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.

Summary: Respondent did not use unauthorized food safety training program. Administrative Complaint should be dismissed. But, if the complaint is not dismissed, the program`s approval should be revoked because it was changed into an entirely different program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

and )

)

FLORIDA RESTAURANT AND )

LODGING ASSOCIATION, INC., )

)

Intervenor, )

)

vs. ) Case No. 08-6209

)

ENFIN ENTERPRISES, INC., )

d/b/a CHEZ PIERRE, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on March 2,

2009, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Eric C. Hurst, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Intervenor: Maureen M. Daughton, Esquire

Cathy M. Sellers, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32302-1804

For Respondent: E. Gary Early, Esquire

Albert T. Gimbel, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section 509.049,

Florida Statutes, 1/ by using an unapproved food safety training

program.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Hotels and Restaurants (Division), alleged in an

Administrative Complaint dated November 20, 2008, that

Respondent violated Section 509.049, Florida Statutes, by using

an unapproved food safety training program known as TrainSafe.

On December 10, 2008, Respondent timely filed a petition

disputing the allegations in the Administrative Complaint and

requesting a formal hearing. On December 11, 2008, the Division

referred this matter to the Division of Administrative Hearings

(DOAH) for the assignment of an Administrative Law Judge to

conduct the hearing requested by Respondent.

On January 5, 2009, the Florida Restaurant and Lodging

Association, Inc. (FRLA) filed an unopposed petition to

intervene. The petition was granted in an Order entered on

January 7, 2009. FRLA is aligned with the Division.

On January 23, 2009, the Division filed an unopposed motion

to correct a scrivener’s error in the Administrative Complaint.

The motion was granted in an Order entered on January 26, 2009,

and the case proceeded to final hearing on the Amended

Administrative Complaint attached to the motion.

On February 23, 2009, the parties filed a Joint Prehearing

Stipulation. The stipulations contained in that filing are

incorporated in the Findings of Fact and Conclusions of Law set

forth below.

On March 2, 2009, Respondent filed a motion seeking an

award of attorney’s fees against the Division pursuant to

Section 57.105, Florida Statutes. Consideration of the motion

was deferred pending final disposition of this case on the

merits. See Order entered on March 3, 2009.

At the final hearing, the Division presented the testimony

of Richard Akin and Robert Foster; FRLA presented the testimony

of Carol Dover and the deposition testimony of Karen Cooley and

Eric Favier; and Respondent presented the testimony of Mr. Akin,

Mr. Favier, Kendall Burkett, Diann Worzalla, and Debra Williams.

Joint Exhibits 1 through 26, Intervenor’s Exhibits 6, 11, and

16, and Respondent’s Exhibits 1 through 3, 7, and 8, were

received into evidence. Official recognition was taken of the

Articles of Organization of Florida Association Management

Operation Services, LLC (FAMOS), as amended, on file with the

Department of State as of January 26, 2009.

The Transcript of the final hearing was filed with DOAH on

March 16, 2009. The parties were given 10 days from that date

to file proposed recommended orders (PROs). The PROs were

timely filed and have been given due consideration.

FINDINGS OF FACT

A. Parties

1. The Division is the state agency responsible for

licensing and regulating food service establishments pursuant to

Part I of Chapter 509, Florida Statutes.

2. Respondent is the owner and operator of a licensed food

service establishment located in Tallahassee.

3. FRLA is a trade association that represents the

interests of the hospitality and tourism industry in Florida.

B. FRLA’s Interest in this Disciplinary Proceeding

4. One of FRLA’s primary purposes is to educate its

members and to promote their compliance with Florida laws.

5. FRLA was involved in the lobbying efforts that led to

the passage of Section 509.049, Florida Statutes, which requires

all food service employees to undergo food safety training.

6. FRLA owns and administers a food safety training

program known as SafeStaff. The SafeStaff program is the food

safety training program contracted by the Division pursuant to

Section 509.049(2), Florida Statutes. The SafeStaff program has

been the state-contracted program since October 2000.

7. As a result of its designation as the state-contracted

food safety training program, the SafeStaff program is the only

training program -- other than “grandfathered” programs approved

under Section 509.049(3), Florida Statutes -- that can be used

to train food service employees in Florida.

8. FRLA is authorized to charge a “per employee fee to

cover the contracted price for the program.”

9. It was stipulated that the use of an unapproved program

to train food service employees adversely impacts FRLA because

those employees would likely have otherwise had to use the

state-contracted SafeStaff program and pay the per-employee fee

to FRLA.

C. Respondent’s Approved Food Service Training Program

(1) Submittal, Approval, and Subsequent Non-Use

10. On June 30, 2000, Respondent submitted to the Division

for approval a food safety training program that was provided to

it by the Florida Restaurant Association (FRA), which is the

predecessor to FRLA. 2/

11. Respondent submitted the FRA-provided program pursuant

to Section 509.049, Florida Statutes (2000), which stated in

pertinent part:

Any food service training program

established and administered prior to

July 1, 2000 shall be submitted by the

operator to the division for its review and

approval. If the food safety training

program is approved by the division, nothing

in this section shall preclude any other

operator of a food service establishment

from also utilizing the approved program or

require the employees of any operator to

receive training or pay a fee to the

division’s contracted provider.

12. The program submitted by Respondent was called

SafeStaff, just like FRLA’s current program. The program

consisted of the ServSafe program prepared by the National

Restaurant Association Educational Foundation along with

sections on food-borne illnesses and vermin control that were

required by Florida law but were not addressed in the ServSafe

program.

13. The program submitted by Respondent was established

prior to July 1, 2000, and was administered to Respondent’s food

service employees on June 29 and 30, 2000.

14. The Division approved the program submitted by

Respondent in a letter dated December 1, 2000. The letter

stated in pertinent part:

The Division of Hotels and Restaurants has

reviewed the food safety program submitted

pursuant to Section 509.049, Florida

Statutes, and has determined that it is in

substantial compliance with the standards

and criteria adopted by the Division for

food safety training. This program is

therefore approved for utilization by any

public food service establishment for the

required training of its food handler

employees , subject to the following

conditions:

* * *

4. The food safety training curriculum

areas may not be deleted or reduced, but

must continue to meet or exceed the food

safety training standards established by the

Division, as amended from time to time .

(Emphasis supplied).

15. Thus, as of December 1, 2000, the program submitted by

Respondent was considered an approved, or “grandfathered,”

program that could be used to train food service employees in

lieu of the state-contracted program.

16. In 2004, the Legislature amended Section 509.049,

Florida Statutes, to require providers of approved food safety

training programs to submit certain information to the Division

when the program is used to train employees of other food

service establishments. This reporting requirement does not

apply when the provider uses its approved program to train its

own employees.

17. The 2004 amendments to Section 509.049, Florida

Statutes, also established a deadline for submitting food

service training programs for approval as a grandfathered

program. Specifically, subsection (3) of the statute was

amended to require the program to be “submitted by the operator

or the third-party provider to the division for its review and

approval on or before September 1, 2004.”

18. The Division assigned a unique “Provider ID Number” to

each approved food safety training program to be used by the

provider when reporting the required training information to the

Division.

19. Respondent’s approved program –- the FRA-provided

SafeStaff/ServSafe program submitted by Respondent on June 30,

2000, and approved by the Division on December 1, 2000 -- was

assigned Provider ID Number 7148473.

20. Respondent never used its approved training program to

train its own employees. Instead, it purchased the training

programs from FRA and FRLA or it hired employees who had already

undergone training at a culinary school.

21. Respondent never used its approved training program

(or any other training program) to train employees of other food

service establishments, as more fully discussed in Part C(4),

below.

(2) Sale of the Program to FAMOS

22. In May or June 2008, Respondent was approached by Rick

Wallace, the president of FAMOS, about purchasing Respondent’s

approved training program.

23. Respondent’s owner, Eric Favier, did not know that

Respondent even had an approved program when he was first

approached by Mr. Wallace. Indeed, Mr. Favier credibly

testified that after the program was approved, it was “put into

a drawer” and forgotten about.

24. Mr. Favier relied upon Mr. Wallace’s representations

that Respondent had an approved program, and he agreed to sell

the program to FAMOS because Respondent was not using, and had

no use for, the program.

25. On July 1, 2008, Respondent and FAMOS executed a

document titled “Sale Agreement for Licensure of Florida

pursuant to which Respondent agreed to sell “the entire license

rights and ownership of [its] Florida approved employee food

safety training program” to FAMOS.

26. The Sale Agreement required Respondent to “release all

ownership and licensing rights of [the] Program commencing at

the signing of this agreement.” The agreement further provided

that “payment of 10% of the Gross Profit [3/] shall constitute she

complete sale of the food safety training program.”

27. The Sale Agreement included a confidentiality

provision that precluded the parties from disclosing any of the

terms of the agreement. The confidentiality provision was

removed through an “Addendum to Sale Agreement” dated

October 27, 2008.

28. Respondent has not yet received any money from FAMOS

for the sale of the program. However, Mr. Favier testified that

he expects to receive money in the future once FAMOS starts

earning a profit from the sale of the program.

29. There is no statute, rule, or Division policy that

precludes the owner of an approved program from selling the

program. Nor is there any statute, rule, or Division policy

precluding the purchaser of the program from using the program

to train employees of any food service establishment.

30. Respondent was not involved in any way with the use of

the program after it was sold to FAMOS. Indeed, on this point,

Mr. Favier credibly testified “when I sold the program to

Mr. Wallace, I sold it, so I have no idea what he did with it.”

31. It was not until October 28, 2008 (the day after the

confidentiality provision was removed from the sale agreement),

that the Division was first informed that Respondent’s approved

program had been sold to FAMOS. And, it was not until

December 12, 2008 (several weeks after the filing of the

Administrative Complaint and several days after the filing of

Respondent’s petition for hearing 4/ ), that the Division was first

provided a copy of the Sale Agreement.

32. The Division has not formally recognized the change of

ownership of the program through, for example, an amended

license or Provider ID Number issued to FAMOS, and no clear

request for such agency action has been made by Respondent or

FAMOS. Thus, even though as discussed below, the contact

information for the Respondent’s approved program is that of

FAMOS, the Division still considers Respondent to be the

licensee of record for the program.

(3) “Branding” of the Program as TrainSafe

33. On September 24, 2008, Mr. Wallace sent an e-mail to

the Division stating:

We are in the process of promoting Chez

Pierre’s approved food safety program which

has been named TrainSafe . How can we add to

the Chez Pierre approved list line the name

of the program? (Emphasis supplied).

34. Mr. Wallace did not inform the Division that FAMOS had

purchased Respondent’s approved training program, nor did he

request that Provider ID Number 7148743 be transferred from

Respondent to FAMOS.

35. The Division staff advised Mr. Wallace that the

request must come from Respondent on its letterhead because

Respondent was the license holder for the program.

36. On or about October 13, 2008, the Division received a

letter from Mr. Favier on Respondent’s letterhead. The letter

was handwritten by Mr. Favier, but the substance of the letter

was provided to him by Mr. Wallace.

37. Mr. Favier’s letter stated in pertinent part:

Chez Pierre’s proprietary approved food

safety program has been branded as

TrainSafe® and is being marketed to the

restaurant industry in Florida. (Emphasis

supplied).

Please add the Trainsafe® name to Chez

Pierre’s name on the approved food safety

list. Please replace Karen Cooley with Rick

Wallace as the provider contact . . . .

38. Mr. Favier did not inform the Division that Respondent

had sold its approved training program to FAMOS, nor did he

request that Provider ID Number 7178743 be transferred from

Respondent to FAMOS.

39. The record does not clearly establish why Mr. Wallace

and/or Mr. Favier did not inform the Division of the sale of

Respondent’s approved program to FAMOS. However, the inclusion

of the confidentiality provision in the Sale Agreement suggests

a specific intent to keep the facts concerning the sale from

third-parties, including the Division.

40. On October 16, 2008, the Division updated its list of

approved food safety training programs to change the designation

Pierre/TrainSafe” and to change the contact information for the

program to that of FAMOS.

41. The Division made this change without reviewing any

documents associated with the TrainSafe program because it had

no reason to believe at the time that the “branding” of

Respondent’s program as TrainSafe was anything more than a

renaming of the program. Indeed, that is all that it was

represented to be by Mr. Wallace and Mr. Favier in their

communications with the Division.

42. On November 12, 2008, FRLA filed a petition

challenging the addition of the TrainSafe name to the Division’s

list of approved food safety training programs. FAMOS was

permitted to intervene in that case, DOAH Case No. 08-5839,

based upon the allegation that it was the owner of Respondent’s

approved food safety training program.

43. On or about December 1, 2008, while the case was still

pending at DOAH, the Division removed the TrainSafe name from

the list of approved food safety training programs.

44. The Division did not change the contact information

for the program on the list back to Respondent’s address. 5/ The

contact information remained that of FAMOS, and, as result, any

communications from the Division relating to the program would

have gone to FAMOS, not Respondent.

45. On December 11, 2008, the attorney for Respondent and

FAMOS sent a letter to the Division formally withdrawing

Mr. Favier’s request that the TrainSafe name be added to

Respondent’s name on the Division’s list of approved food safety

training programs.

46. Thereafter, on December 17, 2008, the file in DOAH

Case No. 08-5839 was closed as moot. The Order Closing File

stated in pertinent part:

The proposed agency action that [FRLA]

sought to influence through its Petition for

Administrative Hearing was [the Division]’s

approval of Chez Pierre’s request to add the

TrainSafe name to its name on [the

Division]’s approved food safety training

provider list. The request that resulted in

that proposed agency action has been

withdrawn, which, as acknowledged by [FRLA]

it its response to the motion, “has the

effect of negating [the Division]’s proposed

agency action granting Chez Pierre’s

request.” There is no additional relief

that can be granted to [FRLA] in this

proceeding and, therefore, this case is

moot.

(4) Use of the Program’s Provider Number by FAMOS

47. The first instance of Provider ID Number 7148473 --

the number assigned to Respondent’s approved food safety

training program -- being used to train food service employees

was on October 11, 2008, which is more than three months after

the Sale Agreement was executed by Respondent, but prior to the

addition of the TrainSafe name to the Division’s list of

approved food safety training programs.

48. Provider ID Number 7148473 was reported to the

Division as the “provider” of the training for a total of 166

food service employees at 26 different establishments between

October 11, 2008, and January 29, 2009.

49. The name of the program reported for each of the 38

employees trained between October 11 and November 18, 2008, was

“TrainSafe.”

50. The names of the programs reported for the 26

employees trained between November 21 and 24, 2008, were

51. The name of the program reported for each of the 102

employees trained after November 24, 2008, was “Chez Pierre.”

52. The training of these food service employees was

provided by, or pursuant to training programs sold to the

establishments by, FAMOS.

53. There is no credible evidence that Respondent was

involved in any way in the training of these food service

employees.

D. The TrainSafe Program as an “Approved Program”

54. The TrainSafe program purports to be “a revision of

the approved food safety program listed as Chez Pierre on the

approval list with the state . . . . State Provider No.

7148473.”

55. The TrainSafe program meets the minimum standards

established in the Food Code.

56. There is no statute, rule, or Division policy that

limits the revisions to the style, content or presentation of an

approved program so long as the program continues to meet the

minimum standards established in the Food Code.

57. Nevertheless, the Division staff determined that the

TrainSafe program is not merely a revision of Respondent’s

approved food service training program, but rather an entirely

different program than the program submitted by Respondent and

approved by the Division in 2000. This determination was based

primarily upon the differences in language, layout, and format

between the two programs.

58. When asked to explain the dividing line between a

permissible revision/update to an approved program and an

impermissible conversion to a different program, Division

witness Richard Akin 6/ logically testified:

What I would typically look at as a

revision is when the food code is updated.

To give you an example, hot water was

originally defined as 110 degrees, it has

been subsequently redefined as 100 degrees,

so that would be a revision to meet the food

code. There’s also -- at one point hot food

was supposed to be held at 140 degrees, it’s

now held at 135, so that revision would need

to be into any approved training program.

THE COURT: What about the reformatting

component? What -- where is the dividing

line between permissible reformatting and

impermissible, using my words, impermissible

changing of programs?

THE WITNESS: The Division doesn’t really

have a policy on that. We would just look

at the statute, and there’s nothing that’s

stated in there.

59. This testimony is consistent with the December 1,

2000, letter approving the FRA-provided program submitted by

Respondent. The letter implicitly recognizes a distinction

between the specific program –- “this program” – that was

determined to meet the requirements for grandfathering and the

periodic changes in the minimum standards in the Food Code.

60. Even a cursory review of the TrainSafe program (Joint

Exhibit 12) and the program submitted by Respondent and approved

by the Division in 2000 (Joint Exhibit 1) support the Division

staff’s determination. The only similarities between the

programs are the subjects covered. The wording, layout, format,

order of presentation, test questions, theme, pictures, and

diagrams used in the programs are entirely different.

61. Every food safety training program must meet the

minimum standards established by the current edition of the Food

Code, so the fact that the TrainSafe program addresses the same

subjects as did Respondent’s approved program is not

determinative as to whether it is the same program.

62. The TrainSafe program, as such, was not in existence

prior to July 1, 2000.

63. The TrainSafe program, as such, was not administered

to food service employees prior to July 1, 2000, nor was it

submitted to and approved by the Division prior to September 1,

2004, as required for grandfathering under Section 509.049(3),

Florida Statutes.

64. The conversion of Respondent’s grandfathered food

safety training program into the TrainSafe program had the

effect of transforming Respondent’s approved program into an

unapproved program because the program, in its current form

( i.e. , as TrainSafe), no longer meets the requirements of

Section 509.049(3), Florida Statutes.

CONCLUSIONS OF LAW

65. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

66. The parties stipulated that as the provider of the

state-contracted food service training program, FRLA has

standing to participate in this proceeding.

67. The Division has the burden to prove the allegations

in the Amended Administrative Complaint by clear and convincing

evidence. See Dept. of Banking & Finance v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996).

68. The essence of the Amended Administrative Complaint is

contained in paragraph 17, which alleges that “Respondent has

violated Section 509.049(3), (4), and (5), Florida, by using the

69. Thus, in order to prove its case, the Division must

establish, first, that Respondent used the TrainSafe program to

train food service employees, and, second, that the TrainSafe

program was an unapproved training program.

70. The Division failed to meet its burden of proof as to

the first issue; the evidence does not clearly and convincingly

establish that Respondent used the TrainSafe program to train

any food service employees.

71. To the contrary, the more persuasive evidence

establishes that Respondent uses the state-contracted FRLA

program to train its employees (at least those that were not

already trained at a culinary school); that Respondent did not

use the TrainSafe program or any other training program,

including its grandfathered program to train employees of other

food service establishments; that the first use of the provider

number associated with Respondent’s grandfathered program,

occurred more than three months after Respondent sold the

program to FAMOS; and that it was FAMOS, not Respondent, that

used the TrainSafe program to train employees of other food

service establishments between October 11, 2008, and January 29,

2009.

72. In light of this conclusion, it is not necessary to

reach the second issue as to whether the TrainSafe program is an

approved program. Nevertheless, this issue will be addressed in

the event that the Division or an appellate court concludes that

Respondent should be held responsible for the use of its

Provider ID Number by FAMOS to train food service employees with

the TrainSafe program since it is still the licensee of record

for the program.

73. Section 509.049(1), Florida Statutes, provides:

The division shall adopt, by rule, minimum

safety protection standards for the training

of all employees who are responsible for the

storage, preparation, display, or serving of

foods to the public in establishments

regulated under this chapter. These

standards . . . shall provide for a food

safety training certificate program for food

service employees to be administered by a

private nonprofit provider chosen by the

division.

74. Each public food service establishment is required to

provide training for its employees using a training program

approved by the Division. See § 509.049(1) and (5), Fla. Stat.

75. Section 509.049, Florida Statutes, provides for two

types of approved training programs: the state-contracted

program selected pursuant subsection (2) and approved,

grandfathered programs under subsection (3).

76. Section 509.049(3), Florida Statutes, provides:

Any food safety training program established

and administered to food service employees

utilized at a licensed public food service

establishment prior to July 1, 2000, shall

be submitted by the operator or the third-

party provider to the division for its

review and approval on or before September

1, 2004. If the food safety training

program is found to be in substantial

compliance with the division's required

criteria and is approved by the division,

nothing in this section shall preclude any

other operator of a food service

establishment from also utilizing the

approved program or require the employees of

any operator to receive training from or pay

a fee to the division's contracted provider.

Review and approval by the division of a

program or programs under this section shall

include, but need not be limited to,

verification that the licensed public food

service establishment utilized the program

prior to July 1, 2000, and the minimum food

safety standards adopted by the division in

accordance with this section.

77. Section 509.049(4), Florida Statutes, authorizes the

Division to “revoke a program's approval if it finds a program

is not in compliance with this section or the rules adopted

under this section.” (Emphasis supplied).

78. The reference in Section 509.049(4), Florida Statutes,

to “this section” encompasses all of the provisions of Section

509.049, Florida Statutes, not just the requirement in

subsection (4) that the program continue to meet the minimum

standards in the Food Code.

79. The requirements for the approval of a program under

Section 509.049(3), Florida Statutes, are that the program was

“utilized at a licensed public food service establishment prior

to July 1, 2000”; that it was “submitted . . . to the division

for its review and approval on or before September 1, 2004”; and

that the program “utilized . . . the minimum food safety

standards adopted by the division.”

80. A program that no longer meets these requirements does

not comply with Section 509.049, Florida Statutes, and its

approval is subject to revocation by the Division.

81. The evidence clearly and convincingly establishes that

the TrainSafe program does not comply with Section 509.049,

Florida Statutes, because even though it meets the minimum

standards in the Food Code, it was not the training program

utilized by Respondent (or any other food service establishment)

prior to July 1, 2000, nor was it the program submitted by

Respondent to the Division for its review and approval prior to

September 1, 2004.

82. In reaching this conclusion, the undersigned did not

overlook the testimony of the Division staff that there is no

express prohibition against revising or making changes to a

grandfathered program. However, consistent with Mr. Akin’s

reasonable explanation that there is a difference between merely

updating an approved program and converting it into an entirely

different program, the overwhelming weight of the evidence in

this case establishes that the “re-branding” of Respondent’s

approved program as TrainSafe was effectively the creation of an

entirely new program rather than a mere update to the

Respondent’s grandfathered program. 7/

83. On this point, the undersigned agrees with the

argument of the Division and FRLA that the deadlines in Section

509.049(3), Florida Statutes, would be rendered meaningless if,

as Respondent contends, a grandfathered program could be “re-

branded” or otherwise changed into a completely different

program as was done in this case. Surely that is not what the

Legislature intended when it provided for grandfathering of

existing training programs and allowed their continued use in

lieu of the program selected for statewide use by the Division

under Section 509.049(2), Florida Statutes.

84. Therefore, in the event that the Division concludes

that Respondent should be held responsible for the use of its

Provider ID Number by FAMOS to train food service workers using

the TrainSafe program, the Division should revoke the approval

of the program because it no longer meets the requirements of

Section 509.049, Florida Statutes. See § 509.049(4), Fla. Stat.

85. No additional penalty (such as the $1,000

administrative fine sought by the Division 8/ ) should be imposed

on Respondent; the revocation of the program’s approval is a

sufficient penalty under the circumstances. Indeed, although

Respondent is not entirely blameless in this matter, the

evidence establishes that Mr. Favier was merely an unwitting

accomplice (rather than a knowing co-conspirator) to

Mr. Wallace’s less-than-forthright effort to get the entirely

new TrainSafe program approved by the Division in the guise of a

revision to Respondent’s grandfathered program.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Division issue a final order

dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 15th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of April, 2009.

ENDNOTES

1/ All statutory references are to the 2008 version of the

Florida Statutes unless otherwise indicated.

2/ FRLA proffered evidence as to why Respondent submitted the

FRA-provided program to the Division for grandfathering and who

was involved in the submittal on behalf of FRA. This

information –- some of which made it into the record in

Intervenor’s Exhibits 6 and 16 -- adds a level of irony to this

case, but it has no bearing on the issue framed by the Amended

Administrative Complaint. Simply put, this case turns not upon

what Respondent’s program once was or how it came to be

grandfathered, but rather on what the program has become and

whether the sale of, or the changes to, the program cause it to

lose its grandfathered status such that the program in its

present form is effectively a new, unapproved program that has

been used by Respondent to train food service employees.

3/ The Sale Agreement defines “gross profit” as “the gross

amount of revenue generated by the program, minus the costs of

printing, re-design development, distribution, database

maintenance and marketing cost.”

4/ It is noteworthy that the petition filed by Respondent in

response to the Administrative Complaint makes no reference to

the fact that Respondent sold its approved program to FAMOS.

5/ It is not entirely clear why the contact information was not

changed back to that of Respondent. Indeed, although the

Division was technically without authority to make any changes

to the list while the matter was pending at DOAH, after the case

was closed as moot, the list should have reverted back to the

way it was prior to October 16, 2008, because the preliminary

agency action that was challenged by FRLA became a nullity upon

the withdrawal of the request that led to the preliminary agency

action.

6/ Mr. Akin is the Deputy Bureau Chief of the Division’s Bureau

of Sanitation and Safety Inspections. He is the person within

the Department of Business and Professional Regulation with the

most knowledge regarding the administration and approval of food

worker training programs.

7/ It is not necessary in this case to determine where the line

should be drawn between a permissible revision to a

grandfathered training program and an impermissible substitution

of a new program for a grandfathered program. This is the first

case in which the Division has confronted this issue, and the

precise location of the line will be fleshed out through the

adjudication of future cases. See generally McDonald v. Dept.

of Banking & Finance , 346 So. 2d 569 (Fla. 1st DCA 1977).

8/ It is noteworthy that the Division did not request that the

fine be based upon each use of the TrainSafe program even though

Section 509.261(1)(a), Florida Statutes, authorizes the Division

to impose “[f]ines not to exceed $1,000 per offense ” (emphasis

supplied).

COPIES FURNISHED:

Charles Tunnicliff, Esquire

Eric C. Hurst, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Maureen M. Daughton, Esquire

Cathy M. Sellers, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32302-1804

E. Gary Early, Esquire

Albert T. Gimbel, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

Ned Luczynski, General Counsel

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

William L. Veach, Director

Division of Hotels and Restaurants

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.