STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0695

) HAROLD H. RATCLIFF and GUY RATCLIFF ) d/b/a SCRATCH & DENT FOOD MART, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 16, 1994, in Tampa, Florida. The hearing was conducted telephonically.

APPEARANCES

For Petitioner: Linton B. Eason, Qualified Representative Department of Agriculture

and Consumer Services Mayo Building Room 515

Tallahassee, Florida 32399-0800

For Respondent: Guy Ratcliff, pro se

Scratch & Dent Food Mart, Inc. 702 East Baker Street

Plant City, Florida 33566 STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 6, 1994, the Department of Agriculture and Consumer Services (Department) alleged that Harold H. Ratcliff, doing business as the Scratch & Dent Food Mart, Inc., had offered adulterated food products for sale to the public. The Department later moved to amend the style of the case to reflect the transfer of the business to Guy Ratcliff. A hearing was requested by Guy Ratcliff, owner of the referenced business. The request was forwarded to the Division of Administrative Hearings which scheduled the formal proceeding.

At the hearing, the Department presented the testimony of two witnesses and had eight exhibits admitted into evidence. Respondent testified on his own behalf and offered into evidence two exhibits.

Objections were made to the relevance of the Respondent's two exhibits. The exhibits are hearsay letters allegedly from customers of the Respondent's business praising improvements made to the facility. There is no allegation

that the Respondent has not made improvements in his store. The letters are not relevant and the objections are sustained.

A transcript of the hearing was filed on June 30, 1994. The Department filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. The Department of Agriculture and Consumer Services (Department) is the state agency charged with responsibility for administration of the Florida Food Act, Chapter 500, Florida Statutes.

   
   

2. Guy Ratcliff (Respondent) is the owner and operator of the Scratch & Dent Food Mart (Food Mart) located at 702 East Baker Street, Plant City, Florida.

   
   

3. Inspections were conducted by a representative of the Department on July 12 and 26, September 20, October 21, and November 23, 1993. On all five inspections, the inspector assigned an overall evaluation rating of "poor" to the store.

   
   

4. During the inspection performed on July 12, 1993, dust, bugs, spiders and rodent droppings were present on food shelves. Moths and beetle infestation were present in dry cereals and in dry cat and dog food. On orders of the Department, the Respondent removed the contaminated food from sale.

   
   

5. During the inspection performed on July 26, 1993, various grain products were found to be infested with beetles and moths. Some canned foods were rusted or swollen. Beetles, moths, spiders, rodent droppings and "nesting materials" were found on food display shelving. On orders of the Department, the Respondent removed the contaminated food from sale.

   
   

6. By letter dated August 19, 1993, the Department advised the Respondent that, "[y]our food establishment was inspected and found sanitarily "poor"." The letter states that the Department was reviewing the matter to determine if administrative action was warranted and notes that "[f]ailure to comply with sanitation provisions of Chapter 500, Florida Statutes, and Chapter 5E-6, Florida Administrative Code, can result in an administrative fine and/or suspension of your Food Permit."

   
   

7. By letter of August 23, 1993, the Department advised the Respondent that, "[y]our food establishment received a "poor" sanitation rating on August 12, 1993." The evidence fails to establish that an inspection and sanitation rating were performed on August 12, 1993. The letter further states that the establishment would be reinspected "in the near future" and that "[f]ailure to correct the deficiencies may result in a continued poor rating "and possible action by the department to safeguard the public health."

8. During the inspection performed on September 20, 1993, roach and rodent droppings and swollen and leaking canned tomato and fruit products were present on food display shelves. On orders of the Department, the Respondent removed the contaminated food from sale.

   
   

9. During the inspection performed on October 21, 1993, swollen and leaking canned tomato products and roach and rodent droppings were present on food display shelves. On orders of the Department, the Respondent removed the contaminated food from sale.

   
   

10. During the inspection performed on November 23, 1993, live beetles and moths were present in dry cat and dog food. Live beetles were present in dry sauce mixes. Roach and rodent droppings were present in the dry cereal, dry pet food, baby food and other sections of the store. On orders of the Department, the Respondent removed the contaminated food from sale.

    
    

11. By letter dated November 30, 1993, the Department advised the Respondent that, "[y]our food establishment was inspected and found sanitarily "poor"." The letter states that the Department was reviewing the matter to determine if administrative action was warranted and notes that "[f]ailure to comply with sanitation provisions of Chapter 500, Florida Statutes, and Chapter 5E-6, Florida Administrative Code, can result in an administrative fine and/or suspension of your Food Permit."

    
    

12. Based on the deficiencies noted herein as determined during the inspections, the Department filed the Administrative Complaint at issue in this proceeding.

    
    

13. In response to the allegations of the complaint, the Respondent acknowledged that problems had been found by the inspector. He stated that a bad shipment of food had resulted in contamination of the warehouse and store by pests and rodents. The Respondent asserts that continuing efforts are made to clean the store and place it in more sanitary condition.

    
    

14. According to the Department's inspector, on the March 30, 1994 evaluation of the facility, no violations were noted and a sanitation rating of fair was assigned.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The Department of Agriculture and Consumer Services is charged with the administration and enforcement of the provisions of the Florida Food Act, Chapter 500, Florida Statutes.

    
    

17. The Department has responsibility for disciplinary action taken against licensed food retailers. The Department may suspend or revoke the food permit of any licensee found to be in violation of the requirements of the Act. Chapter 500.12, Florida Statutes. Additionally, the Department may impose a fine not to exceed $5,000 for violation of the Act. Chapter 500.121, Florida Statutes.

18. The burden of proof is on the Department to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has been met.

    
    

19. Section 500.04(1), Florida Statutes, prohibits the sale, or holding or offering for sale, of any food that is adulterated or misbranded.

    
    

20. Section 500.10, Florida Statutes, provides that food is deemed to be adulterated if it consists of diseased, contaminated, filthy, putrid, or decomposed substances, or if it has been held under conditions whereby it may become contaminated with filth or become unwholesome or injurious to health.

    
    

21. "Contaminated with filth" means food not securely protected from dust, dirt, and as far as may be necessary by all reasonable means, all foreign or injurious contamination. Section 500.03, Florida Statutes.

    
    

22. The Department is authorized to adopt rules related to implementation of the Florida Food Act. Rule 5E-6.005(5)(j), Florida Administrative Code provides as follows:

    
    

    Storage and transportation of finished products shall be under such conditions as will prevent contamination and will protect against undesirable deterioration

    of the product and the container. Sources

    of contamination that foods and food products shall be protected against include, but are not limited to, dust, flies, rodents and other vermin....

    
    

23. In this case, the evidence clearly establishes that the sanitary condition of the store was unsatisfactory. Food products offered for sale were contaminated with live insect infestation. Dust, bugs, spiders and rodent droppings were present on food display shelves. Canned food products were rusted, swollen or leaking.

    
    

24. Although there is evidence that the Respondent has made progress in improving the sanitary condition of the store, the previous deficiencies were repeatedly called to the Respondent's attention during the inspections, yet unsanitary conditions continued to exist through the five months period during which the relevant inspections occurred. Such a period of continuing violations warrants imposition of an administrative fine.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order imposing a fine of $5,000 against the Respondent.

DONE and RECOMMENDED this 20th day of July, 1994 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 20th day of July, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0695

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

Respondent

The Respondent did not file a proposed recommended order.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services The Capitol , PL-10

Tallahassee, Florida 32399-0810

Linton B. Eason Qualified Representative

Department of Agriculture and Consumer Services

Mayo Building Room 515 Tallahassee, Florida 32399-0800

Guy Ratcliff, President Scratch & Dent Food Mart, Inc. 702 East Baker Street

Plant City, Florida 33566

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 ten 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: 94-000695

Orders for Case No: 94-000695