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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF HOTELS AND

RESTAURANTS,

Petitioner,

vs. Case No. 16 - 0622

ELBIOLI ALAA, d/b/a MIAMI SUBS

GRILL,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in West Palm Beach

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff , Esquire

Charles Laray Dewrell, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee , Florida 3 3299 - 2202

For Respondent : Mohamed Ta ntawi

Qualified Representative

Miami Subs Grill

1851 Broadway

Riviera Beach, Florida 33404

STATEMENT OF THE ISSUE S

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

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

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

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

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

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

these violations are proved, an additional issue is the penalty

that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 25, 2016 ,

Petitioner alleged that its inspector conducted inspections of

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

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

Administrative Complaint alleges that, on each of these dates ,

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

Food Code provisions and one statutory provision that are cited

above . The Administrative Complaint seeks an administrative fine

of $1000 per violation.

Respondent requested a hearing by timely fi ling an Election

of Rights on January 30, 2016.

At the hearing , each party called one witness. Petitioner

offered into evidence four ex hibits: Petitioner Exhibits 1

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

the exhibits were admitted into evidence.

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

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

FINDING S OF FACT

1. At all material times, Respondent operated a restaurant

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

food service establishment under Permanent Food Service license

6009125.

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

inspection of Respondent's restaurant. The inspection uncovered

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

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

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

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

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

until December 15 , 2015, to correct these violations.

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

callback inspection of Respondent's restaurant. The inspection

uncovered the three violation s cited in the preceding paragraph.

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

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

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

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

5 . Greasy buildups of the amount found on inspection can

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

illness, as the vermin roam the restaurant premises.

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

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

vermin, it is bad enough to constitute a violation .

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

provide current training certificates of his employees because

the training certificates of employees who had been employed at

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

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

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

e mployee to obtain recertification, and Petitioner allowed

Respondent an additional 60 days from the first inspection.

7 . Petitioner issued a final order against Respondent

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

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

September 10, 2015 , Petitioner imposed an administrative fine of

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

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

failure to hold food cold at the specified temperature, failure

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

failure to provide hot water at the employee handwash sink and

both restrooms.

CONCLUSIONS OF LAW

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

Stat. (2015).

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

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

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

1996).

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

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

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

the Food Code (2009).

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

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

other food soiling or that require frequent cleaning shall be

constructed of a corrosion - resistant, nonabsorbent, and smooth

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

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

of splash or spillage .

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

receptacles and waste handling units for refuse, recyclables, and

returnables shall be cleaned at a frequency necessary to prevent

them from developing a buildup of soil or becoming attractants

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

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

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

training and provides in part:

Food service employees must receive

certification w ithin 60 days after

employment. Certification pursuant to this

section shall remain valid for 3 years. All

public food service establishments must

provide the division with proof of employee

tra ining upon request, including, but not

limited to, at the time of any division

inspection of the establishment.

Respondent failed to provide certificates to the inspector

because employees required to have current certificates did not

have them.

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

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

license for any violation of chapter 509 or the rules adopted

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

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

within 24 months of the earlier disciplinary final order.

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

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

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

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

15. In its proposed recommended order, Pet itioner has

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

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

This total fine is appropriate under the rule and the

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

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

substantially larger fine is indicated to ensure that Respondent

conforms to the statutes and rules ensuring the safety of the

public consuming food at his establishment.

RECOMMENDATION

It is

RECOMMENDED that the Department of Business and Professional

Regulation, Division of Hotels and Restaurants, enter a final

order finding Respondent guilty of the three violations set forth

ab ove and imposing a fine of $1000 .

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

Tallahassee, L eon County, Florida.

S

ROBERT E. MEALE

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 21 st day of April , 2016 .

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Charles LaRay Dewrell, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399

(eServed)

Mohamed Tantawi

Miami Subs Grill

1851 Broadway

Riviera Beach, Florida 33404

Rick Akin, Director

Division of Hotel and Restaurants

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

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.