STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,

Petitioner,

vs.

BONO'S BARBECUE SPORTS BAR,

Respondent.

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) Case No. 07-4197

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RECOMMENDED ORDER

On November 14, 2007, a final hearing was held in

St. Augustine, Florida. The case was considered by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Dave Brennan, District Manager

Bono's Barbeque Sports Bar 1001 A1A Beach Boulevard

Saint Augustine Beach, Florida 32203 STATEMENT OF THE ISSUE

Whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalties should be imposed.

PRELIMINARY STATEMENT

On May 25, 2007, the Department of Business and Professional Regulation (Department) filed an Administrative Complaint against Respondent, asserting violations of Chapter 509, Florida Statutes, and the administrative rules related to food service violations. On June 14, 2007, Respondent disputed the allegations in the Administrative Complaint and requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes. On September 18, 2007, the case was forwarded by the Department to the Division of Administrative Hearings for the assignment of an administrative law judge.

The case was duly noticed for hearing and proceeded as scheduled. The Department presented the testimony of one witness and Petitioner's Exhibits A through C were admitted into evidence. Official recognition was taken of the Florida Administrative Code Rules and Florida Statutes relevant to this proceeding. Respondent presented the testimony of one witness and Respondent's Exhibit numbered 1 was admitted. The transcript of the proceedings was filed with the Division November 28, 2007, and the parties were accorded until December 10, 2007, to file their proposed recommended orders. While the Department timely filed its Proposed Recommended Order, no such submission was received from the Respondent. The Department's Proposed Recommended Order has been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency charged with the licensing and regulation of public food service establishments, pursuant to the provisions of Chapter 509, Florida Statutes.

2. Respondent is a restaurant holding food service license number 6500911. Respondent is owned by Barbque Ventures, Inc.

3. Daniel Fulton is employed by the Department as a Sanitation and Safety Specialist. In that capacity, he conducts inspections of food service and lodging establishments for compliance with Chapter 509, Florida Statutes; the Food Code; and the relevant Florida Administrative Code Rules. Mr. Fulton is a certified food manager.

4. Critical violations are violations of the relevant rules and statutes that are more likely to contribute to a food-borne illness, an environmental hazard, or to food contamination.

5. Non-critical violations are those violations that are less likely to contribute to a food-borne illness, an environmental hazard, or to food contamination.

6. On March 21, 2007, Mr. Fulton inspected the premises of Bono's Barbeque Sports Bar at 1001 A1A Beach Boulevard, in

   St. Augustine, Florida. During the inspection, Mr. Fulton prepared a Food Service Inspection Report setting forth the findings from his inspection. The Food Service Inspection Report was provided to and signed for by Debra Barnes, who was listed as manager for the restaurant.

7. During the March 21, 2007, inspection, Mr. Fulton recorded a number of violations of the Food Code. Only four of them are relevant to the charges in the Administrative Complaint.

8. Mr. Fulton observed that foods in the walk-in cooler were not labeled and dated. This is considered a critical violation because food that has been cooked is allowed only a certain number of hours to cool to 41 degrees. If previously prepared food is not marked, it cannot be determined whether it has met the schedule for cooling. Failure to mark and date previously-prepared food is considered a critical violation. The failure to label and date food was noted in the March 21 inspection report at the top of the third page, stating:

   02-06-1: Observed combined ready-to-eat potentially hazardous food held more than

   24 hours not date marked according to earliest date of opening/preparation.

   
   

   However, Mr. Fulton did not testify that the meat in question had been held over 24 hours. He testified only that it was placed in the walk-in cooler 18 hours before.

9. Mr. Fulton also observed that the food in the walk-in cooler was between 44 and 46 degrees. According to Mr. Fulton, this is considered a critical violation because bacteria will grow above 41 degrees, and the longer the food is above 41 degrees, the more the bacteria will grow. The violation was noted on page three of the March 21 inspection report as

   "03A-07-1: Observed potentially hazardous food cold held at greater than 41 degrees Fahrenheit."

10. The walk-in cooler was replaced after the call-back inspection and three repairs.

11. Mr. Fulton observed uncovered food in the walk-in cooler. Walk-in coolers are not considered to be food-contact surfaces, and in order to protect the food, it needs to be off the floor and covered at all times. Failure to cover the food in the walk-in cooler is considered a critical violation. This violation was recorded in the inspection report as "08A-29-1: Observed uncovered food in holding unit/dry storage area. TEA Corrected on Site."

12. Finally, Mr. Fulton observed two sinks that had no hand towels available for handwashing. Without proper handwashing, employees' hands are "virtually bacteria spreaders." Failure to provide hand towels at hand sinks hampers the employees' hand washing efforts, and is considered a critical violation. The violation was listed on the inspection report as "32-16-1: Hand wash sink lacking proper hand drying provisions. TWO SINKS."

13. On May 1, 2007, Mr. Fulton returned to Bono's Barbeque for a call-back inspection. At that time he completed a Call Back Inspection Report, which was signed by Debra Barnes as the manager. The Call Back Inspection Report contains the following:

    The following items(s) have been recommended for Administrative Complaint:

    
    

    Violation 32-16-1

    Hand wash sink lacking proper hand drying provisions. TWO SINKS.

    Violation 08A-29-1

    Observation uncovered food in holding unit/dry storage area. WIC

    
    

    Violation 03A-07-1

    Observed potentially hazardous food cold held at greater than 41 degrees /Fahrenheit.

    EVERYTHING IN WIC IS AT 44 TO 46 F.

    
    

    Violation 02-06-1

    Observed combined ready-to-eat potentially hazardous food held more than 24 hours not date marked according to earliest date of opening/preparation. BBQ COOKED AND COOLED ON 04/30/07 IN WIC.

    
    

14. The Food Inspection Report, the Call-Back Inspection Report, the Administrative Complaint and the copies of relevant rules provided at hearing all reference provisions of the Food Code. However, none of these documents indicate what version of the Food Code is being referenced.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

16. The Division of Hotels and Restaurants within the Department of Business and Professional Regulation is charged with the licensing and regulation of public lodging establishments and public food service establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes.

17. Any public food establishment that has violated the provisions of Chapter 509 or the rules authorized by Chapter 509 is subject to fines of up to $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Program; suspension, revocation or refusal of a license. In order to impose any such penalties, the Department must demonstrate the allegations against Respondent by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. In order to discipline a food service establishment, the offenses must be specifically alleged in the Administrative Complaint. Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Delk v. Department of Professional Regulation, 595 So. 2d 966 (Fla. 5th DCA 1992).

19. A "public food service establishment" is defined in Section 509.013(5)(a), Florida Statutes, as follows:

    'Public food service establishment' means any building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.

    
    

20. Respondent is a food service establishment as defined by Section 509.013(5)(a), Florida Statutes.

21. Each public food service establishment must have a license in order to operate. § 509.241, Fla. Stat.

22. Florida Administrative Code Rule 61C-4.010 provides in pertinent part:

    1. Food Supplies and Food Protection -- except as specifically provided in this rule, public food service establishments shall be subject to the provisions of Chapter 3, Food Code, herein adopted by reference.

       
       

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       (6) Physical facilities - except as specifically provided in these rules, the physical facilities at public food service establishments shall be subject to the provisions of Chapter 6, Food Code, herein adopted by reference. . . .

       
       

23. Rule 61C-4.010 was last amended February 27, 2005. As is apparent from the quote above, the Rule does not indicate which version of the Food Code is incorporated by reference.

24. At hearing, the Respondent pointed to an exemption to Rule 3-501.16(A)(2)(b) of the Food Code in the version provided at hearing regarding the purchase of refrigeration equipment. Essentially, in the copy provided at hearing, Rule 3-501.16(A) states:

    Except during preparation, cooking, or cooling, or when time is used as the public health control as specified in ¶ (B) of this section, potentially hazardous food shall be maintained:

    (1) At 60°C (140°F) or above, . . .; or

    1. At a temperature specified in the following:

       1. 5°C (41°F) or less; or

       2. 7°C (45°F) or between 5°C (41°F) and 7°C (45°) in existing refrigeration equipment that is not capable of maintaining the food at 5°C (41°F) or less if: (i) the equipment is in place and in use in the food establishment, and (ii) 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. (Emphasis supplied.)

    
    

25. The Department responded to Respondent's argument in its Proposed Recommended Order, stating:

    11. On the date of the hearing, Respondent stated that Rule 3-501.16(a) created an exemption that would allow establishments to waive the temperature requirements if the equipment was already purchased. Further, Respondent stated that it was his understanding that establishments would have five (5) years from the date of adoption of the Code to replace the equipment. However, the Food Code is updated every four (4) years. The Food and Drug Administration ("FDA") collaborates with the Conference for Food Protection, the Centers for Disease Control and Prevention (CDC), and the U.S. Department of Agriculture (USDA) to update the Food Code. The FDA issued a 2005 Supplement to reflect the current science and emerging food safety issues, and imminent health hazards related to food safety. This Supplement updates the 2005 Food Code to address several recommendations made by the 2006 Conference for Food Protection (CFP) with which the FDA, Centers for Disease Control and Prevention (CDC) and United States Department of Agriculture concur. Therefore, the current rule removed subparagraphs (A)(2)(a) and (b) that referenced 5°C (41°F) and 7°C (45°F) cold holding and deleted the reference to upgrading refrigeration equipment within 5 years of adoption; Revised subparagraph (A)(2) to specify a cold holding temperature of 41°F or less (CFP Issue 2006-I-33). Therefore, the argument proposed by Respondent is irrelevant.

    
    

26. Respondent's argument and the Department's response require a determination of when the Department adopted the Food Code and whether the equipment at issue was purchased within five

    years of adoption. As will be discussed more fully below, the answers to those questions bring into question whether any of the charges against Respondent can be sustained.

27. The Food Code is a reference document for regulatory agencies that ensure food safety in food service establishments, retail food stores, and various other institutions and entities involved in food delivery and sale. It is expressly not a federal regulation, but is a collaborative effort of the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC) of the United States Department of Health and Human Services (HHS) and the Food Safety and Inspection Service of the United States Department of Agriculture. See Joint Introduction and Preface, 2005 Food Code.

28. As stated by the Department, the Food Code is updated every four years, with supplements sometimes occurring in between. Id.

29. While the Food Code may be updated by the federal government on a regular basis, newer versions of the Food Code are not included in Florida's regulatory framework unless specifically adopted by the Department. Section 120.54(1)(i), Florida Statutes, provides:

    (i)1. A rule may incorporate material by reference but only as the material exists on the date the rule is adopted. For purposes of the rule, changes in the material are not effective unless the rule is amended to incorporate the changes. A rule may not be amended by reference only. Amendments must set out the amended rule in full in the same

    manner as required by the State Constitution for laws. The Department of State may prescribe by rule requirements for incorporating materials by reference pursuant to this paragraph.

    
    

30. The Department of State has adopted the following rule to implement Section 120.54(1)(i):

    1. Any ordinance, standard, specification or similar material may be incorporated by reference in a rule adopted pursuant to Section 120.54, F.S. and Rule 1S-1.002, subject to the following conditions:

       1. The material shall be generally available to affected persons.

       2. The material shall be published by a government agency or a generally recognized professional organization.

    2. The agency incorporating material by reference shall file with the Department of State a correct and complete copy of the referenced material with an attached certification page which shall state a description of the referenced material and specify the rule to which the referenced material relates. . . .

       
       

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    3. Any amendments to material incorporated by reference must be promulgated under the rulemaking provisions of Section 120.54, F.S., in order for the amended portions to be valid.

       
       

       Fla. Admin. Code R. 1S-1.005.

       
       

31. The most recent amendment to Rule 61C-4.010, effective February 27, 2005, does not adopt the 2005 version of the Food Code. Instead, it deletes certain exemptions contained in the 2001 Food Code. Indeed, an examination of the rule amendments as far back as 1996 indicates that the version of the Food Code is never referenced, and no amendment of Rule 61C-4.010 since

    1996 has adopted a later edition of the Food Code as released by the federal government.1/

32. Moreover, while the 1996 amendment to Rule 61C-4.010 purports to adopt the Food Code and incorporate it by reference, the Notice of Proposed Rule does not indicate where a copy of the Food Code may be obtained.

33. This history of Rule 61C-4.010 is relevant to this case because Respondent may only be penalized for violating Food Code provisions that are actually adopted pursuant to the procedures outlined in Section 120.54, Florida Statutes. The Department's Proposed Recommended Order implies that the 2005 version, or even the 2006 Supplement, is operable. However, inasmuch as the Department has never adopted either version, it cannot rely on them to impose penalties on Respondent.

34. All of the violations in the Administrative Complaint reference violations of the Food Code. Because the Department has not specified what version of the Code is being used in this prosecution, the charges against Respondent cannot be sustained.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered dismissing all charges against Respondent.

DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 21st day of December, 2007.

ENDNOTE

1/ It may be that the Department intended to adopt more current versions of the Food Code. On at least three occasions, the summary accompanying proposed rules indicated that adoption of the appropriate version of the Food Code was being accomplished "concurrently" or by separate notice. See, for example, 31 Fla.

Admin. Weekly 21 (Jan. 7, 2005)(amends Rule 61C-4.010(1)(h) and (i); Purpose and Effect states that it is "concurrent with the proposed adoption of part of the 2001 . . . FDA Food Code into the sanitation and safety rules in Title 61C, Florida Administrative Code, the purpose of this proposed rule modification is to eliminate previous rule exemptions to the FDA Food Code.")

Similar language is used in reference to the deletion of exemptions relative to the 1999 Food Code. See 26 Fla. Law Weekly 4404 (September 22, 2000). The summary to the Notice of Proposed Rule in 23 Fla. Law Weekly 6334 indicates "the 1997 Food Code is being adopted simultaneously in a separate rule promulgation." However, no such separate notice of rulemaking could be found.

See also 24 Fla. Law Weekly 2507, which indicates that the Department had adopted the 1997 Food Code on January 1, 1998. Regardless, at no time has the Department adopted either the 2005 Food Code or any supplement to it.

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ronald N. Horcher

Bono's Barbecue Sports Bar 1001 A1A Beach Boulevard

St. Augustine Beach, Florida 32203

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

William Veach, Director

Division of Hotels and Restaurants 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.

Docket for Case No: 07-004197

Orders for Case No: 07-004197