The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated December 22, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. See § 509.032, Fla. Stat. (2004). Respondent is a food service establishment licensed and regulated by the Department. On October 11, 2004, Will Goris, a sanitation and safety specialist employed by the Department, inspected the premises of Respondent. During the inspection, Mr. Goris noted that, among other things, "the manager had no proof of food manager certification," "observed no proof of employee training available," and "the fire extinguisher in the rear storage area was tagged 8/03." Mr. Goris prepared a Food Service Inspection Report setting forth his findings. It is Mr. Goris' practice to go over the contents of the report with the manager of the food service establishment and to allow the establishment time to correct any violations. He normally re-inspects the establishment within two weeks to 30 days of the initial inspection, and, if he finds that measures have been taken to correct the violations, he gives the establishment an extension of time in which to complete the corrections. Mr. Goris re-inspected the premises of Respondent on October 29, 2004, and found that the establishment had not corrected three of the violations noted during the October 11, 2004, inspection. First, Respondent's food service manager did not have a current certificate. Second, Respondent did not provide proof that its employees had received food safety training. Finally, the fire extinguisher had not received current maintenance. When Mr. Goris returned on November 16, 2004, while the fire extinguisher problem had been corrected, the other two deficiencies were present. John O'Neil acknowledged the deficiencies and offered plausible excuses for each. For example, attempts were made to enroll in the food manager's certification course but classes were filled during the relevant times. Mr. O'Neil believed that he had been given an extension by Mr. Goris. Mr. Goris denied this, but recalled having called a supervisor during one inspection visit to discuss an extension. Mr. O'Neil's failure to immediately correct the noted deficiencies may have been a result of a misunderstanding regarding the time he had to accomplish the task. Notwithstanding the noted violations, Respondent is a well- maintained establishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, enter a final order finding that Respondent violated Section 509.039, Florida Statutes (2004); Florida Administrative Code Rule 61C-4.023(1); and National Fire Protection Association Life Safety Code 10, 4-4.1, and imposing a fine in the total amount of $250.00. DONE AND ENTERED this 1st day of December, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 1st day of December, 2005. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 John M. O'Neil O'Neil of Boston 2849 South Orange Avenue, Suite 310 Orlando, Florida 32806 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent is guilty of violating National Fire Protection Rule 10, 4-4.1, Sections 509.039 and 509.049, Florida Statutes, and Florida Administrative Code Rule 61C-4.023(1) as charged in the January 25, 2005, Administrative Complaint; and if so, what discipline is appropriate.
Findings Of Fact At all times material, Respondents, Lorenzo and Francenia Greene, held a 2014 license for "Fran's Floating Ribs" at North Market Street, in Webster, Florida, having been issued license numbr 7050128. Such licenses are issued and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants (Agency). At all times material, Respondent's address was 524 North Market Street, Webster, Florida 33597. However, it appeared at hearing that the property and/or business has been sold since the Administrative Complaint was filed. At all times material, John Dancho was employed by the Agency as a Sanitation and Safety Specialist. Mr. Dancho has been an inspector for five years. Prior to that, he worked for a restaurant chain called the "Victoria Station Restaurants" for 11 years. Mr. Dancho has earned an AAS degree in hotel/restaurant management from Paul Smith College and a B.S. in hotel/restaurant management from Florida International University. When Mr. Dancho joined the Agency he was formally trained and standardized in the rules and laws regulating public lodging and food service. Additionally, Mr. Dancho has completed ongoing continuing education training for food service, lodging, and fire certification. Mr. Dancho conducts between 600 to 900 inspections for the Agency each year. On October 25, 2004, Mr. Dancho inspected the premises of Fran's Floating Ribs Restaurant. During the inspection, Mr. Dancho prepared a Food Service Inspection Report setting forth his findings. On that date, Mr. Dancho had observed that there was no proof on the premises of food manager certification and no proof of employee training done by the food manager. He also observed a fire extinguisher with a tag that was out-of-date. He further observed problems with the hot and cold water at the employee hand washing sink and that a light shield was missing from the lights inside the unit. Mr. Dancho informed Respondent, Lorenzo Greene, that the fire extinguisher violation needed correction by November 8, 2004; that the food manager's certification and employee training needed correction by November 25, 2004; and that Respondent had until the next routine inspection to correct the other violations. On January 10, 2005, Mr. Dancho re-inspected Fran's Floating Ribs Restaurant. During his inspection, Mr. Dancho prepared a Call Back/Re-inspection Report, setting forth his findings from the re-inspection. On January 10, 2005, Mr. Dancho observed that some of the violations that were in the warning status from the previous inspection, October 25, 2004, had been corrected, but that other violations had not yet been corrected. The hot water at the hand washing sink and the light shield had been corrected. However, Mr. Dancho observed that the following violations had not been corrected: lack of food manager certification on site; lack of employee training on site; portable extinguisher with an out-of-date tag; and no cold water at the hand washing sink. A critical violation is a violation of the utmost importance which needs immediate correction. A non-critical violation is a violation that is not a critical violation, but one that needs to be corrected over an acceptable period of time, usually thirty (30) days or three (3) months. Mr. Dancho testified that lack of proof of food manager certification is a critical violation, because a food manager must be able to ensure the proper operation, safety and sanitation of the unit. He also must be able to train employees in the proper handling of food procedures, and in sanitation and safety of the unit. On January 10, 2005, Mr. Dancho also observed that there was no proof on site of employee training by the certified food manager. Because the food manager is responsible for everything that goes on in the unit and the employees need to have the knowledge required for proper food handling and sanitation techniques, this, too, was a critical violation. On January 10, 2005, Mr. Dancho also observed a portable fire extinguisher with an out-of-date tag. He testified that this, too, was a critical violation. The Florida Fire Code requires fire extinguishers to be checked annually by a registered or certified technician to ensure that they are functional and will work, if needed. Without an up-to-date tag, it may be logically assumed that the fire extinguisher on the subject property had not been inspected within the current annual cycle. Apparently, Respondent's sister, G. Burgohy, was in charge of the premises and signed as receiving the call-back/re- inspection form from Mr. Dancho. (P-3.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order as follows: Requiring Respondent to pay an administrative penalty in the amount of $500.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date this Order is filed with the Agency clerk, and Further, Respondent shall attend an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 7th day of July, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 7th day of July, 2006. COPIES FURNISHED: Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 42 Tallahassee, Florida 32399-2202 Geneva Burgohy 557 Northwest 3rd Street Webster, Florida 33597 Lorenzo Greene Fran's Floating Ribs 12 Berry Court Mascotte, Florida 34753 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue This issues in this proceeding are whether Respondent, in violation of Chapter 509, Florida Statutes (2004), committed acts alleged in the Administrative Complaint dated April 16, 2004, and, if so, what disciplinary action should be taken against the license held by Respondent.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made during the final hearing, and the entire record compiled herein, the following relevant and material facts are found: At all times material hereto, Respondent, Bacco's Restorante Italliano, a food service and eating establishment, was licensed and regulated by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, having been issued license number 6804773-R, type 2010, a Permanent Food Service license. Respondent's facility is located at 23 North Lemon Avenue, Sarasota, Florida. Andrea Posani testified that he was a "party of interest" in the proceeding because he had a financial interest in Bacco's Restorante Italliano, a food service and eating establishment, and he possessed authority to speak on behalf of (and represent) Respondent, Bacco's Restorante Italliano, licensee. Petitioner's witness, Daniel Erdman, deputy district manager (for three months) and senior sanitation safety specialist for the preceding five years (1999 through 2004) in Manatee and Sarasota counties, earned his Bachelor of Science degree from Florida State University with a major in hospitality administration. Mr. Erdman conducts more than 1,500 inspections annually. Mr. Erdman described a "critical violation" in the food business as violation of any of the Florida Statutes, the Florida Administrative Code rules, and the Food Code, that "has more of a potential for food borne ailments." Mr. Erdman has been Petitioner's inspector of Respondent's business for more than four years in both locations, first, on Main Street and, now, on Lemon Street, in Sarasota, Florida. Mr. Erdman, on March 1, 2004, inspected Respondent's business, noted violations on DBPR Form HR 5022-014 that was signed by Mr. Erdman and Claudia Zecchin-Moschini (Claudia Zecchin at the time of signing), and a copy was given to Ms. Zecchin-Moschini. Thereon was the "callback date/time that informs Respondent of both the time to correct noted violation(s) and the inspection return date. The Administrative Compliant alleged the following critical violations of Chapter 509, Florida Statutes (2003), Florida Administrative Code, and/or rules of the Division of Hotels and Restaurants noted during the March 1, 2004, inspection: 27-22 5-202.12 FC Handwashing Facility, Installation. (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least . . . (110 degrees Fahrenheit) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory. (C) A self-closing, slow-closing, or metering faucet shall provide a flow of water for at lease 15 seconds without the need to reactivate the faucet. (D) An automatic handwashing facility shall be installed in accordance with manufacturer's instructions. Observed no cold water provided at handsink (Bar) 2. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A handwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (B) in, or immediately adjacent to, toilet rooms. Observed missing handsink at dishwashing machine/cold prep area (removed) 3. 31-10 5-204.11 & 6-401.10 FC Handwashing Facility. Conveniently Located. A hadwashing facility shall be located: (A) To allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (b) in, or immediately adjacent to, toilet rooms. Observed no handsink provided in prep area, bread station service area in dining room without a handwashing sink. Bread station was removed from dining room on 3.15.2004 on reinspection evidence of bread station observed on 4.02.04 4. 53B-01 509.049 FS Food Service Employee Training. The Division shall adopt, by rule, minimum food safety protection standards for the training of all food service employees who are responsible for the storage, preparation, display, or serving of foods to the public in establishment regulated under this chapter. These standards shall not include an examination, but shall provide for a food safety training certificate program for food service employees to be administered by a private nonprofit provider chosen by the Division. Any food safety training program established and administered to food handler employees prior to the effective date of this act shall be submitted by the operator to the Division for its review and approval. It shall be the duty of the licensee of the public food service establishment to provide training in accordance with the described rule to all employees under the licensee's supervision or control. The licensee may designate a certified food service manager to perform this function as an agent of the licensee. Food service employees must receive certification pursuant to this section by January 1, 2001. Food service employees hired after November 1, 2000, must received certification within 60 days after employment. Certification pursuant to this section shall remain valid for 3 years. Observed no proof or required employee training 11 employees over 60 days employed (Reihou, Terrence, Paolo) [Emphasis added] Mr. Erdman, on March 15, 2004, returned and inspected the facility, finding violations 27-22, 31-10, and 45-14. These violations were granted time extension for correction to April 2, 2004. Mr. Erdman returned on April 2, 2004, and inspected the facility, identifying seven violations (two 27-22s, three 31- 10s, and two 53B-01s). During this reinspection, Mr. Erdman entered, in the comment section of his inspection report "note plumber scheduled for sink installation, water to bar tomorrow. Employee food safety training booklets ordered [training not completed]. Bread baskets, plated [sic], bread warmer, crumbs etc. observed in dining area/no hand sink provided." This report was not a warning as were the prior inspection reports; this report recommended filing of an administrative complaint. Respondent's witness, Ms. Zecchin-Moschini, when asked by Respondent, could not recall circumstances pertaining to each alleged violation. Her answers, on both direct and cross examinations, consisted primarily of "I don't remember," on four separate occasions. "I don't remember" is the answer given when Ms. Zecchin-Moschini was asked about the location of the sink and the present location of the beer cooler. This witness acknowledged that she did not have food management training: Yes, I don't have the training for these people. They were being coming from another restaurant, working there for a couple years, and I didn't ask them if they have any. I never got it. The only one that was there was Paolo that he didn't have. Mr. Posani admitted having no personal knowledge of the sink location violation and having no personal knowledge regarding the food management training violations for three of his employees. The record was left open for ten days for post- hearing submission of documentation of training, and none was submitted at the entry of this Recommended Order. Mr. Posani offered no credible and material evidence that could be considered a legal challenge to violations itemized in the Administrative Complaint and established by Respondent's witness' unrefuted testimony and exhibits in evidence. Petitioner proved, by clear and convincing evidence, each specific allegation against Respondent contained in the Administrative Complaint filed in this cause. Petitioner's compliance with cited Florida Statutes and cited rules of the Florida Administrative Code permits the imposition of penalty against Respondent for violations hereinabove found.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order: Finding Respondent guilty of violating Subsection 509.049(5), Florida Statutes (2004), and Sections 5-202.12, 5-204.11, and 6-401.10 of the Food Code, incorporated by reference and applicable to Florida Administrative Code Chapters 61C-1, 61C-3, and 61C-4; and Imposing an administrative penalty in the amount of $250.00 per violation for a total penalty amount of $1,000.00, due and payable to: Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date the final order is filed with the agency clerk. DONE AND ENTERED this 5th day of July, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 5th day of July, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Andrea Posani 23 North Lemon Avenue Sarasota, Florida 34236 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Respondent violated Section 509.049, Florida Statutes,1/ by using an unapproved food safety training program.
Findings Of Fact Parties The Division is the state agency responsible for licensing and regulating food service establishments pursuant to Part I of Chapter 509, Florida Statutes. Respondent is the owner and operator of a licensed food service establishment located in Tallahassee. FRLA is a trade association that represents the interests of the hospitality and tourism industry in Florida. FRLA’s Interest in this Disciplinary Proceeding One of FRLA’s primary purposes is to educate its members and to promote their compliance with Florida laws. FRLA was involved in the lobbying efforts that led to the passage of Section 509.049, Florida Statutes, which requires all food service employees to undergo food safety training. FRLA owns and administers a food safety training program known as SafeStaff. The SafeStaff program is the food safety training program contracted by the Division pursuant to Section 509.049(2), Florida Statutes. The SafeStaff program has been the state-contracted program since October 2000. As a result of its designation as the state-contracted food safety training program, the SafeStaff program is the only training program -- other than “grandfathered” programs approved under Section 509.049(3), Florida Statutes -- that can be used to train food service employees in Florida. FRLA is authorized to charge a “per employee fee to cover the contracted price for the program.” It was stipulated that the use of an unapproved program to train food service employees adversely impacts FRLA because those employees would likely have otherwise had to use the state-contracted SafeStaff program and pay the per-employee fee to FRLA. Respondent’s Approved Food Service Training Program (1) Submittal, Approval, and Subsequent Non-Use On June 30, 2000, Respondent submitted to the Division for approval a food safety training program that was provided to it by the Florida Restaurant Association (FRA), which is the predecessor to FRLA.2/ Respondent submitted the FRA-provided program pursuant to Section 509.049, Florida Statutes (2000), which stated in pertinent part: Any food service training program established and administered prior to July 1, 2000 shall be submitted by the operator to the division for its review and approval. If the food safety training program is approved by the division, nothing in this section shall preclude any other operator of a food service establishment from also utilizing the approved program or require the employees of any operator to receive training or pay a fee to the division’s contracted provider. The program submitted by Respondent was called SafeStaff, just like FRLA’s current program. The program consisted of the ServSafe program prepared by the National Restaurant Association Educational Foundation along with sections on food-borne illnesses and vermin control that were required by Florida law but were not addressed in the ServSafe program. The program submitted by Respondent was established prior to July 1, 2000, and was administered to Respondent’s food service employees on June 29 and 30, 2000. The Division approved the program submitted by Respondent in a letter dated December 1, 2000. The letter stated in pertinent part: The Division of Hotels and Restaurants has reviewed the food safety program submitted pursuant to Section 509.049, Florida Statutes, and has determined that it is in substantial compliance with the standards and criteria adopted by the Division for food safety training. This program is therefore approved for utilization by any public food service establishment for the required training of its food handler employees, subject to the following conditions: * * * 4. The food safety training curriculum areas may not be deleted or reduced, but must continue to meet or exceed the food safety training standards established by the Division, as amended from time to time. (Emphasis supplied). Thus, as of December 1, 2000, the program submitted by Respondent was considered an approved, or “grandfathered,” program that could be used to train food service employees in lieu of the state-contracted program. In 2004, the Legislature amended Section 509.049, Florida Statutes, to require providers of approved food safety training programs to submit certain information to the Division when the program is used to train employees of other food service establishments. This reporting requirement does not apply when the provider uses its approved program to train its own employees. The 2004 amendments to Section 509.049, Florida Statutes, also established a deadline for submitting food service training programs for approval as a grandfathered program. Specifically, subsection (3) of the statute was amended to require the program to be “submitted by the operator or the third-party provider to the division for its review and approval on or before September 1, 2004.” The Division assigned a unique “Provider ID Number” to each approved food safety training program to be used by the provider when reporting the required training information to the Division. Respondent’s approved program –- the FRA-provided SafeStaff/ServSafe program submitted by Respondent on June 30, 2000, and approved by the Division on December 1, 2000 -- was assigned Provider ID Number 7148473. Respondent never used its approved training program to train its own employees. Instead, it purchased the training programs from FRA and FRLA or it hired employees who had already undergone training at a culinary school. Respondent never used its approved training program (or any other training program) to train employees of other food service establishments, as more fully discussed in Part C(4), below. (2) Sale of the Program to FAMOS In May or June 2008, Respondent was approached by Rick Wallace, the president of FAMOS, about purchasing Respondent’s approved training program. Respondent’s owner, Eric Favier, did not know that Respondent even had an approved program when he was first approached by Mr. Wallace. Indeed, Mr. Favier credibly testified that after the program was approved, it was “put into a drawer” and forgotten about. Mr. Favier relied upon Mr. Wallace’s representations that Respondent had an approved program, and he agreed to sell the program to FAMOS because Respondent was not using, and had no use for, the program. On July 1, 2008, Respondent and FAMOS executed a document titled “Sale Agreement for Licensure of Florida Approved Food Safety Program” (hereafter “the Sale Agreement”) pursuant to which Respondent agreed to sell “the entire license rights and ownership of [its] Florida approved employee food safety training program” to FAMOS. The Sale Agreement required Respondent to “release all ownership and licensing rights of [the] Program commencing at the signing of this agreement.” The agreement further provided that “payment of 10% of the Gross Profit[3/] shall constitute she complete sale of the food safety training program.” The Sale Agreement included a confidentiality provision that precluded the parties from disclosing any of the terms of the agreement. The confidentiality provision was removed through an “Addendum to Sale Agreement” dated October 27, 2008. Respondent has not yet received any money from FAMOS for the sale of the program. However, Mr. Favier testified that he expects to receive money in the future once FAMOS starts earning a profit from the sale of the program. There is no statute, rule, or Division policy that precludes the owner of an approved program from selling the program. Nor is there any statute, rule, or Division policy precluding the purchaser of the program from using the program to train employees of any food service establishment. Respondent was not involved in any way with the use of the program after it was sold to FAMOS. Indeed, on this point, Mr. Favier credibly testified “when I sold the program to Mr. Wallace, I sold it, so I have no idea what he did with it.” It was not until October 28, 2008 (the day after the confidentiality provision was removed from the sale agreement), that the Division was first informed that Respondent’s approved program had been sold to FAMOS. And, it was not until December 12, 2008 (several weeks after the filing of the Administrative Complaint and several days after the filing of Respondent’s petition for hearing4/), that the Division was first provided a copy of the Sale Agreement. The Division has not formally recognized the change of ownership of the program through, for example, an amended license or Provider ID Number issued to FAMOS, and no clear request for such agency action has been made by Respondent or FAMOS. Thus, even though as discussed below, the contact information for the Respondent’s approved program is that of FAMOS, the Division still considers Respondent to be the licensee of record for the program. (3) “Branding” of the Program as TrainSafe On September 24, 2008, Mr. Wallace sent an e-mail to the Division stating: We are in the process of promoting Chez Pierre’s approved food safety program which has been named TrainSafe. How can we add to the Chez Pierre approved list line the name of the program? (Emphasis supplied). Mr. Wallace did not inform the Division that FAMOS had purchased Respondent’s approved training program, nor did he request that Provider ID Number 7148743 be transferred from Respondent to FAMOS. The Division staff advised Mr. Wallace that the request must come from Respondent on its letterhead because Respondent was the license holder for the program. On or about October 13, 2008, the Division received a letter from Mr. Favier on Respondent’s letterhead. The letter was handwritten by Mr. Favier, but the substance of the letter was provided to him by Mr. Wallace. Mr. Favier’s letter stated in pertinent part: Chez Pierre’s proprietary approved food safety program has been branded as TrainSafe® and is being marketed to the restaurant industry in Florida. (Emphasis supplied). Please add the Trainsafe® name to Chez Pierre’s name on the approved food safety list. Please replace Karen Cooley with Rick Wallace as the provider contact . . . . Mr. Favier did not inform the Division that Respondent had sold its approved training program to FAMOS, nor did he request that Provider ID Number 7178743 be transferred from Respondent to FAMOS. The record does not clearly establish why Mr. Wallace and/or Mr. Favier did not inform the Division of the sale of Respondent’s approved program to FAMOS. However, the inclusion of the confidentiality provision in the Sale Agreement suggests a specific intent to keep the facts concerning the sale from third-parties, including the Division. On October 16, 2008, the Division updated its list of approved food safety training programs to change the designation of Respondent’s approved program from “Chez Pierre” to “Chez Pierre/TrainSafe” and to change the contact information for the program to that of FAMOS. The Division made this change without reviewing any documents associated with the TrainSafe program because it had no reason to believe at the time that the “branding” of Respondent’s program as TrainSafe was anything more than a renaming of the program. Indeed, that is all that it was represented to be by Mr. Wallace and Mr. Favier in their communications with the Division. On November 12, 2008, FRLA filed a petition challenging the addition of the TrainSafe name to the Division’s list of approved food safety training programs. FAMOS was permitted to intervene in that case, DOAH Case No. 08-5839, based upon the allegation that it was the owner of Respondent’s approved food safety training program. On or about December 1, 2008, while the case was still pending at DOAH, the Division removed the TrainSafe name from the list of approved food safety training programs. The Division did not change the contact information for the program on the list back to Respondent’s address.5/ The contact information remained that of FAMOS, and, as result, any communications from the Division relating to the program would have gone to FAMOS, not Respondent. On December 11, 2008, the attorney for Respondent and FAMOS sent a letter to the Division formally withdrawing Mr. Favier’s request that the TrainSafe name be added to Respondent’s name on the Division’s list of approved food safety training programs. Thereafter, on December 17, 2008, the file in DOAH Case No. 08-5839 was closed as moot. The Order Closing File stated in pertinent part: The proposed agency action that [FRLA] sought to influence through its Petition for Administrative Hearing was [the Division]’s approval of Chez Pierre’s request to add the TrainSafe name to its name on [the Division]’s approved food safety training provider list. The request that resulted in that proposed agency action has been withdrawn, which, as acknowledged by [FRLA] it its response to the motion, “has the effect of negating [the Division]’s proposed agency action granting Chez Pierre’s request.” There is no additional relief that can be granted to [FRLA] in this proceeding and, therefore, this case is moot. (4) Use of the Program’s Provider Number by FAMOS The first instance of Provider ID Number 7148473 -- the number assigned to Respondent’s approved food safety training program -- being used to train food service employees was on October 11, 2008, which is more than three months after the Sale Agreement was executed by Respondent, but prior to the addition of the TrainSafe name to the Division’s list of approved food safety training programs. Provider ID Number 7148473 was reported to the Division as the “provider” of the training for a total of 166 food service employees at 26 different establishments between October 11, 2008, and January 29, 2009. The name of the program reported for each of the 38 employees trained between October 11 and November 18, 2008, was “TrainSafe.” The names of the programs reported for the 26 employees trained between November 21 and 24, 2008, were “TrainSafe” (11 employees) and “Chez Pierre” (15 employees). The name of the program reported for each of the 102 employees trained after November 24, 2008, was “Chez Pierre.” The training of these food service employees was provided by, or pursuant to training programs sold to the establishments by, FAMOS. There is no credible evidence that Respondent was involved in any way in the training of these food service employees. The TrainSafe Program as an “Approved Program” The TrainSafe program purports to be “a revision of the approved food safety program listed as Chez Pierre on the approval list with the state . . . . State Provider No. 7148473.” The TrainSafe program meets the minimum standards established in the Food Code. There is no statute, rule, or Division policy that limits the revisions to the style, content or presentation of an approved program so long as the program continues to meet the minimum standards established in the Food Code. Nevertheless, the Division staff determined that the TrainSafe program is not merely a revision of Respondent’s approved food service training program, but rather an entirely different program than the program submitted by Respondent and approved by the Division in 2000. This determination was based primarily upon the differences in language, layout, and format between the two programs. When asked to explain the dividing line between a permissible revision/update to an approved program and an impermissible conversion to a different program, Division witness Richard Akin6/ logically testified: What I would typically look at as a revision is when the food code is updated. To give you an example, hot water was originally defined as 110 degrees, it has been subsequently redefined as 100 degrees, so that would be a revision to meet the food code. There’s also -- at one point hot food was supposed to be held at 140 degrees, it’s now held at 135, so that revision would need to be into any approved training program. THE COURT: What about the reformatting component? What -- where is the dividing line between permissible reformatting and impermissible, using my words, impermissible changing of programs? THE WITNESS: The Division doesn’t really have a policy on that. We would just look at the statute, and there’s nothing that’s stated in there. This testimony is consistent with the December 1, 2000, letter approving the FRA-provided program submitted by Respondent. The letter implicitly recognizes a distinction between the specific program –- “this program” – that was determined to meet the requirements for grandfathering and the program’s “curriculum areas” that must be updated to reflect the periodic changes in the minimum standards in the Food Code. Even a cursory review of the TrainSafe program (Joint Exhibit 12) and the program submitted by Respondent and approved by the Division in 2000 (Joint Exhibit 1) support the Division staff’s determination. The only similarities between the programs are the subjects covered. The wording, layout, format, order of presentation, test questions, theme, pictures, and diagrams used in the programs are entirely different. Every food safety training program must meet the minimum standards established by the current edition of the Food Code, so the fact that the TrainSafe program addresses the same subjects as did Respondent’s approved program is not determinative as to whether it is the same program. The TrainSafe program, as such, was not in existence prior to July 1, 2000. The TrainSafe program, as such, was not administered to food service employees prior to July 1, 2000, nor was it submitted to and approved by the Division prior to September 1, 2004, as required for grandfathering under Section 509.049(3), Florida Statutes. The conversion of Respondent’s grandfathered food safety training program into the TrainSafe program had the effect of transforming Respondent’s approved program into an unapproved program because the program, in its current form (i.e., as TrainSafe), no longer meets the requirements of Section 509.049(3), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 15th day of April, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2009.
