10-003295 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Tatu Status: Closed Recommended Order on Monday, September 20, 2010.

Summary: The Division proved the violations alleged in the Administrative Complaint by clear and convincing evidence, but could not use previous settlement agreements with Respondent to establish that Respondent was a repeat offender.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Cas e No s . 10 - 2675

) 10 - 3295

TATU , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was con ducted in th ese

consolidated case s on July 27, 2010 , via video teleconference

from sites in Gainesville and Tallahassee , Florida , before

Lawrence P. Stevenson, a duly designated Administrative Law

Judge of the Divi sion of Administrative Hearings .

APPEARANCES

For Petitioner: Garnett W. Chisenhall , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399

For Respondent: Chang S. Bahn , pro se

Tatu

1702 West University Avenue, Suite J

Gain esville , Florida 32 603

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the violation s alleged in the Administrative Complaint s dated

August 31, 2009 , and April 19, 2010, and, if so, what penalty is

warranted.

PRELIM INARY STATEMENT

The Department of Business and Professional Regulation,

Division of Hotels and Restaurants ( the " Division " ), alleged in

an Administrative Complaint dated August 31, 2009 , that

Respondent violated the standards governing public food servic e

establishments. Specifically, the Administrative Complaint

alleged that the DivisionÓs inspector observed Ð potentially

hazardous food cold held at greater than 41 °F reach - in 1 / cooler Ñ

during inspections conducted on February 18, 2009 , 2 / and July 14,

200 9, in violation of Food Code R ule 3 - 501.16(a) 3 / ; o bserved cold

holding equipment incapable of maintaining potentially hazardous

food at proper temperature (reach - in cooler)Ñ during inspections

conducted on February 18, 2009, July 8, 2009, and July 14, 2009 ,

in violation of Food Code Rule 4 - 301.11 ; and observed Ð identity

of food or food product misrepresented. Menu board stated crab

delight althou gh imitation [crab] was used Ñ during inspections

conducted on September 26, 2008, February 18, 2009, and July 14 ,

2009, in violation of Section 509.292(1), Florida Statutes.

Respondent disputed the allegations and requested an

evidentiary hearing pursuant to Section 120.57(1), Florida

Statutes, through an Election of Rights f o rm .

On May 17 , 2010 , the case was referr ed to the Division of

Administrative Hearings , given DOAH Case No. 10 - 2675, and

assigned to the undersigned. The case was noticed for hearing

on July 27, 2010 .

In a second Administrative Complaint dated April 19, 2010,

the Division alleged further violati ons of the standards

governing public food establishments. This Administrative

Complaint alleged that the DivisionÓs inspector observed

Ðpotentially hazardous food cold held at greater than 41 ° F --

breading mix 66°F and liquid eggs 77°F, on cookline; sus hi roll

seafood 70°F, on front counter; and seafood 68°F, in reach - in

cooler,Ñ in violation of Food Code Rule 3 - 501.16(A); and

observed Ðhand wash sink not accessible for employee use at all

times. Waste bucket and wiping cloth bucket blocking hand wash

s ink,Ñ in violation of Food Code R ule 5 - 205.11(A) . The

Administrative Complaint alleged that these violations occurred

on July 8, 2009, July 14, 2009, and April 5, 2009.

Respondent disputed the allegations of the second

Administrative Complaint and request ed an evidentiary hearing

pursuant to Section 120.57(1), Florida Statutes, through an

Election of Rights form.

The second Administrative Complaint was referred to the

Division of Administrative Hearings on June 15, 2010 , and given

DOAH Case No. 10 - 3295. A lso on June 15, 2010, the Division

filed a motion to consolidate D OAH Case Nos. 10 - 2675 and 10 -

3295, which was granted by an order dated June 30, 2010. The

consolidated cases remained scheduled for July 27, 2010, on

which date the hearing was held.

At the hearing, the Division presented the testimony of

Daniel Fulton , the senior inspector who conducted the

inspection s of Respondent's restaurant , and the rebuttal

testimony of sanitary and safety supervisor Jeanie Porter . The

Division's Exhibits 1 and 4 through 8 were admitted into

evidence. Respondent presented the testimony of Chang Bahn, the

owner and operator of Tatu . Respondent offered no exhibits into

evidence.

A T ranscript of the hearing was filed at the Division of

Administrative Hearings on Au gust 11 , 2010 . The Division timely

filed a Proposed Recommended Order on August 23, 2010.

Respondent did not file a p roposed r ecommended o rder. On

September 8, 2010, Respondent filed a letter accompanied by

photographs of TatuÓs kitchen and cooler areas with captions

purporting to explain the alleged violations. Because this

letter was a belated attempt to supplement the evidentiary

record of this proceeding, it has not been considered in the

drafting of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulation

of hotels and restaurants pursuant to Chapter 509, Florida

Statutes.

2. At all times material to this case, Respondent Tatu was

a restaurant locate d at 1702 West University Avenue, Suite J,

Gainesvil le , Florida 3260 3 , holding Permanent Food Service

license number 1102115 . Tatu consists of a sushi bar and a

restaurant serving Asian food , on the second floor of the UF

Plaza directly across the street from the University of Florida

campus . It is owned and operated by Chang Bahn.

3. A critical violation is a violation that poses an

immediate danger to the public.

4 . A non - critical violation is a violation that does not

pose an immediate danger to the public, but needs to be

addressed because if left uncorrected, it can become a critical

violation.

5 . On July 8 , 2009 , Daniel Fulton , a senior inspector with

the Division , performed a food service inspection of the

Respondent . During the inspection, M r. Fulton observed that

cold foods were not being he ld at their proper temperature .

This is a critical violation because foods held out of their

proper temperature s for any length of time can grow bacteria

that could cause food borne illnesses in persons who eat the

food.

6. Mr. Fulton also observed that RespondentÓs cold holding

equipment was not capable of maintaining potentially hazardous

foods at their proper temperature. This is a critical violation

because refrigeration equipment must be capable of holding foods

below 41 degrees Fahrenheit for the s afety of the consuming

public.

7 . At the conclusion of his inspection, Mr. Fulton

prepared and signed an inspection report setting forth the

violations he encountered during the inspection. He notified

Mr. BahnÓs wife, Suy Bahn, of the nature of the viol ations and

she signed the inspection report. (Mr. Bahn was not present in

the restaurant during the July 8, 2009 , inspection.) Mr. Fulton

informed Ms. Bahn that all of the violations noted in the

inspection report would have to be corrected by the follow ing

day, July 9, 2009.

8 . Mr. Fulton performed a callback inspection at Tatu on

July 14, 2009. Mr. FultonÓs callback inspection report noted

that the critical violations found on July 8, 2009 , had not been

corrected. Uncooked fish was found held at temp eratures of 45

to 46 degrees Fahrenheit, and the cold holding equipment was

still incapable of maintaining food at the proper temperature.

9. Mr. Fulton further observed that Respondent was

misrepresenting a food product. In this case, imitation crab

was being served in a dish labeled "Crab Delight," rather than

under the name " krab " to indicate its ersatz nature. This is a

critical violation, not just because of the misrepresentation

involved, but because restaurant customers may have allergies to

certa in foods and therefore need to know exactly what they are

eating.

10. Mr. Bahn signed the July 14, 2009 , callback inspection

report. After the July 14, 2009 , callback inspection,

Mr. Fulton recommended that an Administrative Complaint be

issued because R esp ondent had not corrected the critical

violations found in the July 8, 2009 , inspection. This

Administrative Complaint was the basis for DOAH Case No.

10 - 2675.

11 . On April 5, 2010, Mr. Fulton performed a food service

inspection at Tatu. During this inspection, Mr. Fulton found

two critical violations. The first critical violation was that

the restaurant was keeping potentially hazardous cold foods at

temperatures greater than 41 degrees Fahrenheit. On the cook ing

line, Mr. Fulton found breading mix held at 66 degrees

Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the

front counter, seafood was held at 70 degrees Fahren h eit, and

Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach -

in cooler. Mr. Fulton had noted the same critical violation

during his inspection of July 8, 2009 , and during his callback

inspection of July 14, 2009.

12. The second critical violation noted by Mr. Fulton

during his April 5, 2010 , inspection was that the hand sinks

were not accessible for employeesÓ us e at all times. The hand -

washing sink was blocked by a waste bucket and a wiping cloth

bucket. This is a critical violation because employees are less

likely to wash their hands if it is difficult for them to do so.

The employeesÓ failure to wash their hands can lead to

contamination of the food and consequently food - borne illnesses

in the restaurantÓs customers. Mr. Fulton had noted the same

critical violation during his inspection of July 8, 2009. 4 /

13. Mr. Fulton prepared an inspection report. He n otified

Mr. Bahn of the violations. Mr. Bahn signed the report.

Mr. Fulton recommended that an Administrative Complaint be

issued in this case because Respondent had not corrected a

violation for which it had already been cited within a one - year

period. This Administrative Complaint was the basis for DOAH

Case No. 10 - 3295.

1 4 . The Division presented evidence of prior disciplinary

action against Respondent. Administrative c omplaints were filed

against Respondent based on inspections conducted on

Septem ber 26, 2008 and on February 18, 2009 . Each of these

cases w as resolved by a Stipulation and Consent Order in which

Respondent neither admitted nor denied the facts alleged in the

respective administrative complaint. See Endnote 2, supra .

CONCLUSIONS O F LAW

15 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes. 5 /

1 6 . Petitioner has jurisdiction over the operation o f

public lodging establishments and public food service

establishments, pursuant to Section 20.165 and Chapter 509,

Florida Statutes.

17 . The Division is authorized to take disciplinary action

against the holder of such a license for operating in violati on

of Chapter 509, Florida S tatutes, 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 mandator y

attendance, at personal expense, at an educational program

sponsored by the Hospitality Education Program. § 509.261, Fla.

Stat.

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

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

the Division has the burden of proving the allegations charged

in the Administrative Complaint against the Respondent by clear

and convincing evidence. Department of Banking and F inance

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 S o. 2d 932 (Fla. 1996).

19 . A licensee is charged with knowing the practice act

that governs his license. Wallen v. Florida department of

Professional Regulation, Division of Real Estate , 568 S o. 2d 975

(Fla. 3d DCA 1990).

20 . The Administrative Complaint in DOAH Case 10 - 267 5

alleged that on September 26, 2008, February 18, 2009, and

July 14, 2009, Respondent was in violation of Food Code Rule s 3 -

501.16(A) and 4 - 301.11, and of Section 509.292(1), Florida

Statutes.

21 . Food Code Rule 3 - 501.16(A) provides , in pertinent

part :

Potentially Hazardous Food, Hot and Cold

Holding.

(A) Except during preparation, cooking, or

cooling, or when time is used as the public

health control as specified under § 3 -

501.19, and except as specified in ¶ (B) of

thi s section, potentially

hazardous food shall be maintained:

(1) At 57°C (135°F) or above, except that

roasts cooked to a temperature and for a

time specified in ¶ 3 - 401.11(B) or reheated

as specified in ¶ 3 - 403.11(E) may be held at

a temperature of 54°C ( 130°F) or above ; or

(2) At a temperature specified in the

following:

(a) 5°C (41°F) or less ....

22 . The Division prove d by clear and convincing evidence

that Respondent cold held potentially hazardous food at greater

than 41 degrees Fahrenheit , and therefore that Respondent

violated Food Code Rule 3 - 501.16(A).

23. Food Code Rule 4 - 301.11 provides :

Cooling, Heating, and Holding Capacities.

Equipment for cooling and heating food , and

holding cold and hot food , shall be

sufficient in number and capaci ty to

provide food temperatures as specified under

Chapter 3.

24. Section 509.292(1), Florida Statutes, provides:

An operator may not knowingly and willfully

misrepresent the identity of any food or

food product to any of the patrons of such

establishmen t. 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 us age.

25. The Division proved by clear and convincing evidence

that Respondent served imitation crab under the name "Crab

Delight," and therefore that Respondent violated Section

509.292(1), Florida Statutes.

26. The Administrative Complaint in DOAH Case 10 - 3295

alleged that on July 8, 2009, July 14, 2009, and April 5, 2009,

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

5 - 205.11(A) .

27. The Division proved by clear and convincing evidence

that Respondent cold held breading mix at 66 degr ees Fahrenheit

and liquid eggs at 77 degrees Fahrenheit on the cooking line,

seafood at 70 degrees Fahrenheit on the front counter, and

seafood at 68 degrees Fahrenheit in the reach - in cooler.

Therefore, the Division proved by clear and convincing evidenc e

that Respondent was in violation of Food Code Rule 3 - 501.16(A),

the text of which is set forth at Conclusion of Law 21, supra .

28. Food Code Rule 5 - 205.11(A) provides:

Using a Handwashing Facility.

(A) A handwashing facility shall be

maintained so tha t it is accessible at all

times for employee use.

29. The Division proved by clear and convincing evidence

that Respondent's hand - washing sink was blocked by a waste

bucket and a wiping cloth bucket, and therefore that Respondent

violated Food Code Rul e 5 - 205.11(A).

30. The Division proposed a n administrative fine of

$ 1,0 00.00 for each critical violation found in these

consolidated cases, for a total penalty of $5,000.00. Florida

Administrative Code Rule 61C - 1.005 sets forth the Div ision's

disciplinar y guidelines, which provide in relevant part as

follows:

(6) Standard penalties. This section

specifies the penalties routinely imposed

against licensees and applies to all

violations of law subject to a penalty under

Chapter 509, F.S. Any violation r equiring

an emergency suspension or closure, as

authorized by Chapter 509, F.S., shall be

assessed at the highest allowable fine

amount .

(a) Non - critical violation.

1. 1st offense Î Administrative fine of

$150 to $300.

2. 2nd offense Î Administrativ e fine of

$250 to $500.

3. 3rd and any subsequent offense Î

Administrative fine of $350 to $1000,

license suspension, or both.

(b) Critical violation . Fines may be

imposed for each day or portion of a day

that the violation exists, beginning on the

da te of the initial inspection and

continuing until the violation is corrected.

1. 1st offense Î Administrative fine of

$250 to $500.

2. 2nd offense Î Administrative fine of

$500 to $1,000.

3. 3rd and any subsequent offense Î

Administrative fine of $75 0 to $1,000,

license suspension, or both . [ 6 / ] (Emphasis

added.)

31 . The Division 's proposed fine was based on the premise

that Respondent is a third - time offender due to the filing of

two disciplinary F inal O rders within 24 months preceding the

Administ rative Complaints in this consolidated proceeding.

H owever, t he evidence established only that the Division and

Respondent entered into two previous "Stipulation and Consent

Orders," which are in the nature of settlement agreements. The

Division did not prove the allegations of the underlying

administrative complaints, and Respondent neither admitted nor

denied those allegations. Thus, the Division did not establish

that two previous "disciplinary Final Orders" were entered

against Respondent.

32. Und er all the facts and circumstances of th ese

consolidated case s, a fine of $500.00 for each of the five

proven critical violations is appropriate .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation, Division of Hotels and Restaurants

enter a final order imposing a n administrative fine of

$ 2,5 0 0 .00, payable under terms and conditions deemed

appropriate.

DONE AND ENTERED this 20th day of September , 20 10 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of September , 2010 .

ENDNOTES

1 / The Administrative Complaint spelled this term as Ðreachin,Ñ

but for ease of reading it has been changed to Ðreach - inÑ

throughout this Recommended Order.

2 / For purposes of establishing repeat violations, the

DivisionÓs Administrative Complaint referenced inspections

conducted on September 26, 2008 , and February 1 8, 2009, which

resulted in administrative complaints dated October 14, 2008 ,

and March 26, 2009. In each instance, a Stipulation and Consent

Order was entered by the Division. In the first Stipulation and

Consent Order, signed by Chang Bahn on November 1 0, 2008 , and

entered on December 2, 2008, Respondent agreed to pay a fine of

$500.00 and submitted to a post - settlement inspection, but did

not admit nor deny the allegations of fact contained in the

Administrative Complaint. In the second Stipulation and Consent

Order, signed by Chang Bahn on April 14, 2009 , and entered on

April 23, 2009, Respondent agreed to pay a fine of $2,000.00,

submitted to a post - settlement inspection, and agreed to

cooperate in a "hospitality education program workshop," but

again did not admit or deny the allegations of fact contained in

the Administrative Complaint. The specifics of the inspections

that led to those earlier final orders were not at issue in the

instant cases.

3 / The Division has adopted by reference the 2001 Food Code of

the United States Public Health Service/Food and Drug

Administration, as well as its August 29, 2003 , Supplement.

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

4 / The violation had apparently been corrected before the

July 14, 2009 , callback inspecti on, which would explain why it

was not included as a major violation in the first

Administrative Complaint.

Mr. Fulton had conducted the earlier inspections of

September 26, 2008 , and February 18, 2009, and had noted this

violation in each of those i nspections. The record did not

establish whether this violation was included in the

administrative complaints that ensued from those inspections.

5 / Unless otherwise indicated, all references are to the 2009

Florida Statutes.

6 / Florida Administrativ e Code Rule 61C - 1.005(5)(e) defines

"third and any subsequent offense" to mean " a violation of any

law subject to penalty under Chapter 509, F.S., after two or

more disciplinary Final Orders involving the same licensee have

been filed with the Agency Clerk within the 24 months preceding

the date the current administrative complaint is issued, even if

the current violation is not the same as the previous

violation."

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Profession al Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Chang S. Bahn

Tatu

1702 West University Avenue, Suite J

Gainesville, Florida 32603

Garnett W. Chisenhall, Esquire

Department of Business and

Professional Regulation

1940 Nor th Monroe Street, Suite 41

Tallahassee, Florida 32399

William L. Veach, Director

Division of Hotels and Restaurants

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Reginald Dixon, General Counsel

Department of Business and

Pr ofessional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

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 Reco mmended Order should be filed with the agency that

will issue the Final Order in this case.