates in monthly continuing education. During her

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

inspections annually.

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

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

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

which were deemed to be critical violations.

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

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

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

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

Service Inspection Report notified Mr. Liu that a call back

inspection would be conducted on September 22, 2008, to

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

the Food Service Inspection Report on July 22, 2008,

acknowledging that he received a copy of the Inspection Report.

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

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

Ms. Gordon observed several violations that were reported on the

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

had not yet been corrected.

7. Ms. Gordon recorded the uncorrected violations that she

observed and verified during the September 23, 2008, callback

inspection on a Call Back Inspection Report form. That Call

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

signed by Mr. Liu.

8. The uncorrected violations observed and verified on

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

through 13.

9. The first uncorrected violation was that raw animal

foods were not properly separated from each other in the holding

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

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

critical violation because food must be protected from

cross-contamination. For example, the raw chicken has

salmonella, which requires that it be cooked at a certain

temperature. Cross-contamination may occur when raw meat

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

next to vegetables, because the meats and vegetables have

different cooking temperatures.

10. The second uncorrected violation was that Respondent

did not have a thermometer available to measure the temperature

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

a device is necessary to ensure that foods are prepared and

maintained at appropriate temperatures.

11. The third uncorrected violation was that the bathroom

door in the establishment was being left open at times other

than during the cleaning or maintenance of the facility. This

is deemed to be a critical violation.

12. The fourth uncorrected violation was that the restroom

was in disrepair. Respondent's establishment had only one

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

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

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

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

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

handicap bar in the stall.

13. The fifth uncorrected violation was based on the

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

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

critical violation if the equipment is not maintained and

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

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

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

14. Respondent presented no evidence to establish that the

violations described above were corrected on September 23, 2008.

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

testimony was that most of the violations were corrected in

December 2008, which was after the call back inspection.

15. Critical violations are violations that can contribute

to food contamination, illness, environmental degradation and/or

environmental hazard.

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

not pose an immediate threat. However, if such violations

remain uncorrected, they may turn into critical violations.

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

Administrative Complaint against Petitioner alleging violations

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

thereto. The charges set out in that Administrative Complaint

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

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

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

and Consent Order executed by the Division and Respondent.

Pursuant to that Stipulation, Respondent agreed to pay a

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

Hospitality Education Program.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

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

19. The Division is the state agency responsible for

licensing and inspecting public food service establishments.

See §§ 509.032 and 509.241, Fla. Stat.

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

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

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

means any building, vehicle, place, or

structure, or any room or division in a

building, vehicle, place, or structure where

food is prepared, served, or sold for

immediate consumption on 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.

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

license from the Division prior to commencement of operation.

§ 509.241, Fla. Stat.

22. The Division is authorized to take disciplinary action

against the holder of such license for operating in violation of

Chapter 509, Florida Statutes, or the rules implementing that

chapter. Such disciplinary action may include suspension or

revocation of the license; imposition of an administrative fine

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

attendance, at personal expense, at an educational program

sponsored by the Hospitality Education Program. § 509.261,

Fla. Stat.

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

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

the Division has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence.

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

So. 2d 932 (Fla. 1996).

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

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

the provision of that chapter.

25. Pursuant to its rulemaking authority, the Division has

adopted rules governing public food service establishments

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

61C-4. The rules incorporate by reference portions of the Food

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

those sections officially recognized at the final hearing.

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

26. The Administrative Complaint alleges that on

September 23, 2008, Respondent violated Food Code Rules

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

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

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

(A) Food shall be protected from cross

contamination by:

* * *

(2) Except when combined as ingredients,

separating types of raw animal foods from

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

and poultry during storage, preparation,

holding, and display by:

(a) Using separate equipment for each type,

or

(b) Arranging each type of food in

equipment so that cross contamination of one

type with another is prevented, and . . . .

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

(A) Food temperature measuring device shall

be provided and readily accessible for use

in ensuring attainment and maintenance of

food temperatures as specified under

Chapter 3.

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

(C) Nonfood-contact food surfaces of

equipment shall be kept free of an

accumulation of dust, dirt, food residue,

and other debris.

30. Food Code Rule 6-202.14 and Florida Administrative

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

of public bathrooms and public food service establishments,

respectively.

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

A toilet room located on the premises shall

be completely enclosed and provided with a

tight-fitting and self-closing door except

that this requirement does not apply to a

toilet room that is located outside a food

establishment and does not open directly

into the food establishment such as a toilet

room that is provided by the management of a

shopping mall.

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

states:

(2) Public bathrooms.

* * *

(b) Public bathrooms shall be completely

enclosed and shall have tight-fitting, self

closing doors or, in public lodging

establishments or bathrooms located outside

a public food service establishment, have

entrances and exits constructed in such a

manner as to ensure privacy of occupants.

Such doors shall not be left open except

during cleaning or maintenance.

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

states:

(2) Public bathrooms.

(a) Each public lodging and food service

establishment shall be provided with

adequate and conveniently located bathroom

facilities for its employees and guests in

accordance with provisions of these rules

and the plumbing authority having

jurisdiction. Public access to toilet

facilities shall not be permitted through

food preparation, storage, or warewashing

areas. Bathroom fixtures shall be of

readily cleanable sanitary design. Bathroom

facilities shall be kept clean, in good

repair and free from objectionable odors.

Bathrooms shall provide at least 20 foot

candles of light. The walls, ceilings and

floors of all bathroom shall be kept in good

condition.

34. The Division met its burden of proof.

35. The clear and convincing evidence established that

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

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

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

Administrative Complaint. 2

36. The Division proposed an administrative fine of

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

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

proposed that Respondent's employees attend an educational

program sponsored by the Hospitality Education Program. The

proposed penalty is within the scope of those authorized by

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

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Hotels and Restaurants,

enter a final order:

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

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

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

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

against Respondent. The total administrative fine shall be paid

to the Division of Hotels and Restaurants, 1940 North Monroe

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

agency entering its final order in this case; and

3. Requiring Respondent (through its employees, owners,

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

program sponsored by the Hospitality Education Program.

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

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 30th day of June, 2009.

ENDNOTES

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

unless otherwise noted.

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

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

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

Thus, the violation of the foregoing provisions is treated as

only one violation.

COPIES FURNISHED :

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Frank Liu

China No. 1

2595 South Hiawassee Road

Orlando, Florida 34744

Charles Tunnicliff, Esquire

LeChea Parson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

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.