The Issue In their joint stipulation, the parties framed the issues for determination in Phase 1 of this proceeding as follows: Whether a reasonable trier of fact can infer from the "Phase 1 Evidence" that Petitioner committed the infraction of a pattern of overcharging. Whether the "Phase 1 Evidence," which is assumed to be admissible, true, and accurate, for purposes of Phase 1, is sufficient for the trier of fact to find that the Department has met its burden of proving by clear and convincing evidence that Petitioner engaged in a pattern of overcharging.
Findings Of Fact The evidence presented in Phase 1, which, as stipulated by the parties, has been deemed to be competent and admissible for purposes of Phase 1, together with the parties' joint statement of undisputed facts, established the facts that follow. The Dispute As a food vendor under contract with the Department, J&L is authorized to accept food checks from participants in the Special Supplemental Nutrition Program for Women, Infants and Children ("WIC")1 and to receive payment on these checks from the Department, which administers the program in Florida. In this case, the Department seeks to disqualify J&L from participating in the WIC program for a period of three years as a mandatory sanction for allegedly having committed a serious violation of the federal regulations, namely, engaging in a "pattern of overcharging." J&L denies the charge. Background On May 24, 2000, Jean H. Cesaire, as the owner and authorized representative of J&L, executed a written agreement with the Department (the "WIC Vendor Agreement") which, by its terms, took effect on May 18, 2000. Under the WIC Vendor Agreement, J&L agreed broadly to comply with all state and federal WIC program rules, regulations, policies, and applicable law, and generally, among other things, to accept WIC food checks from program participants, to "[c]harge WIC customers the same price or less than the price charged to other customers in the quantities specified on the food checks and to not charge the WIC program for food not received by the customer." For its part, the Department agreed, among other things, to pay J&L "the amounts on properly redeemed food checks upon compliance by the vendor with the conditions contained [in the WIC Vendor Agreement]." Participants in the WIC program purchase groceries with food checks (sometimes also called "food vouchers," "food instruments," or "WIC checks") that they are provided based on individual nutritional needs. Each food check——and there are a number of different types, numerically identified——describes the kind and quantity of items that my be bought with that particular check. All of the check types at issue in this case afford the participant a menu of selections from which to choose, some offering a wider variety of options than others. For example, check type 029 permits the participant to purchase as many as five separate foodstuffs (some being available in alternative forms, e.g. frozen or liquid) in amounts up to a stated maximum, as follows: milk (1.5 gallons or six cans evaporated or 6 quarts dry); cheese (up to one pound); juice (12 ounces frozen or one 46-ounce can/bottle); cereal (up to 36 ounces); and eggs (one dozen). Because, as the WIC Vendor Agreement directs, "[t]he vendor shall not require WIC customers to purchase all of the items prescribed on the WIC check," a participant is free to tender a check type 029 in payment for, say, three cans of evaporated milk and a half pound of cheese. Doing so, of course, would unwisely "leave money on the table," needlessly relinquishing available benefits, but this sort of "under-consuming" is theoretically possible. Consequently, check type 029 permits a large number of potential purchase combinations. Other check types offer fewer choices. Check type 301, for instance, authorizes the purchase of up to seven, one-ounce cans of concentrated liquid infant formula, the WIC customer's only choice (in addition to quantity) being that between the brands Good Start and Alsoy. The limited menu on this check will produce (at least in most instances, presumably) one of two purchase combinations: either seven cans of Good Start or seven cans of Alsoy. The possibility that a participant might buy, e.g., three cans of Good Start and four of Alsoy, however, together with the potential for under-consuming (i.e. buying fewer than seven cans), increase the number of purchase combinations. Under the WIC Vendor Agreement, J&L is required to "submit an accurately completed WIC Food Price List to the department or local WIC office upon request." On July 20, 2000, J&L provided such a list to the Department. The Florida WIC Program Food Price List that J&L furnished the Department (the "Price List") constituted a representation by J&L that it would charge WIC customers (and hence the WIC program) the prices stated therein. Although a maximum price is not printed on the food checks used in Florida, it is possible, using J&L's Price List, to determine the costliest purchase combination available under a particular check type when presented in J&L's store. Simply put, the most expensive possible purchase for a given check type comprises the largest allowable amount of the priciest form of each foodstuff prescribed on the check. The sum total of the respective prices of these items (as set forth in the Price List) equals the check's dollar-limit in J&L's store. The Charge and the Department's Theory By a letter addressed to Mr. Cesaire and dated November 20, 2000, the Department notified J&L of its intent to disqualify the vendor from participating in the WIC Program for a period of three years, based on J&L's allegedly having engaged in a pattern of overcharging.2 In pertinent part, the Department alleged: During a visit to your store on July 20, 2000, [an inspection of WIC checks] showed: You were systematically charging a fixed price——i.e. the highest amount allowed for reimbursement by the Department——regardless of what customers actually purchased, and You were systematically charging amounts that were higher than your shelf prices for WIC food items, as set forth in the [Price List]. . . . . Since that visit, an audit of WIC checks submitted for payment by your store revealed that you continued to overcharge the WIC Program by routinely charging a fixed price and by claiming reimbursement for WIC checks in amounts that exceed your stated food item prices. Although these allegations imply that the Department has direct proof that J&L both (a) systematically charged a "fixed price" and (b) routinely charged WIC participants amounts that exceeded the current contract prices, in fact it is undisputed that statement (b) is the ultimate factual determination that the Department draws from basic premise (a). That is, the Department has no direct evidence that J&L routinely charged WIC participants prices in excess of those stated in the Price List; rather, it possesses proof that J&L systematically charged the dollar-limit on purchases paid for with the various food check types at issue, and the Department considers this to be circumstantial evidence of the violation charged. Underscoring the foregoing point is this from the parties' statement of facts not requiring proof at trial: 26. The parties stipulate that there is no particular WIC check that can be identified as having been utilized in the commission of an "overcharge" in that there is no way to tell what a customer actually purchased during a particular WIC transaction.[3] (However, this should not be construed as an admission by [the Department] that [J&L] did not commit a pattern of overcharging by maximum pricing, which is a theory that views the checks [in question] as a whole and not individually.) At the core of the Department's case is a chart containing data derived from hundreds of individual WIC checks that the Department contends collectively demonstrate a pattern of overcharging. The parties call this chart the "Matrix," and it is reproduced in full below. J & L #4626 Check Type Date Cleared Number of Checks Amount Highest Price Lowest Price 29 7/11/00 1 $ 25.99 $ 25.98 $ 18.32 7/18/00 1 $ 25.99 7/25/00 1 $ 22.82 8/29/00 1 $ 22.82 10/10/00 2 $ 22.82 31 6/28/00 52 $ 16.93 $ 16.23 $ 15.03 7/11/00 16 $ 16.93 7/18/00 30 $ 16.93 7/25/00 37 $ 13.53 8/1/00 34 $ 16.23 8/8/00 47 $ 16.23 8/15/00 40 $ 16.23 8/22/00 42 $ 16.23 8/29/00 57 $ 16.23 9/12/00 1 $ 16.23 9/19/00 12 $ 16.23 9/26/00 1 $ 16.03 9/26/00 22 $ 16.23 10/2/00 59 $ 16.23 10/10/00 45 $ 16.23 10/17/00 1 $ 11.10 10/17/00 8 $ 16.23 10/23/00 64 $ 16.23 10/30/00 1 $ 12.72 10/30/00 47 $ 16.23 11/7/00 1 $ 12.23 11/7/00 76 $ 16.23 11/10/00 1 $ 14.23 11/10/00 3 $ 16.23 11/14/00 56 $ 16.23 11/15/00 1 $ 16.23 11/20/00 40 $ 16.23 11/28/00 31 $ 16.23 33 6/25/00 12 $ 10.49 $ 10.34 $ 9.45 7/11/00 5 $ 10.49 7/18/00 12 $ 10.49 7/25/00 15 $ 9.64 8/1/00 9 $ 10.34 8/8/00 13 $ 10.34 8/15/00 10 $ 10.34 8/22/00 16 $ 10.34 8/29/00 7 $ 10.34 9/12/00 5 $ 10.34 9/19/00 4 $ 10.34 9/26/00 1 $ 9.16 9/26/00 6 $ 10.34 10/2/00 15 $ 10.34 10/10/00 13 $ 10.34 10/17/00 13 $ 9.64 10/30/00 1 $ 6.64 10/30/00 1 $ 7.25 10/30/00 20 $ 9.64 11/7/00 12 $ 10.34 11/10/00 11 $ 10.34 11/14/00 17 $ 10.34 11/17/00 1 $ 7.47 11/20/00 21 $ 10.34 11/24/00 1 $ 7.16 11/28/00 1 $ 10.34 86 8/29/00 1 $ 13.95 $ 13.87 $ 13.27 9/19/00 1 $ 13.17 159 6/28/00 50 $ 7.96 $ 7.51 $ 6.75 7/11/00 18 $ 7.96 7/18/00 32 $ 7.96 7/25/00 39 $ 6.74 8/1/00 35 $ 7.51 8/8/00 50 $ 7.51 8/15/00 40 $ 7.51 8/22/00 44 $ 7.51 8/29/00 66 $ 7.51 9/12/00 9 $ 7.51 9/19/00 15 $ 7.51 9/26/00 26 $ 7.51 10/2/00 62 $ 7.51 10/10/00 49 $ 7.51 10/17/00 59 $ 7.51 10/18/00 1 $ 7.51 10/23/00 64 $ 7.51 10/30/00 1 $ 4.46 10/30/00 50 $ 7.51 11/7/00 48 $ 7.51 11/10/00 1 $ 7.47 11/14/00 59 $ 7.51 11/15/00 1 $ 7.51 11/20/00 45 $ 7.51 11/28/00 41 $ 7.51 160 7/18/00 1 $ 27.49 $ 30.16 $ 21.67 7/25/00 1 $ 24.20 8/1/00 3 $ 24.20 8/8/00 3 $ 24.20 8/15/00 1 $ 24.20 8/22/00 4 $ 24.20 8/29/00 4 $ 24.20 9/12/00 1 $ 24.20 9/19/00 1 $ 24.20 9/26/00 5 $ 24.20 10/2/00 5 $ 24.20 10/10/00 5 $ 24.20 10/17/00 2 $ 24.20 10/30/00 8 $ 24.20 11/7/00 4 $ 24.20 11/10/00 3 $ 24.20 11/14/00 6 $ 24.20 11/20/00 8 $ 24.20 11/28/00 1 $ 24.20 162 6/28/00 26 $ 30.49 $ 33.05 $ 27.77 7/11/00 11 $ 30.49 7/18/00 26 $ 30.49 7/25/00 26 $ 30.40 8/1/00 20 $ 30.40 8/8/00 28 $ 30.40 8/15/00 31 $ 30.40 8/22/00 19 $ 30.40 8/29/00 24 $ 30.40 9/12/00 6 $ 30.40 9/19/00 7 $ 30.40 9/26/00 14 $ 30.40 10/2/00 36 $ 30.40 10/10/00 23 $ 30.40 10/17/00 27 $ 30.40 10/23/00 38 $ 30.40 10/30/00 20 $ 30.40 11/7/00 18 $ 30.40 11/10/00 1 $ 30.40 11/14/00 38 $ 30.40 11/20/00 27 $ 30.40 11/28/00 16 $ 30.40 201 7/11/00 1 $ 23.90 $ 21.00 $ 20.30 7/18/00 2 $ 23.90 7/25/00 2 $ 21.00 8/1/00 8 $ 21.00 8/8/00 5 $ 21.00 8/15/00 3 $ 21.00 8/22/00 11 $ 21.00 8/29/00 1 $ 21.00 9/19/00 1 $ 21.00 9/26/00 3 $ 21.00 10/2/00 6 $ 21.00 10/10/00 4 $ 21.00 10/17/00 7 $ 21.00 10/23/00 5 $ 21.00 11/7/00 9 $ 21.00 11/10/00 5 $ 21.00 11/14/00 3 $ 21.00 11/15/00 1 $ 21.00 11/20/00 10 $ 21.00 11/28/00 5 $ 21.00 202 7/18/00 2 $ 50.80 $ 45.00 $ 43.50 8/1/00 3 $ 45.00 8/8/00 5 $ 45.00 8/15/00 7 $ 45.00 8/22/00 6 $ 45.00 8/29/00 5 $ 45.00 9/12/00 1 $ 45.00 9/26/00 3 $ 45.00 10/2/00 4 $ 45.00 10/10/00 5 $ 45.00 10/17/00 5 $ 45.00 10/23/00 6 $ 45.00 11/7/00 6 $ 45.00 11/10/00 7 $ 45.00 11/14/00 5 $ 45.00 11/20/11 4 $ 45.00 11/28/00 8 $ 45.00 203 7/11/00 3 $ 54.80 $ 48.89 $ 47.19 7/18/00 5 $ 54.80 7/25/00 1 $ 48.89 8/1/00 5 $ 48.89 8/8/00 8 $ 48.89 8/15/00 10 $ 48.89 8/22/00 10 $ 48.89 8/29/00 7 $ 48.89 9/12/00 3 $ 48.89 9/19/00 2 $ 48.89 9/26/00 7 $ 48.89 10/2/00 7 $ 48.89 10/10/00 7 $ 48.89 10/17/00 9 $ 48.89 10/23/00 7 $ 48.98 10/30/00 8 $ 48.89 11/7/00 8 $ 48.89 11/10/00 3 $ 48.89 11/14/00 6 $ 48.89 11/20/00 6 $ 48.89 11/28/00 14 $ 48.89 204 7/11/00 1 $ 53.80 $ 48.00 $ 46.40 7/18/00 5 $ 53.80 7/25/00 3 $ 48.00 8/1/00 9 $ 48.00 8/8/00 11 $ 48.00 8/15/00 9 $ 48.00 8/22/00 17 $ 48.00 8/29/00 6 $ 48.00 9/12/00 1 $ 48.00 9/19/00 1 $ 48.00 9/26/00 5 $ 48.00 10/10/00 18 $ 48.00 10/17/00 15 $ 48.00 10/23/00 10 $ 48.00 10/30/00 3 $ 48.00 11/7/00 15 $ 48.00 11/10/00 11 $ 48.00 11/14/00 9 $ 48.00 11/20/00 13 $ 48.00 11/28/00 15 $ 48.00 205 7/11/00 3 $ 59.71 $ 53.58 $ 51.78 7/18/00 4 $ 59.71 7/25/00 2 $ 53.58 8/1/00 4 $ 53.58 8/8/00 8 $ 53.58 8/15/00 11 $ 53.58 8/22/00 6 $ 53.58 8/29/00 7 $ 53.58 9/12/00 2 $ 53.58 9/19/00 2 $ 53.58 9/26/00 7 $ 53.58 10/2/00 10 $ 53.58 10/10/00 3 $ 53.58 10/17/00 8 $ 53.58 10/23/00 8 $ 53.58 10/30/00 8 $ 53.58 11/7/00 7 $ 53.58 11/10/00 2 $ 53.58 11/14/00 6 $ 53.58 11/15/00 1 $ 53.58 11/20/00 7 $ 53.58 11/28/00 15 $ 53.58 The Matrix shows that for about a four month period, from August through November 2000, a high percentage of the WIC check types 029, 031, 033, 086, 159, 160, 162, 201, 202, 203, 204, and 205 that J&L submitted for payment were written at the particular check's dollar-limit. Two explanations for this phenomenon come readily to mind: Either, in these hundreds of transactions, the individual WIC consumers, presumably making their respective purchases largely unknown to (and independent of) one another, just happened consistently to select the most expensive combination of items available on these many checks, or the checks do not accurately and truthfully reflect the actual purchases made. The Department argues that the former, innocent explanation is incredible, leaving the latter, inculpatory explanation as the lone reasonable inference. Weighing the Department's Proof The strength of the Department's theory depends, in part, on the number of purchase combinations arising under each of the food checks in question: the more combinations the less likely the observed pattern of uniformity in check prices can credibly be explained as innocent coincidence. In this regard, the Department implicitly has conceded that under-consuming (i.e. foregoing the purchase of some authorized foodstuff(s) or buying less than the maximum allowed quantities thereof) is so infrequent as to have a negligible effect on the analysis.4 This is so because the Department has calculated a "lowest price" for each check type, that being (presumably) the least costliest combination of available items, assuming that the participant purchases the maximum amount of all the listed foodstuffs.5 Accepting the Department's assumptions in arriving at the "lowest price" figures reduces the number of potential purchase combinations, somewhat to the detriment of the Department's position. As mentioned above, some check types offer more food items than others. Check type 029, which already has been examined, allows the participant to buy five separate foods (milk, cheese, juice, cereal, and eggs), as does check type 160 (milk, cheese, juice, cereal, and eggs). Check type 162 lists six products (milk, cheese, juice, cereal, eggs, and peanut butter). Check type 086 authorizes the purchase of four items (milk, cheese, eggs, and peanut butter). Several checks permit the purchase of three food items: 031 (milk, cheese, juice); 159 (milk, juice, eggs); 203 (formula, juice, cereal); and 205 (formula, juice, cereal). One check type, 033, lists two items: milk and cheese. A few (check types 201, 202, and 204) allow the purchase of only one food item: infant formula. Obviously, the greater the number of food items (and attendant alternative forms or brands), the greater the number of purchase combinations, making the Department's argument facially more persuasive in connection with check types 029, 160, and 162, for example, than with respect to check types 201, 202, and 204. There are other factors to consider in evaluating the probative value of the Department's Matrix. One is the number of transactions associated with each check type, and the statistical significance of these numbers. For some check types, especially 029, 086, and, to a lesser extent, 160, the number of transactions during the pertinent period is seemingly too small to demonstrate a pattern, which casts doubt on the validity of the Department's desired inference of wrongdoing concerning these particular checks. Further, no expert testimony providing a comprehensive statistical analysis of the Matrix was (or would be) offered,6 and that also adversely affects the overall weight of this evidence. A related consideration involves the number of customers that the subject transactions comprehend. Assume, as a thought experiment, that every transaction identified in the Matrix involved a separate WIC participant. If true, that fact would bolster the Department's theory, because the probability that the observed uniformity in purchase prices occurred randomly presumably diminishes as the number of customers increases. On the other hand, it seems likely that, over the course of the months in question, some WIC participants used more than one food check to make multiple purchases in J&L's store; hence, the total number of such participants should be less than the total number of transactions reflected in the Matrix. The fewer the participants, the less persuasive the Department's theory, since price-uniformity presumably becomes more likely (and thus less suspicious) as the number of buyers decreases. The evidence in the record does not reveal the actual number of customers involved, which negatively affects the evidential weight of the Matrix. Moreover, there is (and would be) no evidence, such as expert opinion testimony on buying habits in the relevant market, bearing on whether, for any given check type, a particular purchase combination was more or less likely than any other.7 This deficiency undermines the probative value of the Matrix, because it is unreasonable to assume that all purchase combinations are equally likely or, more to the point, that the most expensive combinations are not likely to be seen with greater frequency than others. Indeed, it might reasonably be supposed that the most costly purchase combinations would be the most popular (and thus most often occurring) ones, not only because high-demand items tend to command higher prices than less desired products, but also because WIC participants, as rational economic actors, presumably would want to maximize their benefits. If this supposition were true, then the uniformity in purchase prices shown in the Matrix might not be as anomalous as the Department would have it. It could be, of course, that the high degree of price- uniformity (nearly 100% with some check types) seen here is telling; one can imagine an expert testifying, to make up an example, that while 75% of purchases are expected to be at the dollar-limit, 95% price-uniformity is suspiciously outside the normal distribution. These hypothetical numbers underscore the point, however, that absent such evidence the factfinder is left without a benchmark against which to measure the probative value of the Matrix. The buying patterns it reflects may be highly suspicious, somewhat suspicious——or completely innocent. In addition, to enlarge the foregoing point, because it is reasonable to assume that some percentage——perhaps a significant number——of "regular" purchases (i.e. those untainted by any misconduct) will be at the dollar-limit, it follows that not all of the transactions identified on the Matrix can reasonably be considered suspect. The lack of evidence concerning the percentage of dollar-limit purchases made in similarly-situated, law-abiding stores makes it impossible to calculate, for any given check type, how many of the transactions identified on the Matrix might reasonably be regarded as suspicious——and hence impossible to determine whether, assuming the Matrix is circumstantial evidence of wrongdoing, the violations occurred in a “pattern.” The Department has attempted to shore up its proof with the testimony of John Harrison, a longtime employee of the Department who has extensive experience in conducting compliance investigations of WIC vendors. In an affidavit, Mr. Harrison avers, in pertinent part, as follows: I was instrumental in the development of a retailer profiling system that is used to identify suspect WIC check redemption activities. I continue to provide training and guidance to the Florida WIC Program's investigators in the use of this system. During the past year, data from the system was used to identify [J&L] in Miami for investigation, along with several similar stores in Dade and Broward County that cater to clients of the WIC Program. The investigation of [J&L] confirmed for the Department what had been suggested by the computerized profile of the store and led to the allegations set forth in the November 20, 2000, disqualification letter: that the store was charging a fixed price that was unrelated to the shelf price of foods actually purchased by WIC customers. That is to say, [J&L] has systematically and methodically overcharged the WIC Program for approved WIC foods. The allegations of fixed pricing by [J&L] were substantiated to the Department's satisfaction through comparison with other independently owned stores in Miami-Dade County that appear to be charging fair and honest prices. The computer profile in these stores shows that a wide variety of prices are charged on WIC checks, which reflects the fact that WIC customers make different selections among the types and brands of foods that are approved for purchase. In my years of experience in investigating fraud by retailers in the WIC Program, I have not seen fixed pricing of the kind committed by [J&L], excepting several recent examples in Miami-Dade County. Even if Mr. Harrison's affidavit testimony were believed, this proof has little probative value because all the witness has said, at bottom, is that a computer-generated profile, which is not in evidence, together with other data not in the record, were sufficiently persuasive to convince the Department that J&L is guilty of the instant charge. The Department's burden, however, is to prove J&L's guilt to the factfinder's satisfaction——not merely to tell him that it truly believes the accused store is guilty. On its face, therefore, Mr. Harrison's testimony is not persuasive evidence of the facts that the Department must prove to prevail. Further, without the profile and other information underlying Mr. Harrison's conclusory assertions of guilt, the factfinder cannot independently assess the credibility of his assertions, which consequently are entitled to no more weight than allegations. The Department's proof suffers from another serious shortcoming. Assume, for argument's sake, that the high percentage of dollar-limit checks shown in the Matrix persuasively establishes, inferentially, that the checks which J&L submitted for payment do not accurately and truthfully reflect the actual purchases its WIC customers made. This would mean that J&L has done something wrong. But, the question then would arise, must that "something" be patterned overcharging? Upon reflection, it becomes apparent that the practice of "fixed pricing" or "maximum pricing" (as the Department has called it) could be used to cover up a number of different transgressions. One of them, certainly, is patterned overcharging. If, for example, J&L charged a purchaser of frozen orange juice the (higher) contract price for canned orange juice, that would be a form of overcharging. If this unsavory practice were consistently followed for all food items on all check types, a pattern of "maximum pricing" such as that seen in the Matrix would be produced.8 Imagine another scenario in which a vendor charges every user of check type 029 for a dozen eggs——even those purchasers who choose not to buy eggs. Charging WIC customers for food not received is a separate violation, distinct from overcharging. Yet, if this particular form of fraud were repeated consistently with regard to all check types, a pattern of "maximum pricing" also might emerge——even if no customers (or too few to constitute a "pattern") were "overcharged."9 Providing unauthorized food items is another serious violation. Imagine that a vendor were selling WIC customers ice cream and cookies and other unauthorized foods, and charging them for cheese and eggs and cereal. That, too, might result in a pattern of "maximum pricing," but the violation would not be overcharging. The same can be said about the provision of non- food items, and about the sale of alcoholic beverages and tobacco products as well. These also are separate violations that do not involve overcharging (as that offense is defined in the regulations) but could as readily as overcharging produce a pattern of "maximum pricing." The bottom line is, even if the factfinder were inclined to infer from the pattern of "maximum pricing" shown in the Matrix that J&L committed WIC program violations, for the Department to prevail he would need to infer from that first inference the conclusion that J&L was overcharging its customers and not engaging in some distinguishable wrongdoing (or combination of separate wrongs) with which a pattern of "maximum pricing" would be consistent. He would need further to infer that the overcharging had occurred with such frequency as to constitute a pattern of overcharging (because, remember, a dollar-limit check is not necessarily the product of an overcharge). In other words, to determine that J&L is guilty of the offence charged would require a pyramiding of inference upon inference. Ultimate Factual Determinations From August through November 2000, a high percentage of the WIC checks that J&L submitted for reimbursement were written at their respective dollar-limits. To be sure, this pattern of "maximum pricing" is fishy when considered in the abstract; the evidence, however, fails generally to put this seemingly suspicious pattern into a real-world context, and it fails in particular to establish, as a benchmark, the percentage of checks that would be written at the dollar-limit in the absence of wrongdoing. Thus, being unwilling to infer that the Matrix pattern is per se indicative of wrongdoing, the factfinder is not persuaded that J&L more likely than not engaged in misconduct. Additionally, even if the factfinder were willing to infer that the Matrix pattern would not have emerged but for some wrongdoing on J&L’s part, it would yet be too much of a stretch to infer further that the violation was overcharging as opposed to something else. Because J&L was accused of overcharging and nothing else, J&L cannot be found guilty of the specific offense charged. Finally, while it would be unreasonable to infer, from the Matrix alone, that J&L likely had engaged in overcharging, it would be irrational to infer that any suspected overcharging occurred so regularly as to constitute a pattern, because no demonstrated basis in fact or logic supports the proposition that every dollar-limit check is evidence of a transaction tainted with the fraud of overcharging, and the record reveals no principled basis for distinguishing between innocent maximum purchases and those resulting from misconduct.
The Issue The issues in this disciplinary proceeding arise from Petitioner's allegation that Respondent, which operates a bar and lounge, violated several statutes and rules governing food service establishments. If Petitioner proves one or more of the alleged violations, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all times relevant to this case, Respondent Whistle Stop Lounge, Inc. ("Whistle Stop") operated a duly licensed "bar and lounge" at a location in Boca Raton, Florida. Because the business activities of this enterprise also brought it within the statutory definition of a "food service establishment," Whistle Stop was required to be, and was, separately licensed as such. As a licensed food service establishment, Whistle Stop is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Health ("Department"). The Department is charged with the duty of inspecting food service establishments for compliance with sanitation rules designed to protect the public against food-borne illnesses. Accordingly, agents of the Department have inspected Whistle Stop's premises on many occasions, as a routine matter. Whistle Stop, however, has had ongoing problems with compliance since at least 2004, with the result that the Department has inspected its establishment more frequently than otherwise might have been the case. Indeed, from January 2008 though March 2009, the Department inspected Whistle Stop's premises 16 times——at least once in each of 10 separate months——and determined that Whistle Stop's compliance was "unsatisfactory" during 14 of those visits. During the referenced period, the Department twice concluded that Whistle Stop's establishment constituted an imminent danger to the public health. Consequently, the Department issued stop-sale orders on March 13, 2008, and November 7, 2008, each of which required Whistle Stop to close its doors. Although both stop-sale orders were lifted several weeks after their respective dates of issuance, the underlying problems subsisted, albeit in lesser degrees of severity. The problems that most concerned the Department can be divided into three categories: (a) the persistent presence on the premises of roaches, rodents, and flies; (b) the persistent presence on the premises of "potentially hazardous food"; and (c) the persistent presence on the premises of improperly stored garbage. The evidence clearly proves, and the undersigned finds, that Whistle Stop's establishment suffered from chronic infestations of roaches, flies, and rats, which persisted from January 2008 until at least December 11, 2008. During this period, Whistle Stop failed (or was unable) to take effective measures to protect against the entrance of such vermin. The undersigned finds, based on clear and convincing evidence, that within Whistle Stop's premises were routinely kept a variety of "potentially hazardous food" in kinds and quantities that were inconsistent with the owner's explanation that such food was the employees' personal property being temporarily stored for their convenience. Although the Department's agents did not observe potentially hazardous food being served to, or consumed by, Whistle Stop's patrons, they did witness such food in a frozen state and being thawed. For example, on November 7, 2008, chicken breast strips were seen to be decaying in a freezer on the premises. That same day, ground sausage was observed in a cooler, at a temperature that was above freezing and inadequate for long-term storage. On December 11, 2008, the Department's agents witnessed shrimp that was defrosting in the refrigerator, and butter that had been "out of temperature" for more than four hours and needed to be discarded. It is evident that on these occasions (and others), potentially hazardous food items at Whistle Stop's premises were subjected to activities that involved temperature changes, which is a form of "food preparation" according to the relevant regulatory definition of the term. There is clear and convincing evidence that garbage was often stored within Whistle Stop's premises in uncovered containers without first having been placed in plastic bags or wet-strength paper bags, and the undersigned so finds. The Department's agents observed such improper storage of garbage on November 7, 2008; November 13, 2008; and December 11, 2008. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of failing to comply with Florida Administrative Code Rule 64E-11.007(7), which requires food service establishments to take effective measures for controlling vermin on the premises. It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of causing or allowing potentially hazardous food to be prepared on its premises, in violation of Florida Administrative Code Rule 64E-11.002(4)(c), which prohibits such food preparation at a bar and lounge (unless the establishment, unlike Whistle Stop, is also licensed as a restaurant). It is determined, as a matter of ultimate fact, that Whistle Stop is guilty of failing to comply with Florida Administrative Code Rule 64E-11.007(6), which prescribes the requirements for storing and disposing of garbage at a food service establishment. Additional Findings Pertaining to Administrative Fines Having found that Whistle Stop has operated in violation of applicable rules, and in view of the Department's stated intent to impose a fine in excess of $25,000, it is necessary to make some additional findings concerning facts that bear on the amount of fine to be imposed. Each time the Department's agents inspected Whistle Stop's premises, a Food Service Inspection Report was prepared, using a form that the agency has developed for this purpose. The form contained the following notice: Items marked below violate the requirements of Chapter 64E-11 of the Florida Administrative Code and must be corrected. Continued operation of this facility without making these corrections is a violation of [applicable law]. Violations must be corrected by the date and time indicated in the Results section above or an administrative fine or other legal action will be initiated. This language expressly warned the licensee of the consequences of failing timely to fix an identified violation; implicitly, it told the licensee that if a violation were corrected within what was, effectively, a "grace period" until the next inspection, then disciplinary action (e.g., administrative fine or other legal action) would not be taken with regard to that violation. Some of the violations for which the Department wants to impose an administrative fine were timely corrected. One such violation was Whistle Stop's preparation of potentially hazardous food on November 7, 2008, for which the Department would impose a $500 fine. This problem was corrected before the next inspection on November 13, 2008, at which time this particular violation was not noted. Similarly, the Department cited Whistle Stop for preparing potentially hazardous food on December 11, 2009, and it wants to impose a fine of $500 for the violation, which was found herein to have occurred. Whistle Stop, however, had corrected the violation by January 9, 2009, when the Department next inspected its premises. The Department seeks to impose a fine of $500 per day for Whistle Stop's failure to take effective measures for controlling vermin between December 11, 2008 and January 9, 2009. Whistle Stop was cited for this violation on December 11, 2008, but not on January 9, 2009, which means that Whistle Stop corrected the problem at some point before the Department's next inspection. (There is no evidence, moreover, as to when this violation was corrected; thus, even if it were appropriate to impose a fine for a violation that the licensee corrected during the apparent grace period, which is contrary to the undersigned's view, the undersigned could not ascertain for how long the violation actually continued after December 11, 2008.) The Department intends to impose fines of $125 apiece for Whistle Stop's failures properly to store garbage on the dates of November 13, 2008, and December 11, 2008. Each of these violations had been corrected, however, before the next inspections, which took place, respectively, on November 19, 2008, and January 9, 2009. In contrast to the foregoing, there are other violations for which the Department would impose a fine that Whistle Stop did not timely correct. Whistle Stop was cited for improper storage of garbage on November 7, 2008, and that problem was not fixed by the next inspection on November 13, 2008. The Department intends to impose of fine of $125 for this violation. Finally, the Department wants to fine Whistle Stop $500 per day (which amounts to $9,500) for the period from November 7, 2008, to November 26, 2008, for the licensee's continuing failure to control vermin on the premises. This violation did, in fact, continue throughout the subject period and was not timely corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order: (a) finding Whistle Stop guilty in accordance with the foregoing Recommended Order; (b) ordering Whistle Stop to pay an administrative penalty in the amount of $9,625; and (c) revoking Whistle Stop's food service establishment license. DONE AND ENTERED this 20th of October, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2009. COPIES FURNISHED: Victoria Coleman-Miller, Esquire Department of Health Palm Beach County Health Department 800 Clematis Street West Palm Beach, Florida 33401 James S. Lewis, Esquire 200 Southeast 6th Street, Suite 102 Fort Lauderdale, Florida 33301 Rose D. Sheffler Whistle Stop Lounge, Inc. 198-199 West Camino Real Boca Raton, Florida 33432 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Alina Alonso, Director Palm Beach County Health Department Florida Department of Health 800 Clematis Street West Palm Beach, Florida 33401 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue Whether respondent should be disqualified from participating as a vendor in the Supplemental Food Program for Women, Infants and Children, known as the WIC Program.
Findings Of Fact The Special Supplemental Food Program for Women, Infants and Children (WIC Program) is funded by the United States Department of Agriculture under the Child Nutrition Act, Public Law No. 95-626. All funding for the WIC Program is federal; no state funds are used. The Department of Health and Rehabilitative Services (HRS) is the state health agency which is authorized to administer the WIC Program in Florida. The United States Department of Agriculture has promulgated regulations relating to the WIC Program which are set forth in 7 CFR Section 246.1 et seq. Among these regulations is the following requirement: The State agency shall establish policies which determine the type and level of sanctions to be applied against food vendors, based upon the severity and nature of the Program violations observed, and such other factors as the State agency determines appropriate.... 7 CFR 246.12(k)(1). Although HRS has established policies prescribing the type and level of sanctions to be applied, which are set forth in HRS Manual No. 150-24, dated May 1, 1983, and HRS Manual No. 150-24A, dated January 24, 1986, none of the policies have been promulgated as rules adopted pursuant to Chapter 120, Florida Statutes. Indeed, HRS has promulgated no rules relating to the WIC Program. The WIC Program provides certain important foods to pregnant women, infants and children. Program participants are examined by health professionals who determine the need for supplemental food and nutritional guidance. The participants receive checks for specific kinds and amounts of nutritious foods. The checks are redeemed at grocery stores that are approved by HRS. A participating grocer, or vendor, must meet certain qualification to participate in the program and must sign an agreement with HRS. The agreement expires at the end of each year and a new agreement is signed. A WIC check is similar to other types of checks and is redeemed by the vendor simply by depositing the check in his bank account. However, there are restrictions on the use of a WIC check. A WIC check can be used only to purchase the items listed on the face of the check. When a WIC check is presented for the purchase of items, the vendor must total the prices for the food listed on the check separately from any other food being purchased, ensuring that only the exact types and amounts of food listed on the check are included. The vendor then fills in the exact amount of the purchase on the check, and the customer signs the check. On March 21, 1984, HRS first contacted Sunrise Grocery in relation to its application to become a qualified vendor. At the time the owner of Sunrise Groceries was Albert Daa's, respondent's father. At the time of this visit, an application was filled out, and the rules and regulations set forth in HRS Manual No. 150-24 were explained. It was noted that the store lacked the minimum inventory of WIC foods. Another visit was made on April 20, 1984, at which time the store apparently reapplied for participation in the WIC Program. The store was subsequently qualified as a WIC Program vendor. On May 9, 1984, another visit was made to the store for the purpose of training. The rules and regulations, program procedures, and sanctions for program abuses were explained. The owner of Sunrise Groceries at this time was Albert Daa's and he signed this contact report. On September 20, 1984, HRS conducted a Vendor Compliance Review. The purpose of a Vendor Compliance Review is to ensure that the vendor understands WIC Program requirements and the obligations of a WIC vendor. The respondent, Isam Daa's, signed the report as the owner of the store. One of the requirements specifically discussed with respondent was the requirement that WIC checks not be written for amounts exceeding the actual shelf price of the food purchased. On December 11, 1984, HRS again visited Sunrise Groceries to discuss certain check redemption problems. Again, the consequences of overcharging were discussed. Respondent signed the report. On December 19, 1984, the respondent, as the owner and authorized representative of Sunrise Groceries, entered into an agreement with HRS effective January 1, 1985 through December 31, 1985, to participate as a vendor in the WIC Program. As part of this agreement, the respondent agreed to process WIC Program food checks in accordance with the terms of the agreement and state and federal WIC Program rules, regulations and policies. Respondent agreed to provide supplemental foods at the current price or at less than the current price charged to other customers. Respondent also agreed to be accountable for the actions of his employees in the utilization of food checks. Respondent and HRS have entered into the same agreement every year since then. On March 27, 1985, the respondent was sent a certified letter from John Harrison, program specialist with the Florida WIC Program. Respondent was advised that the charges on WIC checks deposited by his store had been exceeding the average for Hillsborough County stores by more than two dollars per check. The letter stated that vendors must charge competitive prices for WIC foods and stated that the prices charged by respondent had not been competitive. The letter specifically reminded respondent of the WIC Program requirement that a check may only be written for the total shelf price of the foods received by the customer. The letter informed respondent that his failure to comply with these or other requirements could result in the disqualification of his store for up to three years. In August of 1985, Mr. Harrison, who was the Senior Compliance Specialist for the WIC Program, received a call from the local agency indicating that there might be a problem with Sunrise Groceries. Further, a computer printout of September 17, 1985, showed that the average check redeemed by Sunrise Groceries was $2.70 over the average check redeemed in Hillsborough County for the same food. Mr. Harrison therefore made the decision to monitor Sunrise Groceries by using HRS investigators posing as clients. The investigators' checks were specially marked and issued for monitoring purposes. Checks were issued to four different investigators who made 14 purchases between the dates of September 20, 1985 and October 8, 1985. The monitoring of vendor stores is performed by each HRS investigator in substantially the same manner. The investigator goes into the store, purchases certain food items with a WIC check, and notes the amount that is written by the cashier on the check. After leaving the store, the investigator records the actual shelf price of each item purchased. The shelf price is the price that is stamped or placed on the item. Each investigator prepares a Monitoring Purchase Report for each check. The report indicates the time and date of purchase and the check used. The report lists the food prescription, the actual items purchased, the shelf prices for those items, and the amount of check. The investigator also records any other observations. Monitoring Purchase Reports are form reports that are routinely prepared by agency investigators in the course of their duties. Investigators Lenore Brantley and Sandy Kirkover testified at the hearing. Ms. Brantley made purchases at Sunrise Groceries on October 2, October 7, and October 8, 1985. On October 2, Ms. Brantley purchased items with a shelf price of $15.50. The amount written on the check was $17.72. On October 7, 1985, Ms. Brantley purchased items that had a shelf price of $13.01. The amount written on the check was $13.56. On October 8, 1985, Ms. Brantley purchased items with a shelf price of $4.16. The amount the cashier wrote on the check was $4.77. Ms. Kirkover visited Sunrise Groceries on September 20, September 25, and September 30, 1985. On September 20, 1985, Ms. Kirkover purchased items totaling $15.65. The amount written on the check was $16.27. On September 25, 1985, Ms. Kirkover indicated that the shelf price of the items purchased was $13.37 and the amount of the check was $13.51. She stated that the shelf price of the cheese was $3.05 a pound but that the cashier rang up $3.19 for the cheese. However, Ms. Brantley's report of October 7, 1985, indicates that the cheese actually cost $3.19. Thus, the amount written on the check was correct. On September 30, 1985, Ms. Kirkover purchased items with a shelf price of $4.15, and the cashier wrote on the check $4.15. Two of the monitoring purchase reports filled out by Ms. Grooms were accompanied by receipts for the groceries purchased with that check. Ms. Grooms used two checks for purchasing items at the same time on October 7, 1985. One check was used to purchase a gallon of whole milk and a half-gallon of milk. The receipt reflects the correct shelf price of those items, $4.16. The check, however, was filled-out for $4.71, which would have been the correct price if three half-gallons of milk had been purchased. The other check was for a variety of items, including a gallon and a half of milk. Ms. Grooms purchased one full gallon and one half-gallon. However, the receipt reveals that she was charged for three half-gallons. Further, the receipt shows the total for the purchases of $13.59, yet the check was written for $13.99. From the evidence presented, it is apparent that WIC checks filled out by respondent, or his employees, do not always reflect the actual shelf price of the food purchased. Indeed, from the evidence presented, it is quite clear that overcharging was the rule rather than the exception. Further, in certain cases the overcharging followed the same pattern, indicating that the overcharging was not a result of merely making an error on the price but was intentional. For example, it appeared to be a routine practice for respondent to charge for three half-gallons of milk, when a one gallon and a half-gallon were purchased, resulting in a 55-cent overcharge on each occasion. Mr. Daa's blamed most of the errors on a female cashier who worked for him for about two months. However, two of the three times Ms. Brantley purchased groceries, the cashier was a male. Several of the other reports also indicate that the cashier was a male. On December 4, 1985, respondent received a letter dated November 27, 1985, from petitioner proposing to disqualify respondent from the WIC Program for a period of three years effective January 1, 1986. The letter states that the proposed disqualification "is due to overcharges on WIC checks." No specific factual allegations were made by petitioner in the letter. Sunrise Groceries is a small business operating as a convenience grocery store in an area predominantly inhabited by persons of low income and poverty. The action proposed by petitioner will affect respondent's substantial interests by curtailing his ability to operate his small business. In HRS Manual No. 150-24, dated May 1, 1983, the consequences of vendor abuse are set forth. Section 15-17(a)(4) provides as follows: Vendors will be suspended/disqualified from the WIC Program for a period of not less than one (1) month and not more than three (3) years for: * * * (c) charging the participants more for supplemental foods than other customers are charged for the same foods. Attachment 3 to Chapter 15 sets forth the periods of disqualification to be imposed by HRS as follows: The periods of disqualification set forth below will be imposed by the State Agency in response to documented cases of Program abuse by vendors; i.e., violations of WIC Program rules and requirements which constitute a breach of the WIC Vendor Agreement. The period of disqualification will depend upon such considerations as the nature and extent of the violations, previous efforts to promote compliance, and hardships for participants that may result from the disqualification of a vendor. * * * Maximum Maximum 1st Number of Addi- Period of Violation Offense tional Offenses Disqualification *** *** *** *** Charging Warning 2 1 year WIC Parti- cipants more than the shelf prices of food *** *** *** *** HRS Manual No. 150-24A, dated January 24, 1986, revised the periods of disqualification. Attachment 3 to Chapter 15 states: The periods of disqualification set forth below may be imposed by the State Agency in response to documented cases of program abuse by vendors.... The actual period of disqualification will depend upon such considerations as the nature and extent of the violations, previous efforts to promote compliance, and hardships for participants that may result from the disqualification of a vendor. Period of Violation Disqualification *** *** Charging WIC participants more than the 3 years shelf price of food No specific evidence was presented at the hearing as to whether the disqualification of respondent from the WIC Program would create hardships for participants in the program. However, the WIC check computer print-out entered into evidence established that respondent does a substantial business with program participants. By November 15, 1985, respondent had cashed over 2,000 WIC checks in 1985.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent has charged the state more for supplemental foods than charged other customers, in that the amounts respondent filled-in on WIC checks were greater than the shelf price of the foods purchased, and warning respondent that any future violations could result in respondent's disqualification as a vendor in the WIC Program. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0802 Rulings on Petitioner's proposed findings of fact: Accepted generally. Accepted to the degree specified in the order. Accepted that respondent was advised that failure to comply with program requirements could result in disqualification. Respondent was also advised of the sanctions set forth in Manual 150-24. Accepted that overcharges were made on WIC checks as charged. Rejected. Federal regulations require the state to set policies determining the sanctions to be imposed. Rejected. The policy allowing for disqualification for a first offense did not go into effect until 1986. Rulings on Respondent's proposed findings of fact: Not a finding of fact, but facts stipulated to by the parties have been accepted. Rejected by contrary findings and as not supported by the evidence presented. Accepted. Accepted in that there was no finding made that respondent had ever been charged with "overcharging" prior to the instant case. Rejected in that the HRS manuals introduced into evidence established HRS' policy. Rejected to the degree it suggests that respondent has committed no act which would subject him to sanctions. COPIES FURNISHED: Fredrick P. Wilk, Esquire District VI Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 Paul S. Buchmann, Esquire 212 North Collins Street Plant City, Florida 33566 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner is the mother of Antonio Lewis. On May 9, 1978, Antonio was taken by the Petitioner to the Well Baby Clinic operated by the Escambia County Health Department. Antonio was at that time seven weeks old. He was measured and found to be 23 inches in length, and weighed 12 pounds 14 ounces. Antonio next visited the clinic on July 6, when he was approximately three months old. At that time he was 25 3/4 inches in length and weighed 15 pounds 12 ounces. According to weight/height charts utilized by officials of the Health Department, Antonio is within the 25th percentile, which means that he is heavier for his height than 75 percent of all babies. This places him somewhat above average, but within the normal range. No symptoms of malnourishment were observed at either visit. He had a normal birth weight, has not experienced inordinate weight gains for his height, has not failed to thrive, has grown normally, and it does not appear that his mother had an especially difficult pregnancy. Prior to the age of 6 months, observation is the primary indicator of malnourishment in babies. After that age, hemoglobin or hematocrit tests can be administered to determine certain dietary deficiencies. Prior to the age of 6 months, however, the results of these tests are not valid. The WIC Program is designed to provide dietary aid and assistance to persons who are suffering from malnutrition. It does not appear that Antonio Lewis has any special nutritional needs, or that he is suffering from malnourishment. On July 6, when the Petitioner took Antonio to the clinic, her sister also took her son. Her son, who was 5 1/2 months old and weighed 16 pounds, was found eligible for the program on account of being underweight. The Petitioner felt that since her son weighed 15 pounds 12 ounces and was only 3 months old, he must have been overweight, and eligible for the program. While it is evident that Antonio is on the heavy side of the normal range, it does not appear that his weight is of such magnitude to indicate malnourishment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered denying the application of Mattie Lewis for WIC Program benefits. RECOMMENDED this 11th day of August, 1978, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon W. Searcy, Esquire District One Department of Health and Rehabilitative Services 160 Governmental Center Pensacola, Florida 32501 Mattie L. Lewis 200 Hickory Street, #149 Pensacola, Florida
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against it.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a public food service establishment, the Lifestyle Café, located in Lauderdale Lakes, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a public food service establishment license (license number 16-18253R) authorizing it to operate the Lifestyle Café. On May 3, 2000, William Gubasko, an inspector with Petitioner, conducted an inspection of the premises of the Lifestyle Café. His inspection revealed, among other things, that: the automatic fire suppression system did not have a current certification tag; the light fixture in the walk-in refrigerator did not have a shield; the baseboard on the bottom of the walk-in refrigerator was "decayed" allowing "room temperature" air to seep into the refrigerator; and the kitchen hand sink was filled with pots and pans and therefore employees were not able to wash their hands in the sink. During his May 3, 2000, inspection, Mr. Gubasko issued and served on Respondent a written warning in which he advised Respondent that the conditions described above constituted violations of the law and that if these violations were not remedied by May 9, 2000, administrative penalties would be imposed against Respondent. Mr. Gubasko returned to the premises of the Lifestyle Café on May 9, 2000, and found that the violations described above had not been corrected. The Administrative Complaint that is the subject of the instant controversy was issued on June 19, 2000. Respondent has previously been disciplined by Petitioner (fined $300.00) for other wrongdoing ("fail[ing], neglect[ing], or refus[ing] to pay for [its] license" and operating without a license).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in Counts 1 through 4 of the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the amount of $1,600.00, which may be paid in one lump sum or in monthly installments of no less than $100, and suspending Respondent's license for a period of up to 12 months if it fails to pay the fine as required. DONE AND ENTERED this 31st day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2001.
The Issue Whether Petitioner violated provisions of Chapter 500, Florida Statutes the Florida Food Safety Act, and Chapter 5K-4, Florida Administrative Code, on April 28, May 12 and May 25, 1995 and if so, whether an administrative fine should be imposed for those violations.
Findings Of Fact Petitioner Dunkin Donuts is a retail bakery located at 2025 West New Haven Avenue, West Melbourne, Brevard County, Florida, and had a valid food permit during the relevant time period. Respondent, Department of Agriculture and Consumer Services, is charged with the administration and enforcement of Chapter 500, Florida Statutes, the Florida Food Safety Act, and the rules promulgated thereunder relating to food safety and the selling of food to the consuming public. Following a complaint by a consumer, Respondent's food safety inspectors conducted food safety inspections at Petitioner's place of business on four occasions. On inspections conducted on April 28, 1995, May 12, 1995, and May 25, 1995, Petitioner received an overall rating of "poor". Not until the fourth inspection which was conducted on June 8, 1995, did Petitioner receive an overall rating of "good". On April 28, 1995, an inspection determined that Petitioner held food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: food products improperly stored on the floor of the walk-in freezer; old dried food product spillage on the floor of the walk-in cooler, freezer and storeroom; unpackaged food product left uncovered in the storeroom; shell eggs improperly stored at internal temperature in excess of 60 degrees F.; employees without proper hair restraints; grease build up in several locations; unsealed wood table used for mixer; handwash sink inaccessible to employees. On May 12, 1995, a re-inspection determined that a few of the prior violations had been corrected. However, Petitioner continued to hold food items in an unsanitary environment and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; employees without proper hair restraints; improper use of pest strip in storeroom; no soap or hand drying device provided for employees; paint brush improperly used as pastry brush; cardboard improperly used as shelf liner and floor mats; and wiping cloths failed to be stored in sanitizing solution. On May 25, 1995, a re-inspection determined that several prior violations had not been corrected. Petitioner continued to hold food items in an unsanitary environment, and offered such food for sale to the consuming public. Among the violations observed were: improper storage of food; cardboard improperly used as shelf liner; improper use of pest strip; failure to provide soap or hand drying device in processing area; employees without hair restraints ; improper storage of equipment; wiping cloths failed to be stored in sanitizing solution; and failure to cover dumpster. Mr. Ornelas argues that he and his family and several employees operate the facility in an acceptable manner. They work long hard hours. They are baking donuts all the time and do not have time to keep the premises as clean as the inspectors insist. However, they do not offer unsanitary food to the consuming public, and the cited violations were eventually corrected; therefore, Petitioner should not be subjected to the payment of a fine, according to Mr. Ornelas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner be found guilty of numerous violations of the Florida Food Safety Act, on April 28, May 12 and May 25, 1995, and that final order be entered assessing an administrative fine in the amount of $2,000.00 against Petitioner. DONE and ENTERED this 9th day of January, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1996. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4 Rejected as subsumed or a comment on the evidence: paragraph 5. COPIES FURNISHED: Manuel Ornelas Officer and Director Dunkin Donuts 2025 West New Haven West Melbourne, Florida 32904 Linton B. Eason, Esquire Office of the General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0910
