03-000535 Department Of Agriculture And Consumer Services vs. Handy 89, Inc., D/B/A Handy 89 Sunoco Status: Closed Recommended Order on Friday, September 5, 2003.

Summary: Department established that Respondent was operating without a required food permit, due to unapproved septic sewage system. Recommended $5,000 fine and closure until food permit is obtained.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case Nos. 03 - 0535

) 03 - 0536

HANDY 89, INC., d/b/a HANDY 89 )

SUNOCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Lawrence P. Stevenson, Administrative

Law Judge of the Division of Administrative Hearings, conducted

a formal hearing via video teleconference in the above - styled

cases on May 6, 2003, in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: John McCarthy, Esquire

Department of Agriculture

and Consumer Services

Mayo Building, Suite 520

4 07 South Calhoun Street

Tallahassee, Florida 32399 - 0800

For Respondent: Phil Reis, pro se

1470 Route 46 East

Ledgewood, New Jersey 07825

STATEMENT OF THE ISSUE

Whether Respondent co mmitted the offenses set forth in the

Administrative Complaints in these consolidated cases and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 23, 2002, the Department of Agriculture and

Consumer Services (the Department) issu ed an Administrative

Complaint against Respondent, Handy 89, Inc., d/b/a Handy 89

Sunoco (Handy 89). The Administrative Complaint was based on

Department inspections of Handy 89's place of business performed

on June 17, July 2, and September 6, 2002, and alleged the

following violations: the sewage and wastewater disposal system

was not approved by the proper regulatory authority; there was

no certified food manager in the store; and mop water was left

to stand in the mop bucket and not disposed of in an approved

manner.

On December 5, 2002, the Department issued a second

Administrative Complaint against Handy 89 based on Department

inspections of Handy 89's place of business performed on

October 17 and November 21, 2002. The second Administrative

Complai nt alleged the following violations: the sewage and

wastewater disposal system was still not approved by the proper

regulatory authority; and there was evidence of the presence of

insects, more particularly insect infestation in milled grains

found in the store.

Handy 89 timely filed requests for formal hearing as to

both Administrative Complaints. On February 14, 2003, the

Department forwarded both matters to the Division of

Administrative Hearings (DOAH) for assignment of an

Administrative Law Judge and the conduct of formal

administrative hearings. The September 23, 2002, Administrative

Complaint was assigned DOAH Case No. 03 - 0535. The December 5,

2002, Administrative Complaint was assigned DOAH Case

No. 03 - 0536. On March 25, 2003, the Depart ment filed a Motion

to Consolidate the cases, which was granted by Order dated

March 27, 2003. The consolidated cases were scheduled for

hearing on April 1, 2003. Pursuant to Handy 89's motion, the

hearing was continued and rescheduled for May 6, 2003, w hen it

was held.

At the hearing, the Department presented the testimony of

Klaus Kment, a sanitation and safety specialist for the

Department's Division of Food Safety; Dr. John Fruin, the chief

of the Bureau of Food and Meat Inspection in the Department's

Division of Food Safety; and Johanna Whalan, an environmental

specialist for the Lee County Health Department. The

Department's Exhibits 1 through 5 were admitted into evidence.

Handy 89 presented no testimony and offered no exhibits.

One volume of the Transcript was filed at DOAH on May 21,

2003. The second volume of the Transcript was filed on June 12,

2003. On June 23, 2003, Handy 89 filed a request for a 20 - day

extension of the time for filing proposed recommended orders,

which was granted. The De partment filed a Proposed Recommended

Order on August 7, 2003. Handy 89 did not file a proposed

recommended order.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following findings of fact are made:

1. The Department is the state agency charged with the

responsibility for enforcement of the Florida Food Safety Act,

Chapter 500, Florida Stat utes.

2. Handy 89 is located at 14531 North Cleveland Avenue,

North Fort Myers, in Lee County. Since June 2002, Handy 89 has

been operating a food establishment without a food permit from

the Department.

3. The Department does not inspect or approve se ptic

systems at food establishments. Rather, the Department seeks

certification that the food establishment has obtained approval

from the local health authority or, in the case of large scale

systems, from the Department of Environmental Protection. In

this case, the Lee County Department of Health was the agency

responsible for permitting the sewage system at Handy 89.

4. Handy 89's owners applied to Lee County for a

Certificate of Occupancy on May 20, 2002. Johanna Whalen, an

environmental specialist with the Lee County Department of

Health, coordinated with Handy 89 as to the steps required

before the certificate could be issued.

5. Ms. Whalen was familiar with the Handy 89 building

because she drove past it every day on her way to work. She

knew t hat the building had been closed to the public for more

than one year and that it was serviced by a septic system.

Ms. Whalen informed Handy 89 that when a septic system has been

out of service for more than one year, it must be upgraded to

meet current r equirements for such systems. Handy 89 never

applied for a construction permit to bring the septic system

into full compliance.

6. Klaus Kment is the Department sanitation and safety

specialist responsible for inspecting the premises at Handy 89.

On Ju ne 6, 2002, Mr. Kment authorized Handy 89 to operate as a

food establishment. At the time, Mr. Kment was unaware of the

problem with Handy 89's septic system. Mr. Kment testified that

the Handy 89 building was located in a densely populated area,

and he, therefore, assumed that the building was connected to

city water and sewer service. Handy 89 opened for business in

early June 2002.

7. Ms. Whalen drove past the Handy 89 store and was

surprised to see it opened for business. She contacted the

Departme nt's main office in Tallahassee, which relayed her

concerns to Mr. Kment in Fort Myers. On June 17, 2002,

Mr. Kment conducted an inspection of the Handy 89 premises and

cited the facility for failure to have a sewage and wastewater

disposal system approve d by Lee County, and for failure to have

a certified food manager. He assigned Handy 89 an overall

rating of "poor."

8. Mr. Kment conducted another inspection of the Handy 89

premises on July 2, 2002. He once again cited the facility for

failure to have a sewage and wastewater disposal system approved

by Lee County, and for failure to have a certified food manager,

and again assigned it an overall rating of "poor." Mr. Kment's

inspection report noted that Handy 89 "will need additional time

to comply."

9. Mr. Kment waited two months before conducting a third

inspection, though he visited the store several times during the

interim between inspections. On September 6, 2002, Mr. Kment

conducted an inspection of the Handy 89 premises and cited the

facility for failure to have a sewage and wastewater disposal

system approved by Lee County and for failure to properly

dispose of mop water. Mr. Kment noted that he had visited

Handy 89 numerous times, but no progress had been made in

obtaining a permit for the sewage system.

10. By the time of the September 6, 2002, inspection,

Mr. Norman Lippman of Handy 89 had become certified as a food

manager, correcting that repeated violation. Nonetheless,

Mr. Kment assigned Handy 89 an overall rating of "poor."

11. By letter dated September 9, 2002, the Department

denied Handy 89's application for a food permit based on its

failure to obtain a satisfactory sanitation inspection rating.

However, Handy 89 continued to operate and to sell products for

which a food per mit is required, such as dairy products and

meat. The Handy 89 store contained more than 12 linear feet of

shelving for these food products.

12. On September 23, 2002, the Department issued an

Administrative Complaint against Handy 89, citing the repeate d

violation for the sewage system, as well as the violations for

improper disposal of mop water and failure to have a certified

food manager. The Department proposed to settle the complaint

for payment of $900.00 and the correction of all violations

withi n 21 days of receipt of the Administrative Complaint. This

is the Administrative Complaint at issue in DOAH Case

No. 03 - 0535.

13. On October 17, 2002, Mr. Kment conducted an inspection

of the Handy 89 premises and cited the facility for failure t o

have a sewage and wastewater disposal system approved by Lee

County. Mr. Kment also noted the presence of live insect

infestation in some self - rising flour on the store shelves.

Handy 89 voluntarily destroyed the flour. Due to the failure to

make prog ress on the sewage system, Mr. Kment again assigned

Handy 89 an overall inspection rating of "poor."

14. On November 21, 2002, Mr. Kment conducted an

inspection of the Handy 89 premises and cited the facility for

failure to have a sewage and wastewat er disposal system approved

by Lee County. He noted that the owner was not present, and

that no documentation was left on the premises to indicate any

action on the sewage system. Mr. Kment assigned Handy 89 an

overall inspection rating of "poor."

15. O n December 5, 2002, the Department issued an

Administrative Complaint against Handy 89, citing the repeated

violation for the sewage system, as well as the violation for

insect infestation. The Department proposed to settle the

complaint for payment of $7 50.00 and the correction of all

violations within 21 days of receipt of the administrative

complaint. This is the Administrative Complaint at issue in

DOAH Case No. 03 - 0536.

16. Dr. John Fruin, the chief of the Division of Food

Safety, testified that the Department cannot give Handy 89 a

food permit unless it has an approved septic system and that the

Department is without authority to waive that requirement.

17. Handy 89 offered no testimony or documentary evidence

to dispute the Department's case that its sewage system was not

permitted by Lee County.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to Subsection 120.57(1) and

Section 120.569.

19. Because p roceedings involving the impositio n of

administrative fines are penal in nature, the Department has the

burden of proving by clear and convincing evidence the specific

allegations in the Administrative Complaints. See, e.g.,

Department of Banking and Finance, Division of Securities and

Inv estor Protection v. Osborne, Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

20. The definition of "clear and convincing" evidence is

adopted from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), whi ch provides:

[Clear] and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered, the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

See also Evans Packing Co. v. Department of Agriculture and

Consumer , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989).

21. Section 500.04(4) provides:

The following acts and the causing thereof

within the state are prohibited:

* * *

(4) The sale, delivery for sale, holding

for sale, or offering for sale of any

article in violation of s. 500.12.

22. Section 500.12 provides in relevant part:

(1)(a) A food permit from the department

is required of any person who operates a

food establishment or retail food store,

except:

1. Persons operating minor food outlets,

including, but not limited to, video stores,

that sell commercially prepackaged,

nonpotentially hazardous candy, chewing gum,

soda, or popcorn, provided the shelf space

for those items does not exceed 12 linear

feet and no other food is sold by the minor

food outlet.

2. Persons subject to continuous, onsite

federal or state inspection.

3. Persons selling only legumes in the

shell, either parched, roasted, or boiled.

* * *

(e) The department is the exclusive

regulatory and permitting authority for all

food outlets, retail food stores, food

establishments, convenience stores, and

minor food outlets in accordance with this

section. Application for a food permit must

be made on forms provided b y the department,

which forms must also contain provision for

application for registrations and permits

issued by other state agencies and for

collection of the food permit fee and any

other fees associated with registration,

licensing, or applicable surch arges. The

details of the application shall be

prescribed by department rule.

(f) The department may by rule establish

conditions for the manufacturing,

processing, packing, holding, or preparing

of food; the selling of food at wholesale or

retail; o r the transporting of food to

protect the public health and promote public

welfare by protecting the purchasing public

from injury by merchandising deceit.

23. The facts found above established that none of the

exceptions listed in Section 500.12(1)(a) apply to Handy 89.

Therefore, Handy 89 was required to obtain a food permit from

the Department in order to operate its business.

24. Rule 5K - 4.020(2), Florida Administrative Code,

provides in relevant part:

No food permit shall be issued until an

inspec tion has been made of the

establishment and its equipment and methods

of operation, and these found to comply with

the provisions of the Florida Food Safety

Act and rules adopted thereunder. . . .

25. Rule 5K - 4.004, Florida Administrative Code, sets fort h

the general requirements for the manufacturing, processing,

packing, holding, and retailing of foods. It provides in

relevant part:

The provisions of subsections (1) through

(6) shall apply in determining whether the

facilities, methods, practices and controls

used in the manufacture, processing,

packing, holding, retailing or offering for

sale of foods are in conformance with or are

operated or administered in conformity with

this rule to assure that food for human

consumption is safe.

* * *

( 3) SANITARY FACILITIES AND CONTROLS.

Each plant shall be equipped with adequate

sanitary facilities and accommodations

including, but not limited to, the

following:

* * *

(b) Sewage disposal -- Sewage disposal

shall be made into an approved sewer age

system or disposed of through other approved

means, in accordance with applicable

provisions of state sanitary code.

26. Rule 5K - 4.002, Florida Administrative Code, adopts by

reference the relevant provisions of federal regulations and

other standard s relating to food safety. It provides, in

relevant part:

(4) Food Code -- Provisions Adopted.

(a) Chapters 1 -- 7 of the "Food Code 1999"

published by the U.S. Public Health Service

of the U.S. Department of Health and Human

Services (1999), are her eby adopted by

reference as a rule under Chapter 500, F.S.,

except for the following provisions:

1. 1 - 201.10(B)(31), (32), (87)

2. 2 - 102.11

3. 3 - 304.14(B)(2)

4. 5 - 203.11(C)

5. 5 - 402.12

6. 6 - 202.110

All provision s in the "Food Code 1999"

that are adopted herein by reference shall

apply to all food establishments regulated

by the Florida Department of Agriculture and

Consumer Services. . . .

27. Section 5 - 202.11(A) of the Food Code 1999, adopted by

reference i n Rule 5K - 4.020(4), Florida Administrative Code,

provides: "A plumbing system shall be designed, constructed,

and installed according to law."

28. In Chapter 64E - 6, Florida Administrative Code, the

Department of Health sets forth the state standards for on - site

sewage treatment and disposal systems. This was the rule

chapter employed by Ms. Whalen of the Lee County Department of

Health to determine the requirements for Handy 89's on - site

sewage treatment system. In particular, Rule 64E - 6.001(4),

Florida Administrative Code, provides:

Except as provided for in s. 381.00655,

F.S., any existing and prior approved system

which has been placed into use and which

remains in satisfactory operating condition

shall remain valid for use under the terms

of the ru le and permit under which it was

approved. . . . If a prior approved

existing system has been approved by the DOH

county health department within the

preceding three years, and the system was

determined to be in satisfactory operating

condition at that ti me, a new inspection is

not required unless there is a record of

failure of the system. If it is determined

that a new inspection is not required, there

will be no charge for this application, but

reapproval shall be required. A commercial

system out of service for more than one year

shall be brought into full compliance with

current requirements of this Chapter prior

to the system being placed into service. If

the use of a building is changed or if

additions or alterations to a building are

made which w ill increase domestic sewage

flow, change sewage characteristics, or

compromise the integrity or function of the

system, the onsite sewage treatment and

disposal system serving such building shall

be brought into full compliance with the

provisions and req uirements of these

rules. . . . (Emphasis added.)

29. The Department established by clear and convincing

evidence that the sewage system at Handy 89 was a commercial

system that had been out of service for more than one year.

Handy 89 was, therefore, o bligated to bring the system into full

compliance with current requirements before it could receive a

food permit to operate its business. The Department established

by clear and convincing evidence that, despite being given ample

time to do so, Handy 89 failed to take any meaningful steps to

brings its sewage system into compliance. The Department

established by clear and convincing evidence that Handy 89

operated its business without a food permit from June 2002 until

at least the time the second Admini strative Complaint was issued

on December 2, 2002.

30. Section 500.121 provides in relevant part:

(1) In addition to the suspension

procedures provided in s. 500.12, the

department may impose a fine not exceeding

$5,000 against any retail food store or food

establishment that has violated this

chapter, which fine, when imposed and paid,

shall be deposited by the department into

the General Inspection Trust Fund. The

department may revoke or suspend the permit

of any such retail food store or food

estab lishment if it is satisfied that the

retail food store or food establishment has:

(a) Violated any of the provisions of this

chapter. . . .

* * *

(3) Any administrative order made and

entered by the department imposing a fine

pursuant to this section shall specify the

amount of the fine and the time limit for

payment thereof, not exceeding 15 days, and,

upon failure of the permitholder to pay the

fine within that time, the permit is subject

to suspension.

* * *

(5) The department sha ll post a prominent

closed - for - operation sign on any food

establishment that has had its permit

suspended or revoked. The department shall

also post such a sign on any establishment

judicially or administratively determined to

be operating without a permi t. It is a

misdemeanor of the second degree, punishable

as provided in s. 775.082 or s. 775.083, for

any person to deface or remove such closed -

for - operation sign or for any food

establishment to open for operation without

a permit or to open for operatio n while its

permit is suspended or revoked. The

department may impose administrative

sanctions for violations of this subsection.

RECOMMENDATION

Based on all the evidence of record, it is

RECOMMENDED t hat the Department of Agriculture and Consumer

Serv ices enter a final order finding that Handy 89 committed the

violations alleged in the Administrative Complaints; ordering

Handy 89 to pay an administrative fine in the amount of

$5,000.00 within 15 days of receipt of the final order, and

ordering that a c losed - for - operation sign be prominently posted

on Handy 89's food establishment until such time as Handy 89 has

obtained a food permit pursuant to Chapter 500.

DONE AND ENTERED this 5th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

_____ ______________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of September, 2003.

COPIES FURNISHED :

Norman Lippman

Handy 89 Sunoco

14531 North Cleveland Avenue

North Fort Myers, Florida 33903

John McCarthy, Esquire

Depart ment of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Phil Reis

1470 Route 46 East

Ledgewood, New Jersey 07825

Brenda D. Hyatt, Bureau Chief

Bureau of License and Bond

Department o f Agriculture and

Consumer Services

407 South Calhoun Street, Mail Station 38

Tallahassee, Florida 32399 - 0800

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 323 99 - 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 Fi nal Order in this case.