Judges: DIANE D. TREMOR
Agency: Department of Education
Latest Update: Sep. 20, 1985
84-2613STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OZZIE THOMPSON, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2613
)
DEPARTMENT OF EDUCATION, ) DIVISION OF BLIND SERVICES, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, DIVISION ) OF BLIND SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2983
)
OZZIE THOMPSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 31, 1985, in Gainesville, Florida. The transcript was received by the undersigned on September 19, 1985. The issues for determination in these consolidated proceedings are whether Ozzie Thompson was properly removed as food service manager in Vending Facility No. 263 located in the Alachua County Judicial Building (Case No. 84- 2613) and whether his vending facility operator's license should be revoked for the reasons set forth in the Administrative Complaint dated August 16, 1984 (Case No. 84-2983).
APPEARANCES
For Department of Herbert D. Sikes Education, Division Office of General Counsel of Blind Services: Knott Building
Tallahassee, Florida 32301
For Ozzie Thompson: Ozzie Thompson
D706-100 Memorial Parkway Palatka, Florida 32077
INTRODUCTION
After being notified that he had been removed as manager of the vending facility in the Alachua County Judicial Building, Ozzie Thompson timely requested an administrative hearing. Thereafter, on August 16, 1985, the
Department of Education, Division of Blind Services, filed an Administrative Complaint seeking to revoke Thompson's license to operate a vending facility and the two cases, involving similar issues of fact and law, were consolidated. As grounds for revocation, the Administrative Complaint alleges that Thompson was removed from the vending facility by the lessor based upon complaints that he had physically touched women who worked in the building, had made inappropriate statements to women customers, had become intoxicated and was under the influence of alcohol while on the job and did not maintain the premises in a sanitary and clean manner. The Complaint further alleges that Mr. Thompson had previously been removed from another vending facility in Miami and that the basis for that removal was that he had engaged in sexual intercourse with two retarded clients at the Sunland Training Center. Inasmuch as this Miami incident was the subject of a prior administrative proceeding in which the charges against Mr. Thompson were dismissed, the undersigned ruled that evidence regarding the Miami facility was inadmissible in the instant proceeding.
In support of the remaining charges regarding the Gainesville facility, the Department of Education, Division of Blind Services offered the testimony of Curtis Powers, Clerk of the Alachua County Circuit Court; George Chartier, Building Supervisor of the Alachua County Judicial Building; Robert M. Booth, a vending facility operator; Sergeant Gene Yates, a security officer; Ronald Cox and Josie Sampadian, vending facility specialists; and Thomas Jack Bassett, the Program Director in charge of vending facilities for the Division of Blind Services. Exhibits 1 through 3 were received into evidence. Mr. Thompson testified in his own behalf, but offered no other witnesses or exhibits.
Neither party submitted post-hearing proposed findings of fact or proposed conclusions of law.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
FINDINGS OF FACT
Ozzie Thompson is a licensed vending facility operator and holds License Number 493 issued by the Division of Blind Services on May 10, 1982.
In June of 1983, Mr. Thompson became the vending manager and operator of the snack bar located in the Alachua County Judicial Building. This facility is leased by the Board of County Commissioners to the Division of Blind Services. Paragraph 4 of the Lease agreement provides, in part, that
"....The Grantee (Division of Blind Services) may appoint a blind agent and sighted assistants to conduct the business and shall have the right to supervise the business and to replace the agent or employees at will. The Grantor (Board of County Commissioners) agrees to notify the Grantee immediately of any mismanagement by the agent which may come to the Grantor's attention. The Grantee will immediately remove the agent or employee who is unsuitable or unsatisfactory to carry on the business."
Almost immediately after Mr. Thompson assumed the position of manager of the Alachua County Judicial Building vending facility, the vending facility specialist in charge of supervising that facility began receiving complaints.
The nature of these complaints were the quality of service, sanitation and the presence of derelicts within the facility for long periods of time. The supervisor also received complaints from female employees at the Judicial Building that Mr. Thompson had a tendency to "bump into" them and make "suggestive" remarks to them.
The Office of the Clerk, the security officer and the building superintendent at the Judicial Building likewise received complaints regarding the lingering presence of derelicts or "street people" within the vending facility and comments of a sexual nature from either Mr. Thompson, the derelicts or Mr. Thompson's assistants. The female employees complained that they did not feel comfortable going into the vending facility.
While no one actually saw Mr. Thompson drink alcoholic beverages while he was working, he was observed on several occasions to be groggy and appeared to be in an intoxicated condition. Mr. Thompson does take pills for asthma, and the medication makes him drowsy.
A vending facility operator at the Federal Building in Gainesville has observed Mr. Thompson to be in an intoxicated condition on two occasions. These occurred in the morning hours, at approximately 9:30 a.m., when Mr. Thompson visited his facility on his way to his own facility located about two blocks away. On these occasions, the odor of alcohol was present and Mr. Thompson's speech was impaired.
As a result of the complaints received by employees at the Judicial Building, the observations of the Clerk, the security officer and the building superintendent and the continued, lingering presence of derelicts within the facility, the County Administrator requested the Division of Blind Services to immediately relieve Mr. Thompson from employment at the snack bar.
At approximately 9:30 or 10:00 a.m. on June 15, 1984, the day that Mr. Thompson was to be removed and a final inventory taken, Mr. Thompson was not in the snack bar. When he later came into the facility, the odor of alcohol was detected and his speech was impaired. Mr. Thompson explained that he had been at home awaiting a telephone call regarding a recent death of a relative, and admitted that he had had "a little" beer before arriving at the facility.
CONCLUSIONS OF LAW
The two issues for determination in these consolidated proceedings are whether it was proper for Mr. Thompson to be removed from the vending facility located within the Alachua County Judicial Building (Case No. 84-2613) and whether his vending facility operator's license should be revoked for the reasons set forth in the Administrative Complaint of the Division of Blind Services (Case No. 84-2983).
Based upon the complaints of courthouse employees and the observations of courthouse officials, the Alachua County Board of County Commissioners, through the County Administrator, requested the Division of Blind Services to immediately relieve Mr. Thompson from employment at the snack bar. Under the terms of the lease agreement, the Division of Blind Services was required to remove an agent found to be "unsuitable" or "unsatisfactory" to carry on the business. It is clear from the testimony of the courthouse officials and the action of the County Administrator that Mr. Thompson was determined to be
unsuitable or unsatisfactory to manage the vending facility. Therefore, his removal from that facility by the Division of Blind Services was justified, proper and in accordance with the lease agreement between the Division and the Board of County Commissioners of Alachua County.
The factual grounds alleged in the Administrative Complaint to support the revocation of Mr. Thompson's operator's license were that he was requested by the lessor to be removed from the facility; that this request was based upon his conduct, both physical and verbal, toward women who patronized the facility; that some women employees were in fear of visiting the facility without being accompanied by a male; that he was intoxicated while on the job; and that he did not maintain the premises in a sanitary and clean manner.
The factual allegations of the Complaint regarding Mr. Thompson's conduct toward female customers of the facility were not supported by the evidence adduced at the hearing. No female who patronized the facility during Mr. Thompson's period of management testified at the hearing. While officials at the courthouse did receive complaints in this regard, thus providing justification for the requested removal of Mr. Thompson, there was no direct, competent or substantial evidence demonstrating Thompson's behavior with regard to female customers. Standing alone, these unsupported allegations do not form grounds for revocation.
There was sufficient direct evidence that Mr. Thompson did appear to be under the influence of alcoholic beverages while on the job. In addition, the evidence is clear that Mr. Thompson was requested to be removed from the facility on the ground that he was found to be unsuitable and unsatisfactory to carry on the business. Rule 6A-18.04(5)(j) and (k), Florida Administrative Code, provides that a license may be revoked for reporting to work under the influence of a controlled substance and/or for noncompliance with the operation agreement between the licensee and the Division, as set forth in Rule 6A-18.10, Florida Administrative Code. Under Rule 6A-18.10(1)(a), licensees are to conduct themselves in a manner which reflects credit to the vending facility program. By appearing at work in an intoxicated condition and being found unsuitable and unsatisfactory to conduct the business, petitioner has not reflected credit to the vending facility program. His license is accordingly subject to disciplinary action by the Division of Blind Services.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the license of Ozzie Thompson to operate a vending facility be suspended for a period of two years and that, at the expiration of two years, he be required to complete the vending facility training program as set forth in Rule 6A-18.05, Florida Administrative Code, or its successor, prior to issuance of a license.
Respectfully submitted and entered this 20th day of September, 1985, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1985.
COPIES FURNISHED:
Herbert Sikes, Esquire Office of General Counsel Knott Building Tallahassee, Florida 32301
Ozzie Thompson
D706-100 Memorial Parkway Palatka, Florida 32077
Ralph Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
Docket for Case No: 84-002983
Orders for Case No: 84-002983
