3-0400-20924-2

OAH 3-0400-20924-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF AGRICULTURE

In the Matter of the Revocation of the License Issued to Lafayette City Meats

FINDINGS OF FACT,

CONCLUSIONS, AND RECOMMENDATION

This matter came on for hearing before Administrative Law Judge Kathleen D. Sheehy on April 26, 2010, at the Sibley County Courthouse, 400 Court Avenue, Gaylord, Minnesota. The OAH record closed on April 27, 2010, upon receipt of the post-hearing memorandum filed by the Department of Agriculture.

Kimberly Middendorf, Assistant Attorney General, appeared on behalf of the Department of Agriculture (Department). Karen and Richard Hoffman (Respondents), owners of Lafayette City Meats, appeared on their own behalf without counsel.

STATEMENT OF ISSUE

Did the Department demonstrate by a preponderance of the evidence that Respondents violated provisions of law relating to the operation of their custom slaughter operation and that their retail food handler license and custom processing permit should be revoked or not renewed?

The Administrative Law Judge concludes the Department proved the violations alleged, and the evidence justifies revocation or nonrenewal of the license and permit.

Based on the hearing record, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. Respondents operate Lafayette City Meats (Facility) in Lafayette, Minnesota. They hold a retail food handler license and a custom processor permit issued by the Department pursuant to Minn. Stat. § 28A.04. They were initially licensed in 1994. They applied for a renewal of their license on June 29, 2009. The renewal is on hold, pending the outcome of this proceeding. [1]

2. As participants in the custom meat processing program, Respondents are permitted to process meat and poultry for the use of the owners of the meat. Under this program, the Department does not inspect the animals, but does inspect the facilities and sanitation conditions of the processor. The Department considers the owners of the animals their own inspectors.[2] In general, custom processors must not adulterate or misbrand products; must handle livestock humanely; must prepare products under sanitary conditions; must keep certain records; must properly mark, label, and package product; and must keep exempt products separate from inspected products.[3]

3. As custom processors who have a retail food handler license, Respondents may not engage in the business of buying or selling carcasses, parts of carcasses, meat, poultry, poultry food products, or meat food products of animals usable as human food unless the product is inspected and passed, and identified as inspected and passed, by the Department or by the U. S. Department of Agriculture.[4]

4. Respondents may not sell any of the meat processed in the custom meat processing program to the public. All custom meat product must be labeled, at a minimum, with the words “Not for Sale” on the package.[5]

5. The Department performs routine inspections of retail food handlers and custom food processors, with follow-up inspections as needed.[6] During an inspection, an inspector completes a form which refers to federal standards and includes space for orders and explanations. A copy of the inspection form is routinely provided to the licensee when the inspection is completed.[7]

6. Beginning on January 19, 2007, Department personnel conducted a series of inspections and follow-up inspections at Respondents’ custom processing facility. In the following 32 months, until September 2009, the Department conducted 23 additional inspections and re-inspections, repeatedly advising the Respondents of the steps that they needed to take to bring their business into compliance with the applicable facility and sanitation requirements.[8]

7. During 15 separate inspections between January 19, 2007, and September 3, 2009, the Department substantiated numerous operational sanitation violations at the Facility and ordered the Respondents to correct them. The violations included:[9]

a) spice room dirty with product and debris;

b) carcasses contaminated with fecal material and other hide contamination;

c) inadequate light in carcass cooler, preventing appropriate inspection without supplemental lighting;

d) cooler room floor dirty with product buildup, blood blocking cooler drain;

e) product buildup on knives, knife holder, lugger racks, rails, hand saw, hooks, splitting saws and splitting saw guide, grinder, meat yoke, hoist handle, hoist cord, carcass stamp, brine pump, and emulsifier; and dirty combine bin and spice utensils, cleaning equipment, and hydraulic handle;

f) equipment, such as knives and luggers, stored in hand sinks;

g) residue left in product sink in slaughter room;

h) boxes placed directly on the freezer floor, posing a hazard of cross-contamination when the boxes were moved;

i) slaughter room walls and table dirty with buildup of meat by-products and blood;

j) clean equipment stored in dirty storage containers and shelving;

k) pest infestation, including rodent bodies and droppings in the compressor room, tool room, carcass cooler, processing room, slaughter room, dry storage areas and attached rooms to processing areas, with evidence of digging and nesting in the carcass cooler doorway and in the storage area between the freezer and the processing area;

l) a crumbling exterior doorframe and debris on the exterior of the building, providing nesting places for rodents and access to the building;

m) product stored on dirty surfaces;

n) condensation dripping in freezer and cooler onto product;

o) dirty processing room sink with two compartments instead of the required three compartments;

p) no soap or hand towels in slaughter room;

q) failure to empty cattle paunch to prevent contamination with ingesta after evisceration;

r) deer hide on carcass stored in carcass cooler;

s) red, pooled liquid from venison on the scale and floor;

t) rusty barrel for inedible product under the processing table;

u) laminate fiberboard countertops were worn and broken, exposing wood at the edges;

v) flaking rust on the injection pump motor body, residue on the interior and exterior of the hose, and grime and residue on the motor support;

w) bacon touching cooler wall;

x) raw and smoked product stored in cooler in contact or close proximity to one another;

y) buckets of product stored directly on cooler floor;

z) inedible barrels used for soaking edible hams and bacons;

aa) inedible barrels not properly labeled;

bb) debris, wood, barrels and other items, including product, stored on floor of smokehouse room;

cc) filthy ham netting stored in slaughter room;

dd) edible barrels with deep-cut grooves, difficult to keep clean;

ee) jerky racks, smokehouse sawhorses, ham press, smoke racks, hooks and trolleys, Not for Sale stamp, and copper kettle in unclean and unsanitary condition;

ff) slaughter room hand sink frozen and inoperable;

gg) residue buildup and overspray on kill chute;

hh) residue and flaking char on smokehouse upper walls and ceiling;

ii) temperatures for smoked and cooked product were not documented between January 14, 2009, and June 12, 2009;

jj) white mold-like substance in carcass cooler;

kk) fat buildup on door handles and frame in carcass cooler;

ll) splatter and residue on processing room door exterior;

mm) processing room drainboard covered with residue;

nn) discolored standing water in processing room sink;

oo) residue-filled grooves in processing room sink;

pp) open insulation in window over slicer in processing room;

qq) ripped, dirty aprons in slaughter room;

rr) shirt and soiled cloth in grinding machine remaining from one inspection to the next, eight days apart;

ss) dirty liners in wire baskets; use of newspaper in baskets rather than wrapping paper; and

tt) accumulation of manure and straw in holding pens and on loading ramp.[10]

8. Many of the operational sanitation violations were documented repeatedly between January 2007 and September 2009. Violations involving buildup of product and fat residue (on floors, walls and equipment), contamination of carcasses, and rodent infestation were consistently present throughout this period.[11]

9. During 14 separate inspections between January 19, 2007, and August 26, 2009, inspection personnel observed visible fecal contamination of carcasses, including occasions where inspection personnel observed contamination of carcasses during the slaughter process.[12] Fecal contamination is a critical violation. Respondents were required to immediately trim these carcasses.[13]

10. Inspectors also substantiated many construction and equipment-related violations affecting sanitation at the Facility and ordered the Respondents to correct them:[14]

a) splintering wood and flaking paint from processing room ceiling;

b) heavy ice buildup on freon/drainage line in storeroom;

c) ice and condensation on pipes, creating wet and unsanitary conditions during thawing;

d) peeling paint in the retail area;

e) dirty light shields;

f) worn or broken out floor at front of slaughter chute;

g) inadequate ventilation in smokehouse room;

h) floors, walls, ceiling in smokehouse not made of cleanable material;

i) slaughter room floor, walls and ceiling not smooth and easily cleanable;

j) inadequate lighting in slaughter room;

k) no functioning hand sink in slaughter room;

l) rust and peeling paint throughout slaughter room;

m) exposed wood and cork in ceiling hoist area;

n) exposed wood on rail beams and doors to exterior;

o) cracks in slaughter room floor;

p) lacking shatterproof light fixtures or covers for smokehouse room lights;

q) peeling paint and dirty lights in the front entry;

r) bathroom with no hot and minimal cold running water in the sink;

s) rust on processing room electrical boxes and conduit;

t) flaking rust and paint on equipment and pipes under processing room sink;

u) fire extinguisher with flaking paint and rust stored over sink; and

v) rusty oven racks, no longer cleanable, in use.

11. Inspections also revealed a number of violations relating to employee hygiene. The Respondents were ordered to change the following practices:[15]

a) employees failing to change clothing or wear aprons as needed to prevent adulteration of product;

b) using dirty wash water rather than replacing it;

c) failure to use hats and hair nets; and

d) storing personal coffee cups and coffee above the processing room sink.

12. Inspectors condemned meat on several occasions due to the Respondent’s failure to comply with sanitation requirements.[16]

13. On five occasions, inspectors identified products that were not appropriately labeled “Not for Sale.”[17]

14. On January 3, 2008, Alan Schauer, a former employee of Lafayette City Meats, made a voluntary statement to John Mitterholzer, a compliance officer for the Department. Mr. Schauer worked as the butcher for Respondents intermittently for approximately five years, ending in October 2007. His primary responsibilities included custom slaughtering of animals and cleanup.[18]

15. Mr. Schauer performed custom slaughter on many downer (nonambulatory) and dead cattle brought in by the owners. He occasionally went to a farm to slaughter a downer or to pick up a dead animal and bring it into the plant for skinning, evisceration and finishing. Downers were brought in through the rear door of the plant with a hoist. The gun Respondents supplied to shoot the animals was a .22-gauge rifle, which was often inadequate to kill with a single shot. Mr. Schauer purchased his own .357-gauge rifle to do a more humane job of putting the animals down.[19]

16. Mr. Schauer also reported on the rodent problem at the Facility and numerous other problems consistent with the violations inspectors were finding at the Facility.[20]

17. At one point, Mr. Schauer purchased some hams from the Respondents to give to relatives as gifts. All of the hams Mr. Schauer purchased were bad. When Mr. Schauer called Respondents to complain, the Respondents offered to replace them, but Mr. Schauer declined.[21]

18. On December 1, 2008, the Department issued a Notice of Adverse Findings/Warning Letter to Respondents. The letter listed fourteen processing room violations, eight carcass cooler violations, five smokehouse room violations, and seven slaughter room violations.[22]

19. On January 2, 2009, the Department issued a second Notice of Adverse Findings/Warning Letter to Respondents. This letter included nine processing room violations, six carcass cooler violations, four smokehouse room violations, and six slaughter room violations. All of the violations were repeated from the December 1, 2008 letter.[23]

20. On January 2, 2009, the Department notified Respondents that it had scheduled an Administrative Meeting pursuant to Minn. Stat. § 31.14. The meeting was scheduled to be held at the Department on January 29, 2009, for the purpose of discussing the ongoing violations at the Facility and providing Respondents an opportunity to present their views of the situation, orally or in writing, either in person or by an attorney.[24]

21. The Respondents failed to respond to the Department’s January 2, 2009, letter or to attend the meeting on January 29, 2009.

22. The Department performed an unannounced inspection on January 30, 2009, which revealed extensive violations. The inspectors tagged the plumbing in the slaughter room, equipment and utensils, and the entire smokehouse room. The retention tags precluded Respondents from using those items or areas for processing until they were adequately plumbed and cleaned.[25]

23. On the same date, inspectors embargoed more than 600 lb of beef and pork labeled “Mike Hartmann” because the product was not labeled “Not for Sale.”[26] In addition, approximately 300 lb of various retail pork and beef products were embargoed pending evidence that the meat had been inspected, either federally or by the state. The Respondents were unable to identify an approved source of the products. The Respondents’ son advised inspectors that the meat came from animals that local farmers did not want. The inspectors advised the Respondents orally and in writing that Respondents were required to retain all embargoed product until such time as the embargo was released.[27]

24. Because of the number of violations cited on January 30, 2009, the Department conducted a follow-up inspection on February 3, 2009.[28] Some of the tags were removed at that time, but many were not. Various deadlines were set for completion of plumbing and cleaning. The Respondents were again warned to retain all embargoed product until the embargo was released.[29] The embargo on the Hartmann meat was released a few days later after the meat was properly labeled. The embargo on the retail product was continued because Respondents were still unable to identify the source of the product.[30]

25. Following the February 3, 2009, inspection, the Department sent Respondents a Notice of Adverse Findings/Warning Letter dated February 9, 2009. The letter included citations of five construction violations, one carcass hygiene violation, two plumbing violations, one lighting violation, two ventilation violations, eleven equipment and utensils food contact sanitation violations, two non-food contact sanitation violations, one specific risk materials handling violation and one custom-exempt labeling violation. Some of the violations in this letter were repeated from the January 2, 2009, Adverse Findings/Warning letter.[31]

26. On February 13, 2009, the Department sent Respondents a summary of the January 29, 2009, Administrative Meeting.[32]

27. Follow-up inspections in June 2009 disclosed that Respondents had made some progress on cleaning, but the effort was far from complete. On June 11, 2009, the Department determined that Respondents no longer possessed the majority of the product that inspectors had placed under regulatory embargo on January 30, 2009. Karen Hoffman stated that she had given away product to eight different people because she could not stand to see it wasted. The remaining embargoed product was condemned and destroyed at that time.[33]

28. In a letter dated June 19, 2009, the Department notified Respondents that it had scheduled another Administrative Meeting pursuant to Minn. Stat. § 31.14. The meeting was scheduled to be held at the Department on July 6, 2009, for the purpose of discussing the product embargoed on January 30, 2009, as well as the other ongoing violations at the Facility, and providing Respondents an opportunity to present their views of the situation, orally or in writing, either in person or by an attorney. The letter advised the Respondents that the Department was contemplating regulatory action based on these ongoing violations.[34]

29. Respondent Karen Hoffman notified the Department, in a letter dated June 29, 2009, and received by the Department on July 2, 2009, that Respondents were not available for a meeting on July 6, 2009. Hoffman attached a list of other dates on which they would not be available.[35]

30. In a letter dated July 6, 2009, and hand-delivered to Respondents on July 7, 2009, the Department notified Respondents that it had re-scheduled the Administrative meeting for July 9, 2009, a date on which the Respondents had indicated they had no conflict. Respondents left a voice mail after business hours on July 7, 2009, stating that they would not be able to attend a meeting on that date. A letter with the same information followed on July 8. Respondents were invited to send an attorney or to submit something in writing. They did neither. The Department held the meeting without them and determined that, if the facility did not reach 90% compliance with outstanding orders by August 30, 2009, the Department would pursue suspension of the license.[36] The Respondents were advised of this deadline orally and in writing on July 10, 2009.[37]

31. On August 26, 2009, inspectors found fecal contamination on a majority of carcasses in the cooler. Eight beef quarters were trimmed immediately, and 32 beef quarters and three hogs were tagged for retention. The tags were released two days later.[38]

32. As noted above, Respondents made some progress in responding to the Department’s orders following inspections. During an inspection on August 13, 2008, inspectors observed a number of improvements, including caulked holes, spray foam on the cooler door, office repairs, and cleaned spice room containers and shelves.[39] Although the Respondents were reluctant to hire a professional exterminator, they eventually did so. On November 12, 2008, no new evidence of pests was noted, although two had been removed from traps two week before.[40] No signs of pests were observed on January 30, 2009.[41] As of July 1, 2009, the hoist area and part of the slaughter room had been covered with washable surfaces.[42] In addition, the hand washing sink in the slaughter room was working with hot and cold water, but it was not yet permanently plumbed.[43]

33. Despite these improvements, as of September 3, 2009, the Respondents’ facility continued to demonstrate numerous sanitation, hygiene, and construction violations, including, among other problems, condensation dripping on carcasses in the carcass cooler, no hot water in the bathroom sink, a lack of documentation of the temperature and time for sausages in the smokehouse room, failure to stamp custom product with the “Not for Sale” stamp, exposed wood on contact surfaces, flaking rust on equipment, filthy equipment, and inadequate ventilation in the smokehouse room.[44]

34. The Department issued the Notice and Order for Hearing and Order to Show Cause in this matter on November 4, 2009.

35. An inspection on November 30, 2009, noted that conditions in the facility had deteriorated since August. Many of the same sanitation and operations violations were noted. In addition, inspectors embargoed and subsequently destroyed 12 quarters of beef (2,250 lb) because they were covered with a dark residue, blood, and hair. The owner of the beef subsequently advised the inspectors that the cattle were healthy when slaughtered at the farm, and the butcher subsequently brought the beef to Lafayette City Meats for processing. The butcher advised the inspectors that the beef was in good condition when it was delivered, but that Respondent Richard Hoffman had instructed him to unload the beef and place it on the slaughter room floor, on which blood and mud had been tracked by people going in and out the back door. The butcher also observed that, at the time of the delivery, a woman was processing a hog that smelled strongly of rotting flesh. When he looked closer, he saw that the hams of the hog appeared to have been chewed off by an animal before the hog was processed.[45]

36. By letter dated January 4, 2010, the Department advised the Respondents of a possible criminal prosecution as a result of the violations for which they were repeatedly cited.[46] Criminal charges were filed in Nicollet County in February 2010.

37. Inspection in February 2010 again disclosed many of the same violations.[47]

Based on the above Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Administrative Law Judge and the Commissioner of Agriculture have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50 and 28A.13. The Department has complied with all procedural and substantive requirements of statute and rule. The Notice and Order for Hearing and Order to Show Cause was, in all respects, proper as to form and content.

2. Pursuant to Minn. Stat. § 28A.07, the Commissioner of Agriculture “may cause appropriate inspections to be made to determine under applicable statutory and promulgated rule requirements, the applicant's fitness to engage in the mode(s) of business described in that person's license application” and “may withhold authorization to engage in any aspects of business for which the applicant is not deemed fit under this section.”

3. Pursuant to Minn. Stat. § 28A.13, “[w]henever the commissioner has reason to believe that any provision of law relating to the manufacturing, processing, distribution, handling and sale of food, or rule issued by the commissioner thereunder, has been violated, the commissioner may suspend or revoke a license or permit granted under section 28A.04, or may limit the permission of the license or permit to only those aspects of the licensee's or permittee's business which are in conformity with the law and rules.”

4. Minn. Stat. § 28A.04, subd. 1, requires that “[n]o person shall engage in the business of manufacturing, processing, selling, handling, or storing food without having first obtained from the commissioner a license for doing such business.”

5. Minn. Stat. § 28A.04, subd. 2, further provides “[i[n addition to the license requirements set forth in subdivision 1, every custom processor shall obtain a custom processing permit. Application for a permit shall be made on forms provided by the commissioner. The commissioner shall cause the custom processor's place of business to be inspected and if the commissioner finds that the applicant's place of business complies with state standards relating to meat processing plants, a custom processing permit shall be issued to the applicant.”

6. Minn. Stat. § 28A.05(a) defines retail food handlers as “persons who sell or process and sell food directly to the ultimate consumer or who custom process meat or poultry.”

7. Minn. Stat. § 31A.15, subd. 1, exempts custom processors from “the provisions of sections 31A.01 to 31A.16 requiring inspection of the slaughter of animals and the preparation of the carcasses, parts of carcasses, meat, poultry, poultry food products, and meat food products at establishments conducting slaughter and preparation . . . .”

8. Minn. Stat. § 31A.15, subd. 1(2) requires that custom processed “cattle, sheep, swine, poultry, or goats [be] delivered by the owner for processing,” and that “the preparation or transportation in intrastate commerce of the carcasses, parts of carcasses, meat, poultry, poultry food products, and meat food products of animals, [be] exclusively for use in the household of the owner by the owner and members of the owner's household, nonpaying guests, and employees.”

9. Minn. Stat. § 31A.15, subd. 1(2) also requires that:

Meat from custom processing of cattle, sheep, swine, poultry, or goats must be identified and handled as required by the commissioner, during all phases of processing, chilling, cooling, freezing, preparation, storage, and transportation. The custom processor may not engage in the business of buying or selling carcasses, parts of carcasses, meat, poultry, poultry food products, or meat food products of animals usable as human food unless the carcasses, parts of carcasses, meat, poultry, poultry food products, or meat food products have been inspected and passed and are identified as inspected and passed by the Minnesota Department of Agriculture or the United States Department of Agriculture.

10. Minn. Stat. § 31A.15, subd. 2, requires that “[t]he processing of animals and preparation of articles referred to in subdivision 1, clause (2), must be conducted in accordance with sanitary conditions that the commissioner may by rule prescribe.”

11. Minn. Stat. § 31A.15, subd. 3, applies the prohibitions against adulteration and misbranding to custom exempt processed meats, with the exception of the inspection legend requirement.

12. Pursuant to Minn. Stat. § 31.53, “[t]he commissioner shall at such times as the commissioner deems necessary cause any plant processor . . . where animal or poultry slaughtering, packing or processing occurs, to be inspected and shall make such order as is necessary to correct unsanitary conditions in any such plant. Each order shall specify the time within which it shall be complied with, and such order shall be served in person or by certified mail. Failure to comply with such orders within the time stated shall be deemed a violation of this section.”

13. The Department has the burden of proving the facts at issue by a preponderance of the evidence.[48]

14. The Department demonstrated by a preponderance of the evidence that Respondents operated a packing or slaughter house or other place where food products are manufactured, stored, deposited, collected, prepared, produced, or served for the purpose of sale or profit in a filthy, unclean, and insanitary condition, in violation of Minn. Stat. § 31.161 and 9 C.F. R. 416.1 (Count I of the Order to Show Cause).

15. The Department demonstrated by a preponderance of the evidence that Respondents accepted animals that were in a dying condition when killed and animals that died as a result of natural causes or disease into an establishment licensed under Minn. Stat. § 28A.04, in violation of Minn. Stat. § 31.56, subd. 2 (Count II).

16. The Department demonstrated by a preponderance of the evidence that Respondents maintained a slaughtering operation that does not include convenient hand-washing equipment consisting of a lavatory with hot and cold running water, soap and sanitary towels, and separate washing facilities for adequate cleaning of knives and other equipment, in violation of Minn. R. 1545.0920, and that the Respondents have failed to comply with the plumbing requirements of 9 C.F.R. § 416.2(e) (Count III).

17. The Department demonstrated by a preponderance of the evidence that Respondents engaged in slaughtering performed in such a manner as to fail to comply with sanitation requirements to adequately protect carcasses from contamination, in violation of Minn. R. 1545.0930 and 9 C.F.R. § 310.18 (Count IV).

18. The Department demonstrated by a preponderance of the evidence that Respondents conducted slaughter operations in a building that is not of sound construction, in good repair, maintained in a sanitary condition, nor free of rodents, insects, pests, and other vermin, in violation of Minn. R. 1545.0970 and 9 C.F.R. § 416.2(a) and (b) (Count V).

19. The Department demonstrated by a preponderance of the evidence that Respondents failed to provide lighting of good quality and sufficient intensity to ensure that sanitary conditions are maintained and that product is not adulterated in areas where food is processed, handled, stored or examined; in areas where equipment and utensils are cleaned; and in hand-washing areas and toilets, in violation of 9 C.F.R. § 416.2(c) (Count VI).

20. The Department demonstrated by a preponderance of the evidence that Respondents failed to keep rooms, compartments, or receptacles used for edible products separate and distinct from inedible products departments and from rooms where live poultry, rabbits and animals are held or slaughtered, in violation of Minn. R. 1545.0990 (Count VII).

21. The Department demonstrated by a preponderance of the evidence that Respondents removed or disposed of detained or embargoed articles, in violation of Minn. Stat. § 31.05, which were prohibited acts pursuant to Minn. Stat. § 31.02(i) (Count VIII).

22. The Department demonstrated by a preponderance of the evidence that Respondents failed, on multiple occasions, to properly label custom-slaughtered meat, in violation of Minn. R. 1540.4450 and 9 C.F.R. §§ 303.1, 316.16, and 317.16 (Count IX).

23. The Department demonstrated by a preponderance of the evidence that Respondents’ facility lacked ventilation adequate to control odors, vapors, and condensation to the extent necessary to prevent adulteration of product and the creation of insanitary conditions, in violation of 9 C.F.R. § 416.2(d) (Count X).

24. The Department demonstrated by a preponderance of the evidence that Respondents used equipment and utensils for processing or otherwise handling edible and inedible product and ingredients, in violation of the equipment and utensil cleaning and sanitation requirements of 9 C.F.R. § 416.3 (Count XI).

25. The Department demonstrated by a preponderance of the evidence that Respondents repeatedly failed to comply with food-contact surface cleaning and sanitation standards requiring that all food-contact surfaces, including food-contact surfaces of utensils and equipment, be cleaned and sanitized as frequently as necessary to prevent the creation of insanitary conditions and the adulteration of product, in violation of 9 C.F.R. § 416.4(a) (Count XII).

26. The Department demonstrated by a preponderance of the evidence that Respondents repeatedly failed to comply with non-food-contact surface cleaning and sanitation standards requiring that all facilities, equipment and utensils used in the operation of the establishment be cleaned and sanitized as frequently as necessary to prevent the creation of insanitary conditions and the adulteration of product, in violation of 9 C.F.R. § 416.4(b) (Count XIII).

27. The Department demonstrated by a preponderance of the evidence that Respondents failed repeatedly to comply with operational sanitation standards requiring that product be protected from adulteration during processing, handling, storage, loading, and unloading at and during transportation from establishments, in violation of 9 C.F.R. § 416.4(d) (Count XIV).

28. The Department demonstrated by a preponderance of the evidence that Respondents failed to adhere to the prescribed treatment of pork and products containing pork to destroy trichinae by failing to heat product to temperatures sufficient to destroy trichinae, in violation of 9 C.F.R. § 318.10 (Count XV).

29. The Department demonstrated by a preponderance of the evidence that Respondents repeatedly failed to comply with corrective orders issued by the Commissioner, in violation of Minn. Stat. § 31.53 (Count XVI).

10. The Memorandum attached hereto is incorporated herein by reference.

Based upon the foregoing Conclusions of Law, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED that the Commissioner of Agriculture AFFIRM the Department’s Revocation or Non-renewal of the Retail Food Handler License and Custom Processing Permit of Lafayette City Meats.

Dated: June 4, 2010

s/Kathleen D. Sheehy ____________________

KATHLEEN D. SHEEHY

Administrative Law Judge

Reported: Digitally recorded (no transcript prepared)

NOTICE

This report is a recommendation, not a final decision. The Commissioner of Agriculture will make the final decision after a review of the record. The Commissioner may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the Commissioner shall not issue a final decision until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes. Parties should contact Gene Hugoson, Commissioner, Department of Agriculture, 625 Robert Street North, St. Paul, MN 55155-2538, (651) 201-6000, to learn the procedure for filing exceptions or presenting argument.

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law. If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a.

MEMORANDUM

Motions in Limine

Respondents argued before and after the hearing that the Administrative Law Judge should have continued this matter indefinitely, pending the outcome of the related criminal proceedings against them. The Administrative Law Judge granted one 30-day continuance sought by the Respondents but declined a second request made immediately before the hearing, based on the significant threat to public health and safety alleged by the Department. Because the Department lacks administrative authority to prevent Respondents from continuing to do business pending the outcome of this licensing case, and because the Respondents refused to voluntarily suspend their operations during the period of any continuance, it was necessary that this matter move forward without further delay. The Respondents were provided ample time to obtain the assistance of counsel in this matter.

Respondents also state in their post-hearing memorandum that the Administrative Law Judge granted the Department’s motion in limine to prevent Respondents from offering defense testimony, based on their failure to respond to discovery requests or to exchange any exhibits prior to hearing. Respondents are incorrect. The Administrative Law Judge asked the Respondents, at the start of the hearing, whether they intended to call any witnesses or offer any documentary evidence. They stated that they did not intend to do so. The Administrative Law Judge deemed this response to be the disclosure sought by the Department and accordingly denied the Department’s motion in limine.

The Administrative Law Judge did permit the Respondents to file their Responses to the Department’s Requests for Admissions, once the Respondents explained that they had inadvertently served an unsigned copy of the Responses on the Assistant Attorney General representing the Department. In doing so, the Administrative Law Judge also denied the Department’s motion to deem all of the Requests for Admissions admitted.

Respondents claim that the Department’s Requests for Admission were unethical, in terms of the number of requests and the amount of time Respondents were given to answer the Requests. The rules permit a party to serve upon another party requests for admission of “relevant facts or opinions” at least 15 days prior to the hearing.[49] The rule requires a response within ten days of receipt of the request. The rule does not limit the number of requests. There were many inspections in this case, because the Department gave the Respondents more than two years to demonstrate that they were capable of operating the facility in compliance with the law. Given the many inspections and alleged violations in this matter, the number of requests was not unreasonable. The first thirteen requests simply restate the applicable laws. The remaining requests all relate directly to this proceeding, recounting inspections or other interactions between the Respondents and the Department, and setting forth the conclusions in the violations listed in the Notice of Hearing and Order to Show Cause. The Requests for Admission were not unethical or otherwise improper.

Evidentiary Burden

Respondents also argue that the Department must prove that they “pose a threat to public health,” not just that they have violated a particular rule, or rules. Respondent’s argument ignores the plain language of Minn. Stat. § 28A.13, which permits the commissioner to “suspend or revoke a license or permit granted under section 28A.04” any time “the commissioner has reason to believe that any provision of law relating to the manufacturing, processing, distribution, handling and sale of food, or rule issued by the commissioner thereunder, has been violated.”

Respondents’ argument that the Department was required to prove that someone was harmed by food taken from their store, or to present laboratory evidence that some finished product was actually contaminated or adulterated, is incorrect. The laws ane rules are in place to prevent and correct situations that may result in contamination of food. If no one was harmed by meat processed in this facility, Respondents should count themselves lucky. The Department presented overwhelming documentary and testimonial evidence that the conditions in Respondents’ facility were insanitary on an ongoing basis for more than two years. The Department has met its burden, and the Respondents’ license and permit should be revoked or not renewed.

K.D.S.

[2] Id.; Ex. 6, U. S. Department of Agriculture, Food Safety and Inspection Service, Directive 5930.1, Revision 4 (7/15/09).

[5] Test. of N. Nesser.; Minn. R. 1540.4450 (2007); 9 C.F.R. §§ 303.1, 316.16, 317.16.

[8] Testimony of Corrine McQuillan, Eileen Schmidt; Exs. 9 through 73.

[9] The relevant inspections occurred on 1/19/07, 4/13/07, 9/25/07, 1/8/08, 5/2/08, 7/25/08, 8/13/08, 11/12/08/, 11/20/08, 1/30/09, 2/3/09, 6/11/09, 7/10/09 and 9/3/09. See Ex. 84, p. 4. Additional inspections occurred in November 2009 and February 2010 after issuance of the Notice and Order for Hearing and Order to Show Cause (Notice and Order) on October 30, 2009.

[10] Exs. 9, 10, 11, 16, 22, 24, 26, 27, 29, 37, 41, 51, 63, 69, 71 and 84; Test. of C. McQuillan; Test. of E. Schmidt. For the statutes and rules violated, see Minn. Stat. § 31.91, subds. 1 & 10; 9 C.F.R. §§ 416.4(a), (b) & (d); and § 416.3 (a).

[12] Exs. 9, 10, 11, 16, 18, 22, 24, 27, 29, 37, 51, 55, 63, 69 and 84; Test. of C. McQuillan; Test. of C. Schmidt. For the statutes and rules violated, see Minn. Stat. §§ 31.91, subd.1; 31.101, subd.10; & 31.121(a); and 9 C.F.R. § 310.18(a).

[16] Ex. 16 (approximately 50 lb of meat condemned on 1/8/08 due to rodent infestation, product was stored on cart next to area where rodents were nesting near the carcass cooler door); Ex. 22 (101 lb of meat condemned on 5/13/08 due to freezer burn and contamination by dripping condensation in the cooler); Ex. 29 (hams and bacon condemned when inspectors found them being soaked in brine in an inedible barrel on 11/21/08). See also Finding No. 35 (2,250 lb of beef condemned in November 2009).

[17] Exs. 9, 11, 12, 13, 37, 71; Test. of C. McQuillan, E. Schmidt. For the statutes and rules violated, see Minn. Stat. §§ 31.91, subd.1; 31.101, subd. 10; Minn. R. 1540.4450, 1540.4455, 1540.4460; and 9 C.F.R. §§ 303.1(a)(2)(iii), 316.16, & 317.16.

[18] Ex. 14, p. MDA 14; Testimony of Alan Schauer.

[33] Exs. 48-51. For the statutes and rules violated, see Minn. Stat. §§ 31.05, subd. 1a; 31.91, subd. 1; & 31.02(i).