STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7087

)

TONY'S PRIME MEATS, INC., A ) DISSOLVED FLORIDA CORPORATION ) d/b/a SCOTTI'S MEAT CO., AND ) ANTHONY SCOTTI, JR., a/k/a )

ANTHONY G. SCOTTI, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on April 26, 1994, in Sarasota, Florida.

APPEARANCE

For Petitioner: Isodore F. Rommes, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Thomas M. Fitzgibbons, Esquire

1800 Second Street, Suite 775

Sarasota, Florida 34236 STATEMENT OF THE ISSUE

Whether the Respondent's Grant of Inspection should be revoked or suspended, or whether an administrative fine or some other sanction should be imposed based on the allegations contained in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By an Administrative Complaint dated November 22, 1993, and filed with the Division of Administrative Hearings (Division) on December 15, 1993, the Department of Agriculture and Consumer Services (Department) is attempting to revoke or suspend the Respondent's Grant of Inspection or to impose an administrative fine or other sanction. As grounds therefor, the Department alleges that Respondent: (a) violated Section 585.75 and Section 585.80(1), Florida Statutes, when Respondent, during a time that inspection had been withheld by the Department for violation of sanitary standards, processed animal

products, without Department Inspection; and (b) refused Department inspectors access to Respondent's licensed meat processing establishment in violation of Sections 585.78 and 585.006, Florida Statutes. The Respondent disputed the allegations and requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes. By letter dated December 15, 1993, the Department transferred the matter to the Division for the assignment of a Hearing Officer and conduct of a formal hearing. The matter was assigned to a Hearing Officer and the hearing held on April 26, 1994, in Sarasota, Florida.

In support of the charges, the Department presented the testimony of Ernest Tipton, Melody Cara, Arnie C. Lahtinen, Anthony G. Scotti, and Donald Blevons.

Department's exhibits 1, 2, 5 and 6 were received as evidence in this case. Respondents did not present any witnesses for testimony or offer any documentary evidence.

A transcript of this proceeding was filed with the Division on May 3, 1994. The parties timely filed their Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Respondent, Tony's Prime Meats, Inc., (Tony's) is a Florida corporation which was dissolved for failure to file an annual report on August 13, 1993.

   The corporation is still doing business under the fictitious name of Scotti's Meats, Co., in Manatee County, Florida, at 510 7th Street East, Bradenton, Florida 34208-9020. At the time of the alleged violation, Respondent, Tony's Prime Meats, Inc. was an active and current Florida corporation.

   
   

2. Respondent, Anthony Scotti, Jr., is a shareholder in, the registered agent for, and a corporate officer of, Tony's. Anthony Scotti, Jr. is shown on the corporate records as Anthony G. Scotti, and is a resident of Sarasota County, Florida.

   
   

3. The Department is the agency of the State of Florida charged with the administration and enforcement of the provisions of Chapter 585, Florida Statutes.

   
   

4. Respondents are engaged in the preparation of, and the offering for sale, animal products capable of use as human food and intended to be used as human food, pursuant to Chapter 585, Florida Statute. Tony's holds a Grant of Inspection, Number 335/P, pursuant to Section 585.74, Florida Statutes, from the Department.

   
   

5. On June 2, 1993, meat inspection at Tony's had been withheld by Ernest Tipton, Meat Inspector with the Department, because of sanitary standards violations.

   
   

6. At about 8:00 a.m. on June 4, 1993, Inspector Tipton visited Tony's to check on the facility. Arnie Lahtinen, an employee of Tony's who was in charge of the plant during the absence of Anthony Scotti, was present at the facility during Inspector Tipton's visit. During Inspector Tipton's visit, Lahtinen was performing plant improvement tasks in accordance with deficiencies noted when inspection had been withheld on June 2, 1993. Inspector Tipton did not observe

   the presence of any other employee in the establishment or observe any visible signs of meat processing occurring or observe any evidence that meat processing had been occurring prior to his visit.

   
   

7. Inspector Tipton departed Tony's about 8:30 a.m. on June 4, 1993, but returned later in the morning around 10:00 a.m. to pick up some papers. Upon his return, Inspector Tipton observed a car parked at the facility which he identified as belonging to an employee of Tony's named Nick. However, there was no direct evidence that the car belonged to Nick or that Nick was present in the facility during the time in question on June 4, 1993. Inspector Tipton attempted to gain entry but found the facility locked. After ringing the doorbell and getting no response, Inspector Tipton then knocked on the back door but again, received no response.

   
   

8. Since Lahtinen had been present in the facility during Inspector Tipton's earlier visit, he assumed Lahtinen was still in the facility, that meat processing was occurring in the facility, and that he was being denied access to the facility in violation of Chapter 585, Florida Statutes.

   
   

9. Inspector Tipton determined that his best course of action was to contact his supervisor, Melody Cara. After contacting Ms. Cara, Inspector Tipton contacted the police on the advice of Ms. Cara. Upon her arrival at the facility, Ms. Cara made a similar attempt to gain entry by ringing the door bell and knocking on the door but there was no response.

   
   

10. Anthony Scotti arrived at the facility shortly after Ms. Cara and the police officer, and immediately unlocked the facility to allow Ms. Cara, Inspector Tipton and the police officer entry into the facility.

    
    

11. When Inspector Tipton, Ms. Cara, Scotti and the police officer entered the facility, one of them turned the lights on in the lobby area and just a short time later Ms. Cara turned the lights on in the processing room. As Scotti and Ms. Cara were entering the processing room, Lahtinen came out of the processing room. The record does not reflect whether Lahtinen heard the door bell ring or the knocking on the door on either occasion and, if he did, why he did not respond. Other than Lahtinen, no other employees were observed in the facility at this time.

    
    

12. Upon entering the lobby area, the police officer found a knife and an apron upon which there was a substance that resembled blood. No analysis of the substance on the apron and knife was conducted and the material was never identified as blood.

    
    

13. The tables and the floors in the processing room were wet as if they had been washed. However, there was no direct evidence that meat processing had been occurring before the entry.

    
    

14. There is insufficient evidence to establish facts to show that Inspector Tipton or Ms. Cara were intentionally denied entry into Tony's facility, or that meat processing had been occurring in Tony's establishment during the time in question on June 4, 1993.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

16. Section 585.007(1), Florida Statutes, grants the Department authority to impose an administrative fine, not exceeding $10,000, for each violation of Chapter 585, Florida Statutes, or any rule promulgated thereunder. Section

    585.75 (2), Florida Statutes, grants the Department the authority to: (a) suspend or revoke the Grant of Inspection for violation of any statute or rule of the Department affecting standard operating procedures and acceptable sanitary standards; and (b) withhold inspection, in all or in part of an establishment, when deemed necessary by the Department for specific violations. Section 585.84, Florida Statutes, grants the Department authority to suspend inspection when an establishment, operating under the provisions of Part III of Chapter 585, Florida Statutes, fails to maintain or operate the establishment in a clean and sanitary manner.

    
    

17. Section 585.70(17), Florida Statutes, provides as follows:

    
    

    (17) "Product" or "animal product" means any animal carcass, meat, meat byproduct, meat food product, poultry byproduct, poultry meat, or poultry food product, capable of use as human food, or as otherwise provided for.

    
    

18. Section 585.78(1), Florida Statutes, requires that an inspection of all animal products brought into any establishment operating under the provisions of Chapter 585, Florida Statutes, shall be conducted before the products are allowed to enter into any area of the establishment wherein such products are to be prepared.

    
    

19. Section 585.78(2), Florida Statutes, requires that, for purposes of inspection, the Department's inspectors shall have access to every part of an establishment at all times, by day or night, without regard to whether such establishment is operating.

    
    

20. Section 585.80(1), Florida Statutes, provides as follows:

    
    

    585.80 Prohibition on sale and transportation of animal products; penalty.--No Person shall, with respect to animal or any animal product:

    (1) Slaughter any such animal or prepare any animal product which is capable of use as human food, at any establishment preparing animal products for intrastate commerce, except in compliance with the requirements of this part.

21. Section 585.06, Florida Statutes, provides as follows: Any person who forcibly assaults, resists,

    opposes, prevents, impedes, or interferes

    with a duly authorized inspector or representative of the department in the execution of his duties under this chapter shall be guilty of a misdemeanor of the second degree, punishable as provided in

    s. 775,082 or s. 775.083. (Emphasis Supplied).

22. The Administrative Complaint charges Respondents with two basic violations of Chapter 585, Florida Statutes:

    
    

    1. Count I charges Respondents with violation of Section 585.75 and Section 585.80(1),

       Florida Statutes, for processing animal products, without Department inspection, during a time that inspection had been withheld for violation of sanitary standards.

    2. Count II charges the Respondents with violating Section 585.78(2) and Section 585.006, Florida Statutes, for refusing the Department's inspectors access to Respondents' licensed meat processing establishment.

       
       

23. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    1. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Department has failed to sustain its burden in this regard. While there are "indications" that "something" may have been occurring inside the Respondents' establishment upon Inspector Tipton's return around 10:00 a.m. on June 4, 1993, there is just simply no evidence upon which to establish facts to show that meat products were being processed inside the Respondents' establishment during the time in question on June 4, 1993. Likewise, there is no evidence that Lahtinen was aware of Inspector Tipton's or Ms. Cara's attempt to gain entry into the Respondents' establishment at the time in question on June 4, 1993, and therefore, no evidence of Inspector Tipton or Ms. Cara being intentionally denied access to the Respondents' establishment at the time in question on June 4, 1993.

       
       

24. Count II of the Administrative Complaint charges the Respondents' with a violation of Section 585.006, Florida Statutes, for allegedly denying Tipton and Ms. Cara access to Respondents' establishment. Interestingly, Section 585.006, Florida Statutes, makes it a misdemeanor in the second degree, punishable as provided in Section 775.082 or Section 775.083, Florida Statutes, if found guilty of forcibly interfering with the execution of the duties of a duly authorized inspector or representative of the Department. This forum has no jurisdiction to impose the penalty provided for in this section. However, there is no evidence that Inspector Tipton or Ms. Cara were forcibly interfered with in their attempt to enter Respondents' establishment on June 4, 1993, and therefore, no violation upon which to impose an administrative fine or other sanctions.

    
    

25. The Respondents have requested that they be awarded their attorney's fees and cost of this action. However, the request fails to plead under what statutory or other authority the award of attorney's fees and costs would be authorized in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing both Count I and Count II of the Administrative Complaint. It is further recommended that the request for attorney's fees and costs be denied without prejudice to the Respondents filing a petition under Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.

DONE AND ENTERED this 14th day of June, 1994, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7087

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner, Department's Proposed Findings of Fact:

1. The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5); 6(7); 7(7,8); 8(9); 9(10,11); and 10(12).

2. Proposed finding of fact 11 is neither material nor relevant to this proceeding.

• Proposed findings of fact 4 - 8 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton. Proposed findings of fact 7 and 8 indicate that the parties were denied access which is rejected as not supported by competent substantial evidence in the record. Proposed finding of fact 10 indicates a bloody knife and apron were found on the premises. While a knife and apron with a substance appearing to be blood was found, it was never established that the substance was blood.

  Respondents' Proposed Findings of Fact:

  
  

  1. The following proposed findings of fact* are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(4); 4(6); 5(5,6); 6(7); 7(7,9); 8(10); 9(10-12)); 11(10); 12(14)and 13(11).

  2. Proposed finding of fact 10 is neither material nor relevant to this proceeding.

• Proposed findings of fact 4,5,6,7 & 9 indicate that Inspector Blevons was present at the Respondents' facility on June 4, 1993, when in fact it was Inspector Tipton.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Isadore F. Rommes, Esquire Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Thomas M. Fitzgibbons, Esquire SouthTrust Bank Plaza

1800 Second Street, Suite 775

Sarasota, Florida 34236

Richard Tritschler, Esquire General Counsel

Department of Agriculture and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 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 contact 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: 93-007087

Orders for Case No: 93-007087