07-001777 Department Of Agriculture And Consumer Services vs. Mahmud Mizhar, Inc., D/B/A Stony Food Mart Status: Closed Recommended Order on Friday, July 6, 2007.

Summary: Recommend a $1500 fine for Respondent, for rat infestation, failure to attach safe-use labels, and storage of cleanser near food.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-1777

)

MAHMUD MIZHAR, INC., d/b/a )

STONY FOOD MART, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on May 25, 2007.

Respondent's Director of the Division of Consumer Services,

James R. Kelly (who did not testify); Petitioner's Chief of the

Bureau of Food and Meat Inspection, Dr. John T. Fruin; and

Petitioner's counsel appeared in Tallahassee. Petitioner's Food

Safety Inspector, Bryan Schuettler; Mahamud Mizhar; and the

court reporter appeared in West Palm Beach, Florida.

APPEARANCES

For Petitioner: 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

For Respondent: Mahmud Mizhar, Qualified Representative

Mahmud Mizhar, Inc.

1665 Martin Luther King, Jr., Boulevard

Riviera Beach, Florida 33404

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

By Food Safety Inspection Report and Food Safety Inspection

Supplemental Report, both dated February 20, 2007, Petitioner

informed Respondent that, as a result of an inspection conducted

on February 6, 2007, Petitioner found several violations of the

Florida Food Safety Act, Chapter 500, Florida Statutes, and

Florida Administrative Code Chapter 5K-4. Among the cited

violations were the failure of exterior doors to self-close or

close tightly, evidence of rodents, the storage of cleaning

chemicals next to food items, the absence of a certified food

manager, the misbranding of deli meats, and the absence of a

safe-handling label on self-serve packaged meats in the drop

freezer.

At the hearing, Petitioner called two witnesses and offered

into evidence six exhibits: Petitioner Exhibits 1-6.

Respondent called one witness and offered into evidence one

exhibit: Respondent Exhibit 1. All exhibits were admitted

except Petitioner Exhibit 4, which was proffered.

The parties did not order a transcript. Petitioner filed a

Proposed Recommended Order on June 1, 2007.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2006).

16. Section 500.032(1), Florida Statutes, authorizes

Petitioner to enforce the provisions of the Food Safety Act,

Sections 500.01-500.601, Florida Statutes. Section

500.12(5)(a), Florida Statutes, extends Petitioner's

jurisdiction to food establishments with "ancillary" food

service activities, which definition covers Stony Food Mart.

17. Section 500.121(4), Florida Statutes, imposes the

burden of proof on Petitioner, which must prove the material

allegations by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern and Company, Inc. , 670 So.

2d 932 (Fla. 1996) and Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

18. Section 500.04(1), (2), (9), and (11), Florida

Statutes, provides:

The following acts and the causing thereof

within the state are prohibited:

(1) The manufacture, sale or delivery,

holding or offering for sale of any food

that is adulterated or misbranded.

(2) The adulteration or misbranding of any

food.

* * *

(9) The alteration, mutilation,

destruction, obliteration, or removal of the

whole or any part of the labeling of a food,

or the doing of any other act with respect

to a food, if such act is done while such

article is held for sale and such act

results in such article being misbranded.

* * *

(11) The alteration, mutilation,

destruction, obliteration, or removal of the

whole or any part of the labeling

information, whether in coded form or

otherwise, identifying the article's

expiration date or similar date, date of

manufacture, or manufacturing or

distribution lot or batch, if such act is

done while such article is held for sale.

19. Section 500.10(1)(f), Florida Statutes, provides that

a food is "adulterated":

If it has been produced, prepared, packed,

or held under insanitary conditions whereby

it may become contaminated with filth, or

whereby it may have been rendered diseased,

unwholesome, or injurious to health[.]

20. Section 500.11(1) provides that food is "misbranded":

(a) If its labeling is false or misleading

in any particular . . .;

* * *

(e) If in package form, unless it bears a

label containing:

1. The name and place of business of the

manufacturer, packer, or distributor;

2. An accurate statement of the quantity

of the contents in terms of weight, measure,

or numerical count; however, under this

subparagraph reasonable variations shall be

permitted, and exemptions as to small

packages shall be established, by

regulations prescribed by the department.

(f) If any word, statement, or other

information required by or under authority

of this chapter to appear on the label or

labeling is not prominently placed thereon

with such conspicuousness, as compared with

other words, statements, designs, or

devices, in the labeling, and in such terms

as to render it likely to be read and

understood by the ordinary individual under

customary conditions of purchase and use.

* * *

(p) If it is an animal product that fails

to have directly thereon or on its container

the official inspection legend as required

by the United States Department of

Agriculture and, unrestricted by any other

provision of this section, such other

information as the department requires to

ensure that it shall not have false or

misleading labeling and that the public is

informed of the manner of handling required

to maintain the product in a wholesome

condition.

21. Petitioner has incorporated various provisions of the

2001 Food Code (Food Code) and federal law into the substantive

law of Florida governing food safety. Florida Administrative

Code Rule 5K-4.002(1)(b) adopts Title 9, Code of Federal

Regulations, Part 317, and Rule 5K-4.002(4)(a) and (b) adopts

the provisions of the Food Code cited below and applies them to

food establishments under Petitioner's jurisdiction. Relevant

provisions of the Food Code and federal law are discussed below.

22. The rat problems violate Section 500.10(1)(f), Florida

Statutes. Due to the rat or rats, Respondent held food under

conditions that the food might have become contaminated with

filth, unwholesome, or even injurious to health. Florida

Administrative Code Rule 5K-4.004(4)(b) requires "[e]ffective

measures" to "protect against the contamination of food by . . .

rodents . . . ." It is unnecessary in this case to consider

whether a violation of the rule requires actual contamination of

food or whether a violation of the rule may be defended by

showing that rats persisted despite reasonable measures to

eradicate them. The statute speaks in terms of possible

contamination, and the facts of this case concerning the rat

problems clearly violate the statute prohibiting adulterated

foods.

23. The proximity of open cleanser to food also violates

Section 500.10(1)(f), Florida Statutes. This situation also

created an unacceptable risk of food contamination.

24. The failure of the opened deli meats to contain a

sell-by date is not a violation. The inclusion of sell-by dates

on meat packages is not explicitly required by the statutes

cited by the inspector in his report: Sections 500.04 and

400.11, Florida Statutes. Petitioner's Proposed Recommended

Order does not identify any authority specifically requiring the

inclusion of sell-by dates in meat labeling or re-labeling.

25. Petitioner has not adopted rules explicitly requiring

that meat labels include a sell-by date. Food Code Section

3-201.11(C) requires labeling as required by law.

26. Food Code Section 3-602.11 states:

 (A) Food packaged in a food establishment, shall be

labeled as specified in law, including 21 CFR 101 (689 KB)

- Food Labeling, and 9 CFR 317 (336 KB) Labeling, Marking

Devices, and Containers.

 (B) Label information shall include:

o (1) The common name of the food, or absent a common

name, an adequately descriptive identity statement;

o (2) If made from two or more ingredients, a list of

ingredients in descending order of predominance by

weight, including a declaration of artificial color or

flavor and chemical preservatives, if contained in the

food;

o (3) An accurate declaration of the quantity of

contents;

o (4) The name and place of business of the

manufacturer, packer, or distributor; and

o (5) Except as exempted in the Federal Food, Drug, and

Cosmetic Act § 403(Q)(3)-(5), nutrition labeling as

specified in 21 CFR 101 (689 KB) - Food Labeling and 9

CFR 317 Subpart B Nutrition Labeling.

o (6) For any salmonid fish containing canthaxanthin as

a color additive, the labeling of the bulk fish

container, including a list of ingredients, displayed

on the retail container or by other written means,

such as a counter card, that discloses the use of

canthaxanthin.

 (C) Bulk food that is available for consumer self-

dispensing shall be prominently labeled with the following

information in plain view of the consumer:

o (1) The manufacturer's or processor's label that was

provided with the food; or

o (2) A card, sign, or other method of notification

that includes the information specified under

Subparagraphs (B)(1), (2), and (5) of this section.

 (D) Bulk, unpackaged foods such as bakery products and

unpackaged foods that are portioned to consumer

specification need not be labeled if:

o (1) A health, nutrient content, or other claim is not

made;

o (2) There are no state or local laws requiring

labeling; and

o (3) The food is manufactured or prepared on the

premises of the food establishment or at another food

establishment or a food processing plant that is owned

by the same person and is regulated by the food

regulatory agency that has jurisdiction.

27. Food Code Section 3-602.12 states:

 (A) If required by law, consumer warnings shall be

provided.

 (B) Food establishment or manufacturers' dating

information on foods may not be concealed or altered.

28. The Food Code requires only that Respondent label the

meat with the manufacturer's label. The thrust of the testimony

presented by Petitioner was not that the repackaged meat was

unlabeled, but that it was not labeled with a sell-by date. It

is likely, after all, that the repackaged meat bore at least an

identification label. The focus of the inspector was on the

absence of a sell-by date (and, in an issue presented below, the

absence of safe-handling instructions).

29. It is impossible to infer that Respondent failed to

relabel the opened meat with the sell-by date contained on the

original producer's package because Federal law does not require

a sell-by date or any date on the meat label. Title 9, Code of

Federal Regulations, Section 317.8(32), which applies to meat,

sets forth an extensive list of requirements and prohibitions

concerning misleading labeling, but the only provisions

regarding dates are clearly permissive, not mandatory:

(32) A calendar date may be shown on

labeling when declared in accordance with

the provisions of this subparagraph:

(i) The calendar date shall express the

month of the year and the day of the month

for all products and also the year in the

case of products hermetically sealed in

metal or glass containers, dried or frozen

products, or any other products that the

Administrator finds should be labeled with

the year because the distribution and

marketing practices with respect to such

products may cause a label without a year

identification to be misleading.

(ii) Immediately adjacent to the

calendar date shall be a phrase explaining

the meaning of such date, in terms of

"packing" date, "sell by" date, or "use

before" date, with or without a further

qualifying phrase, e.g., "For Maximum

Freshness" or "For Best Quality", and such

phrases shall be approved by the

Administrator as prescribed in § 317.4.

30. Clearly, sell-by dating facilitates food safety.

Although the factual record permits findings and conclusions

that the rat problems and open cleanser near food violated the

anti-adulteration statute, it is impossible to reach the same

conclusion as to the absence of sell-by dating and the statute

prohibiting misleading labeling. The statute prohibits false or

misleading information. The statute, on its face, is violated

by an inaccurate packaging date, but it is not so clearly

violated by the omission of a sell-by date. The statute

empowers Petitioner to add other required information, but

Petitioner has not expressly required a sell-by date, and the

federal authority that Petitioner has adopted permits, but does

not require, a sell-by date. Thus, Petitioner has failed to

prove this violation.

31. Petitioner has failed to prove the violation

concerning the employee health policy due to the vagueness of

the inspector's testimony. It is not clear that Respondent

lacked such a policy at the time of the inspection.

32. Petitioner has proved the critical violation

concerning the failure to add safe-handling labels to self-serve

packaged meats. Like the sell-by-date labeling, the safe-

handling labeling is not required under Florida statutes or

rules. However, Title 9, Code of Federal Regulations, Section

317.2(l) requires safe-handling instructions on the label of all

meat to ensure that the consumer understands that he or she must

refrigerate meats prior to cooking, cook them thoroughly, keep

hot foods hot, and discard or immediately refrigerate left-

overs.

33. Section 500.121(1), Florida Statutes, authorizes

Petitioner to impose a penalty of not more than $5000 for any

food establishment "that has violated this chapter." Section

570.07(2)(d), Florida Statutes, authorizes Petitioner to impose

such fines for violations of federal standards. This provision

requires Petitioner to consider, in imposing any fine, the

following factors:

the degree and extent of harm caused by the

violation, the cost of rectifying the

damage, the monetary benefit to the

violator, whether the violation was willful,

and the violator's compliance record.

34. Petitioner seeks to impose a fine of $2250, which is

within its statutory authority. However, two critical

violations, on which it based its proposed fine, have not been

proved. Petitioner may thus wish to revisit the amount of the

fine.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July, 2007.

COPIES FURNISHED:

Richard Ditschler, 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.