FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Food, Nutrition and Wellness
RULE NOS.:RULE TITLES
5P-1.001Definitions
5P-1.002Appeals
5P-1.004Penalties and Sanctions
Notice is hereby given that the following changes have been made to the proposed rule in accordance with Section 120.54(3)(d)1., F.S., published in Vol. 48 No. 135, July 13, 2022, issue of the Florida Administrative Register.
5P-1.001 Definitions.
For the purposes of this chapter and chapters 5P-2 and 5P-3, the definitions in Section 595.402, F.S., and Sections 7 CFR 210.2, 7 CFR 215.2, 7 CFR 220.2, 7 CFR 225.2, 7 CFR 245.2, 7 CFR 247.1, 7 CFR 248.2, 7 CFR 250.2, 7 CFR 251.3, 7 CFR 252.2, all revised as of January 1, 2021, and hereby adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX, and by email request to the department at InfoFNW@fdacs.govwww.ecfr.gov, and the following shall apply:
(1) through (28) No change.
(29) “Organizational Conflicts of Interest” means that because of relationships with a parent company, affiliate, or subsidiary organization, the non-Federal entity is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization.
(29) renumbered to (30)
(31)(30) “Production” and “Menu Records” menu records means records of meals produced to show how the meals offered contribute to the required food components and food quantities for each age/grade group every day.
(31) through (32) renumbered (32) through (33)
(34)(33) “Recipient Agency Review” means an on-site review of the Recipient Agency when the department identifies actual or probable deficiencies in the use of USDA Foods by such institutions, through audits, investigations, complaints, or any other information; storage facilities at the distributing agency level (including commercial storage facilities under contract with the distributing or sub-distributing agency), on an annual basis; or Recipient Agencies and sub-distributing agencies in Commodity Supplemental Food Program and The Emergency Food Assistance Program in accordance with 7 CFR parts 247, 250, and 251, respectively, all revised as of January 1, 2021, which are hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx, and www.ecfr.gov.
(34) through (37) renumbered (35) through (38).
(38) through (41) renumbered (39) through (42).
(42) through (49) renumbered (43) through (50).
Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.402, 595.404 FS. History–New 4-19-73, Repromulgated 12-5-74, Formerly 6A-7.40, Amended 5-3-88, Formerly 6A-7.040, Amended 6-21-18, 12-16-18,________.
5P-1.002 Appeals.,
(1) No change.
(2) No change.
(3) No change.
(a) through (h) No change.
(4) No change.
(5) No change.
(a) No change.
(b) Include the date the Sponsor’s Recipient Agencies, or Food Service Management Companies (“Appellant”) received the Notice of Action;.
(c) through (i) No change.
(6) No change.
(7) No change.
(a) through (c) No change.
(8) No change.
(9) If a hearing is requested, it shall be held within fourteen (14) calendar days of the date the department received the request for appeal, unless otherwise agreed to by both parties. The hearing shall not be held prior to the time expiration for the submission of written documentation by both parties in accordance with subsection (7) of this rule part. The Appellant shall be provided with at least five (5) calendar days’ written notice, sent via certified mail, return receipt requested, of the time and place of the hearing. The hearing official shall conduct the hearing in accordance with this rule part.
(a) If a hearing is requested, the Appellant shall appear before the hearing official and provide oral testimony in refute of the grounds for which the department’s Notice of Action is based. Any documentation the Appellant relies upon during the hearing shall be related to or in connection with the department’s Notice of Action and submitted in accordance with subsection (7) of this rule part. The hearing official may conduct an examination of the testimony provided by the Appellant or its representative at the hearing. The Appellant may represent itself, retain legal counsel, or may be represented by another authorized person at the hearing. Failure of the Appellant’s representative to appear at a scheduled hearing shall constitute the waiver of the right to a personal appearance before the hearing official unless the review official agrees to reschedule the hearing.
(b) No change.
(c) Any new allegations, or belated assertions or arguments, in written documentation or at hearing that have not been previously advanced shall not be considered unless the hearing official determines otherwise. Requests for rebuttal may be granted at the hearing official’s discretion.
(d) The formal rules of civil procedure may not apply. Hearings shall not include motion practice. The hearing official is not bound by the Florida Evidence Code or the Florida Rules of Evidence. The hearing official has the discretion to include hearsay evidence that is relevant and to determine witness credibility. The hearing official shall exclude irrelevant and unduly repetitious testimony, and any written documentation not related to or in connection with the department’s Notice of Action.
(c)(e) Post-hearing. Briefs, legal memoranda and proposed final determinations will not be permitted. Written documentation shall be submitted in accordance with Rule 5P-1.002(7)-(8).
(10) through (14) No change.
(15) The determination made by the department’s hearing official is the final administrative determination to be afforded to the Appellant. The hearing official’s final determination shall be based upon a full of the administrative record, to include, oral testimony from the Appellant and the department’s response, written documentation submitted in accordance with subsection (7) of this part, and all program regulations.
(16) No change.
Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.404 FS. History–New 3-22-66, 4-11-70, 4-19-73, Repromulgated 12-5-74, Amended 6-28-83, Formerly 6A-7.41, 6A-7.040, Amended 6-21-18, 12-16-18,__________.
5P-1.004 Penalties and Sanctions.
(1) No change.
(a) No change.
1. A Sponsor or Recipient Agency, and its principals, including their board members, corporate officials, and the officials identified on the Sponsor or Recipient Agency’s application in the Florida Automated Nutrition System shall be declared by the department as Seriously Deficient if:
a. The Sponsor or Recipient Agency fails to comply with provisions outlined in the Child Nutrition Programs Agreement FDACS 01716, Rev. 06/18 04/18, incorporated in Rule 5P-2.002, F.A.C.;
b. No change.
c. The Sponsor or Recipient Agency is noncompliant with applicable procurement procedures and contract requirements of 2 CFR 200, revised as of January 1, 2021, which is hereby incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx, and by email request to the department at InfoFNW@fdacs.govwww.ecfr.gov;
d. through e. No change.
f. No Change.
(I) through (VII) No change.
g. through j. No change.
k. The Sponsor’s or Recipient Agency’s tax exempt status is revoked by the Internal Revenue Service pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 also resulting in immediate termination per subparagraph 5P-1.004(1)(b)(c)4., F.A.C.
2. No change.
a. through b. No change.
c. If after thirty (30) days from the date of receipt for the Notice of Action, the Sponsor or Recipient Agency fails to respond to the Notice of Action or the corrective action plan does not permanently correct all causes for being declared Seriously Deficient and implement the required Corrective Actions, the department shall move to terminate suspend the Sponsor or Recipient Agency under paragraph (b) of this rule.
d. If after ninety (90) calendar days following receipt of the department’s original written demand, the Sponsor or Recipient Agency fails to remit full payment or agree to a satisfactory repayment schedule for fiscal action that has been assessed by the department in accordance with Rule 5P-2.006, F.A.C. or Rule 5P-3.006, F.A.C., the Sponsor or Recipient Agency will be declared Seriously Deficient, and the department shall move to terminate the Sponsor or Recipient agency under paragraph (b) of this rule.
(b) Suspension
1. Consistent with prior agency rule, Sponsors or Recipient Agencies suspended from program operations shall not participate in any Child Nutrition or Food Distribution Program from which they were suspended, including receiving USDA Foods or obtaining program-related funds.
2. After one (1) year suspension, and, if applicable, the Sponsor or Recipient Agency has implemented the required Corrective Actions to bring the Sponsor or Recipient Agency back into compliance with chapter 595, F.S., and the rules adopted thereunder, the Sponsor or Recipient Agency may reapply for the Child Nutrition or Food Distribution Program from which they were suspended, subject to any deadlines for submitting applications. If applicable deadlines have already occurred at the time suspension is removed, the Sponsor or Recipient Agency must reapply for program participation the following year. When reapplying, the Sponsor or Recipient Agency must meet all federal and state requirements of a School Food Authority or organization that did not operate the program in the year prior to the current year, in the respective programs for which they are applying.
(b) (c) Termination.
1. If the department initially determines that the Sponsor’s or Recipient Agency’s corrective action is complete, but later determines that the serious deficiency(ies) has recurred, If the Sponsor or Recipient Agency has failed to submit a corrective action plan with supporting documentation that permanently corrects all causes for being declared Seriously Deficient and implements the required Corrective Actions, the Sponsor or Recipient Agency has failed to repay all assessed fiscal action, or meet all requirements of its repayment schedule agreement, the Sponsor or Recipient Agency will be terminated from the program for seven (7) years.
2. No change.
a. through d. No change.
3. and 5. No change.
6. While terminated, Sponsors or Recipient Agencies, and its principals, including their board members, corporate officials, and the officials identified on the Sponsor or Recipient Agency’s application in the Florida Automated Nutrition System at the time of the conduct resulting in the termination shall not participate in any Child Nutrition or Food Distribution Program, to include receiving USDA Foods, conducting business as a contractor, providing consulting services, or obtaining program related funds by any other means.
(2) Farmers’ Market Nutrition Programs.
(a) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under 7 CFR 248, revised as of January 1, 2021, which is adopted and incorporated by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX, and by email request to the department at InfoFNW@fdacs.govwww.ecfr.gov, and section 595.501, F.S. The purpose of the guidelines is to give notice of the range of penalties that will be imposed for a single violation. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase the penalties to be imposed against the Farmer or Farmers’ Market by the department. No aggravating factors will be applied to increase a fine imposed for a single violation above the maximum as provided in 7 CFR 248.20 or $5,000 for violations of chapter 595, F.S., or the rules adopted thereunder. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine a total penalty and will be grounds for enhancement of penalties.
(b) through (j) No change.
Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.404, 595.501, 570.971, 1001.42(16) FS. History–New 9-5-77, Amended 9-6-78, 10-17-78, 10-23-79, 1-7-81, 8-12-81, 4-27-82, 6-28-83, Formerly 6A-7.421, 6A-7.0421, Amended 6-21-18, 12-16-18,__________.
