The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated February 26, 2008, and, if so, the penalty that should be imposed.
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: Petitioner is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a permanent food service establishment (non-seating), holding License No. 5809811, located at 723 North Powers Drive, Orlando, Florida. On September 11, 2007, Alex Chiu inspected the premises of Respondent. A Food Service Inspection Report was prepared on site, which noted a number of violations. This Food Service Inspection Report was received and signed by Bridgett Pow on the day of the inspection. Respondent was notified both verbally and in writing on the Inspection Report that the violations must be corrected by the next inspection. A critical violation is one that, if not corrected, is likely to cause food-borne illness, contamination, or an environmental hazard. A non-critical violation is one that relates to good retail practices, such as general cleanliness, organization, and maintenance of the facility. On February 5, 2008, Respondent's premises were re-inspected. An Inspection Report was prepared on that date which noted the following "critical" violations: (1) Foods prepared on-site were held more than 24 hours without being properly marked. After seven days, bacteria grows rapidly in food and food-borne illness may result. Because the prepared food was not properly marked, there is no way to know how long it had been in the cooler (Rule 3-501.17(A), Food Code); (2) Respondent was storing food products on the floor in the dry storage room. There is the potential that the food product may be contaminated by bacteria present on the floor (Rule 3.305.11, Food Code); (3) Ingredients used to prepare food and trays of unprepared (raw) food were stored un-covered. Lack of covering may result in contamination (Rule 3-303.11(A)(4), Food Code); (4) No chemical test kit was available to test the sanitizer in the three-compartment sink (Rule 4-302.14, Food Code); (5) Food residue was present in the cooler (Rule 4-601.11(A), Food Code); (6) There was no hot water shut-off in the hand-wash sink (Rule 5-202.12(A) and (B), Food Code); and (7) Washing sinks did not have proper hand drying equipment (Rule 6-301.12, Food Code). Evidence was received that supported the validity of the presence of these violations during both inspections. The Inspection Report noted that Respondent did not have thermometers "conspicuously" located in the refrigerator (Rule 4-204.112, Food Code). Photographs presented by Respondent showed permanent thermometers present in the refrigerator as installed by the refrigerator manufacturer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding that Respondent, Champion Bubbler West Indian and American Restaurant, committed seven "critical" violations as alleged in the Administrative Complaint and that an administrative fine of One Thousand and Four Hundred Dollars ($1,400.00) be imposed; and, further, that the owner and manager of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 10th day of September, 2008. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Bridgette Pow Champion Bubbler W Indian and Amer 723 North Powers Drive Orlando, Florida 32818 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated section 500.147(1), Florida Statutes (2020),1 when it refused entry to Petitioner's inspectors unless the inspectors agreed 1 Unless stated otherwise, all references to statutes and administrative rules are to the 2020 versions that were in effect during the conduct at issue. Childers v. Dep't of Envtl. Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997). to Respondent's "no camera" policy; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating food establishments pursuant to chapter 500, Florida Statutes (the Food Safety Act), and Florida Administrative Code Chapter 5K-4. At all times relevant, Tampa Maid was permitted as a food establishment (Food Permit No. 28143) by the Department.4 Tampa Maid operates a shrimp and shellfish processing plant at 1600 Kathleen Road in Lakeland, Florida (Facility). As a seafood processor, Tampa Maid is subject to the jurisdiction of the federal Food and Drug Administration (FDA), and specifically to seafood Hazard Analysis Critical Control Points (HACCP) inspections. The Department contracts with the FDA to perform various types of inspections including HACCP inspections. The Department's FDA contract contemplates that (1) Department inspectors will collect information and 3 An official word index to the Transcript was submitted on March 31, 2021. 4 Section 500.03(p) defines "Food establishment" as "factory, food outlet, or other facility manufacturing, processing, packing, holding, or preparing food or selling food at wholesale or retail." evidence, (2) evidence can be in the form of photographs, and (3) evidence collected is not subject to public records requests, but rather must be kept confidential. 5 It states: All information collected during the performance of this contract shall be considered as confidential commercial information, including the Establishment Inspection Report (EIR), FDA 483, or equivalent forms, evidence collected, and all other supporting documentation. Evidence and supporting documentation may include supplier, receiving, and distribution records, photographs, complaint records, laboratory results, and other documents collected during the performance of the contract. The Contractor shall notify the Division Technical Advisor within three (3) business days after receipt of a public records request for information obtained during the performance of the contract is received. The Contractor is not authorized to release confidential commercial information. (emphasis added). The Department trains staff to conduct various types of inspections of food establishments. The Department also issues inspectors equipment to be used to perform their duties. This includes tools such as a flashlight, probe thermometer, test strips for sanitizers, and mobile phones. The Department- issued phones have a camera to take photographs during an inspection. The Department has developed the Manufactured Food Inspection Protocol (Protocol) which contains the following instructions for inspectors: 6.5 Refusal of Inspection Notify a manager immediately if you are denied entry to any part of the establishment including being restricted from taking photographs of violative conditions, collecting samples, or if the 5 Chapter 500 is to be interpreted to be consistent with the FDA's rules and regulations. See § 500.09(3), Fla. Stat. Additionally, the Department has adopted federal regulations and other standards. Fla. Admin. Code R. 5K-4.002. Article 5.3.4 of the FDA's Investigation Operations Manual (2021) provides further instructions and guidance to inspectors of documenting conditions using photographs during inspections. See FDA website at: https://www.fda.gov/media/113432/download (last visited April 6, 2021). establishment management or person in charge refuses to provide access to required food records; this may constitute a refusal of inspection. * * * 7.1 FIMS Review [Before an inspection] review recent inspection reports … for attached files, documents, photographs, etc. * * * 8.1.1. Signing of Non-FDACS Documents Circumstances may arise in which a food establishment requests the [inspector] to sign documents during the inspection. Listed below are specific guidelines for these circumstances. Contact a manager f you encounter a situation not listed. 8.1.2 Proprietary Documents Florida Statute Chapter 500.147 authorizes the Department to have access to any food establishment … for the purposes of inspecting such establishment … to determine whether this chapter or any rule adopted under this chapter is being violated. Documents including, but not limited to, waivers, nondisclosure, confidentiality agreements may include language that inhibits our authority to conduct the inspection. If you are asked to sign these types of documents inform the person in charge that you are not authorized to sign the documents. If they persist and /or deny you entry, contact a manager as this may constitute a refusal of inspection. * * * 8.1.4 Sign-In and Sign-Out Rosters All FADCS employees are authorized to sign-in and sign-out at food establishments, so far as they sign- in document does not include language that would impede the inspection. * * * 13. Inspection Techniques and Evidence Development Collect adequate evidence and documentation in accordance with FDACS procedures to support inspectional observations such as those listed below: * * * 13.2 Photographs Photographs serve as supporting evidence when documenting violative practices or conditions. Photographs should be related to conditions contributing to adulteration of the finished product. Excessive amounts of photographs are not necessary to support your documentation. Ensure photographs clearly represent the conditions observed. These photographs must be uploaded to the FIMS inspection visit. As explained by Inspectors Frank Kilgore and Bhisham Ojha it is "not uncommon" for inspectors to take photographs during an inspection for various reasons. The most obvious reason is to document violative conditions. An example given at the hearing was of an inspector using a camera to take photographs of rodent droppings (which are presumably a health and safety violation in a food establishment) to show they existed inside a particular facility. Another reason an inspector would take photographs would be to establish whether the product is interstate commerce. An inspector could take a photograph of the packing materials on the box in a food establishment to later determine whether it had been shipped from out of state. Inspectors can also document through photographs whether a facility is operating beyond the scope of its permit or license. For example, an entity may be permitted to operate as a warehouse, but during the inspection it may be discovered that the entity is also repacking seafood or spices. A photograph of the unlicensed activity can be included in the inspection report to establish the improper activity. Finally, photographs are helpful for follow-up inspections to establish whether a violation still exists. For example, a piece of equipment may be broken or dirty in violation of safety regulations during an inspection. On the follow-up inspection, a comparison can be made to a photograph taken during the original visit to establish if it has been repaired or cleaned. Inspectors are trained to take photographs during an inspection and how they can be used. As stated in the Protocol and supported by the testimony of the inspectors, an inspector must have a need for taking a picture, such as a suspected violation, and cannot take pictures for no reason. In addition to instructing inspectors on how to use photographs, the Protocol advises inspectors on what types of documents they can sign as long as there are no restrictions on their ability to conduct the inspection. Although they are allowed to sign a "Sign-In/Sign-Out" sheet, they are not to sign "waivers, nondisclosure, confidentiality agreements may include language that inhibits our authority to conduct the inspection." If faced with these documents, they are to refuse to sign them; if denied entry by the entity being inspected, the inspector is instructed to contact the Department. March 9, 2020 On March 9, 2020, Mr. Kilgore and Mr. Ojha visited Tampa Maid's facility to conduct an HAACP and FDA contract inspection. Mr. Kilgore was the lead inspector and was training Mr. Ojha. Upon arrival, the inspectors were asked to sign a COVID protocol acknowledgment or questionnaire. When the inspectors refused to sign the document, Tampa Maid accepted their verbal answers to the COVID questions. Then, as a prerequisite to entering the part of the Facility the inspectors were to inspect, Rod Stokes, Tampa Maid's Director of Food Safety and Quality Assurance, asked the inspectors to sign a ledger titled "Visitors Register," located at a desk in the office of the Facility. The Visitors Register was located on a desk next to a large placard which stated, "FOOD DEFENSE. PLEASE SIGN IN." Next to the Visitors Register and underneath the placard was a document titled, "Visitor's Information" and is copied below: The "Visitor Information" sheet included a list of 14 items typed in "ALL CAPS" including instructions (such as "sign in," "be careful of moving equipment," "do not touch the equipment," and "report any intestinal illness") and prohibitions (for jewelry, gum, food, tobacco, open-toed shoes, and weapons). The item at issue is located in the middle of the list: "8. No Cameras Allowed." At the very bottom of this document, after being instructed to "enjoy your visit," in a smaller font and not capitalized, was a conclusion that, by signing the visitor's log (presumably the same as the "Visitor's Register") a visitor was agreeing to follow the 14 listed statements. Both inspectors had visited the Facility on previous occasions and both had signed the Visitors Register. Mr. Ojha claimed he did not recall the "no camera" instruction listed as number eight on the Visitor Information sheet and did not agree to it, nor did he follow the instructions. Rather, he kept the Department-issued phone, which had the camera, in his back pocket during the inspection. Mr. Kilgore remembered previously signing the Visitors Register, but he did not notice the Visitor Information language. He explained that the Visitor Information sheet was not attached to the Visitors Register. If he had noticed the language, he would not have signed the ledger. He also claimed that he always kept the Department issued phone with him during inspections. When the Department inspectors refused to perform the inspection without their cameras on March 9, 2020, Mr. Stokes would not allow them to proceed. Mr. Stokes did not believe the inspectors had the authority to use a camera during the inspection, and he demanded that the inspectors or the Department give him the legal basis for the Department's authority to bring cameras into a facility. Although there was a discussion between Mr. Stokes and Department staff, nothing was provided to Mr. Stokes to change his mind. Ultimately, Mr. Kilgore informed Mr. Stokes that they would not conduct the inspection without their phones and that prohibiting them from entering the Facility with cameras could result in a refusal of inspection. Mr. Stokes continued to refuse to let the inspectors proceed into the Facility with their Department-issued phones. No inspection took place on March 9, 2020, and there is no evidence the Tampa Maid Facility has been inspected since that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered as follows: Finding that Tampa Maid denied the Department free access to its facility in violation of section 500.147, Florida Statutes, as alleged in the Administrative Complaint, when it refused to let inspectors enter with cameras. Requiring Tampa Maid to pay an administrative fine in the amount of $1,000. Suspending Tampa Maid's Food Permit (Food Permit No. 28143) until such time that access to the food establishment is freely given to the Department. DONE AND ENTERED this 12th day of April, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2021. COPIES FURNISHED: Allan J. Charles, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399 Magdalena Ozarowski, Esquire Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399 Honorable Nicole "Nikki" Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Daniel J. Fleming, Esquire Johnson Pope Bokor Ruppel & Burns, LLP Suite 3100 401 East Jackson Street Tampa, Florida 33602 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
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. This position was stated notwithstanding the fact that the samples taken in the Miami plant were limited in numbers, due to the fact that the petition for extension of shelf life was filed later than a similar petition filed by the Petitioner. Jay Boasinger 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, as his title indicates, is charged with the function of inspection and enforcement of the laws and regulations associated with the diary 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 Miami, Florida plant, the Petitioner's trucks 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 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 15th 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: R. D. Saunders, Zone Manager Sealtest Foods 109 Governors Street Tampa, Florida 33602 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
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 and 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 Tampa, Florida plant and the Petitioner's trucks. These samples were collected by a dairy plant specialist of the Respondent, and then 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 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 25th day of May, 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: R. D. Saunders, Zone Manager Sealtest Foods 109 Governors Street Tampa, Florida 33602 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
The Issue The issue in this proceeding is whether Respondents committed the offenses set forth in the Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact General Findings of Fact The Department of Banking and Finance (the Department) is the agency responsible for the administration of Chapter 516, Florida Statutes, the Florida Consumer Finance Act (the Act). At all times material hereto, Respondents were not licensed by the Department as required by the Act. Cash Cow F1 LLC is located at 1362 Lake Bradford Road, Tallahassee. Cash Cow F2 LLC is located at 220 West Tennessee Street, Tallahassee, Florida. Cash Cow F3 LLC is located at 1 West Jefferson Street, Quincy, Florida. Cash Cow F4 LLC is located at 2107 South Bryon Butler Parkway, Perry, Florida. Cash Cow F5 LLC is located at 2002 South Monroe Street, Tallahassee, Florida. Cash Cow F6 LLC is located at 4157 Lafayette Street, Marianna, Florida. Cash Cow F7 LLC is located at 1246 North Jefferson Street, Monticello, Florida. Cash Cow F8 LLC is located at 2705 Northwest 10th Street, Ocala, Florida. Cash Cow F9 LLC is located at 601 Ridgewood Avenue, Holly Hill, Florida. Cash Cow F10 LLC is located at 700 Eglin Parkway Northeast, Fort Walton Beach, Florida. Cash Cow F11 LLC is located at 234A Miracle Strip Parkway, Fort Walton Beach, Florida. Cash Cow F12 LLC is located at 606-A Beal Parkway, Fort Walton Beach, Florida. Cash Cow F13 LLC is located at 146 West John C. Sims Boulevard, Valparaiso, Florida. Cash Cow F14 LLC is located at 750 John Sims Parkway, Niceville, Florida. Cash Cow F15 LLC is located at 618 South Ferdon Boulevard, Crestview, Florida. Respondent Jeffery Swank is the manager of Cash Cow F1 LLC, Cash Cow F2 LLC, Cash Cow F3 LLC, Cash Cow F4 LLC, Cash Cow F6 LLC, Cash Cow F7 LLC, Cash Cow F8 LLC, Cash Cow F9 LLC, Cash Cow F10 LLC, Cash Cow Fll LLC, Cash Cow F12 LLC, Cash Cow F13 LLC, Cash Cow F14 LLC, and Cash Cow F15 LLC (herein after collectively referred to as "Cash Cow".) Cash Cow engaged in Discount Title Voucher transactions (DTV transactions) within the State of Florida. EZ Cash, Inc., a/k/a EZ Cash Inc. of Georgia (EZ Cash) is a Georgia corporation. Respondent Swank is the president of EZ Cash. EZ Cash also engaged in DTV transactions with the State of Florida, as evidenced by corporate checks bearing that name issued to customers and customer checks made payable to that entity. Description of Typical Transaction Cash Cow and EZ Cash received a check from a customer typically in the amount of $122.00. In exchange for the customer's $122.00 check, Cash Cow and EZ Cash tendered its corporate check in the amount of $100.00, which the customer could cash anywhere but at Cash Cow, and provided the customer with a piece of paper entitled "discount title voucher." The 22-dollar difference between the customer's check and the Cash Cow/EZ corporate check is described in the customer agreement as the "purchase price" of the discount title voucher. Originally, the discount title voucher entitled the bearer to a 50 percent reduction in the first month's interest on a new title loan. Subsequently, the discount title voucher entitled the bearer to 100 percent reduction in the first month's interest on a new title loan. Cash Cow/EZ Cash provided checks to a customer in $100.00 increments. Should the customer have wished to receive $200.00, the customer would have received two $100.00 checks from Cash Cow/EZ Cash in return for writing two $122.00 personal checks. The customer agreement further provides "that the personal check used to purchase the 'Discount Title Voucher' may be redeemed by the customer within 15 days of purchase." Essentially, the customer had two options. A customer could present a cashier's check or money order to Cash Cow in the amount of 122 dollars per 100 dollars borrowed on or before the 15th day, or the customer could extend the date the check could be picked up for an additional 15 days by paying an additional 22 dollars per 100 dollars borrowed on or before the 15th day. If the customer elected to extend the date, an additional discount travel voucher was given to the customer. The amount of times that a customer could extend a transaction was unlimited. The annual percentage interest rate charged by Cash Cow/EZ Cash on a typical transaction equates to 535 percent. In some earlier transactions, customers were charged 25 dollars per 15-day period which equates to an interest rate of 608 percent. Respondents Swank and Shovlain participated in the creation of the DTV transaction. Swank possesses in-depth knowledge of the mechanics of the DTV transaction. Respondents Swank, Cash Cow, and EZ Cash designed and implemented the DTV transaction as a replacement for a previous lending scheme invalidated by the Department. The appearance of the present DTV transaction appeared just two months following the cessation of the previous method of operation. The manager of the Perry, Florida store from April of 1996 until July of 1998 was Beth Hotvedt. Although not involved in the creation of the DTV transaction, she heard Swank refer to the DTV transaction as a "check loan." Internal documents of Cash Cow also characterize the DTV transaction as a loan. A "DTV Checklist" was distributed to various Cash Cow/EZ Cash stores before the stores began engaging in DTV transactions, explaining procedures to be followed when engaging in the transactions. The DTV Checklist was included in the Policy and Procedures Manual, the formulation and writing of which involved the efforts of Respondent Swank. Operational Notes distributed to Cash Cow/EZ Cash stores contained statements that DTV's could be re-written "continually" at 25 dollars interest for 15 days. The Notes emphasized that "[a]ny increase in DTV time must be Refinanced!" The 25 dollar amount was later lowered to 22 dollars. His conversational description of the DTV transaction as a "check loan"; the script which he prepared for stores' use which detailed how the DTV transactions should be described to customers so that "check loans" could be made under the guise of discount title voucher sales; and his involvement in the writing of the Policy and Procedures Manual with its DTV check list emphasizing "Receive check for Loan and Interest," provides ample evidence that Swank knew that each DTV transaction was a loan and that the 22 dollars charged to customers was interest. Cash Cow and EZ Cash knew the DTV transaction was a loan. Each entity was aware that the 22 dollars charged per loan was interest. The Policy and Procedures Manual contains the DTV Checklist which emphasizes that checks are received for "Loan and Interest." Operational Notes state that DTV's "can be re-written continually" at 25 dollars "interest for 15 days." Additionally, Swank, Cash Cow's manager and EZ Cash's President, knew the DTV transaction was a loan. Swank, as Cash Cow's manager and EZ Cash's President knew that Cash Cow and EZ Cash were not registered pursuant to the Act and consequently, Cash Cow and EZ Cash knew they were not registered. Swank knew that the annualized interest rate charged DTV customers was greater than 18 percent. He demonstrated his interest calculation abilities at regulatory proceedings in Georgia where he testified in regard to title pawn loan interest contrasted with DTV costs, reciting calculations and noting a savings with DTVs. Again, Swank's knowledge that the annualized interest rate for DTV customers exceeded 18 percent per annum must be imputed to Cash Cow, which he managed, and EZ Cash, of which he was the President. Swank, and thereby Cash Cow and EZ Cash, intentionally charged, contracted for and received interest of more than 18 percent per annum on DTV transactions. Respondents were subject to joint investigation by the Department, the Office of Statewide Prosecution, and the Department of Florida Highway Safety and Motor Vehicles. As a result of this investigation, a joint investigation of David Arrington and Edward Easterly, and companies owned by them, was begun. The joint investigation of Arrington, Easterly, and their companies has not yet concluded or resulted in charges. Consequently, no administrative proceedings have been initiated against them by the Department. The Department has refused licensure to Southern Cash Man, Inc., as a consequence of Arrington's association with the company. A successor corporation, Check Man, Inc., has been licensed by the Department upon review and determination that Arrington is not now associated with that company. Companies owned by Easterly that have applied for licensure have not been licensed. The applications have been withdrawn. The Department has served an Emergency Final Order to Cease and Desist Unlicensed and Usurious Lending Activities (EFO) and an Administrative Complaint for Entry of a Cease and Desist Order, Order of Imposition of Fines and Notice of Rights (Complaint) against International Title Loan, Inc., John Pierce McDonald, and others (ITC). The Complaint in that case is virtually identical to the Administrative Complaint in the instant case. Specific Transactions Kevin Bundage, a four-year resident of Leon County, Florida, engaged in DTV transactions with Cash Cow and EZ Cash. His intent in going to both businesses was to obtain a loan. He evidenced this intent by asking "How do I go about exchanging or getting a loan for a check?" Bundage did not go to Cash Cow or EZ Cash to obtain a DTV and never entered into a title loan with either entity. Gretchen Seigler, formerly known as Gretchen Boggs, is a 32-year resident of Leon County. She engaged in DTV transactions with Cash Cow. Her intent was to obtain a loan. She did not go to Cash Cow to purchase a discount title voucher. In fact, Seigler entered into the DTV transaction with Cash Cow at a time when she did not even have title to a car. Cheryl Winbourne is a 16-year resident of Leon County, Florida. She engaged in DTV transactions with Cash Cow and EZ Cash. Both with Cash Cow and EZ Cash, her intent was to obtain a loan. She engaged in approximately 20 transactions with Cash Cow. She did not intend to purchase a DTV and never entered into a title loan. Janice Sperry is a five-year resident of Leon County, Florida, and engaged in a DTV transaction with Cash Cow. She intended to obtain a loan. She did not go to Cash Cow to purchase a discount title voucher. She never entered into a title loan with Cash Cow or EZ Cash. Gloria Rowls, a 14-year resident of Leon County, Florida, engaged in DTV transactions with Cash Cow and EZ Cash. She intended to obtain a loan but was required to sign the customer agreement and accept the voucher in order to get the money she needed. She does not own a vehicle and never entered into a title loan with Cash Cow or EZ Cash. The universal intent of the foregoing individuals was to obtain a loan from Cash Cow or EZ Cash. None intended to purchase a discount title voucher. Their receipt of a discount title voucher was not germane to their decision. While there were occasional anomalies where an individual actually used the discount title voucher on a title loan, most people involved in a DTV transaction either threw their discount title vouchers in the trash can, gave them to friends, left them on the counter, or simply accepted the voucher as a requirement to getting the loan. During three months, August 1997 to October 1997, the Cash Cow/EZ Cash store located on Tennessee Street in Tallahassee, Florida, engaged in at least 4,634 DTV transactions. In 1997 alone, the Perry store engaged in at least 1,859 DTV transactions. These two locations therefore engaged in a total of at least 6,493 transactions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Banking and Finance enter a Final Order to Cease and desist Cash Cow, EZ Cash and Swank from violating Chapter 516, Florida Statutes, and from further efforts to collect moneys allegedly due to Cash Cow, EZ Cow or Swank on DTV transactions which have not been repaid by the customer; Fine Cash Cow, EZ Cash and Swank, jointly and severally, the sum of $1,298,600.00. DONE AND ENTERED this 29th day of September, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS 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 29th day of September, 2000. COPIES FURNISHED: Robert Alan Fox, Esquire Paul C. Stadler, Esquire Assistant General Counsels Department of Banking and Finance Suite 526, The Fletcher Building East Gaines Street Tallahassee, Florida 32399-0350 Richard M. Powers, Esquire 315 South Calhoun Street, Suite 308 Tallahassee, Florida 32301 Honorable Robert F. Milligan Comptroller Office of the Comptroller The Capitol, Plaza Level 09 Tallahassee, Florida 32399-0350 Robert Beitler, Acting General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350
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 sample, 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 Deland, Florida plant, the Petitioner's trucks 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. Professor Ronald Richter Ph.D., Extension Dairy Technologist for the University of Florida testified about a test conducted on the shelf life of low fat milk. At 40 degrees the shelf life was 41 days and at 45 degrees the shelf life was 25 days. The type tests employed included the Mosely Count and a flavor test. The flavor test, according to 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 live 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 14th 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: Ted H. McCarty, Esquire Assistant General Counsel Beatrice Foods Company 120 South Lasalle Street Chicago, Illinois 60603 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Respondent violated Section 509.032(2), Florida Statutes (1997), and relevant portions of the Florida Administrative Code for the reasons stated in two separate administrative complaints, and, if so, what penalty should be imposed against Respondent's license. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and inspecting public food service establishments pursuant to Chapter 509. Respondent is a public food service establishment within the meaning of Section 509.013(5)(a) and holds license number 59-00914-R. The licensed premises are located at 5770 Irlo Bronson, Kissimmee, Florida. Respondent operates the licensed premises to prepare, serve, and sell food for the immediate consumption on or in the vicinity of the licensed premises. On March 30, 1999, one of Petitioner's inspectors inspected the licensed premises. The inspector found several violations of applicable rules and noted the violations on a food service inspection report dated March 30, 1999. On April 7, 1999, the inspector performed a call-back inspection of the licensed premises. Respondent had failed to correct 12 violations, and Petitioner issued an administrative complaint on April 23, 1999, charging the 12 violations. Certain food was out of temperature. Respondent maintained roast beef at 54 degrees farenheit and maintained salami and cheese at 58 degrees. The temperature of the ambient air of the refrigeration underneath the sandwich make table was 60 degrees. Respondent's employee made sandwiches without tongs or other equipment necessary to prevent hand contact. A written procedure for handling food was not visible. The handle of the ice scoop was lying in the ice. The fire extinguisher by the fryer was discharged. The slicer was not clean. There was a build-up of old food on the blade surface of the slicer. The cutting board at the sandwich make table was pitted, scarred, and stained. No container of sanitizer was available for storing wiping cloths. The exhaust system above the cooking area was not working properly and was not clean. Respondent used duct tape to hold the insulation panel onto the lid of the reach-in freezer. Ceiling tiles were damaged. Holes were not sealed or plugged where cut-outs occurred to allow power lines through the ceiling. The bathroom vent did not work. On July 14, 1999, another of Petitioner's inspectors inspected the licensed premises. The inspector found several violations of applicable rules and noted the violations on a food service inspection report dated July 14, 1999. On July 21, 1999, the inspector performed a call-back inspection of the licensed premises. Respondent had failed to correct 11 violations, and Petitioner issued an Administrative Complaint on August 4, 1999, charging the 11 violations. Certain food was out of temperature. Respondent maintained ham and turkey at the make table at 50 degrees. The ambient air of the sandwich make table unit was 50 degrees. Respondent's employee cleaned the slicer and proceeded to prepare food items without washing his hands. An employee had an uncovered drink in the food preparation area. Respondent failed to set up the compartment sink to wash, rinse, and sanitize multi-use utensils. The cutting boards were scarred and stained. The milkshake machine was soiled with milk residue. The microwave was soiled with food residue. The cook was not wearing a hair restraint. Ceiling tiles had water stains and holes. The dumpster was not covered. The lids were missing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations found in this Recommended Order and imposing administrative fines totaling $7,000. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Florida. DANIEL MANRY 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000. COPIES FURNISHED: Dorothy W. Joyce, Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Byron K. Sutton, President Kissimmee Popcorn Company, Inc. 1224 Dyer Boulevard Kissimmee, Florida 34741
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
