The Issue Whether Respondent committed the violations alleged in the administrative complaints dated July 8, 2015, and September 30, 2015; and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: The Division is the state agency charged with regulating public lodging and public food service establishments pursuant to chapter 509. At all times material hereto, Respondent was licensed as a public food service establishment in the state of Florida by the Division. Pet. Ex. 1. The Division's first witness, Inspector Audain, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Audain has worked for the Division for approximately ten years as an inspector. Prior to working for the Division, Audain worked in the food industry as a managing partner at a restaurant in New York. Upon gaining employment in the Division, Audain was trained on the Food Code and the laws and rules pertaining to public food service establishments and public lodging establishments. Audain is also a certified food manager. Audain receives continuing education and training on a monthly basis. Audain performs more than 700 inspections each year. The Division's second witness, Inspector Howard, is employed by the Division as a sanitation and safety specialist at 5080 Coconut Creek Parkway, Suite A, Margate, Florida 33063. Howard has worked for the Division for approximately one and one- half years. Prior to working for the Division, Howard worked in the food industry as an executive chef at a Hilton Hotel in Tampa, a chef at a W Hotel in South Beach, and a chef at Los Hotel in South Beach. Upon gaining employment in the Division, Howard was trained on the Food Code and on the laws and rules pertaining to public food service establishments and public lodging establishments. Howard is also a certified food manager. Howard receives continuing education and training on a monthly basis. Howard performs approximately 800 inspections each year. "Basic Item" means an item defined in the Food Code as a Core Item. Fla. Admin. Code R. 61C-1.001(5) (January 1, 2013). "Basic violation" means a violation of a basic item, as defined in Florida Administrative Code Rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to general sanitation and does not meet the definition of high priority violation or intermediate violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "Intermediate violation" means a violation of an intermediate item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, which relates to specific actions, equipment, or procedures that contribute to the occurrence of a high priority violation, but does not meet the definition of high priority violation or basic violation and is not otherwise identified in subsection (6) of rule 61C-1.005. "High priority violation" means a violation of a high priority item, as defined in rule 61C-1.001 or a violation of chapter 509 or chapter 61C, determined by the Division to pose a direct or significant threat to the public health, safety, or welfare and is not otherwise identified in subsection (6) of rule 61C-1.005. DBPR Case No. 2015-029646 On July 1, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report setting forth the violation she encountered during the inspection. Pet. Ex. 2. On July 1, 2015, Audain notified Respondent of the cited violation. Ricardo Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 2. During the inspection on July 1, 2015, Audain observed roach activity present as evidenced by eight live roaches found crawling on the floor in the food service area, three live roaches crawling on the fryer in the kitchen, three live roaches found by the water heater in the kitchen, two live roaches found between the hose from the water heater and the wall, two live roaches found underneath the kitchen prep table, at least six live roaches found in the air conditioner closet, one live roach crawling on the wall next to the refrigerator, five live roaches crawling on the reach-in cooler by the door to the front service area, and one live roach crawling on the wall in the front service area of the establishment. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. Pet. Ex. 2. As a result of these observations, the Division entered an Order of Emergency Suspension of License and Closure against Respondent. The emergency order was issued on the same date as the inspection, July 1, 2015. Pet. Ex. 7. DBPR Case No. 2015-042510 On July 16, 2015, Audain performed an inspection of Latchman's Seafood Market and Grill, Inc. During this inspection, Audain prepared and signed an inspection report setting forth the violations she encountered during the inspection. Pet. Ex. 3. On July 16, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by July 17, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 3. On July 17, 2015, Howard performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Howard prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, inspection report had not been corrected. Pet. Ex. 4. On July 17, 2015, Howard notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 1, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 4. On September 2, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015, and July 17, 2015, inspection reports had not been corrected. Pet. Ex. 5. On September 2, 2015, Audain notified Respondent about the violations and informed Respondent that the violations needed to be corrected by September 3, 2015. Mr. Latchman signed the inspection report on behalf of Respondent. Pet. Ex. 5. On September 3, 2015, Audain performed a callback inspection of Latchman's Seafood Market and Grill, Inc. During the inspection, Audain prepared and signed an inspection report indicating that some of the violations noted on the July 16, 2015; July 17, 2015; and September 2, 2015, inspection reports had not been corrected. Pet. Ex. 6. The first violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. Audain observed employees engaging in food preparation without proper hair restraints. This is a violation because hair can be both a direct and indirect vehicle for contamination. Food employees may contaminate their hands when they touch their hair. Proper use of a hair restraint keeps dislodged hair from ending up in the food and may also deter employees from touching their hair. The Food Code defines the governing requirement for the first violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3, 5-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 367; Fla. Admin. Code R. 61C-1.005(5)(c). The second violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed equipment in poor repair as evidenced by a freezer chest door having filament (insulation) exposed. This is a violation because failure to properly maintain equipment could lead to violations of the associated requirements of the Food Code that place the health of the public at risk. Refrigeration units in disrepair may no longer be capable of properly cooling or holding potentially hazardous (time/temperature control for safety) foods at safe temperatures. The Food Code defines the governing requirement for the second violation as a Core Item. The Division has designated Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, p. 460; Fla. Admin. Code R. 61C-1.005(5)(c). The third violation was observed during the July 16, 2015; September 2, 2015; and September 3, 2015, inspections. During the July 16, 2015, inspection, Audain observed roach activity present as evidenced by four live roaches found nestled in crevices by the air conditioner in the kitchen and one live roach crawling on the floor in front of the reach-in cooler between the kitchen and front service area. During the September 2, 2015, inspection, Audain observed one live roach crawling on the kitchen floor. Audain also observed one dead roach in the dining room freezer and one dead roach near the kitchen door during her inspection on September 3, 2015. This is a violation because roaches can place the health of consumers at risk by transferring and transmitting bacteria and disease to food, food contact surfaces, and food storage areas. The Division properly designated this violation as a high priority violation. Pet. Ex. 3, 5-6; Fla. Admin. Code R. 61C-1.005(5)(a). The fourth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. The inspectors observed outer openings to the establishment not protected as evidenced by a rear door which was not self-closing. This is a violation because the presence of insects and rodents (which may transmit bacteria and disease to food) is minimized by protecting and securing outer door openings to the food establishment. The Food Code defines the governing requirement for the fourth violation as a Core Item. The Division has designated violations of Core Items as basic violations. Pet. Ex. 3-6; Food Code 2009 - Annex 3 Public Health Reasons/Administrative Guidelines, pp. 485-486; Fla. Admin. Code R. 61C-1.005(5)(c). The fifth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the manager's food manager certification upon request. This is a violation because managers are required to pass an approved food manager certification course and test which ensures managers have a higher level of knowledge regarding sanitation and food handling, preparation, and storage. Lack of the required knowledge can result in breakdowns in these processes. The Division has designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). The sixth violation was observed during the July 16, 2015; July 17, 2015; September 2, 2015; and September 3, 2015, inspections. During these inspections, the establishment failed to provide the inspectors with proof of the employees’ required state-approved employee training. This is a violation because employees of restaurants are required to have basic food safety training, which imparts knowledge of basic food handling skills, including proper glove use, procedures for food temperatures and hot/cold holding, cooking temperature requirements, and basic sanitation measures, such as personal hygiene and hand-washing. Lack of this knowledge can result in a breakdown in these processes, possibly leading to food-borne illness or unsanitary conditions. The Division properly designated this violation as an intermediate violation. Pet. Ex. 3-6; Fla. Admin. Code R. 61C- 1.005(5)(b). Respondent had one Emergency Order of Suspension of License and Closure filed with the agency clerk by the Division within the 12 months preceding the date the current administrative complaints were issued. The Emergency Order of Suspension of License and Closure was filed on July 7, 2015. Pet. Ex. 7.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Hotels and Restaurants, ordering Latchman's Seafood Market and Grill, Inc., d/b/a Latchman's Seafood Market and Grill, Inc., to pay an administrative penalty in the amount of $500.00 for the violation listed above in DBPR Case No. 2015-029646 and an administrative penalty in the amount of $1,650.00 in DBPR Case No. 2015-042510, for a total administrative penalty of $2,150.00, plus any applicable and authorized investigative expenses or costs, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date of the final order. DONE AND ENTERED this 5th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 5th day of May, 2016.
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 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.
