STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3524

)

J & M SEAFOODS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 29, 1984, in Miami, Florida.

APPEARANCES

For Petitioner: Frank A. Graham, Jr., Esquire

Department of Agriculture & Consumer Services, Mayo Building Tallahassee, Florida 32301

For Respondent: Michael I. Rose, Esquire

Roberts Building, Suites 303 and 330

28 West Flagler Street Miami, Florida 33130

ISSUE

The issue presented for decision herein is whether or not the Respondent, J & M Seafoods, Inc., processed, sold and delivered food (seafood) where the net weight of the containers were less than that stated on the containers. If so, what, if any, disciplinary sanction should be imposed.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact.

   
   

2. J & M Seafoods, Inc., Respondent herein, is a processor and packer of seafoods in Hialeah Gardens, Florida.

   
   

3. On August 11, 1983, frozen lobster tails processed and packed by J & M Seafoods, Inc. were sold to Florida fish distributors in Jacksonville, Florida. Those lobster tails were inspected by a representative of the Petitioner, Robert Bailey, inspector.

4. Inspector Bailey visited the warehouses of Florida fish distributors and inspected approximately 72 boxes of lobster tails which were labeled for ten pounds (160 ounces each) . Inspector Bailey weighed each ten pound box with ice glaze on the product. Inspector Bailey thawed the product and the net weight found for the individual boxes averaged 96 ounces or 64 ounces less than the claimed weight of 160 ounces. (Petitioner's Exhibit 1)

   
   

5. Inspector Bailey thereafter resealed the boxes and placed a Stop Sale Order after the boxes were retaped with Petitioner's Stop Sale Order attached thereto. Inspector Bailey subsequently authorized the movement of the goods under the Stop Sale Order and the product was transferred back to the Respondent's warehouse in Hialeah Gardens, Florida. (Petitioner's Exhibit 3)

   
   

6. Armando Esceto, an agriculture and produce specialist (food inspector) employed by Petitioner, inspected the Stop Sale product at the Respondent's warehouse in Hialeah Gardens. One of Respondent's agents, a Mr. Miranda, identified the boxes and advised that he sold the product to a processor in the Jacksonville area. (Petitioner's Exhibits 4 and 5) Inspector Esceto rechecked the Stop Sale product and noted that the actual weight was 94 ounces versus the claimed weight of 160 ounces. Sometime thereafter, Inspector Esceto again was summoned to the Respondent's warehouse to recheck the product and found that it fell within the allowable weight discrepancy. He therefore issued a release notice for the product to be sold. (Petitioner's Exhibits 9, 10, and 11)

   
   

7. John Rychener, Petitioner's Bureau Chief for the Food Grades and Standards Division, was in charge of the overall investigation of the subject case by the Petitioner. Frozen lobster tails, on the average, sell for approximately $6.10 to $6.20 per pound. The product in question, as originally packed, processed and sold, contained approximately 40 percent ice.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner is derived from section 500.121, Florida Statutes.

    
    

11. Section 500.04, Florida Statutes, prohibits the manufacture, sale or delivery of misbranded foods. A packaged food is considered misbranded if it contains a label reflecting an inaccurate statement of content.

    
    

12. Competent and substantial evidence was offered herein to establish that the Respondent sold and delivered misbranded foods within the meaning of sections 500.04 and 500.11, Florida Statutes.

    
    

13. Section 500.121, Florida Statutes, authorizes the Petitioner to discipline food processors for violation of any provision of Chapter 500, Florida Statutes, or rule of the Department.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Florida Department of Agriculture and Consumer Services, impose an administrative fine of $1,500 on Respondent for violations as set forth herein above.

RECOMMENDED this 16th day of May, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1984.

COPIES FURNISHED:

Frank A. Graham, Jr., Esquire Department of Agriculture

& Consumer Services Mayo Building

Tallahassee, Florida 32301

Michael I. Rose, Esquire Roberts Building

Suite 303 and 330

28 W. Flagler Street Miami, Florida 33130

John Rychener Bureau Chief

Food Grades and Standards Division Department of Agriculture

Mayo Building

Tallahassee, Florida 32301

Docket for Case No: 83-003524

Orders for Case No: 83-003524