STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA )

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2406

)

TONY'S SEA, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on April 10, 1985, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

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

Resident Counsel

Department of Agriculture and Consumer Services

Room 512, Mayo Building Tallahassee, Florida 32301

For Respondent: (No appearance)

INTRODUCTION

This is a case in which the Department of Agriculture and Consumer Services seeks to take disciplinary action authorized by Section 500.121, Florida Statutes, by imposing an administrative fine in the amount of $1,000.00 against Tony's Sea, Inc. By an Administrative Complaint dated March 12, 1984, which was duly served on Tony's Sea, Inc., the Respondent was duly advised of the factual and legal basis for the proposed disciplinary action as well as of its right to a hearing.

Following two continuances which were granted for the convenience of the parties, on February 25, 1985, the Hearing Officer issued a Third Notice of Hearing which notified all parties that the hearing in this case would be held at a specified address in Miami, Florida, beginning at 9:00 a.m. on Wednesday, April 10, 1985. On the day of the hearing the Hearing Officer arrived at the location designated in the Third Notice of Hearing at approximately 8:50 a.m. At that time counsel and representatives of the Petitioner were present, but no one was present on behalf of the Respondent. The Hearing Officer waited until approximately 9:25 a.m. to begin the hearing. As of 9:25 a.m. no one had appeared on behalf of the Respondent. Thereupon, the Hearing Officer commenced the hearing and, in the absence of any counsel or representative for the Respondent, received evidence in support of the Administrative Complaint. The

presentation of the Petitioner's evidence was completed at approximately 9:50 a.m., whereupon the record of the hearing was closed. At no time did any counsel or representative appear on behalf of the Respondent.

FINDINGS OF FACT

Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I hereby make the following findings of fact:

1. On February 27, 1984, the premises operated by Tony's Sea, Inc., were inspected by two inspectors of the Department of Agriculture and Consumer Services. On that date the inspectors observed, among other things, four boxes of frozen lobster tails which had been processed and packed by Tony's Sea, Inc.

   
   

2. The four boxes of frozen lobster tails which came to the attention of the inspectors were sealed and labeled. The label on each box stated that the net weight of the contents was ten pounds. None of the labels contained the name of a dealer or responsible firm, nor did the name of a dealer or responsible firm appear elsewhere on the boxes.

   
   

3. The inspectors removed the ice from the frozen lobster tails in each of the four subject boxes and weighed the lobster tails without ice. The net weight of the frozen lobster tails was approximately six pounds per box.

   
   

4. The Administrative Complaint served on the Respondent contained the following opening paragraph:

   
   

   You are hereby notified that the Florida Department of Agriculture and Consumer Services intends to take disciplinary sanction authorized by Section 500.121, F.S., and seeks to impose an administrative fine of $1,000 for violation of certain laws

   of the state applicable to food processors and certain rules of the department.

   
   

   CONCLUSIONS OF LAW

   
   

   On the basis of the foregoing findings of fact and the applicable legal principles, I make the following conclusions of law:

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this case. (See, generally, Section 120.57, Florida statutes.)

   
   

6. Section 500.04, Florida Statutes, reads as follows in pertinent part:

   
   

   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.

      (3) -(10) ***

7. Section 500.10, Florida Statutes, reads as follows in pertinent part: A food is deemed to be adulterated:

   (1) ***

   (2)(a) If any valuable constituent has been in whole or in part omitted or abstracted therefore; or

   (b) If any substance has been substituted wholly or in part therefore; or

   (c) ***

   (d) If any substance has been added hereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength or make it appear better or of greater value than it is.

   (3) ***

   
   

8. Section 500.11, Florida Statutes, reads as follows, in pertinent part:

   
   

   1. A food is deemed to be misbranded:

      (a) If its labeling is false or misleading in any particular ***.

      (b) ***

      (c) ***

      1. If its container is so made, formed, or filled as to be misleading.

      2. 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.

      
      

9. Section 500.121, Florida Statues, reads as follows in pertinent part:

   
   

   1. In addition to the suspension procedures provided in s. 500.12, the department may impose a fine not exceeding $5,000 against any retail food store or food manufacturer, processor, packer, or holder, which fine, when imposed and paid, shall be deposited by the department into the General Inspection Trust Fund. The department may revoke or suspend the permit of any such retail food store or food manufacturer, processor, packer, or holder when it is satisfied that the retail food store or food manufacturer, processor, packer, or holder has:

      1. Violated any of the provisions of ss. 500.01-500.307.

         (b) ***

         1. Knowingly committed, or been a party to, any material fraud, misrepresentation, conspiracy, collusion, trick, scheme, or device whereby any other, person, lawfully relying upon the word, representation, or conduct of a retail food store or food manufacturer, processor, packer, or holder, acts to his injury or damage.

         2. Committed any act or conduct of the same or different character of that enumerated which constitutes fraudulent or dishonest dealing.

   2. Whenever any administrative order has been made and entered by the department imposing a fine pursuant to this section, such order shall specify the amount of fine and time limit for payment thereof, not exceeding 15 days, and, upon failure of the retail food store or food manufacturer, processor, packer, or holder involved to pay the fine within that time, the permit of such retail food store or food manufacturer, processor, packer, or holder shall be subject to suspension.

      (3) ***

      
      

10. 5E-6.02, Florida Administrative Code, adopts Code of Federal Regulations Title 21, Part 101, Food Labeling, as rules and regulations under Chapter 500, Florida Statutes. Section 101.105 of Title 21 of the Code of Federal Regulations requires net weight declarations to accurately reveal the quantity of food in a package exclusive of wrappers and other materials packed therein.

    
    

11. The four boxes of frozen lobster tails described in the findings of fact were adulterated within the meaning of Section 500.10, Florida Statutes, and were misbranded within the meaning of Section 500.11, Florida Statutes. Therefore, the Respondent engaged in prohibited acts within the meaning of Section 500.04(1) and (2), Florida Statutes, by adulterating and misbranding the four boxes of frozen lobster tails and by holding the adulterated and misbranded lobster tails for sale. These prohibited acts warrant the imposition of the penalties provided for in Section 500.121, Florida Statutes.

RECOMMENDATION

On the basis of all of the foregoing it is recommended that the Department of Agriculture and Consumer Services enter a Final Order ordering the Respondent, Tony's Sea, Inc., to pay an administrative fine in the amount of

$1,000.00, such fine to be paid within 15 days of the issuance of the Final Order.

DONE and ORDERED this 10th day of May, 1985, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 10th day of May, 1985.

COPIES FURNISHED:

Mr. Antonio Martinez-Malo President, Tony's Sea, Inc., 7716 N.W. 76 Avenue

Medley, Florida 33166

Frank A. Graham, Jr., Esquire Resident Counsel

Department of Agriculture and Consumer Services

Room 512, Mayo Building Tallahassee, Florida 32301

Honorable Doyle A. Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32301

Docket for Case No: 84-002406

Orders for Case No: 84-002406