Evans Packing Co. v. Department of Agriculture and Consumer Services

• Decision Date: 03 October 1989
• Docket Number: No. BP-312,BP-312
• Citation: 14 Fla. L. Weekly 2326,550 So.2d 112
• Parties: 14 Fla. L. Weekly 2326 EVANS PACKING COMPANY, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 112

550 So.2d 112

14 Fla. L. Weekly 2326

EVANS PACKING COMPANY, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.

No. BP-312.

District Court of Appeal of Florida,

First District.

Oct. 3, 1989.

Charlie Luckie, Jr., of McGee, Luckie, Tyner, a div. of Dayton, Sumner, Luckie & McKnight, Brooksville, for appellant.

Frank A. Graham, Jr., Resident Counsel, Dept. of Agriculture and Consumer Services, Tallahassee, for appellee.

ZEHMER, Judge.

Evans Packing Company appeals a final order of the Department of Agriculture and Consumer Services that suspended Evans's license to operate as a citrus fruit dealer for two years and directed it to pay an administrative fine of $200,000. Because the order is based upon an erroneous construction and application of the statutes involved and the record is wholly lacking in clear and convincing proof that Evans violated the statutes as charged, we reverse with directions that the administrative complaint against Evans be dismissed.

I.

The four-count administrative complaint alleges that Evans Packing Company is a citrus fruit dealer holding a license issued by the Department of Agriculture and that the Department "seeks to impose the disciplinary sanctions authorized by s.601.67, Fla.Stat.," because "respondent has violated or aided or abetted in the violation of, certain laws of this state governing or applicable to citrus fruit dealers and certain lawful rules" of the Department. It further alleges that on four different occasions, each date being identified in a separate count, Evans produced and sold a quantity of frozen concentrated orange juice, identified by a different sample number for each date, that "contained soluble solids recovered by aqueous extraction or washing of fruit pulp, commonly known as pulpwash," in violation of section 601.9909, Florida Statutes (1979), ¹ and Rule 20-64.07, Florida Administrative Code. ² Essentially, it was the Department's position that the described samples had been tested using the "Petrus test" with positive results showing the presence of pulpwash additive in each batch, and that Evans was therefore guilty of selling and shipping frozen concentrated orange juice adulterated with pulpwash in violation of section 601.9909. The Department contended that proof of the presence of pulpwash was legally sufficient to support the charge against Evans because it was immaterial and irrelevant under the statute whether such adulteration was knowingly or intentionally caused by or attributable to some act of fault on the part of Evans in producing the frozen concentrate for sale.

A.

The matter came on for a section 120.57(1) hearing, and the hearing officer accepted the Department's position. Upon considering the extensive evidence adduced at the hearing by both parties, the hearing officer entered a recommended order containing the following finding of fact regarding the "Petrus Method" for detecting pulpwash in frozen concentrated orange juice:

4. The Petrus Method was developed by Donald R. Petrus, of the Florida Department of Citrus, and a recognized expert in the field of adulteration of orange juice, after a ten-year accumulation of spectral data on FCOJ. The Petrus Method is based on inherent spectroscopic differences in FCOJ and pulpwash using two spectroscopic techniques: (1) absorption spectra (UV/VISIBLE) and (2) fluorescence spectra. The absorption spectra measures the ability of components within an alcoholic extract of FCOJ to absorb light of specific wavelengths or energy levels. The fluorescence spectra measures the light emitted by those compounds which, after absorbing UV/VISIBLE light energy, emit that light as light energy. The results are interpreted by a qualitative examination of the UV/VISIBLE and fluorescence spectra. This technique is common in scientific analysis, and has existed since the turn of the century. The Petrus Method is recognized by experts in the field of analyzing food products as a valid method for detecting pulpwash adulteration.

(R. 545-46). ³ The hearing officer then found that the Department laboratory "was equipped with the necessary instrumentation for detecting pulpwash adulteration in FCOJ by the Petrus Method," and that the four samples of Evans's products sent to be tested on September 9, 1980, "tested positive for pulpwash adulteration." (R. 546). The hearing officer further found that on January 3, 1980, March 6, 1980, March 17, 1980, and June 28, 1980, Evans sold or shipped quantities of FCOJ identified by the described can code numbers from which the samples were taken, and that such samples from the code number lots "indicated evidence of pulpwash adulteration." (R. 547). On these findings, the hearing officer concluded as a matter of law that:

The four can codes of FCOJ described in the findings of fact contained additives within the meaning of section 601.9909, Florida Statutes, and were mislabeled within the meaning of section 602.24, Florida Statutes. Therefore, Evans, the Respondent, engaged in prohibited acts within the meaning of section 601.9909, Florida Statutes, by including additives and mislabeling the four can codes of frozen concentrated orange juice. These prohibited acts warrant the imposition of the penalties provided for in section 601.67, Florida Statutes.

(R. 548). The hearing officer recommended a two-year suspension of Evans's license and imposition of the maximum fine of $50,000 on each count, totaling $200,000.

Evans filed exceptions to the recommended order, contending the hearing officer erred in finding that the Petrus Method was a valid method for determining the presence of pulpwash additives and erred in concluding that the mere presence of pulpwash was sufficient to support a finding of guilt and imposition of the penalties. Evans argued that under the evidence in the record the pulpwash said to be present in its juice may have been pulpwash that was already present in juice produced in Brazil or juice obtained from other Florida producers (referred to as orange futures), because Evans routinely blended orange juice from these sources with its frozen concentrated orange juice, as permitted by Florida law. Evans also complained that the hearing officer failed to address the correct standard of proof applicable in this license revocation proceeding.

B.

The Commissioner of Agriculture, acting for the Department, denied Evans's exceptions and entered a final order adopting the hearing officer's recommended order in all respects. The final order specifically explained that the statute under which the Department was proceeding

do[es] not require Petitioner to show that adulteration was caused by Respondent. Section 601.9909, Florida Statutes, provides that no frozen concentrated orange juice shall be sold, offered for sale, shipped or offered for shipment which contains any additive of any kind. Thus, the act of selling adulterated FCOJ constitutes the offense.

(R. 561). The order cites the following court decisions from other jurisdictions as support for this legal conclusion: State v. Rogers, 49 N.E. 564 (Me.1901) ⁴; People v. Snowburger, 71 N.W. 497 (Mich.1897); People v. Kibler, 106 N.Y. 321, 12 N.E. 795 (1887); People v. Laesser, 79 N.Y.S. 470 (1903); and Weigand v. District of Columbia, 22 App.D.C. 559 (C.A.D.C.1903). These cases stand for the proposition that where a particular statute regulating the quality and adulteration of food does not contain any requirement of knowledge or intentional adulteration of the regulated food product, a violation of the statute may be established without proving the party charged had knowledge of the adulteration or was the perpetrator of an intentional adulteration. Applying the strict liability principle so discerned from these decisions, the Commissioner concluded that it was irrelevant whether Evans had knowledge or guilty intent, and ruled that Evans was guilty as charged. He imposed the recommended two-year suspension and $200,000 administrative fine.

II.

Evans raises several points on this appeal from that order. We discuss only the standard of proof applicable to this proceeding, the type of conduct required under section 601.67(1) to establish guilt, and the sufficiency of the evidence to support the finding of guilt and imposition of penalties.

A.

Going first to the standard of proof issue, we find that the instant proceeding involves the loss of a license to engage in a business or livelihood. We hold that irrespective of whether the license is held by an individual or a corporate entity, it was incumbent upon the Department to prove the charged violation of section 601.9909 by clear and convincing evidence before imposing the penalties under section 601.67. Ferris v. Turlington, 510 So.2d 292 (Fla.1987). ⁵ We note that neither the recommended order nor the final order contains any reference to the applicable standard of proof. At the time this case was decided by the hearing officer and the Commissioner, the recognized standard of proof was a sliding scale defined in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), as greater than a mere preponderance of the evidence and as substantial as the consequences to be suffered. This sliding scale standard was expressly disapproved in Ferris v. Turlington, supra. It is highly doubtful, therefore, that the hearing officer and the Commissioner applied the correct standard because Ferris v. Turlington was decided after both orders were entered in this case.

We are required to apply the law as it stands at the time of our disposition of the appeal. Lowe v. Price, 437 So.2d 142 (Fla.1983). It is our obligation on appellate review to determine whether the evidence meets that standard. In re Bryan, 14 F.L.W. 440 (Fla.1989). For the reasons hereafter discussed, we find the record is lacking in proof by clear and convincing evidence that Evans violated the statute as charged. Accordingly, we find it...