STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2140

)

MOHAMMED LUTFI, d/b/a )

SUNLIGHT GROCERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 9, 1983, in Orlando, Florida.

APPEARANCES

For Petitioner: Douglas Whitney, Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite 911 Orlando, Florida 32801

For Respondent: Robert W. Olsen, Esquire

205 North Rosalind Avenue Post Office Box 1767 Orlando, Florida 32802

By letter dated April 28, 1982, Petitioner, Department of Health and Rehabilitative Services ("HRS"), advised Respondent, Mohammed Lutfi, d/b/a Sunlite Grocery ("Respondent") of its intention to suspend Respondent from participation in the Women, Infants and Children Program ("WIC") for a period of six months due to overcharges for foods and sale of ineligible foods.

Respondent requested a formal hearing to be conducted pursuant to Section 120.57(1) , Florida Statutes.

This cause was subsequently forwarded to the Division of Administrative Hearings by HRS for the assignment of a Hearing Officer.

Final hearing in this cause was scheduled for February 9, 1983, by Amended Notice of Hearing dated December 27, 1982. At the final hearing, Petitioner called John Harrison, Charlotte Sosa, and Mary Boykin as its witnesses.

Respondent testifId in his own behalf, and called Jeanne Zatoun as a witness Petitioner offered Petitioner's Exhibits 1 through 11, which were received into evidence. Respondent offered no exhibits.

Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Effective January 1, 1982, HRS and Respondent entered into a Vendor Agreement for Participation in the Florida WIC Program. The WlC Program is a highly specialized nutritional program, subsidized by the Federal Government for the benefit of certain low income persons. Pursuant to the aforementioned agreement, Respondent agreed to:

   
   

   1. Provide only authorized quantities of approved WIC foods for purchase with food check, accurately determine the charges to the WIC Program, and clearly complete the "pay exactly" box on the food check prior to obtaining the signa- ture of the authorized participating parent, guardian, or proxy.

   2. Provide the approved WIC foods to participant at the same price or less than the price charged other customers.

      
      

2. The Vendor Agreement between HRS and Respondent also provided that:

   
   

   If the State WIC Agency or local agency determines that the Vendor is unable or unwilling to properly comply with this agreement and/or Federal or State WIC Program rules, regulations, or policies, the State or local agency shall, after - thirty (30) days written notice, suspend the Vendor from further participation

   in the WIC Program for a period of up to one (1) year. The State or local WIC agency shall, upon thirty (30)

   days written notice, suspend the Vendor from participation in the WIC Program for a period of not less than three

   1. months upon substantiation of abuse of the WIC Program including, but not limited to the following:

      1. Providing . . . unauthorized foods in lieu of authorized supplemental foods.

   * * *

   Charging the WIC Program an amount for supplemental foods more than other cus- tomers are charged for the same food items

   * * *

   5. Actual or attempted violation of appli- cable laws.

3. HRS administers the WIC Program by issuing to eligible individuals negotiable checks that reflect designated categories of foods which may be purchased with the checks. Specific foods eligible for purchase in each category are on the back side of the checks. Clients to whom checks are issued take them to an approved Vendor participant store and purchase the foods as authorized by category.

   
   

4. Vendor-participants in the WIC Program are instructed to disallow purchases of foods not specifically listed on the checks, and are further instructed at the time of the purchase to first insert the cash register amount of the purchase on the check and then to have the client sign the check. Individual vendor-participants are monitored by computer printout in HRS' Tallahassee office. When vendors' store prices for individual items exceed 20 percent of the average price for those items in a given county area, the local WIC office performs an investigation of the store by using undercover personnel to pass specifically identified checks through the store to identify where the overcharging is occurring and whether proper foods are being authorized for purchase by vendor-participants.

   
   

5. Monitoring activities conducted by HRS preliminarily indicated Respondent was charging in excess of 20 percent above the norm in his area consistently, and in one case as high as 90 percent above norm. As a result of the aforementioned monitoring activities, specific identifiable checks were forwarded to the Orange County WIC Office and a staff member was assigned to go to despondent's store utilizing these checks for the purchase of goods. Four separate visits were made by a staff member, and on three of those instances the investigator was furnished with sales slips. On each separate occasion the investigator was asked by store personnel to sign the check prior to the purchase amount being inserted on the check as required by the agreement between HRS and Respondent. The investigator consummated purchases, and on at least three of those purchases individual items of unauthorized food were allowed to be purchased by Respondent. After the checks were cashed by Respondent and returned to the HRS office, it was found that three of the four checks were cashed for amounts in excess of the actual purchase price of the articles, ranging from $.3.37 to $3.83 in amount of the actual marked purchase price.

   
   

6. Respondent, prior to the aforementioned purchases, had been duly instructed by HRS personnel concerning the correct procedures to be used in participating in the WIC Program. Further, HRS duly notified Respondent of its intent to take sanctions in the form of a suspension of his participation in the WIC Program.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding.

   
   

8. Respondent has violated the terms of the Vendor Agreement for Participation in the Florida WIC Program, as hereinabove set forth. Accordingly, it is

RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, suspending Respondent from participation in the Florida WIC Program for a period of four (4) months

DONE AND ENTERED this 12th day of July, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983.

COPIES FURNISHED:

Douglas Whitney, Esquire Robert W. Olsen, Esquire Department of Health and 205 North Rosalind Avenue

Rehabilitative Services Post Office Box 1767

400 West Robinson Street Orlando, Florida 32802 Suite 911

Orlando, Florida 32801

David II. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002140

Orders for Case No: 82-002140