STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD J. CAMPBELL d/b/a )

GRANNY'S DONUT SHOP, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5055

) FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 6, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Richard J. Campbell, pro se

11090 Southwest 155 Place

Miami, Florida 33196

For Respondent: Linton B. Eason, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUES

At issue is whether the sanitary condition of 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. 1/

PRELIMINARY STATEMENT

By notice dated February 15, 1995, the Department of Agriculture and Consumer Services (Department) advised petitioner 2/ that it proposed to impose an administrative fine and/or suspend petitioner's food permit for a perceived lack of proper sanitary conditions at the premises known as Granny's Donut Shop. Petitioner filed a written response, disputing the Department's allegations, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, the Department called Bryan Kirkconnell and Armando Escoto, and its exhibits 1-5 were received into evidence. Petitioner, Richard J. Campbell, testified on his own behalf, but offered no exhibits.

The transcript of hearing was filed February 28, 1996, and the parties were accorded ten days from that date to file proposed recommended orders; however, neither party elected to file such a proposal.

FINDINGS OF FACT

The Parties

1. Petitioner, Richard J. Campbell, d/b/a Granny's Donut Shop, was, at all times material hereto, engaged in the business of manufacturing, processing, packing, holding or selling food at retail. Petitioner held food permit number 68877 issued by the Department of Agriculture and Consumer Services (Department), for the premises located at 306 Northeast Eight Street, Homestead, Florida.

   
   

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

   
   

   The Violations

   
   

3. Department food safety inspectors conducted food safety inspections at Granny's Donut Shop on December 12, 1994, December 27, 1994, and January 12, 1995. On each of the three inspections, Granny's Donut Shop received an overall rating of "poor." These ratings resulted from the fact that on each of the three inspections the inspector observed multiple unsanitary conditions that constituted violations of applicable statutory and rule provisions; however, most of the violations were not critical violations.

   
   

4. The Department's initial inspection of December 9, 1994, resulted in an overall rating of "poor" based on a finding of 16 sanitary violations; however, only one violation, the presence of insect activity, was a critical violation.

   
   

5. The Department reinspection of December 27, 1994, again resulted in an overall rating of "poor" based on a finding of 20 sanitary violations. Again, only one violation, the storage of toxic items (cleaning supplies) on a shelf with food products, was a critical item, and the previous critical violation had been corrected. While not critical, approximately seven of the violations noted on the first inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, some soiled linen was stored with food, and the coolers were dirty.

   
   

6. The Department's reinspection of January 12, 1995, again resulted in an overall rating of "poor" based on a finding of 18 sanitary violations; however, only one violation, the storage of toxic items (cleaning supplies) above a three-compartment sink, was noted as a critical item, and the previous critical violation had been corrected. Again, while not critical, approximately seven of the violations noted on the previous inspection persisted, including, the frame of the fryer was not clean, the rolling racks were not clean, the floor was dirty, the flour was not properly stored, the walls were dirty, the wall over the handwashing sink had holes in it, and some soiled linen was stored on a work table. Finally, during the course of the January 12, 1995, inspection, the

   Department issued a stop use order for a mixer that was found "dirty with old product residue [and] build-up on both food [and] non-food contact surfaces," which it deemed an immediate serious danger to the public health.

   
   

   The Penalty

   
   

7. At hearing, the Department offered proof that it is its policy to recommend an administrative fine against an establishment which has received two "poor" ratings in a row and on the third inspection does not achieve an improved rating of "fair" or "good." The Department further observed that under the provisions of Section 500.121(1), Florida Statutes, it is authorized to impose an administrative fine not excededing $5,000 against a food establishment that has violated Chapter 500, Florida Statutes; however, the Department did not offer any proof as to what penalties, if any, it had imposed in prior similar cases, and did not submit a proposed recommended order advocating the assessment of an administrative fine in any particular amount.

   
   

8. Compared with the paucity of proof offered by the Department concerning an appropriate fine, petitioner offered proof, which is credited, that Granny's Donut Shop was a small, family owned business, that the demands of the business were taxing, that the business is now closed, and that the business took a severe financial toll on petitioner. While not excusing sanitary violations that could pose a threat to the consuming public, such factors, under the circumstances of this case, provide useful evidence in assessing a penalty that will deter others from similar violations, yet not be unduly harsh toward petitioner's violations. Considering such mitigating factors, as well as the nature of the violations established, an administrative fine in the amount of five hundred dollars ($500.00) is deemed appropriate.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), 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 authority to adopt sanitary rules governing the handling of food products. Such rules have been adopted, and are codified at Chapter 5K-4, Florida Administrative Code.

    
    

12. Section 500.121(1), Florida Statutes, grants the Department authority to impose an administrative fine "not exceeding $5,000 against any retail food store or food establishment that has violated [Chapter 500]."

    
    

13. Section 500.04(1), Florida Statutes, prohibits the "manufacture, sale or delivery, holding or offering for sale of any food that is adulterated."

    
    

14. Section 500.10(1)(f), Florida Statutes, declares food to be adulterated if it is kept under unsanitary conditions where it "may become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health."

15. In a case of this nature, the burden of proof is on the Department to prove the factual basis for its proposed action by clear and convincing evidence. Department of Banking and Financing v. Osborne Stern and Company, 21 Fla. L. Weekly S142 (Fla. 1996), and 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 three inspections food items were manufactured and offered for sale to the consuming public while Granny's Donut Shop was in an unsanitary condition. The penalty for such offense should as heretofore noted, be an administrative fine of five hundred dollars ($500.00).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding petitioner

violated the provisions of Chapter 500, Florida Statutes, and imposing an administrative fine in the amount of five hundred dollars ($500.00).

DONE AND ENTERED this 24th day of April 1996 in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK, 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 24th day of April 1996.

ENDNOTES

1/ The Department's notice of intent to impose administrative fine cited violations of Chapter 5E-6; however, the provisions of that chapter were transferred to Chapter 5K-4.

2/ Although the Department is styled as the respondent and has been referred to as such in these proceedings, it, as the charging agency, has the burden of proof.

COPIES FURNISHED:

Linton B. Eason, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Richard J. Campbell

11090 Southwest 155 Place

Miami, Florida 33196

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and

Consumer Services

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: 95-005055

Orders for Case No: 95-005055