STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4631

) C & F TROPICAL FOODS, INC., d/b/a ) TROPICAL FOODS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 22, 1993, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: John S. Koda, Esquire

Office of the General Counsel Department of Agriculture and

Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Calvin Anderson, pro se

President, C & F Tropical Foods, Inc. 4271 Northwest 12th Street Lauderhill, Florida 33313

STATEMENT OF THE ISSUE

The issue in this case concerns whether the Respondent violated Sections

1. and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.

   
   

   PRELIMINARY STATEMENT

   
   

   At the formal hearing in this case the Petitioner presented the testimony of three witnesses and offered two exhibits, both of which were received in evidence. The Respondent also presented the testimony of three witnesses and offered four exhibits, all of which were received in evidence. At the conclusion of the Respondent's evidence, the Petitioner recalled one witness for brief rebuttal testimony. At the conclusion of the hearing the parties were allowed until November 8, 1993, within which to file their respective proposed recommended orders.

   The transcript of the proceedings at hearing was filed with the Hearing Officer on November 8, 1993. On that same day both parties timely filed their respective proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix hereto.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes.

      
      

   2. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following:

      
      

      1. two pig carcasses,

      2. one cow head,

      3. singed cow feet,

      4. beef lungs, and

      5. goat tripe.

         
         

   3. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers.

      
      

   4. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida.

      
      

   5. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time.

      
      

   6. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray.

      
      

   7. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following:

      
      

      1. goat feet (hide on),

      2. goat intestines,

      3. goat tripe, and

      4. beef lungs.

         
         

   8. None of the products bore marks of inspection, nor were they marked as "Not for Sale."

   9. The goat feet and beef lungs were adulterated with ingesta and were generally dirty.

      
      

   10. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993.

       
       

   11. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products.

       
       

   12. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   14. The Department of Agriculture and Consumer Services is the state agency charged with the regulation and enforcement of Chapters 500 and 585, Florida Statutes.

       
       

   15. In a proceeding of this nature in which the Petitioner seeks to revoke a license, the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

       
       

       We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking

       in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:

       
       

       "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

       
       

   16. Section 500.10(1)(e), Florida Statutes, provides that a food is deemed adulterated when it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food. Section 585.72(3), Florida Statutes, mirrors the foregoing statute with regard to animal products.

       
       

   17. Section 500.04(1), Florida Statutes, prohibits the sale or offering for sale of any adulterated food.

       
       

   18. Section 585.80(2), Florida Statutes, provides that no person shall, with respect to any animal product:

       
       

       Sell, transport, offer for sale or transportation, or receive for transportation, in intrastate commerce, any animal product which is capable of use as human food and which is adulterated or misbranded at the time of such sale, transportation, offering for sale or transportation, or receipt for transportation; or any animal product required to be inspected under this part, unless it has been so inspected and passed.

       
       

   19. Section 585.88(1), Florida Statutes, in relevant part, exempts from the inspection requirements those animal products which are prepared on a custom basis that are kept separated from products prepared for sale, and which are plainly marked "Not For Sale" until delivered to the owner.

       
       

   20. Respondent's actions in offering for sale approximately 178 pounds of uninspected and adulterated animal products on January 12, 1993, constitute a violation of Section 500.04, Florida Statutes, and a violation of Section 585.80(2), Florida Statutes.

       
       

   21. Respondent's actions in offering for sale approximately 65 pounds of uninspected and adulterated animal products on February 12, 1993, constitute a violation of Section 500.04, Florida Statutes, and a violation of Section 585.80(2), Florida Statutes.

       
       

   22. Pursuant to Section 500.121, Florida Statutes, the Department has the authority to revoke or suspend a food safety permit when it is satisfied that the holder has violated any of the provisions of Chapter 500, Florida Statutes, as well as impose an administrative fine not exceeding $5,000.00 for each such violation.

   23. Pursuant to Section 585.007, Florida Statutes, any person who violates the provisions of Chapter 585, Florida Statutes, is subject to an administrative fine not exceeding $10,000.00 for each offense.

       
       

   24. In its proposed recommended order the Petitioner argues that the appropriate penalty in this case would be the revocation of the Respondent's food safety permit and an administrative fine in the amount of $10,000.00 for each of the two violations identified above, for a total administrative fine of

       $20,000.00. The Petitioner's suggestion in this regard is, of course, the maximum penalty authorized by the applicable statutes. In the normal course of events, maximum penalties are meted out to the worst offenders; lesser offenders usually warrant lesser penalties. It is also a fundamental notion of Florida administrative law that similarly situated offenders should normally receive similar penalties.

       
       

   25. The record in this case does not contain any evidence upon which to determine whether the violations in this case are among the worst or among the least of the violations encountered by the Department. Similarly, there is no evidence in the record of this case regarding what penalties the Department has previously imposed in similar cases. Viewing this case without benefit of what the Department has done in other cases, the Hearing Officer is of the view that revocation of the Respondent's food safety permit and imposition of a maximum fine would be excessive. Considering the totality of the evidence, it appears to the Hearing Officer that a penalty consisting of an administrative fine in the amount of $1,000.00 for each of the two violations, for a grand total of

$2,000.00, would be appropriate. 2/ In this regard it is noted that the Hearing Officer has recommended the same penalty in another Recommended Order issued today in Department of Agriculture and Consumer Services v. Quality Poultry and Seafood, Inc., DOAH Case No. 93-4856. The violations in this case appear to be quite similar in nature and degree to the violations in Case No. 93-4856.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect:

1. Concluding that the Respondent is guilty of a violation of Sections

   500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993;

   
   

2. Concluding that the Respondent is guilty of a violation of Sections

   500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and

   
   

3. Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines.

DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May 1994.

ENDNOTES

1/ The approximate weight of the two pig carcasses was 149 pounds. The approximate weight of the remaining uninspected meat product that was offered for sale was approximately 178 pounds.

2/ The amount of the administrative fines recommended by the Hearing Officer may be significantly higher or lower than the administrative fines the Department has previously imposed in similar cases. If such should happen to be the case, in its Final Order the Department should include a discussion of and citations to prior similar cases and the penalties imposed therein. Such discussions and citations would be appropriate (and beneficial to future litigants) regardless of whether the penalty imposed in the Department's Final Order is the same as, greater than, or less than that recommended by the Hearing Officer.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner.

Paragraph 1: Rejected as constituting a conclusion of law rather than a proposed finding of fact; a correct conclusion, but conclusion nevertheless.

Paragraphs 2 and 3: Accepted.

Paragraph 4: Accepted in substance, with clarification that the two pig carcasses, although not properly labeled, were not being offered for sale.

Paragraphs 5 through 13: Accepted.

Findings submitted by Respondent.

The rulings below address the two unnumbered paragraphs on the first page of the Respondent's proposed recommended order under the caption "FACTS."

First Paragraph: The proposals in this paragraph are rejected as being contrary to the greater weight of the evidence. Although the Respondent's president asserted at the hearing that all of the subject uninspected meat products belongs to someone else and were not offered for sale to customers, the greater weight of the persuasive evidence is otherwise.

Second Paragraph: First sentence is rejected as irrelevant, whether accurate or not. Second sentence is accepted in part and rejected in part. Accepted that Ms. Johnson knew the products were in the store and accepted that because of her friendship with Richie and Raymond Gray she let them keep their pig carcasses in the store. (The implication that all the product belong to the Gray brothers is rejected as contrary to the greater weight of the evidence.)

Under the caption "REASON" the Respondent's proposed recommended order contains several paragraphs that are, for the most part, arguments in support of the Respondent's position. This portion of the Respondent's proposed recommended order has been treated as proposed conclusions of law and argument in support of the Respondent's position. Although there are some factual assertions in this portion of the Respondent's proposal, such assertions are so intertwined with argument and conclusions as to make it impracticable to make specific rulings on each such assertion. It is sufficient to note that the primary disputed factual issues in this case concerned the ownership of the uninspected meat products and whether they were offered for sale. With the exception of the two pig carcasses, those issues have been resolved against the Respondent.

COPIES FURNISHED

John S. Koda, Esquire Department of Agriculture and

Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

Mr. Calvin Anderson

President, C & F Tropical Foods, Inc. 4271 Northwest 12th Street Lauderhill, Florida 33313

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-004631

Orders for Case No: 93-004631