STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-1777

) MAHMUD MIZHAR, INC., d/b/a ) STONY FOOD MART, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on May 25, 2007.

Respondent's Director of the Division of Consumer Services, James R. Kelly (who did not testify); Petitioner's Chief of the Bureau of Food and Meat Inspection, Dr. John T. Fruin; and Petitioner's counsel appeared in Tallahassee. Petitioner's Food Safety Inspector, Bryan Schuettler; Mahamud Mizhar; and the court reporter appeared in West Palm Beach, Florida.

APPEARANCES

For Petitioner: David W. Young, Senior Attorney

Office of the General Counsel Department of Agriculture

and Consumer Services

407 South Calhoun Street Mayo Building, Suite 520

Tallahassee, Florida 32399-0800

For Respondent: Mahmud Mizhar, Qualified Representative

Mahmud Mizhar, Inc.

1665 Martin Luther King, Jr., Boulevard Riviera Beach, Florida 33404

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of violating various provisions of the Florida Food Safety Act, Chapter 500, Florida Statutes, and Florida Administrative Code Chapter 5K-4 in its operation of a convenience store and, if so, what penalties should be imposed.

PRELIMINARY STATEMENT

By Food Safety Inspection Report and Food Safety Inspection Supplemental Report, both dated February 20, 2007, Petitioner informed Respondent that, as a result of an inspection conducted on February 6, 2007, Petitioner found several violations of the Florida Food Safety Act, Chapter 500, Florida Statutes, and Florida Administrative Code Chapter 5K-4. Among the cited violations were the failure of exterior doors to self-close or close tightly, evidence of rodents, the storage of cleaning chemicals next to food items, the absence of a certified food manager, the misbranding of deli meats, and the absence of a safe-handling label on self-serve packaged meats in the drop freezer.

At the hearing, Petitioner called two witnesses and offered into evidence six exhibits: Petitioner Exhibits 1-6.

Respondent called one witness and offered into evidence one exhibit: Respondent Exhibit 1. All exhibits were admitted except Petitioner Exhibit 4, which was proffered.

The parties did not order a transcript. Petitioner filed a Proposed Recommended Order on June 1, 2007.

FINDINGS OF FACT

1. Mahmud Mizhar is the president and owner of Respondent.

   
   

   Respondent owns and operates the Stony Food Mart, 1665 West Martin Luther King, Jr., Boulevard, Riviera Beach. The previous owner of this convenience store employed Mr. Mizhar as a manager prior to Mr. Mizhar's purchasing the store in 2004. Mr. Mizhar does not possess a food manager's certificate.

2. Stony Food Mart is a convenience store selling retail food products, such as groceries. The store offers limited ancillary food service, such as coffee and sliced-to-order deli meats, which may be consumed on- or off-premises. The store offers no cooking, except that customers may use an in-store microwave to cook or warm their purchases. Petitioner's inspectors typically inspect such facilities three times annually.

3. During a routine inspection on February 6, 2007, Petitioner's Senior Sanitation Safety Specialist, Bryan Schuettler, inspected the three areas that constitute the store. These areas are the retail area, which includes a walk-in

   cooler, the processing area, which includes a three-compartment sink and deli, and the storage and office area, which is in the back.

4. The inspection reports five "critical" violations.

   
   

   Violations are "critical" if they pose a more serious threat to food safety. The most disturbing of these violations was the inspector's discovery of a dead rat in the storage area.

   Mr. Mizhar tried to explain away this finding by saying that the rat had no access to the food area, but he later admitted that rats sometimes chewed holes in the bread packages, which he claimed to discard immediately upon discovery. Although this bread may be in the storage area when its wrapper is chewed, it eventually is placed in the retail area, and rats may have climbed over undamaged wrappers or chewed small holes unnoticed by Mr. Mizhar.

5. Either the expired rat had previously visited the storage room or one or more other rats had visited this area, as evidenced by extensive rat excreta on a shelf holding opened cartons of cigarettes and coffee product and on the floor near the hot water heater. Additional evidence of a rat infestation existed along a vertical beam and a corner of the underside of the roof sheathing, both areas of which were slathered in the grease that coats the fur of a rat. These greasy trails prove long periods of rat use.

6. The rat found by the inspector died of unknown causes.

   
   

   The record does not reveal the presence of traps or poison, although the inspection report states that the last visit of pest control service at the store was less than three weeks earlier, raising the possibility of rodent extermination by poison.

7. From a human perspective, rats are dirty animals, carriers of disease, including salmonella. Rats often suffer urinary tract infections that lead to leptospiral invasions of man by aerobic spirochetes, which may cause serious kidney infections in the human host. The communicability of these parasites is facilitated by the inability of the rat to control its urine; essentially, the rat dribbles urine--and, if infected, spirochetes--constantly due to its poor bladder control--poor, that is, from a human perspective.

8. Respondent argued that any rat problem was limited to the storage area. This appears not to be true, at least as to the bread wrappers discussed above. Rats likely have access to the retail area from the storage area. First, rats, if not over-nourished, can snake their greasy bodies through an aperture as little as one-half inch, which may be difficult, if not impossible, for Mr. Mizhar to find in his store. Second, dead rats attract carcass-feeding flies that, taking flight after their carrion feast, spread disease throughout the

   immediate vicinity. Undoubtedly, flies can move freely from the storage room to the retail area, at least when the door between the two areas is opened.

9. The inspector cited the presence of the dead rat and rat infestation as a critical violation. Petitioner routinely assigns a "poor" rating to any facility that is subject to a rat infestation. For the reasons set forth above, Petitioner has amply explained the prudence and necessity of this practice.

10. The inspector cited several more critical violations.

    
    

    An opened cleaning chemical, used for cleaning the store, sat next to and with food items in the processing area. Such an opened container poses serious health risks by chemical contamination of the nearby food.

11. Also in the processing area, the inspector found opened deli meats that had not been labeled with a date. After opening, despite refrigeration, the bacterium known as listeria monocytogenes may contaminate the opened meat and render it unfit for human consumption, so a label showing a sell-by date is useful to ensure product freshness and food safety.

12. The first of the cited critical violations in the retail area is the claimed failure of the store to maintain an employee health policy. Such a policy requires that an employee inform his or her employer if the employee contracts certain illnesses or conditions, any of which pose an unacceptable risk

    to food safety. However, the inspector testified uncertainly as to whether he had asked to see such a policy. At one point, he stated only that he had "probably" asked for the policy.

    Petitioner has thus failed to prove this violation, which, Dr. Fruin explained, has been downgraded to non-critical.

13. However, safe-handling labels were not attached to all self-serve meat in the retail area. Repackaged raw meats were in the freezer, available for retail purchase. Likely, the original packages bore the warning of the potential for bacterial contamination and the requirements of cooking and cold holding. However, Respondent failed to attach such labels to these meats once repackaged and offered for retail sale.

14. Mr. Mizhar spent about $20 for some paint in repairing the premises in response to the cited violations, and he has since hired a certified food manager. Respondent has not previously been disciplined. The record does not indicate any actual injury to the public from the proved violations. Nothing suggests that the violations were willful. The most serious violation, which involves the rats, followed a recent visit by an exterminator. Respondent did not gain a monetary benefit by the proved violations, as all of them were readily remediated and none of them provided Respondent with an advantage over its competition.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

16. Section 500.032(1), Florida Statutes, authorizes Petitioner to enforce the provisions of the Food Safety Act, Sections 500.01-500.601, Florida Statutes. Section 500.12(5)(a), Florida Statutes, extends Petitioner's jurisdiction to food establishments with "ancillary" food service activities, which definition covers Stony Food Mart.

17. Section 500.121(4), Florida Statutes, imposes the burden of proof on Petitioner, which must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    18. Section 500.04(1), (2), (9), and (11), Florida Statutes, provides:

    The following acts and the causing thereof within the state are prohibited:

    
    

    1. The manufacture, sale or delivery, holding or offering for sale of any food that is adulterated or misbranded.

       
       

    2. The adulteration or misbranding of any food.

* * *

(9) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of a food, or the doing of any other act with respect to a food, if such act is done while such article is held for sale and such act results in such article being misbranded.

* * *

(11) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling information, whether in coded form or otherwise, identifying the article's expiration date or similar date, date of manufacture, or manufacturing or distribution lot or batch, if such act is done while such article is held for sale.

1. Section 500.10(1)(f), Florida Statutes, provides that a food is "adulterated":

   If it has been produced, prepared, packed, or held under insanitary conditions whereby it may become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health[.]

   
   

2. Section 500.11(1) provides that food is "misbranded":

   
   

   1. If its labeling is false or misleading in any particular . . .;

      
      

      * * *

      
      

      1. If in package form, unless it bears a label containing:

         1. The name and place of business of the manufacturer, packer, or distributor;

         2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; however, under this subparagraph reasonable variations shall be permitted, and exemptions as to small

            packages shall be established, by regulations prescribed by the department.

            
            

      2. If any word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

      
      

      * * *

      
      

      (p) If it is an animal product that fails to have directly thereon or on its container the official inspection legend as required by the United States Department of Agriculture and, unrestricted by any other provision of this section, such other information as the department requires to ensure that it shall not have false or misleading labeling and that the public is informed of the manner of handling required to maintain the product in a wholesome condition.

      
      

3. Petitioner has incorporated various provisions of the 2001 Food Code (Food Code) and federal law into the substantive law of Florida governing food safety. Florida Administrative Code Rule 5K-4.002(1)(b) adopts Title 9, Code of Federal Regulations, Part 317, and Rule 5K-4.002(4)(a) and (b) adopts the provisions of the Food Code cited below and applies them to food establishments under Petitioner's jurisdiction. Relevant provisions of the Food Code and federal law are discussed below.

4. The rat problems violate Section 500.10(1)(f), Florida Statutes. Due to the rat or rats, Respondent held food under conditions that the food might have become contaminated with filth, unwholesome, or even injurious to health. Florida Administrative Code Rule 5K-4.004(4)(b) requires "[e]ffective measures" to "protect against the contamination of food by . . . rodents . . . ." It is unnecessary in this case to consider whether a violation of the rule requires actual contamination of food or whether a violation of the rule may be defended by showing that rats persisted despite reasonable measures to eradicate them. The statute speaks in terms of possible contamination, and the facts of this case concerning the rat problems clearly violate the statute prohibiting adulterated foods.

5. The proximity of open cleanser to food also violates Section 500.10(1)(f), Florida Statutes. This situation also created an unacceptable risk of food contamination.

6. The failure of the opened deli meats to contain a

   
   

   sell-by date is not a violation. The inclusion of sell-by dates on meat packages is not explicitly required by the statutes cited by the inspector in his report: Sections 500.04 and 400.11, Florida Statutes. Petitioner's Proposed Recommended Order does not identify any authority specifically requiring the inclusion of sell-by dates in meat labeling or re-labeling.

7. Petitioner has not adopted rules explicitly requiring that meat labels include a sell-by date. Food Code Section

   3-201.11(C) requires labeling as required by law.

   
   

8. Food Code Section 3-602.11 states:

   
   

   • (A) Food packaged in a food establishment, shall be labeled as specified in law, including 21 CFR 101 (689 KB)

     - Food Labeling, and 9 CFR 317 (336 KB) Labeling, Marking Devices, and Containers.

     
     

   • (B) Label information shall include:

     
     

     • (1) The common name of the food, or absent a common name, an adequately descriptive identity statement;

       
       

     • (2) If made from two or more ingredients, a list of ingredients in descending order of predominance by weight, including a declaration of artificial color or flavor and chemical preservatives, if contained in the food;

       
       

     • (3) An accurate declaration of the quantity of contents;

       
       

     • (4) The name and place of business of the manufacturer, packer, or distributor; and

       
       

     • (5) Except as exempted in the Federal Food, Drug, and Cosmetic Act § 403(Q)(3)-(5), nutrition labeling as specified in 21 CFR 101 (689 KB) - Food Labeling and 9 CFR 317 Subpart B Nutrition Labeling.

       
       

     • (6) For any salmonid fish containing canthaxanthin as a color additive, the labeling of the bulk fish container, including a list of ingredients, displayed on the retail container or by other written means, such as a counter card, that discloses the use of canthaxanthin.

       
       

   • (C) Bulk food that is available for consumer self- dispensing shall be prominently labeled with the following information in plain view of the consumer:

     • (1) The manufacturer's or processor's label that was provided with the food; or

       
       

     • (2) A card, sign, or other method of notification that includes the information specified under Subparagraphs (B)(1), (2), and (5) of this section.

       
       

   • (D) Bulk, unpackaged foods such as bakery products and unpackaged foods that are portioned to consumer specification need not be labeled if:

     
     

     • (1) A health, nutrient content, or other claim is not made;

       
       

     • (2) There are no state or local laws requiring labeling; and

       
       

     • (3) The food is manufactured or prepared on the premises of the food establishment or at another food establishment or a food processing plant that is owned by the same person and is regulated by the food regulatory agency that has jurisdiction.

       
       

9. Food Code Section 3-602.12 states:

   
   

   • (A) If required by law, consumer warnings shall be provided.

     
     

   • (B) Food establishment or manufacturers' dating information on foods may not be concealed or altered.

   
   

10. The Food Code requires only that Respondent label the meat with the manufacturer's label. The thrust of the testimony presented by Petitioner was not that the repackaged meat was unlabeled, but that it was not labeled with a sell-by date. It is likely, after all, that the repackaged meat bore at least an identification label. The focus of the inspector was on the absence of a sell-by date (and, in an issue presented below, the absence of safe-handling instructions).

11. It is impossible to infer that Respondent failed to relabel the opened meat with the sell-by date contained on the original producer's package because Federal law does not require a sell-by date or any date on the meat label. Title 9, Code of Federal Regulations, Section 317.8(32), which applies to meat, sets forth an extensive list of requirements and prohibitions concerning misleading labeling, but the only provisions regarding dates are clearly permissive, not mandatory:

    1. A calendar date may be shown on labeling when declared in accordance with the provisions of this subparagraph:

       1. The calendar date shall express the month of the year and the day of the month for all products and also the year in the case of products hermetically sealed in metal or glass containers, dried or frozen products, or any other products that the Administrator finds should be labeled with the year because the distribution and marketing practices with respect to such products may cause a label without a year identification to be misleading.

       2. Immediately adjacent to the calendar date shall be a phrase explaining the meaning of such date, in terms of "packing" date, "sell by" date, or "use before" date, with or without a further qualifying phrase, e.g., "For Maximum Freshness" or "For Best Quality", and such phrases shall be approved by the Administrator as prescribed in § 317.4.

    
    

12. Clearly, sell-by dating facilitates food safety.

    
    

    Although the factual record permits findings and conclusions that the rat problems and open cleanser near food violated the anti-adulteration statute, it is impossible to reach the same

    conclusion as to the absence of sell-by dating and the statute prohibiting misleading labeling. The statute prohibits false or misleading information. The statute, on its face, is violated by an inaccurate packaging date, but it is not so clearly violated by the omission of a sell-by date. The statute empowers Petitioner to add other required information, but Petitioner has not expressly required a sell-by date, and the federal authority that Petitioner has adopted permits, but does not require, a sell-by date. Thus, Petitioner has failed to prove this violation.

13. Petitioner has failed to prove the violation concerning the employee health policy due to the vagueness of the inspector's testimony. It is not clear that Respondent lacked such a policy at the time of the inspection.

14. Petitioner has proved the critical violation concerning the failure to add safe-handling labels to self-serve packaged meats. Like the sell-by-date labeling, the safe- handling labeling is not required under Florida statutes or rules. However, Title 9, Code of Federal Regulations, Section 317.2(l) requires safe-handling instructions on the label of all meat to ensure that the consumer understands that he or she must refrigerate meats prior to cooking, cook them thoroughly, keep hot foods hot, and discard or immediately refrigerate left- overs.

15. Section 500.121(1), Florida Statutes, authorizes Petitioner to impose a penalty of not more than $5000 for any food establishment "that has violated this chapter." Section 570.07(2)(d), Florida Statutes, authorizes Petitioner to impose such fines for violations of federal standards. This provision requires Petitioner to consider, in imposing any fine, the following factors:

    the degree and extent of harm caused by the violation, the cost of rectifying the damage, the monetary benefit to the violator, whether the violation was willful, and the violator's compliance record.

    
    

16. Petitioner seeks to impose a fine of $2250, which is within its statutory authority. However, two critical violations, on which it based its proposed fine, have not been proved. Petitioner may thus wish to revisit the amount of the

fine.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent guilty of three critical violations, confirming the overall rating of the Stony Food Mart as of the above-described inspection as "poor," and imposing a fine of $1500.

DONE AND ENTERED this 6th day of July, 2007, in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2007.

COPIES FURNISHED:

Richard D. Tritschler, General Counsel Department of Agriculture

And Consumer Services

407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800

Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture

And Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

David W. Young, Senior Attorney Office of the General Counsel Department of Agriculture

and Consumer Services

407 South Calhoun Street Mayo Building, Suite 520

Tallahassee, Florida 32399-0800

Mahmud Mizhar, Qualified Representative Mahmud Mizhar, Inc.

1665 Martin Luther King, Jr., Boulevard Riviera Beach, Florida 33404

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 07-001777

Orders for Case No: 07-001777