STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUSTAFON'S DAIRY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-191

)

FLORIDA DEPARTMENT OF ) AGRICULTURE & CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings at the State Office Building, corner of West Morse Boulevard, Winter Park, Florida at 10:00 A.M., April 28, 1976.

APPEARANCES

For Petitioner: Fred H. Kent, Jr., Esquire

870 Florida Bank Building Jacksonville, Florida 32202

For Respondent: Jack Shoemaker, Esquire

Resident Counsel

515 Mayo Building Tallahassee, Florida 32304

ISSUE

Whether or not the Petitioner should be entitled to an extension of the shelf life on its milk and milk products from a ten day period to a twelve day period.

FINDINGS OF FACT

1. Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner. Based on the laboratory analysis of the test samples, they felt that the request should be accepted. Jay Boosinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith is, as his title indicates, charged with the function of inspection and enforcement of the laws and regulations associated with the dairy industry in the State of Florida.

   
   

2. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the

   Petitioner's Green Cove Springs, Florida plant and selected stores which were serviced by the Petitioner. These samples were collected by a dairy plant specialist of the Respondent, and in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day, established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life.

   
   

3. The Petitioner, through its quality control supervisor, offered as Petitioner's Exhibit #1, a summary of a test conducted in its plant, which showed entries on the various milk and milk products at 43 degrees Fahrenheit. In each instance the report shows, as supported by the testimony of the witness, that the milk and milk products exceed the ten day shelf life.

   
   

4. Professor Ronald Richter, Ph.D., Extension Dairy Technologist for the University of Florida, testified about a test conducted on the shelf life of the low fat milk and whole milk of the Petitioner. At 40 degrees the shelf life was

   46 days, at 46 degrees the shelf life was 26 days in the low fat category. In the whole milk sample, at 40 degrees the shelf life was 29 days and at 46 degrees the shelf life was 22 days. The type tests employed included the Mosely Count and flavor test. The flavor test, according to the witnesses is the ultimate test of the shelf life of the milk or milk product. The purpose of the tests which the witness was making was in connection with a research project on the techniques to be utilized by a laboratory in evaluating the shelf life of milk and milk products.

   
   

5. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104 (7)(d), Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

6. It is concluded as a matter of law that the testimony produced in the hearing has sufficiently established the necessary supporting justification to cause the Respondent to grant specific authority for allowing a shelf life for the milk and milk products of the Petitioner to be extended to twelve days. Such extension would be in keeping with Section 502.042(2), Florida Statutes and Chapter 5D-l04(7)(d), Florida Administrative Code.

RECOMMENDATION

It is recommended that the Respondent grant a shelf life of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition.

DONE and ENTERED this 5th day of June, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Fred H. Kent, Jr., Esquire 870 Florida Bank Building Jacksonville, Florida 32202

Jack Shoemaker, Esquire Resident Counsel

515 Mayo Building Tallahassee, Florida 32304

Docket for Case No: 76-000191

Orders for Case No: 76-000191