STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4856

) QUALITY POULTRY AND SEAFOOD, INC., )

)

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: Mr. Lennox Patterson

Quality Poultry and Seafood, Inc. 1221 Northwest 40th Avenue Lauderhill, Florida 33313

STATEMENT OF THE ISSUE

The issue in this case concerns whether the Respondent violated Section 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 administrative fine 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's owner testified in his own behalf, but did not call any other witnesses and did not offer any exhibits. At the conclusion of the hearing the parties were allowed ten days from the hearing or from the filing of the transcript, as the case might be, 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 November 17, 1993, the Petitioner filed a timely proposed recommended order containing proposed

findings of fact and conclusions of law. As of the date of this Recommended Order, the Respondent has not filed any post-hearing submission. Specific rulings on all proposed findings of fact are contained in the Appendix hereto.

FINDINGS OF FACT

1. Respondent is engaged in the business of selling meat products at its location at 1221 Northwest 40th Avenue, Lauderhill, Florida 33313, and holds Food Permit No. 55403, pursuant to Section 500.12, Florida Statutes.

   
   

2. On February 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 63 pounds of uninspected meat product, including cow feet, cow tails, cow head meat, goat stomachs, and beef blood.

   
   

3. Goat stomachs may not be sold as human food under any circumstances in the State of Florida. The stomachs at issue were also adulterated with ingesta, or the contents of the stomach at the time the animal was slaughtered.

   
   

4. Respondent purchased the meat at issue from a farmer in Avon, Florida, and had sold approximately 415 pounds of the same product to its customers prior to the Compliance Officer's inspection. 1/

   
   

5. At the time of Respondent's selling and offering for sale of the adulterated and uninspected meat products, Respondent's owner was aware of the illegality of his actions.

   
   

6. By means of the Department's letter dated June 2, 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 253 pounds of uninspected goat meat.

   
   

7. 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 tuberculosis. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

10. In a case of this nature where the penalty the agency seeks to impose does not involve suspension or revocation of a license, the agency bears the burden of proving the allegations in its Administrative Complaint by a preponderance of the evidence.

11. 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.

    
    

12. Respondent's actions in selling approximately 415 pounds of uninspected animal products and adulterated animal products between February 4, 1993, and February 12, 1993, constitute a violation of 585.80(2), Florida Statutes.

    
    

13. Respondent's actions in offering for sale approximately 63 pounds of uninspected animal products and adulterated animal products on February 12, 1993, constitute a violation of Section 585.80(2), Florida Statutes.

    
    

14. 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.

    
    

15. In its proposed recommended order the Petitioner argues that the appropriate penalty in this case would be 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 administrative fine authorized by the statute. 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.

    
    

16. 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 a maximum fine would be excessive. Considering the totality of the evidence, it appears to the Hearing Officer that 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/

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 Section 585.80(2), Florida Statutes, by selling uninspected animal products and adulterated animal products:

   
   

2. Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products; 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/ There is conflicting evidence regarding the amount sold to the Petitioner's customers. The greater weight of the evidence is to the effect described in this finding of fact.

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 discussion 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 through 7: Accepted.

Findings submitted by Respondent. (None were submitted.)

COPIES FURNISHED:

John S. Koda, Esquire Department of Agriculture and

Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

Mr. Lennox Patterson

Quality Poultry and Seafood, Inc. 1221 Northwest 40th Avenue 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: 93-004856

Orders for Case No: 93-004856