The Issue Whether Petitioner violated provisions of Chapter 500, Florida Statutes the Florida Food Safety Act, and Chapter 5K-4, Florida Administrative Code, on April 28, May 12 and May 25, 1995 and if so, whether an administrative fine should be imposed for those violations.
Findings Of Fact Petitioner Dunkin Donuts is a retail bakery located at 2025 West New Haven Avenue, West Melbourne, Brevard County, Florida, and had a valid food permit during the relevant time period. Respondent, Department of Agriculture and Consumer Services, is charged with the administration and enforcement of Chapter 500, Florida Statutes, the Florida Food Safety Act, and the rules promulgated thereunder relating to food safety and the selling of food to the consuming public. Following a complaint by a consumer, Respondent's food safety inspectors conducted food safety inspections at Petitioner's place of business on four occasions. On inspections conducted on April 28, 1995, May 12, 1995, and May 25, 1995, Petitioner received an overall rating of "poor". Not until the fourth inspection which was conducted on June 8, 1995, did Petitioner receive an overall rating of "good". On April 28, 1995, an inspection determined that Petitioner held food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: food products improperly stored on the floor of the walk-in freezer; old dried food product spillage on the floor of the walk-in cooler, freezer and storeroom; unpackaged food product left uncovered in the storeroom; shell eggs improperly stored at internal temperature in excess of 60 degrees F.; employees without proper hair restraints; grease build up in several locations; unsealed wood table used for mixer; handwash sink inaccessible to employees. On May 12, 1995, a re-inspection determined that a few of the prior violations had been corrected. However, Petitioner continued to hold food items in an unsanitary environment and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; employees without proper hair restraints; improper use of pest strip in storeroom; no soap or hand drying device provided for employees; paint brush improperly used as pastry brush; cardboard improperly used as shelf liner and floor mats; and wiping cloths failed to be stored in sanitizing solution. On May 25, 1995, a re-inspection determined that several prior violations had not been corrected. Petitioner continued to hold food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; cardboard improperly used as shelf liner; improper use of pest strip; failure to provide soap or hand drying device in processing area; employees without hair restraints ; improper storage of equipment; wiping cloths failed to be stored in sanitizing solution; and failure to cover dumpster. Mr. Ornelas argues that he and his family and several employees operate the facility in an acceptable manner. They work long hard hours. They are baking donuts all the time and do not have time to keep the premises as clean as the inspectors insist. However, they do not offer unsanitary food to the consuming public, and the cited violations were eventually corrected; therefore, Petitioner should not be subjected to the payment of a fine, according to Mr. Ornelas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner be found guilty of numerous violations of the Florida Food Safety Act, on April 28, May 12 and May 25, 1995, and that final order be entered assessing an administrative fine in the amount of $2,000.00 against Petitioner. DONE and ENTERED this 9th day of January, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 9th day of January, 1996. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4 Rejected as subsumed or a comment on the evidence: paragraph 5. COPIES FURNISHED: Manuel Ornelas Officer and Director Dunkin Donuts 2025 West New Haven West Melbourne, Florida 32904 Linton B. Eason, Esquire Office of the General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910
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 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 is whether Respondent committed the violations alleged in the Administrative Complaint dated January 4, 2006, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following findings of fact are made: At all relevant times, the Division is the state agency responsible for licensing, regulating, and inspecting public food service establishments. With particular relevance to this case, it is the Division's responsibility to establish and enforce rules pertaining to sanitation and public health and safety in accordance with relevant provisions of the Florida Statutes; to ensure compliance with its rules; and to impose discipline in appropriate circumstances. At all relevant times, Pepe's was licensed by the Division as a public food service establishment under license number 1616814; was located at 41 Northeast 44th Street in Ft. Lauderdale, Florida 33060; and was operated and owned by Joseph Trujillo. At all relevant times, Michele Lynn Schneider (Ms. Schneider) was employed by the Division as a sanitation and safety inspector. Ms. Schneider's duties include conducting inspections of Division licensees, including Pepe's. On or about November 16, 2005, Ms. Schneider conducted a routine inspection of Pepe's. Based upon her inspection she documented various sanitation and safety violations and issued a written warning to Pepe's which directed that the violations be remedied within 30 days. On December 22, 2005, Ms. Schneider returned to Pepe's to conduct a re-inspection. Her re-inspection revealed that violations documented at the time of the re-inspection had not been remedied. Violations observed by Ms. Schneider at both the inspection and the re-inspection were "critical" in that they are more likely than other violations to pose an immediate threat to public health or safety. The violations observed and documented by Ms. Schneider at the inspection and again at the re-inspection were: Violation 08A-28-1, based upon Ms. Schneider's observation that food was stored five inches above the floor. Food stored less than six inches above the floor is at risk of contamination. Violation 10-8-1, based upon Ms. Schneider's observation of an ice scoop handle in contact with ice in an ice storage container. Utensil handles such as scoop handles which come in contact with employees' hands and are then placed in food or other consumables pose a risk of cross- contamination. Violation 12A-03, based upon Ms. Schneider's observation that employees failed to wash their hands in between changing food preparation tasks and/or between handling food and handling money or other non-sanitary items. Failure to wash hands between such tasks poses a risk of cross-contamination. Violation 31-07-1, based upon Ms. Schneider's observation that there was no dedicated hand washing sink in the dishwashing area. To avoid risk of cross- contamination, handwashing sinks must be located in the dishwashing area and must be used strictly for handwashing. Sinks used for multiple purposes pose a risk of cross- contamination. Violation 31-08-1, based upon Ms. Schneider's observation that there was no hand washing sink in the food preparation area. To avoid risk of cross-contamination, handwashing sinks must be located in the immediate vicinity of the food preparation area. Violation 12B-03, based upon Ms. Schneider's observation of an employee drinking from an open beverage container in a food preparation area. Ms. Schneider later observed the same beverage container next to kitchen utensils. Should the drink spill and the contents come in contact with food or utensils, cross-contamination may occur. Ms. Schneider was the only witness at the hearing. Her testimony with regard to the material allegations of the Administrative Complaint was credible, and was unrebutted by Pepe's.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a final order finding the violations described and imposing an administrative fine on Pepe's in the amount of $5,500, due and payable on terms prescribed by the Division; and requiring the owner and/or manager of Pepe's to attend, at the licensee's expense, an educational program sponsored by the Hospitality Education Program or other educational program approved by the Division, within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 September, 2006.
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
