STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-0182

)

WIMA CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on May 2, 1997, by video teleconference, at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Senior Attorney

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Respondent: Donald Epstein, President

WIMA Corporation

4252 Northwest 55th Place Coconut Creek, Florida 33073

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violation alleged in the Administrative Complaint?

2. If so, what punitive action should be taken against Respondent?

PRELIMINARY STATEMENT

On October 22, 1996, the Department of Agriculture and Consumer Services (Department) issued an Administrative Complaint against Respondent, which read, in pertinent part, as follows:

ADMINISTRATIVE COMPLAINT AND NOTICE OF VIOLATIONS

On 9/8/96, a food safety inspection of a water vending machine located at Sunshine Key Resort, US No. 1, Sunshine Key, FL, 33043, was conducted by the Department of Agriculture and Consumer Services, Division of Food Safety, Bureau of Food and Meat Inspection ("the Department").

During this inspection violations of Section 500.459, Florida Statutes, ("the Florida Food Safety Act") were encountered that required a Stop Use Order for the failure to maintain sanitary standards. The Respondent also failed to obtain a[n] operating permit for the water vending machine. A subsequent visit by a Department agent on September 30, 1996, revealed that Respondent deliberately violated the Stop Use Order of September 9, 1996, by offering for sale water to the public thereby violating Section 500.174, Florida Statutes.

PENALTIES FOR VIOLATIONS

The Department is empowered by Section 500.121, Florida Statutes, to enforce the Florida Food Safety Act, by imposing an administrative fine of up to $5,000 per violation. Furthermore, Sec. 500.171, F.S. authorizes the Department to bring civil action in circuit court for an injunction against your business.

INTENT TO IMPOSE FINE SEEK INJUNCTION

The Department intends to impose an administrative fine against you in the amount of $5,000 per violation [$5,000]. In addition, the Department intends to seek a court injunction against your firm for your failure to comply with the provisions of Section 500.459, Florida Statutes.

Respondent initially requested and received an "informal hearing" on the matter. Following the "informal hearing," Respondent, by letter dated November 25, 1996, requested a "formal hearing." On January 14, 1997, the Department referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Respondent had requested.

As noted above, the hearing was held on May 2, 1997. At the hearing, a total of five witnesses testified: Jose Padron, a Sanitation and Safety Specialist with the Department; Armando Escoto, a Sanitation and Safety Supervisor (for Dade and Monroe Counties) with the Department; Donald Epstein, Respondent's president; Earnest "Buddy" Levins, a Sanitation and Safety Administrator with the Department; and Robert Bickley, a Biological Administrator I with the Department. In addition to the testimony of these five witnesses, a total of eleven exhibits (Petitioner’s Exhibits 1 through 6 and Respondent's Exhibits 1 through 5) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, announced that the deadline for the filing of proposed recommended orders was 15 days from the date of the undersigned’s receipt of the transcript of the hearing. The undersigned received the hearing transcript on

May 23, 1997. On June 11, 1997, the Department filed its proposed recommended order, which the undersigned has carefully considered. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. At all times material to the instant case, Respondent has owned and operated a water vending machine (Respondent's Machine) located at the Sunshine Key Resort on U.S. Highway 1 in Sunshine Key, Florida.

2. On September 8, 1996, following the Department's receipt of a laboratory report, indicating that a previous sample of vended water taken from Respondent's Machine was "contaminated with coliform," Jose Padron, a Sanitation and Safety Specialist with the Department, and Armando Escoto, a Sanitation and Safety Supervisor (for Dade and Monroe Counties) with the Department, visited the location of Respondent's Machine to collect another sample for testing.

3. During their visit, Padron and Escoto observed the following, as their written inspection report reflects: "area around machine filthy"; "self-closing door not working"; "water dispensing area filthy"; "water spout dirty with rust & mold"; "no permit posted"; and "no required consumer information posted."

4. Based upon these observations, they prepared a "stop use" order directing Respondent "to withhold [the machine]

   from . . use subject to further instructions from an authorized agent of the Department of Agriculture and Consumer Services." The order contained the following "Notice to Responsible Management Official":

   NOTICE TO RESPONSIBLE MANAGEMENT OFFICIAL

   This STOP SALE, USE OR HOLD ORDER is

   EFFECTIVE IMMEDIATELY and is immediately appealable or enjoinable. An appeal may be instituted by filing a petition with the appropriate district court of appeal, S.120.59(3), S.120.68, Florida Statutes. The petition must be filed with the Division of Food Safety, 3125 Conner Boulevard, Room 279, Tallahassee, Florida 32399-1650 and a copy with the appropriate court of appeal, within

   30 DAYS from the date this ORDER is filed with the Division of Food Safety at the above address. The appeal must be conducted in accordance with the Florida Rules of Appellate Procedure. An action for injunctive relief may be filed in the appropriate circuit court.

   
   

   WARNING: Removal of items ordered withheld from sale or use or the removal of the order and/or tags attached to such items is a violation and punishable under the law applicable.

   
   

5. Padron and Escoto "red-tagged" Respondent's Machine (thereby rendering it inoperable) and posted on it the "stop use" order.

6. The following day, September 9, 1996, Donald Epstein, Respondent's president, removed the "red tags" and "stop use" order from the machine.

7. Padron returned to the location of Respondent's Machine on September 30, 1996. He noted that the "red tags" and "stop use" order that had been placed on the machine on September 8, 1996, had been removed and that the machine was "plugged in and back in business" in violation of the "stop use" order. He also observed that the machine's "water spout [was] dirty and rust[y]," the "machine [was] not cleaned and sanitized," and the "machine ha[d] no permit(s) posted."

8. Based upon these observations, Padron prepared a second "stop use" order. He then "red-tagged" the machine again and posted on it the second "stop use" order. He also issued a Notice of Violation alleging that Respondent had violated Section 500.172, Florida Statutes, by virtue of its having "broken" the September 8, 1996, "stop use" order.

9. Padron conducted a follow-up inspection of Respondent's Machine on October 28, 1996. He found that the machine had been "cleaned and sanitized." Accordingly, on November 11, 1996, he issued a Release Notice advising Respondent that the previously issued "stop use" orders had been vacated and that Respondent was free to put its machine back in service.

   CONCLUSIONS OF LAW

10. Chapter 500, Florida Statutes, contains the Florida Food Safety Act (Act).

11. "The [D]epartment is charged with the administration and enforcement of this chapter." Section 500.032(1), Florida Statutes.

12. Pursuant to the Act, "[a] food permit from the [D]epartment is required of any person who operates a food establishment or retail food store," except under certain limited circumstances." Section 500.12(1)(a), Florida Statutes.1

13. A "food establishment," as used in the Act, "means any factory, food outlet,2 or any other facility manufacturing, processing, packing, holding, or preparing food, or selling food at wholesale or retail. The term does not include any business or activity that is regulated under chapter 370, chapter 509, or

    chapter 601. The term also does not include any establishments that pack fruits and vegetables in their raw or natural states, including those fruits or vegetables that are washed, colored, or otherwise treated in their unpeeled, natural form before they are marketed." Section 500.03(1)(j), Florida Statutes.

14. A "retail food store," as used in the Act, "means any establishment or section of an establishment where food and food products are offered to the consumer and intended for off- premises consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, nonpotentially hazardous foods; roadside markets that offer only fresh fruits and fresh vegetables for sale; food service establishments;3 or food and beverage vending machines." Section 500.03(1)(s), Florida Statutes.

15. "Food," as used in the Act: includes:

    1. Articles used for food or drink for human consumption;

       
       

    2. Chewing gum;

       
       

    3. Articles used for components of any such article; and

       
       

    4. Articles for which health claims are made, which claims are approved by the Secretary of the United States Department of Health and Human Services and which claims are made in accordance with s. 343(r) of the federal act, and which are not considered drugs solely because their labels or labeling contain health claims.

       
       

       The term includes any raw, cooked, or processed edible substance; ice; any beverage; or any ingredient used, intended

       for use, or sold for human consumption.

       Section 500.03(1)(h), Florida Statutes.

16. "[T]he Department may suspend immediately upon notice any [food] permit issued under [Section 500.12, Florida Statutes] if it finds that any of the conditions of the permit have been violated." Section 500.12(4)(a), Florida Statutes.

17. "In addition to the [immediate] suspension procedures provided in s.500.12, the [D]epartment may impose a fine not exceeding $5,000 against any retail food store or food establishment that has violated [Chapter 500, Florida Statutes]" and it may also "revoke or suspend the permit of any such retail food store or food establishment." Section 500.121(1)(a), Florida Statutes.

18. "Any administrative order made and entered by the [D]epartment imposing a fine pursuant to [Section 500.121, Florida Statutes, must] specify the amount of the fine and the time limit for payment thereof, not exceeding 15 days, and upon failure of the permitholder to pay the fine within that time, the permit is subject to suspension." Section 500.121(2), Florida Statutes.

19. "When the [D]epartment or its duly authorized agent finds, or has probable cause to believe, that any food or food- processing equipment is in violation of [Chapter 500, Florida Statutes] or any rule adopted under [Chapter 500] so as to be dangerous, unwholesome, fraudulent, or insanitary within the meaning of [Chapter 500], an agent of the [D]epartment may issue and enforce a stop-sale, stop-use, removal, or hold order, which

    order gives notice that such article or processing equipment is, or is suspected of being, in violation and has been detained or embargoed and which order warns all persons not to remove, use, or dispose of such article or processing equipment by sale or otherwise until permission for removal, use, or disposal is given by the [D]epartment or the court. It is unlawful [and a violation of Chapter 500, Florida Statutes] for any person to remove, use, or dispose of such detained or embargoed article or processing equipment by sale or otherwise without such permission." Section 500.172(1), Florida Statutes.

20. "Whenever the [D]epartment or its duly authorized agent finds cause, or has probable cause to believe that a ground exists for the seizure of any food as set out in [Chapter 500, Florida Statutes],4 an agent of the [D]epartment shall affix to the article a tag, stamp, or other appropriate marking, giving notice that the article is, or is suspected of being, subject to seizure under this chapter and that the article has been detained and seized by the [D]epartment. The [D]epartment shall also warn all persons not to remove or dispose of the article by sale or otherwise, until permission of the [D]epartment, or of the court of competent jurisdiction in the jurisdiction of which the article was detained or seized, is given. It is unlawful [and a violation of Chapter 500, Florida Statutes] for any person to remove or dispose of the detained or seized article by sale or otherwise without permission of the [D]epartment or of the court in such cases. Any person who violates this subsection is guilty of a misdemeanor of the second degree, punishable as provided in

    s. 775.082 or s. 775.083." Section 500.174(1), Florida Statutes.

21. Section 500.459, Florida Statutes, deals specifically with water vending machines, like the one owned and operated by Respondent. Its provisions control over the more general regulatory and permitting provisions of the Act. See McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994)("a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms;" "[t]he more specific statute is considered to be an exception to the general terms of the more comprehensive statute"); Adams v. Culver, 111 So. 2d 665, 667 (Fla. 1959)("[i]t is a well settled rule of statutory construction . . . that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms"); Lincoln v. Florida Parole Commission, 643 So. 2d 668, 672 (Fla. 1st DCA 1994)("[w]hen two statutes are apparently inconsistent or in conflict, the more specific statute controls over the more general statute addressing the same subject"); Hamilton County Board of County Commissioners v. Department of Environmental Regulation, 587 So. 2d 1378, 1386 (Fla. 1st DCA 1991)("[t]he more recent 1988 laws and rules relating specifically to biohazardous waste management control over the pre-1988 laws relating generally to solid waste management"); Fletcher v. Fletcher, 573 So. 2d 941, 942 (Fla. 1st DCA 1991)("[i]t is well established that, where there is in the same statute a specific provision, and also a general one that in its more comprehensive sense would include matters embraced in the

    former, the particular provision will nevertheless prevail; the general provision must be taken to affect only such cases as are not within the terms of the particular provision"); Moore International Trucks, Inc., v. Foothill Capital Corporation, 560 So. 2d 1301, 1303 (Fla. 2d DCA 1990)("[w]hen two statutes cover the same subject-matter, the more narrowly drawn statute controls;" "it should not be concluded that when the legislature enacted the provisions of section 713.585 [dealing specifically with liens on motor vehicles], which are detailed and comprehensive, are tailored for the type of situation involved here, and were enacted while the more generalized provisions of section 85.031 [dealing with liens on personal property in general] were in effect, the legislature intended that section

    85.031 could continue to govern this situation"); Department of

    Health and Rehabilitative Services v. Gross, 421 So. 2d 44, 45 (Fla. 3d DCA 1982)("[t]he argument fails on the principle of statutory construction which dictates that a statute dealing specifically with a particular subject matter takes precedence over another statute covering the same and other subjects in general terms").

22. Section 500.459, Florida Statutes, provides as follows:

    
    

    1. LEGISLATIVE INTENT. It is the intent of the Legislature to protect the public health through licensing and establishing standards for water vending machines5 to ensure that consumers obtaining water through such means are given appropriate information as to the nature of such water and that such consumers are assured that the water meets acceptable standards for human consumption.

    2. PERMITTING REQUIREMENTS.

       1. Each person or public body that establishes, maintains, or operates any water vending machine in the state must secure an operating permit from the [D]epartment each year.

          
          

       2. An application for an operating permit must be made in writing to the [D]epartment on forms provided by the [D]epartment and must be accompanied by a fee as provided in subsection (3). The application must state the location of each water vending machine, the source of the water to be vended, the treatment the water will receive prior to being vended, and any other information considered necessary by the [D]epartment.

       
       

    3. FEES. A person seeking an operating permit must pay the [D]epartment a fee not exceeding $200, which fee shall be set by rule of the [D]epartment in an amount sufficient to meet, but not exceed, the total direct and indirect costs incurred by the [D]epartment in carrying out its permitting, inspection, sampling, enforcement, and administrative responsibilities under this section. Such fees shall be deposited in the General Inspection Trust Fund and shall be used for the sole purpose of this section.

       
       

    4. OPERATING STANDARDS.

       1. A water vending machine operator6 must obtain a permit prior to operating any water vending machine.

          
          

       2. Each water vending machine must be located indoors or otherwise protected against tampering and vandalism and must be located in an area that can be maintained in a clean condition and in a manner that avoids insect and rodent harborage. The floor upon which the water vending machine is located should be smooth and of cleanable construction.

          
          

       3. The source of water supply must be an approved public water system.

          
          

       4. Each water vending machine must have an approved backflow prevention device and an adequate system for collecting and handling dripping, spillage, and overflow of water.

       5. All parts and surfaces of a water vending machine with which water comes into contact must be made of nontoxic, corrosion- resistant, nonabsorbent material capable of withstanding repeated cleaning and sanitizing treatments.

          
          

       6. Each water vending machine must be maintained in a clean and sanitary condition, free from rust, dirt, and vermin.

          
          

       7. The vended water must receive treatment and postdisinfection according to approved methods established by rule of the [D]epartment. Activated carbon, if used, must comply with specifications for granular activated carbon used in water treatment applications as established by rule of the [D]epartment.

          
          

       8. The vended water may not be described as "purified water" unless the water conforms to the definition of that term. Further, a water vending machine operator must not claim that the vended water has medicinal or

          health-giving properties and must not describe any vended water as "spring water."

          
          

       9. The operator shall place on each water vending machine, in a position clearly visible to customers, the following information: the name and address of the operator; the operating permit number; the fact that the water is obtained from a public water supply; the method of treatment used; the method of postdisinfection used; and a local or toll-free telephone number that may be called for obtaining further information, reporting problems, or making complaints.

       
       

    5. DUTIES AND RESPONSIBILITIES OF THE DEPARTMENT.

       1. The [D]epartment may adopt such additional rules not inconsistent with law as may be necessary to carry out the duties and authority conferred on the [D]epartment by this section or as may be necessary to protect the health, safety, and welfare of the public.

          
          

       2. If, considering the source of water and the treatment process provided by the water vending machine, the [D]epartment finds that the vended water will not meet the primary

          and secondary drinking water quality standards as provided for in [D]epartment rules, the permit shall be denied. Specific technical reasons for the denial shall be given by the [D]epartment.

          
          

       3. The water from each water vending machine shall be sampled and tested for compliance with the water quality standards established by rule of the [D]epartment at regular intervals established by rule of the [D]epartment.

          
          

       4. The vended water from each water vending machine using silver-impregnated carbon filters in the treatment process shall be sampled for silver at regular intervals established by rule of the [D]epartment.

          
          

       5. The [D]epartment shall order a water vending machine operator to discontinue the operation of any water vending machine the condition of which represents a threat to the life or health of any person, or when the vended water does not meet the standards provided in this section. Such water vending machine must not be returned to use or be used until the [D]epartment determines that the condition that caused the discontinuance of operation no longer exists.

          
          

    6. PENALTIES.

    1. The [D]epartment may deny, suspend, or revoke a permit if it finds that there has been a substantial failure to comply with this section or rules adopted under this section.

       
       

    2. Any person who operates a water vending machine without first obtaining an operating permit as required by subsection (2), who operates a water vending machine in violation of an order to discontinue operation, or who maintains or operates a water vending machine after revocation of the operating permit is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

    
    

23. Rules of the Department implementing the provisions of Section 500.459, Florida Statutes, are found in Rule Chapter

    5K-9, Florida Administrative Code. These rules provide as

    follows:

    
    

    Section 5K-9.001 Content, Department Responsibilities and Definitions.

    
    

    1. This rule addresses labeling and sanitary practices pertaining to construction, maintenance, location and operation of water vending machines.

       
       

    2. Duties and Responsibilities of the Department.

       
       

       1. The [D]epartment shall collect, annually, samples of vended water from each machine for microbiological analysis.

          
          

       2. After considering the source of water and the treatment process provided by the water vending machine, the [D]epartment shall determine whether the finished product water will or will not meet quality standards in Chapter 62-550, Florida Administrative Code, effective 1/1/93. If it is determined that the water will not meet potable water standards, the permit to operate a water vending machine shall be denied.

          
          

       3. The [D]epartment shall conduct annual surveys to evaluate the sanitary condition and maintenance history of water vending machines to determine compliance with provisions of this chapter.

          
          

       4. Water vending machine operators shall allow the [D]epartment to examine necessary records pertaining to the operation and maintenance of the vending machines and also provide access to the machines for inspection at reasonable hours.

          
          

    3. Definitions. For the purpose of this chapter, the following words and phrases shall have the meanings indicated:

       
       

       1. Approved materials -- Materials approved by the [D]epartment as being free of substances which may render the water injurious to health or which may adversely affect the flavor, color, odor, radiological, microbial or chemical quality of the water.

          
          

       2. Potable water -- water satisfactory for drinking, culinary and domestic purposes

          meeting the quality standards of Chapter 62- 550, Florida Administrative Code.

          
          

       3. Sanitizing Solution -- Aqueous solutions currently in existence in 21 C.F.R. § 178.1010 Code of Federal Regulation, effective 4/1/95, for the purpose of sanitizing food or water contact surfaces, incorporated into this rule by reference. Copies of 21 C.F.R. § 178.1010 Code of Federal Regulation may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402-9328.

          
          

          5K-9.003 Permitting Requirements.

          
          

          1. Each person who establishes, maintains, or operates any water vending machine in the state shall first secure a Water Vending Machine Operating Permit, Form 1403-04, effective 11/92, incorporated herein by reference, and furnished by the [D]epartment. Such permits shall expire on June 30 each year and shall be renewed by July 1 each year.

             
             

          2. Application for an annual operating permit shall be made in writing to the [D]epartment on Form DACS-14802, Application for a Water Vending Machine Operating Permit, effective 04/95, incorporated herein by reference, and furnished by the [D]epartment. The application must be accompanied by a fee as provided for in subsection (3). The completed application shall provide the location of each operating water vending machine, the source of the water to be vended, the treatment that the water will receive prior to being vended, and the manufacturer and model number of each machine.

             
             

          3. Fees -- Each person seeking an operating permit to install, operate, or maintain a water vending machine shall pay an annual fee of $35.00 for each machine to the [D]epartment. Fees shall be non-refundable.

             
             

          4. Requests for additional Water Vending Identification Tags shall be made in writing to the [D]epartment on form DACS-14807, Request For Additional Water Vending Identification Tags, effective 04/95, incorporated herein by reference and

    furnished by the [D]epartment.

    
    

    5K-9.005 Source, Construction and Operating Requirements.

    
    

    1. The source of the water supply shall be an approved public water system as defined in section 403.850 -- 403.864, F.S., and in Chapter 62-550, Florida Administrative Code, effective 1/1/93. If the water source is from a non-community water supply or from another public water supply system that is not regulated by the Florida Safe Drinking Water Act, the water shall be of equivalent quality as that required for community public water supply systems. Upon application for an initial operating permit and at 3-year intervals thereafter, chemical analyses shall be required for non-community and other public water supply systems that are water sources for vending machines. The chemical analyses shall include the primary and secondary contaminants and the priority pollutants currently in existence in chapter 62-550, F.A.C.

       
       

    2. Water vending machines shall be designed and constructed to permit easy cleaning and maintenance of all exterior and interior surfaces and component parts.

       
       

    3. Water vending machines shall have a guarded corrosion resistant dispensing spout.

       
       

    4. Owners, managers and operators of water vending machines shall ensure that the methods used for treatment of vended water are acceptable to the [D]epartment. Acceptable treatment includes distillation, ion-exchange, filtration, ultra-violet light, mineral addition and reverse osmosis. Purified water shall not contain chloride, sulfate, ammonia, calcium, carbon dioxide; shall have a pH range of 5.0 to 7.0; and shall not exceed 10 parts per million total dissolved solids. In addition, purified water shall comply with all other potable water standards.

       
       

    5. Water vending machines shall be equipped to disinfect the vended water by ultra-violet light, ozone, or equally effective methods prior to delivery into the customer's container.

    6. Water vending machines shall be equipped with monitoring devices designed to shut down operation of the machine when the treatment or disinfectant unit fails to properly function.

       
       

    7. Water vending machines shall be equipped with a self-closing, tight-fitting door on the vending compartment.

       
       

    8. Granular activated carbon, if used in the treatment process of vended water, shall comply with the specifications provided by the American Water Works Association for that substance (AWWA B604-74).

       
       

    9. Water vending machine operators shall place on each machine, in a position clearly visible to the consumer, a Water Vending Identification Tag, form DACS-14806 effective 04/95, incorporated herein by reference and furnished by the [D]epartment or as provided pursuant to 5K-9.003(4). Water vending machine operators shall also have on file and perform a maintenance program that includes:

       
       

       1. Visits for cleaning, sanitizing and servicing of machines every two weeks.

          
          

       2. Written servicing instructions.

       3. Technical manuals for the machines.

          
          

       4. Technical manuals for the water treatment appurtenances involved.

       
       

    10. Parts and surfaces of water vending machines shall be kept clean and maintained by the water vending machine operator. The vending chamber and the vending nozzle shall be cleaned and sanitized each time the machine is serviced. A record of cleaning and maintenance operations shall be kept by the operator for each water vending machine. These records shall be made available to the [D]epartment's employees upon request.

        
        

    11. Water vending machine operators shall ensure that machines are maintained and monitored to dispense potable water. Any vended water sample testing positive for total coliforms shall be considered unsatisfactory. Each operator shall obtain

        and have analyzed by an approved laboratory at least once every 3 months, a sample of vended water from each machine to determine total coliform content. However, provided a satisfactory method of post-treatment disinfection is utilized and based on a sustained record of satisfactory total coliform analyses, the [D]epartment shall allow modification of the 3-month sampling requirement as follows:

        
        

        1. When 3 consecutive 3-month samples are each found to contain zero coliform colonies per 100 milliliters of the vended water, microbiological sampling intervals shall be extended to a period not exceeding 6 months. Should a subsequent 6-month sample test positive for total coliform, the required sampling frequency shall revert to the 3- month frequency until 3 consecutive samples again test negative for total coliform bacteria.

           
           

        2. If any sample collected from a machine is determined to be unsatisfactory, the machine shall be cleaned, sanitized and resampled immediately. If, after being cleaned and sanitized, the vended product is determined to be positive for coliform, the machine shall be taken out of service until the source of contamination has been located and corrected.

        
        

    12. The vended water from each water vending machine utilizing silver-impregnated carbon filters in the treatment process shall be sampled once every 6 months for silver and analyzed by an approved laboratory.

        
        

    13. All records pertaining to the sampling and analyses shall be retained by the operator for a period of not less than 2 years. Results of the analyses shall be available for [D]epartment review upon request.

    
    

24. Section 500.511(2), Florida Statutes, provides the Department with authority (in addition to the authority provided by Section 500.459(6), Florida Statutes) to impose penalties for violations of Section 500.459, Florida Statutes, and of the

    Department rules implementing Section 500.459, Florida Statutes. It reads as follows:

    In addition to the provisions contained in ss.500.453-500.511, the [D]epartment may enforce ss.500.453-500.511 in the manner provided in s.500.121. Any person who violates a provision of ss.500.453-500.511 or any rule adopted under such sections shall be punished as provided in such sections.

    However, criminal penalties may not be imposed against any person who violates a rule.

    
    

    Inasmuch as Section 500.121, Florida Statutes, authorizes the Department, in enforcing the provisions of the Act, to "impose a fine not exceeding $5,000" against "any retail food store or food establishment that has violated [the Act]," the Department, pursuant to Section 500.511(2), Florida Statutes, also has the authority to impose such a fine against a water vending machine operator who has violated Section 400.459, Florida Statutes.

25. The Department, through service of its Administrative Complaint, has notified Respondent of its intent to impose such a fine (in the amount of $5,000.00) on Respondent.7 The Department contends that such a fine is warranted because Respondent violated the Act "by offering to the consuming public water from a water vending machine which had been placed under a Stop Use Order by inspectors of the Department."

26. In order for the Department to levy a fine against a water vending machine operator, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996)("an

    administrative fine deprives the person fined of substantial rights in property;" "[a]dministrative fines . . . are generally punitive in nature;" "[b]ecause the imposition of administrative fines . . . are penal in nature and implicate significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted"); Section 120.57(1)(h), Florida Statutes ("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute").

27. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

28. In the instant case, clear and convincing evidence has been presented establishing that Respondent, a water vending machine operator as defined in Section 500.453(25), Florida Statutes, violated the Act (specifically, Section 500.459(5)(e), Florida Statutes) by disregarding a lawfully issued order to discontinue the operation of its water vending machine located at the Sunshine Key Resort in Sunshine Key, Florida, as alleged in

    the Administrative Complaint.

29. Pursuant to Section 500.511, Florida Statutes, the Department may impose a fine not exceeding $5,000.00 on Respondent for having committed this violation.

30. Having considered the totality of surrounding circumstances, including both the potential and actual impact of the violation on the public health, the undersigned concludes that the imposition of a fine in the amount of $2,000.00 is warranted.8

    RECOMMENDATION

    Based on the foregoing Findings of Fact and Conclusions of Law, it is

    RECOMMENDED that the Department issue a final order finding Respondent guilty of the violation of the Act alleged in the Administrative Complaint and fining Respondent $2,000.00 for having committed said violation.

    DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida.

    
    

    
    

    STUART M. LERNER

    Administrative Law Judge

    Division of Administrative Hearings The DeSoto Building

    1230 Apalachee Parkway

    Tallahassee, Florida 32399-3060

    (904) 488-9675 SUNCOM 278-9675

    Fax Filing (904) 921-6847

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997.

    
    

    ENDNOTES

    1/The exceptions are as follows:

    1. Persons operating minor food outlets, including but not limited to video stores, that sell commercially prepackaged, nonpotentially hazardous candy, chewing gum, soda, or popcorn, provided the shelf space for those items does not exceed 12 linear feet and no other food is sold by the minor food outlet.

       
       

    2. Persons subject to continuous, onsite federal or state inspection.

       
       

    3. Persons selling only legumes in the shell, either parched, roasted or boiled.

2/"Food outlet," as used in the Act, "means any grocery store; convenience store; minor food outlet; meat, poultry, or fish and related aquatic food market; fruit or vegetable market; food warehouse; refrigerated storage facility; freezer locker; salvage food facility; or any other similar place storing or offering food for sale." Section 500.03(1)(k), Florida Statutes. A "minor food outlet," as used in the Act," means any retail establishment that sells groceries and may offer food service to the public, but neither business activity is a major retail function based on allocated space or gross sales." Section 500.03(1)(p), Florida Statutes.

3/"Food service establishment," as used in the Act, "means any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food. The term includes delicatessens that offer prepared food in individual service portions. The term does not include schools, institutions, fraternal organizations, private homes where food is prepared or served for individual family consumption, retail food stores, the location of food vending machines, and supply vehicles, nor does the term include a research and development test kitchen limited to the use of employees and which is not open to the general public." Section 500.03(1)(l), Florida Statutes.

4/"Any article of food that is adulterated or misbranded under the provisions of [Chapter 500, Florida Statutes] is subject to seizure and condemnation by the [D]epartment or by its duly authorized agents for that purpose in regard to foods." Section 500.173, Florida Statutes.

5/"Water vending machine," as used in Section 500.459, Florida Statutes, "means a self-service device that, upon insertion of a coin or token, or upon receipt of payment by other means,

dispenses a serving of water into a container." Section 500.453(24), Florida Statutes.

6/"Water vending machine operator," as used in Section 500.459, Florida Statutes, "means a person who owns, leases, or manages, or is otherwise responsible for the operation of, a water vending machine." Section 500.453(25), Florida Statutes.

7/The Department has not given notice of its intent to, and therefore may not, impose any penalty other than a fine against Respondent. See Williams v. Turlington, 498 So. 2d 468 (Fla. 3d DCA 1986)("[s]ince Williams was not given notice by either the complaint or any later proceedings that he was at risk of having his license permanently revoked, the Commission's imposition of the non-prayed for relief of permanent revocation, even if justified by the evidence, was error); Section 120.60(5), Florida Statutes ("[n]o revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action").

8/There has been no showing that the violation resulted in actual harm to the health of any consumer

COPIES FURNISHED:

Linton B. Eason, Senior Attorney

Department of Agriculture and Consumer Services Mayo Building Room 515

Tallahassee, Florida 32399-0800

Donald Epstein, President WIMA Corporation

4252 Northwest 55th Place Coconut Creek, Florida 33073

Honorable Bob Crawford Commissioner of Agriculture

Department of Agriculture and Consumer Services The Capitol, Plaza - 10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel

Department of Agriculture and Consumer Services The Capitol, Plaza - 10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

1 The exceptions are as follows:

1. Persons operating minor food outlets, including but not limited to video stores, that sell commercially prepackaged, nonpotentially hazardous candy, chewing gum, soda, or popcorn, provided the shelf space for those items does not exceed 12 linear feet and no other food is sold by the minor food outlet.

   
   

2. Persons subject to continuous, onsite federal or state inspection.

   
   

3. Persons selling only legumes in the shell, either parched, roasted or boiled.

2 "Food outlet," as used in the Act, "means any grocery store; convenience store; minor food outlet; meat, poultry, or fish and related aquatic food market; fruit or vegetable market; food warehouse; refrigerated storage facility; freezer locker; salvage food facility; or any other similar place storing or offering food for sale." Section 500.03(1)(k), Florida Statutes. A "minor food outlet," as used in the Act," means any retail establishment that sells groceries and may offer food service to the public, but neither business activity is a major retail function based on allocated space or gross sales." Section 500.03(1)(p), Florida Statutes.

3 "Food service establishment," as used in the Act, "means any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food. The term includes delicatessens that offer prepared food in individual service portions. The term does not include schools, institutions, fraternal organizations, private homes where food is prepared or served for individual family consumption, retail food stores, the location of food vending machines, and supply vehicles, nor does the term include a research and development test kitchen limited to the use of employees and which is not open to the general public." Section 500.03(1)(l), Florida Statutes.

4 "Any article of food that is adulterated or misbranded under the provisions of [Chapter 500, Florida Statutes] is subject to seizure and condemnation by the [D]epartment or by its duly authorized agents for that purpose in regard to foods." Section 500.173, Florida Statutes.

5 "Water vending machine," as used in Section 500.459, Florida Statutes, "means a self-service device that, upon insertion of a

coin or token, or upon receipt of payment by other means, dispenses a serving of water into a container." Section 500.453(24), Florida Statutes.

6 "Water vending machine operator," as used in Section 500.459, Florida Statutes, "means a person who owns, leases, or manages, or is otherwise responsible for the operation of, a water vending machine." Section 500.453(25), Florida Statutes.

7 The Department has not given notice of its intent to, and therefore may not, impose any penalty other than a fine against Respondent. See Williams v. Turlington, 498 So. 2d 468 (Fla. 3d DCA 1986)("[s]ince Williams was not given notice by either the complaint or any later proceedings that he was at risk of having his license permanently revoked, the Commission's imposition of the non-prayed for relief of permanent revocation, even if justified by the evidence, was error); Section 120.60(5), Florida Statutes ("[n]o revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action").

8 There has been no showing that the violation resulted in actual harm to the health of any consumer.

Docket for Case No: 97-000182

Orders for Case No: 97-000182