10-009186
Department Of Agriculture And Consumer Services vs.
Super Stop Six Avenue, Inc., D/B/A Super Stop
Status: Closed
Recommended Order on Thursday, February 17, 2011.
Recommended Order on Thursday, February 17, 2011.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF AGRICULTURE AND )
13CONSUMER SERVICES, )
16)
17Petitioner, )
19)
20vs. ) Case No s . 10 - 9186
29) 10 - 10095
33SUPER STOP SIXTH AVENUE, d/b/a )
39SUPER STOP, )
42)
43Respondent. )
45)
46RECOMMENDED ORDER
48Pursuant to notice, a formal hearing was held in this case
59on December 22, 2010, by telephone conference call before
68Administrative Law Judge Claude B. Arrington of the Division of
78Administrative Hearin gs (DOAH).
82APPEARANCES
83For Petitioner: Steven Lamar Hall, Esquire
89Department of Agriculture
92and Consumer Services
95407 South Calhoun Street, Suite 520
101Tallahassee, Fl orida 32399
105For Respondent: Hamid Lakhani
109Super Stop Six Avenue, Inc.,
114d/b/a Super Stop
11715150 Northeast six th Avenue
122North Miami Beach, Florida 33162
127STATEMENT OF THE ISSUES
131Whether Respondent committed the violations alleged in the
139subject Administrative Complaints, and, if so, the penalties
147that should be imposed.
151PRELIMINARY STATEMENT
153Respondent is convenience store with limited food service.
161Respondent se lls mostly pre - packaged food product s at retail,
173but it also provides ancillary food service.
180Petitioner is an agency of the State of Florida responsible
190for permitting and regulating food establishments.
196On June 22, 2010, a food safety inspector employe d by
207Petitioner inspected Respondent's store and noted food safety
215violations that will be discussed below. On August 2, 2010, a
226follow - up inspection revealed violations that will discussed
235below. Based on those violations, Petitioner filed an
243administra tive complaint against Respondent. Respondent timely
250requested a formal administrative hearing ; the matter was
258referred to DOAH and assigned Case No. 10 - 9186 .
269On August 18, 2010, a food safety inspector employed by
279Petitioner inspected Respondent's store and noted food safety
287violations that will be discussed below. On September 9, 2010,
297a follow - up inspection revealed violations that will discussed
307below. Based on those violations, Petitioner filed an
315administrative complaint against Respondent. Respon dent timely
322requested a formal administrative hearing ; the matter was
330referred to DOAH and assigned Case No. 10 - 10095.
340On November 18, 2010, the undersigned granted the
348Petitioner's Motion to Consolidate, thereby consolidating DOAH
355Case Nos. 10 - 9186 and 10 - 10095.
364At the formal hearing, Petitioner presented the testimony
372of Nelly Alvarez ( a Sanitation and Safety Specialist employed by
383Petitioner ), Jorge Ojeda (a Sanitation and Safety Specialist
392employed by Petitioner), and John Fruin, D.V.M . (Petitioner's
401Bu reau Chief for the Bureau of Food and Meat Inspection).
412Petitioner offered 12 sequentially - numbered exhibits, each of
421which was admitted into evidence. Hamid Lakhani, Respondent's
429owner, testified, but offered no other testimony and no
438exhibits.
439The Tran script, consisting of one volume, was filed
448January 13, 201 1 . Petitioner timely filed its Proposed
458Recommended Order, which has been duly considered by the
467undersigned in the preparation of this Recommended Order.
475Respondent did not file a proposed recom mended order. All
485statutory references are to Florida Statutes (2010).
492FINDINGS OF FACT
4951. Chapter 500, Florida Statutes , is the Florida Food
504Safety Act. Petitioner is the agency of the S tate of Florida
516that is responsible for the administration and en forcement of
526Chapter 500.
5282. Section 500.032(1) provides as follows:
534(1) [Petitioner] is charged with the
540administration and enforcement of this
545chapter in order to prevent fraud, harm,
552adulteration, misbranding, or false
556advertising in the preparation, manufacture,
561or sale of articles of food. It is further
570charged to enforce the provisions of this
577chapter relating to the production,
582manufacture, transportation, and sale of
587food, as well as articles entering into, and
595intended for use as ingredients in the
602preparation of food.
6053. Section 500.02(1) authorizes Petitioner to establish by
613rule conditions for the manufacturing, processing, packing,
620holding, or preparation of food and the selling of food at
631wholesale or retail. Pursuant to that authority, P etitioner has
641adopted by Florida Administrative Code Rule 5K - 4.002(4),
650pertinent parts of the " 2001 Food Code" and the "Supplement to
661the 2001 Food Code," published by the U.S. Public Health Service
672of the U.S. Department of Health and Human Services (the Food
683Code). The violations alleged by Petitioner in both
691administrative complaints , if proven, would constitute
697violations of the Food Code and, consequently, violations of
706c hapter 500.
7094 . At the times relevant to this proceeding, Respondent
719operated a c onvenience store located in Miami, Florida, that
729sold mostly pre - packaged food products at retail, but also
740provided ancillary food service (the facility) . The facility
749had a retail sales area, a backroom storage area, a walk - in
762cooler, and an ice machine . The food service operation included
773a hot case unit that prepared pre - cooked ready - to - eat food
788products in indi vidual portions for consumption and drinks such
798as milk, juice, sodas, and beer.
8045. Violations of the Food Code can be categorized as
"814critic al" or "non - critical". A s compared to a non - critical
829violation, a critical violation typically involves unsanitary
836conditions that are more likely to cause physical harm to a
847consume r or someone handling a product.
854J une 22, 2010 I nspection
8606 . Jorge Ojeda , a sanitation and safety specialist
869employed by Petitioner, performed a routine inspection of the
878facility on June 22, 2010. Mr. Ojeda's inspection revealed
887numerous food safety violations , including violations that are
895deemed critical violations.
8987 . Th e following are the critical violations found by
909Mr. Ojeda on June 22, 2010:
915A. Rodent droppings were present in the
922walk - in cooler and retail area;
929B. Ice found in bags in the retail area
938had not been tested for safety .
945C. An ice bag in the retai l area was
955missing a food label.
959D . There was evidence of smoking in the
968retail and backroom areas.
972E . There was no established employee
979health policy;
981F. A food employee was observed washing
988utensils or equipment in a hand - wash sink.
997G. Meat p atties in the heat case were
1006kept below the minimum approved temperature.
10128 . Other non - critical violations included general
1021disrepair of the facility, holes in walls, standing water, mold
1031on the ice machine, and failure to maintain equipment.
10409 . During the June 22, 2010, inspection, Mr. Ojeda issued
1051a Stop Sale Order for the meat patties in the hot case unit
1064until the product was reheated to the minimum temperature.
1073After the temperature was raised to an approved level, Mr. Ojeda
1084lifted the Stop Sale Or der for the meat patties.
109410 . Mr. Ojeda also issued a Stop Sale Order for products
1106in the walk - in cooler and in the ice machine until the walk - in
1122cooler and the ice machine were cleaned and sanitized. As noted
1133above, rodent droppings were found in the wa lk - in cooler.
1145Mr. Ojeda testified that he found mold inside the ice machine.
115611 . Mr. Ojeda assigned Respondent a "poor" rating and
1166advised that he would return for a follow - up inspection.
1177A ugust 2, 2010 I nspection
118312 . Mr. Ojeda conducted a follow - up ins pection of the
1196facility on August 2, 2010. The inspection revealed numerous
1205food safety violations, some of which are repeat violations .
121513 . The following are the critical violations found by
1225Mr. Ojeda on August 2, 2010:
1231A. There was evidence of roden t droppings
1239and live roaches in the facility;
1245B. Ice found in bags in the retail area
1254had not been tested for safety.
1260C. An ice bag in the retail area was
1269missing a food label.
1273D. There was evidence of smoking in the
1281retail and backroom areas.
1285E . There was no established employee
1292health policy;
1294F. A food employee was observed washing
1301utensils in a hand - wash sink.
1308G. Meat patties in the heat case were
1316kept below the minimum approved temperature.
132214 . Other violations included general disre pair of the
1332facility, holes in walls, and failure to maintain equipment and
1342fixtures.
1343A dministrative Complaint for Case No. 10 - 9186
135215 . Following the August 2, 2010, inspection, Petitioner
1361prepared an administrative complaint that underpins DOAH C ase
1370No. 10 - 9186. Petitioner seeks to impose an administrative fine
1381against Respondent in the total amount of $3,700.00 for the
1392violations found during the inspection s on June 22 and August 2 .
1405A ugust 18, 2010 I nspection
141116 . Mr. Ojeda conducted an inspection of th e facility on
1423August 18, 2010. During that inspection Mr. Ojeda found
1432numerous food safety violations.
143617 . The following are the critical violations found by
1446Mr. Ojeda on August 18, 2010:
1452A. There was evidence of the presence of
1460insects and rodents in the store.
1466B. There was evidence of smoking in the
1474retail and back room areas where food is
1482processed or prepared, where clean equipment
1488or utensils are stored, or were food is
1496uncovered or exposed.
1499C. There was mold present on the ice
1507machine.
1508D . Equipment and utensils were not
1515properly sanitized.
1517E. Items for sale in the retail area were
1526not marked for individual sale.
1531F. There was no established employee
1537health policy.
1539G. Food label was missing or incomplete.
1546Juice drinks were not labeled for individual
1553sale.
155418 . Other violations included general disrepair of the
1563facility, holes in walls, standing water, and failure to
1572maintain equipment and fixtures.
157619 . Mr. Ojeda issued a Stop Sale Order for all food items
1589in the store due to e vidence of rodents and rodent droppings
1601throughout the store.
160420 . Mr. Ojeda issued a Stop Use Order for the ice machine
1617because he found mold inside the unit. Mr. Ojeda also issued a
1629Stop Sale Order for the hot holding unit because the unit and
1641associate d utensils were not properly sanitized.
164821 . Mr. Ojeda assigned Respondent a "poor" rating and
1658advised that he would return for a follow - up inspection.
1669S eptember 9 , 2010 I nspection
167522 . Mr. Ojeda conducted a follow - up inspection of the
1687facility on Septembe r 9, 2010. During that inspection Mr. Ojeda
1698found numerous food safety violations.
170323 . The following are the critical violations found by
1713Mr. Ojeda on August 18, 2010:
1719A. There was evidence of the presence of
1727insects and rodents throughout the store.
1733B. There was evidence of smoking in the
1741retail and back room areas where food is
1749processed or prepared, where clean equipment
1755or utensils are stored, or were food is
1763uncovered or exposed.
1766C. Grade A milk and milk products were
1774being sold or used beyo nd the expiration
1782date on the container.
1786D. Items for sale in the retail area were
1795not marked for individual sale and were
1802missing labels .
1805F. There was no established employee
1811health policy.
181324 . Other violations included general disrepair of the
1822fa cility, holes in walls, standing water, and failure to
1832maintain equipment and fixtures.
183625 . Mr. Ojeda issued a Stop Sale Order for the expired
1848milk offered for sale in the retail area. The product, which
1859expired the day before the inspection, was release d to be
1870returned to the distributor.
187426 . Mr. Ojeda also issued a Stop Sale Order for all food
1887items in the store due to evidence of rodents and rodent
1898droppings throughout the store.
1902A dministrative Complaint for Case No. 10 - 10095
191127 . Following the Septem ber 9, 2010, inspection,
1920Petitioner prepared an administrative complaint that underpins
1927DOAH Case No. 10 - 10095. Petitioner seeks to impose an
1938administrative fine against Respondent in the total amount of
1947$1,550.00 for the violations found during the inspe ctions on
1958August 18 and September 9.
196328 . Petitioner proved by clear and convincing evidence
1972that Respondent committed the violations alleged in Case No.
198110 - 9186. The testimony of Dr. Fruin established that an
1992administrative fine in the amount of $3,700. 00 is reasonable for
2004those violations.
200629 . Petitioner proved by clear and convincing evidence
2015that Respondent committed the violations alleged in Case No.
202410 - 10095. The testimony of Dr. Fruin established that an
2035administrative fine in the amount of $1,5 00.00 is reasonable for
2047those violations.
2049CONCLUSIONS OF LAW
205230 . DOAH has jurisdiction over the subject matter of and
2063the parties to this proceeding pursuant to Sections 120.569 and
2073120.57(1), Florida Statutes.
207631. Petitioner has the burden of proving b y clear and
2087convincing evidence the allegations against Respondent. See
2094Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing
2105Co. v. Dep' t of Agric . & Consumer Serv s. , 550 So. 2d 112 (Fla.
21211st DCA 1989); and Inquiry Concerning a Judge , 645 So. 2 d 398
2134(Fla. 1994). The following statement has been repeatedly cited
2143in discussions of the clear and convincing evidence standard:
2152Clear and convincing evidence requires that
2158the evidence must be found to be credible;
2166the facts to which the witnesses test ify
2174must be distinctly remembered; the evidence
2180must be precise and explicit and the
2187witnesses must be lacking in confusion as to
2195the facts in issue. The evidence must be of
2204such weight that it produces in the mind of
2213the trier of fact the firm belief of (sic)
2222conviction, without hesitancy, as to the
2228truth of the allegations sought to be
2235established. Slomowitz v. Walker , 429 So.
22412d 797, 800 (Fla. 4th DCA 1983).
224832 . Petitioner proved the violations alleged in the two
2258administrative complaints that underp in this proceeding by clear
2267and convincing evidence .
227133. Section 500.121, Florida Statutes, authorizes
2277Petitioner to levy administrative fines up to $5,000.00 for a
2288violation of the Florida Food Safety Act.
229534. Petitioner seeks an administrative fine aga inst
2303Respondent in the amount of $3,700.00 for the violations alleged
2314and proven as to Case No. 10 - 9186. Petitioner established that
2326the amount of the fine is reasonable.
233335. Petitioner seeks an administrative fine against
2340Respondent in the amount of $1, 500.00 for the violations alleged
2351and proven as to Case No. 10 - 10095. Petitioner established that
2363the amount of the fine is reasonable.
2370RECOMMENDATION
2371Based on the foregoing Findings of Fact and Conclusions of
2381Law, it is RECOMMENDED that the Department of Agriculture and
2391Consumer Services enter a final order that finds Respondent
2400guilty of the violation s alleged in Case No 10 - 9186 and imposes
2414an administrative fine against Respondent in the amount of
2423$3,700.00 for those violations. It is further recomm ended that
2434the final order find Respondent guilty of the violations alleged
2444in Case No 10 - 10095 and impose an administrative fine against
2456Respondent in the amount of $1,500.00 for those violations.
2466DONE AND ENTERED this 1 7 th day of February, 2011, in
2478Talla hassee, Leon County, Florida.
2483S
2484CLAUDE B. ARRINGTON
2487Administrative Law Judge
2490Division of Administrative Hearings
2494The DeSoto Building
24971230 Apalachee Parkway
2500Tallahassee, Florida 32399 - 3060
2505(850) 488 - 9675
2509Fax Filing (850) 921 - 6847
2515www.doah.state.fl.us
2516Fil ed with the Clerk of the
2523Division of Administrative Hearings
2527this 1 7 th day of February , 201 1 .
2537COPIES FURNISHED :
2540Lorena Holley, General Counsel
2544Department of Agriculture
2547and Consumer Services
2550407 South Calhoun Street, Suite 520
2556Tallahassee, Florida 32399 - 0800
2561Honorable Adam Putman
2564Commissioner of Agriculture
2567Department of Agriculture
2570and Consumer Services
2573The Capitol, Plaza Level 10
2578Tallahassee, Florida 32399 - 0810
2583Steven Lamar Hall, Esquire
2587Department of Agriculture and Consumer Services
2593407 Sou th Calhoun Street, Suite 520
2600Tallahassee, Florida 32399
2603Hamid Lakhani
2605Super Stop Six Avenue, Inc., d/b/a Super Stop
261315150 Northeast 6th Avenue
2617North Miami Beach, Florida 33162
2622NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2628All parties have the right to submit written exceptions within
263815 days from the date of this Recommended Order. Any exceptions
2649to this Recommended Order should be filed with the agency that
2660will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/22/2011
- Proceedings: Letter to Judge Arrington from Steven Hall regarding clarification of conflicting statements in Recommended Order filed.
- PDF:
- Date: 02/17/2011
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 01/13/2011
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 12/22/2010
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 11/18/2010
- Proceedings: Order Granting Continuance and Re-scheduling Telephonic Final Hearing with Webcast Option (hearing set for December 22, 2010; 9:00 a.m.; Miami, FL).
Case Information
- Judge:
- CLAUDE B. ARRINGTON
- Date Filed:
- 09/17/2010
- Date Assignment:
- 09/17/2010
- Last Docket Entry:
- 10/25/2019
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- Department of Agriculture and Consumer Services
Counsels
-
Steven Lamar Hall, Esquire
Address of Record -
Hamid Lakhani
Address of Record