STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4460

) WAYNE BRANNON, d/b/a BRANNON ) AND SON MEAT PROCESSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on November 12, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Clinton H. Coulter, Esq.

Department of Agriculture and Consumer Services

The Capitol

Tallahassee, FL 32399-0810

For Respondent: Wayne Brannon, Pro Se

Route 1, Box 109-A Wellborn, FL 32094

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent, a custom slaughterer, committed violations of Chapter 585, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against the permit granted him by Petitioner.

PRELIMINARY STATEMENT

On April 23, 1991, Petitioner issued an Administrative Complaint charging Respondent with use of unchlorinated water in the processing of slaughtered animals; failure to remove still grease from a wall of Respondent's facility; failure to provide hot water at a hand wash basin in the facility; failure to properly clean sausage sticks; and failure to meet required levels of artificial lighting within the facility. All of these alleged offenses constitute violations of Petitioner's Rule Chapter 5C-1, Florida Administrative Code, adopted by Petitioner pursuant to provisions of Section 585.91, Florida Statutes.

Respondent requested an administrative hearing on the charges set forth in the Administrative Complaint. Subsequently, the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of four witnesses and four evidentiary exhibits. Respondent presented the testimony of three witnesses, including himself.

No transcript of the final hearing was provided by the parties. Also, neither party submitted proposed findings of fact and none had been timely received at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent is Wayne Brannon, operator of a custom slaughtering or processing establishment. Respondent operates the establishment subject to regulation by Petitioner and is the holder of permit no. C-20, issued by Petitioner.

   
   

2. On March 6, 1991, Dr. James O. Whidden and Terry D. Watson conducted an inspection of Respondent's establishment.

   
   

3. Watson observed Respondent pull a water sample from the facility's plumbing and run a test on that sample to determine the chlorine content of the water. Watson also observed that the test failed to reveal the presence of any chlorine in the water.

   
   

4. Upon noting the test results, Respondent remarked to Watson that "I forgot to put any in it." This was a reference to Respondent's failure to put chlorine in his personally-owned water system used to provide water to the facility.

   
   

5. Still grease was present on the wall of the establishment's processing room and was observed by Whidden who also noted the lack of hot water at a hand wash basin in the facility.

   
   

6. Sausage sticks in the processing room were observed by Whidden. Some of the sausage sticks had not been cleaned.

   
   

7. Artificial lighting in the slaughter area of Respondent's facility at the time of the inspection by Whidden and Watson was approximately 25-30 foot candle power, below the 50 foot candle power required by Petitioner's regulations.

   
   

8. At the time of the inspection, Respondent was actively processing animals. He was butchering hogs and was in the process of cutting up the carcasses of three hogs killed that day, preparatory to grinding the meat up for sausage. These carcasses, which had been recently killed, were the only ones which did not bear the stamped message "not for sale". Beef carcasses in the facility's cooler were appropriately stamped.

   
   

9. In the course of the inspection, Respondent was informed by Whidden that several violations had been noted that would have to be corrected and would require a temporary closure of the facility.

10. When Whidden mentioned closing the facility, Respondent became angry. He ordered Whidden and Watson to leave his property and not to return. Specifically, he told them "don't get off the public road if you come back this way." The two men complied with Respondent's directive and left.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

12. Petitioner bears the burden of proof of the charges set forth in the Administrative Complaint. Proof that Respondent has committed those violations must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

13. By Rule 5C-1.019, Florida Administrative Code, Petitioner has adopted and made applicable to permittees, such as Respondent, sanitary regulations established by the United States Department of Agriculture.

    
    

14. Respondent is charged in the Administrative Complaint with use of unchlorinated water in the facility, a violation of 9 CFR 309.3(d)(1); failure to remove grease from the wall of the processing room, a violation of 9 CFR 308.3(e) and 9 CFR 308.7; failure to provide hot water at a hand wash basin contrary to provisions of 9 CFR 308.4(b); failure to clean sausage sticks, a violation of 9 CFR 308.5(a) and 9 CFR 308.8(a); and failure to maintain the minimum level of required artificial lighting in the slaughter area contrary to 9 CFR 308.3(b).

    
    

15. The proof offered by Petitioner to establish the existence of these violations as set forth in the Administrative Complaint is clear and convincing. Respondent is guilty of those allegations.

    
    

16. Respondent is not guilty of those violations contained in the Administrative Complaint that he failed to stamp carcasses with the legend "not for sale". In this regard, it is apparent that the carcasses being processed had just been slaughtered and that Respondent intended to grind the meat into sausage, thereby obviating any need to stamp them.

    
    

17. Pursuant to provisions of Section 585.91, Florida Statutes, Petitioner is authorized to suspend the permit issued to Respondent, pending correction by Respondent of the noted deficiencies.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered suspending Respondent's permit for a period of six months, provided such suspension shall terminate earlier if Respondent takes adequate measures to correct noted deficiencies and thereby comply with rules of the Department of Agriculture and Consumer Services.

DONE AND ENTERED this 2nd day of December, 1991, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1991.

COPIES FURNISHED:

CLINTON H. COULTER, ESQ. DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES THE CAPITOL

TALLAHASSEE, FL 32399-0810

WAYNE BRANNON ROUTE 1, BOX 109-A WELLBORN, FL 32094

HON. BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-004460

Orders for Case No: 91-004460