STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on November 5, 2008, in Lakeland, Florida.

APPEARANCES

For Petitioner: David W. Young, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues are whether Respondent offered for sale adulterated or misbranded food in violation of Subsections 500.04(1) and (2) and 500.10(1)(f), Florida Statutes (2007),1 and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint against Respondent on April 18, 2008. Respondent timely requested a formal hearing.

At the hearing, Petitioner presented the testimony of three witnesses and submitted six exhibits for admission into evidence. Respondent did not appear and did not otherwise submit any evidence.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the record of the hearing.

Neither party requested a transcript of the hearing. Petitioner timely filed its Proposed Recommended Order on November 14,

2008.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

   
   

   licensing and regulating food establishments in the state. Respondent operates a business that sells mostly pre-packaged food products at retail but also provides ancillary food service. The food service operation is a “deli” that prepares ready-to-eat food products in individual portions for consumption on the premises, including sandwiches, coffee, and ice cream.

2. A sanitation and safety specialist (Specialist) for Petitioner performed a routine inspection of the business on

   February 28, 2008. Numerous food safety violations existed. Ice held for sale had not been tested for safety. An open mayonnaise container was stored at room temperature. Meat used for the preparation of sandwiches was not documented as to how long it had been open. No test strips were available for the

   chlorine sanitizer. Ready-to-eat food items in the freezer were not labeled with the preparation date. Fish was not labeled with the product name, ingredients, and distributor. Batteries and soap were stored above food items on retail shelves.

3. The Specialist removed the ice machine until the required test for fecal coliforms was performed; the results of which subsequently proved to be negative. The Specialist required Respondent to label all packaged food items with the product name, ingredients, weight, and distributor.

4. The Specialist informed Respondent that she had assigned a poor rating to the premises and would return for a re-inspection, which the Specialist performed on March 17, 2008. Open meat in the deli area remained unmarked as to how long it had been open. A cooker contained rice at 77 degrees rather than the required 135 degrees. Cooked food items in the refrigerator behind the meat cooler remained undated and unlabeled. Food items in the freezer continued to be unlabeled with the product name, ingredients, weight, and distributor. Eggs, milk, and yogurt were stored in a retail cooler at

   50 degrees rather than the required 41 degrees. Insect spray and liquid air fresheners were stored above single service paper towels.

5. The Specialist notified Respondent that she rated the premises as poor and would return for another re-inspection, which the Specialist performed on March 31, 2008. Respondent had corrected the previous violations by March 31, 2008.

6. The Specialist returned on April 1, 2008, with her supervisor. Mustard was stored in the deli at 80 degrees rather than the required 41 degrees. Open foods and meat in the self- service coolers in the deli were not documented as to how long they had been open. Food was being stored in the refrigerator behind the meat cases at 61 degrees rather than the required 41 degrees. Food items stored in the refrigerator in the back of the premises were not documented as to how long they had been open, and meat products stored in the self-service area were not labeled. Frozen food in the top of a refrigerator was thawed. A can of gasoline was stored in the mop sink.

7. Petitioner proposes a fine of $3,100.00. A fine of

   
   

   $3,100.00 is reasonable under the circumstances.

   
   

8. Petitioner has not promulgated a rule prescribing aggravating and mitigating circumstances for an administrative fine. However, Petitioner presented relevant expert testimony that was credible and persuasive.

9. Respondent committed numerous and egregious food safety violations. A significant number of the violations were critical violations and presented a significant risk to food safety and public health. Respondent prepared, produced, and packed or held food in a manner that exposed the food to contamination and that presented other unwholesome conditions that are injurious to health.

10. The record includes no evidence of actual harm to the public. Respondent has no prior discipline.

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008). DOAH provided the parties with adequate notice of the administrative hearing.

12. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the proposed penalty is reasonable.

    Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). Petitioner satisfied its burden of proof concerning the alleged violations and the proposed penalty.

13. Food establishments that have ancillary food service activities are regulated by Petitioner. § 500.12(5)(a).

Respondent manufactured, sold, delivered, and held adulterated and mislabeled food in violation of Subsections 500.04(1)

and (2) and 500.10(1)(f). The aggravating and mitigating factors have been discussed in the Findings of Fact.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in the Administrative Complaint and imposing a fine of

$3,100.00.

DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.

ENDNOTE

1/ References to subsections, sections, and chapters are to Florida Statutes (2007), unless otherwise stated.

COPIES FURNISHED:

David W. Young, Esquire Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

Khairul Islam Daily Food Market

446 North Wabash Avenue Lakeland, Florida 33815

Richard D. Tritschler, General Counsel Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street Tallahassee, Florida 32399-0800

Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 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.

Docket for Case No: 08-002836

Orders for Case No: 08-002836