DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
NO. 1 CHINA,
Respondent.
) Case No. 12-1518
Pursuant to notice to all parties, a final hearing was conducted in this case on June 22, 2012, in Tallahassee, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. The parties were represented as set
forth below.
No. 1 China
The issue in this case is whether Respondent violated provisions of the Food Code, and, if so, what penalties should be imposed.
On August 8, 2011, Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (hereinafter the "Division"), filed an Administrative Complaint charging Respondent with violating certain provisions of the Food Code. Chun Ni, owner of No. 1 China restaurant, returned the Election of Rights form seeking a formal administrative hearing for Respondent. The Administrative Complaint and Election of Rights form were forwarded to the Division of Administrative Hearings ("DOAH") on April 12, 2012, and the case was assigned to the undersigned Administrative Law Judge so that a formal administrative hearing could be conducted. The hearing was held on the date set forth above, and both parties were present. The Division was represented by counsel; Mr. Ni appeared on behalf of Respondent.
At the final hearing, the Division called one witness: Barbara Schoenly, senior sanitation and safety inspector for the Division. The Division's Exhibits 1 through 3 were admitted into evidence. Official recognition was taken of Florida Administrative Code Rules 61C-1.001(14) and 61C-1.005, as well as
portions of the U.S. Food and Drug Administration's Food Code (the "Food Code") as adopted by the Division.
Mr. Ni testified on behalf of Respondent, but did not call any other witnesses nor offer any exhibits into evidence. The Division then recalled Ms. Schoenly and also called Edwin Weimer as rebuttal witnesses.
A transcript of the final hearing was ordered by the parties. The Transcript was filed at DOAH on June 27, 2012. By rule, the parties were allowed ten days from the filing of the transcript to submit proposed recommended orders. The Division timely submitted a Proposed Recommended Order, and it was duly considered in the preparation of this Recommended Order. No proposed recommended order was submitted by Respondent.
At all times relevant hereto, Respondent was licensed as a public food establishment in the State of Florida by the Division. Respondent held license no. 1505960 in the name of China No. 1 (the "Restaurant"), located at 3014 West New Haven Avenue, Melbourne, Florida 32904.
The Division is the state agency responsible for the licensing and regulation of public food service establishments pursuant to chapter 509, Florida Statutes (2011).1/
Ms. Schoenly is employed by the Division as a sanitation and safety inspector. In that capacity, she conducts inspections
of food service and lodging establishments for compliance with the provisions of chapter 509 and the Food Code. Prior to becoming an inspector for the Division, Ms. Schoenly worked
for 17 years with McDonald's restaurants, including two years as a crew person and 15 years in management. Upon taking a position with the Division, Ms. Schoenly received training in the laws and rules utilized for food and lodging inspections. She continues to receive education in this area on a monthly basis.
When Ms. Schoenly conducts an inspection of a restaurant, she looks for both critical and non-critical violations. Critical violations are those that will likely lead to food-borne contamination and food-borne illness. A
non-critical violation is less likely to lead to food-borne illness or contamination. Ms. Schoenly performs in excess of 700 inspections per year as part of her job.
On April 18, 2011, Ms. Schoenly performed a routine inspection of the Restaurant. Routine inspections are performed on a regular basis by the Division. Routine inspections are done without prior notice to the operator or owner of the restaurant to be inspected.
During the routine inspection, which commenced at approximately 1:45 p.m., Ms. Schoenly found a number of violations, including two critical violations and several
non-critical violations. The Restaurant was provided notice of
the violations and was allowed to correct some of them while Mr. Schoenly was still present. Upon completion of the inspection, Mr. Schoenly gave Mr. Ni a copy of the Food Inspection Report she had filled out. The report specified all areas of non-compliance and indicated that a follow-up or
call-back inspection would be performed on June 15, 2011, at 8:00 a.m. Unlike the routine inspections, restaurants are given prior notice concerning call-back inspections.
On June 15, 2012, Ms. Schoenly, accompanied by Edwin Weimer, another inspector, returned for the call-back inspection. They arrived during the lunch hour, at 12:31 p.m., rather than 8:00 a.m., as set forth on the initial Food Inspection Report. The Restaurant was not open at 8:00 a.m., thus, necessitating a later visit than originally scheduled.
During the call-back inspection, Ms. Schoenly found that a number of the violations from the prior visit had been corrected. However, there were still three critical and three non-critical violations extant. The critical violations were:
03A-07-1 A corn starch and water mixture was stored at a temperature of 81º (it had been at 68º during the initial inspection).
08A-28-1 Noodles were stored on the floor in boxes in a dry storage area.
08A-29-1 Egg rolls and broccoli were stored in uncovered containers.
22-22-1 A can opener was badly soiled.
The non-critical violations found during the call-back inspection were:
23-07-1 Soiled gaskets in the reach-in cooler; food debris on and under the shelving; and, a heavy grease build-up under the refrigeration unit.
14-47-1 Cutting boards were grooved and pitted. 15-35-1 Heavily soiled cardboard on shelves.
As a result of Ms. Schoenly's findings, an
Administrative Complaint was issued against the Restaurant. Mr. Ni, owner of the Restaurant, disputes the findings made by Ms. Schoenly and Mr. Weimer.
03A-07-1 (Food Code Rule 3-501.16(A))
Ms. Schoenly found the corn starch mixture to be at unacceptable temperatures. Food should be stored at 41º or lower or 135º or higher. Once food is removed from its controlled temperature environment, it can be stored at room temperature for up to four hours. However, in order for a restaurant to keep food outside its storage area, there must be a written time record posted on the wall clearly delineating how long the food had been outside the temperature-controlled environment. During
the initial inspection by Ms. Schoenly, there was no time/temperature control form on the wall at the Restaurant. Ms. Schoenly explained the form to Mr. Ni so he could use it in the future.
The Restaurant did have a time/temperature control form posted during the call-back inspection. Mr. Weimer testified that the form was not complete because there was no signature on it. However, Mr. Ni said his signature was on the second page of the report. Mr. Weimer said he did not take the form down off the wall to see if there was a signature on the second page.
Ms. Schoenly and Mr. Weimer testified they could not tell how long the food had been out of its protected environment. However, inasmuch as the Restaurant opens at 11:00 a.m., and the inspection was conducted at 12:45 p.m., it is doubtful the corn starch mixture had been out for more than four hours.
The Division did not prove by clear and convincing evidence that the Restaurant had violated this standard.
08A-28-1 (Food Code Rule 3-305.11)
Ms. Schoenly found dry noodles being stored on the floor of a dry storage area in the Restaurant. The noodles were stored in what Ms. Schoenly described as "a box." The box was not open to the best of her recollection, but she could not specifically remember.2/
Mr. Ni said the noodles were stored in five-gallon buckets that had originally held Kikkoman soy sauce. The soy sauce buckets are waterproof and had lids on them. The buckets were sitting on the floor of the dry storage area, but they were protected from cross-contamination.
It is impossible to ascertain from the contradictory evidence whether the noodles were stored in such a fashion as to allow for cross-contamination from other sources. Thus, the Division did not meet its evidentiary burden as to this critical standard.
08A-29-1 (Food Code Rule 3-305.11)
Ms. Schoenly found egg rolls and washed broccoli stored in the walk-in cooler without being covered. The egg rolls were in wire baskets, and the broccoli was in a plastic food container called a Cambro, a plastic box. She saw that as a possible means of cross-contamination with other foods or items stored nearby, because "anything can drip on the food."
Mr. Ni said the egg rolls were stored in wire baskets on the top shelf in the walk-in cooler so that nothing else would drip on them. The egg rolls were available to re-stock the buffet line during the lunch rush. The broccoli was stored in the case in which it had been delivered to the Restaurant. It is not clear from the evidence exactly where in the walk-in cooler the broccoli was being stored at the time of the inspection.
The Division met its burden of proof as to the existence of uncovered egg rolls. However, any potential violation is mitigated by the fact the egg rolls were stored on the top shelf and were being actively removed from the cooler as part of the lunch-time operations. The evidence is not conclusive as to how the broccoli was stored, but Ms. Schoenly's recollection, supported by her notes, indicates it was not stored properly. Mr. Ni did not provide substantive rebuttal to that fact.
22-22-1 (Food Code Rule 4-101.11)
The can opener being used by the Restaurant was heavily soiled, thus, creating a hazard for possible food contamination. Mr. Ni said the can opener is old, but that even after he cleaned it, the can opener still looked dirty. The Division met its burden of proof as to this critical standard.
23-07-1 (Food Code Rule 4-101.111)
Ms. Schoenly found three potential violations under this portion of the Food Code: Soiled gaskets in the reach-in cooler; food debris on or under the shelving; and heavy grease buildup under the refrigeration unit. She could not remember at what part of the inspection process she saw these violations. Mr. Ni said the gaskets had been cleaned with soapy water and bleach, but because they are old, they do not appear clean.
The Division met its burden of proof as to the
non-critical standards concerning food debris and heavy grease, but not as to the soiled gaskets.
14-37-1 (Food Code Rule 4-501.12)
There was a cutting board used in the Restaurant that was heavily pitted with long, deep grooves in it. Ms. Schoenly found the cutting board to be unacceptable, because it could not be cleaned or sanitized adequately after each use due to the depth of the grooves. Mr. Ni sanded the cutting board between the initial inspection and the call-back inspection to alleviate the problem. At the time of the call-back, Ms. Schoenly found the cutting board to still be in an unacceptable condition.
The Division met its burden of proof as to this non-critical standard.
15-35-1 (Food Code Rule 4-101.111)
During the initial inspection and again at the call-back, Ms. Schoenly found heavily soiled cardboard on the
shelving used for storing items in the Restaurant. The cardboard was an allowable means of covering the shelves, but it would need to be discarded once it became soiled. Mr. Ni said the cardboard was soiled because it had been used that day, but that it was to be discarded that very day. His testimony in that regard is not credible.
The Division met its burden of proof as to this non-critical standard.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
The burden of proof is on the Division to show, by clear and convincing evidence, that the Restaurant committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The clear and convincing evidence standard is used in the instant case, because the action is a penal licensure proceeding. Munch v. Dep't of Prof'l Reg., 592 So. 2d 1136 (Fla. 1st DCA 1992).
Clear and convincing evidence is an intermediate standard of proof which is more than the "preponderance of the evidence" standard used in most civil cases, but less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970). Clear and convincing evidence has been defined as evidence which:
[R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind
of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) (citations omitted).
Disciplinary actions may be based only upon those offenses specifically alleged in the Administrative Complaint. See Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); and Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel and
Rest. Comm'n v. Sunny Seas No. One, 104 So. 2d 570, 571 (Fla. 1958).
Any public food establishment that has violated the provisions of chapter 509 or rules authorized thereby, is subject to fines, mandatory attendance at an educational program, suspension, revocation or refusal of a licensure application. Dep't. of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, supra. A public food establishment is defined in section 509.013(5)(a) as:
ny building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption or in the vicinity of customers; or prepared prior to being delivered to another location for consumption.
The Restaurant is a public food establishment as defined by section 509.012 (5)(a). As such, it must have a license pursuant to section 509.241. The Restaurant is properly licensed.
Food Code Rule 3-305.11(A)(4) states, "Food shall be protected from cross contamination by: [4] Storing the food in packages, covered containers or wrappings." The Restaurant violated this provision, but the situation was mitigated due to where the food was stored and the length of time stored in an uncovered state.
Food Code Rule 4-101.11 states, "Materials used
in . . . food contact . . . shall be: (A) Safe; (B) Durable, corrosion resistant and nonabsorbent; (C) Sufficient in weight and thickness to withstand repeated warewashing; (D) Finished to have a smooth, easily cleanable surface; and (E) Resistant to pitting, chipping, crazing, scratching, scoring, distortion, and decomposition." The can opener used by the Restaurant did not comply with this requirement.
Food Code Rule 4-602.13 states, "Nonfood-contact surfaces of equipment shall be cleaned at a frequency necessary to preclude accumulation of soil residues." The debris and heavy grease found by the Division is evidence of violation of this provision.
Food Code Rule 4-501.12 states, "Cutting surfaces.
Surfaces such as cutting blocks and boards that are subject to scratching and scoring shall be resurfaced if they can no longer be effectively cleaned and sanitized, or discarded if they are not capable of being resurfaced." The pitted cutting board violated this provision.
Food Code Rule 4-101.111 states, "Nonfood-contact surfaces of equipment that are exposed to splash, spillage or other food soiling or that require frequent cleaning shall be constructed of a corrosion-resistant, non-absorbent, and smooth material." The cardboard used on the Restaurant's shelves did not satisfy this standard.
Florida Administrative Code Rule 61C-1.005 sets forth the various penalties and fines that can be imposed for violations of the Food Code. The rule establishes fines for first offenses, meaning violations for an entity which has not been the subject of a final order for the previous 24 months. For critical violations, the penalties are from $250 to $500 per violation; for non-critical violations, the penalties range from
$150 to $300. Section 7(b) of the rule allows for mitigation of the fines for certain reasons, including, but not limited to, the effect of the fine on the business or business owner's livelihood, any attempts to correct the deficiencies, and whether there have been any disciplinary history for the entity.
In this case, there was one critical violation, albeit with some mitigating factors. There were three non-critical violations. A fine of $200 for the critical violation and $450 for the four non-critical violations is warranted.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, finding Respondent, No. 1 China, guilty of violating one critical and four non-critical Food Code standards. A fine of $650.00 shall be paid by No. 1 China within 30 days of entry of the final order in this matter.
DONE AND ENTERED this 17th day of July, 2012, in Tallahassee, Leon County, Florida.
R. BRUCE MCKIBBEN Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2012.
1/ Unless specifically stated otherwise herein, all references to the Florida Statutes will be to the 2011 version.
2/ Ms. Schoenly did not have a clear memory of her findings apart from her written report. Inasmuch as she does more than 700 inspections per year, that is understandable.
J. Layne Smith, General Counsel Department of Business and
No. 1 China
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.
