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.


View Dockets  
Summary: Petitioner proved that Respondent committed multiple violations of the Food Code as alleged in consolidated administrative complaints. Recommend that administrative fines be imposed.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/25/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 02/24/2011
Proceedings: Corrected RO
PDF:
Date: 02/24/2011
Proceedings: Corrected Recommended Order.
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
PDF:
Date: 02/17/2011
Proceedings: Recommended Order (hearing held December 22, 2010). CASE CLOSED.
PDF:
Date: 02/17/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/24/2011
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 01/24/2011
Proceedings: Petitioner's Notice of Filing Proposed Recommended Order.
Date: 01/13/2011
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 12/22/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 12/17/2010
Proceedings: Petitioner's Exhibits (exhibits not availabe for viewing) filed.
PDF:
Date: 12/17/2010
Proceedings: Petitioner's Exhibit List filed.
PDF:
Date: 12/17/2010
Proceedings: Petitioner's Witness List filed.
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).
PDF:
Date: 11/18/2010
Proceedings: Order of Consolidation (DOAH Case Nos. 10-9186 and 10-10095).
PDF:
Date: 11/15/2010
Proceedings: Petitioner's Motion for Consolidation filed.
PDF:
Date: 11/15/2010
Proceedings: Petitioner's Motion for Continuance filed.
PDF:
Date: 09/23/2010
Proceedings: Order Directing Filing of Exhibits
PDF:
Date: 09/23/2010
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/23/2010
Proceedings: Notice of Hearing by Video Teleconference (hearing set for November 24, 2010; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 09/23/2010
Proceedings: Petitioner's Response to Initial Order filed.
PDF:
Date: 09/17/2010
Proceedings: Initial Order.
PDF:
Date: 09/17/2010
Proceedings: Administrative Complaint filed.
PDF:
Date: 09/17/2010
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 09/17/2010
Proceedings: Agency referral filed.

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

Related Florida Statute(s) (5):