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OAH 15-0900-21862-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
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In the Matter of the Administrative Penalty Order Issued to Anna Brown |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
A hearing was held on May 19, 2011, at the Holiday Inn Express,
The hearing record closed upon receipt of the parties’ written closing arguments on June 13, 2011.
Appearances: Gina D. Jensen, Assistant Attorney General, on behalf of the Department of Health (Department). Samuel S. Rufer, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., on behalf of Anna Brown.
1. Did Anna Brown fail to obtain a license to operate a food and beverage service establishment, in violation of Minn. Stat. § 157.16?[1]
2. If Ms. Brown failed to obtain the required license, did the Department properly issue her a Nonforgivable Administrative Penalty of $10,000?
Ms. Brown admitted that she operated a food and beverage service establishment without the proper license. The Administrative Law Judge recommends that the Administrative Penalty of $10,000 be upheld.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
Regulatory Background
1. The Department has authority and responsibility for developing an organized system of programs and services to protect, maintain, and improve the public health. The Commissioner of Health (Commissioner) is responsible for adopting and enforcing rules establishing standards for food and beverage service establishments, hotels, lodging establishments and resorts.[2]
2. Pursuant to that authority, the Commissioner has adopted Minnesota Rules Chapter 4626 (the Food Code),[3] which outlines requirements and standards for food and beverage establishments, and the Department is charged with enforcing the Food Code.
3. The Department alleged that the Respondent engaged in the business of conducting a “food and beverage service establishment” without obtaining the necessary license.
4. A food and beverage service establishment is a “building, structure, enclosure, or any part [thereof] used as, maintained as, advertised as, or held out to be an operation that prepares, serves, or otherwise provides food, beverages, or both, for human consumption.”[4]
5. The requirements for obtaining a food and beverage service establishment license are included in the Food Code.[5]
6. A person without a license may not operate a food and beverage service establishment.[6]
Operating Without a Food and Beverage Service Establishment License
7. The Respondent holds a license as a certified food manager. She admits that she does not have a food and beverage service establishment license. [7]
8.
On August 27, 2010, Respondent prepared and
provided food for a wedding reception at the Detroit Lakes Community and
9.
On August 28, 2010, Respondent prepared and
provided food for a wedding reception at the American Legion in
10. The Respondent does not dispute that she was the caterer for the two wedding receptions.[10]
The Department’s Investigation
11.
On September 2, 2010, the Becker County
Community Health Department (
12. The Department contacted the two people and learned that they had eaten many meals in common, including food at the August 27 wedding reception.[12]
13.
On September 3, 2010, the same
14.
On September 7, 2010, the
15. On September 8, 2010, the Department began its investigation of the foodborne illness outbreak. Its epidemiologists conducted interviews and obtained information about exposures and food and beverage consumption. As part of the process, the epidemiologists attempted to determine whether there were other potential cases associated with events catered by the Respondent. In the course of the investigation, they learned of an individual who reported becoming ill and had attended the August 28 wedding reception.[16]
16. The epidemiologists were able to obtain illness histories and exposure information for four persons who attended the August 27 reception and eight persons who attended the August 28 reception. Of the twelve, seven had a culture that confirmed positive for Salmonella Enteritidis SE1B1, or had fever and diarrhea and reported eating at an event catered by the Respondent.[17]
17. Of the persons who became ill, one required hospitalization for four days. At the time of the interviews, only one person had recovered. His illness duration was fourteen days.[18]
18. Although the Department requested their cooperation, the families of the two brides were unwilling to provide the lists of persons attending the wedding receptions.[19]
19. The Department determined that the only common link among all of the individuals who became ill was that they had attended a wedding reception catered by the Respondent.[20]
20. Because of the relatively limited number of persons tested, the Department was not able to identify which food item was associated with the illness.[21]
21. The Department concluded that the outbreak of Salmonella Enteritidis SE1B1 was caused by the Respondent.[22]
22. On or about September 8, 2010, the investigators from the Department’s Environmental Health Division began an investigation regarding the location and manner in which Respondent prepared the food served at the two wedding receptions.[23]
23. The Environmental Health Division determined that the Respondent had prepared the food for the August 27, 2010, wedding reception at her home and at the Community Center, and that she had prepared the food for the August 28, 2010, wedding reception at her home.[24] At hearing, the Respondent claimed that some of the food for the August 28th reception had been prepared at the American Legion.[25]
24. The Environmental Health Division confirmed that the Respondent holds a food manager’s certificate, but had not applied for or been granted a food and beverage service establishment license.[26]
25. Upon learning from the Department’s investigator that she could not continue to operate a catering business without the food and beverage service establishment license, Respondent immediately agreed to stop doing so.[27]
26. Based on its findings, the Environmental Health Division determined that Respondent was operating a food and beverage service establishment without a license, in violation of Minn. Stat. § 157.16, subd. 1.
27. The Respondent does not deny that she was serving food at the two wedding receptions without a food and beverage service establishment license. However, she contends that she contacted the Department of Health to inquire whether she was required to have a license and was told that she was not.[28]
28. In his notes, one of the investigators, Glenn Donnay, commented that the Respondent stated during the investigation that she had contacted either the Department of Health or the Department of Agriculture previously, that she had started baking items at home and then expanded to catering for full meals, preparing the food at a commercial club or church.[29]
29. Respondent stated at hearing that she had contacted the Department at the time that she remodeled her kitchen in 2005 and wanted to expand her catering business. She described to the person with whom she spoke what she wanted to do and answered the questions asked of her. She stated that she explained that she would be serving food out of small kitchens in small towns, and was reassured that only the food managers certificate was necessary.[30]
30. Mr. Toms, the senior sanitarian who led the Department’s investigation, inquired of the appropriate Department staff to determine if anyone could recall such a conversation, but none of the staff could recall speaking to Respondent. The Department has had no turnover in that staff from 1998 through the relevant time period.[31]
Calculation of the Administrative Penalty
31. On November 4, 2010, the Department convened an “enforcement forum” to determine if it should issue an administrative penalty and, if so, the appropriate corrective action and the amount of the penalty. The staff is guided by the “Plan for the Use of Administrative Penalty Order, Cease and Desist Authority, and Other Enforcement Tools” (Enforcement Plan).[32]
32. The Department determined that an administrative penalty order was appropriate because of the Respondent’s violation of Minn. Stat. § 157.16, and that the appropriate corrective action was for Respondent to discontinue operating without a license. In addition, the Department determined the amount of the administrative penalty.[33]
33. The Department categorized the violation as “serious,” based upon its determination that the offense was defined as such in the Division’s Enforcement Plan.[34]
34. The Enforcement Plan states:
Serious violations include conduct showing disregard for requirements or standards, or violations that present an actual or potential danger to public health or natural resources. Department regulatory programs are likely to consider the following types of violations as serious: operating or performing work for which a license … is required without the required license….[35]
35. Relying upon its determination that the Respondent’s violation was serious, the enforcement forum concluded that a nonforgivable penalty should be assessed. It also determined that the violation was not repeated.[36]
36. In calculating the base penalty, the forum considered that the potential for harm was severe because foodborne illness outbreaks occurred after food prepared by the Respondent was served at two events at unlicensed locations. The deviation from compliance was also considered severe because the Respondent failed to obtain the required license.[37] The total nonforgivable penalty was calculated at $10,000.[38]
37. An administrative penalty may not exceed $10,000.[39] Because the base penalty determined by the forum was $10,000, the forum did not adjust the penalty for other factors.[40]
38. Mark Peloquin, Enforcement Coordinator for the Department’s Environmental Health Division, discussed the application of the Enforcement Plan and the rationale for treating unlicensed operations as severe violations. When the Department has not received an application for a license, with the accompanying documentation, it is unable to review the operator’s plan or conduct an investigation of the facility, including the water, sewage and waste disposal, and the equipment used for food preparation and storage. Without that review and inspection by the Department, the public is placed at significant risk of foodborne illness. Smaller fines may be issued where the establishment license has lapsed but has been subject to periodic inspections.[41]
39. In this case, where the facility used for food preparation had never been inspected and foodborne illness was associated with the meals prepared by the Respondent, the potential for harm was severe and justified the highest penalty. The enforcement forum relied on the expert opinion of the epidemiologists, based on their interviews and lab analysis, that the illness outbreak was caused by the Respondent.[42]
40. The Administrative Penalty Order was issued on November 17, 2010.[43] On December 7, 2011, the Department received Respondent’s request for hearing.[44]
41. As a certified food manager, the Respondent is responsible for knowing the requirements of the Food Code.[45] She was initially certified in 2000 and has re-taken the certification exam every three years. Each time she reviews an updated handbook to prepare for the exam.[46] A food manager should know that she could not operate a food and beverage service establishment without a license, and that her catering business met the definition of a food and beverage service establishment.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Commissioner and the Office of Administrative Hearings have jurisdiction to consider this matter pursuant to Minn. Stat. §§ 157.20, 144.99, 144.991,subd. 5, and 14.50.
2. The Department gave proper and timely notice of the hearing and complied with all procedural requirements of law and rule.
3. The Department must demonstrate by a preponderance of the evidence that the Respondent violated an applicable statute or rule and is subject to an administrative penalty.
4. The Department demonstrated by a preponderance of the evidence that the Respondent operated a catering business and violated Minn. Stat. § 157.16, subd. 1, by conducting a food and beverage service establishment without obtaining the required license.
5. The Department has the authority to issue an Administrative Penalty Order, pursuant to Minn. Stat. § 144.99, subd. 4. In determining the amount of the penalty, it must consider the criteria set forth in Minn. Stat. § 144.991, subd. 1, and give notice to the person subject to the penalty, pursuant to Minn. Stat. § 144.991, subd. 2.
6. The Department applied the criteria in its penalty calculation and issued an Order to the Respondent as required.
7. An Administrative Law Judge “may not recommend a change in the amount of the proposed penalty unless the administrative law judge determines that, based on the factors in [Minn. Stat. § 144.991], subdivision 1, the amount of the penalty is unreasonable.”[47]
8. There is no basis to conclude that the administrative penalty was unreasonable.
9. Any Findings of Fact more properly designated Conclusions are hereby adopted as such.
Based upon these Conclusions, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
The Administrative Law Judge recommends that:
The Administrative Penalty Order issued by the Department be AFFIRMED.
Dated: June 29, 2011
s/Beverly Jones Heydinger
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Beverly Jones Heydinger Administrative Law Judge |
Reported: Digitally Recorded
This report is a recommendation, not a final
decision. The Commissioner of Health
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. Parties should contact Dr. Edward Ehlinger, Commissioner of the Department of Health,
Pursuant to Minn. Stat. §
144.991, subd. 5, the commissioner may not issue a final order until at least
five days after receipt of the report of the administrative law judge. The person to whom an order is issued may,
within those five days, comment to the commissioner on the recommendations and
the commission will consider those comments.
Pursuant to
The Respondent does not dispute that she operated her catering business without the required license. However, she disputes the amount of the penalty that the Department assessed.
Minnesota Statute § 144.991, subd. 1, sets forth the criteria that the commissioner may consider in determining the amount of the penalty when it determines that there has been a violation of the laws it administers. Those criteria are incorporated into the Department’s Enforcement Policy.
Respondent asserts two reasons why she believes that the penalty of $10,000 is excessive. First, she contends that her violation should not be considered serious because she checked before she began her catering business to determine if she needed any license and was told by someone at the Department of Health that she did not. Second, she contends that the impact of the violation should not be considered severe because the Department cannot show that any food prepared by her contributed to the outbreak of Salmonella Enteritidis SE1B1. Since the Respondent did not prepare the cakes served at the two wedding receptions, she asserted that it was possible that the cakes caused the illness.
Neither argument is persuasive. The Respondent states that she initially told one of the investigators that she was licensed because she believed that the food manager’s certificate was all she was required to have. Since Respondent completed the training for the food manager’s certificate, she was expected to know the rules that applied, and those rules clearly required a food and beverage service establishment license. Her lack of knowledge is not a defense.
She also claims that she called the Department and was told that she did not need a license. The Respondent was not able to identify the date that she called or the person with whom she spoke.[48] Yet, she claims that the Department should be prevented from levying the penalty, or should decrease the penalty, because she received incorrect information.
Based on her limited recollection, it is impossible to determine what Respondent might have told the Department staff person about the business she intended to operate. Her recollection is insufficient to raise any valid claim of good faith reliance on a verifiable statement made by an authorized Department representative. Even if the Respondent was given incorrect information, it does not preclude the Department from enforcing the law as it is written.
A party claiming estoppel against the government bears a heavy burden.[49] The test for estoppel has been defined in different ways but can be summarized as follows: First, there must be a wrongful act by the government. This must be an affirmative act of misconduct and not just a mistake, omission or inadvertent error.[50] Then, there must be reasonable reliance. Typically, the courts will not find that reliance on one person’s oral representation is reasonable reliance, particularly when the person who is regulated is expected to know the laws that apply.[51]
Respondent states that the penalty should be lower because her violation was not willful. She honestly believed that she was not required to have a license and she stopped doing business as soon as one of the Department investigators notified her that a license was required. Mr. Peloquin acknowledged that the Department would have considered lowering the penalty if Respondent had been able to provide any detailed information about the substance of her call or if the call could have been verified. However, because the Respondent was unable to provide any details and the Department staff who would have handled such a call had no recollection of her inquiry, the Department did not believe that any reduction was warranted.
The Respondent was also unable to rebut the overwhelming evidence presented by the Department that tied the catered food at the wedding receptions to the food illness outbreak. She argued that the Department could not pinpoint the food that caused the outbreak of illness and could not entirely rule out the possibility that the wedding cakes were the cause.
Respondent asserted that none of the food that she prepared could have caused the outbreak because she did not use any eggs or any uncooked or raw chicken. She described her food handling practices. Yet, by operating out of facilities that had not been approved by the Department, it is impossible to tell whether those facilities met the required standards. It is also possible that one of her employees contaminated the food. Because the Respondent operated out of more than one unlicensed kitchen, the investigation was additionally compromised.
The Department considered the possibility that contaminated eggs caused the outbreak. There was a widely advertised recall of eggs between May and November 2010. During its interviews of persons who attended the wedding receptions, the Department ruled out the possibility that the persons who became ill had consumed eggs in the prior week.[52] The Respondent contended that the bakers could have used recalled eggs in the preparation of the cakes and those cakes could have caused the illnesses.
The likelihood that eggs in the cakes caused the outbreak was so small as to be virtually impossible. As Dr. Smith testified, with the exception of one brand of eggs sold at Target, all of the recalled eggs were off store shelves and out of the market by August 20, 2010. The Respondent’s theory presumes that two bakers purchased recalled and contaminated eggs, did not cook the eggs used in the cake, frosting or filling, and served the cakes at events catered by the Respondent in two cities on two dates.
During its investigation, the Department asked persons who became ill whether they had eaten the wedding cake and determined that some persons who had eaten cake and some who had not eaten cake became ill.[53] One person with confirmed Salmonella Enteritidis SE1B1 attended the wedding on August 28 and did not eat cake.[54] Another individual who worked for Respondent reported eating cake at both weddings and did not become ill.[55]
Also, a licensed food establishment is required to substitute pasteurized eggs for raw shell eggs in the preparation of foods that are not cooked.[56] Thus, if either of the wedding cakes was prepared by a licensed food establishment, use of unpasteurized raw eggs in the cake filling or frosting would have violated the rules under which they operated.
For these reasons the Department concluded that there was no reasonable possibility that the two wedding cakes were the cause of the Salmonella outbreak. Although in this proceeding the Department’s burden is to show the facts by a preponderance of the evidence, the evidence ruling out the wedding cakes was far greater than the required minimum. Although there is a hypothetical possibility of another source of the outbreak, there was substantial evidence that the food prepared by the Respondent was the cause.
The Department had difficulty gaining cooperation with its investigation. It attempted to ascertain who provided the cakes to the wedding receptions, but no one was willing to provide that information to the Department.[57] Since the brides were unwilling to share the guest lists for the wedding receptions, the Department was unable to interview a broader group of people to determine which foods they may have eaten in common and who had symptoms of foodborne illness. Thus, the precise food product that triggered the outbreak could not be identified.
Despite these impediments, the Department had sufficient information gathered from twelve persons to conclude that those who became ill had eaten food at the wedding receptions catered by the Respondent.
Respondent contended that the penalty should be reduced because the specific contaminated food could not be identified. The Department had strong evidence that the Respondent was responsible for the outbreak, even though it could not pinpoint the contaminated food. Because the Respondent had not applied for a license, the Department did not have the opportunity to inspect the kitchen where food would be prepared. This fact alone contributed to the possibility of an outbreak. As was apparent here, such an outbreak can have serious consequences for those who become ill. Thus, the Department’s conclusion that the violation had a severe potential for harm is well-supported.
The Department is charged with enforcement of the laws governing the licensing and regulation of food and beverage establishments. The Commissioner has the discretion pursuant to Minn. Stat. § 144.991, subd. 1, to apply the statutory factors and determine the appropriate penalty for the violations. Those factors were followed. Moreover, the statute clearly states that an administrative law judge should not second-guess the penalty calculation unless it is unreasonable.[58] In light of the factors considered and the use of its matrix to determine the penalty amount, it cannot be said that the Department’s assessed penalty is unreasonable.
Respondent cites several cases addressing causation, claiming that without causation, a reduced penalty is required.[59] Those cases have no application in this context. In this case, the Department bears the burden of proving by a preponderance of the evidence that the Respondent violated a provision of the law. Respondent admits the violation. In addition, it must show by a preponderance of the evidence that its penalty calculation was reasonable. It showed that it followed its established protocol, that it consistently treats the failure to obtain a required license as a severe violation and when the consequences are, or could be, severe, as the consequences of improper food-handling surely can be, it is appropriate to treat the violation as severe. By applying its standards, it calculated a penalty of $10,000. It is not required to prove that a specified food prepared by the Respondent caused a foodborne illness outbreak. Although it was not required to do so, Respondent had substantial evidence that, in fact, the Respondent’s activities did cause a foodborne illness outbreak.
The Department has shown that the Respondent violated a provision of the law and that the penalty imposed was reasonable.
B.J.H.
[1] Minnesota Statutes are cited to the 2010 Edition.
[2]
[3] Minnesota Rules are cited to the 2009 Edition.
[4]
[5]
[6] Minn.
Stat. § 157.16, subd. 1;
[7] Ex. 4; Test. of A. Brown.
[8] Ex. 8; Test. of A. Brown.
[9] Ex. 8; Test. of A. Brown. Ms. Brown testified that some of the food was prepared at the American Legion. That determination is immaterial to the outcome of this matter.
[10] Test. of A. Brown; Test. of Rick Toms.
[11] Ex. 8; Test. of Dr. Kirk Smith.
[12]
[13]
[14]
[15]
[16]
[17]
[18] Ex. 8.
[19] Ex. 8.
[20] Test. of Dr. Smith.
[21] Ex. 8.
[22]
[23] Ex. 9; Test. of Toms.
[24] Ex. 9; Test. of Toms.
[25] Test. of A. Brown.
[26] Ex. 9; Test. of Toms.
[27] Ex. 3; Test. of Toms.
[28] Test. of Toms; Test. of A. Brown. There was the suggestion that Ms. Brown may have given inconsistent information to Mr. Toms and Glenn Donnay, an inspector. However, Mr. Donnay’s notes, Ex. 3, are ambiguous. The notes say that she did not seek a license, which is correct.
[29] Ex. 9 at 36-37; Test. of Toms.
[30] Test. of A. Brown.
[31] Test. of Toms.
[32] Ex. 10, updated September 28, 2010; Ex. 11; Test. of Mark Peloquin.
[33] Ex. 11; Test. of M. Peloquin.
[34] Ex. 11 at 13.
[35] Ex. 10 at 4.
[36] Ex. 10 at 9; Ex. 11 at MDH 13.
[37] Ex. 10 at Appx. B-2; Ex. 11 at MDH 14; Test. of Peloquin.
[38] Ex. 11.
[39] Minn. Stat. § 144,99, subd. 4; Ex. 10 at Appx. B-4.
[40] See Ex. 10, Appx. B-4; Ex. 11 at MDH 16; Test. of Peloquin.
[41] Test. of M. Peloquin.
[42] Test. of M. Peloquin.
[43] Ex. 7.
[44] Ex. 12.
[45]
[46] Test. of A. Brown.
[47]
[48] At one point, the Respondent stated that she may have made the call in 2005. If she renewed her food manager certificate consistently since that time, it is difficult to imagine that she never realized that a food and beverage service establishment license was required.
[49] Ridgewood Dev’t Co. v. State, 294 N.W.2d
288, 293 (
[50]
[51] See Heckler v. Community Health Services, 467
[52] Test. of Dr. Smith; Ex. 9.
[53] Test. of Dr. Smith; Ex. 9.
[54] Ex. 9 at MDH 95-98.
[55] Ex. 9 at MDH 54-55.
[56]
[57] Test. of Dr. Smith; Ex. 8.
[58]
[59] The cited cases involve cases where causation is critical to plaintiff’s claim.