STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELBOURNE DONUTS, INC., )

n/k/a New Haven Donuts, Inc., ) d/b/a DUNKIN DONUTS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5053

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on December 12, 1995 in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Manuel Ornelas

Secretary and Director Dunkin Donuts

2025 West New Haven

West Melbourne, Florida 32904

For Respondent: Linton G. Eason, Esquire

Office of the General Counsel Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Whether Petitioner violated provisions of Chapter 500, Florida Statutes the Florida Food Safety Act, and Chapter 5K-4, Florida Administrative Code, on April 28, May 12 and May 25, 1995 and if so, whether an administrative fine should be imposed for those violations.

PRELIMINARY STATEMENT

Following inspections of the Petitioner's business premises in April, May and June, 1995, Respondent issued a Notice of Intent to Impose an Administrative Fine on June 30, 1995. Petitioner disputed the Department's factual allegations and requested a formal hearing. This matter was referred to the Division of Administrative Hearings on October 13, 1995, and this proceeding followed.

At the hearing, Respondent was present and ready to proceed. Petitioner did not appear. Diligent search and inquiry was made. A representative for the Petitioner appeared in due time. After inquiry by the Hearing Officer, Manuel Ornelas, appearing on behalf of Petitioner, indicated that he, personally, had not received notice of the hearing. However, the Notice of Hearing had been sent to the correct mailing address, and Ornelas indicated he did not always receive his mail. After a short recess to review Respondent's witness list and documents, Petitioner announced that it was ready to proceed with the hearing.

Respondent proceeded forward with the evidence, and called Manuel Ornelas as an adverse witness, and Mark Lamb, Food Inspector, and offered two exhibits in evidence. Manuel Ornelas testified on behalf of the Petitioner, and offered no exhibits in evidence. The proceeding was recorded but not transcribed.

Petitioner has not submitted proposed findings of fact as of the date of this order. Respondent submitted its Proposed Recommended Order on December 18, 1995. My specific rulings on Respondent's proposals are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner Dunkin Donuts is a retail bakery located at 2025 West New Haven Avenue, West Melbourne, Brevard County, Florida, and had a valid food permit during the relevant time period.

   
   

2. Respondent, Department of Agriculture and Consumer Services, is charged with the administration and enforcement of Chapter 500, Florida Statutes, the Florida Food Safety Act, and the rules promulgated thereunder relating to food safety and the selling of food to the consuming public.

   
   

3. Following a complaint by a consumer, Respondent's food safety inspectors conducted food safety inspections at Petitioner's place of business on four occasions.

   
   

4. On inspections conducted on April 28, 1995, May 12, 1995, and May 25, 1995, Petitioner received an overall rating of "poor". Not until the fourth inspection which was conducted on June 8, 1995, did Petitioner receive an overall rating of "good".

   
   

5. On April 28, 1995, an inspection determined that Petitioner held food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: food products improperly stored on the floor of the walk-in freezer; old dried food product spillage on the floor of the walk-in cooler, freezer and storeroom; unpackaged food product left uncovered in the storeroom; shell eggs improperly stored at internal temperature in excess of 60 degrees F.; employees without proper hair restraints; grease build up in several locations; unsealed wood table used for mixer; handwash sink inaccessible to employees.

   
   

6. On May 12, 1995, a re-inspection determined that a few of the prior violations had been corrected. However, Petitioner continued to hold food items in an unsanitary environment and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; employees without proper hair restraints; improper use of pest strip in storeroom; no soap or hand drying device provided for employees; paint brush improperly used as

   pastry brush; cardboard improperly used as shelf liner and floor mats; and wiping cloths failed to be stored in sanitizing solution.

   
   

7. On May 25, 1995, a re-inspection determined that several prior violations had not been corrected. Petitioner continued to hold food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; cardboard improperly used as shelf liner; improper use of pest strip; failure to provide soap or hand drying device in processing area; employees without hair restraints ; improper storage of equipment; wiping cloths failed to be stored in sanitizing solution; and failure to cover dumpster.

   
   

8. Mr. Ornelas argues that he and his family and several employees operate the facility in an acceptable manner. They work long hard hours. They are baking donuts all the time and do not have time to keep the premises as clean as the inspectors insist. However, they do not offer unsanitary food to the consuming public, and the cited violations were eventually corrected; therefore, Petitioner should not be subjected to the payment of a fine, according to Mr. Ornelas.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 500.032, Florida Statutes, grants to the Department of Agriculture and Consumer Services authority to administer and enforce the provisions of Chapter 500, Florida Statutes, the Florida Food Safety Act.

    
    

11. Section 500.09, Florida Statutes, grants the Department of Agriculture and Consumer Services the authority to adopt sanitary rules governing the handling of food products.

    
    

12. Section 500.121(1), Florida Statutes, grants the Department of Agriculture and Consumer Services authority to impose an administrative fine not to exceed $5,000.00 for each violation of Chapter 500, Florida Statutes.

    
    

13. Section 500.04, Florida Statutes, prohibits the delivery or proffered delivery of food that is adulterated.

    
    

14. Section 500.10, Florida Statutes, declares food to be adulterated if it is kept under unsanitary conditions where it may become contaminated with filth or where it may have been rendered unwholesome or injurious to health.

    
    

15. The Notice of Intent to Impose an Administrative Fine dated June 30, 1995, alleges Petitioner violated Chapter 500, Florida Statues and Chapter 5K-4, Florida Administrative Code, on April 28, 1995; May 12, 1995; and May 25, 1995. Such violations include, but are not limited to improper storage of food product, failure to use hair restraints, lack of proper cleaning procedures, and improper use of equipment and supplies.

    
    

16. The Department is charged with the burden of proof to substantiate its allegations, Young v. Department of Community Affairs, 625 So.2d 831 (Fla. 1993), and such proof must be made by substantial competent evidence. Martuccio

    v. Dept. of Pro. Regulation, 622 So.2d 607 (Fla. 1st DCA 1993). It was undisputed that the Respondent's inspectors found the unsanitary conditions

    noted on the Department's Inspection Reports which formed the basis of the Notice of Intent to Impose an Administrative Fine. Further, food items were held and offered for sale to the consuming public on each of the days specified in the Notice of Intent.

    
    

17. The Respondent has carried its burden of showing by substantial and competent evidence facts which support the allegations contained in the Notice of Intent to Impose an Administrative Fine.

    
    

18. Mr. Ornelas' argument that he and his family are just too busy; or that his employees just don't care enough to keep the premises as clean as the Department wants; or that it is clean enough; and Petitioner would never offer unsanitary food for sale to the consuming public is unpersuasive. Numerous other proprietors are faced with the same challenges every day and are able to maintain a clean and safe food service establishment.

    
    

19. Mr. Ornelas further argues that because his business is struggling financially to make a profit and the premises was cleaned up by the fourth inspection, it should not be liable for payment of fine is also not persuasive. However, because the premises received a "good" rating on June 8, 1995, the administrative fine should be moderated.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner be found guilty of numerous violations of the

Florida Food Safety Act, on April 28, May 12 and May 25, 1995, and that final order be entered assessing an administrative fine in the amount of $2,000.00 against Petitioner.

DONE and ENTERED this 9th day of January, 1996, in Tallahassee, Florida.

DANIEL M. KILBRIDE, 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 9th day of January, 1996.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner.

Petitioner did not submit proposed findings of fact.

Proposed findings of fact submitted by Respondent.

Accepted in substance: paragraphs 1, 2, 3, 4

Rejected as subsumed or a comment on the evidence: paragraph 5.

COPIES FURNISHED:

Manuel Ornelas Officer and Director Dunkin Donuts

2025 West New Haven

West Melbourne, Florida 32904

Linton B. Eason, Esquire Office of the General Counsel

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0910

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0910

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their 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: 95-005053

Orders for Case No: 95-005053