The Issue The issues are whether Respondent violated Section 509.032(6), Florida Statutes (2005), by violating Sections 3- 501.16(A), 3-501.13, and 6-501.111, of the Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, incorporated by Chapter 61C, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact At all times material here, Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, held a Permanent Food Service License No. 2612694. The current license expires June 1, 2007. Beaches Seafood Kitchen, Inc., has been a Florida for- profit corporation since October 1997. According the records of the Florida Department of State, Division of Corporations, the address of Beaches Seafood Kitchen, Inc. was changed to 203 Oceanfront, Neptune Beach, Florida, 32266, on May 4, 2005. Rebecca Darlington is the Registered Agent and a director of the business. On April 18, 2006, Louis Stuart, Jr. was added as an officer of the business. On February 15, 2006, Rebecca Darlington filed a change of ownership application with Petitioner for License No. 2612694. The application indicates that the mailing address for Rebecca Darlington, as owner, is 203 Oceanfront, Neptune Beach, Florida 32266. That address is the "address of record" for purpose of official communication from Petitioner. The application, signed by Rebecca Darlington, states that the establishment, Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, has its primary commissary address for mobile food dispensing vehicles or hot dog carts at 225 Tallyrand Avenue, Jacksonville, Florida 32202. On April 7, 2006, Petitioner's staff inspected Respondent's temporary food service operation at the April 2006 festival from 3:00 to 4:00 p.m. The food service inspection report indicates that the owner is Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, 225 Tallyrand, Jacksonville, Florida 32202. The report references 2612694 as the control number. The April 2006 inspection report cited Respondent with 11 violations, six of which were of critical concern. Violations of critical concern are more likely to cause illness due to food borne diseases than violations which are not critical. One of the most serious violations involved the temperature of raw fish and shrimp at 70 and 54 degrees Fahrenheit respectively. The April 2006 inspection resulted in a warning that the violations had to be corrected the next morning, April 9, 2006, by 9:00 a.m. Rebecca Darlington signed the April 2006 inspection report as owner. Her signature acknowledged receipt of the inspection form and attached comments. Petitioner's staff re-inspected Respondent's food service operation on April 8, 2006, from 11:05 a.m. to 11:25 a.m. The call back/re-inspection report indicates that Respondent had corrected all violations. The three-day event beginning April 7, 2006, did not require a special food service license. However, the four-day event beginning May 4, 2006, required vendors to apply for a special temporary food service license and to pay an application fee. Prior to the May 2006 food festival, Steve Vonbodungen, Petitioner's District Manager, met with Petitioner's inspectors to review the inspection process. During that meeting, Steve Vonbodugen advised the inspectors to inspect for sanitation, safety, and licensure as usual. In regards to Respondent, Steve Vonbodugen gave the inspectors special instructions because he was aware of Respondent's critical violations at the April 2006 festival. Steve Vonbodugen advised the inspectors to issue an immediate administrative complaint against Respondent if the inspectors observed repeat critical violations in Respondent's operation. Steve Vonbodugen would have given the same special instruction for any vendor that he knew had prior critical violations at the April 2006 food event. However, Steve Vonbodugen was not aware of any other vendor at the May 2006 event that had been cited with critical violations at the April 2006 event. There is no evidence that Petitioner's inspectors discriminated against Respondent by targeting Respondent and failing to target similarly situated vendors. Louis Stuart, Jr., helped Respondent's employees set up for the World of Nations festival on May 3, 2006. On the morning of May 4, 2006, Rebecca Darlington was at the site with a money order to pay the license application fee. While Respondents employees were preparing to serve food, one of Petitioner's inspectors came by Respondent's booth and gave Rebecca Darlington an application form. The inspector told Rebecca Darlington that an inspector would return to the booth to take the completed application and the fee and to perform the required inspection. The first day of the World of Nations festival, May 4, 2006, was primarily for the benefit of school children. School buses with students from the surrounding area began arriving after 9:00 a.m. Each teacher had discretion as to when the students were supposed to return to their school on the buses. The festival was scheduled to last until 2:00 p.m. Sometime before 1:30 p.m., Rebecca Darlington discovered roaches crawling on plastic-lined bags of french- fries in a cooler. Rebecca Darlington left the food event to buy a spray insecticide. Rebecca Darlington was spraying the insecticide on the roaches that were crawling on the bags of french-fries when John Phelan and Janet D'Antonio returned to inspect Respondent's operation at 1:30 p.m. Respondent's food service operation was still in operation when the inspectors arrived. Although many students had left the festival, there continued to be people milling around the grounds. Respondent had prepared food on display for sale. Testimony that Petitioner unfairly targeted Respondent, and not other similarly situated vendors by waiting until Respondent stopped serving food to perform the inspection, is not credible. One of the inspectors directed Rebecca Darlington to discard the contaminated bags of french-fries. She complied with this request, telling one of the inspectors that the roaches could have come from Respondent's trailer. Finding roaches in the cooler was a critical violation of the Food Code. Roaches are an imminent health hazard because they spread disease. The inspectors also observed raw fish thawing in standing water with a temperature of 78 degrees Fahrenheit. This observation constituted two violations. First, it was a critical violation because bacteria grows in food held at temperatures warmer than 41 degrees Fahrenheit. Second, thawing fish in standing water is an improper thawing procedure. Fish may be thawed in a refrigerator. Completely submerged fish also may be thawed in flowing water if not allowed to register more than 41 degrees Fahrenheit for more than four hours. If a vendor does not have access to a tank to collect the gray water flowing over the fish, the vendor should thaw the fish using an alternate appropriate method. The City of Jacksonville has rules that prohibit vendors from spilling, dumping, or running gray water on the ground during any food service event. Gray water is water in which frozen foods are thawed. It is a health hazard for gray water to run on the ground. Petitioner's inspector John Phelan issued Respondent a Stop Sale Order, referencing control number 2612694, due to the live roaches in the cooler with the bags of french-fries which were contaminated with insecticide. The order states the owner of the operation was Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, located at 225 Tallyrand Avenue, Jacksonville, Florida. Rebecca Darlington signed the order, acknowledging its receipt. John Phelan also issued a food service inspection report on May 4, 2006. The report states that the owner was Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, located at 225 Tallyrand Avenue, Jacksonville, Florida 32202. The report referenced control number 2612694. The May 4, 2006, inspection report cited Respondent with seven violations, some of which were violations of critical concern. The critical violations included the following: (a) raw fish at 78 degrees Fahrenheit; (b) 20 to 30 live roaches crawling on bags of french-fries in chest freezer; (c) empty chest freezer with approximately 50 live roaches inside; (d) and five cases of french-fries in bags sprayed with insect spray while in freezer. Rebecca Darlington signed the May 4, 2006, food inspection report as Respondent's owner. Sometime during the inspection, John Phelan spoke to Louis Stuart, Jr., on the telephone. Louis Stuart, Jr. wanted to know why Respondent was being shut down. Louis Stuart, Jr., denied that the roaches could have originated in his trailer because all of his trailers are fumigated after every operation. A representative of the event sponsor, the City of Jacksonville, was present during the inspection. The City of Jacksonville requested that Respondent leave the premises and not return for the duration of the event. Petitioner never accepted Respondent's application and application fee for the special temporary food service license. Petitioner never issued Respondent the special license. Respondent's booth was located in the area of the park reserved for vendors serving food typical of the United States of America. During the hearing, Respondent presented testimony that the roaches may have invaded its booth from a dumpster and/or trash compactor located on the other side of a fence behind Respondent's operations. The greater weight of the evidence indicates that there was no dumpster or trash compactor at that location. Instead, there was a sealed grease receptacle and a grey water tank on the other side of the fence. In front of the grease receptacle and the grey water tank was a booth for another country facing the opposite direction. As of August 16, 2006, Petitioner's official records indicate that the address for Beaches Seafood Kitchen, Inc., d/b/a JAX Beach Seafood, License No. 2612694, is 225 Talleyrand Avenue, Jacksonville, Florida 32202. The contact person is listed as Rebecca Darlington. On August 30, 2006, Rebecca Darlington filed an application for registration of fictitious name with the Florida Secretary of State. The fictitious name was JAX Beach Seafood, with a mailing address at 203 Oceanfront, Neptune Beach, Florida 32266. The application states that Rebecca Darlington, at the same address, would be the owner of the fictitious name. The Florida Secretary of State granted the request, issuing Registration No. GO6242700034 for the name.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, requiring Respondent to pay an administrative penalty in the amount of $3000.00, within 30 calendar days of the date that this Recommended Order is filed with Petitioner's Clerk, and requiring Respondent to attend an hospitality education program as prescribed by Petitioner. DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 1st day of February, 2007. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Al Millar, Esquire Al Millar, Attorney 4627 Ocean Street Mayport, Florida 32233 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent was operating a public food service establishment without a license, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant hereto, Green was operating a mobile food service vehicle at the corner of Hogan Street and West Union Street (the “Site”) in Jacksonville, Florida. By his own admission, Green did not possess a food service license from the State of Florida. The Division is the state agency responsible for the licensing and regulation of public food service establishments, pursuant to chapter 509, Florida Statutes. On Tuesday, April 1, 2014, food inspector Huckaba was conducting a callback inspection of a restaurant in the downtown Jacksonville, Florida, area. As he was leaving a food service establishment, he noticed a mobile food service establishment (the “Food Trailer”) at the Site. Huckaba observed Mr. Green preparing food--a hotdog--and serving it to a customer; the customer paid for the food with cash. Huckaba noticed there was not a valid food service license posted on the Food Trailer. When asked by Huckaba, Green stated that he did not have such a license. On the next day, April 2, Huckaba and his supervisor, Fielder, revisited the Site for the purpose of determining whether Green had a valid license to operate the Food Trailer and whether the establishment was being operated in accordance with provisions of Florida law and rules. It was again determined that Green did not have a license to operate the Food Trailer. Upon further inspection, Huckaba determined that the following food service violations existed (with corresponding sections from the U.S. Public Health Service/FDA Food Code, a description of the violation, and the level of violation): 08B-38-4 Food stored on the floor--Basic 12A-07-4 Employee failed to wash hands before putting on gloves to work with food--High 28-10-4 Sewage holding tank less than 15% larger in capacity than water supply--Basic 31A-03-4 Handwash sink not accessible for employee due to items stored in sink-- Intermediate 31B-04-4 No handwashing sign provided at sink used by employees--Basic 50-08-4 Operating without a license--High 51-10-4 Interference/obstruction with inspector’s right to entry--Intermediate Huckaba issued a Food Service Inspection Report setting forth his findings. Green did not sign the report but was furnished a copy. The report was assigned “license number” D05- 04-26; and a “rank”--MFDV. D05 is the designation for district 5, i.e., Jacksonville. 04 is inspector Huckaba’s area number. 26 is the designation for Duval County. MFDV stands for mobile food dispensing vehicle. The Division then conducted a search of its data base for the purpose of determining whether a food service license had ever been issued to Clinton Green. No such license was discovered. The Division thereafter issued an Administrative Complaint, precipitating the instant matter. The Administrative Complaint cited Green for operating a food service establishment without a license and for the other enumerated violations set forth above. (No evidence was presented at final hearing as to the issues other than the failure to have a license; the other issues are not addressed further in this Recommended Order.) At the final hearing held in this case, Green readily admitted that he did not hold a license issued by the State of Florida for operating a public food service establishment. Due to that admission, there is no disputed issue of material fact to be considered by the undersigned. However, inasmuch as the hearing was conducted and evidence was taken, it is appropriate to set out Green’s stated justification, rationale, and bases for his actions before applying the law to the undisputed facts. Rationale for not having a license Green says he is a human being and is entitled to provide for his family and work as he sees fit. This is a God- given right, he asserts, that cannot be restricted by man. The State of Florida is the only “entity” which can require Green to have a license. However, Green believes the State is a nebulous, ephemeral “thing” that does not actually exist. He claims the so-called agents of the State are not the State, per se, thus their words have no force or effect. Green issued affidavits to an agent of the State (Steve Budungen, district manager of the Division) in 2008 setting forth his beliefs about licensure, State actions, etc. In the affidavits, Green demanded certain documents and information from Budungen. Inasmuch as Budungen did not respond to his affidavits, Green believes that his statements therein have the force and effect of law and are “the truth.” As support for Green’s position vis-à-vis the affidavits, he cites to Morris v. National Cash Register, 44 S.W.2d 433, 434 (Ct. Civ. App. Tex. 1931). That case, while it does address an affidavit attached to a motion to vacate a judgment, does not stand for the proposition alleged by Green, i.e., that once an affiant makes a statement, it becomes the truth for all purposes. Green’s reading of the law is flawed. Green also asserts that U.S. v. Tweel, 550 F.2d 297 (5th Cir. 1977), stands for the proposition that “Silence can only be equated with fraud when there is a legal and moral duty to speak, or when inquiry left unanswered would be intentionally misleading.” Green did not explain why this proposition was relevant to the facts of the instant case. The Tweel case had to do with the Internal Revenue Service intentionally withholding from the plaintiff’s lawyer the fact that plaintiff was about to undergo a criminal investigation. This intentional deception then lulled plaintiff into a false sense of security and kept him from preparing for his criminal investigation. While Green made a general allegation that the Department had “clearly been intentionally deceptive” concerning its dealings with him, he provided no evidence to support the allegation. Green also seems to suggest that he was “cunningly coerced” into waiving his right to due process, citing U.S. v Minker, 350 U.S. 179 (1956). There is no support in the record to support Green’s allegation of coercion and it is not relevant to the facts of this case. The holding in the Minker case is not dispositive of any issue in the instant matter. Green states that he is not a chattel to be used and abused by the State as it sees fit. Green says that only if the State of Florida (itself) walks up to him and says, “You need to have a license,” will he believe he has to have one. Otherwise, he doesn’t see any requirement to have a license. And since the State is a fictitious person, unable to speak, he says there is no need to have a license. Lastly, Green says that the only way he would be required to have a license to sell food from his vehicle is if he entered into a contract with the State giving the State permission to govern his actions. Besides, he asserts, the Administrative Complaint filed in this matter lists his name in all capital letters. Only corporations, he asserts, are spelled out in all capital letters; he is, conversely, a natural person. Thus, he reasons, the Administrative Complaint is invalid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500 against Respondent, Clinton Green. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2014. COPIES FURNISHED: Clinton Green 8117 Colonnade Court, West Jacksonville, Florida 32244 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 J. Yvette Pressley, Hearing Officer Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202
The Issue At issue in this proceeding is whether Respondent committed the violation alleged in the Administrative Complaint dated March 17, 2008, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent was a restaurant located at 2054 State Road 436, Suite 128, Winter Park, Florida, holding Permanent Food Service license number 5811081. On March 12, 2008, Wilfredo Goris, a Sanitation and Safety Specialist with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Goris observed 17 live roaches inside a box containing light bulbs in front of the three-compartment sink, two roaches on a water heater in the same general area as the three-compartment sink, and three dead roaches in the vicinity of the three-compartment sink. Mr. Goris showed the roaches to Carlos Nevarez, the manager of Stacked Subs, to make him aware of the problem. Mr. Goris prepared and signed an inspection report detailing his findings during the inspection. Mr. Nevarez also signed the report to indicate receipt of the inspection report. The Division advises its inspectors that all reports of pest activities should be forwarded to the Tallahassee office for review. Mr. Goris sent his inspection report to Tallahassee for a determination of how to proceed against Stacked Subs, i.e., whether to allow the restaurant to remain in operation or to suspend its license until the roach infestation is eliminated. Mr. Goris testified that the Tallahassee office decided that because the roach activity was in the kitchen area, the restaurant should be closed as a threat to public health until the facility was cleaned and sanitized. Mr. Nevarez testified that all the roaches were in a box of fluorescent light bulbs that had been brought in from a storage unit a couple of weeks earlier. The box was removed immediately after the inspection. According to Mr. Nevarez, once the box was removed, the roach problem was eliminated. To corroborate his testimony, Mr. Nevarez submitted a service report from Anteater Pest and Lawn Services, a large pest and lawn company. Anteater's technician arrived at Stacked Subs at 4 p.m. on March 12, 2008, and stayed until 5:30 p.m., inspecting the facility and treating any potential entry point for pests. Anteater's technician could find no roaches inside the restaurant. Mr. Goris returned to Stacked Subs the next day, March 13, 2008. Mr. Goris found no roaches and allowed the restaurant to reopen. Mr. Nevarez submitted photographs of the restaurant to show where Mr. Goris found the box containing the roaches. Mr. Goris viewed the photographs and agreed with Mr. Nevarez as to the location of the box. The photographs indicate that the box was placed next to a hot water heater in the very back of the restaurant, well away from the food preparation area. However, the kitchen is of a long, open galley-type construction, and there were no dividing walls between the hot water heater and the food preparation area. Therefore, the box containing the roaches was technically in the kitchen. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. Roaches are carriers of diseases, including staphylococcus. The presence of roaches in the vicinity of the food preparation area constitutes a critical violation. The Division presented no evidence of prior disciplinary action against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing a fine of $500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 11th day of September, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2008.
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
