STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THRIFTWAY OF INDIANTOWN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5054

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 14, 1996, at Stuart, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mr. Mark Crews, Co-Owner

Thriftway of Indiantown

15488 Southwest Warfield Boulevard Indiantown, Florida 34956

For Respondent: Linton B. Eason, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

The issue in this case concerns whether the sanitary condition of the Petitioner's premises was in violation of the provisions of Chapter 500, Florida Statutes, and Chapter 5K-4, Florida Administrative Code, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

At the formal hearing on February 14, 1996, the Respondent, 1/ Department of Agriculture and Consumer Services, presented its evidence first. The Respondent presented the testimony of three witnesses, two Department employees who had inspected the subject premises, and one of the co-owners of the subject premises. The Respondent also offered 15 exhibits, all of which were received in evidence.

The Petitioner presented the testimony of two witnesses; the manager of the subject premises and one of the co-owners. The Petitioner also offered two exhibits, both of which were received in evidence.

At the conclusion of the hearing the Department indicated that it would be ordering a transcript of the hearing. The parties were allowed ten days from the filing of the transcript within which to file proposed recommended orders. The transcript of the hearing was filed with the Hearing Officer on March 6, 1996. Thereafter, the Respondent filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all proposed findings submitted by the Respondent has been incorporated into the findings of fact which follow.

By letter dated March 11, 1996, the Petitioner briefly restated its position in this case. The Petitioner's post-hearing letter does not propose any findings of fact.

FINDINGS OF FACT

1. The Petitioner, Thriftway of Indiantown, is a retail food store located at 15488 Southwest Warfield Boulevard, Indiantown, Florida. It has a mailing address of Post Office Box 188, Indiantown, Florida 34956.

   
   

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

   
   

3. Department food safety inspectors conducted food safety inspections at Thriftway of Indiantown's place of business on the following dates during 1995: April 4 and 19, May 4 and 18, and June 1 and 15. On each of the five inspections from April 4 through June 1, the Thriftway of Indiantown received an overall rating of "poor." These ratings resulted from the fact that on each of these five occasions the inspector observed unsanitary conditions that constituted violations of applicable statutory and rule provisions.

   
   

4. On each of the five inspections from April 4 through June 1, most of the violations were not critical violations. Only two critical violations were noted during the subject five inspections. One critical violation was the presence of rodent droppings. The other critical violation was the presence of live roaches. Rodent droppings were observed on all five of the subject inspections. Live roaches were observed on four of the five subject inspections.

   
   

5. The last inspection of the Thriftway of Indiantown was on June 15, 1995. On that date there were no rodent droppings, no roaches, and no other critical violations. On June 15, 1995, there were only two minor problems, which were promptly corrected, and the store received an overall rating of "fair."

   
   

6. During the period from the "poor" rating on April 4, 1995, until the "fair" rating on June 15, 1995, the manager and owners of Thriftway of Indiantown made diligent and industrious efforts to correct all of the violations noted on all of the inspection reports from April 4, 1995, through June 15, 1995. They made continuous progress towards correcting all of the non- critical violations, but in spite of their best efforts over several weeks they were unable to resolve the rodent and roach problems until early June.

7. During April and May of 1995 the manager and owners of Thriftway of Indiantown did everything they could think of to resolve the rodent and roach problem. They called their pest control service and had extra pest control treatments applied. They searched in vain for rodent nests. They moved stock and cleaned everywhere they thought there might be rodents. They set out mouse traps and glue strips. When the existing pest control service appeared to be unable to solve the rodent and roach problems, the manager and owners of Thriftway of Indiantown began looking for another pest control service. After contacting and negotiating with several pest control companies, on May 31, 1995, the owners of Thriftway of Indiantown signed a contract with a new pest control company. The new pest control company was apparently successful, because when the store was inspected on June 15, 1995, the inspector did not see any rodent droppings or any roaches.

   
   

8. On the dates of the five inspections from April 4, 1995, through June 1, 1995, Thriftway of Indiantown held food items in an unsanitary environment and offered such food for sale to the consuming public.

   
   

   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. In a case of this nature, where the potential penalties sought to be imposed by the Department include the possibility of suspension or revocation of a food permit, the burden of proof is on the Department to prove the factual basis for its proposed action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has been met and the Department has shown by clear and convincing evidence that at the time of the five inspections form April 4, 1995, to June 1, 1995, food items were held and offered for sale to the consuming public while Thriftway of Indiantown was in an unsanitary condition.

    
    

16. The evidence also shows that the manager and the owners of Thriftway of Indiantown made diligent and industrious efforts to correct the unsanitary conditions. Although it took several weeks for those efforts to produce the

    desired result, the delay in restoring the subject facility to a sanitary condition was not from the want of effort. The manager and the owners worked hard to solve the problems and those efforts are a substantial mitigating factor in the determination of an appropriate penalty.

    
    

17. In its proposed recommended order the Department argues that an appropriate penalty would be an administrative fine in the amount of five thousand dollars. Considering the totality of the evidence, the Hearing Officer is of the view that the appropriate penalty should be substantially less. 2/ Two factors which have especially compelled the Hearing Officer to this conclusion are: (1) that the manager and the co-owners of Thriftway of Indiantown made extensive efforts to resolve the problems and (2) that, although the conditions at the Thriftway of Indiantown exposed the consuming public to the risk of food contamination, the evidence does not show that any food was actually contaminated or that any contaminated food was actually sold to the consuming public.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order imposing an administrative fine in the amount of five hundred dollars ($500.00).

DONE AND ENTERED this 4th day of April 1996 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 4th day of April 1996.

ENDNOTES

1/ During the pendency of this case before the Division of Administrative Hearings, the Department of Agriculture and Consumer Services has been referred to as the Respondent, and Thriftway of Indiantown has been referred to as the Petitioner. The designations of the parties as Respondent and Petitioner should have been reversed. During the course of making findings of fact, the Hearing Officer treated the Department as the Petitioner and placed the burden of proof on the Department.

2/ The Hearing Officer's views in this regard have been formulated without benefit of any evidence in the record regarding what penalties the Department has previously imposed in similar cases. It would be helpful to all concerned if in future cases the Department would offer evidence as to what penalties it had imposed in prior similar cases. Such evidence would be of assistance in the fulfillment of the goal of imposing similar penalties on similarly situated violators.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Mr. Mark Crews Thriftway of Indiantown

15488 Southwest Warfield Boulevard Indiantown, Florida 34956

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 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: 95-005054

Orders for Case No: 95-005054