STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. )

) KYODAI SUSHI ROCK JAPANESE STE, )

)

Respondent. )

Case No. 07-4868

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on December 4, 2007, in Orange Park, Florida. The parties appeared before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jessica Leigh, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Jimmy Leung, pro se

Kyodai Sushi Rock Japanese Ste 1861 Wells Road

Orange Park, Florida 32073

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated provisions of Chapter 509, Florida Statutes (2007),1 and/or rules promulgated thereto, and, if so, whether a penalty should be imposed.

PRELIMINARY STATEMENT

On August 15, 2007, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (hereinafter the "Division"), filed an Administrative Complaint, charging Respondent, Kyodai Sushi Rock Japanese Ste (hereinafter the "Restaurant"), with violations of certain provisions of Chapter 509, Florida Statutes, and rules promulgated thereto.

The Administrative Complaint requested an Order imposing one or more sanctions against Respondent.

At the final hearing held in this matter, the Division presented one witness: Janet D'Antonio, a sanitation and safety specialist. The Division offered three exhibits into evidence, all of which were admitted without objection. Official recognition was requested and granted for Subsections 509.032(6) and 509.292(1), Florida Statutes; Rule 4-501.114(A) of the Food Code2; and the Stipulation and Consent Order in Case No. 2007- 003513. Respondent called one witness: Jimmy Leung, owner of the Restaurant. Respondent offered one exhibit into evidence.

The parties indicated their intent to order a transcript of the final hearing. They were given ten days from filing of the transcript at DOAH to file proposed findings of fact and conclusions of law. The Transcript was filed on January 16, 2008, and Petitioner timely submitted a Proposed Recommended Order which was duly-considered in the preparation of this Recommended Order. As of the date of this Recommended Order, Respondent had not filed a proposed recommended order.

FINDINGS OF FACT

1. The Restaurant is a licensed eating establishment located in Orange Park, Florida. It is owned by Jimmy Leung and has been issued License No. 2001000.

2. Respondent is the state agency responsible for, inter alia, inspecting restaurants to ensure safe operation and cleanliness for public health.

3. On December 4, 2006, the Division conducted a routine inspection of the Restaurant. The inspection was conducted by Janet D'Antonio, a sanitation and safety specialist who had worked for the Division for approximately 22 years. D'Antonio received six months of training when she first started work at the Division, including Fire and Safety training, Laws and Rules training, and food certification training. D'Antonio is a certified food manager, a designation which is updated every five years. D'Antonio's training is standardized by the federal

   Food and Drug Administration; so, she is reviewed on a periodic basis. She undergoes continuing education and attends monthly meetings to review new standards.

4. During the December 4, 2006, inspection, D'Antonio found two repeat critical violations3: (1) food temperatures were higher than the 41-degree maximum limitation; and (2) the food storage unit failed to maintain a temperature of 40 degrees or less.

5. There were also some violations which were not, as of that time, repeat or critical violations. One of those violations was that the dish machine sanitizer was not at proper concentration levels. It was not operating sufficiently to kill germs.

6. On July 23, 2007, D'Antonio again conducted a routine inspection of the Restaurant. During this inspection, there were two additional critical violations noted: (1) the dish machine sanitizer was not operating at the proper concentration strength for sanitation (a repeat violation); and (2) certain food products were not properly identified. Specifically, crab sticks (which are made from a white fish) were improperly labeled as crab.

7. There is no dispute that the walk-in cooler used to store food products was not maintaining food at the required temperature levels during the December 2006 inspection. At the

   time of the July 2007 inspection, the machine was working properly. The latter inspection occurred around 1:00 p.m., and, due to lots of traffic in and out of the cooler at that hour, the temperature inside was higher than prescribed by rule.

   Respondent's testimony in that regard is credible.

   
   

8. Likewise, since the dish machine had not been functioning properly at a prior inspection, Respondent purchased a new machine to correct that situation. The new machine was in place at the time of the July 2007 inspection.

9. Nonetheless, Petitioner again noted that the sanitizer was not at the proper levels. The failure of the new dish machine sanitizer to maintain the proper level of sanitizer concentration was not caused by the machine itself, but was related to the solution being used. That is, the Restaurant had purchased sanitizer solution from a vendor, but the solution was outdated and had lost its effectiveness. Therefore, once the solution was placed in the dish machine sanitizer, it did not perform as expected. New sanitizer solution was ordered to replace the defective product.

10. The Restaurant listed a crab sushi roll on its menu when, in fact, the item contained both crab and crab stick. Crab stick is a product made out of white fish; it is not actually crab. Misrepresentation of food content is a potential hazard for customers with particular allergies. Upon

    notification by D'Antonio concerning the misrepresentation, the Restaurant changed its menu the next day to reflect the proper food content.

11. The Restaurant was not given correction dates for the four cited violations because, as critical violations and/or repeat violations, there is no prescribed period for making corrections.

12. As of the date of final hearing, each of the cited deficiencies had been effectively eliminated.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

14. Petitioner has the burden of proving by clear and convincing evidence that Respondent violated Chapter 509, Florida Statutes, the Food Code provisions promulgated pursuant to that chapter, and the National Fire Protection Association 96 provisions concerning restaurant operations. See Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); Pic N'Save Central Florida, Inc. v Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 601 So. 2d 245, 249 (Fla. 1st DCA 1992).

15. Subsection 509.013(5)(a), Florida Statutes, provides:

    
    

    (5)(a) "Public food service establishment" means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on 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.

    
    

    The Restaurant is a public food establish as defined in Chapter 509, Florida Statutes.

16. Section 509.032, Florida Statutes, provides as follows in pertinent part:

    1. GENERAL.--The division 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. The division shall be responsible for ascertaining that an operator licensed under this chapter does not engage in any misleading advertising or unethical practices.

       
       

    2. INSPECTION OF PREMISES.--

       
       

       1. The division has responsibility and jurisdiction for all inspections required by this chapter. The division has responsibility for quality assurance. Each licensed establishment shall be inspected at least biannually, except for transient and nontransient apartments, which shall be inspected at least annually, and shall be inspected at such other times as the division determines is necessary to ensure the public's health, safety, and welfare.

          The division shall establish a system to determine inspection frequency.

          
          

          * * *

          
          

       2. 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.

          
          

       3. 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.

          
          

       4. 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, approving public food service establishment facility plans, conducting necessary public food service establishment inspections for compliance with sanitation regulations, cooperating and coordinating with the Department of Health in epidemiological investigations, and initiating enforcement actions, and for other such responsibilities deemed necessary by the division. The division may not establish by rule any regulation governing the design, construction, erection, alteration, modification, repair, or demolition of any public lodging or public food service establishment. It is the intent of the Legislature to preempt that function to the Florida Building Commission and the State Fire Marshal through adoption and maintenance of the Florida Building Code and the Florida Fire Prevention Code. The

       division shall provide technical assistance to the commission and the State Fire Marshal in updating the construction standards of the Florida Building Code and the Florida Fire Prevention Code which govern public lodging and public food service establishments. Further, the division shall enforce the provisions of the Florida Building Code and the Florida Fire Prevention Code which apply to public lodging and public food service establishments in conducting any inspections authorized by this part.

       
       

       * * *

       
       

       (6) RULEMAKING AUTHORITY.--The division shall adopt such rules as are necessary to carry out the provisions of this chapter.

       
       

       The Restaurant was duly-inspected under the Division's authority as granted by Chapter 509, Florida Statutes.

17. As stated in Section 509.292, Florida Statutes:

    
    

    1. An operator may not knowingly and willfully misrepresent the identity of any food or food product to any of the patrons of such an establishment. The identity of food or a food product is misrepresented if:

       
       

       1. The description of the food or food product is false or misleading in any particular;

          
          

       2. The food or food product is served, sold, or distributed under the name of another food or food product; or

          
          

       3. The food or food product purports to be or is represented as a food or food product that does not conform to a definition of identity and standard of quality if such definition of identity and standard of quality has been established by custom and usage.

          It is clear the crab sushi dish contained both crab and crab stick; it was therefore a violation of this subsection to label the dish as "crab" only. However, the immediate actions taken by the Restaurant to correct the error serves as a basis for mitigation of any penalty for the violation.

18. The Division uses the Food Code of the United States Department of Health and Human Services 2001 as a guideline for inspecting public food service establishments in Florida. Official recognition of the following section of the Food Code was granted at final hearing:

    4-5.01.114(A) Manual and Mechanical Warewashing Equipment, Chemical Sanitization

    - Temperature, pH, Concentration, and Hardness.

    
    

    A chemical sanitizer used in a SANITIZING solution for a manual or mechanical operation at exposure times specified under

    ¶ 4-703.11(C) shall be listed in 21 CFR 178.1010 (579 KB) SANITIZING solutions,

    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:

    
    

    Minimum Concentration	Minimum Temperatures
    mg/L	pH 10 or less C( F)	pH 8 or less C( F)
    25	49 (120)	49 (120)
    50	38 (100)	24 (75)
    100	13 (55)	13 (55)

    There was no competent evidence presented at final hearing as to how the Restaurant violated this provision of the Food Code.

    Although the inspector stated that the sanitizing solution did not meet the minimum concentration level allowed, there was no testimony as to what the concentration level was, what standard was being applied, or how the concentration level was relevant to temperature. There was a candid admission by the Restaurant that it had purchased expired sanitizing solutions, but no evidence was presented as to how that purchase resulted in a violation of the cited Food Code provision. Petitioner did not meet its burden to prove this violation existed.

19. The food temperature violation cited during the December 2006 inspection is given short shrift by Petitioner. That violation is not listed in the Administrative Complaint or violation section (page 3) of the inspection report. There was no evidence to controvert Respondent's explanation for the problem (i.e., heavy traffic during the noon meal hour). As a matter of law, Respondent cannot be found in violation of an event not alleged in the Administrative Complaint.

20. Thus, Petitioner has proven only that a food dish was mislabeled (but immediately corrected), that food temperatures exceeded minimum levels (but only during a time when that might be expected), and that a sanitizing solution was not effective

(and has been replaced). The violations do not warrant imposition of a large penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order imposing a fine of $500.00, payable by Respondent within 30 days of the final order.

DONE AND ENTERED this 13th day of February, 2008, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 13th day of February, 2008.

ENDNOTES

1/ Unless specifically stated otherwise, all references to Florida Statutes in this Recommended Order will be to the 2007 version.

2/ Although not specifically raised as a defense in the instant matter, the propriety of applying the current Food Code to restaurants such as Respondent has been recently ruled upon in DOAH Case No. 07-4197 and should be considered by Petitioner.

3/ Critical violations are those which, if not corrected, are likely to contribute to a food-borne illness.

COPIES FURNISHED:

Jessica Leigh, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Jimmy Leung

Kyodai Sushi Rock Japanese Ste 1861 Wells Road

Orange Park, Florida 32073

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: 07-004868

Orders for Case No: 07-004868