The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the various acts alleged in the Administrative Complaint in violation of the "food code," as more particularly cited below, and, if so, what if any penalty is warranted.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged with regulating the operations of lodging establishments and restaurants in terms of food safety, and other sanitation matters. The Respondent is a licensed and regulated business under the jurisdiction of the Department's Division of Hotels and Restaurants, the Petitioner in this case. It has been issued license number 20-01008. The Respondent, China Wok's business address is located at 3540 U.S. Highway 17, Number 127, Green Cove Springs, Florida 32043. Daniel J. Fulton is employed by the Department as a Senior Sanitation and Safety Specialist. His training and credentials are as reflected in the record and he has been employed with the Department for approximately seven years. He has some 10 years of experience owning and managing restaurants and undergoes periodic training in his present position as an inspector or investigator. He performs approximately 700 inspections annually for the Department. On April 24, 2006, Mr. Fulton inspected the premises of China Wok, at which point he observed what he believed were certain critical violations. Critical violations are those which if not corrected are likely to contribute to an environmental safety hazard or to constitute a safety hazard by themselves as, for instance, posing the risk of causing illness to members of the public by spoliation of food. As a result of his inspection Mr. Fulton prepared an inspection report setting forth his findings from his inspection, in evidence as Petitioner's Exhibit Two. On that date, April 24, 2006, Mr. Fulton observed what he believed were potentially hazardous foods (chicken, shrimp, for instance) maintained on a "make table" at temperatures above 41 degrees Fahrenheit, an authorized regulatory temperature referenced in the rules cited below. On that date, Mr. Fulton reported that he observed cold-holding equipment incapable of maintaining potential hazardous foods at proper temperatures and that an ambient air thermometer was not located in the warmest part of the holding unit. He also observed uncovered food in a holding unit (a walk-in cooler) and observed equipment that was soiled with accumulated grease (the hood over a range). General speaking, the rules cited below require food to be maintained at temperatures of 41 degrees Fahrenheit or below when not frozen. In a mechanically refrigerated or hot food storage unit the censor of the temperature measuring device must be located to measure the air temperature or simulated product temperature in the warmest part of a mechanically refrigerated unit and in the coolest part of a hot food storage unit. Mr. Fulton acknowledged in his testimony that after his first inspection the problems that he had noted had been corrected, with the exception of his perception of the food temperature issue, the grease on the hood, and the question of a light in the walk-in cooler not being shielded (this last was not charged in the Administrative Complaint). Moreover, the testimony of Mr. Fulton and that offered by the Respondents indicate that Mr. Fulton made his observations regarding food temperature co-extensive with the busy time during the lunch period at the restaurant when customers were being served and food prepared for lunch. Thus, consonant with the rules referenced below, it is found that the preponderant, credible testimony and evidence shows that the inspections regarding food temperatures were made during times of "preparation, cooking, or cooling" and therefore, in reality, the subject rule was not violated as to the temperatures. The Respondents, additionally, summoned a refrigeration repair company on two occasions after Mr. Fulton raised the question about the food temperatures being maintained in the refrigeration equipment and/or cold holding equipment. On both occasions the Respondents were informed by the technician who performed inspection/maintenance on the refrigeration equipment (which Mr. Fulton had opined was maintaining food at above the 41 degree Fahrenheit standard) that the equipment was functioning properly. The temperatures observed when Mr. Fulton was shown by the greater weight of the credible evidence to have resulted from the fact that the observations was made at or near a critical time during lunch preparations at the restaurant. This was a time when the cold-holding equipment where he made the observations was frequently opened and in use, while food was being taken in or out of it as part of the food preparation process. Thus, these occasions and circumstances fit within the exception referenced in the below rule for time periods when preparation, cooking or cooling of food is occurring. Moreover, although Mr. Fulton observed food thawed at room temperature, it was not shown that, in accordance with the rule cited below (Rule 3-501.13, Food Code, concerning the methods of proper thawing of food), that this was a violation. This was because it was shown by the testimony of the Respondents to have been food previously frozen that had been thawed and prepared for immediate service in response to customers' orders. There was no showing that it had remained exposed to room temperature for a longer period of time after being thawed above 41 degrees Fahrenheit than is allowed by the rule referenced immediately above. Thus, this violation, concerning food thawing, has not been established by clear and convincing evidence. It has been established that Mr. Fulton did observe food contained in a walk-in cooler which was uncovered at the time. The rule cited below shows that all food must be protected from cross contamination by being stored in covered containers, wrapping, or packages. Mr. Fulton also found and established that the cleanliness of the hood or range-hood did not meet proper standards, with deposited grease thereon. In fairness to the Respondents, they in turn established that they regularly clean the equipment, including the range hood, to remove grease, and if they did not do so there would be a great deal more deposited in just a few days or weeks time. Nonetheless, this violation, on the day in question when it was observed, has been established. The Respondents have operated their restaurant for six years with no customer complaints and no complaints or other evidence that any contaminated food has ever been served to customers. The Respondents, moreover, have cooperated with and expressed a desire to cooperate with the Petitioner in the future in ensuring an absence of violations and a clean, sanitary restaurant operation. As they clearly pointed out in their testimony, there is no interest that they have in failing to run a clean and sanitary, efficient restaurant operation because that would simply drive customers away and ruin their business. Therefore, they recognize they have every incentive to self-police their operation and intend to continue doing so.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, finding that the Respondent committed the violations found and concluded above, and that a penalty of $300.00 be imposed. It is further recommended that as to its other allegations, the Administrative Complaint be dismissed. DONE AND ENTERED this 23rd day of April, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 23rd day of April, 2007. COPIES FURNISHED: Bao Jin Chen China Wok 3540 US Highway 17, No. 127 Green Cove Springs, Florida 32043 Jennifer L. Condon, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Michael Martinez, Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
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.
Findings Of Fact 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.
Recommendation Upon consideration of the above 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 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. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 6th day of May, 2013.
