08-006209
Department Of Business And Professional Regulation, Division Of Hotels And Restaurants vs.
Enfin Enterprises, Inc., D/B/A Chez Pierre
Status: Closed
Recommended Order on Wednesday, April 15, 2009.
Recommended Order on Wednesday, April 15, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16DIVISION OF HOTELS AND )
21RESTAURANTS, )
23)
24Petitioner, )
26)
27and )
29)
30FLORIDA RESTAURANT AND )
34LODGING ASSOCIATION, INC., )
38)
39Intervenor, )
41)
42vs. ) Case No. 08-6209
47)
48ENFIN ENTERPRISES, INC., )
52d/b/a CHEZ PIERRE, )
56)
57Respondent. )
59)
60RECOMMENDED ORDER
62A duly-noticed final hearing was held in this case by
72Administrative Law Judge T. Kent Wetherell, II, on March 2,
822009, in Tallahassee, Florida.
86APPEARANCES
87For Petitioner: Charles F. Tunnicliff, Esquire
93Eric C. Hurst, Esquire
97Department of Business and
101Professional Regulation
1031940 North Monroe Street, Suite 60
109Tallahassee, Florida 32399-2202
112For Intervenor: Maureen M. Daughton, Esquire
118Cathy M. Sellers, Esquire
122Broad and Cassel
125215 South Monroe Street, Suite 400
131Tallahassee, Florida 32302-1804
134For Respondent: E. Gary Early, Esquire
140Albert T. Gimbel, Esquire
144Messer, Caparello & Self, P.A.
1492618 Centennial Place
152Tallahassee, Florida 32308
155STATEMENT OF THE ISSUE
159The issue is whether Respondent violated Section 509.049,
167Florida Statutes, 1/ by using an unapproved food safety training
177program.
178PRELIMINARY STATEMENT
180The Department of Business and Professional Regulation,
187Division of Hotels and Restaurants (Division), alleged in an
196Administrative Complaint dated November 20, 2008, that
203Respondent violated Section 509.049, Florida Statutes, by using
211an unapproved food safety training program known as TrainSafe.
220On December 10, 2008, Respondent timely filed a petition
229disputing the allegations in the Administrative Complaint and
237requesting a formal hearing. On December 11, 2008, the Division
247referred this matter to the Division of Administrative Hearings
256(DOAH) for the assignment of an Administrative Law Judge to
266conduct the hearing requested by Respondent.
272On January 5, 2009, the Florida Restaurant and Lodging
281Association, Inc. (FRLA) filed an unopposed petition to
289intervene. The petition was granted in an Order entered on
299January 7, 2009. FRLA is aligned with the Division.
308On January 23, 2009, the Division filed an unopposed motion
318to correct a scriveners error in the Administrative Complaint.
327The motion was granted in an Order entered on January 26, 2009,
339and the case proceeded to final hearing on the Amended
349Administrative Complaint attached to the motion.
355On February 23, 2009, the parties filed a Joint Prehearing
365Stipulation. The stipulations contained in that filing are
373incorporated in the Findings of Fact and Conclusions of Law set
384forth below.
386On March 2, 2009, Respondent filed a motion seeking an
396award of attorneys fees against the Division pursuant to
405Section 57.105, Florida Statutes. Consideration of the motion
413was deferred pending final disposition of this case on the
423merits. See Order entered on March 3, 2009.
431At the final hearing, the Division presented the testimony
440of Richard Akin and Robert Foster; FRLA presented the testimony
450of Carol Dover and the deposition testimony of Karen Cooley and
461Eric Favier; and Respondent presented the testimony of Mr. Akin,
471Mr. Favier, Kendall Burkett, Diann Worzalla, and Debra Williams.
480Joint Exhibits 1 through 26, Intervenors Exhibits 6, 11, and
49016, and Respondents Exhibits 1 through 3, 7, and 8, were
501received into evidence. Official recognition was taken of the
510Articles of Organization of Florida Association Management
517Operation Services, LLC (FAMOS), as amended, on file with the
527Department of State as of January 26, 2009.
535The Transcript of the final hearing was filed with DOAH on
546March 16, 2009. The parties were given 10 days from that date
558to file proposed recommended orders (PROs). The PROs were
567timely filed and have been given due consideration.
575FINDINGS OF FACT
578A. Parties
5801. The Division is the state agency responsible for
589licensing and regulating food service establishments pursuant to
597Part I of Chapter 509, Florida Statutes.
6042. Respondent is the owner and operator of a licensed food
615service establishment located in Tallahassee.
6203. FRLA is a trade association that represents the
629interests of the hospitality and tourism industry in Florida.
638B. FRLAs Interest in this Disciplinary Proceeding
6454. One of FRLAs primary purposes is to educate its
655members and to promote their compliance with Florida laws.
6645. FRLA was involved in the lobbying efforts that led to
675the passage of Section 509.049, Florida Statutes, which requires
684all food service employees to undergo food safety training.
6936. FRLA owns and administers a food safety training
702program known as SafeStaff. The SafeStaff program is the food
712safety training program contracted by the Division pursuant to
721Section 509.049(2), Florida Statutes. The SafeStaff program has
729been the state-contracted program since October 2000.
7367. As a result of its designation as the state-contracted
746food safety training program, the SafeStaff program is the only
756training program -- other than grandfathered programs approved
764under Section 509.049(3), Florida Statutes -- that can be used
774to train food service employees in Florida.
7818. FRLA is authorized to charge a per employee fee to
792cover the contracted price for the program.
7999. It was stipulated that the use of an unapproved program
810to train food service employees adversely impacts FRLA because
819those employees would likely have otherwise had to use the
829state-contracted SafeStaff program and pay the per-employee fee
837to FRLA.
839C. Respondents Approved Food Service Training Program
846(1) Submittal, Approval, and Subsequent Non-Use
85210. On June 30, 2000, Respondent submitted to the Division
862for approval a food safety training program that was provided to
873it by the Florida Restaurant Association (FRA), which is the
883predecessor to FRLA. 2/
88711. Respondent submitted the FRA-provided program pursuant
894to Section 509.049, Florida Statutes (2000), which stated in
903pertinent part:
905Any food service training program
910established and administered prior to
915July 1, 2000 shall be submitted by the
923operator to the division for its review and
931approval. If the food safety training
937program is approved by the division, nothing
944in this section shall preclude any other
951operator of a food service establishment
957from also utilizing the approved program or
964require the employees of any operator to
971receive training or pay a fee to the
979divisions contracted provider.
98212. The program submitted by Respondent was called
990SafeStaff, just like FRLAs current program. The program
998consisted of the ServSafe program prepared by the National
1007Restaurant Association Educational Foundation along with
1013sections on food-borne illnesses and vermin control that were
1022required by Florida law but were not addressed in the ServSafe
1033program.
103413. The program submitted by Respondent was established
1042prior to July 1, 2000, and was administered to Respondents food
1053service employees on June 29 and 30, 2000.
106114. The Division approved the program submitted by
1069Respondent in a letter dated December 1, 2000. The letter
1079stated in pertinent part:
1083The Division of Hotels and Restaurants has
1090reviewed the food safety program submitted
1096pursuant to Section 509.049, Florida
1101Statutes, and has determined that it is in
1109substantial compliance with the standards
1114and criteria adopted by the Division for
1121food safety training. This program is
1127therefore approved for utilization by any
1133public food service establishment for the
1139required training of its food handler
1145employees , subject to the following
1150conditions:
1151* * *
11544. The food safety training curriculum
1160areas may not be deleted or reduced, but
1168must continue to meet or exceed the food
1176safety training standards established by the
1182Division, as amended from time to time .
1190(Emphasis supplied).
119215. Thus, as of December 1, 2000, the program submitted by
1203Respondent was considered an approved, or grandfathered,
1211program that could be used to train food service employees in
1222lieu of the state-contracted program.
122716. In 2004, the Legislature amended Section 509.049,
1235Florida Statutes, to require providers of approved food safety
1244training programs to submit certain information to the Division
1253when the program is used to train employees of other food
1264service establishments. This reporting requirement does not
1271apply when the provider uses its approved program to train its
1282own employees.
128417. The 2004 amendments to Section 509.049, Florida
1292Statutes, also established a deadline for submitting food
1300service training programs for approval as a grandfathered
1308program. Specifically, subsection (3) of the statute was
1316amended to require the program to be submitted by the operator
1327or the third-party provider to the division for its review and
1338approval on or before September 1, 2004.
134518. The Division assigned a unique Provider ID Number to
1355each approved food safety training program to be used by the
1366provider when reporting the required training information to the
1375Division.
137619. Respondents approved program - the FRA-provided
1383SafeStaff/ServSafe program submitted by Respondent on June 30,
13912000, and approved by the Division on December 1, 2000 -- was
1403assigned Provider ID Number 7148473.
140820. Respondent never used its approved training program to
1417train its own employees. Instead, it purchased the training
1426programs from FRA and FRLA or it hired employees who had already
1438undergone training at a culinary school.
144421. Respondent never used its approved training program
1452(or any other training program) to train employees of other food
1463service establishments, as more fully discussed in Part C(4),
1472below.
1473(2) Sale of the Program to FAMOS
148022. In May or June 2008, Respondent was approached by Rick
1491Wallace, the president of FAMOS, about purchasing Respondents
1499approved training program.
150223. Respondents owner, Eric Favier, did not know that
1511Respondent even had an approved program when he was first
1521approached by Mr. Wallace. Indeed, Mr. Favier credibly
1529testified that after the program was approved, it was put into
1540a drawer and forgotten about.
154524. Mr. Favier relied upon Mr. Wallaces representations
1553that Respondent had an approved program, and he agreed to sell
1564the program to FAMOS because Respondent was not using, and had
1575no use for, the program.
158025. On July 1, 2008, Respondent and FAMOS executed a
1590document titled Sale Agreement for Licensure of Florida
1598pursuant to which Respondent agreed to sell the entire license
1608rights and ownership of [its] Florida approved employee food
1617safety training program to FAMOS.
162226. The Sale Agreement required Respondent to release all
1631ownership and licensing rights of [the] Program commencing at
1640the signing of this agreement. The agreement further provided
1649that payment of 10% of the Gross Profit [3/] shall constitute she
1661complete sale of the food safety training program.
166927. The Sale Agreement included a confidentiality
1676provision that precluded the parties from disclosing any of the
1686terms of the agreement. The confidentiality provision was
1694removed through an Addendum to Sale Agreement dated
1702October 27, 2008.
170528. Respondent has not yet received any money from FAMOS
1715for the sale of the program. However, Mr. Favier testified that
1726he expects to receive money in the future once FAMOS starts
1737earning a profit from the sale of the program.
174629. There is no statute, rule, or Division policy that
1756precludes the owner of an approved program from selling the
1766program. Nor is there any statute, rule, or Division policy
1776precluding the purchaser of the program from using the program
1786to train employees of any food service establishment.
179430. Respondent was not involved in any way with the use of
1806the program after it was sold to FAMOS. Indeed, on this point,
1818Mr. Favier credibly testified when I sold the program to
1828Mr. Wallace, I sold it, so I have no idea what he did with it.
184331. It was not until October 28, 2008 (the day after the
1855confidentiality provision was removed from the sale agreement),
1863that the Division was first informed that Respondents approved
1872program had been sold to FAMOS. And, it was not until
1883December 12, 2008 (several weeks after the filing of the
1893Administrative Complaint and several days after the filing of
1902Respondents petition for hearing 4/ ), that the Division was first
1913provided a copy of the Sale Agreement.
192032. The Division has not formally recognized the change of
1930ownership of the program through, for example, an amended
1939license or Provider ID Number issued to FAMOS, and no clear
1950request for such agency action has been made by Respondent or
1961FAMOS. Thus, even though as discussed below, the contact
1970information for the Respondents approved program is that of
1979FAMOS, the Division still considers Respondent to be the
1988licensee of record for the program.
1994(3) Branding of the Program as TrainSafe
200133. On September 24, 2008, Mr. Wallace sent an e-mail to
2012the Division stating:
2015We are in the process of promoting Chez
2023Pierres approved food safety program which
2029has been named TrainSafe . How can we add to
2039the Chez Pierre approved list line the name
2047of the program? (Emphasis supplied).
205234. Mr. Wallace did not inform the Division that FAMOS had
2063purchased Respondents approved training program, nor did he
2071request that Provider ID Number 7148743 be transferred from
2080Respondent to FAMOS.
208335. The Division staff advised Mr. Wallace that the
2092request must come from Respondent on its letterhead because
2101Respondent was the license holder for the program.
210936. On or about October 13, 2008, the Division received a
2120letter from Mr. Favier on Respondents letterhead. The letter
2129was handwritten by Mr. Favier, but the substance of the letter
2140was provided to him by Mr. Wallace.
214737. Mr. Faviers letter stated in pertinent part:
2155Chez Pierres proprietary approved food
2160safety program has been branded as
2166TrainSafe® and is being marketed to the
2173restaurant industry in Florida. (Emphasis
2178supplied).
2179Please add the Trainsafe® name to Chez
2186Pierres name on the approved food safety
2193list. Please replace Karen Cooley with Rick
2200Wallace as the provider contact . . . .
220938. Mr. Favier did not inform the Division that Respondent
2219had sold its approved training program to FAMOS, nor did he
2230request that Provider ID Number 7178743 be transferred from
2239Respondent to FAMOS.
224239. The record does not clearly establish why Mr. Wallace
2252and/or Mr. Favier did not inform the Division of the sale of
2264Respondents approved program to FAMOS. However, the inclusion
2272of the confidentiality provision in the Sale Agreement suggests
2281a specific intent to keep the facts concerning the sale from
2292third-parties, including the Division.
229640. On October 16, 2008, the Division updated its list of
2307approved food safety training programs to change the designation
2316Pierre/TrainSafe and to change the contact information for the
2325program to that of FAMOS.
233041. The Division made this change without reviewing any
2339documents associated with the TrainSafe program because it had
2348no reason to believe at the time that the branding of
2359Respondents program as TrainSafe was anything more than a
2368renaming of the program. Indeed, that is all that it was
2379represented to be by Mr. Wallace and Mr. Favier in their
2390communications with the Division.
239442. On November 12, 2008, FRLA filed a petition
2403challenging the addition of the TrainSafe name to the Divisions
2413list of approved food safety training programs. FAMOS was
2422permitted to intervene in that case, DOAH Case No. 08-5839,
2432based upon the allegation that it was the owner of Respondents
2443approved food safety training program.
244843. On or about December 1, 2008, while the case was still
2460pending at DOAH, the Division removed the TrainSafe name from
2470the list of approved food safety training programs.
247844. The Division did not change the contact information
2487for the program on the list back to Respondents address. 5/ The
2499contact information remained that of FAMOS, and, as result, any
2509communications from the Division relating to the program would
2518have gone to FAMOS, not Respondent.
252445. On December 11, 2008, the attorney for Respondent and
2534FAMOS sent a letter to the Division formally withdrawing
2543Mr. Faviers request that the TrainSafe name be added to
2553Respondents name on the Divisions list of approved food safety
2563training programs.
256546. Thereafter, on December 17, 2008, the file in DOAH
2575Case No. 08-5839 was closed as moot. The Order Closing File
2586stated in pertinent part:
2590The proposed agency action that [FRLA]
2596sought to influence through its Petition for
2603Administrative Hearing was [the Division]s
2608approval of Chez Pierres request to add the
2616TrainSafe name to its name on [the
2623Division]s approved food safety training
2628provider list. The request that resulted in
2635that proposed agency action has been
2641withdrawn, which, as acknowledged by [FRLA]
2647it its response to the motion, has the
2655effect of negating [the Division]s proposed
2661agency action granting Chez Pierres
2666request. There is no additional relief
2672that can be granted to [FRLA] in this
2680proceeding and, therefore, this case is
2686moot.
2687(4) Use of the Programs Provider Number by FAMOS
269647. The first instance of Provider ID Number 7148473 --
2706the number assigned to Respondents approved food safety
2714training program -- being used to train food service employees
2724was on October 11, 2008, which is more than three months after
2736the Sale Agreement was executed by Respondent, but prior to the
2747addition of the TrainSafe name to the Divisions list of
2757approved food safety training programs.
276248. Provider ID Number 7148473 was reported to the
2771Division as the provider of the training for a total of 166
2783food service employees at 26 different establishments between
2791October 11, 2008, and January 29, 2009.
279849. The name of the program reported for each of the 38
2810employees trained between October 11 and November 18, 2008, was
2820TrainSafe.
282150. The names of the programs reported for the 26
2831employees trained between November 21 and 24, 2008, were
284051. The name of the program reported for each of the 102
2852employees trained after November 24, 2008, was Chez Pierre.
286152. The training of these food service employees was
2870provided by, or pursuant to training programs sold to the
2880establishments by, FAMOS.
288353. There is no credible evidence that Respondent was
2892involved in any way in the training of these food service
2903employees.
2904D. The TrainSafe Program as an Approved Program
291254. The TrainSafe program purports to be a revision of
2922the approved food safety program listed as Chez Pierre on the
2933approval list with the state . . . . State Provider No.
29457148473.
294655. The TrainSafe program meets the minimum standards
2954established in the Food Code.
295956. There is no statute, rule, or Division policy that
2969limits the revisions to the style, content or presentation of an
2980approved program so long as the program continues to meet the
2991minimum standards established in the Food Code.
299857. Nevertheless, the Division staff determined that the
3006TrainSafe program is not merely a revision of Respondents
3015approved food service training program, but rather an entirely
3024different program than the program submitted by Respondent and
3033approved by the Division in 2000. This determination was based
3043primarily upon the differences in language, layout, and format
3052between the two programs.
305658. When asked to explain the dividing line between a
3066permissible revision/update to an approved program and an
3074impermissible conversion to a different program, Division
3081witness Richard Akin 6/ logically testified:
3087What I would typically look at as a
3095revision is when the food code is updated.
3103To give you an example, hot water was
3111originally defined as 110 degrees, it has
3118been subsequently redefined as 100 degrees,
3124so that would be a revision to meet the food
3134code. Theres also -- at one point hot food
3143was supposed to be held at 140 degrees, its
3152now held at 135, so that revision would need
3161to be into any approved training program.
3168THE COURT: What about the reformatting
3174component? What -- where is the dividing
3181line between permissible reformatting and
3186impermissible, using my words, impermissible
3191changing of programs?
3194THE WITNESS: The Division doesnt really
3200have a policy on that. We would just look
3209at the statute, and theres nothing thats
3216stated in there.
321959. This testimony is consistent with the December 1,
32282000, letter approving the FRA-provided program submitted by
3236Respondent. The letter implicitly recognizes a distinction
3243between the specific program - this program that was
3253determined to meet the requirements for grandfathering and the
3262periodic changes in the minimum standards in the Food Code.
327260. Even a cursory review of the TrainSafe program (Joint
3282Exhibit 12) and the program submitted by Respondent and approved
3292by the Division in 2000 (Joint Exhibit 1) support the Division
3303staffs determination. The only similarities between the
3310programs are the subjects covered. The wording, layout, format,
3319order of presentation, test questions, theme, pictures, and
3327diagrams used in the programs are entirely different.
333561. Every food safety training program must meet the
3344minimum standards established by the current edition of the Food
3354Code, so the fact that the TrainSafe program addresses the same
3365subjects as did Respondents approved program is not
3373determinative as to whether it is the same program.
338262. The TrainSafe program, as such, was not in existence
3392prior to July 1, 2000.
339763. The TrainSafe program, as such, was not administered
3406to food service employees prior to July 1, 2000, nor was it
3418submitted to and approved by the Division prior to September 1,
34292004, as required for grandfathering under Section 509.049(3),
3437Florida Statutes.
343964. The conversion of Respondents grandfathered food
3446safety training program into the TrainSafe program had the
3455effect of transforming Respondents approved program into an
3463unapproved program because the program, in its current form
3472( i.e. , as TrainSafe), no longer meets the requirements of
3482Section 509.049(3), Florida Statutes.
3486CONCLUSIONS OF LAW
348965. DOAH has jurisdiction over the parties to and subject
3499matter of this proceeding pursuant to Sections 120.569 and
3508120.57(1), Florida Statutes.
351166. The parties stipulated that as the provider of the
3521state-contracted food service training program, FRLA has
3528standing to participate in this proceeding.
353467. The Division has the burden to prove the allegations
3544in the Amended Administrative Complaint by clear and convincing
3553evidence. See Dept. of Banking & Finance v. Osborne Stern &
3564Co. , 670 So. 2d 932, 935 (Fla. 1996).
357268. The essence of the Amended Administrative Complaint is
3581contained in paragraph 17, which alleges that Respondent has
3590violated Section 509.049(3), (4), and (5), Florida, by using the
360069. Thus, in order to prove its case, the Division must
3611establish, first, that Respondent used the TrainSafe program to
3620train food service employees, and, second, that the TrainSafe
3629program was an unapproved training program.
363570. The Division failed to meet its burden of proof as to
3647the first issue; the evidence does not clearly and convincingly
3657establish that Respondent used the TrainSafe program to train
3666any food service employees.
367071. To the contrary, the more persuasive evidence
3678establishes that Respondent uses the state-contracted FRLA
3685program to train its employees (at least those that were not
3696already trained at a culinary school); that Respondent did not
3706use the TrainSafe program or any other training program,
3715including its grandfathered program to train employees of other
3724food service establishments; that the first use of the provider
3734number associated with Respondents grandfathered program,
3740occurred more than three months after Respondent sold the
3749program to FAMOS; and that it was FAMOS, not Respondent, that
3760used the TrainSafe program to train employees of other food
3770service establishments between October 11, 2008, and January 29,
37792009.
378072. In light of this conclusion, it is not necessary to
3791reach the second issue as to whether the TrainSafe program is an
3803approved program. Nevertheless, this issue will be addressed in
3812the event that the Division or an appellate court concludes that
3823Respondent should be held responsible for the use of its
3833Provider ID Number by FAMOS to train food service employees with
3844the TrainSafe program since it is still the licensee of record
3855for the program.
385873. Section 509.049(1), Florida Statutes, provides:
3864The division shall adopt, by rule, minimum
3871safety protection standards for the training
3877of all employees who are responsible for the
3885storage, preparation, display, or serving of
3891foods to the public in establishments
3897regulated under this chapter. These
3902standards . . . shall provide for a food
3911safety training certificate program for food
3917service employees to be administered by a
3924private nonprofit provider chosen by the
3930division.
393174. Each public food service establishment is required to
3940provide training for its employees using a training program
3949approved by the Division. See § 509.049(1) and (5), Fla. Stat.
396075. Section 509.049, Florida Statutes, provides for two
3968types of approved training programs: the state-contracted
3975program selected pursuant subsection (2) and approved,
3982grandfathered programs under subsection (3).
398776. Section 509.049(3), Florida Statutes, provides:
3993Any food safety training program established
3999and administered to food service employees
4005utilized at a licensed public food service
4012establishment prior to July 1, 2000, shall
4019be submitted by the operator or the third-
4027party provider to the division for its
4034review and approval on or before September
40411, 2004. If the food safety training
4048program is found to be in substantial
4055compliance with the division's required
4060criteria and is approved by the division,
4067nothing in this section shall preclude any
4074other operator of a food service
4080establishment from also utilizing the
4085approved program or require the employees of
4092any operator to receive training from or pay
4100a fee to the division's contracted provider.
4107Review and approval by the division of a
4115program or programs under this section shall
4122include, but need not be limited to,
4129verification that the licensed public food
4135service establishment utilized the program
4140prior to July 1, 2000, and the minimum food
4149safety standards adopted by the division in
4156accordance with this section.
416077. Section 509.049(4), Florida Statutes, authorizes the
4167Division to revoke a program's approval if it finds a program
4178is not in compliance with this section or the rules adopted
4189under this section. (Emphasis supplied).
419478. The reference in Section 509.049(4), Florida Statutes,
4202to this section encompasses all of the provisions of Section
4212509.049, Florida Statutes, not just the requirement in
4220subsection (4) that the program continue to meet the minimum
4230standards in the Food Code.
423579. The requirements for the approval of a program under
4245Section 509.049(3), Florida Statutes, are that the program was
4254utilized at a licensed public food service establishment prior
4263to July 1, 2000; that it was submitted . . . to the division
4277for its review and approval on or before September 1, 2004; and
4289that the program utilized . . . the minimum food safety
4300standards adopted by the division.
430580. A program that no longer meets these requirements does
4315not comply with Section 509.049, Florida Statutes, and its
4324approval is subject to revocation by the Division.
433281. The evidence clearly and convincingly establishes that
4340the TrainSafe program does not comply with Section 509.049,
4349Florida Statutes, because even though it meets the minimum
4358standards in the Food Code, it was not the training program
4369utilized by Respondent (or any other food service establishment)
4378prior to July 1, 2000, nor was it the program submitted by
4390Respondent to the Division for its review and approval prior to
4401September 1, 2004.
440482. In reaching this conclusion, the undersigned did not
4413overlook the testimony of the Division staff that there is no
4424express prohibition against revising or making changes to a
4433grandfathered program. However, consistent with Mr. Akins
4440reasonable explanation that there is a difference between merely
4449updating an approved program and converting it into an entirely
4459different program, the overwhelming weight of the evidence in
4468this case establishes that the re-branding of Respondents
4476approved program as TrainSafe was effectively the creation of an
4486entirely new program rather than a mere update to the
4496Respondents grandfathered program. 7/
450083. On this point, the undersigned agrees with the
4509argument of the Division and FRLA that the deadlines in Section
4520509.049(3), Florida Statutes, would be rendered meaningless if,
4528as Respondent contends, a grandfathered program could be re-
4537branded or otherwise changed into a completely different
4545program as was done in this case. Surely that is not what the
4558Legislature intended when it provided for grandfathering of
4566existing training programs and allowed their continued use in
4575lieu of the program selected for statewide use by the Division
4586under Section 509.049(2), Florida Statutes.
459184. Therefore, in the event that the Division concludes
4600that Respondent should be held responsible for the use of its
4611Provider ID Number by FAMOS to train food service workers using
4622the TrainSafe program, the Division should revoke the approval
4631of the program because it no longer meets the requirements of
4642Section 509.049, Florida Statutes. See § 509.049(4), Fla. Stat.
465185. No additional penalty (such as the $1,000
4660administrative fine sought by the Division 8/ ) should be imposed
4671on Respondent; the revocation of the programs approval is a
4681sufficient penalty under the circumstances. Indeed, although
4688Respondent is not entirely blameless in this matter, the
4697evidence establishes that Mr. Favier was merely an unwitting
4706accomplice (rather than a knowing co-conspirator) to
4713Mr. Wallaces less-than-forthright effort to get the entirely
4721new TrainSafe program approved by the Division in the guise of a
4733revision to Respondents grandfathered program.
4738RECOMMENDATION
4739Based upon the foregoing Findings of Fact and Conclusions
4748of Law, it is
4752RECOMMENDED that the Division issue a final order
4760dismissing the Amended Administrative Complaint.
4765DONE AND ENTERED this 15th day of April, 2009, in
4775Tallahassee, Leon County, Florida.
4779S
4780T. KENT WETHERELL, II
4784Administrative Law Judge
4787Division of Administrative Hearings
4791The DeSoto Building
47941230 Apalachee Parkway
4797Tallahassee, Florida 32399-3060
4800(850) 488-9675
4802Fax Filing (850) 921-6847
4806www.doah.state.fl.us
4807Filed with the Clerk of the
4813Division of Administrative Hearings
4817this 15th day of April, 2009.
4823ENDNOTES
48241/ All statutory references are to the 2008 version of the
4835Florida Statutes unless otherwise indicated.
48402/ FRLA proffered evidence as to why Respondent submitted the
4850FRA-provided program to the Division for grandfathering and who
4859was involved in the submittal on behalf of FRA. This
4869information - some of which made it into the record in
4880Intervenors Exhibits 6 and 16 -- adds a level of irony to this
4893case, but it has no bearing on the issue framed by the Amended
4906Administrative Complaint. Simply put, this case turns not upon
4915what Respondents program once was or how it came to be
4926grandfathered, but rather on what the program has become and
4936whether the sale of, or the changes to, the program cause it to
4949lose its grandfathered status such that the program in its
4959present form is effectively a new, unapproved program that has
4969been used by Respondent to train food service employees.
49783/ The Sale Agreement defines gross profit as the gross
4988amount of revenue generated by the program, minus the costs of
4999printing, re-design development, distribution, database
5004maintenance and marketing cost.
50084/ It is noteworthy that the petition filed by Respondent in
5019response to the Administrative Complaint makes no reference to
5028the fact that Respondent sold its approved program to FAMOS.
50385/ It is not entirely clear why the contact information was not
5050changed back to that of Respondent. Indeed, although the
5059Division was technically without authority to make any changes
5068to the list while the matter was pending at DOAH, after the case
5081was closed as moot, the list should have reverted back to the
5093way it was prior to October 16, 2008, because the preliminary
5104agency action that was challenged by FRLA became a nullity upon
5115the withdrawal of the request that led to the preliminary agency
5126action.
51276/ Mr. Akin is the Deputy Bureau Chief of the Divisions Bureau
5139of Sanitation and Safety Inspections. He is the person within
5149the Department of Business and Professional Regulation with the
5158most knowledge regarding the administration and approval of food
5167worker training programs.
51707/ It is not necessary in this case to determine where the line
5183should be drawn between a permissible revision to a
5192grandfathered training program and an impermissible substitution
5199of a new program for a grandfathered program. This is the first
5211case in which the Division has confronted this issue, and the
5222precise location of the line will be fleshed out through the
5233adjudication of future cases. See generally McDonald v. Dept.
5242of Banking & Finance , 346 So. 2d 569 (Fla. 1st DCA 1977).
52548/ It is noteworthy that the Division did not request that the
5266fine be based upon each use of the TrainSafe program even though
5278Section 509.261(1)(a), Florida Statutes, authorizes the Division
5285to impose [f]ines not to exceed $1,000 per offense (emphasis
5297supplied).
5298COPIES FURNISHED:
5300Charles Tunnicliff, Esquire
5303Eric C. Hurst, Esquire
5307Department of Business &
5311Professional Regulation
53131940 North Monroe Street, Suite 60
5319Tallahassee, Florida 32399-2202
5322Maureen M. Daughton, Esquire
5326Cathy M. Sellers, Esquire
5330Broad and Cassel
5333215 South Monroe Street, Suite 400
5339Tallahassee, Florida 32302-1804
5342E. Gary Early, Esquire
5346Albert T. Gimbel, Esquire
5350Messer, Caparello & Self, P.A.
53552618 Centennial Place
5358Tallahassee, Florida 32308
5361Ned Luczynski, General Counsel
5365Department of Business &
5369Professional Regulation
53711940 North Monroe Street, Suite 60
5377Tallahassee, Florida 32399-2202
5380William L. Veach, Director
5384Division of Hotels and Restaurants
5389Department of Business &
5393Professional Regulation
53951940 North Monroe Street, Suite 60
5401Tallahassee, Florida 32399-2202
5404NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5410All parties have the right to submit written exceptions within
542015 days from the date of this recommended order. Any exceptions to
5432this recommended order should be filed with the agency that will
5443issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 07/16/2009
- Proceedings: Petitioner's and Intervenor's Joint Response to Exceptions to Recommended Order filed.
- PDF:
- Date: 04/15/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 03/16/2009
- Proceedings: Transcript of Proceedings filed.
- PDF:
- Date: 03/03/2009
- Proceedings: Order (within 30 days after entry of the final order on the merits, Respondent may renew its motion through an appropriate filing).
- Date: 03/02/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 03/02/2009
- Proceedings: Enfin Enterprises, Inc.`s Amended Motion for the Award of Reasonable Attorneys` Fees Pursuant to Section 57.105 Florida Statutes filed.
- PDF:
- Date: 02/26/2009
- Proceedings: Enfin Enterprises, Inc.`s Amended Response to Intervenor`s First Request for Admissions filed.
- PDF:
- Date: 02/26/2009
- Proceedings: Notice of Filing (of Deposition Transcript of Rick Wallace) filed.
- PDF:
- Date: 02/17/2009
- Proceedings: Petitioner`s Notice of Intent to Offer Summary of Agency Records Pursuant to 90.956, Fla. Stat. filed.
- PDF:
- Date: 02/16/2009
- Proceedings: Enfin Enterprises, Inc.;`s Response to Intervenor`s Firs Request for Admissions filed.
- PDF:
- Date: 02/13/2009
- Proceedings: Notice of Taking Deposition Duces Tecum (DBPR investigation) filed.
- PDF:
- Date: 02/13/2009
- Proceedings: Notice of Taking Deposition Duces Tecum (DBPR`s administration and approval of food worker safety training programs) filed.
- PDF:
- Date: 02/11/2009
- Proceedings: Notice of Taking Deposition Duces Tecum (Petitioner`s designee with knowledge regarding DBPR; February 12, 2009; 10:30 a.m.) filed.
- PDF:
- Date: 02/11/2009
- Proceedings: Notice of Taking Deposition Duces Tecum (Petitioner`s designee with knowledge regarding DBPR; February 12, 2009; 9:00 a.m.) filed.
- PDF:
- Date: 02/09/2009
- Proceedings: Petitioner Department of Business and Professional Regualtion`s Division of Hotels and Restaurants` Response to Respondent`s Motion to Extend Discovery Deadline filed.
- PDF:
- Date: 02/06/2009
- Proceedings: Intervenor Florida Restaurant and Lodging Association, Inc.`s Response to Respondent`s Motion to Extend Discovery Deadline filed.
- PDF:
- Date: 02/05/2009
- Proceedings: Enfin Enterprises, Inc.`s Motion to Extend Discovery Deadline filed.
- PDF:
- Date: 01/16/2009
- Proceedings: Notice of Service of Intervenor`s First Interrogatories to Respondent Enfin Enterprises, Inc., d/b/a Chez Pierre filed.
- PDF:
- Date: 01/16/2009
- Proceedings: Intervenor`s First Interrogatories to Respondent Enfin Enterprises, Inc., d/b/a Chez Pierre filed.
- PDF:
- Date: 01/09/2009
- Proceedings: Petitioner`s Response to Respondent`s Request for Production of Documents to Petitioner filed.
- PDF:
- Date: 01/07/2009
- Proceedings: Order Granting Petition to Intervene (Florida Restaurant and Lodging Association, Inc.).
- PDF:
- Date: 12/18/2008
- Proceedings: Notice of Hearing (hearing set for March 2 and 3, 2009; 9:00 a.m.; Tallahassee, FL).
- PDF:
- Date: 12/17/2008
- Proceedings: Enfin Enterprises, Inc.`s Request for Production of Documents to Petitioner filed.
Case Information
- Judge:
- T. KENT WETHERELL, II
- Date Filed:
- 12/11/2008
- Date Assignment:
- 12/12/2008
- Last Docket Entry:
- 07/16/2009
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Maureen McCarthy Daughton, Esquire
Address of Record -
E. Gary Early, Esquire
Address of Record -
Thomas M. Findley, Esquire
Address of Record -
Cathy M. Sellers, Esquire
Address of Record -
Charles F. Tunnicliff, Esquire
Address of Record