16-000622 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Elbioli Alaa, D/B/A Miami Subs Grill
 Status: Closed
Recommended Order on Thursday, April 21, 2016.


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Summary: One thousand dollar fine is recommended against restaurant for failing to correct three violations: rusty shelves in walk-in cooler, greasy deposits around grease receptacle, and failure to produce employee training certificates.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND

12PROFESSIONAL REGULATION,

14DIVISION OF HOTELS AND

18RESTAURANTS,

19Petitioner,

20vs. Case No. 16 - 0622

26ELBIOLI ALAA, d/b/a MIAMI SUBS

31GRILL,

32Respondent.

33_______________________________/

34RECOMMENDED ORDER

36On February 29, 2016 , Robert E. Meale, Administrative Law

45Judge of the Division of Administrative Hearings (DOAH),

53conducted the final hearing by videoconference in West Palm Beach

63and Tallahassee, Florida.

66APPEARANCES

67For Petitioner: Charles F. Tunnicliff , Esquire

73Charles Laray Dewrell, Esquire

77Department of Business and

81Professional Regulation

831940 North Monroe Street, Suite 42

89Tallahassee , Florida 3 3299 - 2202

95For Respondent : Mohamed Ta ntawi

101Qualified Representative

103Miami Subs Grill

1061851 Broadway

108Riviera Beach, Florida 33404

112STATEMENT OF THE ISSUE S

117The issues are whether the shelves of a walk - in cooler were

130rusty and pitted, in violation of Food Code R ule 4 - 4. 101.19 ;

144grease was deposited around the greas e recepta cle, in violation

155of Food Code R ule 5 - 501.116(B) ; and the employer failed, upon

168request, to provide evidence of employee food - handler training ,

178as required by section 509.049 (5), Florida Statutes . If any of

190these violations are proved, an additional issue is the penalty

200that should be imposed.

204PRELIMINARY STATEMENT

206By Administrative Complaint dated January 25, 2016 ,

213Petitioner alleged that its inspector conducted inspections of

221Respondent's restaurant located at 1851 Broadway, Riviera Beach,

229Florida, on October 14 and 16 and December 17, 2015 . The

241Administrative Complaint alleges that, on each of these dates ,

250inspect ions disclosed that Responde nt was in violation of the two

262Food Code provisions and one statutory provision that are cited

272above . The Administrative Complaint seeks an administrative fine

281of $1000 per violation.

285Respondent requested a hearing by timely fi ling an Election

295of Rights on January 30, 2016.

301At the hearing , each party called one witness. Petitioner

310offered into evidence four ex hibits: Petitioner Exhibits 1

319through 4 . Respondent offered no exhibits into evidence. All of

330the exhibits were admitted into evidence.

336The court reporter f iled the transcript on March 21 , 2016.

347Petitioner filed a proposed recommended order on March 30 , 2016.

357FINDING S OF FACT

3611. At all material times, Respondent operated a restaurant

370located at 1851 Broadway in Riviera Beach, Florida, as a public

381food service establishment under Permanent Food Service license

3896009125.

3902. On October 16 , 2015, Pet itioner's inspector conducted an

400inspection of Respondent's restaurant. The inspection uncovered

407four violations , including rusty and pitted shelves in the walk -

418in cooler, grease deposited around the grease receptacle, and a

428failure, upon request, to produce evidence of employee food -

438handler training . The first two violations are " basic ," and the

449third violation is " intermediate ." The inspec tor gave Respondent

459until December 15 , 2015, to correct these violations.

4673. On December 17 , 2015, Petitioner's inspector conducted a

476callback inspection of Respondent's restaurant. The inspection

483uncovered the three violation s cited in the preceding paragraph.

4934 . Rust on shelves used for the storage of food can cause

506food - borne illness. Respondent's defense that no food was placed

517directly on a rusty shelf does not mean that no food would ever

530be placed directly on a rusty shelf by a shiftless employee.

5415 . Greasy buildups of the amount found on inspection can

552attract vermin that may serve as human vectors of food - borne

564illness, as the vermin roam the restaurant premises.

572Respondent's defense that the area in question "was n't that bad"

583misses the point that, if it is bad enough that it can attract

596vermin, it is bad enough to constitute a violation .

6066 . At the time of both inspections, Respondent failed to

617provide current training certificates of his employees because

625the training certificates of employees who had been employed at

635least 60 days had expired . Respondent's defense is that he

646needed more time , but the facts fail to support this claim . The

659three - year term of the expired certificate was enough time for an

672e mployee to obtain recertification, and Petitioner allowed

680Respondent an additional 60 days from the first inspection.

6897 . Petitioner issued a final order against Respondent

698w ithin the 24 months preceding the date of the issuance of the

711Administrative Com plaint in this case. By final order issued on

722September 10, 2015 , Petitioner imposed an administrative fine of

731$325 for three violations that were detected on February 24,

7412015, and uncorrected by May 5, 2015. These violations were a

752failure to hold food cold at the specified temperature, failure

762to maintain the proper temperature within the walk - in cooler, and

774failure to provide hot water at the employee handwash sink and

785both restrooms.

787CONCLUSIONS OF LAW

7908 . DOAH has jurisdiction. §§ 120.569 and 120.5 7(1), Fla.

801Stat. (2015).

8039 . The burden of proof is on Petitioner to prove the

815material allegations by clear and convincing evidence. Dep't of

824Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

8371996).

83810 . Florida Administrative Code R ule 61C - 1.001(14) defines

"849Food Code," as used in Florida Administrative Code C hapters

85961C - 1, 6 1C - 3, and 61C - 4, as chapters 4 and 5, among others, of

878the Food Code (2009).

88211 . Food Code R ule 4 - 4.101. 19 provides: " Nonfood - contact

896surfaces of equipment tha t are exposed to splash, spillage, or

907other food soiling or that require frequent cleaning shall be

917constructed of a corrosion - resistant, nonabsorbent, and smooth

926material. " Clearly, the shelves of the walk - in cooler do not

938resist corrosion, which, equall y clearly, resulted from some form

948of splash or spillage .

95312 . Food Code R ule 5 - 501.116(B) provides: " Soiled

964receptacles and waste handling units for refuse, recyclables, and

973returnables shall be cleaned at a frequency necessary to prevent

983them from developing a buildup of soil or becoming attractants

993for insects and rodents. " Clearly, the area around the grease

1003receptacle was cleaned, if at all, at inadequate intervals.

101213 . Section 509.049(5) addresses employee food - handler

1021training and provides in part:

1026Food service employees must receive

1031certification w ithin 60 days after

1037employment. Certification pursuant to this

1042section shall remain valid for 3 years. All

1050public food service establishments must

1055provide the division with proof of employee

1062tra ining upon request, including, but not

1069limited to, at the time of any division

1077inspection of the establishment.

1081Respondent failed to provide certificates to the inspector

1089because employees required to have current certificates did not

1098have them.

110014 . Sect ion 509.261(1) authorizes Petitioner to impose a

1110fine of not more than $1000 per offense or to suspend or revoke a

1124license for any violation of chapter 509 or the rules adopted

1135under chapter 509. Rule 61C - 1.005(5)(e) provides that the two

1146proved violation s are a "second offense" due to their o ccurrence

1158within 24 months of the earlier disciplinary final order.

1167Rule 61C - 1.005(6)( a)2. and (b)2. provides that the standard

1178penalty for a sec ond offense of a "basic" violati on is a fine of

1193$250 to $500 , and the standard penalty for a second offense of an

1206ÐintermediateÑ violation is a fine of $375 to $750 .

121615. In its proposed recommended order, Pet itioner has

1225sought a fine of $30 0 for each of the " basic" violations and

1238$400 for the "intermediate " violation , for a total of $1000.

1248This total fine is appropriate under the rule and the

1258circumstances. The prior fine of $325 had been assessed only

126890 days prior to the violations proved in this case. A

1279substantially larger fine is indicated to ensure that Respondent

1288conforms to the statutes and rules ensuring the safety of the

1299public consuming food at his establishment.

1305RECOMMENDATION

1306It is

1308RECOMMENDED that the Department of Business and Professional

1316Regulation, Division of Hotels and Restaurants, enter a final

1325order finding Respondent guilty of the three violations set forth

1335ab ove and imposing a fine of $1000 .

1344DONE AND ENTERED this 21 st day of April , 2016 , in

1355Tallahassee, L eon County, Florida.

1360S

1361ROBERT E. MEALE

1364Administrative Law Judge

1367Division of Administrative Hearings

1371The DeSoto Building

13741230 Apalachee Parkway

1377Tallahassee, Florida 32399 - 3060

1382(850) 488 - 9675

1386Fax Filing (850) 921 - 6847

1392www.doah.state.fl.us

1393Filed with the Clerk of the

1399Division of Administrative Hearings

1403this 21 st day of April , 2016 .

1411COPIES FURNISHED:

1413Charles F. Tunnicliff, Esquire

1417Charles LaRay Dewrell, Esquire

1421Department of Business and

1425Professional Regulation

14271940 North Monroe Street , Suite 42

1433Tallahassee, Florida 32399

1436(eServed)

1437Mohamed Tantawi

1439Miami Subs Grill

14421851 Broadway

1444Riviera Beach, Florida 33404

1448Rick Akin, Director

1451Division of Hotel and Restaurants

1456Department of Business and

1460Professional Regulation

1462Northwood Centre

14641940 North Monroe Street

1468Tallahassee, Florida 32399 - 2202

1473(eServed)

1474William N. Spicola, General Counsel

1479Department of Business and

1483Professional Regulation

1485Northwood Centre

14871940 North Monroe Street

1491Tallahassee, Florida 32399

1494(eServed)

1495NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1501All parties have the right to submit written exceptions within

151115 days from the date of this Recommended Order. Any exceptions

1522to this Recommended Order should be filed with the agency that

1533will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/19/2016
Proceedings: Agency Final Order
PDF:
Date: 05/19/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 05/13/2016
Proceedings: Order on Motion to Clarify.
PDF:
Date: 04/21/2016
Proceedings: Recommended Order
PDF:
Date: 04/21/2016
Proceedings: Motion for Clarification filed.
PDF:
Date: 04/21/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/21/2016
Proceedings: Recommended Order (hearing held February 29, 2016). CASE CLOSED.
PDF:
Date: 03/30/2016
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 03/21/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 02/29/2016
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 02/22/2016
Proceedings: Petitioner's Response to Respondent's Request for Final Hearing by Telephone filed.
PDF:
Date: 02/22/2016
Proceedings: Notice of Ex-parte Communication.
Date: 02/19/2016
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 02/19/2016
Proceedings: Transmittal Letter filed.
PDF:
Date: 02/19/2016
Proceedings: Transmittal Letter filed. Filed in error.
PDF:
Date: 02/19/2016
Proceedings: Petitioner's Exhibit List filed.
PDF:
Date: 02/19/2016
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 02/19/2016
Proceedings: Letter from Respondent requesting to appear by phone filed.
PDF:
Date: 02/18/2016
Proceedings: Letter to Judge Meale from Miami Subs regarding the Initial Order and Notice of Hearing filed.
PDF:
Date: 02/08/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for February 29, 2016; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 02/08/2016
Proceedings: Response to Initial Order filed.
PDF:
Date: 02/04/2016
Proceedings: Initial Order.
PDF:
Date: 02/03/2016
Proceedings: Election of Rights filed.
PDF:
Date: 02/03/2016
Proceedings: Administrative Complaint filed.
PDF:
Date: 02/03/2016
Proceedings: Agency referral letter filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
02/03/2016
Date Assignment:
02/04/2016
Last Docket Entry:
05/19/2016
Location:
Weston, Florida
District:
Southern
Agency:
Other
 

Counsels

Related Florida Statute(s) (3):

Related Florida Rule(s) (1):