DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF HOTELS AND RESTAURANTS,
vs.
Respondent.
) Case No. 13-0762
Pursuant to notice, a final hearing was conducted in this case on April 3, 2013, in Apalachicola, Florida, before Administrative Law Judge F. Scott Boyd of the Division of
Administrative Hearings.
For Petitioner: Charles F. Tunnicliff, Esquire
St. George Island, Florida 32328 STATEMENT OF THE ISSUE
The issue in this case is whether on March 23, 2012, July 31, 2012, and October 10, 2012, Respondent was out of
compliance with the food safety requirements of section 509.032, Florida Statutes, and implementing administrative rules of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, as alleged in the Administrative Complaint, and if so, what penalty is appropriate.
On or about October 19, 2012, Petitioner filed an Administrative Complaint against Maggie Qi,1/ alleging violations of rules implementing chapter 509, Florida Statutes, which relate to food safety. Respondent requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge on February 28, 2013.
At hearing, Petitioner presented the testimony of Mr. Paul Smith, a sanitation and safety specialist for Petitioner, and offered four exhibits. Petitioner's Exhibits P-1 through P-4 were admitted into evidence without objection. Respondent offered the testimony of Mr. James Kourkoulis, managing member, and offered no exhibits.
Official recognition was given to applicable Florida Statutes, administrative rules, and provisions of the Food Code incorporated by reference in those rules as they read at the time of the alleged infractions.
The Transcript was filed with the Division of Administrative Hearings on April 17, 2013. Petitioner timely submitted a Proposed Recommended Order on April 29, 2013, which
was considered.
The Division of Hotels and Restaurants (Division) is responsible for monitoring all licensed food service establishments in the state to ensure that they comply with the standards set forth in relevant statutes and rules.
LOLAQ is a limited liability company (LLC) which was licensed to operate a permanent public food service establishment in the State of Florida at all times relevant to this proceeding. It does business as Maggie Qi at 28 West Bayshore Drive on St. George Island, Florida. Mr. James Kourkoulis, sole owner and managing member of LOLAQ, operates the restaurant.
Mr. Paul Smith has been employed by the Division for about five years. He is a sanitation and safety specialist with the Division. Prior to his employment with the Division he was employed in the restaurant industry for approximately 30 years. He has had training in sanitation and inspection, including formal initial training, on-the-job training, and monthly in- house training. He is also a certified food manager. He performs between 600 and 1000 inspections each year.
On March 23, 2012, Mr. Smith conducted a food service inspection on Maggie Qi. Mr. Smith prepared a Food Service Inspection Report, DBPR Form HR 5022-015, using his personal data assistant (PDA) to record the violations that he observed during the inspection. Ms. Kathyrn McPherson signed the report to acknowledge receipt on behalf of Maggie Qi. When Mr. Smith completed the report, he printed a copy for the restaurant and discussed each violation with Ms. McPherson. He advised
Ms. McPherson that all violations needed to be corrected by the next unannounced inspection.
During the March inspection, Mr. Smith observed that Maggie Qi had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that beef had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line, and recorded this on his report.
The Division has determined that failure to maintain cold food at proper temperatures poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-015.
During the March inspection, Mr. Smith also observed a buildup of slime in the interior of the ice machine, and noted this on his report. The Division has determined that failure to keep food contact surfaces of equipment and utensils clean poses
a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR- 5022-015.
Mr. Smith also made note in his March report that there was no conspicuously located thermometer in the large cooling unit on the cooks’ line. At hearing he explained that there was a thermometer in the unit, but that it was in a difficult place to access in the back of one of the drawers, and so was not properly located. The Division has determined that failure to have thermometers conspicuously placed poses a significant threat to the public health, safety, or welfare because of the relationship between temperature and bacteria growth, and has identified this as a critical violation on DBPR Form HR-5022- 015.
On July 31, 2012, Mr. Smith conducted another routine inspection of Maggie Qi. Mr. Smith again prepared an inspection report on DBPR Form HR 5022-015, using his PDA to record the violations that he observed.
During the July inspection, Mr. Smith observed that Maggie Qi again had potentially hazardous cold food held at greater than 41 degrees Fahrenheit. He noted that shrimp, beef, and fish had a temperature of 50 degrees Fahrenheit in the large cooling unit on the cooks’ line.
Mr. Smith noted that there was gumbo, a ready–to-eat food, which had been prepared for more than 24 hours and was improperly date-marked. The Division has determined that failure to properly label and date-mark potentially hazardous food prepared on-site and held more than 24 hours poses a significant threat to the public health, safety, or welfare because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022-
015.
Mr. Smith also observed that the thermometer in the
large cooling unit on the cooks’ line was still located in the back of the drawer and had not been placed in a conspicuous location since the March inspection.
During the July inspection, Mr. Smith also noted that the large cooling unit at the cooks’ line was incapable of maintaining potentially hazardous food at prescribed temperatures. All of the food, including beef, shrimp, and fish, was at a temperature of 50 degrees Fahrenheit. At hearing, Mr. Smith testified that he touched the compressor and found it too hot to keep his hand on it, which, in his experience, indicated that the unit was not working properly. The Division has determined that failure to have adequate facilities to maintain food at proper temperatures poses a significant threat to the public health, safety, or welfare
because of the potential for growth of harmful bacteria, and has identified this as a critical violation on DBPR Form HR-5022- 015.
As Mr. Smith noted, Maggie Qi had another walk-in cooler which would have had enough room to hold the food, but it was not near to the cooks’ line. He testified that attempting to use the walk-in cooler in lieu of the malfunctioning unit would have been “extremely inconvenient” and “next to impossible.” This testimony was unrefuted. With the large cooling unit not working properly, Maggie Qi lacked adequate cold-holding capacity at the cooks’ line, and did not have cooling equipment sufficient in number or capacity to meet the cooling demands of its operations.
Mr. Smith noted that the buildup of slime in the interior of the ice machine was still there. He further noted that the interior of the oyster reach-in cooler was soiled with an accumulation of food residue, and that there was encrusted material on the can opener.
Finally, Mr. Smith observed that a hose bibb located on the wall near the sink (not the sink faucet) was missing a vacuum breaker. He testified that a hose was connected to the hose bibb, and that water from this connection was used to spray down the floor. Mr. Kourkoulis stated at hearing that the vacuum breaker had been removed and was sitting on the sink in
the immediate vicinity of the hose bibb. He did not know who took it off. The Division has determined that a plumbing system not designed to prevent backflow of solid, liquid, or gas contaminants into the water supply system poses a significant threat to the public health, safety, or welfare, and has identified this as a critical violation on DBPR Form HR-5022- 015.
Mr. Smith recorded all of these violations in his July inspection report. His report advised Maggie Qi of a call back date of October 1, 2012. Mr. Kourkoulis signed this report to acknowledge receipt on behalf of the restaurant.
On October 10, 2012, Mr. Smith returned to perform a call back inspection of Maggie Qi. He prepared a Call Back Inspection Report, DBPR Form HR 5022-005, using his PDA to record the violations that he observed. The name Tanya Shiver appears on this October report acknowledging receipt on behalf of Maggie Qi.
During the October inspection, Mr. Smith observed that the vacuum breaker was still missing from the hose bibb; the buildup of slime in the interior of the ice machine and the encrusted material on the can opener were still there; the interior of the oyster reach-in cooler was still soiled with an accumulation of food residue; the large cooling unit at the cook line still did not have its thermometer conspicuously placed
and was still not maintaining proper temperatures for potentially hazardous food; shrimp, fish, and beef were again at a temperature of 50 degrees Fahrenheit; and gumbo that had been prepared more than 24 hours was again without proper date marking. These violations were recorded on the report.
Mr. Smith is a trained professional and his testimony is credited. He testified that on the morning of each inspection he checked the accuracy of his thermometer in ice water, as he had been trained, and that his thermometer was accurate. Reports prepared at the time of the inspections corroborate Mr. Smith’s testimony as to all charged violations.
The Division served an Administrative Complaint against Maggie Qi for the above violations on or about October 28, 2012.
On March 23, 2012, July 31, 2012, and October 10, 2012, Maggie Qi had potentially hazardous food that was not being maintained at or below a temperature of 41 degrees Fahrenheit.
On July 31, 2012, and October 10, 2012, Maggie Qi had refrigerated gumbo, a ready-to-eat, potentially hazardous food, which had been prepared and held for more than 24 hours and was not marked to indicate the date by which it needed to be consumed, sold, or discarded.
On March 23, 2012, July 31, 2012, and October 10, 2012, the large cooling unit at the cooks’ line in Maggie Qi did not have its thermometer permanently affixed in a location that would allow easy viewing of its temperature display.
On July 31, 2012, and October 10, 2012, the equipment for cooling food at Maggie Qi was not sufficient in number or capacity to maintain all food at proper temperatures.
On March 23, 2012, July 31, 2012, and October 10, 2012, equipment food-contact surfaces and utensils at Maggie Qi were not clean to sight and touch. On all three dates there was a buildup of slime on the interior of the ice machine. On
July 31, 2012, and October 10, 2012, the interior of the oyster reach-in cooler had an accumulation of food residue and there was crusted material on the can opener.
On July 31, 2012, and October 10, 2012, Maggie Qi’s plumbing system had not been installed to preclude backflow of contaminants into the water supply system from a hose bibb near the sink. The hose bibb had a hose attached, but did not have a vacuum breaker.
No evidence was introduced to indicate that Respondent had any previous violations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this
proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the responsibility to inspect public food service establishments to enforce the provisions of chapter 509, Florida Statutes (2012),2/ pursuant to
section 509.032(2)(c).
As a licensed public food service establishment, Respondent is subject to inspection and to the requirements of chapter 509 and its implementing rules.
Petitioner has the burden of proof to show, by clear and convincing evidence, that Respondent committed the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence has been defined as requiring:
[T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Disciplinary actions may be based only upon those offenses specifically alleged in the Administrative Complaint.
See Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129, 133 (Fla. 5th
DCA 1987); Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984).
Section 509.032(2)(d) requires Petitioner to adopt and enforce standards and requirements for obtaining, storing, preparing, processing, serving, or displaying food to protect the public from food-borne illness in public food service establishments.
Section 509.032(6) gives the Division authority to adopt rules to carry out the provisions of chapter 509.
The Division has adopted Florida Administrative Code Rule 61C-1.001(14),3/ which incorporates by reference various provisions of the 2001 U.S. Food and Drug Administration Food Code (Food Code), including paragraph 1-201.10(B), all of chapters 2 through 7, Annex 3, Annex 5, the 2001 Food Code Errata Sheet, and the Supplement to the 2001 Food Code
(August 29, 2003). The Food Code and the 2003 Supplement have been in effect in Florida at least since February 27, 2005, more than five years ago.
Food Code Rule 3-501.16(A), as amended by the supplement, is entitled "Potentially Hazardous Food, Hot and Cold Holding." It is marked as a critical item and provides:
Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under paragraph 3-501.19, and except as specified in paragraph (B) of this section, POTENTIALLY HAZARDOUS 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 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.
Food Code Rule 1-201.10(B)(65) defines the term "potentially hazardous food" in pertinent part as follows:
"Potentially hazardous food" means a FOOD that is natural or synthetic and that requires temperature control because it is in a form capable of supporting:
The rapid and progressive growth of infectious or toxigenic microorganisms;
The growth and toxin production of Clostridium Botulinum; or
In raw shell EGGS, the growth of Salmonella Enteritidis.
"Potentially hazardous food" includes an animal FOOD (a FOOD of animal origin) that is raw or heat-treated; a FOOD of plant origin that is heat-treated or consists of raw seed sprouts; cut melons; and garlic-in- oil mixtures that are not modified in a way that results in mixtures that do not support growth as specified under subparagraph (a) of this definition.
The testimony and report of Mr. Smith indicated that on March 23, 2012, Respondent had beef, a potentially hazardous food, at a temperature of 50 degrees Fahrenheit in the large cooling unit at the cooks’ line.
The testimony and report of Mr. Smith indicated that on July 31, 2012, Respondent had potentially hazardous food, including beef and shrimp, at a temperature of 50 degrees Fahrenheit in the large cooling unit at the cooks’ line.
The testimony and report of Mr. Smith indicated that on October 10, 2012, Respondent again had beef and shrimp at a temperature of 50 degrees Fahrenheit in the large cooling unit at the cooks’ line.
Mr. Smith testified that the beef and shrimp had not previously been cooked, so the food was not hot food that was still in the process of being cooled down for storage.
Mr. Smith testified that he checked the accuracy of his thermometer the morning of each inspection in ice water, as he had been trained, and that his thermometer was accurate. Mr. Smith is a trained professional and his temperature measurements were unrefuted. Reports prepared by Mr. Smith at the time of the inspections corroborate his testimony as to the temperature of the food.
Petitioner proved by clear and convincing evidence that Respondent violated Food Code Rule 3-501.16(A), as incorporated by reference in rules of the Division, on March 23, 2012, July 31, 2012, and October 10, 2012.
Food Code section 3-501.17 is entitled "Ready-to-Eat, Potentially Hazardous Food, Date Marking." This section is noted as a critical violation and provides in relevant part:
Except as specified in paragraph (D) of this section, refrigerated, ready-to-eat, POTENTIALLY HAZARDOUS 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:
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 day of preparation shall be counted as Day 1.
* * *
(D) Paragraphs (A) and (B) of this section do not apply to individual meal portions served or rePACKAGED for sale from a bulk container upon a CONSUMER'S request.
The testimony of Mr. Smith indicated that Respondent had gumbo, a ready-to-eat, potentially hazardous food prepared on-site and held more than 24 hours, that had not been properly date-marked in the walk-in cooler on July 31, 2012, and
October 10, 2012. Mr. Smith is an experienced and knowledgeable professional and his testimony is credited. The reports prepared by Mr. Smith at the time of the inspections corroborated his testimony. Respondent offered no evidence to the contrary.
Petitioner proved by clear and convincing evidence that Respondent violated Food Code Rule 3-501.17(A), as incorporated by reference in rules of the Division, on July 31, 2012, and October 10, 2012.
Food Code Rule 4-204.112 is entitled "Temperature Measuring Devices." It provides:
In a mechanically refrigerated or hot FOOD storage unit, the sensor of a TEMPERATURE MEASURING DEVICE shall be located to measure the air temperature or a simulated product temperature in the warmest part of a mechanically refrigerated unit and in the coolest part of a hot FOOD storage unit.
Except as specified in paragraph (C) of this section, cold or hot holding EQUIPMENT used for POTENTIALLY HAZARDOUS FOOD shall be designed to include and shall be equipped with at least one integral or permanently affixed TEMPERATURE MEASURING DEVICE that is located to allow easy viewing of the device's temperature display.
Paragraph (B) of this section does not apply to EQUIPMENT for which the placement of a TEMPERATURE MEASURING DEVICE is not a practical means for measuring the ambient air surrounding the FOOD because of the design, type, and use of the EQUIPMENT, such as calrod units, heat lamps, cold plates, bainmaries, steam tables, insulated FOOD transport containers, and salad bars.
TEMPERATURE MEASURING DEVICES shall be designed to be easily readable.
FOOD TEMPERATURE MEASURING DEVICE and water TEMPERATURE MEASURING DEVICE on WAREWASHING machines shall have a numerical scale, printed record, or digital readout in increments no greater than 1°C or 2°F in the intended range of use.
The testimony of Mr. Smith indicated that on March 23, 2012, July 31, 2012, and October 10, 2012, the thermometer in the large cooling unit at the cooks’ line was located in the
back of one of the unit’s drawers and was not permanently affixed at a location that would allow easy viewing of the device's temperature display. The reports prepared by Mr. Smith at the time of the inspections corroborate his testimony.
Respondent presented no evidence to the contrary.
Petitioner proved by clear and convincing evidence that Respondent violated Food Code Rule 4-204.112(B), as incorporated by reference in rules of the Division, on March 23, 2012, July 31, 2012, and October 10, 2012.
Food Code Rule 4-301.11 is entitled “Cooling, Heating, and Holding Capacities.” This rule provides:
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.
Mr. Smith’s report indicated that on July 31, 2012, and October 10, 2012, Respondent’s large cooling unit on the cooks’ line was incapable of maintaining proper temperatures.
As its title suggests, Food Code Rule 4-301.11 is not necessarily violated simply because a particular cooling unit is broken or unable to maintain adequate temperatures. This Food Code provision by its terms takes a broader perspective in assessing the sufficiency of the equipment in the restaurant as a whole. The rule requires a calculation as to whether the restaurant has adequate cold-holding equipment with enough
capacity to meet the cooling demands of the operation. The rule thus explicitly references both the number and capacity of the restaurant’s equipment. If the cooling demands of the operation can be met by simply moving the food into other available space, there is no deficiency in the restaurant’s cooling equipment capacity as regulated by Food Code Rule 4-301.11. This interpretation of the Cooling, Heating, and Holding Capacities rule has been adopted by the Division. Dep’t of Bus. and Prof’l
Reg. v. Jazzy Dog Cafe, Case No. 10-0907, 2010 Fla. Div. Adm. Hear. LEXIS 50 (Fla. DOAH July 12, 2010; Fla. DBPR Sept. 21,
2010)(evidence failed to establish that Respondent did not have sufficient equipment in number and capacity where affected food was moved to other coolers). See also Dep’t of Bus. & Prof’l Reg. v. Soup Swift, Case No. 11-1410, 2011 Fla. Div. Adm. Hear. LEXIS 865 (Fla. DOAH Aug. 1, 2011)(no violation where licensee had another working cold storage unit with sufficient capacity to hold all food at proper temperatures).
Even if the Cooling, Heating, and Holding Capacities rule could reasonably be construed otherwise, so as to regulate the cooling capability of a particular holding unit without regard to the number or capacity of cooling equipment in the restaurant, any ambiguity would have to be construed in favor of Respondent. Liner v. Workers Temp. Staffing, 990 So. 2d 473,
477 (Fla. 2008)(even though civil statute was remedial in
nature, and would normally be liberally construed, civil penalties of $1000 for violation required any ambiguity to be interpreted in favor of Appellee); Beckett v. Dep't of Fin.
Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008)(agency discretion limited in interpreting penal statutes; ambiguity must be interpreted in favor of licensee).
However, in determining whether a food service establishment’s equipment is sufficient in number and capacity to provide required food temperatures, it is clear that the equipment must be actually available to support the restaurant’s operations. Here, Petitioner clearly showed not only that the large cooler in the cooks’ line was not functioning properly, but also that the walk-in cooler, which might otherwise have provided substitute capacity to meet Maggie Qi’s equipment requirements, could not do so because of its location.
Petitioner proved by clear and convincing evidence that on July 31, 2012, and October 10, 2012, Respondent’s cooling equipment was not sufficient in number or capacity to maintain the food temperatures provided in chapter 3, in violation of rule 4-301.11.
Food Code Rule 4-601.11 is entitled “Equipment, Food- Contact Surfaces, Nonfood-Contact Surfaces, and Utensils.” This rule is indicated as critical and provides:
EQUIPMENT FOOD-CONTACT SURFACES and UTENSILS shall be clean to sight and touch.
The FOOD-CONTACT SURFACES of cooking EQUIPMENT and pans shall be kept free of encrusted grease deposits and other soil accumulations. (non-critical)
NonFOOD-CONTACT SURFACES of EQUIPMENT shall be kept free of an accumulation of dust, dirt, FOOD residue, and other debris. (non-critical)
Food Code Rule 1-201.10(B)(34) defines the term "food- contact surface” as follows:
A surface of EQUIPMENT or a UTENSIL with which FOOD normally comes into contact; or
A surface of EQUIPMENT or a UTENSIL from which FOOD may drain, drip, or splash:
Into a FOOD, or
Onto a surface normally in contact with FOOD.
Food Code Rule 1-201.10(B)(32) defines the term "food” to mean a raw, cooked, or processed edible substance; ice; beverage; an ingredient used or intended for use or for sale in whole or in part for human consumption; or chewing gum.
Mr. Smith’s testimony and reports indicate that on March 23, 2012, there was a buildup of slime on the interior of the ice machine, which holds the ice. Ice is a food and the interior surfaces of the ice machine must be kept clean to sight and touch. On July 31, 2012, the ice machine interior still had
a buildup of slime, the interior of the oyster reach-in cooler had an accumulation of food residue, and there was crusted material on the can opener. These three violations were still present at the call back inspection on October 10, 2012.
Petitioner proved by clear and convincing evidence that on March 23, 2012, July 31, 2012, and October 10, 2012, Respondent violated Food Code Rule 4-601.11(A), as incorporated by reference in rules of the Division.
Food Code Rule 5-203.14 is entitled “Backflow Prevention Device, When Required.” This rule is indicated as critical and provides:
A PLUMBING SYSTEM shall be installed to preclude backflow of a solid, liquid, or gas contaminant into the water supply system at each point of use at the FOOD ESTABLISHMENT, including on a hose bibb if a hose is attached or on a hose bibb if a hose is not attached and backflow prevention is required by LAW, by:
Providing an air gap as specified under
§ 5-202.13; or
Installing an APPROVED backflow prevention device as specified under § 5- 202.14.
The rule thus provides that the general requirement for backflow prevention devices applies to hose bibbs in two circumstances: first, when a hose is attached to the hose bibb; and second, if a hose is not attached and backflow prevention is required by law.
Mr. Smith’s testimony and reports indicate that on July 31, 2012, and October 10, 2012, the hose bibb on the wall near the sink at Maggie Qi did not have a vacuum breaker. While the request for official recognition did not include any provision of Florida Statute, rule, or ordinance generally requiring vacuum breakers on all hose bibbs, Mr. Smith testified that the bibb did have a hose attached. The incorporated Food Code therefore requires that it be installed in such a way as to preclude backflow of a solid, liquid, or gas contaminant into the water supply system, by use of either an air gap or prevention device. A hose cannot be installed with a permanent air gap, so the hose bibb needed to have a vacuum breaker under the Food Code. At hearing, Mr. Kourkoulis admitted the vacuum breaker had been removed by someone.
Petitioner proved by clear and convincing evidence that on July 31, 2012, and October 10, 2012, Respondent violated Food Code Rule 5-203.14, as incorporated by reference in rules of the Division.
Section 509.261(1) provides that any public food service establishment that operates in violation of chapter 509, or implementing rules, is subject to fines not to exceed $1,000 per offense, and possible suspension or revocation of its license.
The Division has adopted rule 61C-1.005(6), establishing disciplinary guidelines for the imposition of penalties for violations of the Food Code. It provides in pertinent part:
(6) Standard penalties. This section specifies the penalties routinely imposed against licensees and applies to all violations of law subject to a penalty under chapter 509, F.S. Any violation requiring an emergency suspension or closure, as authorized by chapter 509, F.S., shall be assessed at the highest allowable fine amount.
* * *
(b) Critical violation. Fines may be imposed for each day or portion of a day that the violation exists, beginning on the date of the initial inspection and continuing until the violation is corrected.
1. 1st offense - Administrative fine of
$250 to $500.
Rule 61C-1.005(5)(a) provides in relevant part:
'Critical violation' means a violation determined by the division to pose a significant threat to the public health, safety, or welfare and which is identified as a food borne illness risk factor, a public health intervention, or critical in DBPR Form HR-5022-014 Lodging Inspection Report or DBPR Form HR-5022-015 Food Service Inspection Report, incorporated by reference in subsection 61C-1.002(8), F.A.C., and not otherwise identified in this rule.
The violations of Food Code Rules 3-501.16(A), 3- 501.17(A), 4-204.112, 4-301.11, 4-601.11(A), and 5-203.14 were
determined by the Division to pose a significant threat to the public health, safety, or welfare and were identified as critical on DBPR Form HR-5022-015, Food Service Inspection Report. They were therefore critical violations within the meaning of rule 61C-1.005(a).
Respondent is subject to an administrative fine of
$250 to $500 on each of the six critical violations.
Rule 61C-1.005(7) sets forth aggravating or mitigating factors which may be considered in application of the penalty guidelines. None of the factors listed in the rule are present in this case to the extent necessary to justify a penalty outside of the standard penalty range.
Under all of the circumstances, a fine of $375 for each of the six critical violations, for a total fine of $2,250,
is reasonable.
RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding LOLAQ, LLC, doing business as Maggie Qi, in violation of six critical violations, and imposing a fine of $2,250, to be paid within 30 calendar days of the effective date of the final order entered in this case.
Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013.
1/ As was revealed from testimony and documentary evidence at hearing, the legal entity doing business as Maggie Qi -- and the appropriate Respondent -- is in fact LOLAQ, a Florida limited liability company. Despite the inaccurate style of the case, Mr. Kourkoulis is the sole owner and the managing member of LOLAQ, and he accepted service of all documents on its behalf.
§ 608.463(1)(a) & (2)(a), Fla. Stat. See also Magnolias Nursing & Convalescent Ctr. v. Dep't of HRS, 428 So. 2d 256, 257 (Fla.
2/ All references to statutes and rules are to the versions in effect at the time of the alleged violations on March 23, 2012, July 31, 2012, and October 10, 2012, except as otherwise indicated.
3/ Rule 61C-1.001 was amended on June 26, 2012, to renumber subsection (14) as subsection (13), but no substantive changes were made to the rule at that time. Changes effective January 1, 2013 are not applicable here.
St. George Island, Florida 32328
Charles F. Tunnicliff, Esquire Department of Business and
J. Layne Smith, General Counsel Department of Business and
Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and
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.
