STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

vs.

Petitioner,

Case No. 13-4682

KOY WAN HIBACHI BUFFET,

Respondent.

/

RECOMMENDED ORDER

On January 29, 2014, an administrative hearing in this case was held by video teleconference in Orlando and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

Suite 42

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Ken Cheung, pro se

Koy Wan Hibachi Buffet Suite 1179

945 West State Road 436

Altamonte Springs, Florida 32714

STATEMENT OF THE ISSUE

Whether the allegations in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Koy Wan Hibachi Buffet (Respondent) are correct.

PRELIMINARY STATEMENT

By an Administrative Complaint dated September 4, 2013, the Petitioner cited the Respondent, a restaurant owned and operated by Ken Cheung, for allegedly violating Food Code (Code) regulations specified therein.

The Respondent filed an Election of Rights form disputing the allegations and requesting that a formal hearing be conducted. On December 6, 2013, the Petitioner forwarded the dispute to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of one witness and had Exhibits 1 through 4 admitted into evidence. The Respondent presented the testimony of one witness.

The Transcript of the hearing was filed on March 5, 2014.

On March 17, 2014, the Petitioner filed a proposed recommended order that has been considered in the preparation of this Recommended Order.

Prior to the hearing, the parties filed a Pre-hearing Stipulation noting that the Respondent admitted the violations

alleged as Counts 4, 7, 8, and 9 (Part B) of the Administrative Complaint. On March 4, 2014, the Petitioner filed a Notice of Voluntary Dismissal of Count 14. This Recommended Order addresses the remaining Counts 1 through 3, 5, 6, 9 (Part A),

10 through 13, and 15.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/

2. At all times material to this case, the Respondent was operating as a large buffet-type public restaurant located at 945 West State Road 436, Suite 1179, Altamonte Springs, Florida 32714.

3. On April 22, 2013, Amy Zaleski and Cecelia Chiu, trained and experienced sanitation and safety specialists employed by the Petitioner, performed a routine inspection of the Respondent, during which the inspectors observed various violations of the

   Code.

   
   

4. At the conclusion of the routine inspection, Ms. Zaleski

   
   

   prepared a written report documenting the Code violations observed by the inspectors.

5. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Ander Chow and discussed the violations with him.

   
   

6. According to the inspection report, the violations were to be corrected by 8:00 a.m., on June 21, 2013, at which time a "callback" inspection was scheduled to occur.

7. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected.

8. On June 24, 2013, Inspectors Zaleski and Chiu performed a callback inspection of the Respondent and observed that some of the Code violations observed during the routine inspection had not been corrected.

9. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors.

10. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Melody Chen and discussed the violations with her.

11. The Code classifies violations as either "high priority," "intermediate" or "basic," essentially reflecting the level of threat to public health posed by a deficiency. A high priority violation is one that poses a direct or significant threat to public health. An intermediate violation is one that, uncorrected, could develop into a high priority violation. A basic violation is one of core sanitation and maintenance

    
    

    requirements that does not meet the level of a high priority or

    
    

    intermediate violation.

    
    

    Count 1

    
    

12. Raw oysters and other "shellstock" are sold to restaurants in containers that are tagged to identify the source of the product and the date of the harvest.

13. The relevant portion of the Code requires that establishments serving shellstock must prevent the comingling of products from different sources and harvest dates.

14. The Code also requires establishments to retain the tags for 90 days to permit identification of the source and date of harvest. The purpose of the requirement is to facilitate identification of a potential source of contaminated shellstock after an occurrence of food-borne illness by persons consuming the product.

15. The Respondent offered raw oysters available for public consumption. On the dates of both the routine and the callback inspections, the Respondent was unable to make the shellstock tags available for inspection, and the Petitioner cited the Respondent for failing to maintain the tags in the manner required. The Petitioner classified the deficiency as an intermediate violation.

16. At the hearing, the Respondent asserted that the tags were properly maintained and available at the time of the

    
    

    inspections, and that the managers present at the time of the inspections were not sufficiently proficient at speaking English to understand the inspectors' request. The assertion was not supported by credible evidence.

17. The Respondent was unable to demonstrate compliance with the tag retention requirement on the dates of the inspections.

    Counts 2 and 3

    
    

18. The relevant portion of the Code requires that certain food products be stored within specified temperature ranges to minimize the potential for bacterial growth. In the alternative, establishments may use "time control" to monitor the safety of potentially hazardous food. Essentially, an establishment can meet Code requirements either by controlling the temperature at which the product is held or by limiting the time during which the product must be consumed, cooked or discarded.

19. In Count 2, the Petitioner alleged that during both the routine and the callback inspections, the temperatures of various food items including "Krab," sprouts, shrimp, raw pork, surimi, boiled eggs, and cut melon failed to comply with the temperature- based requirements of the Code. The Petitioner classified the deficiency alleged in Count 2 as a high priority violation.

20. In Count 3, the Petitioner alleged that during both the routine and the callback inspections, sushi, a potentially

    
    

    hazardous food being served on the buffet line, failed to comply with the temperature-based requirements of the Code. The Petitioner classified the deficiency alleged in Count 3 as an intermediate violation.

21. The Respondent asserted that it used time control to monitor the products for safety. The Code requires that an establishment choosing to use time control must have written documentation identifying the practices implemented and must make the documentation available to the Petitioner on request.

22. The Respondent was unable to produce written documentation of the time control procedures during either the routine or the callback inspection.

    Count 5

    
    

23. The relevant portion of the Code prohibits storage of food on the floor because dirt, bacteria, and floor cleaning chemical residue can contaminate food stored on the floor.

24. During both the routine and the callback inspections, the Petitioner's inspectors observed boxed food being stored on the floor of a walk-in freezer. This deficiency was classified as a basic violation.

25. At the hearing, the Respondent asserted that the products had been delivered just prior to the inspections, the delivery employee placed the boxes on the freezer floor, and Respondent's employees had not yet moved the boxes from the floor

    
    

    to the shelves. The assertion was not supported by credible

    
    

    evidence.

    
    

    Count 6

    
    

26. The relevant portion of the Code provides that an employee may drink from a closed beverage container if the container is handled in a manner which prevents contamination of the employee's hands, the container, exposed food, and clean equipment and utensils.

27. The Petitioner alleged that the Respondent violated the Code because inspectors observed an employee's beverage container on a food prep counter. The evidence is insufficient to establish that the potentially permissible beverage container was not handled in such a manner as to comply with the requirements of the Code.

    Count 9 (Part A)

    
    

28. The relevant portion of the Code requires that food contact surfaces must be "clean to sight and touch" to prevent bacterial contamination. During both the routine and the callback inspections, meat-cutting boards at cooking stations were stained and soiled. Count 9 classified the deficiency as an intermediate violation.

    Counts 10 and 12

    
    

29. The relevant portion of the Code requires that "a handwashing sink shall be maintained so that it is accessible at

    
    

    all times for employee use" and that the sink "shall be equipped to provide water at a temperature of at least 100 degrees."

30. During both the routine and the callback inspections, one of the 12 handwashing sinks available to employees had various items stored in it, and there was no hot water available at that sink.

31. Count 10 identified the hot water deficiency as an intermediate violation.

32. Count 12 classified the accessibility deficiency as an intermediate violation.

33. The Respondent asserted that the hot water supply line was leaking at that particular sink and so it had been turned off. The items were placed in the sink to prevent its usage. The evidence failed to establish the reason the sink remained unrepaired after being cited as a deficiency during the routine inspection.

    Count 11

    
    

34. The relevant portion of the Code requires that a vacuum breaker device be installed on certain plumbing fixtures to prevent the backflow of contaminated water into the water supply system.

35. During both the routine inspection and the callback inspection, the inspectors observed that a splitter fitting had been installed on the mop sink faucet and that no vacuum device

    
    

    was present. This deficiency was classified as a high priority

    
    

    violation.

    
    

    Count 13

    
    

36. The relevant portion of the Code requires that the operator of an establishment take effective measures to protect the premises from infestation by vermin, such as roaches.

37. During the routine inspection, a gap was visible at the threshold of an exterior door at the rear of the restaurant through which vermin could enter the building.

38. During the routine inspection, inspectors observed dead roaches inside a cabinet under a "soft-serve" ice cream machine, in a cabinet under a handwash sink, on the floor at a "wait station," and inside a storage area where unused equipment was located. Roach excrement was present on the gasket of an unused cooler located in the storage area.

39. During the callback inspection, the gap remained unrepaired. Inspectors again observed dead roaches inside a storage area where unused equipment was located and roach excrement on the gasket of an unused cooler.

40. Roaches present a risk of bacterial contamination and disease to surfaces and food contact areas.

41. Count 13 classified presence of vermin as a high priority violation and the gap under the exterior door as a basic violation.

    
    

    Count 15

    
    

42. The relevant portion of the Code requires that carbon dioxide and helium tanks be adequately secured. An unsecured carbon dioxide tank can fall over, explode, and become a dangerous projectile.

43. During both the routine inspection and the callback inspection, inspectors observed a carbon dioxide tank stored in an upright position without being properly secured. This deficiency was classified as a basic violation.

    CONCLUSIONS OF LAW

    
    

44. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

45. The Petitioner is the state agency charged with the regulation of food service establishments in the State of Florida. See chapter 509, Fla. Stat. The Petitioner has adopted

    by incorporation the various provisions of the Code specifically identified in the Administrative Complaint and referenced herein. See Fla. Admin. Code R. 61C-1.001.

46. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Dep't of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla.

    1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

47. The Respondent admitted the violations alleged as Counts 4, 7, 8, and 9 (Part B). The Petitioner dismissed Count 14. The burden has been met as to Counts 1 through 3, 5,

    9 (Part A), 10 through 13, and 15. The evidence was insufficient to sustain the violation alleged in Count 6.

48. Section 509.261(1) provides that a food service establishment operating in violation of applicable statutes or rules may be fined in an amount not to exceed $1,000 per offense. In addition, such offenses may be disciplined by mandatory attendance at an educational program sponsored by the Hospitality Education Program or by suspension, revocation, or refusal of a license.

49. The Respondent was the subject of an Administrative Complaint filed in 2013 for a number of deficiencies that were then identified as "critical" Code violations. The Respondent failed to respond to the complaint, and on April 5, 2013, the Petitioner entered a Final Order on Waiver, imposing a penalty of

    $1,200 against the Respondent.

    
    

50. The Code was subsequently revised, and what were previously identified as "critical" violations are now identified as "high priority" violations.

51. The Petitioner has adopted disciplinary guidelines applicable to this case at rule 61C-1.005(6). Pursuant to rule 61C-1.005(5), the high priority violations set forth herein are

    
    

    regarded as "second offenses" for purposes of assessing a penalty.

52. The guidelines identify an administrative fine of $150 to $300 as the appropriate penalty for first offense basic violations, an administrative fine of $200 to $400 as the appropriate penalty for first offense intermediate violations, and an administrative fine of $500 to $1,000, or license suspension, or both, as the appropriate penalty for high priority "second offense" violations.

53. For purposes of recommending an appropriate administrative fine, both parts of Count 9 have been treated as a single intermediate violation. Two separate violations, one high priority and one basic, were charged within Count 13, and the recommended fine has been calculated accordingly.

54. The recommended fine set forth below is based upon a fine of $300 for each of the five basic violations, a fine of

$400 for each of the six intermediate violations, and a fine of

$1,000 for each of the three high priority violations that have been established or admitted during this proceeding.

RECOMMENDATION

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 imposing a fine of $6,900 against the

Respondent and requiring that the Respondent complete an appropriate educational program related to the violations set forth herein.

DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2014.

ENDNOTE

1/ Unless otherwise noted, all statutory references are to Florida Statutes (2013).

COPIES FURNISHED:

Diann S. Worzalla, Director Division of Hotels and Restaurants Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation Suite 42

1940 North Monroe Street Tallahassee, Florida 32399-2202

Ken Cheung

Koy Wan Hibachi Buffet Suite 1179

945 West State Road 436

Altamonte Springs, Florida 32714-2942

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: 13-004682

Orders for Case No: 13-004682