02-002572 Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs. Middle East Connections Status: Closed Recommended Order on Tuesday, November 5, 2002.

Summary: $2000 fine for restaurant`s violations of sanitation law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2572

)

MIDDLE EAST CONNECTIONS, )

)

Respond ent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on August 27, 2002.

The parties, att orneys for the parties, witnesses, and court

reporter participated by videoconference in Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Tony Kalach

19575 Biscayne Boulevard, No. 1373

Aventura, Florida 33180

STATEMENT OF THE ISSUES

The issues are whether Respondent violated various

provisions of law governing the operation of restaurants and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complain t filed June 27, 2002, Petitioner

alleged that Respondent maintained gyro meat at 103 degrees

Fahrenheit, in violation of Food Code Section 3 - 501.16(A);

allowed food debris on reach - in gaskets, in violation of Food

Code Section 4 - 601.11(A); and allowed dri ed food debris on dish

shelves and grease on hood filters, in violation of Food Code

Section 4 - 602.13.

Respondent disputed the material allegations and demanded a

formal hearing.

At the hearing, Petitioner called two witnesses and offered

into evidence s even exhibits. Respondent called one witness and

offered into evidence two exhibits. All exhibits were admitted.

The court reporter filed the transcript on September 26,

2002. Petitioner filed a Proposed Recommended Order on

October 3, 2002.

FINDINGS O F FACT

1. Respondent operates the restaurant known as Middle East

Connections, which is located inside a shopping mall at 19575

Biscayne Boulevard in Aventura, Florida. This restaurant is

part of the food court inside the mall.

2. Petitioner's inspect or conducted inspections of the

restaurant on July 23, October 18, and October 29, 2001. These

inspections revealed numerous violations.

3. The inspection on October 29, 2001, identified that

Respondent was holding hot gyro meat at a temperature that w as

at least 30 degrees cooler than the minimum temperature required

for this meat. Additionally, Respondent was maintaining the

steam table at too low a temperature; thus, chicken was at a

dangerously cool temperature of 103 degrees Fahrenheit.

4. The Oc tober 29 inspection also revealed dried food

debris on the gaskets of the reach - in coolers. The risk of this

violation is that food handlers may be obtaining ready - to - eat

food, which may become contaminated if the food handlers touch

dirty cooler gaskets.

5. The October 29 inspection also uncovered dried food

debris on the dish shelves and grease on the hood filters.

Dried food debris poses a contamination risk, and greasy hood

filters pose a fire hazard.

6. Respondent's first defense is that its princi pal did

not acquire the restaurant from its former operator until

February 11, 2002. However, Respondent's principal initiated a

license transfer in August 2001. Petitioner promptly

transferred the license. Petitioner's policy is not to issue

two licens es for the same location, so that, if Respondent were

to prevail on this argument, the restaurant would have been

unlicensed during the time of these violations due to the action

of Respondent's principal in initiating a transfer of the

license.

7. The documentation of the transaction between the

current and former operators states that the change in ownership

took place on July 1, 2001, and the inspector saw Respondent's

principal at the restaurant after the license transfer.

8. Respondent's second def ense is that it has corrected

all violations and is operating the restaurant in compliance

with the law. This claim is credited, although it operates more

in mitigation than as a defense.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

10. Rule 61C - 4.010(1) adopts Food Code Chapter 3. Rule

61C - 4.010(5) adopts Food Code Chapter 4.

11. Food Code Section 3 - 501.16(A)(1) provides that

potentially hazardous foods shall be maintained at 140 degrees

Fahrenheit or above. Food Code Section 4 - 601.11(A) provides

that "equipment food contact surfaces shal l be clean to sight

and touch." Food Code Section 4 - 602.13 provides that "nonfood -

contact surfaces of equipment shall be cleaned at a frequency

necessary to preclude accumulation of soil residues."

12. Section 509.261(1) provides for a fine of $1000 per

offense, suspension or revocation of a license, and mandatory

attendance at an educational program sponsored by the

Hospitality Education Program for any violation of law by a

restaurant.

13. In its proposed recommended order, Petitioner seeks a

fine of $ 2000, suspension of the license until the first payment

is received, installments as set by the Director of the Division

of Hotels and Restaurants, and attendance at an educational

class.

RECOMMENDATION

It is

RECOMMENDED that the Division of Hotels a nd Restaurants

enter a final order imposing a $2000 fine upon such terms as the

Director determines are appropriate.

DONE AND ENTERED this 5th day of November, 2002, in

Tallahassee, Leon County, Florida.

________________ ___________________

ROBERT E. MEALE

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 5th day of November, 2002.

COPIES FURNISHED :

Susan R. McKinley, Director

Division of Hotels and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Ta llahassee, Florida 32399 - 2202

Charles F. Tunnicliff

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Tony Kalach

19575 Biscayne Boulevard, #1373

Aventura, Florida 3 3180

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 must be filed with the agency that

will issue the final or der in this case.