97-005691 Florida Poultry Federation, Inc. vs. Department Of Agriculture And Consumer Services Status: Closed Recommended Order on Wednesday, May 6, 1998.

Summary: Application for rule waiver denied; petitioner lacked standing as an association to bring action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA POULTRY FEDERATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-5691

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on March 13, 1998, in Tampa, Florida, before Lawrence P.

Stevenson, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles R. Smith

Executive Vice President

Florida Poultry Federation, Inc.

4508 Oak Fair Boulevard, Suite 290

Tampa, Florida 33610

For Respondent: John N. Spivey, Esquire

Department of Agriculture and

Consumer Services

407 South Calhoun Street

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

STATEMENT OF 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.

PRELIMINARY STATEMENT

By Petition for Variance or Waiver dated August 1, 1997,

Petitioner requested a waiver from the provisions of Rule 5K-

4.021, Florida Administrative Code, on behalf of six affected

shell-egg plants that are members of Petitioner’s organization.

By letter dated October 27, 1997, Respondent denied the petition

for waiver. On November 12, 1997, Petitioner timely filed its

request for formal proceeding to contest the petition denial.

On December 2, 1997, Respondent forwarded the request for formal

proceeding to the Division of Administrative Hearings for

assignment of an Administrative Law Judge and the conduct of a

formal hearing.

On January 16, 1998, Respondent filed a Motion to Dismiss

for Lack of Standing. Respondent’s motion argued that

Petitioner itself is not subject to the rule in question, though

some of its member companies may be. After a telephonic

hearing, Respondent’s motion was denied, though Respondent was

granted leave to raise the issue of standing again in its post-

hearing submissions.

On January 22, 1997, Respondent filed a Motion to Amend

Petition Denial, in which it sought to raise additional grounds

to justify denial of the petition for variance. Petitioner did

not object to the Motion to Amend, which was granted by Order

dated February 11, 1998.

At the hearing, Petitioner presented the testimony of

Charles R. Smith, Executive Vice President of the Florida

Poultry Federation. Respondent presented the testimony of John

T. Fruin, Chief of the Bureau of Food and Meat Inspection,

Division of Food Safety of the Department of Agriculture and

Consumer Services; Wayne Derstine, Environmental Administrator

in the Bureau of Food and Meat Inspection; and Bobby Bickley,

Biological Administrator in the Department of Agriculture and

Consumer Services. All three of Respondent’s witnesses were

accepted without objection as experts in food safety.

Petitioner offered two exhibits, which were admitted

without objection. Respondent offered seven exhibits, which

were admitted without objection.

The transcript of the final hearing was filed with the

Division of Administrative Hearings on March 13, 1998.

Petitioner filed a proposed recommended order on March 18, 1998.

Respondent filed a proposed recommended order on March 27, 1998.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.”

10. 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.

11. 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.

12. In its Amended Petition Denial, Respondent set forth

the following additional justifications for applying the food

manager requirement to shell-egg plants:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

13. 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.

14. 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.

15. 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.

16. 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.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.542 and 120.57(1), Florida Statutes.

18. Respondent challenges Petitioner’s standing to bring

this proceeding, relying upon the following language in Section

120.542(2), Florida Statutes:

Variances and waivers shall be granted

when the person subject to the rule

demonstrates that the purpose of the

underlying statute will be or has been

achieved by other means by the person and

when application of the rule would create a

substantial hardship or would violate

principles of fairness. (Emphasis added.)

19. Respondent argues that Petitioner, as an industry

association, is not a “person subject to the rule.” The Florida

Poultry Federation does not process eggs and is not required to

have a certified food manager on premises; it is an industry

association that represents the interests of its members before

the public and governmental entities.

20. Respondent argues that the standards for associational

standing found in Florida Home Builders Assoc. v. Dept. of Labor

and Employment Security , 412 So. 2d 351 (Fla. 1982), do not

apply in this instance because the Legislature has here

expressly limited standing to seek a variance to “persons

subject to the rule.”

21. Respondent’s argument in this regard is rejected.

Florida appellate courts have not as yet addressed the standards

for associational standing as applied to Section 120.542(2),

Florida Statutes. However, the Florida Home Builders court set

forth those standards in relation to a rule challenge brought

pursuant to Section 120.56(1), Florida Statutes (1979). The

statute at that time provided:

Any person substantially affected by a

rule may seek an administrative

determination of the invalidity of the rule

on the ground that the rule is an invalid

exercise of delegated legislative authority.

(Emphasis added.)

22. Respondent’s argument in the instant case is virtually

identical to that rejected by the court in Florida Home

Builders: that the subject association was not “substantially

affected” by or “subject to” the rule. The undersigned

concludes that the same standard should apply in this variance

proceeding as has been applied in other Chapter 120 proceedings,

particularly in light of the following admonition by the Court

in Florida Home Builders :

Expansion of public access to the

activities of governmental agencies was one

of the major legislative purposes of the new

Administrative Procedure Act. In our view,

the refusal to allow this builders’

association, or any similarly situated

association, the opportunity to represent

the interests of its injured members in a

rule challenge proceeding defeats this

purpose by significantly limiting the

public’s ability to contest the validity of

agency rules. While it is true that the

“substantially affected” members of the

builders’ association could individually

seek determinations of rule invalidity, the

cost of instituting and maintaining a rule

challenge proceeding may be prohibitive for

small builders. Such a restriction would

also needlessly tax the ability of the

Division of Administrative Hearings to

dispose of multiple challenges based upon

identical or similar allegations of unlawful

agency action.

Florida Home Builders , 412 So. 2d at 352-53.

23. It is also significant that the lower appellate courts

have expanded the associational standing rationale to Section

120.57(1) formal proceedings and Section 120.565 declaratory

statement petitions. See Farmworker Rights Organization, Inc.

v. Dept. of Health and Rehabilitative Services , 417 So. 2d 753

(Fla. 1st DCA 1982) and Federation of Mobile Home Owners of

Florida, Inc. v. Dept. of Business Regulation , 479 So. 2d 252

(Fla. 2d DCA 1985).

24. The standards by which an association such as

Petitioner may claim standing to proceed on behalf of its

members are as follows:

(1) the association must demonstrate

that a substantial number of its members,

though not necessarily a majority, are

substantially affected by the challenged

agency action;

(2) the subject matter of the

challenged action is within the

association’s general scope of interest and

activity; and

(3) the relief requested is of a type

appropriate for a trade association to

receive on behalf of its members.

Florida Home Builders , 412 So. 2d at 353-54. In this

proceeding, Petitioner must demonstrate that a substantial

number of its members are “persons subject to the rule” from

which waiver is sought. In all other respects, the standard is

the same in this variance proceeding as in any other Chapter 120

proceeding.

25. At the time of the hearing, only one of the eight

shell-egg producers that are members of Petitioner’s

organization was subject to the rule. While the courts have

held that a “substantial” number need not constitute a majority,

it must include more than just a token number of the members if

the action is to be maintained by the association. A single

member of Petitioner's organization cannot be said to constitute

a "substantial" number. Petitioner has failed to meet the first

prong of the test for associational standing set forth in

Florida Home Builders .

26. Petitioner does appear to meet the second two prongs

for associational standing. Petitioner represents its members'

interests before government agencies, and the rule at issue

would fall within the general scope of Petitioner's interest and

activity on behalf of its members. Obtaining a variance or

waiver from an administrative rule would be a form of relief

appropriate for Petitioner to seek on behalf of one of its

members.

27. Nonetheless, because Petitioner’s claim is based on

its representative capacity as an association, and only one of

its member companies is subject to the rule in question,

Petitioner has failed to demonstrate that it has standing to

bring this proceeding.

28. Even if it had standing, Petitioner failed to

demonstrate entitlement to a variance under the standards set

forth in Section 120.542(2), Florida Statutes. Petitioner

conceded that compliance with the rule does not create a

substantial hardship, nor does it violate principles of

fairness, as those terms are employed in the statute.

29. Respondent redundantly demonstrated that the

application of Rule 5K-4.021, Florida Administrative Code, to

shell-egg plants is within its statutory mandate, and is

reasonably related to its responsibilities regarding

safeguarding the public health. Even if Petitioner’s claim that

the rule “does nothing” were cognizable under Section

120.542(2), Florida Statutes, as a ground for waiver or

variance, Petitioner failed to demonstrate that Rule 5K-4.021,

Florida Administrative Code, does not serve a salutary purpose

as it relates to the one shell-egg plant to which it applies.

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.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative

Hearings

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

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 should be filed with the agency that

will issue the final order in this case.