5P-1.002. Appeals

(1) Section 595.404, F.S. exempts the department from Sections 120.569 and 120.57-120.595, F.S. Therefore, parties seeking administrative review of proposed agency action by the department shall follow the rules outlined herein.

(2) The department shall take agency action against Sponsors, Recipient Agencies, or Food Service Management Companies in connection to eligibility and the operation of Child Nutrition Programs, Food Distribution Programs, and Farmers’ Market Nutrition Programs by issuance of a Notice of Action. The Notice of Action shall state the grounds upon which the department’s agency action is based and state that the Sponsors, Recipient Agencies, or Food Service Management Companies have the right to appeal the agency action. The Notice of Action shall be sent by certified mail, (or its equivalent), by email or facsimile to the last known mailing address, facsimile number, or email address. If the notice is undeliverable, it is considered to be received by the Sponsor five (5) calendar days after being sent to the Sponsor’s last known mailing address, facsimile number, or email address.

(3) The following agency actions are appealable:

(a) A denial of an application for participation;

(b) A denial of a Sponsor’s request for an advance payment;

(c) A denial of a Sponsor’s claim for reimbursement (except for late submission under 7 CFR 225.9(d)(6));

(d) The department’s refusal to forward to FNS an exception request by the Sponsor for payment of a late claim or a request for an upward adjustment to a claim;

(e) A claim against a Sponsor or Recipient Agency for remittance of a payment;

(f) The termination of the Sponsor, Recipient Agency, or a Site;

(g) A denial of a Sponsor’s application for a Site; or

(h) The imposition of an administrative fine.

(4) Requests for appeal must be postmarked by the U.S. Postal Service (or an equivalent private delivery service) or emailed to the department no more than fourteen (14) calendar days from the date the Notice of Action was deemed received by the Sponsors, Recipient Agencies or Food Service Management Companies. Failure to timely request an appeal shall result in the entry of a default final determination.

(5) A request for appeal shall:

(a) Be in writing;

(b) Include the date the Sponsor’s Recipient Agencies, or Food Service Management Companies (“Appellant”) received the Notice of Action;

(c) Include the name, address, any email address, any facsimile number, and telephone number of the Appellant;

(d) Clearly identify the charges or action being appealed and state an appealable action; as provided under subsection (3) in this part;

(e) Include a clear and concise statement of the specific facts the Appellant contends warrant reversal or modification of the department’s proposed action;

(f) A statement of the specific rules, statutes, or regulations, if any, the Appellant contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules, statutes, or regulations;

(g) Include a statement of the relief sought by the Appellant;

(h) Include a copy of the Notice of Action issued; and,

(i) State whether an in-person hearing, telephonic or video hearing, or a review of written documentation is desired to refute the charges contained in the Notice of Action and shall be signed by the authorized representative or legal counsel, if retained. If a hearing is not specifically requested, the appeal shall be by review of written documentation.

(6) From the date the department receives the appeal, the department shall make available to the Appellant upon request, any information on which the action was based.

(7) To refute the Notice of Action the Appellant may submit written documentation for review by the hearing official either with the request for appeal or the Appellant must indicate in its request for appeal that such documentation will be submitted to the hearing official within seven (7) calendar days of the date Appellant submitted the request for appeal.

(a) The written documentation submitted by the Appellant must be postmarked by the U.S. Postal Service (or an equivalent private delivery service) or emailed to the department no more than seven (7) calendar days from the date the Appellant’s request for appeal was postmarked by the U.S. Postal Service (or an equivalent private delivery service) or emailed to the department.

(b) The department will have seven (7) calendar days from the date the department received the Appellant’s request for appeal to submit the written documentation upon which the agency action was based to the designated hearing official.

(c) Any written documentation received after the seven-day deadline shall not be considered for review.

(8) The request for appeal and all written documentation shall be submitted by email to the department at [e-mail], or by mail to the department at 600 S. Calhoun Street (H2), Tallahassee, FL,32399, Attention: Hearing Official. Regardless of whether it is emailed or mailed, the request for appeal must be postmarked by the U.S. Postal Service (or an equivalent private delivery service) or emailed to the department no more than fourteen (14) calendar days from the date the Notice of Action was deemed received by the Appellant, and all written documentation must be postmarked by the U.S. Postal Service (or an equivalent private delivery service) or emailed to the department no more than seven (7) calendar days from the date the request for appeal was postmarked by the U.S. Postal Service (or an equivalent private delivery service) or emailed to the department.

(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. 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.

(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. 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 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) A department representative shall be allowed to attend the hearing to respond to the Appellant’s testimony and written documentation and to answer questions from the hearing official. The department representative shall be allowed to answer direct questions from the Appellant to clarify the representative’s response to testimony.

(c) Post-hearing. Briefs, legal memoranda and proposed final determinations will not be permitted. Written documentation shall be submitted in accordance with subsections 5P-1.002(7)  through (8), F.A.C.

(10) The hearing official shall be a department employee who is independent of the original decision-making process that led to the proposed agency action.

(11) The department shall record the hearing through a sound or video recording device.

(12) Within five (5) business days after the hearing, or within five (5) business days after receipt of written documentation from both parties if no hearing is held, the hearing official shall issue a Final Determination based on a full review of the information provided by both parties, and on applicable program regulations. The Final Determination shall be sent to the Appellant via certified mail, return receipt requested.

(13) When computing time under this rule, if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. Any request for appeal or written documentation received by the department by email, U.S. mail, or an equivalent private delivery service before 5:00 p.m. shall be filed as of that day but any document received after 5:00 p.m. shall be filed as of 8:00 a.m. on the next business day.

(14) The actions of the department remain in effect during the appeal process. The Appellant may continue to operate the program during an appeal of termination, and if the appeal results in overturning the action of the department, reimbursement shall be paid for meals served during the appeal process. Such continued program operation shall not be allowed if the action of the department is based on imminent dangers to the health or welfare of children. If the Appellant has been terminated for this reason, the department shall so specify in its Notice of Action.

(15) The determination made by the department’s hearing official is the final administrative determination to be afforded to the Appellant.

(16) Any party adversely affected by the determination is entitled to seek judicial review pursuant to rule 9.110(a)(2) of the Florida Rules of Appellate Procedure, which must be initiated by filing a Notice of Appeal with the department’s Agency Clerk, 407 S. Calhoun Street, Tallahassee, FL 32399, within thirty (30) days of the date of the determination. A copy of the Notice of Appeal, accompanied by the prescribed filing fee, must be filed with the Clerk of the District Court of Appeal in the district where the sponsor is located or the First District Court of Appeal at 2000 Drayton Drive, Tallahassee, Florida 32399.

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, 9-5-23.