12-002300 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Hong Yip Chinese Restaurant Status: Closed Recommended Order on Tuesday, November 6, 2012.

Summary: Respondent's third and subsequent critical violations of food safety requirements of chapter 509, F.S. and implementing administrative rules warrant three-day suspension of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, ) Case No. 12-2300

Petitioner, )

)

vs. )

)

HONG YIP CHINESE RESTAURANT, )

)

Respondent. )

)

)

RECOMMENDED ORDER

On September 17, 2012, a duly-noticed hearing was held in

Lake City, Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: He Dong, Qualified Representative

Hong Yip Chinese Restaurant

905 Southwest Main Boulevard, Suite 110

Lake City, Florida 32025

STATEMENT OF THE ISSUE

The issue in this case is whether on July 14, 2011, and

October 13, 2011, Respondent was in compliance with 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, what penalty is appropriate.

PRELIMINARY STATEMENT

On October 24, 2011, Petitioner filed an Administrative

Complaint 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 July 3, 2012.

The case was noticed for hearing on September 17, 2012, in

Lake City, Florida. Owner of Respondent, Mr. Dong Jia Qi, who

speaks very little English, was not present. Representing the

restaurant was Mr. He Dong, manager of the restaurant, and son

of the owner. Petitioner presented the testimony of two

witnesses, Ms. Jessica Gabbard and Ms. Judy Hentges, both

employees of Petitioner, and offered ten exhibits. Petitioner's

Exhibits P-1 through P-9 were admitted without objection.

Petitioner's Exhibit P-10 was a Final Order issued by an agency

Hearing Officer against Hong Yip Restaurant and filed on or

about December 2, 2011. It was offered only for consideration

of penalty. However, it had not been provided to Respondent by

Petitioner seven days prior to hearing as required by the Order

of Pre-Hearing Instructions, and it was excluded at hearing and

not considered in the preparation of this order. Mr. Dong

testified but offered no exhibits. During the course of the

hearing, based on testimony by Petitioner's witnesses and

Mr. Dong, Petitioner indicated it did not wish to continue with

two charges originally set forth in the Administrative

Complaint. The hearing continued on the remaining four

allegations of the complaint.

The Transcript was filed with the Division on October 11,

2012. Petitioner timely submitted a Proposed Recommended Order,

which was considered.

FINDINGS OF FACT

1. The Division of Hotels and Restaurants (Division) 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. Ms. Jessica Gabbard has been employed as a Sanitation

and Safety Specialist with the Division for two years. She

previously worked for the Department of Agriculture in the

Bureau of Animal Disease Control for about eight years. She has

had training, including monthly in-house training and field

training in food inspection. She conducts between 600 and 800

inspections of food service establishments for safety and

sanitation each year.

3. Ms. Judy Hentges is a Senior Sanitation and Safety

Specialist with the Division, where she has been employed for 12

years. She also has had training in food inspection, and

conducts between 800 and 1000 inspections of food service

establishments each year.

4. Respondent is licensed as a permanent public food-

service establishment operating as the Hong Yip Chinese

Restaurant at 905 Southwest Main Boulevard, Lake City, Florida.

5. As the hearing began, it became apparent that the owner

of Respondent, Mr. Dong Jia Qi, who speaks very little English,

was not present. Representing the restaurant was Mr. He Dong,

manager of the restaurant, and son of the owner. Mr. Dong was

present during the inspections that are the subject of this

proceeding, interacted with Petitioner's agents on those

occasions, and signed the inspection reports. Under all of the

circumstances, including the fact that Mr. Dong demonstrated

both knowledge of the applicable statutes and rules and the

ability to capably and responsibly represent Respondent,

Mr. Dong was accepted as both a Qualified Representative and as

a witness.

6. On July 14, 2011, Inspector Hentges conducted a food

service inspection on Respondent. Inspector Hentges prepared an

inspection report on her Personal Data Assistant (PDA) setting

forth the violations that she observed during the inspection.

7. During her July inspection, Ms. Hentges observed that

Respondent was using dry, powdered food products that had been

removed from their original containers and that the products'

substitute working containers were not labeled with their common

names.

8. Storage of dry, powdered food products in unmarked

working containers can cause mistakes in preparation that can be

serious to consumers due to product allergies.

9. The Division has determined such storage in working

containers poses a significant threat to the public health,

safety, or welfare, and has identified this as a critical

violation on the DBPR Form HR-5022-015, Food Service Inspection

Report.

10. Ms. Hentges observed during the July inspection that

Respondent was storing rice and onions in uncovered containers

in the walk-in cooler. DBPR Form HR-5022-015, Food Service

Inspection Report, indicates that this is a critical violation.

11. Uncovered containers can lead to food contamination by

particles, by debris, and by microbes, and the Division of

Hotels and Restaurants has determined that this constitutes a

significant threat to the public health, safety and welfare.

12. During the July inspection, Ms. Hentges observed a

rice scoop on the buffet which was stored in standing water that

was less than 135 degrees Fahrenheit, and noted this on the

report.

13. During the July inspection, Ms. Hentges also observed

that a wet cloth used for wiping food spills from equipment

surfaces was sitting on the counter and was not stored between

uses in a chemical sanitizing solution, and noted this in her

report. Wet wiping cloths can be breeding grounds for pathogens

that can transfer to food.

14. On October 13, 2011, Ms. Gabbard conducted a callback

inspection on Respondent. She prepared a handwritten report on

DBPR Form HR 5022-015 setting forth violations that she

observed.

15. Ms. Gabbard testified that she observed powdered food

products at the cooking preparation line that had been removed

from their original containers and placed in working containers

not marked with their common names. She recorded this

information in her report.

16. Mr. Dong testified that he had corrected the labeling

problem on the "big bucket" that stored the sugar, cornstarch,

salt, and flours that had been written up in the July

inspection. Mr. Dong testified that on the callback inspection

the problem was written-up because of different products found

in another area, on top of the reach-in cooler, in a see-through

container containing peanuts, sesame seed, cashew nuts, and

another Chinese product that is a dried root.

17. Ms. Gabbard testified in cross-examination that she

did not remember any nuts. Her report indicates "all powdered

food products." The report further indicates this violation was

"at cookline prepline." Ms. Gabbard's testimony is credited.

18. The unlabeled products Ms. Gabbard observed and noted

in her violations report were powdered products at the cookline

that could easily be confused, not foods that could be easily

and unmistakably recognized, such as peanuts, cashews, and

sesame seeds on top of the reach-in cooler.

19. Ms. Gabbard observed uncovered rice and onions in the

walk-in cooler. She recorded this in her report. Mr. Dong

provided no contradictory testimony at hearing. Respondent did

testify that that the film he used to cover the rice and onions

did not stick on the aluminum containers used to store the food.

20. Ms. Gabbard observed a rice scoop at the buffet that

was being kept in standing water which was less than 135 degrees

Fahrenheit, noting this fact in her report. She took the

temperature of the water and recorded that it was 45 degrees

Fahrenheit. Mr. Dong testified that that they always keep ice

in the water to keep it below 41 degrees Fahrenheit. He

testified that the water had just been changed so that the ice

may have just melted, though he thought ice was still present.

He acknowledged that the water was 45 degrees Fahrenheit as

measured with the thermometer. Mr. Dong's testimony that he

recently put ice in the container is credible, and the

temperature of the water would have been room temperature if

this had not been done. The water in which the rice scoop at

the buffet line was being stored was 45 degrees Fahrenheit.

21. Ms. Gabbard also observed wet wiping cloths that were

not being stored in sanitizing solution between uses, but were

located in multiple locations on the counter. She recorded this

in her report at the time of the inspection. Mr. Dong admitted

the violation at the time of the July inspection. He testified

that at the time of the callback inspection in October he was

using one cloth and the rest were not in use, but had been

cleaned and were hanging on the table to dry.

22. In response, Ms. Gabbard testified that there were

multiple cloths around the restaurant laying on the counter.

Her testimony was corroborated by her inspection report,

prepared at the time of the inspection, which noted, "[o]bserved

wet wiping cloth not stored in sanitizing solution between uses.

Repeat violation. Located in multiple locations on counter."

Mr. Dong's testimony on this violation was less credible than

Inspector Gabbard's, and her testimony is credited. The wet

wiping cloths had not been cleaned, but had been used, and were

not being stored between uses in a chemical sanitizer.

23. Petitioner issued an Administrative Complaint against

Respondent for the above violations on October 24, 2011.

24. Additional evidence introduced at hearing showed that

Respondent has had five previous disciplinary Final Orders

entered within 24 months of the Administrative Complaint issued

in this case. In the first Stipulation and Consent Order,

signed by Mr. Dong on October 20, 2009, and filed on December 3,

2009, Respondent agreed to pay a fine of $500.00, but did not

admit nor deny the allegations of fact contained in the

Administrative Complaint, which would have constituted critical

violations.

25. In the second Stipulation and Consent Order, signed by

Mr. Dong on January 8, 2010, and entered on March 2, 2010,

Respondent agreed to pay a fine of $650.00, but again did not

admit or deny the allegations of fact contained in the

Administrative Complaint, some of which would have constituted

critical violations.

26. In the third Stipulation and Consent Order, signed by

Mr. Dong on an unknown date, and entered on May 31, 2011,

Respondent agreed to a suspension of the Division of Hotels and

Restaurants license for one day. Respondent did not admit or

deny the allegations of fact contained in the Administrative

Complaint, which would have constituted critical violations.

27. In the fourth Stipulation and Consent Order, signed by

Mr. Dong on an unknown date, and entered on May 31, 2011,

Respondent agreed to a suspension of the Division of Hotels and

Restaurants license for one day. Respondent did not admit or

deny the allegations of fact contained in the Administrative

Complaint, which would have constituted a critical violation.

28. In the fifth Stipulation and Consent Order, signed by

Mr. Dong on an unknown date, and entered on May 31, 2011,

Respondent agreed to a suspension of the Division of Hotels and

Restaurants license for one day. Respondent did not admit or

deny the allegations of fact contained in the Administrative

Complaint, which would have constituted critical violations.

CONCLUSIONS OF LAW

29. 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.

30. Petitioner is given responsibility to inspect public

food service establishments to enforce the provisions of chapter

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

509.032(2)(c).

31. As a licensed public food-service establishment,

Respondent is subject to inspection and to the requirements of

chapter 509 and implementing rules.

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

and convincing evidence, that Respondent committed the acts

alleged in the Administrative Complaint. Ferris v. Turlington ,

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

33. 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 hesitancy, as to the

truth of the allegations sought to be

established.

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

34. 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).

35. During the course of the hearing, based on testimony

by Petitioner's witnesses and Mr. Dong, Petitioner indicated

that it did not wish to pursue charges 2 and 6 as set forth in

the Administrative Complaint. Charge 2 alleged that Respondent

had violated section 3-501.16(A) of the Food Code by holding

chicken and shrimp at 45 degrees Fahrenheit in the reach-in

cooler and holding pork and chicken at 44 degrees Fahrenheit in

the walk-in cooler. Charge 6 alleged that Respondent had

violated section 5-205.15 of the Food Code by not maintaining a

plumbing system in good repair. The Department declined to

present any further evidence as to these two charges. Charges 2

and 6, as outlined above, were not proved by clear and

convincing evidence and should be dismissed. Only the four

remaining charges are considered here.

36. Section 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.

37. Section 509.032(6) gives the Division authority to

adopt rules to carry out the provisions of chapter 509.

38. The Division has adopted Florida Administrative Code

Rule 61C-1.001(13), which incorporates by reference various

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

Code (Food Code), 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).

39. Food Code Section 3-302.12 is entitled "Food Storage

Containers, Identified with Common Name of Food." This section

is noted as a critical violation and provides:

Working containers holding FOOD or FOOD

ingredients that are removed from their

original packages for use in the FOOD

ESTABLISHMENT, such as cooking oils, flour,

herbs, potato flakes, salt, spices, and

sugar shall be identified with the common

name of the FOOD except that containers

holding FOOD that can be readily and

unmistakably recognized such as dry pasta

need not be identified .

40. The testimony of Inspectors Gabbard and Hentges,

indicated that Respondent had working containers of dry powdered

food products that had been removed from their original

containers and were not identified by their common name on both

July 14, 2011, and October 13, 2011. Inspectors Gabbard and

Hentges are experienced and knowledgeable professionals and

their testimony is credited. The written reports prepared by

these inspectors and the time of the inspection corroborated

their testimony.

41. Petitioner proved by clear and convincing

evidence that Respondent violated Food Code Rule 3-302.12,

as incorporated by reference in rules of the Division, on

July 14, 2011, and October 13, 2011.

42. Food Code Section 3-302.11 is entitled "Packaged and

Unpackaged Food - Separation, Packaging, and Segregation." This

section is marked as a critical violation, and provides in

relevant part:

(A) FOOD shall be protected from cross

contamination by:

* * *

(4) Except as specified in paragraph (B) of

this section, storing the FOOD in packages,

covered containers, or wrappings . . ..

43. The testimony and admitted reports of Inspectors

Gabbard and Hentges documenting Respondent's storing of rice and

onions in uncovered containers in the walk-in cooler on July 14,

2011, and October 13, 2011, were clear and convincing and the

reports were recorded at the time of the observation. The DBPR

Form HR-5022-015 of each inspector identified this violation as

critical. Mr. He Dong offered no credible evidence to the

contrary.

44. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 3-302.11, as

incorporated by reference in rules of the Division, on July 14,

2011, and had not corrected the violation on October 13, 2011.

45. Food Code Rule 3-304.12, as revised in the Supplement,

is entitled "In-Use Utensils, Between-Use Storage" and provides:

During pauses in FOOD preparation or

dispensing, FOOD preparation and dispensing

UTENSILS shall be stored:

(A) Except as specified under paragraph (B)

of this section, in the FOOD with their

handles above the top of the FOOD and the

container;

(B) In FOOD that is not POTENTIALLY

HAZARDOUS with their handles above the top

of the FOOD within containers or EQUIPMENT

that can be closed, such as bins of sugar,

flour, or cinnamon;

(C) On a clean portion of the FOOD

preparation table or cooking EQUIPMENT only

if the in-use UTENSIL and the FOOD-CONTACT

surface of the FOOD preparation table or

cooking EQUIPMENT are cleaned and SANITIZED

at a frequency specified under §§ 4-602.11

and 4-702.11;

(D) In running water of sufficient velocity

to flush particulates to the drain, if used

with moist FOOD such as ice cream or mashed

potatoes;

(E) In a clean, protected location if the

UTENSILS, such as ice scoops, are used only

with a FOOD that is not POTENTIALLY

HAZARDOUS; or

(F) In a container of water if the water is

maintained at a temperature of at least 57°C

(135°F) and the container is cleaned at a

frequency specified under Subparagraph 4-

602.11(D)(7).

46. The testimony and admitted reports of Inspectors

Gabbard and Hentges indicated that a rice scoop on the buffet

was stored in standing water that was less than 135 degrees

Fahrenheit on July 14, 2011, and October 13, 2011. Mr. Dong

offered no testimony showing that the rice scoop was stored in

any fashion authorized by the Food Code, but corroborated the

inspectors' statements with his testimony describing that, in

the interest of food safety, he routinely placed ice in the

water. Ms. Gabbard's testimony and report indicate that the

temperature of the water was 45 degrees.

47. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 3-304.12, as

incorporated by reference in rules of the Division, on July 14,

2011, and had not corrected the violation on October 13, 2011.

48. Food Code Rule 3-304.14 is entitled "Wiping Cloths,

Use Limitation" and provides in paragraph B:

(B) Cloths used for wiping FOOD spills

shall be:

(1) Dry and used for wiping FOOD spills

from TABLEWARE and carry-out containers; or

(2) Wet and cleaned as specified under

paragraph 4-802.11(D), stored in a chemical

sanitizer at a concentration specified in §

4-501.114, and used for wiping spills from

FOOD-contact and non-FOOD-CONTACT SURFACES

of EQUIPMENT.

49. The testimony and admitted reports of Inspectors

Gabbard and Hentges indicated that a wet wiping cloth used for

wiping food spills from equipment surfaces was not stored

between uses in a chemical sanitizing solution on July 14, 2011,

and October 13, 2011. Several dirty cloths were found at

various locations on the counter during the October inspection.

This conclusion is supported by testimony and by the Food

Service Inspection Report which was prepared at the time of the

inspection.

50. Petitioner proved by clear and convincing evidence

that Respondent violated Food Code Rule 3-304.14, as

incorporated by reference in rules of the Division, on July 14,

2011, and had not corrected the violation on October 13, 2011.

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

service establishment that operates in violation of chapter 509,

or implementing rules, is subject to fines not to exceed

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

license.

52. The Division has adopted rule 61C-1.005(6),

establishing disciplinary guidelines for the imposition of

penalties for violations 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

chapter 509, F.S. Any violation requiring

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 – Administrative fine of

$150 to $300.

2. 2nd offense – Administrative fine of

$250 to $500.

3. 3rd and any subsequent offense –

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.

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

'Critical violation' means a violation

determined by the division 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.

54. The violations of Food Code Rule 3-302.12 and Food

Code Rule 3.302.11(A)(4) were determined by Petitioner to pose a

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

were identified as critical on the DBPR Form HR-5022-015, Food

Service Inspection Report. They were therefore critical

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

55. 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."

56. Final Orders in five disciplinary cases involving

Respondent that were filed within 24 months of the

Administrative Complaint issued in this case on November 12,

2011, were accepted into evidence: Case No. 2009049594, filed

December 3, 2009; Case No. 2009065228, filed March 2, 2010; Case

No. 2010022141, filed May 31, 2011; Case No. 2011004215, filed

May 31, 2011; and Case No. 2011014672, filed May 31, 2011. Each

of these earlier orders involved allegations of one or more

critical violations. The two critical violations proven here

are therefore "third and any subsequent offenses" within the

meaning of rule 61C-1.005(e). In Kaplan v. Department of

Health , 8 So. 3d 391 (Fla. 5th DCA 2009), it was held that prior

discipline imposed as a result of Stipulation and Consent Order

could constitute 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 $750 to $1,000, license suspension, or

both, on the two critical violations alone.

RECOMMENDATION

Upon consideration of the above 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:

1. Dismissing Counts 2 and 6 of the Administrative

Complaint and

2. Finding the Hong Yip Chinese Restaurant in violation of

two critical and two non-critical violations and suspending its

license for three consecutive days beginning the first Monday

after 40 days from the date the final order becomes effective.

DONE AND ENTERED this 6th day of November, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of November, 2012.

ENDNOTE

1/ All references to statutes and rules are to the versions in

effect in 2011, the time of the alleged violations, except as

otherwise indicated.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399-2202

He Dong

Hong Yip Chinese Restaurant

Suite 110

905 Southwest Main Boulevard

Lake City, Florida 32025

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.