99-003163 Department Of Agriculture And Consumer Services vs. Hoi Phun, D/B/A Town And County Chevron
 Status: Closed
Recommended Order on Tuesday, October 26, 1999.


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Summary: Evidence of poor sanitation supports the imposition of a fine.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF AGRICULTURE AND )

13CONSUMER SERVICES, )

16)

17Petitioner, )

19)

20vs. ) Case No. 99-3163

25)

26HOI PHUN, d/b/a TOWN AND COUNTRY )

33CHEVRON, )

35)

36Respondent. )

38___________________________________)

39RECOMMENDED ORDER

41On September 24, 1999, a formal administrative hearing in

50this case was held in Tampa, Florida, before William F.

60Quattlebaum, Administrative Law Judge, Division of Administrative

67Hearings.

68APPEARANCES

69For Petitioner: Angela Dempsey, Esquire

74Department of Agriculture and

78Consumer Services

80Room 515, Mayo Building

84407 South Calhoun Street

88Tallahassee, Florida 32399-0800

91For Respondent: No appearance

95STATEMENT OF THE ISSUE

99The issue in the case is whether the allegations set forth

110in the Department's Proposed Settlement Agreement and

117Administrative Complaint dated June 14, 1999, are correct and, if

127so, what penalty should be imposed.

133PRELIMINARY STATEMENT

135On June 14, 1999, the Department of Agriculture and Consumer

145Services filed an Administrative Complaint against Respondent Hoi

153Phun, d/b/a Town and Country Chevron. The complaint alleges

162violations of the Florida Food Safety Act, Chapter 500, Florida

172Statutes. The Respondent filed a Petition for Formal Hearing.

181The request was forwarded to the Division of Administrative

190Hearings, which scheduled and conducted the proceeding.

197At the hearing, the Petitioner presented the testimony of

206one witness and had Exhibits numbered 1-3 and 6 admitted into

217evidence. The Respondent did not appear at the hearing. No

227transcript of the hearing was filed. The Petitioner filed a

237Proposed Recommended Order.

240FINDINGS OF FACT

2431. The Department of Agriculture and Consumer Services is

252the state agency charged with the responsibility for enforcement

261of the Florida Food Safety Act.

2672. At all times material to this case, Respondent Hoi Phun

278was the owner and operator of Town and Country Chevron, 8616 West

290Hillsborough Avenue, Tampa, Florida. The Respondent had no

298certified food manager and had no food permit for the facility.

3093. On April 8, 1999, a Department representative inspected

318the Respondent's premises. At the time of the inspection, the

328soda machine was visibly dirty and mildewed at the dispenser.

338The ice machine, located in a back room, was also dirty. The

"350warewash" sink was dirty and had no hot water. Chemicals were

361stored at the wash area. Wastewater was disposed of by dumping

372on the ground outside and at the rear of the building. A

384plumbing fixture lacked a "backflow" device that prevents

392siphonage of potentially unsanitary water into the building's

400water lines.

4024. The April 8, 1999, overall evaluation rating was "poor."

412A "stop use" order was issued for the ice machine and for the

425soda machine. The "stop use" order included placing a red "STOP

436USE" tag and red tape on each machine. Each violation was

447discussed with the store manager and a copy of the evaluation was

459provided during the discussion.

4635. On April 22, 1999, a Department representative re-

472inspected the Respondent's premises. The inspection revealed

479that the April 8 violations were continuing. The "STOP USE" tape

490and tags placed on the soda and ice machines during the previous

502inspection had been removed. The inspector saw the soda machine

512being used. The soda machine drain was clogged.

5206. The April 22, 1999, overall evaluation rating was

"529poor." The "stop use" order was reissued for the ice machine

540and for the soda machine. Each violation was discussed with the

551store manager and a copy of the evaluation was provided during

562the discussion.

5647. On May 3, 1999, a Department representative re-inspected

573the Respondent's premises. The inspection revealed again that

581the April 8 violations were continuing. The "STOP USE" tape and

592tags placed on the soda and ice machines had again been removed.

6048. The May 3, 1999, overall evaluation rating was "poor."

614The "stop use" order was reissued for the ice machine and for the

627soda machine. Each violation was discussed with the store

636manager and a copy of the evaluation was provided during the

647discussion.

6489. On May 5, 1999, the Respondent met with the Department

659representative who conducted the inspections. At that time, the

668representative released the soda and ice machines from the "stop

678use" orders.

68010. On June 14, 1999, the Department issued a Proposed

690Settlement Agreement and Administrative Complaint setting forth

697the allegations addressed herein.

701CONCLUSIONS OF LAW

70411. The Division of Administrative Hearings has

711jurisdiction over the parties to and subject matter of this

721proceeding. Section 120.57(1), Florida Statutes.

72612. The Department of Agriculture and Consumer Services is

735responsible for administration of the Florida Food Safety Act.

744Chapter 500, Florida Statutes.

74813. Any person operating a retail food establishment must

757have a valid food permit. Section 500.12, Florida Statutes. The

767sale or delivery of food without a valid food permit is a

779violation of Section 500.04(4), Florida Statutes. The Respondent

787operated his food service establishment without a valid food

796permit.

79714. Section 500.04(1), Florida Statutes, prohibits the

804manufacture, sale or delivery, holding or offering for sale of

814any food that is adulterated or misbranded.

82115. A food is deemed adulterated if it has been produced,

832prepared, packed, or held under unsanitary conditions whereby it

841may become contaminated with filth, or whereby it may have been

852rendered diseased, unwholesome, or injurious to health. Section

860500.10(1)(f), Florida Statutes.

86316. Section 500.03(1)(h) defines "contaminated with filth"

870as any food "not securely protected from dust, dirt, and, as far

882as may be necessary by all reasonable means, all foreign or

893injurious contamination."

89517. The Respondent offered for sale, and sold, food that

905was "not securely protected" from contamination, and in doing so,

915violated Section 500.04(1), Florida Statutes.

920500.172(1), Florida Statutes provides as follows:

926When the department or its duly authorized

933agent finds, or has probable cause to

940believe, that any food or food-processing

946equipment is in violation of this chapter or

954any rule adopted under this chapter so as to

963be dangerous, unwholesome, fraudulent, or

968unsanitary within the meaning of this

974chapter, an agent of the department may issue

982and enforce a stop-sale, stop-use, removal,

988or hold order, which order gives notice that

996such article or processing equipment is, or

1003is suspected of being, in violation and has

1011been detained or embargoed and which order

1018warns all persons not to remove, use, or

1026dispose of such article or processing

1032equipment by sale or otherwise until

1038permission for removal, use, or disposal is

1045given by the department or the court. It is

1054unlawful for any person to remove, use, or

1062dispose of such detained or embargoed article

1069or processing equipment by sale or otherwise

1076without such permission.

107918. In this case, stop use orders were issued related to

1090the soda and ice machines. The "STOP USE" tags were removed and

1102the machines continued to be used, constituting a violation of

1112500.172(1), Florida Statutes. Additionally, Section 500.04(8),

1118Florida Statutes, prohibits the "removal, disposal, or use of a

1128detained or embargoed article or food-processing equipment in

1136violation of s. 500.172."

114019. The Department is authorized to adopt rules related to

1150the implementation of the Florida Food Safety Act. Section

1159500.09(3), Florida Statutes.

116220. The Respondent failed to provide proper cleaning of the

1172soda and ice machines, and "warewash" sink area, and therefore

1182violated Rule 5K-4.004(4)(c), Florida Administrative Code, which

1189provides as follows:

1192All utensils and product-contact surfaces of

1198equipment shall be cleaned as frequently as

1205necessary to prevent contamination of food

1211and food products. Nonproduct-contact

1215surfaces or equipment used in the operation

1222of food plants should be cleaned as

1229frequently as necessary to minimize

1234accumulation of dust, dirt, food particles,

1240and other debris.

124321. The Respondent failed to properly dispose of wastewater

1252and failed to maintain an appropriate backflow device on the

1262facilities plumbing in violation of Rule 5K-4.004(3)(b)and(c),

1269Florida Administrative Code, which provides as follows:

1276(b) Sewage disposal -- Sewage disposal shall

1283be made into an approved sewerage system or

1291disposed of through other approved means, in

1298accordance with applicable provisions of

1303state sanitary code.

1306(c) Plumbing -- Plumbing shall be sized,

1313installed, and maintained in accordance with

1319applicable provisions of the state sanitary

1325code, and maintained to:

13291. Carry sufficient quantities of water to

1336required locations throughout the plant.

13412. Properly convey sewage and liquid

1347disposable waste from the plant.

13523. Not constitute a source of contamination

1359to foods, food products or ingredients, water

1366supplies, equipment, or utensils or create an

1373unsanitary condition.

13754. Provide adequate floor drainage in all

1382areas where floors are subject to flooding-

1389type cleaning or where normal operations

1395release or discharge water or other liquid

1402waste on the floor.

140622. The Respondent failed to maintain appropriate

1413facilities for hand washing in violation of Rule 5K-4.004(3)(e),

1422Florida Administrative Code, which provides as follows:

1429Adequate and convenient facilities for hand

1435washing and, where appropriate, hand

1440sanitizing shall be provided at each location

1447in the plant where good sanitary practices

1454require employees to wash or sanitize and dry

1462their hands. Such facilities, where

1467appropriate, shall be furnished with running

1473water at a suitable temperature for hand

1480washing, effective hand-cleaning and

1484sanitizing preparations, sanitary towel

1488service or suitable drying devices and, where

1495appropriate, easily cleanable waste

1499receptacles. The use of 'common' towel is

1506forbidden.

150723. Rule 5K-4.021(3), Florida Administrative Code, requires

1514that food establishments designate a certified food manager and

1523post written notice of the designation within the establishment.

1532The Respondent had no certified food manager employed at the

1542facility.

154324. The Department is authorized to assess a fine of $5,000

1555for each violation of the Florida Food Safety Act. Section

1565500.121(1), Florida Statutes. In this case, the Department is

1574seeking a total fine of $5,000. There is no information that

1586suggests that the fine sought is inappropriate to the

1595circumstances of this case.

1599RECOMMENDATION

1600Based on the foregoing Findings of Fact and Conclusions of

1610Law, it is recommended that the Department of Agriculture and

1620Consumer Services enter a final order imposing a fine of $5,000

1632against the Respondent.

1635DONE AND ENTERED this 26th day of October, 1999, in

1645Tallahassee, Leon County, Florida.

1649___________________________________

1650WILLIAM F. QUATTLEBAUM

1653Administrative Law Judge

1656Division of Administrative Hearings

1660The DeSoto Building

16631230 Apalachee Parkwa y

1667Tallahassee, Florida 32399-3060

1670(850) 488-9675 SUNCOM 278-9675

1674Fax Filing (850) 921-6847

1678www.doah.state.fl.us

1679Filed with the Clerk of the

1685Division of Administrative Hearings

1689this 26th day of October, 1999.

1695COPIES FURNISHED:

1697Angela Dempsey, Senior Attorney

1701Department of Agriculture and

1705Consumer Services

1707515 Mayo Building

1710407 South Calhoun Street

1714Tallahassee, Florida 32399-0800

1717H oi Phun

1720Town and Country Chevron

17248616 West Hillsborough Avenue

1728Tampa, Florida 33615

1731Honorable Bob Crawford

1734Commissioner of Agriculture

1737Department of Agriculture and

1741Consumer Services

1743The Capitol, Plaza Level 10

1748Tallahassee, Florida 32399-0810

1751Richard Tritschler, General Counsel

1755Department of Agriculture and

1759Consumer Services

1761The Capitol, Plaza Level 10

1766Tallahassee, Florida 32399-0810

1769NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1775All parties have the right to submit written exceptions within 15

1786days from the date of this Recommended Order. Any exceptions to

1797this Recommended Order must be filed with the agency that will

1808issue the final order in this case.

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PDF
Date
Proceedings
Date: 11/24/1999
Proceedings: Final Order filed.
PDF:
Date: 11/22/1999
Proceedings: Agency Final Order
PDF:
Date: 11/22/1999
Proceedings: Recommended Order
PDF:
Date: 10/26/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 9/24/99.
Date: 10/04/1999
Proceedings: Department`s Proposed Recommended Order filed.
Date: 09/24/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 09/14/1999
Proceedings: (Petitioner) Witness List filed.
Date: 08/11/1999
Proceedings: Order of Pre-hearing Instructions sent out.
Date: 08/11/1999
Proceedings: Notice of Hearing sent out. (hearing set for September 24, 1999; 9:30 a.m.; Tampa, FL)
Date: 08/09/1999
Proceedings: Joint Response to Initial Order filed.
Date: 07/29/1999
Proceedings: Initial Order issued.
Date: 07/22/1999
Proceedings: Agency Referral Letter; Proceeding Request; Proposed Settlement Agreement and Administrative Complaint filed.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
07/22/1999
Date Assignment:
07/29/1999
Last Docket Entry:
11/24/1999
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

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