STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Petitioner, )

)

vs. ) Case No: 97-0967

)

) WILSON AND SONS SEAFOOD, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 2, 1997, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.571, Florida Statutes (1996 Supp.). The hearing location was the Franklin County Courthouse, Grand Jury Room, Apalachicola, Florida. Charles C. Adams was the administrative law judge.

APPEARANCES

For Petitioner: Andrew J. Baumann, Esquire

M. B. Adelson, Esquire

Department of Environmental Protection Office of the General Counsel

Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent: Chris H. Bentley, Esquire

Rose, Sundstrom, and Bentley, LLP 2548 Blairstone Pines Drive Tallahassee, Florida 32301

and

J. Gordon Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32329

STATEMENT OF ISSUES

Should Petitioner discipline Respondent's shellfish processing plant certification license (license) for a period of seven (7) working days based upon alleged violations of Chapter 62R-7, Florida Administrative Code?

PRELIMINARY STATEMENT

By correspondence dated January 13, 1996, Petitioner informed Respondent that it intended to suspend Respondent's license for seven (7) working days beginning February 15, 1997. The correspondence notified the Respondent that it had the right to contest this proposed agency action. By a petition requesting a formal administrative hearing dated February 7, 1997, Respondent did contest the proposed agency action. Subsequently, on March 4, 1997, the case was referred to the Division of Administrative Hearings (the Division) to assign an administrative law judge to resolve the factual disputes between the parties. Those disputes were considered through the hearing conducted on May 2, 1997.

At hearing Petitioner presented Mark Collins, Administrator for the Department of Environmental Protection, Bureau of Marine Resource Regulation and Development; Robert William Jenkins, Shellfish Processing Plant Inspector for Petitioner and Sanitation and Safety Specialist; and Nancy L. Horton who holds a

similar position to that held by Mr. Jenkins. Petitioner's Exhibits 1 - 6 were admitted.

Petitioner filed a written Motion for Official Recognition of Chapter 62R-7, Florida Administrative Code, and the National Shellfish Sanitation Program Manual of Operations, Part II, "Sanitation of the Harvesting, Processing and Distribution of Shellfish, 1993," published by the Program and Enforcement Branch Office of Seafood, Center for Food Safety and Applied Nutrition,

U.S. Food and Drug Administration, as adopted by Petitioner and incorporated by reference in Rule 62R-7.001(5), Florida Administrative Code. Initially Respondent filed a pleading in opposition to the motion. At hearing the motion was considered and Respondent withdrew its opposition to the motion based upon the agreement of counsel that the matters requested for recognition pertain to those provisions in effect when the alleged violations of Chapter 62R-7, Florida Administrative Code, were observed. Official recognition was given on that basis.

A hearing transcript was filed with the Division on May 19, 1997. The parties submitted Proposed Recommended Orders within twenty (20) days from that filing date. Those proposals have been considered in preparing the Recommended Order. That consideration included Respondent's argument on the proper use of Petitioner's Exhibits 4 and 5 for fact finding purposes.

FINDINGS OF FACT

1. In accordance with Section 370.071(1), Florida Statutes, and Chapter 62R-7, Florida Administrative Code, Petitioner has regulatory authority relating to the sanitary practices for catching, handling, relaying, depuration, packaging, preserving, and storing of shellfish products. Pursuant to that authority, Petitioner licenses shellfish processing plants that operate in Florida. In accordance with those provisions, Respondent has been licensed to operate a shellfish processing plant in Apalachicola, Florida. At times relevant to this inquiry, Respondent conducted its business pursuant to the license.

2. Chapter 62R-7, Florida Administrative Code, grants Petitioner the authority to make unannounced inspections of Respondent's plant while the plant is being operated, as frequently as necessary, to assure that adequate operational and sanitary conditions are maintained.

3. As a means to control Respondent's conduct observed during those inspections, Chapter 62R-7, Florida Administrative Code, grants authority to Petitioner, in certain instances, to suspend or revoke Respondent's license.

4. Petitioner performed an inspection of Respondent's plant on December 5, 1996. The inspection was held by Robert William Jenkins. Mr. Jenkins is a Shellfish Processing Plant Inspector

   for Petitioner. He is also a Sanitation and Safety Specialist for Petitioner. He had been certified to conduct the inspection.

5. To assist Mr. Jenkins in performing his inspection, Respondent has prepared DEP Forms 34-001 and 34-002. The latter form is a continuation of the former form. This compilation is referred to as the "DEP Processing Plant Inspection Form." In pertinent part, it identifies the nature of any alleged deficiencies found in the inspection under a column referred to as "Item Number." It has a column referred to as "Remarks." The "Remarks" part of the form contemplates that the inspector will record his or her observations in summary fashion. There is a third column entitled "Correction Date." This column refers to dates that have been identified for the plant owner to correct deficiencies found in the inspection. Use of the forms in the conduct of inspections has been incorporated by reference in Rule 62R-7.007(3), Florida Administrative Code.

6. To further assist Mr. Jenkins in performing his inspection, Respondent provided him with DEP Form 34-003. This form is referred to as the "DEP Shellfish Processing Plant Inspection Form" as well. Its purpose is different from that related to DEP Forms 34-001 and 34-002. DEP Form 34-003 identifies the "Area" being inspected in one column. It has another column referred to as "Item Description". In general terms this column corresponds to more discrete places or activities that are observed during the inspection. There is a

   column on this form which is referred to as "Code". The code relates to alleged deficiencies of two types. One type is a "Key" item deficiency. The second code refers to an "Other" item deficiency. In the event that deficiencies are found DEP Form

   34-003 contemplates that the area, item description, and code be identified by checking a box in the right column related to the finding. This form is also incorporated by reference in Rule

   62-7.007(3), Florida Administrative Code.

   
   

7. Finally, in performing his inspection Mr. Jenkins used a diary to record his observations.

8. The sequence for using the materials available to him was to first place his observations in the diary. The diary served to assist Mr. Jenkins in preparing the "Remarks" section to DEP Forms 34-001 and 34-002. Preparation of DEP Form 34-003 assisted Mr. Jenkins in identifying the "Item Number" alleged to have constituted a deficiency in preparing DEP Forms 34-001 and 34-002. The item number reflected information translated from DEP Form 34-003 in the columns for "Item Description" and "Code." The "Correction Date" column within DEP Forms 34-001 and 34.002, as prepared, was the product of a discussion between Mr. Jenkins and Respondent's management, in which the management determined the date it committed to correct the alleged deficiencies found.

9. During the inspection Mr. Jenkins recorded on DEP Form 34-001, in the "Remarks" section, "shellstock being shucked muddy." He identified this finding as an "Item Number" 27, "Key"

   deficiency. Item 27 from DEP Form 34-003 is in the "Area" described as "Shellfish handling and storage." Under the "Item Description" related to DEP Form 34-003, it states, "Shellstock clean." DEP Form 34-003 further refers to this Item 27 as a "Key" deficiency. There was no determination between Mr. Jenkins and Respondent's management concerning the date upon which this alleged deficiency was to be corrected.

10. Mr. Jenkins observed persons shucking shellstock at Respondent's plant that he described in his hearing testimony as "extremely muddy." He found that the shellstock had excessive mud on it. Mr. Jenkins believes that you cannot shuck muddy shellstock in a sanitary manner. His opinion on that subject is credited.

11. Mr. Jenkins' observations concerning the shucking operations were in association with the normal operation of Respondent's plant. The oysters being shucked were placed in

    one-gallon, stainless steel buckets. From there the oysters were delivered to the skimmer room. The product was then rinsed, packed in ice, and placed in reusable, properly labeled, five- gallon containers. Notwithstanding the fact that the oysters were rinsed after being shucked, while the oysters were being shucked, the shellstock was extremely muddy and, as Mr. Jenkins established, the oysters could not be shucked in a sanitary manner under those original conditions before rinsing and packing.

12. During his inspection Mr. Jenkins recorded in the "Remarks" section of DEP Form 34-001 that "walls and ceiling in shucking room dirty with flaking paint." By resort to DEP Form 34-003, Mr. Jenkins labeled this condition as an "Other" Item 6 deficiency. DEP Form 34-003 under the "Area" column refers to the "Plant interior." Within that form under "Item Description" it is stated "Walls, Ceilings, attached equipment: Smooth, light colored, clean, good repair". The date upon which management agreed to correct the problem as reflected in the "Correction Date" column to DEP Form 34-001 was December 14, 1996.

13. In the "Remarks" section of DEP Form 34-001, Mr. Jenkins recorded that he had observed in his inspection that "outside shellstock cooler had no grate over floor drain." By resort to DEP Form 34-003, Mr. Jenkins described the "Area" involved in this observation as "Vectors." By using that form, he referred to the "Item Description" as "Insects, Rodents, Vermin, Other Animals: excluded, controlled." The "Code" within that form referred to this "Item Description" as a "Key" item seven (7) deficiency. As reflected in DEP Form 34-001, management committed to correct this problem on December 5, 1996.

14. In the "Remarks" section to DEP Form 34-001, Mr. Jenkins noted that "3-bags of shellstock with 8-mile harvest area." By resort to DEP Form 34-003, the "Area" in which this alleged deficiency was found was described "Shellfish handling and storage." The "Item Description" was referred to as

    "Shellstock properly identified." In accordance with the "Code" in DEP Form 34-003, this was described and recorded as a "Key" item 25 deficiency. Management committed to correct this condition on December 5, 1996.1

15. At the conclusion of the inspection, Mr. Jenkins provided Respondent's managers with copies of the completed DEP Forms 34-001, 34-002, and 34-003.

16. At the conclusion of the inspection, Mr. Jenkins discussed the alleged deficiencies or violations with Annie Mae Wilson and Paul Wilson. He told them that he had shown "Little Paul" each violation and asked the other Wilsons if they desired to see those violations. They responded that it was not necessary.

17. Later Mr. Jenkins prepared, and on December 9, 1996, signed, an "Establishment Inspection Report." This written report was not provided to Respondent but would have been provided if Respondent requested a copy. In a portion of the report referred to as "Objectionable Conditions or Practices," it is stated:

    1. Louisiana shellstock being shucked was extremely muddy. 62R-7.016(1). DEP form 34-003 Item 27 Key

       
       

       * * *

       
       

       3. Areas of the walls and ceiling in the shucking room were observed dirty and flaking paint. 62R-7.013(1c). DEP form 34-003

       Item 6 Other.

       * * *

       
       

       1. The outside shellstock cooler had no grate over the floor drain. 62R-7.013(1f). DEP form 34-003 Item 25 Key.

          
          

       2. Three bags of shellstock were not properly identified. Tag had 8 mile for harvest area, lacking the 4-digit location code. 62R-7.014(1). DEP form 34-003

       Item 25 Key.

       
       

18. At hearing Mr. Jenkins corrected the reference to the shellstock shucking citation from 62R-7.016(1) to 62R-7.016(3).

19. On January 6, 1997, Petitioner reinspected Respondent's plant. That inspection was conducted by Nancy L. Horton who was employed in a position comparable to that occupied by Mr. Horton. In conducting her inspection, Ms. Horton followed procedures that were similar to those employed by Mr. Jenkins in his inspection. Mr. Horton completed DEP Forms 34-001, 34-002, and 34-003 and provided copies to Respondent's management on the date the inspection was conducted.

20. Ms. Horton was familiar with Mr. Jenkins' findings made on December 5, 1996, during his inspection and the subsequent Establishment Inspection Report which he had rendered before conducting her own inspection. In the follow-up phase of her inspection, she intended to determine if the problems discovered by Mr. Jenkins on December 5, 1996, had been corrected.

21. Ms. Horton observed and noted on DEP Form 34-001 in the "Remarks" section that:

    2 bags of shellstock w/out legal area

    12 bags " " " " "

    All bags listed as "drybar" for harvest area. 62R-7016(1).

    
    

    Under the "Item Number" column related to that form Ms. Horton stated "25-K Repeated Violation." That entry on the form was in reference to findings from DEP Form 34-003 in which the "Area" was listed as "Shellfish Handling and Storage" and the "Item Description" stated "Shellstock properly identified" with the "Code" being checked as a "Key" item 25 deficiency. The completed DEP Form 34-001 indicated that this problem would be corrected on January 6, 1997. Mr. Wilson blamed this problem on the harvesters. He told Ms. Horton the shellstock harvesters could not read. Ms. Horton responded that this was a "Repeated violation." She suggested that Mr. Wilson show the harvesters how to fill the tags out correctly. She also told Mr. Wilson that once the bags were in his cooler they became his responsibility.

22. "Drybar" is a colloquial name for an oyster bar located near St. Vincent's Island. When Ms. Horton performed her inspection, she understood the meaning of the colloquial reference.

23. During her inspection, Ms. Horton observed and noted under the "Remarks" section to DEP Form 34-002 "Muddy shellstock being shucked. 62R-7.016(3)." Based upon the use of DEP Form 34- 003, Ms. Horton reported on DEP Form 34-002 that this was an "Item Number" 27-K. The reference to 27-K refers to information

    from DEP Form 34-003 in the "Area" for "Shellfish handling and storage." The "Item Description" was "Shellstock clean" and the "Code" was a "Key" item 27 deficiency. Again this was referred to as a "Repeated violation." A correction date under the column for establishing that date was not established.

24. In her testimony related to her findings concerning the shellstock, she identified that the shellstock came from Texas. She said that she found a lot of mud had been splattered "everywhere" in the area of the shucking operation. She identified that a container of shucked product was sitting where she was inspecting. Specifically, she identified that mud that was being splashed covered the walls and the employees who where shucking the shellstock. There was also mud on the shellstock that had not been shucked.

25. In relation to the problem with muddy shellstock being shucked, Mr. Wilson told Ms. Horton that he did not know how to correct this violation. Ms. Horton responded to Mr. Wilson that he might consider washing the oysters through his oyster washer before shucking them.

26. Based upon her observations, Ms. Horton noted in the "Remarks" section to DEP Form 34-002 that "Outside cooler w/out floor cover 62R-7.015(5)." On that same form she noted that the "Item Number" was "7-Key." That reference was taken from the completion of DEP Form 34-003 in the "Area" described as "Vectors," the "Item Description" related to "Insects, Rodents,

    Vermin, Other Animals: Excluded, controlled." The "Code" on that form was for a "Key" Item 7 deficiency. This item was identified in the completed DEP Form 34-002 as a "Repeated violation." In association with this item, Mr. Wilson went into the shucking room and came out with a grate and covered the drain hole. Ms. Horton pointed out that the cover did not fit the drain hole and would get knocked off. Mr. Wilson told her that all covers get knocked off. Ms. Horton told Mr. Wilson that the cover was bigger than the drain hole and did not fit tight.

    Nonetheless, the completed DEP Form 34-002 indicates under the section for "Correction Date" that the problem was "corrected."

27. In her inspection, Ms. Horton observed and noted in the "Remarks" section to DEP Form 34-002 that "walls & ceiling in shucking room dirty. 62R-7.013(1)(c)." On that form under "Item Number" she identified this as "6-0." That information was taken from the preparation of DEP Form 34-003 under "Area" as "Plant Interior." From DEP Form 34-003 the "Item Description" was "Walls, Ceilings, Attached Equipment; smooth, light colored, clean, good repair." The "Code" from DEP Form 34-003 was "Other" Item 6 deficiency. The "Correction Date" that was established on DEP Form 34-002 was January 9, 1997. This item was also identified on DEP Form 34-002 as a "Repeat violation." In response to the findings concerning the walls and ceiling,

    Mr. Wilson indicated that he would clean the walls and ceiling in the shucking room.

28. In an Establishment Inspection Report rendered on January 8, 1997, Ms. Horton recorded "Objectionable Conditions or Practices," to the effect that:

    1. Ten bags of local shellstock were not properly identified. Dry Bar was listed as the legal harvest area. Repeated violation 62R-7.016(1) DEP 34-003 Item # 25-Key.

       62R-7.010(3-c)

       
       

    2. Texas shellstock being shucked was extremely muddy. Repeated violation 62R-7.016(3) DEP 34-003 Item # 27-Key.

       
       

    3. The walls and ceiling in the shucking room was [sic] dirty with dried mud from previous operations.

    62R-7.013(1-c) DEP 34-003 Item #6-Other.

    Repeated violation

    
    

    * * *

    
    

    12. One floor drain in the shellstock cooler was not covered.

    62R-7.015(e) DEP 34-003 Item #7-Key

    Repeated violation

    
    

    This report was not provided to Respondent. It was available upon request from Respondent. The hearing record does not reveal that a request was made, nor did the record reveal a request from Respondent to obtain Mr. Jenkins Establishment Inspection Report.

29. Following Ms. Horton's inspection, Petitioner charged Respondent with license violations through a complaint letter dated January 13, 1997. In pertinent part that complaint letter stated:

    Inspection of your facility, Wilson & Son Seafood Inc., Fl 179-SP, was conducted on January 6, 1997. Observations revealed eight "key" item deficiencies and four "other" item

    deficiencies. Repeat "key" observations included ten bags of local shellstock not properly identified (62R-7.010 (3)c and 62R- 7.016(1)), Texas shellstock being shucked was extremely muddy (62R-7.016(3)), and one floor drain in the shellstock cooler was not covered (62R-7.015(5)c. In addition the "other" item deficiency of walls and ceiling in the shucking room dirty with dried mud from previous operations (62R-7.033(1)c), was also a repeated violation noted during the previous inspection of December 5, 1996.

    
    

    Due to the repeat nature of these violations, this is notification of the intent to suspend your firm's shellfish certification license for a period of seven working days beginning on February 15, 1997 at 8:00 AM EST. . . .

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes (1996 Supp.).

31. Section 370.071(1), Florida Statutes, and Rule

    
    

    62R-7.001, Florida Administrative Code, grant Petitioner the authority to impose and enforce provisions of Chapter 62R-7, Florida Administrative Code, associated with the licensure and discipline of shellfish processing plants. Respondent operates a plant subject to that regulation through the license it holds.

    The license was issued consistent with Rule 62R-7.007, Florida Administrative Code.

32. Respondent is a "certified dealer" as defined in Rule 62R-7.003(4), Florida Administrative Code.

33. Once the license was issued to Respondent, Petitioner had the authority to make unannounced inspections using DEP Forms 34-001, 34-002, and 34-003. The authority for conducting the inspections is set forth in Rule 62R-7.007(3), Florida Administrative Code. They are conducted, if necessary, during periods of operation and at such frequent intervals as needed to assure that adequate operational and sanitary conditions are maintained by Respondent. Pursuant to the rule, a copy of the completed forms should be issued to a responsible individual at the firm when the inspection has been concluded. Both the December 5, 1996 and January 6, 1997 inspections were conducted using appropriate forms and copies were issued to a responsible individual at the Respondent's firm.

34. In association with the authority to inspect, Petitioner has promulgated Rule 62R-7.009, Florida Administrative Code, which relates to the ability to discipline Respondent's license to include suspension or revocation of that license.

35. Rule 62R-7.009(1)(b), Florida Administrative Code, states:

    (1) The Department shall initiate enforcement action as follows:

    
    

    * * *

    
    

    1. When four (4) or more KEY item deficiencies, are detected, the firm will be noticed that the firm's operation is in violation of sections of this rule, and will be requested to provide the Department documentation that corrections have been

       made. Failure to make satisfactory corrective actions of KEY item deficiencies within 30 calendar days of citation, shall result in the issuance of a letter of intent to suspend the firm's certification license for a maximum period of seven (7) working days, and until corrections have been completed.

       Although specific reference is not made to Rule 62R-7.009(1)(b), Florida Administrative Code, in the complaint letter, through its proposed recommended order, Petitioner contends that this provision has been violated by Respondent's conduct. To prevail in its attempt to impose discipline on Respondent's license, Petitioner must comply with the procedural safeguards and proof of the substance of that rule concerning Respondent's conduct.

       Moreover, Petitioner must meet the notice requirements set forth in Rule 62R-7.009(1)(f), Florida Administrative Code, which states:

       1. The Department shall initiate enforcement action as follows:

          
          

          * * *

          
          

          (f) Prior to suspending or revoking any license, the Department shall provide at least 21 days notice by certified mail or hand delivery to the license holder, and plant operator if different from the license holder, of the Department's intended action. The notice shall contain:

          
          

          1. The specific facts or conduct which are relied upon to establish the violation;

             
             

          2. The statutory provision or rule alleged to have been violated; and

          3. A statement that the license holder has

          21 days from receipt of the notice in which to file a petition requesting the administrative hearing pursuant to section 120.57, F.S.

          
          

36. Proof of the violation of Rule 62R-7.009(1)(b), Florida Administrative Code, must be by clear and convincing evidence. Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

37. Commensurate with Rule 62R-7.009(1)(f), Florida Administrative Code, Petitioner may not predicate discipline against the Respondent for conduct not alleged in its administrative complaint letter. Cottril v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Willner v. Department of Professional Regulation, 563 So. 2d 805, (Fla. 1st DCA 1990); and Sternberg v. Department of Professional Regulation, 465 So. 2d 1324, (Fla. 1st DCA 1985).

38. Rule 62R-7.003(19), Florida Administrative Code, defines "Key deficiency" as:

    [A] condition or practice which may result in adulterated, decomposed, misbranded or unwholesome product.

    
    

    That definition is in association with the disciplinary provision, Rule 62R-7.009(1)(b), Florida Administrative Code.

39. Some of the operative terms within the definition of "Key deficiency" found at Rule 62R-7.003(19), Florida Administrative Code, are further defined. Specifically, the term

    "adulterated" is defined in Rule 62R-7.003(1), Florida Administrative Code as:

    [A]ny shellfish harvested from closed waters; any shellfish shucked, packed, or otherwise processed in a plant which has not been certified and licensed by the Department in accordance with the requirements of these rules; any shellfish contaminated as determined by bacteriological or other analysis; any shellfish consisting in whole or in part of any filthy, putrid or decomposed substance, or otherwise unfit for food; any shellfish prepared, packed, or held under unsanitary conditions where it may have become contaminated with filth, or whereby it may have been rendered injurious to health;

    . . .

40. The term "Misbranded" is defined in Rule 62R-7.003(21), Florida Administrative Code, as:

    [A]ny shellfish product whose labeling is false or misleading; any shellfish product in package form unless it bears labeling including (1) the name and place of business of the manufacturer, packer, or distributor;

    1. an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; and meets labeling requirements of the Department within this rule.

41. The terms "decomposed" and "unwholesome product" found within the definition of "Key deficiency" at Rule 62R-7.003(19), Florida Administrative Code, are not further defined.

42. The term "shellfish" is defined at Rule 62R-7.003(34) Florida Administrative Code, as:

    Shellfish -- all edible species of oysters, clams and mussels, either shucked or in the shell, fresh, or fresh frozen.

43. The term "shellstock" is defined at Rules 62R- 7.003(35), Florida Administrative Code, as:

    Shellstock -- shellfish which remain in their shells.

    
    

44. As a prerequisite to the imposition of discipline in accordance with Rule 62R-7.009(1)(b), Florida Administrative Code, Petitioner must have noticed Respondent that the firm's operation was in violation of sections of the "rule." This is construed to mean that by virtue of the December 5, 1996, inspection performed by Mr. Jenkins, Petitioner was obligated to refer Respondent to specific provisions within Chapter 62R-7, Florida Administrative Code, alleged to have been violated. That would constitute the "Key" item deficiencies referred to in Rule 62-7.009(1)(b). For example, Petitioner should have notified Respondent that its shucking of shellfish was considered to be in violation of Rule 62R-7.016(3), Florida Administrative Code, which states:

    Shellfish shall be shucked in a manner such that they are not subjected to possible contamination. Only live shellfish shall be shucked.

    
    

    1. Shucked meats shall be delivered to the packing room within one hour.

       
       

    2. Shucked meats are thoroughly drained, cleaned as necessary, and packed promptly after delivery to the packing room. Packing operations are scheduled and conducted so as to chill all meats to an internal temperature of 45 F within two hours of delivery to the packing room. Shucked meats which are to be packed into containers having a capacity of

    more than one gallon shall be pre-chilled to

    45 F or less prior to packing.

    
    

45. Arguably, violation of Rule 62R-7.016(3), Florida Administrative Code, could constitute a "Key" item deficiency in that it was related to a condition or practice which may result in an adulterated or unwholesome product.

46. When Mr. Jenkins provided copies of DEP Form 34-001 and 34-002 and Form 34-003 to Respondent, he neglected to cite to Rule 62R-7.016(3), Florida Administrative Code, or any other section of Chapter 62R-7, Florida Administrative Code, which Respondent was alleged to have violated. Reference to the "Key" item "Code" found within DEP Form 34-003 does not substitute for the requirement that Petitioner notice Respondent of the sections within Chapter 62R-7 alleged to have been violated. The "Key" item "Code" within DEP Form 34-003 is an initial step in establishing the nexus between a "Key" item deficiency, generally defined, and the more discrete violation alleged by citation to other provisions within Chapter 62R-7, that are associated with the definition of "Key" item "deficiency" found at Rule

    62R-7.003(19), Florida Administrative Code. Absent citation to other provisions of Chapter 62R-7, specifically alleged to have been violated, Petitioner has not provided adequate notice to Respondent as required by Rule 62R-7.009(1)(b), Florida Administrative Code. It was not proven that Mr. Jenkins or any other person ever provided that notice to Respondent.

47. The Petitioner's failure to provide Respondent with Mr. Jenkins' Establishment Inspection Report entered on December 9, 1996, setting forth discrete alleged violations of Chapter 62R-7, Florida Administrative Code, under the description in the report of "objectionable conditions or practices" precluded the use of that report for purposes of notifying Respondent that the firm's operation was in violation of Chapter 62R-7, Florida

    Administrative Code, as explained in the Establishment Inspection Report, under the heading "objectionable conditions or practices." It does not suffice to establish the notice requirement that Respondent could have requested the report.

48. Related to Rule 62R-7.009(1)(b), Florida Administrative Code, the proof did not establish that Mr. Jenkins, per se, requested Respondent to provide the Petitioner with documentation that corrections have been made. The language in DEP Form 34-001 which states: "Failure to comply with time limits for corrections of deficiencies specified in this report or through subsequent notification may result in cessation of your operation and withdrawal of certification" does not comport with the requirement in Rule 62R-7.009(1)(b), Florida Administrative Code, that calls for the Petitioner to request the Respondent to provide documentation that corrections have been made.

49. Having failed to notice Respondent of the alleged violations of sections of Chapter 62R-7, Florida Administrative Code, and to request that Respondent provide the Petitioner with

    documentation concerning corrections of alleged deficiencies, Petitioner could not expect Respondent to make satisfactory correction of alleged "Key item deficiencies" within 30 calendar days of citation of violations of Chapter 62R-7, Florida Administrative Code, as contemplated by Rule 62R-7.009(1)(b), Florida Administrative Code. Consequently, as described in that rule, there was no basis for issuance of a letter of intent to suspend Respondent's license for a maximum period of seven (7) working days or until corrections have been completed. In summary, Petitioner has not proven the procedural prerequisites for charging Respondent with a violation of Rule 62R-7.009(1)(b), Florida Administrative Code.

50. Concerning the December 23, 1996, correspondence, contents unknown, that "warning letter" cannot form the basis for compliance with procedural notice of alleged violations of the consequences of failing to make timely correction of "Key item deficiencies" absent any details concerning the correspondence.

51. Assuming arguendo, that the prerequisites for issuing a letter of intent to suspend the Respondent's license for seven

    (7) working days or until corrections had been completed were complied with, Petitioner must then comply with the provisions in Rule 62R-7.009(1)(f), Florida Administrative Code, concerning the format of its complaint notice. As discussed in Cottril, Willner and Sternberg, supra, Petitioner is limited in its prosecution to the specific facts or conduct which it relies upon to establish

    the alleged violations. In this instance, Petitioner has failed to cite to any conduct based upon the December 5, 1996, inspection, other than by inference in which reference is made to certain findings in the January 6, 1997, inspection as constituting repeat violations of circumstances noted in the December 5, 1996, inspection. This means that alleged deficiencies discovered in the December 5, 1996, inspection not found in the complaint letter by inference have not been specifically pled and are not subject to be proven as a violation. This conclusion is reinforced by the remarks made by Petitioner's counsel in recognition of the ruling found in ENDNOTE 1 which limited consideration of the alleged violations to proof of comparable conduct found in December 5, 1996, and January 6, 1997, as set forth in the complaint letter.

52. While the complaint letter makes reference to the "Key item deficiencies" alleged to be in violation of various sections within Chapter 62R-7, Florida Administrative Code, it fails to allege the cause of action contemplated by Rule 62R-7.009(1)(b), Florida Administrative Code, in violation of the pleading requirement set out at Rule 62R-7.009(1)(f)2, Florida Administrative Code. Nonetheless, both parties have proceeded with their posthearing arguments announced in the proposed recommended orders on the assumption that the cause of action is based upon Rule 62R-7.009(1)(b), Florida Administrative Code.

53. Unlike Mr. Jenkins, Ms. Horton in preparing and providing Respondent DEP Forms 34-001 and 34-002, made citation to provisions within Chapter 62R-7, Florida Administrative Code, that she believed had been violated and evidenced a failure to satisfactorily correct "Key item deficiencies" found in the earlier inspection performed by Mr. Jenkins. But this citation, in the absence of a similar citation in the copies provided of DEP Form 34-001 and 34-002 by Mr. Jenkins related to the earlier inspection, is to no avail. Moreover, even if the procedural requirements for bringing the action that are set forth in Rule 62R-7.009(1)(b), Florida Administrative Code, had been satisfied by Mr. Jenkins in his inspection, the complaint letter contrary to Rule 62R-7.009(1)(b), Florida Administrative Code, did not allege four "Key item deficiencies" found on December 5, 1996, some of which were not satisfactorily corrected before January 6, 1997. The complaint letter refers to only three "Key item deficiencies" found on December 5, 1996 and held over on

    January 6, 1997, even assuming that procedural requirements that were a prerequisite to charging Respondent had been met.

54. Petitioner having failed to notice Respondent of the alleged violations found during the December 5, 1996, inspection as required by Rule 62R-7.009(1)(b), Florida Administrative Code, and having failed to meet the pleading requirements of Rule

62R-7.009(1)(f), Florida Administrative Code, it would not be appropriate to compare Mr. Jenkins' factual findings set forth in

DEP Forms 34-001 and 34-002 without citation to the factual findings by Ms. Horton, using those forms in which she did cite to specific provisions within Chapter 62R-7, Florida Administrative Code, which were alleged to have been violated for a second time. Under the circumstances, no discussion is given of the possible isolated substantive violations of Chapter 62R-7, Florida Administrative Code, as alleged in the complaint letter, given Petitioner's numerous failures in complying with procedural requirements set forth in its rules. This exercise would not establish Respondent's misconduct subject to discipline.

RECOMMENDATION

Upon consideration of the fact found and the conclusions of law reached, it is,

RECOMMENDED that a final order be entered which dismisses the complaint letter.

DONE AND ENTERED this 2nd day of July, 1997, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997.

ENDNOTE

1 A number of other alleged deficiencies were addressed in the DEP Forms 34-001 and 34-002 and DEP Form 34-003 executed by Mr. Jenkins on December 5, 1996, during the inspection. Those matters have not been discussed in the fact finding based upon a ruling concerning their relevancy. They were deemed irrelevant following argument by counsel in view of allegations made in the complaint letter dated January 13, 1997, which formed the basis for this dispute. Excerpts of that argument and ruling are set forth in the hearing transcript commencing at line 17, page 64, through line 16, page 69, which state:

BY MR. BAUMANN:

Q On page 3 of the Establishment Inspection Report, Mr. Jenkins, item number 14, could you read that for the record, please?

A "At least 14 fly flaps were not fly tight."

Q Mr. Jenkins, could you describe for a moment what a fly flap is?

MR. BENTLEY: Objection as to relevance, Your Honor.

MR. BAUMANN: I just thought that it would assist Your Honor in determining the veracity of Mr. Jenkins' decision since I myself did not know what a fly flap was.

THE COURT: You may tell me what that is, sir.

MR. BENTLEY: Your Honor, they haven't been charged with that. I haven't objected to any of this testimony on the grounds that no predicate has been laid and that they haven't offered into evidence the administrative complaint in this proceeding. The administrative complaint in this proceeding is a letter dated January 13, 1997. We're here today to see whether or not there are repeat violations. They are not charged with a repeat violation involving fly flaps.

MR. BAUMANN: Your Honor, the rule requires the establishment of four key item deficiencies in the initial inspection, and at least one key item deficiency repeated after the time for correction has dissolved

-- I mean, has terminated. Whether the fly flaps was repeated on the second inspection has no bearing on the fact of establishing the first element of the State's case in this case, which is that the four key item deficiencies did in fact occur in order to start the clock running for correction dates.

THE COURT: Just a moment, please. Everyone turn to the complaint letter, please.

MR. BENTLEY: Yes.

THE COURT: Have you got it, Mr. Baumann? MR. BAUMANN: Yes, Your Honor.

THE COURT: Let's go through this, please, and I'm going to tell you what my reading is and then you can argue with me if you think that's not the right reading in the rule, and we'll see where we end up.

The complaint letter starts out by saying, and I'm quoting now, "Inspection of your facility, Wilson and Son Seafood, Inc., FL179-SP, was conducted on January 6, 1997."

What this tells me is that reference is being made to the inspection on January the 6th as setting up the basis of this complaint. The next thing it tells us in the second sentence is, "Observations revealed eight," in quotes, "'key' item deficiencies and 4," in quotes, "'other' item deficiencies."

What that means to me is that as of the January 6th inspection, what they saw there was eight key items and four other items about which attention is being drawn to the alleged violator.

Then it goes on to tell us, and the next operative provision of the complaint is that

"Repeat 'key,'" in quotes, close quotes, "observations included 10 bags of local shellstock not properly identified," and it goes on to list specifically a number of items that were observed as being repeat offenses in the category of key items, which to me means that as part of the proof contemplated you would relate back to the date I assume we're dealing with right now, which is the earlier inspection in December, and make a comparison of what was seen on that occasion as against what was allegedly seen on the second occasion to see if this violation had been established.

Then it tells us down at the last sentence, beginning operative terms of the complaint letter, as I read it, "In addition, the," quote, "'other,'" close quote, "item deficiency of walls and ceiling in the shucking room dirty when dried mud from previous operations was also a repeated violation noted during the previous inspection of December 5th," which, again, to my reading, points out in the second category for types of violations referred to as, quote, "other," that there is on the second occasion of the inspection something that was seen the first time under the category "other."

As I appreciate this, what would be necessary in that event would be the need to show that the item referred to as "other" in that last sentence was also seen in December.

So, to the point. To the extent that the items that are referred in the operative paragraph of this complaint which are described as "key" or "other" coincide with the two visits, then I think it is relevant to inquire. To the extent that there was no belief, for whatever policy reason, on the part of the Agency to carry forward or there was not opportunity under the law or whatever the explanation, to carry forward a complaint based upon other things that were seen in the first visit that are not reflected as being repeat offenses on the second visit, then I

don't think that I am expected to look at those things.

Now, if the Petitioner holds a different view under the law or under the way this pleading is written, then I will hear you, and if you don't, then I don't need to know about some of the things that happened on the first occasion because they're not brought forward as being a complaint item. It's not that they weren't expected to be corrected, I'm sure, but it's not something that is being complained about that might lead to the suspension of the license.

Am I wrong about this in terms of what you're trying to do by your pleading?

MR. BAUMANN: Well, Your Honor, I think you've got it right.

THE COURT: So let's just stay away from those on the first visit that don't get carried forward to the second visit.

MR. ADELSON: We understand, Your Honor. We're going to make sure we follow that.

MR. SHULER: Your Honor, if I may clarify, when you say as carried forward, you mean as defined in the complaint?

THE COURT: Yes, as stated as repeat violations where they are holding your client accountable because it is a repeat offense.

MR. SHULER: Correct. THEN COURT: All Right.

Having considered the argument and reviewed the complaint letter, the impression was created that only those alleged deficiencies that have been discussed to this point needed to be considered at hearing and resolved through the Recommended Order.

COPIES FURNISHED:

Chris H. Bentley, Esquire Brian L. Doster, Esquire

ROSE, SUNDSTROM & BENTLEY, LLP

2548 Blairstone Pines Drive Tallahassee, Florida 32301

J. Gordon Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32329

Andrew J. Baumann, Esquire

M. B. Adelson, Esquire

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000967

Orders for Case No: 97-000967