Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2768 _____________________________ DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. THE HENRY AND RILLA WHITE FOUNDATION, INC., Appellee. _____________________________ On appeal from the Department of Agriculture and Consumer Services. Marisa Atherley, Hearing Officer. June 10, 2021 PER CURIAM. Appellant, Florida Department of Agriculture and Consumer Services (DACS), appeals an administrative final determination rejecting its attempt to recoup alleged improper payments made to Appellee, the Henry and Rilla White Foundation (the Foundation), for participation in the National School Lunch Program. Finding no reversible error, we affirm. DACS is the state agency responsible for administering federal child nutrition programs including the United States Department of Agriculture’s National School Lunch Program (the Program). 7 C.F.R. pt. 210; § 595.404, Fla. Stat. (2020). Under the Program, DACS receives federal funds and distributes those funds to eligible “School Food Authorities” (SFAs) * via reimbursement for meals the SFAs provided to children. See 7 C.F.R. pt. 210. The federal funds are subject to recoupment by DACS if an SFA is not operating in compliance with state and federal regulations. 7 C.F.R. § 210.19(c). In a Notice of Action, DACS sought to recoup more than $13 million DACS had reimbursed the Foundation for meals the Foundation provided to Department of Juvenile Justice (DJJ) facilities during the 2014-15, 2015-16, 2016-17, 2017-18, 2018-19, and 2019-20 school years (the applicable period). DACS also sought to deny approximately $500,000 in pending reimbursement claims the Foundation submitted for several months in 2019 and 2020. DACS asserted the Foundation was not an eligible SFA during the applicable period because the DJJ facilities the Foundation served were operated by for-profit businesses and the Foundation was not the governing body for those facilities. DACS also claimed the Foundation had a conflict of interest with the for- profit providers it hired to provide meals as Food Service Management Companies under the Program. After a hearing, a DACS hearing officer entered a detailed final determination in favor of the Foundation. DACS appealed, arguing: (1) the hearing officer erred in concluding the Foundation was an eligible SFA, and (2) the hearing officer erred in concluding there was no conflict of interest. We reject both arguments. The final determination comes to this Court clothed with a presumption of correctness. Smith v. Coal. to Reduce Class Size, 827 So. 2d 959, 961 (Fla. 2002). The hearing officer’s findings of fact are reviewed for competent, substantial evidence. Mobley v. * “School Food Authority” is defined to mean: “[T]he governing body which is responsible for the administration of one or more schools; and has the legal authority to operate the Program therein or be otherwise approved by [the Food and Nutrition Service, United States Department of Agriculture] to operate the Program.” 7 C.F.R. § 210.2. 2 State, 181 So. 3d 1233, 1236 (Fla. 1st DCA 2015). Competent, substantial evidence, including testimony from DACS and Foundation witnesses as well as email correspondence between the parties, supports the hearing officer’s findings. The hearing officer’s conclusions of law are reviewed de novo with no deference given to DACS’s independent interpretation of statutes or rules. Art. V, § 21, Fla. Const.; MB Doral, LLC v. Dep’t of Business & Pro. Regul., 295 So. 3d 850, 853 (Fla. 1st DCA 2020). We find no error in the hearing officer’s conclusions. The Foundation met the eligibility requirements during the applicable period. Since 2012, the Foundation has been authorized to administer the National School Lunch Program at the facilities with DJJ’s permission and DACS’s approval. The Foundation materially relied upon DACS and USDA guidance to do so. DACS failed to put forth any preserved argument to suggest otherwise or demonstrate a conflict of interest. The final determination on appeal is AFFIRMED. B.L. THOMAS, ROBERTS, and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Steven L. Hall, General Counsel, Magdalena Anna Ozarowski and Darby G. Shaw, Assistant General Counsel, Department of Agriculture and Consumer Services, Tallahassee, for Appellant. D. Ty Jackson and George Levesque of GrayRobinson, P.A., Tallahassee, for Appellee. 3