Evans Packing Co. v. Dept. of AgricultureEvans Packing Co. v. Dept. of Agriculture
Frank A. Graham, Jr., Resident Counsel, Dept. of Agriculture and Consumer Services, Tallahassee, for appellee.
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,
A.
The matter came on for a
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
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, 95 Me. 94, 49 A. 564 (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
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
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
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 unnecessary to remand this case for further consideration of the findings of fact by the hearing officer and the Commissioner under the more stringent clear and convincing standard of proof. See Bryan, supra.
B.
We next address the type of conduct that must be shown to establish a violation of
We agree with the Department that proof of the presence of prohibited additives may well be sufficient to establish adulteration in violation of
This construction of the statutory scheme is consistent with the manifest intent of
Additionally, this construction of the statutory scheme is entirely consistent with the legal principles upon which the strict liability cases cited in the final order (identified supra, page 115) were decided. As the court observed in People v. Snowburger, the legal theory of such strict liability statutes is not just to prohibit the affirmative act of adulterating the product, but to reach the negative conduct of failing to ascertain that the product is fit — “the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.” 71 N.W. at 498. In People v. Laesser, where the statute provided that whoever sells milk not up to the arbitrary standard prescribed by the statute is liable for the penalty provided by the statute, the court observed, “The statute was passed in view of existing conditions, and must be construed in a way to be fairly adapted to them.” 79 N.Y.S. at 473. Thus, holding that a violation could be proved by analysis of a sample showing that the milk did not meet the statutory standard, the court further noted that proof by the defendant that he had not tampered with the milk which he had obtained from other producers was irrelevant and incompetent unless “the fairness of
Our construction of the statutory scheme is also consistent with other licensee disciplinary proceedings that require a showing of personal participation in violating the statute or a failure to exercise due diligence in assuring that others for whom the licensee may be responsible did not so violate the law. E.g. Surf Attractions, Inc. v. Department of Business Regulation, 480 So. 2d 1354 (Fla. 1st DCA), rev. denied, 492 So. 2d 1331 (Fla. 1986). This construction is likewise consistent with the principles in the cases cited by Evans that a licensee cannot be held strictly liable for adulteration or contamination of a product in violation of a statute when there is proof of an objective impossibility to prevent the violation or the violation is de minimis. See, e.g., United States v. Park, 421 U.S. 658, 673-674, 95 S. Ct. 1903, 1912, 44 L. Ed. 2d 489, 501 (1975); United States v. General Foods Corporation, 446 F. Supp. 740 (N.D.N.Y. 1978), aff\‘d, 591 F.2d 1332 (2d Cir. 1978); United States v. Capital City Foods, Inc., 345 F. Supp. 277 (D.N.D. 1972).
C.
Turning now to the sufficiency of the evidence under the applicable standard, we conclude that the record in this case does not contain competent substantial evidence sufficient to prove by the clear and convincing standard of proof that the orange juice sold and shipped by Evans was adulterated with pulpwash contrary to the statute. Additionally, the evidence does not show that Evans failed to exercise due diligence with respect to the processing and shipment of the citrus products involved, or that Evans caused or participated in causing the alleged adulteration.
The Citrus Code provides, in
The record in this case does not establish that either the Department of Citrus or the Department of Agriculture had adopted by rule any method for testing the citrus product involved to determine adulteration by the presence of pulpwash. On the contrary, the Petrus Method used by the Department had not been adopted by rule, as required by the statute. Nor was any of the testing or inspecting relied on by the Department performed by persons duly licensed or certified by the United States Department of Agriculture, as no effort had been made by either department to comply with these requirements of
Not only was the Petrus Method not approved by rule in accordance with the statute, that testing method had not reached the status and reliability in the scientific community required to prove adulteration by the clear and convincing standard. It is undisputed that the Petrus Method could not test for quantity, but simply reflected the presence of certain soluble solids in unidentifiable quantities. It apparently would reflect the presence of de minimis amounts of the prohibited soluble solids. The Petrus Method was not shown to have been accepted by the Association of Official Analytical Chemists (AOAC), or any other recognized scientific body or organization, at the time the juice in question was processed in 1980; the best the Department could show was that the Petrus Method had been given interim official first action by the AOAC as of the final hearing in June 1985.
The Department concedes that there was no known analytical method for the detection of adulteration of orange juice with pulpwash prior to 1979, and that the Petrus Method was first brought to the Department\‘s attention on January 3, 1980 (which, incidentally, was the date of shipment of the first batch of juice involved in this case). There is no evidence that the Petrus Method was generally available to and used by dealers or processors during the first half of 1980 in testing orange juice for pulpwash adulteration. Scientific witnesses testified at the hearing concerning the lack of an adequate data base to permit use of the Petrus Method, and they suggested that freeze damage to fruit used in processing orange juice concentrate tended to indicate the presence of pulpwash soluble solids in the juice. A research chemist with the United States Department of Agriculture testified to his work on the Petrus Method in relation to the procedures used for its evaluation by AOAC, and he discussed a report on the Petrus Method prepared in 1981 that indicated several deficiencies affecting the reliability of this analysis method.
Even though Mr. Petrus testified that there was no doubt in his mind that the four samples contained pulpwash, this opinion is not sufficient, in the face of the above deficiencies in the testing method, to meet the clear and convincing standard. With the uncertainties demonstrated in this record regarding the reliability of the test in 1980, we are unable to say that the evidence “produces ... the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established.” Slomowitz v. Walker, 429 So. 2d at 800 (see note 4, supra). Adherence to the statutory requirement that testing methods for soluble solids be adopted by rule prevents the kind of dispute and uncertainty presented in this case over the validity of testing methods and results. Although we have recognized that agencies may use scientific methods not adopted by rule in the implementation of statutory directives where nothing in the organic statute mandated its adoption by rule, see Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So. 2d 209, 223 (Fla. 1st DCA 1986), rev. denied, 503 So. 2d 327 (Fla. 1987), we know of no authority for allowing an agency to use a disputed testing method as the basis for imposition of severe disciplinary penalties when
Moreover, the recommended order and the final order do not contain any finding that Evans added pulpwash or failed to use due diligence to prevent the sale and shipment of frozen concentrated orange juice contaminated with pulpwash additives. Nor does the record contain any evidence that would support such findings. It appears that Evans used orange juice obtained from Brazil and, at times, from other Florida producers (referred to as orange futures) for blending with orange juice processed in its plant, a practice permitted by law. There was no proof that the Brazilian or other juice used for blending purposes, or the juice as blended, could have been objectively tested for adulteration with pulpwash during 1980. There was no proof of any industry practice or any requirement by statute or rule in effect at that time which required dealers to test orange juice concentrate for pulpwash additives before shipping it. The record at pages 493-494 simply does not support the Department\‘s statement in its brief (page 10) that “there was a method for detecting pulpwash in FCOJ and that the industry knew about it” and that the “testimony of Evans\’ Quality Control manager indicates that he was well aware of Petrus method.” Rather, Evans\‘s quality control manager testified that in 1980 they had no technology available to processors for detecting pulpwash. The only available method of testing referred to by the Department was the Petrus Method it had first learned about in January 1980. The Department\‘s emphasis on the fact that at the time of the final hearing in 1985 the Petrus Method had received interim official first action status by the AOAC misses the point completely. It was the acceptability and use of a test method for detecting pulpwash adulteration in orange juice in 1980, when this juice was processed, that was of critical importance in determining whether Evans failed to comply with required standards or practices in producing and shipping its frozen concentrated orange juice. The record contains no evidence to establish that any processor in Florida was so using the Petrus Method, or that the method was widely known and relied upon as a means of detecting and avoiding shipping juice adulterated with pulpwash.
Finally, there was no proof that pulpwash was added to the orange juice by Evans, that Evans knew it was present, or that Evans aided and abetted someone else in so adulterating the product. The Department contends that whether it proved Evans added the pulpwash is immaterial, stating in its brief at page 12:
The Department has never alleged that Evans contaminated FCOJ. Instead, it is the Department\‘s position that four lots of FCOJ produced by Evans were adulterated with pulpwash contrary to law. Evans Quality Control Manager testified that pulpwash was processed separately. (R. 483, 484). If this is true, then pulpwash adulteration was clearly avoidable since it required a separate conscious act — the act of adding it back in. Adulteration by a conscious act is a separate issue from unavoidable contamination of food by minute amounts of filth.
This argument strongly suggests that in the Department\‘s view, its case is based on the implication, from the presence of adulteration found by the Petrus Method test, that Evans must have added pulpwash to the juice. But the record does not support such an implication in this instance. Not only have we rejected the competency of the results of the Petrus test to establish the presence of pulpwash, but the evidence established several other potential sources of pulpwash adulteration not attributable to Evans “adding it back in,” and to reach the implication urged by the Department would require speculation by piling inference upon inference in the absence of competent proof of a negative fact.
In summary, this record does not demonstrate by clear and convincing evidence that Evans caused the adulteration of the tested lots of juice with pulpwash, or that Evans failed to exercise due diligence to prevent such adulteration, or that the juice so analyzed was shown to be so adulterated by tests approved and administered in accordance with statutory requirements. The appealed order must, therefore, be reversed and the cause remanded with directions to dismiss the administrative complaint against Evans.
REVERSED AND REMANDED.
SHIVERS, C.J., and PEARSON, TILLMAN (Ret\‘d), Associate Judge, concur.