The Issue The issues are whether Respondent is guilty of violating various provisions of the Florida Food Safety Act, Chapter 500, Florida Statutes, and Florida Administrative Code Chapter 5K-4 in its operation of a convenience store and, if so, what penalties should be imposed.
Findings Of Fact Mahmud Mizhar is the president and owner of Respondent. Respondent owns and operates the Stony Food Mart, 1665 West Martin Luther King, Jr., Boulevard, Riviera Beach. The previous owner of this convenience store employed Mr. Mizhar as a manager prior to Mr. Mizhar's purchasing the store in 2004. Mr. Mizhar does not possess a food manager's certificate. Stony Food Mart is a convenience store selling retail food products, such as groceries. The store offers limited ancillary food service, such as coffee and sliced-to-order deli meats, which may be consumed on- or off-premises. The store offers no cooking, except that customers may use an in-store microwave to cook or warm their purchases. Petitioner's inspectors typically inspect such facilities three times annually. During a routine inspection on February 6, 2007, Petitioner's Senior Sanitation Safety Specialist, Bryan Schuettler, inspected the three areas that constitute the store. These areas are the retail area, which includes a walk-in cooler, the processing area, which includes a three-compartment sink and deli, and the storage and office area, which is in the back. The inspection reports five "critical" violations. Violations are "critical" if they pose a more serious threat to food safety. The most disturbing of these violations was the inspector's discovery of a dead rat in the storage area. Mr. Mizhar tried to explain away this finding by saying that the rat had no access to the food area, but he later admitted that rats sometimes chewed holes in the bread packages, which he claimed to discard immediately upon discovery. Although this bread may be in the storage area when its wrapper is chewed, it eventually is placed in the retail area, and rats may have climbed over undamaged wrappers or chewed small holes unnoticed by Mr. Mizhar. Either the expired rat had previously visited the storage room or one or more other rats had visited this area, as evidenced by extensive rat excreta on a shelf holding opened cartons of cigarettes and coffee product and on the floor near the hot water heater. Additional evidence of a rat infestation existed along a vertical beam and a corner of the underside of the roof sheathing, both areas of which were slathered in the grease that coats the fur of a rat. These greasy trails prove long periods of rat use. The rat found by the inspector died of unknown causes. The record does not reveal the presence of traps or poison, although the inspection report states that the last visit of pest control service at the store was less than three weeks earlier, raising the possibility of rodent extermination by poison. From a human perspective, rats are dirty animals, carriers of disease, including salmonella. Rats often suffer urinary tract infections that lead to leptospiral invasions of man by aerobic spirochetes, which may cause serious kidney infections in the human host. The communicability of these parasites is facilitated by the inability of the rat to control its urine; essentially, the rat dribbles urine--and, if infected, spirochetes--constantly due to its poor bladder control--poor, that is, from a human perspective. Respondent argued that any rat problem was limited to the storage area. This appears not to be true, at least as to the bread wrappers discussed above. Rats likely have access to the retail area from the storage area. First, rats, if not over-nourished, can snake their greasy bodies through an aperture as little as one-half inch, which may be difficult, if not impossible, for Mr. Mizhar to find in his store. Second, dead rats attract carcass-feeding flies that, taking flight after their carrion feast, spread disease throughout the immediate vicinity. Undoubtedly, flies can move freely from the storage room to the retail area, at least when the door between the two areas is opened. The inspector cited the presence of the dead rat and rat infestation as a critical violation. Petitioner routinely assigns a "poor" rating to any facility that is subject to a rat infestation. For the reasons set forth above, Petitioner has amply explained the prudence and necessity of this practice. The inspector cited several more critical violations. An opened cleaning chemical, used for cleaning the store, sat next to and with food items in the processing area. Such an opened container poses serious health risks by chemical contamination of the nearby food. Also in the processing area, the inspector found opened deli meats that had not been labeled with a date. After opening, despite refrigeration, the bacterium known as listeria monocytogenes may contaminate the opened meat and render it unfit for human consumption, so a label showing a sell-by date is useful to ensure product freshness and food safety. The first of the cited critical violations in the retail area is the claimed failure of the store to maintain an employee health policy. Such a policy requires that an employee inform his or her employer if the employee contracts certain illnesses or conditions, any of which pose an unacceptable risk to food safety. However, the inspector testified uncertainly as to whether he had asked to see such a policy. At one point, he stated only that he had "probably" asked for the policy. Petitioner has thus failed to prove this violation, which, Dr. Fruin explained, has been downgraded to non-critical. However, safe-handling labels were not attached to all self-serve meat in the retail area. Repackaged raw meats were in the freezer, available for retail purchase. Likely, the original packages bore the warning of the potential for bacterial contamination and the requirements of cooking and cold holding. However, Respondent failed to attach such labels to these meats once repackaged and offered for retail sale. Mr. Mizhar spent about $20 for some paint in repairing the premises in response to the cited violations, and he has since hired a certified food manager. Respondent has not previously been disciplined. The record does not indicate any actual injury to the public from the proved violations. Nothing suggests that the violations were willful. The most serious violation, which involves the rats, followed a recent visit by an exterminator. Respondent did not gain a monetary benefit by the proved violations, as all of them were readily remediated and none of them provided Respondent with an advantage over its competition.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent guilty of three critical violations, confirming the overall rating of the Stony Food Mart as of the above-described inspection as "poor," and imposing a fine of $1500. DONE AND ENTERED this 6th day of July, 2007, in Tallahassee, Leon County, Florida. S 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 6th day of July, 2007. COPIES FURNISHED: Richard D. Tritschler, General Counsel Department of Agriculture And Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture And Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 David W. Young, Senior Attorney Office of the General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Suite 520 Tallahassee, Florida 32399-0800 Mahmud Mizhar, Qualified Representative Mahmud Mizhar, Inc. 1665 Martin Luther King, Jr., Boulevard Riviera Beach, Florida 33404
The Issue The issue in this case concerns whether the Respondent violated Sections and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following: two pig carcasses, one cow head, singed cow feet, beef lungs, and goat tripe. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following: goat feet (hide on), goat intestines, goat tripe, and beef lungs. None of the products bore marks of inspection, nor were they marked as "Not for Sale." The goat feet and beef lungs were adulterated with ingesta and were generally dirty. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993; Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.
The Issue The issue in this case concerns whether the Respondent violated Section 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate administrative fine to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 1221 Northwest 40th Avenue, Lauderhill, Florida 33313, and holds Food Permit No. 55403, pursuant to Section 500.12, Florida Statutes. On February 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 63 pounds of uninspected meat product, including cow feet, cow tails, cow head meat, goat stomachs, and beef blood. Goat stomachs may not be sold as human food under any circumstances in the State of Florida. The stomachs at issue were also adulterated with ingesta, or the contents of the stomach at the time the animal was slaughtered. Respondent purchased the meat at issue from a farmer in Avon, Florida, and had sold approximately 415 pounds of the same product to its customers prior to the Compliance Officer's inspection. 1/ At the time of Respondent's selling and offering for sale of the adulterated and uninspected meat products, Respondent's owner was aware of the illegality of his actions. By means of the Department's letter dated June 2, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of 253 pounds of uninspected goat meat. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and tuberculosis. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by selling uninspected animal products and adulterated animal products: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.
The Issue The issues concern an Administrative Complaint drawn by Petitioner against Respondent calling for the revocation of his permit to display and sell captive animals. See Section 372.921, Florida Statutes, and Rule 39-5.004, Florida Administrative Code.
Findings Of Fact For a number of years, Respondent has been permitted in Florida to keep captive wild animals for public display and sale in accordance with Section 372.921, Florida Statutes. Those animals were Class I and II animals as defined in Section 372.922, Florida Statutes, as well as unclassified animals. By species this included cougars, lions, tigers, jaguars, leopards, baboons, macaque monkeys, sheep and goats. Now, based upon the Administrative Complaint of June 18, 1991, as amended, Petitioner would revoke the existing permit issued under Section 372.921, Florida Statutes, for the period July 1, 1991 through June 30, 1992. The basis for the Administrative Complaint pertains to alleged findings of guilt for 14 charges of the inappropriate confinement of animals without sufficient food dating from March 26, 1991 and four other instances of violation of captive wildlife laws which Petitioner says Respondent is answerable for beginning in February 1978. Under the circumstances and in accordance with review criteria set in Rule 39.5004, Florida Administrative Code, speaking to the propriety of revocation, Petitioner seeks revocation. In the case of State of Florida v. Bobby Franklin Steele, No. 77-288MM, Sumter County, Florida, Respondent entered a plea of nolo contendere to maintaining wildlife in an unsafe manner and was adjudicated guilty, fined in the amount of $50 and placed on probation for 45 days. This plea was made on February 7, 1978. On that same date in Case No. 77-287MM in the same court, Respondent pled nolo contendere to failure to meet minimum requirements for captive wildlife for which he was found guilty, fined $50 and placed on probation for 45 days. These were wildlife violations within the meaning of Chapter 372, Florida Statutes, and its attendant rules of the Game and Fresh Water Fish Commission. The facts involved with those convictions pertain to Respondent's maintaining wildlife in his son's automotive mechanic and maintenance shop in cages build at one end of the building. The animals in question were cougars, tigers and monkeys. One cougar was leashed to an attachment to the wall, pipe or board, and was sitting on top of a table out of its cage when the violation was noted. This cougar in its location was considered to be unsafe for housing it in a potentially public place. The cougar is a Classs II animal. When shown an abstract from the court files of Palm Beach County, Florida, pertaining to Case No. 79-1461MM A06, unlawful confinement in cage w/ failure to maintain minimum specification, violation date February 18, 1979, and Case No. 79-1459MM AO6, charge and disposition, same as the previous case, Respondent testified that he paid a $50 fine for these violations, and that testimony is credited. He identifies that the animals in question were trained animals that he worked with on a daily basis, including "Tom Tom", a cougar, a Giben ape and a zebra. These violations pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. In the case of State of Florida v. Bobby Franklin Steele, Sr., Case No. 78-325MM, Sumter County, Florida, on February 27, 1979, Respondent pled nolo contendere to maintaining wildlife in unsanitary and unsafe conditions and was adjudged guilty and paid a fine of $49. This violation pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. In the case of State of Florida v. Bobby Franklin Steele, Case No. 87- 000917-MMA, Seminole County, Florida, Respondent pled nolo contendere, on July 6, 1987, to violation of transportation requirements for wildlife and illegal possession of wildlife in captivity. He was adjudicated guilty, given a year of supervised probation and made to pay $75 in costs. These violations related to Chapter 372, Florida Statutes, and attendant rules of the Florida Game and Fresh Water Fish Commission. Factually, Respondent was stopped while transporting a male African lion in the passenger seat of an open convertible. The lion is a Class I animal. The lion was, according to Respondent, in the automobile because a photographer from an international magazine was doing an article to include a promotional photographic shoot. The lion had a harness with a leash which was entwined through the seatbelt of the car. Such an arrangement created a potential that the animal might escape and endanger the public if he chewed through the leash and seatbelt. In 1987 in a court proceeding in Marion County, Florida, a guilty verdict was rendered against Respondent for the illegal transfer of a lion to an unlicensed person. The violation in Marion County pertained to Chapter 372, Florida Statutes, and rules of the Game and Fresh Water Fish Commission. On March 26, 1991, in the case of State of Florida v. Bobby F. Steele, Case No. 90-2292MMGF, Lake County, Florida, Respondent was convicted of 14 counts of maintaining animals without sufficient food, fined $500 and placed on one year probation. As it pertains to that series of violations in March 1991 in Lake County, Florida, the animals involved in the 14 count conviction were 9 cougars, 3 bobcats, 1 lion and 1 tiger. By observations of Captain Barry Cook, an employee for Petitioner who has wildlife experience, the animals in question were malnourished to the extent that their ribs and other bones were protruding. An inspection of Respondent's premises where the animals were being maintained revealed that there was not sufficient food for the animals to the extent of not having enough food for one animal for one day. At the time that these observations were made about the animals' condition, Respondent told Captain Cook that Respondent was doing the best he could and it was an economic management related problem that caused the lack of food. Respondent did not mention that he had food available in another location. This latter statement made by Respondent at hearing and his contention that the animals were not malnourished do not suffice. Whether food was available in another location or not fails to excuse the condition of the animals which Captain Cook, in his experience, which is credited, observed to be a condition in the animals that was only exceeded in its gravity by one other case in Captain Cook's experience. The animals in question were removed by the United States Department of Agriculture, Animal and Health Inspection Service, who were present while Captain Cook inspected the Respondent's facility in the Summer of 1990.
Recommendation Based upon the facts found and conclusions of law reached, it is hereby RECOMMENDED that a Final Order be entered which revokes the Respondent's permit to keep wild animals in captivity for purposes of display or sale. See Section 372.921, Florida Statutes. DONE and ENTERED this 12th day of November, 1991, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed facts of the parties. Petitioner's facts: 1-12, 13 except last sentence--subordinate to facts found. That sentence is rejected as hearsay, not for purposes of corroboration. 14--subordinate to facts found. 15--rejected in that no official action was taken in Pennsylvania such that a conclusion could be reached that a violation had occurred in another jurisdiction. 16--rejected as an aggravating circumstance. 17--rejected in its discussion of borderline compliance or bare compliance. Any form of compliance is acceptable. It is only the unacceptable conduct which is punishable. 18--rejected as it attempts to create some inference concerning Respondent's conduct. Respondent's facts: 1-4 and the first sentence of paragraph 5--are subordinate to facts found. The second sentence is rejected in its attempt to describe mitigation. 6--The discussion in the first sentence does not excuse Respondent's conduct. The latter discussion concerning the situation in Pennsylvania is not relevant for reasons described and discussed about proposed facts by the Petitioner. 7--The fact that an appeal is undertaken does not prohibit the use of that conviction in deciding the outcome here. 8--Revocation is a severe choice; however, it is warranted on this occasion. COPIES FURNISHED: James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600 Don Gleason, Esquire 307 Northwest 3rd Street Ocala, FL 32670 Colonel Robert M. Brantly Executive Director Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600 James Antista General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated the House of India (Restaurant), an eating establishment located in Coral Gables, Florida. Respondent is now, and was at times material to the instant case, the holder of a license issued by Petitioner (license number 2313769) authorizing it to operate the Restaurant as a public food service establishment. On the morning of September 28, 2006, Douglas Morgadanes, a Sanitation and Safety Specialist with Petitioner, conducted an inspection of the premises of the Restaurant. His inspection revealed, among other things, that there were, what he believed to be, "rodent droppings" present in the Restaurant, creating "an unsanitary condition [that] could lead to food borne illnesses" if the food served to patrons became contaminated with these droppings. Before leaving the establishment, Mr. Morgadanes advised Respondent that this "unsanitary condition" had to be corrected within 24 hours. The Restaurant closed immediately following the inspection and an extensive cleanup operation was undertaken. In addition, Respondent had "[its] pest control company," Rentokil Pest Control (Rentokil), come to the Restaurant during or around the early morning hours of September 29, 2006, to perform "follow-up" rodent control services. (Rentokil had just made a "routine service" call to the Restaurant on September 27, 2006.) Mr. Morgadanes conducted a "callback" inspection of the Restaurant on September 29, 2006. His inspection revealed that, notwithstanding Respondent's cleanup and rodent control efforts, there were, what appeared to him to be, rodent droppings4 in an unused attic area above, and "a little bit to the side" of, the Restaurant's kitchen. Respondent was unable to produce for Mr. Morgadanes during the "callback" inspection documentation reflecting that Rentokil had been to the Restaurant to provide rodent control services. Respondent subsequently sent such documentation to Mr. Morgadanes' office by facsimile transmission. The documentation for the September 29, 2006, service call (9/29 Documentation) contained the following entries under "Service Performed by Rentokil" and "Cooperation Requested from Customer": Service Performed by Rentokil: Inspected and service[d] facility for pest[s]. Found no activity. Put out glue in kitchen underneath kitchen sink around hole near the back door. Cooperation Requested from Customer: Proofing Adequate? ? Yes ? No Please fix hole underneath sink to prevent rodent harborage. Sanitation Needed? ? Yes ? No Please clean dishwashing station. These entries on the 9/29 Documentation clearly and convincingly establish that, although Respondent had done cleanup work and retained the services of Rentokil in an effort to minimize the presence of rodents in the Restaurant, it had not eliminated harborage conditions on the premises.5 After receiving the documentation from Respondent, Petitioner issued the Administrative Complaint that is the subject of the instant controversy. This was the second time in less than a year that Petitioner had charged Respondent with violating Section 6-301.14 of the Food Code. A prior charge (filed in DBPR Case No. 2005064978) had been disposed of by stipulation, the terms of which were "adopted and incorporated" in a Final Order issued by Petitioner on January 12, 2006. There was no admission or finding of guilt. The "stipulated disposition" of the charge was Respondent's payment of a fine of $500.00 and attending a hospitality education program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine of $1,000.00 and directing that Respondent attend, at its own expense, a hospitality education program. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of August, 2007.