The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
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 an administrative fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 20th day of September, 2010.
The Issue Whether Respondent committed the following acts alleged in the Notice to Show Cause dated July 8, 1998, and if so, the penalty that should be imposed: Violation of the Food Code, Chapter 61C-1, Florida Administrative Code, by failing to maintain hot, potentially hazardous, foods at or above 140 degrees Fahrenheit (Fº) at all times on the steam table. Violation of the electrical code by failing to provide a spacer for missing circuit breakers in the electrical box near the waitress station. Violation of the Food Code by failing to provide and use a food thermometer to monitor food temperatures. Violation of the Food Code by failing to provide a properly designed bulk food product scoop with a handle for use in the kitchen.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments within the State of Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes (1997). Respondent is a public food service establishment that operates in the State of Florida under the Division's License Control Number 03843-R. Derrick Fritts is a Sanitation and Safety Inspector employed by the Petitioner. On February 3, 1998, at approximately 3:55 p.m., Fritts visited the Seaport Restaurant food establishment located at 680 George J. King Boulevard, Port Canaveral, Florida 32920, for the purpose of performing a routine callback inspection. At the time of the inspection, the vegetable mix on the steam table was at a temperature of 116 degrees F. The baked potatoes were at 95 degrees F and the tomato sauce was at 111 degrees F. Dinners were being served from this steam table. Respondent's defense that the steam table are being broken down for diner and customers were not being served is not credible. At the time of the inspection, there was no thermometer that was readily accessible to the server at the steam table to monitor potentially hazardous foods to ensure that they are within the temperature range specified in the Food Code. At the time of the inspection, a large bulk supply of flour was being dispensed with a plastic cup rather than a scoop with a handle. There was insufficient evidence to prove that a fire code violation was present in the electrical circuit breaker box in the main dining room. The Petitioner performs inspections between the hours of 9:00 a.m. and 5:00 p.m., and occasionally after-hours, in order to better observe operating procedures. It is the Petitioner's policy to inspect food service establishments during operating hours. In the Petitioner's view, operating hours includes anytime anyone is working on the premises of a public food service establishment. Although Fritts arrived for the inspection relatively late in the day, the inspection still occurred within the 9-5 time frame. Representatives of Respondent were present for 80 percent of the inspection. Respondent was cited for violations of the 1997 Food Code under the following sections: 3-501.16(A), 4-302.12, and 3-301.11(C), C.F.R. Petitioner sent out an Industry Advisory on January 1, 1998, with the following information for licensees about the 1997 edition of the Food Code: Although the Code and Rule have been adopted, enforcement of these new provisions will not begin until April 1, 1998. Respondent received the above Industry Advisory and erroneously interpreted it to mean that none of the provisions of the 1997 Food Code would be enforced until April 1, 1998. The Food Code contains recommendations made by the United States Public Health Service Food and Drug Administration. Therefore, the Food Code is not mandatory and binding on licensees until it is adopted by the State of Florida. Chapter 61C-1.001, Florida Administrative Code, incorporates by reference the 1997 Food Code into the Florida Administrative Code, thereby adopting it. It then became binding on licensees as an official rule of Petitioner after January 1, 1998.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of the following charges and that the following penalties be imposed against Respondent: Food Code Rule 3-501.16(A), imposing an administrative fine in the amount of $500.00; Food Code Rule 4-302.12, imposing an administrative fine in the amount of $250.00; Food Code Rule 3-301.11(C), imposing an administrative fine in the amount of $250, and that Respondent attend, at personal expense, an educational program sponsored by the Hospitality Education Program. It is further. RECOMMENDED that Respondent be found not guilty of violation of Rule 61C-1.004(11), Florida Administrative Code. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of June, 1999. COPIES FURNISHED: Melvin T. Stith, Jr., Esquire Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Alan C.D. Scott, II, Esquire 101 Orange Street St. Augustine, Florida 32804 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints dated August 14 and December 21, 2009, and if so, what is the appropriate penalty?
Findings Of Fact The Department is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. China Wok is the name of an eating establishment located at 3540 U.S. Highway 17, Suite 127, Green Cove Springs, Florida. China Wok is a sole proprietorship owned by Bao Jin Chen, who holds a public food establishment license issued by the Department. Janet D'Antonio has been employed by the Department as a Sanitation and Safety Specialist for approximately 25 years. She has received training in laws and rules regarding public food service and lodging, is a certified food manager, and performs approximately 1,000 inspections each year for the Department. Brandon Doherty is employed by the Department as a Senior Sanitation and Safety Specialist, and has been working for the Department in that capacity for about six months. He previously worked for two years as a Sanitation and Safety Specialist for the Department, and, prior to that, was a manager for three years at a Jacksonville restaurant named Johnny's Delicatessen and Grill. Inspector Doherty receives regular on- the-job training, is a certified food manager, and performs approximately 1,000 inspections a year for the Department. Dan Fulton has been employed by the Department as a Senior Sanitation and Safety Specialist for 12 years, and as a Sanitation and Safety Specialist for 13 years. Before his employment with the Department, Inspector Fulton owned a restaurant in Ohio for four years. He has received training in the laws and rules governing public lodging and food services, continues to receive in-house training, and performs approximately 600 inspections for the Department each year. DOAH Case No. 10-4135 On February 24, 2009, Inspector D'Antonio performed a food service inspection of China Wok. During the inspection, Inspector D'Antonio prepared and signed an inspection report. The inspection report was prepared in an electronic format on a touch-screen electronic device. The electronic version of the inspection report was signed on the electronic device by Fang Ye, who, according to the testimony of Inspector D'Antonio, is the manager of China Wok. At the final hearing, Inspector D'Antonio testified that the temperature of two containers of chicken wings and a container of pork in the kitchen were out of compliance with the Food Code. According to Inspector D'Antonio, the temperatures of the wings in the kitchen containers were 76 degrees Fahrenheit and 85 degrees Fahrenheit, respectively, and the temperature of the pork was 75 degrees Fahrenheit. A copy of the inspection report prepared that day by Inspector D'Antonio was consistent with Inspector D'Antonio's testimony regarding the temperature of the wings and pork in the kitchen, and was accepted into evidence as corroborative hearsay. While Respondent did not dispute the temperature of the wings and pork that were observed in the kitchen that day, he explained that they had been prepared earlier that morning and were cooling down. Inspector D'Antonio admitted that prepared food was allowed a two-hour cool-down period from 135 degrees Fahrenheit to 70 degrees Fahrenheit prior to being refrigerated. She further testified, however, that she had been told by Fang Ye that the subject wings and pork had been prepared the day before. Fang Ye, however, was not called as a witness and there was no evidence presented showing that Fang Ye was authorized to speak for, or on behalf of, Respondent. Contrary to the uncorroborated hearsay of Inspector D’Antonio's recollection of what Fang Ye said, at the final hearing, Respondent insisted that food at China Wok is always prepared fresh and that the subject wings and pork were prepared the morning of the inspection. In addition, there is nothing in the inspection report indicating that the wings and pork in the kitchen were prepared the day before. As there is no competent evidence disputing Respondent's claim regarding the time the wings and pork were cooked, Respondent's testimony is credited and it is found that the subject wings and pork had been prepared earlier on the day of the inspection and were within the two-hour cool-down period at the time of the inspection. Inspector D'Antonio further testified that she found food in the walk-in cooler (also referred to as a prep cooler or sandwich bar) that was kept at potentially hazardous temperatures above 41 degrees Fahrenheit. She could not recall, however, what type of food it was and failed to make note of the food types or their temperatures in her inspection report. Therefore, it is not found that Respondent had food in the prep cooler at potentially hazardous temperatures on February 24, 2009. Inspector D'Antonio did not testify about any other violations found during her inspection of China Wok on February 24, 2009. Therefore, the Department failed to prove any of the violations allegedly found during the inspection conducted on February 24, 2009. On June 19, 2009, the Department performed another food service inspection of China Wok. The inspection was performed by Inspector Doherty. During the inspection, Inspector Doherty prepared and signed an inspection report prepared in an electronic format on a touch-screen electronic device setting forth violations he observed during the inspection. Respondent signed the inspection report on the date it was prepared by signing the touch-screen device. According to Inspector Doherty, during his inspection, food at China Wok was held in the prep cooler at temperatures greater than 41 degrees Fahrenheit, including beef at 49 degrees, shrimp and chicken at 50 degrees, and pork at 51 degrees Fahrenheit. Inspector Doherty's inspection report, although hearsay, corroborates his testimony regarding the violations. Respondent tried to explain the reported temperatures by suggesting that the food was cooling down. Inspector Doherty was quite sure in his testimony that the food was not cooling down from earlier preparation because it was raw food. Respondent, in his testimony, tried to further explain the reported higher temperatures in the prep cooler by suggesting that the inspection, which was conducted at approximately 11:30 a.m., was conducted during the restaurant's busiest time, and that the food warmed up because the prep cooler was opened a lot during that time. In fact, during the inspection, Respondent asked Inspector Doherty to come back later and take the temperatures again, but Inspector Doherty never did. Respondent did not, however, dispute the higher temperatures that Inspector Doherty found during his inspection of China Wok on June 19, 2009, and it is found that the temperatures recalled and reported by Inspector Doherty for the raw food in the prep cooler were accurate. Critical violations are those violations that, if not corrected, are most likely to contribute to food-borne illness, cross-contamination, and other environmental hazards. Cf. Fla. Admin. Code R. 61C-1005(5)(a). Non-critical violations are those that are not directly related to food-borne illness. Cf. Fla. Admin. Code R. 61C-1005(5)(a). Food that is not held within the proper temperature range is classified as a critical violation because it is the number one cause of food-borne illness. The reported food held at temperatures greater than 41 degrees Fahrenheit found in the prep cooler during the June 19, 2009, inspection of China Wok constitutes a violation by Respondent of the Food Code and a critical violation. DOAH Case No. 10-4140 On November 18, 2009, Inspectors D'Antonio and Fulton performed another food service inspection of China Wok. Inspector D'Antonio prepared an inspection report based upon a digital recording made by Inspector Fulton at the time of the inspection. According to Inspector Fulton and the inspection report, the November 18, 2009, inspection revealed food in Respondent's walk-in cooler at temperatures greater than 41 degrees Fahrenheit, including ribs, pork, shrimp, poultry and milk that were observed at a temperature of 46 degrees Fahrenheit. In addition, according to Inspector Fulton's testimony and corroborating inspection report regarding the November 18, 2009, inspection of China Wok, there was prepared food in the kitchen found at temperatures less than 70 degrees Fahrenheit, including garlic in oil at 63 degrees Fahrenheit, fried chicken dumplings at 52 degrees Fahrenheit, and poultry at 44 degrees Fahrenheit. According to Inspector Fulton, those foods had not been prepared within six hours of the temperature readings. Inspector Fulton also noted prepared rice found in a rice cooker with a temperature of 70 degrees Fahrenheit. Respondent disputes the contents of the inspection report from the November 18, 2009, and refused to sign the report. At the hearing, Respondent first contended that the inspectors did not take temperatures during the November 18, 2009, inspection. In contradiction to that assertion, Respondent then testified that he asked the inspectors to re- check the temperatures the day of the inspection. Respondent also recalled checking the temperature with his own thermometer, but that the inspectors ignored the temperature readings he obtained. Both Inspector Fulton and Inspector D'Antonio recalled that temperatures were actually taken. During the final hearing, Inspector D'Antonio recalled that Respondent had tried to use his own thermometer but that it was not accurate. Considering Respondent's inconsistent testimony on the issue of whether temperatures were taken, and the combined testimony of Inspector Fulton and Inspector D'Antonio, and the corroborating inspection report, it is found that the reported temperatures were taken of the food during the November 18, 2009, inspection, and that the temperatures reported by Inspector Fulton are accurate. The food held at 46 degrees Fahrenheit in the walk-in cooler and the prepared food found in the kitchen discovered during the November 18, 2009, inspection of China Wok were potentially hazardous foods because they were held at temperatures different than allowed by the Food Code. Therefore, Respondent violated the Food Code, and, because foods out of permissible temperature ranges are some of the most likely sources of food-borne illnesses, Respondent's violation constitutes a critical violation. Another violation noted by Inspector Fulton during his testimony and in the inspection report from the November 18, 2009, inspection was misrepresentation of food or food product. According to Inspector Fulton’s testimony and the report submitted, the term "crab meat" was on the menu for rangoon, but no crab meat was used. Misrepresentation of food or food product is also classified as a critical violation. Such misrepresentation is listed as a critical violation because many people have food allergies and can become ill if they ingest food that is not properly identified. Although acknowledging that the term "crab meat" was on the menu and that the crab used in the rangoon was imitation crab, Respondent testified that he was not given a chance to correct the misrepresentation violation. In contrast, Inspector Fulton explained in his testimony that the Department requires its inspectors to immediately cite misrepresentation in order to protect customers with food allergies, and that no chance to correct misrepresentation of food is given prior to issuing a citation for the violation. Respondent further testified that there was a large sign inside the restaurant indicating that imitation crab meat is used. On cross-examination, however, Respondent could not recall whether he pointed out the sign to Inspector Fulton. Mr. Chen corrected the menu after he was cited for misrepresentation. Based on the testimony and corroborating inspection report, it is found that, although Respondent has since corrected the menu and put up a sign informing patrons that China Wok uses imitation crab meat, at the time of the November 18, 2009, inspection, Respondent was knowingly and willfully misrepresenting imitation crab meat as "crab meat" on China Wok's menu. That violation constitutes a critical violation.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department enter a final order, which confirms the violations found during the inspections of China Wok conducted on June 19 and November 18, 2009, and imposes an administrative penalty in the amount of $375.00 for the violations discovered during the inspection conducted June 19, 2009, and $875.00 for the violations discovered during the November 18, 2009. DONE AND ENTERED this 22nd day of December, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 22nd day of December, 2010.
The Issue The issue is whether Respondent's public food establishment license should be revoked or otherwise penalized for violating Chapter 509, Florida Statutes, and Rule 61C, Florida Administrative Code.
Findings Of Fact Petitioner is the state agency that has the responsibility to license and inspect public food service establishments pursuant to Chapter 509, Florida Statutes. At all times material hereto, Respondent was licensed to operate and did operate a public food service establishment, holding license number 11-02423-R. Respondent's restaurant is located at 6253 Newberry Road, Gainesville, Florida. On January 22, 1999, Petitioner's staff inspected Respondent's establishment. The inspection revealed eighteen violations for which Respondent was cited. Ten of the violations were repeat offenses. Respondent was advised in writing that all violations had to be corrected by February 4, 1999. On February 5, 1999, Petitioner's staff performed a call back/re-inspection at Respondent's restaurant. The inspection revealed that Respondent had not corrected the following five violations: (a) sliced turkey at 51°F in well of sandwich-maker table; (b) unavailability of a product thermometer; (c) plastic tableware not dispensed with handles extended out; (d) glass cleaner stored on counter at the ice bin; and (e) extension cord used at the drink refrigerator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that Petitioner enter a final order finding that Respondent is guilty of violating Chapter 509, Florida Statues, and imposing an administrative fine in the amount of $200.00. DONE AND ENTERED this 8th day of August, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 8th day of August, 2000. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jamil Al-Issa Issa Corporation 6253 Newberry Road, Suite F-20 Gainesville, Florida 32605 Jamil Al-Issa 5160 Conroy Road, Apartment 1414 Orlando, Florida 32811 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
