STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
DIVISION OF HOTELS AND )
RESTAURANTS, )
)
Petitioner, )
)
vs. ) Case No. 07-1699
)
PEKING TOKYO BUFFET, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on May 23, 2007, by video teleconference with connecting sites in Lauderdale Lakes and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of
Administrative Hearings.
APPEARANCES
For Petitioner: Elizabeth Duffy, Esquire
Charles F. Tunnicliff, Esquire Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-2202
For Respondent: Ping Lin, pro se
Peking Tokyo Buffet
1219 South Federal Highway Deerfield Beach, Florida 33441
STATEMENT OF THE ISSUE
The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
PRELIMINARY STATEMENT
The Department of Business and Professional Regulation, Division of Hotels and Restaurants, hereinafter Department, issued an Administrative Complaint against Peking Tokyo Buffet, hereinafter Peking, dated September 14, 2006. The Department charged Peking with violating Food Code Rules 3-501.17(A),
3-202.18, 3-402.12, 3-501.16(A), 3-501.13, 3-305.12,
3-302.11(A)(1), 3-305.11, 3-302.11(A)(4), 4-301.11, 4-501.11,
4-501.11(A) and (B), 4-501.114(A), 3-304.14(B)(2), 4-601.11(A),
4-601.11(C), 4-602.13, 6-501.111, 6-201.13 and with violating
the National Fire Protection Association Safety Code, Section 96, 6.2.3.3; totaling 20 violations. Peking disputed the material allegations of fact and requested a hearing. On April 13, 2007, this matter was referred to the Division of Administrative Hearings.
At hearing, the Department presented the testimony of three witnesses and entered six exhibits (Petitioner’s Exhibits numbered 1-4, 6, and 7) into evidence.1 Peking presented the testimony of one witness, Mr. Lin who testified on his own behalf, and entered no exhibits into evidence. The undersigned
took official recognition of Section 509.261, Florida Statutes; Food Code Rules 2-401.11, 3-301.11(B), 3-302.11(A)(4), 3-303.11,
3-304.12(A), 3-304.16(A), 3-305.11, 3-306.11, 3-510.13,
3-501.17(B), 4-602.11(E), 5-205.11(B), 6-201.11, and 6-301.14;
and Florida Administrative Code Rules 61C-1.004(2)(C), (6) and (11) and 61C-4.023(1).
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on July 9, 2007. The Department timely filed its post-hearing submission. Peking did not file a post-hearing submission. The Department’s post-hearing submission has been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Peking was licensed as a public food service establishment in the State of Florida by the Department, having been issued license type 2010 and license number 1619357.
At all times material hereto, Peking was located at 1219 South Federal Highway, Deerfield Beach, Florida 33441.
Critical violations in food service are considered to be violations that, if not corrected, are more likely, than other violations, to lead to or to cause an imminent food-borne
illness, contamination, or environmental health hazard. Non- critical violations are considered to be violations that are not directly related to or not likely to lead to or cause an imminent food-borne illness, contamination, or environmental health hazard but, if not corrected, may weaken or hinder the food safety program of an establishment (restaurant) and may lead to or become critical violations. At hearing, the Department’s inspectors testified to “critical violations” and to “violations.” An inference is drawn and a finding of fact is made that all violations not testified to as critical violations are non-critical violations.
On September 6, 2006, Larry Torres, an inspector with the Department, conducted an inspection of Peking. Accompanying Mr. Torres was another inspector with the Department, Nicolette Earp. During the inspection, Mr. Torres found violations and prepared a food inspection report on his PDA, which is a small computer, setting forth the violations and a call-back inspection date, i.e., return inspection date, of September 7, 2006. Four violations were specifically indicated with a call- back inspection date of September 7, 2006. He and Ms. Earp reviewed the inspection report with Peking’s general manager, Ping Lin. They informed Mr. Lin of the violations and the call- back inspection date, i.e., return inspection date, to verify compliance, i.e., to verify that the violations had been
corrected. The inspection report was signed by Mr. Torres, Ms. Earp, and Mr. Lin.
On September 7, 2006, Mr. Torres and Ms. Earp returned to Peking for the call-back inspection. A food inspection call- back report was prepared on the PDA, reviewed with Mr. Lin, and signed by Mr. Torres and Mr. Lin. Violations were found at the call-back inspection: two of the four violations with a specific call-back date of September 7, 2006, remained uncorrected, were considered by the inspectors to be critical violations, and were recommended for an administrative complaint; the remaining violations were recommended for an extension, with a call-back inspection date of October 6, 2006.
The most serious alleged uncorrected violation on September 7, 2006, was 03A-07-12: Potentially hazardous food stored at a temperature of greater than 41 degrees Fahrenheit. The food was sushi and it was stored at 60 degrees Fahrenheit. The inspectors considered this alleged violation to be a critical violation because, if the food is not maintained at the proper temperature, which is not greater than 41 degrees Fahrenheit, the bacterial content grows exponentially, with the bacteria, thus, causing food-borne illness. The inspectors’ testimony on this subject is found to be credible and clear and convincing.
The next serious alleged uncorrected violation on September 7, 2006, was 04-01-1: The cold holding equipment, i.e., the sushi cooler, was incapable of maintaining potentially hazardous food at the proper temperature, which is again not greater than 41 degrees Fahrenheit. The inspectors considered this alleged violation to be a critical violation because, if the food is not maintained at the proper temperature, the bacterial content grows exponentially, and the bacteria could contribute to food-borne illness. Again, the inspectors’ testimony is found to be credible and clear and convincing.
On October 18, 2006, Ms. Earp conducted a call-back inspection at Peking on the remaining violations. Ms. Earp was accompanied by another inspector, Terrance Diehl. A call-back inspection report was prepared by Ms. Earp’s on her PDA. The report was signed by Ms. Earp, Mr. Diehl, and Peking’s assistant manager, Hui Stanley Lin, who is Mr. Ping Lin’s brother;
Mr. Ping Lin was not present at Peking. Uncorrected violations were found at the call-back inspection and were recommended for an administrative complaint.
The alleged uncorrected violations found on October 18, 2006, were numerous. They will be subsequently addressed in descending order of seriousness as found by the inspectors, with the most serious alleged violation being addressed first.
The most serious alleged violation was 8A-16-1: Food was stored in prohibited areas by reusing opened tin cans to store food, i.e., reusing the original tin cans in which food was packaged to store the food, and by using nonfood grade containers, in the case at hand shopping bags, to hold shrimp and dumplings. This alleged violation was considered by the inspectors to be a critical violation. As to reusing the opened tin cans to store food, once the tin cans are opened, they begin to oxide and rust; and, if food is kept in such containers, the rust contaminates the food inside the can and can cause food- borne illness and, therefore, is harmful for public consumption. As to using nonfood grade containers to hold shrimp and dumplings, the shopping bags have print on them and the ink from the print can leach into the food stored within the bags, contaminating the food, which could, therefore, be harmful for public consumption; thus, food grade containers should be used, which do not leach chemicals into the food. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 8A-23-1: Observed improper vertical separation of raw animal foods and ready-to- eat foods in the walk-in freezer. Chicken was the raw animal food and beef was the ready-to-eat food. This alleged violation was considered to be a critical violation by the inspectors. The pathogen in chicken is salmonella, which requires a cooking
temperature of 165 degrees to kill the pathogen. The beef in this case was ready-to-eat. With the chicken being stored over the beef, drippings from the chicken could fall on the beef and the beef, therefore, would not be subjected to a “kill cycle.” Even if the beef was raw, beef only has to be cooked at a minimum temperature of 145 degrees and, therefore, cooking the beef at 145 degrees would not kill the pathogen in the chicken. Thus, if the public consumed the contaminated beef, such consumption could cause a food-borne illness. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 8A-28-1: Observed food stored on the floor in the walk-in freezer. This alleged violation was considered to be a critical violation by the inspectors. Debris, dust, and chemicals may be on the floor and may get on the food. To prevent contamination of the food from the debris, dust, and chemicals, the food needs to be stored six inches off the floor in a durable, nonabsorbent container. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 8A-29-1: Observed uncovered food in the dry storage area, walk-in freezer. This alleged violation was considered to be a critical violation by the inspectors. A walk-in freezer and cooler are used for long- term storage. Dust and debris from the fan guards, the ceiling,
and other areas in the walk-in freezer and cooler could get on the uncovered food and, therefore, has the potential for cross- contamination. Even though the inspectors believed the uncovered food to be egg rolls, not spring rolls, the potential for cross-contamination exists and remains regardless of the identity of the uncovered food.3 The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 35A-8-1: Observed live flies in the kitchen and ants in the storage room. This alleged violation was considered to be a critical violation by the inspectors. Flies carry bacteria, primarily shigella, on the hairs of their feet, and every time a fly lands, the bacteria is carried onto the food contact surface and onto the food. The shigella can make a human being very ill, so it is dangerous for human beings. Also, when a fly lands, it regurgitates, including regurgitating on the surface where the food may be located. Furthermore, when a fly is about to eat, the fly regurgitates its digestive juices on food and sucks the food into its system for digestion. The regurgitation on the food contact surface and the food could be harmful to human beings. As to ants, whatever ants walk on or through, such as contaminants on the floor and juices from raw chicken, they carry with them and can transfer such contaminants or juices to food to the food contact surfaces in the kitchen and food
preparation areas. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 20A-10-1: The dish machine chlorine sanitizer was not at the proper minimum strength. This alleged violation was considered to be a critical violation by the inspectors. When the chlorine content was measured using a litmus paper test, the dish machine was found to have zero parts per million, or no sanitizer. The dish washing process is a four-step process: wash, rinse, sanitize, and air dry. Without the proper sanitized strength, bacteria from the leftover food that is on the plates and utensils is not killed, resulting in illness. Further, without the proper sanitized strength, the potential viruses and bacteria from one customer could be transferred to another customer, resulting in cross-contamination between guests. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 6-04-1: Observed potentially hazardous food thawed at room temperature. This alleged violation was considered to be a non-critical violation by the inspectors. Thawing at room temperature was the improper thawing method to use. The proper thawing method to use for frozen food was to constantly run water through the cooking process or to place under refrigeration at 41 degrees or below. By thawing frozen food at room temperature, the improper method,
the potential for an increase in bacterial growth exists, which can be passed on to consumers, causing illness to customers due to food contamination. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 2-5-1: Observed ready- to-eat, potentially hazardous food, which was prepared on-site and frozen, not properly date-marked. The food was egg rolls and meats in the walk-in freezer; however, whether the food is egg rolls or spring rolls makes no difference.4 This alleged violation was considered to be a non-critical violation by the inspectors. The concern in this violation was time and temperature. The bacteria Listeria monocytogenes, the main focus here, is not killed at freezing temperatures and can still grow, but temperature and time are used to control the opportunity for its growth: freezing temperature slows its growth and time does not extend beyond seven days. Once the food is prepared, the food should be stored at 41 degrees or below; and the standard procedure is for the food to be discarded after seven days. The day of preparation is considered the first day; but, without a date mark, the operator does not know when to discard the food and no way exists to monitor as to whether the operator is discarding the food after seven days. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 2-19-1: No tags on fresh shellfish in the walk-in freezer. This alleged violation was considered to be a non-critical violation by the inspectors. A tag is necessary to make sure that the shellfish has come from an approved source and harvest point and not from a contaminated source. Further, in the event of a food-borne investigation, the Department can refer back to the tags to determine the source of the illness. The inspectors’ testimony is found to be credible. Mr. Lin testified that the shellfish, i.e., oysters, come in 50-pound boxes, with approximately 200 oysters in each box; that the boxes have tags on them and the original tags are not removed; that Peking removes as many oysters as that are estimated to be needed for the day and stores the removed oysters in the walk-in freezer, without tags; and that no additional tags are available to place on the oysters stored in the walk-in cooler. Mr. Lin’s testimony is found to be credible. The evidence presented by the Department has met the standard of a preponderance but not clear and convincing evidence.
The next alleged violation was 2-27-1: Failure to maintain freezing records on nonexempt fish for 90 days. No freezing records were available for sushi fish. This alleged violation was considered to be a non-critical violation by the inspectors. The records are needed for food-borne illness
investigation and for parasitic destruction. Sushi fish that is not frozen by the purveyor must be frozen by the operator for seven days for at least minus 4 degrees to kill parasites.
Without the freezing records, the date of the freezing is not known and whether the sushi fish has received the proper freezing for parasitic destruction is not known. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 22-27-1: Observed encrusted soiled material on the slicer. This alleged violation was considered to be a non-critical violation by the inspectors. Bacteria can grow on food left behind on the slicer, and the potential exists that, when new food is sliced, the bacteria will cross over to the new food being sliced. If ready-to-eat food is being sliced, the slicer should be cleaned, i.e., washed rinsed, and sanitized, at least every four hours. If raw food is being sliced, the slicer should be cleaned after the slicing of each raw food. If the slicer is not being used during the day, the slicer should be cleaned as soon as its use for that day comes to an end. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 14-33-1: Observed equipment in poor repair – shelves in the reach-in cooler on the cook line were rusted. This alleged violation was considered to
be a non-critical violation by the inspectors. Food on the cooking line is deemed to be for immediate service and is, therefore, not required to be covered. Rust from the shelves can flake off and contaminate the uncovered food. Food, contaminated by rust, consumed by a consumer can cause illness. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 15-28-1: Hood filters were not tightly fitting and not firmly held in place but left an open space. This alleged violation was considered to be a non-critical violation by the inspectors. When cooking, grease and vapors from the grease can accumulate between the open space and cover the space behind the filters. In the event of a flare-up and fire from cooking, the fire would travel through the same open space and ignite the grease behind the filters, which could burn the roof and destroy the establishment and any other adjoining establishment. Even though such hoods have a suppression system, no suppression system is behind the filters. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 15-31-1: Observed nonfood contact equipment in poor repair. The equipment was the torn and ripped inside screen on the door, rusty shelves in the dry storage and walk-in coolers, and a toilet lid damaged in the
employees’ bathroom. This alleged violation was considered to be a non-critical violation by the inspectors. The door had two screens, an outside screen and an inside screen; the torn and ripped inside screen on the door allowed flies to enter the kitchen. The outside screen on the door was in good repair but was not of the proper mesh; and, although the outside screen on the door was not of the proper mesh, which allowed flies to come-in, the inspectors were more concerned with the inside screen on the door, which allowed flies to enter the kitchen.
Even though Mr. Lin testified that he did not know which screen was being referred to, he admitted that the inside screen was in poor repair. The rusty shelves could potentially cause rust to fall on food and the contaminated food consumed by consumers could cause illness. The broken toilet lid in the employees’ bathroom prevented employees from using the bathroom. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 21-12-1: Wet wiping cloths not stored in a sanitizing solution between uses. This alleged violation was considered to be a non-critical violation by the inspectors. The wiping cloths contain a sanitation solution. When the wiping cloths are left out in the open air, the sanitation solution in the cloths dissipates and bacteria could multiply on the cloths; as a result, when the clothes are
used to wipe food contact surfaces, the clothes do not sanitize the food contact surfaces, but, instead, spread bacteria on and cross-contaminate the food contact surfaces. The wiping cloths need to be stored in a sanitizing solution between uses.
Mr. Lin testified that the observed cloths were not wiping cloths but were cloths used as “a hot pan handler” to remove hot pans from the oven. The undersigned does not find it reasonable to use wet cloths, instead of dry cloths, to remove hot pans from the oven. Mr. Lin’s testimony is not found to be credible. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 23-6-1: Observed buildup of food, debris, dust, and dirt on nonfood contact surface. The nonfood contact surface was the mop sink area located outside the back door of the kitchen. This alleged violation was considered to be a non-critical violation by the inspectors. If the area where the mops are cleaned contains food, debris, dust, or dirt, the mops are not being cleaned. The contamination of food, debris, dust, and dirt is brought back into the kitchen and may contaminate the food preparation area and food. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 23-7-1: Observed gaskets with slime and mold-like buildup on the walk-in freezer
door. This alleged violation was considered to be a non- critical violation by the inspectors. The required standard is that all food surfaces must be clean to sight and touch. The walk-in freezer is a food storage area, and, as a result, the walk-in freezer door, with its slime and a mold-like buildup, was near food and food contact surfaces. The slime and mold- like buildup could cross contaminate food, which could cause illness to consumers. The inspectors’ testimony is found to be credible and clear and convincing.
The next alleged violation was 36-8-1: Observed floor and wall junctures not coved in the dry storage area. This alleged violation was considered to be a non-critical violation by the inspectors. The space between the wall and floor needs to have a sealed cove (a molding) to prevent vermin and water from entering the wall through the space and, further, to prevent the water from deteriorating the structure of the establishment, which could cause a larger hole for larger animals to enter. The inspectors’ testimony is found to be credible and clear and convincing.
Mr. Lin contested only alleged violations 2-5-1, 2-19- 1, 15-31-1, and 21-12-1 at hearing.
CONCLUSIONS OF LAW
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 (2006).
The Department has the burden of proof to show by clear and convincing evidence that Peking committed the offenses set forth in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor
Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 509.032, Florida Statutes (2005) and (2006), provides in pertinent part:
GENERAL. --The division [Division of Hotels and Restaurants of the Department of Business and Professional Regulation] shall carry out all of the provisions of this chapter and all other applicable laws and rules relating to the inspection or regulation of public lodging establishments and public food service establishments for the purpose of safeguarding the public health, safety, and welfare. . . .
INSPECTION OF PREMISES.
The division has responsibility and jurisdiction for all inspections required by this chapter. The division has responsibility for quality assurance. . .
For purposes of performing required inspections and the enforcement of this chapter, the division has the right of entry and access to public lodging establishments and public food service establishments at any reasonable time.
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.
The division shall adopt and enforce sanitation rules consistent with law to ensure the protection of the public from food-borne illness in those establishments licensed under this chapter. These rules shall provide the standards and requirements for obtaining, storing, preparing, processing, serving, or displaying food in public food service establishments . . . conducting necessary public food service establishment inspections for compliance with sanitation regulations . . . and initiating enforcement actions, and for other such responsibilities deemed necessary by the division. . . .
* * *
SANITARY STANDARDS; EMERGENCIES; TEMPORARY FOOD SERVICE EVENTS. --The division shall:
Prescribe sanitary standards which shall be enforced in public food service establishments.
* * *
(6) RULEMAKING AUTHORITY. --The division shall adopt such rules as are necessary to carry out the provisions of this chapter.
Florida Administrative Code Rule 61C-1.004, “General Sanitation and Safety Requirements,” provides in pertinent part:
The following general requirements and standards shall be met by all public lodging and public food service establishments:
Water, plumbing and waste. Except as specifically provided in these rules, standards for water, plumbing and waste
shall be governed by Chapter 5, Food Code, herein adopted by reference. For the purposes of this section, the term "food establishment" as referenced in the Food Code shall apply to all public lodging and public food establishments as defined in Chapter 509, F.S.
* * *
Public bathrooms.
(a) Each public lodging and food service establishment shall be provided with adequate and conveniently located bathroom facilities for its employees . . . in accordance with provisions of these rules and the plumbing authority having jurisdiction. . . 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 [sic] shall be kept in good condition.
* * *
(d) For the purposes of this section, the term toilet shall mean a flush toilet properly plumbed, connected and discharging to an approved sewage disposal system. In a bathroom where more than one toilet is provided, each toilet shall be separated by a partition from adjoining fixtures and a door shall be provided which will partially conceal the occupant from outside view.
* * *
Vermin control - Effective control measures shall be taken to protect against the entrance into the establishment, and the breeding or presence on the premises of rodents, flies, roaches and other vermin. All buildings shall be effectively rodent- proofed, free of rodents and maintained in a
rodent-proof and rodent-free condition. All windows used for ventilation must be screened, except when effective means of vermin control are used. Screening material shall not be less than 16 mesh to the inch or equivalent, tight-fitting and free of breaks.
* * *
All fire safety, protection and prevention equipment must be installed, approved, maintained and used in accordance with Chapter 509, F.S., and the National Fire Protection Association Life Safety Code Chapter 101, as adopted by the Division of State Fire Marshal in Chapter 4A-3, F.A.C.
All building structural components, attachments and fixtures shall be kept in good repair, clean and free of obstructions. . . .
Florida Administrative Code Rule 61C-4.023, “Food Protection Manager Certification and Public Food Service Employee Training,” provides in pertinent part:
[E]ach licensed establishment shall have a minimum of one certified food protection manager responsible for all periods of operation. . . It shall be the responsibility of the certified food protection manager or managers to inform all employees under their supervision and control who engage in the storage, preparation, or serving of food, to do so in accordance with acceptable sanitary practices as described in this chapter.
* * *
(4) Public Food Service Employee Training.
All public food service employees must receive training on . . . foodborne disease
prevention. . . Foodborne disease prevention training must include the types and causes of foodborne illness, identification of potentially hazardous food, and how to control or eliminate harmful bacteria in a food service establishment.
[E]mployees who prepare foods must be knowledgeable about safe methods of thawing, cooking, cooling, handling, holding and storing foods. Service personnel must be knowledgeable about safe methods of serving food. Employees who clean equipment and facilities must be knowledgeable about proper cleaning and sanitization methods. Employees responsible for maintaining the premises must be knowledgeable about proper vermin control methods as specified in the Food Code.
[E]mployees must perform their work duties safely in a manner consistent with the requirements of the Food Code.
As to alleged violation 03A-07-1, Food Code Rule5 3- 501.16, “Potentially Hazardous Food (Time/Temperature Control for Safety Food), Hot and Cold Holding,” provides in pertinent part:
Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under section 3- 501.19, and except as specified under paragraph (B) of this section, POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE CONTROL FOR SAFETY FOOD) shall be maintained:
At 57°C (135°F) or above, except that roasts cooked to a temperature and for a time specified in paragraph 3-401.11(B) or reheated as specified in paragraph 3- 403.11(E) may be held at a temperature of 54°C (130°F) or above; or
At a temperature specified in the following:
5°C (41°F) or less; or
7°C (45°F) or between 5°C (41°F) and 7°C (45°F) in existing refrigeration EQUIPMENT that is not capable of maintaining the FOOD at 5°C (41°F) or less if:
The EQUIPMENT is in place and in use in the FOODESTABLISHMENT, and
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 evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-501.16(A) by storing potentially hazardous food (sushi) at a temperature greater than
41 degrees Fahrenheit.
As to alleged violation 04-01-1, Food Code Rule 4- 301.11, “Cooling, Heating, and Holding Capacities,” provides in pertinent part:
EQUIPMENT for cooling and heating FOOD, and holding cold and hot FOOD, shall be sufficient in number and capacity to provide FOOD temperatures as specified under Chapter 3.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 4-301.11 due to the inability and failure of its cold holding equipment, i.e., the sushi cooler, to maintain potentially hazardous food (sushi) at the proper temperature of not greater than 41 degrees Fahrenheit.
As to alleged violation 8A-16-1, Food Code Rule 3- 305.12, “Food Storage, Prohibited Areas,” provides in pertinent
part:
FOOD may not be stored:
In locker rooms;
In toilet rooms;
In dressing rooms;
In garbage rooms;
In mechanical rooms;
Under sewer lines that are not shielded to intercept potential drips;
Under leaking water lines, including leaking automatic fire sprinkler heads, or under lines on which water has condensed;
Under open stairwells; or
Under other sources of contamination.
An agency’s interpretation of statutes that it is required to enforce and the rules that it has adopted is entitled to deference unless the interpretation contradicts the plain meaning of the statute or rule or is clearly erroneous or contrary to law. See Level 3 Communications, LLC v. Jacobs, 841 So. 2d 447 (Fla. 2003) and Osorio v. Board of Professional Surveyors and Mappers, 898 So. 2d 188 (Fla. 5th DCA 2005).
Food Code Rule 3-305.12 pertains to prohibited areas for the storing of food; whereas, the alleged violation pertains
to storage containers not storage areas. The Department has cited to no authority interpreting the said Rule or shown where it has previously interpreted the said Rule to encompass containers as well as areas. The undersigned determines that the Department’s interpretation is clearly erroneous. The evidence is clear and convincing as to the containers in which Peking stored food and the contamination that can result therefrom. However, the evidence is not clear and convincing that Peking stored the food in prohibited areas and, therefore, fails to demonstrate that Peking violated Food Code Rule 3- 305.12.
As to alleged violation 8A-23-1, Food Code Rule 3- 302.11, “Packaged and Unpackaged Food – Separation, Packaging, and Segregation,” provides in pertinent part:
FOOD shall be protected from cross contamination by:
Separating raw animal FOODS during storage, preparation, holding, and display from:
Raw READY-TO-EAT FOOD including other raw animal FOOD such as FISH for sushi or MOLLUSCAN SHELLFISH, or other raw READY-TO- EAT FOOD such as fruits and vegetables, and
Cooked READY-TO-EAT FOOD . . . .
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-302.11(A)(1) by improperly storing, by vertical separation, raw animal food (chicken) over ready-to-eat food (beef) in the walk-in freezer.
As to alleged violation, 8A-28-1, Food Code Rule 3- 305.11, “Food Storage,” provides in pertinent part:
Except as specified in paragraphs (B) and (C) of this section, FOOD shall be protected from contamination by storing the FOOD:
In a clean, dry location;
Where it is not exposed to splash, dust, or other contamination; and
At least 15 cm (6 inches) above the floor.
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 § 4-204.122.
Pressurized BEVERAGE containers, cased 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.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-305.11 by storing food on the floor in the walk-in freezer.
As to alleged violation 8A-29-1, Food Code Rule 3-
provides in pertinent part:
FOOD shall be protected from cross contamination by:
* * *
Except as specified under Subparagraph 3-501.15(B)(2) and in paragraph (B) of this section, storing the FOOD in packages, covered containers, or wrappings . . . .
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-302.11(A)(4) by storing food uncovered in the dry storage area, walk-in freezer.
As to alleged violation 35A-8-1, Food Code Rule 6- 501.111, “Controlling Pests,” provides in pertinent part:
The presence of insects, rodents, and other pests shall be controlled to minimize their presence on the PREMISES by:
Routinely inspecting incoming shipments of FOOD and supplies;
Routinely inspecting the PREMISES for evidence of pests;
Using methods, if pests are found, such as trapping devices or other means of pest control as specified under §§ 7-202.12, 7- 206.12, and 7-206.13; and
Eliminating harborage conditions.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 6-501.111 in that live flies were in the kitchen and ants were in the storage room and in that no evidence was presented by Peking showing that it had utilized methods to control the flies and ants.
As to alleged violation 20A-10-1, Food Code Rule 4- 501.114, “Manual and Mechanical Warewashing Equipment, Chemical Sanitization - Temperature, pH, Concentration, and Hardness,” provides in pertinent part:
A chemical SANITIZER used in a SANITZING solution for a manual or mechanical
operation at exposure times specified under paragraph 4-703.11(C) shall meet the criteria specified under § 7-204.11 Sanitizers, Criteria, shall be used in accordance with the EPA-approved manufacturer's label use instructions, and shall be used as follows:
(A) A chlorine solution shall have a minimum temperature based on the concentration and PH of the solution as listed in the following chart;
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 4-501.114(A) by having no chlorine sanitizer in its dish machine, thereby, failing to have the minimum concentration of chlorine in its dish machine.
As to alleged violation 6-04-1, Food Code Rule 3- 501.13, “Thawing,” provides in pertinent part:
Except as specified in paragraph (D) of this section, POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE CONTROL FOR SAFETY FOOD)
shall be thawed:
Under refrigeration that maintains the FOOD temperature at 5°C (41°F) or less, or at 7°C (45°F) or less as specified under Subparagraph 3-501.16(A)(2); or
Completely submerged under running water:
At a water temperature of 21°C (70°F) or below,
With sufficient water velocity to agitate and float off loose particles in an overflow, and
For a period of time that does not allow thawed portions of READY-TO-EAT FOOD to rise above 5°C (41°F), or 7°C (45°F) as specified under Subparagraph 3-501.16(A)(2), or
For a period of time that does not allow thawed portions of a raw animal FOOD requiring cooking as specified under paragraph 3-401.11(A) or (B) to be above 5°C (41°F), or 7°C (45°F) as specified under Subparagraph 3-501.16(A)(2), for more than 4 hours including:
The time the FOOD is exposed to the running water and the time needed for preparation for cooking, or
The time it takes under refrigeration to lower the FOOD temperature to 5°C (41°F), or 7°C (45°F) as specified under Subparagraph 3-501.16(A)(2);
As part of a cooking process if the FOOD that is frozen is:
Cooked as specified under paragraph 3- 401.11(A) or (B) or § 3-401.12, or
Thawed in a microwave oven and immediately transferred to conventional cooking EQUIPMENT, with no interruption in the process; or
Using any procedure if a portion of frozen READY-TO-EAT FOOD is thawed and prepared for immediate service in response to an individual CONSUMER'S order.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-501.13 by thawing potentially hazardous food at room temperature.
As to alleged violation 2-5-1, Food Code Rule 3-501.17, “Ready-to-Eat, Potentially Hazardous Food
(Time/Temperature Control for Safety Food), Date Marking Food,” provides in pertinent part:
Except when PACKAGING FOOD using a REDUCED OXYGEN PACKAGING method as specified under § 3-502.12, and except as specified in paragraphs (D) and (E) of this section, refrigerated, READY-TO-EAT, POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE CONTROL FOR SAFETY FOOD) prepared and held in a FOOD ESTABLISHMENT 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. The day of preparation shall be counted as Day 1.
5°C (41°F) or less for a maximum of 7 days; or
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:
The EQUIPMENT is in place and in use in the FOOD ESTABLISHMENT, and
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 evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-501.17(A) by failing to properly date-mark ready-to-eat, potentially hazardous food (egg rolls or spring rolls and meats), which was prepared on-site and frozen. The evidence shows that whether the potentially
hazardous food was egg rolls or spring rolls had no effect as to whether a violation was committed.
As to the alleged violation 2-19-1, Food Code Rule 3-202.18, “Shellstock Identification,” provides in pertinent part:
SHELLSTOCK shall be obtained in containers bearing legible source identification tags or labels that are affixed by the harvester and each dealer that depurates, ships, or reships the SHELLSTOCK, as specified in the National Shellfish Sanitation Program Guide for the Control of Molluscan Shellfish, and that list:
Except as specified under paragraph (C) of this section, on the harvester's tag or label, the following information in the following order:
The harvester's identification number that is assigned by the SHELLFISH CONTROL AUTHORITY,
The date of harvesting,
The most precise identification of the harvest location or aquaculture site that is practicable based on the system of harvest area designations that is in use by the SHELLFISH CONTROL AUTHORITY and including the abbreviation of the name of the state or country in which the shellfish are harvested,
The type and quantity of shellfish, and
The following statement in bold, capitalized type: "This tag is required to be attached until container is empty or retagged and thereafter kept on file for 90 days;" and
Except as specified in paragraph (D) of this section, on each dealer's tag or label, the following information in the following order:
The dealer's name and address, and the CERTIFICATION NUMBER assigned by the
SHELLFISH CONTROL AUTHORITY,
The original shipper's CERTIFICATION NUMBER including the abbreviation of the name of the state or country in which the shellfish are harvested,
The same information as specified for a harvester's tag under Subparagraphs (A)(1)(b)-(d) of this section, and
The following statement in bold, capitalized type: "This tag is required to be attached until container is empty and thereafter kept on file for 90 days.”
The evidence is not clear and convincing that Peking violated Food Code Rule 3-202.18 regarding no tags on fresh shellfish (oysters) in the walk-in freezer. Therefore, the evidence fails to demonstrate that Peking violated Food Code Rule 3-202.18.
As to the alleged violation 2-27-1, Food Code Rule 3-402.12, “Records, Creation and Retention,” provides in pertinent part:
Except as specified in paragraph 3- 402.11(B) and paragraph (B) of this section, if raw, raw-marinated, partially cooked, or marinated-partially cooked FISH are served or sold in READY-TO-EAT form, the PERSON IN CHARGE shall record the freezing temperature and time to which the FISH are subjected and shall retain the records of the FOOD ESTABLISHMENT for 90 calendar days beyond the time of service or sale of the FISH.
If the FISH are frozen by a supplier, a written agreement or statement from the supplier stipulating that the FISH supplied are frozen to a temperature and for a time specified under § 3-402.11 may substitute for the records specified under paragraph
(A) of this section.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-402.12 by failing to maintain freezing records on nonexempt fish for 90 days.
As to the alleged violation 22-27-1, Food Code Rule 4- 602.11, “Equipment Food-Contact Surfaces and Utensils,” provides in pertinent part:
EQUIPMENT FOOD-CONTACT SURFACES and UTENSILS shall be cleaned:
Except as specified in paragraph (B) of this section, before each use with a different type of raw animal FOOD such as beef, FISH, lamb, pork, or POULTRY;
Each time there is a change from working with raw FOODS to working with READY-TO-EAT FOODS;
Between uses with raw fruits and vegetables and with POTENTIALLY HAZARDOUS FOOD (TIME/TEMPERATURE CONTROL FOR SAFETY FOOD);
Before using or storing a FOOD TEMPERATURE MEASURING DEVICE; and
At any time during the operation when contamination may have occurred.
This particular violation requires more discussion in that the Administrative Complaint charges Peking with violating Food Code Rule 4-601.11(A); however, the Administrative Complaint, in stating the wording for the alleged being violated, states the exact wording of Food Code Rule
4-602.11(A). The allegations of fact support an alleged violation of Food Code Rule 4-602.11(A). Further, at hearing, the Department presented testimony and evidence directly related
to Food Code Rule 4-602.11(A); and, in its post-hearing submission, the Department refers to a violation of Food Code Rule 4-602.11(A). Consequently, the undersigned considers and determines the reference in the Administrative Complaint to Food Code Rule 4-601.11(A) to be a scrivener’s error and not fatal to the instant prosecution. See Danzy v. State, 603 So. 2d 1320, 1322 (Fla. 1st DCA 1992) (“When allegations of fact in an information are sufficient to allege all the elements of an offense, such allegations of fact will ordinarily control over an erroneous reference to a statute, so that the reference to Section 944.40 in the instant case should be treated as a scrivener’s error.”) Hence, the undersigned will address whether Peking violated Food Code Rule 4-602.11(A).
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 4-602.11(A) by having encrusted soiled material on its slicer, which evidences that the slicer was not cleaned after its use.
As to the alleged violation 14-33-1, Food Code Rule 4-501.11, “Good Repair and Proper Adjustment,” provides in pertinent part:
A) EQUIPMENT shall be maintained in a state of repair and condition that meets the requirements specified under Parts 4-1 and 4-2.
EQUIPMENT components such as doors, seals, hinges, fasteners, and kick plates
shall be kept intact, tight, and adjusted in accordance with manufacturer's specifications.
Cutting or piercing parts of can openers shall be kept sharp to minimize the creation of metal fragments that can
contaminate FOOD when the container is opened.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 4-501.11 by having equipment in poor repair – shelves in the reach-in cooler on the cook line were rusted.
As to the alleged violation 15-28-1, National Fire Protection Association Safety Code, Section 96, 6.2.3.3, provides in pertinent part:
Grease filters shall be arranged so that all exhaust air shall pass through the grease filters.
The evidence is clear and convincing and demonstrates that Peking violated National Fire Protection Association Safety Code, Section 96, 6.2.3.3 by having hood filters that were not tightly fitting and firmly held in place but left an open space allowing grease and vapors from the grease to pass through the open space and not through the filters.
As to the alleged violation 15-31-1, Food Code Rule 4-501.11 is applicable, which is set forth in Conclusion of Law numbered 61. The evidence is clear and convincing and
demonstrates that Peking violated Food Code Rule 4-501.11(A) and
by having nonfood contact equipment in poor repair-–a torn and ripped inside screen on the door, rusty shelves in the dry storage and walk-in coolers, and a toilet lid damaged in the employees’ bathroom.
As to the alleged violation 21-12-1, Food Code Rule 3- 304.14, “Wiping Cloths, Use Limitation,” provides in pertinent part:
Cloths in-use for wiping counters and other EQUIPMENT surfaces shall be:
Held between uses in a chemical sanitizer solution at a concentration specified under § 4-501.114; and
Laundered daily as specified under paragraph 4-802.11(D).
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 3-304.14(B)(1), not Food Code Rule 3-304.14(B)(2) as alleged by the Department, by not storing the wet wiping cloths in a sanitizing solution between uses. The Department alleged in the Administrative Complaint and provided in its post-hearing submission a different wording for Food Code Rule 3-304.12(B)(1) and (2) than is provided in the 2005 Edition of the Food Code. Unlike the previous instance in which a scrivener’s error had occurred, it is apparent that this particular instance does not involve a scrivener’s error and is, therefore, fatal to the alleged violation. Hence, the
evidence is not clear and convincing and fails to demonstrate that Peking violated Food Code Rule 3-304.14(B)(2).
As to the alleged violation 23-6-1, Food Code Rule 4-601.11, “Equipment, Food-Contact Surfaces, Nonfood-Contact Surfaces, and Utensils,” provides in pertinent part:
NonFOOD-CONTACT SURFACES of EQUIPMENT shall be kept free of an accumulation of dust, dirt, FOOD residue, and other debris.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 4-601.11(C) by having a buildup of food, debris, dust, and dirt on a nonfood contact surface-–the mop-sink area located outside the back door of the kitchen.
As to the alleged violation 23-7-1, Food Code Rule 4-602.13, “Nonfood-Contact Surfaces,” provides in pertinent
part:
NonFOOD-CONTACT SURFACES of EQUIPMENT shall
be cleaned at a frequency necessary to preclude accumulation of soil residues.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 4-602.13 due to gaskets on the walk-in freezer door having a slime and mold-like buildup.
As to the alleged violation 36-8-1, Food Code Rule 6-201.13, “Floor and Wall Junctures, Coved, and Enclosed or Sealed,” provides in pertinent part:
In FOOD ESTABLISHMENTS in which cleaning methods other than water flushing are used for cleaning floors, the floor and wall junctures shall be coved and closed to no larger than 1 mm (one thirty-second inch).
The floors in FOOD ESTABLISHMENTS in which water flush cleaning methods are used shall be provided with drains and be graded to drain, and the floor and wall junctures shall be coved and SEALED.
The evidence is clear and convincing and demonstrates that Peking violated Food Code Rule 6-201.13 by not having the floor and wall junctures in the dry storage area coved and sealed in that the floor and wall junctures did not have any molding.
Regarding penalty, Section 509.261, Florida Statutes (2005), provides in pertinent part:
Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:
Fines not to exceed $ 1,000 per offense;
Mandatory attendance, at personal expense, at an educational program sponsored by the Hospitality Education Program; and
The suspension, revocation, or refusal of a license issued pursuant to this chapter.
For the purposes of this section, the division may regard as a separate offense each day or portion of a day on which an
establishment is operated in violation of a "critical law or rule," as that term is defined by rule.
* * *
(5)(a) A license may not be suspended under this section for a period of more than 12 months. At the end of such period of suspension, the establishment may apply for reinstatement or renewal of the license. A
. . . public food service establishment, the license of which is revoked, may not apply for another license for that location prior to the date on which the revoked license would have expired.
Further, Peking has been the subject of prior disciplinary action by the Department. As a result of an administrative complaint filed by the Department against Peking for violations of Chapter 509, Florida Statutes, the Department and Peking entered into a stipulation and consent agreement and by Final Order, filed September 15, 2005, the Department imposed, among other penalties, upon Peking an administrative fine of $6,750 and the mandatory attendance to a Hospitality Education Program Workshop. Also, As a result of an administrative complaint filed by the Department against Peking for violations of Chapter 509, Florida Statutes, by Final Order filed September 26, 2006, the Department imposed against Peking a suspension of its license for a ten-day period, an administrative fine of $11,900, and the mandatory attendance to
an educational program sponsored by the Hospitality Education Program.
The Department suggests revocation of Peking’s license. The undersigned does not consider the suggested penalty to be unreasonable.
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 revoking the license of Peking Tokyo Buffet.
DONE AND ENTERED this 30th day of August, 2007, in Tallahassee, Leon County, Florida.
S
ERROL H. POWELL
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2007.
ENDNOTES
1/ The Department withdrew Petitioner’s Exhibit 5.
2/ This identification number is the corresponding identification number of the violation in the report. All violations in the Findings of Fact will reflect the corresponding identification number of the violations contained in the reports by the inspectors of the Department.
3/ Mr. Lin testified that the uncovered food item was spring rolls and not egg rolls. This Administrative Law Judge finds Mr. Lin’s testimony credible, as to the identity of the food item, but such testimony does not change the finding that the potential for cross-contamination existed.
4/ Mr. Lin testified that the food was spring rolls not egg rolls. This Administrative Law Judge finds Mr. Lin’s testimony credible, as to the identity of the food item, but such testimony does not change the remainder of the finding.
5/ The Food Code is the 2005 Edition.
COPIES FURNISHED:
Elizabeth Duffy, Esquire Charles F. Tunnicliff, Esquire Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-2202
Ping Lin
Peking Tokyo Buffet
1219 South Federal Highway Deerfield Beach, Florida 33441
William 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
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 27, 2007 | Agency Final Order | |
| Aug. 30, 2007 | Recommended Order | Respondent committed several critical and non-critical violations of the Food Code, and also has a history of prior disciplinary action, including a suspension and administrative fines. Recommend revocation of Respondent`s license. |
