97-003807 Department Of Agriculture And Consumer Services vs. Wima Corporation Status: Closed Recommended Order on Tuesday, April 7, 1998.

Summary: On two occasions, Respondent's water vending machine dispensed contaminated water. Administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-3807

)

WIMA CORPORATION, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference on December 8, 1997, at West Palm Beach,

Florida, before Errol H. Powell, a duly designated Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linton B. Eason, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Room 515

Tallahassee, Florida 32399-0800

For Respondent: Donald Epstein, President

Wima Corporation

4252 Northwest 55th Place

Coconut Creek, Florida 33073

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 30, 1997, the

Department of Agriculture and Consumer Services (Petitioner)

charged the Wima Corporation (Respondent) with violating Chapter

500, Florida Statutes, and Chapter 5K-9, Florida Administrative

Code. By response dated June 12, 1997, Respondent disputed the

allegations of fact and requested a formal hearing. On

August 15, 1997, this matter was referred to the Division of

Administrative Hearings.

At hearing, Petitioner presented the testimony of four

witnesses 1 and entered ten exhibits into evidence. Respondent

presented the testimony of three witnesses 2 and entered fourteen

exhibits into evidence.

A transcript of the hearing was ordered. The parties filed

post-hearing submissions which have been duly considered.

FINDINGS OF FACT

1. The Department of Agriculture and Consumer Services

(Petitioner) is charged with the administration and enforcement

of Chapter 500, Florida Statutes, together with the rules

promulgated thereunder, relating to food and water sanitation

within the State of Florida.

2. Wima Corporation (Respondent) is a water vending machine

operator and is located at 4252 Northwest 55th Street, Coconut

Creek, Florida. The president of Respondent is Donald Epstein.

Respondent has been in the water vending business since 1980 and

has never received any notification that its water has caused

anyone to become ill.

3. Respondent is the owner and operator of a water vending

machine, Identification Tag No. 5890 (Machine ID Tag No. 5890),

located at Lyons Amoco, Lyons Road and Glades Road, Boca Raton,

Florida. Machine ID Tag No. 5890 dispenses drinking water,

potable water that originates from an approved municipal provider

and is processed by reverse osmosis. The drinking water is sold

to the general public. Approximately 20 to 50 vends per day are

dispensed from Machine ID Tag No. 5890 to the general public who

provide their own container for collecting the water. A vend is

one gallon of water.

4. On March 3, 1997, one of Petitioner's sanitation and

safety inspectors (inspector) collected a vended water sample

from Machine ID Tag No. 5890. The inspector collected the first

"slug" of water from the spout of Machine ID Tag No. 5890 the

same as a paying public consumer. The first "slug" of water is

the first water that the first paying public consumer would

receive from Machine ID Tag No. 5890. Petitioner's inspector

collected 100 ml of water in a sanitary container, sealed the

container, and immediately packed the container in ice in order

to refrigerate the water sample. The water sample remained in

the custody and control of Petitioner's inspector until it was

shipped, packed in ice, to Tallahassee, Florida, via Greyhound

Bus, for analysis by Petitioner's food laboratory. The shipping

process was in accordance with protocol established by

Petitioner.

5. On March 4, 1997, the water sample was received by the

Petitioner's food laboratory for analysis. The sample remained

in the custody and control of the laboratory staff. The analysis

of the water sample was initiated within 30 hours of collection.

Upon analysis, the water sample was found to contain 21 coliforms

per 100 ml. Florida's safe water standards require a total

absence (zero) coliforms. The water sample was contaminated with

coliforms and was not appropriate for human consumption. The

analysis was performed in accordance with the protocol

established by Petitioner.

6. By certified letter, return receipt, dated March 17,

1997, Respondent was notified, among other things; that the water

sample was adulterated; that ID Tag No. 5890 was required to be

cleaned and sanitized; and that another sample was required to be

taken.

7. After the analysis of the water sample showed

adulteration, Respondent's president contacted an independent

laboratory, Spectrum Laboratories, Inc., (Spectrum), approved by

Petitioner, and requested that an analysis of the dispensed water

by Machine ID Tag No. 5890. Spectrum forwarded the necessary

items to Respondent's president in order for him to obtain a

water sample and informed him of the procedure and process in

obtaining the sample. On March 19, 1997, Respondent's president

obtained the water sample in accordance with Spectrum's

instructions and forwarded the sample to Spectrum. On March 20,

1997, Spectrum performed an analysis of the water sample and

found no coliforms. On or about March 24, 1997, Respondent's

president forwarded the results of Spectrum's analysis to

Petitioner.

8. On March 25, 1997, a second vended water sample was

taken by Petitioner's same inspector from Machine ID Tag No.

5890, using the same procedure and process as before. Also, the

water sample was shipped for analysis to Petitioner's food

laboratory in Tallahassee using the same procedure and process.

The collection and shipping procedure and process were again in

accordance with protocol established by Petitioner.

9. On March 26, 1997, the second water sample was received

by the Petitioner's food laboratory for analysis. Upon analysis,

the second water sample was found to contain 18 coliforms per

100 ml. The water sample was contaminated with coliforms and was

not appropriate for human consumption. The analysis was again

performed in accordance with the protocol established by

Petitioner.

10. By certified letter, return receipt, dated April 10,

1997, Respondent was notified, among other things, that the

second water sample was adulterated; that Machine ID Tag No. 5890

would be taken out of service until the source of the

contamination was found; and that Machine ID Tag No. 5890 would

be immediately placed under a "Stop Use" order.

11. By Stop Use Order dated April 11, 1997, Respondent was

notified, among other things, that Machine ID Tag No. 5890 could

not be used. Respondent was further notified that Machine ID Tag

No. 5890 could resume being used after a showing of no

contamination from a water sample taken by Petitioner's inspector

and analyzed by Petitioner's food laboratory.

12. Respondent cooperated fully with Petitioner in

correcting the problem. Respondent complied with all of

Petitioner's requests.

13. On April 16, 1997, a third vended water sample was

collected by Petitioner's inspector from Machine ID Tag No. 5890.

The same collection procedure and process were followed as in the

previous two collections. The same procedure and process were

followed in forwarding the water sample to Petitioner's food

laboratory as in the previous two collections. All procedures

and processes were in accordance with protocol established by

Petitioner.

14. On April 17, 1997, Petitioner's food laboratory

performed an analysis of the third water sample. The analysis

was performed in accordance with the protocol established by

Petitioner. Petitioner's laboratory found no coliforms. The

water sample was not contaminated and was appropriate for human

consumption.

15. Respondent was notified of the results of Petitioner's

third analysis. Petitioner permitted the use of Machine ID Tag

No. 5890 to resume.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of these proceedings and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

17. Chapter 500, Florida Statutes (1995), is referred to as

the "Florida Food Safety Act." Petitioner is charged with the

administration and enforcement of Chapter 500. Section 500.032,

Florida Statutes (1995).

18. In order for Petitioner to levy a fine against a water

vending machine operator, clear and convincing evidence (proof

greater than a mere preponderance of the evidence) is required.

Department of Banking and Finance, Division of Securities and

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

935 (Fla. 1996)("an administrative fine deprives the person fined

of substantial rights in property;" "[a]dministrative fines . . .

are generally punitive in nature;" "[b]ecause the imposition of

administrative fines . . . are penal in nature and implicate

significant property rights, the extension of the clear and

convincing evidence standard to justify the imposition of such a

fine is warranted"); Section 120.57(1)(h), Florida Statutes,

("[f]indings of fact shall be based on a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute").

19. In the Administrative Complaint, Petitioner states as

Investigative Results the following:

An investigation was conducted by the

Department of Agriculture and Consumer

Services ("Department") of your business

activities. As a result of that

investigation, the Department found the

following violations of Chapter 500, Florida

Statutes, ("the Florida Food Safety Act") and

Chapter 5K-9, Florida Administrative Code:

On March 3 and March 25, 1997, violations

were noted by the analysis of water from your

water vending machine (Identification

Tag# 5890) whereby the product was deemed

adulterated by the Department's Food 3

Laboratory.

20. The Administrative Complaint fails to point out which

specific statutory provision of Chapter 500 and which rule

provision of Chapter 5K-9 that Respondent has violated. A

perusal of Chapter 500 is in order.

21. Respondent's water vending machine provided water for

human consumption at a cost to the consumer. Subsection

500.03(1)(h), Florida Statutes (1995), defines food and provides

in pertinent part:

(1) For the purpose of this chapter, the

term:

(h) "Food" includes:

1. Articles used for food or drink for human

consumption;

* * *

The term includes any . . . beverage; or any

ingredient used, intended for use, or sold

for human consumption.

The vended water provided by Respondent from the water vending

machine is food as defined by Subsection 500.03(1)(h).

22. Chapter 5K-9, Florida Administrative Code, pertains

specifically to water vending machines. Rule 5K-9.005, Florida

Administrative Code, provides, among other things, that a vended

water sample testing positive for total coliforms is

unsatisfactory.

23. A food is deemed adulterated if the food "has been

produced, prepared, packed, or held under insanitary [sic]

conditions whereby it may become contaminated with filth, or

whereby it may have been rendered diseased, unwholesome, or

injurious to health." Subsection 500.10(1)(f), Florida Statutes

(1995). Based on the analysis of the two vended water samples

taken by Petitioner, the water being dispensed by Respondent's

Machine ID Tag No. 5890 on March 3 and 25, 1997, was adulterated.

24. The "manufacture, sale or delivery, holding or offering

for sale of any food that is adulterated" is prohibited.

Subsection 500.04(1), Florida Statutes (1995).

25. Section 500.459, Florida Statutes (1995), pertains

specifically to water vending machines. The Legislative intent

stated in Subsection 500.459(1) is "to protect the public health

through licensing and establishing standards for water vending

machines to ensure that consumers obtaining water through such

means . . . are assured that the water meets acceptable standards

for human consumption." As an operating standard, a "water

vending machine must be maintained in a clean and sanitary

condition." Subsection 500.459(4)(f), Florida Statutes (1995).

26. Petitioner has shown by clear and convincing evidence

that Respondent's water vending machine was not maintained in a

clean and sanitary condition in that the vended water was

adulterated in violation of Subsections 500.459(4)(f), and

500.04(1), Florida Statutes (1995), and Rule 5K-9.005, Florida

Administrative Code.

27. Petitioner is authorized by Section 500.511, Florida

Statutes (1995), to impose an administrative fine for violations

associated with water vending machines. Section 500.511 provides

in pertinent part:

(2) ENFORCEMENT AND PENALTIES.-In addition

to the provisions contained in ss. 500.453-

500.511, the department [Petitioner] may

enforce ss. 500.453-500.511 in the manner

provided in s. 500.121. Any person who

violates a provision of ss. 500.453-500.511

or any rule adopted under such section shall

be punished as provided in such sections.

However, criminal penalties may not be

imposed against any person who violates a

rule.

28. Section 500.121, Florida Statutes (1995), authorizes

Petitioner to, among other things, "impose a fine not exceeding

$5,000 against any retail food store or food establishment that

has violated [the Florida Food Safety Act]". Subsection

500.121(1). Consequently, pursuant to Subsection 500.511(2),

Petitioner is authorized to impose an administrative fine not

exceeding $5,000 against a water vending machine operator.

29. As a penalty, Petitioner suggests the imposition of a

$5,000 fine. Such a penalty is too harsh. Respondent cooperated

fully with Petitioner in correcting the problem. Also, shortly

after the contamination was discovered by Petitioner, Respondent

had its own analysis performed and forwarded the results to

Petitioner even though Petitioner did not consider the results of

the analysis. Further, no evidence of prior disciplinary action

by Petitioner against Respondent was presented.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Agriculture and Consumer

Services enter a final order:

1. Finding that the Wima Corporation violated Subsections

500.459(4)(f), and 500.04(1), Florida Statutes (1995), and Rule

5K-9.005, Florida Administrative Code.

2. Imposing a $500 administrative fine against Wima

Corporation.

DONE AND ENTERED this 7th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of April, 1998.

ENDNOTES

1/ Respondent's president was called as a witness by Petitioner.

2/ Respondent's president also testified on behalf of

Respondent.

3/ This sentence was italicized in the Administrative Complaint.

COPIES FURNISHED:

Linton B. Eason, Esquire

Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Donald Epstein, President

Wima Corporation

4252 Northwest 55th Place

Coconut Creek, Florida 33073

Brenda D. Hyatt, Chief

Bureau of Licensing and Bond

Department of Agriculture

508 Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Honorable Bob Crawford

Consumer 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.