12-002946 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. China King Status: Closed Recommended Order on Tuesday, December 11, 2012.

Summary: Respondent's second and subsequent violations of food safety requirements of chapter 509, Florida Statutes, and implementing rules warrant fine of $2,625.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

) Case No. 1 2 - 2946

Petitioner, )

)

vs. )

)

CHINA KING , )

)

Respondent. )

)

RECOMMENDED ORDER

On November 13 , 201 2 , a duly - noticed hearing was held at

video locations in Tampa and Tallahassee , Florida, before F.

Scott Boyd, an a dministrative l aw j udge assigned by the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Robert L. Ehrhardt , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 22 02

For Respondent: Man Chan , Qualified Representative

China King

4941 East Busch Boulevard, Suite 120

Tampa , Florida 3 3617

STATEMENT OF THE ISSUE

The issue in this case is whether on April 5 and

October 18, 2011, and on February 28, 2012 , Respondent was in

compliance with the food safety requirements of section 509.032,

Florida Statutes, and implementing administrative rules of the

Division of Hotels and Restaurants of the Department of Business

and Professional Regulation , and if not , wh at penalty is

appropriate .

PRELIMINARY STATEMENT

On March 7, 2012 , Petitioner filed a n A dministrative

C omplaint against Respondent alleging violations of rules

implementing chapter 509, Florida Statutes , relating to food

safety . Respondent requested an administrative hearing and the

matter was referred to the Division of Administrative Hearings

for assignment of an administrative law judge on September 12 ,

201 2 .

The case was noticed for hearing by video teleconference on

Novemb er 13 , 201 2 , at locations in Tampa and Tallahassee,

Florida . Owner of Respondent, Mr. Chi Kin Chan , was present but

spoke very little English. Representing the restaurant was

M s . Man Chan , daughter of the owner, who helps operate the

restaurant . Ms . Cha n was accepted as a Q ualified

Representative . Petitioner presented the testimony of Mr. Doug

Peterson, an inspector for Petitioner , and offered eight

exhibits. Petitioner ' s Exhibits P - 1 through P - 8 were admitted

without objection. Respondent offered the testimony of two

witnesses and no exhibits.

The Transcript was filed with the Division on November 21 ,

201 2 . Petitioner timely submitted a Proposed Recommended O rder ,

which w as considered .

FINDINGS OF FACT

1. The Division of Hotels and Restaurants (Di vision) is

responsible for monitoring all licensed food - service

establishments in the state to ensure that they comply with the

standards set forth in relevant statutes and rules.

2 . M r . Douglas Peterson has been employed as a Sanitation

and Safety Specialist with the Division for five and one - half

years. H e previously worked in the restaurant industry for over

21 years, including eight years as a kitchen manager and five

years as a restaurant assistant manager. H e has had tra ining,

including monthly in - house training and field training , in food

inspection. On average, h e conducts about five safety and

sanitation inspections of food - service establishments per day ,

and about 1000 inspections per year.

3 . China King is a licensed permanent public food - service

establishment operating at 4941 East Busch Boulevard, Suite 120,

in Tampa, Florida.

4 . T he o wner of China King , Mr. Chi Kin Chan, speaks very

little English . Representing the restaurant was Mr. ChanÓs

daughter, M s. Man Chan, who assists her father with the

restaurant. Under all of the circumstances , including the fact s

that M s . Chan helps operate the restaurant , de monstrated basic

knowledge of applicable statutes and rules , and demonstrated her

ability to capably a nd responsibly represent Respondent,

Ms. Chan was accepted as a Qualified Representative .

5 . China King was inspected by Mr. Peterson on August 25,

2010, and October 26, 2010 . The Administrative Complaint

alleged violations based upon these inspections, and testimony

and exhibits as to these violations were offered at hearing .

However, an earlier Administrative Complaint relating to these

inspections has already been settled, as discussed below . The

Stipulation and Consent Order in th e earlier case settled any

violations based upon these inspections , and no purpose is

served by delineating the details of those inspections here .

6 . On April 5, 2011 , Inspector Peterson conducted another

food service inspection on China King . Inspecto r Peterson

prepared a Food Service Inspection Report, DBPR Form HR 5022 -

01 5 , using h is Personal D ata Assistant (PDA) to record the

violations that he observed during the inspection. An operator

of the restaurant acknowledged receipt of the report on behalf

of China King .

7 . During the April inspection, M r . Peterson observed that

China King had ready - to - eat, potentially hazardous food prepared

on - site and held more than 24 hours that had not been properly

date - marked in the walk - in cooler , and noted this on his report.

8 . The Division has determined that lack of proper date

marking pose s a significant threat to the public health, safety,

or welfare , and has identified this as a critical violation on

DBPR Form HR - 5022 - 01 5 .

9 . M r . Peterson also observed during the April inspection

that China King was storing food on the floor in the cooks Ó line

and in the preparation area , and noted this on his report .

10 . The Division has determined that storing food on the

floor poses a significant threat to the public health, safety,

or welfare, and has identified this as a critical violation on

DBPR Form HR - 5022 - 01 5 .

11 . During the April inspection , M r. Peters on observed the

improper use of a plastic food container or other container with

no handle being used to scoop or dispense food that was not

ready - to - eat, and noted this on his report.

12 . The Division has determined that using containers

without handles to scoop or dispense food fails to minimize food

contact with bare hands , and poses a significant threat to the

public health, safety, or welfare . The Division has identified

this as a critical violation on DBPR Form HR - 5022 - 01 5 .

13 . On October 18, 2011, Mr. Peterson conducted another

inspection of China King. Inspector Peterson again prepared an

inspection report on DBPR Form HR 5022 - 01 5 using his PDA to

record the violations that he observed . An operator of the

restaurant acknowledged receip t of the report on behalf of China

King .

14 . During the October inspection, M r . Peterson again

observed ready - to - eat, potentially hazardous food prepared on -

site and held more than 24 hours that had not been properly

date - marked in the walk - in cooler , inc luding egg rolls, cooked

chicken, pork , and shrimp. He recorded this information in h is

report , along with a notation that it was a repeat violation.

15 . M r . Peterson also observed food stored on the floor in

the walk - in during his October inspection . He recorded this,

noting that it was a repeat violation.

16 . During the October inspection, Mr. Peterson observed

the improper use of a bowl or plastic foo d container without a

handle as a scoop to dispense non ready - to - eat foods such as

flour and st arch, as well as ready - to - eat foods such as salt and

sugar. He noted this in his report, along with a notation that

this was corrected on - site .

17 . Mr. Peterson also observed an employee with no hair

restraint during the October inspection. He noted this in his

report along with the fact that it was corrected while he was

on - site .

18 . On February 28, 2012, Mr. Peters on conducted a

stipulation call - back inspection, as well as a full inspection

of the China King.

1 9. A stipulation call - back inspectio n is an inspection

that is required as part of a stipulation which is conducted for

the limited purpose of determining whether specific violations

noted earlier have been corrected.

20 . Inspector Peterson prepared a Call Back Inspection

Report, DBPR Form HR 5022 - 005 , as well as DBPR Form HR 5022 - 015

on February 28, 2012 , using his PDA to record the violations

that he observed. An operator of the restaurant acknowledged

receipt of the reports on behalf of China King .

21 . On February 28, 2012, Mr. Peterson again observed that

ready - to - eat, potentially hazardous food that had been prepared

on - site and held more than 24 hours had not been date - marked.

He noted this in his report s .

22 . Mr. Peterson again observed food sto red on the floor

in the walk - in and cooksÓ line during his February inspection

and made note of this in his report s .

23 . Mr. Peterson again observed a can without a handle

being used to scoop rice on February, 28, 2012, as was noted in

his report s .

24 . Mr. Peterson also observed an employee without a hair

restraint during his February inspection, noting this in his

report s .

25 . In response to questioning from Respondent at hearing,

Inspector Peterson stated that he was familiar with the

description of the inspection process set out on the Division of

Hotels and RestaurantsÓ website. Inspector Peterson was aware

that these procedures state that an inspector will invite the

manager to accompany him on the inspection walk - through, and

that the inspector will go over each item on the inspection

report. Mr. Peterson testified that at each inspection he

advised persons at the restaurant of the violations and the need

to correct them.

26 . Mr. Chi Kin Chan, owner of China King, testified th at

Mr. Peterson did show his badge when he conducted the inspection

on February 28 , 2012, although he did not announce who he was.

Mr. Chan testified that Mr. Peterson just went through the

restaurant on his own and did not invite Mr. C han or anyone else

from the restaurant to accomp any him on his inspection.

Mr. C han testified that Mr. Peterson then just went to the front

of the restaurant and prepared his report without discussing any

of the alleged violations with Mr. C han or o perators of the

restauran t.

27 . Mr. Taoso Tevega is engaged to be married to Ms. Man

C han, and so is the prospecti ve son - in - law of Mr. Chan.

Mr. Tevega occasionally assists the Chan family with the

restaurant, but does not receive any paycheck from China King.

He works in the r eceiving department of Advance Auto Parts.

Mr. Tevega was present at China King during the February 28,

2012, inspection.

28 . Mr. Tevega testified that on February 28, 2012,

Inspector Peterson just showed up in the back of China King

without identifying himself and that he did not ask anyone to

accompany him as he went about the restaurant conduct ing his

inspection.

2 9. Mr. Tevega testified that Mr. Peterson did not discuss

or explain the violations to anyone , but just had Ms. Chan sign

the report .

30 . Mr. Peterson testified that he was in business casual

attire, with his employee identification tag secured from a

lanyard worn around his neck, and that he presented

identification before beginning each inspection.

31 . Mr. Peterso n identified himself by displaying his

badge before and during the February 28, 2012, inspection , as

testified to by Mr. Chan and Mr. Peterson .

32 . Mr. Peterson did not invite anyone to accompany him as

he conducted the inspection on February 28, 2012 , as Mr. Chan

and Mr. Tevega testified .

33 . Mr. Peterson advised operators at the restaurant of

the violations and the need to correct them , as he testified.

34 . The Division issued an A dministrative C omplaint

against China King for the above violatio ns on or about March 7 ,

2012 .

35 . Additional e vidence introduced at hearing showed that

China King had a previous disciplinary Final Order entered

within 24 month s of the Administrative C omplaint issued in this

case. That Stipulation and Consent Order was signed by China

King Manager Ko Chan on January 13, 2012 , and was filed on

January 24, 2012 . In the Order , China King agreed to pay a fine

of $ 9 0 0.00, but neither admit ted nor den ied the allegations of

fact contained in the Administrative Complaint . Some of those

allegations would have constituted critical violations .

36 . The January 24, 2012, Stipulation and Consent Order

was in settlement of an A dministrative C omplaint issued on

November 8 , 2010 . That Administrative Complaint a lleg ed

violations of the Food Code based upon inspections conducted on

August 25, 2010 , and October 26, 2010 , two of the inspections

for which testimony and documentary evidence was submitted in

this case , but which are discussed here only for penalty

purposes.

C ONCLUSIONS OF LAW

37 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

38 . Petitioner is given responsibility to inspect publ ic

food service establishment s to enforce the provisions of chapter

509 , Florida Statutes, (2011) 1/ pursuant to section

509.032(2)(c) .

3 9 . As a licensed public food - service establishment,

Respondent is subject to inspection and to the requirements of

chapter 509 and implementing rules.

40 . Petitioner has the burden of proof to show, by clear

and convincing evidence, that Respondent committed the acts

alleged in the Administ rative Complaint. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

41. Clear and convincing evidence has been defined as

requiring :

[ T ]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesi tancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) .

42 . Disciplinary actions may be based only upon those

offenses specifically alleged in the Administrative Complaint.

See Cottrill v. Dep ' t of Ins. , 685 So. 2d 1371 (Fla. 1st DCA

1996); Kinney v. Dep ' t of State , 501 So. 2d 129, 133 (Fla. 5th

DCA 1987); Hunter v. Dep ' t of Prof ' l Reg. , 458 So. 2d 842, 844

(Fla. 2d DCA 1984).

43 . S ection 509.032(2)(d) requires Petitioner to adopt and

enforce standards and requirements for obtaining, storing,

preparing, processing, serving , or displaying food to protect

the public from food - borne illness in public food service

establishments.

44 . Section 509.032(6) gives the Division authorit y to

adopt rules to carry out the provisions of chapter 509.

45 . The Division has adopted Florida Administrative Code

Rule 61C - 1.001(1 4 ) , which incorporates by reference various

provisions of the 2001 U. S. Food and Drug Administration Food

Code (Food Cod e) , including paragraph 1 - 201.10(B), all of

chapters 2 through 7 , Annex 3, Annex 5, the 2001 Food Code

Errata Sheet, and the Supplement to the 2001 FDA Food Code

( August 29, 2003).

46 . Food Code Section 3 - 501 . 17 is entitled " Ready - to - Eat,

Potentially Hazardous Food, Date Marking. " This section is

noted as a critical violation and provides in relevant par t :

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

this section, refrigerated, ready - to - eat,

POTENTIALLY HAZARDOUS FOOD prepared and held

in a FOOD ESTABL ISHMENT for more than 24

hours shall be clearly marked to indicate

the date or day by which the FOOD shall be

consumed on the PREMISES, sold, or

discarded, based on the temperature and time

combinations specified below:

(1) 5°C (41°F) or less for a maxim um of 7

days; or

( 2) 7°C (45°F) or between 5°C (41°F) and

7°C (45°F) for a maximum of 4 days in

existing refrigeration EQUIPMENT that is not

capable of maintaining the FOOD at 5°C

(41°F) or less if:

(a) The EQUIPMENT is in place and in use in

the FOOD ESTABLISHMENT, and

(b) Within 5 years of the REGULATORY

AUTHORITY'S adoption of this CODE, the

EQUIPMENT is upgraded or replaced to

maintain FOOD at a temperature of 5°C (41°F)

or less.

The day of preparation shall be counted as

Day 1.

* * *

(D) Paragraphs (A) and (B) of this section

do not apply to individual meal portions

served or rePACKAGED for sale from a bulk

container upon a CONSUMER'S request.

47 . The testimony of Inspector Peterson indicated that

Respondent had ready - to - eat, potentially hazardous food prepared

on - site and held more than 24 hours that had not been properly

date - marked in the walk - in cooler on Ap ril 5, 2011; October 18,

2011 ; and February 28, 2012 . Inspector Peterson is an

experienced and knowledgeable professional and hi s testimony is

credited. The reports prepared by Mr. Peterson at the time of

the inspection s corroborated his testimony . Respondent offered

no evidence to the contrary.

48 . Petitioner prove d by clear and convincing

evidence that Respondent violated Foo d Code Rule 3 -

501.17(A) , as incorporat ed by reference in rules of the

Division, on April 5, 2011; October 18, 2011 ; and

Februar y 28, 2012 .

4 9 . Food Code Section 3 - 30 5 .11 is entitled " Food Storage . "

This section is noted as a critical violation and p rovides:

(A) Except as specified in paragraphs

(B) and (C) of this section, FOOD shall be

protected from contamination by storing the

FOOD:

(1) In a clean, dry location;

(2) Where it is not exposed to splash,

dust, or other contamination; and

(3) At least 15 cm (6 inches) above the

floor.

(B) FOOD in packages and working containers

may be stored less than 15 cm (6 inches)

above the floor on case lot handling

EQUIPMENT as specified under section 4 -

204.122.

(C) Pressurized BEVERAGE containers, c ased

FOOD in waterproof containers such as

bottles or cans, and milk containers in

plastic crates may be stored on a floor that

is clean and not exposed to floor moisture.

50 . The testimony and admitted reports of Inspector

Peterson documenting that Respondent stored food on the floor in

the cooksÓ line and in the preparation area on April 5, 2011 , on

the floor in the walk - in cooler on October 18, 2011, and on the

floor in the walk - in cooler and cooksÓ line on February 28,

2012 , were clear and convinc ing and the reports were recorded at

the time of the observation. The DBPR Form HR - 5022 - 015

identified this violation as critical. No credible evidence to

the contrary was offered.

51 . Petitioner proved by clear and convincing evidence

that Respondent v iolated Food Code Rule 3 - 30 5 . 11, as

incorporated by reference in rules of the Division, on April 5,

2011 ; October 18, 2011; and February 28, 2012.

52 . Food Code Rule 3 - 30 1.11 , as revised in the Supplement ,

is entitled " Preventing Contamination from Hands . " This section

is noted as a critical violation and provides :

(A) Food EMPLOYEES shall wash their hands

as specified under § 2 - 301.12 .

(B) Except when washing fruits and

vegetables as specified under § 3 - 302.15 or

as specified in paragraph (C) of this

section , FOOD EMPLOYEES may not contact

exposed, READY - TO - EAT FOOD with their bare

hands and shall use suitable UTENSILS such

as deli tissue, spatulas, tongs, SINGLE - USE

gloves, or dispensing EQUIPMENT.

(C) When otherwise APPROVED , FOOD EMPLOYEES

n ot serving a HIGHLY SUSCEPTIBLE POPULATION

may contact exposed, READY - TO - EAT FOOD with

their bare hands.

(D) FOOD EMPLOYEES shall minimize bare hand

and arm contact with exposed FOOD that is

not in a READY - TO - EAT form.

53 . The testimony and admitted reports of Inspector

Peterson indicated that Respondent was using a plastic food

container or other container with no handle to scoop or dispense

food that was not ready - to - eat on April 5, 2011, and committed

similar violations on October 18, 2011, and Feb ruary 28, 2012.

While the rule does not absolute ly prohibit the touching of not

ready - to - eat food with bare hands, it does require that such

contact be minimized. The use of a metal can or plastic bowl

without a handle greatly increases the likelihood th at the food

will come in contact with bare hands. Respondent did not take

action to minimize this contact by utilizing a scoop or other

implement with a handle. Respondent offered no credible

evidence to the contrary .

54 . Petitioner proved by clear an d convincing evidence

that Respondent violated Food Code Rule 3 - 30 1 .1 1(D) , as

supplemented and incorporated by reference in rules of the

Division, on April 5, 2011, October 18, 2011, and February 28,

2012 .

55 . Food Code Rule 2 - 402.11 is entitled " Effectiveness. "

and provides:

( A) Except as provided in paragraph (B) of

this section, FOOD EMPLOYEES shall wear hair

restraints such as hats, hair coverings or

nets, beard restraints, and clothing that

covers body hair, that are designed and worn

to effe ctively keep their hair from

contacting exposed FOOD; clean EQUIPMENT,

UTENSILS, and LINENS; and unwrapped SINGLE -

SERVICE and SINGLE - USE ARTICLES.

(B) This section does not apply to FOOD

EMPLOYEES such as counter staff who only

serve BEVERAGES and wrappe d or PACKAGED

FOODS, hostesses, and wait staff if they

present a minimal RISK of contaminating

exposed FOOD; clean EQUIPMENT, UTENSILS, and

LINENS; and unwrapped SINGLESERVICE and

SINGLE - USE ARTICLES.

56 . The testimony and admitted reports of Inspector

P eterson indicated that on October 18, 2011 , and February 28,

2012, an employee of Respondent was observed with no hair

restraint, and that the violation was corrected on - site .

Respondent provided no evidence to refute hair restraint

violations on October 18, 2011 , or February 28, 2012.

57 . While Inspector Peterson also testified that he

observed an employee without a hair restraint on his April 5,

2011, inspection, this violation was not recorded on the report

prepared at the time of that inspection, and his testimony on

this point is discredited. His memory of the violations by

Respondent on that day may well be incorrect, especially given

the great number of inspections he performs and the fact that

failure to wear hair restraint s was a violation for Respondent

on other occasions.

58 . Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 2 - 402.11 , as

incorporated by reference in rules of the Division, on

October 18, 2011 , and February 28, 20 1 2 . As DBPR Form HR 5022 -

015 reflects, this is a not a critical violation.

5 9. Section 509.032(2)(c) provide s , Ð Public food service

establishment inspections shall be conducted to enforce

provisions of this part and to educate, inform, and promote

cooperation between the division and the establishment.Ñ

Inspector PetersonÓs failure to invite the manager to accompany

him on the inspection walk - through on February 28, 2012, may not

foster education and cooperation, but it does not affect the

other fi ndings or conclusions in this case. Respondent was

otherwise given complete notice of the findings of the

February 28, 2012, inspection .

60 . Section 509.261(1) provides that any public food

service establishment that operates in violation of chapter 5 09,

or implementing rules, is subject to fines not to exceed

$1 , 000.00 per offense, and the suspension or revocation of a

license.

61 . The Division has adopted r ule 61C - 1.005(6),

establishing disciplinary guidelines for the imposition of

penalties for vi olation s of the Food Code. It provides in

pertinent part :

(6) Standard penalties. This section

specifies the penalties routinely imposed

against licensees and applies to all

violations of law subject to a penalty under

c hapter 509, F.S. Any violation requiring

an emergency suspension or closure, as

authorized by c hapter 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 Administrative 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

date of the initial inspection and

continuing until the violation is corrected.

1. 1st offense - Administrative fine of

$250 to $500.

2. 2nd offense - Administrative fine of

$500 to $1,000.

3. 3rd and any subsequent offense -

Administrative fine of $750 to $1,000,

license suspension, or both.

62 . Rule 61C - 1.005(5)(a) provides that :

' C ritical violation ' means a violation

determined by the d ivision to pose a

significant threat to the public health,

safety, or welfare and which is identified

as a food borne illness risk factor, a

public health intervention, or critical in

DBPR Form HR - 5022 - 014 Lodging Inspection

Report or DBPR Form HR - 5022 - 015 Food Service

Inspection Report, incorporated by reference

in subsection 61C - 1.002(8), F.A.C., and not

otherwise identified in this rule.

63 . The v iolation s of Food Code Rule s 3 - 501 .1 7 (A) ,

3.305.11, and 3 - 301.11(D) were determined by Petitioner to pose

a significant threat to the public health, safety, or welfare

and were identified as critical on DBPR Form HR - 5022 - 01 5 , Food

Service Inspection Report. They were therefore critical

violations within the meaning of rule 61C - 1.005(a).

64 . The violation of Food Code Rule 2 - 402.11 is a non -

critical violation.

65 . Rule 61C - 1.00 5(5)( d ) defines " second and any

subsequent offense " to mean " a violation of any law subject to

penalty under c hapter 509, F.S., after one disciplinary Final

Order involving the same lic ensee ha s 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. "

66 . There is a Final Order in a disciplinary case

involving Respondent that w as filed within 24 months of the

Administrative Complaint issued in this case on March 7, 2012 :

Case N o. 2 012 - 055792 , filed January 24, 2012. This earlier

O rder involved allegations of both critical and non - critical

violations. The three critical violations and one non - critical

violation proven here are therefore " second and any subsequent

offenses " within the meaning of rule 61C - 1.005(e).

67 . As noted earlier, the Administrative Complaint

charged, and Petitioner presented evidence of , violations

occurring on August 25, 2010, and October 26, 2010. However,

the January 24, 2012, Stipulation and Consent Order was in

settlement of violations documented at these same inspections.

The August 25, 2010, and October 26, 2010, violations therefore

are not considered here as new offenses, but are considered only

for penalty purposes.

68 . In Kaplan v. DepÓ t of Health , 8 So. 3d 391 (Fla. 5 th

DCA 2009), it was held that prior discipline imposed as a result

of Stipulation a nd Consent Order co uld co nstitute a prior

offense for purposes of penalty calculation , even in the absence

of a specific finding of statutory violation. Respondent is ,

therefore , subject to an administrative fine of $ 500 to $1,000,

on each of the three cr itical violations and an administrative

fine of $250 to $500 on the non - critical violation .

6 9. In light of the earlier disciplinary order and the

several violations proven here, a fine of $750 for each of the

three critical violations and $3 75 for the non - critical

violation, for a total fine of $2 , 6 25 , is reasonable.

RECOMMENDATION

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED that t he Department of Bu siness and

Professional Regulation, Division of Hotels and Restaurants,

enter a Final Order f inding China King in violation of t hree

critical violations and one non - critical violation and imposing

a fine of $ 2 , 6 25 , to be paid within 30 calendar days of the

filing of the Final Order with the Agency Clerk.

DONE AND ENTERED this 11th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of December, 2012.

ENDNOTE

1/ All r eferences to statutes and rules are to the versions in

effect at the time of the alleged violations in April and

October of 2011 and February of 2012 , except as otherwise

indicated.

COPIES FURNISHED :

Robert Leroy Ehrhardt, Esquire

Department of Business and

Professional Regulation

Suite 14

1940 North Monroe Street

Tallahassee, Florida 32399

[e-mail]

Chi Kin Chan

China King

Suite 120

4941 East Busch Boulevard

Tampa, Florida 33617

William L. Veach, Director

Division of Hotels a nd Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.