STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2543

)

DAVID R. HUTTO d/b/a )

NEIGHBORHOOD DISCOUNT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on December 2, 1983, in Fort Myers, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Anthony N. DeLuccia, Jr., Esquire

Department of Health and Rehabilitative Services

Post Office Box 06085 Fort Myers, Florida 33906

For Respondent: David R. Hutto

Neighborhood Discount 2130 Ford Street

Fort Myers, Florida 33901

The issue for determination at the final hearing was whether the Respondent Neighborhood Discount should be disqualified from the Florida WIC Program.

At the final hearing, Karen Kalisz and Sharon Knapp of the Lee County Health Department, WIC Program and Pedro Renaud, Officer in Charge, United States Department of Agriculture, Food and Nutrition Service, testified for the Petitioner. The Respondent testified on his own behalf. Petitioner's Exhibits 1-6 were offered and admitted into evidence.

A Proposed Recommended Order containing findings of fact has been submitted by the Petitioner and considered in the preparation of this Recommended Order.

To the extent that the proposed findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. Respondent David R. Hutto d/b/a Neighborhood Discount, signed a contract with the WIC Program administered by the Petitioner Department of Health and Rehabilitative Services on December 27, 1982, effective for the calendar year January 1 through December 31, 1983.

   
   

2. One of the general conditions in the contract specifies that Neighborhood Discount, as a vendor, may be disqualified from participation in the WIC Program if it is disqualified from participation in any United States Department of Agriculture, Food and Nutrition Service Program.

   
   

3. Respondent, operating as Neighborhood Discount, was disqualified from participation in the Food Stamp Program of the United States Department of Agriculture, Food and Nutrition Service Program, beginning July 16, 1983, for a period of six months. The basis for the disqualification was the sale of fourteen ineligible items including beer, cigarettes and a pocket knife.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute. Section 120.57(1), Florida Statutes.

   
   

5. Under the terms of the vendor agreement and 7 CFR 246.10(k)(1)(iii), the Department is permitted to disqualify a food vendor from the WIC Program who is currently disqualified from another Food and Nutrition Service Program. If a state agency chooses to utilize this option, it is required to include such a provision in its vendor agreement.

   
   

6. The burden of proof in this proceeding to establish the Respondent's disqualification from the WIC Program was on the Petitioner. See Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

7. The Department has no rule which sets forth the parameters of when a vendor's WIC license will be suspended based on a disqualification from the Food Stamp Program. Instead, the vendor agreement between the parties provides that such disqualification may be grounds for suspension

   
   

8. Although the Department has the power to suspend the Respondent's participation in the WIC Program, no facts were introduced at final hearing to establish the basis for the exercise of the discretion to suspend such participation in this case. In administrative proceedings, there must exist a factual foundation for the reasonable exercise of discretion by a governmental agency. In the absence of such a foundation, discretionary power cannot be exercised.

   
   

9. Had the vendor agreement in this case provided for automatic suspension from the WIC Program or the Department established factually a nexus between disqualification in the Food Stamp and WIC Programs, a different result would be indicated.

   RECOMMENDATION

   
   

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

   That a Final Order be entered dismissing the proceedings to suspend the Respondent's WIC Program participation.

   
   

   DONE and ENTERED this 9th day of March, 1984, in Tallahassee, Florida.

   
   

   SHARYN L. SMITH

   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 9 day of March, 1984.

   
   

   COPIES FURNISHED:

   
   

   Anthony W. DeLuccia, Jr., Esquire Department of Health and

   Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906

   
   

   David R. Hutto Neighborhood Discount 2130 Ford Street

   Fort Myers, Florida 33001

   
   

   Alicia Jacobs, Esquire General Counsel Department of Health and

   Rehabilitative Services 1323 Winewood Boulevard

   Tallahassee, Florida 32301

   
   

   David H. Pingree, Secretary Department of Health and

   Rehabilitative Services 1323 Winewood Boulevard

   Tallahassee, Florida 32301

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

   
   

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

   
   

   Petitioner,

   
   

   vs. CASE NO. 83-2543

   
   

   DAVID R. HUTTO, d/b/a NEIGHBORHOOD DISCOUNT,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came on before me for the purpose of issuing a final agency order. On March 9, 1984, the Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

   
   

   1. WIC - meaning HRS WIC Program Office - filed Exceptions to the Recommended Order.

A copy of WIC's Exceptions is attached hereto as Exhibit A.

HRS STATEMENT AND RULING ON THE EXCEPTIONS

(AA) WIC Exceptions (1) and (2) - These Exceptions to the Hearing Officer's conclusions of law are sustained. Neighborhood Discount allowed customers to purchase - with food stamps - beer, cigarettes, and a pocket knife. A disqualification from the Food Stamp Program was imposed. The attendant disqualification of Neighborhood Discount from the WIC Program is set forth by 7 CFR 246.10(k)(iii). The guidelines for inflicting the attendant disqualification are the inclusion of such disqualification in the vendor's WIC disqualification would create undue hardship for WIC participants. All the guidelines for inflicting the attendant WIC disqualification have been complied with.

The nexus between disqualification from the Food Stamp Program and disqualification from WIC is facial. It is a direct, serious threat to either program for a vendor to allow persons to purchase ineligible items with food stamps or WIC coupons, i.e., beer and cigarettes with food stamps! The conclusions of law stated by the Hearing Officer are rejected. Neighborhood Discount is disqualified from the WIC Program.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact made by the Hearing Officer.

CONCLUSIONS OF LAW

The overall conclusions of law stated by the Hearing Officer are rejected. The conclusions amount to an erroneous or otherwise inappropriate interpretation and application of law. The correct interpretation and application, which compel a different result, is set out in the HRS Statement and Ruling on the Exceptions filed by WIC. Consequently,

It is adjudged that David R. Hutto, d/b/a Neighborhood Discount, is disqualified from the Florida WIC Program.

ORDERED this 7th day of May, 1984, in Tallahassee, Florida.

DAVID H. PINGREE

Secretary

COPIES FURNISHED:

David R. Hutto, d/b/a Neighborhood Discount 2130 Ford Street

Fort Myers, Florida 33901

Anthony N. DeLuccia, Jr., Esquire Department of HRS

Post Office Box 06085 Fort Myers, Florida 33906

Sharyn L. Smith, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Harden King, Agency Clerk Department of HRS

1323 Winewood Boulevard

Suite 407

Tallahassee, Florida 32301

Phil E. Reeves Program Supervisor HRS WIC Program 1317 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 83-002543

Orders for Case No: 83-002543