Joe Murphy dba JAM Market & Deli vs. AGRICULTURE

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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law March 2015 Joe Murphy dba JAM Market & Deli vs. AGRICULTURE Follow this and additional works at: This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 Mailed On: BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF AGRICULTURE IN THE MATTER OF: Joe Murphy, d/b/a Jam Market & Deli DOCKET NO: J Respondent NOTICE OF DEFAULT AND INITIAL ORDER This matter came to be heard on February 3, 2015, before Leonard Pogue, Administrative Judge assigned to the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Agriculture. Jason Miller, counsel, represented the Department. Neither Joe Murphy nor an attorney appeared on behalf of the Respondent Joe Murphy. The subject of this hearing was a Complaint and Notice of Hearing against the Respondent to determine whether Murphy operated a retail food store business and food service establishment without a valid permit issued by the Tennessee Department of Agriculture and whether the Commissioner should impose a civil penalty against the Respondent for alleged violations of Tenn. Code Ann and ORDER OF DEFAULT The State moved that a default be entered against Respondent for failure to participate in the hearing after due notice. The Department presented evidence that it had attempted service of its Complaint and Notice of Hearing upon Mr. Murphy on December 8, 2014, which was returned to it unclaimed by Mr. Murphy. The Department offered the testimony of Shanna

3 Lively, Food Administrator for the Department. Ms. Lively testified that the parcel had been mailed to the last known address for Mr. Murphy held in the Department s records; that Mr. Murphy had responded to previous mailings at that address as recently as September 2014; that upon receiving the returned parcel, the Department attempted to deliver the Complaint and Notice of Hearing upon Mr. Murphy personally at the same address to which it had been mailed; that this attempt at personal service had also failed; that the Department subsequently telephoned Mr. Murphy, spoke with him, and asked for an alternate mailing address to which the Complaint and Notice of Hearing could be forwarded; that Mr. Murphy refused to provide an address; that Mr. Murphy admitted to refusing to open mail from the Department; that Mr. Murphy indicated he would retrieve a copy of the Complaint and Notice of Hearing from the Department in person, but that Mr. Murphy never presented himself to the Department for the copies. It appearing that proper notice was sent to Respondent, and that Respondent failed to appear at the hearing, the State s Motion for Default is well taken and is hereby GRANTED pursuant to TENN. CODE ANN (a). See also RULE (1) of the Uniform Rules of Procedure for Hearing Contested Cases before State Administrative Agencies, TENN. COMP. R. & REGS. Ch (June 2004 (Revised)). INITIAL ORDER After consideration of the record in this matter, it is determined that the Respondent be fined a civil penalty in the amount of one thousand dollars ($1,000.00). This decision is based upon the following Findings of Fact and Conclusions of Law. 2

4 FINDINGS OF FACT 1. Rachel Case is an inspector for the Metropolitan Nashville Public Health Department. One of Ms. Case s job duties includes inspection of retail food stores and food service establishments within retail food stores that are located in the Nashville area. 2. One of the establishments Ms. Case routinely inspected between 2012 and 2014 was JAM Market & Deli, located at 1201 Dickerson Road, Nashville, Tennessee On four occasions July 27, 2012; March 12, 2013; December 20, 2013; and June 16, 2014 Ms. Case inspected JAM Market & Deli for compliance with regulatory requirements. 4. On each of these occasions, Ms. Case witnessed JAM Market & Deli offering for sale various food products, including but not limited to meat, cheese, bologna, ice cream, nacho cheese, a soda station, and deli sandwiches made to order and not in their original container. Ms. Case further witnessed that JAM Market & Deli offered these items for either off-site consumption or on-site consumption, evidenced by the business in-house seating. 5. On each occasion, Ms. Case warned Joe Murphy or other JAM Market & Deli personnel that a retail food store permit was required for the sale of such items. On each of her inspections, Ms. Case noted that JAM Market & Deli did not have a retail food store permit. 6. Throughout Ms. Case s inspection history with JAM Market & Deli, she believed and understood Joe Murphy to be the owner and operator of the establishment. Ms. Case based this opinion on her experiences with Mr. Murphy where he customarily signed inspection forms and addressed the store s deficiencies noted during inspection. 3

5 7. Shanna Lively is the Food Administrator for the Department. She confirmed that the Metropolitan Nashville Public Health Department inspects retail food stores in the Nashville area on behalf of the Department. 8. Ms. Lively has worked in the area of food safety and recognition of potentially hazardous foods for more than 15 years and was admitted as an expert in the area of recognizing potentially hazardous foods. She submitted that numerous of the food items offered for sale at JAM Market & Deli meat, cheese, ice cream are potentially hazardous foods within the context of Tennessee law. 9. One of Ms. Lively s duties as Food Administrator for the Department involves oversight of record keeping for retail food store permits with the Department. In this respect, Ms. Lively is familiar with JAM Market & Deli and its history for obtaining a retail food store permit from the Department. 10. JAM Market & Deli was issued a retail food store permit by the Department for licensure year , which began July 1, Prior to that time, JAM Market & Deli has never had a retail food store permit issued by the Department. 11. Joe Murphy is the owner/operator of JAM Market & Deli, as evidenced by the following. He is the owner of record listed on Departmental records. He signed inspection forms for JAM Market & Deli. He responded to the Department s prior notices of noncompliance issued with respect to the business. In September 2014, he discussed with Ms. Lively JAM Market & Deli s lack of a retail food store permit for its operation from During that conversation, Mr. Murphy admitted that his business, JAM Market & Deli, needed a retail food store permit for those operations; that he had been warned to get one, and that he simply failed to comply. 4

6 CONCLUSIONS OF LAW 1. The Tennessee Department of Agriculture is authorized to carry out or cause to be carried out all provisions of the Retail Food Store Inspection Act of 1986 (the Act ), compiled at Tenn. Code Ann , et seq. Tenn. Code Ann and (1). Included in that authorization is the endorsement to issue retail food store permits as provided under the Act. Tenn. Code Ann (5). 2. Pursuant to the Act, [n]o person shall operate a retail food store without holding a valid permit issued to the person by the commissioner [of agriculture or his duly authorized agents] on or before July 1 of each year. Tenn. Code Ann (a); Tenn. Code Ann (1). This requirement applies equally to food service establishments that are located within retail food stores. Tenn. Code Ann Under the Act, a retail food store is any establishment or section of an establishment where food and food products are offered to the consumer and intended for offpremise consumption. Tenn. Code Ann (7)(A). Inasmuch as Ms. Case testified to various foods being offered for sale at Mr. Murphy s JAM Market & Deli for off-site consumption, the business is a retail food store otherwise subject to the Act. 4. Establishments that handle only prepackaged, nonpotentially hazardous foods are not retail food stores under the Act. Tenn. Code Ann (7)(B). However, Mr. Murphy s JAM Market & Deli fails to meet either of these two requirements for exemption. First, Mr. Murphy offered for sale deli sandwiches made to order, which are not prepackaged foods. Second, Mr. Murphy also offered for sale meat, cheese, and ice cream. Ms. Lively 1 Food service establishments that are located within retail food stores are exempt from regulation and inspection that is otherwise applicable under Tenn. Code Ann , et seq., which is administered by the Tennessee Department of Health. Tenn. Code Ann (3), (5), (6) and

7 testified that these items are potentially hazardous as defined under Tenn. Code Ann (6). A potentially hazardous food is any food that consists, in whole or in part, of milk or milk products, eggs, meat, poultry, fish, shellfish, edible crustacea, or other ingredients in a form capable of supporting rapid and progressive growth of infections or toxigenic microorganisms. Tenn. Code Ann (6). 5. Mr. Murphy s JAM Market & Deli is also subject to the Act where the business housed a food service establishment. A food service establishment is: any establishment, place or location, whether permanent, temporary, seasonal or itinerant, where food is prepared and the public is offered to be served, or is served, food, including, but not limited to, foods, vegetables, or beverages not in an original package or container, food and beverages dispensed at soda fountains and delicatessens, sliced watermelon, ice balls, or water mixtures, regardless of whether there is a charge for the food. Tenn. Code Ann (3)(A). Ms. Case testified that JAM Market & Deli prepared and served deli sandwiches to order and served beverages via a soda station. Deli sandwiches to order are foods not in an original package, and soda station beverages are dispensed at soda fountains. Consequently, these food services constitute JAM Market & Deli as a food service establishment under the Act. 6. The Department has proved by a preponderance of the evidence that Mr. Murphy was required to obtain a valid permit for operation of JAM Market & Deli during the period ; and that despite repeated inspections and warnings, on at least four occasions July 27, 2012; March 12, 2013; December 20, 2013; and June 16, 2014 Mr. Murphy continued to engage in the operation of this retail food store and food service establishment without obtaining from the Department a valid retail food store permit. 2 2 Pursuant to Tenn. Code Ann (a)(1), (3), the minimum annual fee for this permit would be $260, composed of $210 for the food service establishment and $50 for the retail food store. Under the Act, a 50% late fee is also allocable to the permit fee if licensees are more than 30 days delinquent in paying the fee. Tenn. Code Ann (b). Wherefore, proper 6

8 7. Under Tenn. Code Ann (a), [t]he department [of agriculture]... may, in a lawful proceeding respecting licensing, as defined in the Uniform Administrative Procedures Act, compiled in chapter 5 of this title, in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty of not more than five hundred dollars ($500) for each violation of statute, rule or order enforceable by the department Civil penalties against Mr. Murphy are assessed for each of the following four violations: a. $100 civil penalty for operation of JAM Market & Deli, a retail food store and food service establishment, on July 27, 2012, without a valid permit issued by the Department; b. $200 civil penalty for operation of JAM Market & Deli, a retail food store and food service establishment, on March 12, 2013, without a valid permit issued by the Department; c. $300 civil penalty for operation of JAM Market & Deli, a retail food store and food service establishment, on December 20, 2013, without a valid permit issued by the Department; and, d. $400 civil penalty for operation of JAM Market & Deli, a retail food store and food service establishment, on June 16, 2014, without a valid permit issued by the Department. 9. Under Tenn. Code Ann and (10), Notwithstanding any contrary law, the department [of agriculture]... may assess the actual and reasonable costs of the investigation, prosecution and hearing of any disciplinary action held in accordance with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in which sanctions of any kind are imposed on any person or entity required to be licensed, permitted, registered or otherwise authorized or regulated by the department.... These costs may include, but are not limited to, those incurred and assessed for the time of the prosecuting attorneys, investigators, expert witnesses, payment of Mr. Murphy s fees would equal $390 per year for the two licensure years during and , for which JAM Market & Deli was not permitted by the Department. 7

9 administrative judges, court reporters and any other persons involved in the investigation, prosecution and hearing of the action. WHEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that Respondent is hereby ASSESSED and shall pay a civil penalty in the amount of $1, and the costs of this action (limited to court reporter and administrative procedures division costs) are assessed against Respondent. This Initial Order entered this day of March, Leonard Pogue Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State this day of March, J. Richard Collier, Director Administrative Procedures Division 8