Fla. Admin. Code Ann. R. 5P-1.002 - Appeals
(1) Section
595.404, F.S. exempts the
department from Sections
120.569 and
120.57 -
120.595, F.S. Therefore, parties
seeking administrative review of proposed agency action by the department shall
follow the rules outlined herein.
(2) The department shall take agency action
against Sponsors, Recipient Agencies, or Food Service Management Companies in
connection to eligibility and the operation of Child Nutrition Programs, Food
Distribution Programs, and Farmers' Market Nutrition Programs by issuance of a
Notice of Action. The Notice of Action shall state the grounds upon which the
department's agency action is based and state that the Sponsors, Recipient
Agencies, or Food Service Management Companies have the right to appeal the
agency action. The Notice of Action shall be sent by certified mail, (or its
equivalent), by email or facsimile to the last known mailing address, facsimile
number, or email address. If the notice is undeliverable, it is considered to
be received by the Sponsor five (5) calendar days after being sent to the
Sponsor's last known mailing address, facsimile number, or email
address.
(3) The following agency
actions are appealable:
(a) A denial of an
application for participation;
(b)
A denial of a Sponsor's request for an advance payment;
(c) A denial of a Sponsor's claim for
reimbursement (except for late submission under
7 CFR
225.9(d)(6));
(d) The department's refusal to forward to
FNS an exception request by the Sponsor for payment of a late claim or a
request for an upward adjustment to a claim;
(e) A claim against a Sponsor or Recipient
Agency for remittance of a payment;
(f) The termination of the Sponsor, Recipient
Agency, or a Site;
(g) A denial of
a Sponsor's application for a Site; or
(h) The imposition of an administrative
fine.
(4) Requests for
appeal must be postmarked by the U.S. Postal Service (or an equivalent private
delivery service) or emailed to the department no more than fourteen (14)
calendar days from the date the Notice of Action was deemed received by the
Sponsors, Recipient Agencies or Food Service Management Companies. Failure to
timely request an appeal shall result in the entry of a default final
determination.
(5) A request for
appeal shall:
(a) Be in writing;
(b) Include the date the Sponsor's Recipient
Agencies, or Food Service Management Companies ("Appellant") received the
Notice of Action;
(c) Include the
name, address, any email address, any facsimile number, and telephone number of
the Appellant;
(d) Clearly identify
the charges or action being appealed and state an appealable action; as
provided under subsection (3) in this part;
(e) Include a clear and concise statement of
the specific facts the Appellant contends warrant reversal or modification of
the department's proposed action;
(f) A statement of the specific rules,
statutes, or regulations, if any, the Appellant contends require reversal or
modification of the agency's proposed action, including an explanation of how
the alleged facts relate to the specific rules, statutes, or
regulations;
(g) Include a
statement of the relief sought by the Appellant;
(h) Include a copy of the Notice of Action
issued; and,
(i) State whether an
in-person hearing, telephonic or video hearing, or a review of written
documentation is desired to refute the charges contained in the Notice of
Action and shall be signed by the authorized representative or legal counsel,
if retained. If a hearing is not specifically requested, the appeal shall be by
review of written documentation.
(6) From the date the department receives the
appeal, the department shall make available to the Appellant upon request, any
information on which the action was based.
(7) To refute the Notice of Action the
Appellant may submit written documentation for review by the hearing official
either with the request for appeal or the Appellant must indicate in its
request for appeal that such documentation will be submitted to the hearing
official within seven (7) calendar days of the date Appellant submitted the
request for appeal.
(a) The written
documentation submitted by the Appellant must be postmarked by the U.S. Postal
Service (or an equivalent private delivery service) or emailed to the
department no more than seven (7) calendar days from the date the Appellant's
request for appeal was postmarked by the U.S. Postal Service (or an equivalent
private delivery service) or emailed to the department.
(b) The department will have seven (7)
calendar days from the date the department received the Appellant's request for
appeal to submit the written documentation upon which the agency action was
based to the designated hearing official.
(c) Any written documentation received after
the seven-day deadline shall not be considered for review.
(8) The request for appeal and all written
documentation shall be submitted by email to the department at
fnwappeals@fdacs.gov, or by mail to the department at 600 S. Calhoun Street
(H2), Tallahassee, FL, 32399, Attention: Hearing Official. Regardless of
whether it is emailed or mailed, the request for appeal must be postmarked by
the U.S. Postal Service (or an equivalent private delivery service) or emailed
to the department no more than fourteen (14) calendar days from the date the
Notice of Action was deemed received by the Appellant, and all written
documentation must be postmarked by the U.S. Postal Service (or an equivalent
private delivery service) or emailed to the department no more than seven (7)
calendar days from the date the request for appeal was postmarked by the U.S.
Postal Service (or an equivalent private delivery service) or emailed to the
department.
(9) If a hearing is
requested, it shall be held within fourteen (14) calendar days of the date the
department received the request for appeal, unless otherwise agreed to by both
parties. The hearing shall not be held prior to the time expiration for the
submission of written documentation by both parties in accordance with
subsection (7) of this rule. The Appellant shall be provided with at least five
(5) calendar days' written notice, sent via certified mail, return receipt
requested, of the time and place of the hearing. The hearing official shall
conduct the hearing in accordance with this rule.
(a) If a hearing is requested, the Appellant
shall appear before the hearing official and provide oral testimony in refute
of the grounds for which the department's Notice of Action is based. Any
documentation the Appellant relies upon during the hearing shall be related to
or in connection with the department's Notice of Action and submitted in
accordance with subsection (7) of this rule. The hearing official may conduct
an examination of the testimony provided by the Appellant or its representative
at the hearing. The Appellant may represent itself, retain legal counsel, or
may be represented by another person at the hearing. Failure of the Appellant's
representative to appear at a scheduled hearing shall constitute the waiver of
the right to a personal appearance before the hearing official unless the
review official agrees to reschedule the hearing.
(b) A department representative shall be
allowed to attend the hearing to respond to the Appellant's testimony and
written documentation and to answer questions from the hearing official. The
department representative shall be allowed to answer direct questions from the
Appellant to clarify the representative's response to testimony.
(c) Post-hearing. Briefs, legal memoranda and
proposed final determinations will not be permitted. Written documentation
shall be submitted in accordance with subsections
5P-1.002(7) through
(8), F.A.C.
(10) The hearing official shall be a
department employee who is independent of the original decision-making process
that led to the proposed agency action.
(11) The department shall record the hearing
through a sound or video recording device.
(12) Within five (5) business days after the
hearing, or within five (5) business days after receipt of written
documentation from both parties if no hearing is held, the hearing official
shall issue a Final Determination based on a full review of the information
provided by both parties, and on applicable program regulations. The Final
Determination shall be sent to the Appellant via certified mail, return receipt
requested.
(13) When computing time
under this rule, if the last day is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday. Any request for appeal or written documentation
received by the department by email, U.S. mail, or an equivalent private
delivery service before 5:00 p.m. shall be filed as of that day but any
document received after 5:00 p.m. shall be filed as of 8:00 a.m. on the next
business day.
(14) The actions of
the department remain in effect during the appeal process. The Appellant may
continue to operate the program during an appeal of termination, and if the
appeal results in overturning the action of the department, reimbursement shall
be paid for meals served during the appeal process. Such continued program
operation shall not be allowed if the action of the department is based on
imminent dangers to the health or welfare of children. If the Appellant has
been terminated for this reason, the department shall so specify in its Notice
of Action.
(15) The determination
made by the department's hearing official is the final administrative
determination to be afforded to the Appellant.
(16) Any party adversely affected by the
determination is entitled to seek judicial review pursuant to rule 9.110(a)(2)
of the Florida Rules of Appellate Procedure, which must be initiated by filing
a Notice of Appeal with the department's Agency Clerk, 407 S. Calhoun Street,
Tallahassee, FL 32399, within thirty (30) days of the date of the
determination. A copy of the Notice of Appeal, accompanied by the prescribed
filing fee, must be filed with the Clerk of the District Court of Appeal in the
district where the sponsor is located or the First District Court of Appeal at
2000 Drayton Drive, Tallahassee, Florida 32399.
Notes
Rulemaking Authority 570.07(23), 595.404(4), (10), (11) FS. Law Implemented 595.404 FS.
New 3-22-66, 4-11-70, 4-19-73, Repromulgated 12-5-74, Amended 6-28-83, Formerly 6A-7.41, 6A-7.040, Amended 6-21-18, 12-16-18, 9-5-23.
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