Findings Of Fact 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: 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. Provide the approved WIC foods to participant at the same price or less than the price charged other customers. 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 months upon substantiation of abuse of the WIC Program including, but not limited to the following: 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. 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. 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. 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. 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.
The Issue At issue in this proceeding is whether Respondent's public food establishment license should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: At all times relevant to this proceeding, Respondent, Thai Café, operated a public food service establishment, located at 4200 Tamiami Trail, Unit 14, Port Charlotte, Florida 33952-9233. Respondent's license, number 18-01285-R, expired on December 1, 1999, and was not renewed until March 22, 2000. Lisa Marie Wofford was, at all times relevant to this proceeding, a sanitation and safety specialist for the Division of Hotels and Restaurants, acting primarily as a restaurant inspector. On January 10, 2000, Ms. Wofford inspected Respondent's restaurant, which was open and operating. She found several violations of food service rules that she enumerated on a food service inspection report. The report warned Respondent that it had 10 days, until January 20, 2000, to correct the violations. Ms. Wofford entered a question mark on the report beside the license expiration date, because she could not at that time confirm when Respondent's license would expire. On January 20, 2000, Ms. Wofford conducted a "call back" inspection of Respondent's restaurant, which was open and operating. She found violations of food service rules, which she enumerated on a call back/reinspection report. Ms. Wofford testified that she could not recall whether she looked for Respondent's license on this call back inspection. On March 7, 2000, Ms. Wofford conducted a routine food service inspection of Respondent's restaurant, which was open and operating. She found Respondent in violation of food service rules and found that Respondent failed to display a current license. She enumerated these violations on a food service inspection report. Ms. Wofford noted on this report that Respondent was operating its restaurant without a license. Ms. Wofford testified that during the inspection, the owner told her that he had "mailed the license fee already, yesterday." At all times relevant to this proceeding, Karlin Dorothy Kahl was a management review specialist and compliance coordinator for the Division of Hotels and Restaurants, District 6, and was a custodian of the records maintained at the district office in Fort Myers. Ms. Kahl testified that the Division's records reflected that Respondent's license expired on December 1, 1999. The records also reflected that the license fee was not received by the Department until March 22, 2000, well after Ms. Wofford's inspections of January 10, January 20, and March 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent shall pay an administrative fine of $1,000, to be reduced to $500 if paid within 10 days of the date the final order is entered in this proceeding. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001. COPIES FURNISHED: Thai Café 3135 Cortez Road Fort Myers, Florida 33901 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
