The Issue Whether Petitioner has standing to bring this proceeding and, if so, whether Petitioner is entitled to a waiver or variance of Rule 5K-4.021, Florida Administrative Code, pursuant to Section 120.542, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Rule 5K-4.021, Florida Administrative Code, provides in operative part that food establishments with four or more employees present at the same time engaged in food establishment operations must have at least one certified food manager present in the food establishment during all phases of food establishment operation. The food manager is responsible for and must actively oversee all food establishment operations. Food establishments with fewer than four employees engaged in food establishment operations at the same time must also have a certified food manager, but that food manager need not be present at all times. The rule provides for written testing of persons seeking certification as food managers. The test is designed to allow the applicant to demonstrate knowledge of food protection and food safety principles and practices. The rule defines “food establishment operation” as the manufacturing, processing, packing, holding or preparing of food or selling food at wholesale or retail at a food establishment regulated by the Department of Agriculture and Consumer Services pursuant to Chapter 500, Florida Statutes. Petitioner is an industry association comprising nearly all of the poultry industry in the State of Florida. Petitioner’s membership includes eight shell-egg producers and three broiler producers. Petitioner concedes that its shell-egg producer members are “food establishment operations” that are subject to Rule 5K- 4.021, Florida Administrative Code, absent the variance sought in this proceeding or some other exemption therefrom. At the time Petitioner filed its Petition for Variance or Waiver, six of its member shell-egg producers were subject to Rule 5K-4.021, Florida Administrative Code. At the time of the hearing, only one of Petitioner’s member shell-egg producers was subject to the rule. Subsequent to the filing of the Petition, the other five members had become full-time United States Department of Agriculture (USDA) certified plants. Respondent concedes that USDA plants are automatically exempt from Rule 5K-4.021, Florida Administrative Code. Petitioner’s reason for requesting the variance or waiver is, essentially, that the rule “does nothing” in relation to shell-egg plants. Petitioner alleges that the purpose of the rule is to monitor retail food establishments, i.e., those that are pre-packaging for sale, or directly preparing food for sale to be consumed on or off the premises as prepared or packaged. Petitioner contends that shell-egg plants do not fall under those criteria. Petitioner alleges that a shell-egg plant only cleans, grades and packages the shell egg, and that the edible portion of the egg is not touched by human hands or packaged in such a manner as to be consumed “as is.” Petitioner argues that the requirements of the rule duplicate safety measures already required by law of shell-egg producers, and that a waiver would not affect food safety because the egg is in no way compromised by the processing that occurs on the premises of a shell-egg plant. In its Petition Denial, Respondent disputes that either Chapter 500, Florida Statutes, or the rules promulgated thereunder are limited to retail food establishments. Respondent points out that the United States Food and Drug Administration has determined that a shell egg is a potentially hazardous food, and that the examination for food manager covers the proper handling of potentially hazardous foods, making its provisions applicable to and desirable for shell-egg plants. In its Amended Petition Denial, Respondent set forth the following additional justifications for applying the food manager requirement to shell-egg plants: A certified food manager with knowledge of potential biological, chemical, and physical sources of foodborne disease and illness is needed at all egg processing plants to safeguard the public health and promote the public welfare. A certified food manager with knowledge of proper food storage techniques is needed at all egg processing plants to safeguard the public health and promote the public welfare. A certified food manager with knowledge of proper selection, use and care of equipment and utensils is needed at all egg processing plants to safeguard the public health and promote the public welfare. A certified food manager with knowledge of proper cleaning and sanitizing procedures is needed at all egg processing plants to safeguard the public health and promote the public welfare. A certified food manager with knowledge of proper pest control and supply storage protocol is needed at all egg processing plants to safeguard the public health and promote the public welfare. A certified food manager with knowledge of proper facility maintenance and operation is needed at all egg processing plants to safeguard the public health and promote the public welfare. Respondent’s expert witnesses affirmed that the yolks of shell eggs provide an excellent medium for the growth of harmful bacteria, including salmonella enteritidis, which can cause serious illness or even death in humans. Respondent’s witnesses also testified as to cleanliness and hygienic problems that they have observed in shell-eggs plants they have inspected as part of their duties, problems they believe could be addressed more efficiently by the constant presence of a certified food manager, as opposed to the periodic inspections conducted by Respondent’s agents. Petitioner stipulated, and the proof demonstrated, that compliance with Rule 5K-4.021, Florida Administrative Code, would not create a substantial hardship on its members. Compliance would not create an economic, technological, legal or other type of hardship for Petitioner’s members. Petitioner stipulated, and the proof demonstrated, that application of the rule to Petitioner’s members would not affect those members any differently than it affects other similarly situated persons who are subject to the rule.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the petition for formal proceeding and affirming its denial of the Petition for Variance or Waiver of Rule 5K-4.021, Florida Administrative Code. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. Hearings Hearings LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 6th day of May, 1998. COPIES FURNISHED: Chuck R. Smith Executive Vice President Florida Poultry Federation, Inc. 4508 Oak Fair Boulevard, Suite 290 Tampa, Florida 33610 John N. Spivey, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Room 515 Tallahassee, Florida 32399 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level-01 Tallahassee, Florida 32399-0810
The Issue At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated March 17, 2008, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant located at 2054 State Road 436, Suite 128, Winter Park, Florida, holding Permanent Food Service license number 5811081. On March 12, 2008, Wilfredo Goris, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Goris observed 17 live roaches inside a box containing light bulbs in front of the three-compartment sink, two roaches on a water heater in the same general area as the three-compartment sink, and three dead roaches in the vicinity of the three-compartment sink. Mr. Goris showed the roaches to Carlos Nevarez, the manager of Stacked Subs, to make him aware of the problem. Mr. Goris prepared and signed an inspection report detailing his findings during the inspection. Mr. Nevarez also signed the report to indicate receipt of the inspection report. The Division advises its inspectors that all reports of pest activities should be forwarded to the Tallahassee office for review. Mr. Goris sent his inspection report to Tallahassee for a determination of how to proceed against Stacked Subs, i.e., whether to allow the restaurant to remain in operation or to suspend its license until the roach infestation is eliminated. Mr. Goris testified that the Tallahassee office decided that because the roach activity was in the kitchen area, the restaurant should be closed as a threat to public health until the facility was cleaned and sanitized. Mr. Nevarez testified that all the roaches were in a box of fluorescent light bulbs that had been brought in from a storage unit a couple of weeks earlier. The box was removed immediately after the inspection. According to Mr. Nevarez, once the box was removed, the roach problem was eliminated. To corroborate his testimony, Mr. Nevarez submitted a service report from Anteater Pest and Lawn Services, a large pest and lawn company. Anteater's technician arrived at Stacked Subs at 4 p.m. on March 12, 2008, and stayed until 5:30 p.m., inspecting the facility and treating any potential entry point for pests. Anteater's technician could find no roaches inside the restaurant. Mr. Goris returned to Stacked Subs the next day, March 13, 2008. Mr. Goris found no roaches and allowed the restaurant to reopen. Mr. Nevarez submitted photographs of the restaurant to show where Mr. Goris found the box containing the roaches. Mr. Goris viewed the photographs and agreed with Mr. Nevarez as to the location of the box. The photographs indicate that the box was placed next to a hot water heater in the very back of the restaurant, well away from the food preparation area. However, the kitchen is of a long, open galley-type construction, and there were no dividing walls between the hot water heater and the food preparation area. Therefore, the box containing the roaches was technically in the kitchen. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. Roaches are carriers of diseases, including staphylococcus. The presence of roaches in the vicinity of the food preparation area constitutes a critical violation. The Division presented no evidence of prior disciplinary action against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing a fine of $500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 11th day of September, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 11th day of September, 2008.
Findings Of Fact Petitioner is the holder of Oyster Lease NO. 981. The annual rent for the lease has been paid in full as it became due and the lease is currently in full force and effect. No formal action has been brought by DNR to revoke this oyster lease. On June 30, 1988, Petitioner filed a valid and adequate application for a special activity license to use mechanical harvesting implements on this lease. Petitioner furnished or will furnish a bond payable to the Governor of the State of Florida and approved by DNR in the sum of $3,000.00 as required for issuance of a special activity license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of W. E. Schoelles for a special activity license to use mechanical harvesting implements on Oyster Lease NO. 981. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5989 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources The only finding of fact proposed by DNR is rejected as being irrelevant and unsupported by the competent evidence. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 J. Ben Watkins Attorney at Law 41 Commerce Street Apalachicola, FL 32320 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
