STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on February 28, 2008, in Lakeland, Florida.

APPEARANCES

For Petitioner: David W. Young, Esquire

Office of the General Counsel Department of Agriculture and

Consumer Services

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

For Respondent: Zayed O. Iraq, pro se

Strawberry Marathon

506 West Canal Street Mulberry, Florida 33860

STATEMENT OF THE ISSUES

The issues presented are whether Respondent failed to maintain food service areas free of rat droppings and urine and committed other alleged acts in violation of Subsections

500.04(1), (2), and (8) and Subsection 500.10(1)(f),1 and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint against Respondent on November 16, 2007. Respondent timely requested a formal hearing.

At the hearing, Petitioner presented the testimony of three witnesses and submitted four exhibits for admission into evidence. Respondent presented the testimony of one witness and submitted two composite exhibits for admission into evidence.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the record of the hearing.

Neither party requested a transcript of the hearing. Petitioner and Respondent timely filed their respective Proposed Recommended Orders on March 7 and 5, 2008.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating food establishments in the state. Respondent operates a business that sells mostly pre-packaged food products at retail, but also provides ancillary food service in a coffee and cappuccino area. The food service operation prepares pickled food products and sandwiches for self service and special order.

2. A sanitation and safety specialist (Specialist) for Petitioner performed a routine inspection of the business on October 17, 2007, and issued a stop sale order on the same day. The Specialist conducted a re-inspection to determine if the stop sale order could be released on October 24, 2007, and another re-inspection, at Respondent's request, on October 30, 2007, at which time the Specialist was accompanied by her supervisor. After the second inspection, the Specialist issued a stop sale order because Respondent violated the first stop sale order.

3. Uncorrected violations remained after the third inspection on October 30, 2007. Rat droppings remained in the food service area. Respondent had corrected the rat droppings in the packaged food area (grocery area).

4. Rat droppings and urine were present on a shelf in the food service area. More rat droppings were present in a storage cabinet in the food service area.

1. Other uncorrected violations existed on October 30, 2007. Respondent continued to use the coffee pot in the food service area in a continuing violation of the original stop sale order. Equipment and utensils were not properly sanitized. The three-compartment sink was unclean and not maintained in a condition suitable for food service equipment. The hot and cold

   storage unit did not display a thermometer, and no thermometer was present in the freezer chest.

2. More uncorrected violations existed on October 30, 2007. Respondent had no certified food manager. Floor coverings were not clean. The floor in the walk-in cooler was unclean, and attached equipment was not properly maintained. A fan guard was missing in one of the air cooling units in the walk-in cooler. Sanitizer concentration test kits were unavailable. No sanitation strips were available in the food service area. The walls and ceilings were not constructed of a smooth, nonabsorbent material, and the walls and ceilings were in disrepair. Holes around pipes leading to the exterior of the building were open and unsealed. Restroom walls were in disrepair, and ceiling tiles were water stained, missing, and damaged.

3. Still more uncorrected violations existed on October 30, 2007. The bottom of the dumpster outside the

   business was corroded. The dumpster was missing its drain plug.

   
   

4. Petitioner proposes to impose an administrative fine in the amount of $2,975.00. Petitioner has not adopted a rule prescribing the mitigating or aggravating factors that may be relevant to the reasonableness of any proposed penalty. Petitioner presented expert testimony concerning the aggravating and mitigating circumstances applicable to this case.

5. The violations committed by Respondent are numerous and egregious. Respondent prepared, produced, and packed or held food in a manner that exposed the food to contamination by filth and disease, as well as other unwholesome conditions that are injurious to health. The three-compartment sink can contaminate food service equipment washed in the sink, which, in turn, exposes prepared food to contamination.

6. Rodent droppings pose a serious threat to the spread of Salmonella and Leptospira. Both are harmful food-borne bacteria that cause salmonellosis and leptospirosis, both of which are bacterial diseases affecting humans.

7. Rats defecate and urinate frequently. The feces and urine can spread harmful germs. Even if food packaging were not broken, the handling of food packaging that is contaminated by rat feces or urine can result in the spread of harmful bacteria.

8. Rats range almost anywhere in their surroundings. The presence of rat feces in one area of the business means that all food or food processing equipment in the vicinity may be contaminated and must be cleaned.

9. The unsealed hole in the wall for pipes affords easy access for rodents to enter the business. Damaged walls in the restroom and by the hand sink in the food processing area provide areas for rodents to harbor and conceal their presence within the business premises.

10. Dumpsters house trash and garbage that attracts rodents and insects. The corroded bottom provides access into refuse for both rodents and insects. The attraction results in an increase of rodent and insect activity in the vicinity of the food establishment, increasing the probability that both will find their way into the establishment. The corroded dumpster bottom may also cause leakage of garbage and filth. An employee taking garbage to the dumpster and who steps on leaking refuse can track it into the food establishment where it can contaminate food.

11. The stain on the ceiling tiles in the retail area means that water has at some point seeped through the tiles. If this occurs the water passing over dust and grime, or rat feces, may fall on the food below causing contamination.

12. No evidence showed that anyone was injured as a result of any of the violations committed by Respondent. There is no evidence relating to the cost, if any, of rectifying any damage due to the violations committed by Respondent. There is no evidence that the violations resulted in financial gain to Respondent, other than avoiding the cost of correcting the food safety problems. Respondent has no prior record of any adverse administrative action.

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the subject matter of this proceeding. §§ 120.569 and 120.57(1). DOAH provided the parties with adequate notice of the administrative hearing.

14. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the proposed penalty is reasonable.

    Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). Petitioner satisfied its burden of proof concerning the alleged violations and the proposed penalty.

15. Food establishments that have ancillary food service activities are regulated by Petitioner. § 500.12(5)(a). Petitioner correctly issued stop sale orders pursuant to Subsection 500.172(1). The stop sale orders are final orders subject to judicial review in accordance with Section 120.68 and are not at issue in this proceeding.

16. Respondent manufactured, sold, delivered, and held adulterated food in violation of Subsections 500.04(1), (2), and

(8) and 500.10(1)(f). The aggravating and mitigating factors have been discussed in the Findings of Fact.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order finding Respondent guilty, individually, and doing business in the name of Strawberry Marathon, of committing the acts and violations alleged in the Administrative Complaint and imposing a fine of

$2,975.00.

DONE AND ENTERED this 3rd day of April, 2008, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 3rd day of April, 2008.

ENDNOTE

1/ References to subsections, sections, and chapters are to Florida Statutes (2007) unless otherwise stated.

COPIES FURNISHED:

David W. Young, Esquire Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

Zayed O. Iraq Strawberry Marathon

506 West Canal Street Mulberry, Florida 33860

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

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: 08-000342

Orders for Case No: 08-000342