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December 21, 1984


The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge

This criminal prosecution under the Federal Food, Drug and Cosmetic Act (the "Act"), 21 U.S.C. §§ 301 et seq., was initiated with the filing of a ten-count Information on December 3, 1980. The information charges Gel Spice Co., Inc. ("Gel Spice"), its President, Barry Engel, and its Vice-President, Andre S. Engel, with causing various articles of food that had been shipped in interstate commerce to be held for sale in a building accessible to rodents, thereby exposing the food to contamination of rodent filth. This, it is charged, resulted in the food becoming adulterated (a) within the meaning of 21 U.S.C. § 342(a)(4) (1976), *fn1" in that various lots of food were held under insanitary conditions whereby they may have become contaminated with filth (all Counts); and (b) within the meaning of 21 U.S.C. § 342(a)(3) (1976), *fn2" in that the food consisted in part of a filthy substance by reason of the presence therein of rodent excreta pellets, rodent gnawings, rodent hair or rodent urine (Counts I, II, III and VIII). Proof of either charge is a violation of 21 U.S.C. § 331(k) (1976), *fn3" which prohibits the doing of any act that results in food becoming adulterated while being held for sale after shipment in interstate commerce.

Each Count of this Information is predicated upon inspections by employees of the United States Food and Drug Administration ("FDA") of the McDonald Avenue, Brooklyn, N.Y., food warehouse operated by Gel Spice. Counts I and II arise from an FDA inspection in July 1976; Counts IV and V from an inspection in March 1977; Counts III, VI and VII from an inspection in July 1977; and Counts VIII, IX and X from an inspection in January 1979. The corporation and Barry Engel are named in all ten counts; Andre Engel is named in Counts I through VII.

 After a lengthy period of discovery and motion practice, *fn4" a bench trial was held on February 29, March 1, 2 and 5, 1984. Extensive briefs and memoranda were subsequently filed. The following constitute the Court's findings of fact and conclusions of law. Fed. R. Crim. P. 23(c).

 Findings of Fact

 Gel Spicewas incorporated under the laws of New York in 1955. Since 1969 it has had an office and warehouse at 593 McDonald Avenue, Brooklyn, New York. Gel Spice imports, processes, and packages spices. The processing involves grinding, blowing, sifting, and repackaging the spices into consumer and industrial size containers.

 Barry Engel has been the President of Gel Spice since 1963, and is responsible for the purchasing of spices and their storing, processing and packaging at the McDonald Avenue facility. His brother, Andre Engel, is responsible for sales. Their mother, Margaret Engel, handles the financial operation of the company. All have equal shares in Gel Spice and may sign checks and documents on behalf of the company.

 The McDonald Avenue facility is 300' x 125' x 14' and is divided into five separate areas: A large main raw materials storage room for receiving and storing spices; an adjacent production room for processing the spices, and next to that a packaging materials storage room. There are, in addition, an office area on the McDonald Avenue side of the production room and a cool room on the McDonald Avenue side of the packaging materials storage room. Two sliding garage doors open on to McDonald Avenue, one in the main storage room and the other in the packaging materials storage room. *fn5"

 Packaging, Production, Main Material Room, Storage, Storage Room, Cool Room, Office- McDONALD AVENUE.

 Gel Spice imports spices from abroad, particularly from South America, Europe and the Middle East. The spices are imported by ship and unloaded at piers. When the spices arrive, an official sampler from an outside firm is sent by Gel Spice to take a random sample from the bags.

 The sampler follows procedures and standards published by the American Spice Trade Association and the sample is tested for Gel Spice by an independent laboratory using those standards. Gel Spice's decision regarding the acceptance and use of the merchandise are based on the results of that test. It is notable that no examination is made at the pier of the outside of the bags, and only a random number of bags have samples drawn from within.

 If the sampled spices pass the pier inspection, then the entire shipment is brought to the McDonald Avenue warehouse. Everyone in the trade knows that imported spices can arrive at the Gel Spice facility in a contaminated state; accordingly, measures must be taken to avoid bringing rodents into the building. When the spices arrive, a Gel Spice employee looks for evidence of rodent activity. Employees also scan the bags with a "black light" that will expose possible urine stains. At any given time, there may be 10,000 or more bags of spice stored at Gel's premises.

 From 1976 through 1979 Gel Spice had an ongoing sanitation and rodent control program. The firm once used DDT before that insecticide was banned. DDT was a quite efficient. The insecticide was spread around the doorways and around the plant and no mice would cross the DDT to come into the building. When DDT was banned, the company's exterminator recommended bait stations, traps, and then glue boards. Bait stations involve the use of poisoned food; traps catch the rodents.

 Continuing their effort to develop an effective sanitation program, defendants retained various firms, all of whom promised satisfactory results. Between 1974 and 1979 Gel Spice had four different outside exterminators, who would come once each week or every two weeks. During this period, Gel Spice was inspected four times by the FDA. Those inspections form the basis of this Information.

 A. The July 1976 Inspection (Counts I, II)

 In July 1976 FDA Investigators Thomas Gardine and Brian Landesberg inspected the McDonald Avenue warehouse. They examined a lot of chili peppers in the warehouse's cool room. Inspector Gardine saw several dead rodents on bags of a different spice next to the lot of chili peppers. He also observed several dead rodents on the floor, one of which was covered with maggots and which, in Gardine's opinion, had been decomposing for at least one week. Throughout various areas of the cool room Inspector Gardine observed rodent excreta ...

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