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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-3163

)

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

CHEVRON, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On September 24, 1999, a formal administrative hearing in

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

Quattlebaum, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Angela Dempsey, Esquire

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

407 South Calhoun Street

Tallahassee, Florida 32399-0800

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations set forth

in the Department's Proposed Settlement Agreement and

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

so, what penalty should be imposed.

PRELIMINARY STATEMENT

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

Services filed an Administrative Complaint against Respondent Hoi

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

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

Statutes. The Respondent filed a Petition for Formal Hearing.

The request was forwarded to the Division of Administrative

Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

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

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

transcript of the hearing was filed. The Petitioner filed a

Proposed Recommended Order.

FINDINGS OF FACT

1. The Department of Agriculture and Consumer Services is

the state agency charged with the responsibility for enforcement

of the Florida Food Safety Act.

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

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

Hillsborough Avenue, Tampa, Florida. The Respondent had no

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

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

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

soda machine was visibly dirty and mildewed at the dispenser.

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

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

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

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

plumbing fixture lacked a "backflow" device that prevents

siphonage of potentially unsanitary water into the building's

water lines.

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

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

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

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

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

provided during the discussion.

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

inspected the Respondent's premises. The inspection revealed

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

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

inspection had been removed. The inspector saw the soda machine

being used. The soda machine drain was clogged.

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

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

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

store manager and a copy of the evaluation was provided during

the discussion.

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

the Respondent's premises. The inspection revealed again that

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

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

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

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

soda machine. Each violation was discussed with the store

manager and a copy of the evaluation was provided during the

discussion.

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

representative who conducted the inspections. At that time, the

representative released the soda and ice machines from the "stop

use" orders.

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

Settlement Agreement and Administrative Complaint setting forth

the allegations addressed herein.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

12. The Department of Agriculture and Consumer Services is

responsible for administration of the Florida Food Safety Act.

Chapter 500, Florida Statutes.

13. Any person operating a retail food establishment must

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

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

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

operated his food service establishment without a valid food

permit.

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

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

any food that is adulterated or misbranded.

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

prepared, packed, or held under unsanitary conditions whereby it

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

rendered diseased, unwholesome, or injurious to health. Section

500.10(1)(f), Florida Statutes.

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

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

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

injurious contamination."

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

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

violated Section 500.04(1), Florida Statutes.

500.172(1), Florida Statutes provides as follows:

When the department or its duly authorized

agent finds, or has probable cause to

believe, that any food or food-processing

equipment is in violation of this chapter or

any rule adopted under this chapter so as to

be dangerous, unwholesome, fraudulent, or

unsanitary within the meaning of this

chapter, an agent of the department may issue

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

or hold order, which order gives notice that

such article or processing equipment is, or

is suspected of being, in violation and has

been detained or embargoed and which order

warns all persons not to remove, use, or

dispose of such article or processing

equipment by sale or otherwise until

permission for removal, use, or disposal is

given by the department or the court. It is

unlawful for any person to remove, use, or

dispose of such detained or embargoed article

or processing equipment by sale or otherwise

without such permission.

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

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

the machines continued to be used, constituting a violation of

500.172(1), Florida Statutes. Additionally, Section 500.04(8),

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

detained or embargoed article or food-processing equipment in

violation of s. 500.172."

19. The Department is authorized to adopt rules related to

the implementation of the Florida Food Safety Act. Section

500.09(3), Florida Statutes.

20. The Respondent failed to provide proper cleaning of the

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

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

provides as follows:

All utensils and product-contact surfaces of

equipment shall be cleaned as frequently as

necessary to prevent contamination of food

and food products. Nonproduct-contact

surfaces or equipment used in the operation

of food plants should be cleaned as

frequently as necessary to minimize

accumulation of dust, dirt, food particles,

and other debris.

21. The Respondent failed to properly dispose of wastewater

and failed to maintain an appropriate backflow device on the

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

Florida Administrative Code, which provides as follows:

(b) Sewage disposal -- Sewage disposal shall

be made into an approved sewerage system or

disposed of through other approved means, in

accordance with applicable provisions of

state sanitary code.

(c) Plumbing -- Plumbing shall be sized,

installed, and maintained in accordance with

applicable provisions of the state sanitary

code, and maintained to:

1. Carry sufficient quantities of water to

required locations throughout the plant.

2. Properly convey sewage and liquid

disposable waste from the plant.

3. Not constitute a source of contamination

to foods, food products or ingredients, water

supplies, equipment, or utensils or create an

unsanitary condition.

4. Provide adequate floor drainage in all

areas where floors are subject to flooding-

type cleaning or where normal operations

release or discharge water or other liquid

waste on the floor.

22. The Respondent failed to maintain appropriate

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

Florida Administrative Code, which provides as follows:

Adequate and convenient facilities for hand

washing and, where appropriate, hand

sanitizing shall be provided at each location

in the plant where good sanitary practices

require employees to wash or sanitize and dry

their hands. Such facilities, where

appropriate, shall be furnished with running

water at a suitable temperature for hand

washing, effective hand-cleaning and

sanitizing preparations, sanitary towel

service or suitable drying devices and, where

appropriate, easily cleanable waste

receptacles. The use of 'common' towel is

forbidden.

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

that food establishments designate a certified food manager and

post written notice of the designation within the establishment.

The Respondent had no certified food manager employed at the

facility.

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

for each violation of the Florida Food Safety Act. Section

500.121(1), Florida Statutes. In this case, the Department is

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

suggests that the fine sought is inappropriate to the

circumstances of this case.

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 imposing a fine of $5,000

against the Respondent.

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

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

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 26th day of October, 1999.

COPIES FURNISHED:

Angela Dempsey, Senior Attorney

Department of Agriculture and

Consumer Services

515 Mayo Building

407 South Calhoun Street

Tallahassee, Florida 32399-0800

H oi Phun

Town and Country Chevron

8616 West Hillsborough Avenue

Tampa, Florida 33615

Honorable Bob Crawford

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

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 must be filed with the agency that will

issue the final order in this case.