97-003807
Department Of Agriculture And Consumer Services vs.
Wima Corporation
Status: Closed
Recommended Order on Tuesday, April 7, 1998.
Recommended Order on Tuesday, April 7, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF AGRICULTURE AND )
13CONSUMER SERVICES, )
16)
17Petitioner, )
19)
20vs. ) Case No. 97-3807
25)
26WIMA CORPORATION, )
29)
30Respondent. )
32_______________________________)
33RECOMMENDED ORDER
35Pursuant to notice, a formal hearing was held in this case
46by video teleconference on December 8, 1997, at West Palm Beach,
57Florida, before Errol H. Powell, a duly designated Administrative
66Law Judge of the Division of Administrative Hearings.
74APPEARANCES
75For Petitioner: Linton B. Eason, Esquire
81Department of Agriculture and
85Consumer Services
87Mayo Building, Room 515
91Tallahassee, Florida 32399-0800
94For Respondent: Donald Epstein, President
99Wima Corporation
1014252 Northwest 55th Place
105Coconut Creek, Florida 33073
109STATEMENT OF THE ISSUE
113The issue for determination is whether Respondent committed
121the offenses set forth in the Administrative Complaint and, if
131so, what action should be taken.
137PRELIMINARY STATEMENT
139By Administrative Complaint dated May 30, 1997, the
147Department of Agriculture and Consumer Services (Petitioner)
154charged the Wima Corporation (Respondent) with violating Chapter
162500, Florida Statutes, and Chapter 5K-9, Florida Administrative
170Code. By response dated June 12, 1997, Respondent disputed the
180allegations of fact and requested a formal hearing. On
189August 15, 1997, this matter was referred to the Division of
200Administrative Hearings.
202At hearing, Petitioner presented the testimony of four
210witnesses 1 and entered ten exhibits into evidence. Respondent
219presented the testimony of three witnesses 2 and entered fourteen
229exhibits into evidence.
232A transcript of the hearing was ordered. The parties filed
242post-hearing submissions which have been duly considered.
249FINDINGS OF FACT
2521. The Department of Agriculture and Consumer Services
260(Petitioner) is charged with the administration and enforcement
268of Chapter 500, Florida Statutes, together with the rules
277promulgated thereunder, relating to food and water sanitation
285within the State of Florida.
2902. Wima Corporation (Respondent) is a water vending machine
299operator and is located at 4252 Northwest 55th Street, Coconut
309Creek, Florida. The president of Respondent is Donald Epstein.
318Respondent has been in the water vending business since 1980 and
329has never received any notification that its water has caused
339anyone to become ill.
3433. Respondent is the owner and operator of a water vending
354machine, Identification Tag No. 5890 (Machine ID Tag No. 5890),
364located at Lyons Amoco, Lyons Road and Glades Road, Boca Raton,
375Florida. Machine ID Tag No. 5890 dispenses drinking water,
384potable water that originates from an approved municipal provider
393and is processed by reverse osmosis. The drinking water is sold
404to the general public. Approximately 20 to 50 vends per day are
416dispensed from Machine ID Tag No. 5890 to the general public who
428provide their own container for collecting the water. A vend is
439one gallon of water.
4434. On March 3, 1997, one of Petitioner's sanitation and
453safety inspectors (inspector) collected a vended water sample
461from Machine ID Tag No. 5890. The inspector collected the first
"472slug" of water from the spout of Machine ID Tag No. 5890 the
485same as a paying public consumer. The first "slug" of water is
497the first water that the first paying public consumer would
507receive from Machine ID Tag No. 5890. Petitioner's inspector
516collected 100 ml of water in a sanitary container, sealed the
527container, and immediately packed the container in ice in order
537to refrigerate the water sample. The water sample remained in
547the custody and control of Petitioner's inspector until it was
557shipped, packed in ice, to Tallahassee, Florida, via Greyhound
566Bus, for analysis by Petitioner's food laboratory. The shipping
575process was in accordance with protocol established by
583Petitioner.
5845. On March 4, 1997, the water sample was received by the
596Petitioner's food laboratory for analysis. The sample remained
604in the custody and control of the laboratory staff. The analysis
615of the water sample was initiated within 30 hours of collection.
626Upon analysis, the water sample was found to contain 21 coliforms
637per 100 ml. Florida's safe water standards require a total
647absence (zero) coliforms. The water sample was contaminated with
656coliforms and was not appropriate for human consumption. The
665analysis was performed in accordance with the protocol
673established by Petitioner.
6766. By certified letter, return receipt, dated March 17,
6851997, Respondent was notified, among other things; that the water
695sample was adulterated; that ID Tag No. 5890 was required to be
707cleaned and sanitized; and that another sample was required to be
718taken.
7197. After the analysis of the water sample showed
728adulteration, Respondent's president contacted an independent
734laboratory, Spectrum Laboratories, Inc., (Spectrum), approved by
741Petitioner, and requested that an analysis of the dispensed water
751by Machine ID Tag No. 5890. Spectrum forwarded the necessary
761items to Respondent's president in order for him to obtain a
772water sample and informed him of the procedure and process in
783obtaining the sample. On March 19, 1997, Respondent's president
792obtained the water sample in accordance with Spectrum's
800instructions and forwarded the sample to Spectrum. On March 20,
8101997, Spectrum performed an analysis of the water sample and
820found no coliforms. On or about March 24, 1997, Respondent's
830president forwarded the results of Spectrum's analysis to
838Petitioner.
8398. On March 25, 1997, a second vended water sample was
850taken by Petitioner's same inspector from Machine ID Tag No.
8605890, using the same procedure and process as before. Also, the
871water sample was shipped for analysis to Petitioner's food
880laboratory in Tallahassee using the same procedure and process.
889The collection and shipping procedure and process were again in
899accordance with protocol established by Petitioner.
9059. On March 26, 1997, the second water sample was received
916by the Petitioner's food laboratory for analysis. Upon analysis,
925the second water sample was found to contain 18 coliforms per
936100 ml. The water sample was contaminated with coliforms and was
947not appropriate for human consumption. The analysis was again
956performed in accordance with the protocol established by
964Petitioner.
96510. By certified letter, return receipt, dated April 10,
9741997, Respondent was notified, among other things, that the
983second water sample was adulterated; that Machine ID Tag No. 5890
994would be taken out of service until the source of the
1005contamination was found; and that Machine ID Tag No. 5890 would
1016be immediately placed under a "Stop Use" order.
102411. By Stop Use Order dated April 11, 1997, Respondent was
1035notified, among other things, that Machine ID Tag No. 5890 could
1046not be used. Respondent was further notified that Machine ID Tag
1057No. 5890 could resume being used after a showing of no
1068contamination from a water sample taken by Petitioner's inspector
1077and analyzed by Petitioner's food laboratory.
108312. Respondent cooperated fully with Petitioner in
1090correcting the problem. Respondent complied with all of
1098Petitioner's requests.
110013. On April 16, 1997, a third vended water sample was
1111collected by Petitioner's inspector from Machine ID Tag No. 5890.
1121The same collection procedure and process were followed as in the
1132previous two collections. The same procedure and process were
1141followed in forwarding the water sample to Petitioner's food
1150laboratory as in the previous two collections. All procedures
1159and processes were in accordance with protocol established by
1168Petitioner.
116914. On April 17, 1997, Petitioner's food laboratory
1177performed an analysis of the third water sample. The analysis
1187was performed in accordance with the protocol established by
1196Petitioner. Petitioner's laboratory found no coliforms. The
1203water sample was not contaminated and was appropriate for human
1213consumption.
121415. Respondent was notified of the results of Petitioner's
1223third analysis. Petitioner permitted the use of Machine ID Tag
1233No. 5890 to resume.
1237CONCLUSIONS OF LAW
124016. The Division of Administrative Hearings has
1247jurisdiction over the subject matter of these proceedings and the
1257parties thereto pursuant to Section 120.569 and Subsection
1265120.57(1), Florida Statutes.
126817. Chapter 500, Florida Statutes (1995), is referred to as
1278the "Florida Food Safety Act." Petitioner is charged with the
1288administration and enforcement of Chapter 500. Section 500.032,
1296Florida Statutes (1995).
129918. In order for Petitioner to levy a fine against a water
1311vending machine operator, clear and convincing evidence (proof
1319greater than a mere preponderance of the evidence) is required.
1329Department of Banking and Finance, Division of Securities and
1338Investor Protection v. Osborne Stern and Company , 670 So. 2d 932,
1349935 (Fla. 1996)("an administrative fine deprives the person fined
1359of substantial rights in property;" "[a]dministrative fines . . .
1369are generally punitive in nature;" "[b]ecause the imposition of
1378administrative fines . . . are penal in nature and implicate
1389significant property rights, the extension of the clear and
1398convincing evidence standard to justify the imposition of such a
1408fine is warranted"); Section 120.57(1)(h), Florida Statutes,
1416("[f]indings of fact shall be based on a preponderance of the
1428evidence, except in penal or licensure disciplinary proceedings
1436or except as otherwise provided by statute").
144419. In the Administrative Complaint, Petitioner states as
1452Investigative Results the following:
1456An investigation was conducted by the
1462Department of Agriculture and Consumer
1467Services ("Department") of your business
1474activities. As a result of that
1480investigation, the Department found the
1485following violations of Chapter 500, Florida
1491Statutes, ("the Florida Food Safety Act") and
1500Chapter 5K-9, Florida Administrative Code:
1505On March 3 and March 25, 1997, violations
1513were noted by the analysis of water from your
1522water vending machine (Identification
1526Tag# 5890) whereby the product was deemed
1533adulterated by the Department's Food 3
1539Laboratory.
154020. The Administrative Complaint fails to point out which
1549specific statutory provision of Chapter 500 and which rule
1558provision of Chapter 5K-9 that Respondent has violated. A
1567perusal of Chapter 500 is in order.
157421. Respondent's water vending machine provided water for
1582human consumption at a cost to the consumer. Subsection
1591500.03(1)(h), Florida Statutes (1995), defines food and provides
1599in pertinent part:
1602(1) For the purpose of this chapter, the
1610term:
1611(h) "Food" includes:
16141. Articles used for food or drink for human
1623consumption;
1624* * *
1627The term includes any . . . beverage; or any
1637ingredient used, intended for use, or sold
1644for human consumption.
1647The vended water provided by Respondent from the water vending
1657machine is food as defined by Subsection 500.03(1)(h).
166522. Chapter 5K-9, Florida Administrative Code, pertains
1672specifically to water vending machines. Rule 5K-9.005, Florida
1680Administrative Code, provides, among other things, that a vended
1689water sample testing positive for total coliforms is
1697unsatisfactory.
169823. A food is deemed adulterated if the food "has been
1709produced, prepared, packed, or held under insanitary [sic]
1717conditions whereby it may become contaminated with filth, or
1726whereby it may have been rendered diseased, unwholesome, or
1735injurious to health." Subsection 500.10(1)(f), Florida Statutes
1742(1995). Based on the analysis of the two vended water samples
1753taken by Petitioner, the water being dispensed by Respondent's
1762Machine ID Tag No. 5890 on March 3 and 25, 1997, was adulterated.
177524. The "manufacture, sale or delivery, holding or offering
1784for sale of any food that is adulterated" is prohibited.
1794Subsection 500.04(1), Florida Statutes (1995).
179925. Section 500.459, Florida Statutes (1995), pertains
1806specifically to water vending machines. The Legislative intent
1814stated in Subsection 500.459(1) is "to protect the public health
1824through licensing and establishing standards for water vending
1832machines to ensure that consumers obtaining water through such
1841means . . . are assured that the water meets acceptable standards
1853for human consumption." As an operating standard, a "water
1862vending machine must be maintained in a clean and sanitary
1872condition." Subsection 500.459(4)(f), Florida Statutes (1995).
187826. Petitioner has shown by clear and convincing evidence
1887that Respondent's water vending machine was not maintained in a
1897clean and sanitary condition in that the vended water was
1907adulterated in violation of Subsections 500.459(4)(f), and
1914500.04(1), Florida Statutes (1995), and Rule 5K-9.005, Florida
1922Administrative Code.
192427. Petitioner is authorized by Section 500.511, Florida
1932Statutes (1995), to impose an administrative fine for violations
1941associated with water vending machines. Section 500.511 provides
1949in pertinent part:
1952(2) ENFORCEMENT AND PENALTIES.-In addition
1957to the provisions contained in ss. 500.453-
1964500.511, the department [Petitioner] may
1969enforce ss. 500.453-500.511 in the manner
1975provided in s. 500.121. Any person who
1982violates a provision of ss. 500.453-500.511
1988or any rule adopted under such section shall
1996be punished as provided in such sections.
2003However, criminal penalties may not be
2009imposed against any person who violates a
2016rule.
201728. Section 500.121, Florida Statutes (1995), authorizes
2024Petitioner to, among other things, "impose a fine not exceeding
2034$5,000 against any retail food store or food establishment that
2045has violated [the Florida Food Safety Act]". Subsection
2054500.121(1). Consequently, pursuant to Subsection 500.511(2),
2060Petitioner is authorized to impose an administrative fine not
2069exceeding $5,000 against a water vending machine operator.
207829. As a penalty, Petitioner suggests the imposition of a
2088$5,000 fine. Such a penalty is too harsh. Respondent cooperated
2099fully with Petitioner in correcting the problem. Also, shortly
2108after the contamination was discovered by Petitioner, Respondent
2116had its own analysis performed and forwarded the results to
2126Petitioner even though Petitioner did not consider the results of
2136the analysis. Further, no evidence of prior disciplinary action
2145by Petitioner against Respondent was presented.
2151RECOMMENDATION
2152Based on the foregoing Findings of Fact and Conclusions of
2162Law, it is
2165RECOMMENDED that the Department of Agriculture and Consumer
2173Services enter a final order:
21781. Finding that the Wima Corporation violated Subsections
2186500.459(4)(f), and 500.04(1), Florida Statutes (1995), and Rule
21945K-9.005, Florida Administrative Code.
21982. Imposing a $500 administrative fine against Wima
2206Corporation.
2207DONE AND ENTERED this 7th day of April, 1998, in
2217Tallahassee, Leon County, Florida.
2221___________________________________
2222ERROL H. POWELL
2225Administrative Law Judge
2228Division of Administrative Hearings
2232The DeSoto Building
22351230 Apalachee Parkway
2238Tallahassee, Florida 32399-3060
2241(850) 488-9675 SUNCOM 278-9675
2245Fax Filing (850) 921-6847
2249Filed with the Clerk of the
2255Division of Administrative Hearings
2259this 7th day of April, 1998.
2265ENDNOTES
22661/ Respondent's president was called as a witness by Petitioner.
22762/ Respondent's president also testified on behalf of
2284Respondent.
22853/ This sentence was italicized in the Administrative Complaint.
2294COPIES FURNISHED:
2296Linton B. Eason, Esquire
2300Department of Agriculture and
2304Consumer Services
2306515 Mayo Building
2309Tallahassee, Florida 32399-0800
2312Donald Epstein, President
2315Wima Corporation
23174252 Northwest 55th Place
2321Coconut Creek, Florida 33073
2325Brenda D. Hyatt, Chief
2329Bureau of Licensing and Bond
2334Department of Agriculture
2337508 Mayo Building
2340Tallahassee, Florida 32399-0800
2343Richard Tritschler, General Counsel
2347Department of Agriculture and
2351Consumer Services
2353The Capitol, Plaza Level 10
2358Tallahassee, Florida 32399-0810
2361Honorable Bob Crawford
2364Consumer of Agriculture
2367Department of Agriculture and
2371Consumer Services
2373The Capitol, Plaza Level 10
2378Tallahassee, Florida 32399-0810
2381NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2387All parties have the right to submit written exceptions within 15
2398days from the date of this recommended order. Any exceptions to
2409this recommended order should be filed with the agency that will
2420issue the final order in this case.
- Date
- Proceedings
- Date: 03/06/1998
- Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
- Date: 02/24/1998
- Proceedings: Transcript filed.
- Date: 01/09/1998
- Proceedings: Notice of Ex Parte Communication sent out. (re: letter filed. at DOAH on 12/15/97)
- PDF:
- Date: 12/15/1997
- Proceedings: Letter to Judge Powell from D. Epstein regrding apologizing for inapporpriate behavior with Department of Agriculture and Consumer Services filed.
- Date: 12/15/1997
- Proceedings: Letter to EHP from D. Epstein Re: Apologizing for inappropriate behavior with Dept. of Agriculture and Consumer Services filed.
- Date: 12/08/1997
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 12/03/1997
- Proceedings: Documents and Evidence (exhibits not available for viewing) filed.
- PDF:
- Date: 12/03/1997
- Proceedings: Petitioner`s Exhibits (exhibits not available for viewing) filed.
- Date: 10/21/1997
- Proceedings: Prehearing Order sent out.
- Date: 10/21/1997
- Proceedings: Protective Order sent out.
- Date: 10/21/1997
- Proceedings: Notice of Hearing sent out. (hearing set for 12/8/97; 2:00pm; Tallahassee)
- Date: 09/11/1997
- Proceedings: Letter to EHP from D. Epstein Re: Response to Linton Eason`s Motion for Protective Order filed.
- Date: 09/02/1997
- Proceedings: (Petitioner) Motion for Protective Order filed.
- Date: 08/29/1997
- Proceedings: (Petitioner) Unilateral Response to Initial Order filed.
- Date: 08/29/1997
- Proceedings: Letter to EHP from Donald Epstein (RE: response to initial order) filed.
- Date: 08/25/1997
- Proceedings: Letter to SLS from Epstein Re: Letter dated 8/15/97; Letter to SLS from L. Eason Re: Requesting a formal hearing filed.
- Date: 08/21/1997
- Proceedings: Initial Order issued.
- Date: 08/15/1997
- Proceedings: Agency Referral Letter; Petition for Formal Proceeding Form; Agency Action Letter filed.
Case Information
- Judge:
- ERROL H. POWELL
- Date Filed:
- 08/15/1997
- Date Assignment:
- 08/21/1997
- Last Docket Entry:
- 05/29/2009
- Location:
- Tallahassee, Florida
- District:
- Northern