The Issue Whether or not the Petitioner should be entitled to an extension of the shelf life on its milk and milk products from a ten day period to a twelve day period.
Findings Of Fact Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner. Based on the laboratory analysis of the test samples, they felt that the request should be accepted. Jay Boosinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith is, as his title indicates, charged with the function of inspection and enforcement of the laws and regulations associated with the dairy industry in the State of Florida. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the Petitioner's Green Cove Springs, Florida plant and selected stores which were serviced by the Petitioner. These samples were collected by a dairy plant specialist of the Respondent, and in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day, established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life. The Petitioner, through its quality control supervisor, offered as Petitioner's Exhibit #1, a summary of a test conducted in its plant, which showed entries on the various milk and milk products at 43 degrees Fahrenheit. In each instance the report shows, as supported by the testimony of the witness, that the milk and milk products exceed the ten day shelf life. Professor Ronald Richter, Ph.D., Extension Dairy Technologist for the University of Florida, testified about a test conducted on the shelf life of the low fat milk and whole milk of the Petitioner. At 40 degrees the shelf life was 46 days, at 46 degrees the shelf life was 26 days in the low fat category. In the whole milk sample, at 40 degrees the shelf life was 29 days and at 46 degrees the shelf life was 22 days. The type tests employed included the Mosely Count and flavor test. The flavor test, according to the witnesses is the ultimate test of the shelf life of the milk or milk product. The purpose of the tests which the witness was making was in connection with a research project on the techniques to be utilized by a laboratory in evaluating the shelf life of milk and milk products. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104 (7)(d), Florida Administrative Code.
Recommendation It is recommended that the Respondent grant a shelf life of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition. DONE and ENTERED this 5th day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred H. Kent, Jr., Esquire 870 Florida Bank Building Jacksonville, Florida 32202 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
The Issue The issue in the proceeding is what amount, if any, is owed by M. G. Ford Produce to Spessard Putnal for two and a half loads of watermelons. A determination of this issue requires a determination of the character of the transaction regarding the watermelons: Was it a "sale", or was it an agreement to "handle" the melons as a broker?
Findings Of Fact Spessard Putnal grows watermelons in Lafayette County and operates out of Mayo, Florida. M. G. Ford owns M. G. Ford Produce Company, a licensed and bonded brokerage business and the successor to his father's business, Malvin Ford Produce. Both S. J. Ridgdill and Rodney Ridgdill own a fraction of the business. The principal office is in LaBelle, Florida; however, other offices are located temporarily elsewhere, including Mayo, during the various growing seasons. The watermelons which are the subject of this dispute are described as follows: Load number 218 This was 44,340 pounds of Charleston Grey watermelons: 28,260 pounds of melons grown by Cory Buchanan from Mayo, and 16,080 pounds of melons grown by Spessard Putnal. The truck left Lafayette County on June 22, 1986, and arrived at A & P Stores in Edison, New Jersey, on June 24, 1986. The load was inspected by an A & P inspector and was rejected for excessive rind rot. The load was then consigned to Eckert Produce, Inc. in Philadelphia on June 25, 1986. Eckert sold the melons for $.75 and $1.00 each, and after deducting its unloading, handling and selling charges ($534.88), paid M. G. Ford Produce $1,057.62. M. G. Ford's accounting to Spessard Putnal and Cory Buchanan which, after deducting freight expense of $1,640.58 and $75.00 handling charge, indicated a net loss of $657.96. The loss was apportioned between the two growers according to their share of the load. Load number 227 This was a full load of Spessard Putnal's Charleston Grey melons; 46,070 pounds. It left by truck on June 30, 1986, and was inspected by a U.S. Department of Agriculture inspector in New York on July 3, 1986. Six per cent damage by "transit rubs" was found, and 7 percent decay. The load arrived at Wakefern Foods in Linden, New Jersey, on July 3, 1986, where it was rejected. The load was then consigned to Eckert Produce Company in Philadelphia on July 7, 1986. A few melons sold for $1.25 each; most sold for $1.00 each. After deducting its various charges ($587.74), Eckert paid M. G. Ford Produce $1,098.51 for the load. M. G. Ford's accounting to Spessard Putnal showed deductions of $1,773.69 for freight and $75.00 for handling, for a net loss of $750.18. Load number 228 This was 43,890 pounds of Spessard Putnal's Charleston Grey melons. The truck left on July 2, 1986, and the load was inspected in New Jersey for a prospective distributor, Anthony Gangemi, Inc. The U.S. Department of Agriculture inspection form dated July 5, 1986, is stamped "Rejected" with notations of internal rind spots, bruising, bacterial soft rot, and "overripe". The load was consigned to Eckert Produce on July 7, 1986. The melons that were not discarded were sold for $1.00 each. After deducting its charges ($545.55), Eckert paid M. G. Ford Produce $1,143.45 for the load. In turn, M. G. Ford deducted freight of $1,645.87 and handling charges of $75.00, and its accounting to Spessard Putnal showed a net loss of $577.42. 1/ The end of the watermelon season in Lafayette County in 1986 was around the Fourth of July. Because of heavy rains and because of the end of the season, M. G. Ford Produce had considerable trouble with rind rot on Charleston Greys by the time they got to the northern markets. John Hull works for M. G. Ford Produce. He inspects the melons in the field and supervises the loading by contract crews. He thought Spessard Putnal's watermelons looked good and would "ride" (go north and pass inspection and be accepted). He told Putnal that he (Putnal) should be able to get at least $.03 per pound. When the two men called M. G. Ford, who was in North Carolina, he told them that the only way he would take the loads was on a consignment basis and that he would pay $.03 a pound or better if they passed inspections. The melons were loaded and their fate is described in Paragraph 3, above. Spessard Putnal claims that the agreement was that M.D. Ford bought his melons for $.03 a pound. He says that he never sells his melons on consignment but is paid "when they cross the scale". He said that the reason he wasn't paid immediately in this case was that M. G. Ford was in North Carolina. He admits that on other occasions he was paid by M. G. Ford according to the prices the melons brought "up the road". Sonya Ridgdill is M. G. Ford's mother and Malvin's widow. She served as bookkeeper, office manager and secretary for Malvin Ford Produce for 15 years and now works with her son's company. She was in the Mayo office when the arrangements were made regarding Mr. Putnal's melons and she could have paid him immediately if that had been the agreement. M. G. Ford Produce both "buys" produce and "handles" (consignment) produce for growers. When the produce is bought, the grower is paid immediately. The company has "handled" melons for both Spessard Putnal and Cory Buchanan. Cory Buchanan did not contest the accounting on his share of load number 218. A negative inspection will not necessarily result in a load being "kicked" (rejected). The market supply and demand also governs whether the load will be sold. As is common in such transactions, the arrangement between Spessard Putnal and M. G. Ford Produce is not reflected in writing. Nor is there evidence of written or verbal consent from Spessard Putnal to the consignment by M. G. Ford to Eckert Produce.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered finding that no funds are owed by Respondents to Petitioner for the watermelons in question and dismissing Petitioner's complaint. DONE AND RECOMMENDED this 25th day of February, 1987, at Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1987.
The Issue Whether the Petitioner's application for licensure by endorsement as a Dietitian/Nutritionist should be granted or denied for the reasons stated in the Notice of Intent to Deny dated April 15, 2008.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Council, which serves under the supervision of the Board of Medicine, is the entity responsible for certifying persons for licensure by endorsement as a dietitian/nutritionist. § 468.509, Fla. Stat. (2008)1; Fla. Admin. Code R. 64B8-40.003(1)(a). On or about January 16, 2008, the Council received Ms. Alonso's application for licensure by endorsement as a dietitian/nutritionist pursuant to Section 468.513, Florida Statutes. At the time of her application, Ms. Alonso was a certified nutritionist in the State of Washington, having been issued license number NU00001939 on April 11, 2007. Ms. Alonso is not licensed in the State of Washington as a certified dietitian, nor has she taken a state or national examination for licensure as a dietitian or as a nutritionist. In 1994, Ms. Alonso earned a Bachelor's of Science degree from Cornell University in biochemistry, and, in 2000, she earned a Master's of Science degree from the University of Texas, School of Public Health, in nutrition and immunology. Prior to moving to Florida in early 2008, Ms. Alonso worked as a nutritionist in Washington State. Prior to receiving her certification as a nutritionist in Washington State, she worked as a nutritionist in several clinics under the supervision of medical and naturopathic doctors for approximately four years. During this time, she performed nutritional assessments and developed nutritional programs for the clinics' patients and provided nutritional support for the doctors working in the clinics. Ms. Alonso was licensed pursuant to Section 18.138.030, Revised Code of Washington, which sets forth the requirements for certification as a dietitian and as a nutritionist in the State of Washington. Section 18.138.030, Revised Code of Washington, provides in pertinent part: An applicant applying for certification as a certified dietitian or certified nutritionist shall file a written application on a form or forms provided by the secretary setting forth under affidavit such information as the secretary may require, and proof that the candidate has met qualifications set forth below in subsection (2) or (3) of this section. Any person seeking certification as a "certified dietitian" shall meet the following qualifications: Be eighteen years of age or older; Has satisfactorily completed a major course of study in human nutrition, foods and nutrition, dietetics, or food systems management, and has received a baccalaureate or higher degree from a college or university accredited by the Western association of schools and colleges or a similar accreditation agency or colleges and universities approved by the secretary in rule; Demonstrates evidence of having successfully completed a planned continuous preprofessional experience in dietetic practice of not less than nine hundred hours under the supervision of a certified dietitian or a registered dietitian or demonstrates completion of a coordinated undergraduate program in dietetics, both of which meet the training criteria established by the secretary; Has satisfactorily completed an examination for dietitians administered by a public or private agency or institution recognized by the secretary as qualified to administer the examination; and Has satisfactorily completed courses of continuing education as currently established by the secretary. * * * Any person seeking certification as a "certified nutritionist" shall meet the following qualifications: Possess the qualifications required to be a certified dietitian; or Has received a master's degree or doctorate degree in one of the following subject areas: Human nutrition, nutrition education, foods and nutrition, or public health nutrition from a college or university accredited by the Western association of schools and colleges or a similar accrediting agency or colleges and universities approved by the secretary in rule. The State of Washington has two certifications, one for dietitians and one for nutritionists. Pursuant to Section 18.139.030(4), Revised Code of Washington, a person qualifies to be licensed as a "certified nutritionist" if the person either meets the requirements for certification as a dietitian or has received a master's degree in the enumerated areas of study. Section 468.509, Florida Statutes, provides: Any person desiring to be licensed as a dietitian/nutritionist shall apply to the agency [for Health Care Administration] to take the licensure examination. The agency shall examine any applicant who the board certifies has completed the application form and remitted the application and examination fees specified in s. 468.508 and who: 1. Possesses a baccalaureate or postbaccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study, from a school or program accredited, at the time of the applicant's graduation, by the appropriate accrediting agency recognized by the Commission on Recognition of Postsecondary Accreditation and the United States Department of Education; and 2. Has completed a preprofessional experience component of not less than 900 hours or has education or experience determined to be equivalent by the board; or 1. Has an academic degree, from a foreign country, . . . * * * The board shall waive the examination requirement for an applicant who presents evidence satisfactory to the board that the applicant is a registered dietitian. The agency shall license as a dietitian/nutritionist any applicant who has remitted the initial licensure fee and has passed the examination in accordance with this section. In contrast to Washington State, Florida has only one certification for dietitians and nutritionists. Pursuant to Section 468.509, Florida Statutes, a person qualifies to be licensed as a "dietitian/nutritionist" if the person either meets the requirements for certification set forth in Section 468.509(2), Florida Statutes, or is a registered dietitian. The requirements for licensure as a dietitian in Washington State are substantially equivalent to the requirements for certification as a dietitian/nutritionist in Florida. The requirements for certification as a nutritionist in Washington State are not, however, substantially equivalent to the requirements for licensure as a dietitian/nutritionist in Florida, because a person in Washington State can be certified as a nutritionist without meeting the requirements for certification as a dietitian if the person has an advanced academic degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Larisa Alonso failed to satisfy the requirements of Section 468.513(2), Florida Statutes, and denying her application for licensure by endorsement as a dietitian/nutritionist. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2008.
The Issue The issue is whether Respondent The Heidrich Corporation owes Petitioner money for watermelons and, if so, how much.
Findings Of Fact In June 1996, Petitioners, who are growers, sold watermelons to Respondent The Heidrich Corporation (Respondent), which is a broker. Respondent shipped the watermelons directly from Petitioners' fields to Canada for resale. This case involves eight deliveries of watermelons from Petitioners to Respondent. Petitioners' invoice numbers and dates of sale are as follows: 1392 on June 14, 1393 on June 15, 4004 on June 18, 4005 on June 19, 4013 and 4015 on June 22, 4016 on June 23, and 4034 on June 25. The understanding between Petitioners and Respondent relieved Respondent of the responsibility of paying for watermelons that were nonconforming when received by Respondent's customer. Nonconforming melons are melons that are decayed, undermature, overmature, destroyed for inspection, or otherwise reasonably unacceptable to Respondent's customer. However, nonconforming melons do not included melons that are unacceptable due to damage in transit; such damage would consist of cracking or bruising. The parties did not explicitly agree who would bear freight, inspection, and disposal expenses of nonconforming melons. After deduction for nonconforming melons, the June 14 shipment comprised 40,102 pounds. The parties agreed to a price of 4.5 cents per pound for this shipment, so the amount due Petitioners is $1804.59. Respondent paid freight of $92.31 attributable to decayed watermelons. After deduction for nonconforming melons, the June 15 shipment comprised 45,181 pounds. The parties agreed to a price of 4.5 cents per pound for this shipment, so the amount due Petitioners is $2033.15. Respondent paid freight of $33.75 attributable to decayed watermelons. After deduction for nonconforming melons, the June 18 shipment comprised 35,963 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $1798.15. Respondent paid freight of $226.16 attributable to decayed watermelons. The June 19 shipment was substantially nonconforming. Sixty-eight percent of the watermelons were defective on receipt in Canada, possibly due to excessive rainfall and premature cutting. Respondent's customer rejected the entire load, rather than try to find the few salable melons. For the purposes of the present case, the proper accounting for this shipment is to multiply the unloaded weight of 32,890 pounds by the percentage of conforming watermelons (32 percent). The result of 10,525 pounds represents the weight of conforming melons on receipt in Canada. The parties agreed to a price of five cents per pound, so the amount due Petitioners is $526.25. Respondent did not separately state the freight attributable to the nonconforming fruit that was not the result of shipping. Expressed as percentages of the shipping weight (not unloaded weight), eight percent of the melons were decayed, 38 percent were undermature, and five percent were overmature, for a total of 51 percent, or 20,981 pounds, of nonconforming melons. Freight on this shipment was 5.5 cents per pound, so the freight expenses for these nonconforming melons is $1153.96. Respondent also credited its customer with $700 to pay for the disposal of the melons. There were two relevant shipments on June 22. The first is documented by Petitioners' invoice 4013. After deduction for nonconforming melons, this shipment comprised 41,316 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $2065.80. Respondent paid freight of $231.20 attributable to decayed watermelons. The second June 22 shipment is documented by Petitioners' invoice 4015. The deduction for nonconforming melons requires two calculations. On arrival in Canada, prior to governmental inspection, Respondent's customer reasonably rejected 13,572 pounds out of 47,270 shipped pounds; 12,612 pounds were nonconforming (the remaining 960 pounds were bruised). Of the remaining 33,698 pounds, 15 percent, or 5055 pounds, were also nonconforming, as reflected in an ensuing governmental inspection. This means that 18,627 pounds of the original shipment were nonconforming, leaving 28,643 pounds of conforming melons. The parties agreed on five cents per pound for this shipment, so the amount due Petitioners is $1432.15. Respondent paid freight of $931.35 attributable to the nonconforming melons. Respondent's customer reasonably rejected 68 percent of the June 23 shipment of 44,120 pounds. However, 19 percent of the rejected melons were bruised, so the net deduction for nonconforming melons in the June 23 shipment is 20,736 pounds, leaving conforming melons of 23,384 pounds. The parties agreed to a price of five cents per pound for this shipment, so the amount due Petitioners is $1169.20. Respondent paid freight of $1036.80 35 attributable to the nonconforming melons. Respondent also paid its customer $850 for dumping and inspection fees. The final shipment, which took place on June 25, was by bins, rather than loose watermelons. There were no nonconforming melons in this shipment. The parties agreed that Respondent would pay $1272.55 for this shipment.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order determining that Respondent owes Petitioners the sum of $12,101.84. DONE AND ENTERED this 7th day of July, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of July, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Francis A. Oakes Oakes Produce Company 2744 Edison Avenue Fort Myers, Florida 33916 Francis X. Heidrich, President The Heidrich Corporation Post Office Box 151059 Altamonte Springs, Florida 32715-1059 Aetna Casualty & Surety Company 151 Farmington Avenue Hartford, Connecticut 06156
The Issue The administrative complaint, as limited by the abandonment of certain charges at the final hearing, raises four issues about the operation of the respondent's business. These include whether at the time of inspections on August 11 and September 3, 1986, the respondent was a food service establishment which had on its premises food which was not from an approved source; whether it failed to provide dishwashing facilities; whether it failed to provide hot and cold running water under pressure; and whether it failed to provide adequate toilet facilities.
Findings Of Fact France To You Coconut Grove, Inc., operates at 3199 Commodore Plaza, Miami, Florida, in the area known as Coconut Grove. At that location the corporation sells magazines, newspapers, post cards, greeting cards, cigarettes and, at one end of the store, has freezers containing food for sale. The entire facility is comprised of about 900 square feet, and has a single restroom. There is no space for a second restroom. The existing restroom is generally not made available to the public because to reach it, it is necessary to go through a storeroom containing the facility's merchandise. Non-employees therefore are not permitted to use the restroom. Prior to August, 1986, patrons could purchase food in sealed microwaveable packages from the freezer. It would then be heated and made available to the customer on paper plates with plastic, single-use utensils to be consumed outside the premises on a deck containing tables and chairs which France To You had made available. As the result of an article which appeared in the Miami Herald in early August, 1986, which indicated that gourmet food was sold at France To You, the health department sent an inspector, Mr. Hoffman, to the establishment. Hoffman saw people eating on the deck outside France To You. He met with the manager of the facility, Mr. Taylor. Mr. Taylor became distressed when the health department asserted that France To You fell under its jurisdiction. Mr. Hoffman asked Mr. Taylor to come to the health department offices for a planned review. Mr. Taylor did so and after initially meeting with a planned review officer, Mr. Taylor demanded to see someone more senior. During the meeting Mr. Taylor explained he planned to heat for patrons food purchased at France To You, which would be consumed on the deck outside. It was arranged that the administrator of the Dade County Public Health Department, Mr. Livingstone, would come to the Taylor establishment, which is something the administrator ordinarily leaves to regular inspectors. On August 11, 1986, Mr. Livingstone came to France To You with Mr. Ros, the Assistant Director, and Mr. Diaz of the State Department of Business Regulation, Division of Hotels and Restaurants. At that meeting Mr. Livingstone found that the freezers contained prepackaged food, which people were eating on the deck outside the establishment. There was also a Mr. Coffee machine on the premises, but it was used only for employees, not to sell coffee to customers. When Mr. Livingstone attempted to explain the requirement of the sanitation code to Mr. Taylor, Mr. Taylor became abusive and the conversation ended. There were no dishwashing facilities or three- compartment sink at France To You on August 11, 1986, and no hot water in the restroom or hot and cold water under pressure in the food preparation area, i.e. the area where the food was heated and transferred to paper plates for consumption. The prepackaged containers of food came from another France To You store on Mills Drive near the Town and Country Mall in south Dade County. That store has a market license which permits it to sell food, but it does not hold a processing license; the Mills Drive facility has not been approved by the Dade County Health Department to process food that would be packaged for sale at another location. It would have been possible for the food portions sold in Coconut Grove to have been prepared by a food processing plant inspected and approved by the Department of Agriculture or the Food and Drug Administration. There was no evidence presented that the food processing plant which was the source of the food portions at France To You was unapproved by the Department of Agriculture or the Food and Drug Administration. The premises were then reinspected by Mr. Hoffman of the Dade County Department of Public Health, and the supervisor for the area, Mr. Petty, on September 3, 1986. That inspection revealed that food was still being prepared and served on the deck outside where people consumed it. There were no dishwashing facilities or three compartment sink to wash and sanitize any food service equipment. Hot and cold running water under pressure was not available where the food was prepared, which is required to minimize the possibility of hand- to-mouth contamination of food. There was not a second restroom available for patrons. While the inspection report and the testimony of Mr. Hoffman would indicate there were some other violations found that day, such as smoking in the food preparation area and the absence of a thermometer in the freezer cases, those matters are not charged in the administrative complaint and therefore not relevant in this proceeding. A reinspection, following up on that done by Mr. Hoffman and Mr. Petty on September 3, 1986, was performed by Mr.Louis Ron of the Dade County Public Health Department on September 9, 1986. Mr. Ron was accompanied again by Mr. Petty. At the time of the reinspection the violations which had been filed by Mr. Hoffman had not been corrected, i.e. there was still no three-compartment sink, there was only one restroom, and there was no hot water in the handwashing sink in the food preparation area. Mr. Ron inspected the premises again on January 16, 1987. At that time Mr. Ron observed microwave ovens which were dirty and had not been cleaned, that there was no facility for sanitizing utensils being used by the establishment, in that there was no dipper well for the ice cream service operation which then had been installed on the deck, but there was a handwashing sink for that ice cream service. While a three- compartment sink had been installed, there was no running water yet connected to it. Finally, another inspection of the premises took place by Mr. Hoffman on April 2, 1987. At that time, the food service operation had expanded to include grills and stoves installed on the deck for the preparation of food items such as hamburgers, hotdogs, chili, eggs and bacon, as well as ice cream being served at the deck. Photographs of these food service activities taken by Mr. Hoffman were admitted into evidence. There may be other food service establishments in the general Coconut Grove area which do not provide two public restrooms, such as the Subway Sandwich Shop.
Recommendation It is recommended that a Final Order be entered finding the facility to have violated Rules 10D-13.027(1) and 10D-13.027(5), Florida Administrative Code, and imposing an administrative fine of Four Thousand Five Hundred ($4,500) Dollars, pursuant to Section 381.112, Florida Statutes (1985). DONE AND ORDERED this 17th day of December, 1987, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4500M The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: France To You is a food service establishment as covered in the conclusions of law. Covered in finding of facts. Sentence 1 rejected because there is inadequate proof concerning whether the food source was approved by governmental entities other than the Dade County Health Department. Sentences 2 and 3 covered in findings of fact 2 and 7. Covered in finding of fact 4. Covered in findings of fact 5, 6 and 7. Rejected as unnecessary. Covered in finding of fact 4, except as to the coffee service, which is covered in finding of fact 6. Rejected due to the inadequate evidence concerning the licensure status of the food processor. Covered in findings of fact 10 and 11. Rejected as unnecessary, and because there is inadequate proof that the respondent sold any coffee to patrons. Covered in finding of fact 14. Covered in finding of fact 12. Covered in finding of fact 13. Covered in finding of fact 3. Covered in finding of fact 14, but relates only to assessment of penalty not to a violation. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Not adopted because Mr. Taylor's testimony concerning the availability of restrooms at other establishments is not relevant to determining whether the operation of France To You is one which requires two restrooms. Covered in finding of `fact 2. Covered in finding of fact 2. Rejected as unnecessary. Covered in finding of fact 13. Rulings on Respondent's Proposed Findings: Covered in findings of fact 5 through 7. That no inspector actually saw food being prepared, as opposed to food being consumed by patrons of France To You, is not significant. The evidence supports the inference that France To You was serving food. Rejected because inspectors observed patrons eating food at the establishment in August and September of 1986. Generally adopted in finding of fact 6. Although there is inadequate proof that the source of the food sold had received FDA approval, that is not the issue presented. To impose sanctions, the Department of Health and Rehabilitative Services had to prove that the source of the food had not received FDA approval, which it failed to prove. The burden of this finding is adopted in finding of fact 6. Rejected for the reasons given in ruling on proposal 1. Covered in finding of fact 9. Rejected because the inspection performed on January 16 indicated that there was no running water connected to the three-compartment sink. To the extent that the finding includes a proposal that there was a handwash sink with hot water is covered in finding of fact 13. Rejected because the evidence gives rise to the inference, which the Hearing Officer makes, that food was being served prior to January 1, 1987. Rejected as inconsistent with the testimony of the health department inspectors which has been credited. No findings have been made with respect to advertisements because it is unnecessary to do so. Omitted. Rejected because the type of licensure which France To You Food Service Corporation had for the facility on Mills Drive was not a license to process food to be sold elsewhere. Rejected as irrelevant. Whether other establishments may be violating the law does not excuse any violations by France To You. COPIES FURNISHED: Morton Laitner, Esquire Department of Health and Rehabilitative Services 1350 North West. 14th Street Miami, Florida 33125 Michael A. Vandetty, Esquire DIENER & SHAPIRO, P.A. 1790 West 49th Street Suite 312 Hialeah, Florida 33012 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
