20-005566 Department Of Agriculture And Consumer Services vs. Tampa Maid Foods, Llc Status: Closed Recommended Order on Monday, April 12, 2021.

Summary: Resp. denied free access to DACS for inspection when it refused to allow inspectors to enter facility with DACS-issued cameras; DACS is within its authority to take and use photographs to illustrate food safety violations.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF A GRICULTURE A ND

C ONSUMER S ERVICES ,

Petitioner ,

Case No. 20 - 5566

vs.

T AMPA M AID F OODS , LLC ,

Respondent .

/

R ECOMMENDED O RDER

O n February 16, 2021, Administrative Law Judge Hetal Desai of the

Division of Administrative Hearings (DOAH) conducted a final hearing in

Tallahassee, Florida.

A PPEARANCES

For Petitioner: Allan J. Charles, Esquire

Magdalena Ozarowski, Esquire

Department of Agriculture and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, F lorida 32399

For Respondent: Daniel J. Fleming, Esquire

Johnson Pope Bokor Ruppel & Burns, LLP

401 East Jackson Street Suite 3100

Tampa, Florida 33602 - 5228

S TATEMENT OF T HE I SSUE

Whether Respondent violat ed section 500. 147 ( 1 ), Florida Statutes (2020) , 1

when it refused entry to Petitioner ' s inspectors unless the inspectors agreed

1 U nless stated otherwise, all references to statutes and administrative rules are to the 2020

version s that were in effect during the conduct at issue. Childers v. Dep ' t of Envtl. Prot ., 696

So. 2d 962, 964 (Fla. 1st DCA 1997).

to Respondent ' s " no camera " policy; and, if so, what penalty should be

imposed.

P RELIMINARY S TATEMENT

On November 5, 2020, the Department of Agriculture and C onsumer

Services (Department or DACS ) issued an Administrative Complaint against

Tampa Maid Foods, LLC (Tampa Maid) seeking a $5,000 fine and alleg ing

the following:

1. On March 9, 2020, The Department visited

Respondent ' s permitted facility to conduct a f ood

inspection pursuant to section 500.147(1), Florida

Statutes.

2. The inspector was denied entry to the food

establishment which is a violation of Section 500.004(6),

Florida Statutes . [ 2 ]

On December 28, 2020, Tampa Maid filed an Amended Pe t ition for Formal

Hearing pursuant to section 120.57(1) , Florida Statutes. Th e Department

referred this request to DOAH , where it was assig ned to the undersigned and

set for hearing.

A pre - hearing conference was held on February 12, 2021. The parties

subse quently filed a Joint Pre - Hearing Stipulation with four stipulated facts.

These facts have been incorporated in this Recommended Order , where

appropriate.

A final hearing was held on February 16, 2021. The Department offered

the testimony of three witnesses: Chris Hilliard, the Department ' s

representative and Chief of the Bureau of Food Inspection, Division of Food

Safety (Division) ; Frank Clayton Kilgor e , a Division Environmental

Specialist III; and Bhisham Ojha, a Division Environmental Specialist III.

2 Section 500.04, Prohibited a cts, prohibits the following: " (6) The refusal to permit entry or

inspection, or to permit the taking of a sample, as authorized by s. 500.147. "

The Department ' s Exhibits P1 through P3 were admitted into evidence.

Tampa Maid offered the testimony of Rod Stokes, its Director of Food Safety

and Quality Assurance; and James Joseph Lavelle, Vice President of

Captain ' s Fine Foods, LLC (a competitor to Tampa Maid). Tampa Maid ' s

Exhibits R1 through R4 were admitted into evidence.

The Transcript of the proceeding was filed with DOAH on March 10,

2021. 3 The deadline for filing post - hearing submittals was March 22, 2021.

The Department timely filed its Proposed Recommended Order (PRO);

Tampa Maid filed its PRO on March 23, 2021. As there was no objection to

Respondent ' s late - filed PRO, both parties ' PROs have been considered.

F INDINGS OF F ACT

1 . Petitioner is the state agency charged with regu lating f ood

e stablishments pursuant to chapter 500 , Florida Statutes (the Food Safety

Act), and Florida Administrative Code C hapter 5K - 4.

2 . At all times relevant, Tampa Maid was permitted as a f ood

e stablishment (Food Permit No. 28143) by the Department. 4 Tampa Maid

operates a shrimp and shellfish processing plant at 1600 Kathleen Road in

Lakeland, Florida (Facility) .

3 . As a seafood processor, Tampa Maid is subject to the jurisdiction of the

federal Food and Drug Administration (FDA), and specifically to seafood

Hazard Analysis Critical Control Points ( HACCP ) inspections.

4 . The Department contracts with the FDA to perform various types of

inspections including HACCP inspections. Th e Department's FDA contract

contemplates that (1) Department inspectors wi ll collect information and

3 An official word index to the Transcript was submitted on March 31, 2021.

4 Section 500.03(p) defines " Food establishment " as " factory, food outlet, or other facility

manufacturing, processing, packing, holding, or preparing food or selling food at wholesale or

retail. "

evidence, (2) evidence can be in the form of photographs, and (3) evidence

collected is not subject to public records requests, but rather must be kept

confidential. 5 It states:

All information collected during the performance o f

this contract shall be considered as confidential

commercial information, including the

Establishment Inspection Report (EIR), FDA 483, or

equivalent forms, evidence collected, and all other

supporting documentation. Evidence and supporting

documentation may include supplier, receiving, and

distribution records, photographs, complaint

records, laboratory results, and other documents

collected during the performance of the contract. The

Contractor shall notify the Division Technical

Advisor within three (3) business days after receipt

of a public records request for information obtained

during the performance of the contract is received.

The Contractor is not authorized to release

confidential commercial information. (emphasis

added).

5 . The Department trains staff to conduct various types of inspections of

food establishments. The Department also issues inspector s equipment to be

used to perform their duties. This includes tools such as a flashlight, probe

thermometer, test strips for sanitizers, and mobile phones. The Department -

issued phones have a camera to take photographs during an inspection.

6 . The Department has developed the Manufactured Food Inspection

Protocol (Protocol) which contains the following instructions for inspectors:

6.5 Refusal of Inspection

Notify a manager immediately if you are denied

entry to any part of the establishment including

being restricted from taking photographs of violative

conditions, collecting samples, or if the

5 Chapter 500 is to be interpreted to be consistent with the FDA ' s rules and regulations. See

§ 500.09(3), Fla. Stat. Additionally, the Department has adopted federal regulations and

other standards. Fla. Adm in . Code R . 5K - 4.002. A rticle 5.3.4 of the FDA ' s Investigation

Operations Manual ( 2021 ) provides further instructions and guidance to insp ectors of

documenting conditions using photographs during inspections. See FDA website at:

https://www.fda.gov/media/113432/download (last visited April 6 , 2021).

establishment management or person in charge

refuses to provide access to required food records;

this may constitute a refusal of inspection.

* * *

7.1 FIMS Review

[Before an inspection] r eview recent inspection

reports È for attached files, documents,

photographs, etc.

* * *

8.1.1. Signing of Non - FDACS Documents

Circumstances may arise in which a food

establishment requests the [inspector] to sign

documents during the inspection. Listed below are

specific guidelines for these circumstances. Contact

a manager f you encounter a situation not listed.

8.1.2 Proprietary Documents

Florida Statute Chapter 500.147 authorizes the

Department to have access to any food

establishment È for the purposes of inspecting such

establishment È to determine whether this chapter

or any rule adopted under this chapter is bein g

violated. Documents including, but not limited to,

waivers , nondisclosure, confidentiality agreements

may include language that inhibits our authority to

conduct the inspection. If you are asked to sign these

types of documents inform the person in charg e that

you are not authorized to sign the documents. If they

persist and /or deny you entry, contact a manager as

this may constitute a refusal of inspection.

* * *

8.1.4 Sign - In and Sign - Out Rosters

All FADCS employees are authorized to sign - in and

sig n - out at food establishment s , so far as they sign -

in document does not include language that would

impede the inspection.

* * *

13. Inspection Techniques and Evidence

Development

Collect adequate evidence and documentation in

accordance with FDACS procedures to support

inspectional observations such as those listed below:

* * *

13.2 Photographs

Photographs serve as supporting evidence when

documenting violative practices or conditions.

Photographs should be related to conditions

contributing to a dulteration of the finished product.

Excessive amounts of photographs are not necessary

to support your documentation. Ensure photographs

clearly represent the conditions observed. These

photographs must be uploaded to the FIMS

inspection visit.

7 . As explained by Inspectors Frank Kilgor e and Bhisham Ojha i t is " not

un common " f or inspectors to take photographs during an inspection for

various reasons. The most obvious reason is to document violative conditions.

A n example given at the hearing was of an inspector using a camera to take

photographs of rodent droppings (which are presumably a health and safety

violation in a food establishment) to show they existed inside a particular

facility.

8 . Another reason an inspector would take p hotographs woul d be to

establish whether the product is interstate commerce. An inspector could

take a photograph of the packing materials o n the box in a food

establishment to later determine whether it had been shipped from out of

state.

9 . Inspectors can also document through photographs whether a facility is

operating beyond the scope of its permit or license. For example, an entity

may be permitted to operate as a warehouse , but during the inspection it may

be discovered that the entity is also repacking seafood or s pices. A

photograph of the unlicensed activity can be included in the inspection report

to e stablish th e improper activity.

10 . Finally, photographs are helpful for follow - up inspections to establish

whether a violation still exists. For example, a piece o f equipment may be

broken or dirty in violation of safety regulations during an inspection. On the

follow - up inspection, a comparison can be made to a photograph taken during

the original visit to establish if it has been repaired or cleaned.

1 1 . Inspecto rs are trained to take photographs during an inspection and

how they can be used. A s stated in the Protocol and supported by the

testimony of the inspector s, an inspector must have a need for taking a

picture, such as a suspected violation, and cannot take pictures for no reason.

12 . In a ddition to instructing inspectors on how to use photographs, the

Protocol advises inspectors on what types of documents they can sign as long

as there are no restrictions on their ability to conduct the inspection.

Although they are allowed to sign a " Sign - In/Sign - Out " sheet, they are not to

sign " waivers, nondisclosure, confidentiality agreements may include

language that inhibits our aut hority to conduct the inspection. " If faced with

these documents , they are to refuse to sign them ; if denied entry by the entity

being inspected, the inspector is instructed to contact the Department.

March 9, 2020

13 . On March 9, 2020, Mr. Kilgore and M r. Ojha visited Tampa Maid ' s

facility to conduct a n HAACP and FDA contract inspection. Mr. Kilgore was

the lead inspector and was training Mr. Ojha.

14. Upon arrival, the inspectors were asked to sign a COVID protocol

acknowledgment or questionnaire. Whe n the inspectors refused to sign the

document, Tampa Maid accepted their verbal answers to the COVID

questions.

15. Then, a s a prerequisite to entering the part of the Facility the

inspectors were to inspect , Rod Stokes, Tampa Maid ' s Director of Food Safe ty

and Quality Assurance, asked the inspectors to sign a ledger titled " Visitors

Register , " located at a desk in the office of the Facility. The Visitors Register

was located on a desk next to a large placard which stated, " FOOD

DEFENSE. PLEASE SIGN IN. "

1 6 . Next to the Visitors Register and underneath the placard wa s a

document titled, " Visitor ' s Information " and is copied below :

The " Visitor Information " sheet included a list of 14 items typed in " ALL

CAPS " including instructions (such as " sign in, " " be careful of moving

equipment , " " do not touch the equipment, " and " report any intestinal illness " )

and prohibitions (for jewelry, gum, food, tobacco, open - toed shoes, and

weapons). The item at issue is located in the middle of the list: " 8. No

Cameras Al lowed. " At the very bottom of this document, after being

instructed to " enjoy your visit, " in a smaller font and not capitalized , was a

conclusion that , by signing the visitor ' s log (presumably the same as the

" Visitor ' s Register " ) a visitor was agreeing to follow the 14 listed statements .

1 7 . Both inspectors had visited the Facility on previous occasions and both

had signed the Visitors Register. Mr. Ojha claimed he did not recall the " no

camera " instruction listed as number eight on the Visitor Information sheet

and did not agree to it , nor did he follow the instructions . Rather, he kept the

Department - issued phone , which had the camera , in his back pocket during

the inspection.

18. Mr. Kilgore remembered previously signing the Visitors Register , but

he did not notice the Visitor Information language. He explained that the

Visitor Information sheet was not attached to the Visitors Register . I f he had

noticed the language , he would not have signed the ledger. He also claimed

that he always kept the Department issued phone with him during

inspections.

1 9 . When the Department inspectors refused to perform the inspection

without their cameras on March 9, 2020 , Mr. Stokes would not allow th em to

proceed. Mr. Stokes did not believe the inspectors had the authority to use a

camera during the inspection , and he demanded that the inspectors or the

Department give him the legal basis for the Department ' s authority to bring

cameras into a facility . Although there was a discussion between Mr. Stokes

and Department staff, n othing was provided to Mr. Stokes to change his

mind .

20 . Ultimately, Mr. Kilgore informed Mr. Stokes that they would not

conduct the inspection without their phones and that prohi biting the m from

entering the F acility with cameras could result in a refusal of inspection.

Mr. Stokes continued to refuse to let the inspectors proceed into the Facility

with their Department - issued phones.

21. No inspection took place on March 9, 2020, and there is no evidence

the Tampa Maid Facility has been inspected since that time.

C ONCLUSIONS OF L AW

22 . DOAH has jurisdiction over the subject matter and the parties to this

proceeding p ursuant to sections 120.569 and 120.57(1), Florida Statutes.

23 . The Department is required to prove the allegations in its

Administrative Complaint by clear and convincing evidence. See Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

24 . Clear and convincing evidence " requires more proof than a

' preponderance of the evidence ' but less than ' beyond and to the exclusion of a

reasonable doubt. '" In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The c ourt

in Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), stated that:

[C]lear 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 testimo ny 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 o f the allegations sought

to be established.

2 5 . At issue is whether Tampa Maid ' s prohibit ion of the Department ' s

inspectors to enter the Facility with their cameras violated section 500.147.

This section explicitly provides that the Department be given " free access È

for the purpose of inspecting such establishment " and to ensure compliance

with food safety rules :

500.147 Inspection of food establishments, food

records, and vehicles. Ð

(1) The department or its duly authorized agent

shall have free access at all reasonable hours to any

food establishment , any food records, or any vehicle

being used to transport or hold food in commerce for

the purpose of inspecting such establishment ,

records, or vehicle to determine whether this

chapter or any rule adopte d under this chapter is

being violated; to secure a sample or a specimen of

any food after paying or offering to pay for such

sample; to see that all sanitary rules adopted by the

department are complied with; to facilitate tracing

of food products in the event of a food - borne illness

outbreak or identification of an adulterated or

misbranded food item; or to enforce the special -

occupancy provisions of the Florida Building Code

which apply to food establishments.

(emphasis added).

Statutory Interpretation

2 6 . There is no dispute that Tampa Maid denied the inspectors ent ry to

the Facility as long as they carried their cameras. Tampa Maid argues the

use of cameras or the taking of photography is not mentioned in the Food

Safety Act, and therefore, the inspect ors had no authority to bring in cameras

or take photographs of alleged violations under the statute. The Department

asserts that it has the authority to have free access to food facilities to

investigate and enforce federal and state safety regulations. I t also asserts

that the Food Safety Act gives the Department the right to inspect food

facilities freely, without restraints or restrictions.

27. Tampa Maid is correct that the use of photography is not expressly

mentioned for in the Food Safety Act. Ther efore, we must determine whether

the use of cameras can be otherwise interpreted from the statutory language.

The general principles relating to the interpretation of statutes are

summarized below:

It is well established that the construction of a

statute is a question of law reviewable de novo.

Dixon v. City of Jacksonville , 774 So. 2d 763, 765

(Fla. 1st DCA 2000). Legislative intent is the

polestar that guides this Court ' s statutory

construction an alysis. See State v. J.M. , 824 So. 2d

105, 110 (Fla. 2002) (citation omitted). In construing

a statute, th[e] Court must look to the statute ' s plain

language. See Fla. Dep ' t of Educ. v. Cooper , 858 So.

2d 394, 395 (Fla. 1st DCA 2003); Jackson County

Hosp. Corp. v. Aldrich , 835 So. 2d 318, 328 - 29 (Fla.

1st DCA 2002); see also State v. Rife , 789 So. 2d 288,

292 (Fla. 2001)(noting that legislative intent is

determined primarily from the language of a

statute). Where the language of a statute is clear

and unam biguous, it must be given its plain and

ordinary meaning. Cooper , 858 So. 2d at 395

(citations omitted). Where a statute is ambiguous,

courts may then resort to the rules of statutory

construction. BellSouth Telecomms., Inc. v. Meeks ,

863 So. 2d 287, 289 ( Fla. 2003).

Bruner v. GC - GW, Inc. , 880 So. 2d 1244, 1246 - 47 (Fla. 1st DCA 2004).

2 8 . As an initial matter, it must be determined what is the scope of the

Department ' s authority and the intent of the Legislature in giving the

Department this authority . T he Food Safety Act is intended to:

(1) Safeguard the public health and promote the

public welfare by protecting the consuming public

from injury by product use and the purchasing

public from injury by merchandising deceit, flowing

from intrastate commerce in food;

(2) Provide legislation which shall be uniform, as

provided in this chapter, and administered so far as

practicable in conformity with the provisions of, and

regulations issued under the authority of, the

Federal Food, Drug, and Cosmetic Act; the

Agriculture Marketing Act of 1946; and likewise

uniform with the Federal Trade Commission Act, to

the extent that it expressly prohibits the false

advertisement of food; and

(3) Promote thereby uniformity of such state and

federal laws and their administra tion and

enforcement throughout the United States and in

the several states.

§ 500.02, Fla. Stat.

29. Given the important public interest provided in section 500.02, the

L egislature clearly provided the Department with inspection and

investigatory author ity which was intended to be broad and include, inter

alia , the use of evidentiary collecting devices . See Dow Chem. Co. v. U.S . , 476

U.S. 227 (1986) ; In re Nowell , 293 N.C. 235, 237 S.E.2d 246, 252 (1977) ( " Any

administrative agency empowered to investiga te complaints and allegations

of wrongdoing must have a broad discretion if it is to function at all. " ) ; A laska

State Comm ' n for Human Rights v. Anderson , 426 P.3d 956, 963 (A laska

2018) ( finding statute task ing agency with investigating discrimination and

requiring it to keep investigations confidential had the authority to limit

participants during investigatory interviews).

30 . The Supreme Court ' s discussion in Dow Chemical is persuasive

guidance. There, a company found in violation of the federal Cl ean Air Act

claimed that the agency tasked with enforcing th at Act had no authority to

use aerial photography to implement its statutory power for conducting a site

inspection . The Court held:

Congress has vested in EPA certain investigatory

and enforcemen t authority, without spelling out

precisely how this authority was to be exercised in

all the myriad circumstances that might arise in

monitoring matters related to clean air and water

standards. When Congress invests an agency with

enforcement and investi gatory authority, it is not

necessary to identify explicitly each and every

technique that may be used in the course of executing

the statutory mission . È Regulatory or enforcement

authority generally carries with it all the modes of

inquiry and investigation traditionally employed or

useful to execute the authority granted. (emphasis

added).

476 U.S. at 233 .

31 . Although the Dow Chemical Court did not address whether the result

would have been the same if the photograph had been taken during an in -

person inspection, here Tampa Maid had no reasonable expectation of privacy

since it operates and is regulated under the purview of both federal and state

agencies . See U.S. v. New England Grocers Supply Co. , 488 F. Supp. 230, 238

(D. Mass 1980) (allowing FDA to proceed with warrantless inspections;

finding FDA had authority to conduct inspections and did not violate Fourth

Amendment ) ; U.S. v. Gel Spice Co., Inc. , 773 F.2d 427 (2d Cir. 1985) (denying

suppression of evidence of photographs taken dur ing FDA inspections;

finding photographs taken during inspection were lawfully obtained) ; U.S. v.

Del Campo Baking Mfg. Co. , 345 F. Supp. 1371 , 1375 - 76 (D. Del. 1972) ( " if

inspection is to be effective and serve as a credible deterrent, unannounced,

even frequent, inspections are essential. In this context, the prerequisite of a

warrant could easily frustrate inspection; and if the necessary flexibility as to

time, scope and frequency is to be preserved, the protections afforded by a

warrant would be negli gible. " ( citations omitted ) ); and Contreras v. City of

Chicago , 119 F.3d 1286 , 1290 (7th Cir. 1997) ( rejecting argument that

inspections were unnecessary to further the regulatory scheme ; noting courts

are not task ed with " evaluating the necessity of each particular aspect of a

regulatory scheme. " ).

32. As explained in United States v. Lagrou Distribution Sys tem , Inc. ,

2004 WL 524438 (N.D. Ill. Feb. 2, 2004) :

It is well established that a business owner ' s

expectation of privacy in commercial property is

significantly less than such expectation in a private

home. See New York v. Burger , 482 U.S. 691, 107

S.Ct. 2636, 96 L.Ed.2d 601 (1987). Further, any

expectation of privacy is even further attenuated in

co mmercial property that is used in a " closely

regulated " industry. See id. In a closely regulated

industry, such as the food storage and shipping

industry, warrantless searches do not violate the

Fourth Amendment, provided that such searches

are within the regulatory scheme.

Id. at *5.

3 3 . Moreover, the Department has explicit authority to enforce health and

safety regulations. The Legislature gave the Department oversight over " the

administration and enforcement " of the Food Safety Act " in order to prevent

fraud, harm, adulteration, misbranding, or false advertising in the

preparation, manufacture, or sale of articles of food " and " to enforce the

provisions of this chapter relating to the production, manufacture,

transportation, and sale of food, as well as articles entering into, and

intended for use as ingredients in the preparation of, food. " § 500.032, Fla.

Stat. See also § 500.171, Fla. Stat. ( giving the Department authority to bring

actions to establish and " enjoin the violation or threatened violation of any

provision of this chapter, or rule adopted under this chapter " by a

presentation of competent and substantial evidence).

3 4 . As stated above, the legislative intent of the Food Safety Act is to

protect the publ ic from injury tha t may be caused by the consumption of

manufactured and processed food. As in Dow Chemical , it was unnecessary

for the Florida Legislature to explicitly include the use of cameras, a

thermometer, flashlight, pen , or paper in chapter 500 for the Department to

utilize such equipment in conducting its inspections.

3 5 . Next, a review of the Food Safety Act ' s plain language to assess

whether it is ambiguous is warranted. Respondent is correct that the term

" camera " doe s not appear within the Food Safety Act. A s stated above,

however, the Department is given the authority to " have free access È for the

purpose of inspecting, " and " charged with the administration and

enforcement of this chapter. " Additionally, the Department is given the

power to collect, report , and illustrate information in aid of investigations.

Section 500.148 explicitly provides,

500.148 Reports and dissemination of information;

confidentiality. Ð

(1)(a) Information that is deemed confidentia l

under 21 C.F.R. s. 20.61, s. 20.62, or s. 20.88, or 5

U.S.C. s. 552(b), and that is provided to the

department during a joint investigation concerning

food safety or food - borne illness, as a requirement

for conducting a federal - state contract or

partners hip activity, or for regulatory review, is

confidential and exempt from s. 119.07(1) and s.

24(a), Art. I of the State Constitution.

(b) Such confidential and exempt information may

not be disclosed except under a final determination

by the appropriate fed eral agency that the

information is no longer entitled to protection or

pursuant to an order of the court.

(c) This section does not prohibit the department

from collecting, reporting, or illustrating the results

of these investigations.

(emphasis added) .

36 . Neither " inspect , " " investigate , " nor " illustrate " are defined within the

Food Safety Act , or within rule chapter 5K - 4 . If a term is not defined in rule

or statute, its common ordinary meaning applies. See Cole Vision Corp. v.

Dep ' t of Bus. & Prof ' l Reg. , 688 So. 2d 404, 410 (Fla. 1st DCA 1997). It is

appropriate to refer to dictionary definitions when construing statutes to

ascertain the plain and ordinary meaning of the words used therein. See

Debaun v. State , 213 So. 3d 747, 751 (Fla. 2017); Sch. B d. of Palm Beach Cty.

v. Survivors Charter Sch. , Inc. , 3 So. 3d 1220, 1233 (Fla. 2009).

37 . Merriam Webster ' s online dictionary defines " inspect " as " to view

closely in critical appraisal " or " to examine officially. " See Definition of

"inspect" at h ttps: //www.merriamwebster.com/dictionary/inspect (last

visited April 5 , 2021). The same dictionary defines " investigate " as " to

observe or study by close examination of systematic inquiry. " See Definition

of "investigate" at https://www.merriam - webster.com/dic tionary/investigate

(last visited April 5 , 2021). Finally, this dictionary defines " illustrate " as " to

show clearly. " See Definition of "illustrate" at

https://www.merriamwebster.com/dictionary/illustrate (last visited April 5 ,

2021).

38 . In the administrative law context, j ust as an inspector might use the

internet to determine a facility ' s business hours, a phone to schedule an

inspection, a flashlight to illuminate poorly lit areas within a facility, or a

paper and pencil to record those observations, a camera is an effective ( and

perhaps more accurate ) tool that would be useful during an official

examination or close examination of systematic inquiry . See U .S. v. Acri

Wholesale Grocery Co. , 409 F. Supp. 529, 533 (S.D. Iowa 1976) ( noting once

the validity of the inspection is established, the propriety of a photographic

" search " is coextensive with the validity of the inspection ( citations omitted) ) .

3 9 . Under Tampa Maid ' s interpretation of the statutory language, the

Department would be precluded from using any tools not specifically

mentioned in the Food Safety Act when investigating or inspecting an

establishment. This interpretation conflicts with the well - established

principle that interpretations of statutes that lead to absurd resul ts should be

avoided . See Murray v. Mariner Health , 994 So. 2d 1051 (Fla. 2008).

4 0 . Moreover, Tampa Maid ' s concerns regarding the exposure of trade

secrets are ill - founded. Specifically, Respondent argues that if the

Department inspectors are permitted t o bring int o processing or

manufacturing facilities to potentially take photographs, those photographs

might be subject to a request for production pursuant to chapter 119, Florida

Statutes, and such a production might reveal confidential business

informat ion. This hypothetical ignores the specific, and applicable public

records exemption s found within both federal and state statutes and

reiterated in the FDA contract . See §§ 500.148, 688.403, and 812.081, Fla.

Stat.

4 1 . In fact, there was no evidence at the hearing that the Department has

ever revealed trade secrets obtained as part of a regulatory inspection nor

asserted the inapplicability of the exemption from public records disclosure.

Although Tampa Maid ' s concerns m ay be valid, there are ample statutory

protections that address these concerns.

4 2 . In summary, the undersigned finds that the use of cameras is within

the Department ' s statutory authority to conduct free inspections and to

collect and illustrate informati on for the enforcement of the Food Safety Act.

Necessity of Photographic Evidence

4 3 . Tampa Maid also argues photographic evidence is not necessary for

the Department to properly administer the Food Safety Act, and points to

evidence that the Department ' s inspectors had not taken photographs of its

Facility on past inspections. Although they may not always be necessary, the

photographs could be evidence to support the Department ' s prosecution of

violations of the Food Safety Act.

44. It is well known that photographs can be used as evidence of

regulatory violations . See Lamar Advertising Company - Lakeland v. Dep ' t of

Transp. , 2007 WL 1697095, at *2 (DOAH June 8, 2007; DOT Sept. 7, 2007 )

(referencing photographs taken before and after an inspection to show

violation of abandoned billboard); Dep ' t of Envir. Protection v. Ravan , 2018

WL 3131988, at *2 (DOAH June 8, 2018) (finding inspector ' s testimony,

analysis, and photographs of wetlands established the filled area consisted of

wetlands and covered around 0.11 acres).

4 5 . In fact, a lack of photographic evidence can lead to a dismissal of an

administrative complaint for health and safety violations. See Dep ' t of Prof .

Reg . , Bd . o f Cosme tology v. Jyles R. Garmon d/b/a Blackmore Beauty Salon ,

1988 WL 617880, at *2 (DOAH Aug. 31, 1988 ; DPBR Jan. 30,

1989 )(dismissing complaint where DPR failed to offer into evidence any

photographs showing the conditions of the salon at the time of the inspe ction;

finding the uncorroborated testimony of the investigator was too vague to

allow disciplinary action to be taken). As such, the undersigned finds

photographs are useful tool s authorized under the Department ' s powers to

investigate and prosecute potential safety violations.

4 6 . Ironically, Tampa Maid offered photographs into evidence at the final

hearing of the front desk where it kept its Visitors Register, placard, and

Visitor Information list. It did this to " illustrate " the setting, which the

undersigned would have otherwise had to imagine based on the testimony.

The undersigned rejects the argument that Tampa Maid makes that the

Department cannot take and use similar photographs to illustrate the

conditions of a food establishment during an inspection , or that such evidence

is unnecessary.

Estoppel

4 7 . Florida Maid next argues the Department is estopped, or otherwise

equitably barred, from using cameras because its inspectors previously

agreed to Tampa Maid ' s " no - camera " policy by signing the Visitor s Register .

4 8 . " As a general rule, equitable estoppel will be applied against the state

only in rare instances and under exceptional circumstances. " Dep ' t of Rev. v.

Anderson , 40 3 So. 2d 397, 400 (Fla. 1981). Det rimental reliance or estoppel

based on a government ' s actions requires:

(a) a representation as to a material fact that is

contrary to a later - asserted position;

(b) reliance on that representation; and,

(c) a change in position detrimental to the party

claiming estoppel, caused by the representation and

reliance thereon.

Council Bros., Inc. v. City of Tallahassee , 634 So. 2d 264, 266 (Fla. 1st DCA

1994). In other words, e quitable estoppel must include s ome positive act upon

which Tampa Maid had a right to rely and did rely to its detriment. See

Hoffman v. State, Dep ' t of Mgmt. Servs., Div. of Ret. , 964 So. 2d 163, 166 (Fla.

1st DCA 2007); Wise v. Dep ' t of Mgmt. Servs., Div. of Ret. , 930 So. 2d 867, 873

( Fla. 2d DCA 2006).

49 . T o establish equitable estoppel as a defense to the violation asserted in

the Administrative Compl ai nt, Tampa Maid must prove the elements by

clear and convincing evidence. Hoffman, 964 So. 2d at 166.

50 . Here, no evidence establis hes the Department inspectors made

representations or explicitly agreed not to use their camera s during their

inspections. The " no camera " language was not contained in a separate

acknowledgment form signed by each guest. Neither Mr. Ojha n or

Mr. Kilgore noticed the " no camera " language on the document that was

located next to the l edger prior to their inspection on March 9, 2020 . To the

contrary , Mr. Ojha testified that even if he had agreed to the " no camera "

condition by signing the Visitors Reg ister in the past, he had taken his

camera into the Facility anyway.

51 . There was insufficient proof that the inspectors or the Department

knowingly waived or even had the authority to waive the Department ' s

authority to use cameras. See De p ' t of Rev . v. Anderson , 403 So.2d 397 (Fla.

1981) (stating that equitable estoppel can be applied against the State in

" rare instances and under exceptional circumstances " ). As such, the

Department is not estopped from insisting that their inspectors be allowed to

u se cameras, if necessary, during an inspection.

Unadopted Rule Challenge

52 . Finally, Tampa Maid asserts that the use of cameras as described in

the P rotocol constitutes an unadopted rule and, thus, is unenforceable. 6

53 . Section 120.52(16), in part, def ines a " Rule " as:

" Rule " means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the procedure or

practice requirements of an agency and includes any

form which imposes any requirement or solicits any

information not specifically required by statute or by

an existing rule. The term also includes the

amendment or repeal of a rule. The term does not

include:

(a) Internal management memoranda which do not

affect either the private interests of any person or

any plan or procedure important to the public and

6 Tampa Maid did not bring this action as an unpromulgated rule challenge pursuant to

section 120.56. However, section 120.57(1)(e) prohibits the undersigned and the Department

from utilizing an unpromulgated rule or a rule that is an invalid exercise of delegated

legislative authority. Furthermore, s ection 120.57(1)(e)2. allows an assertion that the agency

has used an unpromulgated rule as a defense to an agency action.

which have no application outside the agency

issuing the memorandum.

54 . An unadopted rule is an agency s tatement that meets the definition of

the term rule, as stated above, but that has not been adopted according to the

requirements of section 120.54. § 120.52(20), Fla. Stat.

55 . " [A] n agency interpretation of a statute which simply reiterates the

legislat ure ' s statutory mandate and does not place upon the statute an

interpretation that is not apparent from its literal reading ... is not an

unpromulgated rule, and actions based on such an interpretation are

permissible without requiring the agency to go thr ough rulemaking. "

Amerisure Mut. Ins. Co. v. Dep ' t of Fin. Servs. , 156 So. 3d 520, 532 (Fla. 1st

DCA 2015). In other words, if an agency statement " merely reiterates a law,

or declares what is readily apparent from the text of the law ... the statement

is not considered a rule. " Grabba - Leaf, LLC v. Dep ' t of Bus. & Prof ' l Reg. , 257

So. 3d 1205, 1207 (Fla. 1st DCA 2018).

56 . As discussed above, the use of a camera during an inspection merely

declares what is apparent in the Food Safety Act: the Department has the

right to free access for inspections and can collect and illustrate information

it discovers during these inspections for enforcement of the health and safety

rules and regulations.

57 . Moreover, th e directions in the Protocol for an inspector to noti fy a

manager if access is restricted , or he or she is not permitted to take

photographs or samples , is a n internal policy that merely directs Division

staff to alert Division management of how to handle a restriction to the free

access authorized by statut e. B ring ing a potential violation of section

500.147(1) to the attention of Division leadership is not a " rule " as defined by

section 1 20.52(16). The direction to staff does not implement, interpret, or

prescribe law or policy, nor does it describe the Div ision ' s procedural or

practice requirements for enforcing the Food Safety Act upon applicants or

licensees. See Coventry First, LLC v. Of c. of Ins. Reg . , 38 So. 3d 200, 204 - 05

(Fla. 1st DCA 2010) ( " In determining whether an agency statement is an

unpromulgated rule, the effect of the statement must be also taken into

consideration. " ) .

58 . Additionally, t his direction to staff easily fits within the statutory

exemption for " [i]nternal management memoranda which do not affect either

the private inter ests of any person or any plan or procedure important to the

public and which have no application outside the agency issuing the

memorandum. " § 120.52(16)(a), Fla. Stat.

59 . Here, the Protocol simply restates the Department ' s explicit authority

to inspect , illustrate, and enforce safety rules and regulations, and the

implicit author i ty of inspectors to utilize cameras and other tools to conduct

inspections. Importantly, the policy does not place upon Tampa Maid , or any

other license d food establishment , an unadopted regulatory requirement.

60 . Neither the use of cameras or photographs, nor the method in

addressing when a food establishment prohibit s cameras during an

inspection , as described in the Department ' s Protocol, are unpromulgated

rule s .

Penal ties

6 1 . Tampa M aid ' s refusal to allow the Department ' s inspectors into the

Facility unless they agreed to its " no - camera " policy equates to a refusal of

inspection. The Department presented clear and convincing evidence that

Tampa Maid committed the alleg ed violation of section 50 0 .147, which requires

that food establishments provide " free access È for the purpose of inspecting

such establishment. "

6 2 . With regard to the penalties that should be imposed on Tampa Maid,

section 500.121(1)(a) provides:

In addition to the suspension procedures provided in

s. 500.12, if applicable, the department may impose

an administrative fine in the Class II category

pursuant to s. 570.971 against any È food

establishment È that violates 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 È food establishment if it is

satisfied that the food establishment has È

[v] iolated this chapter.

6 3 . Section 570.971(1)(b) provides that the Department may impose a fine

not to exceed $5,000 for each violation in the Class II category.

64 . R ule 5K - 4.035 further explains that the minimum fine for a Tier II

violation is $500 with adjustments for relevant aggravating and mitigating

factors:

Tier II. Tier II violations shall result in the

issuance of a stop - sale, or stop - use order and an

administrative fine of $500 up to the statutory

maximum. Aggravating factors, as defined in

parag raph (6)(a) of this rule, shall warrant the

adjustment of the fine upward per violation per

aggravating factor and mitigating factors, as defined in

paragraph(6)(b) of this rule, shall warrant the

adjustment of the fine downward per violation per

mitigatin g factor, but no fine shall exceed the statutory

maximum as outlined in Section 570.971, F.S., as

applicable È For the purposes of this rule, the

following violations shall be considered Tier II major

violations:

* * *

f. Refusal to permit entry or inspe ction during

operating hours as required by s. 500.147, F.S.

65 . There was no evidence establishing any of the aggravating factors

listed in rule 5K - 4.035(6)(a).

66 . Of the seven mitigating factors listed in the rule, only one is

a ppl icable: t here was no evidence that Tampa Maid had any past disciplinary

history. Fla. Adm in . Code R. 5K - 4.035(6)(b)5.

67 . In addition, there was no evidence that Tampa Maid ' s belief that the

Department was acting beyond its statutory authority was disingenuous.

Mr. Stokes attempt ed to resolve his concerns with the Department during the

stand - off on March 9, 2020. Had the Department provided a copy of the

contract with the FDA, the statutes exempting photographs collected during

the inspection from public disclosure, a copy of the Protocol, or a copy of the

FDA guidance regarding cameras, there may have been a different outcome.

There was no evidence at the hearing that the Department made any attempt

to provide any of this information to Tampa Maid before issuing the

Admini strative Complaint.

68 . The Department seeks the maximum allowable fine of $5,000 but fails

to provide evidence of why the maximum amount is warranted. Given the

totality of the circumstances, including no past disciplinary history, a fine of

$1 , 000 is appropriate .

69 . Furthermore, suspension of Tampa Maid ' s Facility and processing of

seafood is appropriate under section 500.12(4)(b) , which provides that denial

of access for an inspection is grounds for suspending " the permit until access

to the food est ablishment is freely given by the operator. "

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that a Final Order be entered as follows:

1. Finding that Tampa Maid denied the Department free access to its

facility in violation of section 500.147, Florida Statutes, as alleged in the

Administrative Complaint , when it refused to let inspectors enter with

camera s .

2. Requiring Tampa Maid to pay an administrative fine in the amount of

$ 1,0 00.

3. Suspending Tampa Maid ' s Food Permit (Food Permit No. 28143) until

such time that access to the food establishm ent is freely given to the

Department.

D ONE A ND E NTERED this 12th day of April , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of April , 2021 .

C OPIES F URNISHED :

Allan J. Charles, Esquire Daniel J. Fleming, Esquire

Department of Agriculture and Johnson Pope Bokor Ruppel & Burns, LLP

Consumer Services Suite 3100

Suite 520 4 01 East Jackson Street

407 South Calhoun Street Tampa, Florida 33602

Tallahassee, Florida 32399

Steven Hall, General Counsel

Magdalena Ozarowski, Esquire Department of Agriculture and

Department of Agriculture and Consumer Services

C onsumer Services 407 South Calhoun Street, Suite 520

Suite 520 Tallahassee, Florida 32399 - 0800

407 South Calhoun Street

Tallahassee, Florida 32399

Honorable Nicole " Nikki " Fried

Commissioner of Agriculture

Department of Agriculture and

Consumer S ervices

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.