STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3526

)

HENRY'S SEAFOODS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 29, 1984, in Miami, Florida.

APPEARANCES

For Petitioner: Frank A. Graham, Jr., Esquire

Department of Agriculture and Consumer Services, Mayo Building Tallahassee, Florida 32301

For Respondent: Michael I. Rose, Esquire

Roberts Building, Suites 303 and 330

28 West Flagler Street Miami, Florida 33130

ISSUE

The issue presented herein is whether or not the Respondent, Henry's Seafoods, Inc., processed and packed a quantity of frozen lobster tails in which the net weight content of the containers were less than that stated on the container label.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact.

   
   

2. Henry's Seafoods, Inc. is a seafood processor in Medley, Dade County, Florida.

   
   

3. On August 31, 1983, Frederico Cagigol, D.V.M an inspector employed by the Petitioner, made a routine inspection of the Respondent's processing facility situated at 6901 NW 77 Terrace, Medley, Florida. Inspector Cagigol weighed 5 lots Containing 130 cases of lobster tails all packaged in boxes claiming a net weight of 10 pounds (160 ounces) each. Inspector Cagigol weighed

   all of the boxes and found an average deficit weight of 3 pounds (48 ounces) in each box whereas the net weight claimed was ten pounds each. Inspector Cagigol issued a citation to Respondent and ordered that the boxes be reweighed and affixed with proper labels reflecting the correct net weight. In connection with the citation to Respondent, Inspector Cagigol also issued a Stop Sale on the lobsters. Respondent reprocessed and relabeled the lots and changed the net weight on each container to reflect a net weight of 7 pounds. Inspector Cagigol rechecked the boxes on September 2, 1983 and found that they, in fact, contained the net weight claimed i.e., 7 pounds. Inspector Cagigol issued a release to Respondent.

   
   

4. it is incumbent upon a processor to properly label processed foods once the product is processed and placed in the freezer for sale.

   
   

5. Respondent contends that the lobster tails inspected by Inspector Cagigol were for a customer who wanted his name to appear on the boxes as the processor. Respondent admits that the lobsters were packed in a container reflecting a claimed net weight of 10 pounds.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. Respondent, Henry's Seafoods, Inc., is a food processor within the meaning of section 500.121(1), Florida Statutes.

   
   

9. The holding or offering for sale of any food...that is misbranded is prohibited by section 500.04(1), Florida Statutes. Food is misbranded if its labeling is false or if, in package form, it does not contain a label bearing the name and place of business of the manufacturer, packer or distributor; or contains an inaccurate statement of the quantity of the contents in terms of weight...(section 500.11, Florida Statutes.)

   
   

10. Based on the foregoing findings and conclusions, it is herein concluded as a matter of law that the Respondent processed and packed a quantity of frozen lobster tails which, upon inspection, revealed that the net weight content of the containers were less than that stated on the containers. This conduct amounts to violations of sections 500.04 and 500.11, Florida Statutes.

    
    

11. Section 500.121, Florida Statutes, authorizes the Petitioner to discipline any food processor for violation of any provisions of Chapter 500, Florida Statutes, or rules of the Department. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is herein recommended:

That the Respondent be fined $500 for the violations found herein.

RECOMMENDED this 16th day of May, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1984.

ENDNOTE

1/Section 5E-6.02, Florida Administrative Code, adopts the Code of Federal Regulations, Title 21. Part 101-Food Labelling, as rules and regulations within Chapter 500, Florida Statutes.

COPIES FURNISHED:

Frank A. Graham, Jr., Esquire Department of Agriculture

& Consumer Affairs Mayo Building

Tallahassee, Florida 32301

Michael I. Rose, Esquire Roberts Building

Suites 303 and 330

28 W. Flagler Street Miami, Florida 33130

Doyle Conner Commissioner

Department of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-003526

Orders for Case No: 83-003526