08-002836 Department Of Agriculture And Consumer Services vs. 777 Food Marketing, Llc, D/B/A Daily Food Market Status: Closed Recommended Order on Monday, December 22, 2008.

Summary: Respondent food establishment with repeated and numerous food safety violations should be fined $3,100.00.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 08-2836

)

777 FOOD MARKETING, LLC, d/b/a DAILY FOOD MARKET, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on November 5, 2008, in Lakeland, Florida.

APPEARANCES

For Petitioner: David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues are whether Respondent offered for sale

adulterated or misbranded food in violation of Subsections

500.04(1) and (2) and 500.10(1)(f), Florida Statutes (2007), 1

and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint against

Respondent on April 18, 2008. Respondent timely requested a

formal hearing.

At the hearing, Petitioner presented the testimony of three

witnesses and submitted six exhibits for admission into

evidence. Respondent did not appear and did not otherwise

submit any evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the record of the hearing.

Neither party requested a transcript of the hearing. Petitioner

timely filed its Proposed Recommended Order on November 14,

2008.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

licensing and regulating food establishments in the state.

Respondent operates a business that sells mostly pre-packaged

food products at retail but also provides ancillary food

service. The food service operation is a “deli” that prepares

ready-to-eat food products in individual portions for

consumption on the premises, including sandwiches, coffee, and

ice cream.

2. A sanitation and safety specialist (Specialist) for

Petitioner performed a routine inspection of the business on

February 28, 2008. Numerous food safety violations existed.

Ice held for sale had not been tested for safety. An open

mayonnaise container was stored at room temperature. Meat used

for the preparation of sandwiches was not documented as to how

long it had been open. No test strips were available for the

chlorine sanitizer. Ready-to-eat food items in the freezer were

not labeled with the preparation date. Fish was not labeled

with the product name, ingredients, and distributor. Batteries

and soap were stored above food items on retail shelves.

3. The Specialist removed the ice machine until the

required test for fecal coliforms was performed; the results of

which subsequently proved to be negative. The Specialist

required Respondent to label all packaged food items with the

product name, ingredients, weight, and distributor.

4. The Specialist informed Respondent that she had

assigned a poor rating to the premises and would return for a

re-inspection, which the Specialist performed on March 17, 2008.

Open meat in the deli area remained unmarked as to how long it

had been open. A cooker contained rice at 77 degrees rather

than the required 135 degrees. Cooked food items in the

refrigerator behind the meat cooler remained undated and

unlabeled. Food items in the freezer continued to be unlabeled

with the product name, ingredients, weight, and distributor.

Eggs, milk, and yogurt were stored in a retail cooler at

50 degrees rather than the required 41 degrees. Insect spray

and liquid air fresheners were stored above single service paper

towels.

5. The Specialist notified Respondent that she rated the

premises as poor and would return for another re-inspection,

which the Specialist performed on March 31, 2008. Respondent

had corrected the previous violations by March 31, 2008.

6. The Specialist returned on April 1, 2008, with her

supervisor. Mustard was stored in the deli at 80 degrees rather

than the required 41 degrees. Open foods and meat in the self-

service coolers in the deli were not documented as to how long

they had been open. Food was being stored in the refrigerator

behind the meat cases at 61 degrees rather than the required 41

degrees. Food items stored in the refrigerator in the back of

the premises were not documented as to how long they had been

open, and meat products stored in the self-service area were not

labeled. Frozen food in the top of a refrigerator was thawed.

A can of gasoline was stored in the mop sink.

7. Petitioner proposes a fine of $3,100.00. A fine of

$3,100.00 is reasonable under the circumstances.

8. Petitioner has not promulgated a rule prescribing

aggravating and mitigating circumstances for an administrative

fine. However, Petitioner presented relevant expert testimony

that was credible and persuasive.

9. Respondent committed numerous and egregious food safety

violations. A significant number of the violations were

critical violations and presented a significant risk to food

safety and public health. Respondent prepared, produced, and

packed or held food in a manner that exposed the food to

contamination and that presented other unwholesome conditions

that are injurious to health.

10. The record includes no evidence of actual harm to the

public. Respondent has no prior discipline.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the subject matter of and

Stat. (2008). DOAH provided the parties with adequate notice of

the administrative hearing.

12. Petitioner has the burden of proof in this proceeding.

Petitioner must show by clear and convincing evidence that

Respondent committed the acts alleged in the Administrative

Complaint and that the proposed penalty is reasonable.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996). Petitioner satisfied its burden of proof

concerning the alleged violations and the proposed penalty.

13. Food establishments that have ancillary food service

activities are regulated by Petitioner. § 500.12(5)(a).

Respondent manufactured, sold, delivered, and held adulterated

and mislabeled food in violation of Subsections 500.04(1)

and (2) and 500.10(1)(f). The aggravating and mitigating

factors have been discussed in the Findings of Fact.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of committing the acts and violations alleged

in the Administrative Complaint and imposing a fine of

$3,100.00.

DONE AND ENTERED this 22nd day of December, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of December, 2008.

ENDNOTE

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007), unless otherwise stated.

COPIES FURNISHED :

David W. Young, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

Khairul Islam

Daily Food Market

446 North Wabash Avenue

Lakeland, Florida 33815

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399-0800

Honorable Charles H. Bronson

Commissioner of Agriculture

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 should be filed with the agency that

will issue the Final Order in this case.