The Issue Whether respondent should be disqualified from participating as a vendor in the Supplemental Food Program for Women, Infants and Children, known as the WIC Program.
Findings Of Fact The Special Supplemental Food Program for Women, Infants and Children (WIC Program) is funded by the United States Department of Agriculture under the Child Nutrition Act, Public Law No. 95-626. All funding for the WIC Program is federal; no state funds are used. The Department of Health and Rehabilitative Services (HRS) is the state health agency which is authorized to administer the WIC Program in Florida. The United States Department of Agriculture has promulgated regulations relating to the WIC Program which are set forth in 7 CFR Section 246.1 et seq. Among these regulations is the following requirement: The State agency shall establish policies which determine the type and level of sanctions to be applied against food vendors, based upon the severity and nature of the Program violations observed, and such other factors as the State agency determines appropriate.... 7 CFR 246.12(k)(1). Although HRS has established policies prescribing the type and level of sanctions to be applied, which are set forth in HRS Manual No. 150-24, dated May 1, 1983, and HRS Manual No. 150-24A, dated January 24, 1986, none of the policies have been promulgated as rules adopted pursuant to Chapter 120, Florida Statutes. Indeed, HRS has promulgated no rules relating to the WIC Program. The WIC Program provides certain important foods to pregnant women, infants and children. Program participants are examined by health professionals who determine the need for supplemental food and nutritional guidance. The participants receive checks for specific kinds and amounts of nutritious foods. The checks are redeemed at grocery stores that are approved by HRS. A participating grocer, or vendor, must meet certain qualification to participate in the program and must sign an agreement with HRS. The agreement expires at the end of each year and a new agreement is signed. A WIC check is similar to other types of checks and is redeemed by the vendor simply by depositing the check in his bank account. However, there are restrictions on the use of a WIC check. A WIC check can be used only to purchase the items listed on the face of the check. When a WIC check is presented for the purchase of items, the vendor must total the prices for the food listed on the check separately from any other food being purchased, ensuring that only the exact types and amounts of food listed on the check are included. The vendor then fills in the exact amount of the purchase on the check, and the customer signs the check. On March 21, 1984, HRS first contacted Sunrise Grocery in relation to its application to become a qualified vendor. At the time the owner of Sunrise Groceries was Albert Daa's, respondent's father. At the time of this visit, an application was filled out, and the rules and regulations set forth in HRS Manual No. 150-24 were explained. It was noted that the store lacked the minimum inventory of WIC foods. Another visit was made on April 20, 1984, at which time the store apparently reapplied for participation in the WIC Program. The store was subsequently qualified as a WIC Program vendor. On May 9, 1984, another visit was made to the store for the purpose of training. The rules and regulations, program procedures, and sanctions for program abuses were explained. The owner of Sunrise Groceries at this time was Albert Daa's and he signed this contact report. On September 20, 1984, HRS conducted a Vendor Compliance Review. The purpose of a Vendor Compliance Review is to ensure that the vendor understands WIC Program requirements and the obligations of a WIC vendor. The respondent, Isam Daa's, signed the report as the owner of the store. One of the requirements specifically discussed with respondent was the requirement that WIC checks not be written for amounts exceeding the actual shelf price of the food purchased. On December 11, 1984, HRS again visited Sunrise Groceries to discuss certain check redemption problems. Again, the consequences of overcharging were discussed. Respondent signed the report. On December 19, 1984, the respondent, as the owner and authorized representative of Sunrise Groceries, entered into an agreement with HRS effective January 1, 1985 through December 31, 1985, to participate as a vendor in the WIC Program. As part of this agreement, the respondent agreed to process WIC Program food checks in accordance with the terms of the agreement and state and federal WIC Program rules, regulations and policies. Respondent agreed to provide supplemental foods at the current price or at less than the current price charged to other customers. Respondent also agreed to be accountable for the actions of his employees in the utilization of food checks. Respondent and HRS have entered into the same agreement every year since then. On March 27, 1985, the respondent was sent a certified letter from John Harrison, program specialist with the Florida WIC Program. Respondent was advised that the charges on WIC checks deposited by his store had been exceeding the average for Hillsborough County stores by more than two dollars per check. The letter stated that vendors must charge competitive prices for WIC foods and stated that the prices charged by respondent had not been competitive. The letter specifically reminded respondent of the WIC Program requirement that a check may only be written for the total shelf price of the foods received by the customer. The letter informed respondent that his failure to comply with these or other requirements could result in the disqualification of his store for up to three years. In August of 1985, Mr. Harrison, who was the Senior Compliance Specialist for the WIC Program, received a call from the local agency indicating that there might be a problem with Sunrise Groceries. Further, a computer printout of September 17, 1985, showed that the average check redeemed by Sunrise Groceries was $2.70 over the average check redeemed in Hillsborough County for the same food. Mr. Harrison therefore made the decision to monitor Sunrise Groceries by using HRS investigators posing as clients. The investigators' checks were specially marked and issued for monitoring purposes. Checks were issued to four different investigators who made 14 purchases between the dates of September 20, 1985 and October 8, 1985. The monitoring of vendor stores is performed by each HRS investigator in substantially the same manner. The investigator goes into the store, purchases certain food items with a WIC check, and notes the amount that is written by the cashier on the check. After leaving the store, the investigator records the actual shelf price of each item purchased. The shelf price is the price that is stamped or placed on the item. Each investigator prepares a Monitoring Purchase Report for each check. The report indicates the time and date of purchase and the check used. The report lists the food prescription, the actual items purchased, the shelf prices for those items, and the amount of check. The investigator also records any other observations. Monitoring Purchase Reports are form reports that are routinely prepared by agency investigators in the course of their duties. Investigators Lenore Brantley and Sandy Kirkover testified at the hearing. Ms. Brantley made purchases at Sunrise Groceries on October 2, October 7, and October 8, 1985. On October 2, Ms. Brantley purchased items with a shelf price of $15.50. The amount written on the check was $17.72. On October 7, 1985, Ms. Brantley purchased items that had a shelf price of $13.01. The amount written on the check was $13.56. On October 8, 1985, Ms. Brantley purchased items with a shelf price of $4.16. The amount the cashier wrote on the check was $4.77. Ms. Kirkover visited Sunrise Groceries on September 20, September 25, and September 30, 1985. On September 20, 1985, Ms. Kirkover purchased items totaling $15.65. The amount written on the check was $16.27. On September 25, 1985, Ms. Kirkover indicated that the shelf price of the items purchased was $13.37 and the amount of the check was $13.51. She stated that the shelf price of the cheese was $3.05 a pound but that the cashier rang up $3.19 for the cheese. However, Ms. Brantley's report of October 7, 1985, indicates that the cheese actually cost $3.19. Thus, the amount written on the check was correct. On September 30, 1985, Ms. Kirkover purchased items with a shelf price of $4.15, and the cashier wrote on the check $4.15. Two of the monitoring purchase reports filled out by Ms. Grooms were accompanied by receipts for the groceries purchased with that check. Ms. Grooms used two checks for purchasing items at the same time on October 7, 1985. One check was used to purchase a gallon of whole milk and a half-gallon of milk. The receipt reflects the correct shelf price of those items, $4.16. The check, however, was filled-out for $4.71, which would have been the correct price if three half-gallons of milk had been purchased. The other check was for a variety of items, including a gallon and a half of milk. Ms. Grooms purchased one full gallon and one half-gallon. However, the receipt reveals that she was charged for three half-gallons. Further, the receipt shows the total for the purchases of $13.59, yet the check was written for $13.99. From the evidence presented, it is apparent that WIC checks filled out by respondent, or his employees, do not always reflect the actual shelf price of the food purchased. Indeed, from the evidence presented, it is quite clear that overcharging was the rule rather than the exception. Further, in certain cases the overcharging followed the same pattern, indicating that the overcharging was not a result of merely making an error on the price but was intentional. For example, it appeared to be a routine practice for respondent to charge for three half-gallons of milk, when a one gallon and a half-gallon were purchased, resulting in a 55-cent overcharge on each occasion. Mr. Daa's blamed most of the errors on a female cashier who worked for him for about two months. However, two of the three times Ms. Brantley purchased groceries, the cashier was a male. Several of the other reports also indicate that the cashier was a male. On December 4, 1985, respondent received a letter dated November 27, 1985, from petitioner proposing to disqualify respondent from the WIC Program for a period of three years effective January 1, 1986. The letter states that the proposed disqualification "is due to overcharges on WIC checks." No specific factual allegations were made by petitioner in the letter. Sunrise Groceries is a small business operating as a convenience grocery store in an area predominantly inhabited by persons of low income and poverty. The action proposed by petitioner will affect respondent's substantial interests by curtailing his ability to operate his small business. In HRS Manual No. 150-24, dated May 1, 1983, the consequences of vendor abuse are set forth. Section 15-17(a)(4) provides as follows: Vendors will be suspended/disqualified from the WIC Program for a period of not less than one (1) month and not more than three (3) years for: * * * (c) charging the participants more for supplemental foods than other customers are charged for the same foods. Attachment 3 to Chapter 15 sets forth the periods of disqualification to be imposed by HRS as follows: The periods of disqualification set forth below will be imposed by the State Agency in response to documented cases of Program abuse by vendors; i.e., violations of WIC Program rules and requirements which constitute a breach of the WIC Vendor Agreement. The period of disqualification will depend upon such considerations as the nature and extent of the violations, previous efforts to promote compliance, and hardships for participants that may result from the disqualification of a vendor. * * * Maximum Maximum 1st Number of Addi- Period of Violation Offense tional Offenses Disqualification *** *** *** *** Charging Warning 2 1 year WIC Parti- cipants more than the shelf prices of food *** *** *** *** HRS Manual No. 150-24A, dated January 24, 1986, revised the periods of disqualification. Attachment 3 to Chapter 15 states: The periods of disqualification set forth below may be imposed by the State Agency in response to documented cases of program abuse by vendors.... The actual period of disqualification will depend upon such considerations as the nature and extent of the violations, previous efforts to promote compliance, and hardships for participants that may result from the disqualification of a vendor. Period of Violation Disqualification *** *** Charging WIC participants more than the 3 years shelf price of food No specific evidence was presented at the hearing as to whether the disqualification of respondent from the WIC Program would create hardships for participants in the program. However, the WIC check computer print-out entered into evidence established that respondent does a substantial business with program participants. By November 15, 1985, respondent had cashed over 2,000 WIC checks in 1985.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent has charged the state more for supplemental foods than charged other customers, in that the amounts respondent filled-in on WIC checks were greater than the shelf price of the foods purchased, and warning respondent that any future violations could result in respondent's disqualification as a vendor in the WIC Program. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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. 86-0802 Rulings on Petitioner's proposed findings of fact: Accepted generally. Accepted to the degree specified in the order. Accepted that respondent was advised that failure to comply with program requirements could result in disqualification. Respondent was also advised of the sanctions set forth in Manual 150-24. Accepted that overcharges were made on WIC checks as charged. Rejected. Federal regulations require the state to set policies determining the sanctions to be imposed. Rejected. The policy allowing for disqualification for a first offense did not go into effect until 1986. Rulings on Respondent's proposed findings of fact: Not a finding of fact, but facts stipulated to by the parties have been accepted. Rejected by contrary findings and as not supported by the evidence presented. Accepted. Accepted in that there was no finding made that respondent had ever been charged with "overcharging" prior to the instant case. Rejected in that the HRS manuals introduced into evidence established HRS' policy. Rejected to the degree it suggests that respondent has committed no act which would subject him to sanctions. COPIES FURNISHED: Fredrick P. Wilk, Esquire District VI Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 Paul S. Buchmann, Esquire 212 North Collins Street Plant City, Florida 33566 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Appellant, Nostimo, Inc. (Nostimo), owns lots 8, 9, 10 and 11, Block 8, revised plat, in a Clearwater Beach subdivision located at 32 Bay Esplanade, Clearwater, Florida. Appellant, Pick Kwik Food Stores, Inc. (Pick Kwik), operates a Pick Kwik convenience store at the location. The subject Pick Kwik store is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City of Clearwater and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. Mandalay narrows from four to two lanes just south of the subject location. From the point at which it narrows to two lanes, Mandalay furnishes the only access to the primarily residential neighborhoods to the north. Bay Esplanade is a much shorter street that runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. Before the Pick Kwik store began to do business at the location, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on- and off-premises consumption of alcohol. The lounge did not generate substantial numbers of customers and associated traffic. It was very small, and a congregation of four or five customers at any one time was a large crowd. In general terms, the location is surrounded by mixed uses, including a 7 rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. In addition to a number of commercial establishments within the immediate area, there are tennis courts, a parking area, community boat ramp, soccer field, playground and public park. In the area, there are apartments, rental units and condominiums, including some directly behind the subject location. There is a church a block away, and there is a playground next to the church that is used by area young people, many of whom use bicycles as their means of transportation. On April 25, 1989, Nostimo and Pick Kwik applied for a conditional use permit to sell beer and wine, for off-premises consumption, at the location. The application was heard at a meeting of the City of Clearwater Planning and Zoning Board (the Board) on June 14, 1989. The Board denied the application, and Nostimo and Pick Kwik appealed under Section 137.013 of the Clearwater Land Development Code (the Code). The appeal was heard by a Division of Administrative Hearings Hearing Officer, who entered a Final Order on October 9, 1989, upholding the denial. The Hearing Officer found in his Final Order in part: At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick [sic] convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick [sic] store and a former employee of the 7 when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). On November 7, 1989, Nostimo and Pick Kwik filed a two-count complaint in circuit court: Count I, a petition for common law certiorari review of the Hearing Officer's decision; and Count II, attacking the constitutionality of Section 137.011(d)(6) of the Code. On November 19, 1990, the circuit court entered orders (1) denying the petition for common law certiorari and (2) granting a motion to dismiss Count II. It was represented that a Final Judgment of Dismissal, addressed to Count II, was entered on March 22, 1991, and that Nostimo and Pick Kwik appealed the final judgment to the District Court of Appeal, Second District of Florida, where it remains pending. On April 16, 1991, Nostimo and Pick Kwik filed another application for a conditional use permit to sell beer and wine, for off-premises consumption, at the 32 Bay Esplanade location. The application is identical to the one filed on April 25, 1989, except in one respect: the second application provides that sales of alcoholic beverages at the location would not begin until 9:00 a.m., whereas the April 25, 1989, application was for a permit to begin sales of alcoholic beverages at the location at 8:00 a.m., as authorized by local ordinance. During the staff review of the April 16, 1991, application, the applicants also offered to agree to other conditions or restrictions in response to staff concerns: (1) the applicants would provide a security guard to patrol its three Clearwater Beach establishments between the hours of 8:00 p.m. and 2:00 a.m. on Friday and Saturday nights, with monitoring reports submitted to the City Planning and Development Department not less than quarterly; 2/ (2) the applicants would obtain the requisite alcoholic beverage separation distance variance from the City Commission; 3/ (3) the applicants would obtain the requisite occupational license within six months of the date of the public hearing on the application; and (4) the applicants would restrict the hours of operations for alcoholic beverage sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. until 12:00 midnight on Sunday. At the Board hearing, the human resources manager for Pick Kwik outlined Pick Kwik's procedures and guidelines for the sale of alcohol. There is a policy manual in each store as well as a handbook provided to each employee outlining the procedures to be followed regarding the sale of alcohol, including procedures to prevent sales to minors and disciplinary action if the procedures are not followed. All employees also attend an orientation which includes responsible vendor training. These policies are enforced by Pick Kwik through monthly inspections. There are 17 existing establishments fronting on Mandalay Avenue that sell alcoholic beverages. Just three are north of Bay Esplanade, including the 7 There are another three establishments selling alcoholic beverages south of Bay Esplanade fronting on streets other than Mandalay. There also is one fronting on Bay Esplanade. There is one restaurant on Mandalay north of Bay Esplanade that has a pending application for a permit to sell alcoholic beverages. At the Board hearing on the April 16, 1991, application, held on July 30, 1991, opponents of the application introduced in evidence the record of the hearing held on June 14, 1989, on the April 25, 1989, application filed by Nostimo and Pick Kwik. Included in the record of the prior hearing was the testimony of Lt. Palumbo, who expressed concerns about increased traffic, loitering and rowdy behavior if the conditional use permit were issued. Opponents of the application also introduced in evidence at the Board hearing the Final Order entered by the Hearing Officer in the prior proceeding. See Finding of Fact 6, above. The Board considered the record of the prior proceeding in evaluating the April 16, 1991, application. But the Final Order in the previous proceeding seemed to be based on a misapprehension that the Pick Kwik store would be open for the sale of beer and wine 24 hours a day. See Finding of Fact 6, above. In addition, given the existance of the 7 street, the evidence presented in the hearing on the April 16, 1991, application put in perspective Lt. Palumbo's testimony that allowing the sale of beer and wine at the Pick Kwik would "generate larger volumes of traffic and customers, particularly during the evening hours" and would "have a negative impact on 'community services' by placing a greater demand on police resources." At the Board hearing, the staff of the City Planning and Development Department recommended approval. 4/ The City's Planner, Scott Shuford, testified that traffic no longer was considered to be a substantial problem. The City Traffic Engineer did not anticipate a substantial increase in traffic as a result of granting the application. The traffic experts had difficulty differentiating between a convenience store selling beer and wine, and one that does not, primarily because they were unaware of any other convenience store that does not sell beer and wine. But the evidence was clear that, since the 7 and wine across the street from the Pick Kwik location, there would be only a slight increase in traffic resulting from selling beer and wine at the Pick Kwik location. Two convenience stores located across the street from one another generally share the available business in the market area. The addition of a store across the street from an existing store would be expected to generate perhaps 12 percent more aggregate revenue. (This approximates the new store's capture of the "leakage" that resulted when potential customers driving on the opposite side of the street chose to bypass the preexisting store.) Beer and wine sales make up approximately 7 to 8 percent of a convenience store's gross revenue. Assuming that two stores across the street from each other also would generate 12 percent more aggregate revenue from the sale of beer and wine than a single store, and also assuming that the percentage of additional gross revenue represents additional trips to one of the two stores, the impact of allowing the sale of beer and wine at the Pick Kwik location would be 7 to 8 percent (representing the beer and wine percentage of gross revenue) of 12 percent (representing the aggregate increase in gross revenue from adding a convenience store across the street from another one), or between 0.84 and 0.96 percent, at most. The staff's recommendation to grant the April 16, 1991, application was subject to the addition of a fifth condition or restriction prohibiting sales of single containers of alcoholic beverages (other than bottles of beer and wine containing less than 750 ml). The evidence was clear that this condition would present enforcement problems. In addition, imposition of this condition or restriction at Pick Kwik without imposing the same condition or restriction at the 7 contrary, it might increase traffic problems as a result of customers wanting to buy single containers at the Pick Kwik subsequently crossing the street to make the purchase at the 7 On the other hand, tying the duration of the conditional use benefitting the Pick Kwik location to the duration of the conditional use benefitting the 7 proceeding that implementation of Section 137.011 of the Code will result inexorably in an increase in the number of establishments selling beer and wine, for off-premises consumption, in Clearwater Beach and, particularly in the north end of the Beach. This would result, at an appropriate future date, in the simultaneous consideration of the compatibility of the sale of beer and wine at both the Pick Kwik and the 7 condition or restriction.
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 The issue is whether Respondent S & G Sales, Inc., owes money to Petitioner in connection with the purchase of agricultural products.
Findings Of Fact Petitioner produces agricultural products in Naples, Florida. Petitioner and Respondent S & G Sales, Inc. (Respondent) entered into an agreement in which Respondent would market Petitioner's pickles for the best available price. However, the agreement did not require Respondent to sell the pickles only for market price. The agreement required only that Respondent use its best efforts in marketing the pickles. In April and May 1998, Petitioner delivered to Respondent numerous shipments of pickles pursuant to the parties' agreement. Quality and sizing problems in the pickles prevented Respondent from being able to obtain market price. Pickles are perishable. They can go from acceptable quality to rotten in as little as two days. Respondent's representative weekly informed Petitioner's representative of the below-market prices that he was obtaining for the pickles. The record is somewhat confusing because Petitioner seeks additional payment for some, but not all, shipments of pickles, and Respondent made periodic advances for all the pickle shipments plus shipments of squash also. However, the evidence is clear that Respondent was required to get only the best available price and, due to quality and size problems did so. The evidence is also clear that Respondent paid at least as much as it owed Petitioner for the pickle shipments covered in the present claim.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 25th day of January, 1999, 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 (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 25th day of January, 1999. COPIES FURNISHED: Mr. Joseph Monahan New York Surety Company 123 William Street New York, New York 10038-3804 Juan Tello Qualified Representative Tello Farms, Inc. Post Office Box 8154 Naples, Florida 34101-8154 Carolann A. Swanson Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, Florida 33901 Honorable Bob Crawford Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
